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Primacy of Jurisdiction and Exhaustion of Administrative
The private respondent in this case was awarded the sum of P192,000.00 by the
Philippine Overseas Employment dministration !POE" for the death of her husband. The
decision is challen#ed by the petitioner on the principal #round that the POE had no
$urisdiction over the case as the husband was not an overseas wor%er.
&italiano 'aco was (hief Officer of the )*& Eastern Polaris when he was %illed in an
accident in To%yo, +apan. ,is widow sued for dama#es under E-ecutive Order .o. /9/ and
)emorandum (ircular .o. 2 of the POE. The petitioner, as owner of the vessel, ar#ued that
the complaint was co#ni0able not by the POE but by the 'ocial 'ecurity 'ystem and should
have been filed a#ainst the 'tate 1nsurance 2und. The POE nevertheless assumed
$urisdiction and after considerin# the position papers of the parties ruled in favor of the
complainant. The award consisted of P130,000.00 as death benefits and P12,000.00 for
burial e-penses. The petitioner immediately came to this (ourt, promptin# the 'olicitor
4eneral to move for dismissal on the #round of non5e-haustion of administrative remedies.
The award of P130,000.00 for death benefits and P12,000.00 for burial e-penses was
made by the POE pursuant to its )emorandum (ircular .o. 2, which became effective on
2ebruary 1, 1936. This circular prescribed a standard contract to be adopted by both forei#n
and domestic shippin# companies in the hirin# of 2ilipino seamen for overseas employment.
similar contract had earlier been re7uired by the .ational 'eamen 8oard and had been
sustained in a number of cases by this (ourt. The petitioner claims that it had never entered
into such a contract with the deceased 'aco, but that is hardly a serious ar#ument. 1n the first
place, it should have done so as re7uired by the circular, which specifically declared that 9all
parties to the employment of any 2ilipino seamen on board any ocean5#oin# vessel are
advised to adopt and use this employment contract effective 01 2ebruary 1936 and to desist
from usin# any other format of employment contract effective that date.9 1n the second place,
even if it had not done so, the provisions of the said circular are nevertheless deemed written
into the contract with 'aco as a postulate of the police power of the 'tate. Petitioner
7uestions the validity of )emorandum (ircular .o. 2 itself as violative of the principle of non5
dele#ation of le#islative power. 1t contends that no authority had been #iven the POE to
promul#ate the said re#ulation: and even with such authori0ation, the re#ulation represents
an e-ercise of le#islative discretion which, under the principle, is not sub$ect to dele#ation.
;hether or not POE has $urisdiction over the case.
The authority to issue the said re#ulation is clearly provided in 'ection 6!a" of
E-ecutive Order .o. /9/, readin# as follows<
... The #overnin# 8oard of the dministration !POE", as hereunder provided shall
promul#ate the necessary rules and re#ulations to #overn the e-ercise of the ad$udicatory
functions of the dministration !POE".
'imilar authori0ation had been #ranted the .ational 'eamen 8oard, which, as earlier
observed, had itself prescribed a standard shippin# contract substantially the same as the
format adopted by the POE.
1t is true that le#islative discretion as to the substantive contents of the law cannot be
dele#ated. ;hat can be dele#ated is the discretion to determine how the law may be
enforced, not what the law shall be. The ascertainment of the latter sub$ect is a prero#ative of
the le#islature. This prero#ative cannot be abdicated or surrendered by the le#islature to the
dele#ate. There are two accepted tests to determine whether or not there is a valid dele#ation
of le#islative power, vi0, the completeness test and the sufficient standard test. =nder the first
test, the law must be complete in all its terms and conditions when it leaves the le#islature
such that when it reaches the dele#ate the only thin# he will have to do is enforce it. 1> =nder
the sufficient standard test, there must be ade7uate #uidelines or stations in the law to map
out the boundaries of the dele#ate?s authority and prevent the dele#ation from runnin# riot.
8oth tests are intended to prevent a total transference of le#islative authority to the
dele#ate, who is not allowed to step into the shoes of the le#islature and e-ercise a power
essentially le#islative.
The principle of non5dele#ation of powers is applicable to all the three ma$or powers of the
4overnment but is especially important in the case of the le#islative power because of the
many instances when its dele#ation is permitted. The occasions are rare when e-ecutive or
$udicial powers have to be dele#ated by the authorities to which they le#ally certain. 1n the
case of the le#islative power, however, such occasions have become more and more
fre7uent, if not necessary. This had led to the observation that the dele#ation of le#islative
power has become the rule and its non5dele#ation the e-ception.
;ith the proliferation of speciali0ed activities and their attendant peculiar problems, the
national le#islature has found it more and more necessary to entrust to administrative
a#encies the authority to issue rules to carry out the #eneral provisions of the statute. This is
called the 9power of subordinate le#islation.9 ;ith this power, administrative bodies may
implement the broad policies laid down in a statute by 9fillin# in? the details which the
(on#ress may not have the opportunity or competence to provide. This is effected by their
promul#ation of what are %nown as supplementary re#ulations, such as the implementin#
rules issued by the @epartment of Aabor on the new Aabor (ode. These re#ulations have the
force and effect of law.
)emorandum (ircular .o. 2 is one such administrative re#ulation. The model contract
prescribed thereby has been applied in a si#nificant number of the cases without challen#e by
the employer. The power of the POE !and before it the .ational 'eamen 8oard" in re7uirin#
the model contract is not unlimited as there is a sufficient standard #uidin# the dele#ate in the
e-ercise of the said authority. That standard is discoverable in the e-ecutive order itself which,
in creatin# the Philippine Overseas Employment dministration, mandated it to protect the
ri#hts of overseas 2ilipino wor%ers to 9fair and e7uitable employment practices.9
One last challen#e of the petitioner must be dealt with to close the case. 1ts ar#ument
that it has been denied due process because the same POE that issued )emorandum
(ircular .o. 2 has also sustained and applied it is an uninformed criticism of administrative
law itself. dministrative a#encies are vested with two basic powers, the 7uasi5le#islative and
the 7uasi5$udicial. The first enables them to promul#ate implementin# rules and re#ulations,
and the second enables them to interpret and apply such re#ulations. E-amples abound< the
8ureau of 1nternal Bevenue ad$udicates on its own revenue re#ulations, the (entral 8an% on
its own circulars, the 'ecurities and E-chan#e (ommission on its own rules, as so too do the
Philippine Patent Office and the &ideo#ram Be#ulatory 8oard and the (ivil eronautics
dministration and the @epartment of .atural Besources and so on ad infinitum on their
respective administrative re#ulations. 'uch an arran#ement has been accepted as a fact of
life of modern #overnments and cannot be considered violative of due process as lon# as the
cardinal ri#hts laid down by +ustice Aaurel in the landmar% case of Ang Tibay v. Court of
Industrial Relations are observed. Thus, petition is dismissed, with costs a#ainst the
(. )IRE"T$R $% AN)S vs. "$'RT $% APPEAS
The petitioners @irector of Aands and the 'ecretary of Environment and .atural
Besources entered into a contract with the private respondent 8.. 4on0ale0 'urveyin#
(ompany for which the latter was bound to e-ecute a public land subdivision mappin# !Plsm"
of the alienable and disposable lands in the )unicipality of &alderama, nti7ue in
consideration of the amount of P13>,313.00.
The private respondent was li%ewise contracted by the petitioners to do the photo5
cadastral mappin# !Pcadm" of Pro$ect P(@)569>5@ in .umancia, %lan, for the sum of
P1>0,000.00. > ,owever, despite written demands from the 8ureau of Aands to the private
respondent to commence the .umancia, %lan Pcadm pro$ect, the latter failed to do so:
conse7uently, the former cancelled the contract with re#ard to the said pro$ect and declared
the performance bond as forfeited.
On a motion for reconsideration filed by the private respondent, the @irector of Aands
reinstated the said contract without however #rantin# the company?s re7uest for a price
ad$ustment, which denial the private respondent seasonably appealed to the 'ecretary of
Environment and .atural Besources. This appeal is pendin#. The @irector of Aands li%ewise
scrapped the &alderama Plsm contract because of the non5completion of the pro$ect despite
the #rant of repeated e-tensions totallin# 1,200 days. 'imilarly, the private respondent
appealed the cancellation of the said contract to the 'ecretary of Environment and .atural
Besources, where the appeal also still remains pendin#.
)eanwhile, without both appeals bein# resolved, the @irector of Aands conducted a
public biddin# for the cadastral survey of several municipalities includin# the )unicipality of
.umancia, %lan and the )unicipality of &alderama, nti7ue. 1n the said biddin#, rmando
&illamayor and (ristina )atuod were declared as the successful bidders for the .umancia
and &alderama pro$ects, respectively. Thereupon, the private respondent filed a petition for
prohibition and mandamus with a prayer for a temporary restrainin# order with the (ourt of
ppeals alle#in# that the @irector of Aands acted without or in e-cess of $urisdiction in
awardin# the said cadastral survey pro$ects to other persons while the appeals of the private
respondent remain pendin#. (ourt of ppeals #ranted the said petition and denied in a
resolution the petitioners? motion for reconsideration. ,ence, this petition.
;hether or not the respondent court erred in holdin# that the @irector of Aands acted
without or in e-cess of his $urisdiction or with #rave abuse of discretion in allowin# the award
of the cadastral survey pro$ects to new contractors involvin# lands sub$ect to prior mappin#
pro$ects with another contractor !the private respondent" whose contracts are involved in a
pendin# appeal to the 'ecretary of Environment and .atural Besources.
The petition is impressed with merit. The 7uestion on the necessity of either or both
pro$ects must be better addressed to the sound discretion of the proper administrative officials
who admittedly have the competence and technical e-pertise on the matters. 1n the case at
bar, the petitioner @irector of Aands is 9the official vested with direct and e-ecutive control of
the disposition of the lands of the public domain.9 'pecifically, 'ection 6 of (ommonwealth
ct .o. 161 provides that . . . CTDhe @irector of Aands shall have direct e-ecutive control of the
survey, classification, lease, sale, or any form of concession or disposition and mana#ement
of the public domain, and his decisions as to 7uestions of fact shall be conclusive when
approved by the 'ecretary of #riculture and (ommerce !now the 'ecretary of Environment
and .atural Besources".9
'upreme (ourt li%ewise ta%e co#ni0ance of the wealth of $urisprudence on this doctrine
of primary administrative $urisdiction and e-haustion of administrative remedies. The (ourt
has consistently held that 9acts of an administrative a#ency must not casually be over5turned
by a court, and a court should as a rule not substitute its $ud#ment for that of the
administrative a#ency actin# within the parameters of its own competence,9 unless 9there be
a clear showin# of arbitrary action or palpable and serious error.9 1n similar vein, (ourt
reiterated recently the rule that the findin#s of fact of 7uasi5$udicial a#encies which have
ac7uired e-pertise because their $urisdiction is confined to specific matters, in the present
case cadastral surveys and mappin#s and land re#istration, are accorded not only respect but
more often than not even finality.
On the other hand, the private respondent claims that his case is an e-ception and
invo%es Aeon#son vs. (ourt of ppeals which states that 9once the actuation of an
administrative official or administrative board or a#ency is tainted by a failure to abide by the
command of the law, then, it is incumbent on the court?s of $ustice to set matters ri#ht, with the
Tribunal havin# the last say on the matter.9 8ut ironically, it is precisely the 9command of the
law9 that the @irector of Aands sou#ht to implement when the respondent court en$oined the
former from pushin# throu#h with the award of the cadastral survey pro$ects. ;e have 7uoted
earlier the provisions of 'ection 6 of (ommonwealth ct .o. 161 CThe Public Aand AawD,
which e-plicitly empower and command the @irector of Aands to have the direct e-ecutive
control of the survey and classification, inter alia, of lands of the public domain. )oreover, in
the same law, in 'ection E thereof, 9CTDhe @irector of Aands, with the approval of the 'ecretary
of #riculture and (ommerce shall prepare and issue such forms, instructions, rules, and
re#ulations consistent with this ct, as may be necessary and proper to carry into effect the
provisions thereof and for the conduct of proceedin#s arisin# under such provisions.9 side
from these 9command!s" of the law9 #ivin# to the @irector of Aands the 9direct e-ecutive
control9 of the sub$ect matter of the controversy in this case, the Aand Be#istration
(ommission !AB(" re7uires in its (irculars the full and complete technical description of lands
prior to their re#istration. The said re7uirement can only be accomplished throu#h the conduct
of a re#ular cadastral survey which, as aforesaid, is under the direct e-ecutive control of the
@irector of Aands.
8ut even #rantin# ar#uendo that the Plsm and Pcadm pro$ects on the one hand, and
the cadastral survey on the other, are similar activities, there is no le#al bar for the private
respondent, assumin# that the 'ecretary of Environment and .atural Besources resolves the
appeals in its favor, to finish the mappin# pro$ects and then demand the correspondin#
remuneration from the @irector of Aands. 1n the same way, compensation would be due to the
winnin# bidders in 7uestion once their own cadastral survey pro$ects would have been
accomplished. 1n case the @irector of Aands fails to pay upon fulfillment of the said contracts,
then any contractor may validly resort to $udicial action to enforce its le#itimate demands.
)eanwhile, the proper remedy of the private respondent would be to pursue promptly
its appeals with the 'ecretary of Environment and .atural Besources as re#ards its cancelled
and 7uestioned contracts rather than see% $udicial imprimatur to its improper interference with
administrative prero#atives and thus provide a convenient cover5up for its breaches of its own
contractual obli#ations. .otwithstandin# the private respondent?s dubious attitude in not
participatin# in the biddin# in 7uestion, he could have also appealed the conduct of the said
biddin# to the 'ecretary of Environment and .atural Besources as was the case in his Plsm
and Pcadm contracts with the #overnment and asserted therein that the same would be
pre$udicial to his interests.
1n sum, the respondent court committed a reversible error in stoppin# the
implementation of the results of the biddin# for the cadastral survey pro$ects conducted by the
@irector of Aands. The said in$unction issued by the respondent court constitutes a violation of
the doctrine of primary administrative $urisdiction and defeats the very purpose thereof, which
is, 9not only to #ive the administrative a#ency the opportunity to decide the controversy by
itself correctly, but also to prevent unnecessary and premature resort to the courts.9 The
petition is #ranted and the in$unction issued is hereby lifted: the @ecision of the (ourt of
ppeals dated pril >, 193/, as well as its Besolution dated u#ust 2/, 193/, is hereby
annulled and set aside.
*. R$SAES vs. "$'RT $% APPEAS
The @on 8osco Technical 1nstitute posted the list of honor students for the #raduation
of its elementary department which was to ta%e place on pril 22,19/2. Bommel Bosales a
student of 4rade &1, candidate for #raduation and li%ewise candidate for &aledictorian,
reported to his parents that he was not listed as &aledictorian of the class but that it was
another boy by the name of (onrado &alerie. The parents of Bommel demanded for a re5
computation of the #rades of their son who, they averred, should be class valedictorian and
filed a formal complaint with the @irector of 8ureau of Private 'chools a#ainst the school
claimin# anomalous ran%in# of honor pupils for the #rade school with a re7uest for a review of
the computations made by the school.
The (hief of the Ae#al @ivision of the 8ureau of Private 'chools sent a copy of the
complaint by first indorsement to the Bector of herein respondent school. 'aid comment was
made on pril 21, 19/2, statin#, amon# others, that the complaint had lost its validity because
the same was filed on the eve of the commencement e-ercises of the school, in violation of
the provision of para#raph 1/E, 'ection F1 of the )anual of Be#ulation for Private 'chools
re7uirin# complaints of the %ind to be filed not later than ten !10" days before commencement
e-ercises. ,owever, defendant Bector indicated that he would welcome an investi#ation in
order to erase any doubt as to the selection of the honor students of the #rade school
@irector of Private 'chools rendered a decision holdin# that Bommel Bosales was the
ri#htful valedictorian. Bosales filed a complaint for dama#es in view of the failure of the school
to #raduate Bommel Bosales as valedictorian of his class. 1n its answer, respondent school
prayed that the complaint be dismissed on the #round that the @irector of Private 'chools
actin# on its motion dated )ay 11, 19/2 reconsidered and set aside his decision of )ay G,
19/2 and instead 9approved and*or confirmed the selection and award of honors to the
students concerned for the school year 19/1519/2 as effected by the school.9 t the pre5trial,
plaintiffs !petitioners herein" confirmed their filin# of said appeal with the 'ecretary of
Education. 2or this reason, respondent school moved to dismiss the complaint for lac% of
cause of action on the #round of plaintiff?s !petitioner?s" failure to e-haust administrative
remedies. The trial court issued an order which #ranted the motion to dismiss and the
complaint is dismissed.
On appeal, the (ourt of ppeals found that the court a 7uo incurred no error when it
found that the decision of the @irector of Private 'chools was far from bein# final and that the
administrative remedies availed of by plaintiffs had not yet been e-hausted and affirmed the
decision appealed from in toto. ,ence, this petition.

;hether or not the principle of e-haustion of administrative remedies is applicable in
this case.
'ub$ect complaint, (ivil (ase .o. 1E993, was filed with the trial court on .ovember
29,19/2, showin# beyond dispute that the re7uest for reconsideration $udicially admitted to
have been filed by the petitioners on 2ebruary /, 19/> with the 'ecretary of Education and
(ulture had not yet been resolved at the time of the filin# of (ivil (ase .o. 1E993.
,ence, the said civil case which is an action for dama#es is premature. The finality of
the administrative case which #ives life to petitioners? cause of action has not yet been
reached. This was still pendin# as evidenced in the certificate issued by the a#ency tryin# the
same. The court a 7uo was thus correct in actin# upon the motion to dismiss filed by the
respondents on the #round that plaintiffs failed to e-haust administrative remedies.
=nder the doctrine of e-haustion of administrative remedies, recourse throu#h court
action, as a #eneral rule, cannot prosper until all the remedies have been e-hausted at the
administrative level. Thus, in be5be et al. v. )anta !90 '(B G26, G>1 C19/9D" we
emphatically declared<
;hen an ade7uate remedy may be had within the E-ecutive @epartment of the
#overnment, but nevertheless, a liti#ant fails or refuses to avail himself of the same, the
$udiciary shall decline to interfere. This traditional attitude of the courts is based not only on
convenience but li%ewise on respect: convenience of the party liti#ants and respect for a co5
e7ual office in the #overnment. 1f a remedy is available within the administrative machinery,
this should be resorted to before resort can be made to !the" court.
Petitioners however, claim that they were denied due process, obviously to show that
their case falls within one of the e-ceptions to the doctrine of e-haustion of administrative
remedies. 'uch contention is however untenable, because in the first place, they were made
to avail in the same administrative a#ency, the opportunity or ri#ht to oppose, which in fact
they did, when they filed a motion for reconsideration and later when the motion was denied,
they appealed to the 'ecretary of Education and (ulture.
Precisely, a motion for reconsideration or appeal is curative in character on the issue of
alle#ed denial of due process. The instant petition is dismissed for lac% of merit and the
decision of the (ourt of ppeals is affirmed.
+. S'N#IE vs. J')GE A,A)
'unville was #ranted a Timber Aicense #reement !TA", authori0in# it to e-ploit
timber within a concession area in Aison &alley, Hamboan#a del 'ur for a period of >0 years,
to e-pire on >1 'eptember 1992. 4ilbolin#o and 8u#tai filed a petition with the @E.B to annul
the said TA due to some serious violations of its conditions and provisions of forestry laws,
carried out by petitioner. They also filed a complaint for in$unction in the BT( a#ainst
petitioner, based on the same causes of action. motion to dismiss was filed by petitioner
based on > #round< 1" the court ad no $urisdiction: 2" non5e-haustion of administrative
remedies: and >" the complaint was prohibited by P@ E0G. The motion was denied by +ud#e
bad, which denial was sustained by the (.
The (ourt of ppeals held that the doctrine of e-haustion of administrative remedies
was not without e-ception and pointed to the several instances approved by this (ourt where
it could be dispensed with. The respondent court found that in the case before it, the
applicable e-ception was the ur#ent need for $udicial intervention. 1t was found out that the
(ity (ouncil of Pa#adian (ity sent a resolution in 1931 to the 8ureau of 2orest @evelopment
to reserve 1,000 hectares of the Aison &alley, but was not acted upon by the 8ureau. 1nstead,
petitioner was #ranted the TA, and the lo##in# operations of petitioner caused heavy
siltation in various rivers 1n other words, the adverse effects of the lo##in# operations of the
defendant have already covered a wider area than that feared to be adversely affected by the
(ity (ouncil of Pa#adian (ity, thus, ur#ent $udicial intervention on the matter was necessary,
as reliance on the @E.B is not enou#h.

;hether or not the doctrine of e-haustion of administrative remedies is applicable in
this case.
Ies. The doctrine of e-haustion of administrative remedies calls for resort first to the
appropriate administrative authorities in the resolution of a controversy fallin# under their
$urisdiction before the same may be elevated to the courts of $ustice for review. .on5
observance of the doctrine results in lac% of a cause of action, which is one of the #rounds
allowed in the Bules of (ourt for the dismissal of the complaint. The deficiency is not
$urisdictional. 2ailure to invo%e it operates as a waiver of the ob$ection as a #round for a
motion to dismiss and the court may then proceed with the case as if the doctrine had been
One of the reasons for the doctrine of e-haustion is the separation of powers, which
en$oins upon the +udiciary a becomin# policy of non5 interference with matters comin#
primarily !albeit not e-clusively" within the competence of the other departments. The theory
is that the administrative authorities are in a better position to resolve 7uestions addressed to
their particular e-pertise and that errors committed by subordinates in their resolution may be
rectified by their superiors if #iven a chance to do so. no less important consideration is that
administrative decisions are usually 7uestioned in the special civil actions of certiorari,
prohibition and mandamus, which are allowed only when there is no other plain, speedy and
ade7uate remedy available to the petitioner. 1t may be added that strict enforcement of the
rule could also relieve the courts of a considerable number of avoidable cases which
otherwise would burden their heavily loaded doc%ets.
s correctly su##ested by the respondent court, however, there are a number of
instances when the doctrine may be dispensed with and $udicial action validly resorted to
immediately. mon# these e-ceptional cases are< 1" when the 7uestion raised is purely le#al:
2" when the administrative body is in estoppel: >" when the act complained of is patently
ille#al: 6" when there is ur#ent need for $udicial intervention: G" when the claim involved is
small: E" when irreparable dama#e will be suffered: /" when there is no other plain, speedy
and ade7uate remedy: 3" when stron# public interest is involved: 9" when the sub$ect of the
controversy is private land: and 10" in 7uo warranto proceedin#s.
Even if it be assumed that the forestry laws do not e-pressly re7uire prior resort to
administrative remedies, the reasons for the doctrine above #iven, if nothin# else, would
suffice to still re7uire its observance. Even if such reasons were disre#arded, there would still
be the e-plicit lan#ua#e of pertinent laws vestin# in the @E.B the power and function 9to
re#ulate the development, disposition, e-traction, e-ploration and use of the country?s forests9
and 9to e-ercise e-clusive $urisdiction9 in the 9mana#ement and disposition of all lands of the
public domain,9 and in the 2orest )ana#ement 8ureau !formerly the 8ureau of 2orest
@evelopment" the responsibility for the enforcement of the forestry laws aid re#ulations here
claimed to have been violated. This comprehensive conferment clearly implies at the very
least that the @E.B should be allowed to rule in the first instance on any controversy comin#
under its e-press powers before the courts of $ustice may intervene. s for the alle#ed ur#ent
necessity for $udicial action and the claimed adverse impact of the case on the national
interest, the record does not show that the petitioners have satisfactorily established these
e-traordinary circumstances to $ustify deviation from the doctrine by e-haustion of
administrative remedies and immediate resort to the courts of $ustice.
1n fact, this particular submission must fall flat a#ainst the petitioner?s uncontested
contention that it has since 1933 stopped its operations under the TA in compliance with the
order of the @E.B. s the wron# alle#ed in the complaint was supposedly committed as a
result of the unlawful lo##in# activities of the petitioner, it will be necessary first to determine
whether or not the TA and the forestry laws and re#ulations had indeed been violated. To
repeat for emphasis, determination of this 7uestion is the primary responsibility of the 2orest
)ana#ement 8ureau of the @E.B. The application of the e-pertise of the administrative
a#ency in the resolution of the issue raised is a condition precedent for the eventual
e-amination, if still necessary, of the same 7uestion by a court of $ustice. Petition dismissed,
and the decision of the ( is reversed and set aside.
II. a- on Pu./ic $fficers
G. %EI0,ERT$ ". STA. 1ARIA vs. SA#A)$R P. $PE2
Petitioner was elected @ean of the (olle#e of Education by the 8oard of Be#ents, on
nomination of the =P President. ,is appointment as such @ean was for a five year term,
9effective )ay 1E, 19E/ until )ay 1/, 19/2, unless sooner terminated, with all the ri#hts and
privile#es as well as the duties and obli#ations attached to the position in accordance with the
rules and re#ulations of the =niversity and the (onstitution and laws of the Bepublic of the
s far bac% as 19E9, the #raduate and under#raduate students of the =P (olle#e of
Education presented to President 'alvador P. Aope0 a number of demands havin# a bearin#
on the #eneral academic pro#ram and the physical plant and services, with a cluster of
special demands. 8ecause of the boycott of classes by the students, President Aope0 issued
the transfer order herein challen#ed, addressed to @ean 'ta. )aria: 'anta )aria transferred
from the (olle#e of Education to the Office of the President as 'pecial ssistant with the ran%
of @ean, without reduction in salary, in the interest of the service.This transfer involves your
administrative position only and in no way affects your status as professor of the =niversity.
'imultaneously, President Aope0 appointed ad interim Professor .emesio B. (eralde as
9actin# @ean of the (olle#e of Education.
,avin# received the transfer order 'ta. )aria forthwith wrote a letter, which he himself
hand carried to President Aope0, re7uestin# that 9!a" a formal investi#ation be conducted by
the 8oard of Be#ents on the circumstances which led to the promul#ation of the above order,
and on the basis thereof: and !b" said order be reconsidered and set aside for bein#
manifestly un$ust, unfair, unconstitutional, and contrary to law, and, therefore, null and void.9
The discussion of the issues herein involved necessarily has to start with the
e-amination of the terms of employment, the covenant which binds petitioner with the
university. The contract, it bears repeatin#, stipulates that the dean?s five5year term is 7ualified
by the clause< 3un/ess sooner terminated! -ith a// the ri4hts and 5rivi/e4es as -e// as
the duties and o./i4ations attached to the 5osition in accordance -ith the ru/es and
re4u/ations of the 'niversity and the "onstitution and /a-s of the Re5u./ic of the
Phi/i55ines.3 The authority for this appointment is found in rticle /9 of the university code
providin# that 9CtDhe term of office of all deans ... shall be five years from the date of their
appointment without pre$udice to reappointment and until their successors shall have been
The 'upreme (ourt first loo% into the meanin# of the phrase 9unless sooner
terminated9 embodied in the contract of employment. Bi#ht at the start, it would seem to us
that the term 9unless sooner terminated9 cannot be e7uated or tied up with some such terms
as 9terminable at will9, or 9removable at pleasure9.
number of reasons there are why petitioner may not be removed at pleasure before
the e-piry of his term. First. Petitioner?s contract of employment has a fi-ed term of five years.
1t is not an appointment in an actin# capacity..or is petitioner?s desi#nation that of an officer5
in5char#e as it is %nown in administrative practice. Second. .othin# in the rules and
re#ulations of the university or its charter would indicate that a colle#e dean appointed with a
term can be separated without cause. On the contrary, reason there is to be believe that the
university policy points 7uite to the contrary. n instance is the resolution of the 8oard of
Be#ents of +une 16, 19E1, fi-in# the term of office of the =P President. 1t was there stated
that 9uncertainty of tenure and fre7uency of chan#e in the incumbent of the position are not
for the best interests of the =niversity.9 This concept is self5evident. Third. #ain, there is
nothin# either in the =P charter or code empowerin# the =P President or the 8oard of
Be#ents to insert such a clause J unless sooner terminated J as would authori0e dismissal
at will. Fourth. s this (ourt, in Lacson vs. Roque, 92 Phil. 6GE, 6E>, ruled, 9strict construction
of law relatin# to suspension and removal, is the universal rule.9 Petitioner, with a definite
term of employment, may not thus be removed e-cept for cause. The reasons bein# that the
removal was not e-pressly declared to be e-ercisable at pleasure or at will: and that the fi-ity
of the term of office #ives rise to the inference that he may be removed from office only for
misbehavior as to which he shall be entitled to notice and hearin#. s was well pointed out
in Lacson vs. Roque, 9CaDn inferential authority to remove at pleasure can not be deduced,
since the e-istence of a defined term, ipso factone#atives such an inference and implies a
contrary presumption, i.e. that the incumbent shall hold office to the end of his term sub$ect to
removal for cause.9
The fore4oin4 5aves the -ay for the consideration of -hat -e .e/ieve is the
overridin4 6uestion& 7as Sta. 1aria removed8
ccordin# to the 'upreme (ourt, a dean of a =P colle#e holds a non5competitive or
unclassified civil service position. s such, and upon the provisions of his contract of
employment, he is protected by constitutional and statutory provisions on security of term. ,e
cannot be removed durin# the term e-cept for cause and after prior hearin# and
investi#ation. ;hich re7uisites are also embodied in the university charter and in the
university code.9 ;hether @ean 'ta. )aria was transferred, promoted, demoted, or removed
without his consent.
(oncededly transfers there are which do not amount to removal. 'ome such transfers
can be effected without the need for char#es bein# preferred, without trial or hearin#, and
even without the consent of the employee. The clue to such transfers may be found in the
9nature of the appointment.9 ;here the appointment does not indicate a specific station, an
employee may be transferred or reassi#ned provided the transfer affects no substantial
chan#e in title, ran% and salary. Thus, one who is appointed 9principal in the 8ureau of Public
'chools9 and is desi#nated to head a pilot school may be transferred to the post of principal
of another school.
nd the rule that outlaws unconsented transfers as anathema to security of tenure
applies only to an officer who is appointed J not merely assi#ned J to a particular
station.'uch a rule does not prescribe a transfer carried out under a specific statute that
empowers the head of an a#ency to periodically reassi#n the employees and officers in order
to improve the service of the a#ency. The use of approved techni7ues or methods in
personnel mana#ement to harness the abilities of employees to promote optimum public
service cannot be ob$ected to..either does ille#ality attach to the transfer or reassi#nment of
an officer pendin# the determination of an administrative (har#e a#ainst him:or to the transfer
of an employee from his assi#ned station to the main office, effected in #ood faith and in the
interest of the service pursuant to 'ection 32 of the (ivil 'ervice ct.
That the university is vested with corporate powers e-ercised by the board of re#ents
and the President is a proposition which is not open to 7uestion. The board, upon
recommendation of the President, is clothed with authority to hire and fire after investi#ation
and hearin#. The President, on the other hand, may fill vacancies temporarily, transfer faculty
members from one department to another, and ma%e arran#ements to meet emer#encies
occurrin# between board meetin#s so that the wor% of the university may not suffer.
To be stressed at this point, however, is that the appointment of 'ta. )aria is that of
9@ean, (olle#e of Education, =niversity of the Philippines.9 ,e is not merely a dean 9in the
university9. ,is appointment is to a specific position: and, more importantly, to a specific
station. 8ut a colle#e dean holdin# an appointment with a fi-ed term stands on a different
plane. ,e cannot, without his consent, be transferred before the end of his term. ,e cannot
be as%ed to #ive up his post. .or may he be appointed as dean of another colle#e. )uch less
can he be transferred to another position even if it be di#nified with a dean?s ran%.
The problem is of whether or not petitioners transfer from the (olle#e of Education to
the Office of the President as special assistant with the ran% of dean without reduction in
salary was permanent. 2acts there are which would show that far from bein# a temporary
measure, petitioner?s transfer was in fact a removal. Bespondent university president himself
admitted that the transfer order was an ad interim appointment. That the transfer was a
removal has been confirmed by the =P President?s reference to 'ta. )aria?s deanship of the
(olle#e of Education as his 9former position9. This plainly indicates that 'ta. )aria ceased to
be dean of the colle#e.
The transfer was a demotion. demotion, because< First, @eanship in a university,
bein# an academic position which re7uires learnin#, ability and scholarship, is more e-alted
than that of a special assistant who merely assists the President, as the title indicates. The
special assistant does not ma%e authoritative decisions. Second. The position of dean is a
line position where the holder ma%es authoritative decisions in his own name and
responsibility. special assistant does not rise above the level of staff position. Third. The
position of dean is created by law, the university charter, and cannot be abolished even by the
8oard of Be#ents. That of special assistant, upon the other hand, is not so provided by law: it
was a creation of the university president.
1t will not avail respondents any to say that 'ta. )aria retained 9the ran% of @ean9. 1n
actual administrative practice, the terms 9with ran% of9 dean is meanin#less. ,e is no dean at
all. ,e of course, bas%s, in the trappin#s of the dean. palliative it could have been intended
to be. 8ut actually he is a dean without a colle#e.
9. 1A"E)A vs. H$N. $1,')S1AN "$NRA)$ 1. #AS:'E2
Petitioner 8onifacio 'an0 )aceda, Presidin# +ud#e of 8ranch 12 of the Be#ional Trial
(ourt of nti7ue, see%s the review of the followin# orders of the Office of the Ombudsman< !1"
the Order dated 'eptember 13, 1991 denyin# the e-5parte motion to refer to the 'upreme
(ourt filed by petitioner: and !2" the Order dated .ovember 22, 19G1 denyin# petitioner?s
motion for reconsideration and directin# petitioner to file his counter5affidavit and other
controvertin# evidences.
1n his affidavit5complaint filed before the Office of the Ombudsman, respondent
.apoleon . biera of the Public ttorney?s Office alle#ed that petitioner had falsified his
(ertificate of 'ervice by certifyin# 9that all civil and criminal cases which have been
submitted for decision or determination for a period of 90 days have been determined and
decided on or before +anuary >1, 1993,9 when in truth and in fact, petitioner %new that no
decision had been rendered in five !G" civil and ten !10" criminal cases that have been
submitted for decision. Bespondent biera further alle#ed that petitioner similarly falsified his
certificates of service for the months of 2ebruary, pril, )ay, +une, +uly and u#ust, all in
1939: and the months be#innin# +anuary up to 'eptember 1990, or for a total of seventeen
!1/" months.
On the other hand, petitioner contends that he had been #ranted by this (ourt an
e-tension of ninety !90" days to decide the aforementioned cases. Petitioner also contends
that the Ombudsman has no $urisdiction over said case despite this (ourt?s rulin# in Orap vs.
'andi#anbayan, since the offense char#ed arose from the $ud#e?s performance of his official
duties, which is under the control and supervision of the 'upreme (ourt. 2urthermore, the
investi#ation of the Ombudsman constitutes an encroachment into the 'upreme (ourt?s
constitutional duty of supervision over all inferior courts.
;hether the Office of the Ombudsman could entertain a criminal complaint for the
alle#ed falsification of a $ud#e?s certification submitted to the 'upreme (ourt, and assumin#
that it can, whether a referral should be made first to the 'upreme (ourt.
The (ourt disa#rees with the first Part of petitioner?s basic ar#ument. There is nothin#
in the decision in Orap that would restrict it only to offenses committed by a $ud#e unrelated to
his official duties. $ud#e who falsifies his certificate of service is administratively liable to the
'upreme (ourt for serious misconduct and inefficiency under 'ection 1, Bule 160 of the
Bules of (ourt, and criminally liable to the 'tate under the Bevised Penal (ode for his
felonious act.
,owever, the (ourt a#rees with petitioner that in the absence of any administrative
action ta%en a#ainst him by this (ourt with re#ard to his certificates of service, the
investi#ation bein# conducted by the Ombudsman encroaches into the (ourt?s power of
administrative supervision over all courts and its personnel, in violation of the doctrine of
separation of powers.
rticle &111, section E of the 193/ (onstitution e-clusively vests in the 'upreme (ourt
administrative supervision over all courts and court personnel, from the Presidin# +ustice of
the (ourt of ppeals down to the lowest municipal trial court cler%. 8y virtue of this power, it is
only the 'upreme (ourt that can oversee the $ud#es? and court personnel?s compliance with
all laws, and ta%e the proper administrative action a#ainst them if they commit any violation
thereof. .o other branch of #overnment may intrude into this power, without runnin# afoul of
the doctrine of separation of powers.
The Ombudsman cannot $ustify its investi#ation of petitioner on the powers #ranted to it
by the (onstitution, for such a $ustification not only runs counter to the specific mandate of the
(onstitution #rantin# supervisory powers to the 'upreme (ourt over all courts and their
personnel, but li%ewise undermines the independence of the $udiciary.
Thus, the Ombudsman should first refer the matter of petitioner?s certificates of service
to this (ourt for determination of whether said certificates reflected the true status of his
pendin# case load, as the (ourt has the necessary records to ma%e such a determination.
The Ombudsman cannot compel this (ourt, as one of the three branches of #overnment, to
submit its records, or to allow its personnel to testify on this matter, as su##ested by public
respondent biera in his affidavit5complaint.
1n fine, where a criminal complaint a#ainst a +ud#e or other court employee arises from
their administrative duties, the Ombudsman must defer action on said complaint and refer the
same to this (ourt for determination whether said +ud#e or court employee had acted within
the scope of their administrative duties. The instant petition is hereby #ranted. The
Ombudsman is hereby directed to dismiss the complaint filed by public respondent tty.
.apoleon . biera and to refer the same to this (ourt for appropriate action.
;. G$#ERN$R A1$R ). )E$S$ vs. SAN)IGAN,A<AN
The petitioner was the duly elected mayor of 8otolan, Hambales in the local elections
of .ovember 19/1. ;hile he occupied the position of mayor, a certain +uan &illanueva filed a
letter complaint with the Tanodbayan accusin# him of havin# committed acts in violation of the
nti54raft Aaw !Bepublic ct >019" in relation to the award of licenses to operate fish corrals
in the municipal waters of 8otolan, Hambales durin# the period 19/E to 19/3 and the
issuance of five !G" tractors of the municipality to certain individuals alle#edly without any
a#reement as to the payment of rentals.
The complaint with respect to the award of licenses to operate fish corrals was
dismissed. s re#ards the other complaint, the Tanodbayan filed five !G" separate
informations accusin# the petitioner of violation of 'ection >!e", of the nti54raft Aaw with the
'andi#anbayan. motion to 7uash the informations was denied by the 'andi#anbayan.
motion for reconsideration was li%ewise denied.
The petitioner then filed a petition before the 'upreme (ourt to annul the
'andi#anbayan?s resolutions denyin# the petitioner?s motion to 7uash and motion for
reconsideration. 1n a resolution '( dismissed the petition for lac% of merit. The resolution
became final and e-ecutory. The petitioner was arrai#ned before the 'andi#anbayan. ,e
pleaded not #uilty to the char#es a#ainst him. The Office of the 'pecial Prosecutor then filed
a motion to suspend the petitioner pendente lite pursuant to 'ection 1> of Bepublic ct .o.
>019. 'andi#anbayan issued the 7uestioned resolution which stated that the accused mor
@. @eloso is suspended pendente lite from his position as Provincial 4overnor of Hambales
and from any other office that he may now be holdin#. The day followin# his receipt of the
resolution, or on 2ebruary 1E, 1939, the petitioner filed the instant petition.
The petitioner filed an ur#ent motion with the 'andi#anbayan re7uestin# that the
e-ecution and implementation of the 2ebruary 10, 1939 suspension order be held in
abeyance pendin# determination of the merits of the petition. The motion was denied
promptin# the petitioner to as% the (ourt for an earlier settin# of the trial of the cases which
was denied in an order dated 2ebruary 22, 1939.
The petitioner 7uestions the constitutionality of the suspension provision of 'ection 1>
of the nti54raft Aaw !Bepublic ct .o. >019".
;hether or not the suspension provision of Bepublic ct >019 should be struc% down
as invalid.
Petitioner @eloso was elected #overnor of the Province of Hambales in the +anuary
13, 1933 local elections. The re#ular term of a #overnor is only > years. ,e was, however,
ordered suspended from performin# his duties as #overnor by the 'andi#anbayan pursuant to
'ection 1> of Bepublic ct .o. >019 by virtue of the criminal char#es filed a#ainst him. The
order of suspension does not have a definite period so that the petitioner may be suspended
for the rest of his term of office unless his case is terminated sooner. =nder these
circumstances the preventive suspension which initially may be $ustified becomes
unreasonable thus raisin# a due process 7uestion. s we ruled in Aayno, 'r. v.
'andi#anbayan, !supra"<
The petitioner is a duly elected municipal mayor of Aian#a, 'uri#ao del 'ur. ,is term of
office does not e-pire until 193E. ;ere it not for this information and the suspension decreed
by the 'andi#anbayan accordin# to the nti54raft and (orrupt Practices ct, he would have
been all this while in the full dischar#e of his functions as such municipal mayor. ,e was
elected precisely to do so. s of October 2E, 193>, he has been unable to. 1t is a basic
assumption of the electoral process implicit in the ri#ht of suffra#e that the people are entitled
to the services of elective officials of their choice. 2or misfeasance or malfeasance, any of
them could, of course, be proceeded a#ainst administratively or, as in this instance, criminally.
1n either case, his culpability must be established. )oreover, if there be a criminal action, he
is entitled to the constitutional presumption of innocence. preventive suspension may be
$ustified. 1ts continuance, however, for an unreasonable len#th of time raises a due process
7uestion. 2or even if thereafter he were ac7uitted, in the meanwhile his ri#ht to hold office had
been nullified. (learly, there would be in such a case an in$ustice suffered by him. .or is he
the only victim. There is in$ustice inflicted li%ewise on the people of Aian#a. They were
deprived of the services of the man they had elected to serve as mayor. 1n that sense, to
paraphrase +ustice (ardo0o, the protracted continuance of this preventive suspension had
outrun the bounds of reason and resulted in sheer oppression. denial of due process is thus
7uite manifest. 1t is to avoid such an unconstitutional application that the order of suspension
should be lifted.
)oreover, in the earlier case of 4arcia v. The E-ecutive 'ecretary, !E '(B 1 C19E2D"
we ruled on the issue as to whether the preventive suspension beyond the ma-imum period
of E0 days, provided in 'ection >G of the (ivil 'ervice ct of 19G9 !Bepublic ct 22E0" is
ille#al and void. 1n rulin# in favor of the petitioner, the (ourt stated<
To adopt the theory of respondents that an officer appointed by the !resident facing
administrative charges can be preventively suspended indefinitely "ould be to countenance
a situation "here the preventive suspension can in effect be the penalty itself "ithout a
finding of guilt after due hearing contrary to the e#press mandate of the Constitution $%o
officer or employee in the Civil Service shall be removed or suspended e#cept for cause as
provided by la". &Art. 'II Sec. ( Constitution of the !hilippines)* and the Civil Service La"
$%o officer or employee in the Civil Service shall be removed or suspended e#cept for cause
as provided by la" and after due process*. ... In the guise of a preventive suspension his
term of office could be shortened and he could in effect be removed "ithout a finding of a
cause duly established after due hearing in violation of the Constitution ...
The 7uestion that now arises is whether or not the rulin# in the 4arcia case where the
suspension was ordered by no less than the President of the Philippines is applicable to an
elective official facin# criminal char#es under the nti54raft Aaw and suspended under
'ection 1>, thereof.
The application of the 4arcia in$unction a#ainst preventive suspensions for an
unreasonable period of time applies with #reater force to elective officials and especially to
the petitioner whose term is a relatively short one. The interests of the soverei#n electorate
and the province of Hambales cannot be subordinated to the heavy case load of the
'andi#anbayan and of this (ourt. 1t would be most unfair to the people of Hambales who
elected the petitioner to the hi#hest provincial office in their command if they are deprived of
his services for an indefinite period with the termination of his case possibly e-tendin# beyond
his entire term simply because the bi# number of se7uestration, ill5#otten wealth, murder,
malversation of public finds and other more serious offenses plus incidents and resolutions
that may be brou#ht to the 'upreme (ourt prevents the e-pedited determination of his
innocence or #uilt. The order dated 2ebruary 10, 1939 suspendin# the petitioner without a
definite period can not be sanctioned. ;e rule that henceforth a preventive suspension of an
elective public officer under 'ection 1> of Bepublic ct >019 should be limited to the ninety
!90" days under 'ection 62 of Presidential @ecree .o. 30/, the (ivil 'ervice @ecree, which
period also appears reasonable and appropriate under the circumstances of this case.
The petitioner also 7uestions the applicability of 'ection 1> of Bepublic ct >019 as
amended by 8atasan Pambansa 8l#. 192 to him. ,e opines that the suspension provision as
amended which 7ualifies the public officer as incumbent does not apply to him since he is
now occupyin# the position of #overnor and not mayor, the position wherein he was char#ed
under the nti54raft Aaw.
This ar#ument is untenable. The issue was settled in the case of 8ayot v. 'andi#anbayan
!123 '(B >3> !1936", in this wise<
... Further the claim of petitioner that he cannot be suspended because he is presently
occupying a position different from that under "hich he is charged is untenable. The
amendatory provision clearly states that any incumbent public officer against "hom any
criminal prosecution under a valid information under Republic Act +,-. or for any offense
involving fraud upon the government or public funds or property "hether as a simple or as a
comple# offense and in "hatever stage or e#ecution and mode of participation is pending in
court shall be suspended from office. Thus by the use of the "ord office the same applies to
any office "hich the officer charged may be holding and not only the particular office under
"hich he "as charged.
The instant petition is #ranted. The preventive suspension imposed on petitioner mor
@. @eloso by virtue of the 2ebruary 10, 1939 resolution of the 'andi#anbayan should be
limited to only ninety !90" days after which @eloso will assume once a#ain the functions of
#overnor of Hambales, without pre$udice to the continuation of the trial of the pendin# cases
a#ainst him in the 'andi#anbayan. The decision is immediately e-ecutory.
(omplaints filed by a #roup of employees of the (ommission of 1mmi#ration and
@eportation !(1@" a#ainst petitioner, then (1@ (ommissioner, for alle#ed violation of the nti5
4raft and (orrupt Practices ct. The investi#atin# panel, that too% over the case from
investi#ator 4ualberto dela Alana after havin# been constituted by the @eputy Ombudsman
for Au0on upon petitioner?s re7uest, came up with a resolution which it referred, for approval,
to the Office of the 'pecial Prosecutor !O'P" and the Ombudsman. 1n his )emorandum,
dated 2E pril 1991, the Ombudsman directed the O'P to file the appropriate informations
a#ainst petitioner. On 1> )ay 1991, O'P submitted to the Ombudsman the informations for
clearance: approved, forthwith, three informations were filed on even date.
1n criminal case filed before the 'andi#anbayan, petitioner was indicted thusly< willfully,
unlawfully and criminally approve the application for le#ali0ation for the stay of the followin#
aliens who arrived in the Philippines in violation of E-ecutive Order .o. >26 which prohibits
the le#ali0ation of said dis7ualified aliens %nowin# fully well that said aliens are dis7ualified
thereby #ivin# unwarranted benefits to said aliens whose stay in the Philippines was
unlawfully le#ali0ed by said accused.9 Two other criminal cases, one for violation of the
provisions of Presidential @ecree .o. 6E and the other for libel, were filed with the Be#ional
Trial (ourt of )anila, doc%eted, respectively, .o. 91596GGG and .o. 9159639/. Pursuant to
the information filed with the 'andi#anbayan, Presidin# +ustice 2rancis E. 4architorena
issued an order for the arrest of petitioner, fi-in# the bail at 2ifteen Thousand !P1G,000.00"
Pesos. Petitioner posted a cash bail without need for physical appearance as she was then
recuperatin# from in$uries sustained in a vehicular accident. The 'andi#anbayan #ranted her
provisional liberty. fterwards, 'andi#anbayan issued an order settin# the arrai#nment.
Petitioner filed, concurrently, a Petition for (ertiorari with prohibition and Preliminary
1n$unction before the (ourt see%in# to en$oin the 'andi#anbayan from proceedin# with
criminal case and a motion before the 'andi#anbayan to meanwhile defer her arrai#nment.
The (ourt ta%in# co#ni0ance of the petition issued a temporary restrainin# order. The (ourt
rendered its decision dismissin# the petition and liftin# the temporary restrainin# order. The
subse7uent motion for reconsideration filed by petitioner proved unavailin#. The petition
assails the authority of the 'andi#anbayan to decree a ninety5day preventive suspension of
)me. )iriam @efensor5'antia#o, a 'enator of the Bepublic of the Philippines, from any
#overnment position, and furnishin# a copy thereof to the 'enate of the Philippines for the
implementation of the suspension order.
The authority of the 'andi#anbayan to order the preventive suspension of an
incumbent public official char#ed with violation of the provisions of Bepublic ct .o. >019 has
both le#al and $urisprudential support. 1n the relatively recent case of 'e#ovia vs.
'andi#anbayan, the (ourt reiterated<
/The validity of Section -+ R.A. +,-. as amended 0 treating of the suspension pendente
lite of an accused public officer 0 may no longer be put at issue having been repeatedly
upheld by this Court.
The provision of suspension pendente lite applies to all persons indicted upon a valid
information under the Act "hether they be appointive or elective officials1 or permanent or
temporary employees or pertaining to the career or non2career service./ It "ould appear
indeed to be a ministerial duty of the court to issue an order of suspension upon
determination of the validity of the information filed before it. 3nce the information is found to
be sufficient in form and substance the court is bound to issue an order of suspension as a
matter of course and there seems to be /no ifs and buts about it./ 4#plaining the nature of
the preventive suspension the Court in the case of 5ayot vs. Sandiganbayan 6 observed7
/# # # . It is not a penalty because it is not imposed as a result of 8udicial proceedings. In fact
if acquitted the official concerned shall be entitled to reinstatement and to the salaries and
benefits "hich he failed to receive during suspension./
1n issuin# the preventive suspension of petitioner, the 'andi#anbayan merely adhered
to the clear and une7uivocal mandate of the law, as well as the $urisprudence in which the
(ourt has, more than once, upheld 'andi#anbayan?s authority to decree the suspension of
public officials and employees indicted before it. 'ection 1> of Bepublic ct .o. >019 does
not state that the public officer concerned must be suspended only in the office where he is
alle#ed to have committed the acts with which he has been char#ed. Thus, it has been held
that the use of the word 9office9 would indicate that it applies to any office which the officer
char#ed may be holdin#, and not only the particular office under which he stands accused. En
passant, while the imposition of suspension is not automatic or self5operative as the validity of
the information must be determined in a pre5suspension hearin#, there is no hard and fast
rule as to the conduct thereof. - - - . .o specific rules need be laid down for such pre5
suspension hearin#. The law does not re7uire that the #uilt of the accused must be
established in a presuspension proceedin# before trial on the merits proceeds. .either does it
contemplate a proceedin# to determine !1" the stren#th of the evidence of culpability a#ainst
him, !2" the #ravity of the offense char#ed, or !>" whether or not his continuance in office
could influence the witnesses or pose a threat to the safety and inte#rity of the records and
other evidence before the court could have a valid basis in decreein# preventive suspension
pendin# the trial of the case. ll it secures to the accused is ade7uate opportunity to
challen#e the validity or re#ularity of the proceedin#s a#ainst him, such as, that he has not
been afforded the ri#ht to due preliminary investi#ation, that the acts imputed to him do not
constitute a specific crime warrantin# his mandatory suspension from office under 'ection 1>
of Bepublic ct .o. >019, or that the information is sub$ect to 7uashal on any of the #rounds
set out in 'ection >, Bule 11/, of the Bevised Bules on (riminal Procedure.
The pronouncement, upholdin# the validity of the information filed a#ainst petitioner,
behooved 'andi#anbayan to dischar#e its mandated duty to forthwith issue the order of
preventive suspension. The order of suspension prescribed by Bepublic ct .o. >019 is
distinct from the power of (on#ress to discipline its own ran%s under the (onstitution which
provides that each J/# # # . house may determine the rules of its proceedings punish its
9embers for disorderly behavior and "ith the concurrence of t"o2thirds of all its 9embers
suspend or e#pel a 9ember. A penalty of suspension "hen imposed shall not e#ceed si#ty
The suspension contemplated in the above constitutional provision is a punitive
measure that is imposed upon determination by the 'enate or the ,ouse of Bepresentatives,
as the case may be, upon an errin# member. Thus, in its resolution in the case of (eferino
Paredes, +r. vs. 'andi#anbayan, et al., 13 the (ourt affirmed the order of suspension of
(on#ressman Paredes by the 'andi#anbayan, despite his protestations on the encroachment
by the court on the prero#atives of (on#ress. The (ourt ruled<
9- - - . Petitioner?s invocation of 'ection 1E !>", rticle &1 of the (onstitution J which deals
with the power of each ,ouse of (on#ress inter alia to ?punish its )embers for disorderly
behavior,? and ?suspend or e-pel a )ember? by a vote of two5thirds of all its )embers sub$ect
to the 7ualification that the penalty of suspension, when imposed, should not e-ceed si-ty
days J is unavailin#, as it appears to be 7uite distinct from the suspension spo%en of in
'ection 1> of B >019, which is not a penalty but a preliminary, preventive measure,
prescindin# from the fact that the latter is not bein# imposed on petitioner for misbehavior as
a )ember of the ,ouse of Bepresentatives.9
The doctrine of separation of powers by itself may not be deemed to have effectively
e-cluded members of (on#ress from Bepublic ct .o. >019 nor from its sanctions. Bepublic
ct .o. >019 does not e-clude from its covera#e the members of (on#ress and that,
therefore, the 'andi#anbayan did not err in thus decreein# the assailed preventive
suspension order. The instant petition for certiorari is @1')1''E@.
>. 'IS 1AA'AN vs. "$11ISSI$N $N EE"TI$NS
Petitioner Auis )alaluan and private respondent +oseph Evan#elista were both
mayoralty candidates in the )unicipality of Kidapawan, .orth (otabato, in the 'ynchroni0ed
.ational and Aocal Elections held on )ay 11, 1992. Private respondent +oseph Evan#elista
was proclaimed by the )unicipal 8oard of (anvassers as the duly elected )ayor for havin#
#arnered 10,693 votes as a#ainst petitioner?s 9,/92 votes. Evan#elista was, thus, said to
have a winnin# mar#in of /0E votes. 8ut petitioner filed an election protest with the Be#ional
Trial (ourt contestin# E6 out of the total 131 precincts of the said municipality. The trial court
declared petitioner as the duly elected municipal mayor of Kidapawan, .orth (otabato with a
plurality of 1G6 votes. ctin# without precedent, the court found private respondent liable not
only for )alaluan?s protest e-penses but also for moral and e-emplary dama#es and
attorney?s fees. Private respondent appealed the trial court decision to the (O)EAE(.
8y virtue of said order, petitioner assumed the office of )unicipal )ayor of Kidapawan,
.orth (otabato, and e-ercised the powers and functions of said office. 'uch e-ercise was not
for lon#, thou#h. 1n the herein assailed decision adverse to )alaluan?s continued #overnance
of the )unicipality of Kidapawan, .orth (otabato, the 2irst @ivision of the (ommission on
Elections !(O)EAE(" ordered )alaluan to vacate the office, said division havin# found and
so declared private respondent to be the duly elected )unicipal )ayor of said municipality.
The (O)EAE( en banc affirmed said decision. )alaluan filed this petition beforetha
'upreme (ourt on )ay >1, 199G as a conse7uence.
;hether or not a de facto officer is entitled to the emoluments of the office.
The 'upreme (ourt deems the award of salaries and other emoluments to be
improper and lac%in# le#al sanction. Bespondent (O)EAE( ruled that inapplicable in the
instant case is the rulin# in Bodri#ue0 vs. Tan because while in that case the official ousted
was the one proclaimed by the (O)EAE(, in the instant case, petitioner was proclaimed
winner only by the trial court and assumed office by virtue of an order #rantin# e-ecution
pendin# appeal. #ain, respondent (O)EAE( sweepin#ly concluded, in $ustifyin# the award
of dama#es, that since petitioner was ad$ud#ed the winner in the elections only by the trial
court and assumed the functions of the office on the stren#th merely of an order #rantin#
e-ecution pendin# appeal, the petitioner occupied the position in an ille#al manner as a
The 'upreme (ourt held that petitioner was not a usurper because, while a usurper is
one who underta%es to act officially without any color of ri#ht, the petitioner e-ercised the
duties of an elective office under color of election thereto. 1t matters not that it was the trial
court and not the (O)EAE( that declared petitioner as the winner, because both, at different
sta#es of the electoral process, have the power to so proclaim winners in electoral contests.
t the ris% of soundin# repetitive, if only to emphasi0e this point, we must reiterate that the
decision of a $udicial body is no less a basis than the proclamation made by the (O)EAE(5
convened 8oard of (anvassers for a winnin# candidate?s ri#ht to assume office, for both are
undisputedly le#ally sanctioned. '( deem petitioner, therefore, to be a 9de facto officer who,
in #ood faith, has had possession of the office and had dischar#ed the duties pertainin#
theretoL and is thus 3/e4a//y entit/ed to the emo/uments of the office.3
To recapitulate, 'ection 2G9 of the Omnibus Election (ode only provides for the
#rantin# in election cases of actual and compensatory dama#es in accordance with law. The
victorious party in an election case cannot be indemnified for e-penses which he has incurred
in an electoral contest in the absence of a wron#ful act or omission or breach of obli#ation
clearly attributable to the losin# party. Evidently, if any dama#e had been suffered by private
respondent due to the e-ecution of $ud#ment pendin# appeal, that dama#e may be said to be
e7uivalent to damnum abs7ue in$uria, which is, dama#e without in$ury, or dama#e or in$ury
inflicted without in$ustice, or loss or dama#e without violation of a le#al ri#ht, or a wron# done
to a man for which the law provides no remedy.
ccordin#ly, the petition for certiorari is #ranted. ;hile '( upholds the (O)EAE(
decision dated )ay G, 199G that private respondent +oseph Evan#elista is the winner in the
election for mayor of the )unicipality of Kidapawan, .orth (otabato, that portion of the
decision is deemed moot and academic because the term of office for mayor has lon#
e-pired. That portion of the decision awardin# actual dama#es to private respondent +oseph
Evan#elista is hereby declared null and void for havin# been issued in #rave abuse of
discretion and in e-cess of $urisdiction.
Private Bespondent u#usto T. ntonio was elected baran#ay captain of 'apan#
Palay, 'an ndres, (atanduanes. ,e was later elected president of the ssociation of
8aran#ay (ouncils !8(" for the )unicipality of 'an ndres, (atanduanes. 1n that capacity
and pursuant to the Aocal 4overnment (ode of 193>, he was appointed by the President as
member of the 'an##unian# 8ayan of the )unicipality of 'an ndres. )eanwhile, then
'ecretary Auis T. 'antos of the @epartment of 1nterior and Aocal 4overnment !@1A4" declared
the election for the president of the 2ederation of the ssociation of 8aran#ay (ouncils
!28(" of the same province, in which private respondent was a votin# member, void for want
of a 7uorum. ,ence, a reor#ani0ation of the provincial council became necessary.
(onformably, the @1A4 secretary desi#nated private respondent as a temporary member of
the 'an##unian# Panlalawi#an of the Province of (atanduanes. 1n view of his desi#nation,
private respondent resi#ned as a member of the 'an##unian# 8ayan. ,e tendered his
resi#nation to )ayor Bomano of 'an ndres, (atanduanes, with copies furnished to the
provincial #overnor, the @1A4 and the municipal treasurer. Pursuant to 'ection G0 of the 193>
Aocal 4overnment (ode !8.P. 8l#. >>/", .enito 2. 7uino, then vice president of the 8(,
was subse7uently appointed by the provincial #overnor as member of the 'an##unian#
8ayan in place of private respondent. 7uino assumed office after ta%in# his oath.
'ubse7uently, the rulin# of @1A4 'ecretary 'antos annullin# the election of the 28(
president was reversed by the 'upreme (ourt in Taule vs. 'antos. Private respondent wrote
to the members of the 'an##unian# 8ayan of 'an ndres, advisin# them of his re5
assumption of his 9ori#inal position, duties and responsibilities as sectoral representative9
therein. 1n response thereto, the 'an##unian issued Besolution .o. E, 'eries of 1992,
declarin# that ntonio had no le#al basis to resume office as a member of the 'an##unian#
8ayan. Private respondent sou#ht from the @1A4 a definite rulin# relative to his ri#ht to
resume his office as member of the 'an##unian# 8ayan. 1n response to private respondent?s
re7uest, @irector )ontesa opined that ntonio did not relin7uish or abandon his office: and
that since he was the duly elected 8( president, he could re5assume his position in the
'an##unian. .otwithstandin#, the 'an##unian refused to ac%nowled#e the ri#ht of private
respondent to re5assume office as sectoral representative.
Private respondent filed a petition for certiorari and mandamus with preliminary
mandatory in$unction and*or restrainin# order before the BT(. Trial court rendered its decision
holdin# that ntonioMs resi#nation from the 'an##unian# 8ayan was ineffective and
inoperative, since there was no acceptance thereof by the proper authorities. Petitioners
appealed this $ud#ment to the (ourt of ppeals. Bespondent (ourt of ppeals affirmed the
trial court?s rulin#. The appellate court added that private respondent could not be considered
to have abandoned his office. ,is desi#nation as member of the 'an##unian# Panlalawi#an
was merely temporary and not incompatible with his position as president of the 8( of 'an
ndres, (atanduanes.
1. ;hether or not respondent?s resi#nation as e-5officio member of Petitioner
'an##unian# 8ayan n# 'an ndres, (atanduanes is deemed complete so as to
terminate his official relation thereto.
11. ;hether or not respondent had totally abandoned his e-5officio membership in
Petitioner 'an##unian# 8ayan:
R'ING& The petition is meritorious.
%irst Issue& #a/idity of Resi4nation
1n Orti0 vs. (O)EAE(, the 'upreme (ourt defined resi#nation as the 9act of #ivin# up
or the act of an officer by which he declines his office and renounces the further ri#ht to use it.
1t is an e-pression of the incumbent in some form, e-press or implied, of the intention to
surrender, renounce, and relin7uish the office and the acceptance by competent and lawful
authority.9 To constitute a complete and operative resi#nation from public office, there must
be< !a" an intention to relin7uish a part of the term: !b" an act of relin7uishment: and !c" an
acceptance by the proper authority. The last one is re7uired by reason of rticle 2>3 of the
Bevised Penal (ode.
The records are bereft of any evidence that private respondent?s resi#nation was
accepted by the proper authority. 2rom the time that he was elected as punon# baran#ay up
to the time he resi#ned as a member of 'an##unian# 8ayan, the #overnin# law was 8.P. >>/
or the Aocal 4overnment (ode of 193>. ;hile said law was silent as to who specifically
should accept the resi#nation of an appointive member of the 'an##unian# 8ayan, 'ec. E of
Bule F1F of its implementin# rules states that the 9CrDesi#nation of san##unian members shall
be acted upon by the san##unian concerned, and a copy of the action ta%en shall be
furnished the official responsible for appointin# a replacement and the )inistry of Aocal
4overnment. The position shall be deemed vacated only upon acceptance of the resi#nation.9
1t is not disputed that private respondent?s resi#nation letter was addressed only to the
municipal mayor of 'an ndres, (atanduanes. 1t is indicated thereon that copies were
furnished the provincial #overnor, the municipal treasurer and the @1A4. .either the mayor
nor the officers who had been furnished copies of said letter e-pressly acted on it. 1n any
event, there is no evidence that the resi#nation was accepted by any #overnment functionary
or office. =nder established $urisprudence, resi#nations, in the absence of statutory provisions
as to whom they should be submitted, should be tendered to the appointin# person or body.
>1 Private respondents, therefore, should have submitted his letter of resi#nation to the
President or to his alter e#o, the @1A4 secretary. lthou#h he supposedly furnished the latter
a copy of his letter, there is no showin# that it was duly received, much less, that it was acted
upon. The third re7uisite bein# absent, there was therefore no valid and complete resi#nation.
Second Issue& A.andonment of $ffice
The 'upreme (ourt held that Private Bespondent ntonio has effectively relin7uished
his membership in the 'an##unian# 8ayan due to his voluntary abandonment of said post.
bandonment of an office has been defined as the voluntary relin7uishment of an office by
the holder, with the intention of terminatin# his possession and control thereof. 1ndeed,
abandonment of office is a species of resi#nation: while resi#nation in #eneral is a formal
relin7uishment, abandonment is a voluntary relin7uishment throu#h nonuser. .onuser refers
to a ne#lect to use a privile#e or a ri#ht or to e-ercise an easement or an office.
(lear intention to abandon should be manifested by the officer concerned. 'uch
intention may be e-press or inferred from his own conduct. Thus, the failure to perform the
duties pertainin# to the office must be with the officer?s actual or imputed intention to abandon
and relin7uish the office. bandonment of an office is not wholly a matter of intention: it
results from a complete abandonment of duties of such a continuance that the law will infer a
relin7uishment. Therefore, there are t-o essentia/ e/ements of a.andonment& first! an
intention to a.andon and! second! an overt or 3externa/3 act .y -hich the intention is
carried into effect.
The 'upreme (ourt a#reed with petitioner. 1ndeed, the followin# clearly manifest the
intention of private respondent to abandon his position< !1" his failure to perform his function
as member of the 'an##unian# 8ayan, !2" his failure to collect the correspondin#
remuneration for the position, !>" his failure to ob$ect to the appointment of 7uino as his
replacement in the 'an##unian# 8ayan, !6" his prolon#ed failure to initiate any act to
reassume his post in the 'an##unian# 8ayan after the 'upreme (ourt had nullified his
desi#nation to the 'an##unian# Panlalawi#an. On the other hand, the followin# overt acts
demonstrate that he had effected his intention< !1" his letter of resi#nation from the
'an##unian# 8ayan, !2" his assumption of office as member of the 'an##unian#
Panlalawi#an, !>" his faithful dischar#e of his duties and functions as member of said
'an##unian, and !6" his receipt of the remuneration for such post.
1t must be stressed that when an officer is 9desi#nated9 to another post, he is usually
called upon to dischar#e duties in addition to his re#ular responsibilities. 1ndeed, his additional
responsibilities are prescribed by law to inhere, as it were, to his ori#inal position. 1n some
cases, a public officer may be 9desi#nated9 to a position in an actin# capacity, as when an
undersecretary is tas%ed to dischar#e the functions of a secretary for a temporary period. 1n
all cases, however, the law does not re7uire the public servant to resi#n from his ori#inal post.
Bather, the law allows him to concurrently dischar#e the functions of both offices.
Private respondent, however, did not simultaneously dischar#e the duties and
obli#ations of both positions. .either did he, at that time, e-press an intention to resume his
office as member of the 'an##unian# 8ayan. ,is overt acts, silence, inaction and
ac7uiescence, when 7uino succeeded him to his ori#inal position, show that ntonio had
abandoned the contested office. 1t is si#nificant that he e-pressed his intention to resume
office only on )arch >1, 1992, after 7uino had been deemed resi#ned, and months after this
(ourt had nullified his 9desi#nation9. 2rom his passivity, he is deemed to have reco#ni0ed the
validity of 7uino?s appointment and the latter?s dischar#e of his duties as a member of the
'an##unian# 8ayan. 1n all, private respondent?s failure to promptly assert his alle#ed ri#ht
implies his loss of interest in the position. ,is overt acts plainly show that he really meant his
resi#nation and understood its effects.
The petition is #ranted and the assailed decision is reversed and set aside.
11. H$N. RI"AR)$ T. G$RIA vs. "$'RT $% APPEAS
Private respondents are public school teachers. On various dates in 'eptember and
October 1990, durin# the teachers? stri%es, they did not report for wor%. 2or this reason, they
were administratively char#ed with !1" #rave misconduct, !2" #ross ne#lect of duty, !>" #ross
violation of (ivil 'ervice Aaw Bules and Be#ulations and reasonable office re#ulations. !6"
refusal to perform official duty, !G" #ross insubordination, !E" conduct pre$udicial to the best
interest of the service, and !/" absence without leave !;OA", and placed under preventive
suspension. The investi#ation was concluded before the lapse of 905day suspension and
private respondents were found #uilty as char#ed. Bespondent .icanor )ar#allo was ordered
dismissed from the service, while respondents mparo bad, &ir#ilia 8andi#as, and Eli0abeth
'omeban# were ordered suspended for si- months.
Bespondent )ar#allo appealed to the )erit 'ystems and Protection 8oard !)'P8"
which found him #uilty of conduct pre$udicial to the best interest of the service and imposed
on him a si-5month suspension. The other respondents also appealed to the )'P8, but their
appeal was dismissed because of their failure to file their appeal memorandum on time. On
appeal, the (ivil 'ervice (ommission !('(" affirmed the decision of the )'P8 with respect
to )ar#allo, but found the other three !bad, 8andi#as, and 'omeban#" #uilty only of
violation of reasonable office rules and re#ulation, by filin# to file applications for leave of
absence and, therefore, reduced the penalty imposed on them to reprimand and ordered
them reinstated to their former positions.
Bespondents filed a petition for certiorari under Bule EG in this (ourt. Pursuant to
Bevised dministrative (ircular .o. 159G, the case referred to the (ourt of ppeals. The
appellate court found him #uilty of violation of reasonable office rules and re#ulations only and
imposed on him the penalty of reprimand. Private respondents moved for a reconsideration,
contendin# that they should be e-onerated of all char#es a#ainst them and that they be paid
salaries durin# their suspension. The (ourt of ppeals, while maintainin# its findin# that
private respondents were #uilty of violation of reasonable office rules and re#ulations for
which they should be reprimanded, ruled that private respondents were entitled to the
payment of salaries durin# their suspension 9beyond ninety !90" days.9 Petitioner Bicardo T.
4loria, then 'ecretary of Education, (ulture, and 'ports, moved for a reconsideration insofar
as the resolution of the (ourt of ppeals ordered the payment of private respondents? salaries
durin# the period of their appeal. ,is motion was, however denied by the appellate court.
,ence, this petition for review on certiorari.
;hether or not the administrative investi#ation of respondents was concluded within
the 905day period of preventive suspension, implyin# that the continued suspension of private
respondents is due to their appeal, hence, the #overnment of their salaries.
Petitioner?s contentions have no merit. There are thus two %inds of preventive
suspension of civil service employees who are char#ed with offenses punishable by removal
or suspension< !1" preventive suspension pendin# investi#ations !NG1" and !2" preventive
suspension pendin# appeal if the penalty imposed by the disciplinin# authority is suspension
or dismissal and, after review, the respondent is e-onerated !N 6/!6"".
Preventive suspension pendin# investi#ation is not a penalty. 1t is a measure intended
to enable to enable the disciplinin# authority to investi#ate char#es a#ainst respondent by
preventin# the latter from intimidatin# or any way influencin# witnesses a#ainst him. 1f the
investi#ation is not finished and a decision is not rendered within that period, the suspension
will be lifted and the respondent will automatically be reinstated. 1f after investi#ation
respondent is found innocent of the char#es and is e-onerated, he should be reinstated.
A. No Ri4ht to "om5ensation for Preventive Sus5ension Pendin4 Investi4ation Even if
Em5/oyee is Exonerated
1s he entitled to the payment of salaries durin# the period of suspensionO s already
stated, the (ourt of ppeals ordered the @E(' to pay private respondents their salaries,
allowances, and other benefits 9beyond the ninety !90" day suspension.9 1n other words, no
compensation was due for the period of the preventive suspension pendin# investi#ation but
only for the period of preventive suspension pendin# appeal in the event the employee is
The principle #overnin# entitlement to salary durin# suspension is co#ently stated in
2loyd B. )echem?s Treatise on the Aaw of Public Offices and Officers as follows<
:;6(. 3fficer not entitled to Salary during Suspension from
3ffice. 0 An officer "ho has been la"fully suspended from his office is not entitled to
compensation for the period during "hich he "as so suspended even through it be
subsequently determined that the cause for "hich he "as suspended "as insufficient. The
reason given is /that salary and perquisites are the re"ard of e#press or implied services and
therefore cannot belong to one "ho could not la"fully perform such services./
,. Ri4ht to "om5ensation for Preventive Sus5ension
Pendin4 A55ea/ if Em5/oyee is Exonerated
8ut althou#h '( hold that employees who are preventively suspended pendin#
investi#ation are not entitled to the payment of their salaries if they are e-onerated, '( do not
a#ree with the #overnment that they are not entitled to compensation for the period of their
suspension pendin# appeal if eventually they are found innocent.
Preventive suspension pendin# investi#ation, as already discussed, is not a penalty but
only means of enablin# the disciplinin# authority to conduct an unhampered investi#ation. On
the other hand, preventive suspension pendin# appeal is actually punitive althou#h it is in
effect subse7uently considered ille#al if respondent is e-onerated and the administrative
decision findin# him #uilty is reversed. ,ence, he should be reinstated with full pay for the
period of the suspension. Thus, N6/!6" states that respondent 9shall be considered as under
preventive suspension durin# the pendency of the appeal in the event he wins.9 On the other
hand, if his conviction is affirmed, i.e., if he is not e-onerated, the period of his suspension
becomes part of the final penalty of suspension or dismissal.
1t is precisely because respondent is penali0ed before his sentence is confirmed that
he should be paid his salaries in the event he is e-onerated. 1t would be un$ust to deprive him
of his pay as a result of the immediate e-ecution of the decision a#ainst him and continue to
do so even after it is shown that he is innocent of the char#es for which he was suspended.
1ndeed, to sustain the #overnment?s theory would be to ma%e the administrative decision not
only e-ecutory but final and e-ecutory. 'ec. 6/ of the present law providin# that an
administrative decision metin# out the penalty of suspension or dismissal shall be
immediately e-ecutory and that if the respondent appeals he shall be considered as bein#
merely under preventive suspension if eventually he prevails is ta%en from N>/ of the (ivil
'ervice @ecree of 19/G !P.@ .o. 30/". There was no similar provision in the (ivil 'ervice ct
of 19G9 !B.. .o. 22E0", althou#h under it the (ommissioner of (ivil 'ervice could order the
immediate e-ecution of an administrative decision in the interest of the public service. .or
was there provision for immediate e-ecution of administrative decisions orderin# dismissal or
suspension in NE9G of the dministrative (ode of 191/, as amended by (.. .o. G93, N1.
.onetheless, under B.. .o. 22E0 the payment of salaries was ordered in cases in which
employees were found to be innocent of the char#es or their suspension was held to be
un$ustified, because the penalty of suspension or dismissal was e-ecuted without a findin# by
the (ivil 'ervice (ommissioner that it was necessary 9in the interest of the public service.9 On
the other hand, payment of bac% salaries was denied where it was shown that the employee
concerned was #uilty as char#ed and the immediate e-ecution of the decision was ordered by
the (ivil 'ervice (ommissioner 9in the interest of the public service.9
.othin# in what has thus far been said is inconsistent with the reason for denyin#
salaries for the period of preventive suspension. '( have said that an employee who is
e-onerated is not entitled to the payment of his salaries because his suspension, bein#
authori0ed by law, cannot but un$ustified. To be entitled to such compensation, the employee
must not only be found innocent of the char#es but his suspension must li%ewise be
un$ustified. 8ut throu#h an employee is considered under preventive suspension durin# the
pendency of his appeal in the event he wins, his suspension is un$ustified because what the
law authori0es is preventive suspension for a period not e-ceedin# 90 days. 8eyond that
period the suspension is ille#al. ,ence, the employee concerned is entitled to reinstated with
full pay. =nder e-istin# $urisprudence, such award should not e-ceed the e7uivalent of five
years pay at the rate last received before the suspension was imposed.
1(. '2#I1IN)A )E A "R'2! vs. "$'RT $% APPEAS
Petitioners are public school teachers from various schools in )etro )anila who were
simultaneously char#ed, preventively suspended, and eventually dismissed by then 'ecretary
1sidro @. (ariPo of the @epartment of Education, (ulture and 'ports !@E('", in decisions
issued by him which uniformly read J
This is a mutu5propio administrative complaint separately filed by the 'ecretary of
Education, (ulture and 'ports a#ainst the followin# public school teachers . . . . based on the
report submitted by their respective school principals wherein it was alle#ed that the above5
named teachers participated in the mass action*ille#al stri%e in 'ept. 19521, 1990 and
subse7uently defied the return5to5wor% order issued by this Office, which acts constitute
#rave misconduct, #ross ne#lect of duty, #ross violation of (ivil 'ervice Aaw, Bules and
Be#ulations and reasonable office re#ulations, refusal to perform official duty, #ross
insubordination conduct pre$udicial to the best interest of the service and absence without
official leave !;OA", in violation of Presidential @ecree 30/, otherwise %nown as the (ivil
'ervice @ecree of the Philippines.
Bespondents failed to submit the re7uired answer, which failure, is considered a waiver
on their part of their ri#ht to answer the char#es and to controvert the same. ;herefore, after
a careful evaluation of the records, this Office finds the respondents #uilty as char#ed. 1n
accordance with )emorandum (ircular >0 s. 1939 of the (ivil 'ervice (ommission on
4uidelines in the pplication of Penalty in dministrative (ases, the herein respondents are
dismissed from Office effective immediately.
Petitioners appealed to the )erit 'ystems Protection 8oard !)'P8" and then to the (ivil
'ervice (ommission !('(". ('( found petitioners #uilty of 9conduct pre$udicial to the best
interest of the service9 for havin# participated in the mass actions and imposed upon them the
reduced penalty of si- !E" months? suspension. (ourt of ppeals affirmed the ('( resolutions
findin# them #uilty of conduct pre$udicial to the best interest of the service.
;hether bac% wa#es may be awarded to teachers ordered reinstated to the service
after the dismissal orders of 'ecretary (ariPo were commuted by the ('( to si- !E" months?
The 'upreme (ourt finds that respondent (ourt of ppeals did not err in sustainin#
the ('( resolutions findin# petitioners #uilty of conduct pre$udicial to the best interest of the
service. s an alternative prayer, petitioners as% that in the event their e-oneration is not
decreed they be awarded bac% wa#es for the period when they were not allowed to wor% by
reason of the supposed un$ustified immediate implementation of the dismissal orders of
'ecretary (ariPo while awaitin# resolution of their appeals by the )'P8 and ('(.
The issue of whether bac% wa#es may be awarded to teachers ordered reinstated to the
service after the dismissal orders of 'ecretary (ariPo were commuted by the ('( to si- !E"
months? suspension is already settled.
1n 8an#alisan v. (ourt of ppeals we resolved the issue in the ne#ative on the #round
that the teachers were neither e-onerated nor un$ustifiably suspended, two !2" circumstances
necessary for the #rant of bac% wa#es in administrative disciplinary cases. Ai%e herein
petitioners, those in 8an#alisan were also teachers who participated in the 1990 mass actions
for which they were dismissed by 'ecretary (ariPo but ordered merely suspended for si- !E"
months by the (ivil 'ervice (ommission. On a plea that the immediate implementation of the
dismissal orders of 'ecretary (ariPo was un$ustified, thus warrantin# an award of bac% wa#es
the (ourt said J
s to the immediate e-ecution of the decision of the 'ecretary a#ainst petitioners, the
same is authori0ed by 'ection 6/, para#raph !2", of E-ecutive Order .o. 292, thus< 9The
'ecretaries and heads of a#encies and instrumentalities, provinces, cities and municipalities
shall have $urisdiction to investi#ate and decide matters involvin# disciplinary action a#ainst
officers and employees under their $urisdiction. Their decision shall be final in case the penalty
imposed is suspension for not more than thirty days or fine in an amount not e-ceedin# thirty
days? salary. 1n case the decision rendered by a bureau or office is appealable to the
(ommission, the same shall be e-ecutory e-cept when the penalty is removal, in which case
the same shall be e-ecutory only after confirmation by the 'ecretary concerned.
nd since it was already the final dismissal orders of 'ecretary (ariPo which were
bein# carried out, immediate implementation even pendin# appeal was clearly sanctioned by
the afore7uoted provision of the dministrative (ode of 193/. ,ence, bein# le#al, the
immediate e-ecution of the dismissal orders could not be considered un$ustified.
The cases cited by petitioners to support their prayer for bac% salaries, namely, bellera v.
(ity of 8a#uio and 8autista v. Peralta bein# cases which involved the un$ustified immediate
e-ecution of the dismissal orders of the then (ivil 'ervice (ommissioner pendin# appeal to
the (ivil 'ervice 8oard of ppeals are therefore not applicable to $ustify petitioners? prayer.
.either could petitioners be considered to have been e-onerated from the char#es levelled
a#ainst them by 'ecretary (ariPo from the mere fact that they were found #uilty only of
conduct pre$udicial to the best interest of the service by the ('(. 1t must be remembered that
'ecretary (ariPo char#ed petitioners with #rave misconduct, #ross ne#lect of duty, #ross
violation of civil service law, rules and re#ulations, etc., for havin# participated in the 1990
ille#al mass actions. On appeal the ('( while affirmin# the factual findin# that petitioners
indeed participated in the mass the factual findin# that petitioners indeed participated in the
mass actions found them liable only for conduct pre$udicial to the best interest of the service.
(learly the ('( decision did not proceed from a findin# that petitioners did not commit the
acts complained of. ,avin# been found to have actually participated in the ille#al mass
actions althou#h found answerable for a lesser offense, petitioners could not be considered
as fully innocent of the char#es a#ainst them. 8ein# found liable for a lesser offense is not
e7uivalent to e-oneration.
Thus in 8an#alisan we denied the claim for bac% wa#es of those teachers who were
found to have actually participated in the 1990 mass actions but #ranted the claim of one
Bodolfo )ariano who was absent only because he attended the wa%e and interment of his
#randmother. 1n +acinto v. (ourt of ppeals >1 we a#ain denied the claim for bac% wa#es of
teachers found to have #iven cause for their suspension i.e., their un$ustified abandonment of
classes to the pre$udice of their students but #ranted the claim of )erlinda +acinto who was
absent because of illness. Petitioners do not deny, nay they even admit, havin# participated in
the 1990 mass actions. Thus havin# #iven cause for their supension, their prayer for
bac%wa#es must be denied conformably with settled rulin#s of this (ourt.
1*. HAGA) vs. H$N. 1ER"E)ES G$2$B)A)$E
The controversy stemmed from the filin# of criminal and administrative complaints
a#ainst herein respondents )ayor lfredo Ouano, &ice5)ayor Paterno (aPete and
'an##unian# Panlun#sod )ember Bafael )ayol, all public officials of )andaue (ity, by
)andaue (ity (ouncilors )a#no 8. @ionson and 4audiosa O. 8ercede with the Office of the
@eputy Ombudsman for the &isayas. The respondents were char#ed with havin# violated
B.. .o. >019, as amended, G rticles 1/0 E and 1/1 / of the Bevised Penal (ode: and B..
.o. E/1>. (ouncilors @ionson and 8ercede averred that respondent officials, actin# in
conspiracy, had caused the alteration and*or falsification of Ordinance .o. 013*92 by
increasin# the allocated appropriation therein from P>,696,>E6.G/ to P/,000,000.00 without
authority from the 'an##unian# Panlun#sod of )andaue (ity. The complaints were
separately doc%eted as (riminal (ase and as dministrative (ase.
day after the filin# of the complaints, a sworn statement was e-ecuted by )andaue
(ity (ouncil 'ecretary, tty. mado (. Otarra, +r., in support of the accusations a#ainst
respondent officials. The ne-t day, petitioner ordered respondents, includin# ctin# )andaue
(ity Treasurer +usto 4. Ouano and )andaue (ity 8ud#et Officer Pedro ). 4uido, to file their
counter5affidavits within ten !10" days from receipt of the order. 2orthwith, (ouncilors @ionson
and 8ercede moved for the preventive suspension of respondent officials in the separately
doc%eted administrative case.
Bespondent officials also prayed for the dismissal of the complaint on the #round that
the Ombudsman supposedly was bereft of $urisdiction to try, hear and decide the
administrative case filed a#ainst them since, under 'ection E> of the Aocal 4overnment (ode
of 1991, the power to investi#ate and impose administrative sanctions a#ainst said local
officials, as well as to effect their preventive suspension, had now been vested with the Office
of the President. The Office of the @eputy Ombudsman denied the motion to dismiss and
recommended the preventive suspension of respondent officials, e-cept (ity 8ud#et Officer
Pedro ). 4uido, until the administrative case would have been finally resolved by the
Ombudsman. Bespondent officials were formally placed under preventive suspension by the
@eputy Ombudsman pursuant to an Order 11 of 21 'eptember 1992.
;hether the Ombudsman under Bepublic ct !9B..9" .o. E//0, 1 otherwise %nown as
the Ombudsman ct of 1939, has been divested of his authority to conduct administrative
investi#ations over local elective officials by virtue of the subse7uent enactment of B.. .o.
/1E0, 2 otherwise %nown as the Aocal 4overnment (ode of 1991.
There is merit in the petition.The #eneral investi#atory power of the Ombudsman is
decreed by 'ection 1> !1," rticle F1, of the 193/ (onstitution,
'ection 21 of the same statute names the officials who could be sub$ect to the disciplinary
authority of the Ombudsman, vi0.<
'ec. 21. Officials 'ub$ect to @isciplinary uthority: E-ceptions. J The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of the
4overnment and its subdivisions, instrumentalities and a#encies, includin# )embers of the
(abinet, local #overnment, #overnment5owned or controlled corporations and their
subsidiaries e-cept over officials who may be removed only by impeachment or over
)embers of (on#ress, and the +udiciary. !Emphasis supplied"
1ndeed, there is nothin# in the Aocal 4overnment (ode to indicate that it has repealed,
whether e-pressly or impliedly, the pertinent provisions of the Ombudsman ct. The two
statutes on the specific matter in 7uestion are not so inconsistent, let alone irreconcilable, as
to compel us to only uphold one and stri%e down the other . ;ell settled is the rule that
repeals of laws by implication are not favored, and that courts must #enerally assume their
con#ruent application. The two laws must be absolutely incompatible, and a clear findin#
thereof must surface, before the inference of implied repeal may be drawn. ,ence, all doubts
must be resolved a#ainst any implied repeal, and all efforts should be e-erted in order to
harmoni0e and #ive effect to all laws on the sub$ect.
The authority to conduct administrative investi#ation and to impose preventive
suspension over elective provincial or city officials was at that time entrusted to the )inister of
Aocal 4overnment until it became concurrent with the Ombudsman upon the enactment of
B.. .o. E//0, specifically under 'ections 21 and 26 thereof, to the e-tent of the common
#rant. The Aocal 4overnment (ode of 1991 !B.. .o. /1E0", in fine, did not effect a chan#e
from what already prevailed, the modification bein# only in the substitution of the 'ecretary
!the )inister" of Aocal 4overnment by the Office of the President.
The respondent local officials contend that the E5month preventive suspension without
pay under 'ection 26 of the Ombudsman ct is much too repu#nant to the E05day preventive
suspension provided by 'ection E> of the Aocal 4overnment (ode to even now maintain its
application. The two provisions #overn differently. 1n order to $ustify the preventive suspension
of a public official under 'ection 26 of B.. .o. E//0, the evidence of #uilt should be stron#,
and !a" the char#e a#ainst the officer or employee should involve dishonesty, oppression or
#rave misconduct or ne#lect in the performance of duty: !b" the char#es should warrant
removal from the service: or !c" the respondent?s continued stay in office would pre$udice the
case filed a#ainst him. The Ombudsman can impose the E5month preventive suspension to all
public officials, whether elective or appointive, who are under investi#ation. =pon the other
hand, in imposin# the shorter period of si-ty !E0" days of preventive suspension prescribed in
the Aocal 4overnment (ode of 1991 on an elective local official !at any time after the issues
are $oined", it would be enou#h that !a" there is reasonable #round to believe that the
respondent has committed the act or acts complained of, !b" the evidence of culpability is
stron#, !c" the #ravity of the offense so warrants, or !d" the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and inte#rity of the
records and other evidence.
The respondent officials, nevertheless, claim that petitioner committed #rave abuse of
discretion when he caused the issuance of the preventive suspension order without any
hearin#. The contention is without merit. The records reveal that petitioner issued the order of
preventive suspension after the filin# !a" by respondent officials of their opposition on the
motion for preventive suspension and !b" by )ayor Ouano of his memorandum in compliance
with the directive of petitioner. 8e that, as it may, we have heretofore held that, not bein# in
the nature of a penalty, a preventive suspension can be decreed on an official under
investi#ation after char#es are brou#ht and even before the char#es are heard. .aturally,
such a preventive suspension would occur prior to any findin# of #uilt or innocence. 1n the
early case of .era vs. 4arcia, 2E reiterated in subse7uent cases, 2/ we have said<
1n connection with the suspension of petitioner before he could file his answer to the
administrative complaint, suffice it to say that the suspension was not a punishment or penalty
for the acts of dishonesty and misconduct in office, but only as a preventive measure.
'uspension is a preliminary step in an administrative investi#ation. 1f after such investi#ation,
the char#es are established and the person investi#ated is found #uilty of acts warrantin# his
removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothin#
improper in suspendin# an officer pendin# his investi#ation and before the char#es a#ainst
him are heard and be #iven an opportunity to prove his innocence. )oreover, respondent
officials were, in point of fact, put on preventive suspension only after petitioner had found, in
consonance with our rulin# in 8uenaseda vs. 2lavier, that the evidence of #uilt was stron#.
Petitioner #ave his $ustification for the preventive suspension in this wise<
fter a careful and honest scrutiny of the evidence submitted on record, at this sta#e, it
is the holdin# of this office that the evidence of #uilt a#ainst the respondents in the instant
case is stron#. There is no 7uestion that the char#e a#ainst the respondents involves
dishonesty or #ross misconduct which would warrant their removal from the service and there
is no #ainsayin# the fact that the char#e for falsification of veritable documents li%e city
ordinances are very serious char#es that affect the very foundations of duly established
representative #overnments. 2inally, it is li%ewise the holdin# of this office at this sta#e that
the continued stay in office of respondents may pre$udice the $udicious investi#ation and
resolution of the instant case. ll told, petitioner is plainly entitled to the relief prayed for, and
'( #rant the petition.