EN BANC WHEREFORE, in G.R. No.
196231, the decision of the Office of the President
G.R. No. 196231               January 28, 2014
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH
AND REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR M.
AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A.
GERON, DIR. ROWENA TURINGAN-SANCHEZ, AND ATTY. CARLITO D.
CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE
SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ,
ATTY. CARLO D. SULAY AND ATTY. FROILAN D. MONTALBAN, JR., IN
THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF
MALACANANG LEGAL AFFAIRS, Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for reconsideration of
our September 4, 2012 Decision1 which ruled on the petitions filed by Deputy
Ombudsman Emilio Gonzales III and Special Prosecutor Wendell Barreras-
Sulit. Their petitions challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2
In the challenged Decision, the Court upheld the constitutionality of Section
8(2) of RA No. 6770 and ruled that the President has disciplinary jurisdiction
over a Deputy Ombudsman and a Special Prosecutor. The Court, however,
reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of Duty
and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on
him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the
disciplinary proceedings against her, solely questioned the jurisdiction of the
OP to subject her to disciplinary proceedings. The Court affirmed the
continuation of the proceedings against her after upholding the
constitutionality of Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
in OP Case No. 1 O-J-460 is REVERSED and SET ASIDE. Petitioner Emilio
A. Gonzales III is ordered REINSTATED with payment of backwages
corresponding to the period of suspension effective immediately, even as the
Office of the Ombudsman is directed to proceed with the investigation in
connection with the above case against petitioner. In G.R. No. 196232, We
AFFIRM the continuation of OP-DC Case No. ll-B-003 against Special
Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount
to culpable violation of the Constitution and a betrayal of public trust, in
accordance with Section 8(2) of the Ombudsman Act of 1989. 3
In view of the Court’s ruling, the OP filed the present motion for
reconsideration through the Office of the Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of the petitions and the
present motion for reconsideration.
I. ANTECEDENTS
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with the Philippine
National Police Internal Affairs Service (PNP-IAS) and with the Manila City
Prosecutor’s Office against Manila Police District Senior Inspector Rolando
Mendoza and four others (Mendoza, et al.) for robbery, grave threat, robbery
extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an
administrative charge for grave misconduct with the National Police
Commission (NAPOLCOM) PNP-NCRPO against Mendoza, et al. based on
the same allegations made by Kalaw before the PNP-IAS. 5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law
Enforcement Officers (MOLEO), directed the NAPOLCOM to turn over the
records of Mendoza’s case to his office. The Office of the Regional Director of
the NAPOLCOM duly complied on July 24, 2008. 6 Mendoza, et al. filed their
position papers with Gonzales, in compliance with his Order. 7
Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the
Office of the City Prosecutor of Manila City dismissed Kalaw’s complaint
against Mendoza, et al. for his failure to substantiate his
allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the
dismissal without prejudice of the administrative case against Mendoza, et al.
for Kalaw’s failure to prosecute.9
On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s
case, Gonzales forwarded the entire records to the Office of then
Ombudsman Merceditas Gutierrez for her review.10 In his draft decision,
Gonzales found Mendoza, et al. guilty of grave misconduct and imposed on
them the penalty of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsman’s decision that approved
Gonzales’ recommendation on October 30, 2009. Mendoza, et al. filed a
motion for reconsideration12 on November 5, 2009, followed by a Supplement
to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et
al.’s case records to the Criminal Investigation, Prosecution and
Administrative Bureau-MOLEO. On December 14, 2009, the case was
assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia
for review and recommendation.14
GIPO Garcia released a draft order15 to his immediate superior, Director
Eulogio S. Cecilio, for appropriate action on April 5, 2010. Dir. Cecilio signed
and forwarded the draft order to Gonzales’ office on April 27, 2010. Gonzales
reviewed the draft and endorsed the order, together with the case records, on
May 6, 2010 for the final approval by the Ombudsman. 16
On August 23, 2010, pending final action by the Ombudsman on Mendoza, et
al.’s case, Mendoza hijacked a tourist bus and held the 21 foreign tourists and
the four Filipino tour assistants on board as hostages. While the government
exerted earnest attempts to peacefully resolve the hostage-taking, it ended
tragically, resulting in the deaths of Mendoza and several others on board the
hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the Department of
Justice and the Department of Interior and Local Government to conduct a
joint thorough investigation of the incident. The two departments issued Joint
Department Order No. 01-2010, creating an Incident Investigation and Review
Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the Ombudsman and
Gonzales accountable for their "gross negligence and grave misconduct in
handling the case against Mendoza."17 The IIRC stated that the Ombudsman
and Gonzales’ failure to promptly resolve Mendoza’s motion for
reconsideration, "without justification and despite repeated pleas" xxx
"precipitated the desperate resort to hostage-taking." 18 The IIRC
recommended the referral of its findings to the OP for further determination of
possible administrative offenses and for the initiation of the proper
administrative proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally charged before the
OP for Gross Neglect of Duty and/or Inefficiency in the Performance of Official
Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and dismissed
him from the service.21 According to the OP, "the inordinate and unjustified
delay in the resolution of [Mendoza’s] Motion for Reconsideration [‘that
spanned for nine (9) long months’] xxx amounted to gross neglect of duty"
and "constituted a flagrant disregard of the Office of the Ombudsman’s own
Rules of Procedure."22
c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary
jurisdiction over a Deputy Ombudsman. Under Section 21 of RA No. 6770, it
is the Ombudsman who exercises administrative disciplinary jurisdiction over
the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft order from
GIPO Garcia on April 27, 2010. On May 6, 2010, he completed his review of
the draft, approved it, and transmitted it to the Office of the Ombudsman for
final approval. Since the draft order on Mendoza’s motion for reconsideration
had to undergo different levels of preparation, review and approval, the period
it took to resolve the motion could not be unjustified, since he himself acted
on the draft order only within nine (9) calendars days from his receipt of the
order.23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major General Carlos F.
Garcia and several others, before the Sandiganbayan, with plunder and
money laundering. On May 7, 2007, Garcia filed an Urgent Petition for Bail
which the prosecution opposed. The Sandiganbayan denied Garcia's urgent
petition for bail on January 7, 2010, in view of the strength of the
prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through Sulit and her
prosecutorial staff, entered into a plea bargaining agreement (Agreement)
with Garcia.24 Garcia thereby agreed to: (i) withdraw his plea of not guilty to
the charge of plunder and enter a plea of guilty to the lesser offense of
indirect bribery; and (ii) withdraw his plea of not guilty to the charge of money
laundering and enter a guilty plea to the lesser offense of facilitating money
laundering. In exchange, he would convey to the government his ownership,
rights and other interests over the real and personal properties enumerated in
the Agreement and the bank deposits alleged in the information. 25
The Sandiganbayan approved the Agreement on May 4, 2010 26 based on the
parties’ submitted Joint Motion for Approval.27
The apparent one-sidedness of the Agreement drew public outrage and
prompted the Committee on Justice of the House of Representatives to
conduct an investigation. After public hearings, the Committee found that
Sulit, her deputies and assistants committed culpable violations of the
Constitution and betrayal of public trust – grounds for removal under Section
8(2) of RA No. 6770.28 The Committee recommended to the President the
dismissal from the service of Sulit and the filing of appropriate charges
against her deputies and assistants before the appropriate government office.
Accordingly, the OP initiated an administrative disciplinary proceeding against
Sulit.29 On March 24, 2011, Sulit filed her Written Explanation, questioning the
OP’s jurisdiction.30 The question of jurisdiction notwithstanding, the OP set the
case for preliminary investigation on April 15, 2011, prompting Sulit to seek
relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection, the Court votes to grant
Gonzales’ petition and to declare Section 8(2) of RA No. 6770
unconstitutional with respect to the Office of the Ombudsman. (As the full
explanation of the Court’s vote describes below, this conclusion does not
apply to Sulit as the grant of independence is solely with respect to the Office
of the Ombudsman which does not include the Office of the Special
Prosecutor under the Constitution. The prevailing ruling on this latter point is
embodied in the Concurring and Dissenting Opinion of J. Marvic Mario Victor
Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the petitioners
At the outset, the Court notes that Gonzales and Sulit did not file a motion for
reconsideration of the Court’s September 4, 2012 Decision; only the OP,
through the OSG, moved for the reconsideration of our ruling reinstating
Gonzales.
This omission, however, poses no obstacle for the Court’s review of its ruling
on the whole case since a serious constitutional question has been raised
and is one of the underlying bases for the validity or invalidity of the
presidential action. If the President does not have any constitutional authority
to discipline a Deputy Ombudsman and/or a Special Prosecutor in the first
place, then any ruling on the legal correctness of the OP’s decision on the
merits will be an empty one.
In other words, since the validity of the OP’s decision on the merits of the
dismissal is inextricably anchored on the final and correct ruling on the
constitutional issue, the whole case – including the constitutional issue –
remains alive for the Court’s consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may be
subjected to the administrative disciplinary jurisdiction of the President
(concurrently with that of the Ombudsman) is a justiciable – not a political –
question. A justiciable question is one which is inherently susceptible of being
decided on grounds recognized by law,31 as where the court finds that there
are constitutionally-imposed limits on the exercise of the powers conferred on
a political branch of the government. 32
In resolving the petitions, we do not inquire into the wisdom of the Congress’
choice to grant concurrent disciplinary authority to the President. Our inquiry
is limited to whether such statutory grant violates the Constitution, particularly
whether Section 8(2) of RA No. 6770 violates the core constitutional principle
of the independence of the Office of the Ombudsman as expressed in Section
5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the power
that Section 8(2) of RA No. 6770 grants where the Constitution confers none.
When exercised authority is drawn from a vacuum, more so when the
authority runs counter to a core constitutional principle and constitutional
intents, the Court is duty-bound to intervene under the powers and duties
granted and imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several
Ombudsman-like agencies to serve as the people's medium for airing
grievances and for direct redress against abuses and misconduct in the
government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective
performance of their function as government critic. 33
It was under the 1973 Constitution that the Office of the Ombudsman became
a constitutionally-mandated office to give it political independence and
adequate powers to enforce its mandate. Pursuant to the 1973 Constitution,
President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as
amended by PD No. 1607 and PD No. 1630, creating the Office of the
Ombudsman to be known as Tanodbayan. It was tasked principally to
investigate, on complaint or motu proprio, any administrative act of any
administrative agency, including any government-owned or controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979, the
powers previously vested in the Special Prosecutor were transferred to the
Tanodbayan himself. He was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the Sandiganbayan, file
the corresponding information, and control the prosecution of these cases. 34
With the advent of the 1987 Constitution, a new Office of the Ombudsman
was created by constitutional fiat. Unlike in the 1973 Constitution, its
independence was expressly and constitutionally guaranteed. Its objectives
are to enforce the state policy in Section 27, Article II 35 and the standard of
accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption.
Section 1. Public office is a public trust. Public officers and employees must,
at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and justice,
and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office of the
Ombudsman is envisioned to be the "protector of the people" against the
inept, abusive, and corrupt in the Government, to function essentially as a
complaints and action bureau.36 This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses of the
bureaucracy. Pursuant to Section 13(8), Article XI of the 1987 Constitution,
Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions. — The
Office of the Ombudsman shall have disciplinary authority over all elective
and appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by impeachment
or over Members of Congress, and the Judiciary. [emphasis ours, italics
supplied]
As the Ombudsman is expected to be an "activist watchman," 37 the Court has
upheld its actions, although not squarely falling under the broad powers
granted it by the Constitution and by RA No. 6770, if these actions are
reasonably in line with its official function and consistent with the law and the
Constitution.38
The Ombudsman’s broad investigative and disciplinary powers include all
acts of malfeasance, misfeasance, and nonfeasance of all public officials,
including Members of the Cabinet and key Executive officers, during their
tenure. To support these broad powers, the Constitution saw it fit to insulate
the Office of the Ombudsman from the pressures and influence of officialdom
and partisan politics and from fear of external reprisal by making it an
"independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan,
one overall Deputy and at least one Deputy each for Luzon, Visayas, and
Mindanao. A separate Deputy for the military establishment may likewise be
appointed. [emphasis ours]
Given the scope of its disciplinary authority, the Office of the Ombudsman is a
very powerful government constitutional agency that is considered "a notch
above other grievance-handling investigative bodies." 39 It has powers, both
constitutional and statutory, that are commensurate with its daunting task of
enforcing accountability of public officers.40
b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s
independence
Under the Constitution, several constitutional bodies have been expressly
labeled as "independent."41 The extent of the independence enjoyed by these
constitutional bodies however varies and is to be interpreted with two
significant considerations in mind: first, the functions performed or the powers
involved in a given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of checks and
balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by
the Constitutional Commissions shares certain characteristics – they do not
owe their existence to any act of Congress, but are created by the
Constitution itself; additionally, they all enjoy fiscal autonomy. In general
terms, the framers of the Constitution intended that these "independent"
bodies be insulated from political pressure to the extent that the absence of
"independence" would result in the impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled
against the interference that the President may bring and maintained that the
independence and the flexibility of the Judiciary, the Constitutional
Commissions and the Office of the Ombudsman are crucial to our legal
system.
The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the
manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative
not only the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which
the entire fabric of our constitutional system is based.
The constitutional deliberations explain the Constitutional Commissions’ need
for independence. In the deliberations of the 1973 Constitution, the delegates
amended the 1935 Constitution by providing for a constitutionally-created Civil
Service Commission, instead of one created by law, on the premise that the
effectivity of this body is dependent on its freedom from the tentacles of
politics.43 In a similar manner, the deliberations of the 1987 Constitution on
the Commission on Audit highlighted the developments in the past
Constitutions geared towards insulating the Commission on Audit from
political pressure.44
Notably, the Constitution also created an "independent" Commission on
Human Rights, although it enjoys a lesser degree of independence since it is
not granted fiscal autonomy in the manner fiscal autonomy is granted to the
constitutional commissions. The lack of fiscal autonomy notwithstanding, the
framers of the 1987 Constitution clearly expressed their desire to keep the
Commission independent from the executive branch and other political
leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner
Rodrigo. If we explain to him our concept, he can advise us on how to
reconcile his position with ours. The position of the committee is that we need
a body that would be able to work and cooperate with the executive because
the Commissioner is right. Many of the services needed by this commission
would need not only the cooperation of the executive branch of the
government but also of the judicial branch of government. This is going to be
a permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance when the
executive may not be very cooperative. However, the question in our mind is:
Can it still function during that time? Hence, we are willing to accept
suggestions from Commissioner Rodrigo on how to reconcile this. We realize
the need for coordination and cooperation. We also would like to build in
some safeguards that it will not be rendered useless by an uncooperative
executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or
organizations on human rights go to a country, the most credible
organizations are independent human rights bodies. Very often these are
private organizations, many of which are prosecuted, such as those we find in
many countries in Latin America. In fact, what we are proposing is an
independent body on human rights, which would provide governments with
credibility precisely because it is independent of the present administration.
Whatever it says on the human rights situation will be credible because it is
not subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in
power yesterday are in opposition today and those who are in power today
may be in the opposition tomorrow. Therefore, if we have a Commission on
Human Rights that would investigate and make sure that the rights of each
one is protected, then we shall have a body that could stand up to any power,
to defend the rights of individuals against arrest, unfair trial, and so on. 45
These deliberative considerations abundantly show that the independent
constitutional commissions have been consistently intended by the framers to
be independent from executive control or supervision or any form of political
influence. At least insofar as these bodies are concerned, jurisprudence is not
scarce on how the "independence" granted to these bodies prevents
presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional
Commissions, which have been characterized under the Constitution as
"independent," are not under the control of the President, even if they
discharge functions that are executive in nature. The Court declared as
unconstitutional the President’s act of temporarily appointing the respondent
in that case as Acting Chairman of the Comelec "however well-meaning" 47 it
might have been.
In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure
of the commissioners of the independent Commission on Human Rights could
not be placed under the discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize how an office
conceived and created by the Constitution to be independent – as the
Commission on Human Rights – and vested with the delicate and vital
functions of investigating violations of human rights, pinpointing responsibility
and recommending sanctions as well as remedial measures therefor, can
truly function with independence and effectiveness, when the tenure in office
of its Chairman and Members is made dependent on the pleasure of the
President. Executive Order No. 163-A, being antithetical to the constitutional
mandate of independence for the Commission on Human Rights has to be
declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere
review of the rules of the Commission on Elections by Congress a "trampling"
of the constitutional mandate of independence of this body. Obviously, the
mere review of rules places considerably less pressure on a constitutional
body than the Executive’s power to discipline and remove key officials of the
Office of the Ombudsman, yet the Court struck down the law as
unconstitutional.
The kind of independence enjoyed by the Office of the Ombudsman certainly
cannot be inferior – but is similar in degree and kind – to the independence
similarly guaranteed by the Constitution to the Constitutional Commissions
since all these offices fill the political interstices of a republican democracy
that are crucial to its existence and proper functioning. 50
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution against
presidential interference with the constitutional commissions, on one hand,
and those expressed by the framers of the 1987 Constitution, on the other, in
protecting the independence of the Constitutional Commissions, speak for
themselves as overwhelming reasons to invalidate Section 8(2) of RA No.
6770 for violating the independence of the Office of the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy Ombudsman to
discipline and removal by the President, whose own alter egos and officials in
the Executive Department are subject to the Ombudsman’s disciplinary
authority, cannot but seriously place at risk the independence of the Office of
the Ombudsman itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them tasked to support
the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon
the constitutionally-granted independence is what Section 8(2) of RA No.
6770 exactly did. By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of checks and balances that the
creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true for her
Deputies who act as agents of the Ombudsman in the performance of their
duties. The Ombudsman can hardly be expected to place her complete trust
in her subordinate officials who are not as independent as she is, if only
because they are subject to pressures and controls external to her Office.
This need for complete trust is true in an ideal setting and truer still in a young
democracy like the Philippines where graft and corruption is still a major
problem for the government. For these reasons, Section 8(2) of RA No. 6770
(providing that the President may remove a Deputy Ombudsman) should be
declared void.
The deliberations of the Constitutional Commission on the independence of
the Ombudsman fully support this position. Commissioner Florenz Regalado
of the Constitutional Commission expressed his apprehension that any form
of presidential control over the Office of the Ombudsman would diminish its
independence.51 The following exchanges between Commissioners Blas Ople
and Christian Monsod further reveal the constitutional intent to keep the Office
of the Ombudsman independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the Committee consider
later an amendment xxx, by way of designating the office of the Ombudsman
as a constitutional arm for good government, efficiency of the public service
and the integrity of the President of the Philippines, instead of creating
another agency in a kind of administrative limbo which would be accountable
to no one on the pretext that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee
deliberations and when we prepared the report, it was the opinion of the
Committee — and I believe it still is — that it may not contribute to the
effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive
department. Therefore, as we saw the wrong implementation of the
Tanodbayan which was under the tremendous influence of the President, it
was an ineffectual body and was reduced to the function of a special fiscal.
The whole purpose of our proposal is precisely to separate those functions
and to produce a vehicle that will give true meaning to the concept of
Ombudsman. Therefore, we regret that we cannot accept the proposition. 52
The statements made by Commissioner Monsod emphasized a very logical
principle: the Executive power to remove and discipline key officials of the
Office of the Ombudsman, or to exercise any power over them, would result in
an absurd situation wherein the Office of the Ombudsman is given the duty to
adjudicate on the integrity and competence of the very persons who can
remove or suspend its members. Equally relevant is the impression that
would be given to the public if the rule were otherwise. A complainant with a
grievance against a high-ranking official of the Executive, who appears to
enjoy the President’s favor, would be discouraged from approaching the
Ombudsman with his complaint; the complainant’s impression (even if
misplaced), that the Ombudsman would be susceptible to political pressure,
cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of
the people against corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the
concern that a lack of an external check against the Deputy Ombudsman
would result in mutual protection between the Ombudsman and her Deputies.
While the preceding discussion already suffices to address this concern, it
should be added that this concern stands on shaky grounds since it ignores
the existing checks and balances already in place. On the one hand, the
Ombudsman’s Deputies cannot protect the Ombudsman because she is
subject to the impeachment power of Congress. On the other hand, the
Ombudsman’s attempt to cover up the misdeeds of her Deputies can be
questioned before the Court on appeal or certiorari. The same attempt can
likewise subject her to impeachment.
The judicial recourse available is only consistent with the nature of the
Supreme Court as a non-political independent body mandated by the
Constitution to settle judicial and quasi-judicial disputes, whose judges and
employees are not subject to the disciplinary authority of the Ombudsman and
whose neutrality would be less questionable. The Members of the Court
themselves may be subjected to the impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection argument becomes
distinctly implausible. At the same time, the Court remains consistent with its
established rulings - that the independence granted to the Constitutional
Commissions bars any undue interference from either the Executive or
Congress – and is in full accord with constitutional intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987 Constitution, 53 Congress is
empowered to determine the modes of removal from office of all public
officers and employees except the President, the Vice-President, the
Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll other public
officers and employees may be removed from office as provided by law, but
not by impeachment" in the second sentence of Section 2, Article XI is to
prevent Congress from extending the more stringent rule of "removal only by
impeachment" to favored public officers.54 Understandably so, impeachment
is the most difficult and cumbersome mode of removing a public officer from
office. It is, by its nature, a sui generis politico-legal process 55 that signals the
need for a judicious and careful handling as shown by the process required to
initiate the proceeding;56 the one-year limitation or bar for its initiation;57 the
limited grounds for impeachment;58 the defined instrumentality given the
power to try impeachment cases;59 and the number of votes required for a
finding of guilt.60 All these argue against the extension of this removal
mechanism beyond those mentioned in the Constitution.
On the practical side, our nation has witnessed the complications and
problems an impeachment proceeding entails, thus justifying its limited
application only to the officials occupying the highest echelons of
responsibility in our government. To name a few, some of the negative
practical effects of impeachment are: it stalls legislative work; it is an
expensive process in terms of the cost of prosecution alone; and, more
importantly, it is inherently divisive of the nation. 61 Thus, in a cost-benefit
analysis of adopting impeachment as a mechanism, limiting Congress’ power
to otherwise legislate on the matter is far more advantageous to the country.
It is in these lights that the second sentence in Section 2, Article XI of the
1987 Constitution should be read. Contrary to the implied view of the minority,
in no way can this provision be regarded as blanket authority for Congress to
provide for any ground of removal it deems fit. While the manner and cause of
removal are left to congressional determination, this must still be consistent
with constitutional guarantees and principles, namely: the right to procedural
and substantive due process; the constitutional guarantee of security of
tenure; the principle of separation of powers; and the principle of checks and
balances.62
In short, the authority granted by the Constitution to Congress to provide for
the manner and cause of removal of all other public officers and employees
does not mean that Congress can ignore the basic principles and precepts
established by the Constitution.
In the same manner, the congressional determination of the identity of the
disciplinary authority is not a blanket authority for Congress to repose it on
whomsoever Congress chooses without running afoul of the independence
enjoyed by the Office of the Ombudsman and without disrupting the delicate
check and balance mechanism under the Constitution. Properly viewed from
this perspective, the core constitutional principle of independence is observed
and any possible absurdity resulting from a contrary interpretation is avoided.
In other words, while the Constitution itself vested Congress with the power to
determine the manner and cause of removal of all non-impeachable officials,
this power must be interpreted consistent with the core constitutional principle
of independence of the Office of the Ombudsman. Our observation in
Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such provision is
Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
While one may argue that the grounds for impeachment under Section 8(2) of
RA No. 6770 is intended as a measure of protection for the Deputy
Ombudsman and Special Prosecutor – since these grounds are not intended
to cover all kinds of official wrongdoing and plain errors of judgment - this
argument seriously overlooks the erosion of the independence of the Office of
the Ombudsman that it creates. The mere fact that a statutorily-created sword
of Damocles hangs over the Deputy Ombudsman’s head, by itself, opens up
all the channels for external pressures and influence of officialdom and
partisan politics. The fear of external reprisal from the very office he is to
check for excesses and abuses defeats the very purpose of granting
independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do not conform
to the high standard required in determining whether a Deputy Ombudsman
committed an impeachable offense) and that the President’s power of
removal is limited to specified grounds are dismally inadequate when
balanced with the constitutional principle of independence. The mere filing of
an administrative case against the Deputy Ombudsman and the Special
Prosecutor before the OP can already result in their suspension and can
interrupt the performance of their functions, in violation of Section 12, Article
XI of the Constitution. With only one term allowed under Section 11, a Deputy
Ombudsman or Special Prosecutor, if removable by the President, can be
reduced to the very same ineffective Office of the Ombudsman that the
framers had foreseen and carefully tried to avoid by making these offices
independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the
Deputy Ombudsman, its decision finding Gonzales guilty of Gross Neglect of
Duty and Grave Misconduct constituting betrayal of public trust is patently
erroneous. The OP’s decision perfectly illustrates why the requirement of
impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered,
even at a minimum, a measure of protection of the independence of the Office
of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s
finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of
Grave Misconduct. The assailed Decision of the OP reads:
Upon consideration of the First Report, the evidence and allegations of
respondent Deputy Ombudsman himself, and other documentary evidence
gathered, this Office finds that the inordinate and unjustified delay in the
resolution of Captain Mendoza’s Motion for Reconsideration timely filed on 5
November 2009 xxx amounted to gross neglect of duty and/or inefficiency in
the performance of official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of
the decision of the Ombudsman,65 which was followed by a
Supplement to the Motion for Reconsideration; 66
2. December 14, 200967 - GIPO Garcia, who was assigned to review
these motions and make his recommendation for the appropriate
action, received the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by
his immediate superior, Dir. Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this
draft order;69
 5. May 6, 2010 (or nine days after the records were forwarded to
Gonzales) – Gonzales endorsed the draft order for the final approval of
the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the
records of the case were already pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the
slightest care, acting or omitting to act in a situation where there is a duty to
act, not inadvertently but willfully and intentionally, with a conscious
indifference to consequences insofar as other persons may be affected. In the
case of public officials, there is gross negligence when a breach of duty is
flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he
acted on the case forwarded to him within nine days. In finding Gonzales
guilty, the OP72 relied on Section 8, Rule III of Administrative Order No. 7 (or
the Rules of Procedure of the Office of the Ombudsman, series of 1990, as
amended) in ruling that Gonzales should have acted on Mendoza’s Motion for
Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds – Whenever
allowable, a motion for reconsideration or reinvestigation may only be
entertained if filed within ten (10) days from receipt of the decision or order by
the party on the basis of any of the following grounds:
a) New evidence had been discovered which materially affects the
order, directive or decision;
b) Grave errors of facts or laws or serious irregularities have been
committed prejudicial to the interest of the movant.
Only one motion for reconsideration or reinvestigation shall be allowed, and
the Hearing Officer shall resolve the same within five (5) days from the date of
submission for resolution. [emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period it requires
cannot apply to Gonzales since he is a Deputy Ombudsman whose obligation
is to review the case; he is not simply a Hearing Officer tasked with the initial
resolution of the motion. In Section 6 of Administrative Order No. 7 on the
resolution of the case and submission of the proposed decision, the period for
resolving the case does not cover the period within which it should be
reviewed:
Section 6. Rendition of decision. – Not later than thirty (30) days after the
case is declared submitted for resolution, the Hearing Officer shall submit a
proposed decision containing his findings and recommendation for the
approval of the Ombudsman. Said proposed decision shall be reviewed by
the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned.
With respect to low ranking public officials, the Deputy Ombudsman
concerned shall be the approving authority. Upon approval, copies thereof
shall be served upon the parties and the head of the office or agency of which
the respondent is an official or employee for his information and compliance
with the appropriate directive contained therein. [italics and emphases
supplied]
Thus, the OP’s ruling that Gonzales had been grossly negligent for taking
nine days, instead of five days, to review a case was totally baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his subordinates to
promptly act on Mendoza’s motion and apprised the Tanodbayan of the
urgency of resolving the same are similarly groundless.
The Office of the Ombudsman is not a corner office in our bureaucracy. It
handles numerous cases that involve the potential loss of employment of
many other public employees. We cannot conclusively state, as the OP
appears to suggest, that Mendoza’s case should have been prioritized over
other similar cases.
The Court has already taken judicial notice of the steady stream of cases
reaching the Office of the Ombudsman.73 This consideration certainly militates
against the OSG’s observation that there was "a grossly inordinate and
inexcusable delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of
cases" before, among others, quasi-judicial bodies, 75 like the Office of the
Ombudsman, is itself a relative concept.76 Thus, the delay, if any, must be
measured in this objective constitutional sense. Unfortunately, because of the
very statutory grounds relied upon by the OP in dismissing Gonzales, the
political and, perhaps, "practical" considerations got the better of what is legal
and constitutional.
The facts do not show that Gonzales’ subordinates had in any way been
grossly negligent in their work. While GIPO Garcia reviewed the case and
drafted the order for more than three months, it is noteworthy that he had not
drafted the initial decision and, therefore, had to review the case for the first
time.77 Even the Ombudsman herself could not be faulted for acting on a case
within four months, given the amount of cases that her office handles.
The point is that these are not inordinately long periods for the work involved:
examination of the records, research on the pertinent laws and jurisprudence,
and exercise of legal judgment and discretion. If this Court rules that these
periods per se constitute gross neglect of duty, the Ombudsman’s
constitutional mandate to prosecute all the erring officials of this country
would be subjected to an unreasonable and overwhelming constraint.
Similarly, if the Court rules that these periods per se constitute gross neglect
of duty, then we must be prepared to reconcile this with the established
concept of the right of speedy disposition of cases – something the Court may
be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in Mendoza’s
case by having the case endorsed to the Office of the Ombudsman and by
resolving it against Mendoza on the basis of the unverified complaint-affidavit
of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his office lies within
his mandate, even if it were based merely on the request of the alleged
victim’s father. The Constitution empowers the Ombudsman and her Deputies
to act promptly on complaints filed in any form or manner against any public
official or employee of the government.78 This provision is echoed by Section
13 of RA No. 6770,79 and by Section 3, Rule III of Administrative Order No. 7,
series of 1990, as amended.80
Moreover, Gonzales and his subordinates did not resolve the complaint only
on the basis of the unverified affidavit of Kalaw. Based on the prosecution
officer’s recommendations, the finding of guilt on the part of Mendoza, et al.
was based on their admissions as well. Mendoza, et al. admitted that they
had arrested Kalaw based on two traffic violations and allowed him to stay the
whole night until the following morning in the police precinct. The next
morning, Kalaw was allowed to leave the precinct despite his failure to show a
valid license and based merely on his promise to return with the proper
documents.81 These admissions led Gonzales and his staff to conclude that
Mendoza, et al. irregularly acted in apprehending Kalaw, since the proper
procedure for the apprehension of traffic violators would be to give them a
ticket and to file a case, when appropriate. 82
Lastly, we cannot deduce undue interest simply because Gonzales’ decision
differs from the decision of the PNP-IAS (which dismissed the complaint
against Mendoza). To be sure, we cannot tie the hands of any judicial or
quasi-judicial body by ruling that it should always concur with the decisions of
other judicial or quasi-judicial bodies which may have also taken cognizance
of the case. To do so in the case of a Deputy Ombudsman would be
repugnant to the independence that our Constitution has specifically granted
to this office and would nullify the very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales, the penalty
of removal imposed by the OP necessarily suffers grave infirmity. Basic
strictures of fair play dictate that we can only be held liable for our own
misdeeds; we can be made to account only for lapses in our responsibilities. It
is notable that of all the officers, it was Gonzales who took the least time —
nine days — followed by Cecilio, who took 21 days; Garcia — the writer of the
draft — took less than four months, and the Ombudsman, less than four
months until the kidnapping incident rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently wrong. This
conclusion, however, does not preclude the Ombudsman from looking into
any other possible administrative liability of Gonzales under existing Civil
Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the Ombudsman.
The existing Tanodbayan at the time83 became the Office of the Special
Prosecutor under the 1987 Constitution. While the composition of the
independent Office of the Ombudsman under the 1987 Constitution does not
textually include the Special Prosecutor, the weight of the foregoing
discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should
equally apply to the
Special Prosecutor on the basis of the legislative history of the Office of the
Ombudsman as expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to create the
Office of the Ombudsman, known as the Tanodbayan, with investigative and
prosecutorial powers. Accordingly, on June 11, 1978, President Ferdinand
Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was
given the "exclusive authority" to conduct preliminary investigation and to
prosecute cases that are within the jurisdiction of the Sandiganbayan. 87 PD
No. 1486 expressly gave the Secretary of Justice the power of control and
supervision over the Special Prosecutor.88 Consistent with this grant of power,
the law also authorized the Secretary of Justice to appoint or detail to the
Office of the CSP "any officer or employee of Department of Justice or any
Bureau or Office under the executive supervision thereof" to assist the Office
of the CSP.
In December 1978, PD No. 160789 practically gave back to the Tanodbayan
the powers taken away from it by the Office of the CSP. The law "created in
the Office of the Tanodbayan an Office of the Chief Special Prosecutor" under
the Tanodbayan’s control,90 with the exclusive authority to conduct preliminary
investigation and prosecute all cases cognizable by the Sandiganbayan.
Unlike the earlier decree, the law also empowered the Tanodbayan to appoint
Special Investigators and subordinate personnel and/or to detail to the Office
of the CSP any public officer or employees who "shall be under the
supervision and control of the Chief Special Prosecutor." 91 In 1979, PD No.
1630 further amended the earlier decrees by transferring the powers
previously vested in the Special Prosecutor directly to the Tanodbayan
himself.92
This was the state of the law at the time the 1987 Constitution was ratified.
Under the 1987 Constitution, an "independent Office of the Ombudsman" is
created.93 The existing Tanodbayan is made the Office of the Special
Prosecutor, "who shall continue to function and exercise its powers as
now94 or hereafter may be provided by law."95
Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all
other officials and employees of the Office of the Ombudsman. 96 Section
13(8), Article XI of the 1987 Constitution provides that the Ombudsman may
exercise "such other powers or perform such functions or duties as may be
provided by law." Pursuant to this constitutional command, Congress enacted
RA No. 6770 to provide for the functional and structural organization of the
Office of the Ombudsman and the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the composition of
the Office of the Ombudsman, including in this Office not only the offices of
the several Deputy Ombudsmen but the Office of the Special Prosecutor as
well. In terms of appointment, the law gave the President the authority to
appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list
of nominees prepared by the Judicial and Bar Council. In case of vacancy in
these positions, the law requires that the vacancy be filled within three (3)
months from occurrence.97
The law also imposes on the Special Prosecutor the same qualifications it
imposes on the Ombudsman himself/herself and his/her deputies. 98 Their
terms of office,99 prohibitions and qualifications,100 rank and salary are likewise
the same.101 The requirement on disclosure102 is imposed on the Ombudsman,
the Deputies and the Special Prosecutor as well. In case of vacancy in the
Office of the Ombudsman, the Overall Deputy cannot assume the role of
Acting Ombudsman; the President may designate any of the Deputies or the
Special Prosecutor as Acting Ombudsman.103 The power of the Ombudsman
and his or her deputies to require other government agencies to render
assistance to the Office of the Ombudsman is likewise enjoyed by the Special
Prosecutor.104
Given this legislative history, the present overall legal structure of the Office of
the Ombudsman, both under the 1987 Constitution and RA No. 6770,
militates against an interpretation that would insulate the Deputy Ombudsman
from the disciplinary authority of the OP and yet expose the Special
Prosecutor to the same ills that a grant of independence to the Office of the
Ombudsman was designed for.
Congress recognized the importance of the Special Prosecutor as a
necessary adjunct of the Ombudsman, aside from his or her deputies, by
making the Office of the Special Prosecutor an organic component of the
Office of the Ombudsman and by granting the Ombudsman control and
supervision over that office.105 This power of control and supervision includes
vesting the Office of the Ombudsman with the power to assign duties to the
Special Prosecutor as he/she may deem fit.1âwphi1 Thus, by constitutional
design, the Special Prosecutor is by no means an ordinary subordinate but
one who effectively and directly aids the Ombudsman in the exercise of
his/her duties, which include investigation and prosecution of officials in the
Executive Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the
prosecution of criminal cases within the jurisdiction of the Sandiganbayan and
this prosecutorial authority includes high-ranking executive officials. For
emphasis, subjecting the Special Prosecutor to disciplinary and removal
powers of the President, whose own alter egos and officials in the Executive
Department are subject to the prosecutorial authority of the Special
Prosecutor, would seriously place the independence of the Office of the
Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not expressly made part
of the composition of the Office of the Ombudsman, the role it performs as an
organic component of that Office militates against a differential treatment
between the Ombudsman’s Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the Ombudsman must be
equally true, not only for her Deputies but, also for other lesser officials of that
Office who act directly as agents of the Ombudsman herself in the
performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted with an
argument that, at bottom, the Office of the Special Prosecutor is not a
subordinate agency of the Office of the Ombudsman and is, in fact, separate
and distinct from the latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's statement as
authority to advocate that the intent of the framers of the 1987 Constitution
was to place the Office of the Special Prosecutor under the Office of the
President. Xxx
In the second place, Section 7 of Article XI expressly provides that the then
existing Tanodbayan, to be henceforth known as the Office of the Special
Prosecutor, "shall continue to function and exercise its powers as now or
hereafter may be provided by law, except those conferred on the Office of the
Ombudsman created under this Constitution." The underscored phrase
evidently refers to the Tanodbayan's powers under P.D. No. 1630 or
subsequent amendatory legislation. It follows then that Congress may remove
any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0. 1630 or
grant it other powers, except those powers conferred by the Constitution on
the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that by express
mandate of paragraph 8, Section 13, Article XI of the Constitution, the
Ombudsman may "exercise such other powers or perform functions or duties
as may be provided by law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor under the Office of the
Ombudsman.107
Thus, under the present Constitution, there is every reason to treat the
Special Prosecutor to be at par with the Ombudsman's deputies, at least
insofar as an extraneous disciplinary authority is concerned, and must also
enjoy the same grant of independence under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7, 108 the Court resolved
to reverse its September 4, 2012 Decision insofar as petitioner Gonzales is
concerned (G.R. No. 196231). We declared Section 8(2) of RA No. 6770
unconstitutional by granting disciplinary jurisdiction to the President over a
Deputy Ombudsman, in violation of the independence of the Office of the
Ombudsman.
However, by another vote of 8-7,109 the Court resolved to maintain the validity
of Section 8(2) of RA No. 6770 insofar as Sulit is concerned. The Court did
not consider the Office of the Special Prosecutor to be constitutionally within
the Office of the Ombudsman and is, hence, not entitled to the independence
the latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court resolves to declare Section
8(2) UNCONSTITUTIONAL. This ruling renders any further ruling on the
dismissal of Deputy Ombudsman Emilio Gonzales III unnecessary, but is
without prejudice to the power of the Ombudsman to conduct an
administrative investigation, if warranted, into the possible administrative
liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil
Service laws, rules and regulations.
SO ORDERED.
Case no. 2:
G.R. No. 232131
REY NATHANIEL C. IFURUNG, Petitioner
vs
HON. CONCHITA C. CARPIO MORALES JARDELEZA, in her capacity as
the Ombudsman, CAGUIOA, HON. MELCHOR ARTHUR H. MARTIRES,
CARANDANG, HON. GERARD ABETO TIJAM, MOSQUERA, HON. PAUL
ELMER M. REYES, and CLEMENTE, HON. RODOLFO M. GESMUNDO, JJ.
ELMAN, HON. CYRIL ENGUERRA RAMOS in their capacities as Deputies
Ombudsman, and THE OFFICE OF THE OMBUDSMAN, Respondents
DECISION
MARTIRES, J.:
Through this Petition for Certiorari and Prohibition, petitioner Rey Nathaniel C.
Ifurung (petitioner), in propria persona, seeks a declaration from the Court
that: (a) Section (Sec.) 8(3) in relation to Sec. 7 of Republic Act (R.A.) No.
6770, also known as the Ombudsman Act of 1989, is unconstitutional for
being an outright transgression of Sec. 11, in relation to Secs. 8 and 10 of
Article (Art.) XI of the 1987 Constitution; and (b) all individual respondents
as de facto Ombudsman and Deputies Ombudsman, respectively, and all
these positions are vacant.1
The Petition
Petitioner, who claims to be a taxpayer, a concerned Filipino citizen, and a
member of the Bar, invokes the jurisprudence laid down by the Court in Funa
v. Villar,2 in asserting that he has locus standi to file the instant petition. He
avers that he is seeking the correction of a recurring statutory wrong and a
declaration from the Court that the positions held by the respondents are
vacant.3
Respondents are the incumbent officials of the Office of the Ombudsman, viz:
Conchita Carpio Morales, Ombudsman (Ombudsman Morales); Melchor
Arthur H. Carandang, Overall Deputy Ombudsman; Gerard Abeto Mosquera,
Deputy Ombudsman for Luzon; Paul Elmer M. Clemente as Deputy
Ombudsman for Visayas; Rodolfo M. Elman, Deputy Ombudsman for
Mindanao; and Cyril Enguerra Ramos, Deputy Ombudsman for the Military. 4
Petitioner maintains that the constitutional issue raised in his petition is of pursuant to Sec. 6,7 Art. XVIII of the 1987 Constitution, Executive Order (E.O.)
transcendental importance since this Court's ruling will finally determine the No. 2438 creating the Office of the Ombudsman. On 17 November 1989, R.A.
correct term and tenure of the Ombudsman and his deputies and settle the No. 6770 was approved. Considering that the intent of the framers of the
matter as to the constitutionality of Sec. 8(3) of R.A. No. 6770. He alleges that Constitution was that the position of the Ombudsman and the deputies shall
Sec. 8(3), in relation to Sec. 7 of R.A. No. 6770, which provides that in case of have the same status as the three constitutional commissions, the limitations
a vacancy at the Office of the Ombudsman due to death, resignation, removal as to the latter's term of office shall likewise apply to the Ombudsman and the
or permanent disability of the incumbent Ombudsman and his deputies, the deputies. Hence, petitioner maintains that the grant of a full term to an
newly appointed Ombudsman and his deputies shall be appointed to a full Ombudsman's successor, when the vacancy in the office is for a cause other
term of seven (7) years, is constitutionally infirm as it contravenes Sec. 11 in than the expiration of term, is an outright nonobservance of the intent of the
relation to Secs. 8 and 10 of Art. XI of the 1987 Constitution. He avers that framers and Sec. 11, Art. XI of the 1987 Constitution. 9
like all constitutionally created positions, i.e., President, Vice-President, Petitioner insists that in Gaminde v. COA (Gaminde), 10 the Court en banc has
Senators, Members of the House of Representatives and Members of the determined that the starting point of the terms of office of the first appointees
Civil Service Commission (CSC), the Commission on Elections (COMELEC), to the constitutional commissions is uniformly set on 2 February 1987. He
and the Commission on Audit (COA), the successor to the positions of the maintains as regards the appointment of Conrado M. Vasquez as first
Ombudsman and deputies should serve only the unexpired term of the Ombudsman in May 1988, the seven-year term which was supposed to start
predecessor. Hence, petitioner insists that the incumbent Ombudsman and on 2 February 1987 and culminate seven (7) years thereafter, was not
deputies have been overstaying in their present positions for more than two complied with.11
years considering that their terms have expired on 1 February 2015. "To allow The petitioner presented the following table: 12
them to stay in the said positions one day longer constitutes a continuing OMBUDSMAN 7-YEAR ACTUAL DE CESSATION
affront to the 1987 Constitution, unduly clips presidential prerogatives, and TERM TENURE FACTO OF
deprives the nation of the services of legitimate Ombudsman and Deputies SERVICE SERVICE
Ombudsman."5
To fortify his position, petitioner states that the intent of the framers of the 1st
1987 Constitution during its 26 July 1986 discussion was to constitutionalize Conrado M. 2 Feb. May 1988 2 Feb. Supposed
the Office of the Ombudsman, i.e., by granting it autonomy and independence Vasquez 1987 to 1994 expiration of
the same as and equal to those of the other constitutionally created offices to May 1995 to term
and positions. That in the process of constitutionalizing the Office of the 1 Feb. May 1995
Ombudsman, the framers ensured its stature and clout as a constitutional 1994
body like the COMELEC, the COA, the CSC, and the Commission on Human 2nd 4 Aug. 2 Feb. Supposed
Rights (CHR), viz: by creating the office and giving it fiscal autonomy and Aniano A. 2 Feb. 1995 2001 expiration of
independence thus making it a constitutionally created office; by providing the Desierto 1994 to to term
qualifications, disqualifications, manner of appointment, cessation, and to 3 Aug. 3 Aug.
removal from office; and by specifying the salary, positional rank, term of 1 Feb. 2002 2002
office, powers, functions, and duties thereof; thereby making the Ombudsman 2001
and the deputies constitutionally created positions. He claims that the
3rd
intention of the framers was evident in Secs. 5 to 14, Art. XI of the 1987
Simeon V. 2 Feb. 10 Oct. Not Resignation
Constitution.6
Marcelo 2001 2002 applicable
According to the petitioner, with the effectivity of the 1987 Constitution,
to to
President Corazon C. Aquino (President Aquino), on 24 July 1987, issued
 1 Feb. Nov. 2005 the land and, if it remains unchecked, will create a cycle of non-compliance
Ma. 2008 Not with and nonobservance of what the Constitution provides." 15
Merceditas 1 Dec. Not applicable Petitioner argues that the Office of the Ombudsman is not sui generis, thus,
Navarro- 2005 applicable what applies and holds true for all the other constitutionally created offices
Gutierrez to and positions should also apply to this office. The Ombudsman cannot be an
1 Feb. exception to the rule set by the 1987 Constitution, i.e., to serve for the
2008 unexpired term, so much so that each uncompleted term creates a fresh term
for the appointed Ombudsman. Petitioner speculates that such fresh term of
4th seven years could effectively deprive an incoming President the power and
Ma. 2 Feb. 2 Feb. 2 Feb. Resignation opportunity to appoint an Ombudsman. Thus the term of the Ombudsman will
Merceditas 2008 2008 2008 be subject to political maneuverings such that the outgoing President can
Navarro- to to to divest the next President of the prerogative to appoint. If the unexpired term is
Gutierrez 1 Feb. 6 May 6 May the policy, every President can appoint an Ombudsman. 16
2015 2011 2011 Not Petitioner cites the ruling in Tañada v. Angara 17 (Tañada) and Imbong v.
Conchita applicable Ochoa18 (Imbong) to justify his position that he availed of the appropriate
Carpio 25 July Not remedies of certiorari and prohibition in the instant case. 19
Morales 2011 applicable Asserting that the present petition involves the resolution of a constitutional
to issue which affects the very fabric and integrity of the Office of the
1 Feb. Ombudsman, petitioner pleads for the exemption from the observance of the
2015 rule on hierarchy of courts in view of the transcendental importance of this
5th constitutional issue.20
Conchita 2 Feb. 2 Feb. 2 Feb. Not The Comment of the Respondents
Carpio 2015 2015 2015 applicable Respondents, through the Office of the Solicitor General (OSG), claim that
Morales to to to petitioner failed to appreciate the verba legis approach to constitutional
1 Feb. present present construction; and that, instead, petitioner resorted to an interpretation that
2022 was not only self-serving but also devoid of basis and reason. 21
Petitioner states that it can be gleaned from the above data that the explicit Respondents aver that Sec. 11, Art. XI of the 1987 Constitution is clear that
seven-year term for the Ombudsman and the deputies has neither been the term of the Ombudsman and the Deputies shall be seven years without
followed nor complied with.13 reappointment without distinction on the cause of filling the vacancy.
Petitioner claims that Ombudsman Morales should have ceased to hold office According to the respondents, to follow petitioner's interpretation would lead
on 1 February 2015 considering that the unexpired term of the supposed to a distinction not found in the law between: (1) the term of the Ombudsman
fourth seven-year term ended on that date; thus, Ombudsman Morales has and the deputies who succeeded a predecessor who finished a full term of
been holding the position in a de facto capacity since 2 February 2015 up to seven years; and (2) the term of the Ombudsman and the deputies who
the present. This observation, petitioner claims, holds true with the other merely succeeded the predecessor who did not finish the full term of seven
respondent deputies.14 years.22
Petitioner posits that the "recurrence of this cycle of noncompliance and Respondents state that unlike Sec. 11, Art. XI of the 1987 Constitution, the
nonobservance of the intent of the framers and the explicit provision of the term of office of the constitutionally created offices provides that a successor
1987 Philippine Constitution is an outright affront to the fundamental law of who is appointed to any vacancy shall only serve the unexpired term of the
successor.23
To disprove the petitioner's assertion that the distinction as to the term of
office of constitutionally created offices applies to the Ombudsman and his
Deputies, respondents explain that there are other offices created by the
Constitution, viz: Supreme Court, Judicial and Bar Council (JBC), Senate
Electoral Tribunal (SET), House of Representatives Electoral Tribunal
(HRET), judges of lower courts, elective local officials, and the CHR, among
others, where such distinction does not apply. 24
Respondents allege that the deliberations of the framers of the Constitution
reveal their intent to grant the Ombudsman and his deputies the same rank
and salary as the Chair and members of the Constitutional Commissions but
not by the staggered term.25
Respondents contend that the ruling in Gaminde where the rotational system
of appointment of the CSC chairperson and the commissioners was crucial to
the determination of the start of Commissioner Gaminde's term, does not
apply to the Office of the Ombudsman where there are no seven-five-three-
year rotational intervals for the appointment. Moreover, the Office of the
Ombudsman is not a commission composed of a chairperson and several
commissioners; thus, whether the term of the first Ombudsman began on 2
February 1987 would be immaterial because the succeeding Ombudsman
shall have a fresh seven-year term.26
Respondents maintain that the present petition seeks to unseat respondents
from public office; thus, the Tañada and Imbong rulings on which petitioner
anchors his petition would not apply since these cases do not involve an
attack on a public officer's title. Moreover, the present petition, which involves
a collateral attack on the respondents' title, should be dismissed for being an
improper remedy. Respondents emphasize that the proper remedy would
have been a petition for quo warranto under Rule 66 of the Rules of Court to
be initiated by the Solicitor General or public prosecutor when directed by the
President of the Philippines.27
ISSUES
I.
Whether Section 8(3) of R.A. No. 6770 is unconstitutional for being violative of
Section 11 in relation to Sections 8 and 10, Article XI of the 1987 Philippine
constitution and applicable jurisprudence.
II.
Whether the instant petition is the proper remedy.
III.
Whether this Honorable Court has jurisdiction.
OUR RULING
To properly resolve this petition, it would be better to dwell foremost on the
issue of whether petitioner has availed of the proper vehicle to obtain the
relief he pleads the Court.
A petition for certiorari is the
proper remedy to challenge the
constitutionality of Sec. 8(3) of
R.A. No. 6770.
To justify his claim that a petition for certiorari and prohibition is the proper
remedy to assail the validity of Sec. 8(3) of R.A. No. 6770, petitioner cites the
ruling in Tañada and Imbong that "certiorari, prohibition, and mandamus are
appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials, as
there is no plain, speedy, or adequate remedy in the ordinary course of law."
To counter petitioner's justification and to prove that quo warranto was the
proper remedy in this case, respondents cite Topacio v. Ong.28
Respondents failed to consider that the factual antecedents in Topacio are
not on four-square with the present petition. In that case, Ferdinand Topacio's
petition for certiorari and prohibition sought, in the main, to prevent Justice
Gregory Ong from further exercising the powers, duties, and responsibilities
of a Sandiganbayan Associate Justice. Topacio chiefly moored his petition on
the ground that Ong did not qualify to be appointed as an Associate Justice of
the Sandiganbayan on the basis of his citizenship, i.e., whether gauged from
his birth certificate which indicates him to be a Chinese citizen or against his
bar records bearing out his status as a naturalized Filipino citizen. Simply put,
the petition principally involved a review of Ong's qualification for appointment
as Associate Justice of the Sandiganbayan which violated, according to
Topacio, Sec. 7,29 Art. VIII of the 1987 Constitution requiring that the
members of the Supreme Court or any collegiate court be natural-born
citizens of the Philippines. Thus, the Court held:
While denominated as a petition for certiorari and prohibition, the petition
partakes of the nature of a quo warranto proceeding with respect to Ong, for it
effectively seeks to declare null and void his appointment as an Associate
Justice of the Sandiganbayan for being unconstitutional. While the petition
professes to be one for certiorari and prohibition, petitioner even adverts to
a quo warranto aspect of the petition.
Being a collateral attack on a public officer's title, the present petition
for certiorari and prohibition must be dismissed.30
On the one hand, petitioner prefaced his petition as follows:
This is a petition for certiorari and prohibition under Rule 65 of the Rules of
Court seeking to declare the following:
(a) Section 8(3) in relation to Section 7 of Republic Act No.
6770, also known as the Ombudsman Act of 1989, as
unconstitutional for being an outright transgression of Section 11
in relation to Sections 8 and 10 of Article XI of the 1987
Constitution, and
(b) All individual respondents as de facto Ombudsman and
Deputies Ombudsman, respectively, and all their positions
vacant.
This Honorable Court's jurisdiction over cases involving the constitutionality of
laws pursuant to Sections 4(2) and 5 of Article VIII of the 1987 Constitution is
being respectfully invoked in view of the transcendental importance of the
instant matter.31
The pertinent provisions of Art. XI of the 1987 Constitution which petitioner
avers was transgressed by Sec. 8(3) of R.A. No. 6770 are as follows:
Sec. 8. The Ombudsman and his Deputies shall be natural-born citizens of
the Philippines, and at the time of their appointment, at least forty years old, of
recognized probity and independence, and members of the Philippine Bar,
and must not have been candidates for any elective office in the immediately
preceding election. The Ombudsman must have for ten years or more been a
judge or engaged in the practice of law in the Philippines.
xxxx
Sec. 10. The Ombudsman and his Deputies shall have the rank of Chairman
and Members, respectively, of the Constitutional Commissions, and they shall
receive the same salary, which shall not be decreased during their term of
office.
Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven
years without reappointment. They shall not be qualified to run for any office
in the election immediately succeeding their cessation from office.
Clear from his petition was that the petitioner beseeches the Court for a
declaration primarily as to the unconstitutionality of Sec. 8(3) in relation to
Sec. 7 of R.A. No. 6770, and as a consequence thereof, a pronouncement
that the incumbent Ombudsman and the deputies are de facto officers and
whose offices are vacant. The petition does not task the Court to scrutinize
the qualification of the respondents to hold office as Ombudsman and
deputies but rather to determine the constitutionality of Sec. 8(3) of R.A. No.
6770 in so far as their term of office is concerned.
In contrast with Topacio where the very issue involved was the qualification to
office of Ong, the present petition attacks the validity of a law, which petitioner
claims has transgressed Sec. 11 in relation to Secs. 10 and 11, Art. XI of the
1987 Constitution. Petitioner points out that the legislature went beyond the
parameters of these constitutional provisions when it crafted Sec. 8(3) of R.A.
No. 6770,32 and that there is no other plain, speedy, and adequate remedy in
the ordinary course of law that can correct the long-running, pervasive, and
continuous violation of Sec. 11 in relation to Secs. 8 and 10, Art. XI of the
1987 Constitution and the applicable jurisprudence." 33
Under the 1987 Constitution, judicial power includes the duty of the courts of
justice not only "to settle actual controversies involving rights which are legally
demandable and enforceable," but also "to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government."34 Its expanded power of review provides:
Sec. 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.35
Fundamental is the rule that grave abuse of discretion arises when a lower
court or tribunal patently violates the Constitution, the law, or existing
jurisprudence.36 We have already ruled that petitions for certiorari and
prohibition filed before the Court "are the remedies by which the grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government may be determined under the
Constitution," and explained that "[w]ith respect to the Court, x x x the
remedies of certiorari and prohibition are necessarily broader in scope and
reach, and the writ of certiorari or prohibition may be issued to correct errors
of jurisdiction committed not only by a tribunal, corporation, board or officer
exercising judicial, quasi-judicial or ministerial functions, but also to set right,
undo(,and restrain any act of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial, quasi-judicial
or ministerial functions. "37
"Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute. The question thus posed is judicial rather
than political. x x x. The duty to adjudicate remains to assure that the
supremacy of the Constitution is upheld." 38 The Court however, does not have
unrestrained authority to rule on just any and every claim of constitutional
violation. Hence, the legal teaching is that the power of judicial review is
limited by four exacting requisites, viz: (a) there must be an actual case or
controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case."39
An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute. 40 Closely linked to this
requirement is that the question must be ripe for adjudication, i.e., when the
act being challenged has had a direct adverse effect on the individual or entity
challenging it.41 It is a prerequisite that something had then been
accomplished or performed by either branch before a court may come into the
picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action. 42
The Court holds that the present petition involves an actual case or
controversy and that the same is ripe for judicial determination. It will be noted
that, granting there was merit to the position raised by the petitioner that Sec.
8(3) of R.A. No. 6770 is unconstitutional, the incumbent Ombudsman and
deputies are de facto officers who have overstayed in office since 2 February
2015. Of prime consideration, too, if petitioner's position is correct, is the
alleged pervasive noncompliance and non-observance of the constitution
relative to the seven-year term of office of the Ombudsman and the deputies,
the principles of which, albeit relevant to the constitutional commissions, have
been settled in Gaminde. It should likewise be taken into account, granting
that petitioner's challenge to Sec. 8(3) of R.A. No. 6770 was valid and legal,
that there are continuing illegal disbursements of public funds to pay the
salaries of the de facto Ombudsman and deputies. From these
considerations, it cannot be gainsaid that there is indeed a justiciable
controversy involving an alleged serious infringement of the fundamental law,
and which the Court is duty bound to resolve.
Locus standi is defined as follows:
A personal and substantial interest in the case such that the party has
sustained or will sustain a direct injury as a result of the governmental act that
is being challenged. The term "interest" means a material interest, an interest
in issue affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest. The gist of the question of
standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of
difficult constitutional questions.43
Jurisprudence dictates that a party challenging the constitutionality of a law,
act or statute must show "not only that the law is invalid, but also that he has
sustained or is in immediate or imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way."44 There is likewise the teaching that locus standi is
merely a matter of procedure and that, in some cases, suits are not brought
by parties who have been personally injured by the operation of a law or any
other government act, but by concerned citizens, taxpayers, or voters who
actually sue in the public interest.45 This liberal stance has been exemplified
in Funa v. Villar, 46 viz:
To have legal standing, therefore, a suitor must show that he has sustained or
will sustain a "direct injury" as a result of a government action, or have a
"material interest in the issue affected by the challenged official act. However,
the Court has time and again acted liberally on the locus standi requirements
and has accorded certain individuals, not otherwise directly injured, or with
material interest affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The rule on locus
standi is after all a mere procedural technicality in relation to which the Court,
in a catena of cases involving a subject of transcendental import, has waived,
or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit they may
not have been personally injured by the operation of a law or any other
government act. In David, the Court laid out the bare minimum norm before
the so-called "non-traditional suitors" may be extended standing to sue,
thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of
the election law in question;
3.) For concerned citizens, there must be a showing that the issues raised are
of transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of
infringes their prerogatives as legislators. 47
Petitioner, who claims to be a taxpayer, asserts that there has been illegal
disbursement of public funds in paying the salaries of the respondents. As a
concerned citizen, he avers that the issues in this petition are of
transcendental importance.
The Court has jurisdiction
over the instant petition.
In arguing that the Court should exercise its power of judicial review and
assume jurisdiction over his case, petitioner pleads this Court to consider the
principal issue raised in his petition to be one of transcendental importance,
such that the principle of hierarchy of courts, which he perceives as a possible
obstacle to his cause, may no longer apply or should be dispensed with. To
this end, he pleads and outlines the following arguments:
41. This Honorable Court's percipient wisdom is exigent and urgently needed
in order to mark a watershed in the Office of the Ombudsman on account of
the following, viz:
i. First. Direct resort to this Honorable Court is allowed because
there is a genuine issue of constitutionality which must be
immediately addressed. In the instant case, Section 8 (3) of R.A.
No. 6770, if not declared unconstitutional, will continue to
contravene Section 11 in relation to Sections 8 and 10, Article XI
of the 1987 Philippine Constitution, and applicable
jurisprudence.
ii. Second. The issue raised herein is of transcendental
importance. In the instant case, there has been a pervasive non-
compliance with the seven (7) year term of the Ombudsman.
The decision of this Honorable Court in the instant case will, in
the manner of Gaminde, provide for the correct term and tenure
of succeeding Ombudsmen.
iii. Third. The constitutional issue raised in this case is better
decided by this Honorable Court which can rule with finality as
to the constitutionality of Section 8 (3) of R.A. No. 6770.
iv. Fourth. The time element involved in the instant case cannot
be ignored. Respondent Carpio-Morales has been holding the
position of Ombudsman in a de facto capacity for more than two
(2) years already. The vacancy and the appointment of a new
Ombudsman is now imperative.
v. Fifth. The instant petition involves a constitutional organ. The
Office of the Ombudsman is a constitutional office, hence, in the
words of The Diocese of Bacolod,48 "a ruling by this court would
be in the best interest of respondents, in order that their actions
may be guided accordingly in the future."
vi. Sixth. There is no other plain, speedy and adequate remedy
in the ordinary course of law that can correct the long running
and recurring, pervasive and continuous violation of Section 11
in relation to Sections 8 and 10, Article XI of the 1987 Philippine
Constitution, and applicable jurisprudence.
vii. Seventh. This petition directly puts into question the status
and legitimacy of respondent Carpio-Morales as Ombudsman
and her deputies' continued service as such considering that,
pursuant to Section 11 in relation to Sections 8 and 10, Article
XI of the 1987 Philippine Constitution, and applicable
jurisprudence, her term already expired on 2 February 2015. 49
Interestingly, the OSG hardly addressed these points in its Comment and
Memorandum. Nowhere did the OSG counter petitioner's claim that the
principal issue he raised is of such transcendental importance that his case
may escape the application of the principle of the hierarchy of courts.
The Court has explained the necessity of the application of the hierarchy of
courts in Bañez, Jr. v. Concepcion:50
The Court must enjoin the observance of the policy on the hierarchy of courts,
and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence of
the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to it.
The Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when serious
and important reasons exist to justify an exception to the policy. 51
However, the doctrine of hierarchy of courts is not an iron-clad rule as it in fact
admits the jurisprudentially established exceptions thereto, viz: (a) a direct
resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct
resort to this court includes availing of the remedies of certiorari and
prohibition to assail the constitutionality of actions of both legislative and
executive branches of the government; (b) when the issues involved are of
transcendental importance; (c) cases of first impression warrant a direct resort
to this court. In cases of first impression, no jurisprudence yet exists that will
guide the lower courts on this matter; (d) the constitutional issues raised are
better decided by this court; (e) the time element; (f) the filed petition reviews
the act of a constitutional organ; (g) petitioners have no other plain, speedy,
and adequate remedy in the ordinary course of law; and (h) the petition
includes questions that are dictated by public welfare and the advancement of
public policy, or demanded by the broader interest of justice, or the orders
complained of were found to be patent nullities, or the appeal was considered
as clearly an inappropriate remedy.52 Petitioner has amplified in his petition
these exceptions to justify a relaxation on the adherence to the doctrine of
hierarchy of courts.
Before proceeding any further, the Court observes that petitioner has named
only the incumbent Ombudsman and the deputies as respondents in his
petition although the present controversy deals with the constitutionality of a
legislative act and, corollary thereto, the act of the President in appointing the
respondents allegedly beyond the seven-year term as prescribed by the
constitution and explicated through our jurisprudential declarations. The Court
hastens to add that it was equally raised in this petition that there were
alleged illegal disbursement of public funds as a result of the pervasive
noncompliance with the constitutional requirement on the seven-year term of
office of the Ombudsman and the deputies; yet, the petitioner failed to include
the Department of Budget and Management (DBM) as a respondent.
Notwithstanding these observations, the Court notes that respondents'
present counsel, the OSG, would have likewise represented the legislative
body, the Office of the President, or the DBM had they been equally named
as respondents in this petition. Bearing in mind that the arguments of the
OSG relative to the constitutionality of Sec. 8(3) of R.A. No. 6770 would have
equally applied to these persons had they been included as respondents in
this petition and that the Court has already determined that it shall take
cognizance of this case pursuant to its expanded power of review, we shall
then set aside our misgivings on the failure of the petitioner to include the
other respondents in his petition.
The History of the Office of the
Ombudsman
The word "ombudsman" originated from Sweden when in 1809 it established
the position of Justlieombudsman with the purpose of overseeing government
administration. The title loosely translates as "citizen's defender" or
"representative of the people."53 The Ombudsman was primarily tasked with
receiving complaints from persons aggrieved by administrative action or
inaction, conducting investigation thereon, and making recommendations to
the appropriate administrative agency based on his findings. The
Ombudsman relied mainly on the power of persuasion and the high prestige
of the office to effect his recommendations.54
In the Philippines, the Office of the Ombudsman considers the Permanent
Commission in the Revolutionary Government as its precursor. The
Permanent Commission, created pursuant to Art. 21 55 of the Decree of 23
June 1898, was designated to decide, on appeal, all criminal cases resolved
by the provincial councils involving the department secretaries and the
provincial and municipal officials.56
The Permanent Commission continued its existence after the ratification of
the Constitution of 1899, popularly known as the Malolos Constitution. Under
No. 1, Art. 55 of said Constitution, one of the powers of the Commission was
to "declare if there is sufficient cause to proceed against the President of the
Republic, the Representatives, Department Secretaries, the Chief Justice of
the Supreme Court and the Solicitor General in the cases provided by the
Constitution."57
In May 1950, President Elpidio R. Quirino created the Integrity Board charged
with receiving complaints against public officials for acts of corruption,
dereliction of duty, and irregularity in office, and conducting a thorough
investigation of these complaints. 58
On 30 December 1953, President Ramon Magsaysay issued Executive Order
(E.O.) No. 1 creating the Presidential Complaints and Action Commission for
the purpose of expediting actions on all complaints against the manner of
various officials and personnel of the different executive departments,
bureaus, offices, agencies, instrumentalities, and government-owned or
-controlled corporations.
On 15 July 1958, President Carlos P. Garcia (President Garcia) issued E.O.
No. 306 creating the Presidential Committee on Administration Performance
Efficiency (PCAPE). The PCAPE was to be headed by a Technical Assistant
designated by the President, and who shall be known as the Chairman.
On 7 March 1960, President Garcia issued E.O. No. 382 which granted to
PCAPE all the powers of an investigating committee under Sects. 71 59 and
58060 of the Revised Administrative Code,61 including the power to summon
witnesses, administer oaths, and take testimony or evidence relevant to the
investigation. However, on 29 December 1961, President Garcia issued E.O.
No. 456 abolishing the PCAPE.
When President Diosdado P. Macapagal (President Macapagal) assumed
office on 30 December 1961, he issued E.O. No. 1 re-creating the PCAPE for
the purpose of achieving greater efficiency, competence, and dedication in
the administration of government and ensuring the prompt and faithful
performance of assigned duties, functions, and directives by the implementing
government offices, agencies, and instrumentalities. The PCAPE was to be
headed by a technical assistant designated by the President, and who shall
be known as the Presidential Executive Assistant and be a member of the
Cabinet.
On 18 January 1962, President Macapagal issued E.O. No. 4 which gave life
to the Presidential Anti-Graft Committee (PAGC) to be composed of such
personnel as the President may designate from time to time. The PAGC had
the following functions:
1. To inquire into, and take measures to prevent, the occurrence of graft and
of violations of R.A. No. 301962 in such departments, bureaus, offices,
agencies, or instrumentalities, including government-owned or - controlled
corporations, as the President may determine, under the supervision of the
Department Head concerned; and
2. In such departments, bureau, offices, agencies, or instrumentalities,
including government-owned or -controlled corporations, as the President
may determine, to implement and enforce R.A. No. 1379 63 by inquiring into,
investigating, determining, and verifying any and all unlawfully acquired
properties of the officials and employees thereof, and obtaining the needed
evidence to establish such unlawful acquisition of property or other forms of
wealth acquired by them while in public office.
By virtue of E.O. No. 4 issued on 7 January 1966, President Ferdinand E.
Marcos (President Marcos) created the Presidential Agency on Reforms and
Government Operations (PARGO) which shall be directly under and
responsible only to the President of the Philippines. The PARGO shall be
headed by the Assistant to the President, and is a member of the Cabinet.
In 1969, R.A. No. 602864 creating the Office of the Citizens Counselor, was
passed. Its pertinent provisions read:
Sec. 3. To carry out the purposes of this Act, there is hereby created an office
to be known as the Office of the citizen's Counselor to which the President,
with the consent of the Commission on Appointments, shall appoint an officer
to be known as the Citizen's counselor, hereinafter referred to as the
Counselor. The Citizen's Counselor shall be assisted by two (2) Associate
Counselors, who shall be appointed by the President of the Philippines with
the consent of the Commission on Appointments.
Sec. 4. No person may be appointed Counselor unless he has been a
member of the Supreme Court or of the Court of Appeals.
No person may be appointed Associate Counselor unless he is a citizen of
the Philippines, at least forty years of age and has for ten (10) years or more
been a judge of a court of record or engaged actively in the practice of law.
No person may serve as Counselor or Associate Counselor (a) within two (2)
years of the last day on which he served as a member of Congress; (b)while
he is a candidate for or holds any other public office; or (c) while he is actively
engaged in any other calling for profit or reward.
No Counselor or Associate Counselor shall be a candidate for any public
office within two (2) years from the last day on which he served as Counselor
or Associate Counselor.
In 1970, President Marcos created a Complaints and Investigation Office and
in the following year, the Presidential Administrative Assistance Committee. 65
In view of the failure of these offices to accomplish the noble purpose for
which they were created, the framers of the 1973 Constitution saw the need
to constitutionalize the office of the Ombudsman, to be known as the
Tanodbayan, in order to give it political independence and adequate powers
to enforce its recommendations.66 Thus, the Tanodbayan was vested with the
power to receive and investigate complaints relative to public office, including
those in government-owned or -controlled corporations; make appropriate
recommendations; and in case of failure of justice as defined by law, file and
prosecute the corresponding criminal, civil or administrative cases before the
proper court or body.67
In the exercise of his power under Proclamation No. 1081, 68 President Marcos
issued on 11 June 1978, P.D. No. 1487 creating the Office of the
Ombudsman to be known as the Tanodbayan. Pertinently, Sec. 6 thereof
provides for the term of office of the Tanodbayan and the deputies as follows:
Section 6. Term of Office.
(a) The Tanodbayan and his Deputies shall serve for a term of seven years
without reappointment unless removed by the President upon his
determination that the Tanodbayan or any of his Deputies has become
incapacitated or has been guilty of neglect of duty, or misconduct.
(b) If the Office of Tanodbayan becomes vacant for any cause,
the Senior Deputy Tanodbayan shall serve as Acting Tanodbayan until
the Tanodbayan shall have been appointed for a full term. (emphasis and
underlining supplied)
On 10 December 1978, President Marcos issued P.D. No. 1607 69 amending
P.D. No. 1487. Significantly, the above-quoted Sec. 6 of P.D. No. 1487 was
reiterated in P.D. No. 1607.
On 18 July 1979, P.D. Nos. 1487 and 1607 were amended when President
Marcos issued P.D. No. 163070 wherein Sec. 6 merely repeated the same
section of its precursors as to the term of office of the Tanodbayan and the
deputies.
The independence of the Office of the Ombudsman was further reinforced
under the 1987 Constitution. Sec. 7, Art. XI of the 1987 Constitution provides
that the existing Tanodbayan shall hereafter be known as the Office of the
Special Prosecutor which shall continue to function and exercise its powers
as now or hereafter may be provided by law, except those conferred on the
Office of the Ombudsman created under the constitution. The Ombudsman
and the deputies shall have the rank of chairman and members, respectively,
of the constitutional commissions, and they shall receive the same salary,
which shall not be decreased during their term of office. 71 The Ombudsman
and his deputies shall serve for a term of seven years without reappointment.
They shall not be qualified to run for any office in the election immediately
succeeding their cessation from office.72
On 24 July 1987, President Aquino, in the exercise of her legislative powers
pursuant to Sec. 6, Art. XVIII73 of the 1987 Constitution, issued E.O. No.
24374 providing for the framework of the Office of the Ombudsman. Sec. 6 of
E.O. No. 243 is quoted:
Sec. 6. The Ombudsman and his Deputies shall have the rank of Chairman
and Members, respectively, of the Constitutional Commissions, and they shall
receive the same salary, which shall not be decreased during their term of
office.
On 17 November 1989, the Eighth Congress approved R.A. No.
677075 providing for the functional and structural organization of the Office of
the Ombudsman. The pertinent provisions of R.A. No. 6770 read:
Section 7. Term of Office. — The Ombudsman and his Deputies, including
the Special Prosecutor, shall serve for a term of seven (7) years without
reappointment.
Section 8. Removal; Filling of Vacancy. —
xxxx
(3) In case of vacancy in the Office of the Ombudsman due to death,
resignation, removal or permanent disability of the incumbent
Ombudsman, the Overall Deputy shall serve as Acting Ombudsman in a
concurrent capacity until a new Ombudsman shall have been appointed
for a full term. In case the Overall Deputy cannot assume the role of Acting
Ombudsman, the President may designate any of the Deputies, or the Special
Prosecutor, as Acting Ombudsman. XXX (emphasis supplied)
Sec. 8(3) of R.A. No. 6770 is not
unconstitutional.
Before proceeding to the very core issue of this petition, the Court reminds
itself of its ruling in Estrada v. Sandiganbayan,76 viz:
Preliminarily, the whole gamut of legal concepts pertaining to the validity of
legislation is predicated on the basic principle that a legislative measure is
presumed to be in harmony with the Constitution. Courts invariably train their
sights on this fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of constitutional adjudication. This
strong predilection for constitutionality takes its bearings on the idea that it is
forbidden for one branch of the government to encroach upon the duties and
powers of another. Thus it has been said that the presumption is based on
the deference the judicial branch accords to its coordinate branch - the
legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the
courts must assume that the legislature is ever conscious of the borders and
edges of its plenary powers, and has passed the law with full knowledge of
the facts and for the purpose of promoting what is right and advancing the
welfare of the majority. Hence, in determining whether the acts of the
legislature are in tune with the fundamental law, courts should proceed with
judicial restraint and act with caution and forbearance. Every intendment of
the law must be adjudged by the courts in favor of its constitutionality,
invalidity being a measure of last resort. In construing therefore the provisions
of a statute, courts must first ascertain whether an interpretation is fairly
possible to sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon we held that as long as there
is some basis for the decision of the court, the constitutionality of the
challenged law will not be touched and the case will be decided on other
available grounds. Yet the force of the presumption is not sufficient to catapult
a fundamentally deficient law into the safe environs of constitutionality. Of
course, where the law clearly and palpably transgresses the hallowed domain
of the organic law, it must be struck down on sight lest the positive commands
of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the
party challenging the validity of the statute. He must demonstrate beyond any
tinge of doubt that there is indeed an infringement of the constitution, for
absent such a showing, there can be no finding of unconstitutionality. A
doubt, even if well-founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain.":77 x x x (emphasis supplied)
Petitioner anchors his challenge on the constitutionality of Sec. 8(3) of R.A.
No. 6770 in the belief that because the Ombudsman and the deputies have
the same rank and salary as the chairman and the members of the
constitutional commissions, their term of office, following the Court's
disquisition in Gaminde, shall always be seven years counted from 2
February 1987 and seven years thereafter, and not the full term of seven
years.
a. The Office of the Ombudsman is
not a constitutional commission.
It must be stressed that the Office of the Ombudsman is not a constitutional
commission. Sec. 1, Art. IX of the 1987 Constitution specifically enumerates
the independent constitutional commissions in the Philippines, viz: the CSC,
the COMELEC, and the COA. The common provisions among these three
constitutional commissions are as follows:
Section 2. No member of a Constitutional Commission shall, during his
tenure, hold any other office or employment. Neither shall he engage in the
practice of any profession or in the active management or control of any
business which, in any way, may be affected by the functions of his office, nor
shall he be financially interested, directly or indirectly, in any contract with, or
in any franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-owned or-
controlled corporations or their subsidiaries.
Section 3. The salary of the Chairman and the Commissioners shall be fixed
by law and shall not be decreased during their tenure.
Section 4. The Constitutional Commissions shall appoint their officials and
employees in accordance with law.
Section 5. The Commission shall enjoy fiscal autonomy. Their approved
annual appropriations shall be automatically and regularly released.
Section 6. Each Commission en banc may promulgate its own rules
concerning pleadings and practice before it or before any of its offices. Such
rules, however, shall not diminish, increase, or modify substantive rights.
Section 7. Each Commission shall decide by a majority vote of all its
Members, any case or matter brought before it within sixty days from the date
of its submission for decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the last pleading, brief,
or memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law,
any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
Section 8. Each Commission shall perform such other functions as may be
provided by law.78
A commission is defined as "a board or committee officially appointed and
empowered to perform certain acts or exercise certain jurisdiction of a public
nature or relation.79 Noteworthy, the CSC is composed of a chairman and two
commissioners;80 the COMELEC, a chairman and six commissioners;81 and
the COA, a chairman and two commissioners. Clearly provided in Sec. 7 is
that these three constitutional commissions shall decide by a majority vote of
all its members any case or matter brought before it; thus, the commissions
are collegial bodies whose manner of working is characterized by a sharing of
responsibility among the chairman and the commissioners of the commission.
In contrast, the present Office of the Ombudsman, albeit composed of the
Ombudsman to be known as Tanodbayan, the Overall Deputy, the Deputy for
Luzon, the Deputy for the Visayas, the Deputy for Mindanao, the Deputy for
the Military and Other Law Enforcement Office (MOLEO), and the Special
Prosecutor, is not a collegial body. The Ombudsman and the deputies do not
resolve cases by a majority of all its members but rather are confined within
the sphere of their respective jurisdiction, i.e., the Deputy Ombudsman for
Luzon, for cases involving public officials and employees assigned in Luzon;
the Deputy Ombudsman for Visayas, for those assigned in Visayas; the
Deputy Ombudsman for Mindanao, for those assigned in Mindanao; the
Deputy Ombudsman for MOLEO, for those assigned in the military and the
police; and the Special Prosecutor, in the conduct preliminary investigation
and prosecution of criminal cases within the jurisdiction of the
Sandiganbayan. 82 The Overall Deputy, on the one hand, oversees and
administers the operations of the different offices under the Office of
Ombudsman83 while the Ombudsman is the final approving authority on the
disposition of cases before the sectoral offices, i.e., Luzon, Visayas,
Mindanao, MOLEO, and the Office of the Special Prosecutor.
The undeniable intent of the framers
of the 1987 Constitution in Sec. 10,
Art. XI was to provide that the rank
and salary of the Ombudsman and
his deputies shall be the same as that
of the chairman and members,
respectively, of the constitutional
commissions.
Sec. 10, Art. XI of the 1987 Constitution reads:
SECTION 10. The Ombudsman and his Deputies shall have the rank of
Chairman and Members, respectively, of the Constitutional Commissions, and
they shall receive the same salary, which shall not be decreased during their
term of office. (underlining supplied)
A reading on the deliberation of the framers of the 1987 Constitution relative
to this provision is in order:
MR. REGALADO. X X X
On Section 10, regarding the Ombudsman, there has been concern aired by
Commissioner Rodrigo about who will see to it that the Ombudsman will
perform his duties because he is something like a guardian of the
government. This recalls the statement of Juvenal that while the Ombudsman
is the guardian of the people "quis custodiet ipsos custodies," who will guard
the guardians? I understand here that the Ombudsman who has the rank of a
chairman of a constitutional commission is also removable only by
impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with the
phrase "have the rank of." We know, for instance, that the City Fiscal of
Manila has the rank of a justice of the Intermediate Appellate Court, and yet
he is not part of the judiciary. So I think we should clarify that also and read
our discussions into the Record for purposes of the Commission and the
Committee.
MR. ROMULO. Yes. If I may just comment: the Ombudsman in this
provision is a rank in itself really. That is how we look at it. But for
purposes of government classification and salary, we thought we have
to give him a recognizable or an existing rank as a point of reference
more than anything else.84
X X X X (emphasis supplied)
And
MR. DE LOS REYES. On lines 9 and 10 of page 4, it is stated:
MR. DE LOS REYES. On lines 9 and 10 of page 4, it is stated:
"A deputy of the Ombudsman shall have the same rank of a Commissioner of
a Constitutional Commission and his salary, which shall not be decreased
during his term of office."
The sentence does not sound right.
Will the Committee agree that we adopt the same arrangement in the first
sentence, so that the Deputy Ombudsman shall have the same rank of a
Commissioner and shall receive the same salary, which shall not be
decreased during his term of office?
THE PRESIDENT. So, what is the proposed amendment?
MR. DE LOS REYES. The proposed amendment is to delete the phrase "and
his salary" on line 11 and instead, to substitute it with the phrase: AND
SHALL RECEIVE THE SAME SALARY.
THE PRESIDENT. Is that accepted?
xxxx
MR. MAAMBONG. Madam President, I am sorry if I am taking a dual role
here but I have an anterior amendment to the same Section 10.
On page 4, Section 10, I propose to simplify the paragraph by deleting the
second sentence from lines 9 to 13. The first sentence of Section 10, starting
on line 6, should read: "The Ombudsman AND HIS DEPUTIES shall have the
rank of a Chairman AND MEMBERS OF A CONSTITUTIONAL
COMMISSION and THEY shall receive the salary, which shall not be
decreased during THEIR term of office."
ΧΧΧΧ
MR. DE LOS REYES. Would Commissioner Maambong be agreeable to the
insertion of the word RESPECTIVELY?
MR. MAAMBONG. In what portion of the amendment?
MR. DE LOS REYES. "CHAIRMAN AND MEMBERS OF THE
CONSTITUTIONAL COMMISSION, RESPECTIVELY."
MR. MAAMBONG. The amendment is accepted.
xxxx
THE PRESIDENT, Is there any objection to the proposed amendment on
Section 10? (Silence) The Chair hears none; the amendment is approved.
MR. MAAMBONG. May I read the sentence for the record so that we will not
be confused. Section 10 reads: "The Ombudsman and his Deputies shall
have the rank of a Chairman and members of a Constitutional Commission,
respectively, and they shall receive the same salary, which shall not be
decreased during their term of office.85 x x x x
The discussion confirms that the intent of the framers of the Constitution in
qualifying that the salary and rank of the Ombudsman and the deputies shall
be the same as that of the chairman and the members of the constitutional
commissions, was for the purpose of having a government classification as to
salary and a point of reference as to rank.
The words "salary" and "rank" were utilized by the framers in their ordinary
and common usage. The word "salary" is defined as "a reward or
recompense for services performed. In a more limited sense, a fixed
periodical compensation paid for services rendered." 86 The word "rank," on
the other hand, "is often used to express something different from office. It
then becomes a designation or title of honor, dignity or distinction conferred
upon an officer in order to fix his relative position in reference to other officers
in matters of privilege, precedence, and sometimes of command, or by which
to determine his pay and emoluments. 87 From these definitions, it is obvious
that neither the words "salary" nor "rank" even remotely includes the "term of
office," which is the time during which the officer may claim to hold the office
as of right, and fixes the interval after which the several incumbents shall
succeed one another. 88
It is a well-settled principle of legal hermeneutics that the words of a statute
will be interpreted in their natural, plain and ordinary acceptation and
signification, unless it is evident that the legislature, or in this case the framers
of the fundamental law, intended a technical or special legal meaning to those
words.89 As much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it says according to
the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the
people mean what they say.90 It is presumed that the framers and the people
meant what they said when they said it, and that this understanding was
reflected in the Constitution and understood by the people in the way it was
meant to be understood when the fundamental law was ordained and
promulgated.91 Index animi sermo or "speech is the index of intention" and
verba legis non est recedendum or "from the words of a statute there should
be no departure.""92
It must be underscored that the framers of the Constitution in Sec. 10, Art. XI
limited to rank and salary the similarity between the Ombudsman and the
deputies on one hand, and the chairman and the members of the
constitutional commission on the other. Applying the basic precept of statutory
construction that the express mention of one person, thing, act or
consequence excludes all others as expressed in the familiar maxim
expressio unius est exclusio alterius,93 it is beyond cavil that pursuant to Sec.
10, Art. XI, it is only with reference to "salary" and "rank" that the Ombudsman
and his deputies should be similar to the chairman and the members of the
constitutional commission. Expressium facit cessare tacitum. What is
expressed puts an end to what is implied. 94 Thus, where a statute, by its
terms, is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to other matters, 95 like "term of office" for "rank"
and "salary" as insisted by the petitioner. Time and time again, it has been
repeatedly declared by this Court that where the law speaks in clear and
categorical language, there is no room for interpretation, only application. 96 It
is best to keep in mind the reminder from Holmes that "there is no canon
against using common sense in construing laws as saying what it obviously
means."97
Moreover, the framers of the fundamental law could have easily and
conveniently provided that the term of office of the Ombudsman and his
deputies shall be the same as that of the chairman and members of the
constitutional commissions if this was their obvious intent. Casus omissus pro
omisso habendus est. A person, object or thing omitted must have been
omitted intentionally.98
c. The constitutional commissions
observe the regular rotational plan
which cannot apply to the Office of
the Ombudsman.
The regular rotation or cycle that is explicitly provided in Art. IX of the 1987
Constitution and inherently unique to the constitutional commissions is an
argument that works heavily against the position of the petitioner that the
limitations on the term of office of these commissions equally apply to the
Ombudsman and his deputies.
It is instructive that in the 1949 case of Nationalista Party v. De Vera,99 the
Court laid down the following ruling when it interpreted Sec. 1, Art. X of the
1935 Constitution100 relative to the term of office of the commissioners of the
independent COMELEC, to wit:
In order to carry out the purpose of the Constitution of placing in the
Commission a new member every three years, it is essential that after the first
Commissioners have been appointed, every subsequent appointment shall so
fix the appointee's term of office as to maintain the three years difference
between the dates of expiration of the respective terms of the incumbents.
And this can be done if after the appointments of the first three
Commissioners, the successor of any one of them who ceases prior to the
expiration of his term, be appointed only for the unexpired portion of that term.
Of course, when a Commissioner ceases because of the expiration of his
term his successor must be appointed for a term of nine years; but when he
ceases on other grounds prior to the expiration of his term, his successor
must be appointed only for the unexpired portion of that term, otherwise the
appointment would be offensive to the Constitution. 101
In Republic v. Imperial,102 the Court held that this particular provision of the
1935 Constitution, when taken together with the prescribed term of office for
nine years without reappointment, evidences a deliberate plan to have a
regular rotation or cycle in the membership of the COMELEC, by having
subsequent members appointable only once every three years. With these
periods it was the intention to have one position vacant every three years, so
that no President can appoint more than one commissioner, thereby
preserving and safeguarding the independence and impartiality of the
Commission as a body, we may add, for the impartiality and independence of
each individual commissioner's tenure was safeguarded by other provisions in
the same Article X of the fundamental charter. 103 Moreover, the rotation of the
commissioners' appointments at regular and fixed intervals of three years was
a deliberate plan, was shown by the history of the provision and by selection
of the fixed term of nine years for all subsequent appointees, since no other
term would give such a result.
In Imperial, we established that for the operation of the rotational plan, two
conditions, both indispensable to its workability, are required, viz: (1) that the
terms of the first three commissioners should start on a common date; and (2)
that any vacancy due to death, resignation or disability before the expiration
of the term should be filled only for the unexpired balance of the term. Without
satisfying these conditions, the regularity of the intervals between
appointments would be destroyed, and the evident purpose of the rotation,
i.e., to prevent that a four-year administration should appoint more than one
permanent and regular commissioner, would be frustrated. It was settled
therefore that of the first three COMELEC commissioners appointed whose
office shall all commence on a common date, one commissioner shall have a
term of office of nine years, the other for six years, and the remaining one for
three years.
The rotational plan, which was unique for the COMELEC under the 1935
Constitution, was subsequently applied to the CSC and the COA pursuant to
Art. XII of the 1973 Constitution, viz:
B. THE CIVIL SERVICE COMMISSION
SECTION 1. (1) The Civil Service embraces every branch, agency,
subdivision, and instrumentality of the Government, including every
government-owned or-controlled corporation. It shall be administered by an
independent Civil, Service Commission composed of a Chairman and two
Commissioners, who shall be natural-born citizens of the Philippines, and, at
the time of their appointment, are at least thirty-five years of age and holders
of a college degree, and must not have been candidates for any elective
position in the election immediately preceding their appointment. The
Chairman and the Commissioners shall be appointed by the President
for a term of seven years without reappointment. Of the Commissioners
first appointed, one shall hold office for seven years, another for five
years, and the third for three years. Appointment to any vacancy shall
be only for the unexpired portion of the term of the predecessor.
xxxx
C. THE COMMISSION ON ELECTIONS
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the President
for a term of seven years without reappointment. Of the Commissioners
first appointed, three shall hold office for seven years, three for five
years, and the last three for three years. Appointment to any vacancy
shall be only for the unexpired portion of the term of the predecessor.
ΧΧΧΧ
D. COMMISION ON AUDIT
SECTION 1. X X X
(2) The Chairman and the Commissioners shall be appointed by the President
for a term of seven years without reappointment. Of the Commissioners
first appointed, one shall hold office for seven years, another for five
years, and the third for three years. Appointment to any vacancy shall
be only for the unexpired portion of the term of the
predecessor. (emphases supplied)
The regular rotation in the constitutional commissions was carried over in Art.
IX of the 1987 Constitution, as follows:
B. The Civil Service Commission
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, the Chairman shall hold
office for seven years, a Commissioner for five years, and another
Commissioner for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting
capacity.
XXXX
C. The Commission on Elections
SECTION 1. X X X
(2) The Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, three Members
shall hold office for seven years, two Members for five years, and the
last Members for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired term of the predecessor. In
no case shall any Member be appointed or designated in a temporary or
acting capacity.
xxxx
D. Commission on Audit
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, the Chairman shall
hold office for seven years, one Commissioner for five years, and the
other Commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired portion of
the term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity. (emphases supplied)
Corollary to these provisions in the 1987 Constitution, the terms of the first
chairmen and commissioners of the constitutional commissions must start on
a common date, irrespective of the variations in the dates of appointments
and qualifications of the appointees, in order that the expiration of the first
terms of seven, five and three years should lead to the regular recurrence of
the two-year interval between the expiration of the terms. 104
Unlike the constitutional commissions in the 1973 and 1987 Constitutions, the
Ombudsman and the deputies do not make a collegial body thus, making it
implausible to apply the regular rotation or cycle in its membership. The
Ombudsman and the deputies, in contrast to the constitutional commissions,
do not decide by a majority vote of all its members any case or matter brought
before the Office of the Ombudsman. To stress, the Ombudsman and the
deputies have their respective jurisdiction; hence, they could not have
common responsibility relative to the discharge of their separate and distinct
functions.
Granting that the regular rotation applies to the Office of the Ombudsman and
that the first appointed Ombudsman shall enjoy a seven-year term, then these
queries are posed: Will the seven-year term likewise apply to the first
appointed deputies? Who among the first appointed deputies shall take the
five-year term? Or the three-year term? Obviously, the 1987 Constitution does
not provide the answers plainly because there is nothing specific in the
fundamental law that provides for the regular rotation of seven-five-three-year
term of office in the Office of the Ombudsman. Thus, it is only apposite to
apply the well-settled rule that the court may not, in the guise of interpretation,
enlarge the scope of a statute and include therein situations not provided nor
intended by the lawmakers105 or, in this case, the framers of the 1987
Constitution. To stress, it is presumed that these provisions have been
carefully crafted in order to express the objective it seeks to attain. 106
Belatedly, as this issue is raised for the first time in his memorandum,
petitioner points out another dimension as to the alleged unconstitutionality of
Sec. 8(3) of R.A. No. 6770. Petitioner avers that Sec. 8(3) of R.A. No. 6770, in
so far' as provides that the Overall Deputy shall serve as Acting Ombudsman
in a concurrent capacity until a new Ombudsman shall have been appointed
for a full term runs counter to what is uniformly provided in Sec. 2 of Art.
IX(A), (B), and (C) of the 1987 Constitution, viz: "In no case shall any member
be appointed or designated in a temporary or acting capacity. 107
To the point of being monotonous, Art. IX of the 1987 Constitution refers
exclusively to the constitutional commissions; thus, such proscription as to the
appointment or designation in a temporary or acting capacity of a member
applies only to the constitutional commissions and cannot extend to the
Ombudsman and the deputies. Indeed, Art. XI of the constitution does not
provide for such prohibition. What is clear however, is that the Ombudsman
and the deputies shall, during their tenure, be subject to the same
disqualifications and prohibitions as provided for in Sec. 2 of Article IX(A) of
this Constitution, "[n]o Member of a Constitutional Commission shall, during
his tenure, hold any other office or employment. Neither shall he engage in
the practice of any profession or in the active management or control of any
business which in any way may be affected by the functions of his office, nor
shall he be financially interested, directly or indirectly, in any contract with, or
in any franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-owned or -
controlled corporations or their subsidiaries."
d. The ruling in Gaminde as to the terms of
office of the chairman and members of the
constitutional commissions does not apply
to the Ombudsman and the deputies.
In Gaminde, petitioner Gaminde was appointed on 11 June 1993 as
ad interim CSC commissioner, and assumed office on 22 June
1993.1âwphi1 From her appointment paper, Gaminde's term was to expire on
2 February 1999. When Gaminde sought clarification from the Office of the
President as to the expiration of her term of office, she was informed by the
Chief Presidential Legal Counsel that it would expire on 2 February 2000. The
COA General Counsel, however, opined otherwise, stating that Gaminde's
term had expired on 2 February 1999, conformably with the constitutional
intent. As a result, the salaries and emoluments of Gaminde and her co-
terminous staff effective 2 February 1999, were disallowed in audit. Gaminde
appealed to the COA en banc but the commission affirmed the propriety of
the disallowance. Gaminde's motion for reconsideration was denied by COA.
Finding that Gaminde's term expired on 2 February 1999, the Court ruled that
2 February 1987 was the proper starting point of the terms of office of the first
appointees to the constitutional commissions with staggered seven-five-three-
year terms considering the plain language of Art. IX (B), Sec. 1 (2), Art. IX (C),
Sec. 1 (2) and Art. IX (D), Sec. 1 (2) of the 1987 Constitution that uniformly
prescribed a seven-year term of office for members of the constitutional
commissions without re-appointment; and for the first appointees terms of
seven, five and three years, without re-appointment. If there was a belated
appointment or qualification, the interval between the start of the term and the
actual qualification of the appointee must be counted against the latter.
Relevant to Sec. 15, 108 Art. XVIII of the 1987 Constitution, the Court stated
that this provision under the Transitory Provisions contemplates tenure, not
term of the incumbent chairperson and members of the CSC, the COMELEC,
and the COA who shall continue in office for one year after the ratification of
this Constitution, unless they are sooner removed for cause or become
incapacitated to discharge the duties of their office or appointed to a new term
thereunder. The incumbent members of the constitutional commissions shall
continue in office for one year after the ratification of the 1987 Constitution
pursuant to their existing appointments unless their tenure is cut short by the
appointing power. However, Sec. 15, Art. XVIII will not have any effect on the
term of office fixed in Art. IX of the 1987 Constitution providing for a seven-
five-three year rotational interval for the first appointees to the constitutional
commissions.
The court draws attention to the fact its ruling in Gamide applies exclusiveley
ot the CSC, the COMELEC, and the COA for the reason that Art. IX of the
1987 COnstitution pertains solely to the constitutional commissions. INdeed,
the jurisprudenceial teachings since 1949 in Bautista and <="" i="">in 1955
in Imperial, albeit referring to the terms of office of the COMELEC chairman
and members, and now in Gamide, pertain to the three constitutional
commissions, and nothing else. It will be absurd as it is devoid of any valid
and legal reason, to extend the application of the Gamide ruling to the Office
of the Ombudsman when this office is admittedly not a constitutional
commission.
e. Sec. 8(3) of R.A. No. 6770 is
consistent with Sec. 11, Art. XI of
the 1987 Constitution.
Tracing the history of the creation of the now Office of the Ombudsman, the
1973 Constitution provides:
Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to
be known as Tanodbayan, which shall receive and investigate complaints
relative to public office, including those in government-owned or - controlled
corporations, make appropriate recommendations, and in case of failure of
justice as defined by law, file and prosecute the corresponding criminal, civil,
or administrative case before the proper court or body. 109
It was by virtue of P.D. No. 1487 that President Marcos, in the exercise of his
power under Proclamation No. 1081, clearly defined the term of office of the
Tanodbayan and his deputies, viz:
Section 6. Term of Office.
(a) The Tanodbayan and his Deputies shall serve for a term of seven years
without reappointment unless removed by the President upon his
determination that the Tanodbayan or any of his Deputies has become
incapacitated or has been guilty of neglect of duty, or misconduct.
(b) If the Office of Tanodbayan becomes vacant for any cause, the Senior
Deputy Tanodbayan shall serve as Acting Tanodbayan until the
Tanodbayan shall have been appointed for a full term. (emphasis and
underlining supplied)
P.D. No. 1607 and P.D. No. 1630 were subsequently issued by President
Marcos amending P.D. No. 1487. Significantly, the amendatory decrees
plainly reiterated the very same provision found in Sec. 6 of P.D. No. 1487.
On the one hand, Sec. 11, Art. XI of the 1987 Constitution reads:
Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven
years without reappointment.1âwphi1 They shall not be qualified to run for
any office in the election immediately succeeding their cessation from office.
The quoted provision of the Constitution is clear and explicit: (a) the
Ombudsman and the deputies shall serve the term of seven years; (b) that
the Ombudsman and the deputies shall not be reappointed; and (c) the
Ombudsman and the deputies shall not run for any office in the election
immediately succeeding their cessation from office.
Contrary to the position of the petitioner, Sec. 11, Art. XI by itself is clear and
can stand on its own. Notably, the framers plainly provided for a seven-year
term of the Ombudsman and the deputies. For sure, nowhere in the
Constitution can it be gathered that the appointment to any vacancy for the
position of Ombudsman and the deputies shall be only for the unexpired term
of the predecessor. This can only mean that it was the intent of the framers
that the appointment to the positions of the Ombudsman and the deputies,
whether it be for the expired or unexpired term of the predecessor, shall
always be for a full term of seven years. Ubi lex non distinguit nec nos
distinguere debemus. Basic is the rule in statutory construction that where the
law does not distinguish, the courts should not distinguish. 110 Where the law is
free from ambiguity, the court may not introduce exceptions or conditions
where none is provided from considerations of convenience, public welfare, or
for any laudable purpose; neither may it engraft into the law qualifications not
contemplated.111
More importantly, it can be easily deduced from the decrees issued by
President Marcos preceding the creation of the Office of the Ombudsman
under the 1987 Constitution that the appointment of the Tanodbayan and the
deputies shall be for a full term of seven years regardless of the reason for
the vacancy in the position.
Jurisprudence teaches us that a statute should be construed in harmony with
the constitution, viz:
As the constitution is the fundamental law to which all laws are subservient, a
statute should not be interpreted independently of the Constitution. The
statute should be construed in harmony with, and not in violation of the
fundamental law. The legislature, in enacting a statute, is presumed to have
adhered to the constitutional limitations. Courts should accordingly presume
that it was the intention of the legislature to enact a valid, sensible, and just
law one which operates no further than maybe necessary to effectuate the
specific purpose of the law.112
In our review of Sec. 8(3) of R.A. No. 6770, we note that in case of death,
resignation, removal, or permanent disability of the Ombudsman, the new
Ombudsman shall be appointed for a full term. Undoubtedly, Sec. 8(3), R.A.
No. 6770 is consistent with Sec. 11, Art. XI of the 1987 Constitution in so far
as it provides that the Ombudsman and the deputies shall serve for a term of
seven years. Every statute is presumed valid. The presumption is that the
legislature intended to enact a valid, sensible and just law and one which
operates no further than may be necessary to effectuate the specific purpose
of the law. 113
Petitioner asserts that in case of a vacancy for reasons other than the
expiration of the term in the other constitutionally created offices, the
successor shall serve for the unexpired term of the predecessor. In an
attempt to fortify his assertion he cites the term of the Office of the
President,114 the Vice-President,115 the Senators, and the Members of the
House of Representatives. 116
The Court is not persuaded.
Petitioner failed to consider that there are other offices created under the
1987 Constitution where the successor is not limited to hold office for the
unexpired term of the predecessor. To name a few: (a) the justices of the
Supreme Court and the judges of the lower courts hold office during good
behavior until they reach the age of seventy years or become incapacitated to
discharge the duties of their office;117 hence, in case the incumbent reaches
the age of seventy or when a vacancy occurs for any other reason, the
successor shall hold office until he reaches the age of seventy or becomes
incapacitated to discharge his duties; (b) the JBC, where the regular members
are the following: a representative each from the Integrated Bar of the
Philippines (IBP) and the private sector; a professor of law; and a retired
member of the Supreme Court.118 Of the regular members first appointed, the
representative of the IBP shall serve for four years, the professor of law for
three years, the retired Justice for two years, and the representative of the
private sector for one year. The Chief Justice shall be the ex officio Chairman
of the JBC, and the Secretary of Justice and a representative of the Congress
as ex officio Members. Thus, the Chief Justice shall remain as the ex officio
JBC Chairman until the mandatory retirement age of 70 or becomes
incapacitated to discharge the duties of the office; the Secretary of Justice,
while holding this Cabinet position; and the representative of
Congress,119 until recalled by the chamber or until the term of the
representative expires, his term prematurely ends due to death, resignation,
removal, or permanent disability; (c) the Senate and the House Electoral
Tribunal, where each electoral tribunal shall be composed of nine members,
three of whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be members of the Senate or the
House of Representatives, as the case may be, who shall be chosen on the
basis of proportional representation from the political parties and the parties
or organizations registered under the party-list system represented therein.
The senior Justice in the electoral tribunal shall be its Chairman. Following the
earlier discussion on the JBC, the term of the Justices shall be until they
reach the mandatory retirement age of 70 or become incapacitated to
discharge the duties of the office; and the members of the Senate and the
House of Representatives, until they are recalled by the chamber, or their
term expires, or their term prematurely ends due to death, resignation,
removal, or permanent disability; and (c) the Commission on Appointments
(CA), which shall be composed of twelve Senators and twelve members of
the House of Representatives, elected by each House on the basis of
proportional representation from the political parties and parties or
organizations registered under the party-list system represented herein. The
President of the Senate shall be the ex officio chairman of the CA. 120 Hence,
the ex officio chairman shall remain as such until he becomes the President of
the Senate, while the members shall continue as such until recalled by the
chamber, or until their term expires, or their term prematurely ends due to
death, resignation, removal, or permanent disability.
It is a legal teaching that the courts, as guardians of the Constitution, have the
inherent authority to determine whether a statute enacted by the legislature
transcends the limit imposed by the fundamental law. And where the acts of
the other branches of government run afoul of the Constitution, it is the
judiciary's solemn and sacred duty to nullify the same. 121 The Court has
punctiliously reviewed the 1987 Constitution and its jurisprudential
declarations but found nothing that would at the very least tenuously support
the argument of the petitioner that Sec. 8(3) of R.A. No. 6770 is
unconstitutional.
Going back to our earlier pronouncement that the onerous task of rebutting
the presumption weighs heavily on the party challenging the validity of the
statute, the Court rules that the petitioner has miserably failed to prove that
Sec. 8(3) of R.A. No. 6770 transgresses the provisions of the 1987
Constitution. As such, the Court has no option but to deny the petition.
To summarize:
Pertinent to Sec. 10, Art. XI of the 1987 Constitution, it is only as to the rank
and salary that the Ombudsman and the deputies shall be the same with the
chairman and members, respectively, of the constitutional commissions.
Harmonizing Sec. 11, Art. XI of the 1987 Constitution with Sec. 8(3) of R.A.
No. 6770, in any vacancy for the positions of Ombudsman and the deputies,
whether as a result of the expiration of the term or death, resignation,
removal, or permanent disability of the predecessor, the successor shall
always be appointed for a full term of seven years.
Unlike the constitutional commissions in Art. IX of the 1987 Constitution, the
seven-year term of office of the first appointees for Ombudsman and the
deputies is not reckoned from 2 February 1987, but shall be reckoned from
their date of appointment. Accordingly, the present Ombudsman and deputies
shall serve a full term of seven years from their date of appointment unless
their term is cut short by death, resignation, removal, or permanent disability.
The Gaminde ruling applies to the constitutional commissions and not to the
Office of the Ombudsman.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Case no. 3:
G.R. No. 163586               January 27, 2009
SHARON CASTRO, Petitioner,
vs.
HON. MERLIN DELORIA, as Presiding Judge, Regional Trial Court,
Branch 65, Guimaras; the COA-Region VI, represented by its Director;
and HON. COURT OF APPEALS, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Certiorari under Rule 65 of the Rules of
Court filed by Sharon Castro (petitioner) to assail the July 22, 2003
Decision1 of the Court of Appeals (CA) which dismissed CA-G.R. SP No.
69350; and the March 26, 2004 CA Resolution 2 which denied the motion for
reconsideration.
The facts are of record.
On May 31, 2000, petitioner was charged by the Ombudsman before the
Regional Trial Court (RTC), Branch 65, Guimaras, with Malversation of Public
Funds, under an Information which reads, as follows:
That on or about the 17th day of August 1998, and for sometime prior thereto,
in the Municipality of Buenavista, Province of Guimaras, Philippines and
within the jurisdiction of the this Honorable Court, abovenamed accused, a
public officer, being the Revenue Officer I of the Bureau of Internal Revenue,
Buenavista, Guimaras and as such, was in the custody and possession of
public funds in the amount of P556,681.53, Philippine Currency, representing
the value of her collections and other accountabilities, for which she is
accountable by reason of the duties of her office, in such capacity and
committing the offense in relation to office, taking advantage of her public
position, with deliberate intent, and with intent to gain, did then and there
willfully, unlawfully and feloniously appropriate, take, misappropriate,
embezzle and convert to her own personal use and benefit said amount of
P556,681.53, and despite notice and demands made upon her account for
said public funds, she has failed to do so, to the damage and prejudice of the
government.
CONTRARY TO LAW.3
Petitioner pleaded NOT GUILTY when arraigned on February 16, 2001.
On August 31, 2001, petitioner filed a Motion to Quash on the grounds of lack
of jurisdiction and lack of authority of the Ombudsman to conduct the
preliminary investigation and file the Information. Petitioner argued that the
Information failed to allege her salary grade -- a material fact upon which
depends the jurisdiction of the RTC. Citing Uy v. Sandiganbayan, 4 petitioner
further argued that as she was a public employee with salary grade 27, the
case filed against her was cognizable by the RTC and may be investigated
and prosecuted only by the public prosecutor, and not by the Ombudsman
whose prosecutorial power was limited to cases cognizable by
the Sandiganbayan.5
The RTC denied the Motion to Quash in an Order 6 dated September 7, 2001.
It held that the jurisdiction of the RTC over the case did not depend on the
salary grade of petitioner, but on the penalty imposable upon the latter for the
offense charged.7 Moreover, it sustained the prosecutorial authority of the
Ombudsman in the case, pointing out that in Uy, upon motion for clarification
filed by the Ombudsman, the Court set aside its August 9, 1999 Decision and
issued a March 20, 2001 Resolution expressly recognizing the prosecutorial
and investigatory authority of the Ombudsman in cases cognizable by the
RTC.
The RTC further held that the Motion to Quash was contrary to Sec. 1, Rule
117, for it was filed after petitioner pleaded not guilty under the Information. 8
Petitioner filed a Motion for Reconsideration, 9 which the RTC denied in its
December 18, 2001 Order.10
Petitioner filed a petition for certiorari11 with the CA, but the latter dismissed
the petition in the Decision under review.
Petitioner’s motion for reconsideration12 was also denied.
Hence, the present petition, confining the issues to the following:
1. Whether or not the Ombudsman, as of May 31, 2000, when the
Information for Malvesation of Public Funds was instituted against the
Petitioner, had the authority to file the same in light of this Supreme
Court’s ruling in the First "Uy vs. Sandiganbayan" case, which declared
that the prosecutorial powers of the Ombudsman is limited to cases
cognizable by the Sandiganbayan.
2. Whether or not the clarificatory Resolution issued by the Supreme
Court dated February 22, 2001 in the Uy vs. Sandiganbayan case can
be made applicable to the Petitioner-Accused, without violating the
constitutional provision on ex-post facto laws and denial of the accused
to due process.13
Petitioner contends that from the time of the promulgation on August 9, 1999
of the Decision of the Court in Uy up to the time of issuance on March 20,
2001 of the Resolution of the Court in the same case, the prevailing
jurisprudence was that the Ombudsman had no prosecutorial powers over
cases cognizable by the RTC. As the investigation and prosecution against
petitioner was conducted by the Ombudsman beginning April 26, 2000, then
the August 9, 1999 Decision in Uy was applicable, notwithstanding that the
said decision was set aside in the March 20, 2001 Resolution of the Court in
said case. Hence, the Information that was filed against petitioner was void for
at that time the Ombudsman had no investigatory and prosecutorial powers
over the case.
The petition lacks merit.
The petition calls to mind Office of the Ombudsman v. Enoc, 14 wherein
accused Ruben Enoc, et al. invoked the August 9, 1999 Decision of the Court
in Uy15 in a motion to dismiss the 11 counts of malversation that were filed
against them by the Ombudsman before the RTC. The RTC granted the
motion but upon petition filed by the Ombudsman, the Court reversed the
RTC and held:
In turn, petitioner filed a Manifestation invoking the very same resolution
promulgated on March 20, 2001 in Uy v. Sandiganbayan reconsidering the
ruling that the prosecutory power of the Ombudsman extended only to cases
cognizable by the Sandiganbayan.
Indeed, this Court has reconsidered the said ruling and held that the
Ombudsman has powers to prosecute not only graft cases within the
jurisdiction of the Sandiganbayan but also those cognizable by the regular
courts. It held:
The power to investigate and to prosecute granted by law to the Ombudsman
is plenary and unqualified. It pertains to any act or omission of any public
officer or employee when such act or omission appears to be illegal, unjust,
improper or inefficient. The law does not make a distinction between cases
cognizable by the Sandiganbayan and those cognizable by regular courts. It
has been held that the clause "any illegal act or omission of any public official"
is broad enough to embrace any crime committed by a public officer or
employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan,
particularly in Section 15(1) giving the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan, and Section 11(4) granting the
Special Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the Sandiganbayan, should
not be construed as confining the scope of the investigatory and prosecutory
power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction
as authorizing the Ombudsman "to take over, at any stage, from any
investigatory agency of the government, the investigation of such cases." The
grant of this authority does not necessarily imply the exclusion from its
jurisdiction of cases involving public officers and employees cognizable by
other courts. The exercise by the Ombudsman of his primary jurisdiction over
cases cognizable by the Sandiganbayan is not incompatible with the
discharge of his duty to investigate and prosecute other offenses committed
by public officers and employees. Indeed, it must be stressed that the powers
granted by the legislature to the Ombudsman are very broad and encompass
all kinds of malfeasance, misfeasance and non-feasance committed by public
officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be
equated with the limited authority of the Special Prosecutor under Section 11
of RA 6770. The Office of the Special Prosecutor is merely a component of
the Office of the Ombudsman and may only act under the supervision and
control and upon authority of the Ombudsman. Its power to conduct
preliminary investigation and to prosecute is limited to criminal cases within
the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend
to confine the investigatory and prosecutory power of the Ombudsman to
these types of cases. The Ombudsman is mandated by law to act on all
complaints against officers and employees of the government and to enforce
their administrative, civil and criminal liability in every case where the
evidence warrants. To carry out this duty, the law allows him to utilize the
personnel of his office and/or designate any fiscal, state prosecutor or lawyer
in the government service to act as special investigator or prosecutor to assist
in the investigation and prosecution of certain cases. Those designated or
deputized to assist him work under his supervision and control. The law
likewise allows him to direct the Special prosecutor to prosecute cases
outside the Sandiganbayan’s jurisdiction in accordance with Section 11(4c) of
RA 6770.
We, therefore, hold that the Ombudsman has authority to investigate and
prosecute Criminal Case Nos. 374(97) to 385(97) against respondents in the
RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not
exclusive and is shared by him with the regular prosecutors.
WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court,
branch 19 of Digos, Davao del Sur is SET ASIDE and Criminal Case Nos.
374(97) to 385(97) are hereby REINSTATED and the Regional Trial Court is
ORDERED to try and decide the same. (Emphasis supplied)
Similarly relevant is the case of Office of Ombudsman v. Hon. Breva, 16 in
which, citing the August 9, 1999 Decision in Uy, the RTC dismissed a criminal
complaint that was filed before it by the Ombudsman. The Court reversed the
RTC, for, "given the Court’s Uy ruling under its March 20, 2001 Resolution,
the trial court’s assailed Orders x x x are, in hindsight, without legal support
and must, therefore, be set aside."
It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the
Ombudsman has prosecutorial powers in cases cognizable by the RTC,
extends even to criminal information filed or pending at the time when its
August 9, 1999 Decision was the operative ruling on the issue.
Petitioner would argue, however, that the March 20, 2001 Resolution
in Uy cannot have retroactive effect, for otherwise it would amount to "an ex-
post facto law, which is constitutionally proscribed." 17
Petitioner is grasping at straws.
A judicial interpretation of a statute, such as the Ombudsman Act, constitutes
part of that law as of the date of its original passage. Such interpretation does
not create a new law but construes a pre-existing one; it merely casts light
upon the contemporaneous legislative intent of that law. 18 Hence, the March
20, 2001 Resolution of the Court in Uy interpreting the Ombudsman Act is
deemed part of the law as of the date of its effectivity on December 7, 1989.
Where a judicial interpretation declares a law unconstitutional or abandons a
doctrinal interpretation of such law, the Court, recognizing that acts may have
been performed under the impression of the constitutionality of the law or the
validity of its interpretation, has consistently held that such operative fact
cannot be undone by the mere subsequent declaration of the nullity of the law
or its interpretation; thus, the declaration can only have a prospective
application.19 But where no law is invalidated nor doctrine abandoned, a
judicial interpretation of the law should be deemed incorporated at the
moment of its legislation.20
In the present case, the March 20, 2001 Resolution in Uy made no
declaration of unconstitutionality of any law nor did it vacate a doctrine long
held by the Court and relied upon by the public. Rather, it set aside an
erroneous pubescent interpretation of the Ombudsman Act as expressed in
the August 9, 1999 Decision in the same case. Its effect has therefore been
held by the Court to reach back to validate investigatory and prosecutorial
processes conducted by the Ombudsman, such as the filing of the Information
against petitioner.
With the foregoing disquisition, the second issue is rendered moot and
academic.
WHEREFORE, the petition is DISMISSED for lack of merit.
No costs.
SO ORDERED.
Case no. 4:
G.R. No. 176478             February 4, 2008
LORNA A. MEDINA, petitioner,
vs.
COMMISSION ON AUDIT (COA), represented by the Audit Team of
EUFROCINIA MAWAK, SUSAN PALLERNA, and MA. DOLORES
TEPORA, respondents.
DECISION
TINGA, J.:
While highlighting the interplay between the powers of two constitutional
offices, one mandated as the government monitor of public fund expenditures
and the other as the sentinel against graft and corruption in government, this
case resolves some questions about the extent of their powers.
This is a petition for review on certiorari1 under Rule 45 of the 1997 Rules of
Civil Procedure seeking the reversal of the Decision 2 and Resolution3 of the
Court of Appeals in CA-G.R. SP No. 89539. The Court of Appeals' decision
affirmed the two joint orders issued by the Office of the Deputy Ombudsman
for Luzon finding herein petitioner Lorna A. Medina guilty of grave misconduct
and dishonesty. The Resolution of the same court denied petitioner's motion
for reconsideration of the said decision.
The instant petition originated from the audit conducted by respondent
Commission on Audit (COA) on the cash and accounts handled by petitioner
in her official capacity as Municipal Treasurer of General Mariano Alvarez,
Cavite. In the Joint Affidavit4 executed by herein respondents Eufrocinia M.
Mawak, head of the audit team, and Susana L. Pallerna, Ma. Dolores C.
Tepora and a certain Nelson T. Alvarez, who were all state auditors of the
Provincial Auditor's Office of Cavite, they all stated that they had examined
petitioner's financial records covering 19 August 1999 to 26 September 2000
and discovered a total cash shortage in the aggregate amount
of P4,080,631.36. They thus directed petitioner to immediately restitute the
shortage within 72 hours from receipt of the demand letter but petitioner
allegedly failed to comply. The state auditors submitted a report to the
Provincial Auditor's Office and recommended the relief of petitioner from her
post as municipal treasurer and the filing of criminal charges against her.
COA, represented by the aforementioned state auditors, filed an
administrative case docketed as OMB-L-A-04-0361-F before the Office of the
Deputy Ombudsman for Luzon, charging petitioner with grave misconduct and
dishonesty. As directed, petitioner filed a Counter-Affidavit 5 and a Position
Paper6 mainly raising the following defenses: (1) the audit team was not
independent and competent; (2) the computation of her accountabilities was
overstated and erroneous; (3) the audit team failed to verify documents such
as bank reconciliation statements, general ledgers and cashbooks presented
during the cash count; (4) the documents in support of the audit report were
not signed, hence, were self-serving; (5) the cash shortage in the amount
of P379,646.51 under the SEF and Trust Fund as well as the disallowed
amount of P585,803.37 had no basis as the same pertained to a previous
audit and, thus, should have been excluded from the computation of the total
shortage; (6) the cash items amounting to P883,952.91 in the form of
reimbursement expense receipts should not have been disallowed because
they were actually received by individual payees; (7) petitioner's cash on hand
accountability was overstated because a collection was not immediately
recorded; and (8) the audit team erroneously credited petitioner's accounts to
another cashier.
In a Decision7 dated 8 November 2004, Deputy Ombudsman Victor C.
Fernandez approved the recommendation of the Graft Investigation and
Prosecution Officer to dismiss petitioner from service based on the existence
of substantial evidence of a discrepancy in petitioner's account
totaling P4,080,631.36. The said decision noted petitioner's supposed failure
to file a counter-affidavit and position paper despite due notice.
On 29 November 2004, petitioner filed an urgent motion 8 stating that she
complied with the directive to file a counter-affidavit and position paper and
praying that the defenses therein be considered in reversing the 8 November
2004 decision. The motion was treated as a motion for reconsideration of the
said decision.
On 31 January 2005, Deputy Ombudsman Fernandez issued the first assailed
Joint Order9 denying petitioner's urgent motion. Although the order
acknowledged the erroneous statement in the 8 November 2004 Decision
stating that petitioner failed to submit a counter-affidavit, nevertheless, it
affirmed the Resolution and Decision both dated 8 November 2004. Deputy
Ombudsman Fernandez ruled that petitioner's Counter-Affidavit and Position
Paper did not present exculpatory arguments that would negate the allegation
of discrepancy on petitioner's accounts. He also held that petitioner's
concerns relating to the conduct of the audit should have been raised at the
time of the audit or immediately thereafter, and that petitioner's failure to
produce the amount of cash shortage despite demand created a presumption
that she appropriated public funds under her custody for her own personal
use.10
Petitioner sought reconsideration11 on grounds of newly discovered and
material evidence and grave errors of fact and/or law prejudicial to her own
interest. The purported newly discovered evidence consisted of petitioner's
request for reconsideration of the audit report filed and still pending before the
office of the audit team head, herein respondent Mawak, and letters sent by
petitioner's counsel to the provincial auditor of Cavite questioning the audit
and requesting a re-audit of petitioner's accounts.
In the second assailed Joint Order dated 22 March 2005, 12 Deputy
Ombudsman Fernandez denied petitioner's motion for reconsideration. He
reiterated that petitioner's allegations as regards the incompetence of the
audit team and the errors in the audit report were matters which may be
properly ventilated during trial. He explained that petitioner failed to produce
the missing funds despite notice thereof creating a presumption that the same
were appropriated for personal use and for the purpose of preliminary
investigation, such findings warranted the filing of criminal charges against
petitioner. The deputy ombudsman held that petitioner's belated request for
re-audit could not be considered newly discovered evidence and denied the
request for a formal investigation on the ground that petitioner was afforded
due process when she filed her counter-affidavit and position paper. 13
Petitioner elevated the matter to the Court of Appeals via a Petition for
Review14 questioning the denial of her request for a formal investigation, the
penalty of dismissal, and the sufficiency of the evidence against her.
The Court of Appeals dismissed the petition in the assailed Decision dated 23
October 2006.15 It held that petitioner was not entitled to a formal investigation
and it affirmed the deputy ombudsman's factual finding that petitioner was
guilty of grave misconduct and dishonesty. The appellate court also denied
petitioner's motion for reconsideration in a Resolution dated 30 January 2007.
Hence, the instant petition16 seeking the reversal of the Court of Appeals'
decision on the following grounds: (1) the Court of Appeals failed to order a
formal reinvestigation, to reopen and review the records of the administrative
case, to consider newly discovered evidence attached to petitioner's motion
for reconsideration of the deputy ombudsman's Decision and to consider
material allegations in the motion for reconsideration of the assailed decision;
(2) petitioner was able to overcome the presumption that she appropriated the
missing funds for personal use; (3) the filing of the administrative case was
baseless; and (4) the penalty of dismissal was unwarranted.
The instant petition reiterates the issues brought up before the Court of
Appeals, namely: whether petitioner was deprived of her right to due process,
whether the penalty of dismissal is proper and whether petitioner's guilt for
grave misconduct and dishonesty is supported by substantial evidence.
Invoking her right to due process, petitioner, on one hand, insists that she is
entitled to a formal investigation, citing the Administrative Code of 1987, Book
V, Title I, Subtitle A, Section 48 (2)17 and (3).18 On the other hand, in support
of its argument that the propriety of conducting a formal investigation rests on
the sound discretion of the hearing officer, respondent COA, through the
Office of the Solicitor General (OSG), relies on Administrative Order No. 07,
as amended by Administrative Order No. 17, Rule III, Section 5, 19 governing
the procedure in administrative cases filed before the Office of the
Ombudsman.
The validity of Administrative Order No. 07, Rule III, Section 5 is not in
dispute. However, petitioner argues that said provision is inferior to the
provision in the Administrative Code which entitles the respondent to a formal
investigation if he so desires.
Petitioner's theory is erroneous.
Administrative Order No. 07, as amended by Administrative Order No. 17,
particularly governs the procedure in administrative proceedings before the
Office of the Ombudsman. The Rules of Procedure of the Office of the
Ombudsman was issued pursuant to the authority vested in the Office of the
Ombudsman under Republic Act No. 6770, otherwise known as "The
Ombudsman Act of 1989." When an administrative agency promulgates rules
and regulations, it "makes" a new law with the force and effect of a valid law.
Rules and regulations when promulgated in pursuance of the procedure or
authority conferred upon the administrative agency by law, partake of the
nature of a statute.20
On the other hand, the provisions in the Administrative Code cited by
petitioner in support of her theory that she is entitled to a formal investigation
apply only to administrative cases filed before the Civil Service Commission
(CSC). In particular, Section 48(2) and Section 48(3) are subsumed under
Subtitle A of Title I, which pertains to the CSC and to the procedure of
administrative cases filed before the CSC. The administrative complaint
against petitioner was filed before the Office of the Ombudsman, suggesting
that a different set of procedural rules govern. And rightly so, the Deputy
Ombudsman applied the provisions of Rules of Procedure of the Office of the
Ombudsman in ruling that the prerogative to elect a formal investigation
pertains to the hearing officer and not to petitioner.
On various occasions,21 the Court has ruled on the primacy of special laws
and of their implementing regulations over the Administrative Code of 1987 in
settling controversies specifically subject of these special laws. For instance,
in Hon. Joson v. Exec. Sec. Torres,22 the Court held that the Local
Government Code of 1991, the Rules and Regulations Implementing the
Local Government Code of 1991, and Administrative Order No. 23 (A.O. No.
23)23 govern administrative disciplinary proceedings against elective local
officials, whereas the Rules of Court and the Administrative Code of 1987
apply in a suppletory character to all matters not provided in A.O. No.
23.24 The aforesaid ruling is based on the principle of statutory construction
that where there are two statutes applicable to a particular case, that which is
specially intended for the said case must prevail. 25
More significantly, in Lapid v. Court of Appeals,26 the Court expressly upheld
the applicability of The Ombudsman Act of 1989 and the implementing rules
and regulations thereof to the exclusion of the Local Government Code and
the Administrative Code of 1989 on the issue of the execution of the
Ombudsman's decision pending appeal. The Court noted that petitioner
therein was charged before the Office of the Ombudsman and accordingly,
The Ombudsman Act of 1989 should apply exclusively. The Court explained,
thus:
There is no basis in law for the proposition that the provisions of the
Administrative Code of 1987 and the Local Government Code on
execution pending review should be applied suppletorily to the
provisions of the Ombudsman Act as there is nothing in the
Ombudsman Act which provides for such suppletory application. xxx
xxx xxx
And while in one respect, the Ombudsman Law, the Administrative
Code of 1987 and the Local Government Code are in pari
materia insofar as the three laws relate or deal with public officers, the
similarity ends there. It is a principle in statutory construction that
where there are two statutes that apply to a particular case, that which
was specially designed for the said case must prevail over the other. In
the instant case, the acts attributed to petitioner could have been the
subject of administrative disciplinary proceedings before the Office of
the President under the Local Government Code or before the Office of
the Ombudsman under the Ombudsman Act. Considering however,
that petitioner was charged under the Ombudsman Act, it is this law
alone which should govern his case.27
Thus, as between the Administrative Code of 1987 and Administrative Order
No. 07, as amended, issued by the Office of the Ombudsman, the latter
governs in this case which involves an administrative complaint filed with the
Office of the Ombudsman and which raises the question of whether petitioner
is entitled to a formal investigation as a matter of right.
Even assuming the Administrative Code is applicable, still there is a
formidable hindrance to petitioner's prayer for a formal investigation. The
records show that petitioner sought a reinvestigation only as an afterthought,
that is, after the deputy ombudsman had already rendered a decision on the
administrative complaint. The reinvestigation should have been requested at
the first opportunity but definitely before the rendition of a decision.
As correctly pointed out by the OSG, the denial of petitioner's request for a
formal investigation is not tantamount to a denial of her right to due process.
Petitioner was required to file a counter-affidavit and position paper and later
on, was given a chance to file two motions for reconsideration of the decision
of the deputy ombudsman. The essence of due process in administrative
proceedings is the opportunity to explain one's side or seek a reconsideration
of the action or ruling complained of. As long as the parties are given the
opportunity to be heard before judgment is rendered, the demands of due
process are sufficiently met.28
Petitioner's assertion that the Court of Appeals refused to reopen and review
the case and ignored material issues and arguments in her motion for
reconsideration of the 23 October 2006 Decision in violation of her right to
due process, is quite hollow.
The appellate court disposed of petitioner's contention that she was able to
controvert the accusations against her in this wise:
Regarding the second, third and fourth assigned errors, We judiciously
believe that the issues raised therein are essentially factual in nature.
The rule is that the findings of fact in administrative decisions must be
respected as long as they are supported by substantial evidence, even
if not overwhelming or preponderant. It is not for the reviewing court to
weight the conflicting evidence, determine the credibility of the
witnesses or otherwise substitute its own judgment for that of the
administrative agency on the sufficiency of evidence. It has been
 consistently held that substantial evidence is all that is needed to
support an administrative finding of fact which means such relevant
evidence as a reasonable mind might accept to support a conclusion. 29
Nothing prevents the Court of Appeals from adopting the factual findings and
conclusion of the deputy ombudsman on the ground that the findings and
conclusions were based on substantial evidence. Well-settled is the rule that
the findings of fact of administrative bodies, if based on substantial evidence,
are controlling on the reviewing authority. It is settled that it is not for the
appellate court to substitute its own judgment for that of the administrative
agency on the sufficiency of the evidence and the credibility of the witnesses.
Administrative decisions on matters within their jurisdiction are entitled to
respect and can only be set aside on proof of grave abuse of discretion, fraud
or error of law.30 Guided by this principle, the appellate court correctly affirmed
the finding of guilt for grave misconduct and dishonesty.
Unfazed, petitioner now asks this Court to once again review the factual
findings and conclusions of the Deputy Ombudsman which had already been
affirmed by the Court of Appeals. Whether the finding of petitioner's guilt for
grave misconduct and dishonesty is supported by substantial evidence,
suffice it to say these are factual issues calling for a review of the records of
the case. Clear and unmistakable is the rule that the Supreme Court is not a
trier of facts. Just as well entrenched is the doctrine that pure issues of fact
may not be the proper subject of appeal by certiorari under Rule 45 of the
Revised Rules of Court as this mode of appeal is generally confined to
questions of law. Only questions of law, not questions of fact, may be raised
before the Supreme Court in a petition for review under Rule 45. This Court
cannot be tasked to go over the proofs presented by the petitioners in the
lower courts and analyze, assess and weigh them to ascertain if the court a
quo and the appellate court were correct in their appreciation of the
evidence.31
Anyhow, the Court adopts the following findings of the Court of Appeals which
are borne out by the records of the case:
x x x It is a fact that an examination was conducted on the cash and
accounts of respondent and that a shortage was found. While the latter
argues that the auditors did not observe the proper procedure in
conducting an examination and as a consequence of which, she was
not able to justify the alleged shortage, we take note that the latter was
given the opportunity to make such explanation when the auditors sent
her a demand letter.32
On the penalty of dismissal which petitioner claims is too harsh, petitioner
argues that the mitigating circumstances of this being her first offense and of
the unreasonable length of time in filing the administrative case should be
considered in her favor.
Jurisprudence is replete with cases declaring that a grave offense cannot be
mitigated by the fact that the accused is a first time offender or by the length
of service of the accused. In Civil Service Commission v. Cortez,33 the Court
held as follows:
The gravity of the offense committed is also the reason why we cannot
consider the "first offense" circumstance invoked by respondent. In
several cases, we imposed the heavier penalty of dismissal or a fine of
more than P20,000.00, considering the gravity of the offense
committed, even if the offense charged was respondent's first offense.
Thus, in the present case, even though the offense respondent was
found guilty of was her first offense, the gravity thereof outweighs the
fact that it was her first offense.34
Also, in Concerned Employees v. Nuestro,35 a court employee charged with
and found guilty of dishonesty for falsification was meted the penalty of
dismissal notwithstanding the length of her service in view of the gravity of the
offense charged.
To end, it must be stressed that dishonesty and grave misconduct have
always been and should remain anathema in the civil service. They inevitably
reflect on the fitness of a civil servant to continue in office. When an officer or
employee is disciplined, the object sought is not the punishment of such
officer or employee but the improvement of the public service and the
preservation of the public's faith and confidence in the government. 36
WHEREFORE, the instant petition for review on certiorari is DENIED. The
Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 89539
are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Azcuna, Chico-Nazario*, Velasco,
Jr., Nachura, Reyes, Leonardo-de Castro, JJ., concur.
Case no. 5:
G.R. No. 164679               July 27, 2011
OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
ULDARICO P. ANDUTAN, JR., Respondent.
 DECISION
BRION, J.:
Through a petition for review on certiorari, 1 the petitioner Office of the
Ombudsman (Ombudsman) seeks the reversal of the decision 2 of the Court of
Appeals (CA), dated July 28, 2004, in "Uldarico P. Andutan, Jr. v. Office of the
Ombudsman and Fact Finding and Intelligence Bureau (FFIB), etc.," docketed
as CA-G.R. SP No. 68893. The assailed decision annulled and set aside the
decision of the Ombudsman dated July 30, 2001, 3 finding Uldarico P.
Andutan, Jr. guilty of Gross Neglect of Duty.
THE FACTUAL ANTECEDENTS
Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit
and Duty Drawback Center of the Department of Finance (DOF). On June 30,
1998, then Executive Secretary Ronaldo Zamora issued a Memorandum
directing all non-career officials or those occupying political positions to
vacate their positions effective July 1, 1998. 4 On July 1, 1998, pursuant to the
Memorandum, Andutan resigned from the DOF. 5
On September 1, 1999, Andutan, together with Antonio P. Belicena, former
Undersecretary, DOF; Rowena P. Malonzo, Tax Specialist I, DOF; Benjamin
O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing
Corporation (Steel Asia); Augustus S. Lapid, Vice-President, Steel Asia;
Antonio M. Lorenzana, President and Chief Operating Officer, Steel Asia; and
Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was
criminally charged by the Fact Finding and Intelligence Bureau (FFIB) of the
Ombudsman with Estafa through Falsification of Public Documents, and
violations of Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act. 6 As government
employees, Andutan, Belicena and Malonzo were likewise administratively
charged of Grave Misconduct, Dishonesty, Falsification of Official Documents
and Conduct Prejudicial to the Best Interest of the Service. 7
The criminal and administrative charges arose from anomalies in the illegal
transfer of Tax Credit Certificates (TCCs) to Steel Asia, among others. 8
During the investigation, the FFIB found that Steel Asia fraudulently obtained
TCCs worth Two Hundred Forty-Two Million, Four Hundred Thirty-Three
Thousand, Five Hundred Thirty-Four Pesos (₱242,433,534.00). 9 The FFIB
concluded that Belicena, Malonzo and Andutan – in their respective
capacities – irregularly approved the "issuance of the TCCs to several
garment/textile companies and allowing their subsequent illegal transfer" to
Steel Asia.10
On November 11, 1999, the Ombudsman ordered the respondents therein
(respondents) to submit their counter-affidavits. Only Malonzo complied with
the order, prompting the Ombudsman to set a Preliminary Conference on
March 13, 2000.
Upon the respondents’ failure to appear at the March 20, 2000 hearing, the
Ombudsman deemed the case submitted for resolution.
On July 30, 2001, the Ombudsman found the respondents guilty of Gross
Neglect of Duty.11 Having been separated from the service, Andutan was
imposed the penalty of forfeiture of all leaves, retirement and other benefits
and privileges, and perpetual disqualification from reinstatement and/or
reemployment in any branch or instrumentality of the government, including
government owned and controlled agencies or corporations. 12
After failing to obtain a reconsideration of the decision, 13 Andutan filed a
petition for review on certiorari before the CA.
On July 28, 2004,14 the CA annulled and set aside the decision of the
Ombudsman, ruling that the latter "should not have considered the
administrative complaints" because: first, Section 20 of R.A. 6770 provides
that the Ombudsman "may not conduct the necessary investigation of any
administrative act or omission complained of if it believes that x x x [t]he
complaint was filed after one year from the occurrence of the act or omission
complained of";15 and second, the administrative case was filed after
Andutan’s forced resignation.16
THE PETITIONER’S ARGUMENTS
In this petition for review on certiorari, the Ombudsman asks the Court to
overturn the decision of the CA. It submits, first, that contrary to the CA’s
findings, administrative offenses do not prescribe after one year from their
commission,17 and second, that in cases of "capital" administrative offenses,
resignation or optional retirement cannot render administrative proceedings
moot and academic, since accessory penalties such as perpetual
disqualification and the forfeiture of retirement benefits may still be imposed. 18
The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory.
Consistent with existing jurisprudence, the use of the word "may" indicates
that Section 20 is merely directory or permissive.19 Thus, it is not ministerial
upon it to dismiss the administrative complaint, as long as any of the
circumstances under Section 20 is present. 20 In any case, the Ombudsman
urges the Court to examine its mandate under Section 13, Article XI of the
1987 Constitution, and hold that an imposition of a one (1) year prescriptive
period on the filing of cases unconstitutionally restricts its mandate. 21
Further, the Ombudsman submits that Andutan’s resignation from office does
not render moot the administrative proceedings lodged against him, even
after his resignation. Relying on Section VI(1) of Civil Service Commission
(CSC) Memorandum Circular No. 38,22 the Ombudsman argues that "[a]s long
as the breach of conduct was committed while the public official or employee
was still in the service x x x a public servant’s resignation is not a bar to his
administrative investigation, prosecution and adjudication." 23 It is irrelevant
that Andutan had already resigned from office when the administrative case
was filed since he was charged for "acts performed in office which are inimical
to the service and prejudicial to the interests of litigants and the general
public."24 Furthermore, even if Andutan had already resigned, there is a need
to "determine whether or not there remains penalties capable of imposition,
like bar from reentering the (sic) public service and forfeiture of
benefits."25 Finally, the Ombudsman reiterates that its findings against
Andutan are supported by substantial evidence.
THE RESPONDENT’S ARGUMENTS
Andutan raises three (3) counterarguments to the Ombudsman’s petition.
First, Andutan submits that the CA did not consider Section 20(5) of R.A.
6770 as a prescriptive period; rather, the CA merely held that the
Ombudsman should not have considered the administrative complaint.
According to Andutan, Section 20(5) "does not purport to impose a
prescriptive period x x x but simply prohibits the Office of the Ombudsman
from conducting an investigation where the complaint [was] filed more than
one (1) year from the occurrence of the act or omission complained
of."26 Andutan believes that the Ombudsman should have referred the
complaint to another government agency. 27 Further, Andutan disagrees with
the Ombudsman’s interpretation of Section 20(5). Andutan suggests that the
phrase "may not conduct the necessary investigation" means that the
Ombudsman is prohibited to act on cases that fall under those enumerated in
Section 20(5).28
Second, Andutan reiterates that the administrative case against him was moot
because he was no longer in the public service at the time the case was
commenced.29 According to Andutan, Atty. Perez v. Judge Abiera 30 and
similar cases cited by the Ombudsman do not apply since the administrative
investigations against the respondents in those cases were commenced prior
to their resignation. Here, Andutan urges the Court to rule otherwise since
unlike the cases cited, he had already resigned before the administrative case
was initiated. He further notes that his resignation from office cannot be
characterized as "preemptive, i.e. made under an atmosphere of fear for the
imminence of formal charges"31 because it was done pursuant to the
Memorandum issued by then Executive Secretary Ronaldo Zamora.
Having established the propriety of his resignation, Andutan asks the Court to
uphold the mootness of the administrative case against him since the cardinal
issue in administrative cases is the "officer’s fitness to remain in office, the
principal penalty imposable being either suspension or removal." 32 The
Ombudsman’s opinion - that accessory penalties may still be imposed - is
untenable since it is a fundamental legal principle that "accessory follows the
principal, and the former cannot exist independently of the latter." 33
Third, the Ombudsman’s findings were void because procedural and
substantive due process were not observed. Likewise, Andutan submits that
the Ombudsman’s findings lacked legal and factual bases.
ISSUES
Based on the submissions made, we see the following as the issues for our
resolution:
I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from
conducting an administrative investigation a year after the act was
committed?
II. Does Andutan’s resignation render moot the administrative case
filed against him?
III. Assuming that the administrative case is not moot, are the
Ombudsman’s findings supported by substantial evidence?
THE COURT’S RULING
We rule to deny the petition.
The provisions of Section 20(5) are merely directory; the Ombudsman is not
prohibited from conducting an investigation a year after the supposed act was
committed.
The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary
has been settled by jurisprudence.34 In Office of the Ombudsman v. De
Sahagun,35 the Court, speaking through Justice Austria-Martinez, held:
[W]ell-entrenched is the rule that administrative offenses do not prescribe
[Concerned Taxpayer v. Doblada, Jr., A.M. No. P-99-1342, September 20,
2005, 470 SCRA 218; Melchor v. Gironella, G.R. No. 151138, February 16,
2005, 451 SCRA 476; Heck v. Judge Santos, 467 Phil. 798, 824
(2004); Floria v. Sunga, 420 Phil. 637, 648-649 (2001)]. Administrative
offenses by their very nature pertain to the character of public officers and
employees. In disciplining public officers and employees, the object sought is
not the punishment of the officer or employee but the improvement of the
public service and the preservation of the public’s faith and confidence in our
government [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451
SCRA 476, 481; Remolona v. Civil Service Commission, 414 Phil. 590, 601
(2001)].
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
SEC. 20. Exceptions. – The Office of the Ombudsman may not conduct the
necessary investigation of any administrative act or omission complained of if
it believes that:
xxxx
(5) The complaint was filed after one year from the occurrence of the act or
omission complained of. (Emphasis supplied)
proscribes the investigation of any administrative act or omission if the
complaint was filed after one year from the occurrence of the complained act
or omission.
In Melchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA
476], the Court held that the period stated in Section 20(5) of R.A. No. 6770
does not refer to the prescription of the offense but to the discretion given to
the Ombudsman on whether it would investigate a particular administrative
offense. The use of the word "may" in the provision is construed as
permissive and operating to confer discretion [Melchor v. Gironella, G.R. No.
151138, February 16, 2005, 451 SCRA 476, 481; Jaramilla v. Comelec, 460
Phil. 507, 514 (2003)]. Where the words of a statute are clear, plain and free
from ambiguity, they must be given their literal meaning and applied without
attempted interpretation [Melchor v. Gironella, G.R. No. 151138, February 16,
2005, 451 SCRA 476, 481; National Federation of Labor v. National Labor
Relations Commission, 383 Phil. 910, 918 (2000)].
In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA
50], the Court interpreted Section 20 (5) of R.A. No. 6770 in this manner:
Petitioner argues that based on the abovementioned provision [Section 20(5)
of RA 6770)], respondent's complaint is barred by prescription considering
that it was filed more than one year after the alleged commission of the acts
complained of.
Petitioner's argument is without merit.
The use of the word "may" clearly shows that it is directory in nature and not
mandatory as petitioner contends. When used in a statute, it is permissive
only and operates to confer discretion; while the word "shall" is imperative,
operating to impose a duty which may be enforced. Applying Section 20(5),
therefore, it is discretionary upon the Ombudsman whether or not to
conduct an investigation on a complaint even if it was filed after one
year from the occurrence of the act or omission complained of. In fine,
the complaint is not barred by prescription. (Emphasis supplied)
The declaration of the CA in its assailed decision that while as a general rule
the word "may" is directory, the negative phrase "may not" is mandatory in
tenor; that a directory word, when qualified by the word "not," becomes
prohibitory and therefore becomes mandatory in character, is not plausible. It
is not supported by jurisprudence on statutory construction. [emphases and
underscoring supplied]
Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from
conducting an administrative investigation after the lapse of one year,
reckoned from the time the alleged act was committed. Without doubt, even if
the administrative case was filed beyond the one (1) year period stated in
Section 20(5), the Ombudsman was well within its discretion to conduct the
administrative investigation.
However, the crux of the present controversy is not on the issue of
prescription, but on the issue of the Ombudsman’s authority to institute an
administrative complaint against a government employee who had already
resigned. On this issue, we rule in Andutan’s favor.
Andutan’s resignation divests the Ombudsman of its right to institute an
administrative complaint against him.
Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770
from conducting the investigation, the Ombudsman can no longer institute an
administrative case against Andutan because the latter was not a public
servant at the time the case was filed.
The Ombudsman argued – in both the present petition and in the petition it
filed with the CA – that Andutan’s retirement from office does not render moot
any administrative case, as long as he is charged with an offense he
committed while in office. It is irrelevant, according to the Ombudsman, that
Andutan had already resigned prior to the filing of the administrative case
since the operative fact that determines its jurisdiction is the commission of an
offense while in the public service.
The Ombudsman relies on Section VI(1) of Civil Service Commission
Memorandum Circular No. 38 for this proposition, viz.:
Section VI.
1. x x x
An officer or employee under administrative investigation may be allowed to
resign pending decision of his case but it shall be without prejudice to the
continuation of the proceeding against him. It shall also be without prejudice
to the filing of any administrative, criminal case against him for any act
committed while still in the service. (emphasis and underscoring supplied)
The CA refused to give credence to this argument, holding that the provision
"refers to cases where the officers or employees were already charged before
they were allowed to resign or were separated from service." 36 In this case,
the CA noted that "the administrative cases were filed only after Andutan was
retired, hence the Ombudsman was already divested of jurisdiction and could
no longer prosecute the cases."37
Challenging the CA’s interpretation, the Ombudsman argues that the CA
"limited the scope of the cited Civil Service Memorandum Circular to the first
sentence."38 Further, according to the Ombudsman, "the court a quo ignored
the second statement in the said circular that contemplates a situation where
previous to the institution of the administrative investigation or charge, the
public official or employee subject of the investigation has resigned." 39
To recall, we have held in the past that a public official’s resignation does not
render moot an administrative case that was filed prior to the official’s
resignation. In Pagano v. Nazarro, Jr., 40 we held that:
In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July
2004, 434 SCRA 654, 658], this Court categorically ruled that the precipitate
resignation of a government employee charged with an offense punishable by
dismissal from the service does not render moot the administrative case
against him. Resignation is not a way out to evade administrative liability
when facing administrative sanction. The resignation of a public servant does
not preclude the finding of any administrative liability to which he or she shall
still be answerable [Baquerfo v. Sanchez, A.M. No. P-05-1974, 6 April 2005,
455 SCRA 13, 19-20]. [emphasis and underscoring supplied]
Likewise, in Baquerfo v. Sanchez,41 we held:
Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No.
P-04-1801, 2 April 2004, 427 SCRA 8] or retirement [Re: Complaint Filed by
Atty. Francis Allan A. Rubio on the Alleged Falsification of Public Documents
and Malversation of Public Funds, A.M. No. 2004-17-SC, 27 September
2004; Caja v. Nanquil, A.M. No. P-04-1885, 13 September 2004] neither
warrants the dismissal of the administrative complaint filed against him while
he was still in the service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348 Phil.
404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11 June 1975, 64
SCRA 302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22 April 1977, 76
SCRA 301] nor does it render said administrative case moot and academic
[Sy Bang v. Mendez, 350 Phil. 524, 533 (1998)]. The jurisdiction that was this
Court’s at the time of the filing of the administrative complaint was not lost by
the mere fact that the respondent public official had ceased in office during
the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21
(1998)]. Respondent’s resignation does not preclude the finding of any
administrative liability to which he shall still be answerable [OCA v.
Fernandez, A.M. No. MTJ-03-1511, 20 August 2004]. [emphases and
underscoring supplied)
However, the facts of those cases are not entirely applicable to the present
case. In the above-cited cases, the Court found that the public officials –
subject of the administrative cases – resigned, either to prevent the
continuation of a case already filed42 or to pre-empt the imminent filing of
one.43 Here, neither situation obtains.
The Ombudsman’s general assertion that Andutan pre-empted the filing of a
case against him by resigning, since he "knew for certain that the
investigative and disciplinary arms of the State would eventually reach
him"44 is unfounded. First, Andutan’s resignation was neither his choice nor of
his own doing; he was forced to resign. Second, Andutan resigned from his
DOF post on July 1, 1998, while the administrative case was filed on
September 1, 1999, exactly one (1) year and two (2) months after his
resignation. The Court struggles to find reason in the Ombudsman’s sweeping
assertions in light of these facts.
What is clear from the records is that Andutan was forced to resign more than
a year before the Ombudsman filed the administrative case against him.
Additionally, even if we were to accept the Ombudsman’s position that
Andutan foresaw the filing of the case against him, his forced resignation
negates the claim that he tried to prevent the filing of the administrative case.
Having established the inapplicability of prevailing jurisprudence, we turn our
attention to the provisions of Section VI of CSC Memorandum Circular No. 38.
We disagree with the Ombudsman’s interpretation that "[a]s long as the
breach of conduct was committed while the public official or employee was
still in the service x x x a public servant’s resignation is not a bar to his
administrative investigation, prosecution and adjudication." 45 If we agree with
this interpretation, any official – even if he has been separated from the
service for a long time – may still be subject to the disciplinary authority of his
superiors, ad infinitum. We believe that this interpretation is inconsistent with
the principal motivation of the law – which is to improve public service and to
preserve the public’s faith and confidence in the government, and not the
punishment of the public official concerned.46 Likewise, if the act committed by
the public official is indeed inimical to the interests of the State, other legal
mechanisms are available to redress the same.
The possibility of imposing
accessory penalties does not
negate the Ombudsman’s lack
of jurisdiction.
The Ombudsman suggests that although the issue of Andutan’s removal from
the service is moot, there is an "irresistible justification" to "determine whether
or not there remains penalties capable of imposition, like bar from re-entering
the public service and forfeiture of benefits." 47 Otherwise stated, since
accessory penalties may still be imposed against Andutan, the administrative
case itself is not moot and may proceed despite the inapplicability of the
principal penalty of removal from office.
We find several reasons that militate against this position.
First, although we have held that the resignation of an official does not render
an administrative case moot and academic because accessory penalties may
still be imposed, this holding must be read in its proper context. In Pagano v.
Nazarro, Jr.,48 indeed, we held:
A case becomes moot and academic only when there is no more actual
controversy between the parties or no useful purpose can be served in
passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128,
9 May 2005, 458 SCRA 301, 305]. The instant case is not moot and
academic, despite the petitioner’s separation from government service. Even
if the most severe of administrative sanctions - that of separation from service
- may no longer be imposed on the petitioner, there are other penalties which
may be imposed on her if she is later found guilty of administrative
offenses charged against her, namely, the disqualification to hold any
government office and the forfeiture of benefits.  [emphasis and underscoring
supplied]
Reading the quoted passage in a vacuum, one could be led to the conclusion
that the mere availability of accessory penalties justifies the continuation of an
administrative case. This is a misplaced reading of the case and its ruling.
Esther S. Pagano – who was serving as Cashier IV at the Office of the
Provincial Treasurer of Benguet – filed her certificate of candidacy for
councilor four days after the Provincial Treasurer directed her to explain why
no administrative case should be filed against her. The directive arose from
allegations that her accountabilities included a cash shortage of
₱1,424,289.99. She filed her certificate of candidacy under the pretext that
since she was deemed ipso facto resigned from office, she was no longer
under the administrative jurisdiction of her superiors. Thus, according to
Pagano, the administrative complaint had become moot.
We rejected Pagano’s position on the principal ground "that the precipitate
resignation of a government employee charged with an offense punishable by
dismissal from the service does not render moot the administrative case
against him. Resignation is not a way out to evade administrative liability
when facing administrative sanction."49 Our position that accessory penalties
are still imposable – thereby negating the mootness of the administrative
complaint – merely flows from the fact that Pagano pre-empted the filing of
the administrative case against her. It was neither intended to be a stand-
alone argument nor would it have justified the continuation of the
administrative complaint if Pagano’s filing of candidacy/resignation did not
reek of irregularities. Our factual findings in Pagano confirm this, viz.:
At the time petitioner filed her certificate of candidacy, petitioner was already
notified by the Provincial Treasurer that she needed to explain why no
administrative charge should be filed against her, after it discovered the cash
shortage of ₱1,424,289.99 in her accountabilities. Moreover, she had already
filed her answer. To all intents and purposes, the administrative proceedings
had already been commenced at the time she was considered separated from
service through her precipitate filing of her certificate of candidacy.
Petitioner’s bad faith was manifest when she filed it, fully knowing that
administrative proceedings were being instituted against her as part of the
procedural due process in laying the foundation for an administrative
case.50 (emphasis and underscoring supplied)1avvphil
Plainly, our justification for the continuation of the administrative case –
notwithstanding Pagano’s resignation – was her "bad faith" in filing the
certificate of candidacy, and not the availability of accessory penalties.
Second, we agree with the Ombudsman that "fitness to serve in public office x
x x is a question of transcendental [importance] 51" and that "preserving the
inviolability of public office" compels the state to prevent the "re-entry [to]
public service of persons who have x x x demonstrated their absolute lack of
fitness to hold public office."52 However, the State must perform this task
within the limits set by law, particularly, the limits of jurisdiction. As earlier
stated, under the Ombudsman’s theory, the administrative authorities may
exercise administrative jurisdiction over subordinates ad infinitum; thus, a
public official who has validly severed his ties with the civil service may still be
the subject of an administrative complaint up to his deathbed. This is contrary
to the law and the public policy behind it.
Lastly, the State is not without remedy against Andutan or any public official
who committed violations while in office, but had already resigned or retired
therefrom. Under the "threefold liability rule," the wrongful acts or omissions of
a public officer may give rise to civil, criminal and administrative
liability.53 Even if the Ombudsman may no longer file an administrative case
against a public official who has already resigned or retired, the Ombudsman
may still file criminal and civil cases to vindicate Andutan’s alleged
transgressions. In fact, here, the Ombudsman – through the FFIB – filed a
criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-
Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will
not only be meted out the penalty of imprisonment, but also the penalties of
perpetual disqualification from office, and confiscation or forfeiture of any
prohibited interest.54
Conclusion
Public office is a public trust. No precept of administrative law is more basic
than this statement of what assumption of public office involves. The stability
of our public institutions relies on the ability of our civil servants to serve their
constituencies well.
While we commend the Ombudsman’s resolve in pursuing the present case
for violations allegedly committed by Andutan, the Court is compelled to
uphold the law and dismiss the petition. Consistent with our holding that
Andutan is no longer the proper subject of an administrative complaint, we
find no reason to delve on the Ombudsman’s factual findings.
WHEREFORE, we DENY the Office of the Ombudsman’s petition for review
on certiorari, and AFFIRM the decision of the Court of Appeals in CA-G.R. SP
No. 68893, promulgated on July 28, 2004, which annulled and set aside the
July 30, 2001 decision of the Office of the Ombudsman, finding Uldarico P.
Andutan, Jr. guilty of Gross Neglect of Duty.
No pronouncement as to costs.
SO ORDERED.