Due Process: Administrative Cases

G.R. No. 117565

Lumiqued v. Exevea
Romero, J.

Summarized by Sophia Sy

Lumiqued was dismissed from service for dishonesty. He filed a MR alleging he

was denied of his constitutional right to counsel during hearing. Court denies the same
petition by his heirs, ruling that such right is afforded to an accused in a custodial
investigation and not to persons administratively liable.

IMPORTANT PEOPLE
Arsenio Lumiqued – petitioner, Regional Director of DAR-CAR
Apolonio Exevea – Chairman, Investigating Committee
Jeannette Obar-Zamudio – Regional cashier of DAR-CAR, private respondent

FACTS
1. Obar-Zamudio filed three complaints with the Board of Discipline of DAR
alleging that Lumiqued 1) committed malversation through falsification of
documents by padding gasoline receipts (93 counts); 2) violated COA rules
for having P116,000 worth of unliquidated cash advances; and 3) committed
oppression and harassment in relieving her of her position without just cause
2. The case was referred to DOJ, which created an investigating committee led
by Exevea.
3. Lumiqued’s counter-affidavit: 1) receipts were merely turned over to him by
drivers; 2) presented a certification from DAR-CAR administrative officer that
he had no outstanding cash advances; 3) Zamudio’s dismissal was due to
prolonged absences
4. Committee hearings were conducted wherein Lumiqued was not assisted
by counsel.
5. At the second hearing date, Lumiqued was not able to attend as he suffered a
stroke.
6. Committee rendered a report finding Lumiqued guilty of gross dishonesty and
grave misconduct (with respect to all 3 complaints) and recommended his
dismissal from office.
7. The matter was forwarded to the Office of the President. Pres. Ramos issued
AO No. 52 finding Lumiqued liable for dishonesty in altering 15 gasoline
receipts and dismissing him from service, with forfeiture to his retirement and
other benefits.

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 8. Lumiqued’s petition for appeal to be reinstated was denied. He filed a second
MR alleging that he was denied his constitutional right to counsel during
hearing. He dies before the motion is resolved.
9. His heirs files petition herein praying for the reversal of the dismissal and for
the payment of retirement and other benefits, and backwages from time of
dismissal up to Lumiqued’s death.

ISSUE with HOLDING

1. Does due process clause encompass the right to be assisted by a counsel in
an administrative inquiry? NO.
 Petitioners: Committee failed to inform Lumiqued of his right to counsel
during the hearing. His right to counsel could not be waived unless the
waiver was in writing and in the presence of counsel. Committee
should have suspended the hearing and granted Lumiqued a
reasonable time within which to secure a counsel of his own or
appointed a counsel de officio.
 SC: Right to counsel, which cannot be waived unless the waiver is in
writing and in the presence of counsel, is a right afforded a suspect
or an accused during custodial investigation*.
 Lumiqued, however, was not accused of any crime. The
investigation conducted by the committee was for the purpose of
determining if he could be held administratively liable under the law.
The hearing was not part of a criminal prosecution.
 A party in an administrative inquiry may or may not be assisted
by counsel, irrespective of the nature of the charges and of the
respondents capacity to represent himself and no duty rests on such a
body to furnish the person being investigated with counsel.
 In an administrative proceeding, a respondent has the option of
engaging the services of counsel or not.**
 Excerpts from the transcript of the hearings show that the committee
was not remiss in reminding Lumiqued of his right to counsel and that
he was confident of his capacity and so opted to represent himself.
(See p.142-145 of case)
 The right to counsel is not indispensable to due process unless
required by the Constitution or the law.
 Also, the fact that the committee decided to wind up the proceedings
upon the non-attendance of Lumiqued in the second hearing did not
deprive him of due process, as evidenced by his appeal and
subsequent filing of motion for reconsideration. (opportunity to explain
one’s side)

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  The findings of the administrative agency were supported with
substantial evidence and must be respected. Dishonesty is penalized
by dismissal and carries with it forfeiture of benefits, thus petition must
fail.

DISPOSITIVE PORTION
WHEREFORE, the instant petition for certiorari and mandamus is hereby DISMISSED
and Administrative Order No. 52 of the Office of the President is AFFIRMED. Costs
against petitioners.

DOCTRINE
Right to counsel, which cannot be waived unless the waiver is in writing and in
the presence of counsel, is a right afforded a suspect or an accused during
custodial investigation, not in administrative cases.

RELEVANCE TO THE LESSON

In administrative proceedings, the essence of due process is simply the
opportunity to explain ones side. Right to counsel is not an indispensable right.

OTHER NOTES
*Art. III, Sec. 12 (1), 1987 Constitution.
Custodial investigation has been defined as x x x any questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way. It is only after the investigation ceases to
be a general inquiry into an unsolved crime and begins to focus on a particular suspect,
the suspect is taken into custody, and the police carries out a process of interrogations
that lends itself to eliciting incriminating statements that the rule (on the right of an
accused to be informed of his right to remain silent and to have competent and
independent counsel of his choice) begins to operate

**(Section 32, Article VII of Republic Act No. 2260 or Civil Service Act)
Sec. 31. Disciplinary Action -- No officer or employee in the civil service shall be
removed or suspended except for cause as provided by law and after due
process: Provided, That a transfer from one position to another without reduction
in rank or salary shall not be considered disciplinary when made in the interest of
public service: Provided, further, That no complaint against a civil service official
or employee shall be given due course unless the same is in writing and
subscribed and sworn to by complaint: And provided, finally, That the respondent
shall be entitled to a formal investigation if he so elects, in which case he shall
have the right to appear and defend himself at said investigation in person

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 or by counsel, to confront and cross-examine the witnesses against him, and to
have the attendance of witnesses and production of documents in his favor by
compulsory process of subpoena or subpoena duces tecum.

(Section 39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing
Book V of Executive Order No. 292 or Administrative Code of 1987)
Sec. 39. x x x
Either party may avail himself of the services of counsel and may require the
attendance of witnesses and the production of documentary evidence in his favor
through the compulsory process of subpoena or subpoena duces tecum. xxx.