EN BANC  

October 10, 2017

G.R. No. 229781

SENATOR LEILA M. DE LIMA, Petitioner 

vs.
HON. JUANITA GUERRERO, in her capacity as Presiding Judge, Regional Trial Court of
Muntinlupa City, Branch 204, PEOPLE OF THE PHILIPPINES, P/DIR. GEN. RONALD M. DELA
ROSA, in his capacity as Chief of the Philippine National Police, PSUPT. PHILIP GIL M.
PHILIPPS, in his capacity as Director, Headquarters Support Service, SUPT. ARNEL
JAMANDRON APUD, in his capacity as Chief, PNP Custodial Service Unit, and ALL PERSONS
ACTING UNDER THEIR CONTROL, SUPERVISION, INSTRUCTION OR DIRECTION IN
RELATION TO THE ORDERS THAT MAY BE ISSUED BY THE COURT, Respondents

D E C I S I O N

VELASCO, JR., J.:

For consideration is the Petition for Certiorari and Prohibition with Application for a Writ of
Preliminary Injunction, and Urgent Prayer for Temporary Restraining Order and Status Quo Ante
Order  under Rule 65 of the Rules of Court filed by petitioner Senator Leila De Lima. In it, petitioner
1

assails the following orders and warrant issued by respondent judge Hon. Juanita Guerrero of the
Regional Trial Court (RTC) of Muntinlupa City, Branch 204, in Criminal Case No. 17-165,
entitled "People vs. Leila De Lima, et al.:" (1) the Order dated February 23, 2017 finding probable
cause for the issuance of warrant of arrest against petitioner De Lima; (2) the Warrant of
Arrest against De Lima also dated February 23, 2017; (3) the Order dated February 24, 2017
committing the petitioner to the custody of the PNP Custodial Center; and finally, (4) the supposed
omission of the respondent judge to act on petitioner's Motion to Quash, through which she
questioned the jurisdiction of the RTC. 2

Antecedents

The facts are undisputed. The Senate and the House of Representatives conducted several inquiries
on the proliferation of dangerous drugs syndicated at the New Bilibid Prison (NBP), inviting inmates
who executed affidavits in support of their testimonies.  These legislative inquiries led to the filing of
3

the following complaints with the Department of Justice:

a) NPS No. XVI-INV-16J-00313, entitled "Volunteers against Crime and Corruption (VACC),

represented by Dante Jimenez vs. Senator Leila M. De Lima, et al.;"

b) NPS No. XVI-INV-16J-00315, entitled "Reynaldo Esmeralda and Ruel Lasala vs. Senator
Leila De Lima, et al.;"

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 c) NPS No. XVI-INV-16K-00331, entitled "Jaybee Nifio Sebastian, represented by his wife
Roxanne Sebastian, vs. Senator Leila M De Lima, et al.;"  and

d) NPS No. XVI-INV-16K-00336, entitled "National Bureau of Investigation (NBI) vs. Senator

Leila M. De Lima, et al. "4

Pursuant to DOJ Department Order No. 790, the four cases were consolidated and the DOJ Panel of
Prosecutors (DOJ Panel),  headed by Senior Assistant State Prosecutor Peter Ong, was directed to
5

conduct the requisite preliminary investigation. 6

The DOJ Panel conducted a preliminary hearing on December 2, 2016,  wherein the petitioner, through
7

her counsel, filed an Omnibus Motion to Immediately Endorse the Cases to the Office of the
Ombudsman and for the Inhibition of the Panel of Prosecutors and the Secretary of Justice
("Omnibus Motion").  In the main, the petitioner argued that the Office of the Ombudsman has the
8

exclusive authority and jurisdiction to hear the four complaints against her. Further, alleging evident
partiality on the part of the DOJ Panel, the petitioner contended that the DOJ prosecutors should
inhibit themselves and refer the complaints to the Office of the Ombudsman.

A hearing on the Omnibus Motion was conducted on December 9, 2016,  wherein the complainants,

9

YACC, Reynaldo Esmeralda (Esmeralda) and Ruel Lasala (Lasala), filed a Joint Comment/Opposition to
the Omnibus Motion.  10

On December 12, 2016, petitioner, in turn, interposed a Reply to the Joint Comment/Opposition  filed
by complainants VACC, Esmeralda and Lasala. In addition, petitioner submitted a Manifestation with
Motion to First Resolve Pending Incident and to Defer Further Proceedings.   11

During the hearing conducted on December 21, 2016, petitioner manifested that she has decided not
to submit her counter-affidavit citing the pendency of her two motions.  The DOJ Panel, however,
12

ruled that it will not entertain belatedly filed counter-affidavits, and declared all pending incidents
and the cases as submitted for resolution. Petitioner moved for but was denied reconsideration by the
DOJ Panel. 13

On January 13, 2017, petitioner filed before the Court of Appeals a Petition for Prohibition and
Certiorari assailing the jurisdiction of the DOJ Panel over the complaints against her. The petitions,
14

docketed as CA-G.R. No. 149097 and CA-G.R. No. SP No. 149385, are currently pending with the
Special 6th Division of the appellate court. Meanwhile, in the absence of a restraining order issued by
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the Court of Appeals, the DOJ Panel proceeded with the conduct of the preliminary investigation  and,
16

in its Joint Resolution dated February 14, 2017,  recommended the filing of Informations against
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petitioner De Lima. Accordingly, on February 17, 2017, three Informations were filed against

petitioner De Lima and several co-accused before the RTC ofMuntinlupa City. One of the Infonnations
was docketed as Criminal Case No. 17-165  and raffled off to Branch 204, presided by respondent
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judge. This Information charging petitioner for violation of Section 5 in relation to Section (jj),
Section 26(b), and Section 28 of Republic Act No. (RA) 9165, contained the following averments:

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That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and
within the jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the Secretary of
the Department of Justice, and accused Rafael Marcos Z. Rages, being then the Officer-in-Charge of
the Bureau of Corrections, by taking advantage of their public office, conspiring and confederating
with accused Ronnie P. Dayan, being then an employee of the Department of Justice detailed to De
Lima, all of them having moral ascendancy or influence over inmates in the New Bilibid Prison, did then
and there commit illegal drug trading, in the following manner: De Lima and Ragos, with the use of
their power, position, and authority, demand, solicit and extort money from the high profile inmates in
the New Bilibid Prison to support the senatorial bid of De Lima in the May 2016 election; by reason of
which, the inmates, not being lawfully authorized by law and through the use of mobile phones and
other electronic devices, did then and there willfully and unlawfully trade and traffic dangerous drugs,
and thereafter give and deliver to De Lima, through Ragos and Dayan, the proceeds of illegal drug
trading amounting to Five Million (₱5,000,000.00) Pesos on 24 November 2012, Five Million
(₱5,000,000.00) Pesos on 15 December 2012, and One Hundred Thousand (₱100,000.00) Pesos
weekly "tara" each from the high profile inmates in the New Bilibid Prison.19

On February 20, 2017, petitioner filed a Motion to Quash, mainly raising the following: the RTC lacks
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jurisdiction over the offense charged against petitioner; the DOJ Panel lacks authority to file the
Information; the Information charges more than one offense; the allegations and the recitals of facts
do not allege the corpus delicti of the charge; the Information is based on testimonies of witnesses
who are not qualified to be discharged as state witnesses; and the testimonies of these witnesses are
hearsay.21

On February 23, 2017, respondent judge issued the presently assailed Order  finding probable cause
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for the issuance of warrants of arrest against De Lima and her co-accused. The Order stated, viz.:

After a careful evaluation of the herein Information and all the evidence presented during the
preliminary investigation conducted in this case by the Department of Justice, Manila, the Court finds
sufficient probable cause for the issuance of Warrants of Arrest against all the accused LEILA M. DE
LIMA, RAFAEL MARCOS Z. RAGOS and RONNIE P ALISOC DAYAN.

WHEREFORE, let Warrants of Arrest be issued against the abovementioned accused.

SO ORDERED. 23

Accordingly, the questioned Warrant of Arrest dated February 23, 2017 ,  which contained no

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recommendation for bail, was issued against petitioner.

On February 24, 2017, the PNP Investigation and Detection Group served the Warrant of Arrest on
petitioner and the respondent judge issued the assailed February 24, 2017 Order,  committing
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petitioner to the custody of the PNP Custodial Center.

On February 27, 2017, petitioner repaired to this court via the present petition, praying for the
following reliefs:

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a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017,
the Warrant of Arrest dated the same date, and the Order dated 24 February 2017 of the Regional
Trial Court - Branch 204, Muntinlupa City, in Criminal Case No. 17-165 entitled People of the
Philippines versus Leila M De Lima, et al.;

b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further
proceedings until and unless the Motion to Quash is resolved with finality;

c. Issuing an order granting the application for the issuance of temporary restraining order (TRO) and
a writ of preliminary injunction to the proceedings; and

d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the
Order and Warrant of Arrest, both dated February 23, 201 7, thereby recalling both processes and
restoring petitioner to her liberty and freedom. 26

On March 9, 2017, the Office of the Solicitor General (OSG), on behalf of the respondents,
interposed its Comment to the petition.  The OSG argued that the petition should be dismissed as De
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Lima failed to show that she has no other plain, speedy, and adequate remedy. Further, the OSG
posited that the petitioner did not observe the hierarchy of courts and violated the rule against
forum shopping. On substantive grounds, the OSG asserted inter alia that the RTC has jurisdiction
over the offense charged against the petitioner, that the respondent judge observed the
constitutional and procedural rules, and so did not commit grave abuse of discretion, in the issuance of
the assailed orders and warrant.28

On petitioner's motion, the Court directed the holding of oral arguments on the significant issues
raised. The Court then heard the parties in oral arguments on March 14, 21, and 28, 2017. 29

In the meantime, the OSG filed a Manifestation dated March 13, 2017,  claiming that petitioner
30

falsified the juratsappearing in the: (1) Verification and Certification against Forum Shopping page of
her petition; and (2) Affidavit of Merit in support of her prayer for injunctive relief. The OSG alleged
that while the advertedjurats appeared to be notarized by a certain Atty. Maria Cecille C. Tresvalles-
Cabalo on February 24, 2017, the guest logbook  in the PNP Custodial Center Unit in Camp Crame for
31

February 24, 2017 does not bear the name of Atty. Tresvalles-Cabalo. Thus, so the OSG maintained,
petitioner De Lima did not actually appear and swear before the notary public on such date in Quezon
City, contrary to the allegations in the jurats. For the OSG, the petition should therefore be
dismissed outright for the falsity committed by petitioner De Lima.

In compliance with an Order of this Court, petitioner filed the Affidavit of Atty. Maria Cecille C.
Tresvalles-Cabalo dated March 20, 2017  to shed light on the allegations of falsity
32

in petitioner'sjurats.

The parties simultaneously filed their respective Memoranda on April 17, 2017. 33

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 The Issues

From the pleadings and as delineated in this Court's Advisory dated March 10, 2017  and discussed by
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the parties during the oral arguments, the issues for resolution by this Court are:

Procedural Issues:
A Whether or not petitioner is excused from compliance with the doctrine on hierarchy of courts
considering that the petition should first be filed with the Court of Appeals.

B. Whether or not the pendency of the Motion to Quash the Information before the trial court
renders the instant petition premature.

C. Whether or not petitioner, in filing the present petition, violated the rule against forum shopping
given the pendency of the Motion to Quash the Information before the Regional Trial Court of
Muntinlupa City in Criminal Case No. 17-165 and the Petition for Certiorari filed before the Court of
Appeals in C.A. G.R. SP No. 149097, assailing the preliminary investigation conducted by the DOJ
Panel.

Substantive Issues:
A. Whether the Regional Trial Court or the Sandiganbayan has the jurisdiction over the violation of
Republic Act No. 9165 averred in the assailed Information.

B. Whether or not the respondent gravely abused her discretion in finding probable cause to issue the
Warrant of Arrest against petitioner.

C. Whether or not petitioner is entitled to a Temporary Restraining Order and/or Status Quo

Ante Order in the interim until the instant petition is resolved or until the trial court rules on the
Motion to Quash.

OUR RULING

Before proceeding to a discussion on the outlined issues, We shall first confront the issue of the
alleged falsification committed by petitioner in the jurats of her Verification and Certification against
Forum Shopping and Affidavit of Merit in support of her prayer for injunctive relief.

In her Affidavit, Atty. Tresvalles-Cabalo disproves the OSG's allegation that she did not notarize the
petitioner's Verification and Certification against Forum Shopping and Affidavit of Merit in this wise:

4. On February 24, 2017 at or around nine in the morning (9:00 AM), I went to PNP, CIDG, Camp
Crame, Quezon City to notarize the Petition as discussed the previous night.

5. I met Senator De Lima when she was brought to the CIDG at Camp Crame and I was informed that
the Petition was already signed and ready for notarization.

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6. I was then provided the Petition by her staff. I examined the signature of Senator De Lima and
confirmed that it was signed by her. I have known the signature of the senator given our personal
relationship. Nonetheless, I still requested from her staff a photocopy of any of her government-
issued valid Identification Cards (ID) bearing her signature. A photocopy of her passport was
presented to me. I compared the signatures on the Petition and the Passport and I was able to verify
that the Petition was in fact signed by her. Afterwards, I attached the photocopy of her Passport to
the Petition which I appended to my Notarial Report/Record.

7. Since I already know that Sen. De Lima caused the preparation of the Petition and that it was her
who signed the same, I stamped and signed the same.

8. To confirm with Senator De Lima that I have already notarized the Petition, I sought entry to the
detention facility at or around three in the afternoon (3:00 PM). x x x

xxxx

11. Since I was never cleared after hours of waiting, I was not able to talk again to Senator De Lima to
confirm the notarization of the Petition. I then decided to leave Camp Crame. 35

At first glance, it is curious that Atty. Tresvalles-Cabalo who claims to have "stamped and signed the
[Verification and Certification and Affidavit of Merit]" inside Camp Crame, presumably in De Lima's
presence, still found it necessary to, hours later, "confirm with Senator De Lima that [she had]
already notarized the Petition." Nonetheless, assuming the veracity of the allegations narrated in the
Affidavit, it is immediately clear that petitioner De Lima did not sign the Verification and
Certification against Forum Shopping and Affidavit of Merit in front of the notary public. This is
contrary to the jurats (i.e., the certifications of the notary public at the end of the instruments)
signed by Atty. Tresvalles-Cabalo that the documents were "SUBSCRIBED AND SWORN to before
me."

Such clear breach of notarial protocol is highly censurable  as Section 6, Rule II of the 2004 Rules on
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Notarial Practice requires the affiant, petitioner De Lima in this case, to sign the instrument or
document in the presence of the notary, viz.:

SECTION 6. Jurat. - "Jurat" refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents an instrument or document;

(b) is personally known to the notary public or identified by the notary public through competent
evidence of identity as defined by these Rules;

(c) signs the instrument or document in the presence of the notary; and

(d) takes an oath or affirmation before the notary public as to such instrument or document.(Emphasis
and underscoring supplied.)

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While there is jurisprudence to the effect that "an irregular notarization merely reduces the
evidentiary value of a document to that of a private document, which requires /roof of its due
execution and authenticity to be admissible as evidence,"  the same cannot be considered controlling
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in determining compliance with the requirements of Sections 1 and 2, Rule 65 of the Rules of Court.
Both Sections 1 and 2 of Rule 65  require that the petitions for certiorari and prohibition must be
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verified and accompanied by a "sworn certificate of non-forum shopping."

In this regard, Section 4, Rule 7 of the Rules of Civil Procedure states that "[a] pleading is verified by
an affidavit that the affiant has read the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic records." "A pleading required to be verified
which x x x lacks a proper verification, shall be treated as an unsigned pleading." Meanwhile, Section
5, Rule 7 of the Rules of Civil Procedure provides that "[t]he plaintiff or principal party shall certify
under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-
judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b)
if there is such other pending action or claim, a complete statement of the present status thereof;
and (c) if he should thereafter learn that the same or similar action or claim has been filed or is
pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed." "Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice, unless otherwise provided x x x."

In this case, when petitioner De Lima failed to sign the Verification and Certification against Forum
Shopping in the presence of the notary, she has likewise failed to properly swear under oath the
contents thereof, thereby rendering false and null the jurat and invalidating the Verification and
Certification against Forum Shopping. The significance of a proper jurat and the effect of its
invalidity was elucidated in William Go Que Construction v. Court of Appeals, where this Court held
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that:

In .this case, it is undisputed that the Verification/Certification against Forum Shopping attached to
the petition for certiorari in CA-G.R. SP No. 109427 was not accompanied with a valid
affidavit/properly certified under oath. This was because the jurat thereof was defective in that it
did not indicate the pertinent details regarding the affiants' (i.e., private respondents) competent
evidence of identities.

Under Section 6, Rule II of AM. No. 02-8-13-SC 63 dated July 6, 2004, entitled the "2004 Rules on
Notarial Practice" (2004 Rules on Notarial Practice), ajurat refers to an act in which an individual on a
single occasion:

xxxx

In Fernandez v. Villegas (Fernandez), the Court pronounced that noncompliance with the verification
requirement or a defect therein "does not necessarily render the pleading fatally defective. The court

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may order its submission or correction or act on the pleading if the attending circumstances are such
that strict compliance with the Rule may be dispensed with in order that the ends of justice may be
served thereby." "Verification is deemed substantially complied with when one who has ample
knowledge to swear to the truth of the allegations in the complaint or petition signs the verification,
and when matters alleged in the petition have been made in good faith or are true and correct." Here,
there was no substantial compliance with the verification requirement as it cannot be ascertained that
any of the private respondents actually swore to the truth of the allegations in the petition
for certiorari in CA-G.R. SP No. 109427 given the lack of competent evidence of any of their
identities. Because of this, the fact that even one of the private respondents swore that the
allegations in the pleading are true and correct of his knowledge and belief is shrouded in doubt.

For the same reason, neither was there substantial compliance with the certification against forum
shopping requirement. In Fernandez, the Court explained that "non-compliance therewith or a defect
therein, unlike in verification, is generally not curable by its subsequent submission or correction
thereof, unless there is a need to relax the Rule on the ground of 'substantial compliance' or presence
of 'special circumstances or compelling reasons."' Here, the CA did not mention - nor does there exist
- any perceivable special circumstance or compelling reason which justifies the rules' relaxation. At all
events, it is uncertain if any of the private respondents certified under oath that no similar action has
been filed or is pending in another forum.

xxxx

Case law states that "[v]erification is required to secure an assurance that the allegations in the
petition have been made in good faith or are true and correct, and not merely speculative." On the
other hand, "[t]he certification against forum shopping is required based on the principle that a party-
litigant should not be allowed to pursue simultaneous remedies in different fora." The important
purposes behind these requirements cannot be simply brushed aside absent any sustainable
explanation justifying their relaxation. In this case, proper justification is especially called for in light
of the serious allegations of forgery as to the signatures of the remaining private
respondents, i.e., Lominiqui and Andales. Thus, by simply treating the insufficient submissions before
it as compliance with its Resolution dated August 13, 2009 requiring anew the submission of a proper
verification/certification against forum shopping, the CA patently and grossly ignored settled
procedural rules and, hence, gravely abused its discretion. All things considered, the proper course of
action was for it to dismiss the petition.  (Emphasis and underscoring supplied.)
40

Without the presence of the notary upon the signing of the Verification and Certification against
Forum Shopping, there is no assurance that the petitioner swore under oath that the allegations in the
petition have been made in good faith or are true and correct, and not merely speculative. It must be
noted that verification is not an empty ritual or a meaningless formality. Its import must never be
sacrificed in the name of mere expedience or sheer caprice, as what apparently happened in the
41

present case. Similarly, the absence of the notary public when petitioner allegedly affixed her
signature also negates a proper attestation that forum shopping has not been committed by the filing
of the petition. Thus, the petition is, for all intents and purposes, an unsigned pleading that does not

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deserve the cognizance of this Court.  In Salum bides, Jr. v. Office of the Ombudsman, the Court
42 43

held thus:

The Court has distinguished the effects of non-compliance with the requirement of verification and
that of certification against forum shopping. A defective verification  shall be treated as an unsigned
pleading and thus produces no legal effect, subject to the discretion of the court to allow the
deficiency to be remedied, while the failure to certifv against forum shopping shall be cause for
dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the
initiatory pleading. (Emphasis and italicization from the original.)

Notably, petitioner has not proffered any reason to justify her failure to sign the Verification and
Certification Against Forum Shopping in the presence of the notary. There is, therefore, no
justification to relax the rules and excuse the petitioner's non-compliance therewith. This Court had
reminded parties seeking the ultimate relief of certiorari to observe the rules, since nonobservance
thereof cannot be brushed aside as a "mere technicality."  Procedural rules are not to be belittled or
44

simply disregarded, for these prescribed procedures ensure an orderly and speedy administration of
justice.  Thus, as in William Go Que Construction, the proper course of action is to dismiss outright
45

the present petition.

Even if We set aside this procedural infirmity, the petition just the same merits denial on several
other grounds.

PETITIONER DISREGARDED THE HIERARCHY OF COURTS

Trifling with the rule on hierarchy of courts is looked upon with disfavor by this Court.  It will not
46

entertain direct resort to it when relief can be obtained in the lower courts.  The Court has
47

repeatedly emphasized that the rule on hierarchy of courts is an important component of the orderly
administration of justice and not imposed merely for whimsical and arbitrary reasons.  In The Diocese
48

of Bacolod v. Commission on Elections, the Court explained the reason for the doctrine thusly:
49

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 for 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.

xxxx

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure
that every level of the judiciary performs its designated roles in an effective and efficient manner.
Trial courts do not only determine the facts from the evaluation of the evidence presented before
them. They are likewise competent to determine issues of law which may include the validity of an

Page 9 of 131
ordinance, statute, or even an executive issuance in relation to the Constitution. To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present
the "actual case" that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort to
courts at their level would not be practical considering their decisions could still be appealed before
the higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of
facts and law made by the trial courts. It is collegiate in nature. This nature ensures more standpoints
in the review of the actions of the trial court. But the Court of Appeals also has original jurisdiction
over most special civil actions. Unlike the trial courts, its writs can have a nationwide scope. It is
competent to determine facts and, ideally, should act on constitutional issues that may not necessarily
be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating - in
the light of new circumstances or in the light of some confusion of bench or bar - existing precedents.
Rather than a court of first instance or as a repetition of the actions of the Court of Appeals, this
court promulgates these doctrinal devices in order that it truly performs that role.  (Emphasis
50

supplied.)

Nonetheless, there are recognized exceptions to this rule and direct resort to this Court were
allowed in some instances. These exceptions were summarized in a case of recent vintage, Aala v.
Uy, as follows:

In a fairly recent case, we summarized other well-defined exceptions to the doctrine on hierarchy of
courts. Immediate resort to this Court may be allowed when any of the following grounds are present:
(1) when genuine issues of constitutionality are raised that must be addressed immediately; (2) when
the case involves transcendental importance; (3) when the case is novel; (4) when the constitutional
issues raised are better decided by this Court; (5) when time is of the essence; (6) when the subject
of review involves acts of a constitutional organ; (7) when there is no other plain, speedy, adequate
remedy in the ordinary course of law; (8) when the petition includes questions that may affect public
welfare, public policy, or demanded by the broader interest of justice; (9) when the order complained
of was a patent nullity; and (10) when the appeal was considered as an inappropriate remedy. 51

Unfortunately, none of these exceptions were sufficiently established in the present petition so as to
convince this court to brush aside the rules on the hierarchy of courts.

Petitioner's allegation that her case has sparked national and international interest is obviously not
covered by the exceptions to the rules on hierarchy of courts. The notoriety of a case, without more,
is not and will not be a reason for this Court's decisions. Neither will this Court be swayed to relax its
rules on the bare fact that the petitioner belongs to the minority party in the present administration.

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A primary hallmark of an independent judiciary is its political neutrality. This Court is thus loath to
perceive and consider the issues before it through the warped prisms of political partisanships.

That the petitioner is a senator of the republic does not also merit a special treatment of her case.
The right to equal treatment before the law accorded to every Filipino also forbids the elevation of
petitioner's cause on account of her position and status in the government.

Further, contrary to her position, the matter presented before the Court is not of first impression.
Petitioner is not the first public official accused of violating RA 9165 nor is she the first defendant
to question the finding of probable cause for her arrest. In fact, stripped of all political complexions,
the controversy involves run-of-the mill matters that could have been resolved with ease by the lower
court had it been given a chance to do so in the first place.

In like manner, petitioner's argument that the rule on the hierarchy of court should be disregarded as
her case involves pure questions of law does not obtain. One of the grounds upon which petitioner
anchors her case is that the respondent judge erred and committed grave abuse of discretion in
finding probable cause to issue her arrest. By itself, this ground removes the case from the ambit of
cases involving pure questions of law. It is established that the issue of whether or not probable cause
exists for the issuance of warrants for the arrest of the accused is a question of fact, determinable
as it is from a review of the allegations in the Information, the Resolution of the Investigating
Prosecutor, including other documents and/ or evidence appended to the Information.  This matter,
52

therefore, should have first been brought before the appellate court, which is in the better position
to review and determine factual matters.

Yet, petitioner harps on the supposed judicial efficiency and economy of abandoning the rule on the
hierarchy of courts in the present case. Indeed, the Court has considered the practical aspects of the
administration of justice in deciding to apply the exceptions rather than the rule. However, it is all
the more for these practical considerations that the Court must insist on the application of the rule
and not the exceptions in this case. As petitioner herself alleges, with the President having declared
the fight against illegal drugs and corruption as central to his platform of government, there will be a
spike of cases brought before the courts involving drugs and public officers.  As it now stands, there
53

are 232,557 criminal cases involving drugs, and around 260,796 criminal cases involving other offenses
pending before the R TCs.  This Court cannot thus allow a precedent allowing public officers assailing
54

the finding of probable cause for the issuance of arrest warrants to be brought directly to this Court,
bypassing the appellate court, without any compelling reason.

THE PRESENT PETITION IS PREMATURE

The prematurity of the present petition is at once betrayed in the reliefs sought by petitioner's
Prayer, which to restate for added emphasis, provides:

WHEREFORE, premises considered, and in the interest of substantial justice and fair play, Petitioner
respectfully prays the Honorable Court that judgment be rendered:

Page 11 of 131
a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017,
the Warrant of Arrest dated the same date, and the Order dated 24 February 2017 of the Regional
Trial CourtBranch 204, Muntinlupa City, in Criminal Case No. 17-165 entitled People of the Philippines
versus Leila M De Lima et al.;

b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further
proceedings until and unless the Motion to Quash is resolved with finality;

c. Issuing an order granting the application for the issuance of temporary restraining order (TRO) and
a writ of preliminary injunction to the proceedings; and

d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the
Order and Warrant of Arrest, both dated February 23, 201 7, thereby recalling both processes and
restoring petitioner to her liberty and freedom.  (Emphasis supplied)
55

Under paragraph (a), petitioner asks for a writ of certiorari annulling the Order dated February 23,
2017 finding probable cause, the warrant of arrest and the Order dated February 24, 2017
committing petitioner to the custody of the PNP Custodial Center. Clearly petitioner seeks the recall
of said orders to effectuate her release from detention and restore her liberty. She did not ask for
the dismissal of the subject criminal case.

More importantly, her request for the issuance of a writ of prohibition under paragraph (b) of the
prayer "until and unless the Motion to Quash is resolved with finality," is an unmistakable admission
that the RTC has yet to rule on her Motion to Quash and the existence of the RTC's authority to rule
on the said motion. This admission against interest binds the petitioner; an admission against interest
being the best evidence that affords the greatest certainty of the facts in dispute.  It is based on
56

the presumption that "no man would declare anything against himself unless such declaration is true.
"  It can be presumed then that the declaration corresponds with the truth, and it is her fault if it
57

does not.58

Moreover, petitioner under paragraphs (c) and (d) prayed for a TRO and writ of preliminary injunction
and a status quo ante order which easily reveal her real motive in filing the instant petition-to restore
to "petitioner her liberty and freedom."

Nowhere in the prayer did petitioner explicitly ask for the dismissal of Criminal Case No. 17-165.
What is clear is she merely asked the respondent judge to rule on her Motion to Quash before issuing
the warrant of arrest.

In view of the foregoing, there is no other course of action to take than to dismiss the petition on the
ground of prematurity and allow respondent Judge to rule on the Motion to Quash according to the
desire of petitioner.

This Court, in Solid Builders Inc. v. China Banking Corp.,  explained why a party should not pre-empt the
action of a trial court:

Page 12 of 131
Even Article 1229 of the Civil Code, which SBI and MFII invoke, works against them. Under that
provision, the equitable reduction of the penalty stipulated by the parties in their contract will be
based on a finding by the court that such penalty is iniquitous or unconscionable. Here, the trial court
has not yet made a ruling as to whether the penalty agreed upon by CBC with SBI and MFII is
unconscionable. Such finding will be made by the trial court only after it has heard both parties and
weighed their respective evidence in light of all relevant circumstances. Hence, for SBI and MFII to
claim any right or benefit under that provision at this point is premature.  (Emphasis supplied)
59

In State of Investment House, Inc. v. Court of Appeals, the Court likewise held that a petition
60

for certiorari can be resorted to only after the court a quo has already and actually rendered its
decision. It held, viz.:

We note, however, that the appellate court never actually ruled on whether or not petitioner's right
had prescribed. It merely declared that it was in a position to so rule and thereafter required the
parties to submit memoranda. In making such a declaration, did the CA commit grave abuse of
discretion amounting to lack of jurisdiction? It did not.

xxxx

All things considered, this petition is premature. The CA has decided nothing and whatever
petitioner's vehement objections may be (to any eventual ruling on the issue of prescription) should be
raised only after such ruling shall have actually been promulgated.

The situation evidently does not yet call for a recourse to a petition for  certiorari under Rule
65. (Italicization from the original. Emphasis supplied.)
61

An analogous ruling was made by this Court in Diaz v. Nora, where it ruled in this wise:

x x x In the case of the respondent labor arbiter, he has not denied the motion for execution filed by
the petitioner. He merely did not act on the same. Neither had petitioner urged the immediate
resolution of his motion for execution by said arbiter. In the case of the respondent NLRC, it was not
even given the opportunity to pass upon the question raised by petitioner as to whether or not it has
jurisdiction over the appeal, so the records of the case can be remanded to the respondent labor
arbiter for execution of the decision.

Obviously, petitioner had a plain, speedy and adequate remedy to seek relief from public respondents
but he failed to avail himself of the same before coming to this Court. To say the least, the petition is
premature and must be struck down.  (Emphasis supplied.)
62

The dissents would deny the applicability of the foregoing on the ground that these were not criminal
cases that involved a pending motion to quash. However, it should be obvious from the afore-quoted
excerpts that the nature of the cases had nothing to do with this Court's finding of prematurity in
those cases. Instead, what was stressed therein was that the lower courts had not yet made, nor was
not given the opportunity to make, a ruling before the parties came before this forum.

Page 13 of 131
Indeed, the prematurity of the present petition cannot be over-emphasized considering that
petitioner is actually asking the Court to rule on some of the grounds subject of her Motion to Quash.
The Court, if it rules positively in favor of petitioner regarding the grounds of the Motion to Quash,
will be preempting the respondent Judge from doing her duty to resolve the said motion and even
prejudge the case. This is clearly outside of the ambit of orderly and expeditious rules of procedure.
This, without a doubt, causes an inevitable delay in the proceedings in the trial court, as the latter
abstains from resolving the incidents until this Court rules with finality on the instant petition.

Without such order, the present petition cannot satisfy the requirements set before this Court can
exercise its review powers. Section 5 (2)(C) of Article VIII of the 1987 Constitution explicitly
requires the existence of "final judgments and orders of lower courts" before the Court can exercise
its power to "review, revise, reverse, modify, or affirm on appeal or certiorari" in "all cases in which
the jurisdiction of any lower court is in issue," viz.:

SECTION 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved. (Emphasis supplied.)

In the palpable absence of a ruling on the Motion to Quash -- which puts the jurisdiction of the lower
court in issue -- there is no controversy for this Court to resolve; there is simply no final judgment or
order of the lower court to review, revise, reverse, modify, or affirm. As per the block letter
provision of the Constitution, this Court cannot exercise its jurisdiction in a vacuum nor issue a
definitive ruling on mere suppositions.

Succinctly, the present petition is immediately dismissible for this Court lacks jurisdiction to review a
non-existent court action. It can only act to protect a party from a real and actual ruling by a lower
tribunal. Surely, it is not for this Court to negate "uncertain contingent future event that may not

Page 14 of 131
occur as anticipated, or indeed may not occur at all," as the lower court's feared denial of the subject
Motion to Quash. 63

The established rule is that courts of justice will take cognizance only of controversies "wherein
actual and not merely hypothetical issues are involved."  The reason underlying the rule is "to prevent
64

the courts through avoidance of premature adjudication from entangling themselves in abstract
disagreements, and for us to be satisfied that the case does not present a hypothetical injury or a
claim contingent upon some event that has not and indeed may never transpire." 65

Even granting arguendo that what is invoked is the original jurisdiction of this Court under
Section 5 (1) of Article VIII, the petition nonetheless falls short of the Constitutional requirements
and of Rule 65 of the Rules of Court. In the absence of a final judgment, order, or ruling on the
Motion to Quash challenging the jurisdiction of the lower court, there is no occasion for this Court to
issue the extraordinary writ of certiorari. Without a judgment or ruling, there is nothing for this
Court to declare as having been issued without jurisdiction or in grave abuse of discretion.

Furthermore, it is a basic requirement under Rule 65 that there be "[no] other plain, speedy and
adequate remedy found in law."  Thus, the failure to exhaust all other remedies, as will be later
66

discussed, before a premature resort to this Court is fatal to the petitioner's cause of action.

Petitioner even failed to move for the reconsideration of the February 23 and 24, 2017 Orders she is
currently assailing in this Petition. As this Court held in Estrada v. Office of the Ombudsman, "[a]
motion for reconsideration allows the public respondent an opportunity to correct its factual and legal
errors x x x [it] is mandatory before the filing of a petition for certiorari." The reasons proffered by
67

petitioner fail to justify her present premature recourse.

Various policies and rules have been issued to curb the tendencies of litigants to disregard, nay
violate, the rule enunciated in Section 5 of Article VIII of the Constitution to allow the Court to
devote its time and attention to matters within its jurisdiction and prevent the overcrowding of its
docket. There is no reason to consider the proceedings at bar as an exception.

PETITIONER VIOLATED THE RULE AGAINST FORUM SHOPPING

It is settled that forum shopping exists when a party repetitively avails himself of several judicial
remedies in different courts, simultaneously or successively, all substantially founded on the same
transactions and the same essential facts and circumstances, and all raising substantially the same
issues either pending in, or already resolved adversely by, some other court. It is considered an act of
malpractice as it trifles with the courts and abuses their processes.  Thus, as elucidated in Luzon
68

Iron Development Group Corporation v. Bridgestone Mining and Development Corporation, forum69

shopping warrants the immediate dismissal of the suits filed:

Forum shopping is the act of litigants who repetitively avail themselves of multiple judicial remedies in
different fora, simultaneously or successively, all substantially founded on the same transactions and
the same essential facts and circumstances; and raising substantially similar issues either pending in

Page 15 of 131
or already resolved adversely by some other court; or for the purpose of increasing their chances of
obtaining a favorable decision, if not in one court, then in another. The rationale against forum-
shopping is that a party should not be allowed to pursue simultaneous remedies in two different
courts, for to do so would constitute abuse of court processes which tends to degrade the
administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of
the heavily burdened dockets of the courts.

xxxx

What is essential in determining the existence of forum-shopping is the vexation caused the courts
and litigants by a party who asks different courts and/or administrative agencies to rule on similar or
related causes and/or grant the same or substantially similar reliefs, in the process creating the
possibility of conflicting decisions being rendered upon the same issues.

xxxx

We emphasize that the grave evil sought to be avoided by the rule against forum-shopping is the
rendition by two competent tribunals of two separate and contradictory decisions. To avoid any
confusion, this Court adheres strictly to the rules against forum shopping, and any violation of these
rules results in the dismissal of a case. The acts committed and described herein can possibly
constitute direct contempt. 70

This policy echoes the last sentence of Section 5, Rule 7 of the Rules of Court, which states that "[i]f
the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same
shall be ground for summary dismissal with prejudice and shall constitute direct contempt as well as a
cause for administrative sanctions."

The test to determine the existence of forum shopping is whether the elements of litis pendentia, or
whether a final judgment in one case amounts to res judicata in the other. Forum shopping therefore
exists when the following elements are present: (a) identity of parties, or at least such parties
representing the same interests in both actions; (b) identity of rights asserted and reliefs prayed for,
the relief being founded on the same facts; and (c) the identity of the two preceding particulars, such
that any judgment rendered in the other action will, regardless of which party is successful, amount
to res judicata in the action under consideration.
71

Anent the first requisite, there is an identity of parties when the parties in both actions are the
same, or there is privity between them, or they are successors-in-interest by title subsequent to the
commencement of the action litigating for the same thing and under the same title and in the same
capacity.
72

Meanwhile, the second and third requisites obtain where the same evidence necessary to sustain the
second cause of action is sufficient to authorize a recovery in the first, even if the forms or the
nature of the two (2) actions are different from each other. If the same facts or evidence would

Page 16 of 131
sustain both, the two (2) actions are considered the same within the rule that the judgment in the
former is a bar to the subsequent action; otherwise, it is not.73

All these requisites are present in this case.

The presence of the first requisite is at once apparent. The petitioner is an accused in the criminal
case below, while the respondents in this case, all represented by the Solicitor General, have
substantial identity with the complainant in the criminal case still pending before the trial court.

As for the second requisite, even a cursory reading of the petition and the Motion to Quash will reveal
that the arguments and the reliefs prayed for are essentially the same. In both, petitioner advances
the RTC's supposed lack of jurisdiction over the offense, the alleged multiplicity of offenses included
in the Information; the purported lack of the corpus delicti of the charge, and, basically, the non-
existence of probable cause to indict her. And, removed of all non-essentials, she essentially prays for
the same thing in both the present petition and the Motion to Quash: the nullification of the
Information and her restoration to liberty and freedom. Thus, our ruling in Jent v. Tullet Prebon
(Philippines), Inc.   does not apply in the present case as the petition at bar and the motion to quash
74

pending before the court a quo involve similar if not the same reliefs. What is more, while Justice
Caguioa highlights our pronouncement in Jent excepting an "appeal or special civil action
for certiorari" from the rule against the violation of forum shopping, the good justice overlooks that
the phrase had been used with respect to forum shopping committed through successive actions by a
"party, against whom an adverse judgment or order has [already] been rendered in one forum."  The 75

exception with respect to an "appeal or special civil action for certiorari" does not apply where the
forum shopping is committed by simultaneous actions where no judgment or order has yet been
rendered by either forum. To restate for emphasis, the RTC has yet to rule on the Motion to Quash.
Thus, the present petition and the motion to quash before the R TC are simultaneous actions that do
not exempt petitions for certiorari from the rule against forum shopping.

With the presence of the first two requisites, the third one necessarily obtains in the present case.
Should we grant the petition and declare the RTC without jurisdiction over the offense, the RTC is
bound to grant De Lima's Motion to Quash in deference to this Court's authority. In the alternative,
if the trial court rules on the Motion to Quash in the interim, the instant petition will be rendered
moot and academic.

In situations like the factual milieu of this instant petition, while nobody can restrain a party to a case
before the trial court to institute a petition for certiorari under Rule 65 of the Rules of Court, still
such petition must be rejected outright because petitions that cover simultaneous actions are
anathema to the orderly and expeditious processing and adjudication of cases.

On the ground of forum shopping alone, the petition merits immediate dismissal.

THE REGIONAL TRIAL COURT HAS JURISDICTION

Page 17 of 131
Even discounting the petitioner's procedural lapses, this Court is still wont to deny the instant petition
on substantive grounds.

Petitioner argues that, based on the allegations of the Information in Criminal Case No. 17-165, the
Sandiganbayan has the jurisdiction to try and hear the case against her. She posits that the
Information charges her not with violation of RA 9165 but with Direct Bribery-a felony within the
exclusive jurisdiction of the Sandiganbayan given her rank as the former Secretary of Justice with
Salary Grade 31. For the petitioner, even assuming that the crime described in the Information is a
violation of RA 9165, the Sandiganbayan still has the exclusive jurisdiction to try the case considering
that the acts described in the Information were intimately related to her position as the Secretary
of Justice. Some justices of this Court would even adopt the petitioner's view, declaring that the
Information charged against the petitioner is Direct Bribery.

The respondents, on the other hand, maintain that the R TC has exclusive jurisdiction to try violations
of RA 9165, including the acts described in the Information against the petitioner. The
Sandiganbayan, so the respondents contend, was specifically created as an anti-graft court. It was
never conferred with the power to try drug-related cases even those committed by public officials. In
fact, respondents point out that the history of the laws enabling and governing the Sandiganbayan will
reveal that its jurisdiction was streamlined to address specific cases of graft and corruption, plunder,
and acquisition of ill-gotten wealth.

Before discussing the issue on jurisdiction over the subject matter, it is necessary to clarify the
crime with which the petitioner is being charged. For ease of reference, the Information filed with
the R TC is restated below:

PEOPLE OF THE PHILIPPINES,  

Plaintiff,

Versus Criminal Case No. 17-165

LEILA M. DE LIMA (NPS No. XVI-INV-16J-00315 and NPS No.

XVl-INV-16K-00336) For: Violation of the
(66 Laguna de Bay corner Subic Bay Drive, Comprehensive Dangerous Drugs Act of
South Bay Village, Paraiiaque City and/or 2002,Section 5, in relation to Section 3(jj),
Room 502, GSIS Building, Financial Section 26 (b), and Section 28, Republic Act
Center, Roxas Boulevard, Pasay City), No. 9165 (lllegal Drug Trading)
RAFAEL MARCOS Z. RAGOS (c/o National
Bureau of Investigation, Taft Avenue,
Manila) and RONNIE P ALISOC DAY AN,
(Barangay Galarin, Urbiztondo,
Pangasinan), Accused

x-------------------------------------x

Page 18 of 131
 INFORMATION

The undersigned Prosecutors, constituted as a Panel pursuant to Department Orders 706 and 790
dated October 14, 2016 and November 11, 2016, respectively, accuse LEILA M. DE LIMA, RAFAEL
MARCOS Z. RAGOS and RONNIE P ALISOC DAY AN, for violation of Section 5, in relation to Section
3 (jj), Section 26 (b) and Section 28, Republic Act No. 9165, otherwise known as the Comprehensive
Dangerous Act of 2002, committed as follows:

That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and
within the jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the Secretary of
the Department of Justice, and accused Rafael Marcos Z. Ragos, being then the Officer-in-Charge of
the Bureau of Corrections, by taking advantage of their public office, conspiring and confederating
with accused Ronnie P. Dayan, being then the employee of the Department of Justice detailed to De
Lima, all of them having moral ascendancy or influence over inmates in the New Bilibid Prison, did then
and there commit illegal drug trading, in the following manner: De Lima and Ragos, with the use of
their power, position, and authority demand, solicit and extort money from the high profile inmates in
the New Bilibid Prison to support the Senatorial bid of De Lima in the May 2016 election; by reason of
which, the inmates, not being lawfully authorized by law and through the use of mobile phones and
other electronic devices, did then and there willfully and unlawfully trade and traffic dangerous drugs,
and thereafter give and deliver to De Lima, through Ragos and Dayan, the proceeds of illegal drug
trading amounting to Five Million (₱5,000,000.00) Pesos on 24 November 2012, Five Million
(₱5,000,000.00) Pesos on 15 December 2012, and One Hundred Thousand (₱l00,000.00) Pesos
weekly "tara" each from the high profile inmates in the New Bilibid Prison.

CONTRARY TO LAW. 76

Notably, the designation, the prefatory statements and the accusatory portions of the Information
repeatedly provide that the petitioner is charged with "Violation of the Comprehensive Dangerous
Drugs Act of 2002, Section 5, in relation to Section 3(jj), Section 26(b), and Section 28, Republic Act
No. 9165." From the very designation of the crime in the Information itself, it should be plain that the
crime with which the petitioner is charged is a violation of RA 9165. As this Court clarified in Quimvel
v. People,   the designation of the offense in the Information is a critical element required under
77

Section 6, Rule 110 of the Rules of Court in apprising the accused of the offense being charged, viz.:

The offense charged can also be elucidated by consulting the designation of the offense as appearing
in the Information. The designation of the offense is a critical element required under Sec. 6, Rule
110 of the Rules of Court for it assists in apprising the accused of the offense being charged. Its
inclusion in the Information is imperative to avoid surprise on the accused and to afford him of the
opportunity to prepare his defense accordingly. Its import is underscored in this case where the
preamble states that the crime charged is of "Acts of Lasciviousness in relation to Section 5(b) of
R.A. No.7610." (Emphasis supplied.)
78

Page 19 of 131
Further, a reading of the provisions of RA 9165 under which the petitioner is prosecuted would convey
that De Lima is being charged as a conspirator in the crime of Illegal Drug Trading. The pertinent
provisions of RA 9165 read:

SECTION 3. Definitions. - As used in this Act, the following terms shall mean:

xxxx

(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled
precursors and essential chemicals using electronic devices such as, but not limited to, text messages,
e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a
broker in any of such transactions whether for money or any other consideration in violation of this
Act.

xxxx

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of

Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.  - The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos (₱500,000.00) to Ten
million pesos (₱10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall
sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drug, including any and all species of opium poppy regardless of the quantity
and purity involved, or shall act as a broker in any of such transactions.

xxxx

SECTION 26. Attempt or Conspiracy. - Any attempt or conspiracy to commit the following unlawful
acts shall be penalized by the same penalty prescribed for the commission of the same as provided
under this Act:

xxxx

(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any
dangerous drug and/or controlled precursor and essential chemical;

xxxx

SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of
the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual
disqualification from any public office, if those found guilty of such unlawful acts are government
officials and employees.

While it may be argued that some facts may be taken as constitutive of some elements of Direct
Bribery under the Revised Penal Code (RPC), these facts taken together with the other allegations in

Page 20 of 131
the Information portray a much bigger picture, Illegal Drug Trading. The latter crime, described by
the United Nations Office on Drugs and Crime (UNODC) as "a global illicit trade involving the
cultivation, manufacture, distribution and sale of substances," necessarily involves various component
79

crimes, not the least of which is the bribery and corruption of government officials. An example would
be reports of recent vintage regarding billions of pesos' worth of illegal drugs allowed to enter
Philippine ports without the scrutiny of Customs officials. Any money and bribery that may have
changed hands to allow the importation of the confiscated drugs are certainly but trivial contributions
in the furtherance of the transnational illegal drug trading - the offense for which the persons
involved should be penalized.

Read as a whole, and not picked apart with each word or phrase construed separately, the Information
against De Lima goes beyond an indictment for Direct Bribery under Article 210 of the RPC.  As 80

Justice Martires articulately explained, the averments on solicitation of money in the Information,
which may be taken as constitutive of bribery, form "part of the description on how illegal drug
trading took place at the NBP." The averments on how petitioner asked for and received money from
the NBP inmates simply complete the links of conspiracy between her, Ragos, Dayan and the NBP
inmates in willfully and unlawfully trading dangerous drugs through the use of mobile phones and other
electronic devices under Section 5, in relation to Section 3(jj), Section 26(b), and Section 28, of RA
9165.

On this score, that it has not been alleged that petitioner actually participated in the actual
trafficking of dangerous drugs and had simply allowed the NBP inmates to do so is non sequitur given
that the allegation of conspiracymakes her liable for the acts of her co-conspirators. As this Court
elucidated, it is not indispensable for a co-conspirator to take a direct part in every act of the crime.
A conspirator need not even know of all the parts which the others have to perform,  as conspiracy is
81

the common design to commit a felony; it is not participation in all the details of the execution of
the crime.   As long as the accused, in one way or another, helped and cooperated in the
82

consummation of a felony, she is liable as a co-principal.  As the Information provides, De Lima's
83

participation and cooperation was instrumental in the trading of dangerous drugs by the NBP inmates.
The minute details of this participation and cooperation are matters of evidence that need not be
specified in the Information but presented and threshed out during trial.

Yet, some justices remain adamant in their position that the Information fails to allege the necessary
elements of Illegal Drug Trading. Justice Carpio, in particular, would cite cases supposedly
enumerating the elements necessary for a valid Information for Illegal Drug Trading. However, it
should be noted that the subject of these cases was "Illegal Sale" of dangerous drugs -- a crime
separate and distinct from "Illegal Trading" averred in the Information against De Lima. The elements
of "Illegal Sale" will necessary differ from the elements of Illegal Trading under Section 5, in relation
to Section 3(jj), of RA 9165. The definitions of these two separate acts are reproduced below for
easy reference:

SECTION 3. Definitions. - As used in this Act, the following terms shall mean:

xxxx

Page 21 of 131
(ii) Sell. - Any act of giving away any dangerous drug and/or controlled precursor and essential
chemical whether for money or any other consideration.

(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled
precursors and essential chemicals using electronic devices such as, but not limited to, text messages,
e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a
broker in any of such transactions whether for money or any other consideration in violation of this
Act.

It is obvious from the foregoing that the crime of illegal trading has been written in strokes much
broader than that for illegal sale. In fact, an illegal sale of drugs may be considered as only one of the
possible component acts of illegal trading which may be committed through two modes: (1) illegal
trafficking using electronic devices; or (2) acting as a broker in any transactions involved in the illegal
trafficking of dangerous drugs.

On this score, the crime of "illegal trafficking" embraces various other offenses punishable by RA
9165. Section 3(r) of RA 9165 provides:

(r) Illegal Trafficking. - The illegal cultivation, culture, delivery, administration, dispensation,
manufacture, sale, trading, transportation, distribution, importation, exportation and possession of any
dangerous drug and/or controlled precursor and essential chemical.

In turn, the crimes included in the definition of Illegal Trafficking of drugs are defined as follows:

(a) Administer. - Any act of introducing any dangerous drug into the body of any person, with or
without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act
of indispensable assistance to a person in administering a dangerous drug to himself/herself unless
administered by a duly licensed practitioner for purposes of medication.

xxxx

(d) Chemical Diversion. - The sale, distribution, supply or transport of legitimately imported, in-
transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures
or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug,
and shall include packaging, repackaging, labeling, relabeling or concealment of such transaction
through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front
companies or mail fraud.

xxxx

(i) Cultivate or Culture. - Any act of knowingly planting, growing, raising, or permitting the planting,
growing or raising of any plant which is the source of a dangerous drug.

xxxx

Page 22 of 131
(k) Deliver. - Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by
any means, with or without consideration.

xxxx

(m) Dispense. - Any act of giving away, selling or distributing medicine or any dangerous drug with or
without the use of prescription.

xxxx

(u) Manufacture. - The production, preparation, compounding or processing of any dangerous drug
and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from
substances of natural origin, or independently by means of chemical synthesis or by a combination of
extraction and chemical synthesis, and shall include any packaging or repackaging of such substances,
design or configuration of its form, or labeling or relabeling of its container; except that such terms
do not include the preparation, compounding, packaging or labeling of a drug or other substances by a
duly authorized practitioner as an incident to his/her administration or dispensation of such drug or
substance in the course of his/her professional practice including research, teaching and chemical
analysis of dangerous drugs or such substances that are not intended for sale or for any other
purpose.

xxxx

(kk) Use. - Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing,
smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of
the body, any of the dangerous drugs.

With the complexity of the operations involved in Illegal Trading of drugs, as recognized and defined
in RA 9165, it will be quite myopic and restrictive to require the elements of Illegal Sale-a mere
component act-in the prosecution for Illegal Trading.

More so, that which qualifies the crime of Illegal Trafficking to Illegal Trading may make it impossible
to provide the details of the elements of Illegal Sale. By "using electronic devices such as, but not
limited to, text messages, email, mobile or landlines, two-way radios, internet, instant messengers and
chat rooms," the Illegal Trading can be remotely perpetrated away from where the drugs are actually
being sold; away from the subject of the illegal sale. With the proliferation of digital technology
coupled with ride sharing and delivery services, Illegal Trading under RA 9165 can be committed
without getting one's hand on the substances or knowing and meeting the seller or buyer. To require
the elements of Illegal Sale (the identities of the buyer, seller, the object and consideration, in
Illegal Trade) would be impractical.

The same may be said of the second mode for committing Illegal Trading, or trading by "acting as a
broker" in transactions involved in Illegal Trafficking. In this instance, the accused may neither have
physical possession of the drugs nor meet the buyer and seller and yet violate RA 9165. As pointed out

Page 23 of 131
by Justice Perlas-Bernabe, as early as 1916, jurisprudence has defined a broker as one who is simply a
middleman, negotiating contracts relative to property with which he has no custody, viz.:

A broker is generally defined as one who is engaged, for others, on a commission, negotiating
contracts relative to property with the custody of which he has no concern; the negotiator between
other parties, never acting in his own name, but in the name of those who employed him; he is strictly
a middleman and for some purposes the agent of both parties.  (Emphasis and underscoring supplied.)
84

In some cases, this Court even acknowledged persons as brokers even "where they actually took no
part in the negotiations, never saw the customer."  For the Court, the primary occupation of a broker
85

is simply bringing "the buyer and the seller together, even if no sale is eventually made. "  Hence, in
86

indictments for Illegal Trading, it is illogical to require the elements of Illegal Sale of drugs, such as
the identities of the buyer and the seller, the object and consideration.  For the prosecution of
87

Illegal Trading of drugs to prosper, proof that the accused "act[ed] as a broker" or brought together
the buyer and seller of illegal drugs "using electronic devices such as, but not limited to, text
messages, e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms" is
sufficient.

The DOJ' s designation of the charge as one for Illegal Drug Trading thus holds sway. After all, the
prosecution is vested with a wide range of discretion-including the discretion of whether, what, and
whom to charge.  The exercise of this discretion depends on a smorgasboard of factors, which are
88

best appreciated by the prosecutors. 89

As such, with the designation of the offense, the recital of facts in the Information, there can be no
other conclusion than that petitioner is being charged not with Direct Bribery but with violation of RA
9165.

Granting without conceding that the information contains averments which constitute the elements of
Direct Bribery or that more than one offence is charged or as ill this case, possibly bribery and
violation of RA 9165, still the prosecution has the authority to amend the information at any time
before arraignment. Since petitioner has not yet been arraigned, then the information subject of
Criminal Case No. 17-165 can still be amended pursuant to Section 14, Rule 110 of the Rules of Court
which reads:

SECTION 14. Amendment or Substitution. - A complaint or information may be amended, in form or in

substance, without leave of court, at any time before the accused enters his plea. After the plea and
during the trial, a formal amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.

Now the question that irresistibly demands an answer is whether it is the Sandiganbayan or the RTC
that has jurisdiction over the subject matter of Criminal Case No. 17-165, i.e., violation of RA 9165.

It is basic that jurisdiction over the subject matter in a criminal case is given only by law in the
manner and form prescribed by law.  It is determined by the statute in force at the time of the
90

Page 24 of 131
commencement of the action.  Indeed, Congress has the plenary power to define, prescribe and
91

apportion the jurisdiction of various courts. It follows then that Congress may also, by law, provide
that a certain class of cases should be exclusively heard and determined by one court. Such would be a
special law that is construed as an exception to the general law on jurisdiction of courts.
92

The pertinent special law governing drug-related cases is RA 9165, which updated the rules provided
in RA 6425, otherwise known as the Dangerous Drugs Act of 1972. A plain reading of RA 9165, as of
RA 6425, will reveal that jurisdiction over drug-related cases is exclusively vested with the Regional
Trial Court and no other. The designation of the RTC as the court with the exclusive jurisdiction over
drug-related cases is apparent in the following provisions where it was expressly mentioned and
recognized as the only court with the authority to hear drug-related cases:

Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act,
Including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or
Precursors and Essential Chemicals. - x x x x

After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense
and all the assets and properties of the accused either owned or held by him or in the name of some
other persons if the same shall be found to be manifestly out of proportion to his/her lawful income:

xxxx

During the pendency of the case in the Regional Trial Court, no property, or income derived
therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and
the same shall be in custodia legis and no bond shall be admitted for the release of the same.

xxxx

Section 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the Voluntary
Submission Program. - x x x

A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center
may be filed by any person authorized by the Board with the Regional Trial Court of the province or
city where such person is found.

xxxx

Section 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and
Rehabilitation. - If a person charged with an offense where the imposable penalty is imprisonment of
less than six (6) years and one (1) day, and is found by the prosecutor or by the court, at any stage of
the proceedings, to be a drug dependent, the prosecutor or the court as the case may be, shall
suspend all further proceedings and transmit copies of the record of the case to the Board.

Page 25 of 131
In the event the Board determines, after medical examination, that public interest requires that such
drug dependent be committed to a center for treatment and rehabilitation, it shall file a petition for
his/her commitment with the regional trial court of the province or city where he/she is being
investigated or tried: x x x

xxxx

Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing
Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of
this Act. The number of courts designated in each judicial region shall be based on the population and
the number of cases pending in their respective jurisdiction.

The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this
Act.

Notably, no other trial court was mentioned in RA 9165 as having the authority to take cognizance of
drug-related cases. Thus, in Morales v. Court of Appeals, this Court categorically named the RTC as
93

the court with jurisdiction over drug related-cases, as follows:

Applying by analogy the ruling in People v. Simon, People v. De Lara, People v. Santos,  and Ordonez v.
Vinarao, the imposable penalty in this case which involves 0.4587 grams of shabu should not
exceed prision correccional. We say by analogy because these cases involved marijuana, not
methamphetamine hydrochloride (shabu). In Section 20 of RA. No. 6425, as amended by Section 17 of
RA No. 7659, the maximum quantities of marijuana and methamphetamine hydrochloride for purposes
of imposing the maximum penalties are not the same. For the latter, if the quantity involved is 200
grams or more, the penalty of reclusion perpetua to death and a fine ranging from ₱500,000 to PIO
million shall be imposed. Accordingly, if the quantity involved is below 200 grams, the imposable
penalties should be as follows:

xxxx

Clearly, the penalty which may be imposed for the offense charged in Criminal Case No. 96-8443
would at most be only prision correccional duration is from six (6) months and one (1) day to six (6)
years. Does it follow then that, as the petitioner insists, the RTC has no jurisdiction thereon in view of
the amendment of Section 32 of B.P. Big. 129 by R.A. No. 7691, which vested upon Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts exclusive original jurisdiction over all
offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine
and regardless of other imposable accessory or other penalties? This Section 32 as thus amended now
reads:

xxxx

The exception in the opening sentence is of special significance which we cannot disregard. x xx The
aforementioned exception refers not only to Section 20 of B.P. Blg. 129 providing for the jurisdiction

Page 26 of 131
of Regional Trial Courts in criminal cases, but also to other laws which specifically lodge in Regional
Trial Courts exclusive jurisdiction over specific criminal cases, e. g., (a) Article 360 of the Revised
Penal Code, as amended by R.A. Nos. 1289 and 4363 on written defamation or libel; (b) Decree on
Intellectual Property (P. D. No. 49, as amended), which vests upon Courts of First Instance exclusive
jurisdiction over the cases therein mentioned regardless of the imposable penalty; and (c) more
appropriately for the case at bar, Section 39 of RA No. 6425, as amended by P.D. No. 44, which vests
on Courts of First Instance, Circuit Criminal Courts, and the Juvenile and Domestic Relations Courts
concurrent exclusive original jurisdiction over all cases involving violations of said Act.

xxxx

That Congress indeed did not intend to repeal these special laws vesting exclusive jurisdiction in the
Regional Trial Courts over certain cases is clearly evident from the exception provided for in the
opening sentence of Section 32 of B.P. Blg. 129, as amended by RA No. 7691. These special laws are
not, therefore, covered by the repealing clause (Section 6) of RA No. 7691.

Neither can it be successfully argued that Section 39 of RA. No. 6425, as amended by P.D. No. 44, is
no longer operative because Section 44 of B.P. Big. 129 abolished the Courts of First Instance, Circuit
Criminal Courts, and Juvenile and Domestic Relations Courts. While, indeed, Section 44 provides that
these courts were to be "deemed automatically abolished" upon the declaration by the President that
the reorganization provided in B.P. Blg. 129 had been completed, this Court should not lose sight of the
fact that the Regional Trial Courts merely replaced the Courts of First Instance as clearly borne out
by the last two sentences of Section 44, to wit:

xxxx

Consequently, it is not accurate to state that the "abolition" of the Courts of First Instance carried
with it the abolition of their exclusive original jurisdiction in drug cases vested by Section 39 of R.A.
No. 6425, as amended by P. D. No. 44. If that were so, then so must it be with respect to Article 360
of the Revised Penal Code and Section 57 of the Decree on Intellectual Property. On the contrary, in
the resolution of 19 June 1996 in Caro v. Court of Appeals and in the resolution of 26 February 1997
in Villalon v. Ba/dado, this Court expressly ruled that Regional Trial Courts have the exclusive original
jurisdiction over libel cases pursuant to Article 360 of the Revised Penal Code. In Administrative
Order No. 104-96 this Court mandates that:

xxxx

The same Administrative Order recognizes that violations of RA. No. 6425, as amended, regardless of
the quantity involved, are to be tried and decided by the Regional Trial Courts therein designated as
special courts.  (Emphasis and underscoring supplied)
94

Yet, much has been made of the terminology used in Section 90 of RA 9165. The dissents would
highlight the provision's departure from Section 39 of RA 6425 - the erstwhile drugs law, which
provides:

Page 27 of 131
SECTION 39. Jurisdiction of the Circuit Criminal Court. - The Circuit Criminal Court shall have
exclusive original jurisdiction over all cases involving offenses punishable under this Act.

For those in the dissent, the failure to reproduce the phrase "exclusive original jurisdiction" is a clear
indication that no court, least of all the RTC, has been vested with such "exclusive original
jurisdiction" so that even the Sandiganbayan can take cognizance and resolve a criminal prosecution
for violation of RA 9165.

As thoroughly discussed by Justice Peralta in his Concurring Opinion, such deduction is unwarranted
given the clear intent of the legislature not only to retain the "exclusive original jurisdiction" of the
RTCs over violations of the drugs law but to segregate from among the several RTCs of each judicial
region some RTCs that will "exclusively try and hear cases involving violations of [RA 9165)." If at all,
the change introduced by the new phraseology of Section 90, RA 9165 is not the deprivation of the
RTCs' "exclusive original jurisdiction" but the further restriction of this "exclusive original
jurisdiction" to select RTCs of each judicial region. This intent can be clearly gleaned from the
interpellation on House Bill No. 4433, entitled "An Act Instituting the Dangerous Drugs Act of 2002,
repealing Republic Act No. 6425, as amended:"

Initially, Rep. Dilangalen referred to the fact sheet attached to the Bill which states that the
measure will undertake a comprehensive amendment to the existing law on dangerous drugs -- RA No.
6425, as amended. Adverting to Section 64 of the Bill on the repealing clause, he then asked whether
the Committee is in effect amending or repealing the aforecited law. Rep. Cuenco replied that any
provision of law which is in conflict with the provisions of the Bill is repealed and/or modified
accordingly.

In this regard, Rep. Dilangalen suggested that if the Committee's intention was only to amend RA No.
6425, then the wording used should be "to amend" and not "to repeal" with regard to the provisions
that are contrary to the provisions of the Bill.

Adverting to Article VIII, Section 60, on Jurisdiction Over Dangerous Drugs Case, which provides
that "the Supreme Court shall designate regional trial courts to have original jurisdiction over all
offenses punishable by this Act," Rep. Dilangalen inquired whether it is the Committee's intention that
certain RTC salas will be designated by the Supreme Court to try drug-related offenses, although all
RTCs have original jurisdiction over those offenses.

Rep. Cuenco replied in the affirmative. He pointed that at present, the Supreme Court's assignment of
drug cases to certain judges is not exclusive because the latter can still handle cases other than drug-
related cases. He added that the Committee's intention is to assign drug-related cases to judges who
will handle exclusively these cases assigned to them.

In this regard, Rep. Dilangalen stated that, at the appropriate time, he would like to propose the
following amendment; "The Supreme Court shall designate specific salas of the RTC to try exclusively
offenses related to drugs."

Page 28 of 131
Rep. Cuenca agreed therewith, adding that the Body is proposing the creation of exclusive drug courts
because at present, almost all of the judges are besieged by a lot of drug cases some of which have
been pending for almost 20 years.  (Emphasis and underscoring supplied.)
95

Per the "Records of the Bilateral Conference Committee on the Disagreeing Provisions of Senate Bill
No. 1858 and House Bill No. 4433," the term "designation" of R TCs that will exclusively handle drug-
related offenses was used to skirt the budgetary requirements that might accrue by the "creation" of
exclusive drugs courts. It was never intended to divest the R TCs of their exclusive original
jurisdiction over drug-related cases. The Records are clear:

THE CHAIRMAN (REP. CUENCO). x x x [W]e would like to propose the creation of drug courts to
handle exclusively drug cases; the imposition of a 60-day deadline on courts within which to decide
drug cases; and No. 3, provide penalties on officers of the law and government prosecutors for
mishandling and delaying drugs cases.

We will address these concerns one by one.

1. The possible creation of drugs courts to handle exclusively drug cases. Any comments?

xxxx

THE CHAIRMAN (SEN. BARBERS). We have no objection to this proposal, Mr. Chairman. As a matter
of fact, this is one of the areas where we come into an agreement when we were in Japan. However, I
just would like to add a paragraph after the word "Act" in Section 86 of the Senate versions, Mr.
Chairman. And this is in connection with the designation of special courts by "The Supreme Court shall
designate special courts from among the existing Regional Trial Courts in each judicial region to
exclusively try and hear cases involving violations of this Act. The number of court designated in each
judicial region shall be based on the population and the number of pending cases in their respective
jurisdiction." That is my proposal, Mr. Chairman.

THE CHAIRMAN (REP. CUENCO). We adopt the same proposal.

xxxx

THE CHAIRMAN (SEN. BARBERS). I have no problem with that, Mr. Chairman, but I'd like to call
your attention to the fact that my proposal is only for designation because if it is for a creation that
would entail another budget, Mr. Chairman. And almost always, the Department of Budget would tell us
at the budget hearing that we lack funds, we do not have money. So that might delay the very purpose
why we want the RTC or the municipal courts to handle exclusively the drug cases. That's why my
proposal is designation not creation.

THE CHAIRMAN (REP. CUENCO). Areglado. No problem, designation. Approved. 96

Page 29 of 131
The exclusive original jurisdiction over violations of RA 9165 is not transferred to the Sandiganbayan
whenever the accused occupies a position classified as Grade 27 or higher, regardless of whether the
violation is alleged as committed in relation to office. The power of the Sandiganbayan to sit in
judgment of high-ranking government officials is not omnipotent. The Sandiganbayan's jurisdiction is
circumscribed by law and its limits are currently defined and prescribed by RA 10660,  which
97

amended Presidential Decree No. (PD) 1606.  As it now stands, the Sandiganbayan has jurisdiction
98

over the following:

SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time of the commission of the
offense:

(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of
1989 (Republic Act No. 6758), specifically including:

xxxx

(2) Members of Congress and officials thereof classified as Grade '27' and higher under the
Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of
the Constitution; and

(5) All other national and local officials classified as Grade '27' and higher under the Compensation
and Position Classification Act of 1989.

b. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection a. of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and
14-A, issued in 1986. Provided, That the Regional Trial Court shall have exclusive original jurisdiction
where the information: (a) does not allege any damage to the government or any bribery; or (b) alleges
damage to the government or bribery arising from the same or closely related transactions or acts in
an amount not exceeding One Million pesos (₱l,000,000.00).

Page 30 of 131
The foregoing immediately betrays that the Sandiganbayan primarily sits as a special anti-graft
court pursuant to a specific injunction in the 1973 Constitution.  Its characterization and continuation
99

as such was expressly given a constitutional fiat under Section 4, Article XI of the 1987 Constitution,
which states:

SECTION 4. The present anti-graft court known as the Sandiganbayan shall continue to function and
exercise its jurisdiction as now or hereafter may be provided by law.

It should occasion no surprise, therefore, that the Sandiganbayan is without jurisdiction to hear drug-
related cases. Even Section 4(b) of PD 1606, as amended by RA 10660, touted by the petitioner and
the dissents as a catchall provision, does not operate to strip the R TCs of its exclusive original
jurisdiction over violations of RA 9165. As pointed out by Justices Tijam and Martires, a perusal of
the drugs law will reveal that public officials were never considered excluded from its scope. Hence,
Section 27 of RA 9165 punishes government officials found to have benefited from the trafficking of
dangerous drugs, while Section 28 of the law imposes the maximum penalty on such government
officials and employees. The adverted sections read:

SECTION 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication

or Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laborat01y Equipment Including the Proceeds or Properties
Obtained from the Unlawful Act Committed - The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (Pl0,000,000.00), in
addition to absolute perpetual disqualification from any public office, shall be imposed upon any public
officer or employee who misappropriates, misapplies or fails to account for confiscated, seized or
surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or
properties obtained from the unlawful acts as provided for in this Act.

Any elective local or national official found to have benefited from the proceeds of the trafficking of
dangerous drugs as prescribed in this Act, or have received any financial or material contributions or
donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed
in this Act, shall be removed from office and perpetually disqualified from holding any elective or
appointive positions in the government, its divisions, subdivisions, and intermediaries, including
government-owned or -controlled corporations.

SECTION 28. Criminal Liability of Government Officials and Employees.  - The maximum penalties of
the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual
disqualification from any public office, if those found guilty of such unlawful acts are government
officials and employees. (Emphasis supplied)

Section 4(b) of PD 1606, as amended by RA 10660, provides but the general rule, couched in a "broad
and general phraseology. "  Exceptions abound. Besides the jurisdiction on written defamations and
100

libel, as illustrated in Morales  and People v. Benipayo,   the RTC is likewise given "exclusive original
101 102

Page 31 of 131
jurisdiction to try and decide any criminal action or proceedings for violation of the Omnibus Election
Code,"  regardless of whether such violation was committed by public officers occupying positions
103

classified as Grade 27 or higher in relation to their offices. In fact, offenses committed by members
of the Armed Forces in relation to their office, i.e., in the words of RA 7055, "service-connected
104

crimes or offenses," are not cognizable by the Sandiganbayan but by court-martial.

Certainly, jurisdiction over offenses and felonies committed by public officers is not determined
solely by the pay scale or by the fact that they were committed "in relation to their office." In
determining the forum vested with the jurisdiction to try and decide criminal actions, the laws
governing the subject matter of the criminal prosecution must likewise be considered.

In this case, RA 9165 specifies the RTC as the court with the jurisdiction to "exclusively  try and
hear cases involving violations of [RA 9165)." This is an exception, couched in the special law on
dangerous drugs, to the general rule under Section 4(b) of PD 1606, as amended by RA
10660. It is a canon of statutory construction that a special law prevails over a general law and the
latter is to be considered as an exception to the general.
105

Parenthetically, it has been advanced that RA 10660 has repealed Section 90 of RA 9165. However, a
closer look at the repealing clause of RA 10660 will show that there is no express repeal of Section 90
of RA 9165 and well-entrenched is the rule that an implied repeal is disfavored. It is only accepted
upon the clearest proof of inconsistency so repugnant that the two laws cannot be enforced.  The
106

presumption against implied repeal is stronger when of two laws involved one is special and the other
general.  The mentioned rule in statutory construction that a special law prevails over a general law
107

applies regardless of the laws' respective dates of passage. Thus, this Court ruled:

x x x [I]t is a canon of statutory construction that a special law prevails over a general law -
regardless of their dates of passage - and the special is to be considered as remaining an exception to
the general.

So also, every effort must be exerted to avoid a conflict between statutes. If reasonable
construction is possible, the laws must be reconciled in that manner.

Repeals of laws by implication moreover are not favored, and the mere repugnancy between two
statutes should be very clear to warrant the court in holding that the later in time repeals the other. 108

To reiterate for emphasis, Section 4(b) of PD 1606, as amended by RA 10660, is the general

law on jurisdiction of the Sandiganbayan over crimes and offenses committed by high-ranking public
officers in relation to their office; Section 90, RA 9165 is the special law excluding from the
Sandiganbayan's jurisdiction violations of RA 9165 committed by such public officers. In the latter
case, jurisdiction is vested upon the RTCs designated by the Supreme Court as drugs court, regardless
of whether the violation of RA 9165 was committed in relation to the public officials' office.

The exceptional rule provided under Section 90, RA 9165 relegating original exclusive jurisdiction to
RTCs specially designated by the Supreme Court logically follows given the technical aspect of drug-

Page 32 of 131
related cases. With the proliferation of cases involving violation of RA 9165, it is easy to dismiss them
as common and untechnical. However, narcotic substances possess unique characteristics that render
them not readily identifiable.  In fact, they must first be subjected to scientific analysis by forensic
109

chemists to determine their composition and nature. Thus, judges presiding over designated drugs
110

courts are specially trained by the Philippine Judicial Academy (PhilJa) and given scientific
instructions to equip them with the proper tools to appreciate pharmacological evidence and give
analytical insight upon this esoteric subject. After all, the primary consideration of RA 9165 is the
fact that the substances involved are, in fact, dangerous drugs, their plant sources, or their
controlled precursors and essential chemicals. Without a doubt, not one of the Sandiganbayan justices
were provided with knowledge and technical expertise on matters relating to prohibited substances.

Hard figures likewise support the original and exclusive jurisdiction of the RTCs over violations of RA
9165. As previously stated, as of June 30, 2017, there are 232,557 drugs cases pending before the
RTCs. On the other hand, not even a single case filed before the Sandiganbayan from February 1979
to June 30, 2017 dealt with violations of the drugs law. Instead, true to its designation as an anti-
graft court, the bulk of the cases filed before the Sandiganbayan involve violations of RA 3019,
entitled the "Anti-Graft and Corrupt Practices Act" and malversation.  With these, it would not only
111

be unwise but reckless to allow the tribunal uninstructed and inexperienced with the intricacies of
drugs cases to hear and decide violations of RA 9165 solely on account of the pay scale of the
accused.

Likewise of special significance is the proviso introduced by RA 10660 which, to reiterate for

emphasis, states:

Provided, That the Regional Trial Court shall have exclusive original jurisdiction where the
information: (a) does not allege any damage to the government or any bribery; or (b) alleges damage to
the government or bribery arising from the same or closely related transactions or acts in an amount
not exceeding One million pesos (₱l,000,000.00).

The clear import of the new paragraph introduced by RA 10660 is to streamline the cases handled by
the Sandiganbayan by delegating to the RTCs some cases involving high-ranking public officials. With
the dissents' proposition, opening the Sandiganbayan to the influx of drug-related cases, RA 10660
which was intended to unclog the dockets of the Sandiganbayan would all be for naught. Hence,
sustaining the RTC's jurisdiction over drug-related cases despite the accused's high-ranking position,
as in this case, is all the more proper.

Even granting arguendo that the Court declares the Sandiganbayan has jurisdiction over the
information subject of Criminal Case No. 17-165, still it will not automatically result in the release
from detention and restore the liberty and freedom of petitioner. The R TC has several options if it
dismisses the criminal case based on the grounds raised by petitioner in her Motion to Quash.

Under Rule 117 of the Rules of Court, the trial court has three (3) possible alternative actions when
confronted with a Motion to Quash:

Page 33 of 131
 1. Order the amendment of the Infonnation;

2. Sustain the Motion to Quash; or

3. Deny the Motion to Quash.

The first two options are available to the trial court where the motion to quash is meritorious.
Specifically, as to the first option, this court had held that should the Information be deficient or
lacking in any material allegation, the trial court can order the amendment of the Information under
Section 4, Rule 117 of the Rules of Court, which states:

SECTION 4. Amendment of Complaint or Information. - If the motion to quash is based on an alleged

defect of the complaint or information which can be cured by amendment, the court shall order that
an amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall
be given by the court an opportunity to correct the defect by amendment. The motion shall be
granted if the prosecution fails to make the amendment, or the complaint or information still suffers
from the same defect despite the amendment.

The failure of the trial court to order the correction of a defect in the Information curable by an
amendment amounts to an arbitrary exercise of power. So, this Court held in Dio v. People:

This Court has held that failure to provide the prosecution with the opportunity to amend is an
arbitrary exercise of power. In People v. Sandiganbayan (Fourth Division): When a motion to quash is
filed challenging the validity and sufficiency of an Information, and the defect may be cured by
amendment, courts must deny the motion to quash and order the prosecution to file an amended
Information. Generally, a defect pertaining to the failure of an Information to charge facts
constituting an offense is one that may be corrected by an amendment. In such instances, courts are
mandated not to automatically quash the Information; rather, it should grant the prosecution the
opportunity to cure the defect through an amendment. This rule allows a case to proceed without
undue delay. By allowing the defect to be cured by simple amendment, unnecessary appeals based on
technical grounds, which only result to prolonging the proceedings, are avoided.

More than this practical consideration, however, is the due process underpinnings of this rule. As
explained by this Court in People v. Andrade, the State, just like any other litigant, is entitled to its
day in court. Thus, a court's refusal to grant the prosecution the opportunity to amend an
Information, where such right is expressly granted under the Rules of Court and affirmed time and
again in a string of Supreme Court decisions, effectively curtails the State's right to due process. 112

Notably, the defect involved in Dio was the Information's failure to establish the venue - a matter of
jurisdiction in criminal cases. Thus, in the case at bar where petitioner has not yet been arraigned, the
court a quo has the power to order the amendment of the February 17, 2017 Information filed against

Page 34 of 131
the petitioner. This power to order the amendment is not reposed with this Court in the exercise of
its certiorari powers.

Nevertheless, should the trial court sustain the motion by actually ordering the quashal of the
Infonnation, the prosecution is not precluded from filing another information. An order sustaining the
motion to quash the information would neither bar another prosecution  or require the release of the
113

accused from custody. Instead, under Section 5, Rule 117 of the Rules of Court, the trial court can
simply order that another complaint or information be filed without discharging the accused from
custody. Section 5, Rule 117 states, thus:

Section 5. Effect of sustaining the motion to quash. - If the motion to quash is sustained, the court
may order that another complaint or information be filed except as provided in Section 6 of this rule.
If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no
order is made or if having been made, no new information is filed within the time specified in the
order or within such further time as the court may allow for good cause, the accused, if in custody,
shall be discharged unless he is also in custody for another charge.

Section 6, Rule 117, adverted to in the foregoing provision, prevents the re-filing of an information on
only two grounds: that the criminal action or liability has already been extinguished, and that of
double jeopardy. Neither was invoked in petitioner's Motion to Quash filed before the court a quo.

The third option available to the trial court is the denial of the motion to quash. Even granting, for the
nonce, the petitioner's position that the trial court's issuance of the warrant for her arrest is an
implied denial of her Motion to Quash, the proper remedy against this court action is to proceed to
trial, not to file the present petition for certiorari. This Court in Galzote v. Briones reiterated this
established doctrine:

A preliminary consideration in this case relates to the propriety of the chosen legal remedies availed
of by the petitioner in the lower courts to question the denial of his motion to quash. In the usual
course of procedure, a denial of a motion to quash filed by the accused results in the continuation of
the trial and the determination of the guilt or innocence of the accused. If a judgment of conviction is
rendered and the lower court's decision of conviction is appealed, the accused can then raise the
denial of his motion to quash not only as an error committed by the trial court but as an added ground
to overturn the latter's ruling.

In this case, the petitioner did not proceed to trial but opted to immediately question the denial of his
motion to quash via a special civil action for certiorari under Rule 65 of the Rules of Court.

As a rule, the denial of a motion to quash is an interlocutory order and is not appealable; an appeal
from an interlocutory order is not allowed under Section 1 (b), Rule 41 of the Rules of Court. Neither
can it be a proper subject of a petition for certiorari which can be used only in the absence of an
appeal or any other adequate, plain and speedy remedy. The plain and speedy remedy upon denial of an
interlocutory order is to proceed to trial as discussed above.  (Emphasis and underscoring supplied)
114

Page 35 of 131
At this juncture, it must be stressed yet again that the trial court has been denied the opportunity to
act and rule on petitioner's motion when the latter jumped the gun and prematurely repaired
posthaste to this Court, thereby immobilizing the trial court in its tracks. Verily, De Lima should have
waited for the decision on her motion to quash instead of prematurely filing the instant recourse.

In the light of the foregoing, the best course of action for the Court to take is to dismiss the petition
and direct the trial court to rule on the Motion to Quash and undertake all the necessary proceedings
to expedite the adjudication of the subject criminal case.

RESPONDENT JUDGE DID NOT ABUSE HER DISCRETION IN FINDING PROBABLE CAUSE TO
ORDER THE PETITIONER'S ARREST

The basis for petitioner's contention that respondent judge committed grave abuse of discretion in
issuing the February 23, 2017 Order  finding probable cause to arrest the petitioner is two-pronged:
115

respondent judge should have first resolved the pending Motion to Quash before ordering the
petitioner's arrest; and there is no probable cause to justify the petitioner's arrest.

Grave abuse of discretion is the capricious and whimsical exercise of judgment equivalent to an
evasion of positive duty or a virtual refusal to act at all in contemplation of the law.
116

In the present case, the respondent judge had no positive duty to first resolve the Motion to
Quash before issuing a warrant of arrest. There is no rule of procedure, statute, or jurisprudence to
support the petitioner's claim. Rather, Sec.5(a), Rule 112 of the Rules of Court  required the
117

respondent judge to evaluate the prosecutor's resolution and its supporting evidence within a limited
period of only ten (10) days, viz.:

SEC. 5. When warrant of arrest may issue. -

(a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish probable cause.
If he finds probable cause, he shall issue a warrant of arrest, or a commitment order when the
complaint or information was filed pursuant to Section 6 of this Rule. In case of doubt on the
existence of probable cause, the judge may order the prosecutor to present additional evidence within
five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the
filing of the complaint or information.

It is not far-fetched to conclude, therefore, that had the respondent judge waited longer and first
attended to the petitioner's Motion to Quash, she would have exposed herself to a possible
administrative liability for failure to observe Sec. 5(a), Rule 112 of the Rules of Court. Her exercise of
discretion was sound and in conformity with the provisions of the Rules of Court considering that
a Motion to Quash may be filed and, thus resolved by a trial court judge, at any time before the
accused petitioner enters her plea.  What is more, it is in accord with this Court's ruling in Marcos v.
118

Cabrera-Faller that "[a]s the presiding judge, it was her task, upon the filing of the Information, to
119

Page 36 of 131
first and foremost determine the existence or non-existence of probable cause for the arrest of the
accused."

This Court's ruling in Miranda v. Tuliao  does not support the petitioner's position. Miranda does not
120

prevent a trial court from ordering the arrest of an accused even pending a motion to quash the
infonnation. At most, it simply explains that an accused can seek judicial relief even if he has not yet
been taken in the custody of law.

Undoubtedly, contrary to petitioner's postulation, there is no rule or basic principle requiring a trial
judge to first resolve a motion to quash, whether grounded on lack of jurisdiction or not, before
issuing a warrant of arrest. As such, respondent judge committed no grave abuse of discretion in
issuing the assailed February 23, 2017 Order even before resolving petitioner's Motion to
Quash. There is certainly no indication that respondent judge deviated from the usual procedure in
finding probable cause to issue the petitioner's arrest.

And yet, petitioner further contends that the language of the February 23, 2017 Order violated her
constitutional rights and is contrary to the doctrine in Soliven v. Makasiar.  Petitioner maintains that
121

respondent judge failed to personally determine the probable cause for the issuance of the warrant
of arrest since, as stated in the assailed Order, respondent judge based her findings on the evidence
presented during the preliminary investigation and not on the report and supporting documents
submitted by the prosecutor.  This hardly deserves serious consideration.
122

Personal determination of the existence of probable cause by the judge is required before a warrant
of arrest may issue. The Constitution  and the Revised Rules of Criminal Procedure  command the
123 124

judge "to refrain from making a mindless acquiescence to the prosecutor's findings and to conduct his
own examination of the facts and circumstances presented by both parties. "  This much is clear from
125

this Court's n1ling in Soliven cited by the petitioner, viz.:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 126

It must be emphasized, however, that in determining the probable cause to issue the warrant of
arrest against the petitioner, respondent judge evaluated the Information and "all the evidence
presented during the preliminary investigation conducted in this case." The assailed February 23, 2017
Order is here restated for easy reference and provides, thusly:

After a careful evaluation of the herein Information and all the evidence presented during the
preliminary investigation conducted in this case by the Department of Justice, Manila, the Court finds

Page 37 of 131
sufficient probable cause for the issuance of Warrants of Arrest against all the accused LEILA M. DE
LIMA x x x.  (Emphasis supplied.)
127

As the prosecutor's report/resolution precisely finds support from the evidence presented during the
preliminary investigation, this Court cannot consider the respondent judge to have evaded her duty or
refused to perform her obligation to satisfy herself that substantial basis exists for the petitioner's
arrest. "All the evidence presented during the preliminary investigation" encompasses a broader
category than the "supporting evidence" required to be evaluated in Soliven. It may perhaps even be
stated that respondent judge performed her duty in a manner that far exceeds what is required of
her by the rules when she reviewed all the evidence, not just the supporting documents. At the very
least, she certainly discharged a judge's duty in finding probable cause for the issuance of a warrant,
as described in Ho v. People:

The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained
again what probable cause means. Probable cause for the issuance of a warrant of arrest is the
existence of such facts and circumstances that would lead a reasonably discreet and prudent person
to believe that an offense has been committed by the person sought to be arrested. Hence, the judge,
before issuing a warrant of arrest, 'must satisfy himself that based on the evidence submitted, there
is sufficient proof that a crime has been committed and that the person to be arrested is probably
guilty thereof' At this stage of the criminal proceeding, the judge is not yet tasked to review in detail
the evidence submitted during the preliminary investigation. It is sufficient that he personally
evaluates such evidence in determining probable cause. In Webb v. De Leon we stressed that the
judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he
need not conduct a de novo hearing. He simply personally reviews the prosecutor's initial
determination finding probable cause to see if it is supported by substantial evidence."

xxxx

x x x [T]he judge cannot rely solely on the report of the prosecutor in finding probable cause to
justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the
prosecutor's report will support his own conclusion that there is reason to charge the accused for an
offense and hold him for trial. However, the judge must decide independently. Hence, he must have
supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own
findings on the existence (or non-existence) of probable cause to issue an arrest order. This
responsibility of determining personally and independently the existence or nonexistence of probable
cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor
could ease the burden of the judge and speed up the litigation process by forwarding to the latter not
only the information and his bare resolution finding probable cause, but also so much of the records
and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on
whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary
investigation be submitted to and examined by the judge. We do not intend to unduly burden trial
courts by obliging them to examine the complete records of every case all the time simply for the

Page 38 of 131
purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have
sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcript of stenographic notes, if any) upon which to make his
independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to
the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's
recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official duties and functions, which in turn gives
his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally
determine probable cause in the issuance of warrants of arrest. This Court has consistently held that
a judge fails in his bounden duty if he relies merely on the certification or the report of the
investigating officer.  (Emphasis supplied.)
128

Notably, for purposes of determining the propriety of the issuance of a warrant of arrest, the judge
is tasked to merely determine the probability, not the certainty, of the guilt of the accused.  She is
129

given wide latitude of discretion in the determination of probable cause for the issuance of warrants
of arrest.  A finding of probable cause to order the accused's arrest does not require an inquiry into
130

whether there is sufficient evidence to procure a conviction.  It is enough that it is believed that the
131

act or omission complained of constitutes the offense charged. 132

Again, per the February 23, 2017 Order, respondent judge evaluated all the evidence presented
during the preliminary investigation and on the basis thereof found probable cause to issue the
warrant of arrest against the petitioner. This is not surprising given that the only evidence available
on record are those provided by the complainants and the petitioner, in fact, did not present any
counter-affidavit or evidence to controvert this. Thus, there is nothing to disprove the following
preliminary findings of the DOJ prosecutors relative to the allegations in the Information filed in
Criminal Case No. 17-165:

Thus, from November 2012 to March 2013, De Lima[,] Ragos and Dayan should be indicted for violation
of Section 5, in relation to Section 3Gj), Section 26(b) and Section 28, of R.A. 9165, owing to the
delivery of PS million in two (2) occasions, on 24 November 2012 and 15 December 2012, to Dayan and
De Lima. The monies came inmate Peter Co [were] proceeds from illicit drug trade, which were given to
support the senatorial bid of De Lima.

Also in the same period, Dayan demanded from Ragos money to support the senatorial bid of De Lima.
Ragos demanded and received ₱100,000 tara from each of the high-profile inmates in exchange for
privileges, including their illicit drug trade. Ablen collected the money for Ragos who, in turn,
delivered them to Dayan at De Lima's residence. 133

The foregoing findings of the DOJ find support in the affidavits and testimonies of several persons.
For instance, in his Affidavit dated September 3, 2016, NBI agent Jovencio P. Ablen, Jr.
narrated, viz.:

21. On the morning of 24 November 2012, I received a call from Dep. Dir. Ragos asking where I was. I
told him I was at home. He replied that he will fetch me to accompany him on a very important task.

Page 39 of 131
22. Approximately an hour later, he arrived at my house. I boarded his vehicle, a Hyundai Tucson, with
plate no. RGU910. He then told me that he will deliver something to the then Secretary of Justice,
Sen. Leila De Lima. He continued and said "Nior confidential 'to. Tayong dalawa lang ang nakakaalam
nito. Dadalhin natin yung quota kay Lola. SM 'yang nasa bag. Tingnan mo."

23. The black bag he was referring to was in front of my feet. It [was a] black handbag. When I
opened the bag, I saw bundles of One Thousand Peso bills. 1âwphi1

24. At about 10 o'clock in the morning, we arrived at the house located at Laguna Bay corner Subic
Bay Drive, South Bay Village, Paranaque City.

25. Dep. Dir. Ragos parked his vehicle in front of the house. We both alighted the vehicle but he told
me to stay. He then proceeded to the house.

26. From our parked vehicle, I saw Mr. Ronnie Dayan open the gate. Dep. Dir. Ragos then handed the
black handbag containing bundles of one thousand peso bills to Mr. Dayan.

27. At that time, I also saw the then DOJ Sec. De Lima at the main door of the house. She was
wearing plain clothes which is commonly known referred to as "duster."

28. The house was elevated from the road and the fence was not high that is why I was able to clearly
see the person at the main door, that is, Sen. De Lima.

29. When Dep. Dir. Ragos and Mr. Dayan reached the main door, I saw Mr. Dayan hand the black
handbag to Sen. De Lima, which she received. The three of them then entered the house.

30. After about thirty (30) minutes, Dep. Dir. Ragos went out of the house. He no longer has the black
handbag with him.

31. We then drove to the BuCor Director's Quarters in Muntinlupa City. While cruising, Dep. Dir.
Ragos told me "Nior 'wag kang maingay kahit kanino at wala kang nakita ha,"  to which I replied "Sabi
mo e. e di wala akong nakita."

32. On the morning of 15 December 2012, Dep. Dir. Ragos again fetched me from my house and we
proceeded to the same house located at Laguna Bay comer Subic Bay Drive, South Bay Village,
Paranaque City.

33. That time, I saw a plastic bag in front of my feet. I asked Dep. Dir. Ragos "Quota na naman
Sir?"Dep. Dir. Ragos replied "Ano pa nga ba, 'tang ina sila lang meron. "
134

Petitioner's co-accused, Rafael Ragos, recounted in his own Affidavit dated September 26, 2016 a
similar scenario:

Page 40 of 131
8. One morning on the latter part of November 2012, I saw a black handbag containing a huge sum of
money on my bed inside the Director's Quarters of the BuCor. I looked inside the black handbag and
saw that it contains bundles of one thousand peso bills.

9. I then received a call asking me to deliver the black handbag to Mr. Ronnie Dayan. The caller said
the black handbag came from Peter Co and it contains "Limang Manoi<' which means Five Million Pesos
(Php5,000,000.00) as a "manoR' refers to One Million Pesos (Php 1,000,000.00) in the vernacular
inside the New Bilibid Prison.

10. As I personally know Mr. Dayan and knows that he stays in the house of the then DOJ Sec. Leila
M. De Lima located at Laguna Bay corner Subic Bay Drive, South Bay Village, Paranaque City, I knew I
had to deliver the black handbag to Sen. De Lima at the said address.

11. Before proceeding to the house of Sen. De Lima at the above[-]mentioned address, I called Mr.
Ablen to accompany me in delivering the money. I told him we were going to do an important task.

12. Mr. Ablen agreed to accompany me so I fetched him from his house and we proceeded to the house
of Sen. De Lima at the above-mentioned address.

13. While we were in the car, I told Mr. Ablen that the important task we will do is deliver Five Million
Pesos (Php5,000,000.00) "Quota" to Sen. De Lima. I also told him that the money was in the black
handbag that was on the floor of the passenger seat (in front of him) and he could check it, to which
Mr. Ablen complied.

14. Before noon, we arrived at the house of Sen. De Lima located at Laguna Bay corner Subic Bay
Drive, South Bay Village, Paranaque City.

15. I parked my vehicle in front of the house. Both Mr. Ablen and I alighted from the vehicle but I
went to the gate alone carrying the black handbag containing the Five Million Pesos (Php5,000,000.00).

16. At the gate, Mr. Ronnie Dayan greeted me and opened the gate for me. I then handed the handbag
containing the money to Mr. Dayan.

17. We then proceeded to the main door of the house where Sen. De Lima was waiting for us. At the
main door, Mr. Dayan handed the black handbag to Sen. De Lima, who received the same. We then
entered the house.

18. About thirty minutes after, I went out of the house and proceeded to my quarters at the BuCor,
Muntinlupa City.

19. One morning in the middle part of December 2012, I received a call to again deliver the plastic bag
containing money from Peter Co to Mr. Ronnie Dayan. This time the money was packed in a plastic bag
left on my bed inside my quarters at the BuCor, Muntinlupa City. From the outside of the bag, I could
easily perceive that it contains money because the bag is translucent.

Page 41 of 131
20. Just like before, I fetched Mr. Ablen from his house before proceeding to the house of Sen. De
Lima located at Laguna Bay corner Subic Bay Drive, South Bay Village, Paranaque City, where I know I
could find Mr. Dayan.

21. In the car, Mr. Ablen asked me if we are going to deliver "quota." I answered yes.

22. We arrived at the house of Sen. De Lima at the above[-]mentioned address at noontime. I again
parked in front of the house.

23. I carried the plastic bag containing money to the house. At the gate, I was greeted by Mr. Ronnie
Dayan. At that point, I handed the bag to Mr. Dayan. He received the bag and we proceeded inside the
house.135

The source of the monies delivered to petitioner De Lima was expressly bared by several felons
incarcerated inside the NBP. Among them is Peter Co, who testified in the following manner:

6. Noong huling bahagi ng 2012, sinabi sa akin ni Hans Tanna nanghihingi ng kontribusyon sa

mgaChinese sa Maximum Security Compound ng NBP si dating DOJ Sec. De Lima para sa kanyang
planong pagtakbo sa senado sa 2013 Elections. Dalawang beses akong nagbigay ng tig-P5 Million para
tugunan ang hiling ni Sen. De Lima, na dating  DOJ Secretary;

7. Binigay ko ang mga halagang ito kay Hans Tan para maibigay kay Sen. Leila De Lima na datingDOJ
Secretary. Sa parehong pagkakataon, sinabihan na lang ako ni  Hans Tan na naibigay na ang pera
kay Ronnie Dayan na siyang tumatanggap ng pera para kay dating  DOJ Sec. De Lima Sinabi rin niHans
Tanna ang nagdeliver ng pera ay si dating OIC ng BuCor na si Rafael Ragos.

8. Sa kabuuan, nakapagbigay ang mga Chinese sa loob ng Maximum ng PIO Million sa mga huling bahagi
ng taong 2012 kay dating DOJ Sec. De Lima para sa kanyang planong pagtakbo sa senado sa 2013
Elections. Ang mga perang ito ay mula sa pinagbentahan ng illegal na droga. 136

All these, at least preliminarily, outline a case for illegal drug trading committed in conspiracy by the
petitioner and her co-accused. Thus, the Court cannot sustain the allegation that respondent judge
committed grave abuse of discretion in issuing the assailed Order for petitioner's arrest.

Petitioner would later confine herself to the contention that the prosecution's evidence is
inadmissible, provided as they were by petitioner's co-accused who are convicted felons and whose
testimonies are but hearsay evidence.

Nowhere in Ramos v. Sandiganbayan   - the case relied upon by petitioner - did this Court rule that
137

testimonies given by a co-accused are of no value. The Court simply held that said testimonies should
be received with great caution, but not that they would not be considered. The testimony of Ramos'
co-accused was, in fact, admitted in the cited case. Furthermore, this Court explicitly ruled
in Estrada v. Office of the Ombudsman that hearsay evidence is admissible during preliminary
138

investigation. The Court held thusly:

Page 42 of 131
Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis
for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a
preliminary investigation because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties.  (Emphasis supplied.)
139

Verily, the admissibility of evidence,  their evidentiary weight, probative value, and the credibility of
140

the witness are matters that are best left to be resolved in a full-blown trial,  not during a
141

preliminary investigation where the technical rules of evidence are not applied  nor at the stage of
142

the determination of probable cause for the issuance of a warrant of arrest. Thus, the better
alternative is to proceed to the conduct of trial on the merits for the petitioner and the prosecution
to present their respective evidence in support of their allegations.

With the foregoing disquisitions, the provisional reliefs prayed for, as a consequence, have to be
rejected.

WHEREFORE, the instant petition for prohibition and certiorari is DISMISSED for lack of merit. The
Regional Trial Court of Muntinlupa City, Branch 204 is ordered to proceed with dispatch with Criminal
Case N6.17-165.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

See Dissenting Opinion

MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion See Separate Concurring Opinion

ANTONIO T. CARPIO TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice

I concur
I concur
See Separate Concurring
See Separate Opinion
& Dissenting Opinion
DIOSDADO M. PERALTA
LUCAS P. BERSAMIN
Associate Justice
Associate Justice

I concur ESTELA M. PERLAS-BERNABE

See Separate Opinion Associate Justice
MARIANO C. DEL CASTILLO

Page 43 of 131
 Associate Justice

I dissent
See Separate Opinion FRANCIS H. JARDELEZA
MARVIC M.V.F. LEONEN Associate Justice
Associate Justice

This is to certify that J.

Martires left his vote of concurrence.
See Dissent
See his concurring Opinion
ALFREDO BENJAMIN S. CAGUIOA
- (Sgd.) Sereno, CJ.
Associate Justice
SAMUEL R. MARTIRES
Associate Justice

See separate Concurring Opinion:

ANDRES B. REYES
NOEL GIMENEZ TIJAM
Associate Justice
Associate Justice

ALEXANDER G. GESMUNDO
Associate Justice

C E R T I F I C A T I O N

Pursuant to the Article VIII, Section 13 of the Constitution, it is hereby certified that the
conclusions in the above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

EN BANC

G.R. Nos. 217126-27, November 10, 2015

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE

OMBUDSMAN, Petitioner, v. COURT OF APPEALS (SIXTH DIVISION) AND JEJOMAR
ERWIN S. BINAY, JR., Respondents.

Page 44 of 131
 D E C I S I O N

PERLAS-BERNABE, J.:

"All government is a trust, every branch of government is a trust, and immemorially acknowledged
so to be[.]"1ChanRoblesVirtualawlibrary

The Case

Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by

petitioner Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the
Office of the Solicitor General (OSG), assailing: (a) the Resolution 3 dated March 16, 2015 of
public respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private
respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the implementation of the Joint Order 4 dated March 10, 20,15 of
the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City Government of
Makati, for six (6) months without pay; and (b) the Resolution 5 dated March 20, 2015 of the CA,
ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt 6 in CA-G.R. SP No.
139504.

Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary

injunction8 (WPI) in CA-G.R. SP No. 139453 which further enjoined the implementation of the
preventive suspension order, prompting the Ombudsman to file a supplemental petition 9 on April
13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching"
Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public officers and
employees of the City Government of Makati (Binay, Jr.,   et al), accusing them of Plunder11 and
violation of Republic Act No. (RA) 3019,12 otherwise known as "The Anti-Graft and Corrupt
Practices Act," in connection with the five (5) phases of the procurement and construction of the
Makati City Hall Parking Building (Makati Parking Building). 13

On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators 14 to conduct
a fact-finding investigation, submit an investigation report, and file the necessary complaint, if
warranted (1st Special Panel).15 Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st
Special Panel filed a complaint16 (OMB Complaint) against Binay, Jr., et al, charging them with six
(6) administrative cases17for Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to
the Best Interest of the Service, and six (6) criminal cases 18 for violation of Section 3 (e) of RA
3019, Malversation of Public Funds, and Falsification of Public Documents (OMB Cases). 19

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As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities attending
the following procurement and construction phases of the Makati Parking Building project,
committed during his previous and present terms as City Mayor of Makati:

Binay, Jr.'s First Term (2010 to 2013)20

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati
Parking Building project to Hilmarc's Construction Corporation (Hilmarc's), and consequently,
executed the corresponding contract22 on September 28, 2010,23 without the required
publication and the lack of architectural design, 24 and approved the release of funds therefor in
the following amounts as follows: (1) P130,518,394.80 on December 15, 2010;25 (2)
P134,470,659.64 on January 19, 2011;26 (3) P92,775,202.27 on February 25, 2011;27 (4)
P57,148,625.51 on March 28, 2011;28 (5) P40,908,750.61 on May 3, 2011;29 and (6)
P106,672,761.90 on July 7, 2011;30

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award 31 for Phase IV of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding contract 32 on
August 18, 2011,33 without the required publication and the lack of architectural design, 34 and
approved the release of funds therefor in the following amounts as follows: (1) P182,325,538.97
on October 4, 2O11;35 (2) P173,132,606.91 on October 28,2011;36 (3) P80,408,735.20 on December
12, 2011;37 (4) P62,878,291.81 on February 10, 2012;38 and (5) P59,639,167.90 on October 1,
2012;39

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award 40 for Phase V of the Makati
Parking Building project to Hilmarc's, and consequently, executed the corresponding contract 41 on
September 13, 2012,42 without the required publication and the lack of architectural design, 43 and
approved the release of the funds therefor in the amounts of P32,398,220.05 44 and
P30,582,629.3045 on December 20, 2012;  and 

Binay, Jr.'s Second Term (2013 to 2016)46

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining
balance of the September 13, 2012 contract with Hilmarc's for Phase V of the Makati Parking
Building project in the amount of P27,443,629.97; 47 and

(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the design and
architectural services covering the Makati Parking Building project in the amount of
P429,011.48.49

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2 nd Special

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Panel).50Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders51 for each of
the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.52

Before Binay, Jr.,  et al.'s  filing of their counter-affidavits, the Ombudsman, upon the
recommendation of the 2nd Special Panel, issued on March 10, 2015, the subject preventive
suspension order, placing Binay, Jr.,  et al.  under preventive suspension for not more than six (6)
months without pay, during the pendency of the OMB Cases. 53 The Ombudsman ruled that the
requisites for the preventive suspension of a public officer are present, 54 finding that: (a) the
evidence of Binay, Jr.,  et al.'s guilt was strong given that (1) the losing bidders and members of
the Bids and Awards Committee of Makati City had attested to the irregularities attending the
Makati Parking Building project; (2) the documents on record negated the publication of bids; and
(3) the disbursement vouchers, checks, and official receipts showed the release of funds; and (b)
(1) Binay, Jr., et al. were administratively charged with Grave Misconduct, Serious Dishonesty,
and Conduct Prejudicial to the Best Interest of the Service; (2) said charges, if proven to be
true, warrant removal from public service under the Revised Rules on Administrative Cases in the
Civil Service (RRACCS), and (3) Binay, Jr.,  et al.'s respective positions give them access to public
records and allow them to influence possible witnesses; hence, their continued stay in office may
prejudice the investigation relative to the OMB Cases filed against them. 55 Consequently, the
Ombudsman directed the Department of Interior and Local Government (DILG), through
Secretary Manuel A. Roxas II (Secretary Roxas), to immediately implement the preventive
suspension order against Binay, Jr., et al., upon receipt of the same.56

On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City
Mayor, and received by Maricon Ausan, a member of Binay, Jr.'s staff. 57

The Proceedings Before the CA

On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP
No. 139453, seeking the nullification of the preventive suspension order, and praying for the
issuance of a TRO and/or WPI to enjoin its implementation. 60Primarily, Binay, Jr. argued that
he could not be held administratively liable for any anomalous activity attending any of the five
(5) phases of the Makati Parking Building project since: ( a) Phases I and II were undertaken
before he was elected Mayor of Makati in 2010; and (b) Phases III to V transpired during his
first term and that his re-election as City Mayor of Makati for a second term effectively
condoned his administrative liability therefor, if any, thus rendering the administrative cases
against him moot and academic.61In any event, Binay, Jr. claimed that the Ombudsman's
preventive suspension order failed to show that the evidence of guilt presented against him
is strong, maintaining that he did not participate in any of the purported irregularities. 62 In
support of his prayer for injunctive relief, Binay, Jr. argued that he has a clear and unmistakable
right to hold public office, having won by landslide vote in the 2010 and 2013 elections, and that,
in view of the condonation doctrine, as well as the lack of evidence to sustain the charges against
him, his suspension from office would undeservedly deprive the electorate of the services of the

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person they have conscientiously chosen and voted into office. 63

On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the
preventive suspension order through the DILG National Capital Region - Regional Director, Renato
L. Brion, CESO III (Director Brion), who posted a copy thereof on the wall of the Makati City
Hall after failing to personally serve the same on Binay, Jr. as the points of entry to the Makati
City Hall were closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C.
Evangelista administered the oath of office on Makati City Vice Mayor Romulo V. Peña, Jr. (Peña,
Jr.) who thereupon assumed office as Acting Mayor. 64

At noon of the same day, the CA issued a Resolution 65 (dated March 16, 2015), granting Binay,
Jr.'s prayer for a TRO,66 notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor
earlier that day.67Citing the case of Governor Garcia, Jr. v. CA,68 the CA found that it was more
prudent on its part to issue a TRO in view of the extreme urgency of the matter and seriousness
of the issues raised, considering that if it were established that the acts subject of the
administrative cases against Binay, Jr. were all committed during his prior term, then, applying
the condonation doctrine, Binay, Jr.'s re-election meant that he can no longer be administratively
charged.69 The CA then directed the Ombudsman to comment on Binay, Jr.'s petition
for certiorari .70

On March 17, 2015, the Ombudsman manifested71 that the TRO did not state what act was being
restrained and that since the preventive suspension order had already been served and
implemented, there was no longer any act to restrain. 72

On the same day, Binay, Jr. filed a petition for contempt, 73  docketed as CA-G.R. SP No.
139504, accusing Secretary Roxas, Director Brion, the officials of the Philippine National Police,
and Pena, Jr. of deliberately refusing to obey the CA, thereby allegedly impeding, obstructing, or
degrading the administration of justice.74 The Ombudsman and Department of Justice Secretary
Leila M. De Lima were subsequently impleaded as additional respondents upon Binay, Jr.'s filing of
the amended and supplemental petition for contempt 75 (petition for contempt) on March 19,
2015.76 Among others, Binay, Jr. accused the Ombudsman and other respondents therein for
willfully and maliciously ignoring the TRO issued by the CA against the preventive suspension
order.77

In a Resolution78dated March 20, 2015, the CA ordered the consolidation of CA-G.R. SP No.
139453 and CA-G.R. SP No. 139504, and, without necessarily giving due course to Binay, Jr.'s
petition for contempt, directed the Ombudsman to file her comment thereto.79 The cases were
set for hearing of oral arguments on March 30 and 31, 2015.80

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman

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filed the present petition before this Court, assailing the CA's March 16, 2015 Resolution, which
granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No. 139453, and the March 20, 2015 Resolution
directing her to file a comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No.
139504.81 The Ombudsman claims that: (a) the CA had no jurisdiction to grant Binay, Jr.'s prayer
for a TRO, citing Section 14 of RA 6770, 82 or "The Ombudsman Act of 1989," which states that
no injunctive writ could be issued to delay the Ombudsman's investigation unless there is prima
facie evidence that the subject matter thereof is outside the latter's jurisdiction; 83 and (b) the
CA's directive for the Ombudsman to comment on Binay, Jr.'s petition for contempt is illegal and
improper, considering that the Ombudsman is an impeachable officer, and therefore, cannot be
subjected to contempt proceedings.84

In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial power to review acts of any branch or
instrumentality of government, including the Office of the Ombudsman, in case of grave abuse of
discretion amounting to lack or excess of jurisdiction, which he asserts was committed in this
case when said office issued the preventive suspension order against him. 86 Binay, Jr. posits that
it was incumbent upon the Ombudsman to1 have been apprised of the condonation doctrine as this
would have weighed heavily in determining whether there was strong evidence to warrant the
issuance of the preventive suspension order. 87 In this relation, Binay, Jr. maintains that the CA
correctly enjoined the implementation of the preventive suspension order given his clear and
unmistakable right to public office, and that it is clear that he could not be held administratively
liable for any of the charges against him since his subsequent re-election in 2013 operated as a
condonation of any administrative offenses he may have committed during his previous term. 88 As
regards the CA's order for the Ombudsman to comment on his petition for contempt, Binay, Jr.
submits that while the Ombudsman is indeed an impeachable officer and, hence, cannot be
removed from office except by way of impeachment, an action for contempt imposes the penalty
of fine and imprisonment, without necessarily resulting in removal from office. Thus, the fact
that the Ombudsman is an impeachable officer should not deprive the CA of its inherent power to
punish contempt.89

Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it
were held,91 granting Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of
the preventive suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible right
to the final relief prayed for, namely, the nullification of the preventive suspension order, in view
of the condonation doctrine, citing Aguinaldo v. Santos.92 Particularly, it found that the
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-election
in 2013 as City Mayor of Makati condoned any administrative liability arising from anomalous
activities relative to the Makati Parking Building project from 2007 to 2013. 93 In this regard, the
CA added that, although there were acts which were apparently committed by Binay, Jr. beyond
his first term — namely, the alleged payments on July 3, July 4, and July 24,
2013,94 corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,95 and Mayor

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Garcia v. Mojica96 wherein the condonation doctrine was still applied by the Court although the
payments were made after the official's re-election, reasoning that the payments were merely
effected pursuant to contracts executed before said re-election. 97 To this, the CA added that
there was no concrete evidence of Binay, Jr.'s participation for the alleged payments made on
July 3, 4, and 24, 2013.98

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition99 before this Court, arguing that the condonation
doctrine is irrelevant to the determination of whether the evidence of guilt is strong for
purposes of issuing preventive suspension orders. The Ombudsman also maintained that a reliance
on the condonation doctrine is a matter of defense, which should have been raised by Binay, Jr.
before it during the administrative proceedings, and that, at any rate, there is no condonation
because Binay, Jr. committed acts subject of the OMB Complaint after his re-election in 2013. 100

On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties.
Thereafter, they were required to file their respective memoranda. 102 In compliance thereto, the
Ombudsman filed her Memorandum103 on May 20, 2015, while Binay, Jr. submitted his
Memorandum the following day.104

Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on
each other's memoranda, and the OSG to comment on the Ombudsman's Memorandum, all within
ten (10) days from receipt of the notice.

On July 15, 2015, both parties filed their respective comments to each other's
memoranda.106Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of
Comment,107 simply stating that it was mutually agreed upon that the Office of the Ombudsman
would file its Memorandum, consistent with its desire to state its "institutional position." 108 In her
Memorandum and Comment to Binay, Jr.'s Memorandum, the Ombudsman pleaded, among others,
that this Court abandon the condonation doctrine.109 In view of the foregoing, the case was
deemed submitted for resolution.chanrobleslaw

The Issues Before the Court

Based on the parties' respective pleadings, and as raised during the oral arguments conducted
before this Court, the main issues to be resolved in seriatim are as follows:

I. Whether or not the present petition, and not motions for reconsideration of the
assailed CA issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the
Ombudsman's plain, speedy, and adequate remedy;cralawlawlibrary

II. Whether or not the CA has subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453;cralawlawlibrary

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 III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI
enjoining the implementation of a preventive suspension order issued by the
Ombudsman;cralawlawlibrary
IV. Whether or not the CA gravely abused its discretion in issuing the TRO and
eventually, the WPI in CA-G.R. SP No. 139453 enjoining the implementation of the
preventive suspension order against Binay, Jr. based on the condonation doctrine;
and
V. Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s
petition for contempt in CA- G.R. SP No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.chanrobleslaw

I.

A common requirement to both a petition for certiorari  and a petition for prohibition taken under
Rule 65 of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and
adequate remedy in the ordinary course of law. Sections 1 and 2 thereof provide:

Section 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.

xxxx

Section 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any other plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts r with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and justice may require.

x x x x (Emphases supplied)

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Hence, as a general rule, a motion for reconsideration must first be filed with the lower court
prior to resorting to the extraordinary remedy of certiorari or prohibition since a motion for
reconsideration may still be considered as a plain, speedy, and adequate remedy in the ordinary
course of law. The rationale for the pre-requisite is to grant an opportunity for the lower court
or agency to correct any actual or perceived error attributed to it by the re-examination of the
legal and factual circumstances of the case.110

Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the
propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will
promptly relieve the petitioner from the injurious effects of the judgment, order, or resolution
of the lower court or agency, x x x."111

In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a
petition for prohibition.112 These are: (a) where the order is a patent nullity, as where the court a
quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been
duly raised and passed upon by the lower court, or are the same as those raised and passed upon
in the lower court; (c) where there is an urgent necessity for the resolution of the question and
any further delay would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable; (d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was deprived of due process and there is
extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is improbable; ( g) where the proceedings in the
lower court are a nullity for lack of due process; (h) where the proceedings were  ex parte  or in
which the petitioner had no opportunity to object; and ( i) where the issue raised is one purely
of law or where public interest is involved.113

In this case, it is ineluctably clear that the above-highlighted exceptions attend since, for the
first time, the question on the authority of the CA - and of this Court, for that matter - to enjoin
the implementation of a preventive suspension order issued by the Office of the Ombudsman is
put to the fore. This case tests the constitutional and statutory limits of the fundamental powers
of key government institutions - namely, the Office of the Ombudsman, the Legislature, and the
Judiciary - and hence, involves an issue of transcendental public importance that demands no less
than a careful but expeditious resolution. Also raised is the equally important issue on the
propriety of the continuous application of the condonation doctrine as invoked by a public officer
who desires exculpation from administrative liability. As such, the Ombudsman's direct resort
to certiorari  and prohibition before this Court, notwithstanding her failure to move for the prior
reconsideration of the assailed issuances in CA-G.R. SP No. 139453 and CA-G.R. SP No. 139504
before the CA, is justified.chanrobleslaw

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 II.

Albeit raised for the first time by the Ombudsman in her Memorandum, 114 it is nonetheless proper
to resolve the issue on the CA's lack of subject matter jurisdiction over the main petition
for certiorari in CA-G.R. SP No. 139453, in view of the well-established rule that a court's
jurisdiction over the subject matter may be raised at any stage of the proceedings. The rationale
is that subject matter jurisdiction is conferred by law, and the lack of it affects the very
authority of the court to take cognizance of and to render judgment on the action. 115 Hence, it
should be preliminarily determined if the CA indeed had subject matter jurisdiction over the main
CA-G.R. SP No. 139453 petition, as the same determines the validity of all subsequent
proceedings relative thereto. It is noteworthy to point out that Binay, Jr. was given the
opportunity by this Court to be heard on this issue, 116 as he, in fact, duly submitted his opposition
through his comment to the Ombudsman's Memorandum. 117 That being said, the Court perceives
no reasonable objection against ruling on this issue.

The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main
petition, and her corollary prayer for its dismissal, is based on her interpretation of Section 14,
RA 6770, or the Ombudsman Act,118 which reads in full:

Section 14. Restrictions. - No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima
facie evidence that the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court119) from issuing a writ of injunction to delay an investigation being conducted by
the Office of the Ombudsman. Generally speaking, "[injunction is a judicial writ, process or
proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the
main action or merely a provisional remedy for and as an incident in the main
action."120 Considering the textual qualifier "to delay," which connotes a suspension of an action
while the main case remains pending, the "writ of injunction" mentioned in this paragraph could
only refer to injunctions of the provisional kind, consistent with the nature of a provisional
injunctive relief.

The exception to the no injunction policy is when there is prima facie evidence that the subject
matter of the investigation is outside the office's jurisdiction. The Office of the Ombudsman
has disciplinary authority over all elective and appointive officials of the government and its

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subdivisions, instrumentalities, and agencies, with the exception only of impeachable officers,
Members of Congress, and the Judiciary.121 Nonetheless, the Ombudsman retains the power to
investigate any serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if
warranted.122 Note that the Ombudsman has concurrent jurisdiction over certain administrative
cases which are within the jurisdiction of the regular courts or administrative agencies, but has
primary jurisdiction to investigate any act or omission of a public officer or employee who is
under the jurisdiction of the Sandiganbayan. 123

On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or
application for remedy may be heard against the decision or findings of the Ombudsman, with the
exception of the Supreme Court on pure questions of law. This paragraph, which the Ombudsman
particularly relies on in arguing that the CA had no jurisdiction over the main CA-G.R. SP No.
139453 petition, as it is supposedly this Court which has the sole jurisdiction to conduct a judicial
review of its decisions or findings, is vague for two (2) reasons: (1) it is unclear what the phrase
"application for remedy" or the word "findings" refers to; and (2) it does not specify what
procedural remedy is solely allowable to this Court, save that the same be taken only against a
pure question of law. The task then, is to apply the relevant principles of statutory construction
to resolve the ambiguity.

"The underlying principle of all construction is that the intent of the legislature should be sought
in the words employed to express it, and that when found[,] it should be made to govern, x x x. If
the words of the law seem to be of doubtful import, it may then perhaps become necessary to
look beyond them in order to ascertain what was in the legislative mind at the time the law was
enacted; what the circumstances were, under which the action was taken; what evil, if any, was
meant to be redressed; x x x [a]nd where the law has contemporaneously been put into operation,
and in doing so a construction has necessarily been put upon it, this construction, especially if
followed for some considerable period, is entitled to great respect, as being very probably a true
expression of the legislative purpose, and is not lightly to be overruled, although it is not
conclusive."124

As an aid to construction, courts may avail themselves of the actual proceedings of the legislative
body in interpreting a statute of doubtful meaning. In case of doubt as to what a provision of a
statute means, the meaning put to the provision during the legislative deliberations may be
adopted,125 albeit not controlling in the interpretation of the law. 126

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second 
paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on

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the matter of judicial review of her office's decisions or findings, is supposedly clear from the
following Senate deliberations:127

Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President, line 14, after the phrase
"petition for" delete the word "review" and in lieu thereof, insert the word CERTIORARI. So
that, review or appeal from the decision of the Ombudsman would only be taken not on a petition
for review, but on certiorari.

The President [Jovito R. Salonga]. What is the practical effect of that? Will it be more
difficult to reverse the decision under review ?

Senator Angara. It has two practical effect ways, Mr. President. First is that the findings of
facts of the Ombudsman would be almost conclusive if supported by substantial evidence.
Second, we would not unnecessarily clog the docket of the Supreme Court. So, it in effect
will be a  very strict appeal procedure.

xxxx

Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for example, if there are
exhaustive remedies available to a respondent, the respondent himself has the right to exhaust
the administrative remedies available to him?

Senator Angara. Yes, Mr. President, that is correct.

Senator Guingona. And he himself may cut the proceeding short by appealing to the Supreme
Court only on  certiorari  ?

Senator Angara. On question of law, yes.

Senator Guingona. And no other remedy is available to him?

Senator Angara. Going to the Supreme Court, Mr. President?

Senator Guingona. Yes. What I mean to say is, at what stage, for example, if he is a presidential
appointee who is the respondent, if there is f no certiorari  available, is the respondent given the
right to exhaust his administrative remedies first before the Ombudsman can take the
appropriate action?

Senator Angara. Yes, Mr. President, because we do not intend to change the administrative law
principle that before one can go to court, he must exhaust all administrative remedies xxx
available to him before he goes and seeks judicial review.

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xxxx

Senator [Neptali A.] Gonzales. What is the purpose of the Committee in changing the
method of appeal from one of a petition for review to a petition for  certiorari?

Senator Angara. To make it consistent, Mr. President, with the provision here in the bill to
the effect that the  finding of facts of the Ombudsman is conclusive if supported by
substantial evidence.

Senator Gonzales. A statement has been made by the Honorable Presiding Officer to which I
concur, that in an appeal by  certiorari  , the appeal is more difficult. Because
in  certiorari  it is a matter of discretion on the part of the court, whether to give due
course to the petition or dismiss it outright.  Is that not correct, Mr. President?

Senator Angara. That is absolutely correct, Mr. President

Senator Gonzales. And in a petition for  certiorari  , the issue is  limited  to whether or not
the Ombudsman here has acted without jurisdiction and has committed a grave abuse of
discretion amounting to lack of jurisdiction. Is that not the consequence, Mr. President.

Senator Angara. That is correct, Mr. President.

Senator Gonzales. And it is, therefore, in this sense that the intention of the Committee is to
make it harder to have a judicial review, but should be limited only to cases that I have
enumerated.

Senator Angara. Yes, Mr. President.

Senator Gonzales. I think, Mr. President, our Supreme Court has made a distinction between a
petition for review and a petition for certiorari ; because before, under the 1935 Constitution
appeal from any order, ruling or decision of the COMELEC shall be by means of review. But under
the Constitution it is now by certiorari and the Supreme Court said that by this change, the court
exercising judicial review will not inquire into the facts, into the evidence, because we will not go
deeply by way of review into the evidence on record but its authority will be limited to a
determination of whether the administrative agency acted without, or in excess of, jurisdiction,
or committed a grave abuse of discretion. So, I assume that that is the purpose of this
amendment, Mr. President.

Senator Angara. The distinguished Gentleman has stated it so well.

Senator Gonzales. I just want to put that in the Record. Senator Angara. It is very well stated,
Mr. President.

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xxxx

The President.  It is evident that there must be some final authority to render decisions.
Should it be the Ombudsman or should it be the Supreme Court?

Senator Angara. As I understand it, under our scheme of government, Mr. President, it is and
has to be the Supreme Court to make the final determination.

The President. Then if that is so, we have to modify Section 17 .

Senator Angara. That is why, Mr. President, some of our Colleagues have made a reservation to
introduce an appropriate change during the period of Individual Amendments.

xxxx

The President. All right. Is there any objection to the amendment inserting the
word CERTIORARI instead of "review"? [Silence] Hearing none, the same is approved.128

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the
provision debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the
exchange begins with the suggestion of Senator Angara to delete the word "review" that comes
after the phrase "petition for review" and, in its stead, insert the word " certiorari" so that the
"review or appeal from the decision of the Ombudsman would not only be taken on a petition for
review, but on certiorari" The ensuing exchange between Senators Gonzales and Angara then
dwells on the purpose of changing the method of review from one of a petition for review to a
petition for certiorari - that is, to make "the appeal x x x more difficult." Ultimately, the
amendment to the change in wording, from "petition for review" to "petition for certiorari" was
approved.

Noticeably, these references to a "petition for review" and the proposed "petition for certiorari"
are nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned
that this provision, particularly its second paragraph, does not indicate what specific procedural
remedy one should take in assailing a decision or finding of the Ombudsman; it only reveals that
the remedy be taken to this Court based on pure questions of law. More so, it was even
commented upon during the oral arguments of this case 129 that there was no debate or
clarification made on the current formulation of the second paragraph of Section 14, RA 6770
per the available excerpts of the Senate deliberations. In any case, at least for the above-cited
deliberations, the Court finds no adequate support to sustain the Ombudsman's entreaty that the
CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.

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On the contrary, it actually makes greater sense to posit that these deliberations refer to
another Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter
textually reflects the approval of Senator Angara's suggested amendment, i.e., that the
Ombudsman's decision or finding may be assailed in a petition for certiorari to this Court (fourth
paragraph), and further, his comment on the conclusive nature of the factual findings of the
Ombudsman, if supported by substantial evidence (third paragraph):

Section 27. Effectivity and Finality of Decisions.— (1) All provisionary orders of the Office of
the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman
must be filed within five (5) days after receipt of written notice and shall be entertained only on
any of the following grounds:chanRoblesvirtualLawlibrary
(1) New evidence has been discovered which materially affects the order, directive or
decision;cralawlawlibrary

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant.
The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That
only one motion for reconsideration shall be entertained.ChanRoblesVirtualawlibrary
Findings of fact by the Office of the Ombudsman when supported by substantial evidence are
conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand,
suspension of not more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within
ten (10) days from receipt of the written notice of the order, directive or decision or denial
of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the ' Ombudsman as the interest
of justice may require. (Emphasis and underscoring supplied)

At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a
"petition for certiorari" should be taken in accordance with Rule 45 of the Rules of Court, as it is
well-known that under the present 1997 Rules of Civil Procedure, petitions for certiorari are
governed by Rule 65 of the said Rules. However, it should be discerned that the Ombudsman Act
was passed way back in 1989130and, hence, before the advent of the 1997 Rules of Civil
Procedure.131 At that time, the governing 1964 Rules of Court,132 consistent with Section 27, RA
6770, referred to the appeal taken thereunder as a petition for certiorari , thus possibly
explaining the remedy's textual denomination, at least in the provision's final approved version:

RULE 45
Appeal from Court of Appeals to Supreme Court

Page 58 of 131
SECTION 1.  Filing of Petition with Supreme Court. - A party may appeal by certiorari , from a
judgment of the Court of Appeals, by filing with the Supreme Court a petition forcertiorari  ,
within fifteen (15) days from notice of judgment or of the denial of his motion for
reconsideration filed in due time, and paying at the same time, to the clerk of said court the
corresponding docketing fee. The petition shall not be acted upon without proof of service of a
copy thereof to the Court of Appeals. (Emphasis supplied)

B. Construing the second paragraph of

Section 14, RA 6770.

The Senate deliberations' lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the
meaning of the provision.

To recount, the second paragraph of Section 14, RA 6770 states that "[n]o court shall hear any
appeal or application for remedy against the decision or findings of the Ombudsman, except
the Supreme Court, on pure question of law."    ;cralawlawlibrary

As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of
remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision
or finding of the Ombudsman, and (b) "any application of remedy" (subject to the exception
below) against the same. To clarify, the phrase "application for remedy," being a generally worded
provision, and being separated from the term "appeal" by the disjunctive "or", 133 refers to any
remedy (whether taken mainly or provisionally), except an appeal, following the maxim generalia
verba sunt generaliter intelligenda: general words are to be understood in a general sense. 134 By
the same principle, the word "findings," which is also separated from the word "decision" by the
disjunctive "or", would therefore refer to any finding made by the Ombudsman (whether final or
provisional), except a decision.

The subject provision, however, crafts an exception to the foregoing general rule. While the
specific procedural vehicle is not explicit from its text, it is fairly deducible that the second
paragraph of Section 14, RA 6770 excepts, as the only allowable remedy against "the decision or
findings of the Ombudsman," a Rule 45 appeal, for the reason that it is the only remedy
taken to the Supreme Court on "pure questions of law," whether under the 1964 Rules of Court
or the 1997 Rules of Civil Procedure:

Rule 45, 1964 Rules of Court

RULE 45 
Appeal from Court of Appeals to Supreme Court

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xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters
involved, the assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the judgment sought
to be reviewed, together with twelve (12) copies of the record on appeal, if any, and of the
petitioner's brief as filed in the Court of Appeals. A verified statement of the date when notice
of judgment and denial of the motion for reconsideration, if any, were received shall accompany
the petition.

Only questions of law may be raised in the petition and must be distinctly set forth. If no
record on appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon
admission of the petition, shall demand from the Court of Appeals the elevation of the whole
record of the case. (Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45 
Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court. - A party desiring to appeal by certiorarifrom a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application
for a writ of preliminary injunction or other provisional remedies and shall raise only questions
of law, which must be distinctly set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or proceeding at any time during its
pendency. (Emphasis and underscoring supplied)

That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a
suggestion that defies traditional norms of procedure. It is basic procedural law that a Rule 65
petition is based on errors of jurisdiction, and not errors of judgment to which the classifications
of (a) questions of fact, (b) questions of law, or (c) questions of mixed fact and law, relate to. In
fact, there is no procedural rule, whether in the old or new Rules, which grounds a Rule 65
petition on pure questions of law. Indeed, it is also a statutory construction principle that the
lawmaking body cannot be said to have intended the establishment of conflicting and hostile
systems on the same subject. Such a result would render legislation a useless and idle ceremony,
and subject the laws to uncertainty and unintelligibility. 135 There should then be no confusion that
the second paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to this Court, and no

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other. In sum, the appropriate construction of this Ombudsman Act provision is that all remedies
against issuances of the Office of the Ombudsman are prohibited, except the above-stated Rule
45 remedy to the Court on pure questions of law.

C. Validity of the second paragraph of

Section 14, RA 6770.

Of course, the second paragraph of Section 14, RA 6770's extremely limited restriction on
remedies is inappropriate since a Rule 45 appeal -which is within the sphere of the rules of
procedure promulgated by this Court - can only be taken against final decisions or orders of lower
courts,136 and not against "findings" of quasi-judicial agencies. As will be later elaborated upon,
Congress cannot interfere with matters of procedure; hence, it cannot alter the scope of a Rule
45 appeal so as to apply to interlocutory "findings" issued by the Ombudsman. More
significantly, by confining the remedy to a Rule 45 appeal, the provision takes away the remedy
of certiorari, grounded on errors of jurisdiction, in denigration of the judicial power
constitutionally vested in courts. In this light, the second paragraph of Section 14, RA 6770 also
increased this Court's appellate jurisdiction, without a showing, however, that it gave its consent
to the same. The provision is, in fact, very similar to the fourth paragraph of Section 27, RA
6770 (as above-cited), which was invalidated in the case of Fabian v. Desiertoni137 (Fabian).138

In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as
unconstitutional since it had the effect of increasing the appellate jurisdiction of the Court
without its advice and concurrence in violation of Section 30, Article VI of the 1987
Constitution.139 Moreover, this provision was found to be inconsistent with Section 1, Rule 45 of
the present 1997 Rules of Procedure which, as above-intimated, applies only to a review of
"judgments or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals,
the Regional Trial Court, or other courts authorized by law;" and not of quasi-judicial agencies,
such as the Office of the Ombudsman, the remedy now being a Rule 43 appeal to the Court of
Appeals. In Ruivivar v. Office of the Ombudsman,140 the Court's ratiocinations and ruling
in Fabian  were recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of
R.A. No. 6770 (The Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure
of the Office of the Ombudsman) on the availability of appeal before the Supreme Court to assail
a decision or order of the Ombudsman in administrative cases. In Fabian, we invalidated Section
27 of R.A. No. 6770 (and Section 7, Rule III of A.O. No. 7 and the other rules
implementing the Act) insofar as it provided for appeal by certiorari under Rule 45 from the
decisions or orders of the Ombudsman in administrative cases. We held that Section 27 of
R.A. No. 6770 had the effect, not only of increasing the appellate jurisdiction of this Court
without its advice and concurrence in violation of Section 30, Article VI of the Constitution;
it was also inconsistent with Section 1, Rule 45 of the Rules of Court which provides that a
petition for review on certiorari shall apply only to a review of "judgments or final orders of

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the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial
Court, or other courts authorized by law." We pointedly said:chanRoblesvirtualLawlibrary
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck
down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-
judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the
Office of the Ombudsman in administrative disciplinary cases should be taken to the CA under
the provisions of Rule 43.141 (Emphasis supplied)

Since the second paragraph of Section 14, RA 6770 limits the remedy against "decision or
findings" of the Ombudsman to a Rule 45 appeal and thus - similar to the fourth paragraph of
Section 27, RA 6770142 - attempts to effectively increase the Supreme Court's appellate
jurisdiction without its advice and concurrence,143 it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary to the Ombudsman's
posturing,144Fabian should squarely apply since the above-stated Ombudsman Act provisions are in
part materia  in that they "cover the same specific or particular subject matter," 145 that is, the
manner of judicial review over issuances of the Ombudsman.

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the
existence of the CA's subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition,
including all subsequent proceedings relative thereto, as the Ombudsman herself has developed,
the Court deems it proper to resolve this issue ex mero motu  (on its own motion146). This
procedure, as was similarly adopted in  Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by a
party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we
shall explain.

Since the constitution is intended for the observance of the judiciary and other departments of
the government and the judges are sworn to support its provisions, the courts are not at liberty
to overlook or disregard its commands or countenance evasions thereof. When it is clear , that a
statute transgresses the authority vested in a legislative body, it is the duty of the courts to
declare that the constitution, and not the statute, governs in a case before them for judgment.

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the
pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude a
court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks
jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine
whether or not it has jurisdiction, it necessarily follows that it may inquire into the
constitutionality of the statute.

Constitutional questions, not raised in the regular and orderly procedure in the trial are

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ordinarily rejected unless the jurisdiction of the court below or that of the appellate court
is involved in which case it may be raised at any time or on the court's own motion. The
Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where
that fact is developed. The court has a clearly recognized right to determine its own jurisdiction
in any proceeding.147 (Emphasis supplied)

D. Consequence of invalidity.

In this case, the Rule 65 petition for certiorari  in CA-G.R. SP No. 139453 was filed by Binay, Jr.
before the CA in order to nullify the preventive suspension order issued by the Ombudsman, an
interlocutory order,148 hence, unappealable.149

In several cases decided after Fabian, the Court has ruled that Rule 65 petitions
for certiorari against unappelable issuances150 of the Ombudsman should be filed before the CA,
and not directly before this Court:

In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension

order issued by the Office of the Ombudsman was - similar to this case - assailed through a Rule
65 petition for certiorari filed by the public officer before the CA, the Court held that "[t]here
being a finding of grave abuse of discretion on the part of the Ombudsman, it was certainly
imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule 65." 152

In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition

for certiorariassailing a final and unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that "petitioner employed the correct mode of review in
this case, i.e., a special civil action for certiorari before the Court of Appeals." 154 In this relation,
it stated that while "a special civil action for Certiorari is within the concurrent original
jurisdiction of the Supreme Court and the Court of Appeals, such petition should be initially filed
with the Court of Appeals in observance of the doctrine of hierarchy of courts." Further, the
Court upheld  Barata v. Abalos, Jr.155 (June 6, 2001), wherein it was ruled that the remedy against
final and unappealable orders of the Office of the Ombudsman in an administrative case was a
Rule 65 petition to the CA. The same verdict was reached in Ruivivar156(September 16, 2008).

Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes that the CA has subject matter jurisdiction
over the main CA-G.R. SP No. 139453 petition. That being said, the Court now examines the
objections of the Ombudsman, this time against the CA's authority to issue the assailed TRO and
WPI against the implementation of the preventive suspension order, incidental to that main case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has no

Page 63 of 131
jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive
suspension orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in
conjunction with her office's independence under the 1987 Constitution. She advances the idea
that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it
from judicial intervention,"157particularly, "from injunctive reliefs traditionally obtainable from
the courts,"158 claiming that said writs may work "just as effectively as direct harassment or
political pressure would."159

A. The concept of Ombudsman independence.

Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman:

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 supplied)

In  Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical
underpinnings of the Office of the 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.

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.

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

Page 64 of 131
II and the standard of accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:chanRoblesvirtualLawlibrary
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. 161 (Emphasis supplied)

More significantly, Gonzales III  explained the broad scope of the office's mandate, and in
correlation, the impetus behind its independence:

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. 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:chanRoblesvirtualLawlibrary
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.ChanRoblesVirtualawlibrary
As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions,
although not squarely falling under the broad powers granted [to] 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.

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, x x x.

xxxx

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful

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government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies." It has powers, both constitutional and statutory, that are commensurate ,
with its daunting task of enforcing accountability of public officers. 162 (Emphasis and
underscoring supplied)

Gonzales III is the first case which grappled with the meaning of the Ombudsman's
independence vis-a-vis the independence of the other constitutional bodies. Pertinently, the Court
observed:

(1) "[T]he 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" 163;cralawlawlibrary

(2) "[T]he 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 [of] 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";164 and

(3) "[T]he 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. 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."165

At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office
of the Ombudsman, as well as that of the foregoing independent bodies, meant freedom from
control or supervision of the Executive Department:

[T]he 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 (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized

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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 [Commission on Elections]
"however well-meaning" it might have been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), 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.

xxxx

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. 166 (Emphases and underscoring
supplied)

Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770, which provides that "[a]
Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process," partially
unconstitutional insofar as it subjected the Deputy Ombudsman to the disciplinary authority of
the President for violating the principle of independence. Meanwhile, the validity of Section 8 (2),
RA 6770 was maintained insofar as the Office of the Special Prosecutor was concerned since said
office was not considered to be constitutionally within the Office of the Ombudsman and is,
hence, not entitled to the independence the latter enjoys under the Constitution. 167

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's
independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law, unless
the Constitution itself allows, or an amendment thereto is made;cralawlawlibrary

Second: fiscal autonomy, which means that the office "may not be obstructed from [its]
freedom to use or dispose of [its] funds for purposes germane to [its] functions; 168hence, its
budget cannot be strategically decreased by officials of the political branches of government so
as to impair said functions; and

Third: insulation from executive supervision and control, which means that those within the
ranks of the office can only be disciplined by an internal authority.

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Evidently, all three aspects of independence intend to protect the Office of the Ombudsman
from political harassment and pressure, so as to free it from the "insidious tentacles of
politics."169

That being the case, the concept of Ombudsman independence cannot be invoked as basis to
insulate the Ombudsman from judicial power constitutionally vested unto the courts. Courts are
apolitical bodies, which are ordained to act as impartial tribunals and apply even justice to all.
Hence, the Ombudsman's notion that it can be exempt from an incident of judicial power - that is,
a provisional writ of injunction against a preventive suspension order - clearly strays from the
concept's rationale of insulating the office from political harassment or pressure.

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the
Court under the 1987 Constitution.

The Ombudsman's erroneous abstraction of her office's independence notwithstanding, it

remains that the first paragraph of Section 14, RA 6770 textually prohibits courts from
extending provisional injunctive relief to delay any investigation conducted by her office. Despite
the usage of the general phrase "[n]o writ of injunction shall be issued by any court," the
Ombudsman herself concedes that the prohibition does not cover the Supreme Court. 170 As
support, she cites the following Senate deliberations:

Senator [Ernesto M.] Maceda. Mr. President, I do not know if an amendment is necessary. I
would just like to inquire for the record whether below the Supreme Court, it is understood
that there is no injunction policy against the Ombudsman by lower courts. Or, is it
necessary to have a special paragraph for that?

Senator Angara. Well, there is no provision here, Mr. President, that will prevent an injunction
against the Ombudsman being issued.

Senator Maceda. In which case, I think that the intention, this being one of the highest
constitutional bodies, is to subject this only to   certiorari  to the Supreme Court. I think an
injunction from the Supreme Court is, of course, in order but no lower courts should be
allowed to interfere.  We had a very bad experience with even, let us say, the Forestry Code
where no injunction is supposed to be issued against the Department of Natural
Resources.  Injunctions are issued right and left by RTC judges all over the country.

The President. Why do we not make an express provision to that effect?

Senator Angara. We would welcome that, Mr. President.

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The President. No [writs of injunction] from the trial courts other than the Supreme Court.

Senator Maceda. I so move, Mr. President, for that amendment.

The President. Is there any objection? [Silence] Hearing none, the same is approved.171

Further, she acknowledges that by virtue of Sections 1 and 5 (1), Article VIII of the 1987
Constitution, acts of the Ombudsman, including interlocutory orders, are subject to the Supreme
Court's power of judicial review As a corollary, the Supreme Court may issue ancillary mjunctive
writs or provisional remedies in the exercise of its power of judicial review over matters
pertaining to ongoing investigations by the Office of the Ombudsman. Respecting the CA,
however, the Ombudsman begs to differ.172

With these submissions, it is therefore apt to examine the validity of the first paragraph of
Section 14, RA 6770 insofar as it prohibits all courts, except this Court, from issuing provisional
writs of injunction to enjoin an Ombudsman investigation. That the constitutionality of this
provision is the lis mota of this case has not been seriously disputed. In fact, the issue anent its
constitutionality was properly raised and presented during the course of these
proceedings.173 More importantly, its resolution is clearly necessary to the complete disposition of
this case.174

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the

"Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative[,] and the judicial departments of the government." 176 The constitutional
demarcation of the three fundamental powers of government is more commonly known as the
principle of separation of powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica),177 the
Court held that "there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another." 178 In particular, "there is a violation of
the principle when there is impermissible (a) interference with and/or (b) assumption of another
department's functions."179

Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the
Supreme Court and all such lower courts:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

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This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress.  Thus, through the passage of Batas Pambansa Bilang
(BP) 129,180 known as "The Judiciary Reorganization Act of 1980," the Court of Appeals, 181 the
Regional Trial Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts183were established. Later, through the passage of RA 1125, 184 and Presidential
Decree No. (PD) 1486,185the Court of Tax Appeals, and the Sandiganbayan were respectively
established.

In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, exceptthat it may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5186 of the same Article:

Section 2. The Congress shall have the power to define, prescribe, ' and apportion the
jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over
cases enumerated in Section 5 hereof.

x x x xChanRoblesVirtualawlibrary

Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject
matter of an action. In The Diocese ofBacolod v. Commission on Elections ,187 subject matter
jurisdiction was defined as "the authority 'to hear and determine cases of the general class
to which the proceedings in question belong and is conferred by the sovereign authority
which organizes the court and defines its powers.'"

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of
this Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and
the trial courts, through the passage of BP 129, as amended. 

In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition
for certiorari in CA-G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction. - The Court of Appeals shall exercise:

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas

corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of
its appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but

also concurrent with the Regional Trial Courts (under Section 21 (1), Chapter II of BP 129), and

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the Supreme Court (under Section 5, Article VIII of the 1987 Philippine Constitution). In view of
the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine of
hierarchy of courts should be followed. In People v. Cuaresma,188 the doctrine was explained as
follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of

the writs an absolute, unrestrained freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with
the Court of Appeals.189

When a court has subject matter jurisdiction over a particular case, as conferred unto it by law,
said court may then exercise its jurisdiction acquired over that case, which is called judicial
power.

Judicial power, as vested in the Supreme Court and all other courts established by law, has been
defined as the "totality of powers a court exercises when it assumes jurisdiction and hears
and decides a case."190 Under Section 1, Article VIII of the 1987 Constitution, it 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."

In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the
1987 Constitution:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents
a broadening of f judicial power to enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature and to
declare their acts invalid for lack or excess of jurisdiction because they are tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is
a very elastic phrase that can expand or contract according to the disposition of the judiciary. 192

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has

acquired over a particular case conforms to the limits and parameters of the rules of

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procedure duly promulgated by this Court. In other words, procedure is the framework within
which judicial power is exercised. In Manila Railroad Co. v. Attorney-General,193 the Court
elucidated that "[t]he power or authority of the court over the subject matter existed and was
fixed before procedure in a given cause began. Procedure does not alter or change that power
or authority; it simply directs the manner in which it shall be fully and justly exercised.  To
be sure, in certain cases, if that power is not exercised in conformity with the provisions of the
procedural law, purely, the court attempting to exercise it loses the power to exercise it legally.
This does not mean that it loses jurisdiction of the subject matter." 194

While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in all
courts belongs exclusively to this Court. Section 5 (5), Article VIII of the 1987 Constitution
reads:

Section 5. The Supreme Court shall have the following powers: 

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,

pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court. (Emphases and underscoring supplied)

In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-
making authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly subjected
to a power-sharing scheme with Congress.198 As it now stands, the 1987 Constitution textually
altered the old provisions by deleting the concurrent power of Congress to amend the rules,
thus solidifying in one body the Court's rule-making powers, in line with the Framers' vision of
institutionalizing a "[s]tronger and more independent judiciary."199

The records of the deliberations of the Constitutional Commission would show 200 that the
Framers debated on whether or not the Court's rule-making powers should be shared with
Congress. There was an initial suggestion to insert the sentence "The National Assembly may
repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme
Court", right after the phrase "Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice
of law, the integrated bar, and legal assistance to the underprivileged^" in the enumeration of
powers of the Supreme Court. Later, Commissioner Felicitas S. Aquino proposed to delete the

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former sentence and, instead, after the word "[underprivileged," place a comma (,) to be followed
by "the phrase with the concurrence of the National Assembly." Eventually, a compromise
formulation was reached wherein (a) the Committee members agreed to Commissioner Aquino's
proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the said
rules with the advice and concurrence of the Supreme Court" and ( b) in turn, Commissioner Aquino
agreed to withdraw his proposal to add "the phrase with the concurrence of the National
Assembly." The changes were approved, thereby leading to the present lack of textual
reference to any form of Congressional participation in Section 5 (5), Article
VIII, supra. The prevailing consideration was that "both bodies, the Supreme Court and the
Legislature, have their inherent powers."201

Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning
pleading, practice, and procedure. As pronounced in Echegaray:

The rule making power of this Court was expanded. This Court for the first time was given the
power to promulgate rules concerning the protection and enforcement of constitutional rights.
The Court was also r granted for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away
the power of Congress to repeal, alter, or supplement rules concerning pleading, practice
and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is
no longer shared by this Court with Congress, more so with the Executive.202 (Emphasis and
underscoring supplied)

Under its rule-making authority, the Court has periodically passed various rules of procedure,
among others, the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural
remedies needed for the reasonable exercise of every court's judicial power, the provisional
remedies of temporary restraining orders and writs of preliminary injunction were thus
provided.

A temporary restraining order and a writ of preliminary injunction both constitute temporary
measures availed of during the pendency of the action. They are, by nature, ancillary because
they are mere incidents in and are dependent upon the result of the main action. It is well-settled
that the sole objectof a temporary restraining order or a writ of preliminary injunction,
whether prohibitory or mandatory, is to preserve the status quo203 until the merits of the
case can be heard. They are usually granted when it is made to appear that there is a substantial
controversy between the parties and one of them is committing an act or threatening the
immediate commission of an act that will cause irreparable injury or destroy the status quo of the
controversy before a full hearing can be had on the merits of the case. In other words, they are
preservative remedies for the protection of substantive rights or interests, and, hence, not a
cause of action in itself, but merely adjunct to a main suit. 204 In a sense, they are regulatory
processes meant to prevent a case from being mooted by the interim acts of the parties.

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Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO
and a WPI. A preliminary injunction is defined under Section 1, 205 Rule 58, while Section 3206 of
the same Rule enumerates the grounds for its issuance. Meanwhile, under Section 5 207 thereof, a
TRO may be issued as a precursor to the issuance of a writ of preliminary injunction under
certain procedural parameters.

The power of a court to issue these provisional injunctive reliefs coincides with its inherent
power to issue all auxiliary writs, processes, and other means necessary to carry its
acquired jurisdiction into effect under Section 6, Rule 135 of the Rules of Court which
reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a
court or judicial officer, all auxiliary writs, f processes and other means necessary to carry it
into effect may be employed by such court or officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically pointed out by law 208 or by these rules, any
suitable process or mode of proceeding may be adopted which appears comfortable to the spirit
of the said law or rules.ChanRoblesVirtualawlibrary

In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or

jurisdiction of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate
jurisdiction"210 over "decisions, orders or resolutions of the RTCs in local tax cases originally
decided or resolved by them in the exercise of their original or appellate jurisdiction," 211 the
Court ruled that said power "should coexist with, and be a complement to, its appellate
jurisdiction to review, by appeal, the final orders and decisions of the RTC, in order to have
complete supervision over the acts of the latter:" 212

A grant of appellate jurisdiction implies that there is included in it the power necessary to

exercise it effectively, to make all orders that ; will preserve the subject of the action,
and to give effect to the final determination of the appeal. It carries with it the power to
protect that jurisdiction and to make the decisions of the court thereunder effective. The court,
in aid of its appellate jurisdiction, has authority to control all auxiliary and incidental matters
necessary to the efficient and proper exercise of that jurisdiction. For this purpose, it may, when
necessary, prohibit or restrain the performance of any act which might interfere with the proper
exercise of its rightful jurisdiction in cases pending before it. 213 (Emphasis supplied)

In this light, the Court expounded on the inherent powers of a court endowed with subject
matter jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are necessary
to enable it to act effectively within such jurisdiction. These should be regarded as powers
which are inherent in its jurisdiction and the court must possess them in order to enforce
its rules of practice and to suppress any abuses of its process and to t defeat any

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attempted thwarting of such process.

x x x x cralawlawlibrary

Indeed, courts possess certain inherent powers which may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers
are such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or
are essential to the existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable to the
execution of their granted powers; and include the power to maintain the court's jurisdiction
and render it effective in behalf of the litigants. 214 (Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional
principle, articulated way back in the 1936 case of Angara, that "where a general power is
conferred or duty enjoined, every particular power necessary for the exercise of the one or the
performance of the other is also conferred." 215

In the United States, the "inherent powers doctrine refers to the principle, by which the courts
deal with diverse matters over which they are thought to have intrinsic authority like procedural
[rule-making] and general judicial housekeeping. To justify the invocation or exercise of inherent
powers, a court must show that the powers are reasonably necessary to achieve the specific
purpose for which the exercise is sought. Inherent powers enable the judiciary to accomplish
its constitutionally mandated functions."216

In  Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which

prohibited courts from enjoining the enforcement of a revocation order of an alcohol beverage
license pending appeal,218 the Supreme Court of Kentucky held:

[T]he Court is x x x vested with certain "inherent" powers to do that which is reasonably

necessary for the administration of justice within the scope of their jurisdiction. x x x [W]e
said while considering the rule making power and the judicial power to be one and the same that ".
. . the grant of judicial power [rule making power] to the courts by the constitution carries
with it, as a necessary incident, the right to make that power effective in the
administration of justice." (Emphases supplied)

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an

exercise of the court's inherent power, and to this end, stated that any attempt on the part of
Congress to interfere with the same was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28
Am.Jur.2d, Injunctions, Section 15, and once and for all make clear that a court, once having
obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of

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power, inherent power to do all things reasonably necessary to the administration of justice in
the case before it. In the exercise of this power, a court, when necessary in order to
protect or preserve the subject matter of the litigation, to protect its jurisdiction and to
make its judgment effective, may grant or issue a temporary injunction in aid of or ancillary
to the principal action.

The control over this inherent judicial power, in this particular instance the injunction, is
exclusively within the constitutional realm of the courts. As such, it is not within the
purview of the legislature to grant or deny the power nor is it within the purview of the
legislature to shape or fashion circumstances under which this inherently judicial power may
be or may not be granted or denied.

This Court has historically recognized constitutional limitations upon the power of the legislature
to interfere with or to inhibit the performance of constitutionally granted and inherently
provided judicial functions, x x x

xxxx

We reiterate our previously adopted language, ". . . a court, once having obtained jurisdiction of a
cause of action, has, as incidental to its general jurisdiction, inherent power to do all things
reasonably necessary f to the administration of justice in the case before it. . ." This includes
the inherent power to issue injunctions. (Emphases supplied)

Smothers  also pointed out that the legislature's authority to provide a right to appeal in the
statute does not necessarily mean that it could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the
right to encroach upon the constitutionally granted powers of the judiciary. Once the
administrative action has ended and the right to appeal arises the legislature is void of any
right to control a subsequent appellate judicial proceeding. The judicial rules have come into
play and have preempted the field.219 (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress passed the first
paragraph of Section 14, RA 6770 and, in so doing, took away from the courts their power to
issue a TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it encroached
upon this Court's constitutional rule-making authority. Clearly, these issuances, which are, by
nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court,
are matters of procedure which belong exclusively within the province of this Court. Rule 58 of
the Rules of Court did not create, define, and regulate a right but merely prescribed the means
of implementing an existing right220 since it only provided for temporary reliefs to preserve the

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applicant's right in esse which is threatened to be violated during the course of a pending
litigation. In the case of Fabian,211 it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with
procedure.ChanRoblesVirtualawlibrary

Notably, there have been similar attempts on the part of Congress, in the exercise of its
legislative power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The
National Power Corporation from Payment of Filing/ Docket Fees ;222 (b) Re: Petition for
Recognition of the Exemption of the Government Service Insurance System (GSIS) from
Payment of Legal Fees;223 and (c)  Baguio Market Vendors Multi-Purpose Cooperative
(BAMARVEMPCO) v. Cabato-Cortes224 While these cases involved legislative enactments
exempting government owned and controlled corporations and cooperatives from paying filing
fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on Legal Fees), it was,
nonetheless, ruled that the prerogative to amend, repeal or even establish new rules of
procedure225 solely belongs to the Court, to the exclusion of the legislative and executive
branches of government. On this score, the Court described its authority to promulgate rules on
pleading, practice, and procedure as exclusive and "[o]ne of the safeguards of [its] institutional
independence."226

That Congress has been vested with the authority to define, prescribe, and apportion the
jurisdiction of the various courts under Section 2, Article VIII supra, as well as to create
statutory courts under Section 1, Article VIII supra, does not result in an abnegation of the
Court's own power to promulgate rules of pleading, practice, and procedure under Section 5 (5),
Article VIII supra. Albeit operatively interrelated, these powers are nonetheless institutionally
separate and distinct, each to be preserved under its own sphere of authority. When Congress
creates a court and delimits its jurisdiction, the procedure for which its jurisdiction is
exercised is fixed by the Court through the rules it promulgates. The first paragraph of
Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman
misconceives,227 because it does not define, prescribe, and apportion the subject matter
jurisdiction of courts to act on certiorari cases; the certiorari jurisdiction of courts, particularly
the CA, stands under the relevant sections of BP 129 which were not shown to have been
repealed. Instead, through this provision, Congress interfered with a provisional remedy that
was created by this Court under its duly promulgated rules of procedure, which utility is
both integral and inherent to every court's exercise of judicial power. Without the Court's
consent to the proscription, as may be manifested by an adoption of the same as part of
the rules of procedure through an administrative circular issued therefor, there thus,
stands to be a violation of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting provisional

Page 77 of 131
injunctions, such as in the first paragraph of Section 14, RA 6770, does not only undermine the
constitutional allocation of powers; it also practically dilutes a court's ability to carry out its
functions. This is so since a particular case can easily be mooted by supervening events if no
provisional injunctive relief is extended while the court is hearing the same. Accordingly, the
court's acquired jurisdiction, through which it exercises its judicial power, is rendered nugatory.
Indeed, the force of judicial power, especially under the present Constitution, cannot be
enervated due to a court's inability to regulate what occurs during a proceeding's course. As
earlier intimated, when jurisdiction over the subject matter is accorded by law and has been
acquired by a court, its exercise thereof should be undipped. To give true meaning to the judicial
power contemplated by the Framers of our Constitution, the Court's duly promulgated rules of
procedure should therefore remain unabridged, this, even by statute. Truth be told, the policy
against provisional injunctive writs in whatever variant should only subsist under rules of
procedure duly promulgated by the Court given its sole prerogative over the same.

The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors
the foregoing observations:

JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?

ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken
under the rubric of what is called provisional remedies, our resident expert because Justice
Peralta is not here so Justice Bersamin for a while. So provisional remedy you have injunction, x x
x.

xxxx

JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the
Constitution, if you have a copy of the Constitution, can you please read that provision? Section 5,
Article VIII the Judiciary subparagraph 5, would you kindly read that provision?

ACTING SOLICTOR GENERAL HILBAY.

"Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts..."

JUSTICE LEONEN:

Page 78 of 131
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all
courts. This is the power, the competence, the jurisdiction of what constitutional organ?

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1 and 2 which we've already
been discussed with you by my other colleagues, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in
an ordinary case?

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN: 
In fact, it originated as an equitable remedy, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be
rendered moot and academic, is that not correct?

Page 79 of 131
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.

JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?

ACTING SOLICITOR GENERAL HILBAY:

Your Honor, Congress cannot impair the power of the Court to create remedies, x x x.

JUSTICE LEONEN.
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the
supplemental pleading called the bill of t particular [s]? It cannot, because that's part of
procedure...

ACTING SOLICITOR GENERAL HILBAY:

That is true.

JUSTICE LEONEN
...or for that matter, no Court shall act on a Motion to Quash, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct.

JUSTICE LEONEN:
So what's different with the writ of injunction?

ACTING SOLICITOR GENERAL HILBAY:

Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that
was created by Congress. In the absence of jurisdiction... (interrupted)

JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special
agrarian court it has all procedures with it but it does not attach particularly to that particular
court, is that not correct?

Page 80 of 131
ACTING SOLICTOR GENERAL HILBAY:
When Congress, Your Honor, creates a special court...

JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A
rule of procedure and the Rules of Court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a
particular injunction in a court, is that not correct?

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx228 (Emphasis supplied)

In Biraogo v. The Philippine Truth Commission of 2010, 229 the Court instructed that "[i]t is
through the Constitution that the fundamental powers of government are established, limited and
defined, and by which these powers are distributed among the several departments. The
Constitution is the basic and paramount law to which all other laws must conform and to which all
persons, including the highest officials of the land, must defer." It would then follow that laws
that do not conform to the Constitution shall be stricken down for being unconstitutional. 230

However, despite the ostensible breach of the separation of powers principle, the Court is not
oblivious to the policy considerations behind the first paragraph of Section 14, RA 6770, as well
as other statutory provisions of similar import. Thus, pending deliberation on whether or not to
adopt the same, the Court, under its sole prerogative and authority over all matters of procedure,
deems it proper to declare as ineffective the prohibition against courts other than the Supreme
Court from issuing provisional injunctive writs to enjoin investigations conducted by the Office of
the Ombudsman, until it is adopted as part of the rules of procedure through an administrative
circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first paragraph
of Section 14, RA 6770) without the Court's consent thereto, it remains that the CA had the
authority to issue the questioned injunctive writs enjoining the implementation of the preventive
suspension order against Binay, Jr. At the risk of belaboring the point, these issuances were
merely ancillary to the exercise of the CA's certiorari jurisdiction conferred to it under Section

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9 (1), Chapter I of BP 129, as amended, and which it had already acquired over the main CA-G.R.
SP No. 139453 case.

IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction
in issuing the TRO and WPI in CA-G.R. SP No. 139453 against the preventive suspension order is a
persisting objection to the validity of said injunctive writs. For its proper analysis, the Court
first provides the context of the assailed injunctive writs.

A. Subject matter of the CA's iniunctive writs is the preventive suspension order.

By nature, a preventive suspension order is not a penalty but only a preventive measure.
In Quimbo v. Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its
purpose is to prevent the official to be suspended from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper with records which may
be vital in the prosecution of the case against him:

Jurisprudential law establishes a clear-cut distinction between suspension as preventive

measure and suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved.

Preventive suspension is merely a preventive measure, a preliminary step in an administrative

investigation. The purpose of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence potential witnesses or
tamper with records which may be vital in the prosecution of the case against him. If after
such investigation, the charge is established and the person investigated is found guilty of acts
warranting his suspension or removal, then he is suspended, removed or dismissed. This is the
penalty.

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule
XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive
Order No. 292) and other Pertinent Civil Service Laws.
Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)ChanRoblesVirtualawlibrary
Not being a penalty, the period within which one is under preventive suspension is not considered
part of the actual penalty of suspension. So Section 25 of the same Rule XIV
provides:chanRoblesvirtualLawlibrary
Section 25. The period within which a public officer or employee charged is placed under
preventive suspension shall not be considered part of the actual penalty of suspension imposed
upon the employee found guilty.232(Emphases supplied)ChanRoblesVirtualawlibrary

Page 82 of 131
The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA
6770:

Section 24. Preventive Suspension. - The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence
of guilt is strong, and (a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's continued stay in office may
prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided. ( Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the
issuance of an order of preventive suspension pending an investigation, namely:

(1) The evidence of guilt is strong; and

(2) Either of the following circumstances co-exist with the first

requirement:chanRoblesvirtualLawlibrary
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance
of duty;cralawlawlibrary

(b) The charge would warrant removal from the service; or

(c) The respondent's continued stay in office may prejudice the case filed against
him.233ChanRoblesVirtualawlibrary

B. The basis of the CA's injunctive writs is the condonation doctrine.

Examining the CA's Resolutions in CA-G.R. SP No. 139453 would, however, show that the
Ombudsman's non-compliance with the requisites provided in Section 24, RA 6770 was not the
basis for the issuance of the assailed injunctive writs.

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based
on the case of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court
emphasized that "if it were established in the CA that the acts subject of the administrative
complaint were indeed committed during petitioner [Garcia's] prior term, then, following settled

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jurisprudence, he can no longer be administratively charged." 235 Thus, the Court, contemplating
the application of the condonation doctrine, among others, cautioned, in the said case, that "it
would have been more prudent for [the appellate court] to have, at the very least, on account of
the extreme urgency of the matter and the seriousness of the issues raised in
the certiorari petition, issued a TRO x x x"236 during the pendency of the proceedings.

Similarly, the CA's April 6, 2015 Resolution which directed the issuance of the assailed WPI was
based on the condonation doctrine, citing the case of Aguinaldo v. Santos237 The CA held that
Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the nullification of the
preventive suspension order, finding that the Ombudsman can hardly impose preventive
suspension against Binay, Jr. given that his re-election in 2013 as City Mayor of Makati condoned
any administrative liability arising from anomalous activities relative to the Makati Parking
Building project from 2007 to 2013.238 Moreover, the CA observed that although there were acts
which were apparently committed by Binay, Jr. beyond his first term , i.e., the alleged payments
on July 3, 4, and 24, 2013,239 corresponding to the services of Hillmarc's and MANA - still, Binay,
Jr. cannot be held administratively liable therefor based on the cases of Salalima v. Guingona,
Jr.,240 and  Mayor Garcia v. Mojica,241 wherein the condonation dobtrine was applied by the Court
although the payments were made after the official's election, reasoning that the payments were
merely effected pursuant to contracts executed before said re-election. 242

The Ombudsman contends that it was inappropriate for the CA to have considered the
condonation doctrine since it was a matter of defense which should have been raised and passed
upon by her office during the administrative disciplinary proceedings. 243 However, the Court
agrees with the CA that it was not precluded from considering the same given that it was
material to the propriety of according provisional injunctive relief in conformity with the ruling
in Governor Garcia, Jr., which was the subsisting jurisprudence at that time. Thus, since
condonation was duly raised by Binay, Jr. in his petition in CA-G.R. SP No. 139453, 244 the CA did
not err in passing upon the same. Note that although Binay, Jr. secondarily argued that the
evidence of guilt against him was not strong in his petition in CA-G.R. SP No. 139453, 245it appears
that the CA found that the application of the condonation doctrine was already sufficient to
enjoin the implementation of the preventive suspension order. Again, there is nothing aberrant
with this since, as remarked in the same case of Governor Garcia, Jr., if it was established that
the acts subject of the administrative complaint were indeed committed during Binay, Jr.'s prior
term, then, following the condonation doctrine, he can no longer be administratively charged. In
other words, with condonation having been invoked by Binay, Jr. as an exculpatory affirmative
defense at the onset, the CA deemed it unnecessary to determine if the evidence of guilt against
him was strong, at least for the purpose of issuing the subject injunctive writs.

With the preliminary objection resolved and the basis of the assailed writs herein laid down, the
Court now proceeds to determine if the CA gravely abused its discretion in applying the
condonation doctrine.

Page 84 of 131
C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as "[a] victim's express or implied forgiveness
of an offense, [especially] by treating the offender as if there had been no offense."246

The condonation doctrine - which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon - is not based on statutory law. It is a jurisprudential
creation that originated from the 1959 case of Pascual v. Hon. Provincial Board ofNueva
Ecija,247 (Pascual),  which was therefore decided under the 1935 Constitution.

In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija,
sometime in November 1951, and was later re-elected to the same position in 1955. During his
second term, or on October 6, 1956, the Acting Provincial Governor filed administrative
charges before the Provincial Board of Nueva Ecija against him for grave abuse of authority and
usurpation of judicial functions for acting on a criminal complaint in Criminal Case No. 3556 on
December 18 and 20, 1954. In defense, Arturo Pascual argued that he cannot be made liable for
the acts charged against him since they were committed during his previous term of office, and
therefore, invalid grounds for disciplining him during his second term. The Provincial Board, as
well as the Court of First Instance of Nueva Ecija, later decided against Arturo Pascual, and when
the case reached this Court on appeal, it recognized that the controversy posed a novel issue -
that is, whether or not an elective official may be disciplined for a wrongful act committed by him
during his immediately preceding term of office.

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and "found that cases on the matter are conflicting due in part, probably,
to differences in statutes and constitutional provisions, and also, in part, to a divergence of views
with respect to the question of whether the subsequent election or appointment condones the
prior misconduct."248Without going into the variables of these conflicting views and cases, it
proceeded to state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove
one from office because of misconduct during a prior term, to which we fully
subscribe.249 (Emphasis and underscoring supplied)

The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation,
which, in the words of Pascual, theorizes that an official's re-election denies the right to remove
him from office due to a misconduct during a prior term. In fact, as pointed out during the oral
arguments of this case, at least seventeen (17) states in the US have abandoned the condonation
doctrine.250 The Ombudsman aptly cites several rulings of various US State courts, as well as
literature published on the matter, to demonstrate the fact that the doctrine is not uniformly
applied across all state jurisdictions. Indeed, the treatment is nuanced:

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(1) For one, it has been widely recognized that the propriety of removing a public officer from
his current term or office for misconduct which he allegedly committed in a prior term of office
is governed by the language of the statute or constitutional provision applicable to the facts of a
particular case (see In Re Removal of Member of Council Coppola ).251 As an example, a Texas
statute, on the one hand, expressly allows removal only for an act committed during a present
term: "no officer shall be prosecuted or removed from office for any act he may have committed
prior to his election to office" (see State ex rel. Rowlings v. Loomis).252 On the other hand, the
Supreme Court of Oklahoma allows removal from office for "acts of commission, omission, or
neglect committed, done or omitted during a previous or preceding term of office" (see State v.
Bailey)253 Meanwhile, in some states where the removal statute is silent or unclear, the case's
resolution was contingent upon the interpretation of the phrase "in office." On one end, the
Supreme Court of Ohio strictly construed a removal statute containing the phrase "misfeasance
of malfeasance in office" and thereby declared that, in the absence of clear legislative language
making, the word "office" must be limited to the single term during which the offense charged
against the public officer occurred (see State ex rel. Stokes v. Probate Court of Cuyahoga
County)254 Similarly, the Common Pleas Court of Allegheny County, Pennsylvania decided that the
phrase "in office" in its state constitution was a time limitation with regard to the grounds of
removal, so that an officer could not be removed for misbehaviour which occurred; prior to the
taking of the office (see Commonwealth v. Rudman)255 The opposite was construed in the Supreme
Court of Louisiana which took the view that an officer's inability to hold an office resulted from
the commission of certain offenses, and at once rendered him unfit to continue in office, adding
the fact that the officer had been re-elected did not condone or purge the offense (see   State
ex rel. Billon v. Bourgeois).256 Also, in the Supreme Court of New York, Apellate Division, Fourth
Department, the court construed the words "in office" to refer not to a particular term of office
but to an entire tenure; it stated that the whole purpose of the legislature in enacting the
statute in question could easily be lost sight of, and the intent of the law-making body be
thwarted, if an unworthy official could not be removed during one term for misconduct for a
previous one (Newman v. Strobel).257

(2) For another, condonation depended on whether or not the public officer was a successor in
the same office for which he has been administratively charged. The "own-successor theory,"
which is recognized in numerous States as an exception to condonation doctrine, is premised on
the idea that each term of a re-elected incumbent is not taken as separate and distinct, but
rather, regarded as one continuous term of office. Thus, infractions committed in a previous term
are grounds for removal because a re-elected incumbent has no prior term to speak
of258 (see Attorney-General v. Tufts;259State v. Welsh;260Hawkins v. Common Council of Grand
Rapids;261Territory v. Sanches;262 and Tibbs v. City of Atlanta).263

(3) Furthermore, some State courts took into consideration the continuing nature of an offense
in cases where the condonation doctrine was invoked. In State ex rel. Douglas v.
Megaarden,264 the public officer charged with malversation of public funds was denied the

Page 86 of 131
defense of condonation by the Supreme Court of Minnesota, observing that "the large sums of
money illegally collected during the previous years are still retained by him." In State ex rel.
Beck v. Harvey265 the Supreme Court of Kansas ruled that "there is no necessity" of applying the
condonation doctrine since "the misconduct continued in the present term of office[;] [thus]
there was a duty upon defendant to restore this money on demand of the county commissioners."
Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme Court of Kansas held that
"insofar as nondelivery and excessive prices are concerned, x x x there remains a continuing duty
on the part of the defendant to make restitution to the country x x x, this duty extends into the
present term, and neglect to discharge it constitutes misconduct."

Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual  that there is
a "weight of authority" in the US on the condonation doctrine. In fact, without any cogent
exegesis to show that Pascual had accounted for the numerous factors relevant to the debate on
condonation, an outright adoption of the doctrine in this jurisdiction would not have been proper.

At any rate, these US cases are only of persuasive value in the process of this Court's decision-
making. "[They] are not relied upon as precedents, but as guides of interpretation." 267 Therefore,
the ultimate analysis is on whether or not the condonation doctrine, as espoused in Pascual, and
carried over in numerous cases after, can be held up against prevailing legal norms. Note that the
doctrine of stare decisis does not preclude this Court from revisiting existing doctrine. As
adjudged in the case of Belgica, the stare decisis rule should not operate when there are
powerful countervailing considerations against its application. 268 In other words, stare decisis
becomes an intractable rule only when circumstances exist to preclude reversal of standing
precedent.269 As the Ombudsman correctly points out, jurisprudence, after all, is not a rigid,
atemporal abstraction; it is an organic creature that develops and devolves along with the society
within which it thrives.270 In the words of a recent US Supreme Court Decision, "[w]hat we can
decide, we can undecide."271

In this case, the Court agrees with the Ombudsman that since the time Pascual  was decided, the
legal landscape has radically shifted. Again, Pascual  was a 1959 case decided under the 1935
Constitution, which dated provisions do not reflect the experience of the Filipino People under
the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including, of course,
the sheer impact of the condonation doctrine on public accountability, calls for Pascual's judicious
re-examination.

D. Testing the Condonation Doctrine.

Pascual's ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer
was elected for each term is separate and distinct:

Page 87 of 131
Offenses committed, or acts done, during previous term are generally held not to furnish
cause for removal and this is especially true where the constitution provides that the penalty in
proceedings for removal shall not extend beyond the removal from office, and disqualification
from holding office for the term for which the officer was elected or appointed. (67 C.J.S. p.
248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex
rel.Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of Kingfisher County vs. Shutter,  281
P. 222;  State vs. Blake,  280 P. 388; In re Fudula,  147 A. 67;  State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms x x x.272

Second, an elective official's re-election serves as a condonation of previous misconduct, thereby

cutting the right to remove him therefor; and

[T]hat the  reelection to office operates as a condonation of the officer's previous misconduct to
the extent of cutting off the right to remove him therefor . (43 Am. Jur. p. 45, citing Atty. Gen.
vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553.273(emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and
character of candidates, of their right to elect officers:

As held in  Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA
(NS) 553 —
The Court should never remove a public officer for acts done prior to his present term of office.
To do otherwise would be to deprive the people of their right to elect their officers. When the
people have elected a man to office, it must be assumed that they did this with knowledge
of his life and character, and that they disregarded or forgave his faults or misconduct, if
he had been guilty of any. It is not for the court, by reason of such faults or misconduct to
practically overrule the will of the people.274 (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

(1) Lizares v. Hechanova275 (May 17, 1966) - wherein the Court first applied the condonation
doctrine, thereby quoting the above-stated passages from Pascual in verbatim.

(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the
condonation doctrine does not apply to a criminal case. It was explained that a criminal case is
different from an administrative case in that the former involves the People of the Philippines as
a community, and is a public wrong to the State at large; whereas, in the latter, only the populace
of the constituency he serves is affected. In addition, the Court noted that it is only the
President who may pardon a criminal offense.

(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987

Page 88 of 131
Constitution wherein the condonation doctrine was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his re-election merely supervened the pendency of, the
proceedings.

(4) Salalima v. Guinsona, Jr.278 (Salalima; May 22, 1996) -wherein the Court reinforced the
condonation doctrine by stating that the same is justified by "sound public policy." According
to the Court, condonation prevented the elective official from being "hounded" by administrative
cases filed by his "political enemies" during a new term, for which he has to defend himself "to
the detriment of public service." Also, the Court mentioned that the administrative liability
condoned by re-election covered the execution of the contract and the incidents related
therewith.279

(5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) - wherein the benefit of the
doctrine was extended to then Cebu City Mayor Alvin B. Garcia who was administratively charged
for his involvement in an anomalous contract for the supply of asphalt for Cebu City, executed
only four (4) days before the upcoming elections. The Court ruled that notwithstanding the timing
of the contract's execution, the electorate is presumed to have known the petitioner's
background and character, including his past misconduct; hence, his subsequent re-election was
deemed a condonation of his prior transgressions. More importantly, the Court held that the
determinative time element in applying the condonation doctrine should be the time when the
contract was perfected; this meant that as long as the contract was entered into during a
prior term, acts which were done to implement the same, even if done during a succeeding
term, do not negate the application of the condonation doctrine in favor of the elective
official.

(6) Salumbides, Jr. v. Office of the Ombudsman281 (Salumbides, Jr.; April 23, 2010) - wherein
the Court explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:

Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica  reinforced the doctrine. The

condonation rule was applied even if the administrative complaint was not filed before the
reelection of the public official, and even if the alleged misconduct occurred four days
before the elections, respectively. Salalima did not distinguish as to the date of filing of the
administrative complaint, as long as the alleged misconduct was committed during the prior term,
the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing
that gave rise to the public official's culpability was committed prior to the date of
reelection.282 (Emphasis supplied)ChanRoblesVirtualawlibrary

The Court, citing Civil Service Commission v. Sojor,283 also clarified that the condonation doctrine
would not apply to appointive officials since, as to them, there is no sovereign will to
disenfranchise.

(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked

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that it would have been prudent for the appellate court therein to have issued a temporary
restraining order against the implementation of a preventive suspension order issued by the
Ombudsman in view of the condonation doctrine.

A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia,

and Governor Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and April 6, 2015
Resolutions directing the issuance of the assailed injunctive writs - would show that the basis for
condonation under the prevailing constitutional and statutory framework was never accounted for.
What remains apparent from the text of these cases is that the basis for condonation, as
jurisprudential doctrine, was - and still remains - the above-cited postulates of Pascual, which was
lifted from rulings of US courts where condonation was amply supported by their own state laws.
With respect to its applicability to administrative cases, the core premise of condonation - that
is, an elective official's re-election cuts qff the right to remove him for an administrative
offense committed during a prior term - was adopted hook, line, and sinker in our jurisprudence
largely because the legality of that doctrine was never tested against existing legal norms. As in
the US, the propriety of condonation is - as it should be -dependent on the legal foundation of
the adjudicating jurisdiction. Hence, the Court undertakes an examination of our current laws in
order to determine if there is legal basis for the continued application of the doctrine of
condonation.

The foundation of our entire legal system is the Constitution. It is the supreme law of the
land;284 thus, the unbending rule is that every statute should be read in light of the
Constitution.285 Likewise, the Constitution is a framework of a workable government; hence, its
interpretation must take into account the complexities, realities, and politics attendant to the
operation of the political branches of government. 286

As earlier intimated, Pascual  was a decision promulgated in 1959. Therefore, it was decided within
the context of the 1935 Constitution which was silent with respect to public accountability, or of
the nature of public office being a public trust. The provision in the 1935 Constitution that comes
closest in dealing with public office is Section 2, Article II which states that "[t]he defense of
the State is a prime duty of government, and in the fulfillment of this duty all citizens may be
required by law to render personal military or civil service." 287 Perhaps owing to the 1935
Constitution's silence on public accountability, and considering the dearth of jurisprudential
rulings on the matter, as well as the variance in the policy considerations, there was no glaring
objection confronting the Pascual  Court in adopting the condonation doctrine that originated
from select US cases existing at that time.

With the advent of the 1973 Constitution, the approach in dealing with public officers underwent
a significant change. The new charter introduced an entire article on accountability of public
officers, found in Article XIII. Section 1 thereof positively recognized, acknowledged, and
declared that "[p]ublic office is a public trust." Accordingly, "[p]ublic officers and employees
shall serve with the highest degree of responsibility, integrity, loyalty and efficiency, and

Page 90 of 131
shall remain accountable to the people."

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the
1987 Constitution, which sets forth in the Declaration of Principles and State Policies in Article
II that "[t]he State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption."288 Learning how unbridled power
could corrupt public servants under the regime of a dictator, the Framers put primacy on the
integrity of the public service by declaring it as a constitutional principle and a State policy. More
significantly, the 1987 Constitution strengthened and solidified what has been first proclaimed in
the 1973 Constitution by commanding public officers to be accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all timesbe
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency and act with patriotism and justice, and lead modest
lives.ChanRoblesVirtualawlibrary

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of the
Constitution which embodies the parameters of the people's trust. The notion of a public trust
connotes accountability x x x.289 (Emphasis supplied)ChanRoblesVirtualawlibrary

The same mandate is found in the Revised Administrative Code under the section of the Civil
Service Commission,290 and also, in the Code of Conduct and Ethical Standards for Public Officials
and Employees.291

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an
elective local official from office are stated in Section 60 of Republic Act No.
7160,292 otherwise known as the "Local Government Code of 1991" (LGC), which was approved on
October 10 1991, and took effect on January 1, 1992:

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined,
suspended, or removed from office on any of the r following grounds:chanRoblesvirtualLawlibrary
(a) Disloyalty to the Republic of the Philippines;cralawlawlibrary
(b) Culpable violation of the Constitution;cralawlawlibrary
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of
duty;cralawlawlibrary
(d) Commission of any offense involving moral turpitude or an offense punishable by at least
prision mayor;cralawlawlibrary
(e) Abuse of authority;cralawlawlibrary

Page 91 of 131
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlunsod, sanggunian bayan ,
and sangguniang barangay;cralawlawlibrary
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by order
of the proper court.

Related to this provision is Section 40 (b) of the LGC which states that those removed from
office as a result of an administrative case shall be disqualified from running for any elective
local position:

Section 40. Disqualifications. - The following persons are disqualified from running for any
elective local position:

xxxx

(b) Those removed from office as a result of an administrative case;

x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary

In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. - Administrative Disabilities Inherent in Certain Penalties. -

a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of

retirement benefits, perpetual disqualification from holding public office, and bar
from taking the civil service examinations.

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not exceed
the unexpired term of the elective local official nor constitute a bar to his candidacy for as long
as he meets the qualifications required for the office. Note, however, that the provision only
pertains to the duration of the penalty and its effect on the official's candidacy. Nothing therein
states that the administrative liability therefor is extinguished by the fact of re-election:

Section 66. Form and Notice of Decision.  - x x x. 

xxxx

Page 92 of 131
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period
of six (6) months for every administrative offense, nor shall said penalty be a bar to the
candidacy of the respondent so suspended as long as he meets the qualifications required for the
office.

Reading the 1987 Constitution together with the above-cited legal provisions now leads this Court
to the conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local official's administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term
of office, or even another elective post. Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the
notion that an official elected for a different term is fully absolved of any administrative liability
arising from an offense done during a prior term. In this jurisdiction, liability arising from
administrative offenses may be condoned bv the President in light of Section 19, Article VII
of the 1987 Constitution which was interpreted in Llamas v. Orbos293 to apply to administrative
offenses:

The Constitution does not distinguish between which cases executive clemency may be exercised
by the President, with the sole exclusion of impeachment cases. By the same token, if executive
clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for
the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the
Constitution. Following petitioner's proposed interpretation, cases of impeachment are
automatically excluded inasmuch as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing , reason why the President cannot
grant executive clemency in administrative cases. It is Our considered view that if the President
can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases,
with much more reason can she grant executive clemency in administrative cases, which are
clearly less serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to hold him
administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC
precludes condonation since in the first place, an elective local official who is meted with the
penalty of removal could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes a penalty of perpetual disqualification from holding public office as an accessory to the
penalty of dismissal from service.

Page 93 of 131
To compare, some of the cases adopted in Pascual were decided by US State jurisdictions
wherein the doctrine of condonation of administrative liability was supported by either a
constitutional or statutory provision stating, in effect, that an officer cannot be removed by a
misconduct committed during a previous term, 294 or that the disqualification to hold the office
does not extend beyond the term in which the official's delinquency occurred. 295 In one
case,296 the absence of a provision against the re-election of an officer removed - unlike Section
40 (b) of the LGC-was the justification behind condonation. In another case, 297 it was deemed
that condonation through re-election was a policy under their constitution - which adoption in
this jurisdiction runs counter to our present Constitution's requirements on public accountability.
There was even one case where the doctrine of condonation was not adjudicated upon but only
invoked by a party as a ground;298 while in another case, which was not reported in full in the
official series, the crux of the disposition was that the evidence of a prior irregularity in no way
pertained to the charge at issue and therefore, was deemed to be incompetent. 299Hence, owing to
either their variance or inapplicability, none of these cases can be used as basis for the continued
adoption of the condonation doctrine under our existing laws.

At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of

suspension beyond the unexpired portion of the elective local official's prior term, and likewise
allows said official to still run for re-election This treatment is similar to People ex rel Bagshaw
v. Thompson300 and Montgomery v. Novell301 both cited in Pascual, wherein it was ruled that an
officer cannot be suspended for a misconduct committed during a prior term. However, as
previously stated, nothing in Section 66 (b) states that the elective local official's administrative
liability is extinguished by the fact of re-election. Thus, at all events, no legal provision actually
supports the theory that the liability is condoned.

Relatedly it should be clarified that there is no truth in Pascual's postulation that the courts
would be depriving the electorate of their right to elect their officers if condonation were not to
be sanctioned. In political law, election pertains to the process by which a particular constituency
chooses an individual to hold a public office. In this jurisdiction, there is, again, no legal basis to
conclude that election automatically implies condonation. Neither is there any legal basis to say
that every democratic and republican state has an inherent regime of condonation. If condonation
of an elective official's administrative liability would perhaps, be allowed in this jurisdiction, then
the same should have been provided by law under our governing legal mechanisms. May it be at the
time of Pascual or at present, by no means has it been shown that such a law, whether in a
constitutional or statutory provision, exists. Therefore, inferring from this manifest absence, it
cannot be said that the electorate's will has been abdicated.

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are
assumed to have done so with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule. 302 Besides, it is contrary to human

Page 94 of 131
experience that the electorate would have full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that most corrupt acts by public officers are
shrouded in secrecy, and concealed from the public. Misconduct committed by an elective
official is easily covered up, and is almost always unknown to the electorate when they cast
their votes.303 At a conceptual level, condonation presupposes that the condoner has actual
knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton304 decided by the New Jersey Supreme
Court:

Many of the cases holding that re-election of a public official prevents his removal for acts done
in a preceding term of office are reasoned out on the theory of condonation. We cannot
subscribe to that theory because condonation, implying as it does forgiveness, connotes
knowledge and in the absence of knowledge there can be no condonation. One cannot forgive
something of which one has no knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in
this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of
US rulings way back in 1959 and thus, out of touch from - and now rendered obsolete by - the
current legal regime. In consequence, it is high time for this Court to abandon the condonation
doctrine that originated from Pascual, and affirmed in the cases following the same, such
as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr.  which were all relied upon by the
CA.

It should, however, be clarified that this Court's abandonment of the condonation doctrine
should be prospective in application for the reason that judicial decisions applying or interpreting
the laws or the Constitution, until reversed, shall form part of the legal system of the
Philippines.305 Unto this Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. As explained in De Castro v. Judicial
Bar Council.306

Judicial decisions assume the same authority as a statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.307

Hence, while the future may ultimately uncover a doctrine's error, it should be, as a general rule,
recognized as "good law" prior to its abandonment. Consequently, the people's reliance thereupon
should be respected. The landmark case on this matter is People v. Jabinal,308 wherein it was
ruled:

Page 95 of 131
[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the old doctrine
and acted on the faith thereof.

Later, in Spouses Benzonan v. CA,309 it was further elaborated:

[Pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines." But while our decisions form
part of the law of the land, they are also subject to Article 4 of the Civil Code which provides
that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in
the familiar legal maxim  lex prospicit, non respicit, the law looks forward not backward. The
rationale against retroactivity is easy to perceive. The retroactive application of a law usually
divests rights that have already become vested or impairs the obligations of contract and hence,
is unconstitutional.310ChanRoblesVirtualawlibrary

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and
rectify its ensuing course. Thus, while it is truly perplexing to think that a doctrine which is
barren of legal anchorage was able to endure in our jurisprudence for a considerable length of
time, this Court, under a new membership, takes up the cudgels and now abandons the condonation
doctrine.

E. Consequence of ruling.

As for this section of the Decision, the issue to be resolved is whether or not
the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing the assailed injunctive writs.

It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility. 311 It has also been held that "grave abuse of
discretion arises when a lower court or tribunal patently violates the Constitution, the law or
existing jurisprudence."312

As earlier established, records disclose that the CA's resolutions directing the issuance of the
assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. To
recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was based on
the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the
subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor

Page 96 of 131
Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at
that time, unwittingly remained "good law," it cannot be concluded that the CA committed a grave
abuse of discretion based on its legal attribution above. Accordingly, the WPI against the
Ombudsman's preventive suspension order was correctly issued.

With this, the ensuing course of action should have been for the CA to resolve the main petition
for certiorari  in CA-G.R. SP No. 139453 on the merits. However, considering that the
Ombudsman, on October 9, 2015, had already found Binay, Jr. administratively liable and imposed
upon him the penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative charges against him,
the said CA petition appears to have been mooted. 313 As initially intimated, the preventive
suspension order is only an ancillary issuance that, at its core, serves the purpose of assisting the
Office of the Ombudsman in its investigation. It therefore has no more purpose - and perforce,
dissolves - upon the termination of the office's process of investigation in the instant
administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding
the validity of the preventive suspension order subject of this case does not preclude any of its
foregoing determinations, particularly, its abandonment of the condonation doctrine. As explained
in Belgica, '"the moot and academic principle' is not a magical formula that can automatically
dissuade the Court in resolving a case. The Court will decide cases, otherwise moot, if: first,
there is a grave violation of the Constitution; second, the exceptional character of the situation
and the paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the
case is capable of repetition yet evading review." 314 All of these scenarios obtain in this case:

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it
were not to abandon the condonation doctrine now that its infirmities have become apparent. As
extensively discussed, the continued application of the condonation doctrine is simply
impermissible under the auspices of the present Constitution which explicitly mandates that
public office is a public trust and that public officials shall be accountable to the people at all
times.

Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a
defense of elective officials to escape administrative liability. It is the first time that the legal
intricacies of this doctrine have been brought to light; thus, this is a situation of exceptional
character which this Court must ultimately resolve. Further, since the doctrine has served as a
perennial obstacle against exacting public accountability from the multitude of elective local
officials throughout the years, it is indubitable that paramount public interest is involved.

Page 97 of 131
Third, the issue on the validity of the condonation doctrine clearly requires the formulation of
controlling principles to guide the bench, the bar, and the public. The issue does not only involve
an in-depth exegesis of administrative law principles, but also puts to the forefront of legal
discourse the potency of the accountability provisions of the 1987 Constitution. The Court owes
it to the bench, the bar, and the public to explain how this controversial doctrine came about, and
now, its reasons for abandoning the same in view of its relevance on the parameters of public
office.

And fourth, the defense of condonation has been consistently invoked by elective local officials
against the administrative charges filed against them. To provide a sample size, the Ombudsman
has informed the Court that "for the period of July 2013 to December 2014 alone, 85 cases from
the Luzon Office and 24 cases from the Central Office were dismissed on the ground of
condonation. Thus, in just one and a half years, over a hundred cases of alleged misconduct -
involving infractions such as dishonesty, oppression, gross neglect of duty and grave misconduct -
were placed beyond the reach of the Ombudsman's investigatory and prosecutorial
powers."315 Evidently, this fortifies the finding that the case is capable of repetition and must
therefore, not evade review.

In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to
uphold and defend the Constitution, revoke it notwithstanding supervening events that render the
subject of discussion moot.chanrobleslaw

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the
final issue on whether or not the CA's Resolution 316 dated March 20, 2015 directing the
Ombudsman to comment on Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 is
improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot
be the subject of a charge for indirect contempt 317 because this action is criminal in nature and
the penalty therefor would result in her effective removal from office. 318 However, a reading of
the aforesaid March 20, 2015 Resolution does not show that she has already been subjected to
contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding the directive
for the Ombudsman to comment, the CA has not necessarily given due course to Binay, Jr.'s
contempt petition:

Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita
Carpio Morales, in her capacity as the Ombudsman, and the Department of Interior and Local
Government] are hereby DIRECTED to file Comment on the Petition/Amended and Supplemental

Page 98 of 131
Petition for Contempt (CA-G.R. SP No. 139504) within an inextendible period of three (3) days
from receipt hereof. (Emphasis and underscoring supplied)ChanRoblesVirtualawlibrary

Thus, even if the Ombudsman accedes to the CA's directive by filing a comment, wherein she may
properly raise her objections to the contempt proceedings by virtue of her being an impeachable
officer, the CA, in the exercise of its sound judicial discretion, may still opt not to give due
course to Binay, Jr.'s contempt petition and accordingly, dismiss the same. Sjmply put, absent any
indication that the contempt petition has been given due course by the CA, it would then be
premature for this Court to rule on the issue. The submission of the Ombudsman on this score is
perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court
resolves as follows:

(a) the second paragraph of Section 14 of Republic Act No. 6770 is

declared UNCONSTITUTIONAL, while the policy against the issuance of provisional injunctive
writs by courts other than the Supreme Court to enjoin an investigation conducted by the Office
of the Ombudsman under the first paragraph of the said provision is DECLARED ineffective until
the Court adopts the same as part of the rules of procedure through an administrative circular
duly issued therefor;cralawlawlibrary

(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in

effect;cralawlawlibrary

(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the
Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding Binay, Jr.
administratively liable in the six (6) administrative complamts, docketed as OMB-C-A-15-0058,
OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and OMB-C-A-15-
0063; and

(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA
is DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost
dispatch.

SO ORDERED.chanroblesvirtuallawlibrary

Sereno, C.J. Carpio, Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez, Reyes,  and  Leonen,
JJ., concur.
Velasco, Jr., Peralta, and Jardeleza, JJ., no part.
Brion, J., no part/ on leave.

Page 99 of 131
Mendoza, J., on leave.
Bersamin, J., please see my concurring & dissenting opinion.

Endnotes:

 "The Works of Jeremy Bentham, published under the superintendence of his executor, John
1

Bowring." Vol. II, Chapter IV, p. 423, London (1843).

2
 With urgent prayer for the issuance of a TRO and/or a WPI. Rollo, Vol. 1, pp. 6-36.

3
 Id. at 43-47. Penned by Associate Justice Jose C. Reyes, Jr. with Associate Justices Francisco
P. Acosta and Eduardo B. Peralta, Jr. concurring.

4
  Id. at 53-65. Issued by petitioner Ombudsman Conchita Carpio Morales.

5
 Id. at 50-51.

6
 Dated March 18, 2015. Id. at 362-373.

7
 Id. at 613-627.

8
 Id. at 629-630. Signed by Division Clerk, of Court Miriam Alfonso Bautista.

9
 For  certiorari  and prohibition with prayer for the issuance of a TRO and/or WPI. Id. at 606-
611

10
 See rollo, Vol. II, pp. 749-757.

 RA 7080, entitled "AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER"
11

(approved on Julv 12, 1991). 

12
 Approved on August 17, 1960. 

13
Rollo, Vol. II, pp. 647.

14
 Id.

 Through Ombudsman Office Order No. 546, which was later on amended through Officer
15

Order No. 546-A dated November 18, 2014. Id. at 758-759.

16
 Dated March 3, 2015.  Rollo, Vol. I, pp. 66-100. 

Page 100 of 131

  Docketed as OMB-C-A-15-0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061,
17

OMB-C-A-15-0062, and OMB-C-A-15-0063. See id. at 53-58.

 Docketed as OMB-C-C-15-0059, OMB-C-C-15-0060, OMB-C-C-15-0061, OMB-C-C-15-0062,

18

OMB-C-C-15-0063, and OMB-C-C-15-0064. See id. at 66. See also rollo, Vol. II, p. 674.

 As for Binay, Jr., only four (4) administrative cases and four (4) criminal cases were filed
19

against him, particularly: (a) for administrative cases (1) OMB-C-A-15-0058, (2) OMB-C-A-15-
0061, (3) OMB-C- A-15-0062, and (4) OMB-C-A-15-0063; and (b) for criminal cases (1) OMB-C-C-
15-0059, for violation of Section 3 (e) of RA 3019 and Malversation of Public Funds involving the
design, architectural, and engineering services of MANA Architecture & Interior Design Co.
covering the Makati Parking Building project, (2) OMB-C-C-15-0062, for violation of Section 3 (e)
of RA 3019 and two (2) counts of Falsification of Public Documents under Article 171 of the
Revised Penal Code in connection with Phase III of the Makati Parking Building project involving
Hilmarc's, (3) OMB-C-C-15-0063, for violation of Section 3 (e) of RA 3019 and two (2) counts of
Falsification of Public Documents in connection with Phase IV of the Makati Parking Building
project involving Hilmarc's, and (4) OMB- C-C-1 5-0064, for violation of Section 3 (e) of RA 3019
and two (2) counts of Falsification of Public Documents in connection with Phase V of the Makati
Parking Building project involving Hilmarc's. (Rollo, Vol. I, p. 12; rollo, Vol. II, p. 647.)

 Specific period covered by his first term is from Noon of June 30, 2010 to Noon of June 30,
20

2013.

21
Rollo, Vol. I, p. 247.

22
 Id. at 248-250.

23
 The original contract amount was P599,395,613.34. Due to a change order, this was later
increased to P599,994,021.05. See Disbursement Voucher; id. at 284.

24
 Id. at 86-87. 

25
 See Disbursement Voucher for 26% completion of Phase III; id. at 270.

26
 See Disbursement Voucher for 52.49% completion of Phase III; id. at 273.

27
 See Disbursement Voucher for 69% completion of Phase III; id. at 276.

28
 See Disbursement Voucher for 79.17% completion of Phase III; id. at 278.

29
 See Disbursement Voucher for 86.45% completion of Phase III; id. at 281.

Page 101 of 131

30
 See Disbursement Voucher for 100% completion of Phase III; id. at 284.

31
 Id. at 312.

32
 Id. at 290-292.

 The original contract amount was f 649,275,681.73. This was later increased to f
33

649,934,440.96. See Disbursement Voucher; id. at 320.

34
 Id. at 88. 

35
 See Disbursement Voucher for 33.53% completion of Phase IV; id. at 315.

36
 See Disbursement Voucher for 63.73% completion of Phase IV; id. at 316.

37
 See Disbursement Voucher for 76.94% completion of Phase IV; id. at 317.

38
 See Disbursement Voucher for 87.27% completion of Phase IV; id. at 318.

39
 See Disbursement Voucher for 100% completion of Phase IV; id. at 320. 

40
 Id. at 334. 

41
 Id. at 323-325.

42
 The original contract amount was P141,649,366.00. Due to a change order, this was later
increased to P143,806,161.00. See Disbursement Voucher; id. at 349

43
 Id. at 91.

 See Disbursement Voucher for 27.31% completion of Phase V; id. at 340. See also id. at 337-
44

339. 

 See Disbursement Voucher for 52.76% completion of Phase V; id. at 344. See also id. at 341-
45

343.

 Specific period covered by his second term is from Noon of June 30, 2013 to Noon of June 30,
46

2016.

 See Disbursement Voucher for 100% completion of Phase V; rollo, p. 349. See also id. at 346-
47

349.

Page 102 of 131

48
 For the contract amount of PI 1,974,900.00. Dated November 28,2007. Id. at 108-113.

49
 See Disbursement Voucher for 100% completion of the MANA contract; id. at 126.

 Through Ombudsman Office Order No. 178, which was later on amended through Office Order
50

No. 180 dated March 9, 2015. See rollo, Vol. II, pp. 647-648.

52
 Rollo, Vol. II, p. 648.

51
 Not attached to the rollos.

53
 See rollo, Vol. I, pp. 62 and 480.

54
 Id. at 61.

55
 Id.

 See id. at 63 and 480. See also Ombudsman's Indorsement letter dated March 11, 2015; id. at
56

351.

57
 See Personal Delivery Receipt; id. at 350. See also id. at 12.

 See Binay, Jr.'s Comment/Opposition dated April 6, 2005; id. at 481. See also Binay, Jr.'s
58

Memorandum dated May 21, 2015; rollo, Vol. 11, p. 806. The Ombudsman, however, claims that the
said petition was filed on March 12, 2015; see rollo, Vol II p 648

59
Rollo, Vol. I, pp. 403-427.

60
 See id. at 425-426.

61
 Id. at 404.

62
 Id. at 404-405.

63
 Id. at 424-425.

64
 See id. at 12-13. See also Director Brion's Memorandum dated March 16, 2015; id. at 352-353.

65
 Id. at 43-47.

66
 Id. at 47.

Page 103 of 131

67
 Id. at 13.

68
 604 Phil. 677 (2009).

69
Rollo, Vol. I, p. 46.

70
 Which directive the Ombudsman complied with on March 30, 2015 (rollo, Vol. II, p. 650). See
also rollo, Vol. I, p. 47.

71
 See Manifestation dated March 17, 2015; rollo, Vol. I, pp. 357-360.

72
 Id. at 358.

73
 Not attached to the rollos.

74
  Rollo, Vol. I, p. 14; rollo, Vol. II, p. 649.

75
 Dated March 18, 2015. Rollo, Vol. I, pp. 362-373.

76
 Id.

77
 See id. at 370.

78
 Id. at 50-51.

 Which the Ombudsman complied with on March 26, 2015 (rollo, Vol. II, p. 650). See also rollo,
79

Vol I, p. 50.

 The CA heard oral arguments with respect to Binay, Jr.'s application for a WP1 on March 30,
80

2015. On the other hand, the CA heard oral arguments with respect to Binay, Jr.'s petition for
contempt on March 31, 2015 (see rollo, Vol. II, p. 650). See also  rollo, Vol. I, p. 51

81
Rollo, Vol. II, p. 650.

 Entitled "AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION
82

OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES," approved on November
17 1989.

85
 See rollo, Vol. I, pp. 17-21. 

84
 See id. at 21-24.

Page 104 of 131

85
 See Comment/Opposition dated April 6, 2015; id. at 477-522.

86
 See id. at 478-479.

87
 See id. at 492-493.

88
 See id. at 497-505.

89
 Id. at 511.

90
 Id. at 613-627.

91
 Id. at 615.

92
 G.R. No. 94115, August 21, 1992, 212 SCRA 768.

93
Rollo, Vol. I, p. 619.

94
 All of which pertains to the payment of Phase V. See id. at 346-349. See also id. at 623.

95
 326 Phil. 847(1996).

96
 372 Phil. 892(1999).

97
 See rollo, Vol. I, pp. 619-620.

98
 See id. at 623.

99
 Id. at 606-611.

100
 Id. at 609.

101
 See Court Resolutions dated April 7, 2015 (id. at 524-525) and April 14, 2015 (id. at 634-638).

102
 See April 21, 2015; id. at 639-640

103
 Rollo, Vol. 11, pp. 646-745.

104
 Dated May 21,2015. Id. at 803-865.

105
 Id. at 951-952.

Page 105 of 131

  See Ombudsman's Comment to Binay, Jr.'s Memorandum dated July 3, 2015; id. at 1109-1161.
106

See also Binay, Jr.'s Comment (to Petitioners' Memorandum) dated July 3, 2015; id. at 2203-
2240. 

107
 Id. at 959-960.

108
Id. at 959. See also Manifestation dated May 14, 2015; id. at 641.

See discussions on the condonation doctrine in the Ombudsman's Memorandum, rollo, Vol. II,
109

pp. 708-733 and in the Ombudsman's Comment to Binay, Jr.'s Memorandum, rollo, Vol. II pp 1144-
1149,1153-1155, and 1158-1159.

110
 See Republic v. Bayao, G.R. No. 179492, June 5, 2013, 697 SCRA 313, 322-323.

 See  Bordomeo v. CA, G.R. No. 161596, February 20, 2013, 691 SCRA 269, 286, citing Heirs of
111

Spouses Reterta v. Spouses Mores, 671 Phil. 346, 359 (2011).

 See AFP Mutual Benefit Association, Inc. v. Solid Homes, Inc.,  658 Phil. 68, 19 (2011);
112

citing Diamond Builders Conglomeration v. Country Bankers Insurance Corporation,  564 Phil 756
769-770 (2007).

Republic v. Bayao, supra note 110, at 323, citing Siok Ping Tang v. Subic Bay Distribution
113

Inc.,  653 Phil. 124, 136-137(2010).

114
 See Ombudsman's Memorandum dated May 14, 2015; rollo, Vol. II, pp. 661-669.

115
  Francel Realty Corporation v. Sycip, 506 Phil. 407,415 (2005).

116
 See Court Resolution dated June 16, 2015; rollo, Vol. II, pp. 951-952.

117
 Id. at 2203-2240.

118
 See id. at 662-666 and 98.

 As the Ombudsman herself concedes; see Main Petition, rollo, Vol. 1, pp. 17-18; See also
119

Ombudsman's Memorandum, rollo, Vol. II, pp. 661-666.

120
  Bacolod City Water District v. Labayen, 487 Phil. 335, 346 (2004).

121
 Section 21, RA 6770 states:chanRoblesvirtualLawlibrary

Page 106 of 131

Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the
Ombudsman shall have disciplinary authority over all elective and appointive officials of Jthe
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.
 Section 22, RA 6770 states:chanRoblesvirtualLawlibrary
122

Section 22. Investigatory Power. — The Office of the Ombudsman shall have the power to
investigate any serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.

In all cases of conspiracy between an officer or employee of the government and a private
person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in
the investigation and proceed against such private person as the evidence may warrant. The
officer or employee and the private person shall be tried jointly and shall be subject to the same
penalties and liabilities.
 See Alejandro v. Office of the Ombudsman Fact-Finding and Intelligence Bureau , G.R. No.
123

173121, April 3, 2013, 695 SCRA 35, 44-46.     t

124
Molina v. Rafferty, 38 Phil. 167, 169 (1918).

 See National Police Commission v. De Guzman, Jr., G.R. No. 106724, February 9, 1994, 229
125

SCRA, 801-807.

126
 See  Espino v. Cleofe, 152 Phil. 80, 87 (1973).

 Records of the Senate, Vol. II, No. 6, August 2, 1998, pp. 174-187. As cited also in
127

Ombudsman's Memorandum, rollo, Vol. II, p. 662.

 Records of the Senate, Vol. II, No. 10, August 9, 1988, pp. 282-286 (full names of the
128

senators in brackets supplied). See also Ombudsman's Memorandum, rollo, Vol. II, pp. 662-665,
emphases and underscoring in the original.

 See Associate Justice Francis H. Jardeleza's interpellation; TSN of the Oral Arguments April
129

14 2015, p. 7.

130
 Approved on November 17, 1989.

131
 Effective July 1, 1997.

132
 Effective January 1, 1964.

Page 107 of 131

  "The word 'or' x x x is a disjunctive term signifying disassociation and independence of one
133

thing from the other things enumerated; it should, as a rule, be construed in the sense in which it
ordinarily implies, as a disjunctive word." ( Dayao v. Commission on Elections,G.R. Nos. 193643 and
193704 January 29, 2013, 689 SCRA 412,428-429.)

134
 Black's Law Dictionary, 8th Ed., p. 1720.

135
Bagatsing v. Ramirez, 165 Phil. 909, 914-915 (1976).

 Section 1, Rule 45 of the 1997 Rules of Procedure states that a "party desiring to appeal
136

by certiorari  from a judgment, final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for review
on certiorari." (Emphasis and underscoring supplied)

This is consistent with Item (e), Section 5 (2), Article VIII of the 1987 Constitution which
reads:

Section 5. The Supreme Court shall have the following powers:

xxxx

(2) Review, revise, reverse, modify, or affirm on appeal or   certiorari  , as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

(e) All cases in which only an error or question of law is involved.

137
 356 Phil. 787(1998).

 Note that "[o]ur ruling in the case of Fabian vs. Desierto invalidated Section 27 of Republic
138

Act "No. 6770 and Section 7, Rule 111 of Administrative Order No. 07 and any other provision of
law implementing the aforesaid Act only insofar as they provide for appeals in administrative
disciplinary cases from the Office of the Ombudsman to the Supreme Court. The only provision
affected by the Fabian ruling is the designation of the Court of Appeals as the proper forum and
of Rule 43 of the Rules of Court as the proper mode of appeal. All other matters included In said
section 27, including the finality or non-finality of decisions, are not affected and still stand."
(Lapid v. CA, 390 Phil. 236, 248 [2000]). 

Section 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court
139

as provided in this Constitution without its advice and concurrence.

Page 108 of 131

140
 587 Phil. 100(2008).

141
 Id. at 111-112.

142
 For ease of reference, the provision is re-stated:

"In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten
(10) days from receipt of the written notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of the Rules of Court."

 There should be no statement on the Court's lack of advice and concurrence with respect to
143

the second paragraph of Section 14, RA 6770 since the deliberations are, in fact, silent on the
said provision.

 See Ombudsman's Memorandum, rollo, Vol. II, pp. 666-667. Note that nowhere does the
144

fourth paragraph of Section 27 delimit the phrase "orders, directives or decisions" to those
rendered by the Ombudsman at the conclusion of the administrative proceedings, as the
Ombudsman submits.

 See Philippine Economic Zone Authority v. Green Asia Construction and Development

145

Corporation, 675 Phil. 846, 857(2011).

146
 See Black's Law Dictionary, 8th Ed., p. 615.

147
 Fabian supra note 137, at 800-801.

 A preventive suspension is a mere preventive measure, and not a penalty (see Quimbo v.

148

Gervacio, 503 Phil. 886, 891 [2005]); and hence, interlocutory in nature since it "does not
terminate or finally dismiss or finally dispose of the case, but leaves something to be done by
[the adjudicating body] before the case is finally decided on the merits." ( Metropolitan Bank &
Trust Company v. CA, 408 Phil. 686, 694 [2001]; see also Banares II v. Balising, 384 Phil. 567, 577
[2000]).

149
Gomales v. CA,  409 Phil. 684, 689 (2001). 

 Includes interlocutory orders, such as preventive suspension orders, as well as final and
150

unappealable decisions or orders under Section 27, RA 6770 which states that "[a]ny order,
directive or decision imposing the penalty of public censure or reprimand, suspension of not more
than one (1) month's salary shall be final and unappealable."

151
 G.R. No. 201643, March 12, 2014, 719 SCRA 209.

Page 109 of 131

152
 Id. at 219.

153
 G.R. No. 184083, November 19, 2013, 709 SCRA 681.

154
 Id. at 693.

155
 411 Phil. 204(2001).

156
 Supra note 140.

157
Rollo, Vol. 1, p. 18.

158
 Id.

159
 Id.

160
 G.R. Nos. 196231 and 196232, January 28, 2014, 714 SCRA 611.

161
 Id. at 639-641.

162
 Id. at 641-642.

163
 Id. at 643 (emphases supplied).

 Id. at 644, citing Bengzon v. Drilon,  G.R. No. 103524, April 15, 1992, 208 SCRA 133, 150
164

(emphasis supplied).

165
 Id. at 644-645 (emphases supplied).

166
 Id. at 646-648.

167
 See id. at 648-657.

 See Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased
168

by the Retired Chief/Associate Justices of the Supreme Court , A.M. No. 11-7-10-SC July 31 2012
678 SCRA 1, 13.

 See Gonzales III, supra note 160, at 650, citing the Record of the Constitutional Commission
169

Vol 2 July 26, 1986, p. 294.

170
 See rollo, Vol. I, pp. 670-671.

Page 110 of 131

  Records of the Senate, August 24, 1988, p. 619. See also rollo, Vol. II, pp. 670-671 (emphases
171

and underscoring in the original).

172
Rollo, Vol. II, p. 672.

 See discussions in Ombudsman's Memorandum, rollo, Vol. 11, pp. 670-678 and Binay, Jr.'s
173

Memorandum, rollo, Vol. II, pp. 825-833. See also TSN of the Oral Arguments, April 14, 2015, pp.
5-9.

 See People v. Vera, 65 Phil. 56, 82 (1937), citing McGirr v. Hamilton and Abreu, 30 Phil, 563,
174

568 (1915); 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.

175
 63 Phil. 139(1936).

176
 Id. at 157.

177
 G.R.Nos. 208566, 208493, and 209251, November 19, 2013, 710 SCRA 1.

178
 Id. at 108.

179
 Id.

 Entitled "AN ACT REORGANIZING THE JUDICIARY, APPROPRIATING FUNDS THEREFOR,

180

AND FOR OTHER PURPOSES" (approved on August 14, 1981).

181
 See Section 3, Chapter 1, BP 129.

182
 See Section 13, Chapter II, BP 129.

183
 See Section 25, Chapter III, BP 129.

 Entitled "An ACT Creating THE COURT OF TAX APPEALS" (approved on June 16, 1954), which
184

was later amended by RA 9282 (approved on March 30, 2004) and RA 9503 (approved on June 12,
2008).

 Entitled "CREATING A SPECIAL COURT TO BE KNOWN AS 'SANDIGANBAYAN' AND FOR

185

OTHER PURPOSES" (approved on June 11, 1978), which was later amended by PD 1606 (approved
on December 10, 1978), RA 7975 (approved on March 30, 1995), and RA 8249 (approved on
February 5, 1997).

186
 Section 5, Article VIII of the 1987 Constitution provides:

Page 111 of 131

Section 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari , prohibition, mandamus, quo warranto, and habeas
corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari , as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed
in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

xxxx

187
 See G.R. No. 205728, January 21, 2015, citing Reyes v. Diaz  73 Phil 484, 486 (1941)

188
 254 Phil. 418 (1989).

189
 Id. at 427.

 Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A
190

Commentary, 2009 Ed., p. 959, as cited also in the Ombudsman's Memorandum, rollo, Vol. II, p.

661.

191
 G.R. No. 101083, July 30, 1993, 224 SCRA 792.

192
 Id. at 810, citing Cruz, Isagani A., Philippine Political Law, 1991 Ed., pp. 226-227.

193
 20 Phil. 523(1911).

194
 Id. at 530-531.

Page 112 of 131

195
 See 361 Phil. 73, 86-91 (1999).

 Article VIII, Section 13 of the 1935 Constitution provides:chanRoblesvirtualLawlibrary

196

Section 13. The Supreme Court shall have the power to promulgate rules concerning pleading,
practice and procedure in all courts, and the admission to the practice of law. Said rules shall be
uniform for all courts of the same grade and shall not diminish, increase, or modify substantive
rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and
are declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the
same. The National Assembly shall have the power to repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the w7 admission to the practice of law in
the Philippines. (Emphasis supplied)
197
 Article X, Section 5 (5) of the 1973 Constitution provides:

Section 5. The Supreme Court shall have the following powers.

xxxx

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission
to the practice of law, and the integration of the Bar, which, however, may be repealed,
altered, or supplemented by the Batassing Pambansa. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify substantive rights. ( Emphasis supplied)

 See Re: Petition for Recognition of the Exemption of the Government Service Insurance
198

System (GSIS) from Payment of Legal Fees, 626 Phil. 93, 106-109 (2010).

Baguio Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes, 627 Phil.

199

543,549(2010).

200
 See discussions as in the Records of the Constitutional Commission, July 14, 1986, pp. 491-492.

201
 Id. at 492.

202
 Supra note 195, at 88.

 "Status quo is the last actual, peaceable and uncontested situation which precedes a
203

controversy." (See Dolmar Real Estate Dev't. Corp. v. CA, 570 Phil. 434, 439 [2008] and Preysler,
Jr. v. CA, 527 Phil. 129, 136 [2006].)

204
 See The Incorporators of Mindanao Institute, Inc. v. The United Church of Christ in the

Page 113 of 131

Philippines, G.R. No. 171765, March 21, 2012, 668 SCRA 637, 647. 

 Section 1, Rule 58 of the 1997 Rules of Civil Procedure provides:chanRoblesvirtualLawlibrary

205

Section 1. Preliminary injunction defined; classes. - A preliminary injunction is an order granted at

any stage of an action or proceeding prior to the judgment or final order, requiring a party or a
court, agency or a person to refrain from a particular act or acts. It may cilso require the
performance of a particular act or acts, in which case it shall be known as a preliminary
mandatory injunction.ChanRoblesVirtualawlibrary
 Section 3, Rule 58 of the 1997 Rules of Civil Procedure provides:chanRoblesvirtualLawlibrary
206

Section. 3. Grounds for issuance of preliminary injunction. — A preliminary injunction may be

granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or
perpetually;cralawlawlibrary

(b) That the commission, continuance or non-performance of the act or acts complained of during
the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of jthe rights of the
applicant respecting the subject of the action or proceeding, and tending to render the judgment
ineffectual.
207
 Section 5, Rule 58 of the 1997 Rules of Civil Procedure provides:

Section 5. Preliminary injunction not granted without notice; exception. — No preliminary

injunction shall be granted without hearing and prior notice to the party or person sought to be
enjoined. If it shall appear from facts shown by affidavits or by the verified application that
great or irreparable injury would result to the applicant before the matter can be heard on
notice, the court to which the application for preliminary injunction was made, may issue ex
parte a temporary restraining order to be effective only for a period of twenty (20) days from
service on the party or person sought to be enjoined, except as herein provided, x x x.

However, subject to the provisions of the preceding sections, if the matter is of extreme
urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge
of a multiple-sala court or the presiding judge of a single-sala court may issue  ex parte a
temporary restraining order effective for only seventy-two (72) hours from issuance but shall
immediately comply with the provisions of the next preceding section as to service of summons
and the documents to be served therewith, x x x.

Page 114 of 131

x x x x (Emphases supplied)

 Rules of procedure of special courts and quasi-judicial bodies may be specifically pointed out
208

by law and thus, remain effective unless the Supreme Court disapproves the same pursuant to
Section 5 (5), Article VIII of the 1987 Constitution:

Section 5. The Supreme Court shall have the following powers: cralawlawlibrary

(5) xxx. Rules of procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court. (Emphasis and underscoring supplied)

209
 G.R. No. 175723, February 4, 2014, 715 SCRA 182.

210
 Id. at 204.

211
 Id. at 197.

212
 Id. at 204.

213
 Id. at 204-205.

214
 Id. at 205.

215
 Supra note 175, at 177, citing Cooley, Constitutional Limitations, 8 th Ed., Vol. I, pp. 138-139.

216
 (last visited July 27, 2015). See also Black's Law Dictionary, 8 th Ed., p. 798.

217
 672 S.W.2d 62 (1984).

 The particular statute [KRS 243.580(2) and (3)] reads:chanRoblesvirtualLawlibrary

218

(2) If a license is revoked or suspended by an order of the board, the licensee shall at once
suspend all operations authorized under his license, except as provided by KRS 243.540, though
he files an appeal in the Franklin Circuit Court from the order of revocation of suspension.

(3) No court may enjoin the operation of an order of revocation or suspension pending an
appeal. If upon appeal to the Franklin Circuit Court an order of suspension or revocation is
upheld, or if an order refusing to suspend or revoke a license is reversed, and an appeal is taken
to the Court of Appeals, no court may enjoin the operation of the judgment of the Franklin
Circuit Court pending the appeal. (See  Smothers, id.; emphasis supplied.)

219
 See id.

Page 115 of 131

220
 "Substantive law is that part of the law which creates, defines and regulates rights, or which
regulates the right and duties which give rise to a cause of action; that part of the law which
courts are established to administer; as opposed to adjective or remedial law, which prescribes
the method of enforcing rights or obtain redress for their invasions." ( Primicias v. Ocampo, 93
Phil. 446, 452 [1953], citing Bustos v. Lucero, [46 Off. Gaz., January Supp., pp. 445, 448], further
citing 36 C. J. 27; 52 C. J. S. 1026); See alsoFabian, supra note 137.

221
 Fabian, id. at 809.

222
 629 Phil. 1 (2010).

223
 Supra note 198. 

224
 Supra note 199.

225
Neypes v. CA, 506 Phil. 613, 626 (2005). 

226
BAMARVEMPCO v. Cabato-Cortes, supra note 199, at 550. 

227
 See Ombudsman's Memorandum, rollo, Vol. II, pp. 668-669.

228
 TSN of the Oral Arguments, April 14, 2015, pp. 64-68.

229
 651 Phil. 374, 427(2010).

230
 See 2 335 Phil. 82, 114 (1997).

231
 503 Phil. 886 (2005). 

232
 Id. at 891-892.

233
The Ombudsman v. Valeroso, 548, Phil. 688, 695 (2007).

234
 Supra note 68. See also rollo, Vol. I, p. 45.

235
Rollo, Vol. I, p. 46.

236
Governor Garcia, Jr. supra note 68, at 690. 

237
 Supra note 92. 

Page 116 of 131

238
Rollo, Vol. I, p. 619

239
 All of which Pertains to the payment of Phase V. See id. at 346-349. See also id. at 623.

240
 Supra note 95.

241
 Supra note 96. 

242
 242 Id. at 619-620.

243
 See Ombudsman's Memorandum, rollo, Vol. II, p. 703-704.

244
 See rollo, Vol. I, pp. 410-415.

243
 See id. at 415-422.

246
 Black's Law Dictionary, 8th Ed., p. 315.

247
 106 Phil. 466 (1959).

248
 Id. at 471.

249
 Id.

 See Chief Justice Maria Lourdes P. A. Sereno's (Chief Justice Sereno) Interpellation, TSN of
250

the Oral Arguments, April 21, 2015, p. 191.

 155 Ohio St. 329; 98 N.E.2d 807 (1951); cited in Goger, Thomas, J.D., Removal of public
251

officers for misconduct during previous term,  42 A.L.R.3d 691 (1972), published by Thomson
Reuters (2015), p.

252
 Tex Civ App 29 SW 415 (1895), cited in Goger, Thomas, J.D., Removal of public officers for
misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson Reuters (2015),
p. 16, and in Silos, Miguel U., A Re-examination of the Doctrine of Condonation of Public Officers,
84 Phil. L.J. 22, 33 (2009).

 1956 OK 338; 305 P.2d 548 (1956); cited in Goger, Thomas, J.D., Removal of public officers
253

for misconduct during previous term, 42 A.L.R3d 691 (1972), published by Thomson Reuters
(2015), p. 15.

 22 Ohio St. 2d 120; 258 N.E.2d 594 (1970); cited in Goger, Thomas, J.D., Removal of public
254

officers for misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson

Page 117 of 131

Reuters (2015), pp. 11 and 22.

 1946 Pa. Dist. & Cnty.; 56 Pa. D. & C. 393 (1946); cited in Goger, Thomas, J.D., Removal of
255

public officers for misconduct during previous term , 42 A.L.R3d 691 (1972), published by
Thomson Reuters (2015), pp. 11.

 45 La Ann 1350, 14 So 28 (1893); cited in Goger, Thomas, J.D., Removal of public officers for
256

misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson Reuters (2015),
pp. 26.

 236 App Div 371, 259 NYS 402 (1932); cited in Goger, Thomas, J.D.,   Removal of public
257

officers for misconduct during previous term, 42 A.L.R.3d 691 (1972), published by Thomson
Reuters (2015), pp. 27.

 See Ombudsman's Memorandum p. 70, rollo, Vol. II, p. 715, citing Silos, Miguel U., A Re-
258

examination of the Doctrine of Condonation of Public Officers,  84, Phil. LJ 22, 69 (2009).

259
 239 Mass. 458; 132 N.E. 322(1921)

260
 109 Iowa 19; 79 N.W. 369(1899).

261
 192 Mich. 276; 158 N.W. 953 (1916).

262
 14 N.M. 493; 1908-NMSC-022 (1908).

263
 125 Ga. 18; 53 S.E. 811 (1906)

 85 Minn. 41; 88 N.W. 412 (1901), cited in Silos, Miguel U., A Re-examination of the Doctrine of
264

Condonation of Public Officers, 84, Phil. LJ 22, 69 (2009).

 148 Kan. 166; 80 P.2d 1095 (1938); cited in Silos, Miguel U., A Re-examination of the Doctrine
265

of Condonation of Public Officers, 84, Phil. LJ 22, 70 (2009).

266
 199 Kan. 403; 430 P.2d 304 (1967), applying State ex rel. Beck v. Harvey, id.

 Southern Cross Cement Corporation v. Cement Manufacturers Association of the

267

Philippines, 503 Phil. 485 (2005).

268
 Supra note 177.

 See Ombudsman Memorandum, rollo, Vol. II, p. 718, citing Cardozo, Benjamin N., The Nature of
269

the Judicial Process 149 (1921), cited in Christopher P. Banks, Reversal of Precedent and Judicial

Page 118 of 131

Policy- Making: How Judicial Conceptions of Stare Decisis in the U.S. Supreme Court Influence
Social Change, 32 Akron L. Rev. 233(1999).

270
 Id. at 722-723.

271
Kimble v. Marvel Entertainment,  L.L.C., 135 S. Ct. 2401; 192 L. Ed.; 192 L. Ed. 2d 463 (2015).

272
  Pascual, supra note 247, at 471.

273
 Id. at 471-472.

274
 Id. at 472.

275
 123 Phil. 916(1966).

 129 Phil. 553 (1967). See also  Luciano v. The Provincial Governor,  138 Phil. 546 (1967)
276

and Oliveros v. Villaluz,  156 Phil. 137 (1974).

277
 Supra note 92.

278
 Supra note 95.

279
 Id. at 921.

280
 Supra note 96.

281
 633 Phil. 325(2010).

282
 Id. at 335

283
 577 Phil. 52, 72 (2008).

284
Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012, 676 SCRA 579, 607. 

285
Teehankee v. Rovira, 75 Phil. 634, 646 (1945), citing 11 Am. Jur., Constitutional Law, Section 96.

Philippine Constitution Association v. Enriquez , G.R. Nos. 113105, 113174, 113766 and 113888
286

August 19, 1994, 235 SCRA 506, 523.

 See Silos, Miguel U., A Re-examination of the Doctrine of Condonation of Public Officers,  84,
287

Phil. LJ 22, 69 (2009), pp. 26-27.

Page 119 of 131

288
 Section 27, Article II.

 Belgica, supra note 177, at 131, citing Bernas, Joaquin G., S.J., The 1987 Constitution of the
289

Republic of the Philippines: A Commentary , 2003 Ed., p. 1108.

290
 Section 1. Declaration of Policy. - The State shall insure and promote the Constitutional
mandate that appointments in the Civil Service shall be made only according to merit and fitness;
that the Civil Service Commission, as the central personnel agency of the Government shall
establish a career service, adopt measures to promote morale, efficiency, integrity,
responsiveness, and courtesy in the civil service, strengthen the merit and rewards system,
integrate all human resources development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability; that public office is a public trust and
public officers and employees must at all times be accountable to the people; and that
personnel functions shall be decentralized, delegating the corresponding authority to the
departments, offices and agencies where such functions can be effectively performed. (Section 1,
Book V, Title I, subtitle A of the Administrative Code of 1987; emphasis supplied).

 Section 2. Declaration of Policies. - It is the policy of the State to promote a high standard of
291

ethics in public service. Public officials and employees shall at all times be accountable to the
people and shall discharge their duties with utmost responsibility, integrity, competence, and
loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over
personal interest. (Emphasis supplied) See Section 2, RA 6713 (approved on February 20, 1989).

 Entitled "AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991" (approved on
292

October 10 1991).

293
 279 Phil. 920, 937(1991)

 In Fudula's Petition (297 Pa. 364; 147 A. 67 [1929]), the Supreme Court of Pennsylvania cited
294

(a) 29 Cyc. 1410 which states: "Where removal may be made for cause only, the cause must
have occurred during the present term of the officer. Misconduct prior to the present term
even during a preceding term will not justify a removal": and (b) "x x x Penal Code [Cal.],
paragraph 772, providing for the removal of officers for violation of duty, which states "a
sheriff cannot be removed from office, while serving his second term, for offenses
committed during his first term." (Emphases supplied)

ln Board of Commissioners of Kingfisher County v. Shutler  (139 Okla. 52; 281 P. 222 [1929]),
the Supreme Court of Oklahoma held that "[u]nder section 2405, C. O. S. 1921, the only
judgment a court can render on an officer being convicted of malfeasance or misfeasance in
office is removal from office and an officer cannot be removedfrom office under said
section for acts committed by him while holding the same office in a previous term."
(Emphases supplied)

Page 120 of 131

295
 In State v. Blake (138 Okla. 241; 280 P. 833 [1929]), the Supreme Court of Oklahoma
cited State ex rel. Hill, County Attorney, v. Henschel, 175 P. 393, wherein it was said: "Under the
Ouster Law (section 7603 of the General Statutes of 1915-Code Civ. Proc. 686a-), a public
officer who is guilty of willful misconduct in office forfeits his right to hold the office for the
term of his election or appointment; but the disqualification to hold the office does not
extend beyond the term in which his official delinquency occurred." (Emphases supplied)

 In Rice v. State (204 Ark. 236; 161 S.W.2d 401 [1942]), the Supreme Court of Arkansas cited
296

(a)  Jacobs v. Parham, 175 Ark. 86,298 S.W. 483, which quoted a headnote, that "Under Crawford
Moses' Dig., [(i.e., a digest of statutes in the jurisdiction of Arkansas)] 10335, 10336, a public
officer is not subject to removal from office because of acts done prior to his present term of
office in view of Const., art. 7, 27, containing no provision against re-election of officer
removed for any of the reasons named therein." (Emphases supplied)

297
 In State ex rel. Brlckell v. Hasty (184 Ala. 121; 63 So. 559 [1913]), the Supreme Court of
Alabama held: "x x x If an officer is impeached and removed, there is nothing to prevent his
being elected to the identical office from which he was removed for a subsequent term,
and, this being true, a re election to the office would operate as a condonation under the
Constitution of the officer's conduct during the previous term, to the extent of cutting off the
right to remove him from subsequent term for said conduct during the previous term. It seems to
be the policy of our Constitution to make each term independent of the other, and to disassociate
the conduct under one term from the qualification or right to fill another term, at least, so far as
the same may apply to impeachment proceedings, and as distinguished from the right to indict and
convict an offending official." (Eijnphasis supplied)

 In State Ex Rel. V. Ward (163 Tenn. 265; 43 S.W.2d. 217 [1931]), decided by the Supreme
298

Court of Tennessee, Knoxville, it appears to be erroneously relied upon in Pascual, since the

proposition "[tjhat the Acts alleged in paragraph 4 of the petition involved contracts made by
defendant prior to his present term for which he cannot now be removed from office" was not a
court ruling but an argument raised by the defendant in his demurrer.

299
 In Conant v. Grosan (6 N.Y.S.R. 322 [1887]), which was cited in Newman v. Strobel(236 A.D.
371; 259 N.Y.S. 402 [1932]; decided by the Supreme Court of New York, Appellate Division)
reads: "Our attention is called to Conant v. Grogan (6 N.Y. St. Repr. 322; 43 Hun,
637) and Matter of King (25 N.Y. St. Repr. 792; 53 Hun, 631), both of which decisions are of the
late General Term, and neither of which is reported in full in the official series. While there
are expressions in each opinion which at first blush might seem to uphold respondent's theory,
an examination of the cases discloses the fact that the charge against each official related
to acts performed during his then term of office, and evidence of some prior irregularity
was offered which in no way pertained to the charge in issue. It was properly held that
such evidence was incompetent. The respondent was not called upon to answer such charge, but

Page 121 of 131

an entirely separate and different one." (Emphases supplied)

 In People ex rel. Basshaw v. Thompson (55 Cal. App. 2d 147; 130 P.2d.237 [1942]), the Court
300

of Appeal of California, First Appellate District cited Thurston v. Clark, (107 Cal. 285, 40 P. 435),
wherein it was ruled: "The Constitution does not authorizethe governor to suspend an incumbent
of the office of county commissioner for an act of malfeasance or misfeasance in office
committed by him prior to the date of the beginning of his current term of office as such county
commissioner." (Emphasis supplied)

301
Montgomery v. Nowell, (183 Ark. 1116; 40 S.W.2d 418 [1931]; decided by the Supreme Court
of Arkansas), the headnote reads as follows: "Crawford & Moses' Dig., 10, 335, providing for
suspension of an officer on presentment or indictment for certain causes including malfeasance,
in office does not provide for suspension of an officer on being indicted for official misconduct
during a prior term of office." (Emphasis supplied)

 See Chief Justice Maria Lourdes P. A. Sereno's interpellation, TSN of the Oral Arguments,
302

April 14, 2015, p. 43.

 See Ombudsman's Memorandum, rollo, Vol. 11, p. 716, citing Silos, Miguel U., A Re-examination
303

of the Doctrine of Condonation of Public Officers,  84, Phil. LJ 22, 69 (2009), p. 67.

304
 117 N.J.L. 64; 186 A. 818(1936).

305
 See Article 8 of the Civil Code.

306
 632 Phil. 657(2010).

307
 Id. at 686.

308
 154 Phil. 565 (1974).

309
 G.R. Nos. 97973 and 97998, January 27, 1992, 205 SCRA 515.

310
 Id. at 527.

311
  Yu v. Reyes-Carpio, 667 Phil. 474, 481-482 (2011).

Tagolino v. House of Representatives Electoral Tribunal , G.R. No. 202202, March 19 2013 693
312

SCRA 574, 599-600.

 See Press Release dated October 9, 2015 of the Office of the Ombdusman, (visited November
313

9, 2015).

Page 122 of 131

314
 Supra note 177, at 93.

315
 See Ombudsman's Memorandum,  rollo, Vol II p 85. 

316
Rollo, Vol. I, pp. 50-51.

 See Amended and Supplemental Petition for Contempt dated March 18, 2015 wherein private
317

respondent Binay, Jr. charged, inter alia, the Ombudsman for acts constituting indirect contempt
under Section 3 (b), (c), and (d) of Rule 71 of the Rules of Court; id. at 362-375.

318
 See rollo, Vol. II, pp. 734-743.

319
Rollo, Vol. I, p. 50.

CONCURRING AND DISSENTING OPINION

BERSAMIN, J.:

I am writing this separate opinion to memorialize my concurrence with the declaration of the
ineffectiveness of the first paragraph of Section 14 of Republic Act No. 6770, and of the
unconstitutionality of the second paragraph thereof. The main opinion has been written well by
our esteemed colleague, Associate Justice Estela M. Perlas-Bernabe, who has exhibited her
scholarly bent once again. But let me assure my colleagues in the Majority that if I submit this
concurrence, I do not mean to diminish in any way or degree the forcefulness and correctness of
the justification for the declaration. I simply want to underscore that Section 14 of Republic Act
No. 6770 should be struck down for authorizing the undue interference with the prerogatives of
the courts of law to adopt whatever means were allowed by law and procedure to exercise their
jurisdiction in the cases properly cognizable by them.

My dissent focuses on the main opinion's re-examination of the doctrine of condonation. This
controversy does not call for the revisit of the doctrine, and does not warrant its eventual
abandonment. For the Court to persist in the re-examination, as it does now, and to announce its
abandonment of the doctrine despite the lack of the premise of justiciability is to indulge in
conjecture or in unwarranted anticipation of future controversies. We should refrain from the
re-examination.

Page 123 of 131

The Ombudsman's supplemental petition raised condonation for the first time but only to support
her insistence that the CA could not validly rely on the doctrine of condonation to justify its
issuance of the injunction. She maintained then that condonation was a matter of defense to be
properly raised only in the appropriate administrative proceeding, viz:

6. It must be further emphasized that the condonation doctrine is irrelevant in the Ombudsman's
determination of whether the evidence of guilt is strong in issuing preventive suspension orders.
Said doctrine does not go into the heart of subject-matter jurisdiction. Neither can it oust the
Ombudsman of her jurisdiction which she has already acquired. Private respondent's claim of
condonation doctrine is equally a matter of defense which, like any other defense, could be raised
in the proper pleading, could be rebutted, and could be waived.

As a defense, condonation should be passed upon after a decision on the administrative

proceedings, not this early in the proceeding.

7. The condonation doctrine, however, cannot abate the issuance of a preventive suspension
order, precisely because an order of preventive suspension does not render a respondent
administratively liable. A respondent may be preventively suspended, yet may be exonerated in
the end.

8. At all events, there is no condonation because private respondent committed the acts subject
of the complaint after his re-election in 2013, as was argued by petition in public respondent
Court of Appeals.

9. As mentioned earlier, there is no condonation. The assailed act (i.e. payment), by private
respondent's own admission during the proceedings before public respondent Court of Appeals,
took place during the period of June and July 2013, which was after his re-election in May 2013. 1

The Ombudsman again discussed the doctrine of condonation at some length in her Memorandum
as the fourth and last argument presented on the issue of the propriety of the temporary
restraining order and the writ of preliminary injunction. 2 She reiterated, however, that the
doctrine was only a matter of defense that was relevant only in imposing an administrative penalty
on the respondent public elective official, to wit:

165. Thus, in deciding that the evidence of respondent Binay's guilt is strong, petitioner did not
take into consideration the so-called "condonation doctrine" the way respondent Court of Appeals
did in its Third Resolution. The condonation doctrine is applicable and relevant only to the
imposition of an administrative penalty, not to the issuance of a preventive suspension, the latter
being merely a preliminary step in an administrative investigation.

166. Since a preventive suspension does not hold a public officer liable, it will not be affected by
any "condonation" that the electorate may extend to the public officer. Verily, for purposes of

Page 124 of 131

aiding an investigation, a public officer may be preventively suspended even as, ultimately, he or
she will be exonerated from administrative liability due to the condonation doctrine.
CONDONATION IS A MATTER OF DEFENSE - to be positively alleged and to be weighed
according to the evidence - during the administrative proceedings, and not at the very preliminary
stage thereof.3

I agree with the Ombudsman. The question of grave abuse of discretion on the part of the CA
could be settled not by re-examining and overturning the doctrine of condonation but by
reference to Section 24 of the Republic Act No. 6770. It would be plain error for us to
determine whether the Court of Appeals (CA) gravely abused its discretion or not on the basis of
the doctrine of condonation.

The general investigatory power of the Ombudsman is decreed by Section 13 (1), Article XI of
the 1987 Constitution,4 while her statutory mandate to act on administrative complaints is
founded on Section 19 of Republic Act No. 6770, viz.:

Section 19. Administrative complaints. — The Ombudsman shall act on all complaints relating, but
not limited, to acts or omissions which:

1. Are contrary to law or regulation;cralawlawlibrary

2. Are unreasonable, unfair, oppressive or discriminatory;cralawlawlibrary

3. Are inconsistent with the general course of an agency's functions, though in accordance with
law;cralawlawlibrary

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;cralawlawlibrary

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of justification.ChanRoblesVirtualawlibrary

In line with the power to investigate administrative cases, the Ombudsman is vested with the
authority to preventively suspend respondent public officials and employees pursuant to Section
24 of Republic Act No. 6770, which provides:

Section 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend
any officer or employee under his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the
charges would warrant removal from the service; or (c) the respondent's continued stay in office
may prejudice the case filed against him.

Page 125 of 131

The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.

It is important to note, however, that the Ombudsman has no authority to issue the preventive
suspension order in connection with criminal investigations of government officials or employees
because such authority rests in the courts in which the criminal cases are filed. 5

Under Section 24, supra, two requisites must concur to render the preventive suspension order
valid. The first requisite is unique because it can be satisfied in only one way, which is that the
evidence of guilt is strong in the judgment of the Ombudsman or the Deputy Ombudsman. But the
second requisite may be satisfied in three different ways, namely: (1) that the offense charged
involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (2)
the charge would warrant removal from the service; or (3) the respondent's continued stay in
office may prejudice the case filed against him or her. 6

Respondent Jejomar Erwin S. Binay, Jr., along with other officers and employees of the City of
Makati, were administratively charged in the Office of the Ombudsman with grave misconduct,
serious dishonesty, and conduct prejudicial to the best interest of the service. 7 In her joint
order dated March 10, 2015, the Ombudsman stated that the requisites for the issuance of the
preventive suspension order against Binay, Jr. and his corespondents were satisfied, specifically:

The first requisite is present in these cases, as shown by the supporting evidence attached as

Annexes to the Complaint. These Annexes include, among other things, sworn statements
of alleged losing bidders and of some members of the Makati City BAC attesting to the
irregularities in the subject procurement; documents negating the purported publication of bids;
and disbursement vouchers, checks, and official receipts showing disbursement of public funds by
the city government.

As regard the second requisite, all the circumstances enumerated therein are likewise present.
The Complaint charges respondents with Grave Misconduct, Serious Dishonesty and Conduct
Prejudicial to the Best Interest of the Service. If proven true, they constitute grounds for
removal from public service under the Revised Rules on Administrative Cases in the Civil Service.
Moreover, since the respondents' respective positions give them access to public records and
influence on possible witnesses, respondents' continued stay in office may prejudice the cases
filed against them. Thus, their preventive suspension without pay for a period of six (6) months  is
in order.

Page 126 of 131

When he assailed the preventive suspension order by petition for certiorari in the CA, Binay, Jr.
alleged that the preventive suspension order was illegal and issued with grave abuse of discretion
because: (1) it contravened well-settled jurisprudence applying the doctrine of condonation; and
(2) evidence of his guilt was not strong. He prayed that a temporary restraining order or writ of
preliminary injunction be issued to enjoin the implementation of the preventive suspension order.

The CA heeded Binay, Jr.'s prayer for injunctive reliefs chiefly on the basis of the doctrine of
condonation. In the resolution promulgated on March 16, 2015, the CA, citing the pronouncement
in Garcia, Jr. v. Court of Appeals,8  granted Binay, Jr.'s application for the temporary restraining
order, holding as follows:

In Garcia v. Court of Appeals (GR No. 185132, April 24, 2009), the Supreme Court held that
suspension from office of an elective official, whether as a preventive measure or as a penalty
will undeservedly deprive the electorate of the services of the person they have conscientiously
chosen and voted into office.

The Supreme Court in said case likewise found serious and urgent the question, among other
matters, of whether the alleged acts were committed in the previous term of office of petitioner
therein. This is because if it were established that the acts subject of the administrative
complaint were indeed committed during petitioner's prior term, then following settled
jurisprudence, he can no longer be administratively charged. It further declared imperative on
the part of the appellate court, as soon as it was apprised of the said considerable grounds, to
issue an injunctive writ so as not to render moot, nugatory and ineffectual the resolution of the
issues in the certiorari petition. (Garcia, supra)

The Supreme Court also declared that it would have been more prudent on the part of the CA, on
account of the extreme urgency of the matter and the seriousness of the issues raised in
the certioraripetition, to issue a TRO while it awaits the respective comments of the respondents
and while it judiciously contemplates on whether or not to issue a writ of preliminary injunction.
It pointed out that the basic purpose of a restraining order is to preserve the status quo until
the hearing of the application for preliminary injunction. That, it is a preservative remedy for the
protection of substantive rights and interests. ( Garcia, supra)

In view of the seriousness of the issues raised in the Petition for Certiorari and the possible
repercussions on the electorate who will unquestionably be affected by suspension of their
elective official, the Court resolves to grant petitioner's prayer for a Temporary Restraining
Order for a period of sixty (60) days from notice hereof, conditioned upon the posting by
petitioner of a bond in the amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00) 9

In ultimately granting the writ of preliminary injunction through its April 6, 2015 resolution, the
CA, relying on the doctrine of condonation adopted in Garcia, Jr.; Joson III v. Court of
Appeals;10Aguinaldo v. Santos;11 and Salalima v. Guingona, Jr.,12 explained:

Page 127 of 131

Garcia was simply an echo of teachings in Joson v. Cowl of Appeals (G.R. No. 160652, February 13,
2006) where the High Court declared that suspension from office of an elective official would
deprive the electorate of the services of the person they have voted into office.

Along this line, the concept of condonation, as advocated by petitioner and opposed by public
respondent Ombudsman, will assume resonance.

Premised on Aguinaldo, Salalima and Garcia, petitioner asserted that the public respondent

Ombudsman can hardly impose preventive suspension of petitioner, given his election in 2010 and
re-election in 2013 as Makati City Mayor, relative to his perceived illegal participation in
anomalous activities for the Makati City Hall Building II project from 2007 to 2013.

xxxx

To reiterate, there was no disagreement that petitioner was elected in 2010 and re-elected as
City Mayor of Makati in 2013. The acts constitutive of the charges in the Complaint pertained to
events from November 8, 2007, when City Ordinance No. 2007-A-015 appropriated
P1,240,000,000.00 as supplemental budget for 2007. From this budget, P400,000,000.00 was
allocated for the parking building. It was allegedly during this time that a Negotiated Contract
for the architectural and engineering services were negotiated and approved. Disbursements
allegedly favored Hilmarc and MANA amidst irregularities in the bidding process during the term
of petitioner as City Mayor of Makati.

Yet, to subscribe to public respondent Ombudsman's submission that condonation can only be
appreciated by the investigating body after it is ventilated as an exculpation by petitioner
and considered solely by public respondent, following the exercise of its investigatory power, will
ignore the Court's constitutional power and duty to evaluate the factual and legal foundations for,
nay, impediments to, a preventive suspension in an administrative case. 13

In my view, however, the CA erroneously banked on the pronouncements in Garcia, Jr., Joson III,
Aguinaldo, and Salalima to espouse the doctrine of condonation as the basis to issue the
injunctive writs under its resolutions promulgated on March 16, 2015 and April 6, 2015. In
both Aguinaldo and Salalima,the Court applied the doctrine of condonation to avoid the imposition
of administrative liability upon re-elected public officials. Specifically, the Court held
in Aguinaldo that:

Petitioner's re-election to the position of Governor of Cagayan has rendered the administrative
case pending before Us moot and academic. It appears that after the canvassing of votes,
petitioner garnered the most number of votes among the candidates for governoer of Cagayan
province, xxx

xxxx

Page 128 of 131

Clearly then, the rule is that a public official cannot be removed for administrative misconduct
committed during a prior term, since his reelection to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off the right to remove him therefor. The
foregoing rule, however, finds no application to criminal cases pending against petitioner for acts
he may have committed during the failed coup. 14

while in Salalima, the Court maintained that:

xxx [A]ny administrative liability which petitioner Salalima might have incurred in the execution
of the retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the
execution on 6 March 1992 of a contract for additional repair and rehabilitation works for the
Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his reelection in the 11
May 1992 synchronozed elections. So are the liabilities, if any, of petitioner members of the
Sangguniang Panlalawigan ng Albay,who signed Resolution No. 129 authorizing petitioner Salalima
to enter into the retainer contract in question and who were reelected in the 1992 elections. This
is, however, without prejudice to the institution of appropriate civil and criminal cases as may be
warranted by the attendant circumstances, xxx15

It is clear to me that, based on the language and the factual milieu of Aguinaldo and Salalima,
which both cited Pascual v. Provincial Board of Nueva Ecija,16 and of other akin
rulings,17 condonation shall apply only in case of the re-election of a public officer who is sought
to be permanently removed from office as a result of his misconduct, not while such public
officer is undergoing investigation. Condonation necessarily implies that the condoned act has
already been found to have been committed by the public officer. Hence, condonation applies to
the penalty or punishment imposed after the conduct of an administrative investigation . Under
the circumstances, the pronouncements in  Aguinaldo, Salalima and the others could not be
applicable to the preventive suspension order issued to Binay, Jr. pending his administrative
investigation because preventive suspension pending the conduct of an investigation was not yet a
penalty in itself, but a mere measure of precaution to enable the disciplining authority to
investigate the charges by precluding the respondent from influencing the witnesses against
him.18

It is worth emphasis that preventive suspension is distinct from the penalty of suspension. The
former is imposed on a public official during the investigation while the latter, as a penalty, is
served after the finaldisposition of the case.19 The former is not a punishment or penalty for
misconduct in office, but a merely preventive measure, or a preliminary step in the administrative
investigation.20

As I see it, the CA misconstrued the milieu in Garcia, Jr. and  Joson III  as an application of the
doctrine of condonation. The Court notably stated in Garcia, Jr. and Joson III that "suspension

Page 129 of 131

from office of an elective official would deprive the electorate of the services of the person
they voted into office" in the context of determining the propriety of the issuance of the
preventive suspension order. In other words, the statement only served to remind the
Ombudsman to issue the preventive suspension orders with utmost caution in view of the gravity
of the effects of suspending an incumbent elective local official. Hence, Garcia, Jr.  and Joson
III did not apply the doctrine of condonation.

I further underscore that the CA was then only resolving Binay, Jr.'s application for injunctive
reliefs against the preventive suspension order issued by the Ombudsman. At that point, the CA's
application of the doctrine of condonation was irrelevant and unnecessary.

A preliminary injunction is an order granted at any stage of an action prior to the judgment or
final order requiring a party or a court, agency or a person to refrain from a particular act or
acts.21 The requirements for the issuance of a writ of preliminary injunction or temporary
restraining ordern are clearly set forth in Section 3, Rule 58 of the Rules of Court.22 The sole
objective of the writ of preliminary injunction is to preserve the status quo until the merits of
the case can be heard fully. The writ of preliminary injunction is generally based solely on initial
and incomplete evidence;23 hence, it should not determine the merits of a case, or decide
controverted facts, for, being a preventive remedy, it only seeks to prevent threatened wrong,
further injury, and irreparable harm or injustice until the rights of the parties can be
settled.24 As held in Saulog v. Court of Appeals25 it is sufficient that:

x x x for the court to act, there must be an existing basis of facts affording a present right
which is directly threatened by an act sought to be enjoined. And while a clear showing of the
right claimed is necessary, its existence need not be conclusively established. In fact, the
evidence to be submitted to justify preliminary injunction at the hearing thereon need not be
conclusive or complete but need only be a sampling intended merely to give the court an idea of
the justification for the preliminary injunction pending the decision of the case on the merits.
This should really be so since our concern here involves only the proprietary of the preliminary
injunction and not the merits of the case still pending with the trial court.

Thus, to be entitled to the writ of preliminary injunction, the private respondent needs only to
show that it has the ostensible right to the final relief prayed for in its complaint  x x x. (bold
emphasis supplied.)

By relying on the doctrine of condonation, therefore, the CA went beyond the parameters for
determining whether or not to issue the injunctive writ. To recall, Binay, Jr. had filed his petition
for certiorari in the CA primarily to assail the validity of the preventive suspension order. What
was raised for the CA to determine was whether or not the Ombudsman satisfactorily complied
with the requisites imposed by Section 24 of Republic Act No. 6770 to establish that Binay, Jr.
and his co-respondents had the ostensible right to the final relief prayed for in their petition,
which was the nullification or lifting of the preventive suspension order. In this regard, the CA

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plainly exceeded its jurisdiction.

In the meanwhile, the Ombudsman found Binay, Jr. administratively liable, and dismissed him
from the service. By such dismissal, the questions raised against the CA's issuance of the writ of
preliminary injunction against the Ombudsman were rendered moot and academic. I join the
Majority in saying that the preventive suspension order, being an ancillary issuance, was dissolved
upon the Ombudsman's resolution of the administrative charges on the merits. Thus, to dwell on
the preventive suspension of Binay, Jr. and his co-respondents any further would be superfluous,
for, as the Court said in Philippine Savings Bank v. Senate Impeachment Court :26

It is a rule of universal application that courts of justice constituted to pass upon substantial
rights will not consider questions in which no actual interests are involved; they decline
jurisdiction of moot cases. And where the issue has become moot and academic, there is no
justiciable controversy, so that a declaration thereon would be of no practical use or value. There
is no actual substantial relief to which petitioners would be entitled and which would be
negated by the dismissal of the petition.

In short, the Court should excuse itself from exercising jurisdiction because the main case, the
administrative proceeding against the respondents, has already been decided by the Ombudsman
on the merits.

IN VIEW OF THE FOREGOING, I VOTE to PARTIALLY GRANT the petition

for certiorari and prohibition, and, accordingly, SET ASIDE the Resolution promulgated on April
6, 2015 by the Court of Appeals.

I further VOTE to DISSOLVE the writ of preliminary injunction issued on April 8, 2015 in C.A.-

G.R. SP No. 139453; and to AFFIRM the Resolution promulgated on March 20, 2015 in C.A.-G.R. SP
No. 139504.

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