1

1. What is a public office? What are its elements?

2. What is the difference between a public office and a
private office?
3. Who are Public Officers under Article 203 of the
Revised Penal Code? Under Section Section 2(b) of
Republic Act No. 3019?
4. Who are Public Officials under Section 3(b) of
Republic Act No. 6713?

Cases:

1. Amelia Carmela Constantino Zoleta vs. The

Honorable Sandiganbayan and the People of the
Philippines, G.R. No. 185224, July 29, 2015;
2. Major Joel G. Santos vs. People of the Philippines,
G.R. No. 184908, July 3, 2013;
3. Salvador H. Laurel vs. Hon. Aniano A. Desierto, in his
capacity as Ombudsman, G.R. No. 145368, April 12,
2002;
4. Felicito S. Macalino vs. Sandiganbayan and Office of
the Ombudsman, G.R. Nos. 140199-200, February 6,
2002;
5. City Mayor of Zamboanga vs. Court of Appeals and
Eustaquio C. Argana, G.R. No. 80270, February 27,
1990;
6. Evelyn Abeja vs. Judge Federico Tañada, RTC of
Lucena City, Br 58 and Rosauro Radovan (deceased),
G.R. No. 112283, August 30, 1994;
7. Jimmy S. De Castro vs. COMELEC and Amando A.
Medrano, G.R. No. 125249, February 7, 1997;
8. Office of the Court Administrator vs. Judge Augusto
Sumilang, et al, A.M. No. MTJ-94-989 April 18, 1997;
9. The People of the Philippine Islands vs. Ricardo
Mendoza, G.R. No. L-39275, December 20, 1933;
10. Filipina Samson vs. Julia A. Restrivera, G.R. No.
178454, March 28, 2011.

SECOND DIVISION G.R. No. 185224 July 29, 2015
AMELIA CARMELA CONSTANTINO ZOLETA,
Petitioner, vs.
THE HONORABLE SANDIGANBAYAN
[FOURTH DIVISION] and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION BRION, J.:
We resolve the petition for review on certiorari1 filed by petitioner Amelia
Carmela Constantino Zoleta assailing the November 5, 2008 decision2 of
the Sandiganbayan (Fourth Division) in Criminal Case No. 28326.
The case stemmed from an anonymous complaint filed against the
petitioner, Mary Ann Gadian, and Sheryll Desiree Tangan before the Office
of the Ombudsman-Mindanao (Ombudsman) for participating in the
scheme of questionable grants and donations to fictitious entities using
provincial funds. As a result of this complaint, the Commission on Audit
(COA) conducted a special audit in Sarangani Province. Among the
irregularities discovered by the Special Audit Team was a ₱20,000.00
financial assistance given to Women in Progress (WIP), a cooperative
whose members were mostly government personnel or relatives of the
officials of Sarangani Province.
The COA Special Audit Team submitted its report to the Ombudsman
which, in turn, conducted a preliminary investigation. Thereafter, the
Ombudsman, through the Office of the Special Prosecutor, charged the
petitioner, Vice-Governor Felipe Constantino, Violeta Bahilidad, Maria
Camanay, and Teodorico Diaz with malversation of public funds by
falsification of public documents defined and penalized under Article 217
in relation to Article 171(2) and Article48 of the Revised Penal Code, as
amended, before the Sandiganbayan in an Information which reads: That on
January 24, 2002 or prior or subsequent thereto in Sarangani, Philippines,
and within the jurisdiction of this Honorable Court, accused Felipe Katu
Constantino, a high-ranking public officer, being the Vice-Governor of the
Province of Sarangani, Maria D. Camanay, Provincial Accountant,
Teodorico F. Diaz, Provincial Board Member, Amelia Carmela C. Zoleta,
Executive Assistant III, all accountable public officials of the Provincial
Government of Sarangani, by reason of the duties of their office, conspiring
and confederating with Violita Bahilidad, private individual, the public
officers, while committing the offense in relation to office, taking
advantage of their respective positions, did then and there wilfully,
unlawfully and feloniously take, convert and misappropriate the amount of
TWENTY THOUSAND PESOS (₱20,000.00), Philippine Currency, in
public funds under their custody, and for which they are accountable, by
falsifying or causing to be falsified the corresponding Disbursement
Voucher No. 101-2002-01-822 and its supporting documents, making it
appear that financial assistance had been sought by Women In Progress,
Malungon, Sarangani, represented by its President, Amelia Carmela C.
Zoleta, when in truth and in fact, the accused knew fully well that no
financial assistance had been requested by the said group and her
association, nor did Amelia Carmela C. Zoleta and her association receive
the aforementioned amount, thereby facilitating the release of the above-
mentioned public funds in the amount of TWENTY THOUSAND PESOS
(₱20,000.00)through encashment by the accused at Land Bank of the
Philippines (LBP) Check No. 36481 dated January 24, 2002 issued in the
name of the Violeta Bahilidad, which amount they subsequently
misappropriated to their personal use and benefit and despite demand, the
said accused failed to return the said amount to the damage and prejudice of
the government and the public interest of the aforesaid sum.
CONTRARY TO LAW.3 (Emphasis in the original.)
On arraignment, the petitioner, Vice-Governor Constantino and Bahilidad
pleaded "not guilty." Diaz and Camanay, on the other hand, remained at
large.
On March 22, 2006, the Sandiganbayan issued a Pre-trial Order.4 The
People of the Philippines, though the Office of the Special Prosecutor, filed
its Comment and Ex Parte Motion to Include Testimonial Evidence and
Issue to Pre-trial Order5 essentially claiming that the Pre-trial Order did not
reflect certain testimonial evidence "as stated during the Pre-Trial."6
In its Order7 dated April 5, 2006, the Sandiganbayan amended certain
portions of the Pre-trial Order.
On April 25, 2006, Vice-Governor Constantino died in a vehicular
accident, resulting in the dismissal of the case against him.
In its decision dated November 5,2008, the Sandiganbayan found the
petitioner and Bahilidad guilty beyond reasonable doubt of the crime
charged, and sentenced them to suffer the indeterminate penalty of fourteen
(14) years, eight (8) months and one (1) day, as minimum, to sixteen (16)
years, five (5) months, and eleven (11) days of reclusion temporal, as
maximum. It also imposed on them the additional penalty of perpetual
2
disqualification from holding any public office. The Sandiganbayan
likewise directed them to pay back the Province of Sarangani ₱20,000.00
plus interest, computed from January 2002 until fully paid.8
The Sandiganbayan held that Vice-Governor Constantino had control and
custody of the funds by reason of his office, and that his signature was
needed before a grant, donation, or assistance could be released to a
requesting party. According to the Sandiganbayan, Vice-Governor
Constantino approved the ₱20,000.00 disbursement despite the lack of the
required documentation.
The Sandiganbayan further ruled that Vice-Governor Constantino
conspired with the other accused in using a dummy organization WIP to
facilitate the malversation. It explained that the petitioner, who was Vice-
Governor Constantino’s own daughter and who held the position of
Executive Assistant III in his office, committed the following acts: (a)
ordered Mary Ann Gadian, a computer operator at the Office of the
Sangguniang Panlalawigan of Sarangani, to make a letter-request for
financial assistance using a nonexistent cooperative; (b) directed Jane
Tangan, the Local Legislative Staff Officer of the Office of the Vice-
Governor, to falsify the signature of WIP’s secretary, Melanie Remulta, on
the request-letter; and (c) certified and approved the disbursement voucher;
and then presented it to Diaz, Camanay, and Vice-Governor Constantino
for their respective signatures.
The Sandiganbayan likewise ruled that falsification was a necessary means
to commit the crime of malversation.
THE PETITION FOR REVIEW ON CERTIORARI
In the present petition, the petitioner argued that: (a) the Sandiganbayan’s
November 5, 2008 decision in Criminal Case No. 28326 was void because
one of its signatories, Justice Gregory Ong, was not a natural-born Filipino
citizen per Kilosbayan Foundation v. Exec. Sec. Ermita,9 and hence not
qualified to be a Sandiganbayan justice; (b) the totality of evidence
presented by the prosecution was insufficient to overcome the petitioner’s
presumption of innocence; and (c) the Sandiganbayan denied her due
process when it issued its Order dated April 5, 2006, amending certain
portions of the pre-trial order without any hearing.
In its Comment,10 the People countered that Kilosbayan merely required
Justice Ong to complete "all necessary steps, through the appropriate
adversarial proceedings in court, to show that he is a natural born Filipino
citizen and correct the records of his birth and citizenship." It added that
Kilosbayan did not categorically rule that Justice Ong was not a natural-
born Filipino who was disqualified from accepting an appointment to the
position of Associate Justice of this Court. The People further pointed out
that the Court in Topacio v. Ong11 already acknowledged Justice Ong’s
actual physical possession and exercise of the functions of the office of an
Associate Justice of the Sandiganbayan.
The People likewise argued that the issue of sufficiency of the prosecution
evidence is a question of fact which is beyond the province of a petition for
review on certiorari. It nonetheless maintained that the Sandiganbayan’s
findings were supported by the evidence on record.
On the third issue, the People maintained that a person charged with willful
malversation can validly be convicted of malversation through negligence.
OUR RULING
We DENY the petition.
I. The Sandiganbayan’s November 5, 2008 decision is valid
The petitioner’s reliance in Kilosbayan to challenge the validity of the
Sandiganbayan’s decision is misplaced.
We point out that Kilosbayana rose from a petition for certiorari filed by
both Kilosbayan Foundation and Bantay Katarungan – both non-
governmental organizations engaged in public and civic causes – assailing
then President Gloria Macapagal-Arroyo’s appointment of Justice Ong as
an Associate Justice of the Court on the ground that the latter was not a
natural born citizen. Contrary to the petitioner’s claim, Kilosbayan did not
rule that Justice Ong was not a natural-born Filipino (and hence unqualified
to assume the position of a Sandiganbayan Justice). The Court merely
stated that Justice Ong cannot accept an appointment to the position of
Associate Justice of the Supreme Court or assume the position of that
office, "until he shall have successfully completed all the necessary steps,
through the appropriate adversarial proceedings in court to show that he is a
natural-born Filipino citizen and correct the records of his birth and
citizenship."12
At any rate, the Court has long settled the issue of Justice Ong’s
citizenship. After the Court promulgated Kilosbayan, Justice Ong
immediately filed with the Regional Trial Court (RTC), Branch 264, Pasig
City, a petition for the amendment/ correction/ supplementation or
annotation of an entry in [his] Certificate of Birth, docketed as S.P. Proc

No. 11767-SJ. In its decision of October 24, 2007, the RTC13 granted
Justice Ong's petition to be recognized as a natural-born Filipino.
Consequently, the RTC directed the Civil Registrar of San Juan, Metro
Manila to annotate in the Certificate of Birth of Justice Ong its (RTC’s)
decision.
The RTC denied the motions moving for a reconsideration of its decision.
In its six-page resolution in 2013, the Court En Banc also held that Justice
Ong was a natural-born citizen, thus:
The pronouncements of the Court in both GR No. 179895 and GR No.
180543, and the finality of the decision rendered by the RTC on October
24, 2007,in S.P. No. 11767-SJrecognizing Justice Ong as a natural born
citizen of the Philippines and directing the correction of the existing records
of his birth and citizenship have already definitively settled the subject of
the query posed by SP Villa-Ignacio.14
Even without this ruling, we hold that Justice Ong was a de facto officer
during the period of his incumbency as a Sandiganbayan Associate Justice.
A de facto officer is one who is in possession of an office and who openly
exercises its functions under color of an appointment or election, even
though such appointment or election may be irregular.15 It is likewise
defined as one who is in possession of an office, and is discharging its
duties under color of authority, by which is meant authority derived from
an appointment, however irregular or informal, so that the incumbent be not
a mere volunteer.16 Consequently, the acts of the de facto officer are as
valid for all purposes as those of a de jure officer, in so far as the public or
third persons who are interested therein are concerned.17
In the light of these considerations, we find no basis to invalidate the
November 5, 2008 decision of the Sandiganbayan in Criminal Case No.
28326.
II. Only questions of law should be raised in a Rule 45 petition
It is settled that the appellate jurisdiction of the Supreme Court over
decisions and final orders of the Sandiganbayan is limited only to questions
of law; it does not review the factual findings of the Sandiganbayan which,
as a general rule, are conclusive upon the Court.
A question of law exists when there is doubt or controversy as to what the
law is on a certain state of facts. On the other hand, a question of fact exists
when the doubt or controversy arises as to the truth or falsity of the alleged
facts. The resolution of a question of fact necessarily involves a calibration
of the evidence, the credibility of the witnesses, the existence and the
relevance of surrounding circumstances, and the probability of specific
situations.18
In the present petition, the petitioner alleges that the presented evidence
were insufficient to support a conviction. She thus seeks a re-evaluation of
the Sandiganbayan’s appreciation of the evidence presented, including the
credibility of witnesses and the probative value of their testimonies. The
petitioner likewise wants the Court to take a closer look into her claim that
the charges against them were politically motivated.
To our mind, the Sandiganbayan’s findings that: the testimonies of Gadian
and Tangan were credible and worthy of belief; WPI was an unregistered
cooperative; the signatures of the petitioner and her co-accused on the
disbursement voucher were authentic; Remulta’s signature had been forged;
and the charges against the accused were not politically motivated, are
questions of fact, as these matters were resolved after a calibration of the
pieces of evidence presented during trial. The Court will not anymore
weigh these pieces of evidence in the absence of a clear showing that these
findings had been arrived at arbitrarily or are devoid of support in the
records.
At any rate, we hold that the Sandiganbayan correctly convicted the
petitioner of the complex crime of malversation of public funds through
falsification of public documents.
Malversation may be committed by appropriating public funds or property;
by taking or misappropriating the same; by consenting, or through
abandonment or negligence, by permitting any other person to take such
public funds or property; or by being otherwise guilty of the
misappropriation or malversation of such funds or property.19
The elements common to all acts of malversation under Article 217 of the
Revised Penal Code, as amended, are the following: (a) that the offender be
a public officer; (b) that he had custody or control of funds or property by
reason of the duties of his office; (c) that those funds or property were
public funds or property for which he was accountable; and (d) that he
appropriated, took, misappropriated or consented, or through abandonment
or negligence, permitted another person to take them. All these elements
have been established by the prosecution.
First, it is undisputed that all the accused, except Bahilidad, are all public
officers. A public officer is defined in the Revised Penal Code as "any
3
person who, by direct provision of the law, popular election, or
appointment by competent authority, shall take part in the performance of
public functions in the Government of the Philippine Islands, or shall
perform in said Government or in any of its branches public duties as an
employee, agent, or subordinate official, of any rank or class. Constantino
was the Vice-Governor of Sarangani Province, while the petitioner,
Camanay, and Diaz were occupying the positions of Executive Assistant (at
the Office of the Vice-Governor), Provincial Accountant, and Provincial
Board Member, respectively.
Second, the funds misappropriated are public in character, as they were
funds belonging to the Province of Sarangani.
Third, Vice-Governor Constantino and Camanay were accountable public
officers. Under the Government Auditing Code of the Philippines, an
accountable public officer is a public officer who, by reason of his office, is
accountable for public funds or property. The Local Government Code
expanded this definition with regard to local government officials. Section
340 of the LGC reads:
Section 340. Persons Accountable for Local Government Funds. – Any
officer of the local government unit whose duty permits or requires the
possession or custody of local government funds shall be accountable and
responsible for the safekeeping thereof in conformity with the provisions of
this title. Other local officials, though not accountable by the nature of their
duties, may likewise be similarly held accountable and responsible for local
government funds through their participation in the use or application
thereof. (Emphasis ours.)
Local government officials become accountable public officers either (1)
because of the nature of their functions; or (2) on account of their
participation in the use or application of public funds.20
As a required standard procedure, the signatures of, among others, the
Vice-Governor and the Provincial Accountant are needed before any
disbursement of public funds can be made. No checks can be prepared and
no payment can be effected without their signatures on a disbursement
voucher and the corresponding check. In other words, any disbursement
and release of public funds require their approval. Thus, Constantino and
Camanay, in their capacities as Vice-Governor and Provincial Accountant,
had control and responsibility over the subject funds.
Finally, Vice-Governor Constantino and Camanay appropriated, took,
misappropriated or consented, or through abandonment or negligence,
permitted another person to take the public funds when they signed
Disbursement Voucher No. 101-2002-01-822. The term voucher, when
used in connection with disbursement of money, implies some instrument
that shows on what account or by what authority a particular payment has
been made, or that services have been performed which entitle the party to
whom it is issued to payment. Corollarily, when an authorized person
approves a disbursement voucher, he certifies to the correctness of the
entries therein, among others: that the expenses incurred were necessary
and lawful, the supporting documents are complete, and the availability of
cash therefor. He also attests that the person who performed the services or
delivered the supplies, materials, or equipment is entitled to payment.21
Notably, the signatures of Camanayand Vice-Governor Constantino also
appeared on the Allotment and Obligation Slip (ALOBS) and in Land Bank
Check No. 0000036481, respectively. Their respective signatures in these
documents allowed Bahilidad to encash ₱20,000.00. We also point out that
although the purported request was made by the WIP, the check was made
payable to a private person, that is, Bahilidad. According to Helen Cailing,
the leader of the COA Special Audit Team, there were no supporting
documents attached to this disbursement voucher proving that Bahilidad
was indeed the treasurer of WIP.
We also agree with the Sandiganbayan’s ruling that falsification was a
necessary means to commit the crime of malversation. Article 171,
paragraphs (2) and (5) of the Revised Penal Code, provides:
ART. 171. Falsification by public officer, employee or
notary or ecclesiastic minister. - The penalty of prision
mayor and a fine not to exceed 5,000 pesos shall be
imposed upon any public officer, employee, or notary
who, taking advantage of his official position, shall
falsify a document by committing any of the following
acts:
xxxx
2. Causing it to appear that persons have participated in
any act or proceeding when they did not in fact so
participate;
xxxx
In the present case, the records showed that the petitioner ordered Tangan
to sign above the name of Remulta in the letter-request to make it appear

that the latter, as WIP Secretary, consented to the request for financial
assistance. We note, too, that this letter-request was made on January 24,
2002, but Gadianante dated it to January 7, 2002, so that the transaction
would not look suspicious (considering that both the disbursement voucher
and check were also dated January 24, 2002).
The Presence of Conspiracy
Conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Conspiracy
does not need to be proven by direct evidence and may be inferred from the
conduct ―before, during, and after the commission of the crime ―
indicative of a joint purpose, concerted action, and concurrence of
sentiments. In conspiracy, the act of one is the act of all. Conspiracy is
present when one concurs with the criminal design of another, as shown by
an overt act leading to the crime committed. It may be deduced from the
mode and manner of the commission of the crime.22
In the present case, the records established with moral certainty that the
petitioner and her co-accused acted in concert to achieve a common
objective. The presence of conspiracy between the petitioner and her co-
accused was explained by the Sandiganbayan as follows:
xxxx
Moreover, the testimony of Gadian and Tangan indubitably established that
accused Constantino and Zoleta took advantage of their official positions.
Zoleta ordered Gadian to make a request using a nonexistent cooperative.
She ordered Tangan to falsify the signature of Remulta in the request letter.
Both followed the directive of Zoleta, being their superior, the Executive
Assistant and the daughter of the Vice-Governor who places her initials
before the Vice-Governor affixes his own signature. Despite the
irregularity, accused Constantino approved the disbursement. The facts
taken together would prove the existence of conspiracy. Zoleta, as president
of an in existent association and a co-terminous employee at the office of
her father, initiated the request for obligation of allotments and certified and
approved the disbursement voucher. There is no doubt that Constantino
facilitated the illegal release of the fund by signing the questioned voucher.
Without the signatures of accused Constantino, Zoleta, and Bahilidad, the
amount could not have been disbursed on that particular day. When the
voucher with its supporting documents was presented to accused
Constantino, Diaz, and Camanay for approval and signature, they readily
signed them without further ado, despite the lack of proper documentation
and noncompliance of the rules. Zoleta had contact with the payee of the
check, Bahilidad, and received the amount. Their combined acts, coupled
with the falsification of the signature of Remulta, all lead to the conclusion
that the accused conspired to defraud the government.
The concurrence of wills or unity of purpose and action between the
accused is indubitable.1âwphi1 A careful scrutiny of the records revealed
that indeed: (a) the petitioner signed the letter-request for financial
assistance, and this was approved by Diaz and Vice-Governor Constantino;
(b) the ALOBS was signed by Camanay; (c) Disbursement Voucher No.
101-2002-01-822 was signed by Vice-Governor Constantino, Diaz and
Camanay; and (d) Land Bank Check No. 0000036481 was signed by Vice-
Governor Constantino.
The connivance between the accused is made more glaring by the fact that
the entire transaction – from the letter-request, to the approval of the
disbursement voucher, until the processing and release of the check – was
completed in only one day. We note, too, that the disbursement had been
approved even without the required supporting documents such as the
Articles of Cooperation and Certificate from the Cooperative Development
Authority. There was also noncompliance with the COA-prescribed
auditing and accounting guidelines on the release of fund assistance to
NGOs, such as the required monitoring and inspection report either by the
Office of the Provincial Agriculturist or the Provincial Engineering Office.
As earlier stated, the purported request was made by WIP, but the check
was made payable to Bahilidad (despite the COA’s findings that there were
no supporting documents proving that she was WIP’s treasurer). We are
aware that Bahilidad was acquitted by this Court in G.R. No. 18519523 – a
case where she questioned her conviction by the Sandiganbayan. This does
not preclude us, however, from ruling that the other accused, i.e., Vice-
Governor Constantino, Diaz, Camanay, and the petitioner, conspired with
each other to attain a common objective. We point out that Bahilidad’s
acquittal was anchored on the fact that she had no hand in the preparation,
processing or disbursing of the check issued in her name. It cannot be
denied in the present case that the petitioner, Vice-Governor Constantino,
Diaz, and Camanay, all participated in the preparation and processing of
Disbursement Voucher No. 101-2002-01-82224 as evidenced by their
respective signatures affixed there. Sanggunian Panlalawigan
Bookbinder25 Gadian, in fact, witnessed Vice-Governor Constantino,
Camanay, and Diaz sign these documents.
In Barriga v. Sandiganbayan,26 we ruled that:
4
It must be stressed that a public officer who is not in charge of public funds
or property by virtue of her official position, or even a private individual,
may be liable for malversation or illegal use of public funds or property if
such public officer or private individual conspires with an accountable
public officer to commit malversation or illegal use of public funds or
property.
III. No denial of due process
The petitioner claims that he was denied due process when the
Sandiganbayan granted the prosecution’s motion to amend certain portions
of the pre-trial order without any hearing. In essence, the petitioner argues
that she could not be convicted of malversation through consent,
abandonment, or negligence because this allegation was not contained in
the Information.
The petitioner’s argument lacks merit.
Malversation is committed either intentionally or by negligence. The dolo
or the culpa present in the offense is only a modality in the perpetration of
the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper.
All that is necessary for conviction is sufficient proof that the accountable
officer had received public funds, that he did not have them in his
possession when demand therefor was made, and that he could not
satisfactorily explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary as long as the accused
cannot explain satisfactorily the shortage in his accounts.27
In People v. Consigna, et al.,28 the Court first ruled that an accused
charged with wilful malversation can be validly convicted of malversation
through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Similarly, in People v. Ochoa,29 the Court stated that [e]ven when the
Information charges wilful malversation, conviction for malversation
through negligence may still be adjudged if the evidence ultimately proves
that mode of commission of the offense.
In Tubola, Jr. v. Sandiganbayan,30 we affirmed the accused’s conviction of
malversation of public funds under Article 217 of the Revised Penal Code,
and reasoned out as follows:
Besides, even on the putative assumption that the evidence against
petitioner yielded a case of malversation by negligence but the information
was for intentional malversation, under the circumstances of this case his
conviction under the first mode of misappropriation would still be in order.
Malversation is committed either intentionally or by negligence. The dolo
or the culpa present in the offense is only a modality in the perpetration of
the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper.
A possible exception would be when the mode of commission alleged in
the particulars of the indictment is so far removed from the ultimate
categorization of the crime that it may be said due process was denied by
deluding the accused into an erroneous comprehension of the charge
against him. That no such prejudice was occasioned on petitioner nor was
he beleaguered in his defense is apparent from the records of this case.
(Underscoring and emphasis in the original.)
The Proper Penalty
We modify the maximum term of the penalty imposed on the petitioner by
the Sandiganbayan, from sixteen (16) years, five (5) months, and eleven
(11) days to eighteen (18) years, two (2) months, and twenty one (21) days
of reclusion temporal, in accordance with Articles 48 and 21 7 of the
Revised Penal Code, as amended, in relation to the Indeterminate Sentence
Law.31 WHEREFORE, in the light of all the foregoing, we DENY the
petition. Accordingly, we AFFIRM the November 5, 2008 decision of the
Sandiganbayan (Fourth Division) in Criminal Case No. 28326 with the
MODIFICATION that the maximum term of the penalty imposed on the
petitioner be increased from sixteen ( 16) years, five ( 5) months, and
eleven (11) days to eighteen (18) years, two (2) months and twenty one (21)
days of reclusion temporal.
SO ORDERED.

FIRST DIVISION G.R. No. 184908, July 03, 2013
MAJOR JOEL G. CANTOS, Petitioner, v.  that all personnel of the 22 FSU had unrestricted access to his office
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION VILLARAMA, JR., J.:
Petitioner Major Joel G. Cantos appeals the Decision of the Sandiganbayan
1
in Criminal Case No. SB-07-A/R-0008, which affirmed with modification
the judgment of the Regional Trial Court (RTC) of Manila, Branch 47,
2
convicting him of the crime of Malversation of Public Funds under Article
217 of the Revised Penal Code, as amended.
In an Information dated February 19, 2003, Major Cantos was charged as
3
follows:cralavvonlinelawlibrar
That on or about December 21, 2002 or sometime prior
or subsequent thereto, in the City of Manila, Philippines
and within the jurisdiction of this Honorable Court, the
above-named accused, a public officer, being then the
Commanding Officer of the 22nd Finance Service
Center, based in the Presidential Security Group,
Malacañang Park, Manila and as such is accountable for
public funds received and/or entrusted to him by reason
of his office, acting in relation to his office and taking
advantage of the same, did then and there, wi[l]lfully,
unlawfully and feloniously take, misappropriate and
convert to his personal use and benefit the amount of
THREE MILLION TWO HUNDRED SEVENTY
THOUSAND PESOS (P3,270,000.00), Philippine
Currency, from such public funds received by him by
reason of his Office to the damage and prejudice of the
Government in the aforestated amount
CONTRARY TO LAW
Upon motion by the prosecution, the trial court issued an Order granting
4
the amendment of the date of the commission of the offense from
December 21, 2002 to December 21, 2000, the error being merely clerical.
When arraigned, Major Cantos entered a plea of not guilty. 5
At the trial, the prosecution presented as witness Major Eligio T. Balao, Jr.
6
He testified that on December 21, 2000, he reported for duty as Disbursing
Officer at the 22nd Finance Service Unit (FSU), Presidential Security
Group (PSG), Malacañang Park, Manila. At that time, he did not notice any
unusual incident in the office. He picked up some Bureau of Internal
Revenue (BIR) forms which he filed with the BIR Office at the Port Area,
Manila. He returned to the office at around 10:00 a.m. At around 12:00
noon, his commanding officer, Major Cantos, called him to his office and
informed him that the money he (Major Cantos) was handling, the Special
Duty Allowance for the month of December, and other Maintenance
Operating Expenses in the amount of more or less P3 Million was missing
from his custody. Shocked, he asked Major Cantos where he kept the
money, to which the latter replied that he placed it in the steel cabinet
inside his room. He then inquired why Major Cantos did not use the safety
vault, but Major Cantos did not reply.7
Major Balao further testified that Major Cantos asked him to get a
screwdriver so he went out of the office and got one from his vehicle. He
gave the screwdriver to Major Cantos, who used it to unscrew the safety
vault. Then, he left the office and handed the screwdriver to Sgt.
Tumabcao. After a few minutes, Major Cantos instructed him to go to the
house of Major Conrado Mendoza in Taguig to get the safety vault’s
combination number. However, Major Mendoza was not around. When he
returned to the office at around 4:00 p.m., the National Bureau of
Investigation (NBI) personnel took his fingerprints. He learned that all the
personnel of the 22nd FSU were subjected to fingerprinting. Thereafter,
Col. Espinelli tried to force him to admit that he took the money, but he
maintained that he was not the one who took it.8
In his defense, Major Cantos testified that on July 2000, he was assigned as
the Commanding Officer of the 22nd FSU of the PSG, Malacañang Park,
Manila. His duty was to supervise the disbursement of funds for the PSG
personnel and to perform other finance duties as requested by the PSG
Commander, Gen. Rodolfo Diaz. On December 19, 2000, he received a
check from Director Aguas in the amount of P1,975,000 representing the
Special Allowance of PSG personnel. Accompanied by two personnel, he
went to the Land Bank branch just across Pasig River and encashed the
check. He placed the money in a duffel bag and kept it inside the steel
cabinet in his office together with the P1,295,000 that was earlier also
entrusted to him by Gen. Diaz. Major Cantos added that as far as he knows,
he is the only one with the keys to his office. Although there was a safety
vault in his office, he opted to place the money inside the steel cabinet
5
because he was allegedly previously informed by his predecessor, Major
Conrado Mendoza, that the safety vault was defective. He was also aware
nd
during office hours. 9
Major Cantos also narrated that on December 20, 2000, he arrived at the
office at around 9:00 a.m. and checked the steel filing cabinet. He saw that
the money was still there. He left the office at around 4:00 p.m. to celebrate
with his wife because it was their wedding anniversary. On the following
day, December 21, 2000, he reported for work around 8:30 a.m. and
proceeded with his task of signing vouchers and documents. Between 9:00
a.m. to 10:00 a.m., he inspected the steel cabinet and discovered that the
duffel bag which contained the money was missing. He immediately called
then Capt. Balao to his office and asked if the latter saw someone enter the
room. Capt. Balao replied that he noticed a person going inside the room,
but advised him not to worry because he is bonded as Disbursing Officer. 10
In a state of panic, Major Cantos asked for Capt. Balao’s help in finding the
money. Capt. Balao asked him how the money was lost and why was it not
in the vault, to which he replied that he could not put it there because the
vault was defective. Capt. Balao then suggested that they should make it
appear that the money was lost in the safety vault. In pursuit of this plan,
Capt. Balao went out of the office and returned with a pair of pliers and a
screwdriver. Upon his return, Capt. Balao went directly to the vault to
unscrew it. At this point, Major Cantos told him not to continue anymore as
he will just inform Gen. Diaz about the missing funds. Major Cantos was
able to contact Gen. Diaz through his mobile phone and was advised to just
wait for Col. Espinelli. When Col. Espinelli arrived at the office, Col.
Espinelli conducted an investigation of the incident.11
Lt. Col. Al I. Perreras, Executive Officer of the Judge Advocate General
Office (JAGO), likewise conducted an investigation of the incident. His
testimony was however dispensed with as the counsels stipulated that he
prepared the Investigation Report, and that if presented, the same would be
admitted by defense counsel. It likewise appears from the evidence that
12
Police Inspector Jesus S. Bacani of the Philippine National Police (PNP)
administered a polygraph examination on Major Cantos and the result
showed that he was telling the truth.13
On April 27, 2007, the RTC rendered a decision convicting Major Cantos
of the crime charged, to wit:cralavvonlinelawlibrar
WHEREFORE, in view of the foregoing premises, the
Court finds the accused Major Joel G. Cantos GUILTY
beyond reasonable doubt of the crime of Malversation of
Public Funds, under paragraph 4 of Article 217 of the
Revised Penal Code, and, there being no mitigating or
aggravating circumstance present, hereby sentences him
to an indeterminate penalty of imprisonment for a period
of ten (10) years and one (1) day of Prision Mayor, as
minimum, to Eighteen (18) Years, eight (8) months and
one (1) day of Reclusion Temporal, as maximum; to
reimburse the AFP Finance Service Center, Presidential
Security Group, Armed Forces of the Philippines the
amount of Three Million Two Hundred Seventy
Thousand Pesos (P3,270,000.00); to pay a fine of Three
Million Two Hundred Seventy Thousand Pesos
(P3,270,000.00); to suffer perpetual special
disqualification from holding any public office; and to
pay the costs.
SO ORDERED. 14
In rendering a judgment of conviction, the RTC explained that
although there was no direct proof that Major Cantos appropriated
the money for his own benefit, Article 217 of the Revised Penal
Code, as amended, provides that the failure of a public officer to
have duly forthcoming any public funds or property with which he
is chargeable, upon demand by any duly authorized officer, shall
be prima facie evidence that he has put such missing funds or
property to personal uses. The RTC concluded that Major Cantos
failed to rebut this presumption.
Aggrieved, Major Cantos appealed to the Sandiganbayan questioning his
conviction by the trial court.
On July 31, 2008, the Sandiganbayan promulgated the assailed Decision,
the dispositive portion of which reads as follows:cralavvonlinelawlibrary
IN VIEW OF THE FOREGOING, the Decision
promulgated on May 3, 2007 in Criminal Case No. 03-
212248 of the Regional Trial Court, National Capital

Judicial Region, Branch 47, Manila finding the accused-
appellant Major Joel G. Cantos GUILTY beyond
reasonable doubt of the crime of Malversation of Public
Funds under Article 217 of the Revised Penal Code is
hereby AFFIRMED, with the modification that instead
of being convicted of malversation through negligence,
the Court hereby convicts the accused of malversation
through misappropriation. The penalty imposed by the
lower court is also likewise AFFIRMED.
SO ORDERED. 15
The Sandiganbayan sustained the ruling of the RTC. It held that in the
crime of malversation, all that is necessary for conviction is proof that the
accountable officer had received public funds and that he did not have them
in his possession when demand therefor was made. There is even no need
of direct evidence of personal misappropriation as long as there is a
shortage in his account and petitioner cannot satisfactorily explain the
same. In this case, the Sandiganbayan found petitioner liable for
malversation through misappropriation because he failed to dispute the
presumption against him. The Sandiganbayan noted that petitioner’s claim
that the money was taken by robbery or theft has not been supported by
sufficient evidence, and is at most, self-serving.
Contending that the Sandiganbayan Decision erred in affirming his
convicting, Major Cantos filed a motion for reconsideration. In its
Resolution dated October 6, 2008, however, the Sandiganbayan denied the
16
motion.
Hence, the present petition for review on certiorari. Petitioner assails the
Decision of the Sandiganbayan based on the following
grounds:cralavvonlinelawlibrary
I. THE HONORABLE SANDIGANBAYAN ERRED
IN AFFIRMING PETITIONER'S CONVICTION FOR
MALVERSATION DESPITE ABSENCE OF EVIDENCE
SHOWING THAT THE FUNDS WERE CONVERTED TO THE
PERSONAL USE OF PETITIONER.
II. THE HONORABLE SANDIGANBAYAN ERRED
IN AFFIRMING PETITIONER'S CONVICTION ON THE
BASIS OF THE MERE PRESUMPTION CREATED BY
ARTICLE 217, PARAGRAPH 4, OF THE REVISED PENAL
CODE IN VIEW OF THE ATTENDANT CIRCUMSTANCES
IN THE PRESENT CASE. nadcralavvonlinelawlibrar
17
Essentially, the basic issue for our resolution is: Did the Sandiganbayan err
in finding petitioner guilty beyond reasonable doubt of the crime of
malversation of public funds?
Petitioner argues that mere absence of funds is not sufficient proof of
misappropriation which would warrant his conviction. He stresses that the
prosecution has the burden of establishing his guilt beyond reasonable
doubt. In this case, petitioner contends that the prosecution failed to prove
that he appropriated, took, or misappropriated, or that he consented or,
through abandonment or negligence, permitted another person to take the
public funds.
On the other hand, the People, represented by the Office of the Special
Prosecutor (OSP), argues that petitioner, as an accountable officer, may be
convicted of malversation of public funds even if there is no direct evidence
of misappropriation. The OSP asserts that the only evidence required is that
there is a shortage in the officer’s account which he has not been able to
explain satisfactorily.
The petition must fail.
The Sandiganbayan did not commit a reversible error in its decision
convicting petitioner of malversation of public funds, which is defined and
penalized under Article 217 of the Revised Penal Code, as amended, as
follows:cralavvonlinelawlibrar
Art. 217. Malversation of public funds or property. –
Presumption of malversation. – Any public officer who,
by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or
shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other
person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the
6
misappropriation or malversation of such funds or
property shall suffer:cralavvonlinelawlibrary
xxxx
4. The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more than
twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special disqualification
and a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.
The failure of a public officer to have duly
forthcoming any public funds or property with which
he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that
he has put such missing funds or property to personal
use. (Emphasis and underscoring supplied.)
Thus, the elements of malversation of public funds under Article 217 of the
Revised Penal Code are:cralavvonlinelawlibrary
1. that the offender is a public
officer;chanroblesvirtualawlibrary
2. that he had the custody or control of funds or property
by reason of the duties of his
office;chanroblesvirtualawlibrary
3. that those funds or property were public funds or
property for which he was accountable; and
4. that he appropriated, took, misappropriated or
consented or, through abandonment or negligence,
permitted another person to take them. 18
We note that all the above-mentioned elements are here present. Petitioner
was a public officer occupying the position of Commanding Officer of the
22nd FSU of the AFP Finance Center, PSG. By reason of his position, he
was tasked to supervise the disbursement of the Special Duty Allowances
and other Maintenance Operating Funds of the PSG personnel, which are
indubitably public funds for which he was accountable. Petitioner in fact
admitted in his testimony that he had complete control and custody of these
funds. As to the element of misappropriation, indeed petitioner failed to
rebut the legal presumption that he had misappropriated the fees to his
personal use.
In convicting petitioner, the Sandiganbayan cites the presumption in Article
217 of the Revised Penal Code, as amended, which states that the failure of
a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, is
prima facie evidence that he has put such missing fund or property to
personal uses. The presumption is, of course, rebuttable. Accordingly, if
petitioner is able to present adequate evidence that can nullify any
likelihood that he put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively
negated.
In this case, however, petitioner failed to overcome this prima facie
evidence of guilt. He failed to explain the missing funds in his account and
to restitute the amount upon demand. His claim that the money was taken
by robbery or theft is self-serving and has not been supported by evidence.
In fact, petitioner even tried to unscrew the safety vault to make it appear
that the money was forcibly taken. Moreover, petitioner’s explanation that
there is a possibility that the money was taken by another is belied by the
fact that there was no sign that the steel cabinet was forcibly opened. We
also take note of the fact that it was only petitioner who had the keys to the
steel cabinet. Thus, the explanation set forth by petitioner is unsatisfactory
19
and does not overcome the presumption that he has put the missing funds to
personal use.
Malversation is committed either intentionally or by negligence. The dolo
or the culpa present in the offense is only a modality in the perpetration of
the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper. 20
All that is necessary for conviction is sufficient proof that the accountable
officer had received public funds, that he did not have them in his
possession when demand therefor was made, and that he could not
satisfactorily explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary as long as the accused
cannot explain satisfactorily the shortage in his accounts. To our mind, the
21
 7

evidence in this case is thoroughly inconsistent with petitioner’s claim of

innocence. Thus, we sustain the Sandiganbayan’s finding that petitioner’s
guilt has been proven beyond reasonable doubt.
WHEREFORE, the petition is DENIED. The Decision dated July 31,
2008 of the Sandiganbayan in Criminal Case No. SB-07-A/R-0008
convicting Major Joel G. Cantos of the crime of Malversation of Public
Funds is AFFIRMED and UPHELD.
With costs against the petitioner. SO ORDERED.

EN BANC
G.R. No. L-39275 December 20, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,
vs.
RICARDO MENDOZA, defendant-appellee.
Office of the Solicitor-General Hilado for appellant.
Zoilo Hilario for appellee.
DIAZ, J.:
In criminal case No. 4851 of the Court of First Instance of Pampanga, the
provincial fiscal thereof filed an information against the herein appellee,
which reads as follows:
The undersigned provincial fiscal accuses Ricardo Mendoza of the crime of
assault upon a person in authority committed as follows:
That on or about September 30,1932, in the municipality of San Fernando,
Province of Pampanga, Philippine Islands, the said accused, Ricardo
Mendoza, being a pupil of the teacher Iluminada Tinio, did then and there
willfully, unlawfully and criminally attack and lay hands upon her person,
to wit: slapped said Iluminada Tinio on one of her cheeks, while she was
engaged in the performance of her duties as such teacher and while she was
within the premises of the high school building exercising the functions
inherent in such capacity.
Upon motion of the appellee, as accused in the aforesaid case, the trial
court dismissed the information on the ground that the facts alleged therein
did not constitute a crime but simply a misdemeanor or light felony. The
present appeal was taken by the fiscal for the purpose of setting aside the
order of dismissal in question.
The question to decide, therefore, is whether or not the facts as alleged in
the said information really constitute the crime of assault upon a person in
authority or at least an assault upon an agent of authority, or any other
grave or light felony.
The fiscal bases his appeal on the findings of this court in the cases of
People vs. Villacenda (G.R. No. 32596, promulgated April 26,1930, not
reported); People vs. Lagrimas (G.R. No. 33529, promulgated April
8,1931, not reported); and People vs. Tacud (56 Phil., 800) wherein a
question similar to the one under consideration was discussed and decided,
claiming that the facts as alleged in the information constitute an assault
upon a public officer and agent of authority at the same time.
In the three cases above-cited, this court, in modifying one and affirming
two of the judgments rendered by the courts a quo, really held that the acts
committed by the defendants therein constituted the crime of assault upon a
public officer and, therefore, they should be sentenced to the penalty
prescribed in article 251 of the old Penal Code. The reason for such
doctrine is based on the fact that the said article, as explained in the case of
People vs. Mijares (44 Phil., 684), provided as follows:
The maximum degree of the penalty prescribed in the last paragraph of the
preceding article shall be imposed upon those who shall have employed the
force or the intimidation mentioned in No. 1 of article 249 for the object
indicated in No. 1 of article 229 or who shall have placed hands upon
persons coming to the assistance of the authority or upon its agents or upon
public officers.
Inasmuch as the afore-cited article was in force at the time the decisions in
the three cases were promulgated and the acts complained of therein had
been committed long before the present Revised Penal Code went into
effect, it was necessary that the defendants and appellants in the aforesaid
cases be convicted of the crimes with which they had been charged and
sentenced later to the penalty prescribed in the afore-cited article. The
reason is obvious because said acts constituted a violation of the article in
question, as held by this court.
8
However, the truth is that said article 251 was not fully reproduced in the
Revised Penal Code as shown by article 149 thereof. The article in question
now reads as follows:
The penalty of prision correccional in its minimum and medium periods
and a fine not exceeding 500 pesos shall be imposed upon any person who
shall make use of force or intimidation upon any person coming to the aid
of the authorities or their agents on occasion of the commission of any of
the crimes defined in the next preceding article.
It will be noted that the Legislature suppressed and omitted all reference to
public officers in the article just cited, which necessarily conveys the idea
that it did not intend to make the same applicable to cases of assault upon
public officers who are not persons in authority or agents thereof. And there
cannot be the least shadow of a doubt that a teacher is not a person in
authority in the strict sense of the phrase, as employed in article 148, on the
ground that he does not exercise a directly vested jurisdiction. Neither is he
an agent of authority on the ground that, as has been held in the case of
United States vs. Fortaleza (12 Phil., 472), wherein Viada was cited in
support thereof, agents of authority are only those persons who, by direct
provision of law, or by appointment by competent authority, are charged
with the maintenance of public order and the protection and security of life
and property, and those who come to the aid of persons in authority.
It is true that Viada said that by implication and in accordance with the final
section of article 264 of the Spanish Penal Code, which corresponds to the
aforesaid article 251 of our old Penal Code, it may be affirmed that for the
purposes of the said article, public officers are also entitled to be considered
as agents of authority. However, such consideration was due to the fact that
assault upon public officers was penalized likewise in the said article 264 of
the Spanish Penal Code.
A teacher is not a person in authority on the ground that he does not possess
the necessary requisite thereof prescribed by law. Article 152 of the
Revised Penal Code defines a person in authority as follows:
In applying the provisions of the preceding and other articles of this Code,
any person directly vested with jurisdiction, whether as an individual or as
a member of some court or governmental corporation, board or
commission, shall be deemed a person in authority.
The word "authority" has been given a restricted meaning in the case of
United States vs. Smith (39 Phil., 533), so as to include only persons who
perform some of the functions of the Government of the Philippine Islands
and who according to the aforesaid article, are directly vested with
jurisdiction. By "directly vested jurisdiction" is meant "the power or
authority to govern and execute the laws, particularly the authority vested
in the judges to administer justice, that is, to try civil or criminal cases or
both, and to render judgment thereon in accordance with the law"
(Escriche, Rational Dictionary of Legislation and Jurisprudence, p. 1154);
and "authority" as well as "directly vested jurisdiction" are two things
which should be conferred by law.
The Administrative Code, which creates the Executive Department and the
bureaus and offices dependent on it, for the purpose of exercising the
executive functions of the Government of the Philippine Islands, is silent
with regard to powers had or which may be had by high school teachers, in
defining those vested in functionaries of the aforesaid offices. The Code in
question only defines the duties and powers of the Director of Education
and of the division superintendents. Nothing is said about principals, except
that their authority should be determined by the Director of Education, and
much less about high school teachers. The powers granted to the said
Director of Education and division superintendents are very limited and are
not for purposes of government nor execution of any law, but only as
provided for in section 910 et seq. of the aforesaid Code.
There can be no doubt that a teacher is not a person in authority not only on
the grounds already stated but also because the distinction between the two
may be inferred clearly from the very provisions of article 265 of the
Revised Penal Code. After defining less serious physical injuries, the law
provides as follows:
Any less serious physical injuries inflicted upon the offender's parents,
ascendants, guardians, curators, teachers, or persons of rank, or persons in
authority, shall be punished by prision correccional in its minimum and
medium periods, provided that, in the case of persons in authority, the deed
does not constitute the crime of assault upon such persons.
 9

If the Legislature had not intended to exclude teachers from the category of
persons in authority or agents thereof, it would have omitted them from the
enumeration of those against whom the act, as defined therein, may be
committed and for which a heavier penalty is provided.
There is no question that a teacher is a public officer inasmuch as it is an
actual fact that he performs part of the public functions of the Government.
Furthermore, the same ruling has been established in the afore-cited cases
of Villacenda, Lagrimas and Tacud. However, this cannot be construed to
mean that every public officer is at the same time an agent of authority.
Commenting on articles 263 and 264 in connection with article 416 of the
Spanish Penal Code, which corresponds to articles 249, 250 and 401,
respectively, of our old Penal Code and from which articles 148, 149 and
203 of the Revised Penal Code had been taken, with slight alterations,
although assault upon public officers has been omitted in the latter Code,
Groizard has said:
Are public officers agents of persons in authority? If not, may they be the
subject of assault although they are not included in article 263 which
describes and defines said crime? And if they should be so, in the case
stated in the last paragraph of article 264, shall it be understood that may
also be, in all the cases relative to persons in authority and their agents as
stated in article 263? To decide these questions, it is necessary to know
beforehand who are public officers. Article 416 defines them as: those who,
by direct provision of law, popular election, or appointment by competent
authority, take part in the performance of public functions. From the above
cited provision, it follows that every agent of authority is a public officer
but not every public officer is an agent of authority. The officers of a
ministry and those of provincial governments are public officers inasmuch
as they perform functions intended for the preservation and government of
the State, yet in spite of it, they are not in authority nor agents thereof. They
are not persons in authority on the ground that they are not directly vested
with jurisdiction either individually or as members of some court or public
corporation. They are not agents of authority because, as subordinate
officers, they are not charged with the task of executing the orders of any
such person. This important difference should be borne in mind so as not to
mistake offices for functions.
as such does not constitute assault upon a person in authority nor an agent
thereof.
There is no question that the acts complained of, as alleged in the
complaint, constitute light felony, whether they be considered under the
provisions of article 359 (Slander by Deed), or of article 266
(Maltreatment) of the Revised Penal Code. However, inasmuch as the
complaint does not allege the motive of the defendant in maltreating the
aforesaid teacher, in the manner he had so done, nor the fact that the act
was committed publicly, it is more proper and more in accordance with the
law to consider the aforesaid acts as merely constituting light felony as
defined and penalized in the said article 266, with the third aggravating
circumstance. In such case, the trial court lacks jurisdiction to try the case
by reason of the penalty therefor as prescribed by law.
Let it not be said that we did not take into consideration the doctrine laid
down in the case of Provincial Fiscal of Pampanga vs. Rosauro (G.R. No.
39289) 1, for we had it before us in considering the case at bar. The truth is
that there is no similarity between the former and the present case on the
ground that although the crime alleged therein was "direct assault upon a
person in authority" and the offended party therein was a public elementary
school teacher acting in the performance of his duties as such, nevertheless,
it was clearly alleged in the body of the complaint that the defendant
therein gravely intimidated and threatened said teacher. There is no
question that, in accordance with the provisions of article 282 of the
Revised Penal Code, the jurisdiction to try cases of grave threats belong to
Courts of First Instance by reason of the penalty prescribed therein.
Prescinding from the title of the offense stated in the information under
consideration, it is observed from the allegations contained in the body of
said pleading that the crime committed is slight in nature, the trial of which
falls under the jurisdiction of the justice of the peace court.
Wherefore, we are of the opinion and so hold that the order of dismissal
appealed from is in accordance with the law and should therefore be
sustained.
Let the costs be declared de oficio. So ordered.

The same Code, speaking of the laying of hands upon agents of authority or
upon public officers defines the difference between one and the other.
Therefore, an agent of authority cannot be confused with a public officer
when the legislator himself speaks of them separately.

Therefore, inasmuch as public officers are not agents of authority, it seems

that, generally speaking, they cannot be the subject of the crime of assault,
as defined in article 263, on the ground that said article considers assault as
only those acts committed upon persons in authority and their agents, it
being silent with regard to public officers.

It is true that there is a manifest contradiction between the generic doctrine

of article 263 and the specific statement of article 264 relative to penalty. It
is true that if there can never be any crime of assault upon mere public
officers for want of one of the essential requisites thereof as stated in article
263, neither can the last paragraph of article 264, relative to public officers,
have any application even if the guilty parties lay hands on them. Yet, what
can we do? There is conflict in the law and it is useless to pretend not to
notice it. (Groizard, Penal Code, vol. 3, p.468.)

It is for the specific purpose of clarifying the law and eliminating such
conflict that the Legislature suppressed the phrase "public officers" in
enacting article 149 of the Revised Penal Code, which is a reproduction of
the afore-cited article 264 of the Spanish Penal Code. It therefore becomes
clear that the crime of assault cannot be committed against a public officer
unless he is a person in authority or agent thereof at the same time.

For further elucidation of the matter, it was held in three decisions of the
Supreme Court of Spain: one of May 7,1874, another of November 16,
1889, and the other of October 8, 1901, that a teacher of a public primary
school, a professor in a higher school for teachers, and instructors in public
primary schools, are public officers. (Jose Garcia and Romero de Tejada,
Penal Monographs on Assaults upon Persons in Authority and Their
Agents, Resistance and Disobedience, p. 80; Alcubilla, Dictionary of
Spanish Administration, vol. I, p. 742; and Viada, Revised Penal Code of
1870, Fourth Supplement, p.281.)

The afore-cited reasons show that a teacher is neither a person in authority

nor an agent thereof but merely a public officer, and therefore, the assault
committed upon him while he is engaged in the performance of his duties

EN BANC
G.R. No. 125249 February 7, 1997
JIMMY S. DE CASTRO, petitioner,
vs.
THE COMMISSION ON ELECTIONS and AMANDO A.
MEDRANO, respondent
HERMOSISIMA, JR., J.:
Before us is a petition for certiorari raising twin issues as regards the effect
of the contestant's death in an election protest: Is said contest a personal
action extinguished upon the death of the real party in interest? If not, what
is the mandatory period within which to effectuate the substitution of
parties?
The following antecedent facts have been culled from the pleadings and are
not in dispute:
Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the
May 8, 1995 elections.
In the same elections, private respondent was proclaimed Vice-Mayor of
the same municipality.
On May 19, 1995, petitioner's rival candidate, the late Nicolas M. Jamilla,
filed an election protest1 before the Regional Trial Court of Pinamalayan,
Oriental Mindoro.2
During the pendency of said contest, Jamilla died.3 Four days after such
death or on December 19, 1995, the trial court dismissed the election
protest ruling as it did that "[a]s this case is personal, the death of the
protestant extinguishes the case itself. The issue or issues brought out in
this protest have become moot and academic".4
On January 9, 1995, private respondent learned about the dismissal of the
protest from one Atty. Gaudencio S. Sadicon, who, as the late Jamilla's
counsel, was the one who informed the trial court of his client's demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion
(For Intervention and/or Substitution with Motion for Reconsideration).5
Opposition thereto was filed by petitioner on January 30, 1996.6
In an Order dated February 14, 1996,7 the trial court denied private
respondent's Omnibus Petition/Motion and stubbornly held that an election
protest being personal to the protestant, is ipso facto terminated by the
latter's death.
Unable to agree with the trial court's dismissal of the election protest.,
private respondent filed a petition for certiorari and mandamus before the
Commission on Elections (COMELEC); private respondent mainly assailed
the trial court orders as having been issued with grave abuse of discretion.
COMELEC granted the petition for certiorari and mandamus.8 It ruled that
an election contest involves both the private interests of the rival candidates
and the public interest in the final determination of the real choice of the
electorate, and for this reason, an election contest necessarily survives the
death of the protestant or the protestee.
We agree.
It is true that a public office is personal to the public officer and is not a
property transmissible to his heirs upon death.9 Thus, applying the doctrine
of actio personalis moritur cum persona, upon the death of the incumbent,
no heir of his may be allowed to continue holding his office in his place.
But while the right to a public office is personal and exclusive to the public
officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that the death of either would oust the
court of all authority to continue the protest proceedings.
An election contest, after all, involves not merely conflicting private
aspirations but is imbued with paramount public interests. As we have held
in the case of Vda. de De Mesa v. Mencias: 10
. . . It is axiomatic that an election contest, involving as it does not only the
adjudication and settlement of the private interests of the rival candidates
but also the paramount need of dispelling once and for all the uncertainty
that beclouds the real choice of the electorate with respect to who shall
discharge the prerogatives of the offices within their gift, is a proceeding
imbued with public interest which raises it onto a plane over and above
ordinary civil actions. For this reason, broad perspectives of public policy
impose upon courts the imperative duty to ascertain by all means within
their command who is the real candidate elected in as expeditious a manner
10
as possible, without being fettered by technicalities and procedural barriers
to the end that the will of the people may not be frustrated (Ibasco vs. Ilao,
et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-
13242, July 31, 1958). So inextricably intertwined are the interests of the
contestants and those of the public that there can be no gainsaying the logic
of the proposition that even the voluntary cessation in office of the
protestee not only does not ipso facto divest him of the character of an
adversary in the contest inasmuch as he retains a party interest to keep his
political opponent out of the office and maintain therein his successor, but
also does not in any manner impair or detract from the jurisdiction of the
court to pursue the proceeding to its final conclusion (De Los Angeles vs.
Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587;
Galves vs. Maramba, G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate
the proceedings in the election protest filed against him, and it may stated
as a rule that an election contest survives and must be prosecuted to final
judgment despite the death of the protestee. 11
The death of the protestant, as in this case, neither constitutes a ground for
the dismissal of the contest nor ousts the trial court of its jurisdiction to
decide the election contest. Apropos is the following pronouncement of this
court in the case of Lomugdang v. Javier: 12
Determination of what candidate has been in fact elected is a matter clothed
with public interest, wherefore, public policy demands that an election
contest, duly commenced, be not abated by the death of the contestant. We
have squarely so rule in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No.
L-24583, October 29, 1966, in the same spirit that led this Court to hold
that the ineligibility of the protestant is not a defense (Caesar vs. Garrido,
53 Phil. 57), and that the protestee's cessation in office is not a ground for
the dismissal of the contest nor detract the Courts jurisdiction to decide the
case (Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil.
584). 13
The asseveration of petitioner that private respondent is not a real party in
interest entitled to be substituted in the election protest in place of the late
Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de
Mesa and Lomugdang that:
. . . the Vice Mayor elect has the status of a real party in interest in the
continuation of the proceedings and is entitled to intervene therein. For if
the protest succeeds and the Frotestee is unseated, the Vice-Mayor succeeds
to the office of Mayor that becomes vacant if the one duly elected can not
assume the post. 14
To finally dispose of this case, we rule that the filing by private respondent
of his Omnibus Petition/Motion on January 15, 1996, well within a period
of thirty days from December 19, 1995 when Jamilla's counsel informed the
trial court of Jamilla's death, was in compliance with Section 17, Rule 3 of
the Revised Rules of Court. Since the Rules of Court, though not generally
applicable to election cases, may however be applied by analogy or in a
suppletory character, 15 private respondent was correct to rely thereon.
The above jurisprudence is not ancient; in fact these legal moorings have
been recently reiterated in the 1991 case of De la Victoria vs. COMELEC.
16 If only petitioner's diligence in updating himself with case law is as
spirited as his persistence in pursuing his legal asseverations up to the
highest court of the land, no doubt further derailment of the election protest
proceedings could have been avoided.
WHEREFORE, premises considered, the instant petition for certiorari is
hereby DISMISSED
Costs against petitioner. SO ORDERED.

SECOND DIVISION
A.M. No. MTJ-94-989 April 18, 1997
OFFICE OF THE COURT ADMINISTRATOR, complainant,
vs.
JUDGE AUGUSTO SUMILANG, INTERPRETER FELICIDAD
MALLA, STENO-REPORTER EDELITA LAGMAY and STENO-
REPORTER NIEVA MERCADO, respondents.
ROMERO, J.:
With reluctance, the Court once again has to wield its power of imposing
disciplinary measures on members of the Bench and employees of the
judiciary for failure to live up to the obligations incident to their status as
officers of the Court.
Respondents Judge Augusto Sumilang, Felicidad Malla, Edelita Lagmay
and Nieva Mercado, court employees of the Metropolitan Trial Court of
Pila, Laguna (hereinafter referred to as the lower court), were charged in a
memorandum report by the Office of Court Administrator dated August 16,
1994,1 for misappropriating funds deposited by the plaintiff in Civil Case
No. 858, entitled "Spouses Entero Villarica and Felicidad Domingo v.
Teodorico Dizon." On October 5, 1994, this Court issued a resolution
treating the aforesaid memorandum report as an administrative complaint
which was docketed as Administrative Matter No. MTJ-94-989.2
In addition, a second complaint was lodged against Malla for removing
judicial records outside the court premises.3 This Court decided to include
this matter in the original complaint earlier docketed as A.M. No. MTJ-94-
989 in a resolution dated March 6, 1995.4 The antecedent facts follow:
This case arose as an aftermath of an on-the-spot audit examination of the
official cashbook and other documents of the lower court. It appears from
the evidence that court interpreter Malla who was the officer-in-charge
from July 1, 1992 to November 15, 1992, took a maternity leave for one (1)
month (November 16, 1992 to December 15, 1992) and reassumed her
position on December 16, 1992, until her resignation on August 31, 1993.
On September 1, 1993, Rebecca Avanzado assumed the position of officer
in charge. It was during her tenure on August 8, 1994, that an on-the-spot
audit examination was conducted by the Fiscal Audit Division of the Office
of Court Administrator. In the course of the examination, several
anomalous transactions were discovered. One involved a manager's check
deposited in the name of Teodorico Dizon in connection with Civil Case
No. 858, wherein Entero Villarica, on August 7, 1992 during the tenure of
Malla entrusted the amount of P240,000.00 to said respondent instead of
handling it over to the Clerk of Court pursuant to Supreme Court Circular
No. 13-92.5
When asked to explain where the P240,000.00 was, Malla, explained that
she deposited it at the Sta. Cruz, Laguna branch of the Philippine National
Bank but she and Judge Sumilang later withdrew it allegedly under the
belief that the defendant, Dizon, would demand the delivery of the money
upon the termination of the case. Upon further questioning by the
examining team, however, Malla admitted that she lent the amount of
P87,000.00 to steno-reporter Lagmay, P40,000.00 to steno-reporter
Mercado, and P81,000.00 to Mrs. Sumilang, wife of Judge Sumilang. She
spent P32,000.00 for the hospitalization of her husband and the remaining
balance for personal purposes.6
Later on, she executed an affidavit stating that only Lagmay and Mercado
borrowed P55,000.00 and P40,000.00, respectively. On the other hand, she
used P100,000.00 for her personal needs.7
Upon learning that they were being implicated in the anomalous
transaction, Lagmay executed an affidavit stating that the amount of
P55,000.00 was from the personal account of Malla and not from the
P240,000.00 amount deposited before the court and such loan has already
been paid.8 Mercado, on the other hand, claims that the amount of
P40,000.00 was borrowed only two weeks before the audit took place,
when Malla was no longer employed with the court.9 Mrs. Sumilang, for
her part, denied any involvement in any of the transactions. 10 After
carefully studying the records of this case, the Court is convinced that
respondents did commit acts prejudicial to the service for which they
should be held accountable.
The evidence against Judge Sumilang adequately proves his gross
negligence in this matter. In his proffered explanation, he averred that his
wife did not borrow any money from Malla and that he had no knowledge
of the irregularities involving members of his own staff. 11 It bears
emphasizing that this is not the first time that respondent judge has been
11
charged with an administrative case. In Arviso v. Sumilang, 12 this Court
found him guilty of gross negligence and ordered him to pay a fine of
P3,000.00 for his failure to act on a motion to dismiss in an expeditious
manner.
A judge must always remember that as the administrator of his court, he is
responsible for the conduct and management thereof. He has the duty to
supervise his court personnel to ensure prompt and efficient dispatch of
business in his court. 13 The ignorance of respondent Judge as to the
irregularities occurring in his own backyard constitutes serious breach of
judicial ethics. 14
Judge Sumilang's excuse, that upon learning of the irregularities being
committed by his court personnel, he immediately acted with haste and
instructed Mall to turn over the money, 15 is specious and unconvincing.
His admission that he had no knowledge regarding the anomalies going on
in his court underscores his inefficiency and incompetence. It clearly
demonstrates a lack of control expected of a judge exercising proper office
management.
The evidence against Malla is equally incriminating. It has been clearly
established, and this is not denied by Malla, 16 that she misappropriated for
her own use the amount of P240,000.00 which she received from Villarica,
the plaintiff in Civil Case No. 858, instead of directing him to deposit said
amount with the Municipal Treasurer. A court interpreter should not
receive payments made by litigants in relation to their cases in his personal
charge. 17
In her defense, Malla testified that her uncle Entero Villarica allowed her to
use the money on the condition that she should be ready to produce it when
necessary. 18 Malla, however, never presented Villarica as her witness to
bolster her claim which, therefore, has no evidentiary value for being self-
serving. Besides, there is a disputable presumption that evidence wilfully
suppressed would be adverse if produced during trial. 19
Malla further claims that her constitutional rights under Section 12, Article
III of the Constitution 20 were violated when she was "pressured" to sign
an affidavit dated September 14, 1994 before the Office of the Court
Administrator, where she admitted her misdeed. 21 Thus, she concludes
that the affidavit is inadmissible in evidence.
In People v. Loveria, 22 however, we ruled that the aforementioned
constitutional provision may be invoked only during "custodial
investigation" or as in "custody investigation" which has been defined as
"questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way." 23 The investigation is defined as an "investigation
conducted by police authorities which will include investigation conducted
by the Municipal Police, P.C. (now PNP) and the NBI and such other police
agencies in our government." 24 Thus, the Office of the Court
Administrator can hardly be deemed to be the law enforcement authority
contemplated in the constitutional provision. At any rate, Malla admitted
during her testimony that she received the said check from Villarica
covering the amount of P240,000.00 payable to Dizon. However, when she
tried to deposit it with the Municipal Treasurer, the latter refused because
there was no order from Judge Sumilang. Consequently, Villarica entrusted
said check to her. It was at this juncture that she used the money for
personal purposes. 25
During the investigation, Malla repeated what she basically stated in her
affidavit i.e., that she used a substantial amount of the P240,00.00 for her
personal needs. This effectively refutes whatever pressure and coercion she
claims was employed against her. By repeating her confession in open
court, Malla thereby converted it into a judicial confession. 26
During the investigation, Malla was charged with a second offense for
keeping in her custody missing court records containing the technical
description of a cadastral survey.
Malla never denied this charge, 27 but claimed that they were returned five
hours after they were removed. We are not impressed with the
remonstration of Malla. It should be stressed that court employees are not
allowed to take any court records, papers or documents outside the court
premises. 28
All these acts call for Malla's dismissal, but this penalty cannot be enforced
because she is no longer connected with the MTC of Pila, Laguna. Hence,
the appropriate penalty that may be meted against her is the forfeiture of
her accrued leave credits, with prejudice to re-employment in any branch or
instrumentality of the government, including government-owned or
controlled corporations. This disciplinary action should serve as a reminder
to all court personnel who yield to the temptation of using for their own
personal interest funds entrusted to the court, that there is no place in the
judiciary for those who cannot meet the exacting standards of judicial
conduct and integrity. The fact that Malla returned the whole amount is of
no moment because such act will not mitigate her liability.
 12

Respondents Lagmay and Mercado, on the other hand, vehemently deny FORFEITURE of all retirement benefits and accrued leave credits and with
knowing that the money they borrowed was money held in trust by Malla. prejudice to re-employment in any branch, agency or instrumentality of the
29 This assertion contradicts the latter's testimony as to the source of the government, including government-owned or controlled corporations,
money lent to the former. considering that dismissal is no longer feasible in view of her separation
from the service.
Worth stressing is the well-entrenched principle that in administrative
proceedings, such as the instant case, the quantum of proof necessary for a Respondents Edelita Lagmay and Nieva Mercado are likewise found guilty
finding of guilt is only substantial evidence. 30 Substantial evidence has of conduct prejudicial to the best interest of the service, and are hereby
been defined as such relevant evidence as a reasonable mind might accept ordered to pay a FINE of P3,000.00 each, with a stern warning that
as adequate to support a conclusion. 31 commission of the same or similar acts in the future will be dealt with more
severely.
The only evidence presented before this Court are the affidavits of Malla,
Lagmay and Mercado. Firmly established is the rule that testimonial SO ORDERED.
evidence carries more weight than affidavits. 32
On this point, the investigating Justice, 33 reported:
In the instant case, both Mercado and Lagmay are residents of Pila, Laguna,
like Malla. All of them were employed with the Municipal Trial Court of
Pila, Laguna, Mercado and Lagmay as stenographic reporters and Malla as
court interpreter and, for a time, as officer-in-charge of the Office of the
Clerk of Court. Moreover, being stenographic reporters in the same court
where Malla was the court interpreter, the deposit by Villarica of the
amount of P240,000.00 could not have been unknown to Mercado and
Lagmay. It is not every day that such a huge amount is deposited with a
mere Municipal Trial Court of a town in the province.
Indeed, Lagmay even admitted, when she testified during the investigation,
that she was aware of the deposit of the said amount with the Court as
ordered by it. Lagmay admitted when she testified that Malla was receiving
only a monthly salary of P5,000.00. The three (3) failed to adduce
competent evidence sufficient to prove any other sources of income of
Malla except her salary as an employee of the government. Although
Malla, Mercado and Lagmay claimed that Malla's husband was an
agricultural tenant of a five-hectare parcel of land and a real estate broker
and that Malla was the owner of a restaurant managed by her sister,
however, they relied solely on their testimonies to buttress their claim.
Malla failed to adduce in evidence any business or Mayor's permit to prove
that she was the owner and operator of a restaurant and any documentary
evidence to prove that her husband was engaged in real estate or that her
husband was an agricultural tenant and his income from said business or
occupation. On the other hand, when she testified during the investigation,
Malla admitted that she used P200,000.00 from the P240,000.00 deposit
(T.S.N., Malla, Page 96, April 21, 1995) for the expansion of her restaurant.
In fine, Malla was in dire need of money. If Malla had other sources of
income other than her salary as a government employee, it would not have
been necessary for her to use part of the deposit with the RCBC. Neither
Lagmay nor Malla adduced any evidence to prove that Malla was granted a
loan by the Luzon Development Bank, in March, 1994, in the gargantuan
amount of P600,000.00.
In situations such as the one at hand, the matter of assigning values to the
testimony of witnesses is best performed by the investigating body because,
unlike appellate courts, they can weigh such testimony in light of the
demeanor, conduct and attitude of the witnesses at the trial. 34 This rule,
however, must be relaxed when certain facts of substance and value have
been overlooked which, if considered, might affect the result of the matter.
35 Unfortunately for respondents, no such omission is present here.
We need not belabor jurisprudence that those involved in the administration
of justice must live up to the strictest standard of honesty and integrity in
the public service. Their conduct must at all times, not only be
characterized with propriety and decorum but above all must be above
suspicion. 36 For the image of a court of justice is necessarily mirrored in
the conduct, official or otherwise, of the men and women thereat, from the
judge to the least and lowest of its personnel. 37
By the very nature of the amount involved and considering that Malla was
only receiving a salary of P5,000.00 a month with no other source of
income, the conduct of the employees involved cast suspicion and tended to
diminish the faith of the people in the judiciary.
In resolving this case, this Court emphasizes the Constitutional tenet that
"(p)ublic office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with outmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and lead
modest
lives." 38
WHEREFORE, respondent Judge Augusto Sumilang is hereby found guilty
of gross negligence in the management of his court and ordered to pay a
FINE of P20,000.00.
Respondent Felicidad Malla is found guilty of misappropriating funds
deposited to the court by the plaintiff in Civil Case No. 858 and infidelity in
the custody of court records. The Court, therefore, imposes the penalty of

THIRD DIVISION
G.R. No. 112283 August 30, 1994
EVELYN ABEJA, petitioner,
vs.
JUDGE FEDERICO TAÑADA, Regional Trial Court of Lucena City,
Branch 58, and ROSAURO RADOVAN (deceased) *, respondents.
Roger E. Panotes for petitioner.
Antonio P. Relova for Conrado de Rama.
Eduardo R. Santos collaborating counsel for private respondent.
BIDIN, J.:
In this petition for certiorari, petitioner seeks the annulment of the orders
dated September 21, 1992 and October 18, 1993 issued by respondent
Judge Federico Tañada which decreed, among others, the revision of some
36 precincts contained in the counter-protest filed by respondent Radovan.
The said orders were issued by respondent judge in resolving
petitioner/protestant's "Motion to Determine Votes, to Proclaim Winner and
to Allow Assumption of Office" dated August 27, 1993.
The antecedent facts of the case are as follows:
Petitioner Evelyn Abeja and private respondent Rosauro Radovan
(deceased) were contenders for the office of municipal mayor of Pagbilao,
Quezon, in the May 11, 1992, national elections.
Based on the official returns of the Municipal Board of Canvassers for the
said municipality, private respondent was credited with 6,215 votes as
against petitioner's 5,951 votes.
Soon after the proclamation of private respondent, petitioner filed an
election contest, docketed as Election Case No. 92-1, entitled "Evelyn
Abeja vs. Rosauro Radovan" with the Regional Trial Court of Lucena City.
The protest covered twenty-two (22) precincts.
On June 5, 1992, private respondent filed an Answer with a Counter-Protest
of the results in thirty-six (36) precincts.
During the pre-trial, private respondent's counsel filed a motion praying
that the 36 counter-protested precincts be revised only if it is shown after
completion of the revision of the 22 protested precincts that petitioner leads
by a margin of at least one (1) vote. The trial court declared discussion on
the matter to be premature (TSN, July 6, 1992, pp. 8-12; Rollo, p. 148). The
revision of the ballots covering 22 protested precincts was completed in
September 1992. Thereafter, petitioner urged private respondent to
commence the revision of the 36 counter-protested precincts by praying the
necessary fees for the purpose. Private respondent refused.
In view thereof, petitioner moved that the counter-protest of private
respondent be considered withdrawn. Private respondent opposed the
motion and reiterated that the ballots of the 36 counter-protested precincts
should only be revised and recounted if it is shown after the revision of the
contested ballots of the 22 precincts that petitioner leads by at least one (1)
vote.
Petitioner filed another manifestation and motion on September 29, 1992,
praying that the counter-protest be considered withdrawn from the time the
final report of the Board of Revisors is submitted to the court for approval.
The then presiding Judge, Hon. Ludovico Lopez, did not rule on the
aforementioned motions but, according to petitioner, he (Judge Lopez)
declared during a hearing in October 1992 that once a ruling is made on the
contested ballots of the 22 protested precincts, he will not allow further
revision of ballots.
By April 1993, all pending incidents including the report of the Board of
Revisors as well as petitioner's formal offer of evidence were considered
submitted for resolution without private respondent having caused the
revision of the ballots in the 36 counter-protested precincts.
In an order dated April 15, 1993, Presiding Judge Lopez ruled that
"(p)rotestant's offer of evidence as well as the protestee's objections thereto
are now submitted for the Court's resolution" (Rollo, p. 61).
On June 13, 1993, private respondent Rosauro Radovan died. He was
substituted by Vice-Mayor Conrado de Rama and, surprisingly, by his
surviving spouse, Ediltrudes Radovan.
On July 13, 1993, private respondents de Rama and Radovan filed a
Manifestation seeking a prompt resolution of all pending incidents.
13
On August 12, 1993, the trial court issued an order stating that "(c)ounsels
for both parties having signified to this Court that they are submitting the
motion to resolve without further argument. This motion being a motion to
resolve, the Court hereby informs the parties that pending matters
submitted for resolution will be duly resolved on or before August 20,
1993" (Rollo, p. 143).
Shortly thereafter, Judge Lopez was reassigned to the Regional Trial Court
of Kalookan City. Before transferring to his new post, however, Judge
Lopez issued an order dated August 18, 1993 which contained his ruling in
each of the contested ballots in the 22 contested precincts and the reasons
therefor. In the said order, Judge Lopez emphasized that "in ruling on the
various objections lodged by both parties during the revision proceedings,
the originals of the contested ballots in the ballot boxes were subjected to
careful scrutiny in the seclusion of the Court's chamber" (Rollo, p. 161).
Nonetheless, the ruling did not contain a summation of the exact number of
votes to be credited to each of the parties, or a declaration of the winner in
the election protest for that matter.
On August 27, 1993, petitioner filed a "Motion to Determine Votes, To
Proclaim Winner and to Allow Assumption of Office" considering that
based on her own computation of revised ballots ruled upon by Judge
Lopez, she led private respondent by a margin of 281 votes.
Private respondents filed a Motion to Correct the order dated August 18,
1993, issued by Judge Lopez as well as oppositions to the motion of
petitioner. Respondents claim that petitioner's "Motion to Proclaim
Winner" is premature since the 36 counter-protested precincts are yet to be
revised.
In an order dated September 21, 1993, herein respondent Judge Federico
Tañada, who succeeded Judge Lopez, denied the "Motion to Determine
Votes, to Proclaim Winner and to Allow Assumption of Office" filed by
petitioner. Respondent judge ruled that petitioner's motion was indeed
premature on the ground that until after the 36 counter-protested precincts
have been revised, the court could not render a valid decision.
On October 18, 1993, respondent judge issued another order denying
petitioner's motion for reconsideration and directed the revision committee
to conduct a revision of the results of the 36 counter-protested precincts
scheduled on November 10, 1993.
These orders are the subject of this petition filed on November 8, 1993.
As prayed for by petitioner, the Court issued a temporary restraining order
on November 17, 1993, enjoining respondents from continuing with the
revision of the ballots in the 36 counter-protested precincts. It appears,
however, that the restraining order was served on November 19, 1993, after
the revision committee had completed revising 11 ballot boxes.
The sole issue to be resolved in this case is whether or not private
respondents should be allowed to proceed with the revision of the 36
precincts subject of the counter-protest.
It is clear from the records that Judge Lopez failed to issue a definitive
ruling on this specific procedural issue raised by the parties, which this
Court must now provide.
Although petitioner claims that Judge Lopez issued a warning to private
respondent to the effect that he (private respondent) shall not be allowed to
cause the revision of the counter-protested precincts after the revision of the
protested precincts is completed and ruled upon, she fails to cite a specific
oral or written order of Judge Lopez containing such warning or at least the
date and circumstances of the hearing in which the said warning was
issued. Consequently, the alleged warning issued by Judge Lopez is
unsubstantiated and must therefore be disregarded.
Coming now to the merits of the case, petitioner contends that the revision
of the counter-protested precincts filed by private respondent has already
been abandoned by his failure to pursue the same, right after the revision of
the 22 protested precincts. Petitioner also argue that the case was deemed
submitted for decision upon submission by the Board of Revisors of the
Report on the Revision of the 22 protested precincts.
In the instant case, petitioner, as protestant below, completed the revision of
ballots in the 22 protested precincts in September 1992 and her presentation
of evidence in April 1993. Likewise, the Board of Revisors had submitted
its report and the trial court issued a ruling dated August 18, 1993 on the
said revision. Given this state of the proceedings, the question to be
resolved is whether respondent may still be allowed to commence the
revision of the counter-protested precincts or should he be deemed to have
waived his right to present his own evidence, i.e., the revision of the
counter-protested precincts after stubbornly refusing to do so.
Petitioner argues that while the sequence in the presentation of evidence
may be altered for special reasons, the applicable rules of procedure do not
allow presentation of evidence after the court has already rendered a
decision. Clearly, petitioner considers the August 18, 1993 Order of Judge

Lopez to be the "decision" on the case although the order did not contain a
summation of the total votes credited to each of the parties or a declaration
of the winner in the election protest.
Petitioner objects to the stand taken by private respondent on the procedure
to be followed for being "unprocedural" in the sense that a decision
rendered on the election protest would be subject to another decision for the
counter-protest. It is further argued that since the 36 counter-protested
precincts were already under the jurisdiction of the trial court, the same
should have been revised unconditionally and should not have been
subjected to the whim and caprice of the private respondent.
The petition is impressed with merit.
Considering that this petition involves an election protest heard by a
regional trial court, the Comelec Rules of Procedure are controlling.
In view of the fact that the subject election contest was filed on May 26,
1992, Section 2, Rule 17 and Section 11, Rule 35 of the aforementioned
Comelec rules are applicable. Rule 17 treats of Hearings whereas Rule 35
treats of Election Contests Before Courts of General Jurisdiction. *
Section 2, Rule 17 provides, in part:
Sec. 2. Order of hearing. — Unless the Commission or the Division, as
the case may be, for special reasons, directs otherwise, the order of hearing
shall be as follows:
(a) The petitioner or protestant shall present evidence on his part;
(b) The protestant-in-intervention, if any, shall then offer evidence
in support of his defense or counter-protest, if any;
(c) The respondent or protestee shall then offer evidence in support
of his defense or counter-protest, if any;
It thus appears from the foregoing rule that the petitioner/protestant and the
respondent/protestee shall present their evidence upon their original case in
succession in accordance with the order or sequence provided therein.
On the other hand, Section 11, Rule 35 provides:
Sec. 11. Presentation and reception of evidence. — The
presentation and reception of evidence in election contests shall be made in
accordance with Section 2 of Rule 17 of these Rules, but the same shall be
completed within thirty (30) days from the date of the commencement
thereof.
The record shows that the revision of ballots in the 22 protested precincts
was completed sometime in September 1992. Judge Lopez issued a ruling
on the said revision almost a year later, or on August 18, 1993.
In the interim, private respondent failed to commence the revision of the
ballots in the counter-protested precincts, stubbornly maintaining the
position that said precincts should be revised only if it is shown after the
revision that petitioner leads private respondent by at least one (1) vote. No
law or rule authorizes such a procedure. Consequently, private respondent
must be deemed to have waived or abandoned his counter-protest.
The applicable Comelec rules provide for the presentation of evidence by
the parties in succession in the order or sequence provided under Sec. 2,
rule 17 (Comelec Rules) which must be submitted within a reasonable time,
if not immediately after the revision of the precincts covered by the protest
proper.
By insisting that the counter-protested precincts should be revised only if it
is shown after the revision of the protested precincts that petitioner, his
opponent, leads by at least one (1) vote, private respondent is adopting a
self-serving rule without legal sanction calculated to unduly prolong the
litigation.
Furthermore, it is readily apparent from the provisions of the applicable
Comelec Rules that the court shall render its decision after both parties
shall have presented their respective evidence. Nowhere in the said
provisions is it indicated that presentation of evidence by the protestee may
continue after the court has ruled on the evidence of the protestant and
determine the number of votes obtained by the latter. Otherwise, it would
be possible for the protestee to prolong the protest and render it moot by
expiration of the term of office contested.
There is likewise merit to petitioner's claim that private respondent is guilty
of laches, which, in a general sense, is a failure or neglect, for an
unreasonable and unexplained length of time, to do that which, by
exercising due diligence could or should have been done earlier; it is
negligence or omission to assert a right within a reasonable length of time,
warranting a presumption that a party entitled to assert it either has
abandoned it or declined to assert it (Republic v. Caballero, 79 SCRA 177
[1977]).
14
In the case at bar, private respondent unreasonably failed to cause the
revision of the counter-protested precincts despite being afforded ample
time to do so and must be deemed to have abandoned it. However, it is not
clear from the record of the case whether Judge Lopez issued an order
requiring private respondent to pay the required cash deposit for the
revision of the ballots in the counter-protested precincts in accordance with
Section 10, (b), Rule 35 of the Comelec Rules of Procedure, otherwise, the
counter-protest shall be automatically dismissed as provided in Sec. 10[c]
thereof:
Sec. 10. Cash Deposit. —
xxx xxx xxx
(b) In case revision of ballots is required, there shall be deposited,
within ten days after being required by the Court, the sum of three hundred
pesos (P300.00) for every ballot box for the compensation of revisors at the
rate of P100.00 each.
(c) Failure to make the cash deposits herein provided within the
prescribed time limit shall result in the automatic dismissal of the protest,
counter-protest or protest-in-intervention, as the case may be.
In the Comment of private respondent's widow, it is alleged that "the record
of the case definitely show (sic) that Judge Lopez himself categorically
ruled that the counter-protest was filed on time and the necessary cash
deposit submitted by private respondent pursuant to law" (Rollo, p. 60).
However, private respondent fails to cite that part of the record in which the
said ruling may be found.
Private respondent attributes the delay in the resolution of the case to Judge
Lopez for failing to rule on the issues raised by the parties. However, it
cannot be denied that private respondent has maintained the same position
regarding the revision of his counter-protest from the very beginning, as
early as the pre-trial of the case, and all throughout the course of the
proceedings. Although Judge Lopez' inaction may have contributed to the
delay of the case, private respondent Radovan must bear the grave
consequences of his stubborn and unfounded refusal to proceed with the
revision of the counter-protested precincts. Instead of conducting the
revision of his counter-protested precincts, private respondent hedged and
stalled on the resolution of the case which is a purely dilatory technique.
Private respondent's argument is that the procedure advocated by him
would actually save time. Nothing that the resolution of petitioner's protest
took almost a year, he contends that about the same length of time would be
saved in the event a revision of the counter-protested precincts would be
declared unnecessary. Suffice it to state that the procedure proposed by
private respondent is not sanctioned by the Rules and need not delay us any
longer that it already has in the disposition of this case.
Upon the foregoing, we hold that the respondent judge erred in rendering
the assailed orders denying petitioner's "Motion to Determine Votes, to
Declare Winner and to Allow Assumption of Office" and directing the
revision of the counter-protested precincts at this late hour, so to speak.
Under the circumstances and for reasons discussed above, the order of
Judge Lopez dated August 18, 1993 which resolved the party litigants'
objections to the revised ballots may very well be the subject of a valid
decision to resolve the instant electoral protest based on the revised ballots
of the 22 protested precincts.
In the event petitioner is declared the winning candidate, she should, upon
proper motion, be allowed to immediately assume the contested office. We
say this because in their pleadings, petitioner and private respondent have
amply discussed their respective arguments in the applicability of Garcia v.
de Jesus and the accompanying case of Tobon Uy v. Comelec (206 SCRA
779 [1992]) and the possibility is not remote that private respondent may
once again resort to dilatory tactics.
Section 2, Rule 39 of the Rules of Court allows execution pending appeal in
election cases upon good reasons (Garcia v. de Jesus, supra; in relation to
Rule 43, Sec. 1, COMELEC Rules of Procedure) which we find obtaining
in the case before us.
Gahol v. Riodique (64 SCRA 494 [1975]) is even more emphatic:
Why should the proclamation by the board of canvassers suffice as a basis
of the right to assume office, subject to future contingencies attendant to a
protest, and not the decision of a court of justice? Indeed, when it is
considered that the board of canvassers is composed of person who are less
technically prepared to make an accurate appreciation of the ballots, apart
from their being more apt to yield to external consideration, and that the
board must act summarily, practically racing against time, while on the
other hand, the judge has the benefit of all the evidence the parties can offer
and of admittedly better technical preparation and background, apart from
his being allowed ample time for conscientious study and mature
deliberation before rendering judgment, one cannot but perceive the
wisdom of allowing the immediate execution of decisions in election cases
 15

adverse to the protestees, notwithstanding the perfection and pendency of

appeals therefrom, as long as there are, in the sound discretion of the court,
good reasons therefor. (cited in Garcia v. de Jesus, supra)
We also find as erroneous the substitution of the deceased Rosauro
Radovan's widow, Ediltrudes Radovan, on the ground that private
respondent had a counter-claim for damages. "Public office is personal to
the incumbent and is not a property which passes to his heirs" (Santos vs.
Secretary of Labor, 22 SCRA 848 [1968]; De la Victoria vs. Comelec, 199
SCRA 561 [1991]). The heirs may no longer prosecute the deceased
protestee's counter-claim for damages against the protestant for that was
extinguished when death terminated his right to occupy the contested office
(Dela Victoria, supra).
WHEREFORE, the petition is hereby GRANTED. The assailed orders of
respondent judge as well as the results of the revision of the 11 ballot boxes
subject of the counter-protest are SET ASIDE. Respondent judge is further
ordered to DISMISS the counter-protest in Election Case No. 92-1 and to
resolve the "Motion to Determine Votes, to Proclaim Winner and to Allow
Assumption of Office" filed by petitioner conformably with this decision
within a non-extendible period of fifteen (15) days from receipt hereof.
This decision is immediately executory. Costs against respondent
Ediltrudes Radovan.
SO ORDERED.

FIRST DIVISION
G.R. No. 80270 February 27, 1990
CITY MAYOR OF ZAMBOANGA, petitioner,
vs.
COURT OF APPEALS AND EUSTAQUIO C. ARGANA, respondents.
GANCAYCO, J.:
Public office is a public trust. All government officials 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. 1 This constitutional mandate should always
be in the minds of all public servants to guide them in their actions during
their entire tenure in the government service.
Upon appointment to a public office, an officer or employee is required to
take his oath of office whereby he solemnly swears to support and defend
the Constitution, bear true faith and allegiance to the same; obey the laws,
legal orders and decrees promulgated by the duly constituted authorities;
and faithfully discharge to the best of his ability the duties of the position
he will hold.
Yet, time and again, We hear of public servants acting in utter defiance of
the principles enshrined in the Constitution and in complete disregard of
what they swore in the name of God before assuming their posts in the
public service. Consequently, the people's trust and faith in the government
has slowly eroded. There in very little respect and confidence left.
This in turn has resulted in a widespread feeling of disappointment and
dissatisfaction in the government machinery. Gone are the days when one
of the shining ambitions of a college graduate was to have a career in the
civil service; when working in the government meant self-fulfillment. Now,
young and talented graduates shy away from the public service which is
unfortunately perceived to be unattractive and totally lacking in luster. It is
only when those in the government sector serve with the highest degree of
responsibility, integrity, loyalty and efficiency and act in accordance with
the tenets of the Constitution can such lost respect and confidence be
regained. This case is typical of what a public servant should not be.
The Chief Veterinarian of Zamboanga City, a civil servant, is the private
respondent herein. Three female employees of the Office of the City
Veterinarian of Zamboanga City headed by private respondent, filed an
administrative complaint against him for Dishonesty, Oppression and
Disgraceful and Immoral Conduct for the following acts he allegedly
committed —
Against Mrs. Pilar N. de los Santos —
for inviting and/or insisting, on several occasions, that she go with
respondent to the Zamboanga Plaza Hotel, Zamboanga City, and by
deliberately suggesting that her husband should not have any knowledge of
his proposals and suggesting further that she should not report for work any
more but for her to wait in the premises of the Macatangay Drug Store,
Zamboanga City, so that both of them can later proceed to the Zamboanga
Plaza Hotel; for contriving and/or manuevering to assign her husband,
Expedito de los Santos, to remote districts in the East Coast of the City in
order that he (Argana) can conveniently pursue his amorous intentions and
solicitations towards her; and for persisting to bother her and trying to
convince her to establish an illicit relation with him, promising that her
husband will never know about it anyway.
Against Mrs. Ma. Carmen G. (Alpichi) —
For his persistent act of inviting her on several occasions to go with him to
discreet eateries, and on one occasion, to dine and drink with him at the
Happy Landing Restaurant at the Zamboanga City Airport during office
hours in order to persuade her to accept his amorous advances and even
offered her money as capital for a sari-sari store; and in taking her to dine
and drink with him in a certain store owned by Olegario Barrios at Ayala,
Zamboanga City, during office hours, which lasted until 6:00 o'clock in the
evening and made several amorous passes at her.
Against Mrs. Rosa Sonia Guevarra
For inviting her to accompany him in his jeep to go out on official missions
but instead taking her to a canteen inside the Edwin Andrews Air Base,
Zamboanga City, to be with him privately and then subsequently inviting
her to go and play bowling with him and to have a date with him at the
Sultana Hotel the next day; and for offering her the amount of P50.00 to
convince her to submit to his amorous intentions. 2
On November 31, 1983, in due course, the then Mayor of Zamboanga City,
Hon. Cesar Climaco, rendered a Decision, finding private respondent guilty
16
of Disgraceful and Immoral Conduct and penalizing him with "forced
resignation from service with prejudice to reinstatement." Private
respondent appealed to the Civil Service Regional Director who referred
the case to the Merit Systems Board of the Civil Service Commission. The
latter found private respondent guilty only of Improper Conduct with a
penalty of "reprimand and warning."
On appeal to the Civil Service Commission, the Decision of the Merit
Systems Board dated January 4, 1985 was set aside and the Decision of
Mayor Climaco finding private respondent guilty of Disgraceful and
Immoral Conduct was sustained. The penalty of "considered resigned from
service with prejudice to reinstatement" was reimposed on private
respondent.
Again, private respondent filed an appeal — this time with the Court of
Appeals. On August 10, 1987, the Court of Appeals rendered its Decision,
setting aside the Decision of the Civil Service Commission and reinstating
that of the Merit Systems Board modifying the penalty thereof to "six-
months suspension without pay with a stern warning that repetition of the
same or similar offense will be dealt with more severely." The Court of
Appeals further ordered the reinstatement of private respondent with full
backwages after having served the penalty.
Not satisfied with the above-mentioned Decision of the Court of Appeals,
the City Mayor of Zamboanga filed this petition for review praying that the
said Decision be set aside and that the Decision of the Civil Service
Commission penalizing respondent with forced resignation, be reinstated.
The first assigned error is that the Court of Appeals erred in directing the
payment of private respondent's backwages to which the Solicitor General
agrees. A review of the records of this case and the applicable laws and
jurisprudence reveal that the order of payment of back salaries to private
respondent is not valid.
Section 78 of the B.P. Blg. 337, otherwise known as the Local Government
Code, provides for the conditions under which a public servant who was
suspended or dismissed by reason of an administrative charge, may be
entitled to full backwages, thus:
Sec. 78. Disciplinary Jurisdiction. — (1) Except as otherwise
provided by law, the head of a local government unit shall have authority to
remove, separate, suspend and otherwise discipline officials and employees
under his jurisdiction. If the penalty imposed is suspension without pay for
not more than thirty days, his decision shall be final. If the penalty imposed
is heavier, the decision shall be appealable to the Civil Service Commission
which has final authority upon all matters relating to the conduct, discipline
and efficiency of local government officials and employees. If the
respondent is in the career executive service, appeal shall be made to the
Career Service Board.
(2) An appeal shall not prevent a decision from becoming
executory, and in case the penalty is suspension or removal, the respondent
shall be considered as having been under preventive suspension during the
pendency of an appeal in the event he wins such appeal.
However, the respondent shall be paid his salary corresponding to the
period during which the appeal is pending in the event he is completely
exonerated. (Emphasis supplied.)
Under the above-quoted provision, it is required that private respondent
must be exonerated of the charges in order that he may be paid his back
salaries. In the case at bar, it is quite apparent from the facts that private
respondent was not cleared of the charges. The Court of Appeals affirmed
the decision of the Merit and Systems Board which on the other hand found
private respondent guilty of "Improper Conduct." It is because of this
finding of guilt that the Court of Appeals imposed a penalty of six-months
suspension on private respondent. Also, the stern warning handed down by
the Court of Appeals on private respondent that a "repetition of the same or
similar offense will be dealt with more severely" only shows that the said
Court did not exonerate him of the offense.
In a long line of cases, 3 this Court reiterated the principle that back salaries
may be ordered paid to an officer or employee only if he is exonerated of
the charge against him and his suspension or dismissal is found and
declared to be illegal. In Sales vs. Mathay, Sr., 4 this Court held that a
postal clerk suspended for six months for gross neglect of duty is not
entitled to back salary if he cannot show that his suspension was unjustified
or that he is innocent of the charge.
Thus, the order of payment of full backwages in this case is without lawful
basis. Indeed, to allow private respondent to receive full back salaries
would amount to rewarding him for his misdeeds and compensating him for
services that were never rendered.
As to the specific offense/s committed and the proper penalty to be
imposed, the Court finds that private respondent is guilty of "Disgraceful
and Immoral Conduct" as well as "Grave Misconduct" and must be meted
the penalty of dismissal.

Under Memorandum Circular No. 30, series of 1989 issued by the Civil
Service Commission, "Disgraceful and Immoral Conduct" and "Grave
Misconduct" are classified as grave offenses punishable by dismissal. The
acts of private respondent constituting the aforementioned administrative
offenses were duly established as shown in the following testimonies of his
three female subordinates:
From Mrs. Pilar de los Santos —
That in connection with the respondent's invitation to her to dine with him
at the Zamboanga Plaza Hotel, when she suggested to him that she bring
her husband along with her, respondent refused saying that he will not
enjoy while her husband is around (TSN, p. 12); that suspicious of the
respondent's motive, she turned down the invitation (TSN, p. 14)-l that the
incident prompted her to tender her letter of resignation from the office;
that she told the incident to Mr. Vicente Lacandalo, another employee in
the Office of the City Veterinarian; that Mr. Lacandalo talked to respondent
regarding the matter, then respondent came out later of his room and he was
very mad at her; that she did not let her husband know about the incident
knowing that he has a bad temper; that because of her repeated refusal to
accept respondent harassed her by refusing to sign her clearance for transfer
to the Sangguniang Pampook; and that the respondent forced her to sign a
promissory note in connection with the lost typewriter as a condition to
approving her transfer to the Sangguniang Pampook (TSN, pp. 17-26).
From Mrs. Ma. Carmen G. Alpichi —
That she was a Livestock Inspector in the Office of the City Veterinarian;
that when the respondent learned that her husband was about to leave for
Manila to attend a 45-day seminar, he (respondent) assigned her at the
airport as Quarantine Officer and while there, he frequented visiting her and
everytime he visits her, he invites her to a snack or lunch; that respondent
keeps on asking her when her husband will arrive (TSN, p. 45); that she
noticed respondent's amorous intentions towards her from 1979 (TSN, p.
45); that when she informed her husband about it, he advised her to be
more careful; that she can remember that Argana invited her three (3) times
to dine with him, and she went with him to the Sandwich Restaurant in
Atilano for about three (3) hours at about 8:30 in the morning, during office
hours, on the first occasion; and for about 30 minutes on the second
occasion; while it lasted from 10:00 o'clock in the morning to 12:00 o'clock
noon on the third occasion (TSN, pp. 49 & 50); that when she asked the
respondent to recommend the renewal of her appointment he asked her
what gift she is willing to give him and that in answer thereto she said that
she will do her job very well and show that she is interested in her work,
but to which respondent replied that 'it is not a gift;' that, therefore, she
asked him what gift he really wanted and to which he replied 'the gift which
(1) she will give him with all (my) her heart that as a woman, she felt that
by that statement, respondent wanted her to give herself to him (TSN, p.
57); and that one time in the store of Olegario Barrios in Ayala, Zamboanga
City, while respondent and a certain Mr. Policarpio were drinking beer,
respondent talked to her about sex to the effect that if a man will convince
(me) her to make sex, 'ansina daw ese sir, si quiere daw eyo man sex con el
hente maskin casao, ya daw ansina' (that if a man will convince her to make
sex, a man, though married, may have sex with another woman. (TSN, p.
61).
From Mrs, Rosa Sonia M. Guevarra —
That she was a Meat and Livestock Inspector in the Office of the City
Veterinarian, Zamboanga City; that she refused respondent's invitation to
her to go with him on bowling; that on September, 23, 1980 when she went
with respondent in his jeep he held her left hand very tightly before she
could alight from the said jeep and then he offered her P50.00; that when
she told her father-in-law about the incident on the same day he was very
mad; that when she arrived at the office in the afternoon of the same day
she related the incident to Mr. Honorato Loon, a co-employee; that when
she approached the respondent later for him to sign her application for sick
leave he asked her what gift (you) she can give to (me) him if (I) he will
sign her leave,' to which she answered she can give (you) him a bottle of
wine ... and cigarettes,' but respondent replied '(1) he can buy those things'
because 'what he really wanted is sexual intercourse (TSN, p. 110). 5
In determining what penalty must be imposed on private respondent, the
Court took into consideration the fact that there is here not only one but
three complainants, all married at that. It projects the abnormality of private
respondent's behavior consisting of a libidinous desire for women and the
propensity to sexually harass members of the oppsite sex working with him.
The manner in which he communicated his desire for the complaining
ladies — proposing to meet them at hotels, tempting them with money to
submit to his advances and even coaching them to avoid being caught by
their husbands, depicts the private respondent's moral depravity.
What aggravates the situation is the undeniable circumstance that private
respondent took advantage of his position as the superior of the three ladies
involved herein.
17
Being the chief of office, it was incumbent upon private respondent to set
an example to the others as to how they should conduct themselves in
public office, to see to it that his subordinates work efficiently in
accordance with Civil Service Rules and Regulations, and to provide them
with a healthy working atmosphere wherein co-workers treat each other
with respect, courtesy and cooperation, so that in the end the public interest
will be benefited.
On the contrary, private respondent, who was supposed to be the head of
their office, goaded his female subordinates to dine and drink with him
during office hours; asked for "gifts" in exchange for his official signature
or favor; utilized his rank to get back at those who refused his advances and
those who sympathized with the latter; and even instructed one of them not
to report for work but to instead meet with him so that he could bring her to
a hotel. Such acts of private respondent cannot be condoned. He should not
be let loose to pursue his lewd advances towards lady employees in said
office.
Indeed, to reinstate private respondent to his former position with full
backwages would make a mockery of the fundamental rule that a public
office is a public trust and would render futile the constitutional dictates on
the promotion of morale, efficiency, integrity, responsiveness,
progressiveness and courtesy in the government service. 6 Likewise,
reinstatement would place private respondent in such a position where the
persons whom he is supposed to lead have already lost their respect for him
and where his tarnished reputation would continue to hound him.
For the sake of his former subordinates, and for his own sake, and bearing
in mind that a public office must be held by a person who is both mentally
and morally fit, the Court finds private respondent guilty of "Disgraceful
and Immoral Conduct" and "Grave Misconduct" in office and he is hereby
imposed the penalty of dismissal pursuant to the provisions of Civil Service
Commission Memorandum Circular No. 30, series of 1989.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. SP No.
06835 is REVERSED. The Decision of the Civil Service Commission in
CSC Case No. 2322 dated July 10, 1985 is hereby reinstated, with the
modification that the penalty to be imposed on private respondent should be
that of dismissal. The Court makes no pronouncement as to costs.
SO ORDERED.
FIRST DIVISION
G.R. No. 145368 April 12, 2002
SALVADOR H. LAUREL, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as Ombudsman,
respondent.
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued Administrative
Order No. 223 "constituting a Committee for the preparation of the
National Centennial Celebration in 1998." The Committee was mandated
"to take charge of the nationwide preparations for the National Celebration
of the Philippine Centennial of the Declaration of Philippine Independence
and the Inauguration of the Malolos Congress."1
Subsequently, President Fidel V. Ramos issued Executive Order No. 128,
"reconstituting the Committee for the preparation of the National
Centennial Celebrations in 1988." It renamed the Committee as the
"National Centennial Commission." Appointed to chair the reconstituted
Commission was Vice-President Salvador H. Laurel. Presidents Diosdado
M. Macapagal and Corazon C. Aquino were named Honorary
Chairpersons.2
Characterized as an "i body," the existence of the Commission "shall
terminate upon the completion of all activities related to the Centennial
Celebrations."3 Like its predecessor Committee, the Commission was
tasked to "take charge of the nationwide preparations for the National
Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress."
Per Section 6 of the Executive Order, the Commission was also charged
with the responsibility to "prepare, for approval of the President, a
Comprehensive Plan for the Centennial Celebrations within six (6) months
from the effectivity of" the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:

Sec. 3. The Commission shall be provided with technical and
administrative staff support by a Secretariat to be composed of, among
others, detailed personnel from the Presidential Management Staff, the
National Commission for Culture and the Arts, and the National Historical
Institute. Said Secretariat shall be headed by a full time Executive Director
who shall be designated by the President.
Sec. 4. The Commission shall be funded with an initial budget to be drawn
from the Department of Tourism and the president’s Contingent Fund, in an
amount to be recommended by the Commission, and approved by the
President. Appropriations for succeeding years shall be incorporated in the
budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo ’98
Corporation (Expocorp) was created.4 Petitioner was among the nine (9)
Expocorp incorporators, who were also its first nine (9) directors. Petitioner
was elected Expocorp Chief Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege
speech in the Senate denouncing alleged anomalies in the construction and
operation of the Centennial Exposition Project at the Clark Special
Economic Zone. Upon motion of Senator Franklin Drilon, Senator
Coseteng’s privilege speech was referred to the Committee on
Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative
Order No. 35, creating an ad hoc and independent citizens’ committee to
investigate all the facts and circumstances surrounding the Philippine
centennial projects, including its component activities. Former Senator
Rene A.V. Saguisag was appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the
Secretary of the Senate its Committee Final Report No. 30 dated February
26, 1999. Among the Committee’s recommendations was "the prosecution
by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of
EXPOCORP for violating the rules on public bidding, relative to the award
of centennial contracts to AK (Asia Construction & Development Corp.);
for exhibiting manifest bias in the issuance of the NTP (Notice to Proceed)
to AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating
in the scheme to preclude audit by COA of the funds infused by the
government for the implementation of the said contracts all in violation…
of the anti-graft law."5
Later, on November 5, 1999, the Saguisag Committee issued its own report.
It recommended "the further investigation by the Ombudsman, and
indictment, in proper cases of," among others, NCC Chair Salvador H.
Laurel for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in
relation to Section 11 of R.A. No. 6713, and Article 217 of the Revised
Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the
Office of the Ombudsman. On January 27, 2000, the Bureau issued its
Evaluation Report, recommending:
1. that a formal complaint be filed and preliminary investigation be
conducted before the Evaluation and Preliminary Investigation Bureau
(EPIB), Office of the Ombudsman against former NCC and EXPOCORP
chair Salvador H. Laurel, former EXPOCORP President Teodoro Q. Peña
and AK President Edgardo H. Angeles for violation of Sec. 3(e) and (g) of
R.A. No. 3019, as amended in relation to PD 1594 and COA Rules and
Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the
nominal complainant.6
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the
Evaluation and Preliminary Investigation Bureau, directed petitioner to
submit his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioner’s
motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13,
2000 Order but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation
Bureau issued a resolution finding "probable cause to indict respondents
SALVADOR H. LAUREL and TEODORO Q. PEÑA before the
Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No.
3019, in relation to Republic Act No. 1594." The resolution also directed
18
that an information for violation of the said law be filed against Laurel and
Peña. Ombudsman Aniano A. Desierto approved the resolution with respect
to Laurel but dismissed the charge against Peña.
In a Resolution dated September 24, 2001, the Court issued a temporary
restraining order, commanding respondents to desist from filing any
information before the Sandiganbayan or any court against petitioner for
alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices
Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the
parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he
is not a public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER
LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN
CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT
AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED,
WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED
OR CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A
PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF
EXPOCORP WAS NOT A "PUBLIC OFFICER" AS DEFINED UNDER
THE ANTI-GRAFT & CORRUPT PRACTICES ACT.7
In addition, petitioner in his reply8 invokes this Court’s decision in Uy vs.
Sandiganbayan,9 where it was held that the jurisdiction of the Ombudsman
was limited to cases cognizable by the Sandiganbayan, i.e., over public
officers of Grade 27 and higher. As petitioner’s position was purportedly
not classified as Grade 27 or higher, the Sandiganbayan and, consequently,
the Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Court’s decision in Uy, we
held that "it is the prosecutor, not the Ombudsman, who has the authority to
file the corresponding information/s against petitioner in the regional trial
court. The Ombudsman exercises prosecutorial powers only in cases
cognizable by the Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of the
State and regular provincial and city prosecutors under the Department of
Justice to have control over prosecution of cases falling within the
jurisdiction of the regular courts. The investigation and prosecutorial
powers of the Ombudsman relate to cases rightfully falling within the
jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770 ("An
Act Providing for the Functional and Structural Organization of the Office
of the Ombudsman, and for other purposes") which vests upon the
Ombudsman "primary jurisdiction over cases cognizable by the
Sandiganbayan…" And this is further buttressed by Section 11 (4a) of R.A.
6770 which emphasizes that the Office of the Special Prosecutor shall have
the power to "conduct preliminary investigation and prosecute criminal
cases within the jurisdiction of the Sandiganbayan." Thus, repeated
references to the Sandiganbayan’s jurisdiction clearly serve to limit the
Ombudsman’s and Special Prosecutor’s authority to cases cognizable by
the Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for
clarification by the Ombudsman in the same case, the Court set aside the
foregoing pronouncement in its Resolution dated March 20, 2001. The
Court explained the rationale for this reversal:
The power to investigate and to prosecute granted by law to the
Ombudsman is plenary and unqualified. It pertains to any act or omission
of any public officer or employee when such act or omission appears to be
illegal, unjust, improper or inefficient. The law does not make a distinction
between cases cognizable by the Sandiganbayan and those cognizable by
regular courts. It has been held that the clause "any illegal act or omission
of any public official" is broad enough to embrace any crime committed by
a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan,
particularly in Section 15(1) giving the Ombudsman primary jurisdiction
over cases cognizable by the Sandiganbayan, and Section 11(4) granting
the Special Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the Sandiganbayan,
should not be construed as confining the scope of the investigatory and
prosecutory power of the Ombudsman to such cases.

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over
cases cognizable by the Sandiganbayan. The law defines such primary
jurisdiction as authorizing the Ombudsman "to take over, at any stage, from
any investigatory agency of the government, the investigation of such
cases." The grant of this authority does not necessarily imply the exclusion
from its jurisdiction of cases involving public officers and employees by
other courts. The exercise by the Ombudsman of his primary jurisdiction
over cases cognizable by the Sandiganbayan is not incompatible with the
discharge of his duty to investigate and prosecute other offenses committed
by public officers and employees. Indeed, it must be stressed that the
powers granted by the legislature to the Ombudsman are very broad and
encompass all kinds of malfeasance, misfeasance and non-feasance
committed by public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be
equated with the limited authority of the Special Prosecutor under Section
11 of RA 6770. The Office of the Special Prosecutor is merely a component
of the Office of the Ombudsman and may only act under the supervision
and control and upon authority of the Ombudsman. Its power to conduct
preliminary investigation and to prosecute is limited to criminal cases
within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did
not intend to confine the investigatory and prosecutory power of the
Ombudsman to these types of cases. The Ombudsman is mandated by law
to act on all complaints against officers and employees of the government
and to enforce their administrative, civil and criminal liability in every case
where the evidence warrants. To carry out this duty, the law allows him to
utilize the personnel of his office and/or designate any fiscal, state
prosecutor or lawyer in the government service to act as special investigator
or prosecutor to assist in the investigation and prosecution of certain cases.
Those designated or deputized to assist him work under his supervision and
control. The law likewise allows him to direct the Special Prosecutor to
prosecute cases outside the Sandiganbayan’s jurisdiction in accordance
with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is
one of the most important functions of the Ombudsman. In passing RA
6770, the Congress deliberately endowed the Ombudsman with such power
to make him a more active and effective agent of the people in ensuring
accountability in public office. A review of the development of our
Ombudsman law reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds
upon which petitioner relies. We first address the argument that petitioner,
as Chair of the NCC, was not a public officer.
The Constitution10 describes the Ombudsman and his Deputies as
"protectors of the people," who "shall act promptly on complaints filed in
any form or manner against public officials or employees of the
government, or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations." Among the
awesome powers, functions, and duties vested by the Constitution11 upon
the Office of the Ombudsman is to "[i]nvestigate… any act or omission of
any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient."
The foregoing constitutional provisions are substantially reproduced in
R.A. No. 6770, otherwise known as the "Ombudsman Act of 1989."
Sections 13 and 15(1) of said law respectively provide:
SEC. 13. Mandate. – The Ombudsman and his Deputies, as protectors of
the people shall act promptly on complaints file in any form or manner
against officers or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-owned or
controlled corporations, and enforce their administrative, civil and criminal
liability in every case where the evidence warrants in order to promote
efficient service by the Government to the people.
SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman
shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the Sandiganbayan and,
in the exercise of this primary jurisdiction, it may take over, at any stage,
from any investigatory agency of Government, the investigation of such
cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in
relation to Section 13, supra:
SEC 16. Applicability. – The provisions of this Act shall apply to all kinds
of malfeasance, misfeasance and non-feasance that have been committed by
any officer or employee as mentioned in Section 13 hereof, during his
tenure of office.
19
In sum, the Ombudsman has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or employee of the
government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations.12
Neither the Constitution nor the Ombudsman Act of 1989, however, defines
who public officers are. A definition of public officers cited in
jurisprudence13 is that provided by Mechem, a recognized authority on the
subject:
A public office is the right, authority and duty, created and conferred by
law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion
of the sovereign functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public officer.14
The characteristics of a public office, according to Mechem, include the
delegation of sovereign functions, its creation by law and not by contract,
an oath, salary, continuance of the position, scope of duties, and the
designation of the position as an office.15
Petitioner submits that some of these characteristics are not present in the
position of NCC Chair, namely: (1) the delegation of sovereign functions;
(2) salary, since he purportedly did not receive any compensation; and (3)
continuance, the tenure of the NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign
functions of government as "[t]he most important characteristic" in
determining whether a position is a public office or not.
The most important characteristic which distinguishes an office from an
employment or contract is that the creation and conferring of an office
involves a delegation to the individual of some of the sovereign functions
of government, to be exercised by him for the benefit of the public; – that
some portion of the sovereignty of the country, either legislative, executive
or judicial, attaches, for the time being, to be exercised for the public
benefit. Unless the powers conferred are of this nature, the individual is not
a public officer.16
Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions
that can be described as legislative or judicial. May the functions of the
NCC then be described as executive?
We hold that the NCC performs executive functions. The executive power
"is generally defined as the power to enforce and administer the laws. It is
the power of carrying the laws into practical operation and enforcing their
due observance."17 The executive function, therefore, concerns the
implementation of the policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and
Technology, Arts, Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the State. The State
shall conserve, promote, and popularize the nation’s historical and cultural
heritage and resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the
Committee for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in
1998, and the centennial presents an important vehicle for fostering
nationhood and a strong sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and
thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be insured only
through long-range planning and continuous developmental programming;
Whereas, the active participation of the private sector in all areas of special
expertise and capability, particularly in communication and information
dissemination, is necessary for long-range planning and continuous
developmental programming;
Whereas, there is a need to create a body which shall initiate and undertake
the primary task of harnessing the multisectoral components from the
business, cultural, and business sectors to serve as effective instruments
from the launching and overseeing of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the "need to strengthen the said Committee to
ensure a more coordinated and synchronized celebrations of the Philippine
Centennial and wider participation from the government and non-
government or private organizations." It also referred to the "need to
rationalize the relevance of historical links with other countries."

The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was vested with
the following functions:
(a) To undertake the overall study, conceptualization, formulation and
implementation of programs and projects on the utilization of culture, arts,
literature and media as vehicles for history, economic endeavors, and
reinvigorating the spirit of national unity and sense of accomplishment in
every Filipino in the context of the Centennial Celebrations. In this regard,
it shall include a Philippine National Exposition ’98 within Metro Manila,
the original eight provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to awareness
and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of
all information about the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the implementation
of the programs and projects;
(e) To prioritize the refurbishment of historical sites and structures
nationwide. In this regard, the Commission shall formulate schemes (e.g.
lease-maintained-and-transfer, build-operate-transfer, and similar
arrangements) to ensure the preservation and maintenance of the historical
sites and structures;
(f) To call upon any government agency or instrumentality and corporation,
and to invite private individuals and organizations to assist it in the
performance of its tasks; and,
(g) Submit regular reports to the President on the plans, programs, projects,
activities as well as the status of the preparations for the Celebration.18
It bears noting the President, upon whom the executive power is vested,19
created the NCC by executive order. Book III (Office of the President),
Chapter 2 (Ordinance Power), Section 2 describes the nature of executive
orders:
SEC. 2. Executive Orders. – Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
[Underscoring ours.]
Furthermore, the NCC was not without a role in the country’s economic
development, especially in Central Luzon. Petitioner himself admitted as
much in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, don’t you
agree that the task of the centennial commission was also to focus on the
long term over all socio economic development of the zone and Central
Luzon by attracting investors in the area because of the eruption of Mt.
Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted
to touch on by lack of material time I could not but that is a very important
point. When I was made Chairman I wanted the Expo to be in Batangas
because I am a Batangeño but President Ramos said Mr. Vice President the
Central Luzon is suffering, suffering because of the eruption of Mt.
Pinatubo let us try to catalize [sic] economic recovery in that area by
putting this Expo in Clark Field and so it was done I agreed and Your
Honor if I may also mention we wanted to generate employment aside from
attracting business investments and employment. And the Estrada
administration decided to junk this project there 48, 40 thousand people
who lost job, they were employed in Expo. And our target was to provide
75 thousand jobs. It would have really calibrated, accelerated the
development of Central Luzon. Now, I think they are going back to that
because they had the airport and there are plan to revive the Expo site into
key park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and
full employment is a fundamental state policy.20
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that the
holding by a municipality of a town fiesta is a proprietary rather than a
governmental function. Petitioner argues that the "holding of a nationwide
celebration which marked the nation’s 100th birthday may be likened to a
national fiesta which involved only the exercise of the national
government’s proprietary function."22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised
Administrative Code] simply gives authority to the municipality to
[celebrate] a yearly fiesta but it does not impose upon it a duty to observe
one. Holding a fiesta even if the purpose is to commemorate a religious or
historical event of the town is in essence an act for the special benefit of the
20
community and not for the general welfare of the public performed in
pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide
entertainment to the town inhabitants is not a conclusive test. For instance,
the maintenance of parks is not a source of income for the town,
nonetheless it is [a] private undertaking as distinguished from the
maintenance of public schools, jails, and the like which are for public
service.
As stated earlier, there can be no hard and fast rule for purposes of
determining the true nature of an undertaking or function of a municipality;
the surrounding circumstances of a particular case are to be considered and
will be decisive. The basic element, however beneficial to the public the
undertaking may be, is that it is government in essence, otherwise, the
function becomes private or propriety in character. Easily, no governmental
or public policy of the state is involved in the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine.
Note that the Court cautioned that "there can be no hard and fast rule for
purposes of determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive." Thus, in footnote 15 of Torio, the Court,
citing an American case, illustrated how the "surrounding circumstances
plus the political, social, and cultural backgrounds" could produce a
conclusion different from that in Torio:
We came across an interesting case which shows that surrounding
circumstances plus the political, social, and cultural backgrounds may have
a decisive bearing on this question. The case of Pope v. City of New Haven,
et al. was an action to recover damages for personal injuries caused during
a Fourth of July fireworks display resulting in the death of a bystander
alleged to have been caused by defendants’ negligence. The defendants
demurred to the complaint invoking the defense that the city was engaged
in the performance of a public governmental duty from which it received no
pecuniary benefit and for negligence in the performance of which no
statutory liability is imposed. This demurrer was sustained by the Superior
Court of New Haven Country. Plaintiff sought to amend his complaint to
allege that the celebration was for the corporate advantage of the city. This
was denied. In affirming the order, the Supreme Court of Errors of
Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent
performance of purely public governmental duties, unless made liable by
statute….
A municipality corporation, which under permissive authority of its charter
or of statute, conducted a public Fourth of July celebration, including a
display of fireworks, and sent up a bomb intended to explode in the air, but
which failed to explode until it reached the ground, and then killed a
spectator, was engaged in the performance of a governmental duty. (99
A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this]
excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is made a public
holiday, called Independence Day, by our statutes. All or nearly all of the
other states have similar statutes. While there is no United States statute
making a similar provision, the different departments of the government
recognize, and have recognized since the government was established, July
4th as a national holiday. Throughout the country it has been recognized
and celebrated as such. These celebrations, calculated to entertain and
instruct the people generally and to arouse and stimulate patriotic
sentiments and love of country, frequently take the form of literary
exercises consisting of patriotic speeches and the reading of the
Constitution, accompanied by a musical program including patriotic air
sometimes preceded by the firing of cannon and followed by fireworks.
That such celebrations are of advantage to the general public and their
promotion a proper subject of legislation can hardly be questioned. x x x"
Surely, a town fiesta cannot compare to the National Centennial
Celebrations. The Centennial Celebrations was meant to commemorate the
birth of our nation after centuries of struggle against our former colonial
master, to memorialize the liberation of our people from oppression by a
foreign power. 1998 marked 100 years of independence and sovereignty as
one united nation. The Celebrations was an occasion to reflect upon our
history and reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle
for fostering nationhood and a strong sense of Filipino identity," an
opportunity to "showcase Filipino heritage and thereby strengthen Filipino
values." The significance of the Celebrations could not have been lost on
petitioner, who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we
wanted to rekindle the love for freedom, love for country, that is the over-

all goal that has to make everybody feel proud that he is a Filipino, proud of
our history, proud of what our forefather did in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public
office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his
tenure is of little consequence. A salary is a usual but not a necessary
criterion for determining the nature of the position. It is not conclusive. The
salary is a mere incident and forms no part of the office. Where a salary or
fees is annexed, the office is provided for it is a naked or honorary office,
and is supposed to be accepted merely for the public good.23 Hence, the
office of petitioner as NCC Chair may be characterized as an honorary
office, as opposed to a lucrative office or an office of profit, i.e., one to
which salary, compensation or fees are attached.24 But it is a public office,
nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an
"ad-hoc body" make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and
certainly a position which is merely temporary and local cannot ordinarily
be considered an office. "But," says Chief Justice Marshall, "if a duty be a
continuing one, which is defined by rules prescribed by the government and
not by contract, which an individual is appointed by government to
perform, who enters on the duties pertaining to his station without any
contract defining them, if those duties continue though the person be
changed, -- it seems very difficult to distinguish such a charge or
employment from an office of the person who performs the duties from an
officer."
At the same time, however, this element of continuance can not be
considered as indispensable, for, if the other elements are present "it can
make no difference," says Pearson, C.J., "whether there be but one act or a
series of acts to be done, -- whether the office expires as soon as the one
act is done, or is to be held for years or during good behavior."25
Our conclusion that petitioner is a public officer finds support in In Re
Corliss.26 There the Supreme Court of Rhode Island ruled that the office of
Commissioner of the United States Centennial Commission is an "office of
trust" as to disqualify its holder as elector of the United States President and
Vice-President. (Under Article II of the United States Constitution, a person
holding an office of trust or profit under the United States is disqualified
from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial
Commission holds an office of trust under the United States, and that he is
therefore disqualified for the office of elector of President and Vice-
President of the United States.
The commission was created under a statute of the United States approved
March 3, 1871. That statute provides for the holding of an exhibition of
American and foreign arts, products, and manufactures, "under the auspices
of the government of the United States," and for the constitution of a
commission, to consist of more than one delegate from each State and from
each Territory of the United States, "whose functions shall continue until
close of the exhibition," and "whose duty it shall be to prepare and
superintend the execution of the plan for holding the exhibition." Under the
statute the commissioners are appointed by the President of the United
States, on the nomination of the governor of the States and Territories
respectively. Various duties were imposed upon the commission, and under
the statute provision was to be made for it to have exclusive control of the
exhibit before the President should announce, by proclamation, the date and
place of opening and holding the exhibition. By an act of Congress
approved June 1st, 1872, the duties and functions of the commission were
further increased and defined. That act created a corporation, called "The
Centennial Board of Finance," to cooperate with the commission and to
raise and disburse the funds. It was to be organized under the direction of
the commission. The seventh section of the act provides "that the grounds
for exhibition shall be prepared and the buildings erected by the
corporation, in accordance with plans which shall have been adopted by the
United States Centennial Commission; and the rules and regulations of said
corporation, governing rates for entrance and admission fees, or otherwise
affecting the rights, privileges, or interests of the exhibitors, or of the
public, shall be fixed and established by the United States Centennial
Commission; and no grant conferring rights or privileges of any description
connected with said grounds or buildings, or relating to said exhibition or
celebration, shall be made without the consent of the United States
Centennial Commission, and said commission shall have power to control,
change, or revoke all such grants, and shall appoint all judges and
examiners and award all premiums." The tenth section of the act provides
that "it shall be the duty of the United States Centennial Commission to
supervise the closing up of the affairs of said corporation, to audit its
accounts, and submit in a report to the President of the United States the
financial results of the centennial exhibition."
21
It is apparent from this statement, which is but partial, that the duties and
functions of the commission were various, delicate, and important; that they
could be successfully performed only by men of large experience and
knowledge of affairs; and that they were not merely subordinate and
provisional, but in the highest degree authoritative, discretionary, and final
in their character. We think that persons performing such duties and
exercising such functions, in pursuance of statutory direction and authority,
are not to be regarded as mere employees, agents, or committee men, but
that they are, properly speaking, officers, and that the places which they
hold are offices. It appears, moreover, that they were originally regarded as
officers by Congress; for the act under which they were appointed declares,
section 7, that "no compensation for services shall be paid to the
commissioners or other officers, provided for in this act, from the treasury
of the United States." The only other officers provided for were the
"alternates" appointed to serve as commissioners when the commissioners
were unable to attend.
Having arrived at the conclusion that the NCC performs executive
functions and is, therefore, a public office, we need no longer delve at
length on the issue of whether Expocorp is a private or a public corporation.
Even assuming that Expocorp is a private corporation, petitioner’s position
as Chief Executive Officer (CEO) of Expocorp arose from his
Chairmanship of the NCC. Consequently, his acts or omissions as CEO of
Expocorp must be viewed in the light of his powers and functions as NCC
Chair.27
Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public
officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt
Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said
law, which reads:
SEC. 3. Corrupt practices of public officers. – In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
A "public officer," under R.A. No. 3019, is defined by Section 2 of said law
as follows:
SEC. 2. Definition of terms. – As used in this Act, the term –
xxx
(b) "Public officer" includes elective and appointive officials and
employees, permanent or temporary, whether in the classified or
unclassified or exemption service receiving compensation, even nominal,
from the government as defined in the preceding paragraph. [Emphasis
supplied.]
It is clear from Section 2 (b), above, that the definition of a "public officer"
is expressly limited to the application of R.A. No. 3019. Said definition
does not apply for purposes of determining the Ombudsman’s jurisdiction,
as defined by the Constitution and the Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the
Anti-Graft and Corrupt Practices Act involves the appreciation of evidence
and interpretation of law, matters that are best resolved at trial.
To illustrate, the use of the term "includes" in Section 2 (b) indicates that
the definition is not restrictive.28 The Anti-Graft and Corrupt Practices Act
is just one of several laws that define "public officers." Article 203 of the
Revised Penal Code, for example, provides that a public officer is:
x x x any person who, by direct provision of law, popular election or
appointment by competent authority, takes part in the performance of
public functions in the Government of Philippines, or performs in said
Government or in any of its branches public duties as an employee, agent or
subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of
1987,29 on the other hand, states:
Officer – as distinguished from "clerk" or "employee", refers to a person
whose duties not being of a clerical or manual nature, involves the exercise
of discretion in the performance of the functions of the government. When
used with reference to a person having authority to do a particular act or

perform a particular person in the exercise of governmental power,
"officer" includes any government employee, agent or body having
authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The
Code of Conduct and Ethical Standards for Public Officials and
Employees), one may be considered a "public official" whether or not one
receives compensation, thus:
"Public Officials" include elective and appointive officials and employees,
permanent or temporary, whether in the career or non-career service
including military and police personnel, whether or not they receive
compensation, regardless of amount.
Which of these definitions should apply, if at all?
Assuming that the definition of public officer in R.A. No. 3019 is
exclusive, the term "compensation," which is not defined by said law, has
many meanings.
Under particular circumstances, "compensation" has been held to include
allowance for personal expenses, commissions, expenses, fees, an
honorarium, mileage or traveling expenses, payments for services,
restitution or a balancing of accounts, salary, and wages.30
How then is "compensation," as the term is used in Section 2 (b) of R.A.
No. 3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that
petitioner did not receive any salary, the records do not reveal if he received
any allowance, fee, honorarium, or some other form of compensation.
Notably, under the by-laws of Expocorp, the CEO is entitled to per diems
and compensation.31 Would such fact bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest
we preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction
issued in the Court’s Resolution dated September 24, 2001 is hereby
LIFTED. SO ORDERED.
FIRST DIVISION
G.R. Nos. 140199-200 February 6, 2002
FELICITO S. MACALINO, petitioner,
vs.
SANDIGANBAYAN and OFFICE OF THE OMBUDSMAN,
respondents.
DECISION
PARDO, J.:
The case is a petition for certiorari1 assailing the jurisdiction of the
Ombudsman and the Sandiganbayan to take cognizance of two criminal
cases2 against petitioner and his wife Liwayway S. Tan, contending that he
is not a public officer within the jurisdiction of the Sandiganbayan.3
On September 16, 1992, the Special Prosecutor, Office of the Ombudsman,
with the approval of the Ombudsman, filed with the Sandiganbayan two
informations against petitioner and Liwayway S. Tan charging them with
estafa through falsification of official documents (Criminal Case No.
18022) and frustrated estafa through falsification of mercantile documents
(Criminal Case No. 19268), as follows:
"CRIMINAL CASE NO. 18022
"That on or about the 15th day of March, 1989 and for sometime prior or
subsequent thereto, in the Municipality of Mandaluyong, Metro Manila,
and within the jurisdiction of this Honorable Court, the above-named
accused, FELICITO S. MACALINO, being then the Assistant Manager of
the Treasury Division and the Head of the Loans Administration &
Insurance Section of the Philippine National Construction Corporation
(PNCC), a government-controlled corporation with offices at EDSA corner
Reliance St., Mandaluyong, and hence, a public officer, while in the
performance of his official functions, taking advantage of his position,
committing the offense in relation to his office and conspiring and
confederating with his spouse LIWAYWAY S. TAN, being then the owner
of Wacker Marketing, did then and there willfully, unlawfully, feloniously
and by means of deceit defraud the Philippine National Construction
22
Corporation in the following manner: in preparing the application with the
Philippine National Bank, Buendia Branch for the issuance of a demand
draft in the amount of NINE HUNDRED EIGHTY THREE THOUSAND
SIX HUNDRED EIGHTY-TWO & 11/100 PESOS (₱983,682.11),
Philippine Currency, in favor of Bankers Trust Company, accused
FELICITO S. MACALINO superimposed the name "Wacker Marketing"
as payee to make it appear that the demand draft was payable to it, when in
truth and in fact and as the accused very well knew, it was the Bankers
Trust Company which was the real payee as indicated in Check Voucher
No. 3-800-89 and PNB Check No. B236746 supporting said application for
demand draft; subsequently accused FELICITO S. MACALINO likewise
inserted into the letter of PNCC to PNB Buendia Branch the words
"payable to Wacker Marketing" to make it appear that the demand drafts to
be picked up by the designated messenger were payable to Wacker
Marketing when in truth and in fact the real payee was Bankers Trust
Company; and as a result of such acts of falsification, PNB Buendia issued
19 demand drafts for ₱50,000.00 each and another demand draft for
₱33,682.11, all, payable to Wacker Marketing, which were subsequently
delivered to accused Felicitor S. Macalino and which accused
LIWAYWAY S. TAN thereafter exchanged with PNB Balanga Branch for
19 checks at ₱50,000.00 each and another for ₱33,682.11 and all of which
she later deposited into Account No. 0042-0282-6 of Wacker Marketing at
Philtrust Cubao, thereby causing pecuniary damage and prejudice to
Philippine National Construction Corporation in the amount of
₱983,682.11.
"CONTRARY TO LAW.
"Manila, Philippines, August 24, 1992."4
"CRIMINAL CASE NO. 19268
"That on or about the 4th day of April, 1990, and subsequently thereafter,
in the Municipality of Mandaluyong, Metro Manila, and within the
jurisdiction of this Honorable Court, the above-named accused, FELICITO
S. MACALINO, being then the Assistant Manager of the Treasury Division
and the Head of the Loans Administration and Insurance Section of the
Philippine National Construction Corporation, a government-controlled
corporation with offices at EDSA corner Reliance St., Mandaluyong, Metro
Manila, and hence, a public officer, while in the performance of his official
functions, taking advantage of his position, committing the offense in
relation to his office, and conspiring and confederating with his spouse
LIWAYWAY S. TAN, being then the owner of Wacker Marketing, did
then and there willfully, unlawfully, feloniously and by means of deceit
defraud the Philippine National Construction Corporation in the following
manner: after receiving Check Voucher No. 04-422-90 covering the partial
payment by PNCC of the sinking fund to International Corporate Bank
(Interbank) as well as Check No. 552312 for TWO MILLION TWO
HUNDRED FIFTY THOUSAND PESOS (₱2,250,000.00), Philippine
Currency, payable to Interbank for the purpose, accused FELICITO S.
MACALINO falsified PNB Check No. 552312 by altering the payee
indicated therein to make it appear that the aforesaid check was payable to
Wacker Marketing instead of Interbank and further falsified the schedule of
check disbursements sent to PNB Buendia by making it appear therein that
the payee of Check No. 552312 was Wacker Marketing when in truth and
in fact and as the accused very well knew, it was Interbank which was the
real payee; accused LIWAYWAY S. TAN thereafter deposited Check No.
552312 into Account No. 0042-0282-6 of Wacker Marketing at Philtrust
Cubao and Wacker Marketing subsequently issued Philtrust Check No.
148039 for ₱100,000.00 in favor of accused FELICITO S. MACALINO;
which acts of falsification performed by the accused would have defrauded
the Philippine National Construction Corporation of ₱2,250,000.00 had not
PNB Buendia ordered the dishonor of Check No. 552312 after noting the
alteration/erasures thereon, thereby failing to produce the felony by reason
of causes independent of the will of the accused.
"CONTRARY TO LAW.
"Manila, Philippines, May 28, 1993."5
Upon arraignment on November 9, 1992, petitioner pleaded not guilty to
the charges. Hence, trial proceeded.6
However, during the initial presentation of evidence for the defense,
petitioner moved for leave to file a motion to dismiss on the ground that the
Sandiganbayan has no jurisdiction over him since he is not a public officer
because the Philippine National Construction Corporation (PNCC),
formerly the Construction and Development Corporation of the Philippines
(CDCP), is not a government-owned or controlled corporation with original
charter.7 The People of the Philippines opposed the motion.8
 23

On August 5, 1999, the Sandiganbayan promulgated a resolution denying a public officer who has been charged with a crime within the jurisdiction
petitioner’s motion to dismiss for lack of merit.9 of Sandiganbayan.11

Hence, this petition.10
The Issue
The sole issue raised is whether petitioner, an employee of the PNCC, is a
public officer within the coverage of R. A. No. 3019, as amended.
The Court’s Ruling
Petitioner contends that an employee of the PNCC is not a public officer as
defined under Republic Act No. 3019, as follows:
"Sec. 2. (a) xxx xxx xxx.
"(b) Public officer includes elective and appointive officials and employees,
permanent or temporary, whether in the unclassified or classified or
exempted service receiving compensation, even nominal, from the
government as defined in the preceding paragraph."
We agree.
To resolve the issue, we resort to the 1987 Constitution. Article XI, on the
Accountability of Public Officers, provides:
The cases12 cited by respondent People of the Philippines are inapplicable
because they were decided under the provisions of the 1973 Constitution
which included as public officers, officials and employees of corporations
owned and controlled by the government though organized and existing
under the general corporation law.1âwphi1 The 1987 Constitution excluded
such corporations.
The crimes charged against petitioner were committed in 1989 and 1990.13
The criminal actions were instituted in 1992. It is well-settled that "the
jurisdiction of a court to try a criminal case is determined by the law in
force at the institution of the action."14
The Fallo
IN VIEW WHEREOF, the Court GRANTS the petition. The Court SETS
ASIDE the order dated July 29, 1999 of the Sandiganbayan in Criminal
Cases Nos. 18022 and 19268 and ORDERS the DISMISSAL of the two (2)
cases against petitioner and his wife.
No costs.
SO ORDERED.

"Section 12. The Ombudsman and his deputies, as protectors of the people,
shall act promptly on complaints filed in any form or manner against public
officials or employees of the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations x x x."

"Section 13. The Office of the Ombudsman shall have the following
powers, functions and duties:

"1. Investigate on its own, or on complaint by any person, any act or

omission of any public official or employee, office or agency, when such
act or omission appears to be illegal, unjust, improper and inefficient. x x x

"2. Direct, upon complaint or at its instance, any public official or

employee of the government, or any subdivision, agency or instrumentality
thereof, as well as of any government-owned or controlled corporations
with original charters, to perform and expedite any act or duty required by
law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties." (underscoring supplied)

Further, Article IX-B, Section 2 (1) of the 1987 Constitution provides:

"The civil service embraces all branches, subdivisions, instrumentalities,

and agencies of the Government, including government-owned and
controlled corporations with original charters." (underscoring supplied)

Republic Act No. 6770 provides:

"Section 15. Powers, Functions and Duties -The Office of the Ombudsman
shall have the following powers, functions and duties:

"1. Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or inefficient. x
x x.

"2. Direct, upon complaint or at its own instance, any officer or employee
of the Government, or of any subdivision, agency or instrumentality
thereof, as well as any government-owned or controlled corporations with
original charters, to perform and expedite any act or duty required by law,
or to stop, prevent, and correct any abuse or impropriety in the performance
of duties."

Inasmuch as the PNCC has no original charter as it was incorporated under

the general law on corporations, it follows inevitably that petitioner is not a
public officer within the coverage of R. A. No. 3019, as amended. Thus, the
Sandiganbayan has no jurisdiction over him. The only instance when the
Sandiganbayan has jurisdiction over a private individual is when the
complaint charges him either as a co-principal, accomplice or accessory of

THIRD DIVISION
G.R. No. 178454 March 28, 2011
FILIPINA SAMSON, Petitioner,
vs.
JULIA A. RESTRIVERA, Respondent.
DECISION
VILLARAMA, JR., J.:
Petitioner Filipina Samson appeals the Decision1 dated October 31, 2006 of
the Court of Appeals (CA) in CA-G.R. SP No. 83422 and its Resolution 2
dated June 8, 2007, denying her motion for reconsideration. The CA
affirmed the Ombudsman in finding petitioner guilty of violating Section
4(b)3 of Republic Act (R.A.) No. 6713, otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees.
The facts are as follows:
Petitioner is a government employee, being a department head of the
Population Commission with office at the Provincial Capitol, Trece
Martirez City, Cavite.
Sometime in March 2001, petitioner agreed to help her friend, respondent
Julia A. Restrivera, to have the latter’s land located in Carmona, Cavite,
registered under the Torrens System. Petitioner said that the expenses
would reach ₱150,000 and accepted ₱50,000 from respondent to cover the
initial expenses for the titling of respondent’s land. However, petitioner
failed to accomplish her task because it was found out that the land is
government property. When petitioner failed to return the ₱50,000,
respondent sued her for estafa. Respondent also filed an administrative
complaint for grave misconduct or conduct unbecoming a public officer
against petitioner before the Office of the Ombudsman.
The Ombudsman found petitioner guilty of violating Section 4(b) of R.A.
No. 6713 and suspended her from office for six months without pay. The
Ombudsman ruled that petitioner failed to abide by the standard set in
Section 4(b) of R.A. No. 6713 and deprived the government of the benefit
of committed service when she embarked on her private interest to help
respondent secure a certificate of title over the latter’s land.4
Upon motion for reconsideration, the Ombudsman, in an Order5 dated
March 15, 2004, reduced the penalty to three months suspension without
pay. According to the Ombudsman, petitioner’s acceptance of respondent’s
payment created a perception that petitioner is a fixer. Her act fell short of
the standard of personal conduct required by Section 4(b) of R.A. No. 6713
that public officials shall endeavor to discourage wrong perceptions of their
roles as dispensers or peddlers of undue patronage. The Ombudsman held:
x x x [petitioner] admitted x x x that she indeed received the amount of
₱50,000.00 from the [respondent] and even contracted Engr. Liberato
Patromo, alleged Licensed Geodetic Engineer to do the surveys.
While it may be true that [petitioner] did not actually deal with the other
government agencies for the processing of the titles of the subject property,
we believe, however, that her mere act in accepting the money from the
[respondent] with the assurance that she would work for the issuance of the
title is already enough to create a perception that she is a fixer. Section 4(b)
of [R.A.] No. 6713 mandates that public officials and employees shall
endeavor to discourage wrong perception of their roles as dispenser or
peddler of undue patronage.
xxxx
x x x [petitioner’s] act to x x x restore the amount of [₱50,000] was to
avoid possible sanctions.
x x x [d]uring the conciliation proceedings held on 19 October 2002 at the
barangay level, it was agreed upon by both parties that [petitioner] be given
until 28 February 2003 within which to pay the amount of ₱50,000.00
including interest. If it was true that [petitioner] had available money to pay
and had been persistent in returning the amount of [₱50,000.00] to the
[respondent], she would have easily given the same right at that moment
24
(on 19 October 2002) in the presence of the Barangay Officials. 6 x x x.
(Stress in the original.)
The CA on appeal affirmed the Ombudsman’s Order dated March 19, 2004.
The CA ruled that contrary to petitioner’s contentions, the Ombudsman has
jurisdiction even if the act complained of is a private matter. The CA also
ruled that petitioner violated the norms of conduct required of her as a
public officer when she demanded and received the amount of ₱50,000 on
the representation that she can secure a title to respondent’s property and
for failing to return the amount. The CA stressed that Section 4(b) of R.A.
No. 6713 requires petitioner to perform and discharge her duties with the
highest degree of excellence, professionalism, intelligence and skill, and to
endeavor to discourage wrong perceptions of her role as a dispenser and
peddler of undue patronage.7
Hence, this petition which raises the following issues:
1. Does the Ombudsman have jurisdiction over a case involving a private
dealing by a government employee or where the act complained of is not
related to the performance of official duty?
2. Did the CA commit grave abuse of discretion in finding petitioner
administratively liable despite the dismissal of the estafa case?
3. Did the CA commit grave abuse of discretion in not imposing a lower
penalty in view of mitigating circumstances?8
Petitioner insists that where the act complained of is not related to the
performance of official duty, the Ombudsman has no jurisdiction. Petitioner
also imputes grave abuse of discretion on the part of the CA for holding her
administratively liable. She points out that the estafa case was dismissed
upon a finding that she was not guilty of fraud or deceit, hence misconduct
cannot be attributed to her. And even assuming that she is guilty of
misconduct, she is entitled to the benefit of mitigating circumstances such
as the fact that this is the first charge against her in her long years of public
service.9
Respondent counters that the issues raised in the instant petition are the
same issues that the CA correctly resolved.10 She also alleges that petitioner
failed to observe the mandate that public office is a public trust when she
meddled in an affair that belongs to another agency and received an amount
for undelivered work.11
We affirm the CA and Ombudsman that petitioner is administratively
liable. We hasten to add, however, that petitioner is guilty of conduct
unbecoming a public officer.
On the first issue, we agree with the CA that the Ombudsman has
jurisdiction over respondent’s complaint against petitioner although the act
complained of involves a private deal between them. 12 Section 13(1),13
Article XI of the 1987 Constitution states that the Ombudsman can
investigate on its own or on complaint by any person any act or omission of
any public official or employee when such act or omission appears to be
illegal, unjust, or improper. Under Section 16 14 of R.A. No. 6770, otherwise
known as the Ombudsman Act of 1989, the jurisdiction of the Ombudsman
encompasses all kinds of malfeasance, misfeasance, and nonfeasance
committed by any public officer or employee during his/her tenure. Section
1915 of R.A. No. 6770 also states that the Ombudsman shall act on all
complaints relating, but not limited, to acts or omissions which are unfair or
irregular. Thus, even if the complaint concerns an act of the public official
or employee which is not service-connected, the case is within the
jurisdiction of the Ombudsman. The law does not qualify the nature of the
illegal act or omission of the public official or employee that the
Ombudsman may investigate. It does not require that the act or omission be
related to or be connected with or arise from the performance of official
duty. Since the law does not distinguish, neither should we.16
On the second issue, it is wrong for petitioner to say that since the estafa
case against her was dismissed, she cannot be found administratively liable.
It is settled that administrative cases may proceed independently of criminal
proceedings, and may continue despite the dismissal of the criminal
charges.17
For proper consideration instead is petitioner’s liability under Sec. 4(A)(b)
of R.A. No. 6713.
We quote the full text of Section 4 of R.A. No. 6713:

SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every
public official and employee shall observe the following as standards of
personal conduct in the discharge and execution of official duties:
(a) Commitment to public interest. - Public officials and employees shall
always uphold the public interest over and above personal interest. All
government resources and powers of their respective offices must be
employed and used efficiently, effectively, honestly and economically,
particularly to avoid wastage in public funds and revenues.
(b) Professionalism. - Public officials and employees shall perform and
discharge their duties with the highest degree of excellence,
professionalism, intelligence and skill. They shall enter public service with
utmost devotion and dedication to duty. They shall endeavor to discourage
wrong perceptions of their roles as dispensers or peddlers of undue
patronage.
(c) Justness and sincerity. - Public officials and employees shall remain
true to the people at all times. They must act with justness and sincerity and
shall not discriminate against anyone, especially the poor and the
underprivileged. They shall at all times respect the rights of others, and
shall refrain from doing acts contrary to law, good morals, good customs,
public policy, public order, public safety and public interest. They shall not
dispense or extend undue favors on account of their office to their relatives
whether by consanguinity or affinity except with respect to appointments of
such relatives to positions considered strictly confidential or as members of
their personal staff whose terms are coterminous with theirs.
(d) Political neutrality. - Public officials and employees shall provide
service to everyone without unfair discrimination and regardless of party
affiliation or preference.
(e) Responsiveness to the public. - Public officials and employees shall
extend prompt, courteous, and adequate service to the public. Unless
otherwise provided by law or when required by the public interest, public
officials and employees shall provide information on their policies and
procedures in clear and understandable language, ensure openness of
information, public consultations and hearings whenever appropriate,
encourage suggestions, simplify and systematize policy, rules and
procedures, avoid red tape and develop an understanding and appreciation
of the socioeconomic conditions prevailing in the country, especially in the
depressed rural and urban areas.
(f) Nationalism and patriotism. - Public officials and employees shall at all
times be loyal to the Republic and to the Filipino people, promote the use
of locally-produced goods, resources and technology and encourage
appreciation and pride of country and people. They shall endeavor to
maintain and defend Philippine sovereignty against foreign intrusion.
(g) Commitment to democracy. - Public officials and employees shall
commit themselves to the democratic way of life and values, maintain the
principle of public accountability, and manifest by deed the supremacy of
civilian authority over the military. They shall at all times uphold the
Constitution and put loyalty to country above loyalty to persons or party.
(h) Simple living. - Public officials and employees and their families shall
lead modest lives appropriate to their positions and income. They shall not
indulge in extravagant or ostentatious display of wealth in any form.
(B) The Civil Service Commission shall adopt positive measures to
promote (1) observance of these standards including the dissemination of
information programs and workshops authorizing merit increases beyond
regular progression steps, to a limited number of employees recognized by
their office colleagues to be outstanding in their observance of ethical
standards; and (2) continuing research and experimentation on measures
which provide positive motivation to public officials and employees in
raising the general level of observance of these standards.
Both the Ombudsman and CA found the petitioner administratively liable
for violating Section 4(A)(b) on professionalism. "Professionalism" is
defined as the conduct, aims, or qualities that characterize or mark a
profession. A professional refers to a person who engages in an activity
with great competence. Indeed, to call a person a professional is to describe
him as competent, efficient, experienced, proficient or polished. 18 In the
context of Section 4 (A)(b) of R.A. No. 6713, the observance of
professionalism also means upholding the integrity of public office by
endeavoring "to discourage wrong perception of their roles as dispensers or
peddlers of undue patronage." Thus, a public official or employee should
avoid any appearance of impropriety affecting the integrity of government
services. However, it should be noted that Section 4(A) enumerates the
25
standards of personal conduct for public officers with reference to
"execution of official duties."
In the case at bar, the Ombudsman concluded that petitioner failed to carry
out the standard of professionalism by devoting herself on her personal
interest to the detriment of her solemn public duty. The Ombudsman said
that petitioner’s act deprived the government of her committed service
because the generation of a certificate of title was not within her line of
public service. In denying petitioner’s motion for reconsideration, the
Ombudsman said that it would have been sufficient if petitioner just
referred the respondent to the persons/officials incharge of the processing
of the documents for the issuance of a certificate of title. While it may be
true that she did not actually deal with the other government agencies for
the processing of the titles of the subject property, petitioner’s act of
accepting the money from respondent with the assurance that she would
work for the issuance of the title is already enough to create a perception
that she is a fixer.
On its part, the CA rejected petitioner’s argument that an isolated act is
insufficient to create those "wrong perceptions" or the "impression of
influence peddling." It held that the law enjoins public officers, at all times
to respect the rights of others and refrain from doing acts contrary to law,
good customs, public order, public policy, public safety and public interest.
Thus, it is not the plurality of the acts that is being punished but the
commission of the act itself.
Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A.
No. 6713 as broad enough to apply even to private transactions that have no
connection to the duties of one’s office. We hold, however, that petitioner
may not be penalized for violation of Section 4 (A)(b) of R.A. No. 6713.
The reason though does not lie in the fact that the act complained of is not
at all related to petitioner’s discharge of her duties as department head of
the Population Commission.
In addition to its directive under Section 4(B), Congress authorized 19 the
Civil Service Commission (CSC) to promulgate the rules and regulations
necessary to implement R.A. No. 6713. Accordingly, the CSC issued the
Rules Implementing the Code of Conduct and Ethical Standards for Public
Officials and Employees (hereafter, Implementing Rules). Rule V of the
Implementing Rules provides for an Incentive and Rewards System for
public officials and employees who have demonstrated exemplary service
and conduct on the basis of their observance of the norms of conduct laid
down in Section 4 of R.A. No. 6713, to wit:
RULE V. INCENTIVES AND REWARDS SYSTEM
SECTION 1. Incentives and rewards shall be granted officials and
employees who have demonstrated exemplary service and conduct on the
basis of their observance of the norms of conduct laid down in Section 4 of
the Code, namely:
(a) Commitment to public interest. - x x x
(b) Professionalism. - x x x
(c) Justness and sincerity. - x x x
(d) Political neutrality. - x x x
(e) Responsiveness to the public. - x x x
(f) Nationalism and patriotism. - x x x
(g) Commitment to democracy. - x x x
(h) Simple living. - x x x
On the other hand, Rule X of the Implementing Rules enumerates grounds
for administrative disciplinary action, as follows:
RULE X. GROUNDS FOR ADMINISTRATIVE DISCIPLINARY
ACTION
SECTION 1. In addition to the grounds for administrative disciplinary
action prescribed under existing laws, the acts and omissions of any official
or employee, whether or not he holds office or employment in a casual,
temporary, hold-over, permanent or regular capacity, declared unlawful or
prohibited by the Code, shall constitute grounds for administrative

disciplinary action, and without prejudice to criminal and civil liabilities
provided herein, such as:
(a) Directly or indirectly having financial and material interest in any
transaction requiring the approval of his office. x x x.
(b) Owning, controlling, managing or accepting employment as officer,
employee, consultant, counsel, broker, agent, trustee, or nominee in any
private enterprise regulated, supervised or licensed by his office, unless
expressly allowed by law;
(c) Engaging in the private practice of his profession unless authorized by
the Constitution, law or regulation, provided that such practice will not
conflict or tend to conflict with his official functions;
(d) Recommending any person to any position in a private enterprise which
has a regular or pending official transaction with his office, unless such
recommendation or referral is mandated by (1) law, or (2) international
agreements, commitment and obligation, or as part of the functions of his
office;
xxxx
(e) Disclosing or misusing confidential or classified information officially
known to him by reason of his office and not made available to the public,
to further his private interests or give undue advantage to anyone, or to
prejudice the public interest;
(f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor,
entertainment, loan or anything of monetary value which in the course of
his official duties or in connection with any operation being regulated by,
or any transaction which may be affected by the functions of, his office. x x
x.
xxxx
(g) Obtaining or using any statement filed under the Code for any purpose
contrary to morals or public policy or any commercial purpose other than
by news and communications media for dissemination to the general
public;
(h) Unfair discrimination in rendering public service due to party affiliation
or preference;
(i) Disloyalty to the Republic of the Philippines and to the Filipino people;
(j) Failure to act promptly on letters and request within fifteen (15) days
from receipt, except as otherwise provided in these Rules;
(k) Failure to process documents and complete action on documents and
papers within a reasonable time from preparation thereof, except as
otherwise provided in these Rules;
(l) Failure to attend to anyone who wants to avail himself of the services of
the office, or to act promptly and expeditiously on public personal
transactions;
(m) Failure to file sworn statements of assets, liabilities and net worth, and
disclosure of business interests and financial connections; and
(n) Failure to resign from his position in the private business enterprise
within thirty (30) days from assumption of public office when conflict of
interest arises, and/or failure to divest himself of his shareholdings or
interests in private business enterprise within sixty (60) days from such
assumption of public office when conflict of interest arises: Provided,
however, that for those who are already in the service and a conflict of
interest arises, the official or employee must either resign or divest himself
of said interests within the periods herein-above provided, reckoned from
the date when the conflict of interest had arisen.
In Domingo v. Office of the Ombudsman,20 this Court had the occasion to
rule that failure to abide by the norms of conduct under Section 4(A)(b) of
R.A. No. 6713, in relation to its implementing rules, is not a ground for
disciplinary action, to wit:
The charge of violation of Section 4(b) of R.A. No. 6713 deserves further
comment. The provision commands that "public officials and employees
shall perform and discharge their duties with the highest degree of
26
excellence, professionalism, intelligence and skill." Said provision merely
enunciates "professionalism as an ideal norm of conduct to be observed by
public servants, in addition to commitment to public interest, justness and
sincerity, political neutrality, responsiveness to the public, nationalism and
patriotism, commitment to democracy and simple living. Following this
perspective, Rule V of the Implementing Rules of R.A. No. 6713 adopted
by the Civil Service Commission mandates the grant of incentives and
rewards to officials and employees who demonstrate exemplary service and
conduct based on their observance of the norms of conduct laid down in
Section 4. In other words, under the mandated incentives and rewards
system, officials and employees who comply with the high standard set by
law would be rewarded. Those who fail to do so cannot expect the same
favorable treatment. However, the Implementing Rules does not provide
that they will have to be sanctioned for failure to observe these norms
of conduct. Indeed, Rule X of the Implementing Rules affirms as
grounds for administrative disciplinary action only acts "declared
unlawful or prohibited by the Code." Rule X specifically mentions at
least twenty three (23) acts or omissions as grounds for administrative
disciplinary action. Failure to abide by the norms of conduct under
Section 4(b) of R.A. No. 6713 is not one of them. (Emphasis supplied.)
Consequently, the Court dismissed the charge of violation of Section 4(A)
(b) of R.A. No. 6713 in that case.
We find no compelling reason to depart from our pronouncement in
Domingo. Thus, we reverse the CA and Ombudsman that petitioner is
administratively liable under Section 4(A)(b) of R.A. No. 6713. In so
ruling, we do no less and no more than apply the law and its implementing
rules issued by the CSC under the authority given to it by Congress.
Needless to stress, said rules partake the nature of a statute and are binding
as if written in the law itself. They have the force and effect of law and
enjoy the presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent court. 21
But is petitioner nonetheless guilty of grave misconduct, which is a ground
for disciplinary action under R.A. No. 6713?
We also rule in the negative.
Misconduct is a transgression of some established and definite rule of
action, more particularly, unlawful behavior or gross negligence by a public
officer. The misconduct is grave if it involves any of the additional
elements of corruption, willful intent to violate the law or to disregard
established rules, which must be proved by substantial evidence. Otherwise,
the misconduct is only simple.22 Conversely, one cannot be found guilty of
misconduct in the absence of substantial evidence. In one case, we affirmed
a finding of grave misconduct because there was substantial evidence of
voluntary disregard of established rules in the procurement of supplies as
well as of manifest intent to disregard said rules. 23 We have also ruled that
complicity in the transgression of a regulation of the Bureau of Internal
Revenue constitutes simple misconduct only as there was failure to
establish flagrancy in respondent’s act for her to be held liable of gross
misconduct.24 On the other hand, we have likewise dismissed a complaint
for knowingly rendering an unjust order, gross ignorance of the law, and
grave misconduct, since the complainant did not even indicate the
particular acts of the judge which were allegedly violative of the Code of
Judicial Conduct.25
In this case, respondent failed to prove (1) petitioner’s violation of an
established and definite rule of action or unlawful behavior or gross
negligence, and (2) any of the aggravating elements of corruption, willful
intent to violate a law or to disregard established rules on the part of
petitioner. In fact, respondent could merely point to petitioner’s alleged
failure to observe the mandate that public office is a public trust when
petitioner allegedly meddled in an affair that belongs to another agency and
received an amount for undelivered work.
True, public officers and employees must be guided by the principle
enshrined in the Constitution that public office is a public trust. However,
respondent’s allegation that petitioner meddled in an affair that belongs to
another agency is a serious but unproven accusation. Respondent did not
even say what acts of interference were done by petitioner. Neither did
respondent say in which government agency petitioner committed
interference. And causing the survey of respondent’s land can hardly be
considered as meddling in the affairs of another government agency by
petitioner who is connected with the Population Commission. It does not
show that petitioner made an illegal deal or any deal with any government
agency. Even the Ombudsman has recognized this fact. The survey shows
only that petitioner contracted a surveyor.1ihpwa1 Respondent said nothing
on the propriety or legality of what petitioner did. The survey shows that
petitioner also started to work on her task under their agreement. Thus,
 27

respondent’s allegation that petitioner received an amount for undelivered We find petitioner GUILTY of conduct unbecoming a public officer and
work is not entirely correct. Rather, petitioner failed to fully accomplish her impose upon her a FINE of ₱15,000.00 to be paid at the Office of the
task in view of the legal obstacle that the land is government property. Ombudsman within five (5) days from finality of this Decision.

However, the foregoing does not mean that petitioner is absolved of any We also ORDER petitioner to return to respondent the amount of
administrative liability. ₱50,000.00 with interest thereon at 12% per annum from March 2001 until
the said amount shall have been fully paid.
But first, we need to modify the CA finding that petitioner demanded the
amount of ₱50,000 from respondent because respondent did not even say With costs against the petitioner.SO ORDERED.
that petitioner demanded money from her.26 We find in the allegations and
counter-allegations that respondent came to petitioner’s house in Biñan,
Laguna, and asked petitioner if she can help respondent secure a title to her
land which she intends to sell. Petitioner agreed to help. When respondent
asked about the cost, petitioner said ₱150,000 and accepted ₱50,000 from
respondent to cover the initial expenses.27

We agree with the common finding of the Ombudsman and the CA that, in
the aftermath of the aborted transaction, petitioner still failed to return the
amount she accepted. As aptly stated by the Ombudsman, if petitioner was
persistent in returning the amount of ₱50,000 until the preliminary
investigation of the estafa case on September 18, 2003,28 there would have
been no need for the parties’ agreement that petitioner be given until
February 28, 2003 to pay said amount including interest. Indeed,
petitioner’s belated attempt to return the amount was intended to avoid
possible sanctions and impelled solely by the filing of the estafa case
against her.

For reneging on her promise to return aforesaid amount, petitioner is guilty

of conduct unbecoming a public officer. In Joson v. Macapagal, we have
also ruled that the respondents therein were guilty of conduct unbecoming
of government employees when they reneged on their promise to have
pertinent documents notarized and submitted to the Government Service
Insurance System after the complainant’s rights over the subject property
were transferred to the sister of one of the respondents. 29 Recently, in
Assistant Special Prosecutor III Rohermia J. Jamsani-Rodriguez v. Justices
Gregory S. Ong, et al., we said that unbecoming conduct means improper
performance and applies to a broader range of transgressions of rules not
only of social behavior but of ethical practice or logical procedure or
prescribed method.301avvphi1

This Court has too often declared that any act that falls short of the exacting
standards for public office shall not be countenanced. 31 The Constitution
categorically declares as follows:

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.32

Petitioner should have complied with her promise to return the amount to
respondent after failing to accomplish the task she had willingly accepted.
However, she waited until respondent sued her for estafa, thus reinforcing
the latter’s suspicion that petitioner misappropriated her money. Although
the element of deceit was not proven in the criminal case respondent filed
against the petitioner, it is clear that by her actuations, petitioner violated
basic social and ethical norms in her private dealings. Even if unrelated to
her duties as a public officer, petitioner’s transgression could erode the
public’s trust in government employees, moreso because she holds a high
position in the service.

As to the penalty, we reprimanded the respondents in Joson and imposed a

fine in Jamsani-Rodriguez. Under the circumstances of this case, a fine of
₱15,000 in lieu of the three months suspension is proper. In imposing said
fine, we have considered as a mitigating circumstance petitioner’s 37 years
of public service and the fact that this is the first charge against her. 33
Section 5334 of the Revised Uniform Rules on Administrative Cases in the
Civil Service provides that mitigating circumstances such as length of
service shall be considered. And since petitioner has earlier agreed to return
the amount of ₱50,000 including interest, we find it proper to order her to
comply with said agreement. Eventually, the parties may even find time to
rekindle their friendship.

WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of

the Court of Appeals and its Resolution dated June 8, 2007 in CA-G.R. SP
No. 83422, as well as the Decision dated January 6, 2004 and Order dated
March 15, 2004 of the Ombudsman in OMB-L-A-03-0552-F, and ENTER
a new judgment as follows: