JUDGES AND THE DISCIPLINARY PROCESS
A.M. No. MTJ-93-783 July 29, 1996
OFFICE OF THE COURT ADMINISTRATOR, petitioner,
vs.
JUDGE FILOMENO PASCUAL, respondent.
HERMOSISIMA, JR., J.:
Intimating as to what the ideals of a good judge should be,
Sir Francis Bacon wants judges "to remember that
their jus dicere and not jus dare, to interpret law, and not
to make law or give law." They ought to be "more revered
than plausible, and more advised than confident. Above all
things, INTEGRITY is their portion and proper virtue.1
The Constitution and the statutes, however, limit the legal
qualifications of judges to only three bare essentials
citizenship, age and experience. The virtues of probity,
honesty, temperance, impartiality and integrity, most often
used to measure an aspirant to the bench, lose their
meaning in individual perception.
While people perceive judges to be above the ordinary run
of men, they know that a perfect judge, like a perfect
priest, exists only in fantasy.
Thus, it does not come as a surprise that the integrity of
respondent judge in this administrative case stands
challenged for committing acts of extortion or bribery.
The following antecedent facts appear on record:
Sometime in February, 1993, a certain Ceferino Tigas
wrote a letter, addressed to Hon. Reynaldo Suarez of the
Office of the Court Administrator of the Supreme Court,
charging that irregularities and corruption were being
committed by the respondent Presiding Judge of the
Municipal Trial Court of Angat, Bulacan.
On March 10, 1993, the letter was referred to the National
Bureau of Investigation in order that an investigation on
the alleged illegal and corrupt practices of the respondent
may be conducted. Ordered2 to conduct a "discreet
investigation" by the then NBI Director Epimaco Velasco
were: SA Edward Villarta, team leader, SI Reynaldo Olazo,
HA Teofilo Galang, SI Florino Javier and SI Jose Icasiano.
They proceeded to Angat, Bulacan, in order to look for
Ceferino Tigas, the letter writer. Tigas, the NBI team
realized was a fictitious character. In view of their failure
to find Tigas, they proceeded to the residence of Candido
Cruz, an accused in respondent's sala.
In his affidavit3 executed on March 23, 1993 before SA
Edward Villarta, Cruz declared that he was the accused in
Criminal Case No. 2154, charged with the crime of
Frustrated Murder. Respondent judge, after conducting
the preliminary investigation of the case, decided that the
crime he committed was only physical injuries and so,
respondent judge assumed jurisdiction over the case.
Cruz believed that he was made to understand by the
respondent that, in view of his favorable action, Cruz was
to give to respondent the sum of P2,000.00. Respondent
judge is believed to be a drunkard and, in all probability,
would need money to serve his vice.
In view of this statement, the NBI agents assigned to the
case caused respondent judge to be entrapped, for which
reason, the judge was thought to have been caught en
flagrante delicto. NBI agents Villarta and Olazo filed the
following report:
On 25 March 1993, at about 4:00 in the
afternoon, CANDIDO CRUZ met with
judge PASCUAL at the Colegio de Sta.
Monica, near the Municipal Building of
Angat, Bulacan, where Subject is
attending the graduation of his daughter.
CANDIDO CRUZ told Judge PASCUAL
that he already had the P2,000.00 which
he (Judge PASCUAL) is asking him.
However, Judge PASCUAL did not
receive the money because according to
him there were plenty of people around.
He then instructed CANDIDO CRUZ to see
him (Judge PASCUAL) at his office the
following day.
At about 8:30 in the morning of the
following day (26 March 1993), CANDIDO
CRUZ proceeded to the office of Judge
PASCUAL at the Municipal Trial Court of
Angat, Bulacan, and thereat handed to
him four (4) pieces of P500.00 bills
contained in a white mailing envelope
previously marked and glazed with
fluorescent powder.
In the meantime, the Undersigned stayed
outside the court room and after about 15
minutes, CANDIDO CRUZ came out of the
room and signaled to the Undersigned
that Judge PASCUAL had already
received the marked money. The
Undersigned immediately entered the
room and informed Subject about the
entrapment. Subject denied having
received anything from CANDIDO CRUZ,
but after a thorough search, the marked
money was found inserted between the
page of a blue book on top of his table.
Subject was invited to the Office of the
NBI-NCR, Manila wherein he was
subjected to ultra violet light
examination. After finding Subject's right
hand for the presence of fluorescent
powder, he was booked, photographed
and fingerprinted in accordance with our
Standard Operating Procedure (S.O.P.)
On even date, the results of our
investigation together with the person of
Judge FILOMENO PASCUAL was referred
to the Inquest Prosecutor of the Office of
the Special Prosecutor, Ombudsman,
with the recommendation that he be
charged and prosecuted for Bribery as
defined and penalized under Article 210
of the Revised Penal Code of the
Philippines. (Rollo, pp. 47-48.)
1|Page
On May 11, 1994, by resolution of the Third Division of this
Court, this case was referred to Executive Judge Natividad
G. Dizon for investigation, report and recommendation.4
In connection with this investigation, respondent filed a
Memorandum, dated July 28, 1995, wherein respondent
presented his version of the case:
Sometime in February 1993, one Ceferino
Tigas, a fictitious person according to the
NBI, wrote a letter to Court Administrator
Ernani Paño of the Supreme Court
Administrator Reynaldo L. Suarez
endorsed the letter to the NBI Director
requesting "discreet" investigation of the
Tigas letter. An NBI tandem to Agents
Edward Villarta and Reynaldo Olazo
proceeded to Angat, Bulacan, to
investigate. Said tandem's assignment
was merely to conduct discreet
investigation supposedly, but it led to
incriminatory machinations, planting
evidence, unlawful arrest, illegal search
and seizure. They contacted Candido
Cruz who was mentioned in the letter.
They, however, discovered that Ceferino
Tigas, the alleged letter writer, was an
inexistent person, fictitious as shown by
the synopsis report of the NBI agents
(Exhibit 8). Having contacted Candido
Cruz, the NBI agents persuaded him to
participate in what they called
"entrapment operation." The NBI agents
prepared an affidavit, then a
supplementary affidavit and had them
signed by Candido Cruz. They also went
to the NBI Headquarters and had four (4)
P500 bills dusted with fluorescent powder
which they used in the "operation"
against the accused.
In the afternoon of March 25, 1993, the
NBI, along with Candido Cruz, proceeded
to the municipal building of Angat,
Bulacan, where the accused judge was
holding office. However, they learned that
the accused judge was not in his office
but was then attending the graduation
rites of his son at the nearby Colegio de
Sta. Monica, and so they decided to move
their "operation" to the school grounds.
The ceremonies had not yet begun.
Candido Cruz saw the accused in one
corner of the compound and approached
him. He tried to give the accused an
envelope allegedly containing money, but
the judge refused to accept it and angrily
drove Candido Cruz away. Rebuffed, the
NBI agents decided to reset their
"operation" the following day.
At around 9:30 in the morning of March
26, 1993, the NBI agents and Candido
Cruz arrived at the municipal building of
Angat, Bulacan. Cruz, as planned,
entered the accused judge's chambers
and placed an envelope, allegedly
containing marked money, right on his
(judge's) desk. He thought it was a
pleading for filing and he told Candido
Cruz to file it with the office of the clerk of
court at the adjacent room. Cruz replied
that it was the money the judge was
asking for. Upon hearing the reply, the
accused suddenly erupted in anger, he
grabbed the envelope on the desk and
hurled it to Cruz. The envelope fell on the
floor, the accused picked it up and
inserted it inside the pocket of Cruz's
polo shirt and drove him out of the
chamber.
Just second thereafter, agents Villarta
and Olazo entered the door of the
chamber which door was open at that
time. They introduced themselves and
told the accused that the money that Cruz
gave him was marked. Accused told them
that he did not receive or accept money
from Cruz. But they proceeded to search
the room, the table, its drawers, and
every nook and cranny of his room,
including the pockets of the accused's
pants. After scouring the place, the
agents failed to find the envelope with the
marked money. And so, one of the agents
called for Candido Cruz who was waiting
outside at a waiting shed fronting the
municipal building, and asked him were
the envelope was, Cruz came back to the
room and, together with agent Olazo,
approached the cabinet and said "heto
pala"
Then, the accused's humiliating
experience began. Thereafter, despite the
strident protestations of the accused, the
envelope, which came from the table of
the judge, pictures were taken, and the
accused was arrested by the NBI agents.5
On August 11, 1995, Executive Judge Natividad G. Dizon
submitted the following report and recommendation:
The Investigating Judge respectfully
submits her findings based on the
evidence at hand.
As against the respondent judge's
denials, the undersigned submits that the
sworn affidavits of complainants and NBI
Agents and documentary proofs attached
to the records are more convincing and
nearer to the truth. They have no motive
for fabricating this charge, except to
bring justice. Credence should be given
to the testimony of the NBI Agents
coming as it does from an unpolluted
source. These Agents had no reason to
testify falsely against the respondent
2|Page
judge. They were just doing their duty. On
the other hand, the respondent judge had
to protect himself against the testimonial
and technical/scientific evidence that he
had received the envelope and to reject
its implications of such evidence.
Furthermore, his defense that he was just
instigated to commit a crime is likewise
untenable. The principle evolved from the
cases appears to be that in a prosecution
for an offense against the public welfare,
such as accepting bribe, the defense of
entrapment cannot be successfully
interposed; . . .
One may well wonder over the manner
the envelope containing the money was
proffered to the respondent judge as he
narrated his story on how he got mad at
Candido Cruz when he proffered the said
envelope, how he threw, picked it up and
placed in the pocket of the latter and how
he drove him away. He even testified that
it was just "planted" by the NBI Agents
when the latter allegedly placed the
envelope inside a directory which was
placed on top of a cabinet.
. . . Why was he not surprised that
somebody barged into his chamber or
was he really accustomed with people
directly dealing or negotiating at his
chamber, as what Cruz did, instead of
dealing with his staff. His "angry words"
and his actuations, according to his
testimony, were not convincing at all to
show that he was that fuming mad at
Candido Cruz's offer. More so, his claim
that NBI Agents connived with Candido
Cruz just for their own personal glory was
not even persuasive. His excuse of the
presence of fluorescent powder on his
hand was flimsy and incredible.
The act of the respondent shows that he
can be influenced by monetary
considerations. This act of the
respondent of demanding and receiving
money from a party-litigant before his
court constitutes serious misconduct in
office. It is this kind of gross and
flaunting misconduct, no matter how
nominal the amount involved on the part
of those who are charged with the
responsibility of administering the law
that will surely erode the people's respect
for law and lose faith and trust in the
courts which are expected to render fair
and equal justice to all.
Such act go against Canons 2 and 3 of
the Code of Judicial Conduct which state:
A Judge should avoid impropriety and
the appearance of impropriety in all
activities and a judge should perform
official duties honestly, and with
impartiality and diligence.
With the above, the Investigating Judge
respectfully recommends that
appropriate penalty be imposed upon the
respondent.
We find that the evidence on record does not warrant
conviction.
We note that the only bases for the Report and
Recommendation submitted by Executive Judge Natividad
G. Dizon consist of: The Complaint, the Answer, the
Memorandum of the respondent, and the transcript of
stenographic notes of the hearing of the bribery case of
the respondent judge at the Sandiganbayan. The
respondent was, therefore, not afforded the right to open
trial wherein respondent can confront the witnesses
against him and present in his defense.
This lapse in due process in unfortunate. The Rules, even
in an administrative cases, demand that, if the respondent
judge should be disciplined for grave misconduct of any
graver offense, the evidence against him should be
competent and should be derived from direct
knowledge. 6 The Judiciary to which respondent belongs
demands no less. Before any of its members could be
faulted, it should be only after due investigation and after
presentation of competent evidence, especially since the
charge is penal in character. The above-quoted Report and
Recommendation of the investigating judge had fallen
short of the requirements of due process.
The evidence aforesaid admits of irreconcilable
inconsistencies in the testimonies of principal witness,
Candido Cruz, and NBI Agent SI Reynaldo Olazo on
several material points.
It will be remembered that the charge was intimated by
someone who must have had an ax to grind against the
respondent judge but who, by reason of cowardice or lack
of evidence to put up a righteous case, did not come out
in the open and instead wrote an anonymous letter. The
letter-writer, naming himself as Ceferino Tigas, did not
specify crimes committed or illegal acts perpetrated but
charged respondent with anomalies in general terms.
Respondent judge could not have been expected to make
a valid answer or to otherwise defend himself from vague
accusations.
While then NBI Director Epimaco Velasco, upon being
apprised of the Tigas letter, ordered the NBI investigating
team to make a "discreet investigation" of respondent, the
NBI team had instead caused an instigation or the
entrapment of respondent judge. Not having found letterwriter Tigas and concluding that no such person exists,
they sought out an accused before respondent's court
who could possibly be respondent judge's virtual victim.
Approached by the NBI team was Candido Cruz, a person
who had been brought before the Municipal Trial Court of
Angat, Bulacan, for preliminary investigation on the
charge of Frustrated Murder. Respondent judge gave
judgment to the effect that the crime committed by
3|Page
Candido Cruz was that of physical injuries merely. He
declared then that he had original jurisdiction to try the
case.
But, respondent's action in this regard was perpetrated
some time before Candido Cruz was "persuaded to
participate in what they (the NBI agents) called
'entrapment operation'." The opportune time to bribe the
respondent should have been before the acted in reducing
Cruz' criminal liability from Frustrated Murder to Physical
Injuries. No bribe was asked then. It was unlikely that
respondent would ask for it on the date of the entrapment
on March 26, 1993, the favorable verdict having been
rendered already.
It is significant to note that NBI Agent Olazo
admitted8 that, despite the fact that he "scoured" the table
of the respondent in search of the envelope, with marked
money in it, no envelope was found and so he had to call
Candido Cruz who was already outside so that Cruz can
locate the envelope.
In view of these antecedents, we find reason to favorably
consider the allegations of respondent judge in his
defense that, at around 9:30 o'clock in the morning of
March 26, 1993, Candido Cruz, along with the NBI agents,
went to the Municipal Building of Angat, Bulacan. Candido
Cruz, alone, went inside respondent judge's chambers,
located thereat, and placed before respondent judge an
envelope containing marked money. Respondent judge
thought that what was placed before him was pleading for
filing and so, he told Candido Cruz to file it with the Office
of the Clerk of Court, that is, in a room adjacent to his
chambers. Candido Cruz to file it with the Office of the
Clerk of Court, that is, in a room adjacent to his chambers.
Candido Cruz replied that it was the money the judge was
asking for. Upon hearing this reply, respondent judge
suddenly erupted in anger. He grabbed the envelope on
the desk and hurled it at Candido Cruz. The envelope fell
on the floor. Respondent judge then picked it up and
inserted it inside the pocket of Cruz' polo shirt and drove
him out of his chambers, introduced themselves, and told
respondent judge that the money that Cruz gave him was
marked. Respondent judge told them that he did not
receive or accept money from Candido Cruz. After
respondent judge said this, the NBI Agents nevertheless
proceeded to search the room, examined tables, drawers,
and every nook and cranny of respondent' chambers of
respondent, the NBI Agents failed to find the envelope
containing marked money allegedly given by Candido
Cruz to respondent judge.
Candido Cruz, who had gone down to the waiting shed,
was called for by one of the agents. Candido Cruz was
asked as to the whereabouts of the envelope containing
money. Candido Cruz went back to the judge's chambers
and made the motions of conducting a search. Eventually,
he went straight to the top of a cabinet and, in the manner
of a magician, produced the envelope with marked money,
saying, "heto pala".
Thereafter, photographs were taken of respondent judge
who was humiliated no end by the fact that the envelope
with marked money was placed on top of his desk with
respondent judge in front of it.
In his testimony before the Sandiganbayan, NBI Agent SI
Reynaldo Olazo stated that the marked money used in
their entrapment operation actually came from Candido
Cruz and not from the NBI,9 and he was not able to see
what actually transpired between Candido Cruz and
respondent judge inside the chambers of the judge. He
was outside the judge's chambers and entered it only after
Candido Cruz gave the signal that the money was already
delivered by him to the respondent.10 Candido Cruz, on the
other hand, testified that the marked money used in the
alleged entrapment operation was given to him by the
NBI11 and, when he went out of the judge's chambers after
giving the money, he signaled to one, Col. Javier, who was
then positioned immediately outside the chambers.12
In view of the foregoing facts, it is easy to conclude that
the acts of the NBI agents which triggered the incident
that transpired inside respondent judge's chambers
constituted instigation and not entrapment as claimed by
the prosecution. It is evident that Candido Cruz was
induced to act as he did in order to place respondent
judge in a compromising situation, a situation which was
not brought about by any request of respondent judge. It
is surprisingly strange that an accused in a case would
simply barge into the judge's chambers without rhyme or
reason, place bribe money on top of the judge's desk
without so much as explaining what the money was for.
Respondent judge's action on Candido Cruz's case which
case which favored Cruz was effected long before. We can
believe the fact that, under the circumstances, respondent
judge did react in anger and threw the envelope at the
accused Candido Cruz. The judge must have given back
the money to Candido Cruz and literally drove Cruz out of
his chambers bringing the money with him. This explains
the reason why the NBI Agents notwithstanding a
relentless search did not find the money inside the
chambers. Four (4) NBI Agents made the search and they
were unable to find the envelope with the marked money
in it. This fact NBI Agent Olazo in effect admitted because
he had to call back Candido Cruz in order to make Cruz
divulge as to where the bribe money was placed. When,
after all, Candido Cruz produced the money when he went
back to judge's chambers, it became obvious that the
money when offered to respondent judge was not received
by the latter.
The foregoing set of facts smacks of unlawful prosecution
and planting of evidence amounting to persecution. It is
reprehensible to say the least that NBI agents should
entrap the respondent judge by illegal means, besmirch
his reputation by the planting of evidence against him and
make the public the foregoing charges of bribery against
him in the face of the unjustified and illegal incriminatory
machinations perpetrated by the NBI agents in connivance
with Candido Cruz.
We, thus, hold respondent Judge Filomeno Pascual
blameless of the charge of bribery against him.
It should be noted that Candido Cruz insisted that he had
participated in the alleged entrapment operation only
because of the fact that the NBI agents made him believe
that there was an order therefor from the Supreme
Court.13 Considering that he is illiterate and is already
more than 70 years of age, it is understandable why he
4|Page
was easily persuaded by the NBI agents to cooperate
without need of any threat whatsoever. Inconsistencies in
his testimony is likewise attributed to his aforesaid
personal circumstances for it does not jibe with practical
experience that a person telling the truth will still have to
struggle to remember everything that transpired, he
having been a participant in the operation. Gross mistake
on very important points not easily forgotten are very
strong indicia of the falsity of the story given by a
witness.14
We reiterate the ruling in the case of Raquiza
v. Castaneda, Jr., that:
The ground for the removal of a judicial
officer should be established beyond
reasonable doubt. Such is the rule where
the charges on which the removal is
sought is misconduct in office, willful
neglect, corruption, incompetency, etc.
The general rules in regard to
admissibility of evidence in criminal trials
apply.
Reasonable doubt is the inability to let the judicial mind
rest easy upon the certainty of guilt after a thorough
investigation of the whole evidence.16 The principle of
reasonable doubt being applicable in the instant case,
therefore, we find that the alleged act of bribery committed
by respondent has not been sufficiently and convincingly
proven to warrant the imposition of any penalty against
respondent.
WHEREFORE, in view of the foregoing, respondent judge
is hereby exonerated and the administrative case against
him is DISMISSED. SO ORDERED.
ADM. MATTER NO. MTJ-00-1241. JANUARY 20, 2000
ATTY. NAPOLEON S.
VALENZUELA, COMPLAINANT V. JUDGE REYNALDO B.
BELLOSILLO, RESPONDENT
DECISION
PURISIMA, J.:
The Affidavit-Complaint dated October 17, 1997 of
Attorney Napoleon S. Valenzuela charged respondent
Judge Reynaldo Blanco Bellosillo of Branch 34 of the
Metropolitan Trial Court of Quezon City with gross
violation of the constitutional right of subject accused to
assistance by counsel of her own choice, gross
misconduct, oppression, partiality and violation of the
Code of Judicial Ethics; averring:
"2. That on September 4, 1997, I was hired as counsel for
the accused in Criminal Case No. 65382-86 entitled People
of the Philippines vs. Ms. Meriam V. Colapo for Violation of
B.P. 22 which case is being heard before Quezon City
Metropolitan Trial Court Branch 34, presided by Hon.
Judge Reynaldo Blanco Bellosillo;
3. That subsequently, I then filed a Manifestation praying
for the Honorable Court to allow the accused to post bail;
a copy of the Manifestation is hereto attached as Annex A
and A-1 and made as integral parts hereof;
4. That Judge Reynaldo Bellosillo as was his custom,
talked to my client before granting bail for her provisional
liberty inside his chambers and in my absence;
5. That the next day, September 5, 1997, my client Meriam
Colapo informed me that Judge Reynaldo B. Bellosillo had
angrily ordered her to remove me as counsel and even
suggested one Atty. Puhawan of the PALAO QUEZON
CITY as my replacement; xxx
6. That as a consequence thereof, the undersigned had no
recourse but to file a Notice of Withdrawal with the
conformity of my client Meriam V. Colapo xxx;
7. That although I was aghast and flabbergasted with the
unfathomable actuation of Judge Bellosillo, I can think of
no reason what impelled him with anger to order my client
for my replacement;
7. [sic] That the actuation of Judge Reynaldo Blanco
Bellosillo is certainly oppressive, arrogant, and a gross
misconduct affecting his integrity and efficiency which
merits a dismissal from the service;
8. That such despotic act of Judge Bellosillo is likewise
indicative of partiality and gross ignorance of the
Constitution and the constitutional right of accused
Meriam Colapo to choose her own counsel to defend her
in court;
9. That such arrogant act of Judge Bellosillo would
certainly violate and kill my right to earn and practice law;
xxx."1cräläwvirtualibräry
The Answer, dated February 16, 1998, of respondent
Judge denied the allegations of the complaint, branded
the same without any legal and factual basis; theorizing:
"1. That when Complainants Accused Client and Witness,
Meriam J. [sic] Colapo, appeared before the undersigned
respondent to post Bail she was unassisted by
Complainant-Counsel and upon inquiry informed that she
is allegedly changing him not having liked the idea of
being referred by a Metro-TC Branch 34 Personnel to its
PAO Lawyer Joseph B. Sia, who rejected her due to the
Prohibitive policy of his office to represent an Accused in
BP 22 Cases and instead referred her to the ComplainantLawyer, Napoleon S. Valenzuela, a former PAO Employee,
who allegedly changed [sic] her unreasonably for the
preparation of a mere Manifestation To Post Bail;
2. That respondent could not have referred Complainants
Accused Client Witness to tha [sic] PALAO knowing its
Prohibitive Policy to also represent Accused in BP 22
Cases as previously made clear by its Chief, Atty. Jose
Puhawan;
5|Page
3. That out of delicadeza and in recognition of
Complainants right to practice the law profession,
respondent never talked to him about it;
because she was agitated. According to his client Colapo,
respondent recommended Atty. Puhawan and he right
away filed his withdrawal as counsel.
4. That the Motion to Withdraw filed by Complainant with
the Conformity of his Accused Client Witness, Meriam V.
Colapo, is a matter strictly just between the two of them,
to which respondent was never a privy;
At first, complainant stated that the affidavit of his client
Colapo was prepared by the Notary Public Lino Soriano.
Then he stated that he assisted her in the preparation of
the same.
5. That had Complainant been more prudent, he could
have just verified from the respondent the veracity of his
clients statements which for legal intents and purposes
are inadmissible for being hearsay, thus, this unfounded
time consuming Complaint could have been avoided;
Complainant further alleged that it was also on September
5, 1997 (when his clients bond was approved) that Colapo
informed him that respondent wanted him changed as
counsel.
6. That respondent discharges his functions with all
integrity and good faith and without fear or favor knowing
that justice must never be distorted as to do so would
make even the wise blind and subvert tha [sic] cause of
the innocent;
xxx"cräläwvirtlibrä
In the Resolution issued on June 16, 1999, this Third
Division referred the Complaint to the Executive Judge of
the Regional Trial Court of Quezon City, for investigation,
report and recommendation.
On September 22, 1999, Executive Judge Perlita J. Tria
Tirona sent in the following Report and Recommendation,
to wit:
"Complainant alleged that: on September 4, 1997, he filed
a motion praying that his client Meriam V. Colapo accused
in a BP 22 case then pending in Metropolitan Trial Court,
Branch 34, Quezon City, presided over at that time by
respondent, be allowed to post bail for her provisional
liberty. Respondent before acting on the Motion allegedly
talked to the accused and ordered her to replace her
counsel, herein complainant, with Atty. Puhawan from
PALAO, Quezon City. Accused Colapo informed him of
this incident and told him she was terminating his
services pursuant to the instructions of the respondent.
In deference to his clients wishes, complainant filed a
Notice of Withdrawal of his appearance with his clients
(Colapos) conformity.
According to complainant, he could not think of any
reason for respondent to order his client to replace him.
On cross examination, complainant stated that he worked
with the Public Attorneys Office for seven (7) to eight (8)
years. He resigned in 1995. Complainants wife used to be
an officemate of respondent at the Public Attorneys Office
in Makati in 1988.
Complainant admitted that his client Colapo was referred
to him by Atty. Sia, his friend, who is with the Public
Attorneys Office (PAO) where he used to work. He is
aware of the PAO/PALAO policy not to represent any
person charged with BP 22. Complainant likewise
admitted that he filed his notice of withdrawal on the basis
of what his client Colapo told him. However, he did not
confront the respondent about it. He believed his client
However, in his Notice of Withdrawal as counsel which he
filed in Court, he stated that he was informed by his client
Colapo on September 7, 1997, which complainant again
claims to be a typographical error.
Complainant further admitted that his Notice of
Withdrawal was with the conformity of his client Colapo.
No other witness was presented by the complainant.
Respondent Judge Bellosillo, testified that he does not
personally know Miriam [sic] Colapo. He first met her
when she appeared before him in his Court for the
approval of her bail bond. She was allowed to post bail on
the basis of the manifestation filed by her counsel on
record, complainant Atty. Napoleon S. Valenzuela. At that
time she was notassisted [sic] by her counsel
(complainant was absent) but he (respondent) allowed her
just the same to post bail because according to him he
personally knows Colapos counsel complainant Atty.
Valenzuela.
Respondent further stated that when he inquired from Ms.
Colapo where her lawyer was, Ms. Colapo, in a very
disappointing mood said that she was going to change her
counsel because she did not like the idea of paying
somebody who could not appear for her at the time she
needed him most. Later on he was informed of the notice
of withdrawal filed by complainant Napoleon Valenzuela
with the conformity of his client Colapo. He did not bother
to read the withdrawal anymore because anyway it
contained the conformity of his client Colapo. It was only
when he received the 1st indorsement of the Court
Administrator which contained the complaint and the
annexes to the complaint of Atty. Valenzuela that he came
to read the notice of withdrawal. Had he read the notice of
withdrawal earlier, he could have called them for a
conference, and confront both of them, considering that
the information given to him (complainant) by Colapo is
different from what appeared in the notice of withdrawal
as counsel, filed by herein complainant. Respondent
likewise stated that in all honesty and good faith, he
honored the entry of appearance of the new counsel and
dismissed the case against Ms. Colapo on the basis of the
Affidavit of Desistance filed by the complaining witness in
the case against Colapo.
On cross examination, respondent admitted that he talked
to accused Colapo before he approved the bail, who was
then not assisted by her counsel, to find out if she is the
one who appears in the picture attached to the bail bond,
6|Page
and to inform her of her undertaking under the bail, and
when he inquired from Colapo where her lawyer was, she
answered in a very disappointed manner that she was
going to change her counsel because she did not like the
idea of paying somebody who could not represent her at
the time she needed him most and because of the fact that
she was referred to one Atty. Sia of the PAO Office who in
turn referred her (Colapo) to complainant who allegedly
charged her (complainant) so much for the preparation of
the manifestation.
change complainant as counsel and instead to engage the
services of Atty. Puhawan.
Respondent likewise denied that he ever referred Ms.
Colapo, complainants client to the PALAO knowing fully
well that the PALAO does not represent an accused in a
BP 22 case. Besides, according to respondent, it was none
of his business whether Colapo would want to change her
counsel. He (respondent) stated that he is not aware
whether Atty. Gusapos, the lawyer who replaced the
complainant, is a PALAO lawyer since he used his private
or residential address when he entered his appearance."
All the facts of the case studiedly considered, with a
thorough evaluation of the records on hand, the Court
finds merit in the findings and recommendations of
Executive Judge Tirona, absent any discernible basis for
adjudging respondent Judge Bellosillo liable under the
premises.
Prescinding from the foregoing, Judge Tirona concluded:
"The undersigned finds the evidence adduced by the
complainant insufficient to substantiate his charges
against respondent Judge Bellosillo.
The basis of complainants complaint is the affidavit of his
client Meriam Colapo to the effect that respondent Judge
suggested to her (Meriam Colapo) that she should change
her counsel (herein complainant), and that respondent
recommended Atty. Puhawan of the PALAO.
However, Meriam Colapo was not presented by
complainant to testify because she is presently in Brunei.
While complainant claims that Meriam Colapo is willing to
testify, said willingness is not sufficient to lend credence
to the present charge since respondent has every right to
cross examine said witness.
It should likewise be noted that the lawyer who replaced
complainant as counsel for Meriam Colapo was not Atty.
Puhawan, the lawyer allegedly suggested by respondent
but one Atty. Gusapos allegedly of the PALAO, although
no evidence was presented by complainant to show that
indeed Atty. Gusapos is also with PALAO notwithstanding
the fact that he promised to submit a certification from
PALAO that Atty. Gusapos is indeed an employee of said
office.
If Meriam Colapo has to discharge complainant as
allegedly suggested by respondent so as not to
antagonize said respondent judge, why did they not
engage the services of Atty. Puhawan, the lawyer allegedly
suggested by respondent to take complainants place as
counsel?
On the other hand, respondent in denying the charge,
stated that he could not have even suggested Atty.
Puhawan of PALAO to take complainants place as counsel
since PALAO lawyers are not allowed to represent an
accused in a BP 22 case.
Besides, even complainant himself could see no reason
why respondent would suggest to Meriam Colapo to
Thus, the only evidence of the complainant, which is the
Affidavit of his client Meriam Colapo, cannot be the basis
of a finding of guilt even in an administrative case.
In view of the foregoing, the undersigned respectfully
recommends that the charges against respondent Judge
Reynaldo B. Bellosillo be dismissed for lack of evidence."
Apart from his testimony and affidavit-complaint,
complainant did not adduce enough evidence to prove his
charges. He did not even present his primary witness,
Meriam Colapo, to support the charge that respondent
Judge Bellosillo pressured the latter to replace him as
defense counsel. The affidavit4 of Meriam Colapo cannot
be given credence and is inadmissible without the said
affiant placed on the witness stand to give the respondent
Judge an opportunity to test the veracity of affiants
allegations. An affidavit is hearsay unless the affiant is
presented for cross-examination.6cräläwvirtualibräry
Sans the testimony of witness Meriam Colapo, to
corroborate complainants allegations and submission, the
case against the respondent judge cannot prosper. The
employment or profession of a person is a property right
within the constitutional guaranty of due process of
law. Respondent judge cannot therefore be adjudged
guilty of the charges against him without affording him a
chance to confront the said witness, Meriam Colapo;
otherwise, his right to due process would be infringed.
WHEREFORE, for insufficiency of evidence, the Complaint
at bar against respondent Judge Reynaldo Blanco
Bellosillo is hereby DISMISSED. SO ORDERED.
ASPECTS OF THE PROCEEDINGS
G.R. No. 117565 November 18, 1997
ARSENIO P. LUMIQUED (deceased), Regional Director,
DAR — CAR, Represented by his Heirs, Francisca A.
Lumiqued, May A. Lumiqued, Arlene A. Lumiqued and
Richard A. Lumiqued, petitioners,
vs.
Honorable APOLONIO G. EXEVEA, ERDOLFO V.
BALAJADIA and FELIX T. CABADING, ALL Members of
Investigating Committee, created by DOJ Order No. 145 on
May 30, 1992; HON. FRANKLIN M. DRILON, SECRETARY
OF JUSTICE, HON. ANTONIO T. CARPIO, CHIEF
Presidential Legal Adviser/Counsel; and HON. LEONARDO
A. QUISUMBING, Senior Deputy Executive Secretary of the
Office of the President, and JEANNETTE OBAR-ZAMUDIO,
Private Respondent, respondents.
ROMERO, J.:
7|Page
Does the due process clause encompass the right to be
assisted by counsel during an administrative inquiry?
Arsenio P. Lumiqued was the Regional Director of the
Department of Agrarian Reform — Cordillera Autonomous
Region (DAR-CAR) until President Fidel V. Ramos
dismissed him from that position pursuant to
Administrative Order No. 52 dated May 12, 1993. In view of
Lumiqued's death on May 19, 1994, his heirs instituted this
petition for certiorari and mandamus, questioning such
order.
The dismissal was the aftermath of three complaints filed
by DAR-CAR Regional Cashier and private respondent
Jeannette Obar-Zamudio with the Board of Discipline of
the DAR. The first affidavit-complaint dated November 16,
1989, 1 charged Lumiqued with malversation through
falsification of official documents. From May to September
1989, Lumiqued allegedly committed at least 93 counts of
falsification by padding gasoline receipts. He even
submitted a vulcanizing shop receipt worth P550.00 for
gasoline bought from the shop, and another receipt for
P660.00 for a single vulcanizing job. With the use of
falsified receipts, Lumiqued claimed and was reimbursed
the sum of P44,172.46. Private respondent added that
Lumiqued seldom made field trips and preferred to stay in
the office, making it impossible for him to consume the
nearly 120 liters of gasoline he claimed everyday.
In her second affidavit-complaint dated November 22,
1989, 2 private respondent accused Lumiqued with
violation of Commission on Audit (COA) rules and
regulations, alleging that during the months of April, May,
July, August, September and October, 1989, he made
unliquidated cash advances in the total amount of
P116,000.00. Lumiqued purportedly defrauded the
government "by deliberately concealing his unliquidated
cash advances through the falsification of accounting
entries in order not to reflect on 'Cash advances of other
officials' under code 8-70-600 of accounting rules."
The third affidavit-complaint dated December 15,
1989, 3 charged Lumiqued with oppression and
harassment. According to private respondent, her two
previous complaints prompted Lumiqued to retaliate by
relieving her from her post as Regional Cashier without
just cause.
The three affidavit-complaints were referred in due course
to the Department of Justice (DOJ) for appropriate action.
On May 20, 1992, Acting Justice Secretary Eduardo G.
Montenegro issued Department Order No. 145 creating a
committee to investigate the complaints against
Lumiqued. The order appointed Regional State Prosecutor
Apolinario Exevea as committee chairman with City
Prosecutor Erdolfo Balajadia and Provincial Prosecutor
Felix Cabading as members. They were mandated to
conduct an investigation within thirty days from receipt of
the order, and to submit their report and recommendation
within fifteen days from its conclusion.
The investigating committee accordingly issued
a subpoena directing Lumiqued to submit his counteraffidavit on or before June 17, 1992. Lumiqued, however,
filed instead an urgent motion to defer submission of his
counter-affidavit pending actual receipt of two of private
respondent's complaints. The committee granted the
motion and gave him a five-day extension.
In his counter-affidavit dated June 23, 1992, 4 Lumiqued
alleged, inter alia, that the cases were filed against him to
extort money from innocent public servants like him, and
were initiated by private respondent in connivance with a
certain Benedict Ballug of Tarlac and a certain Benigno
Aquino III. He claimed that the apparent weakness of the
charge was bolstered by private respondent's execution of
an affidavit of desistance. 5
Lumiqued admitted that his average daily gasoline
consumption was 108.45 liters. He submitted, however,
that such consumption was warranted as it was the
aggregate consumption of the five service vehicles issued
under his name and intended for the use of the Office of
the Regional Director of the DAR. He added that the
receipts which were issued beyond his region were made
in the course of his travels to Ifugao Province, the DAR
Central Office in Diliman, Quezon City, and Laguna, where
he attended a seminar. Because these receipts were
merely turned over to him by drivers for reimbursement, it
was not his obligation but that of auditors and
accountants to determine whether they were falsified. He
affixed his signature on the receipts only to signify that
the same were validly issued by the establishments
concerned in order that official transactions of the DARCAR could be carried out.
Explaining why a vulcanizing shop issued a gasoline
receipt, Lumiqued said that he and his companions were
cruising along Santa Fe, Nueva Vizcaya on their way to
Ifugao when their service vehicle ran out of gas. Since it
was almost midnight, they sought the help of the owner of
a vulcanizing shop who readily furnished them with the
gasoline they needed. The vulcanizing shop issued its
own receipt so that they could reimburse the cost of the
gasoline. Domingo Lucero, the owner of said vulcanizing
shop, corroborated this explanation in an affidavit dated
June 25, 1990. 6 With respect to the accusation that he
sought reimbursement in the amount of P660.00 for one
vulcanizing job, Lumiqued submitted that the amount was
actually only P6.60. Any error committed in posting the
amount in the books of the Regional Office was not his
personal error or accountability.
To refute private respondent's allegation that he violated
COA rules and regulations in incurring unliquidated cash
advances in the amount of P116,000.00, Lumiqued
presented a certification 7 of DAR-CAR Administrative
Officer Deogracias F. Almora that he had no outstanding
cash advances on record as of December 31, 1989.
In disputing the charges of oppression and harassment
against him, Lumiqued contended that private respondent
was not terminated from the service but was merely
relieved of her duties due to her prolonged absences.
While admitting that private respondent filed the required
applications for leave of absence, Lumiqued claimed that
the exigency of the service necessitated disapproval of
her application for leave of absence. He allegedly rejected
her second application for leave of absence in view of her
failure to file the same immediately with the head office or
8|Page
upon her return to work. He also asserted that no medical
certificate supported her application for leave of absence.
In the same counter-affidavit, Lumiqued also claimed that
private respondent was corrupt and dishonest because a
COA examination revealed that her cash accountabilities
from June 22 to November 23, 1989, were short by
P30,406.87. Although private respondent immediately
returned the amount on January 18, 1990, the day
following the completion of the cash examination,
Lumiqued asserted that she should be relieved from her
duties and assigned to jobs that would not require
handling of cash and money matters.
Committee hearings on the complaints were conducted on
July 3 and 10, 1992, but Lumiqued was not assisted by
counsel. On the second hearing date, he moved for its
resetting to July 17, 1992, to enable him to employ the
services of counsel. The committee granted the motion,
but neither Lumiqued nor his counsel appeared on the
date he himself had chosen, so the committee deemed the
case submitted for resolution.
On August 12, 1992, Lumiqued filed an urgent motion for
additional hearing, 8 alleging that he suffered a stroke on
July 10, 1992. The motion was forwarded to the Office of
the State Prosecutor apparently because
the investigation had already been terminated. In an order
dated September 7, 1992, 9 State Prosecutor Zoila C.
Montero denied the motion, viz:
The medical certificate given show(s) that
respondent was discharged from the
Sacred Heart Hospital on July 17, 1992,
the date of the hearing, which date was
upon the request of respondent
(Lumiqued). The records do not disclose
that respondent advised the Investigating
committee of his confinement and
inability to attend despite his discharge,
either by himself or thru counsel. The
records likewise do not show that efforts
were exerted to notify the Committee of
respondent's condition on any
reasonable date after July 17, 1992. It is
herein noted that as early as June 23,
1992, respondent was already being
assisted by counsel.
Moreover an evaluation of the counteraffidavit submitted reveal(s) the
sufficiency, completeness and
thoroughness of the counter-affidavit
together with the documentary evidence
annexed thereto, such that a judicious
determination of the case based on the
pleadings submitted is already possible.
Moreover, considering that the complaintaffidavit was filed as far back as
November 16, 1989 yet, justice can not be
delayed much longer.
Following the conclusion of the hearings, the investigating
committee rendered a report dated July 31, 1992, 10 finding
Lumiqued liable for all the charges against him. It made
the following findings:
After a thorough evaluation of the
evidences (sic) submitted by the parties,
this committee finds the evidence
submitted by the complainant sufficient
to establish the guilt of the respondent
for Gross Dishonesty and Grave
Misconduct.
That most of the gasoline receipts used
by the respondent in claiming for the
reimbursement of his gasoline expenses
were falsified is clearly established by the
15 Certified Xerox Copies of the duplicate
receipts (Annexes G-1 to G-15) and the
certifications issued by the different
gasoline stations where the respondent
purchased gasoline. Annexes "G-1" to
"G-15" show that the actual average
purchase made by the respondent is
about 8.46 liters only at a purchase price
of P50.00, in contrast to the receipts used
by the respondent which reflects an
average of 108.45 liters at a purchase
price of P550.00. Here, the greed of the
respondent is made manifest by his act of
claiming reimbursements of more than 10
times the value of what he actually
spends. While only 15 of the gasoline
receipts were ascertained to have been
falsified, the motive, the pattern and the
scheme employed by the respondent in
defrauding the government has,
nevertheless, been established.
That the gasoline receipts have been
falsified was not rebutted by the
respondent. In fact, he had in effect
admitted that he had been claiming for
the payment of an average consumption
of 108.45 liters/day by justifying that this
was being used by the 4 vehicles issued
to his office. Besides he also admitted
having signed the receipts.
Respondent's act in defrauding the
government of a considerable sum of
money by falsifying receipts constitutes
not only Dishonesty of a high degree but
also a criminal offense for Malversation
through Falsification of Official
Documents.
This committee likewise finds that the
respondent have (sic) unliquidated cash
advances in the year 1989 which is in
violation of established office and
auditing rules. His cash advances totaling
to about P116,000.00 were properly
documented. The requests for obligation
of allotments and the vouchers covering
the amounts were all signed by him. The
mere certification issued by the
9|Page
Administrative Officer of the DAR-CAR
cannot therefore rebut these concrete
evidences (sic).
On the third complaint, this committee
likewise believes that the respondent's
act in relieving the complainant of her
functions as a Regional Cashier on
December 1, 1989 was an act of
harassment. It is noted that this was done
barely two weeks after the complainant
filed charges against her (sic). The
recommendation of Jose G. Medina of the
Commission on Audit came only on May
11, 1990 or almost six months after the
respondent's order relieving the
complainant was issued. His act in
harassing a subordinate employee in
retaliation to a complaint she filed
constitute(s) Gross Misconduct on the
part of the respondent who is a head of
office.
The affidavits of Joseph In-uyay and
Josefina Guting are of no help to the
respondent. In fact, this only show(s) that
he is capable of giving bribes if only to
have the cases against him dismissed. He
could not have given a certain Benigno
Aquino III the sum of P10,000.00 for any
other purpose.
Accordingly, the investigating committee recommended
Lumiqued's dismissal or removal from office, without
prejudice to the filing of the appropriate criminal charges
against him.
Acting on the report and recommendation, former Justice
Secretary Franklin M. Drilon adopted the same in his
Memorandum to President Fidel V. Ramos dated October
22, 1992. He added that the filing of the affidavit of
desistance 11 would not prevent the issuance of a
resolution on the matter considering that what was at
stake was not only "the violation of complainant's (herein
private respondent's) personal rights" but also "the
competence and fitness of the respondent (Lumiqued) to
remain in public office." He opined that, in fact, the
evidence on record could call for "a punitive action
against the respondent on the initiative of the DAR."
On December 17, 1992, Lumiqued filed a motion for
reconsideration of "the findings of the Committee" with
the DOJ. 12 Undersecretary Ramon S. Esguerra indorsed
the motion to the investigating committee. 13 In a letter
dated April 1, 1993, the three-member investigating
committee informed Undersecretary Esguerra that the
committee "had no more authority to act on the same
(motion for reconsideration) considering that the matter
has already been forwarded to the Office of the President"
and that their authority under Department Order No. 145
ceased when they transmitted their report to the
DOJ. 14 Concurring with this view, Undersecretary
Esguerra informed Lumiqued that the investigating
committee could no longer act on his motion for
reconsideration. He added that the motion was also
prematurely filed because the Office of the President (OP)
had yet to act on Secretary Drilon's recommendation. 15
On May 12, 1993, President Fidel V. Ramos himself issued
Administrative Order No. 52 (A.O. No. 52), 16 finding
Lumiqued administratively liable for dishonesty in the
alteration of fifteen gasoline receipts, and dismissing him
from the service, with forfeiture of his retirement and other
benefits. Thus:
That the receipts were merely turned over
to him by his drivers and that the auditor
and accountant of the DAR-CAR should
be the ones to be held liable is untenable.
The receipts in question were signed by
respondent for the purpose of attesting
that those receipts were validly issued by
the commercial establishments and were
properly disbursed and used in the
official business for which it was
intended.
This Office is not about to shift the blame
for all these to the drivers employed by
the DAR-CAR as respondent would want
us to do.
The OP, however, found that the charges of oppression
and harassment, as well as that of incurring unliquidated
cash advances, were not satisfactorily established.
In a "petition for appeal" 17 addressed to President Ramos,
Lumiqued prayed that A.O. No. 52 be reconsidered and
that he be reinstated to his former position "with all the
benefits accorded to him by law and existing rules and
regulations." This petition was basically premised on the
affidavit dated May 27, 1993, of a certain Dwight L.
Lumiqued, a former driver of the DAR-CAR, who
confessed to having authored the falsification of gasoline
receipts and attested to petitioner Lumiqued's being an
"honest man" who had no "premonition" that the receipts
he (Dwight) turned over to him were "altered." 18
Treating the "petition for appeal" as a motion for
reconsideration of A.O. No. 52, the OP, through Senior
Deputy Executive Secretary Leonardo A. Quisumbing,
denied the same on August 31, 1993.
Undaunted, Lumiqued filed a second motion for
reconsideration, alleging, among other things, that he was
denied the constitutional right to counsel during the
hearing. 19 On May 19, 1994, 20 however, before his motion
could be resolved, Lumiqued died. On September 28,
1994, 21 Secretary Quisumbing denied the second motion
for reconsideration for lack of merit.
Hence, the instant petition
for certiorari and mandamus praying for the reversal of the
Report and Recommendation of the Investigating
Committee, the October 22, 1992, Memorandum of then
Justice Secretary Drilon, A.O. No. 52 issued by President
Ramos, and the orders of Secretary Quisumbing. In a
nutshell, it prays for the "payment of retirement benefits
and other benefits accorded to deceased Arsenio
Lumiqued by law, payable to his heirs; and the backwages
10 | P a g e
from the period he was dismissed from service up to the
time of his death on May 19, 1994." 22
Petitioners fault the investigating committee for its failure
to inform Lumiqued of his right to counsel during the
hearing. They maintain that his right to counsel could not
be waived unless the waiver was in writing and in the
presence of counsel. They assert that the committee
should have suspended the hearing and granted
Lumiqued a reasonable time within which to secure a
counsel of his own. If suspension was not possible, the
committee should have appointed a counsel de oficio to
assist him.
These arguments are untenable and misplaced. The right
to counsel, which cannot be waived unless the waiver is in
writing and in the presence of counsel, is a right afforded
a suspect or an accused during custodial
investigation. 23 It is not an absolute right and may, thus,
be invoked or rejected in a criminal proceeding and, with
more reason, in an administrative inquiry. In the case at
bar, petitioners invoke the right of an accused in criminal
proceedings to have competent and independent counsel
of his own choice. Lumiqued, however, was not accused
of any crime in the proceedings below. The investigation
conducted by the committee created by Department Order
No. 145 was for the purpose of determining if he could be
held administratively liable under the law for the
complaints filed against him. The order issued by Acting
Secretary of Justice Montenegro states thus:
In the interest of the public service and
pursuant to the provisions of existing
laws, a Committee to conduct the formal
investigation of the administrative
complaint for oppression, dishonesty,
disgraceful and immoral conduct, being
notoriously undesirable and conduct
prejudicial to the best interest of the
service against Mr. ARSENIO P.
LUMIQUED, Regional Director,
Department of Agrarian Reform,
Cordillera Autonomous Region, is hereby
created . . . 24
As such, the hearing conducted by the
investigating committee was not part of a criminal
prosecution. This was even made more
pronounced when, after finding Lumiqued
administratively liable, it hinted at the filing of a
criminal case for malversation through
falsification of public documents in its report and
recommendation.
Petitioners' misconception on the nature of the
investigation 25 conducted against Lumiqued appears to
have been engendered by the fact that the DOJ conducted
it. While it is true that under the Administrative Code of
1987, the DOJ shall "administer the criminal justice
system in accordance with the accepted processes
thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the
correctional system, 26 conducting criminal investigations
is not its sole function. By its power to "perform such
other functions as may be provided by
law," 27 prosecutors may be called upon to conduct
administrative investigations. Accordingly, the
investigating committee created by Department Order No.
145 was duty-bound to conduct the administrative
investigation in accordance with the rules therefor.
While investigations conducted by an administrative body
may at times be akin to a criminal proceeding, the fact
remains that under existing laws, a party in an
administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and of
the respondent's capacity to represent himself, and no
duty rests on such a body to furnish the person being
investigated with counsel. 28 In an administrative
proceeding such as the one that transpired below, a
respondent (such as Lumiqued) has the option of
engaging the services of counsel or not. This is clear from
the provisions of Section 32, Article VII of Republic Act
No. 2260 29 (otherwise known as the Civil Service Act) and
Section 39, paragraph 2, Rule XIV (on Discipline) of the
Omnibus Rules Implementing Book V of Executive Order
No. 292 30 (otherwise known as the Administrative Code of
1987). Excerpts from the transcript of stenographic notes
of the hearings attended by Lumiqued 31 clearly show that
he was confident of his capacity and so opted to represent
himself . Thus, the right to counsel is not imperative in
administrative investigations because such inquiries are
conducted merely to determine whether there are facts
that merit disciplinary measures against erring public
officers and employees, with the purpose of maintaining
the dignity of government service.
Furthermore, petitioners' reliance on Resolution No. 940521 of the Civil Service Commission on the Uniform
Procedure in the Conduct of Administrative Investigation
stating that a respondent in an administrative complaint
must be "informed of his right to the assistance of a
counsel of his choice," 32 is inappropriate. In the first
place, this resolution is applicable only to cases brought
before the Civil Service Commission. 33 Secondly, said
resolution, which is dated January 25, 1994, took effect
fifteen days following its publication in a newspaper of
general circulation, 34 much later than the July 1992
hearings of the investigating committee created by
Department Order No. 145. Thirdly, the same committee
was not remiss in the matter of reminding Lumiqued of his
right to counsel. Thus, at the July 3, 1992, hearing,
Lumiqued was repeatedly appraised of his option to
secure the services of counsel:
RSP EXEVEA:
This is an administrative
case against Director
Lumiqued. Director
Lumiqued is present.
The complainant is
present, Janet ObarZamudio. Complainant
has just been furnished
with a copy of the
counter-affidavit of the
respondent. Do you have
a counsel, Director?
11 | P a g e
DIR. LUMIQUED:
CP BALAJADIA:
I did not bring anybody,
Sir, because when I went
to see him, he told me,
Sir, that he has already
set a hearing, morning
and afternoon today.
We will suspend in the
meantime that we are
waiting for the
supplemental affidavit
you are going to present
to us. Do you have any
request from the panel of
investigators, Director
Lumiqued?
RSP EXEVEA:
So, we will proceed with
the hearing even without
your counsel? You are
willing to proceed with
the hearing even without
your counsel?
DIR. LUMIQUED:
Yes, I am confident. . .
CP BALAJADIA:
You are confident that
you will be able to
represent yourself?
DIR. LUMIQUED:
That is my
concern. 35 (Emphasis
supplied)
In the course of private respondent's damaging testimony,
the investigating committee once again reminded
Lumiqued of his need for a counsel. Thus:
CP BALAJADIA:
Q. (To Director
Lumiqued) You really
wish to go through with
this even without your
counsel?
DIRECTOR LUMIQUED:
A. I think so, Sir.
CP BALAJADIA:
Let us make it of record
that we have been
warning you to proceed
with the assistance of
counsel but you said
that you can take care of
yourself so we have no
other alternative but to
proceed. 36 (Emphasis
supplied).
DIRECTOR LUMIQUED:
I was not able to bring a
lawyer since the lawyer I
requested to assist me
and was the one who
prepared my counteraffidavit is already
engaged for a hearing
and according to him he
is engaged for the whole
month of July.
RSP EXEVEA:
We cannot wait . . .
CP BALAJADIA:
Why don't you engage
the services of another
counsel. The charges
against you are quite
serious. We are not
saying you are guilty
already. We are just
apprehensive that you
will go through this
investigation without a
counsel. We would like
you to be protected
legally in the course of
this investigation. Why
don't you get the
services of another
counsel. There are
plenty here in Baguio . . .
DIRECTOR LUMIQUED:
I will try to see, Sir . . .
CP BALAJADIA:
Please select your date
now, we are only given
one month to finish the
investigation, Director
Lumiqued.
RSP EXEVEA:
Thereafter, the following colloquies transpired:
12 | P a g e
We will not entertain any
postponement. With or
without counsel, we will
proceed.
CP BALAJADIA:
Madam Witness, will you
please submit the
document which we
asked for and Director
Lumiqued, if you have
other witnesses, please
bring them but reduce
their testimonies in
affidavit form so that we
can expedite with the
proceedings. 37
At the hearing scheduled for July 10, 1992, Lumiqued still
did not avail of the services of counsel. Pertinent excerpts
from said hearing follow:
FISCAL BALAJADIA:
I notice also Mr.
Chairman that the
respondent is not being
represented by a
counsel. The last time he
was asked to invite his
lawyer in this
investigation. May we
know if he has a lawyer
to represent him in this
investigation?
DIR. LUMIQUED:
There is none Sir
because when I went to
my lawyer, he told me
that he had set a case
also at 9:30 in the other
court and he told me if
there is a possibility of
having this case
postponed anytime next
week, probably
Wednesday so we will
have good time (sic) of
presenting the affidavit.
FISCAL BALAJADIA:
Are you moving for a
postponement Director?
May I throw this to the
panel. The charges in
this case are quite
serious and he should
be given a chance to the
assistance of a
counsel/lawyer.
RSP EXEVEA:
And is (sic) appearing
that the supplementalaffidavit has been
furnished him only now
and this has several
documents attached to it
so I think we could grant
him one last
postponement
considering that he has
already asked for an
extension.
DIR. LUMIQUED:
Furthermore Sir, I am
now being bothered by
my heart ailment. 38
The hearing was reset to July 17, 1992, the date when
Lumiqued was released from the hospital. Prior to said
date, however, Lumiqued did not inform the committee of
his confinement. Consequently because the hearing could
not push through on said date, and Lumiqued had already
submitted his counter-affidavit, the committee decided to
wind up the proceedings. This did not mean, however, that
Lumiqued was short-changed in his right to due process.
Lumiqued, a Regional Director of a major department in
the executive branch of the government, graduated from
the University of the Philippines (Los Baños) with the
degree of Bachelor of Science major in Agriculture, was a
recipient of various scholarships and grants, and
underwent training seminars both here and
abroad. 39 Hence, he could have defended himself if need
be, without the help of counsel, if truth were on his side.
This, apparently, was the thought he entertained during
the hearings he was able to attend. In his statement, "That
is my concern," one could detect that it had been uttered
testily, if not exasperatedly, because of the doubt or
skepticism implicit in the question, "You are confident that
you will be able to represent yourself?" despite his having
positively asserted earlier, "Yes, I am confident." He was
obviously convinced that he could ably represent himself.
Beyond repeatedly reminding him that he could avail
himself of counsel and as often receiving the reply that he
is confident of his ability to defend himself, the
investigating committee could not do more. One can lead
a horse to water but cannot make him drink.
The right to counsel is not indispensable to due process
unless required by the Constitution or the law. In Nera
v. Auditor General, 40 the Court said:
. . . There is nothing in the Constitution
that says that a party in a non-criminal
proceeding is entitled to be represented
by counsel and that, without such
representation, he shall not be bound by
such proceedings. The assistance of
lawyers; while desirable, is not
indispensable. The legal profession was
not engrafted in the due process clause
13 | P a g e
such that without the participation of its
members, the safeguard is deemed
ignored or violated. The ordinary citizen
is not that helpless that he cannot validly
act at all except only with a lawyer at his
side.
In administrative proceedings, the essence of due process
is simply the opportunity to explain one's side. One may
be heard, not solely by verbal presentation but also, and
perhaps even much more creditably as it is more
practicable than oral arguments, through pleadings. 41 An
actual hearing is not always an indispensable aspect of
due process. 42 As long as a party was given the
opportunity to defend his interests in due course; he
cannot be said to have been denied due process of law,
for this opportunity to be heard is the very essence of due
process. 43 Moreover, this constitutional mandate is
deemed satisfied if a person is granted an opportunity to
seek reconsideration of the action or ruling complained
of. 44 Lumiqued's appeal and his subsequent filing of
motions for reconsideration cured whatever irregularity
attended the proceedings conducted by the committee. 45
The constitutional provision on due process safeguards
life, liberty and property. 46 In the early case of Cornejo
v. Gabriel and Provincial Board of
Rizal 47 the Court held that a public office is not property
within the sense of the constitutional guarantee of due
process of law for it is a public trust or agency. This
jurisprudential pronouncement has been enshrined in the
1987 Constitution under Article XI, Section 1, on
accountability of public officers, as follows:
Sec. 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.
When the dispute concerns one's constitutional right to
security of tenure, however, public office is deemed
analogous to property in a limited sense; hence, the right
to due process could rightfully be invoked. Nonetheless,
the right to security of tenure is not absolute. Of equal
weight is the countervailing mandate of the Constitution
that all public officers and employees must serve with
responsibility, integrity, loyalty and efficiency. 48 In this
case, it has been clearly shown that Lumiqued did not live
up to this constitutional precept.
The committee's findings pinning culpability for the
charges of dishonesty and grave misconduct upon
Lumiqued were not, as shown above, fraught with
procedural mischief. Its conclusions were founded on the
evidence presented and evaluated as facts. Well-settled in
our jurisdiction is the doctrine that findings of fact of
administrative agencies must be respected as long as they
are supported by substantial evidence, even if such
evidence is not overwhelming or
preponderant. 49 The quantum of proof necessary for a
finding of guilt in administrative cases is only substantial
evidence or such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. 50
Consequently, the adoption by Secretary Drilon and the
OP of the committee's recommendation of dismissal may
not in any way be deemed tainted with arbitrariness
amounting to grave abuse of discretion. Government
officials are presumed to perform their functions with
regularity. Strong evidence is not necessary to rebut that
presumption, 51 which petitioners have not successfully
disputed in the instant case.
Dishonesty is a grave offense penalized by dismissal
under Section 23 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987.
Under Section 9 of the same Rule, the penalty of dismissal
carries with it "cancellation of eligibility, forfeiture of leave
credits and retirement benefits, and the disqualification for
reemployment in the government service." The instant
petition, which is aimed primarily at the "payment of
retirement benefits and other benefits," plus back wages
from the time of Lumiqued's dismissal until his demise,
must, therefore, fail.
WHEREFORE, the instant petition
for certiorari and mandamus is hereby DISMISSED and
Administrative Order no. 52 of the Office of the President
is AFFIRMED. Costs against petitioners. SO ORDERED.
G.R. No. 110379 November 28, 1997
HON. ARMAND FABELLA, in his capacity as SECRETARY
OF THE DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS; John Doe (not his real name), in his capacity as
REGIONAL DIRECTOR, DECS-NCR; DR. BIENVENIDO
ICASIANO, in his capacity as the SUPERINTENDENT OF
THE QUEZON CITY SCHOOLS DIVISION; ALMA BELLA O.
BAUTISTA, AURORA C. VALENZUELA and TERESITA V.
DIMAGMALIW, petitioners,
vs.
THE COURT OF APPEALS, ROSARITO A. SEPTIMO,
ERLINDA B. DE LEON, CLARISSA T. DIMAANO,
WILFREDO N. BACANI, MARINA R. VIVAR, VICTORIA S.
UBALDO, JENNIE L. DOGWE, NORMA L. RONGCALES,
EDITA C. SEPTIMO, TERESITA E. EVANGELISTA,
CATALINA R. FRAGANTE, REBECCA D. BAGDOG,
MARILYNNA C. KU, MARRISA M. SAMSON, HENEDINA B.
CARILLO, NICASIO C. BRAVO, RUTH F. LACANILAO,
MIRASOL C. BALIGOD, FELISA S. VILLACRUEL, MA.
VIOLETA ELIZABETH Y. HERNANDEZ, ANTONIO C.
OCAMPO, ADRIANO S. VALENCIA and ELEUTERIO S.
VARGAS, respondents.
PANGANIBAN, J.:
Due process of law requires notice and hearing. Hearing,
on the other hand, presupposes a competent and impartial
tribunal. The right to be heard and, ultimately, the right to
due process of law lose meaning in the absence of an
independent, competent and impartial tribunal.
Statement of the Case
This principium is explained by this Court as it resolves
this petition for review on certiorari assailing the May 21,
1993 Decision of the Court of Appeals 2in CA-G.R.. SP No.
29107 which affirmed the trial court's decision, as follows:
WHEREFORE, the decision appealed from is AFFIRMED
and the appeal is DISMISSED.
14 | P a g e
The Hon. Armand Fabella is hereby ORDERED substituted
as respondent-appellant in place of former Secretary
Isidro Cariño and henceforth this fact should be reflected
in the title of this case.
SO ORDERED.4
The Antecedent Facts
The facts, as found by Respondent Court, are as follows:
On September 17, 1990, then DECS Secretary Cariño
issued a return-to-work order to all public school teachers
who had participated in walk-outs and strikes on various
dates during the period September 26, 1990 to October 18,
1990. The mass action had been staged to demand
payment of 13th month differentials, clothing allowances
and passage of a debt-cap bill in Congress, among other
things.
On October 18, 1990, Secretary Cariño filed administrative
cases against herein petitioner-appellees, who are
teachers of the Mandaluyong High School. The charge
sheets required petitioner-appellees to explain in writing
why they should not be punished for having taken part in
the mass action in violation of civil service laws and
regulations, to wit:
1. grave misconduct;
2. gross neglect of duty;
3. gross violation of Civil Service Law and rules on
reasonable office regulations;
4. refusal to perform official duty;
5. conduct prejudicial to the best interest of the service.
6. absence without leave (AWOL)
At the same time, Secretary Cariño ordered petitionerappellee to be placed under preventive suspension.
The charges were subsequently amended by John Doe
(not his real name) on November 7, 1990 to include the
specific dates when petitioner-appellees allegedly took
part in the strike.
Administrative hearings started on December 20, 1990.
Petitioner-appellees' counsel objected to the procedure
adopted by the committee and demanded that he be
furnished a copy of the guidelines adopted by the
committee for the investigation and imposition of
penalties. As he received no response from the
committee, counsel walked out. Later, however, counsel,
was able to obtain a copy of the guidelines.
On April 10, 1991, the teachers filed a an injunctive suit
(Civil Case No. 60675) with the Regional Trial Court in
Quezon City, charging the committee appointed by
Secretary Cariño with fraud and deceit and praying that it
be stopped from further investigating them and from
rendering any decision in the administrative case.
However, the trial court denied them a restraining order.
They then amended their complaint and made it one
for certiorari and mandamus. They alleged that the
investigating committee was acting with grave abuse of
discretion because its guidelines for investigation place
the burden of proof on them by requiring them to prove
their innocence instead of requiring Secretary Cariño and
his staff to adduce evidence to prove the charges against
the teachers.
On May 30, 1991, petitioner-appellee Adriano S. Valencia
of the Ramon Magsaysay High School filed a motion to
intervene, alleging that he was in the same situation as
petitioners since he had likewise been charged and
preventively suspended by respondent-appellant Cariño
for the same grounds as the other petitioner-appellees and
made to shoulder the burden of proving his innocence
under the committee's guidelines. The trial court granted
his motion on June 3, 1991 and allowed him to intervene.
On June 11, 1991, the Solicitor General answered the
petitioner for certiorari and mandamus in behalf of
respondent DECS Secretary. In the main he contended
that, in accordance with the doctrine of primary resort, the
trial court should not interfere in the administrative
proceedings.
The Solicitor General also asked the trial court to
reconsider its order of June 3, 1991, allowing petitionerappellee Adriano S. Valencia to intervene in the case.
Meanwhile, the DECS investigating committee rendered a
decision on August 6, 1991, finding the petitionerappellees guilty, as charged and ordering their immediate
dismissal.
On August 15, 1991, the trial court dismissed the petition
for certiorari and mandamus for lack of merit. Petitionerappellees moved for a reconsideration, but their motion
was denied on September 11, 1991.
The teachers then filed a petition for certiorari with the
Supreme Court which, on February 18, 1992, issued a
resolution en banc declaring void the trial court's order of
dismissal and reinstating petitioner-appellees' action,
even as it ordered the latter's reinstatement pending
decision of their case.
Accordingly, on March 25, 1992, the trial court set the case
for hearing. June 8, 1992, it issued a pre-trial order which
reads:
As prayed for by Solicitor Bernard Hernandez, let this case
be set for pre-trial conference on June 17, 1992 at 1:30
p.m., so as to expedite the proceedings hereof. In which
case, DECS Secretary Isidro Cariño, as the principal
respondent, is hereby ordered to PERSONALLY APPEAR
before this Court on said date and time, with a warning
that should he fail to show up on said date, the Court will
declare him as IN DEFAULT. Stated otherwise, for the said
Pre-Trial Conference, the Court will not recognize any
representative of his.
By agreement of the parties, the trial conference was reset
on June 26, 1992. However, Secretary Cariño failed to
appear in court on the date set. It was explained that he
had to attend a conference in Maragondon, Cavite.
Instead, he was represented by Atty. Reno Capinpin, while
the other respondents were represented by Atty. Jocelyn
Pili. But the court just the same declared them as in
default. The Solicitor General moved for a reconsideration,
reiterating that Cariño could not personally come on June
26, 1992 because of prior commitment in Cavite. It was
pointed out that Cariño was represented by Atty. Reno
Capinpin, while the other respondents were represented
by Atty. Jocelyn Pili, both of the DECS-NCR and that both
had special powers of attorney. But the Solicitor General's
motion for reconsideration was denied by the trial court. In
its order of July 15, 1992, the court stated:
The "Motion For Reconsideration" dated July 3, 1992 filed
by the respondents thru counsel, is hereby DENIED for
lack of merit. It appears too obvious that respondents
15 | P a g e
simply did not want to comply with the lawful orders of the
Court.
The respondents having lost their standing in Court, the
"Manifestation and Motion," dated July 3, 1992 filed by the
Office of the Solicitor General is hereby DENIED due
course.
SO ORDERED.
On July 3, 1992, the Solicitor General informed the trial
court that Cariño had ceased to be DECS Secretary and
asked for his substitution. But the court failed to act on
his motion.
The hearing of the case was thereafter conducted ex
parte with only the teachers allowed to present their
evidence.
On August 10, 1992, the trial court rendered a decision, in
which it stated:
The Court is in full accord with petitioners' contention that
Rep. Act No. 4670 otherwise known as the "Magna Carta
for Public School Teachers" is the primary law that
governs the conduct of investigation in administrative
cases filed against public school teachers, with Pres.
Decree No. 807 as its supplemental law. Respondents
erred in believing and contending that Rep. Act No. 4670
has already been superseded by the applicable provisions
of Pres. Decree No. 807 and Exec. Order No. 292. Under
the Rules of Statutory Construction, a special law, Rep.
Act. No. 4670 in the case at bar, is not regarded as having
been replaced by a general law, Pres. Decree No. 807,
unless the intent to repeal or alter the same is manifest. A
perusal of Pres. Decree No. 807 reveals no such intention
exists, hence, Rep. Act No. 4670 stands. In the event that
there is conflict between a special and a general law, the
former shall prevail since it evidences the legislator's
intent more clearly than that of the general statute and
must be taken as an exception to the General Act. The
provision of Rep. Act No. 4670 therefore prevails over
Pres. Decree No. 807 in the composition and selection of
the members of the investigating committee.
Consequently, the committee tasked to investigate the
charges filed against petitioners was illegally constituted,
their composition and appointment being violative of Sec.
9 of Rep. Act No. 4670 hence all acts done by said body
possess no legal color whatsoever.
Anent petitioners' claim that their dismissal was effected
without any formal investigation, the Court, after
consideration of the circumstances surrounding the case,
finds such claim meritorious. Although it cannot be gain
said that respondents have a cause of action against the
petitioner, the same is not sufficient reason to detract
from the necessity of basic fair play. The manner of
dismissal of the teachers is tainted with illegality. It is a
dismissal without due process. While there was a
semblance of investigation conducted by the respondents
their intention to dismiss petitioners was already manifest
when it adopted a procedure provided for by law, by
shifting the burden of proof to the petitioners, knowing
fully well that the teachers would boycott the proceedings
thereby giving them cause to render judgment ex-parte.
The DISMISSAL therefore of the teachers is not justified, it
being arbitrary and violative of the teacher's right to due
process. Due process must be observed in dismissing the
teachers because it affects not only their position but also
their means of livelihood.
WHEREFORE, premises considered, the present petition
is hereby GRANTED and all the questioned
orders/decisions of the respondents are hereby declared
NULL and VOID and are hereby SET ASIDE.
The reinstatement of the petitioners to their former
positions without loss of seniority and promotional rights
is hereby ORDERED.
The payment, if any, of all the petitioners' back salaries,
allowances, bonuses, and other benefits and emoluments
which may have accrued to them during the entire period
of their preventive suspension and/or dismissal from the
service is hereby likewise ORDERED.
From this adverse decision of the trial court; former DECS
Secretary Isidro Cariño filed an appeal with the Court of
Appeals raising the following grounds:
I. The trial court seriously erred in declaring appellants as
in default.
II. The trial court seriously erred in not ordering the proper
substitution of parties.
III. The trial court seriously erred in holding that R.A. No.
4670, otherwise known as "Magna Carta for Public School
Teachers", should govern the conduct of the investigation
conducted.
IV. The trial court seriously erred in ruling that the
dismissal of the teachers are without due process.
As mentioned earlier, the Court of Appeals affirmed the
RTC decision, holding in the main that private
respondents were denied due process in the
administrative proceedings instituted against them.
Hence, this petition for review.
The Issues
Before us, petitioners raise the following issues:
I
Whether or not Respondent Court of Appeals committed
grave abuse of discretion in holding in effect that private
respondents were denied due process of law.
II
Whether or not Respondent Court of Appeals seriously
erred and committed grave abuse of discretion in applying
strictly the provision of R.A. No. 4670 in the composition
of the investigating committee.
III
Whether or not Respondent Court of Appeals committed
grave abuse of discretion in dismissing the appeal and in
affirming the trial court's decision.
These issues, all closely related, boil down to a single
question: whether private respondents were denied due
process of law.
The Court's Ruling
The petition is bereft of merit. We agree with the Court of
Appeals that private respondents were denied due
process of law.
Denial of Due Process
At the outset, we must stress that we are tasked only to
determine whether or not due process of law was
observed in the administrative proceedings against herein
private respondents. We note the Solicitor General's
extensive disquisition that government employees do not
have the right to strike. On this point, the Court, in the
16 | P a g e
case of Bangalisan vs. Court of Appeals, has recently
pronounced, through Mr. Justice Florenz D. Regalado:
It is the settled rule in this jurisdiction that employees in
the public service may not engage in strikes. While the
Constitution recognizes the right of government
employees to organize, they are prohibited from staging
strikes, demonstrations mass leaves, walk-outs and other
forms of mass action which will result in temporary
stoppage or disruption of public services. The right of
government employees to organize is limited only to the
formation of unions or associations, without including the
right to strike.
More recently, in Jacinto vs. Court of Appeals, the Court
explained the schoolteachers' right to peaceful
assembly vis-a-vis their right to mass protest:
Moreover, the petitioners here, except Merlinda Jacinto,
were not penalized for the exercise of their right to
assemble peacefully and to petition the government for a
redress of grievances. Rather, the Civil Service
Commission found them guilty of conduct prejudicial to
the best interest of the service for having absented
themselves without proper authority, from their schools
during regular school days, in order to participate in the
mass protest, their absence ineluctably resulting in the
non-holding of classes and in the deprivation of students
of education, for which they were responsible. Had
petitioners availed themselves of their free time — recess,
after classes, weekends or holidays — to dramatize their
grievances and to dialogue with the proper authorities
within the bounds of law, no one — not the DECS, the CSC
or even this Court — could have held them liable for the
valid exercise of their constitutionally guaranteed rights.
As it was, the temporary stoppage of classes resulting
from their activity necessarily disrupted public services,
the very evil sought to be forestalled by the prohibition
against strikes by government workers. Their act by its
nature was enjoined by the Civil Service
law, rules and regulations, for which they must, therefore,
be made answerable.
In the present case, however, the issue is not whether the
private respondents engaged in any prohibited activity
which may warrant the imposition of disciplinary
sanctions against them as a result of administrative
proceedings. As already observed, the resolution of this
case revolves around the question of due process of law,
not on the right of government workers to strike. The
issue is not whether private respondents may be punished
for engaging in a prohibited action but whether, in the
course of the investigation of the alleged proscribed
activity, their right to due process has been violated. In
short, before they can be investigated and meted out any
penalty, due process must first be observed.
In administrative proceedings, due process has been
recognized to include the following: (1) the right to actual
or constructive notice of the institution of proceedings
which may affect a respondent's legal rights; (2) a real
opportunity to be heard personally or with the assistance
of counsel, to present witnesses and evidence in one's
favor, and to defend one's rights; (3) a tribunal vested with
competent jurisdiction and so constituted as to afford a
person charged administratively a reasonable guarantee
of honesty as well as impartiality; and (4) a finding by said
tribunal which is supported by substantial evidence
submitted for consideration during the hearing or
contained in the records or made known to the parties
affected.
The legislature enacted a special law, RA 4670 known as
the Magna Carta for Public School Teachers, which
specifically covers administrative proceedings involving
public schoolteachers. Section 9 of said law expressly
provides that the committee to hear public
schoolteachers' administrative cases should be composed
of the school superintendent of the division as chairman,
a representative of the local or any existing provincial or
national teachers' organization and a supervisor of the
division. The pertinent provisions of RA 4670 read:
Sec. 8. Safeguards in Disciplinary Procedure. — Every
teacher shall enjoy equitable safeguards at each stage of
any disciplinary procedure and shall have:
a: the right to be informed, in writing, of the charges;
b. the right to full access to the evidence in the case;
c. the right to defend himself and to be defended by a
representative of his choice and/or by his organization,
adequate time being given to the teacher for the
preparation of his defense; and
d. the right to appeal to clearly designated authorities. No
publicity shall be given to any disciplinary action being
taken against a teacher during the pendency of his case.
Sec. 9. Administrative Charges. — Administrative charges
against teacher shall be heard initially by a committee
composed of the corresponding School Superintendent of
the Division or a duly authorized representative who
would at least have the rank of a division supervisor,
where the teacher belongs, as chairman, a representative
of the local or, in its absence, any existing provincial or
national teacher's organization and a supervisor of the
Division, the last two to be designated by the Director of
Public Schools. The committee shall submit its findings,
and recommendations to the Director of Public Schools
within thirty days from the termination of the
hearings: Provided, however, That where the school
superintended is the complainant or an interested party,
all the members of the committee shall be appointed by
the Secretary of Education.
The foregoing provisions implement the Declaration of
Policy of the statute; that is, to promote the "terms of
employment and career prospects" of schoolteachers.
In the present case, the various committees formed by
DECS to hear the administrative charges against private
respondents did not include "a representative of the local
or, in its absence, any existing provincial or national
teacher's organization" as required by Section 9 of RA
4670. Accordingly, these committees were deemed to have
no competent jurisdiction. Thus, all proceedings
undertaken by them were necessarily void. They could not
provide any basis for the suspension or dismissal of
private respondents. The inclusion of a representative of a
teachers' organization in these committees was
indispensable to ensure an impartial tribunal. It was this
requirement that would have given substance and
meaning to the right to be heard. Indeed, in any
proceeding, the essence of procedural due process is
17 | P a g e
embodied in the basic requirement of notice and
a real opportunity to be heard.
Petitioners argue that the DECS complied with Section 9
of RA 4670, because "all the teachers who were members
of the various committees are members of either the
Quezon City Secondary Teachers Federation or the
Quezon City Elementary Teachers Federation" and are
deemed to be the representatives of a teachers'
organization as required by Section 9 of RA 4670.
We disagree. Mere membership of said teachers in their
respective teachers' organizations does not ipso
facto make them authorized representatives of such
organizations as contemplated by Section 9 of RA 4670.
Under this section, the teachers' organization possesses
the right to indicate its choice of representative to be
included by the DECS in the investigating committee.
Such right to designate cannot be usurped by the
secretary of education or the director of public schools or
their underlings. In the instant case, there is no dispute
that none of the teachers appointed by the DECS as
members of its investigating committee was ever
designated or authorized by a teachers' organization as its
representative in said committee.
Contrary to petitioners' asseverations, RA 4670 is
applicable to this case. It has not been expressly repealed
by the general law PD 807, which was enacted later, nor
has it been shown to be inconsistent with the latter. It is a
fundamental rule of statutory construction that "repeals
by implication are not favor. An implied repeal will not be
allowed unless it is convincingly and unambiguously
demonstrated that the two laws are so clearly repugnant
and patently inconsistent that they cannot co-exist. This is
based on the rationale that the will of the legislature
cannot be overturned by the judicial function of
construction and interpretation. Courts cannot take the
place of Congress in repealing statutes. Their function is
to try to harmonize, as much as possible, seeming
conflicts in the laws and resolve doubts in favor of their
validity and co-existence." Thus, a subsequent general
law does not repeal a prior special law, "unless the intent
to repeal or alter is manifest, although the terms of the
general law are broad enough to include the cases
embraced in the special law."
The aforementioned Section 9 of RA 4670, therefore,
reflects the legislative intent to impose a standard and a
separate set of procedural requirements in connection
with administrative proceedings involving public
schoolteachers. Clearly, private respondents' right to due
process of law requires compliance with these
requirements laid down by RA 4670. Verba legis non est
recedendum.
Hence, Respondent Court of Appeals, through Mr. Justice
Vicente V. Mendoza who is now a member of this Court,
perceptively and correctly stated:
Respondent-appellants argue that the Magna Carta has
been superseded by the Civil Service Decree (P.D. No.
807) and that pursuant to the latter law the head of a
department, like the DECS secretary, or a regional
director, like the respondent-appellant John Doe (not his
real name), can file administrative charges against a
subordinate, investigate him and take disciplinary action
against him if warranted by his findings. Respondentappellants cite in support of their argument the following
provisions of the Civil Service Decree (P.D. No. 807).
Sec. 37. Disciplinary Jurisdiction. —
xxx
xxx
xxx
b) The heads of departments, agencies and
instrumentalities. . . shall have jurisdiction to investigate
and decide matters involving disciplinary action against
officers and employees under their jurisdiction. . . .
Sec. 38. Procedure in Administrative Cases Against NonPresidential Appointees. —
a) Administrative Proceedings may be commenced
against a subordinate officer or the employee by the head
of department or officer of equivalent rank, or head of
local government, or chiefs of agencies, or regional
directors, or upon sworn, written complaint of any other
persons.
There is really no repugnance between the Civil Service
Decree and the Magna Carta for Public School Teachers.
Although the Civil Service Decree gives the head of
department or the regional director jurisdiction to
investigate and decide disciplinary matters, the fact is that
such power is exercised through committees. In cases
involving public school teachers, the Magna Carta
provides that the committee be constituted as follows:
Sec. 9. Administrative Charges. — Administrative charges
against a teacher shall be heard initially by a committee
composed of the corresponding School Superintendent of
the Division or a duly authorized representative who
would at least have the rank of a division supervisor,
where the teacher belongs, as chairman, a representative
of the local or, in its absence, any existing provincial or
national teacher's organization and a supervisor of the
Division, the last two to be designated by the Director of
Public Schools. The committee shall submit its findings,
and recommendations to the Director of Public Schools
within thirty days from the termination of the
hearings: Provided, however, that where the school
superintendent is the complainant or an interested party,
all the members of the committee shall be appointed by
the Secretary of Education.
Indeed, in the case at bar, neither the DECS [s]ecretary nor
the DECS-NCR regional director personally conducted the
investigation but entrusted it to a committee composed of
a division supervisor, secondly and elementary school
teachers, and consultants. But there was no
representative of a teacher’s organization. This is a
serious flaw in the composition of the committee because
the provision for the representation of a teacher’s
organization is intended by law for the protection of the
rights of teachers facing administrative charges.
There is thus nothing in the Magna Carta that is in any way
inconsistent with the Civil Service Decree insofar as
procedures for investigation is concerned. To the
contrary, the Civil Service Decree, [S]ec. 38(b) affirms the
Magna Carta by providing that the respondent in an
administrative case may ask for a "formal investigation,"
which was what the teachers did in this case by
questioning the absence of a representative of a teacher’s
organization in the investigating committee.
18 | P a g e
The administrative committee considered the teachers to
have waived their right to a hearing after the latter's
counsel walked out of the preliminary hearing. The
committee should not have made such a ruling because
the walk out was staged in protest against the procedures
of the committee and its refusal to give the teachers'
counsel a copy of the guidelines. The committee
concluded its investigation and ordered the dismissal of
the teachers without giving the teachers the right to full
access of the evidence against them and the opportunity
to defend themselves. Its predisposition to find petitionerappellees guilty of the charges was in fact noted by the
Supreme Court when in its resolution in G.R. No. 101943
(Rosario Septimo v. Judge Martin Villarama, Jr.) it stated:
The facts and issues in this case are similar to the facts
and issues in Hon. Isidro Cariño, et al. v. Hon. Carlos
C. Ofilada, et al. G.R. No. 100206, August 22, 1961.
As in the Cariño v. Ofilada case, the officials of the
Department of Culture and Education are predisposed to
summarily hold the petitioners guilty of the charges
against them. In fact, in this case Secretary Cariño,
without awaiting formal administrative procedures and on
the basis of reports and "implied admissions" found the
petitioners guilty as charged and dismissed them from the
service in separate decisions dated May 16, 1997 and
August 6, 1991. The teachers went to court. The Court
dismissed the case.
Furthermore, this Court sees no valid reason to disregard
the factual findings and conclusions of the Court of
Appeals. It is not our function "to assess and evaluate all
over again the evidence, testimonial and documentary,
adduced by the parties particularly where, such as here,
the findings of both the trial court and the appellate court
coincide."
It is as clear as day to us that the Court of Appeals
committed to reversible error in affirming the trial court's
decision setting aside the questioned orders of
petitioners; and ordering the unqualified reinstatement of
private respondents and the payment of them of salaries,
allowances, bonuses and other benefits
that accrued to their benefit during the entire duration of
their suspension or dismissal. Because the administrative
proceedings involved in this case are void, no
delinquency or misconduct may be imputed to private
respondents. Moreover, the suspension or dismissal
meted on them is baseless. Private respondents should,
as a consequence, be reinstated and awarded all monetary
benefits that may have accrued to them during the period
of their unjustified suspension or dismissal. This Court
will never countenance a denial of the fundamental right to
due process, which is a cornerstone of our legal system.
WHEREFORE, premises considered, the petition is hereby
DENIED for its utter failure to show any reversible error on
the part of the Court of Appeals. The assailed Decision is
thus AFFIRMED. SO ORDERED.
G.R. No. 131255 May 20, 1998
HON. EDUARDO NONATO JOSON, in his capacity as the
Governor of the Province of Nueva Ecija, petitioner,
vs.
EXECUTIVE SECRETARY RUBEN D. TORRES, the
DEPARTMENT OF THE INTERIOR & LOCAL
GOVERNMENTS, represented by SECRETARY ROBERT Z.
BARBERS and UNDERSECRETARY MANUEL R.
SANCHEZ, MR. OSCAR C. TINIO, in his capacity as
Provincial Vice-Governor of Nueva Ecija, and MR. LORETO
P. PANGILINAN, MR. CRISPULO S. ESGUERRA, MS.
SOLITA C. SANTOS, MR. VICENTE C. PALILIO, and MR.
NAPOLEON G. INTERIOR, in their capacity as Provincial
Board Members of Nueva Ecija, respondents.
PUNO, J.:
The case at bar involves the validity of the suspension
from office of petitioner Eduardo Nonato Joson as
Governor of the province of Nueva Ecija. Private
respondent Oscar C. Tinio is the Vice-Governor of said
province while private respondents Loreto P. Pangilinan,
Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio
and Napoleon Interior are members of the Sangguniang
Panlalawigan.
On September 17, 1996, private respondents filed with the
Office of the President a letter-complaint dated September
13, 1997 charging petitioner with grave misconduct and
abuse of authority. Private respondents alleged that in the
morning of September 12, 1996, they were at the session
hall of the provincial capitol for a scheduled session of the
Sangguniang Panlalawigan when petitioner belligerently
barged into the Hall; petitioner angrily kicked the door and
chairs in the Hall and uttered threatening words at them;
close behind petitioner were several men with long and
short firearms who encircled the area. Private respondents
claim that this incident was an offshoot of their resistance
to a pending legislative measure supported by petitioner
that the province of Nueva Ecija obtain a loan of P150
million from the Philippine National Bank; that petitioner's
acts were intended to harass them into approving this
loan; that fortunately, no session of the Sangguniang
Panlalawigan was held that day for lack of quorum and the
proposed legislative measure was not considered; that
private respondents opposed the loan because the
province of Nueva Ecija had an unliquidated obligation of
more than P70 million incurred without prior authorization
from the Sangguniang Panlalawigan; that the provincial
budget officer and treasurer had earlier disclosed that the
province could not afford to contract another obligation;
that petitioner's act of barging in and intimidating private
respondents was a serious insult to the integrity and
independence of the Sangguniang Panlalawigan; and that
the presence of his private army posed grave danger to
private respondents' lives and safety. Private respondents
prayed for the suspension or removal of petitioner; for an
emergency audit of the provincial treasury of Nueva Ecija;
and for the review of the proposed loan in light of the
financial condition of the province, to wit:
19 | P a g e
In this regard, we respectfully request for the following
assistance from your good office:
1. To immediately suspend Governor N. [sic] Joson
considering the actual dangers that we are facing now,
and provide adequate police security detail for the
Sangguniang Panlalawigan of Nueva Ecija. Should the
evidence warrant after investigation, to order his removal
from office.
2. To conduct an emergency audit of the provincial
treasury of Nueva Ecija by the auditors from the
Commission on Audit Central Office with adequate police
security assistance. Should the evidence so warrant, to
file necessary charges against responsible and
accountable officers.
3. To advise the Philippine National Bank to review the
capability of the province of Nueva Ecija to secure more
loans and the feasibility of the same in the light of the
present financial condition of the province. Or if said loan
will be contrary to sound banking practice, recommend its
disapproval.
The letter-complaint was submitted with the joint affidavit
of Elnora Escombien and Jacqueline Jane Perez, two (2)
employees of the Sangguniang Panlalawigan who
witnessed the incident. The letter was endorsed by
Congressmen Eleuterio Violago and Pacifico Fajardo of
the Second and Third Districts of Nueva Ecija, former
Congressman Victorio Lorenzo of the Fourth District, and
Mayor Placido Calma, President of the Mayors' League of
said province.
The President acted on the complaint by writing on its
margin the following:
17 Sep 96
To: SILG info Exec. Sec. and Sec. of Justice:
1. Noted. There appears no justification for the use of
force, intimidation or armed followers in the situation of 12
Sep at the Session Hall. 2. Take appropriate preemptive
and investigative actions. 3 BREAK NOT the PEACE.
FIDEL V. RAMOS
(Signed).
President Ramos noted that the situation of "12 Sep at the
Session Hall," i.e., the refusal of the members of the
Sangguniang Panlalawigan to approve the proposed loan,
did not appear to justify "the use of force, intimidation or
armed followers." He thus instructed the then Secretary of
the Interior and Local Governments (SILG) Robert Barbers
to "[t]ake appropriate preemptive and investigative
actions," but to "[b]reak not the peace."
The letter-complaint together with the President's marginal
notes were sent to Secretary Robert Z. Barbers on
September 20, 1996. Acting upon the instructions of the
President, Secretary Barbers notified petitioner of the case
against him 4 and attached to the notice a copy of the
complaint and its annexes. In the same notice, Secretary
Barbers directed petitioner "to submit [his] verified/sworn
answer thereto, not a motion to dismiss, together with
such documentary evidence that [he] has in support
thereof, within fifteen (15) days from receipt.
Immediately thereafter, Secretary Barbers proceeded to
Nueva Ecija and summoned petitioner and private
respondents to a conference to settle the controversy. The
parties entered into an agreement whereby petitioner
promised to maintain peace and order in the province
while private respondents promised to refrain from filing
cases that would adversely affect their peaceful coexistence.
The peace agreement was not respected by the parties
and the private respondents reiterated their lettercomplaint. Petitioner was again ordered to file his answer
to the letter-complaint within fifteen days from receipt.
Petitioner received a copy of this order on November 13,
1996. On the same day, petitioner requested for an
extension of thirty (30) days to submit his answer because
he was "trying to secure the services of legal counsel
experienced in administrative law practice. The
Department of the Interior and Local Government (DILG),
acting through Director Almario de los Santos, Officer-InCharge of the Legal Service, granted the motion, with the
thirty-day extension to be reckoned, however, from
November 13, 1996, i.e., the day petitioner received the
order to answer.
In a letter dated December 9, 1996, petitioner moved for
another extension of thirty (30) days to file his answer. He
stated that he had already sent letters to various law firms
in Metro Manila but that he had not yet contracted their
services; that the advent of the Christmas season kept
him busy with "numerous and inevitable official
engagements." The DILG granted the request for
extension "for the last time up to January 13 only."
On January 7, 1997, petitioner requested for another
extension of thirty (30) days to file his answer. According
to him, the Christmas season kept him very busy and
preoccupied with his numerous official engagements; that
the law firms he invited to handle his case have favorably
replied but that he needed time to confer with them
personally; and that during this period, he, with the help of
his friends, was exploring the possibility of an amicable
settlement of the case. The DILG granted petitioner's
request "for the last time" but gave him an extension of
only ten (10) days from January 13, 1997 to January 23,
1997. The DILG also informed him that his "failure to
submit answer will be considered a waiver and that the
plaintiff [shall] be allowed to present his evidence ex
parte."
Petitioner moved for reconsideration of the order. He
reiterated his prayer for an extension of thirty (30) days on
the following grounds: (a) that he was still in the process
of choosing competent and experienced counsel; (b) that
some law firms refused to accept his case because it was
perceived to be politically motivated; and (c) the
multifarious activities, appointments and official functions
of his office hindered his efforts to secure counsel of
choice.
20 | P a g e
Three months later, on April 22, 1997, Undersecretary
Manuel Sanchez, then Acting Secretary of the DILG,
issued an order declaring petitioner in default and to have
waived his right to present evidence. Private respondents
were ordered to present their evidence ex-parte. The order
reads as follows:
ORDER
It appearing that respondent failed to submit his answer to
the complaint despite the grant to him of three (3)
extensions, such unreasonable failure is deemed a waiver
of his right to present evidence in his behalf pursuant to
Section 4, Rule 4 of Administrative Order No. 23 dated
December 17, 1992, as amended.
Respondent is hereby declared in default, meanwhile,
complainants are directed to present their evidence exparte. However, considering the prohibition on the
conduct of administrative investigation due to the
forthcoming barangay elections, complainants will be
notified on the date after the barangay election for them to
present their evidence.
SO ORDERED.
Two days later, on April 24, 1997, the law firm of Padilla,
Jimenez, Kintanar & Asuncion, representing petitioner,
filed with the DILG an "Entry of Appearance with Motion
for Time to File Answer Ad Cautelam."
Petitioner received a copy of the order of default on May 2,
1997. Through counsel, he moved for reconsideration. On
May 19, 1997, Undersecretary Sanchez reconsidered the
order of default in the interest of justice. He noted the
appearance of petitioner's counsel and gave petitioner
"for the last time" fifteen (15) days from receipt to file his
answer.
On June 23, 1997, Undersecretary Sanchez issued an
order stating that petitioner's counsel, whose office is in
Manila, should have received a copy of the May 19, 1997
order ten days after mailing on May 27, 1997. Since
petitioner still failed to file his answer, he was deemed to
have waived his right to present evidence in his behalf.
Undersecretary Sanchez reinstated the order of default
and directed private respondents to present their
evidence ex-parte on July 15, 1997.
The following day, June 24, 1997, petitioner, through
counsel, filed a "Motion to Dismiss." Petitioner alleged
that the letter-complaint was not verified on the day it was
filed with the Office of the President; and that the DILG
had no jurisdiction over the case and no authority to
require him, to answer the complaint.
On July 4, 1997, petitioner filed an "Urgent ExParte Motion for Reconsideration" of the order of June 23,
1997 reinstating the order of default. Petitioner also
prayed that the hearing on the merits of the case be held
in abeyance until after the "Motion to Dismiss" shall have
been resolved.
On July 11, 1997, on recommendation of Secretary
Barbers, Executive Secretary Ruben Torres issued an
order, by authority of the President, placing petitioner
under preventive suspension for sixty (60) days pending
investigation of the charges against him.
Secretary Barbers directed the Philippine National Police
to assist in the implementation of the order of preventive
suspension. In petitioner's stead, Secretary Barbers
designated Vice-Governor Oscar Tinio as Acting Governor
until such time as petitioner's temporary legal incapacity
shall have ceased to exist.
Forthwith, petitioner filed a petition for certiorari and
prohibition with the Court of Appeals challenging the
order of preventive suspension and the order of default.
Meanwhile, the proceedings before the DILG continued.
On August 20, 1997, Undersecretary Sanchez issued an
order denying petitioner's "Motion to Dismiss" and "
Urgent Ex-Parte Motion for Reconsideration." In the same
order, he required the parties to submit their position
papers within an inextendible period of ten days from
receipt after which the case shall be deemed submitted for
resolution, to wit:
WHEREFORE, for lack of merit, both motions are denied.
However, for this office to have a better appreciation of the
issues raised in the instant case, the parties, through their
respective counsels are hereby directed to submit their
position papers within a period of ten (10) days from
receipt hereof, which period is inextendible, after which
the case is deemed submitted for resolution.
On August 27, 1997, petitioner filed with the DILG a
"Motion to Lift Order of Preventive Suspension." On
September 10, 1997, petitioner followed this with a
"Motion to Lift Default Order and Admit Answer Ad
Cautelam." Attached to the motion was the "Answer Ad
Cautelam".2 and sworn statements of his witnesses. On
the other hand, complainants (private respondents herein)
manifested that they were submitting the case for decision
based on the records, the complaint and affidavits of their
witnesses.
In his Answer Ad Cautelam, petitioner alleged that in the
morning of September 12, 1996, while he was at his
district office in the town of Munoz, he received a phone
call from Sangguniang Panlalawigan member Jose del
Mundo. Del Mundo, who belonged to petitioner's political
party, informed him that Vice-Governor Tinio was enraged
at the members of the Sangguniang Panlalawigan who
were in petitioner's party because they refused to place on
the agenda the ratification of the proposed P150 million
loan of the province. Petitioner repaired to the provincial
capitol to advise his party-mates on their problem and at
the same time attend to his official functions. Upon arrival,
he went to the Session Hall and asked the members
present where Vice-Governor Tinio was. However, without
waiting for their reply, he left the Hall and proceeded to his
office.
Petitioner claimed that there was nothing in his conduct
that threatened the members of the Sangguniang
Panlalawigan or caused alarm to the employees. He said
that like Vice-Governor Tinio, he was always accompanied
21 | P a g e
by his official security escorts whenever he reported for
work. He also alleged that the joint affidavit of Elnora
Escombien and Jacqueline Jane Perez was false.
Escombien was purportedly not inside the session hall
during the incident but was at her desk at the office and
could not in any way have seen petitioner in the hall. To
attest to the truth of his allegations, petitioner submitted
three (3) joint affidavits — two (2) affidavits executed by
six (6) and ten (10) employees, respectively, of the
provincial government, and a third by four members of the
Sangguniang Panlalawigan.
On September 11, 1997, petitioner filed an "Urgent Motion
for Reconsideration" of the order of August 20, 1997
denying his motion to dismiss. The "Urgent Motion for
Reconsideration" was rejected by Undersecretary
Sanchez on October 8, 1997. Undesecretary Sanchez,
however, granted the "Motion to Lift Default Order and to
Admit Answer Ad Cautelam" and admitted the "Answer Ad
Cautelam" as petitioner's position paper pursuant to the
order of August 20, 1997.
On October 15, 1997, petitioner filed a "Motion to Conduct
Formal Investigation." Petitioner prayed that a formal
investigation of his case be conducted pursuant to the
provisions of the Local Government Code of 1991 and
Rule 7 of Administrative Order No. 23; and that this be
held at the province of Nueva Ecija. On October 29, 1997,
petitioner submitted a "Manifestation and Motion" before
the DILG reiterating his right to a formal investigation.
In the meantime, on October 24, 1997, the Court of
Appeals dismissed petitioner's petition.
Hence this recourse.
The proceedings before the DILG continued however. In
an order dated November 11, 1997, the DILG denied
petitioner's "Motion to Conduct Formal Investigation"
declaring that the submission of position papers
substantially complies with the requirements of
procedural due process in administrative proceedings.
A few days after filing the petition before this Court,
petitioner filed a "Motion for Leave to File Herein
Incorporated Urgent Motion for the Issuance of a
Temporary Restraining Order and/or a Writ of Preliminary
Injunction." Petitioner alleged that subsequent to the
institution of this petition, the Secretary of the Interior and
Local Governments rendered a resolution on the case
finding him guilty of the offenses charged. His finding was
based on the position papers and affidavits of witnesses
submitted by the parties. The DILG Secretary found the
affidavits of complainants' witnesses to be "more natural,
reasonable and probable" than those of herein petitioner
Joson's.
On January 8, 1998, the Executive Secretary, by authority
of the President, adopted the findings and
recommendation of the DILG Secretary. He imposed on
petitioner the penalty of suspension from office for six (6)
months without pay, to wit:
WHEREFORE, as recommended by the Secretary of the
Interior and Local Government, respondent Nueva Ecija
Governor Eduardo Nonato Joson is hereby found guilty of
the offenses charged and is meted the penalty of
suspension from office for a period of six (6) months
without pay.
On January 14, 1998, we issued a temporary restraining
order enjoining the implementation of the order of the
Executive Secretary.
On January 19, 1998, private respondents submitted a
Manifestation informing this Court that the suspension of
petitioner was implemented on January 9, 1998; that on
the same day, private respondent Oscar Tinio was
installed as Acting Governor of the province; and that in
view of these events, the temporary restraining order had
lost its purpose and effectivity and was fait accompli. We
noted this Manifestation.
In his petition, petitioner alleges that:
I THE COURT OF APPEALS GRAVELY ERRED IN
HOLDING THAT RULES OF PROCEDURE AND EVIDENCE
SHOULD NOT BE STRICTLY APPLIED IN THE
ADMINISTRATIVE DISCIPLINARY AND CLEARLY
PUNITIVE PROCEEDINGS IN THE CASE AGAINST
PETITIONER GOVERNOR EDNO JOSON;
II THE COURT OF APPEALS GRAVELY ERRED IN
APPLYING THE ALTER-EGO PRINCIPLE BECAUSE,
CONTRARY TO LAW, IT WAS THE SECRETARY OF THE
DILG WHO WAS EXERCISING THE POWERS OF THE
PRESIDENT WHICH ARE CLEARLY VESTED BY LAW
ONLY UPON HIM OR THE EXECUTIVE SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT
THE PETITIONER WAS PROPERLY DECLARED IN
DEFAULT WHEN HE FILED A MOTION TO DISMISS
INSTEAD OF AN ANSWER, AS DIRECTED BY THE DILG,
BECAUSE A MOTION TO DISMISS BASED ON
JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE [sic]
PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES.
IV THE COURT OF APPEALS ERRED IN RULING THAT
THE IMPOSITION OF PREVENTIVE SUSPENSION
AGAINST THE PETITIONER WAS PROPER BECAUSE
THERE WAS NO JOINDER OF ISSUES YET UPON ITS
IMPOSITION AND THERE WAS NO EVIDENCE OF GUILT
AGAINST PETITIONER.
In his "Motion for Leave to File Herein Incorporated Urgent
Motion for the Issuance of a Temporary Restraining Order
and/or a Writ of Preliminary Injunction," petitioner also
claims that:
I THE RESOLUTION OF JANUARY 8, 1998 AND THE
MEMORANDA ISSUED PURSUANT THERETO (i.e.,
ANNEXES "C," "D," "E," "F," AND "G" HEREOF) WERE
ISSUED WITH UNDUE HASTE, IN VIOLATION OF THE
PERTINENT PROVISIONS OF THE 1991 LOCAL
GOVERNMENT CODE AND ADMINISTRATIVE ORDER NO.
23, AND IN COMPLETE DISREGARD OF PETITIONER'S
CONSTITUTIONAL RIGHT TO DUE PROCESS.
22 | P a g e
II THE IMPLEMENTATION OF THE INVALID RESOLUTION
OF JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE
PUBLIC RESPONDENTS ENTITLES PETITIONER TO THE
IMMEDIATE ISSUANCE OF THE TEMPORARY
RESTRAINING ORDER/WRIT OF PRELIMINARY
INJUNCTION HEREIN PRAYED FOR.
We find merit in the petition.
Administrative disciplinary proceedings against elective
local officials are governed by the Local Government Code
of 1991, the Rules and Regulations Implementing the
Local Government Code of 1991, and Administrative Order
No. 23 entitled "Prescribing the Rules and Procedures on
the Investigation of Administrative Disciplinary Cases
Against Elective Local Officials of Provinces, Highly
Urbanized Cities, Independent Component Cities, and
Cities and Municipalities in Metropolitan Manila." In all
matters not provided in A.O. No. 23, the Rules of Court
and the Administrative Code of 1987 apply in a suppletory
character.
I
Section 60 of Chapter 4, Title II, Book I of the Local
Government Code enumerates the grounds for which an
elective local official may be disciplined, suspended or
removed from office. Section 60 reads:
Sec. 60. Grounds for Disciplinary Actions. — An elective
local official may be disciplined, suspended, or removed
from office on any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross
negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude
or an offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive
working days, except in the case of members of the
sangguniang panlalawigan, sangguniang panlunsod,
sangguniang bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another
country; and
(h) Such other grounds as may be provided in this Code
and other laws.
An elective local official may be removed from office on
the grounds enumerated above by order of the proper
court.
When an elective local official commits an act that falls
under the grounds for disciplinary action, the
administrative complaint against him must be verified and
filed with any of the following:
Sec. 61. Form and Filing of Administrative Complaints. —
A verified complaint against any erring local elective
official shall be prepared as follows:
(a) A complaint against any elective official of a province,
a highly urbanized city, an independent component city or
component city shall be filed before the Office of the
President.
(b) A complaint against any elective official of a
municipality shall be filed before the sangguniang
panlalawigan whose decision may be appealed to the
Office of the President; and
(c) A complaint against any elective barangay official shall
be filed before the sangguniang panlungsod or
sangguniang bayan concerned whose decision shall be
final and executory.
An administrative complaint against an erring elective
official must be verified and filed with the proper
government office. A complaint against an elective
provincial or city official must be filed with the Office of
the President. A complaint against an elective municipal
official must be filed with the Sangguniang Panlalawigan
while that of a barangay official must be filed before the
Sangguniang Panlungsod or Sangguniang Bayan.
In the instant case, petitioner Joson is an elective official
of the province of Nueva Ecija. The letter-complaint
against him was therefore properly filed with the Office of
the President. According to petitioner, however, the lettercomplaint failed to conform with the formal requirements
set by the Code. He alleges that the complaint was not
verified by private respondents and was not supported by
the joint affidavit of the two witnesses named therein; that
private respondents later realized these defects and
surreptitiously inserted the verification and sworn
statement while the complaint was still pending with the
Office of the President. To prove his allegations, petitioner
submitted: (a) the sworn statement of private respondent
Solita C. Santos attesting to the alleged fact that after the
letter-complaint was filed, Vice-Governor Tinio made her
and the other members of the Sangguniang Panlalawigan
sign an additional page which he had later notarized; and
(b) the fact that the verification of the letter-complaint and
the joint affidavit of the witnesses do not indicate the
document, page or book number of the notarial register of
the notary public before whom they were made.
We find no merit in the contention of the petitioner. The
absence of the document, page or book number of the
notarial register of the subscribing officer is insufficient to
prove petitioner's claim. The lack of these entries may
constitute proof of neglect on the part of the subscribing
officer in complying with the requirements for notarization
and proper verification. They may give grounds for the
revocation of his notarial commission. But they do not
indubitably prove that the verification was inserted or
intercalated after the letter-complaint was filed with the
Office of the President.
Nor is the fact of intercalation sufficiently established by
the affidavit of Solita C. Santos. Private respondent Santos
23 | P a g e
was one of the signatories to the letter-complaint. In her
affidavit, she prayed that she be dropped as one of the
complainants since she had just joined the political party
of petitioner Joson. She decided to reveal the intercalation
because she was disillusioned with the "dirty tactics" of
Vice-Governor Tinio to grab power from petitioner
Joson.41 Private respondent Santos cannot in anyway be
considered an unbiased witness. Her motive and change
of heart render her affidavit suspect.
Assuming, nonetheless, that the letter-complaint was
unverified when submitted to the Office of the President,
the defect was not fatal. The requirement of verification
was deemed waived by the President himself when he
acted on the complaint.
Verification is a formal, not jurisdictional
requisite. Verification is mainly intended to secure an
assurance that the allegations therein made are done in
good faith or are true and correct and not mere
speculation. The lack of verification is a mere formal
defect. The court may order the correction of the pleading,
if not verified, or act on the unverified pleading if the
attending circumstances are such that a strict compliance
with the rule may be dispensed with in order that the ends
of justice may be served.
II
In his second assigned error, petitioner questions the
jurisdiction and authority of the DILG Secretary over the
case. He contends that under the law, it is the Office of the
President that has jurisdiction over the letter-complaint
and that the Court of Appeals erred in applying the alterego principle because the power to discipline elective
local officials lies with the President, not with the DILG
Secretary.
Jurisdiction over administrative disciplinary actions
against elective local officials is lodged in two authorities:
the Disciplining Authority and the Investigating Authority.
This is explicit from A.O. No. 23, to wit:
Sec. 2. Disciplining Authority. All administrative
complaints, duly verified, against elective local officials
mentioned in the preceding Section shall be acted upon
by the President. The President, who may act through the
Executive Secretary, shall hereinafter be referred to as the
Disciplining Authority.
Sec. 3. Investigating Authority. The Secretary of the
Interior and Local Government is hereby designated as the
Investigating Authority. He may constitute an Investigating
Committee in the Department of the Interior and Local
Government for the purpose.
The Disciplining Authority may, however, in the interest of
the service, constitute a Special Investigating Committee
in lieu of the Secretary of the Interior and Local
Government.
Pursuant to these provisions, the Disciplining Authority is
the President of the Philippines, whether acting by himself
or through the Executive Secretary. The Secretary of the
Interior and Local Government is the Investigating
Authority, who may act by himself or constitute an
Investigating Committee. The Secretary of the DILG,
however, is not the exclusive Investigating Authority. In
lieu of the DILG Secretary, the Disciplinary Authority may
designate a Special Investigating Committee.
The power of the President over administrative
disciplinary cases against elective local officials is derived
from his power of general supervision over local
governments. Section 4, Article X of the 1987 Constitution
provides:
Sec. 4. The President of the Philippines shall exercise
general supervision over local governments. Provinces
with respect to component cities and municipalities, and
cities and municipalities with respect to component
barangays shall ensure that the acts of their component
units are within the scope of their prescribed powers and
functions.
The power of supervision means "overseeing or the
authority of an officer to see that the subordinate officers
perform their duties." If the subordinate officers fail or
neglect to fulfill their duties, the official may take such
action or step as prescribed by law to make them perform
their duties. The President's power of general supervision
means no more than the power of ensuring that laws are
faithfully executed, or that subordinate officers act within
the law. Supervision is not incompatible with
discipline. And the power to discipline and ensure that the
laws be faithfully executed must be construed to authorize
the President to order an investigation of the act or
conduct of local officials when in his opinion the good of
the public service so requires. Thus:
Independently of any statutory provision authorizing the
President to conduct an investigation of the nature
involved in this proceeding, and in view of the nature and
character of the executive authority with which the
President of the Philippines is invested, the constitutional
grant to him of power to exercise general supervision over
all local governments and to take care that the laws be
faithfully executed must be construed to authorize him to
order an investigation of the act or conduct of the
petitioner herein. Supervision is not a meaningless thing.
It is an active power. It is certainly not withou t limitation,
but it at least implies authority to inquire into facts and
conditions in order to render the power real and effective.
If supervision is to be conscientious and rational, and not
automatic and brutal, it must be founded upon a
knowledge of actual facts and conditions disclosed after
careful study and investigation.
The power to discipline evidently includes the power to
investigate. As the Disciplining Authority, the President
has the power derived from the Constitution itself to
investigate complaints against local government officials.
A.O. No. 23, however, delegates the power to investigate
to the DILG or a Special Investigating Committee, as may
be constituted by the Disciplining Authority. This is not
undue delegation, contrary to petitioner Joson's claim.
The President remains the Disciplining Authority. What is
delegated is the power to investigate, not the power to
24 | P a g e
discipline. Moreover, the power of the DILG to investigate
administrative complaints is based on the alter-ego
principle or the doctrine of qualified political agency.
Thus:
Under this doctrine, which recognizes the establishment
of a single executive, all executive and administrative
organizations are adjuncts of the Executive Department,
the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except
in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of
the situation demand that he act personally, the
multifarious executive and administrative functions of the
Chief Executive are performed by and through the
executive departments, and the acts of the Secretaries of
such departments, performed and promulgated in the
regular course of business, are, unless disapproved or
reprobated by the Chief Executive presumptively the acts
of the Chief Executive.
This doctrine is corollary to the control power of the
President. The power of control is provided in the
Constitution, thus:
Sec. 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed. Control is said
to be the very heart of the power of the presidency As
head of the Executive Department, the President, however,
may delegate some of his powers to the Cabinet members
except when he is required by the Constitution to act in
person or the exigencies of the situation demand that he
acts personally. The members of Cabinet may act for and
in behalf of the President in certain matters because the
President cannot be expected to exercise his control (and
supervisory) powers personally all the time. Each head of
a department is, and must be, the President's alter ego in
the matters of that department where the President is
required by law to exercise authority.
The procedure how the Disciplining and Investigating
Authorities should exercise their powers is distinctly set
forth in the Local Government Code and A.O. No. 23.
Section 62 of the Code provides:
Sec. 62. Notice of Hearing. — (a) Within seven (7) days
after the administrative complaint is filed, the Office of the
President or the sanggunian concerned, as the case may
be, shall require the respondent to submit his verified
answer within fifteen (15) days from receipt thereof, and
commence investigation of the case within ten (10) days
after receipt of such answer of the respondent.
Sections 1 and 3, Rule 5 of A.O. No. 23 provide:
Sec. 1. Commencement. Within forty-eight (48) hours from
receipt of the answer, the Disciplining Authority shall refer
the complaint and answer, together with their attachments
and other relevant papers, to the Investigating Authority
who shall commence the investigation of the case within
ten (10) days from receipt of the same.
Sec. 3. Evaluation. Within twenty (20) days from receipt of
the complaint and answer, the Investigating Authority
shall determine whether there is a prima facie case to
warrant the institution of formal administrative
proceedings.
When an administrative complaint is therefore filed, the
Disciplining Authority shall issue an order requiring the
respondent to submit his verified answer within fifteen
(15) days from notice. Upon filing of the answer, the
Disciplining Authority shall refer the case to the
Investigating Authority for investigation.
In the case at bar, petitioner claims that the DILG
Secretary usurped the power of the President when he
required petitioner to answer the complaint. Undisputably,
the letter-complaint was filed with the Office of the
President but it was the DILG Secretary who ordered
petitioner to answer.
Strictly applying the rules, the Office of the President did
not comply with the provisions of A.O. No. 23. The Office
should have first required petitioner to file his answer.
Thereafter, the complaint and the answer should have
been referred to the Investigating Authority for further
proceedings. Be that as it may, this procedural lapse is
not fatal. The filing of the answer is necessary merely to
enable the President to make a preliminary assessment of
the case. The President found the complaint sufficient in
form and substance to warrant its further investigation.
The judgment of the President on the matter is entitled to
respect in the absence of grave abuse of discretion.
III
In his third assigned error, petitioner also claims that the
DILG erred in declaring him in default for filing a motion to
dismiss. He alleges that a motion to dismiss is not a
pleading prohibited by the law or the rules and therefore
the DILG Secretary should have considered it and given
him time to file his answer.
It is true that a motion to dismiss is not a pleading
prohibited under the Local Government Code of 1991 nor
in A.O. No. 23. Petitioner, however, was instructed not to
file a motion to dismiss in the order to file answer. Thrice,
he requested for extension of time to file his answer citing
as reasons the search for competent counsel and the
demands of his official duties. And, thrice, his requests
were granted. Even the order of default was reconsidered
and petitioners was given additional time to file answer.
After al the requests and seven months later, he filed a
motion to dismiss!
Petitioner should know that the formal investigation of the
case is required by law to be finished within one hundred
twenty (120) days from the time of formal notice to the
respondent. The extensions petitioners requested
consumed fifty-five (55) days of this period. Petitioner, in
fact, filed his answer nine (9) months after the first notice.
Indeed, this was more than sufficient time for petitioner to
comply with the order to file answer.
25 | P a g e
The speedy disposition of administrative complaints is
required by public service. The efficiency of officials under
investigation is impaired when a case hangs over their
heads. Officials deserve to be cleared expeditiously if they
are innocent, also expeditiously if guilty, so that the
business of government will not be prejudiced.
IV
In view of petitioner's inexcusable failure to file answer,
the DILG did not err in recommending to the Disciplining
Authority his preventive suspension during the
investigation. Preventive suspension is authorized under
Section 63 of the Local Government Code, viz:
Sec. 63. Preventive Suspension. — (a) Preventive
suspension may be imposed:
(1) By the President, if the respondent is an elective
official of a province, a highly urbanized or an
independent component city;
(b) Preventive suspension may be imposed at any time
after the issues are joined, when the evidence of guilt is
strong, and given the gravity of the offense, there is great
probability that the continuance in office of the
respondent could influence the witnesses or pose a threat
to the safety and integrity of the records and other
evidence; Provided, That, any single preventive
suspension of local elective officials shall not extend
beyond sixty (60) days: Provided, further, That in the event
that several administrative cases are filed against an
elective official, he cannot be preventively suspended for
more than ninety (90) days within a single year on the
same ground or grounds existing and known at the time of
the first suspension.
In sum, preventive suspension may be imposed by the
Disciplining Authority at any time (a) after the issues are
joined; (b) when the evidence of guilt is strong; and (c)
given the gravity of the offense, there is great probability
that the respondent, who continues to hold office, could
influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence.
Executive Secretary Torres, on behalf of the President,
imposed preventive suspension on petitioner Joson after
finding that:
DILG Secretary Robert Z. Barbers, in a memorandum for
the President, dated 23 June 1997, recommends that
respondent be placed under preventive suspension
considering that all the requisites to justify the same are
present. He stated therein that:
"Preventive suspension may be imposed at any time after
the issues are joined, that is, after respondent has
answered the complaint, when the evidence of guilt is
strong and, given the gravity of the offense, there is a
great possibility that the continuance in office of the
respondent could influence the witnesses or pose a threat
to the safety and integrity of the records and other
evidence (Sec. 3, Rule 6 of Administrative Order No. 23).
The failure of respondent to file his answer despite several
opportunities given him is construed as a waiver of his
right to present evidence in his behalf (Sec. 4, Rule 4 of
Administrative Order No. 23). The requisite of joinder of
issues is squarely met with respondent's waiver of right to
submit his answer. The act of respondent in allegedly
barging violently into the session hall of the Sangguniang
Panlalawigan in the company of armed men constitutes
grave misconduct. The allegations of complainants are
bolstered by the joint-affidavit of two (2) employees of the
Sangguniang Panlalawigan. Respondent who is the chief
executive of the province is in a position to influence the
witnesses. Further, the history of violent confrontational
politics in the province dictates that extreme
precautionary measures be taken."
Upon scrutiny of the records and the facts and
circumstances attendant to this case, we concur with the
findings of the Secretary of the Interior and Local
Government and find merit in the aforesaid
recommendation.
WHEREFORE, and as recommended by the Department of
the Interior and Local Government, respondent EDUARDO
N. JOSON, Governor of Nueva Ecija, is hereby placed
under PREVENTIVE SUSPENSION FOR A PERIOD OF
SIXTY (60) DAYS, effective 11 July 1997, pending
investigation of the charges filed against him.
SO ORDERED.
Executive Secretary Torres found that all the requisites
for the imposition of preventive suspension had been
complied with. Petitioner's failure to file his answer
despite several opportunities given him was construed as
a waiver of his right to file answer and present evidence;
and as a result of this waiver, the issues were deemed to
have been joined. The Executive Secretary also found that
the evidence of petitioner Joson's guilt was strong and
that his continuance in office during the pendency of the
case could influence the witnesses and pose a threat to
the safety and integrity of the evidence against him.
V
We now come to the validity of the January 8, 1998
Resolution of the Executive Secretary finding petitioner
guilty as charged and imposing on him the penalty of
suspension from office for six (6) months from office
without pay.
Petitioner claims that the suspension was made without
formal investigation pursuant to the provisions of Rule 7
of A.O. No. 23. Petitioner filed a "Motion To Conduct
Formal Investigation" three months before the issuance of
the order of suspension and this motion was denied by
the DILG for the following reasons:
On November 19, 1997, complainants, through counsel,
filed a Manifestation calling our attention to the Decision
dated October 24, 1997 of the Court of Appeals, Fifth
Division in CA-G.R. SP No. 44694, entitled "Eduardo
Nonato Joson versus Executive Secretary Ruben D.
Torres, et. al." In the aforestated decision, the Court of
26 | P a g e
Appeals resolved to sustain the authority of this
Department to investigate this administrative case and has
likewise validated the order of default as well as the order
of preventive suspension of the respondent.
We offer no objection and concur with the assertion of
respondent that he has the right for the conduct of formal
investigation. However, before there shall be a formal
investigation, joinder of issues must already be present or
respondent's answer has already been filed. In the case at
bar, the admission of respondent's answer after having
been declared in default was conditioned on the fact of
submission of position papers by the parties, after which,
the case shall be deemed submitted for resolution.
Respondent, instead of submitting his position paper filed
his subject motion while complainants manifested to
forego the submission of position paper and submit the
case for resolution on the basis of the pleadings on hand.
Settled is the rule that in administrative proceedings,
technical rules of procedure and evidence are not strictly
applied (Concerned Officials of the Metropolitan
Waterworks and Sewerage System v. Vasquez, 240 SCRA
502). The essence of due process is to be found in the
reasonable opportunity to be heard and to submit
evidence one may have in support of one's defense
(Tajonera v. Lamaroza, 110 SCRA 438). To be heard does
not only mean verbal arguments in court; one may be
heard also through pleadings. Where opportunity to be
heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process
(Juanita Y. Say, et. al; vs. IAC, G.R. No. 73451). Thus, when
respondent failed to submit his position paper as directed
and insisted for the conduct of formal investigation, he
was not denied of his right of procedural process.
WHEREFORE, the Motion for the Conduct of Formal
Investigation, for lack of merit, is DENIED.
SO ORDERED. The denial of petitioner's Motion to
Conduct Formal Investigation is erroneous. Petitioner's
right to a formal investigation is spelled out in the
following provisions of A.O. No. 23, viz:
Sec. 3 Evaluation. Within twenty (20) days from receipt of
the complaint and answer, the Investigating Authority
shall determine whether there is a prima facie case to
warrant the institution of formal administrative
proceedings.
Sec. 4. Dismissal motu proprio. If the Investigating
Authority determines that there is no prima facie case to
warrant the institution of formal administrative
proceedings, it shall, within the same period prescribed
under the preceding Section, submit its recommendation
to the Disciplining Authority for the motu
proprio dismissal of the case, together with the
recommended decision, resolution, and order.
Sec. 5. Preliminary conference. If the Investigating
Authority determines that there is prima facie case to
warrant the institution of formal administrative
proceedings, it shall, within the same period prescribed
under the preceding Section, summon the parties to a
preliminary conference to consider the following:
a) whether the parties desire a formal investigation or are
willing to submit the case for resolution on the basis of
the evidence on record; and
b) If the parties desire a formal investigation, to consider
the simplification of issues, the possibility of obtaining
stipulation or admission of facts and of documents,
specifically affidavits and depositions, to avoid
unnecessary proof, the limitation of number of witnesses,
and such other matters as may be aid the prompt
disposition of the case.
The Investigating Authority shall encourage the parties
and their counsels to enter, at any stage of the
proceedings, into amicable settlement, compromise and
arbitration, the terms and conditions of which shall be
subject to the approval of the Disciplining Authority.
After the preliminary conference, the Investigating
Authority shall issue an order reciting the matters taken
up thereon, including the facts stipulated and the
evidences marked, if any. Such order shall limit the issues
for hearing to those not disposed of by agreement or
admission of the parties, and shall schedule the formal
investigation within ten (10) days from its issuance, unless
a later date is mutually agreed in writing by the parties
concerned.
The records show that on August 27, 1997, petitioner
submitted his Answer Ad Cautelam where he disputed the
truth of the allegations that he barged into the session hall
of the capitol and committed physical violence to harass
the private respondents who were opposed to any move
for the province to contract a P150 million loan from PNB.
In his Order of October 8, 1997, Undersecretary Sanchez
admitted petitioner's Answer Ad Cautelam but treated it as
a position paper. On October 15, 1997, petitioner filed a
Motion to Conduct Formal Investigation. Petitioner
reiterated this motion on October 29, 1997. Petitioner's
motion was denied on November 11, 1997. Secretary
Barbers found petitioner guilty as charged on the basis of
the parties' position papers. On January 8, 1998, Executive
Secretary Torres adopted Secretary Barbers' findings and
recommendations and imposed on petitioner the penalty
of six (6) months suspension without pay.
The rejection of petitioner's right to a formal investigation
denied him procedural due process. Section 5 of A.O. No.
23 provides that at the preliminary conference, the
Investigating Authority shall summon the parties to
consider whether they desire a formal investigation. This
provision does not give the Investigating Authority the
discretion to determine whether a formal investigation
would be conducted. The records show that petitioner
filed a motion for formal investigation. As respondent, he
is accorded several rights under the law, to wit:
Sec. 65. Rights of Respondent. — The respondent shall be
accorded full opportunity to appear and defend himself in
person or by counsel, to confront and cross-examine the
witnesses against him, and to require the attendance of
27 | P a g e
witnesses and the production of documentary evidence in
his favor through compulsory process
of subpoena or subpoena duces tecum.
An erring elective local official has rights akin to the
constitutional rights of an accused. These rights are
essentially part of procedural due process. The local
elective official has the (1) the right to appear and defend
himself in person or by counsel; (2) the right to confront
and cross-examine the witnesses against him; and (3) the
right to compulsory attendance of witness and the
production of documentary evidence. These rights are
reiterated in the Rules Implementing the Local
Government Code and in A.O. No. 23. Well to note,
petitioner, formally claimed his right to a formal
investigation after his Answer Ad Cautelam has been
admitted by Undersecretary Sanchez.
Petitioner's right to a formal investigation was not
satisfied when the complaint against him was decided on
the basis of position papers. There is nothing in the Local
Government Code and its Implementing Rules and
Regulations nor in A.O. No. 23 that provide that
administrative cases against elective local officials can be
decided on the basis of position papers. A.O. No. 23 states
that the Investigating Authority may require the parties to
submit their respective memoranda but this is only after
formal investigation and hearing. A.O. No. 23 does not
authorize the Investigating Authority to dispense with a
hearing especially in cases involving allegations of fact
which are not only in contrast but contradictory to each
other. These contradictions are best settled by allowing
the examination and cross-examination of witnesses.
Position papers are often-times prepared with the
assistance of lawyers and their artful preparation can
make the discovery of truth difficult. The jurisprudence
cited by the DILG in its order denying petitioner's motion
for a formal investigation applies to appointive officials
and employees. Administrative disciplinary proceedings
against elective government officials are not exactly
similar to those against appointive officials. In fact, the
provisions that apply to elective local officials are
separate and distinct from appointive government officers
and employees. This can be gleaned from the Local
Government Code itself.
In the Local Government Code, the entire Title II of Book I
of the Code is devoted to elective officials. It provides for
their qualifications and
election, vacancies and succession, local
legislation, disciplinary
actions, and recall. Appointive officers and employees are
covered in Title III of Book I of the Code entitled "Human
Resources and Development." All matters pertinent to
human resources and development in local government
units are regulated by "the civil service law and such rules
and regulations and other issuances promulgated thereto,
unless otherwise provided in the Code." The
"investigation and adjudication of administrative
complaints against appointive local officials and
employees as well as their suspension and removal" are
"in accordance with the civil service law and rules and
other pertinent laws," the results of which "shall be
reported to the Civil Service Commission."
It is the Administrative Code of 1987, specifically Book V
on the Civil Service, that primarily governs appointive
officials and employees. Their qualifications are set forth
in the Omnibus Rules Implementing Book V of the said
Code. The grounds for administrative disciplinary action
in Book V are much more in number and are specific than
those enumerated in the Local Government Code against
elective local officials. The disciplining authority in such
actions is the Civil Service Commission.81 although the
Secretaries and heads of agencies and instrumentalities,
provinces, cities and municipalities are also given the
power to investigate and decide disciplinary actions
against officers and employees under their
jurisdiction.82 When a complaint is filed and the
respondent answers, he must "indicate whether or not he
elects a formal investigation if his answer is not
considered satisfactory."83 If the officer or employee elects
a formal investigation, the direct evidence for the
complainant and the respondent "consist[s] of the sworn
statement and documents submitted in support of the
complaint and answer, as the case may be, without
prejudice to the presentation of additional evidence
deemed necessary . . ., upon which the cross-examination
by respondent and the complainant, respectively, is
based."84 The investigation is conducted without adhering
to the technical rules applicable in judicial
proceedings."85 Moreover, the appointive official or
employee may be removed or dismissed summarily if (1)
the charge is serious and the evidence of guilt is strong;
(2) when the respondent is a recidivist; and (3) when the
respondent is notoriously undesirable.
The provisions for administrative disciplinary actions
against elective local officials are markedly different from
appointive officials. The rules on the removal and
suspension of elective local officials are more stringent.
The procedure of requiring position papers in lieu of a
hearing in administrative cases is expressly allowed with
respect to appointive officials but not to those elected. An
elective official, elected by popular vote, is directly
responsible to the community that elected him. The official
has a definite term of office fixed by law which is relatively
of short duration. Suspension and removal from office
definitely affects and shortens this term of office. When an
elective official is suspended or removed, the people are
deprived of the services of the man they had elected.
Implicit in the right of suffrage is that the people are
entitled to the services of the elective official of their
choice.88 Suspension and removal are thus imposed only
after the elective official is accorded his rights and the
evidence against him strongly dictates their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of
the public respondent Executive Secretary is declared null
and void and is set aside. No Cost.
SO ORDERED.
28 | P a g e
G.R. NO. 95326 MARCH 11, 1999
ROMEO P. BUSUEGO, CATALINO F. BANEZ AND RENATO
F. LIM, PETITIONERS,
VS.
THE HONORABLE COURT OF APPEALS AND THE
MONETARY BOARD OF THE CENTRAL BANK OF THE
PHILIPPINES, RESPONDENTS.
PURISIMA, J.:
This is a petition for review on certiorari under Rule 45 of
the Rules of Court seeking a reversal of the
Decision, 1 dated September 14, 1990, of the Court of
Appeals in CA-G.R. CV No. 23656.
As culled from the records; the facts of the case are as
follows:
The 16th regular examination of the books and records of
the PAL Employees Savings and Loan Association, Inc.
("PESALA") was conducted from March 14 to April 16,
1988 by a team of CB examiners headed by Belinda
Rodriguez. Following the said examination, several
anomalies and irregularities committed by the herein
petitioners; PESALA's directors and officers, were
uncovered, among which are:
1. Questionable investment in a multi-million peso real
estate project (Pesalaville).
2. Conflict of interest in the conduct of business.
3. Unwarranted declaration and payment of dividends.
4. Commission of unsound and unsafe business practices.
On July 19, 1988, Central Bank ("CB") Supervision and
Examination Section ("SES") Department IV Director
Ricardo F. Lirio sent a letter to the Board of Directors of
PESALA inviting them to a conference on July 21, 1988 to
discuss subject findings noted in the said 16th regular
examination, but petitioners did not attend such
conference.
On July 28, 1988, petitioner Renato Lim wrote the
PESALA's Board of Directors explaining his side on the
said examination of PESALA's records and requesting that
a copy .of his letter be furnished the CB, which was
forthwith made by the Board.
On July 29, 1988, PESALA's Board of Directors sent to
Director Lirio a letter concerning the 16th regular
examination of PESALA's records.
On September 9, 1988, the Monetary Board adopted and
issued MB Resolution No. 805 the pertinent provisions of
which are as follows:
1. To note the report on the examination of the PAL
Employees' Savings and Loan Association, Inc. (PESALA)
as of December 31, 1987, as submitted in a memorandum
of the Director, Supervision and Examination Section
(SES) Department IV, dated August 19, 1988;
2. To require the board of directors of PESALA to
immediately inform the members of PESALA of the results
of the "Central Bank examination. and their effects on the
financial condition of the Association;
5. To include the names of Mr. Catalino Banez, Mr. Romeo
Busuego and Mr. Renato Lim in the Sector's watchlist to
prevent them from holding responsible positions in any
institution under Central Bank supervision;
6. To require PESALA to enforce collection of the
overpayment to the Vista Grande Management and
Development Corporation and to require the accounting of
P12.28 million unaccounted and unremitted bank loan
proceeds and P3.9 million other unsupported cash
disbursements from the responsible directors and
officers; or to properly charge these against their
respective accounts, if necessary;
7. To require the board of directors of PESALA to file civil
and criminal cases against Messrs. Catalino Banez,
Romeo Busuego and Renato Lim for all the misfeasance
and malfeasance committed by them, as warranted by the
evidence;
8. To require the board of directors of PESALA to improve
the operations of the Association; correct all violations
noted, and adopt internal control measures to prevent the
recurrence of similar incidents as shown in Annex E of the
subject memorandum of the Director, SES Department IV;
On January 23, 1989, petitioners filed a Petition for
Injunction with Prayer for the Immediate Issuance of a
Temporary Restraining Order docketed as Civil Case No.
Q-89-1617 before Branch 104 of the Regional Trial Court of
Quezon City.
On January 26, 1989, the said court issued. a temporary
restraining
order enjoining the defendant, the Monetary Board of the
Central Bank, (now Banko Sentral ng Pilipinas) from
including the names of petitioners in the watchlist.
On February 10, 1989, the same trial Court issued a writ of
preliminary injunction, conditioned upon the filing by
petitioners of a bond in the amount of Ten Thousand
(P10,000.00) Pesos each. The Monetary Board presented a
Motion for Reconsideration of the said Order, but the
same was denied.
On September 11, 1999, the trial court handed down its
Decision, disposing thus:
WHEREFORE, judgment is hereby rendered declaring
Monetary Board Resolution No. 805 as void and in
existent. The writ of preliminary prohibitory injunctions
issued on February 10, 1989 is deemed permanent. Costs
against respondent.
The Monetary Board appealed the aforesaid Decision to
the Court of Appeals which came out with a Decision of
reversal on September 14, 1990, the decretal portion of
which is to the following effect:
WHEREFORE, the decision appealed from is hereby
reversed and another one entered dismissing the petition
for injunction.
29 | P a g e
Dissatisfied with the said Decision of the Court of
Appeals, petitioners have come to this Court via the
present petition for review on certiorari.
On June 5, 1992, petitioners filed an "Urgent Motion for
the Immediate Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction against the Secretary
of Justice and the City Prosecutor of Pasay" 10 stating that
several complaints were lodged against the petitioners
before the Office of the City Prosecutor of Pasay City
pursuant to Monetary Board Resolution No. 805; that the
said complaints were dismissed, by the City Prosecutor
and the dismissals were appealed to the Secretary of
Justice for review, some of which have been reversed
already. Petitioners prayed that Temporary Restraining
Order and/or Writ of Preliminary Injunction issue
"restraining and enjoining the Secretary of Justice and the
City Prosecutor of Pasay City from proceeding and taking
further actions, and more specially from filing
Information's in I.S. Nos. 90-1836; 90- 1831; 90-1835; 901832; 90-1248; 90-1249; 90-3031; 90-3032; 90- 1837; 901834, pending the final resolution of the case at bar . . ."
However, in the Resolution dated September 9, 1992, the
court denied the said motion.
The petition poses as issues for resolution:
I
WHETHER OR NOT THE PETITIONERS WERE DEPRIVED
OF THEIR RIGHT TO A NOTICE AND THE OPPORTUNITY
TO BE HEARD BY THE MONETARY BOARD PRIOR TO ITS
ISSUANCE OF MONETARY BOARD RESOLUTION NO. 805.
II
WHETHER OR NOT THE RESPONDENT BOARD IS
LEGALLY BOUND TO OBSERVE THE ESSENTIAL
REQUIREMENTS OF DUE PROCESS OF A VALID
CHARGE, NOTICE AND OPPORTUNITY TO BE HEARD
INSOFAR AS THE PETITIONERS SUBJECT CASE IS
CONCERNED.
III
WHETHER OR NOT MONETARY BOARD RESOLUTION
NO. 805 IS NULL AND VOID FOR BEING VIOLATIVE OF
PETITIONERS' RIGHTS TO DUE PROCESS.
With respect to the first issue, the trial court said:
The evidence submitted Preponderates in favor of
petitioners. The deprivation of petitioners' rights in the
Resolution undermines the constitutional guarantee of
due process. Petitioners were never notified that they
were being investigated, much so, they were not informed
of any charges against them and were not afforded the
opportunity to adduce countervailing evidence so as to
deserve the punitive measures promulgated in Resolution
No. 805 of the Monetary Board . . .
The foregoing disquisition by the trial court is untenable
under the facts and circumstances of the case. Petitioners
were duly afforded their right to due process by the
Monetary Board, it appearing that:
1. Petitioners were invited by Director Lirio to a
conference scheduled for July 21, 1988 to discuss the
findings made in the 16th regular examination of
PESALA's records. Petitioners did not attend said
conference;
2. Petitioner Renato Lim's letter of July 28, 1988 to
PESALA.'s Board of Directors, explaining his side of the
controversy, was forwarded to the Monetary Board which
the latter considered in adopting Monetary Board
Resolution No. 805; and
3. PESALA's Board of Director's letter, dated July 29, 1988,
to Monetary Board, explaining the Board's side of the
controversy was properly considered in the adoption of
Monetary Board Resolution No. 805.
Petitioners therefore cannot complain of deprivation of
their right to due process, as they were given ample
opportunity by the Monetary Board to air their submission
and defenses as to the findings of irregularity during the
said 16th regular examination. The essence of due
process is to be afforded a reasonable opportunity to be
heard and to submit any evidence one may have in
support of his defense. What is offensive to due process
is the denial of the opportunity to be heard. Petitioner
having availed of their opportunity to present their
position to the Monetary Board by their lettersexplanation, they were not denied due process.
Petitioners cite Ang Tibay v. CIR and assert that the
following requisites of procedural due process were not
observed by the Monetary Board:
1. The right to a hearing, which includes the right to
present one's case and submit evidence in support
thereof;
2. The tribunal must consider the evidence presented;
3. The decision must have something to support itself;
4. The evidence must be substantial;
5. The decision must be rendered on the evidence
presented at the hearing, or at least contained in the
record and disclosed to the parties affected;
6. The tribunal or body or any of its judges must act on its
or his own independent consideration of the law and facts
of the controversy and not simply accept the view of a
subordinate in arriving at a decision;
7. The board or body should, in all controversial question,
renders its decision in such manner that the parties to the
proceedings can know the various issues involved and the
reason for the decision rendered.
Contrary to petitioners' allegation, it appears that the
requisites of procedural due process were complied with
by the Monetary Board before it issued the questioned
Monetary Board Resolution No. 805. Firstly, the petitioner
were invited to a conference to discuss the findings
gathered during the 16th regular examination of PESALA's
records. (The requirement of a hearing is complied with as
long as there was an opportunity to be heard, and not
30 | P a g e
necessarily that an actual hearing was conducted. )
Secondly, the Monetary Board considered the evidence
presented. Thirdly, fourthly, and fifthly, Monetary Board
Resolution No. 805 was adopted on the basis of said
findings unearthed during the 16th regular examination of
PESALA's records and derived from the letter-comments
submitted by the parties. Sixthly, the members of the
Monetary Board acted independently on their own in
issuing subject Resolution, placing reliance on the said
findings made during the 16th regular examination. Lastly,
the reason for the issuance of Monetary Board Resolution
No. 805 is readily apparent, which is to prevent further
irregularities from being committed and to prosecute the
officials responsible therefor.
With respect to the second issue, there is tenability in
petitioners' contention that the Monetary Board, as an
administrative agency, is legally bound to observe due
process, although they are free from the rigidity of certain
procedural requirements. As held in Adamson and
Adamson, Inc. v. Amores.
While administrative tribunals exercising quasi-judicial
functions are free from the rigidity of certain procedural
requirements they are bound by law and practice to
observe the fundamental and essential requirements of
due process in justiciable cases presented before them.
However, the standard of due process that must be met in
administrative tribunals allows a certain latitude as long
as the element of fairness is not ignored. Hence, there is
no denial of due process where records show that
hearings were held with prior notice to adverse parties.
But even in the absence of previous notice, there is no
denial of procedural due process as long as the parties
are given the opportunity to be heard.
Even Section 28, (c) and (d), of Republic Act No. 3779 ("RA
1779") delineating the powers of the Monetary Board over
savings and loan associations, require observance of due
process in the exercise of its powers:
(c) To conduct at least once every year, and whenever
necessary, any inspection, examination or investigation of
the books and records, business affairs, administration,
and financial condition of any savings and loan
association with or without prior notice but always with
fairness and reasonable opportunity for the association or
any of its officials to give their side of the case. . .
(d) After proper notice and hearing, to suspend a savings
and loan association for violation of law, for unsafe and
unsound practices or for reason of insolvency. . .
(f) To decide, after appropriate notice and hearings any
controversy as to the rights or obligations of the savings
and loan association, its directors, officers, stockholders
and members under its charter, and, by order, to enforce
the same;
(emphasis supplied)
Anent the third issue, petitioners theorize that Monetary
Board Resolution No. 805 is null and void for being
violative of petitioners' right to due process. To support
their stance, they cite the trial court's ruling, to wit:
A reading of Monetary Board Resolution No. 805 discloses
that it imposes administrative sanctions against
petitioners. In fact, it does not only penalize petitioners by
including them in the "watchlist to prevent them from
holding responsible positions in any institution under
Central Bank supervision," it mandates the PESALA Board
of Directors as well to file Civil and Criminal charges
against them 'for all the misfeasance and malfeasance
committed by them, as warranted by the evidence.'
Monetary Board Resolution No. 805 virtually deprives
petitioners their respective gainful employment, and at the
same time marks them for judicial prosecution. The crucial
question here is that were petitioners afforded due
process in the investigations conducted which prompted
the issuance of Monetary Board Resolution No. 805?
. . . Although the Monetary Board is free from the rigidity
of certain procedural requirements, it failed "to observe
the essential requirement of due process" (Adamson and
Adamson, Inc. v. Amores, 152 SCRA 237) specifically its
failure to afford petitioners the opportunity to be heard. In
short, there is a clear showing of arbitrariness resulting in
an irreparable injury against petitioners as the Resolution
certainly affects their "life, liberty and property.
Monetary Board Resolution No. 805 violates basic and
essential requirements. It must therefore be, as it is
hereby, declared, as void and inexistent because among
other things, it openly derogates the fundamental rights of
petitioners.
Petitioners opine that with the issuance of Monetary Board
Resolution No. 805, "they are now barred from being
elected or designated as officers again of PESALA, and
are likewise prevented from future engagements or
employments in all institutions under the supervision of
the Central Bank thereby virtually depriving them of the
opportunity to seek employments in the field which they
can excel and are best fitted." According to them, the
Monetary Board is not vested with "the authority to
disqualify persons from occupying positions in
institutions under the supervision of the Central Bank
without proper notice and hearing" nor is it vested with
authority "to file civil and criminal cases against its
officers directors for suspected fraudulent acts."
Petitioners' contentions are untenable. It must be
remembered that the Central Bank of the Philippines (now
Bangko Sentral ng Pilipinas), through the Monetary Board,
is the government agency charged with the responsibility
of administering the monetary, banking and credit system
of the country and is granted the power of supervision and
examination over banks and non-bank financial
institutions performing quasi-banking functions of which
savings and loan associations, such as PESALA, from
part of.
The special law governing savings and loan associations
is Republic Act No. 3779, as amended, otherwise known
as the "Savings and Loan Association Act." Said law
31 | P a g e
authorizes the Monetary Board to conduct regular yearly
examinations of the books and records of savings and
loans associations, to suspend a savings and loan
association for violation of law, to decide any controversy
over the obligations and duties of directors and officers,
and to take remedial measures, among others. Section 28
of Rep. Act No. 3779, reads;
Sec. 28. Supervisory powers over savings and loan
associations. — In addition to whatever powers have been
conferred by the foregoing provisions, the Monetary
Board shall have the power to exercise the following.
(c) To conduct atleast once every year, and whenever
necessary, any inspection, examination or investigation of
the books and records, business affairs, administration,
and financial condition of any savings and loan
association with or without prior notice but always with
fairness and reasonable opportunity for the association or
any of its official to give their side of the case. Whenever
an inspection, examination or investigation is conducted
under this grant power, the person authorized to do so
may seize books and records and keep them under his
custody after giving proper receipts therefor; may make
any marking or notation on any paper, record, document
or book to show that it has been examined and verified;
and may padlock or seal shelves, vaults, safes,
receptacles or similar container and prohibit the opening
thereof without first securing authority therefor, for as
long as may be necessary in connection with the
investigation or examination being conducted. The official
of the Central Bank in charge of savings and loan
associations and his deputies are hereby authorized to
administer oaths to any directors, officer or employee of
any association under the supervision of the Monetary
Board;
(d) After proper notice and hearing, to suspend a savings
and loan association for violation of law, for unsafe and
unsound practices or for reason of insolvency. The
Monetary Board may likewise, upon the proof that a
savings and loan association or its board or directors or
officers are conducting and managing its affairs in a
manner contrary to laws, orders, instruction, rules and
regulations promulgated by the Monetary Board or in a
manner substantially prejudicial to the interest of the
government, depositors or creditors, take over the
management of the savings and loan association after due
hearing, until a new board of directors and officers are
elected and qualified without prejudice to the prosecution
of the persons responsible for such violations. The
management by the Monetary Board shall be without
expense to the savings and loan association, except such
as is actually necessary for its operation, pending the
election and qualification of a new board of directors and
officers to take the place of those responsible for the
violation or acts contrary to the interest of the
government, depositors or creditors;
(f) To decide, after appropriate notice and hearings any
controversy as to the rights or obligations of the savings
and loan association, its directors, officers, stockholders
and members under its charter, and, by order, to enforce
the same;
(I) To conduct such investigations, take such remedial
measures, exercise all powers which are now or may
hereafter be conferred upon it by Republic Act Numbered
Two Hundred sixty-five in the enforcement of this
legislation, and impose upon associations, whether stock
or non-stock their directors and/or officers administrative
sanctions under Sections 34-A or 34-B of Republic Act
Two Hundred sixty-five, as amended.
From the foregoing, it is gleanable that the Central Bank,
through the Monetary Board, is empowered to conduct
investigations and examine the records of savings and
loan associations. If any irregularity is discovered in the
process, the Monetary Board may impose appropriate
sanctions, such as suspending the offender from holding
office or from being employed with the Central Bank, or
placing the names of the offenders in a watchlist.
The requirement of prior notice is also relaxed under
Section 28 (c) of RA 3779 as investigations or
examinations may be conducted with or without prior
notice "but always with fairness and reasonable
opportunity for the association or any of its officials to
give their side." As may be gathered from the records, the
said requirement was properly complied with by the
respondent Monetary Board.
We sustain the ruling of the Court of Appeals that
petitioners' suspension was only preventive in nature and
therefore, no notice or hearing was necessary. Until such
time that the petitioners have proved their innocence, they
may be preventively suspended from holding office so as
not to influence the conduct of investigation, and to
prevent the commission of further irregularities.
Neither were petitioners deprived of their lawful calling as
they are free to look for another employment so long as
the agency or company involved is not subject to Central
Bank control and supervision. Petitioners can still practise
their profession or engage in business as long as these
are not within the ambit of Monetary Board Resolution No.
805.
All thing studiedly considered, the court upholds the
validity of Monetary Board Resolution No. 805 and affirms
the decision of the respondent court.
WHEREFORE, the petition is DENIED, and the assailed
Decision dated September 14, 1996 of the AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
G.R. NO. 127838 JANUARY 21, 1999
CIVIL SERVICE COMMISSION, PETITIONER,
VS.
JOSE J. LUCAS, RESPONDENT.
PARDO, J.:
The petition for review on certiorari before the Court
assails the decision of the Court of Appeals which set
32 | P a g e
aside the resolution of the Civil Service Commission and
reinstated that of the Board of Personnel Inquiry (BOPI for
brevity), Office of the Secretary, Department of
Agriculture, suspending respondent for one month, for
simple misconduct.
To provide a factual backdrop of the case, a recital of the
facts is necessary.
On May 26, 1992, Raquel P. Linatok, an assistant
information officer at the Agricultural Information Division,
Department of Agriculture (DA for brevity), filed with the
office of the Secretary, DA, an affidavit-complaint against
respondent Jose J. Lucas, a photographer of the same
agency, for misconduct.
Raquel described the incident in the following manner:
While standing before a mirror, near the office door of
Jose J. Lucas, Raquel noticed a chair at her right side
which Mr. Jose Lucas, at that very instant used to sit
upon. Thereafter, Mr. Lucas bent to reach for his shoe. At
that moment she felt Mr. Lucas' hand touching her thigh
and running down his palm up to her ankle. She was
shocked and suddenly faced Mr. Lucas and admonished
him not to do it again or she will kick him. But Lucas
touched her again and so she hit Mr. Lucas. Suddenly Mr.
Lucas shouted at her saying "lumabas ka na at huwag na
huwag ka nang papasok dito kahit kailan" A verbal
exchange then ensued and respondent Lucas grabbed
Raquel by the arm and shoved her towards the door
causing her to stumble, her both hands protected her face
from smashing upon the door.
Mr. Lucas, bent on literally throwing the affiant out of the
office, grabbed her the second time while she attempted to
regain her posture after being pushed the first time. . . .
while doing all this, Mr. Lucas shouted at the affiant,
saying, "labas, huwag ka nang papasok dito kahit kailan".
On June 8, 1992, the Board of Personnel Inquiry, DA,
issued a summons requiring respondent to answer the
complaint, not to file a motion to dismiss, within five (5)
days from receipt. On June 17, 1992, respondent Lucas
submitted a letter to Jose P. Nitullano, assistant head,
BOPI, denying the charges. According to Lucas, he did not
touch the thigh of complainant Linatok, that what
transpired was that he accidentally brushed Linatok's leg
when he reached for his shoes and that the same was
merely accidental and he did not intend nor was there
malice when his hand got in contact with Linatok's leg.
On May 31, 1993, after a formal investigation by the BOPI,
DA, the board issued a resolution finding respondent
guilty of simple misconduct and recommending a penalty
of suspension for one (1) month and one (1) day. The
Secretary of Agriculture approved the recommendation.
In due time, respondent appealed the decision to the Civil
Service Commission (CSC). On July 7, 1994, the CSC
issued a resolution finding respondent guilty of grave
misconduct and imposing on him the penalty of dismissal
from the service. Respondent moved for reconsideration
but the CSC denied the motion.
Then, respondent appealed to the Court of Appeals. On
October 29, 1996, the Court of Appeals promulgated its
decision setting aside the resolution of the CSC and
reinstating the resolution of the BOPI, DA, stating thus: "It
is true that the Civil Service Act does not define grave and
simple misconduct. There is, however, no question that
these offenses fall under different categories. This is clear
from a perusal of memorandum circular No. 49-89 dated
August 3, 1989 (also known as the guidelines in the
application of penalties in administrative cases) itself
which classifies administrative offenses into three: grave,
less grave and light offenses. The charge of grave
misconduct falls under the classification of grave offenses
while simple misconduct is classified as a less grave
offense. The former is punishable by dismissal while the
latter is punishable either by suspension (one month and
one day to six months), if it is the first offense; or by
dismissal, if it is the second. Thus, they should be treated
as separate and distinct offenses.
The Court of Appeals further ruled that "a basic
requirement of due process on the other hand is that a
person must be duly informed of the charges against him
(Felicito Sajonas vs. National Labor Relations
Commission, 183 SCRA 182). In the instant case however,
Lucas came to know of the modification of the charge
against him only when he received notice of the resolution
dismissing him from the service.
Hence, this petition.
The issues are (a) whether respondent Lucas was denied
due process when the CSC found him guilty of grave
misconduct on a charge of simple misconduct, and (b)
whether the act complained of constitutes grave
misconduct.
Petitioner anchors its position on the view that "the formal
charge against a respondent in an administrative case
need not be drafted with the precision of an information in
a criminal prosecution. It is sufficient that he is apprised
of the substance of the charge against him; what is
controlling is the allegation of the acts complained of, and
not the designation of the offense.
We deny the petition.
As well stated by the Court of Appeals, there is an existing
guideline of the CSC distinguishing simple and grave
misconduct. In the case of Landrito vs. Civil Service
Commission, we held that "in grave misconduct as
distinguished from simple misconduct, the elements of
corruption, clear intent to violate the law or flagrant
disregard of established rule, must be manifest, which is
obviously lacking in respondent's case. Respondent
maintains that as he was charged with simple misconduct,
the CSC deprived him of his right to due process by
convicting him of grave misconduct.
We sustain the ruling of the Court of Appeals that: (a) a
basic requirement of due process is that a person must be
duly informed of the charges against him and that (b) a
person cannot be convicted of a crime with which he was
not charged.
33 | P a g e
Administrative proceedings are not exempt from basic and
fundamental procedural principles, such as the right to
due process in investigations and hearings.
The right to substantive and procedural due process is
applicable in administrative proceedings.
Of course, we do not in any way condone respondent's
act. Even in jest, he had no right to touch complainant's
leg. However, under the circumstances, such act is not
constitutive of grave misconduct, in the absence of proof
that respondent was maliciously motivated. We note that
respondent has been in the service for twenty (20) years
and this is his first offense.
IN VIEW WHEREOF, the Court hereby DENIES the petition
for review on certiorari and AFFIRMS the decision of the
Court of Appeals in CA-G.R. SP No. 37137. No cost.
SO ORDERED.
G.R. No. 156208
NPC DRIVERS AND MECHANICS ASSOCIATION (NPC
DAMA), represented by its President ROGER S. SAN
JUAN, SR., NPC EMPLOYEES & WORKERS UNION
(NEWU)- NORTHERN LUZON, REGIONAL CENTER,
represented by its Regional President JIMMY D. SALMAN,
in their own individual capacities and in behalf of the
members of the associations and all affected officers and
employees of National Power Corporation (NPC), ZOL D.
MEDINA, NARCISO M. MAGANTE, VICENTE B. CIRIO, JR.,
NECITAS B. CAMAMA, in their individual capacities as
employees of National Power Corporation, Petitioners
vs.
THE NATIONAL POWER CORPORATION (NPC),
NATIONAL POWER BOARD OF DIRECTORS (NPB), JOSE
ISIDRO N. CAMACHO as Chairman of the National Power
Board of . Directors (NPB), ROLANDO S. QUILALA, as
President-Officer-in-Charge/CEO of National Power
Corporation and Member of National Power Board, and
VINCENT S. PEREZ, JR., EMILIA T. BONCODIN, MARIUS P.
CORPUS, RUBEN S. REINOSO, JR., GREGORY L.
DOMINGO and NIEVES L. OSORIO, Respondents
LEONARDO-DE CASTRO, J.:
For resolution are the following motions filed subsequent
to the entry in the Book of Entries of the Judgment of the
Court's decision in the above-entitled case: (a) the
National Power Corporation (NPC)'s Manifestation and
Motion dated August 22, 2014; (b) Power Sector Assets
and Liabilities Management Corporation (PSALM)' s
Omnibus Motion dated August 22, 2015; (c) the petitioners'
Motion to Expunge dated September 1, 2014; and (d)
Meralco's Special Appearance with Urgent Motion for
Clarification dated September 4, 2014.
Antecedent Facts
The Electric Power Industry Reform Act (EPIRA)1 was
enacted to ordain reforms in the electric power industry,
including the privatization of the assets and liabilities of
the NPC. Pursuant to this objective, the said law created
the National Power Board (NPB) consisting of nine (9)
heads of agencies as members, to wit: (a) Secretary of
Finance, (b) Secretary of Energy, (c) Secretary of Budget
and Management, (d) Secretary of Agriculture, (e) DirectorGeneral of the National Economic and Development
Authority, (f) Secretary of Environment and Natural
Resources, (g) Secretary of the Interior and Local
Government, (h) Secretary of the Department of Trade and
Industry, and (i) President of the NPC.2
In line with NPC's privatization, the EPIRA also called for
the NPC's restructuring. In this regard, the NPB passed
NPB Resolution Nos. 2002- 124 and 2002-125 directing the
termination from service of all NPC employees effective
January 31, 2003. The restructuring plan covered even
"Early-leavers" or those who: (a) did not intend to be
rehired by NPC based on the new organizational structure,
or (b) were no longer employed by NPC after June 26,
2001, the date of the EPIRA's effectivity, for any reason
other than voluntary resignation.3
The Main Decision
In Our Decision4 dated September 26, 2006, we ruled that
the abovementioned resolutions were void and without
effect. These were not passed by a majority of NPB's
members, as only three out of nine members voted. The
other four signatories to the resolutions were not
members of the Board. They were merely representatives
of those actually named under the EPIRA to sit as
members of the NPB. Thus, their votes did not count.
Clarifiying the Main Decision
Subsequently, We clarified the effect of Our Decision in
our Resolution dated September 17, 2008 to wit:
1. The Court's Decision does not preclude the NPB from
passing another resolution, in accord with law and
jurisprudence, approving a new separation program from
its employees.
2. The termination of the petitioners' employment on
January 31, 2003 was illegal.
3. Due to the illegal dismissal, as a general rule, the
petitioners are entitled to reinstatement. However,
reinstatement has become impossible because NPC was
still able to proceed with its reorganization prior to the
promulgation of the Decision dated September 26, 2006.
4. Thus, the petitioners are entitled to the following:
a. Separation pay in lieu of reinstatement, based on a
validly approved separation program of the NPC; and
b. Back wages together with wage adjustments and all
other benefits which they would have received had it not
been for the illegal dismissal, computed from January 31,
34 | P a g e
2003 until actual reinstatement or payment of separation
pay.
5. However, any amount of separation benefits already
received by the petitioners under NPB Resolution Nos.
2002-124 and 2002-125 shall be deducted from their total
entitlement.
We also approved a 10% charging lien in favor of the
petitioners' counsels, Attys. Aldon and Orocio, in
accordance with the Labor Code which limits attorney's
fees in illegal dismissal cases (in the private sector) to
10% of the recovered amount.
Finally, We deferred the computation of the actual
amounts due the petitioners and the enforcement of
payment thereof by execution to the proper forum, as this
Court is not a trier of facts. We held that this Court is not
equipped to receive evidence and determine the truth of
the factual allegations of the parties on this matter.
NPB Ratifies NPB Resolution Nos. 2002-124 and 2002-125
In the meantime, on September 14, 2007, the NPB issued
Resolution No. 2007-55, which adopted, confirmed, and
approved the principles and guidelines enunciated in NPB
Resolution Nos. 2002-124 and 2002-125.
Entry of Judgment
Our Decision dated September 26, 2006 became final and
executory on October 10, 2008. The entry of judgment
thereof was made on October 27, 2008. Thus, in Our
Resolution dated December 10, 2008, we granted the
petitioners' motion for execution. We directed the
Chairman and Members of the NPB and the President of
NPC (NPB/NPC) to prepare a verified list of the names of
all NPC employees terminated/separated as a result of
NPB Resolution Nos. 2002-124 and 2002-125, and the
amounts due to each of them, including 12% legal interest.
We also directed the Office of the Clerk of Court and exofficio Sheriff of the Regional Trial Court (RTC) of Quezon
City to: a) issue a writ of execution based on the list
submitted by the NPC, and b) undertake all necessary
actions to execute the herein decision and resolution.
The petitioners sought to cite the NPB/NPC for contempt
for its alleged failure to comply with the Court's directive.
They also insisted for the garnishment and/or levy of
NPC's assets, including those of PSALM, for the
satisfaction of the judgment.
The NPC countered that there were actually only 16 NPC
personnel terminated on January 31, 2003. Also, the
issuance of NPB Resolution No. 2007-55 cured the infirm
NPB Resolution Nos. 2002-124 and 2002-125. Thus, the
termination on January 31, 2003 was valid and legal.
Extent of Illegal Dismissal and PSALM's Liability
In our Resolution dated December 2, 2009, We held that
Our previous rulings contemplated the illegal dismissal of
all NPC employees pursuant to NPB Resolution Nos. 2002124 and 2002-125, not just 16. Based on NPC Circular No.
2003-09, the terminations were implemented in four (4)
tranches, viz.: (a) Top executives - effective January 31,
2003; (b) Early-leavers - effective January 15, 2003; (c)
Those no longer employed in the NPC after June 26, 2001 effective on the date of actual separation; and (d) All other
personnel - effective February 28, 2003.
We ruled further that the issuance of NPB Resolution No.
2007-55 on September 14, 2007 only means that the
services of all NPC employees have been legally
terminated on this date. Thus, the petitioners' entitlement
(i.e., separation pay in lieu of reinstatement plus back
wages less benefits already received) shall be reckoned
from the above-mentioned dates (instead of just January
31, 2003) up to September 14, 2007.
Lastly, We held that PSALM's assets may be subject of the
execution of this case.1awp++i1 We explained that under
the EPIRA, PSALM shall assume all of NPC's existing
generation assets, liabilities, IPP contracts, real estate,
and other disposable assets. It would be unfair and unjust
if PSALM gets nearly all of NPC's assets but will not pay
for liabilities incurred by NPC during the privatization
stage. Further, there was a transfer of interest over these
assets by operation of law. These properties may be used
to satisfy the judgment.5
Our Jurisdiction, Legal Interest, and NPB Resolution No.
2007-55's Non-Retroactivity
In our Resolution dated June 30, 2014, we emphasized that
by virtue of Section 78 of the EPIRA, We have jurisdiction
to rule on the issue of the illegal termination of NPC
employees. Also, since Our Decision dated September 26,
2006 and Resolution dated September 17, 2008 have
already become final and executory, NPC is barred by the
principles of estoppel and finality of judgments from
raising arguments aimed at modifying Our final rulings.
Further, we held that Our Resolution dated September 17,
2008 did not grant additional reliefs. It merely clarified the
Decision dated September 26, 2006.
On the other hand, we also ruled that Our Resolution
dated December 10, 2008 did not exceed the terms of the
Resolution dated September 17, 2008 (inasmuch as it also
awarded interest). Legal interest on the judgment debt
shall be computed as follows:
1. 12% from October 10, 2008 (finality of the Decision
dated September 26, 2006) until June 30, 2013; and
2. 6% from July 1, 2013 (effectivity of Central Bank Circular
No. 799) onwards.
As for NPB Resolution No. 2007-55, We pointed out that it
did not affect our final rulings as the said resolution shall
be applied prospectively (September 14, 2007 onwards).
We continued to explain PSALM's liability in this case.
Pursuant to Sections 47, 49, 50, and 55 of the EPIRA,
PSALM assumed NPC's liabilities existing at the time of
the EPIRA's effectivity, including the separation benefits
due to the petitioners.
35 | P a g e
Finally, We found the NPC and Office of the Solicitor
General (OSG) guilty of indirect contempt due to their
noncompliance with our final orders. The parties were
ordered to pay a fine of ₱30,000.00 each.
Implementation and Execution of the Court's Main
Decision and Resolutions
Pursuant to Our Resolution dated June 30, 2014, the RTC
Clerk of Court and Ex-Officio Sheriff issued a Demand for
Immediate Payment dated July 28, 2014 and served the
same upon the NPC and PSALM. The demand amounted
to ₱62,051,646,567.13 broken down as follows:
Judgment amount,6 inclusive of 10% charging lien
₱60,244,316,841.88
Lawful fees and costs of execution 1,807,329 ,725.25
v. If termination or separation pay has been received at
any time from NPC, the amount of termination or
separation pay received and date of receipt.
Further, We directed the RTC Clerk of Court and Ex-Officio
Sheriff: (a) to defer the implementation of the Main
Decision and the Resolutions dated September 17, 2008,
December 2, 2009, and June 30, 2014 while We consider
the submissions now before Us and until further notice;
and (b) lift the Notice of Garnishment dated August 14,
2014.
Subsequently, in Our Resolution dated October 20, 2014,
we modified the terms of Our Resolution dated September
9, 2014 and required a more detailed list as follows:
a. Employee's full name;
Total amount demanded ₱62,051,646,567.13
A few days later, in a letter dated July 31, 2014, the R TC
Clerk of Court and Ex-Officio Sheriff asked the Court to
clarify the effects of our Resolution dated June 30, 2014,
specifically whether the judgment may already be
executed. In response, some of the petitioners, as
represented by Attys. Aldon and Orocio, also wrote a letter
dated August 5, 2014 to request the Court to immediately
act on this matter.
Before the Court could act on the above-mentioned
correspondences, the RTC Clerk of Court and ex-officio
Sheriff issued Notices of Garnishment addressed to the
Manila Electric Company (Meralco), and National
Transmission Commission (Transco)7 with respect to all
credits in or under their possession or control owing or
payable to NPC and/or PSALM, including but not limited to
bank deposits and financial interests, goods, effects,
stocks, interest in stock and shares, and any other
personal properties. Another Notice of Garnishment was
also served upon Land Bank of the Philippines (Landbank)
in relation to NPC and PSALM's bank accounts.8
In separate letters, PSALM, through its president and chief
executive officer Emmanuel R. Ledesma, Jr., advised
Meralco and Transco to "exercise restraint and refrain
from improvidently releasing funds" owing to PSALM to
satisfy the Notices of Garnishment served upon them.
b. Date of hire;
c. Position as of date of hire;
d. Date of actual termination under NPB Resolution Nos.
2002-124 and 2002-125;
e. Position as of date of actual termination under NPB
Resolution Nos. 2002-124 and 2002-125;
f. Salary as of last date of actual termination;
g. Separation pay that the employee is entitled to under
the approved separation pay program;
h. Date of receipt of separation pay;
1. Amount of separation pay received;
j. Wage adjustments and other benefits that the employee
is entitled to from the date of actual termination until
September 14, 2007;
k. Wage adjustments and other benefits that the employee
has received from the date of actual termination until
September 14, 2007;
NPC Employees List Requirement and Suspension of
Execution
l. Date of re-hire by the NPC, the PSALM, or the TRANSCO,
if any;
In Our Resolution dated September 9, 2014, the Court
directed the parties to submit their separate lists of NPC
employees as of January 31, 2002, showing the following
data:
m. Position as of date of re-hire by the NPC, the PSALM, or
the TRANSCO, if any;
i. The full name;
ii. Date of hire;
iii. Last date of uninterrupted service after date of hire;
iv. Position, and salary as of last date of service; and
n. Salary as of date of re-hire by the NPC, the PSALM, or
the TRANSCO, if any;
o. Subsequent position/s in the NPC, the PSALM, or the
TRANSCO as a result of personnel actions after the date
of re-hire;
p. Date of release of appointment papers in the
subsequent position/s;
36 | P a g e
q. Salary in the subsequent position/s;
r. Date of actual termination in the NPC, the PSALM, or the
TRANSCO, if any;
s. Separation pay that the employee is entitled to under
the approved separation pay program;
t. Amount of separation pay received;
u. Date of receipt of separation pay.9
The NPC and PSALM submitted their compliance to our
Resolution dated October 20, 2014.
The NPC submitted a list of 9,272 employees, including
details required by our Resolution dated October 20, 2014,
through their Compliance Ad Cautelam dated March 16,
2015. However, it made the following reservations:
1. Its submission should not prejudice the reliefs prayed
for in NPC's Manifestation and Motion dated August 22,
2014.
2. The figures in the submission are necessarily
indeterminate because they are subject to the final
outcome of disallowance proceedings under the
Commission on Audit and a pending case before the RTC
(Case No. R-QZN-15-01290 CV) based on their lack of
appropriation cover.
On the other hand, PSALM' s submission was partially
based on the information it received from NPC, the
custodian of personnel records, which considered 47
former NPC employees. PSALM points out that it is unable
to provide complete information.
It argues that assuming that it is liable, the affected NPC
employees have already been paid separation benefits
pursuant to Rule 33 of the EPIRA Implementing Rules.
while one has ruled that PSALM is an indispensable party,
the other considered them as a necessary party. Thus, in
PSALM's view, to remedy the seeming conflict between
the two rulings, the present case must be referred to the
Court en banc.
In Our Resolution dated September 9, 2014, we deferred
the resolution of this matter pending full consideration of
other remaining motions submitted by the parties.
2. The Supreme Court has no jurisdiction over illegal
dismissal cases of NPC employees. Jurisdiction is vested
with the Civil Service Commission (CSC).
3. Department secretaries may vote through
representatives.
4. In the absence of an actual computation of the amounts
due to the petitioners, the RTC Clerk of Court and ExOfficio sheriff of Quezon City cannot garnish NPC's
properties. The Court's delegation of authority must first
be raffled to an RTC judge for proper determination
pursuant to the Court's Resolution dated June 30, 2014.
PSALM's Omnibus Motion dated August 22, 2015
PSALM maintains that it should be absolved from any
liability in this case due to the following reasons:
1. PSALM shall only be liable for obligations/liabilities that
were exclusively listed under the EPIRA, to wit: (1) NPC
liabilities transferred to PSALM, (2) transfers from the
national government, (3) new loans, and (4) NPC stranded
contract costs.12 Thus, despite the privatization of NPC's
assets, NPC remained as separate and distinct from
PSALM. It is capable of fulfilling its own obligations that
were not assumed by PSALM.
2. The obligation to pay separation benefits was not
among the liabilities assumed by PSALM because it arose
only after the EPIRA took effect.13
Motions Pending Resolution
The motions that remain pending before Us (after the
Resolution dated June 30, 2014) are as follows: (a) the
NPC's Manifestation and Motion dated August 22, 2014; (b)
PSALM's Omnibus Motion dated August 22, 2015; (c) the
petitioners' Motion to Expunge dated September 1, 2014;
and (d) Meralco's Special Appearance with Urgent Motion
for Clarification dated September 4, 2014.
The NPC's Manifestation and Motion dated August 22,
2014
The NPC argues as follows:
1. The subject matter of the case has a huge financial
impact, which must be decided en banc.
PSALM echoes this view.10 It further claims that two
divisions of the Court have given conflicting decisions-
a. Under Section 49 of the EPIRA, PSALM shall be liable
only for NPC's selected outstanding obligations. The
obligation to pay separation benefits in the present case
was not an outstanding obligation assumed by PSALM
because, at the time of the EPIRA's passage, the
obligation did not yet exist nor did it arise from any loan,
bond issuance, security and other instrument
indebtedness.14
b. The obligation to pay the separation benefits in the
present case only arose after the EPIRA took effect. Only
NPC liabilities existing during the effectivity of the EPIRA
were transferred to PSALM. Such transfer could not have
included even NPC liabilities incurred after the EPIRA took
effect.
3. NPC remains to be solely liable for the payment of
separation benefits in this case.
37 | P a g e
a. Separation benefits as a result of the privatization of
NPC are governed by Section 63 of the EPIRA and Rule 33
of its Implementing Rules.
b. Under Section 4, Rule 33 of the Implementing Rules,
funds necessary to cover the payment of separation pay
shall be provided by either the GSIS or from the corporate
funds of the NEA or the NPC, as the case may be. The
Buyer or Concessionaire or the successor company shall
not be liable for the payment thereof.
c. There is no basis to hold PSALM liable. The IRR clearly
mandates that the payment of separation pay in favor of
displaced NPC employees shall be out of NPC's own
corporate funds.
4. If PSALM is at all liable, its liability is limited to the
separation pay of NPC employees terminated pursuant to
a valid separation plan. PSALM cannot be held liable for
separation pay arising from a separation/restructuring
plan that was tainted with irregularities and bad faith. If the
law had intended PSALM to assume even the obligation to
pay separation pay, the same would have been clear and
categorical.15
Petitioners' Motion to Expunge dated September 1, 2014
The petitioners argue that the NPC's Manifestation and
Motion dated August 22, 2014 and PSALM's Omnibus
Motion dated August 22, 2015 violate the prohibition
against the filing of a second motion for reconsideration.
In their view, the arguments raised in these motions are
mere rehashes of issues already resolved and disposed of
by the Court. Thus, the petitioners request that these
motions be denied and excluded from the records of the
case altogether.
Meralco's Special Appearance with Urgent Motion for
Clarification dated September 4, 2014
Meralco filed its Special Appearance before the Court in
view of: (a) the Notice of Garnishment dated August 14,
2014 served by the RTC Clerk of Court and Ex-Officio
Sheriff garnishing all credits owing to PSALM but in and
under Meralco's possession and control; and (b) PSALM's
letter of even date cautioning Meralco to exercise restraint
and refrain from releasing funds due to PSALM but still in
its (Meralco) possession.
Meralco manifests to the Court the following:
However, in PSALM's Supplement to the Compliance
dated October 27, 2014,16 it argues that the separation
program was effected through valid board actions. The
laws applicable to government corporations like NPC
recognize the validity of designating alternates to sit as
members of the governing boards.
Further, based on the Congressional deliberations leading
to the EPIRA's enactment, the legislature intended to limit
NPC liabilities to be transferred and assumed by PSALM
only to NPC debts arising from direct contractual
obligations with banking and multilateral financial
institutions.17
5. Its right to due process was violated when it was
declared as a mere necessary party to the case.
6. In keeping with PSALM's right to due process, the
Notices of Garnishment issued to it by the Regional Trial
Court, Quezon City, Clerk of Court should be quashed for
being fatally defective.
7. Prior approval by the Commission on Audit (COA) must
first be obtained before any money judgment can be
enforced against PSALM.
On the other hand, the petitioners counter that while
government funds are generally not subject to execution,
this rule admits of exceptions.18 Relying on National
Housing Authority v. Heirs of Isidro Guivelondo,19 they
argue that funds belonging to a public corporation or a
government-owned or controlled corporation like PSALM,
which is clothed with its own personality, separate, and
distinct from that of the government are not exempt .from
garnishment.20
1. In response to the Notice of Garnishment, it filed a
Compliance and Manifestation dated August 19, 2014.
Meralco informed the RTC Clerk of Court and Ex-Officio
Sheriff that it is ready and willing to comply with the RTC's
directives and processes. However, there are serious
repercussions that may arise due to the garnishment of
PSALM's credits (i.e., suspension and/or nonpayment/fulfillment of reciprocal obligations between PSALM and
Meralco, possible breach of contract on Meralco's part,
etc.). Thus, the parties must first clarify these matters with
and seek guidance from the Court.
2. Meralco also asserts that its regular remittances to
PSALM may be any one of three types, to wit: (a) universal
charges for: 1) NPC's stranded contract costs, 2)
missionary electrification, and 3) environmental charges;
(b) line rental costs for energy purchases of Sunpower
Philippines Manufacturing Limited (Sunpower); and (c)
deferred accounting adjustments - generation rate
adjustment mechanism (DAA-GRAM).
It discusses each type of remittance as follows:
a. Universal charges are collected by Meralco and remitted
to PSALM by virtue of several Energy Regulatory
Commission (ERC) rulings.21 In accordance with the
EPIRA, upon remittance, PSALM will then place the
amounts received in a Special Trust Fund (STF), which
shall be disbursed for purposes specified in Section 34 of
the EPIRA22 and in favor of identified beneficiaries.
Meralco claims that the judgment obligation in the present
case has not been included in the previous filings of the
NPC/PSALM for the recovery of any component of
universal charge.
38 | P a g e
b. Line rental cost is an amount billed by the Philippine
Electricity Market Corporation (PMC) to buyers of
electricity covered by bilateral contracts to account for the
cost of energy lost in the process of delivering contracted
energy volumes from a generator's plant to the buyers.
Sunpower is one of the said buyers of electricity. There is
a special arrangement with regard to the line rental cost
attributable to Sunpower where, instead of billing
Sunpower directly, PMC bills PSALM, which in turn bills
Meralco. Meralco then has the duty to collect the amount
from Sunpower. Upon collection, Meralco shall remit the
amount to PSALM, which will ultimately be remitted to
PMC. Thus, while the amounts of line rental cost will be
initially remitted to PSALM, the latter does not own the
same nor will it accrue in its favor.
Issues
Based on the parties' submissions, the issues now before
Us are as follows:
1. May PSALM be held directly liable for the judgment
debt?
2. Can the RTC Clerk of Court and Ex-Officio Sheriff
immediately and directly proceed with the garnishment or
levy of NPC assets?
3. What is the formula to compute the petitioners'
entitlement?
The Court's Ruling
c. DAA-GRAM is a means approved by the ERC allowing
the NPC to recover the difference between the allowable
fuel and purchased power costs and the amounts
recovered under the basic generation charge for the
period from January 2007 to April 2010. Meralco shall
collect the DAA-GRAM from the end users and remit the
same in favor of the NPC. Stated differently, it is a passthrough charge.
Meralco points out that since the Notice of Garnishment
covers all credits owing to PSALMINPC, it is thus being
required to withhold all the above-mentioned remittances.
However, the law sets aside these collections for specific
purposes. There is also an established process before
Meralco can collect these amounts from its customers.23
Finally, Meralco avers that it is not in a position to
determine the validity of the Notice of Garnishment or
whether the amounts in its possession and owing to
PSALM are proper subjects of the garnishment. It is not
even a party to the present case. Thus, Meralco has come
before the Court to clarify: (a) whether the amounts in its
possession pertaining to universal charges, line rental
cost, and DAA-GRAM may be garnished in satisfaction of
the judgment obligation in the present case, and (b)
whether separation benefits may be recovered as part of
the universal charge.
In its comment to Meralco's Special Appearance,24
PSALM maintains that separation benefits are not
recoverable from collections of universal charges. Section
34 of the EPIRA clearly enumerates the purposes by which
the proceeds from these charges may be disbursed. The
judgment obligation in the present case not being one of
these purposes, the garnishment of the universal charges
in the custody of the Meralco and payable to PSALM
violates the EPIRA.
At the onset, We emphasize that most of the matters
raised by respondents NPC and PSALM in their respective
submissions have already been ruled upon by the Court
and have since attained finality, i.e., (a) NPB Resolution
Nos. 2002-124 and 2002-125 are void and without legal
effect; (b) As a result, the petitioners were illegally
dismissed; (c) As illegally dismissed employees, they are
entitled to separation pay in lieu of reinstatement, back
wages, and other wage adjustments, but after deduction of
the separation pay they already received under the
restructuring plan; and (d) Counsels for the petitioners are
entitled to a 10% charging lien.
Thus, this resolution shall address only the new matters
raised in the above-mentioned pending motions.
First, We affirm Our Resolution dated June 30, 2014 that
PSALM is directly liable for the judgment obligation. While
the general rule is that the NPC, as the employer guilty of
illegal dismissal, shall be liable for the petitioners'
entitlement, PSALM assumed this obligation. PSALM's
assumption is clear based on the following reasons: (a)
the subject liability was already existing at the time of the
EPIRA's effectivity and was transferred from NPC to
PSALM by virtue of Section 49 of the law; (b) the subject
liability is a "Transferred Obligation" as defined under the
Deed of Transfer; and (c) under the EPIRA, PSALM is dutybound to settle this liability.
PSALM adds that amounts pertaining to universal
charges, line rental cost, and DAA-GRAM are not NPC
assets. These are exactions authorized by law for a
specific purpose and, thus, cannot be garnished.
Second, while PSALM is directly liable for the payment of
the petitioners' entitlement, We direct the petitioners to
follow the proper procedure to enforce a judgment award
against the government. We have consistently ruled that
the back payment of any compensation to public officers
and employees cannot be done through a writ of
execution.25 The COA has exclusive jurisdiction to settle
"all debts and claims of any sort due from or owing to the
Government or any of its subdivisions, agencies, and
instrumentalities."26 The proper procedure to enforce a
judgment award against the government is to file a
separate action before the COA for its satisfaction.27
On the other hand, the petitioners aver that the amounts
pertaining to the universal charge may be garnished.
Third, as a matter of prudence, We also propose
guidelines that shall aid the COA in determining, re39 | P a g e
computing, and validating the amount due to the
petitioners.
already received under the approved separation program
(Petitioners' entitlement).
The petitioners' entitlement shall be computed based on
the following general formula: Separation pay in lieu of
reinstatement plus back wages plus other wage
adjustments minus separation pay already received under
the plan.28
3. The issuance of NPB Resolution No. 2007-55 on
September 14, 2007 only means that the services of all
NPC employees have been legally terminated on this date
(Resolution dated December 2, 2009). It shall be applied
prospectively (Resolution dated June 30, 2014).
On the other hand, the attorney's charging lien shall be
10% of the petitioners' entitlement, after deducting the
separation pay already received by the petitioners under
the restructuring plan.
CHARGING LIEN
Lastly, aside from the petitioners' entitlement, illegally
dismissed employees are entitled to interest at the legal
rate.29 The payment of legal interest is a "natural
consequence of a final judgment."30 Interest on the
judgment award shall be computed as follows: (1) 12% per
annum from October 8, 2008,31 until June 30, 2013; and (2)
6% per annum from July 1, 2013 onwards.
The basic rule is that a judgment that has lapsed into
finality is immutable and unalterable.33 Thus, the matters
that have already been resolved in the Main Decision and
Resolution dated September 17, 2008 should no longer be
disturbed.
Issues Already Resolved with Finality
Before proceeding to the above-mentioned issues, We
observe that the NPC and PSALM have, up to this point,
repeatedly and continuously defended the validity of NPB
Resolution Nos. 2002-124 and 2002-125, as well as the
resulting separation of NPC employees.
To recall, Our Main Decision dated September 26, 2006
and Resolution dated September 17, 2008 have already
been entered in the Book of Entries of Judgment.32 Thus,
as we ruled in Our Resolution dated June 30, 2014, it is
clear that these rulings have become final and executory.
4. Attys. Aldon and Orocio are entitled to a 10% charging
lien (Resolution dated September 17, 2008).
The respondents' persistence to overturn an unfavorable
but final judgment is exactly what the rule on immutability
of judgments seeks to address. A losing party cannot
endlessly evade an obligation by filing appeal after appeal.
Nor can a winning party continuously demand for more
than what has been adjudged in his favor by asking the
court to repeatedly reconsider his/her claims. There must
be an end to litigation. Controversies cannot drag on
indefinitely because fundamental considerations of public
policy and sound practice demand that the rights and
obligations of every litigant must not hang in suspense for
an indefinite period of time.34
For emphasis, the matters resolved by the Court in these
rulings are as follows:
The NPC and OSG's mistaken belief that they could
repeatedly raise the same defenses in the hopes of
securing a judgment in their favor has even led the Court
to find them guilty of indirect contempt after they refused
to comply with Our Resolution dated December 8, 2008.
ILLEGAL DISMISSAL
The Court En Banc properly resolved to accept the case
1. NPB Resolution Nos. 2002-124 and 2002-125 are void
and without legal effect (Main Decision).
Both respondents request that the present case be
resolved by the Court en bane. While the NPC grounds its
request on the subject matter's sizeable financial impact,
PSALM claims that there are conflicting rulings that may
only be resolved by the Court sitting en banc.
2. The logical and necessary consequences (Resolution
dated September 17, 2008) of these invalid resolutions are
as follows:
We agree with the NPC.
a. The terminations pursuant to these resolutions were
illegal dismissals.
i. This contemplates the illegal dismissal of all NPC
employees, not just 16 employees, who were dismissed on
different dates pursuant to the NPC restructuring
(Resolutions dated December 2, 2009 and June 30, 2014).
Verily, the Court has already struck down similar requests
made previously by the NPC.35 However, the following
must be considered:
b. Reinstatement has become impossible.
1. Based on the list submitted by the NPC36 pursuant to
Our Resolution dated October 20, 2014, a total of 9,272
former NPC employees stand to benefit from the judgment
award.
c. Those illegally dismissed are entitled to: separation pay
in lieu of reinstatement plus back wages less benefits
2. The NPC has estimated that these employees may be
entitled to separation pay amounting to at least
40 | P a g e
₱7,311,084,851.79. However, this amount still does not
include:
PSALM shall be liable; and (c) NPC remains to be solely
liable.
a. Back wages and other wage adjustments, and
We disagree with PSALM.
b. Legal interest on the judgment debt, which started to
accrue as early as October 10, 2008-the date when the
Main Decision became final-and has continued to run to
this day, almost a decade after.
The Court already held that herein petitioners are entitled
to separation pay in lieu of reinstatement, plus back
wages and other wage adjustments, less separation pay
already received by virtue of the restructuring plan
because they were illegally dismissed. Thus, to clarify, the
liability is not limited just to separation pay but to the full
entitlement of an illegally terminated employee, as We will
further qualify below.
From these, it is clear that the present case's subject
matter will have a huge financial impact on the NPC and/or
PSALM, both of which play major parts in the country's
electric power industry. Thus, a decision that may greatly
affect the operations of these entities may, in turn, also
affect the rendition of their services to the general public.
Cases of this nature are cognizable by the Court en bane,
as provided in Rule 2, Section 3(k) of Our Internal Rules,
viz.:
SEC. 3. Court en bane matters and cases. -The Court en
bane shall act on the following matters and cases:
xxxx
(k) Division cases where the subject matter has a huge
financial impact on businesses or affects the welfare of a
community[.]
Matters Pending Court's Resolution
I. PSALM is directly liable for the judgment obligation
In Our Resolution dated June 30, 2014, we held that the
separation benefits in the present case were NPC's
"existing liability" at the time of the EPIRA's enactment
and, thus, the same was transferred to PSALM. We
explained:
The separation of NPC employees affected by its
reorganization and privatization was a foregone
conclusion. In recognition of this, the EPIRA gave the
assurance that these employees shall receive the
separation pay and other benefits due them under existing
laws, rules or regulations or be able to avail of the
privileges under a separation plan which shall be one and
one-half month salary for every year of service in the
government. The employees' separation being an
unavoidable consequence of the mandated restructuring
and privatization of the NPC, the liability to pay for their
separation benefits should be deemed existing as of the
EPIRA's effectivity, and were thus transferred to PSALM
pursuant to Section 49 of the law.
In its Omnibus Motion dated August 22, 2015,38 PSALM
denies this liability by arguing as follows: (a) The liability
to pay the separation benefits only arose after the
effectivity of the EPIRA, (b) It was not among the
obligations exclusively listed under the EPIRA for which
A. The General Rule
The settled rule is that an employer who terminates the
employment of its employees without lawful cause or due
process of law is liable for illegal dismissal.39
When the EPIRA mandated the NPC's privatization, it
directed the sale, disposition, change and transfer of
ownership and control of NPC's assets and IPP
contracts40 for the purpose of pooling funds to liquidate
NPC's liabilities. This transaction is akin to an asset saletype corporate acquisition in the law of mergers and
acquisitions where one entity-the seller-sells all or
substantially all of its assets to another-the buyer.41
In SME Bank, Inc. v. De Guzman, we held that the rule in
asset sales is that the employees may be separated from
their employment, but the seller is liable for the payment
of separation pay; on the other hand, the buyer in good
faith is not required to retain the affected employees in its
service, nor is it liable for the payment of their claims.
This is consistent with Our ruling in Sundowner
Development Corporation v. Drilon, that unless expressly
assumed, labor contracts such as employment contracts
and collective bargaining agreements are not enforceable
against a buyer of an enterprise, labor contracts being in
personam, thus binding only between the seller-employer
and its employees.
Following these rules, the NPC, as employer, is liable for
the illegal dismissal and, in effect, the payment of the
petitioners' entitlement.
B. The Exceptions
There are however recognized exceptions to the general
rule, where the employer's liability for the separation of its
employees is nonetheless devolved upon the transferee of
the employer's assets.
1. The transferee acknowledges the contractual obligation
to be liable for separation pay
In Republic v. National Labor Relations Commission, the
government acquired Bicolandia Sugar Development
Corporation (Bisudeco)'s assets and identified the same
41 | P a g e
for privatization. Pursuant to the privatization, the assets
were transferred to the Asset Privatization Trust (APT) for
conservation, provisional management, and disposal. We
recognized that, as a mere transferee/conservator of
Bisudeco's assets, the APT did not substitute Bisudeco as
employer. The transfer was not for the purpose of
continuing the latter's business. However, We found that
the APT issued a resolution authorizing the payment of
the Bisudeco employees' separation benefits. Thus,
through the resolution, the APT acknowledged its
contractual obligation to be liable for benefits arising from
an employer-employee relationship even though, as a
mere conservator of assets, it was not supposed to be
liable.
2. The transferee assumes the obligation through a
transfer document
On the other hand, in Bank of the Philippine Islands v. BPI
Employees Union-Davao Chapter-Federation of Unions in
BPI Unibank, pursuant to a corporate merger, the assets
and liabilities of Far East Bank & Trust Company, the
absorbed corporation, were transferred to the Bank of the
Philippine Islands (BPI), the surviving entity. We
recognized that employment is a personal consensual
contract. Thus, in mergers, the absorbed corporation's
employment contracts are not automatically absorbed by
the surviving entity. However, the liability for separation
and other benefits due to the absorbed corporation's
former employees can be transferred to the surviving
entity if the latter clearly assumed the obligation pursuant
to the articles of merger.
C. The Present Case Falls Within the Exceptions
We reiterate Our finding in Our Resolution dated June 30,
2014 that, upon the NPC's privatization, PSALM assumed
all of its liabilities, including the separation benefits due to
the petitioners.
That PSALM assumed the NPC’s liability to pay these
separation benefits is clear based on the following
reasons: (1) The liability was already existing at the time of
the EPIRA's effectivity and was transferred from NPC to
PSALM by virtue of Section 49 of the law; (2) It is a
"Transferred Obligation" as defined under the Deed of
Transfer; and (3) Under the EPIRA, PSALM is duty-bound
to settle the subject liability.
NPC generation assets, liabilities, IPP contracts, real
estate and all other disposable assets. All outstanding
obligations of the NPC arising from loans, issuances of
bonds, securities and other instruments of indebtedness
shall be transferred to and assumed by the PSALM Corp.
within one hundred eighty (180) days from the approval of
this Act. (Emphasis supplied.
In Our Resolution dated June 30, 2014, the Court
explained that the term "existing" in Section 49 qualified
"liabilities" to mean that only those liabilities existing at
the time of the EPIRA's effectivity were subject of the
transfer.
Verily, the liability (to pay separation benefits) here arose
due to the petitioners' illegal dismissal. However, the
separation from employment per se took place only
pursuant to the EPIRA's mandate on NPC's privatization
and restructuring, except that its implementation through
NPB Resolution Nos. 2002-124 and 2002-125 was later on
invalidated.
Stated differently, since the EPIRA mandated the NPC's
privatization and subsequent restructuring, the law, when
it took effect on June 26, 2001, had already contemplated
the termination of all NPC employees as a logical effect of
its mandate. To be sure, the liability to pay the full
entitlement arising from the employees' separation is
deemed to have existed upon the EPIRA's effectivity.
Thus, PSALM assumed the liability to pay the petitioners'
full entitlement in the present case because: (a) Section 49
of the EPIRA mandated the transfer of all existing NPC
liabilities to PSALM, and (b) Such liability was already
existing at the time of the EPIRA's effectivity.
2. The subject liability is a "Transferred Obligation" as
defined under the Deed of Transfer
Under the EPIRA, following are valid claims against
PSALM:
SECTION 56. Claims Against the PSALM Corp. - The
following shall constitute the claims against the PSALM
Corp.:
(a) NPC liabilities transferred to the PSALM Corp.;
(b) Transfers from the National Government;
1. The subject liability was existing at the time of the
EPIRA's effectivity and was transferred from NPC to
PSALM by virtue of Section 49 of the law
(c) New Loans; and
(d) NPC stranded contract costs. (Emphasis supplied.)
The EPIRA provides:
SECTION 49. Creation of Power Sector Assets and
Liabilities Management Corporation. - There is hereby
created a government-owned and -controlled corporation
to be known as the "Power Sector Assets and Liabilities
Management Corporation," hereinafter referred to as the
"PSALM Corp.," which shall take ownership of all existing
In the Deed of Transfer46 executed between them, the
NPC and PSALM laid out the scope of the term "liabilities
transferred" by differentiating their responsibilities over
"Transferred Obligations" and "Contingent Liabilities."
On the one hand, PSALM assumed all of NPC's
Transferred Obligations, which included all other liabilities
42 | P a g e
and obligations of the NPC: (a) mandated by the EPIRA to
be transferred to PSALM, and (b) which have been
validated, fixed and finally determined to be legally
binding on NPC by the proper authorities.
In contrast, NPC agreed to be solely responsible for its
Contingent Liabilities or those as of the transfer date have
not yet been validated, fixed, and finally determined to be
legally binding on NPC.
Based on these provisions, it appears that the parties
delineated their responsibility over NPC liabilities that
arose as a result of a final determination of a proper
authority, such that if such final determination has not yet
been made as of the transfer date it is a Contingent
Liability. Otherwise, it is a Transferred Obligation for
which PSALM assumes responsibility.
Thus, the liability to pay the petitioners' separation
benefits satisfies the conditions giving rise to a
Transferred Obligation.
Our Rulings finally determined that the liability is legally
binding and enforceable against the NPC
A plain reading49 of the provisions in the Deed of Transfer
will reveal that a final judgment rendered by a court with
competent jurisdiction holding the NPC liable for an
obligation falls within the meaning of a liability "validated,
fixed, and finally determined to be legally binding on
NPC."
To emphasize, We adjudged that the NPC's liability for the
petitioners' illegal dismissal and, consequently, the
payment of their full entitlement was the logical and
necessary effect of the nullification of NPB Resolution
Nos. 2002-124 and 2002-125. Our ruling lapsed into finality
on October 10, 2008.50 Clearly, Our Ruling constitutes a
final determination that the liability is legally binding and
enforceable against the NPC.
Our final determination of the liability was made as of the
transfer date
If there had already been a final determination of the
NPC's liability, the next question is: Was the final
determination made as of the transfer date?
We answer in the affirmative.
According to the Deed of Transfer, the "transfer date" is
"the date on which all of the conditions precedent are
either fulfilled or are waived."51 While it would appear that
the parties have executed such a waiver, there is no
indication in Our records of the exact date of execution,
other than NPB Resolution No. 2009-40, which refers to
October 1, 2008 as the date of "transfer of assets and
liabilities" of the NPC to PSALM.
However, upon further examination, both the NPC and
PSALM56 disclosed in their respective COA-audited
financial statements that the actual transfer date was on
December 31, 2008. The "transfer of assets and liabilities"
that took place on October 1, 2008 was merely the transfer
of "asset-debt accounts" from the NPC's books of account
to PSALM's
To be clear, the liability was finally determined by the
Court on October 10, 2008, the date of Our Ruling's
finality, or before December 31, 2008, the actual transfer
date recognized by the parties. Thus, the liability should
be considered as a Transferred Obligation, the
responsibility for which was passed on to PSALM
pursuant to the terms of the Deed of Transfer.
3. Under the EPIRA, PSALM is duty-bound to settle the
subject liability.
PSALM was created under the EPIRA for the principal
purpose of privatizing the NPC's generation assets, real
estate and other disposable assets, and IPP contracts with
the ultimate objective of liquidating all NPC financial
obligations and stranded contract costs.58 It is
empowered to take possession of, administer, and
conserve, and subsequently sell or dispose the assets
transferred to it pursuant to its established purpose.59
In 2012, PSALM disclosed that the joint boards of
directors of the NPC and PSALM authorized utilization of
the privatization proceeds to pay the NPC's principal and
other financial obligations. The proceeds from
privatization shall include not only the proceeds from sale
and disposition of NPC's generation and other disposable
assets but also the proceeds from NPC's net profits.61
Without a doubt, PSALM is statutorily mandated not only
to privatize NPC's generation assets, but also to manage
the proceeds obtained from privatization including its net
profits and use these proceeds to settle all of NPC's
financial obligations, without exception.
This blanket responsibility is evident from PSALM's role
even in the settlement of the NPC's Contingent Liabilities.
Under the Deed of Transfer, while the NPC shall retain sole
responsibility of a Contingent Liability, PSALM shall
nonetheless provide for a mechanism to allow the NPC to
satisfy the claim through, for example, a reserve fund or a
provision under the Operation and Maintenance
Agreement or any other agreement to be entered into by
the parties. Thus, whether or not the NPC has been finally
determined to be liable for the claim, PSALM must see to it
that the same is settled.
All told, PSALM expressly undertook all NPC Transferred
Obligations under Section 3.01 of the Deed of Transfer,
which, as previously discussed, includes the liability to
pay the petitioners' entitlement. Thus, it is now bound to
ensure that it is settled.
Even if We rule that the liability was not a Transferred
Obligation nor was it ever voluntarily assumed under the
Deed of Transfer, it is still clear that the law itself
43 | P a g e
mandated PSALM to satisfy the same. PSALM's obligation
is provided in: (a) Section 49 of the EPIRA, where it was
directed to take ownership of all existing NPC liabilities;
and (b) Section 50 of the EPIRA, where it was mandated to
liquidate all NPC financial obligations.
Clearly, PSALM cannot now turn its back on an obligation
that is both contractual and statutory. Although the
liability was initially imposed upon the NPC as the
petitioners' employer, the responsibility for its satisfaction
now rests with PSALM.
This ruling is not affected by Section 4, Rule 3363 of the
EPIRA IRR, which provides that the "funds necessary to
cover the separation pay" of all NPC employees displaced
as a result of the restructuring plan "shall be provided
either by the Government Service Insurance System
(GSIS) or from the NPC's corporate funds."
As it now stands, after privatization, We find that the
NPC's corporate funds are largely within PSALM's control.
Prior to the EPIRA, the NPC performed and derived
corporate funds from three main functions: generation,
transmission, and missionary electrification. Upon
privatization, the NPC divested its generation and
transmission assets but continued operations as to its
missionary electrification function, viz.:
SECTION 70. Missionary Electrification. - Notwithstanding
the divestment and/or privatization of NPC assets, IPP
contacts and spun-off corporations, NPC shall remain as a
National Government-owned and -controlled corporation
to perform the missionary electrification function through
the Small Power Utilities Group (SPUG) and shall be
responsible for providing power generation and its
associated power delivery systems in areas that are not
connected to the transmission system. The missionary
electrification function shall be funded from the revenues
from sales in missionary areas and from the universal
charge to be collected from all electricity end-users as
determined by the ERC. (Emphases supplied.)
The generation function having been devolved to PSALM,
all net profits from its operations also accrued in their
favor after the date of transfer.
On the other hand, the revenues from missionary
electrification function retained by the NPC are collected
from end-users via the universal charge. However, all
collections of the universal charge shall be remitted
monthly to PSALM. In turn, PSALM, acting as
administrator, shall create a Special Trust Fund, which
shall be disbursed only for the purposes specified by the
EPIRA in an open and transparent manner.
PSALM's control over the NPC's corporate funds is
consistent with its principal purpose of privatizing the
NPC's generation assets and ultimate objective of
liquidating all NPC financial obligations and stranded
contract costs. Thus, this control makes it clear that
PSALM is now directly responsible for the settlement of
the liability due to the petitioners.
II. The RTC cannot directly proceed with the execution
before a separate money claim is filed with and approved
by the COA
While PSALM is directly liable for the payment of the
petitioners' entitlement, the proper procedure to enforce a
judgment award against the government is to file a
separate action before the COA for its satisfaction.67
We have consistently ruled that the back payment of any
compensation to public officers and employees cannot be
done through a writ of execution. The COA has exclusive
jurisdiction to settle "all debts and claims of any sort due
from or owing to the Government or any of its
subdivisions, agencies, and instrumentalities."The proper
procedure to enforce a judgment award against the
government is to file a separate action before the COA for
its satisfaction.
A. Parties' compliance to Our Resolution dated October
20, 2014
In the present case, We have noted the parties' respective
compliance to Our Resolution dated October 20, 2014,
directing them to submit a complete list of NPC employees
affected by the NPC restructuring, as well as their
respective computations of the petitioners' entitlement.
In particular, the NPC, through their Compliance Ad
Cautelam dated March 16, 2017, listed 9,272 employees
and provided its own computation of the amounts each
employee is supposedly entitled to and other details as
required by the Court (NPC List and Computation).
For their part, PSALM points out that it could only provide
a list of 46 former NPC employees subsequently employed
by PSALM since it does not have on record the total
number of NPC employees prior to the restructuring.
On the other hand, the petitioners fully adopted the NPC
List and Computation.
B. The Court's Ruling vis-à-vis the COA's Jurisdiction
The NPC List and Computation is by no means final and
binding either on the Court or the COA, regardless of the
petitioners' acceptance and admission of the same. It is
still subject to the COA's validation and audit procedures.
To enforce the satisfaction of the judgment award, the
amount of which has been provisionally computed in the
NPC List and Computation, the petitioners must now go
before the COA and file a separate money claim against
the NPC and PSALM. Whether the claim shall be allowed
or disallowed is for the COA to decide, subject only to the
remedy of appeal by petition for certiorari to this Court.
44 | P a g e
In other words, while the Court has determined that
PSALM, a government owned and controlled corporation,
is liable to the petitioners, it is for the COA to ascertain the
exact amount of its liability in accordance with its audit
rules and procedures, after a separate money claim for the
satisfaction of the judgment award is properly filed.
III. Guidelines on the computation of the petitioners'
entitlement
Inasmuch as the final judgment award will be re-computed
and validated by the COA upon the filing of a separate
money claim, We deem it proper and prudent to lay out
guidelines precisely governing the petitioners '
entitlement-a logical and necessary effect of the
invalidation of NPB Resolution Nos. 2002-124 and 2002125 and their illegal dismissal.
6. There were NPC employees who were rehired in 2003
but subsequently tendered their resignation prior to the
issuance of NPB Resolution No. 2007-55.
At the onset, We emphasize that the petitioners went
before the Court and assailed the validity of NPB
Resolution Nos. 2002-124 and 2002-125, which directed
the termination of all NPC employees effective January 31,
2003 (2003 Reorganization). Thus, the Court's ruling
invalidating these resolutions could only affect the
restructuring plan implemented in 2003. The
implementation of any other restructuring plan, like the
one in 2013, as PSALM points out, cannot affect the
computation of the judgment award in the present case. It
is not a matter presented for the Court's resolution.
Summary of Petitioners' Entitlement
To dispel any notion that the Court, with these guidelines,
is preempting the COA's jurisdiction, We clarify that these
rules govern only the general formula by which the
judgment award shall be computed.
Again, the petitioners' entitlement consists of the
following: (a) separation pay in lieu of reinstatement; (b)
backwages; (c) wage adjustments; minus any separation
pay already received under the restructuring plan.
Verily, jurisprudence is replete with general principles on
the computation of separation pay in lieu of reinstatement,
back wages, and other money claims filed by illegally
dismissed employees. However, these guidelines are
tailor-fitted to the extraordinary circumstances
surrounding ~he facts of the present case and in
accordance with Our previous rulings, the EPIRA and its
IRR, and other applicable laws.
A. Separation pay in lieu of reinstatement
These guidelines shall aid the COA in determining, recomputing, and validating the amount due to the
petitioners.
However, when an entirely new set-up takes the place of
the entity's previous corporate structure, the abolition of
positions and offices cannot be avoided, thus, making
reinstatement impossible.79 In which case, separation pay
shall be awarded in lieu of reinstatement.80 The award of
separation pay in illegal dismissal cases is an accepted
deviation from the general rule of ordering reinstatement
because the law cannot exact compliance with what is
impossible.
In this regard, PSALM raises points for the Court's
consideration, viz.:
1. There were two reorganizations undertaken in NPC 2003 and 2013.
2. The approval of NPB Resolution No. 2007-55 on
September 14, 2007 meant that the services of all NPC
employees have been legally terminated on this date.
3. There were NPC officials and employees that were
rehired by the government and immediately reported for
work the day after their termination from NPC as a
consequence of the 2003 reorganization x x x. The effect
of such continued employment with the NPC or with other
government agencies x x x should be considered.
4. The number of NPC employees might have included
contractual employees or those having a fixed-term of
employment.
5. A separation package was given to NPC employees that
operated the generation assets upon these assets'
privatization.
The established rule is that an illegally dismissed civil
service employee shall be entitled to reinstatement plus
backwages. This rule is echoed in Section 9 of Republic
Act No. 6656, which relates specifically to illegal
dismissals due to a government agency restructuring plan
found to be invalid.
Under the law, the separation pay in lieu of reinstatement
due to each petitioner shall be either the: (1) Separation
pay under the EPIRA and the NPC restructuring plan; or
(2) Separation gratuity under Republic Act No. 6656,
depending on their qualifications.
1. Separation pay under the EPIRA and the NPC
restructuring plan
Republic Act No. 6656, the general law governing
corporate reorganizations in the civil service, provides
that the separation pay due to entitled civil service
employees separated pursuant to a reorganization plan
shall be the appropriate separation pay and retirement and
other benefits under existing laws, which in this case is
the EPIRA mandating the NPC restructuring plan.
A person is qualified to receive separation benefits under
the NPC's restructuring plan if the following requirements
45 | P a g e
concur: (a) he/she is an official or employee whose
employment was severed pursuant to the privatization of
the NPC;82 (b) he/she has rendered at least one year of
service as of June 26, 2001 ; (c) he/she must not have
qualified or opted to retire under existing laws;84 and (d) if
a casual or contractual employee, he/she must have had
his/her appointment approved or attested to by the csc.
Thus, for purposes of computing the petitioners'
separation pay, their years of service shall be counted
from their first year of employment until September 14,
2007, unless in the meanwhile, they would have reached
the compulsory retirement age of sixty-five years.
B. Back wages
If qualified, the employee shall receive separation pay
under the NPC restructuring plan, which is equal to one
and one-half months' salary for every year of service in the
government.86 To clarify, the formula to compute the
amount of separation pay has three components, viz.: (a)
base amount, consisting of the monthly salary; (b)
multiplier of one and one-half months or 1.5; and (c)
length of service.
As for the first component, the EPIRA IRR clearly defines
"salary" as the basic pay including the 13th month pay
received by an employee pursuant to his appointment but
excluding per diems, bonuses, overtime pay, honoraria,
allowances and any other emoluments received in
addition to the basic pay under existing laws.87 In other
words, the "base amount" must consist of basic pay or
salary and 13th month pay exclusively.
2. Separation gratuity under Republic Act No. 6656
If the person does not meet all the above-mentioned
requirements (i.e., he/she is a contractual employee whose
appointment was not approved by the CSC, etc.) but was
separated pursuant to the restructuring, he/she is not
qualified to receive the separation pay under the NPC's
restructuring plan but is nonetheless entitled to a
separation gratuity provided in Republic Act No. 6656 in
the amount equivalent to one month basic salary for every
year of service.
Reckoning period
Both the separation pay under the NPC restructuring plan
and separation gratuity under Republic Act No. 6656
entitle the employee to benefits based on the number of
years of service rendered. While there is no question that
length of service shall be counted from the first year of
employment of each petitioner, We now clarify when this
period must end.
Again, separation pay is awarded in this case because the
petitioners could no longer be reinstated due to the
abolition of their former positions and overall
restructuring of the NPC. Thus, for purposes of computing
separation pay in lieu of reinstatement, the length of
service shall be computed until the time reinstatement
was rendered impossible.
In the present case, the petitioners' reinstatement became
impossible when their illegal dismissal was subsequently
validated by the issuance of NPB Resolution No. 2007-55
on September 14, 2007, as correctly pointed out by
PSALM.
We have consistently ruled that an illegally dismissed
government employee is entitled to back wages from the
time of his illegal dismissal until his reinstatement
because he is considered as not having left his office.
Following Galang v. Land Bank of the Philippines, back
wages shall be computed based on the most recent salary
rate upon termination.
Reckoning period
1. Start date
The rationale in awarding back wages is to recompense
the illegally dismissed employee for the entire period of
time that he/she was wrongfully prevented from
performing the duties of his/her position and from
enjoying its benefits because, in the eyes of the law,
he/she never truly left office. Thus, as a rule, it is reckoned
from the time of illegal termination. Verily, NPB Resolution
Nos. 2002-124 and 2002-125 directed the termination from
service of all NPC employees effective January 31, 2003.
However, the NPC subsequently issued NPC Circular No.
2003-09 setting forth four different dates of effectivity, viz.:
Group Effective date of termination
a) Top executives
January 31, 2003
b) Early-leavers94
January 15, 2003
c) Those no longer employed after June 26, 200195
Date of actual separation
d) All other NPC personnel
February 28, 2003
Thus, back wages shall be counted from each group's
respective effective date of termination, as the case may
be.
2. End date
As a rule, back wages shall be computed until actual
reinstatement. However, since reinstatement is no longer
possible in this case, it must be computed from the
petitioners' effective dates of termination until September
14, 2007 or the petitioners' date of retirement, in case
petitioners retired after the effective date of termination
but before September 14, 2007.
To be clear, the computation of separation pay is based on
the length of the employee's service; and the computation
of back wages is based on the actual period when the
employee was unlawfully prevented from working. While
these two awards are reckoned from different dates, both
are computed in the present case until September 14, 2007
or the date of retirement, whichever is earlier. The period
of overlap is proper because the period where back wages
46 | P a g e
are awarded must be included in the computation of
separation pay.
government-owned or controlled corporations or their
subsidiaries.
Effect of employment in the civil service immediately
succeeding termination
On the other hand, Section 8, Article IX-B of the
Constitution provides:
In the recent case of Campol v. Balao-As, the Court
explained at length the rationale supporting the award of
full back wages in favor of an illegally dismissed civil
service employee, without deducting any income that he
may have earned in case he is employed anew in another
government position during the pendency of the action. In
Campo, the Sangguniang Bayan (SB) of Boliney, Abra
passed a resolution in 2004 terminating Julius B. Campol
as SB Secretary. In 2005, while his illegal termination case
was still pending, Campol obtained another job as an
administrative aide in the Public Attorney's Office. The
Court ruled that Campol's PAO earnings should not be
deducted from the award of full backwages, explaining as
follows:
SECTION 8. No elective or appointive public officer or
employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law, nor
accept without the consent of the Congress, any present,
emolument, office, or title of any kind from any foreign
government.
This entitlement to full backwages also means that there is
no need to deduct Campol's earnings from his
employment with PAO from the award. The right to receive
full backwages means exactly this - that it corresponds to
Campol's salary at the time of his dismissal until his
reinstatement. Any income he may have obtained during
the litigation of the case shall not be deducted from this
amount. This is consistent with our ruling that an
employee illegally dismissed has the right to live and to
find employment elsewhere during the pendency of the
case. At the same time, an employer who illegally
dismisses an employee has the obligation to pay him or
her what he or she should have received had the illegal act
not be done. It is an employer's price or penalty for
illegally dismissing an employee. (Emphases supplied.)
Moreover, to award full back wages even to those who
remained employed as a direct result of the 2003
reorganization amounts to unjust enrichment and damage
to the government.
The Court further explained that this is also the prevailing
doctrine in the award of back wages in the private sector,
as previously held in Bustamante v. National Labor
Relations Commission and Equitable Banking Corporation
v. Sadac.
Pursuant to these policies and as pointed out by PSALM,
there were NPC employees who were: (a) rehired by NPC
or (b) absorbed by PSALM or Transco as a direct result of
the 2003 reorganization (Rehired or Absorbed NPC
Personnel). These personnel immediately reported for
work the day after their termination from NPC. True
enough, a perusal of NPC's list of employees submitted in
compliance to Our Resolution dated October 20, 2014
reveals that a majority of the listed personnel were either
rehired by NPC or absorbed by PSALM or Transco on
March 1, 2003 or within March 2003.
However, We revisit Our ruling in Campol. We agree with
Hon. Justice Antonio T. Carpio's opinion that the award of
full back wages in favor of an illegally dismissed civil
service employee who was subsequently employed in
another government agency certainly violates the
constitutional prohibitions against double office-holding
and double compensation in the civil service.
Section 7, Article IX-B of the Constitution provides:
Section 7. No elective official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
Pensions or gratuities shall not be considered as
additional, double, or indirect compensation.
Thus, We rule that petitioners who were subsequently: (a)
rehired by the NPC, (b) absorbed by PSALM or Transco, or
(c) transferred or employed by other government
agencies, are not entitled to back wages.
In the present case, the EPIRA and its IRR established
policies governing the subsequent placement of all NPC
employees affected by the restructuring, viz.: (a) giving
the NPC board of directors the sole prerogative to hire the
separated employees as new employees and to assign
them to new positions with the corresponding
compensation in accordance with its restructuring
program; and (b) entitling qualified displaced or separated
personnel to preference in the hiring of the manpower
requirements of PSALM and Transco.
These circumstances lend peculiarity to the present case,
setting it apart from Campol, Bustamante, and Equitable
Banking Corporation. The novelty of this case's factual
backdrop is even more evident in the following:
First, it is important to note that there was no break or gap
in the rehired or absorbed NPC personnel's government
service. They continuously had employment and a means
to receive regular and periodic compensation. Thus, they
were not deprived of the right to live nor prevented from
earning a living to support their daily expenses and
financial obligations. Moreover, they were not forced to
47 | P a g e
seek employment elsewhere, because they were able to
capitalize on the statutory preference given to them in
filling up the manpower requirements in PSALM or
Transco. Obviously, the evil sought to be avoided in the
above-cited jurisprudence does not exist insofar as the
rehired or absorbed NPC personnel are concerned.
Second, verily, the Court nullified NPB Resolution Nos.
2002-124 and 2002-125, and consequently held that the
herein petitioners were illegally dismissed. However, in
the meantime, NPC proceeded to implement these
resolutions. As a result, some of the petitioners were reemployed by NPC or hired by PSALM or Transco. In other
words, while they may have been illegally dismissed, it
cannot be denied that the rehired or absorbed NPC
personnel nonetheless benefitted from the now-defunct
NPB resolutions when they continued to be employed in
the government and receive compensation for their
service.
To allow them: (a) to enjoy, without reimbursement, the
employee benefits they earned as rehired or absorbed
NPC employees after termination from NPC until
September 14, 2007 or the date of retirement, whichever is
earlier and simultaneously, and (b) to benefit from the
award of full back wages covering the same period is
tantamount to permitting these personnel to occupy
multiple positions in the civil service (i.e., their original
position in the NPC and their new position in the NPC,
PSALM, or Transco after the reorganization) and to receive
benefits separately for each of those positions.
It is clear that sustaining the effects of these NPB
resolutions prior to nullification is incompatible with
upholding the prevailing doctrine on the award of full back
wages as a result of illegal separation after the same NPB
resolutions were invalidated.
On the other hand, petitioners who were neither rehired by
the NPC or absorbed by PSALM or Transco pursuant to
the 2003 reorganization and subsequently employed in the
private sector shall be entitled to full back wages
(applying Bustamante and Equitable Banking
Corporation).
implementation of the restructuring plan, the termination
of the petitioners' employment, and consequently the
payment of the personnel's separation pay under the plan.
Thus, while the petitioners are entitled to separation pay in
lieu of reinstatement, back wages, and other wage
adjustments, the amount they shall receive must be
reduced by any separation pay each of them has already
received under the separation plan.
Interest and Attorney's Lien
A. Attorney's lien
In Our Resolution dated September 17, 2008, we approved
a charging lien in favor of Attys. Aldon and Orocio. Their
lien shall be 10% of the petitioners' entitlement, after
deducting the separation pay already received by the
petitioners under the restructuring plan.
B. Legal interest
Aside from the petitioners' above-mentioned entitlement,
the amount due shall earn interest at the legal rate. The
payment of legal interest is a "natural consequence of a
final judgment."
As We held in Eastern Shipping Lines, Inc. v. Court of
Appeals, interest at the legal rate of 12%, per annum shall
accrue from the finality of judgment until the judgment
award is fully settled. However, pursuant to Nacar v.
Galleray Frames, beginning July 1, 2013, the legal rate of
6°/o per annum shall apply by virtue of Central Bank
Circular No. 799.
To be sure, the judgment award in this case upon which
interest shall accrue is the petitioners' entitlement after
deducting the separation pay already received by the
petitioners under the restructuring plan and the 10%
charging. lien. The exclusion of the charging lien from the
amount of judgment award to be used as a basis in
accruing legal interest is only proper considering that in
Bach v. Ongkiko Ka/aw Manhit & Acorda Law Offices, the
Court categorically held that legal interest must not be
imposed on attorney's fees.
C. Wage Adjustments and Other Benefits
In addition, We have also ruled that back wages should
include other monetary benefits attached to the
employee's salary following the principle that an illegally
dismissed government employee who is later reinstated is
entitled to all the rights and privileges that accrue to
him/her by virtue of the office he/she held.
D. Separation pay already received under the restructuring
plan
Recall that the Court did not issue a temporary restraining
order or a preliminary injunction to enjoin the
implementation of NPB Resolution Nos. 2002-124 and
2002-125. In effect, the NPC proceeded with the
Following these principles, interest on the judgment award
shall be computed as follows: (1) 12% per annum from
October 8, 2008, until June 30, 2013; and (2) 6% per
annum/ram July 1, 2013 onwards.
WHEREFORE, the Court resolves to:
1. GRANT PSALM's prayer to lift and quash the Demand
for Immediate Payment and the Notices of Garnishment
issued against it and the NPC;
2. DENY the petitioners' request to immediately execute
the judgment award; and
48 | P a g e
3. DIRECT the petitioners to file a claim against the
government before the Commission on Audit, pursuant to
its rules, which shall be resolved in accordance with the
guidelines herein set forth.
9) Admin. Case Nr. SDHB "B6" -94-09 for Abuse of
Authority and Violation of COMELEC Gun Ban filed by
Manuel Puey;
10) Admin. Case Nr. SDHB "B6" -94-10 for Conduct
Unbecoming of a Police Officer filed by Alex Edwin del
Rosario;
SO ORDERED.
[G.R. No. 130442. April 6, 2000.]
THE SUMMARY DISMISSAL BOARD AND THE REGIONAL
APPELLATE BOARD, PNP, REGION VI, ILOILO CITY,
Petitioners, v. C/INSP. LAZARO TORCITA, Respondent.
DECISION
GONZAGA-REYES, J.:
Before us is a Petition for Review by way of Certiorari of
the Decision of the Court of Appeals 1 in CA-G.R. SP No.
43872, which set aside the Decision of the Regional
Director (RD) of the Philippine National Police (PNP) of
Iloilo City, through its Summary Dismissal Board (SDB),
suspending herein respondent C/Insp. Lazaro Torcita from
the service for twenty (20) days for "Simple Irregularity in
the Performance of Duty under Section 41 of R. A. 6975."
The antecedents are as follows: virtual 1aw library
On July 6, 1994, the following verified complaints were
filed against C/Insp. Lazaro Torcita, herein respondent, by
Manuel Puey, Jesus Puey, Alex Edwin del Rosario:
1) Administrative Case Nr. SDHB "B6" -94-01- for Conduct
Unbecoming of a Police Officer filed by Jesus H. Puey in a
complaint dated June 25, 1994;
2) Admin. Case Nr. SDHB "B6" -94-02- for Grave Threats
filed by Jesus H. Puey;
3) Admin. Case Nr. SDHB "B6" -94-03 for Abuse of
Authority and Illegal Search filed by Jesus H. Puey;
4) Admin. Case Nr. SDHB "B6" -94-04 for Abuse of
Authority and Violation of Domicile filed by Jesus H. Puey;
5) Admin. Case Nr. SDHB "B6" -94-05 for Abuse of
Authority and Violation of COMELEC Gun Ban filed by
Jesus H. Puey;
6) Admin. Case Nr. SDHB "B6" -94-06 for Conduct
Unbecoming of a Police Officer filed by Manuel H. Puey;
7) Admin. Case Nr. SDHB "B6" -94-07 for Illegal Search
filed by Manuel H. Puey;
8) Admin. Case Nr. SDHB "B6" -94-08 for Grave Abuse of
Authority and Violation of Domicile filed by Manuel Puey;
11) Admin. Case Nr. SDHB "B6" -94-11 for Abuse of
Authority and Grave Threats filed by Alex Edwin del
Rosario;
12) Admin. Case Nr. SDHB "B6" 94-12 for Abuse of
Authority and Violation of COMELEC Gun Ban filed by
Alex Edwin del Rosario.
The twelve administrative complaints were the subject of
administrative hearings before the Summary Dismissal
Board of the PNP. At the pre-trial, the parties and their
respective counsels agreed that the twelve cases shall be
consolidated into one "major complaint" for "conduct
unbecoming of a police officer" under Par. e, Sec. 3, Rule
II, Memorandum Circular No. 92-006 pursuant to RA 6975 2
. The statement of the case by the Summary Dismissal
Board is as follows:
"That sometime last April 26, 1994, after attending the
birthday party of Miss Jessie Vasquez, Alex Edwin del
Rosario, together with Rosita Bistal, Carmen Braganza
and Cristita Dawa boarded Mazda pick up with plate nr.
HHP-808 and driven by Reynaldo Consejo, proceeded
towards the direction of Cadiz City.
While nearing Crossing Cadiz in the vicinity of Sitio Puting
Tubig, the aforementioned Mazda pick-up driven by
Consejo overtook a red Cortina Ford driven by Major
Lazaro Torcita; That on board the motor vehicle driven by
Torcita were three females sitted at the back;
That Major Lazaro Torcita signaled the passengers of the
Mazda pick-up to stop, however, the driver of the Mazda
pick-up refused to abide by the signal and instead
accelerated and proceeded to Hda. Aimee without
stopping.
That upon reaching Hda. Aimee Major Lazaro Torcita,
entered the compound and was approached by two
persons in civilian clothes which prevented him from
further proceeding; Moments after, the patrol car of Cadiz
PNP arrived and together with Major Torcita, approached
Jesus H. Puey and Alex Edwin del Rosario, inquiring as to
the identity of the persons who accosted him;
The complainants alleged that Major Torcita approached
and entered the compound of Hda. Aimee, very drunk,
with back-up vehicle full of armed policemen, confronted
Jesus H. Puey and Alex Edwin del Rosario as who
stopped him at the gate, shouting in a very, very loud
voice, invectives and remarks;
49 | P a g e
That such act of Major Lazaro Torcita constitute Conduct
Unbecoming of an Officer not worth of respect;
In his answer, the respondent, Lazaro R. Torcita, while
admitting that he entered the premises of the
complainants, the same was done on a regular, lawful and
proper way for he was in the performance of his official
duties in pursuing the suspect who committed a crime in
his presence;
From the affidavits of the witnesses and testimonies
presented by the complainants and the counter affidavits
and the counter testimonies of the respondent, the ISSUE
before the Board is whether the respondent is guilty of
Conduct Unbecoming of a Police Officer under Republic
Act 6975 as implemented by Memorandum Circular 92-006
of the National Police Commission under Rule II Section 3,
Paragraph C, committed thru a series of illegal acts
consisting of Grave Threats, Illegal Search, Abuse of
Authority, violation of Domicile and Violation of COMELEC
Gun Ban."
The complainant presented documentary evidence and
witnesses Congressman Manuel Puey, Rosita Bistal, Alex
Edwin del Rosario and Reynaldo Consejo. Respondent
Torcita testified in his behalf and presented Nehru Java, a
member of the PNP Cadiz, who was with him during the
incident in question.
The Summary Dismissal Board made the following
findings of facts:
"That sometime last April 26, 1994, at about 10:30 in the
evening, a red Cortina Ford, driven by C/Insp. Lazaro H.
Torcita, with his aide, PO2 Nehru Java, in the front seat
and his wife with two ladies at the backseat, were
overtaken by a mazda pick-up, in the vicinity of Sitio
Puting Tubig, about 10 kilometers from crossing Cadiz,
owned by Congressman Manuel Puey and driven
Reynaldo Consejo with four (4) passengers in the persons
of Alex Edwin del Rosario, the executive assistant and
financial analyst of Congressman Puey, three (3) helpers
employed under the Congressman, namely, Rosita Bistal,
Carmen Braganza and Cristina Dawa;
That both parties came from the Municipality of Victorias
where they attended some social functions on the
occasion of the town fiesta;
After the mazda pick-up has overtaken the red Cortina
Ford, it accelerated speed and proceeded to Hda. Aimee, a
sugarcane plantation in Cadiz City, also owned by
Congressman Manuel Puey; The red Cortina Ford followed
also at high speed until it reached Hda. Aimee where
C/Insp. Torcita and PO2 Java alighted and the
confrontation with Alex Edwin del Rosario and Jesus
Puey, occurred;
The Complainant tried to establish the fact that nothing
unusual occurred or transpired between the parties in the
vicinity of Sitio Puting Tubig and that Torcita has no
business pursuing them; However the Board is more
inclined to give credence to the affidavits (exhibit 5 & 6)
and the testimony of C/Insp. Torcita that a vehicular
collision almost took place due to reckless driving of the
driver of the mazda pick-up;
That it was the duty inherent to the position as Chief of
Police of Cadiz City and as deputy of the Land
Transportation Office to enforce traffic rules and
regulation to prevent chaos and accidents in roads and
highways of the country (exhibit 13); This observation is
further bolstered by the testimony of Reynaldo Consejo,
the driver of the mazda pick-up, that he was able to
overtake the red Cortina Ford only after the latter car hit
the shoulder of the road and after overtaking he increased
his speed (tsn page 131, August 30, 1994);
This sudden increase in speed of a driver involved in a
vehicular accident is a classic move for one who wants a
fast get away from the scene, to escape responsibility;
Further, Alex Edwin del Rosario testified that upon
reaching Hda. Aimee, he instructed the guard to be on
look-out for a car might be following them and might enter
the compound (TSN page 70 August 30, 1994). This
conduct would show that witness is anticipating that red
Cortina Ford would follow them because of the incident in
Sitio Puting Tubig which could have ended in a vehicular
collision and finally no proof was presented to show that
no other reason exist as to why C/Insp. Torcita would
pursue the Mazda pick up other than near occurrence of a
vehicular collision;
The Complainant presented the Joint-Affidavit of Rosita
Bistal and Reynaldo Consejo and the Affidavit of Alex
Edwin del Rosario, jointly taken, may be considered as
proof that C/Insp. Torcita has committed act or series of
acts that would constitute Grave Threat, Illegal Search,
Abuse of Authority, Violation of Domicile and Violation of
COMELEC Resolutions regarding the gun ban, thus
CONDUCT UNBECOMING OF A POLICE OFFICER;
That in the Joint-Affidavit of Rosita Bistal and Reynaldo
Consejo (exhibit c; exhibit 2), Bistal attempted to establish
the fact that C/Insp. Torcita and PO2 Java illegally entered
the gate of the compound but were stopped by the guards
armed with cane stick or batuta, however in her testimony
given during the hearing (tsn page 32, August 30, 1994)
she stated that she did not know what transpired between
the two men approaching and the guards near the gate
because she, together with her companions, were busy
unloading kitchen utensil from the pick-up to the kitchen
and Consejo categorically stated that this portion of their
affidavit, specifically paragraph 7, is NOT TRUE; Alex
Edwin del Rosario, in his testimony given in the hearing,
corroborated this fact that he also did not see or hear what
happened for he was in some distance away and he
cannot see them clearly (TSN page 73, August 30, 1994);
The only piece of evidence presented in connection with
the incident which happened near the gate of the
50 | P a g e
compound is the affidavit of C/Insp. Torcita and his
testimony given in the hearing of the case that when he
was walking towards the compound together with his aide,
PO2 Nehru Java, two armed civilian guards stopped and
threatened him; He identified himself however, the same
had no effect, and PO2 Java whispered that there are
armed men around them and that it is dangerous for them
to continue. That at this point, they radioed for back-up;
Since no proof to the contrary was presented by the
Complainant nor was there any witness or witnesses
presented to rebut this allegations, the Board had no other
choice except to consider these allegations as proof;
(Exhibit 5 & 6); The Board also resolve to take note that a
metropolitan newspaper with nationwide circulation and
with unquestionable credential, had published a news item
about the presence of armed security personnel of
Congressman Manuel Puey (exhibit 14); This evidence
give more credence to the fact that there were really
armed men in the premises where the aforementioned
incident happened; That this is corroborated further by the
affidavit of PO2 Nehru Java (exhibit 17);
This observation of the Board that there were really armed
men in the premises of Hda. Aimee, is further enhance by
the fact that Major Torcita felt their presence when he
desisted from further entering the compound, a feeling
which was developed and nurtured by years of living
under combat conditions and finally the Board also feels
that the presence of armed persons in the offices and
properties of high government officials is accepted as a
necessary consequence for their protection due to the
greater risks they are expose to;
That because of the incident in Sitio Puting Tubig which
was further aggravated by the confrontation near the gate
of the compound of Hda. Aimee, C/Insp. Torcita upon the
arrival of the back-up force of PNP Cadiz City, proceeded
to the place where Capt. Jesus Puey and Alex Edwin del
Rosario were; This fact is not disputed by the parties;
Chief Insp. Lazaro Torcita does not deny having taken
alcoholic drink; However, not to the point of drunkness;
The Board is more inclined to believe this allegation for no
sane person will risks the life of a member of his family by
deliberately driving when he is mentally and physically
incapable; Further, C/Insp. Torcita was able to drive from
Victorias to Cadiz City, a distance of forty kilometers, on a
dark night and raining and was able to avoid collision of
the vehicles involved by sheer reflex action despite the
admitted fact that his tire hit the shoulder of the road;
Further, at the time Chief Inspector Torcita entered the
compound he was fully aware of the presence of armed
men and reacted to this by exercising prudence while
approaching the compound of Hda. Aimee; The foregoing
facts would show that C/Insp. Torcita was in full command
of his senses and was not affected by the numbing effect
of alcohol for a drunk person does not show any caution
and behaves irrationaly."
The Board did not find sufficient evidence to establish that
Torcita threatened anybody with a gun, nor that a serious
confrontation took place between the parties. The Board
also found that there was no sufficient evidence that the
urinating incident took place, and held that the charges of
violation of domicile and illegal search were not proven.
The Board found that Lazaro Torcita was "in the
performance of his official duties" when the incident
happened; however, he committed a breach of internal
discipline by taking alcoholic drinks while in the
performance of same. The dispositive portion of the
decision of the Board reads:
"WHEREFORE, in view of the foregoing, the Complaint for
CONDUCT UNBECOMING OF A POLICE OFFICER under
Memo Cir. Nr. 92-006 pursuant to Sec. 42, RA 6975, be
DISMISSED for lack of sufficient evidence, however finds
C/Insp. Lazaro R. Torcita to have committed SIMPLE
IRREGULARITY IN THE PERFORMANCE OF DUTY under
Sec. 41, RA 6975, in relation to NAPOLCOM Memo Cir. Nr.
91-002 and is hereby ORDERED SUSPENDED for twenty
days (20) and forfeiture of salary for the same period of
time effective upon receipt of this Decision under Rule 7,
Section 2, Sub-par. b of the same Memo Circular."
Torcita appealed his conviction to the Regional Appellate
Board of the PNP, Region VI, Iloilo City, but the appeal was
dismissed for lack of jurisdiction; Thus,
"Under the applicable provisions of Section 45 of R. A.
6975, however, the disciplinary action imposed by the
Regional Director upon a PNP member shall be final and
executory except those involving demotion in rank or
dismissal from the service. The appealed decision being
that of suspension from the service with corresponding
forfeiture of pay only the same is not subject to review by
this Board." 3
Whereupon, C/Insp. Torcita filed a petition for certiorari in
the regional trial court of Iloilo City, Branch 31,
questioning the legality of the conviction of an offense for
which he was not charged, "which conviction is a nullity
because of the lack of procedural due process of law."
Public respondent filed a motion to dismiss, which was
denied. The regional trial court granted the petition for
certiorari and annulled the dispositive portion of the
questioned decision insofar as it found Torcita guilty of
simple irregularity in the performance of duty.
Public respondent appealed from the above-mentioned
decision of the regional trial court, by petition of review to
the Court of Appeals, which affirmed the same for the
reason that the respondent could not have been guilty of
irregularity considering that "the twelve (12) cases treated
as Conduct Unbecoming of a Police Officer were
eventually dismissed."
The instant petition for review on certiorari under Rule 45
seeks the reversal of the aforesaid decision of the Court of
Appeals on the following grounds:
51 | P a g e
"1. THE OFFENSE OF "SIMPLE IRREGULARITY IN THE
PERFORMANCE OF DUTY" IS NECESSARILY INCLUDED
IN THE CHARGE OF "CONDUCT UNBECOMING OF A
POLICE OFFICER."
2. THE DECISION OF THE SUMMARY DISMISSAL BOARD
(SDB) AND THE NAPOLCOM REGIONAL APPELLATE
BOARD HAS BECOME FINAL AND EXECUTORY." 4
The petitioners submit that the offense of "Conduct
Unbecoming of a Police Officer" is broad enough to
include any act of an officer which tends to bring dishonor
and disgrace to the PNP organization, and Simple
Irregularity in the Performance of Duty is one act which
brings such disgrace and dishonor as contemplated by
law. Moreover, the dismissal has become final and
executory and the trial court erred when it proceeded with
the petition in violation of the doctrine of primary
jurisdiction.
In his comment, respondent Torcita insists that his right to
due process of law was "corrosively abridged and
impaired", and pleads for an affirmance of the decision of
the Court of Appeals.
The appeal has no merit. The Court of Appeals did not err
in affirming the decision of the trial court granting the
petition for certiorari.
The administrative disciplinary machinery for dealing with
complaints or charges against any member of the
Philippine National Police (PNP) is laid down in Republic
Act No. 6975, otherwise known as the "Department of the
Interior and Local Government Act of 1990." This law
defines the summary dismissal powers of the PNP Chief
and Regional Directors, among others in cases, "where
the respondent is guilty of conduct unbecoming of a
police officer." 5 Memorandum Circular No. 92-006
prescribes the "Rules and Regulations in the conduct of
summary dismissal proceedings against erring PNP
members" and defines conduct unbecoming of a police
officer under Section 3 (c), Rule II, as follows:
"Conduct unbecoming of a police officer" refers to any
behavior or action of a PNP member, irrespective of rank,
done in his official capacity, which, in dishonoring or
otherwise disgracing himself as a PNP member, seriously
compromise his character and standing as a gentleman in
such a manner as to indicate his vitiated or corrupt state
of moral character; it may also refer to acts or behavior of
any PNP member in an unofficial or private capacity
which, in dishonoring or disgracing himself personally as
a gentleman, seriously compromises his position as a
PNP member and exhibits himself as morally unworthy to
remain as a member of the organization."cralaw virtua1aw
library
On the other hand, the acts constituting "simple
irregularity in the performance of duty" are defined in
Memorandum Circular No. 91-002. It is a light offense,
incurred, among others, by a member of the PNP who
shall, among others, be found to "have the odor or smell
of alcohol on his breath while on duty, or possess
alcoholic beverages on his person, police vehicle, post or
office." (Sec. 2.A, Rule VI).
As above-stated, the Summary Dismissal Board absolved
the C/Insp. Torcita of the consolidated charge of "conduct
unbecoming of a police officer" but found him guilty of
simple irregularity in the performance of duty under Sec.
41, R.A. No. 6975, in relation to Napolcom Memorandum
Circular No. 91-002 and imposed a penalty of suspension
for twenty (20) days and forfeiture of salary for the same
period.
We are unable to sustain the theory of the petitioners that
the definition of "conduct unbecoming of a police officer"
as earlier granted, is broad enough to include any act of
an officer which tends to bring dishonor and disgrace to
the PNP organization, and that there is "no legal
prohibition" which would prevent the Summary Dismissal
Board from finding petitioner guilty of the lesser offense.
While the definition of the more serious offense is broad,
and almost all-encompassing a finding of guilt for an
offense, no matter how light, for which one is not properly
charged and tried cannot be countenanced without
violating the rudimentary requirements of due process.
The series of twelve complaints filed against C/Insp.
Torcita were solely based on the incident that occurred on
April 26, 1994 at about 11:00 o’clock in the evening,
wherein Torcita, who was off-duty and was in civilian
clothes, riding in his private vehicle with members of his
family, chased another vehicle which overtook his car in a
reckless manner and in violation of the Traffic Code; the
hot pursuit ended at the Hacienda Aimee, where he
allegedly entered the place without lawful warrant and
while inside, belligerently shouted invectives, challenging
everyone to a fight, pointed his gun at somebody and
urinated in full view of the persons therein. The Dismissal
Board found the above charges unsubstantiated and held
that Torcita was in the performance of official duty when
the incidents happened. "However, he committed breach
of internal discipline by taking alcoholic drinks while in
the performance of same."
It is glaringly apparent from a reading of the titles of the
twelve administrative cases filed against C/Insp. Torcita,
earlier quoted, that none of the charges or offenses
mentioned or made reference to the specific act of being
drunk while in the performance of official duty. The
records do not bear out the specific acts or conduct
constituting the charge/offense in the twelve cases which
were consolidated at the pre-hearing conference into a
single case of "Conduct Unbecoming of a Police Officer."
Thus, the Board defined the issue before the Board as
"whether the respondent is guilty of conduct unbecoming
of a police officer under Republic Act 6975, as
implemented by Memorandum Circular No. 92-006 of the
National Police Commission under Rule II, Section 3,
Paragraph c, committed though a series of illegal acts
52 | P a g e
consisting of grave threats, illegal search, abuse of
authority, violation of domicile or violation of Comelec
Gun Ban." Notably, there is no indication or warning at all
in the summary dismissal proceedings that C/Insp. Torcita
was also being charged with breach of internal discipline
consisting of taking alcoholic drinks while in the
performance of his duties.
The omission is fatal to the validity of the judgment
finding him guilty of the offense for which he was not
notified nor charged. Summary dismissal proceedings are
governed by specific requirements of notification of the
charges together with copies of affidavits and other
attachments supporting the complaints, and the filing of
an answer, together with supporting documents. It is true
that consistent with its summary nature, the duration of
the hearing is limited, and the manner of conducting the
hearing is summary, in that sworn statements may take
the place of oral testimonies of witnesses, crossexamination is confined only to material and relevant
matters, and prolonged arguments and dilatory
proceedings shall not be entertained. (Section 4,
Memorandum Circular No. 92-006). However, notification
of the charges contemplates that respondent be informed
of the specific charges against him. Torcita was entitled to
know that he was being charged with being drunk while in
the performance of duty, so that he could traverse the
accusation squarely and adduce evidence in his defense.
Although he was given an opportunity to be heard on the
multiple and broad charges initially filed against him, the
absence of specification of the offense for which he was
eventually found guilty is not a proper observance of due
process. There can be no short-cut to the legal process
(Alonte v. Savellano Jr., 287 SCRA 245).
It is a requirement of due process that the parties be
informed of how the litigation was decided with an
explanation of the factual and legal reasons that led to the
conclusions of the Court (ABD Overseas Manpower Corp.
v. NLRC, 286 SCRA 454). Memorandum Circular No. 92-006
specifically prescribes that the decision shall contain "a
brief statement of the material facts and the findings of the
summary dismissal authority as well as the disposition
thereof" (Sec. 6). The cursory conclusion of the Dismissal
Board that Torcita "committed breach of internal
discipline by taking drinks while in the performance of
same" should have been substantiated by factual findings
referring to this particular offense. As it turned out, the
dismissal Board believed his allegation that he was not
drunk and found that he was in full command of his
senses where he tried to apprehend the driver of the
maroon Mazda pick-up. Although Torcita did not deny that
he had taken a shot of alcoholic drink at the party which
he attended before the incident, the records show that he
was then off-duty and the party was at the Municipality of
Victorias, which was outside of his area of police
jurisdiction. On the other hand, the hot pursuit incident
occurred while he was on in his way home to Cadiz City
with the members of his family. As observed by the
Dismissal Board itself, the hot pursuit was motivated by
the duty "inherent to the position as Chief of Police of
Cadiz City and as Deputy of the Land Transportation
Office to enforce traffic rules and regulations, to prevent
chaos and accidents in roads and highways" (Decision, p.
76). The Court of Appeals correctly pointed out that even if
he was prosecuted for irregular performance of duty, he
could not have been found to have the odor or smell of
alcohol while in the performance of duty because he was
not on duty at the time that he had a taste of liquor; he
was on a private trip fetching his wife.
Premises considered, we hold that the Court of Appeals
correctly found that the decision of the petitioners Board
was rendered without or in excess of jurisdiction, as
respondent Torcita was found guilty of an offense for
which he was not properly charged. A decision is void for
lack of due process if, as a result, a party is deprived of
the opportunity of being heard (Palu-ay v. CA, 293 SCRA
358). A void judgment never acquires finality (Heirs of
Mayor Nemencio Galvez v. CA 255 SCRA 672; Fortich v.
Corona, 298 SCRA 678). Hence, aforementioned decision
cannot be deemed to have become final and executory.
WHEREFORE, the assailed decision dated September l,
1997 of the Court of Appeals is AFFIRMED and the instant
petition is DISMISSED.
SO ORDERED.
G.R. No. 135613, March 9, 2000
ARTHUR V. VELAYO, petitioner,
vs.
COMMISSION ON ELECTIONS AND ERNESTO
NATIVIDAD, respondents.
PUNO, J.:
In this special civil action for certiorari, petitioner Arthur V.
Velayo seeks to set aside the Resolution issued by
respondent Commission on Elections dated October 6,
1998 annulling his proclamation, and directing the Board
of Canvassers of Gapan, Nueva Ecija to convene
immediately, exclude Precincts 43A, 44A2, 50A and 50A1,
and immediately proclaim the winning candidate for Mayor
of Gapan, Nueva Ecija.
Petitioner Arthur V. Velayo and private respondent
Ernesto Natividad were among the candidates for mayor
of Gapan, Nueva Ecija in the May 11, 1998 elections. The
Municipal Board of Canvassers constituted to canvass the
election results was composed of Linda Sandoval 1 as
Chairman, Eduardo Pancho 2 as Vice Chairman and
Eustaquita Tolentino 3 as member.
On May 12, 1998, the canvass of election returns started.
Private respondent orally sought the exclusion of Election
Return Nos. 4245882 (Precinct 6A) and 4900753 (Precinct
103). Election Return No. 4245882 was objected on the
ground that it is incomplete and contains material
defects. 4 Election Return No. 4900753 was objected on the
ground of material defects and that it does not contain the
thumbmarks of official watchers. 5 The Board denied the
objections and continued with the canvass.
On May 13, 1998, private respondent filed with the
COMELEC (2nd Division) SPC No. 98-002. 6 The petition is
53 | P a g e
entitled "In the Matter of the Challenge and Objection to
the Composition and Proceedings of the Municipal Board
of Canvassers of Gapan, Nueva Ecija and for Annulment
of Certain Election Returns Illegally Canvassed and for
Suspension of Canvass of Election Returns Pending
Substitution of the Challenged Members Thereof." The
petition did not name any respondent. Not the Municipal
Board of Canvassers. Neither petitioner Velayo. On the
same date, the private respondent 7 sent a letter to the
Board seeking the disqualification of its Chairman and
Vice Chairman for alleged bias and gross violations of the
law and COMELEC Rules and Regulations. On May 14,
1998, the Board denied the prayer to suspend the canvass
"there being no valid and compelling reason to do so" and
the request for disqualification. On May 16, 1998, the
private respondent sought reconsideration of the Board's
ruling. 8 His effort did not succeed and he filed a verified
Notice of Appeal. 9 On May 17, 1998, the Board proclaimed
petitioner as the duly elected Mayor of Gapan, Nueva Ecija
with a vote of 10,697. Private respondent garnered 10,427
votes.
On May 18, 1998, the private respondent filed another case
with the COMELEC (2nd Division), SPC No. 98-050 entitled
"In the Matter of the Appeal from the Adverse Ruling of the
Municipal Board of Canvassers for Gapan, Nueva Ecija,
dated 14 May 1998, Seeking the Disqualification of Ms.
Linda D. Sandoval and Eduardo Pancho to Sit as
Chairman and Vice Chairman thereof; to Suspend the
Canvass and to Suspend/Annul the Proclamation of the
Winning Candidates." 10 Again, the petition did not name
the Municipal Board of Canvassers or the petitioner
Velayo as respondents. Neither were they furnished
copies of the petition. The petition prayed:
WHREFORE, it is most respectfully prayed that after due
proceedings, judgment be rendered, as follows:
1. Declaring as null and void all acts and proceedings had
by the Municipal Board of Canvassers from 13 May 1998
when the same have been challenged by the petitioner as
illegal up to its last act thereof particularly the canvass of
election returns for the local elections only;
2. Ordering the substitution/replacement of Ms. Linda
Sandoval and Mr. Eduardo Pancho as chairperson and
vice chairman of the Municipal Board of Canvassers for
Gapan, Nueva Ecija, and once substituted/replaced,
directing the substituted members of the Board to proceed
with dispatch in the canvass of the election returns;
3. Suspending the proclamation of the winning candidates
until after a faithful and impartial canvass of the returns
shall have been had by the substituted members of the
Board, and the pre-proclamation controversies bearing on
the questioned matter resolved by this Honorable
Commission; and
4. Annuling the proclamation, if any shall have been
illegally done by the Board on the basis of the sham, predetermined and manipulated canvass of the returns as
complained of herein.
Petitioner prays for other relief just and proper in the
premises.
In the morning of May 19, 1998, Natividad filed a third
case, SPC No. 98-073, entitled "In the matter of the appeal
from the written rulings dated 13, 14 and 15 May 1998 of
the Municipal Board of Canvassers for Gapan, Nueva
Ecija, on contested Election Returns No. 4900678 of
Precinct No. 9A3/9A4 dated 13 May 1998; contested
Returns Nos. 4900775 of Precinct No. 43A2; 4900776 of
Precinct No. 43A3; 4900828 of Precinct No. 61A2; 4900780
of Precinct No. 45A/45A1; 4900789 of Precinct No. 99A;
4900774 of Precinct No. 43A1; 4900792 of Precinct Nos.
50A and 50A2; 4900844 of Precinct No. 68A; 4900779 of
Precinct No. 44A2; and 4900811 of Precinct No. 98A2 all
dated 14 May 1998 and contested Election Returns No.
4900777 of Precinct No. 56A2." 11 Later in the day, he
submitted documentary evidence in support of his
appeal. 12 Again, neither the Board nor the petitioner was
named respondent in the appeal. They were not furnished
copies of the petition.
On May 21, 1998, the private respondent filed a
Supplemental Appeal in SPC No. 98-073. It was entitled "In
the Matter of the Supplemental Appeal from the Written
Rulings dated 17 May 1998 of the Municipal Board of
Canvassers for Gapan, Nueva Ecija, on Contested Election
Returns Nos. 4900773 of Precinct No. 43A; 4900775 of
Precinct No. 43A2; 4900777 of Precinct No. 44A; and
4900789 of Precinct No. 44A1. Annexed to the pleading
were the documentary evidence or the private
respondent. 13 Again, both the Board and the petitioner
were not made parties in the Supplemental Appeal. They
were not furnished copies of the Appeal.
On June 8, 1998, the private respondent filed a motion for
admission of new and additional evidence. 14 In SPC 98050, he submitted twenty (20) affidavits. In SPC 98-073, he
submitted eight (8) affidavits. Petitioner was not furnished
a copy of the motion.
On June 9, 1998, the COMELEC (2nd Division) 15 dismissed
SPC No. 98-002, SPC No. 98-050 and SPC No. 073 in an
Order which reads:
In view of the proclamation by the Municipal Board of
Canvassers of Gapan, Nueva Ecija, of all the winning
candidates for the municipal positions of said municipality
on May 17, 1998, as evidenced by duly signed Certificate
of Canvass of Votes and Proclamation of the Winning
Candidates for Municipal Offices [C.E. form No. 25] with
Serial No. 03490337, this Commission [Second Division]
RESOLVED, as it hereby RESOLVES TO DISMISS this
instant petition for being MOOT AND ACADEMIC.
SO ORDERED. 16
It is alleged by the private respondent that he received a
copy of the Order on June 22, 1998.
On June 25, 1998, the private respondent filed a Motion for
Reconsideration contending that the Order of dismissal is
contrary to law and the evidence. He sought to restrain the
proclamation of the petitioner. 17 Again, petitioner was not
furnished with a copy or the Motion. On July 3, 1998, the
records of the three (3) cases were elevated to the
COMELEC en banc for resolution of private respondent's
Motion for Reconsideration. 18 Again, petitioner was not
furnished a copy of the Order.
On October 6, 1998, the COMELEC en banc issued the
questioned Resolution, 19 the dispositive portion of which
reads:
WHEREFORE, premises considered, the proclamation of
Arthur V. Velayo is hereby ANNULLED. The Board of
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Canvassers of Gapan, Nueva Ecija is hereby DIRECTED to
convene immediately, exclude Precincts 44A, 44A2 and
50A & 50A1 20 and immediately proclaim the winning
candidate for mayor of Gapan, Nueva Ecija.
Further, they are directed to immediately inform the
Commission of their action thereon.
SO ORDERED.
In so ruling, the COMMISSION en banc held that:
A close perusal of the above-entitled cases would show
that the above objections and appeals were made strictly
in accordance with law, however, the Board in defiance of
Section 245 and Section 20 of Republic Act 7166,
particularly sub-paragraph (i) included the assailed
election returns without giving opportunity to the
aggrieved party to go on appeal to the Commission.
Said Section 20(i) of R.A. 7166 states:
The board of canvassers shall not proclaim any candidate
as winner unless authorized by the Commission after the
latter has ruled on the objections to it on appeal by the
losing party. Any proclamation made in violation thereof
shall be void ab initio, unless the contested returns will
not adversely affect the results of the election.
In this case, it is clear that the objected election returns
will adversely affect the results of the elections.
Thus, after close perusal of the above-cited objected
election returns, the Commission finds that the election
returns of 44A, 44A2, and 50A1/A2 should be excluded
from the canvass. It is worth noting that in these precincts
44A and 44A2 petitioner Natividad got zero votes which is
statistically improbable. The affidavits of the following
watchers respectively to wit: Rolando C. Gamboa,
Eduardo Mallare and Eduardo Surio together with the
police report of Miguel S. Inductivo of the threats received
by Danilo Simon, all watchers of petitioner, all in the
dialect which attest to the incident wherein they were
prevented and threatened from entering the polling place
by four [un]identified men and they were able to witness
these men threatening the teachers and telling them to
tamper the election return in such a way that they will not
be noticed by other people and they will have no problem.
Watchers play a vital role in protecting the votes
especially during the counting of votes in the precinct
level. The fact that the watchers were prevented and in
fact heard the teachers threatened to have the election
returns altered makes the whole election process a
mockery in these precincts as the returns are no longer
reflective of the true results of the elections. It is no
wonder then that in these precincts Natividad got zero
votes.
Further, since there was already an objection against the
two members of the Board of Canvassers and their illegal
proceedings they cannot proceed to canvass, to cite
Section 244 of the Omnibus Election Code:
Sec. 244. Contested composition or proceedings of the
board. — When the composition or proceedings of the
board of canvassers are contested, the board of
canvassers shall, within twenty-four hours, make a ruling
thereon with notice to the contestant who, if adversely
affected, may appeal the matter to the Commission within
five days after the ruling with proper notice to the board of
canvassers. After due notice and hearing, the Commission
shall decide the case within ten days from the filing
thereof. During the pendency of the case, the board of
canvassers shall suspend the canvass until the
Commission orders the continuation or resumption
thereof and citing their reasons or grounds therefor.
Thus, the action of the Board in proclaiming the winning
candidate for mayor in the Municipality of Gapan is illegal
for violation of Section 20(a) to (i) of R.A. 7166 and Section
244 of the Omnibus Election Code. 21
It was only then that petitioner was informed of the
Resolution by telegram on October 8, 1998.
In a letter 22 dated October 9, 1998, the Board, thru its new
Chairman, Belen Rivera, informed Velayo that it will
convene on October 16, 1998. On October 17, 1998, it
proclaimed the private respondent as Mayor with a vote of
10,420.
In this special civil action for certiorari, petitioner
contends:
1. The questioned Resolution (Annex "A") of October 6,
1998 is ultra vires and void ab initio because it was
issued ex-parte, without notice and opportunity afforded
the petitioner to be heard and therefore, violative of due
process.
2. The Comelec committed grave abuse of discretion
amounting to lack of jurisdiction when it did not dismiss
respondent Natividad's Motion for Reconsideration on
SPC Nos. 98-002, 98-050 and 98-073 for being filed out of
time.
3. The Comelec committed grave abuse of discretion
amounting to lack of jurisdiction when it excluded the
votes cast in Precincts 44A, 44A2, 50A and 50A1 as
manufactured and contrary to statistical probabilities
without the required notice and hearing consistent with
due process.
4. The Comelec committed grave abuse of discretion
amounting to lack of jurisdiction when it annulled the
proclamation of petitioner without the required notice and
hearing consistent with due process.
5. The Comelec committed grave abuse of discretion
amounting to lack of jurisdiction when it did not dismiss
said pre-proclamation cases for the reason that the
grounds relied upon by respondent Natividad are proper
grounds for election protests.
In its Manifestation and Motion (in lieu of Comment), the
Solicitor General agreed with the petitioner and opined
that the COMELEC gravely abused its discretion when it
issued the impugned resolution. 23 COMELEC filed its own
Comment sustaining its resolution. So did the private
respondent.
We grant the petition.
FIRST. Private respondent maintains that the filing of his
Motion for Reconsideration on June 25, 1998 was within
the 5-day reglementary period as he received a copy of the
June 9, 1998 Order of the COMELEC only on June 22,
1998. We do not agree with the private respondent for he
cannot count the 5-day reglementary period from the date
he received the June 9, 1998 Order of the COMELEC.
Section 2, Rule 19 of the COMELEC Rules of Procedure
clearly provides that private respondent's Motion for
Reconsideration should be ". . . filed within five (5) days
from the promulgation thereof," thus:
55 | P a g e
Sec. 2. Period for Filing Motions for Reconsideration. — A
motion to reconsider a decision, resolution, order, or
ruling of a Division shall be filed within five (5) days from
the promulgation thereof. Such motion, if not pro-forma,
suspends the execution or implementation of the decision,
resolution, order or ruling.
A party cannot feign ignorance of the date of promulgation
of a decision or resolution because it is previously fixed
and notice is served upon him in advance. Thus, Section
5, Rule 18 of the COMELEC Rules of Procedure provides:
Sec. 5. Promulgation. — The promulgation of a decision or
resolution of the Commission or a Division shall be made
on a date previously fixed, of which notice shall be served
in advance upon the parties or their attorneys personally
or by registered mail or by telegram.
SECOND. Respondent COMELEC failed to be faithful to
section 3 of Rule 27 of the 1993 COMELEC Rules of
Procedure which provides that "all pre-proclamation
controversies shall be heard summarily after due notice . .
."24
The records will show that petitioner was not furnished
any notice of the pre-proclamation proceedings against
him from beginning to end. Respondent Natividad did not
give petitioner copies of his notices of appeal from the
rulings of the Municipal Board of Canvassers. Nor was
petitioner given copies of private respondent's petitions
and motions filed with the COMELEC. Even the
COMELEC's Second Division failed to notify petitioner
about the promulgation of its Order dated June 9, 1998
which dismissed the pre-proclamation cases against him
for being moot and academic. He was not also given a
copy of private, respondent's Motion for Reconsideration
against said Order. Also, he was not furnished a copy of
the July 4, 1998 Order of the Comelec (2nd Division) which
elevated respondent Natividad's Motion for
Reconsideration to the COMELEC en banc. All that
petitioner received from the COMELEC on October 8, 1998
was its en banc resolution annulling his proclamation.
It cannot be denied that petitioner Velayo is a real party in
interest. As the proclaimed Mayor, petitioner stands to be
prejudiced by whatever action COMELEC may take on the
appeals filed by respondent Natividad. His non-inclusion
as respondent and his lack of notice of the proceedings in
the COMELEC which resulted in the cancellation of his
proclamation constitute clear denial of due process.
THIRD. The Court agrees with the Solicitor General that
pre and post proclamation proceedings should be
resolved summarily but not ex parte. We quote his sound
submission, viz.:
The record shows that petitioner had no participation
whatsoever in all the proceedings conducted before the
COMELEC. He was not furnished with a copy of any of the
three (3) petitions filed by private respondent before the
COMELEC (Annexes B, B-1 and B-2, Petition). This fact is
admitted by private respondent himself in his Comment on
the Petition dated November 12, 1998, thus:
1. Petitioner has no legal personality to file the special
civil action herein under Rule 65 of the Rules of Court
because he is/was not a party to the three preproclamation cases, namely, SPC Nos. 98-002, 98-050 and
98-073 filed by answering respondent before public
respondent Commission on Election hereafter referred to
as the COMELEC.
(p. 1, Private Respondent's Comment; emphasis ours)
In Jagunap v. Commission on Elections, 104 SCRA 204
(1981), this Honorable Court ruled that a proclamation of a
winning candidate can be set aside only after due notice
and hearing, viz:
Upon the facts of the case, We find that the COMELEC
had, indeed, gravely abused its discretion, amounting to
lack of jurisdiction, in annulling the proclamation of JAEN
as the elected Municipal Mayor of Leganes, Iloilo. JAEN
was not furnished with a copy of any petition or motion to
set aside his proclamation; nor was he notified of the
hearing of such petition or motion. As a matter of fact, the
records of the case do not indicate that a hearing was ever
conducted by the COMELEC before it ordered the
annulment of the proclamation of JAEN. This to Us is an
irregularity. JAEN, who has already been proclaimed by
the Municipal Board of Canvassers of Leganes, Iloilo, has
the right to be notified of any proceeding to set aside his
proclamation, and a hearing is necessary before the
COMELEC can order the annulment of his proclamation.
Section 175 of the 1978 Election Code explicitly provides
that the COMELEC can order the annulment of a
proclamation of a candidate-elect on any of the grounds
mentioned in Sections 172, 173 and 174 thereof (defective,
tampered and falsified election returns, and discrepancies
in the election returns) only after due notice and hearing.
Said section reads as follows:
Sec. 175. Suspension and annulment of proclamation. —
The Commission shall be the sole judge of all preproclamation controversies and any of its decisions,
orders or rulings shall be final and executory. It may motu
propio or upon written petition, and after due notice and
hearing order the suspension of the proclamation of a
candidate-elect or annul any proclamation, if one has been
made, on any of the grounds mentioned in Sections 172,
173 and 174 hereof.
It results that COMELEC Resolution No. 9431, dated March
1, 1980, and COMELEC Resolution No. 9456, dated May 6,
1980, which were issued without the notice and hearing,
are arbitrary, and therefore, null and void. The
proclamation of JAGUNAP, being based upon these void
resolutions, is, consequently, of no legal effect, and
should be set aside.
Furthermore, Section 246 of B.P. Blg. 881, otherwise
known as the Omnibus Election Code of the Philippines,
as amended by Section 18 of R.A. 7166, provides that preproclamation cases must be disposed of summarily but
not ex parte viz:
Sec. 246. Summary disposition of pre-proclamation
controversies. — All pre-proclamation controversies on
election returns on certification of canvass shall, on the
basis of the records and evidence elevated to it by the
board of canvassers, be disposed of summarily by the
Commission within seven (7) days from receipt thereof. Its
decisions shall be executory after the lapse of seven (7)
days from receipt by the losing party of the decision of the
commission.
xxx
xxx
xxx
56 | P a g e
A judicial proceeding, order or injunction, etc. is said to
be ex parte when it is taken or granted at the instance and
for the benefit of one party only and without notice to, or
contestation by any person adversely interested. An ex
parte hearing is one in which the court or tribunal hears
only one side of the controversy (Black's Law Dictionary,
Sixth Edition, p. 576).
In the case at bar, petitioner's proclamation as Mayor of
Gapan, Nueva Ecija by the Municipal Board of Canvassers
on May 17, 1998 was not only summarily annulled by the
COMELEC. It was annulled ex parte, i.e., solely on the
basis of the evidence presented by private respondent,
absolutely depriving petitioner an opportunity to present
his rebuttal evidence. This ex parte annulment of
petitioner's proclamation is null and void for being
repugnant to the due process clause of the Constitution
and, should, therefore, be set aside conformably
with Jagunap, (supra).
It is true that RA No. 7166 provides for summary
proceedings in pre-proclamation cases and does not
require a trial type hearing. Nevertheless, summary
proceedings cannot be stretched to mean ex
parte proceedings. Summary simply means with dispatch,
with the least possible delay. It signifies that the power
may be exercised without a trial in the ordinary manner
prescribed by law for regular judicial proceedings. But
although the proceedings are summary, the adverse party
nevertheless must at the very least be notified so that he
can be apprised of the nature and purpose of the
proceeding. 25 In the case at bar, all the proceedings were
conducted by the respondent COMELEC without the
participation of the petitioner. Worse, respondent
Natividad was allowed to file various motions without the
knowledge of the petitioner. Plainly, these ex
parte proceedings offend fundamental fairness and are
null and void.
FOURTH. To be sure, Republic Act No. 7166 introduced
several electoral reforms and some of them relate to the
disposition of pre-proclamation controversies. Among
others, it provides that pre-proclamation controversies on
election returns or certificates of canvass must be
disposed of summarily by the COMELEC on the basis of
the records and evidence adduced in the Board of
Canvassers. Thus, section 20 of RA No. 7166 which
repealed Section 245 of the Omnibus Election Code
provides:
Sec. 20. Procedure in disposition of contested election
returns. (a) Any candidate, political party or coalition of
political parties contesting the inclusion or exclusion in
the canvass of any election returns on any of the grounds
authorized under Article XX or Section 234, 235 and 236 of
Article XIX of the Omnibus Election Code shall submit
their oral objection to the chairman of the board of
canvassers at the time the questioned return is presented
for inclusion in the canvass. Such objection shall be
recorded in the minutes of the canvass.
(b) Upon receipt of any such objection, the board of
canvassers shall automatically defer the canvass of the
contested returns and shall proceed to canvass the
returns which are not contested by any party.
(c) Simultaneous with the oral objection, the objecting
party shall also enter his objection in the form for written
objections to be prescribed by the Commission. Within
twenty-four (24) hours from and after the presentation of
such an objection, the objecting party shall submit the
evidence in support of the objection, which shall be
attached to the form for written objections. Within the
same period of twenty-four (24) hours after presentation of
the objection, any party may file a written and verified
opposition to the objection in the form also to be
prescribed by the Commission, attaching thereto
supporting evidence, if any. The board shall not entertain
an objection or opposition unless reduced to writing in the
prescribed forms.
The evidence attached to the objection or opposition
submitted by the parties, shall be immediately and
formally admitted into the records of the board by the
chairman affixing his signature at the back of each and
every page thereof.
(d) Upon receipt of the evidence, the board shall take up
the contested returns, consider the written objections
thereto and opposition, if any, and summarily and
immediately rule thereon. The board shall enter its ruling
on the prescribed form and authenticate the same by the
signatures of its members.
(e) Any party adversely affected by the ruling of the board
shall immediately inform the board if he intends to appeal
said ruling. The board shall enter said information in the
minutes of the canvass, set aside the returns and proceed
to consider the other returns.
(f) After all the uncontested returns have been canvassed
and the contested returns ruled upon by it, the board shall
suspend the canvass. Within forty-eight (48) hours
therefrom, any party adversely affected by the ruling may
file with the board a written and verified notice of appeal;
and within an unextendible period of five (5) days
thereafter, an appeal may be taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the
board shall make an appropriate report to the
Commission, elevating therewith the complete records
and evidence submitted in the canvass, and furnishing the
parties with copies of the report.
(h) On the basis of the records and evidence elevated to it
by the board, the Commission shall decide summarily the
appeal within seven (7) days from receipt of the said
records and evidence. Any appeal brought before the
Commission on the ruling of the board, without the
accomplished forms and the evidence appended thereto,
shall be summarily dismissed.
The decision of the Commission shall be executory after
the lapse of seven (7) days from receipt thereof by the
losing party.
(i) The board of canvassers shall not proclaim any
candidate as winner unless authorized by the Commission
after the latter has ruled on the objections brought to it on
appeal by the losing party. Any proclamation made in
violation hereof shall be void ab initio, unless the
contested returns will not adversely affect the results of
the election.
Appeal from the decision of the Board of Canvassers is
governed by Section 18 of RA 7166, viz.:
57 | P a g e
Sec. 18. Summary disposition of pre-proclamation
controversies. — All pre-proclamation controversies on
election returns or certificates of canvass shall, on the
basis of the records and evidence elevated to it by the
board of canvassers, be disposed of summarily by the
Commission within seven (7) days from receipt thereof. Its
decision shall be executory after the lapse of seven (7)
days from receipt by the losing party of the decision of the
Commission.
In the case at bar, we have carefully examined the records
and it does not clearly appear that the COMELEC annulled
the proclamation of Velayo on the basis of the official
records and evidence adduced by the parties before the
Board of Canvassers. The importance of these official
records and evidence cannot be overemphasized. The
records contain the contested election returns, the
objections of the aggrieved party, the opposition of the
prevailing party, the evidence of the parties, and the
rulings of the Board of Canvassers. R.A. No. 7166
explicitly provides that it is only on the basis of these
official records that the COMELEC can decide the preproclamation controversy in a summary manner. Without
the official records, the respondent COMELEC cannot
validly decide a pre-proclamation controversy. There is no
showing that the official records of the Board of
Canvassers were forwarded to the respondent COMELEC
and were used to cancel Velayo's proclamation.
FIFTH. Worse still, the respondent COMELEC annulled the
proclamation of petitioner Velayo on the basis of new and
additional evidence submitted by the private respondent.
These new and additional evidence were not presented
before the Board of Canvassers. Petitioner Velayo was not
furnished these evidence and given the chance to refute
them. In SPC No. 98-050, these pieces of new and
additional evidence are:
(1) Affidavit of Isagani V. Manuel dated 18 May 1998
consisting of two pages attached hereto as Annex A and
made an integral part hereof;
(2) Affidavit of Romeo Natividad dated 20 May 1998
consisting of two (2) pages copy of which is attached
hereto as Annex B and made an integral part hereof;
(3) Affidavit of Danilo Natividad dated 19 May 1998
consisting of two (2) pages copy of which is attached
hereto as Annex C and made an integral part hereof;
(4) Joint affidavit of Dindo C. Alvarez and Berlin Alvarez
(dated) 20 May 1998 consisting of two (2) pages copy of
which is attached hereto as Annex D and made an integral
part hereof;
(5) Joint affidavit of Myrna Angelina Cosio and Rachel G.
Navarro dated 19 May 1998 copy of which is attached
hereto as Annex E and made an integral part hereof;
(6) Joint affidavit of Lourdes M. Malaca and Adelwiso P.
Malaca dated 19 May 1998 copy of which is attached
hereto as Annex F and made an integral part hereof;
(7) Joint affidavit of Leovigildo Angeles and Joselito
Arcilla dated 20 May 1998 copy of which is attached hereto
as Annex G and made an integral part hereof;
(8) Joint affidavit of Francisco Angeles and Hilario Garcia
dated 18 May 1998 copy of which is attached hereto as
Annex H and made an integral part hereof;
(9) Joint affidavit of Arlene Ayroso and Jamaiza Garcia
dated 20 May 1998 copy of which is attached hereto as
Annex I and made an integral part hereof;
(10) Joint affidavit of Belinda Reyes and Corazon Reyes
dated 20 May 1998 copy of which is attached hereto as
Annex J and made an integral part hereof;
(11) Joint affidavit of Elenita Pablo and Ariel Gutierrez
dated 20 May 1998 copy of which is attached hereto as
Annex K and made an integral part hereof;
(12) Joint affidavit of Francisco Mauro and Bernardo
Santos dated 19 May 1998 copy of which is attached
hereto as Annex L and made an integral part hereof;
(13) Joint affidavit of Lorenzo Rueda and Ceferino Sta.
Maria consisting of two (2) pages copy of which is
attached hereto as Annex M and made an integral part
hereof;
(14) Joint affidavit of Rommel Oanes and Jonnel Robello
dated 19 May 1998 copy of which is attached hereto as
Annex N and made an integral part hereof;
(15) Joint affidavit of Enrico Matias and Ronald Tolentino
dated 20 May 1998 copy of which is attached hereto as
Annex O and made an integral part hereof;
(16) Joint affidavit of Cesar Natividad and Belinda Tinio
dated 20 May 1998 copy of which is attached hereto as
Annex P and made an integral part hereof;
(17) Joint affidavit of Fernando Caralde and Angelito
Nepomuceno dated 18 May 1998 copy of which is attached
hereto as Annex Q and made an integral part hereof;
(18) Joint affidavit of Evaristo Bunag and Donald Alvarez
dated 19 May 1998 copy of which is attached hereto as
Annex R and made an integral part hereof;
(19) Joint affidavit of Roberto Manipon and Gerry
Fernandez dated 20 May 1998 copy of which is attached
hereto as Annex S and made an integral part hereof; and
(20) Joint affidavit of Roberto dela Cruz and Leonardo
Reyes dated 20 May 1998 copy of which is attached hereto
as Annex T and made an integral part hereof. 26
In SPC 98-073, the new and additional evidence are the
following:
(1) Election Returns No. 4900773 (Precinct No. 43A)
Certification by the PNP, Gapan Police Station, Gapan,
Nueva Ecija, that the complaint of Danilo Simon that he
was threatened as watcher of Precinct No. 43A by four (4)
unidentified men as follows: "Magsilayas na kayo dito
pagpapatayin ko kayo," was entered in the Police Blotter
of Gapan Police Station on 11 May 1998 copy of which is
attached hereto as Annex Y and made an integral part
hereof and accompanied by the affidavit of Danilo Simon
dated 14 May 1998, Annex Y-1 hereof.
Joint affidavit of Nestor Pascual and Gerry Mangahas
dated 22 May 1998 copy of which is attached hereto as
Annex Z and made an integral part hereof;
(2) Election Returns No. 4900774 (Precinct No. 43A 1)
Joint affidavit of Perfecto San Gabriel and Rico Andres
dated 22 May 1998 copy of which is attached hereto as
Annex AA and made an integral part hereof;
(3) Election Returns No. 4900775 (Precinct No. 43A2)
Joint affidavit of Editha Pasco and Jose San Gabriel dated
22 May 1998 copy of which is attached hereto as Annex
BB and made an integral part hereof;
(4) Election Returns No. 4900776 (Precinct No. 43A3)
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Joint affidavit of Eladio Bartolome and Edgar Gatus dated
22 May 1998 copy of which is attached hereto as Annex
CC and made an integral part hereof;
(5) Election Returns No. 4900777 (Precinct No. 44A)
Joint affidavit of Rolando Linsangan and Samuel Lazaro
dated 22 May 1998 copy of which is attached hereto as
Annex DD and made an integral part hereof;
(6) Election Returns No. 4900778 (Precinct No. 44A1)
Joint affidavit of Ramon Natividad and George Lazaro
dated 22 May 1998 copy of which is attached hereto as
Annex EE and made an integral part hereof;
(7) Election Returns No. 4900779 (Precinct No. 44A2)
Joint affidavit of Eduardo A. Santiago and Guillermo Gatus
dated 22 May 1998 copy of which is attached hereto as
Annex FF and made an integral part hereof;
(8) Election Returns No. 4900779 (Precinct No. 44A2)
Joint affidavit of Francisco delos Santos and Cesar
Nanalis dated 22 May 1998 copy of which is attached
hereto as Annex GG and made an integral part hereof; and
(9) Election Returns No. 4900792 (Precinct No. 50A1/50A2)
Joint affidavit of Roberto S. Delegiado and Eduardo
Hernandez dated 22 May 1998 copy of which is attached
hereto as Annex HH and made an integral part hereof. 27
Again, it cannot be gainsaid that petitioner was denied due
process by the respondent COMELEC.
SIXTH. Even granting that the respondent COMELEC can
consider the new and additional evidence of the private
respondent, their examination will show that their
evidentiary value cannot justify the annulment of the
proclamation of petitioner Velayo. The COMELEC relied on
the affidavits of the watchers of the private respondent,
namely: Rolando C. Gamboa, Eduardo Mallare and
Eduardo Surio together with the police report of Miguel S.
Inductivo on the alleged threats received by Danilo Simon.
The Affidavits 28 of Danilo Simon read:
(1) REPUBLIC OF THE PHILIPPINES)
PROVINCE OF NUEVA ECIJA) S.S.
MUNICIPALITY OF GAPAN)
AFFIDAVIT
Ako si Danilo Simon, may sapat na gulang, asawa at
naninirahan sa Mangino, Gapan, Nueva Ecija ng naaayon
sa batas ay nagsasaad ng sumusunod:
Na, nuong ika-11 ng Mayo 1998 ay inutusan ako ni Ernesto
L. Natividad na magdala ng itinalaga sa mga presinto sa
Kapalangan, Mahipon, Bungo at Makabaklay, Gapan,
Nueva Ecija.
Na, isinagawa ko ang pagdadala ng pagkain ng watchers
ng bandang ika 10:00 ng umaga.
Na, ng dumating ako sa eskuwelahan ng Kapalangan na
siyang pinagdadausan ng botohan ay natuklasan ko na
walang watchers ang Liberal Party o mga kandidato nito
sa mga lugar ng botohan sa Kapalangan.
Na ng malaman ko ang ganitong pangyayari ay
ipinagbigay alam ko kay Ginoong Ernesto L. Natividad na
kandidato para Mayor ng Gapan, Nueva Ecija na siyang
kandidato opisyal ng Liberal Party.
Sa katotohanan ng lahat, ay kusang loob kong nilagdaan
ang Affidavit na ito ngayong ika-14 ng Mayo 1998 dito sa
Gapan, Nueva Ecija.
(SGD). DANILO SIMON
Nagsasalaysay
(2) REPUBLIKA NG PILIPINAS )
LALAWIGAN NG NUEVA ECIJA ) S.S.
BAYAN NG GAPAN )
SINUMPAANG SALAYSAY
Ako, si Danilo Simon, may asawa, Pilipino at naninirahan
sa Mangino, Gapan, Nueva Ecija ng naaayon sa batas ay
nagsasaad ng sumusunod:
Na, nuong ika-11 ng Mayo 1998, nagpunta ako sa Himpilan
ng Pulisya ng Gapan, Nueva Ecija at inireport ko ang
tungkol sa ginawa sa mga watchers ng Liberal Party sa
mga presinto sa Kapalangan.1âwphi1.nêt
Na, kalakip nito ang kopya ng Police Blotter.
Sa katotohanan ng lahat ay kusang loob akong lumagda
ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.
(SGD). DANILO SIMON
Nagsasalaysay
The police report of SPO1 Miguel Inductivo 29 reads:
Republic of the Philippines
National Police Commission
PHILIPPINE NATIONAL POLICE
GAPAN POLICE STATION
Gapan, Nueva Ecija
-oOoGPS-IN May 14, 1998
SUBJECT: Certification
TO WHOM IT MAY CONCERN:
This is to CERTIFY, that it appear(s) in the Police Blotter of
Gapan Police Station, Gapan, Nueva Ecija on page 0741
with entry number 0829 dated 11 May 1998, the following
entries and read as follows:
THREAT
Danilo Simon y Nunez, 43 years old, married, driver,
election watcher, resident of Mangino, Gapan, Nueva Ecija
personally appeared and complained to this station that
on or about 111800 (sic) May 1998 inside Precinct No. 43A,
Kapalangan, Gapan, Nueva Ecija his watcher I.D. and
Watcher Appointment was grabbed from his hand and
threw by four (4) unidentified men and threatened him
"Magsilayas kayo dito pag papatayin ko kayo."
Complainant further relayed he and his companion
watcher Manny Legaspi of Kapalangan, Gapan, Nueva
Ecija left the said voting precinct due to the incident.
(SGD) DANILO SIMON
Case reported and recorded by SPO2 RUPERTO H. SIMON
PNP.
Issued upon request of Mr. Danilo N. Simon, for whatever
any legal purpose it may serve.
FOR THE CHIEF OF POLICE
(SGD) MIGUEL S. INDUCTIVO
SPO1 PNP
Investigator
The Affidavit 30 of Eduardo Mallare reads:
REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA ) S.S.
MUNICIPALITY OF GAPAN )
AFFIDAVIT
Ako, si Eduardo Mallare, may asawa at naninirahan sa Sta.
Cruz, Gapan, Nueva Ecilja matapos makapanumpa ng
naaayon sa batas ay malaya at kusang loob na nagsasaad
ng sumusunod:
59 | P a g e
Na, ako ay inapoint ni G. Ernesto Natividad bilang watcher
sa presinto 44A2 sa Kapalangan, Gapan, Nueva Ecija;
Na, ayaw akong kilalaning watcher ng mga maestra na
nakatalaga sa presinto 44A2 at hindi rin ako binigyan ng
CVC;
Na, hindi ako pinayagang umalis ng compound ng
eskwelahan ng Kapalangan hangga't hindi tapos ang mga
ginagawang mga titsers;
Na, nadinig na sinabihan ng mga lalake ang mga titser sa
presinto 44A2 na gawing malinis ang pagreretoke ng
election return.
Lumagda ako sa salaysay na ito ng kusang loob ngayong
ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.
(SGD) EDUARDO MALLARE
Nagsasalaysay
The Affidavit 31 of Eduardo Surio reads:
REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA )S.S.
MUNICIPALITY OF GAPAN )
AFFIDAVIT
Ako, si Eduardo Surio, may asawa at naninirahan sa San
Lorenzo, Gapan, Nueva Ecija matapos makapanumpa ng
naaayon sa batas ay malaya at kusang loob na nagsasaad
ng sumusunod:
Na, itinalaga ako ni G. Eto Natividad bilang watcher niya
sa presinto 50A1-50A2 sa Mahipon, Gapan, Nueva Ecija;
Na, hindi ako pinayagang pumasok sa loob ng presinto ng
apat na lalake at ipinasabi sa titsers na hindi ako puwede
sa loob ng presinto at binawal din akong umalis ng
bakuran ng eskwelahan hanggat hindi nila ako pinaaalis;
Na, nadinig ko na sinabihan ng mga lalake ang mga titsers
na ayusin ang election return para masiyahan ang
kanilang amo.
Sa katunayan ng lahat ay kusang loob akong lumagda
ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.
(SGD) EDUARDO SURIO
Nagsasalaysay
The Affidavit 32 of Rolando Gamboa reads:
REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA )S.S.
MUNICIPALITY OF GAPAN )
AFFIDAVIT
Ako, si Rolando C. Gamboa, may asawa at nakatira sa
Mangino, Gapan, Nueva Ecija matapos makapanumpa ng
ayon sa batas ay malaya at kusang loob na nagsasaad ng
sumusunod:
Na, inapoint akong watcher ni G. Eto Natividad sa presinto
44A sa Kapalangan, Nueva Ecija nuong May 11, 1998;
Na, hindi ako nakapasok sa kwarto na kinalalagyan ng
presinto 44A dahil binawal ako ng limang lalake at
sinabihan na huwag akong umuwi hangga't hindi
naguuwian ang mga titsers sa presinto 44A;
Na, hindi ako nakakuha ng CVC dahil ayaw akong bigyan
ng mga titsers dahil utos daw sa kanila;
Na, narinig ko na inutusan ang mga titsers ng limang lalaki
na gawing maganda o mataas ang bilang ng boto ng
Velayo na hindi halatain ang pagsasaayos.
Nilagdaan ko ang salaysay na ito ng kusang loob ngayong
ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.
(SGD) ROLANDO C. GAMBOA
Nagsasalaysay
Taken together, these affidavits do not constitute
substantial evidence to justify the cancellation of
petitioner Velayo's proclamation. As aforestated, Simon,
Mallare, Surio ang Gamboa are all watchers of the private
respondent and hence are not impartial witnesses. A
circumspect examination of these affidavits will show their
worthlessness, thus: (1) affidavits of Danilo Simon. In his
first Affidavit, he said: "Na, ng dumating ako sa
eskuwelahan ng Kapalangan na siyang pinagdadausan ng
botohan ay natuklasan ko na walang watchers ang Liberal
Party o mga kandidato nito sa mga lugar ng botohan sa
Kapalangan." Such a statement does not establish
anything wrong with any election return. In his second
Affidavit executed on the same date, he changed his
statement by alleging: "Na, nuong ika-11 ng Mayo 1998,
nagpunta ako sa Himpilan ng Pulisya ng Gapan, Nueva
Ecija at inireport ko ang tungkol sa pananakot na ginawa
sa mga watchers ng Liberal Party sa mga presinto sa
Kapalangan." In the second Affidavit he also mentioned
threats to watchers of the liberal Party. Nevertheless, he
did not state the nature of the threat, the names of the
watchers, the names of the culprit and whether the threats
affected the elections. In the police blotter, Simon further
embroidered his report. He alleged therein that it was he
whose watcher ID and Appointment were grabbed and
thrown away by four unidentified men and who threatened
"Magsilayas kayo dito pagpapatayin ko kayo." Also, he
added, that his companion watcher Manny Legaspi left the
precinct due to the incident. The changes in Simon's story
destroy his credibility. Indeed, the police did not even
investigate his report. In any event, Simon's affidavits did
not establish that the voters of private respondent failed to
vote. They did not prove that any election return was
particularly tampered. They did not prove any electoral
malpractice of petitioner Velayo or any of his people. It
bears stressing that petitioner Velayo and private
respondent Natividad were not the only candidates for
mayor of Gapan; (2) the affidavit of Ernesto Mallare was no
better. He merely alleged he was not recognized by the
teachers as a watcher; that he was not allowed to leave
the school compound; and that he heard some men tell
the teachers in Precinct 44A2 "na gawing malinis ang
pagreretoke ng election return." The affidavit is
meaningless for it does not name the teachers concerned
and the men who gave the order to tamper the election
return and whether or not the teachers obeyed. It is also
incredible that he was allowed to stay in the precinct while
efforts to tamper with the returns were being made. It is
also incredible that he did not report to the police his
illegal detention and the tampering of the election returns;
(3) likewise the affidavit of Eduardo Surio has but a scrap
value. He merely alleged he was barred from entering and
leaving the precinct by men whom he did not identify. He
said the same men ordered the teachers whom he did not
identify "na ayusin ang election returns para masiyahan
ang kanilang amo." He did not say whether the teachers
obeyed, what election returns were doctored, and the
identity of the "amo." Such generalizations do not
constitute evidence, let alone evidence of any illegal act or
omission on the part of petitioner Velayo to justify
cancellation of his proclamation. Surio also failed to make
60 | P a g e
a police report; (4) the affidavit of Rolando C. Gamboa is
likewise bereft of value. It did not name names. It alleged
"na narinig ko na inutusan ang mga titsers ng limang
lalaki na gawing maganda o mataas ang bilang ng boto ng
Velayo na hindi halatain ang pagsasaayos." Again, it is not
clear whether the teachers complied. It is not clear
whether the Velayo referred to is petitioner Arthur Velayo.
He also did not report to the police.
To repeat, all these affiants are watchers of respondent
Natividad. The truthfulness of their affidavits is highly
suspect.1âwphi1 The more impartial witnesses like the
teachers were not presented by Natividad. Indeed, these
complaints of the affiants do not appear to have been
raised by Natividad during the canvassing of the election
returns in Precincts 44A, 44A2 and 50A1 and 50A2. Thus,
some of the election returns in Precinct Nos. 44A and
44A2, 50A and 50A2 were not excluded because the
objections merely related to formal defects and did not
affect the integrity and authenticity of the returns. 33 In
fine, the affidavits of private respondent Natividad are
insufficient proofs to annul petitioner Velayo's
proclamation for as we held in Casimiro, et al. v.
COMELEC, et al.: 34
Obviously, the evidence relied upon mainly by petitioners
to support their charges of fraud and irregularities in the
election returns and in the canvassing consisted of
Affidavits prepared by their own representatives. The selfserving nature of said Affidavits cannot be discounted. As
this Court has pronounced, reliance should not be placed
on mere affidavits . . . .
Aside from said sworn statements, the records do not
indicate any other substantial evidence that would justify
the exclusion of election returns in the canvassing for
being fraudulent in character nor a declaration that the
proceedings wherein the returns were canvassed were
null and void. The evidence presented by petitioners is not
enough to overturn the presumption that official duty had
been regularly performed. . . . In the absence of clearly
convincing evidence, the election returns and the
canvassing proceedings must be upheld. A conclusion
that an election return is obviously manufactured in the
canvass must be approached with extreme caution, and
only upon the most convincing proof.
Finally, respondent COMELEC's resort to the doctrine of
statistical improbability is flawed. As observed by
petitioner Velayo, from experiences in past elections,
respondent COMELEC should be aware that it is possible
for one candidate or even a few candidates to get zero
votes in one or a few precincts. In his Memorandum,
petitioner Velayo attached some Statement of Votes as
Annexes A to A-5, where it can be readily gleaned that
there were not a few candidates who obtained zero votes
in certain precincts in that particular election.
Standing alone and without more, the bare fact that a
candidate for public office received zero votes in one or
two precincts can not adequately support a finding that
the subject election returns are statistically improbable. A
no-vote for a particular candidate in election returns is but
one strand in the web of circumstantial evidence that
those election returns were prepared under "duress, force
and intimidation." 35 In the case of Una Kibad v.
Comelec, 36 we warned that the doctrine on statistical
improbability must be viewed restrictively, the utmost care
being taken lest in penalizing the fraudulent and corrupt
practices, which indeed is called for, innocent voters
become disenfranchised, a result which hardly commends
itself. This specially applies to the case at bar where
respondent COMELEC's ruling is premised on
questionable affidavits of private respondent's witnesses,
and election returns which appear to be regular on their
face. Moreover, the doctrine of statistical improbability
involves a question of fact and a more prudential
approach prohibits its determination ex parte.
IN VIEW WHEREOF, the Resolution of the respondent
COMELEC (en banc) dated October 6, 1998 is hereby SET
ASIDE, the proclamation of private respondent Ernesto
Natividad is declared NULL and VOID and COMELEC is
ordered to REINSTATE petitioner Arthur V. Velayo as
Mayor of Gapan, Nueva Ecija, effective immediately upon
receipt of this decision. Costs against private respondent.
SO ORDERED.
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