G.R. No. 174935 April 30, 2008 [picture seat plan] are far and different from the facial features and signatures from both John Does. Respondent looks older, has full cheekbones, flatter nose and thin lips. In other ** words, the picture and signatures affixed on the PBET application form, picture seat plan CIVIL SERVICE COMMISSION, petitioner, vs. TRISTAN C. COLANGGO, respondents. and PDS undoubtedly belong to three different persons which clearly serve a ground to establish a just cause for CSC-CARAGA to issue a formal charge on January 13, 1999 against D E C I S I O N respondent.5 (emphasis supplied)

CORONA, J.: The CSC concluded that respondent did not apply for and take the PBET exam. Thus, in Resolution No. 021412, the CSC found respondent guilty of dishonesty and conduct prejudicial to the best interest of 6 This petition for review on certiorari1 seeks to set aside the February 22, 2006 decision2 of the Court of service and ordered his dismissal. Appeals (CA) in CA-G.R. SP No. 79047 and its resolution denying reconsideration.3 Respondent moved for reconsideration but his motion was denied.7 On October 25, 1992, respondent Tristan C. Colanggo took the Professional Board Examination for Teachers (PBET) and obtained a passing rate of 75.98%. On October 1, 1993, he was appointed Teacher I Aggrieved, respondent filed a petition for certiorari in the CA alleging that the CSC committed grave and was assigned to Don Ruben E. Ecleo, Sr. Memorial National High School in San Jose, Surigao del abuse of discretion in issuing Resolution No. 021412.8 He pointed out that the pieces of evidence against Norte. him were inadmissible as they were unauthenticated photocopies of the PBET application form, picture seat plan and PDS. Subsequently, a complaint questioning the eligibility of teachers in Surigao del Norte was filed in the Civil Service Commission (CSC) CARAGA Regional Office No. XIII (CSC-CARAGA) in Butuan City. The CSC- On February 22, 2006, the CA granted the petition.9 It ruled that the photocopies of the PBET application CARAGA immediately investigated the matter. form, picture seat plan and PDS should have been authenticated.10 Only documents or public records duly acknowledged or certified as such in accordance with law could be presented in evidence without further proof.11 Consequently, the CA annulled and set aside Resolution No. 021412 and ordered the In the course of its investigation, the CSC-CARAGA discovered significant irregularities in respondent's 12 documents. The photographs of "Tristan C. Colanggo" attached respectively to the PBET application form dismissal of charges against respondent. and to the October 25, 1992 picture seat plan did not resemble respondent. Furthermore, the signature found in the PBET application form was markedly different from that affixed on respondent's personal The CSC moved for reconsideration13 but was denied.14 Hence, this petition. data sheet (PDS). It appeared that someone other than respondent filed his PBET application and still another person took the exam on his behalf. Thus, the CSC-CARAGA filed a formal charge for dishonesty 4 The CSC essentially avers that the CA erred in finding that it committed grave abuse of discretion in and conduct prejudicial to the best interest of service against respondent on January 13, 1999. rendering Resolution No. 021412.15 The Uniform Rules on Administrative Cases in the Civil Service16 (Uniform Rules) does not require strict adherence to technical rules of evidence. Thus, it validly On September 27, 2000, respondent filed an answer denying the charges against him and moved for a considered the photocopies of the PBET application form, picture seat plan and PDS in resolving the formal hearing and investigation. The CSC granted the motion and scheduled a hearing on October 31, formal charge against respondent in spite of the fact that they were not duly authenticated. 2000. Respondent failed to appear on the said date but subsequently filed an omnibus motion for the production of original documents relative to the charges against him and the presentation of persons The petition is meritorious. who supervised the October 25, 1992 PBET. His motion was granted and the concerned proctor and examiners were subpoenaed. Administrative rules of procedure are construed liberally to promote their objective and to assist parties in obtaining just, speedy and inexpensive determination of their respective claims and defenses.17 After evaluating the evidence, the CSC found: Section 39 of the Uniform Rules provides:

On the basis of the photographs attached [to] the PBET application form and the picture seat Section 39. The direct evidence for the complainant and the respondent consist of the sworn plan, it is evident that the person who filed the application form for the PBET is not the same statement and documents submitted in support of the complaint or answer as the case may person who actually took the said examination on October 25, 1992. This disparity of physical be, without prejudice to the presentation of additional evidence deemed necessary but was features of the former and latter are evident. The person who filed the PBET has fuller unavailable at the time of the filing of the complaint and the answer upon which the cross- cheekbones and slanted eyes, thinner lips and has a different hairstyle from that of the John examination, by the respondent and the complainant respectively, shall be based. Following Doe who took the said examination. On the other hand, the latter has thinner cheekbones, the cross-examination, there may be re-direct or re-cross examination. elongated chin, full lips with a moustache and round eyes. Also, the signatures appearing of the PBET applicant and that of the PBET examinee are also in different strokes, curves and slants. Either party may avail himself of the services of counsel and may require the attendance of witnesses and the production of documentary evidence in his favor through the compulsory process of subpoena or subpoena duces tecum. Comparing the signatures on the [PBET application form] and [picture seat plan] vis-à-vis those affixed on the PDS of respondent more evidently reveals that the three are different persons. The photographs and signatures appearing on the [PBET application form] and The investigation shall be conducted for the purpose of ascertaining the truth without AUSTRIA-MARTINEZ, J.: necessarily adhering to technical rules applicable in judicial proceedings. It shall be conducted by the disciplining authority concerned or his authorized representatives. Does a finding of lack of administrative liability of a respondent government official bar the filing of a (emphasis supplied) criminal case against him for the same acts?

The provision above clearly states that the CSC, in investigating complaints against civil servants, is not Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to annul the bound by technical rules of procedure and evidence applicable in judicial proceedings. 1 Resolutions of the Sandiganbayan, Second Division (public respondent) dated July 2, 2003 and October 22, 20032 in Criminal Case No. 26546. The Resolution of July 2, 2003 denied the Motion for Re- The CSC correctly appreciated the photocopies of PBET application form, picture seat plan and PDS determination of Probable Cause filed by accused Dominador G. Ferrer (petitioner), while the Resolution (though not duly authenticated) in determining whether there was sufficient evidence to substantiate of October 22, 2003 denied petitioner's Motion for Reconsideration and/or Motion to Quash. the charges against the respondent. Worth noting was that respondent never objected to the veracity of their contents. He merely disputed their admissibility on the ground that they were not authenticated. The following are the factual antecedents:

As a general rule, a finding of guilt in administrative cases, if supported by substantial evidence (or "that 3 On January 29, 2001, an Information for violation of Section 3 (e) of Republic Act (R.A.) No. 3019 was amount of evidence which a reasonable mind might accept as adequate to justify a conclusion"),18 will be filed against petitioner, as follows: sustained by this Court.19

That on or about August 20, 1998 or for sometime prior or subsequent thereto, in Manila, Philippines, The CSC graciously granted respondent's motions to ensure that he was accorded procedural due and within the jurisdiction of this Honorable Court, DOMINADOR C. FERRER, JR., being the Administrator process. Moreover, it exhaustively discussed the differences in appearances of respondent and the of the Intramuros Administration (IA), Manila, while in the performance of his official and administrative persons whose photographs were attached to the PBET application form and the picture seat plan. It functions as such, and acting with manifest partiality, evident bad faith and gross inexcusable negligence, likewise compared the various signatures on the said documents. did then and there, willfully, unlawfully and criminally give unwarranted benefits to Offshore Construction and Development Company, by causing the award of the Lease Contracts to said company, Resolution No. 021412 reveals that the CSC carefully evaluated the allegations against respondent and involving Baluarte de San Andres, Ravellin de Recolletos, and Baluarte de San Francisco de Dilao, thoroughly examined and weighed the evidence submitted for its consideration. The penalty (of Intramuros, Manila, without conducting any public bidding as required under Joint Circular No. 1 dated dismissal) imposed on respondent was therefore fully in accord with law20 and jurisprudence.21 We find September 30, 1989 of the Department of Budget and Management, Department of Environment and no grave abuse of discretion on the part of the CSC. Natural Resources and Department of Public Works and Highways, and by allowing the construction of new structures in said leased areas without any building permit or clearance required under the Intramuros Charter (P.D. 1616) and the National Building Code, to the damage and prejudice of public ACCORDINGLY, the petition is hereby GRANTED. The February 22, 2006 decision and August 17, 2006 interest. resolution of the Court of Appeals in CA-S.P. No. 79047 are REVERSED and SET ASIDE.

CONTRARY TO LAW. Resolution No. 021412 dated October 22, 2002 and the May 19, 2003 resolution of the Civil Service Commission finding respondent Tristan C. Colanggo GUILTY of dishonesty and conduct prejudicial to the best interest of service and dismissing him from the service with forfeiture of leave credits and Manila, Philippines, January 29, 2001.4 retirement benefits and disqualifying him from reemployment in the government service are REINSTATED. SO ORDERED. and assigned to the Sandiganbayan's Second Division.

On April 4, 2001, petitioner filed a Motion for Reinvestigation, alleging that the Office of the Ombudsman disregarded certain factual matters which, if considered, will negate the finding of probable cause.5

G.R. NO. 161067 March 14, 2008 On July 13, 2001, public respondent issued a Resolution denying petitioner's Motion for Reinvestigation.6 It held that petitioner's contentions are all evidentiary in nature and may be properly considered only in DOMINADOR C. FERRER, JR., Petitioner, vs. SANDIGANBAYAN, HON. EDILBERTO G. SANDOVAL, HON. a full-blown trial. FRANCISCO H. VILLARUZ, JR., and HON. RODOLFO G. PALATTAO, as Members of the Sandiganbayan, Second Division, ANNA MARIA L. HARPER, ESPERANZA G. GATBONTON, and PEOPLE OF THE On September 12, 2001, petitioner filed a Motion for Reconsideration.7 Shortly thereafter, he filed a PHILIPPINES, Respondents. Supplemental Motion for Reconsideration, asserting that the complainants were guilty of forum shopping, due to the earlier dismissal of the administrative case against him.8 D E C I S I O N On December 11, 2001, public respondent issued a Resolution denying the Motion for Reconsideration.9 Petitioner filed a Motion for Leave to File a Second Motion for Reconsideration.10 Again, he cited as his SO ORDERED.19 ground the alleged forum shopping of the private complainants. Hence, the present Petition for Certiorari, seeking to annul the Resolutions of the Sandiganbayan for On April 29, 2002, public respondent issued a Resolution denying the Motion for Leave to File a Second having been issued with grave abuse of discretion and in excess of and/or without jurisdiction. Motion for Reconsideration.11 It held that there was no forum shopping since the administrative and criminal cases are two different actions, so neither resolution on the same would have the effect of res Petitioner insists that the Sandiganbayan should have dismissed the criminal case filed against him, since judicata on the other. The public respondent dismissed the second motion for reconsideration as a pro the alleged wrongful acts complained of in the case are the same as those alleged in the administrative forma and prohibited motion. case against him which have been dismissed.

Petitioner then filed a Petition for Certiorari with this Court, docketed as G.R. No. 153592, which assailed Both the public and private prosecutors contend that the issues raised by petitioner have already been the Resolution of public respondent dated April 29, 2002 as having been issued with grave abuse of raised and passed upon; and that the assailed Resolutions of the Sandiganbayan merely reiterate its discretion amounting to lack of jurisdiction. On July 1, 2002, the Court dismissed the petition for having earlier Resolutions denying petitioner's motion for reinvestigation and various motions for been filed out of time and for failure to pay the required docket fees.12

reconsideration questioning the Ombudsman's finding of probable cause.20 They claim that the issue Petitioner filed a Motion for Reconsideration13 which the Court denied with finality in its Resolution 14 became settled and final as early as the December 11, 2001 Resolution of the public respondent, which dated September 4, 2002. 21 denied petitioner's motions for reinvestigation. They further argue that this Court's denial of petitioner's earlier petition for certiorari (G.R. No. 153592) barred petitioner from filing the present On May 19, 2003, before he can be arraigned, petitioner filed yet another motion with public petition. respondent, this time a Motion for Re-determination of Probable Cause,15 invoking the ruling of the Office of the President (OP), dated February 29, 2000,16 which absolved petitioner of administrative The respondents cite jurisprudence, which states that the dismissal of an administrative case does not liability. The OP reviewed the administrative case filed against petitioner with the Presidential 22 necessarily bar the filing of a criminal prosecution for the same or similar acts. Commission Against Graft and Corruption (PCAGC) and held that petitioner acted in good faith and within the scope of his authority. The petition is devoid of merit. On July 2, 2003, the Sandiganbayan issued herein assailed Resolution denying the Motion for Re- 23 determination of Probable Cause, stating as follows: In Paredes, Jr. v. Sandiganbayan, the Court denied a similar petition to dismiss a pending criminal case with the Sandiganbayan on the basis of the dismissal of the administrative case against the accused. The Court ratiocinated, thus: The Court resolves to deny the motion for re-determination of probable cause, the argument advanced therein having been passed upon and resolved by this Court in accused's motion to dismiss as well as motion for reconsideration and where the resolution of this Court was sustained by the Supreme Court.17 Petitioners call attention to the fact that the administrative complaint against petitioner Honrada was dismissed. They invoke our ruling in Maceda v. Vasquez that only this Court has the power to oversee court personnel's compliance with laws and take the appropriate administrative action against them for On August 4, 2003, upon his receipt of the Resolution, petitioner filed a Motion for Reconsideration their failure to do so and that no other branch of the government may exercise this power without and/or to Quash Information,18 arguing that the Supreme Court's dismissal of his petition for certiorari running afoul of the principle of separation of powers. was based on a mere technicality.1avvphi1 He reiterated his argument that since he has been cleared of administrative liability, the criminal case that was pending against him should likewise be dismissed. But one thing is administrative liability. Quite another thing is the criminal liability for the same act. Our determination of the administrative liability for falsification of public documents is in no way The public respondent denied the motion in the other assailed Resolution dated October 22, 2003, conclusive of his lack of criminal liability. As we have held in Tan v. Comelec, the dismissal of an stating as follows: administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts which were the subject of the administrative complaint.24 (Emphasis supplied.) Finding no merit in the accused [sic] Motion for Reconsideration and/or Motion to Quash dated August 4, 2003 and considering the Opposition of the prosecution, the same is DENIED. It is clear from Paredes that the criminal case against petitioner, already filed and pending with the Sandiganbayan, may proceed despite the dismissal of the administrative case arising out of the same Indeed, the dismissal of the administrative complaint does not negate the existing criminal case pending acts. before the Court. Moreover the grounds and arguments raised thereat could be considered matter of defense that is more and properly to be considered during a full blown trial. The same rule applies even to those cases that have yet to be filed in court. In Tan v. Commission on Elections,25 it was held that an investigation by the Ombudsman of the criminal case for falsification and WHEREFORE, the Motion for Reconsideration and/or Motion to Quash by the accused is denied for lack violation of the Anti-Graft and Corrupt Practices Act and an inquiry into the administrative charges by the of merit. Commission on Elections (COMELEC) are entirely independent proceedings, neither of which results in or concludes the other. The established rule is that an absolution from a criminal charge is not a bar to an administrative prosecution, or vice versa.26 The dismissal of an administrative case does not necessarily x x x x bar the filing of a criminal prosecution for the same or similar acts which were the subject of the Sandiganbayan and Ombudsman, as every criminal trial and investigation before these bodies will be administrative complaint.27 made to await the results of pending administrative investigations. Such is not the intent of the framers of the Constitution and the laws governing public officers. The Court finds no cogent reason to depart from these rules. Petitioner cites Larin v. Executive Secretary33 to support his arguments. That case, however, is not on all fours with the present case. Petitioner argues that the criminal case against him requires a higher quantum of proof for conviction -- that is, proof beyond reasonable doubt -- than the administrative case, which needs only substantial evidence. He claims that from this circumstance, it follows that the dismissal of the administrative case In Larin, the accused was first convicted by the Sandiganbayan for violation of the National Internal should carry with it the dismissal of the criminal case. Revenue Code and Section 3 (e) of Republic Act No. 3019. On the basis of this conviction, an administrative case was filed against him. On appeal of the criminal conviction to the Supreme Court, 28 however, he was acquitted upon a finding that the acts he had committed were neither illegal nor This argument, however, has been addressed in jurisprudence. In Valencia v. Sandiganbayan, the irregular. When the accused sought a similar dismissal of the administrative case, the Supreme Court administrative case against the accused was dismissed by the Ombudsman on a finding that the contract 29 sustained him and ruled that since the same acts for which he was administratively charged had been of loan entered into was in pursuance of the police power of the accused as local chief executive, and 30 found neither illegal nor irregular, his acquittal in the criminal case should entail the dismissal of the that the accused had been re-elected to office. The Ombudsman, however, still found probable cause 31 administrative case. to criminally charge the accused in court. When the accused filed a petition with the Supreme Court to dismiss the criminal case before the Sandiganbayan, the Court denied the petition, thus: The present case differs from Larin because here, the administrative case was filed independently of the criminal case. The administrative case was not filed on the basis of a criminal conviction, as in fact, the In the final analysis, the conflicting findings of the Ombudsman boil down to issues of fact which, administrative case was dismissed without regard for the results of the criminal case. This is in contrast however, are not within our province to resolve. As has been oft-repeated, this Court is not a trier of with Larin, where the administrative case was dismissed only after its basis, the criminal conviction, was facts. This is a matter best left to the Sandiganbayan. overturned on appeal.

Petitioners argue that the dismissal by the Ombudsman of the administrative case against them based We cannot reverse Larin by ruling that petitioner's discharge from the administrative action should result on the same subject matter should operate to dismiss the criminal case because the quantum of proof in the dismissal of the criminal case. The argument cannot be sustained without violating settled in criminal cases is proof beyond reasonable doubt, while that principles. The rule is that administrative liability is separate and distinct from penal and civil liabilities.34 In Larin, no less than the Supreme Court acquitted the accused of charges of wrongdoing; in the case at in administrative cases is only substantial evidence. While that may be true, it should likewise be bar, no court of justice has yet declared petitioner not guilty of committing illegal or irregular acts. stressed that the basis of administrative liability differs from criminal liability. The purpose of administrative proceedings is mainly to protect the public service, based on the time-honored The independent nature of a criminal prosecution dictates that the Sandiganbayan must determine principle that a public office is a public trust. On the other hand, the purpose of the criminal petitioner's criminal liability without its hands being tied by what transpired in the administrative case. prosecution is the punishment of crime. The court is duty-bound to exercise its independent judgment.35 It is not ousted of its jurisdiction by the ruling in the administrative proceeding. It is axiomatic that when the court obtains jurisdiction over a Moreover, one of the grounds for the dismissal of the administrative case against petitioners is the fact case, it continues to retain it until the case is terminated.36 that they were re-elected to office. Indeed, a re-elected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is Under the Rules of Court, petitioner's absolution from administrative liability is not even one of the that when the electorate put him back into office, it is presumed that it did so with full knowledge of his grounds for a Motion to Quash.37 life and character, including his past misconduct. If, armed with such knowledge, it still re-elects him, then such re-election is considered a condonation of his past misdeeds. Moreover, petitioner lacked the right to file the instant petition. Petitioner already raised the issue of his discharge from administrative liability in his supplemental motion for reconsideration of the However, the re-election of a public official extinguishes only the administrative, but not the criminal, Sandiganbayan's Resolution dated July 13, 2001.38 When the motion was denied, he again alleged such liability incurred by him during his previous term of office x x x. fact in his motion for leave to file a second motion for reconsideration.39 Both motions have already been denied by the Sandiganbayan in its Resolutions dated December 11, 200140 and April 29, 2002.41 x x x x Petitioner's argument on private respondents' alleged forum shopping was not sustained by the Sandiganbayan, since administrative and criminal cases are two independent actions. It correctly held that neither action barred the filing of the other, and that both cases did not pray for a common relief or There is, thus, no reason for the Sandiganbayan to quash the Information against petitioners on the 42 basis solely of the dismissal of the administrative complaint against them.32 share the same parties.

To sustain petitioner's arguments will be to require the Sandiganbayan and the Ombudsman to merely Thus, the question on the effect of the administrative case on the criminal case before the adopt the results of administrative investigations which would not only diminish the powers and duties Sandiganbayan was settled as early as the Resolution dated December 11, 2001. When petitioner of these constitutional offices, but also violate the independent nature of criminal and administrative questioned this ruling before the Supreme Court in G.R. No. 153592, he again raised the issue of forum- cases against public officials. This will also amount to untold delays in criminal proceedings before the shopping, but his efforts failed because he filed his petition out of time. With the dismissal of G.R. No. The Department of Energy (DOE) is a government agency under the direct control and supervision of the 153592, the Resolution of the Sandiganbayan dated December 11, 2001 has become final. Office of the President. The Department is mandated by Republic Act No. 7638 to prepare, integrate, coordinate, supervise and control all plans, programs, projects and activities of the Government relative 43 to energy exploration, development, utilization, distribution and conservation. Such finality was evident in the public respondent's Resolution dated July 2, 2003, which denied petitioner's Motion for the Re-determination of Probable Cause. In it, the public respondent aptly stated: On 10 October 1984, the Oil Price Stabilization Fund (OPSF) was created under Presidential Decree No. 1956 for the purpose of minimizing frequent price changes brought about by exchange rate adjustments The Court resolves to deny the motion for re-determination of probable cause, the argument advanced and/or increase in world market prices of crude oil and imported petroleum products.5 therein having been passed upon and resolved by this Court in accused's motion to dismiss as well as motion for reconsideration and where the resolution of this Court was sustained by the Supreme Court.44 (Emphasis supplied) Letter of Instruction No. 1431 dated 15 October 1984 was issued directing the utilization of the OPSF to reimburse oil companies the additional costs of importation of crude oil and petroleum products due to fluctuation in foreign exchange rates to assure adequate and continuous supply of petroleum products Thus, the petition now before the Court, which raises the same issues, must necessarily fail. at reasonable prices.6

Petitioner's tactics to delay his arraignment and trial cannot be countenanced. In utter contempt of the Letter of Instruction No. 1441, issued on 20 November 1984, mandated the Board of Energy (now, the Court's efforts to expedite all judicial proceedings, he has filed a petition which merely raises issues that Energy Regulatory Board) to review and reset prices of domestic oil products every two months to reflect have long been resolved with finality. By so doing, petitioner has gone beyond merely exhausting his the prevailing prices of crude oil and petroleum. The prices were regulated by adjusting the OPSF impost, available remedies and trodden in the realm of abusing legal processes. increasing or decreasing this price component as necessary to maintain the balance between revenues and claims on the OPSF.7 WHEREFORE, premises considered, the petition is DENIED. The Sandiganbayan is ordered to proceed with the arraignment and trial of Criminal Case No. 26546. Petitioner and his counsel are ADMONISHED On 27 February 1987, Executive Order No. 137 was enacted to amend P. D. No. 1956. It expanded the not to engage further in delaying tactics. Costs against petitioner. SO ORDERED. sources and utilization of the OPSF in order to maintain stability in the domestic prices of oil products at reasonable levels.8

On 4 December 1991, the Office of Energy Affairs (OEA), now the DOE, informed the respondent that respondent’s contributions to the OPSF for foreign exchange risk charge for the period December 1989 to March 1991 were insufficient. OEA Audit Task Force noted a total underpayment of P14,414,860.75 by respondent to the OPSF. As a consequence of the underpayment, a surcharge of P11,654,782.31 was imposed upon respondent. The said surcharge was imposed pursuant to MOF Circular No. 1-85, as amended by Department of Finance (DOF) Circular No. 2-94,9 which provides that: G.R. No. 173918 April 8, 2008

2. Remittance of payment to the OPSF as provided for under Section 5 of MOF Order No. 11- REPUBLIC OF THE PHILIPPINES, represented by the DEPARTMENT OF ENERGY (DOE), petitioner, vs. 85 shall be made not later than 20th of the month following the month of remittance of the PILIPINAS SHELL PETROLEUM CORPORATION, respondent. foreign exchange payment for the import or the month of payment to the domestic producers in the case of locally produced crude. Payment after the specified date shall be D E C I S I O N subject to a surcharge of fifteen percent (15%) of the amount, if paid within thirty (30) days from the due date plus two percent (2%) per month if paid after thirty days.10 (Emphasis supplied.) CHICO-NAZARIO, J.:

On 9 December 1991, the OEA wrote another letter11 to respondent advising the latter of its additional This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision underpayment to the OPSF of the foreign exchange risk fee in the amount of P10,139,526.56 for the dated 4 August 2006 of the Court of Appeals in C.A. G.R. SP No. 82183.1 The appellate court reversed the 2 period April 1991 to October 1991. In addition, surcharges in the amount of P2,806,656.65 were Decision dated 19 August 2003 of the Office of the President in OP NO. Case 96-H-6574 and declared imposed thereon. that Ministry of Finance (MOF) Circular No. 1-85 dated 15 April 1985, as amended, is ineffective for failure to comply with Section 3 of Chapter 2, Book 7 of the Administrative Code of 1987,3 which requires the publication and filing in the Office of the National Administration Register (ONAR) of administrative In a letter dated 20 January 1992 addressed to the OEA, respondent justified that its calculations for the issuances. Thus, surcharges provided under the aforementioned circular cannot be imposed upon transactions in question were based on a valid interpretation of MOF Order NO. 11-85 dated 12 April 12 respondent Pilipinas Shell Petroleum Corporation. 1985 and MOE Circular No. 85-05-82 dated 16 May 1985.

Respondent is a corporation duly organized existing under the laws of the Philippines. It is engaged in the On 24 March 1992, respondent paid the OEA in full the principal amount of its underpayment, totaling 13 business of refining oil, marketing petroleum, and other related activities.4 P24,554,387.31, but not the surcharges. In a letter14 dated 15 March 1996, OEA notified the respondent that the latter is required to pay the THE SURCHARGE IMPOSED BY MINISTRY OF FINANCE (MOF) CIRCULAR No. 1-85 HAS BEEN OPSF a total amount of P18,535,531.40 for surcharges on the late payment of foreign exchange risk AFFIRMED BY E.O. NO. 137 HAVING RECEIVED VITALITY FROM A LEGISLATIVE ENACTMENT, charges for the period December 1989 to October 1991. MOF CIRCULAR NO. 1-85 CANNOT BE RENDERED INVALID BY THE SUBSEQUENT ENACTMENT OF A LAW REQUIRING REGISTRATION OF THE MOF CIRCULAR WITH THE OFFICE OF THE 15 NATIONAL REGISTER In a letter dated 11 July 1996, the DOE reiterated its demand for respondent to settle the surcharges due. Otherwise, the DOE warned that it would proceed against the respondent’s Irrevocable Standby Letter of Credit to recover its unpaid surcharges. II

On 19 July 1996, respondent filed a Notice of Appeal before the Office of the President. The Office of the ASSUMING THAT THE REGISTRATION OF MOF NO. 1-85 IS REQUIRED, RESPONDENT WAIVED President affirmed the conclusion of the DOE, contained in its letters dated 15 March 1996 and 11 July ITS OBJECTION ON THE BASIS OF NON-REGISTRATION WHEN IT PAID THE AMOUNT REQUIRED 1996. While it admitted that the implementation of MOF Circular No. 1-85 is contingent upon its BY PETITIONER. publication and filing with the ONAR, it noted that respondent failed to adduce evidence of lack of compliance with such requirements. The aforementioned Decision reads:16 This petition is without merit.

Given the foregoing, the DOE’s implementation of MOF Circular 1-85 by imposing surcharges 23 As early as 1986, this Court in Tañada v. Tuvera enunciated that publication is indispensable in order on Pilipinas Shell is only proper. Like this Office, the DOE is bound to presume the validity of that all statutes, including administrative rules that are intended to enforce or implement existing laws, that administrative regulation. attain binding force and effect, to wit:

WHEREFORE, premises considered, the Decision of the Department of Energy, contained in its We hold therefore that all statutes, including those of local application and private laws, shall letters dated 15 March 1996 and 11 July 1996, is hereby AFFIRMED in toto. be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Respondent filed a Motion for Reconsideration of the Decision dated 19 August 2003 of the Office of the President, which was denied on 28 November 2003.17 Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the Respondent filed an appeal before the Court of Appeals wherein it presented Certifications dated 9 legislature or, at present, directly conferred by the Constitution. Administrative rules and February 200418 and 11 February 200419 issued by ONAR stating that DOF Circular No. 2-94 and MOF regulations must also be published if their purpose is to enforce or implement existing law Circular No. 1-85 respectively, have not been filed before said office. pursuant also to a valid delegation. (Emphasis provided.)

The Court of Appeals reversed the Decision of the Office of the President in O.P. CASE No. 96-H-6574 and Thereafter, the Administrative Code of 1987 was enacted, with Section 3 of Chapter 2, Book VII thereof ruled that MOF Circular 1-85, as amended, was ineffective for failure to comply with the requirement to specifically providing that: file with ONAR. It decreed that even if the said circular was issued by then Acting Minister of Finance Alfredo de Roda, Jr. long before the Administrative Code of 1987, Section 3 of Chapter 2, Book 7 thereof Filing. — (1) Every agency shall file with the University of the Philippines Law Center three (3) specifies that rules already in force on the date of the effectivity of the Administrative Code of 1987 must certified copies of every rule adopted by it. Rules in force on the date of effectivity of this be filed within three months from the date of effectivity of said Code, otherwise such rules cannot Code which are not filed within three (3) months from the date shall not thereafter be the thereafter be the basis of any sanction against any party or persons.20 According to the dispositive of the basis of any sanction against any party or persons. appellate court’s Decision:21

(2) The records officer of the agency, or his equivalent functionary, shall carry out the WHEREFORE, the instant petition is hereby GRANTED. The Decision dated August 19, 2003 requirements of this section under pain of disciplinary action. and the Resolution dated November 28, 2003 of the Office of the President, are hereby REVERSED. (3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection. (Emphasis provided.) ACCORDINGLY, the imposition of surcharges upon petitioner is hereby declared without legal basis. Under the doctrine of Tanada v. Tuvera,24 the MOF Circular No. 1-85, as amended, is one of those issuances which should be published before it becomes effective since it is intended to enforce On 25 September 2006, petitioner filed the present Petition for Review on Certiorari, wherein the Presidential Decree No. 1956. The said circular should also comply with the requirement stated under following issues were raised:22 Section 3 of Chapter 2, Book VII of the Administrative Code of 1987 – filing with the ONAR in the University of the Philippines Law Center – for rules that are already in force at the time the I Administrative Code of 1987 became effective. These requirements of publication and filing were put in place as safeguards against abuses on the part of lawmakers and as guarantees to the constitutional right to due process and to information on matters of public concern and, therefore, require strict specious. MOF Circular No. 1-85, as amended imposes surcharges, while respondents’ underpayment is compliance. based on MOF Circular No. 11-85 dated 12 April 1985.

In the present case, the Certifications dated 11 February 200425 and 9 February 200426 issued by ONAR Petitioner also insists that the registration of MOF Circular No. 1-85, as amended, with the ONAR is no prove that MOF Circular No. 1-85 and its amendatory rule, DOF Circular No. 2-94, have not been filed longer necessary since the respondent knew of its existence, despite its non-registration. This argument before said office. Moreover, petitioner was unable to controvert respondent’s allegation that neither of is seriously flawed and contrary to jurisprudence. Strict compliance with the requirements of publication the aforementioned circulars were published in the Official Gazette or in any newspaper of general cannot be annulled by a mere allegation that parties were notified of the existence of the implementing circulation. Thus, failure to comply with the requirements of publication and filing of administrative rules concerned. Hence, also in National Association of Electricity Consumers for Reforms v. Energy issuances renders MOF Circular No. 1-85, as amended, ineffective. Regulatory Board, this Court pronounced:

In National Association of Electricity Consumers for Reforms v. Energy Regulatory Board,27 this Court In this case, the GRAM Implementing Rules must be declared ineffective as the same was emphasized that both the requirements of publication and filing of administrative issuances intended to never published or filed with the National Administrative Register. To show that there was enforce existing laws are mandatory for the effectivity of said issuances. In support of its ruling, it compliance with the publication requirement, respondents MERALCO and the ERC dwell specified several instances wherein this Court declared administrative issuances, which failed to observe lengthily on the fact that parties, particularly the distribution utilities and consumer groups, the proper requirements, to have no force and effect: were duly notified of the public consultation on the ERC’s proposed implementing rules. These parties participated in the said public consultation and even submitted their comments thereon. Nowhere from the above narration does it show that the GRAM Implementing Rules was published in the Official Gazette or in a newspaper of general circulation. Significantly, the effectivity clauses of both the GRAM and ICERA Implementing Rules uniformly provide that However, the fact that the parties participated in the public consultation and submitted they "shall take effect immediately." These clauses made no mention of their publication in their respective comments is not compliance with the fundamental rule that the GRAM either the Official Gazette or in a newspaper of general circulation. Moreover, per the Implementing Rules, or any administrative rules whose purpose is to enforce or implement Certification dated January 11, 2006 of the Office of the National Administrative Register existing law, must be published in the Official Gazette or in a newspaper of general (ONAR), the said implementing rules and regulations were not likewise filed with the said circulation. The requirement of publication of implementing rules of statutes is mandatory office in contravention of the Administrative Code of 1987. and may not be dispensed with altogether even if, as in this case, there was public consultation and submission by the parties of their comments.28 (Emphasis provided.) Applying the doctrine enunciated in Tañada v. Tuvera, the Court has previously declared as having no force and effect the following administrative issuances: (1) Rules and Regulations Petitioner further avers that MOF Circular No. 1-85, as amended, gains its vitality from the subsequent issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation enactment of Executive Order No. 137, which reiterates the power of then Minister of Finance to Committee regarding the accreditation of hospitals, medical clinics and laboratories; (2) promulgate the necessary rules and regulations to implement the executive order. Such contention is Letter of Instruction No. 1416 ordering the suspension of payments due and payable by irrelevant in the present case since the power of the Minister of Finance to promulgate rules and distressed copper mining companies to the national government; (3) Memorandum Circulars regulations is not under dispute. The issue rather in the Petition at bar is the ineffectivity of his issued by the Philippine Overseas Employment Administration regulating the recruitment of administrative issuance for non-compliance with the requisite publication and filing with the ONAR. And domestic helpers to Hong Kong; (4) Administrative Order No. SOCPEC 89-08-01 issued by the while MOF Circular No. 1-85, as amended, may be unimpeachable in substance, the due process Philippine International Trading Corporation regulating applications for importation from the requirements of publication and filing cannot be disregarded. Moreover, none of the provisions of People’s Republic of China; (5) Corporation Compensation Circular No. 10 issued by the Executive Order No. 137 exempts MOF Circular No. 1-85, as amended from the aforementioned Department of Budget and Management discontinuing the payment of other allowances and requirements. fringe benefits to government officials and employees; and (6) POEA Memorandum Circular No. 2 Series of 1983 which provided for the schedule of placement and documentation fees IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision dated 4 August for private employment agencies or authority holders. 2006 of the Court of Appeals in C.A. G.R. SP No. 82183 is AFFIRMED. No cost. SO ORDERED.

In all these cited cases, the administrative issuances questioned therein were uniformly struck

down as they were not published or filed with the National Administrative Register. On the other hand, in Republic v. Express Telecommunications Co., Inc, the Court declared that the 1993 Revised Rules of the National Telecommunications Commission had not become effective despite the fact that it was filed with the National Administrative Register because the same had not been published at the time. The Court emphasized therein that "publication G.R. No. 165416 January 22, 2008 in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect." OFFICE OF THE OMBUDSMAN, petitioner, vs. FLORITA A. MASING and JOCELYN A. TAYACTAC, respondents. Petitioner’s argument that respondent waived the requisite registration of MOF Circular No. 1-85, as amended, when it paid in full the principal amount of underpayment totaling P24,544,387.31, is x ------x G.R. No. 165584 January 22, 2008 WHEREFORE, PREMISES CONSIDERED, this Office finds substantial evidence that:

OFFICE OF THE OMBUDSMAN, petitioner, vs. FLORITA A. MASING, respondent. 1. Respondent Florita Masing is guilty of gross misconduct, neglect of duty and violation of Section 4, paragraphs (a), (b), and (c) of RA 6713 in relation to the collection of unauthorized fees, non-remittance of authorized fees and failure to account for public funds; and of x ------x misconduct in relation to the complaint of Felicidad Mojica, and she is hereby DISMISSED FROM [THE] SERVICE with all the accessory penalties including forfeiture of retirement G.R. No. 165731 January 22, 2008 benefits and disqualification from holding public office; and

PAUL L. CANSINO, FELICIDAD MOJICA, VENERANDO MOJICA and RICARTE L. MAMPARO, petitioners, 2. Respondent Jocelyn Tayactac is guilty of simple neglect of duty, and is hereby suspended vs. FLORITA A. MASING and JOCELYN A. TAYACTAC, respondents. for a period of six (6) months. A repetition of the same offense will be met with stiffer penalty. x x x x1 D E C I S I O N Respondents filed a motion for reconsideration which the Ombudsman denied in an Order dated PUNO, C.J.: September 26, 2000. Respondents sought recourse to the Court of Appeals via a petition for review under Rule 43 of the Rules of Court, docketed as CA-G.R. SP No. 61993. On February 27, 2004, the Court of Appeals granted the petition, viz: These cases involve the issue of whether the Ombudsman may directly discipline public school teachers and employees, or merely recommend appropriate disciplinary action to the Department of Education, Culture and Sports (DECS). WHEREFORE, the joint decision of June 30, 2000 and the Order of September 26, 2000 are REVERSED and SET ASIDE; and Administrative Cases Nos. OMB-MIN-ADM-97-193, OMB-MIN-ADM-97-249, OMB- MIN-ADM-97-253, and OMB-MIN-ADM-97-254 of the Office of the Ombudsman-Mindanao are hereby In G.R. Nos. 165416 and 165731, respondent Florita A. Masing was the former Principal of the Davao DISMISSED. City Integrated Special School (DCISS) in Bangkal, Davao City. Respondent Jocelyn A. Tayactac was an office clerk in the same school. In 1997, respondents were administratively charged before the Office of The IMMEDIATE REINSTATEMENT of the petitioners with full backwages and other benefits is further the Ombudsman for Mindanao for allegedly collecting unauthorized fees, failing to remit authorized 2 fees, and to account for public funds. The cases were docketed as follows: ORDERED in the interest of justice.

On April 13, 2004, the Office of the Ombudsman, which was not impleaded as respondent in the cases, 1. OMB-MIN-ADM-97-193 for grave misconduct and neglect of duty, against respondent 3 Masing only; filed an Omnibus Motion to Intervene and for Reconsideration. The Court of Appeals denied the omnibus motion on the grounds that (1) intervention is not proper because it is sought by the quasi- judicial body whose judgment is on appeal, and (2) intervention, even if permissible, is belated under 2. OMB-MIN-ADM-97-249 for violation of Republic Act No. 6713, against respondent Masing Section 2, Rule 19 of the Rules of Court.4 Hence, the petition before us by the Office of the Ombudsman, and a schoolteacher; docketed as G.R. No. 165416.

3. OMB-MIN-ADM-97-253 for violation of Republic Act No. 6713, against respondents Masing The complainant-parents filed their own petition for review of the Court of Appeals’ decision dated and Tayactac, and several schoolteachers; February 27, 2004, docketed as G.R. No. 165731.

4. OMB-MIN-ADM-97-254 for violation of Republic Act No. 6713, against respondent Masing In G.R. No. 165584, respondent Florita A. Masing faced yet another administrative case before the Office and several schoolteachers. of the Ombudsman-Mindanao filed by Erlinda P. Tan.5 The charges were oppression, serious misconduct, discourtesy in the conduct of official duties, and physical or mental incapacity or disability due to The complainants were parents of children studying at the DCISS, among whom were the petitioners in immoral or vicious habits. G.R. No. 165731, namely, Paul L. Cansino, Felicidad Mojica, Venerando Mojica, and Ricarte L. Mamparo. As in the other administrative cases, respondent Masing filed a motion to dismiss on the ground that the On July 2, 1998, respondents filed a motion to dismiss on the ground that the Ombudsman has no Office of the Ombudsman has no jurisdiction over the case. The motion was denied, as well as jurisdiction over them. Respondents alleged that the DECS has jurisdiction over them which shall respondent’s motion for reconsideration. exercise the same through a committee to be constituted under Section 9 of Republic Act (R.A.) No. 4670, otherwise known as the "The Magna Carta for Public School Teachers." The motion was denied, as On December 27, 1999, the Ombudsman for Mindanao found respondent Masing guilty as charged and well as respondents’ motion for reconsideration. ordered her suspension for six (6) months without pay. The DECS Regional Director, Regional Office No. XI, was ordered to implement the decision upon its finality. On June 30, 2000, the Ombudsman for Mindanao rendered a joint decision finding respondents Masing and Tayactac guilty, the dispositive portion of which reads: Respondent Masing filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No. BEEN AFFIRMED IN LEDESMA VS. COURT OF APPEALS, G.R. NO. 161629, 29 JULY 58735. On July 31, 2003, the Court of Appeals set aside the assailed Ombudsman decision, viz: 2005.9

WHEREFORE, finding merit in the herein petition, the same is hereby given due course and the decision (F) THE OFFICE OF THE OMBUDSMAN HAS CONCURRENT INVESTIGATIVE AND of the agency a quo in Case No. OMB-MIN-ADM-97-282 is hereby SET ASIDE, and petitioner is further DISCIPLINARY AUTHORITY WITH THE DECS OVER PUBLIC SCHOOL TEACHERS, declared as entitled to her salary which she failed to receive during the period of her flawed suspension.6 INCLUDING HEREIN PRIVATE RESPONDENT MASING, AS THERE IS SIMPLY NO REPUGNANCE BETWEEN THE LAWS CONFERRING INVESTIGATIVE AND DISCIPLINARY JURISDICTION ON THE OFFICE OF THE OMBUDSMAN (ART. XI, 1987 The Office of the Ombudsman filed an Omnibus Motion to Intervene and for Reconsideration which the 7 CONSTITUTION AND R.A. 6770) AND THE LAWS CONFERRING THE SAME Court of Appeals denied in its Resolution dated September 30, 2004. Hence, this petition by the Office INVESTIGATIVE AND DISCIPLINARY JURISDICTION TO DECS (R.A. 4670 [MAGNA of the Ombudsman, docketed as G.R. No. 165584. CARTA FOR PUBLIC SCHOOL TEACHERS] AND P.D. 807, NOW BOOK V OF E.O. 292 [CIVIL SERVICE LAW]).10 We consolidated G.R. Nos. 165416 and 165584 in our Resolution dated November 9, 2005. G.R. No. 165731 was consolidated per Resolution dated June 21, 2006. II.

The Office of the Ombudsman contends8— CONTRARY TO THE APPELLATE COURT A QUO’S RULING, THE PETITIONER OFFICE OF THE OMBUDSMAN TIMELY AND RIGHTFULLY FILED ITS OMNIBUS MOTION TO INTERVENE AND I. FOR RECONSIDERATION ON A PATENTLY ERRONEOUS DECISION OF THE COURT OF APPEALS WHICH HAS NOT YET ATTAINED FINALITY.11 THE x x x COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AND IGNORED THE CLEAR LANGUAGE OF THE CONSTITUTION, LAW AND JURISPRUDENCE WHEN IT RULED THAT The petitioners in G.R. No. 165731 contend— PETITIONER OFFICE OF THE OMBUDSMAN HAS NO AUTHORITY TO DISCIPLINE ERRING MEMBERS OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS), THIS I. CONSIDERING THAT:

TAPIADOR V. OFFICE OF THE OMBUDSMAN (379 SCRA 322) CITED BY THE COURT OF APPEALS (A) THE TAPIADOR [TAPIADOR VS. OFFICE OF THE OMBUDSMAN, 379 SCRA 322 IS NOT APPLICABLE, AS THE TAPIADOR OBITER DICTUM CAN NEVER BE CITED AS A VALID (2002)] CASE CITED BY THE APPELLATE COURT A QUO IS NOT APPLICABLE, AS THE RATIO DECIDENDI. MOREOVER, THE TAPIADOR RULING HAS EFFECTIVELY BEEN ABANDONED TAPIADOR OBITER DICTUM CAN NEVER BE CITED AS A VALID RATIO DECIDENDI; BY THE HONORABLE SUPREME COURT WHEN IT UPHELD THE DISCIPLINARY AUTHORITY OF THE OMBUDSMAN IN SUBSEQUENT CASES EVEN AS TAPIADOR FAILED TO TAKE INTO (B) THE FABELLA [FABELLA VS. COURT OF APPEALS, 282 SCRA 256 (1997)] CASE, ACCOUNT THE PROPER CONSTITUTIONAL AND STATUTORY BASES OF THE OMBUDSMAN’S WHICH INVOLVED AN ILLEGAL CONSTITUTION OF AN INVESTIGATING COMMITTEE DISCIPLINARY POWER OVER ALL APPOINTIVE AND ELECTIVE PUBLIC OFFICIALS AND IN THE DECS, IS NOT APPLICABLE TO THE DISCIPLINARY CASE AGAINST PRIVATE EMPLOYEES. RESPONDENTS PUBLIC SCHOOL PRINCIPAL AND OFFICE CLERK OF THE DECS; II. (C) SECTION 9 OF REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS) HAS NOT ADDED PUBLIC SCHOOL PRINCIPALS, TEACHERS AND TO INSIST THAT PUBLIC SCHOOL TEACHERS PURSUANT TO THE RULING IN FABELLA V. COURT EMPLOYEES, LIKE HEREIN PRIVATE RESPONDENTS, TO THE LIST OF SPECIAL OF APPEALS (G.R. NO. 110379, 28 NOVEMBER 1997) CAN ONLY BE PROCEEDED AGAINST PRIVILEGED CLASSES OF PUBLIC SERVANTS EXEMPTED FROM THE OMBUDSMAN’S ADMINISTRATIVELY THROUGH THE "COMMITTEE" UNDER SECTION 9 OF R.A. NO. 4670 ADMINISTRATIVE DISCIPLINARY AUTHORITY UNDER THE SUBSEQUENT 1987 WOULD BE AN UNDUE, UNWARRANTED AND INVALID "CLASSIFICATION" BY JUDICIAL FIAT OF CONSTITUTION, AND ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF A CERTAIN GROUP OF PUBLIC SERVANTS WHICH IS VIOLATIVE OF THE EQUAL PROTECTION UNCONSTITUTIONALITY; CLAUSE OF THE CONSTITUTION. MOREOVER, THE SAID LAW DOES NOT CONFER JURISDICTION ON THE "COMMITTEE." (D) THE CONCEDED ADMINISTRATIVE DISCIPLINARY JURISDICTION OF THE PETITIONER OMBUDSMAN OVER PRIVATE RESPONDENTS, A PUBLIC SCHOOL III. PRINCIPAL AND AN OFFICE CLERK OF THE DECS, WHICH IS FULLY SUPPORTED BY THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6770 (THE OMBUDSMAN ACT OF 1989) AND EXISTING JURISPRUDENCE, CANNOT BE SUPPLANTED BY SECTION 9 OF SECTION 9 OF REPUBLIC ACT NO. 4670 HAS NOT ADDED PUBLIC SCHOOL TEACHERS TO THE REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS); AND LIST OF SPECIAL PRIVILEGED CLASSES OF PUBLIC SERVANTS EXEMPTED FROM THE OMBUDSMAN’S ADMINISTRATIVE DISCIPLINARY AUTHORITY UNDER THE 1987 CONSTITUTION, AND ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF (E) THE POWER OF THE OMBUDSMAN TO DISCIPLINE PUBLIC SERVANTS NOT UNCONSTITUTIONALITY. EXEMPTED FROM ITS JURISDICTION AND TO IMPLEMENT ITS JUDGMENTS HAS IV. However, rather than remand the cases at bar to the Court of Appeals for a ruling on the merits of the Ombudsman’s motions for reconsideration, we shall resolve the legal issues involved in the interest of speedy justice. THE CONCEDED ADMINISTRATIVE DISCIPLINARY JURISDICTION OF THE OMBUDSMAN OVER THE HEREIN RESPONDENTS, WHICH IS FULLY SUPPORTED BY THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6770 AND EXISTING JURISPRUDENCE CANNOT BE SUPPLANTED BY The authority of the Ombudsman to act on complaints filed against public officers and employees is SECTION 9 OF REPUBLIC ACT NO. 4670. explicit in Article XI, Section 12 of the 1987 Constitution, viz:

In sum, the pivotal issues are (1) whether the Office of the Ombudsman may intervene and seek The Ombudsman and his Deputies, as protectors of the people, shall act promptly on reconsideration of the adverse decisions rendered by the Court of Appeals, and (2) whether the Office of complaints filed in any form or manner against public officials or employees of the the Ombudsman may directly discipline public school teachers and employees. Government, or any subdivision, agency or instrumentality thereof, including government- owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. (emphasis ours) First, the procedural issue. The Office of the Ombudsman was not allowed by the Court of Appeals to intervene because (1) the motions to intervene were filed after the decisions have already been rendered in CA-G.R. SP Nos. 58735 and 61993, and (2) the Office of the Ombudsman was the quasi- Article XI, Section 13 of the same Constitution delineates the powers, functions and duties of the judicial body which rendered the impugned decisions. Ombudsman as follows:

Section 2, Rule 19 of the Rules of Court provides that a motion for intervention may be filed before (1) Investigate on its own, or on complaint by any person, any act or omission of any public rendition of judgment, viz: official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. SECTION 2. Time to intervene.– The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be (2) Direct, upon complaint or at its own instance, any public official or employee of the attached to the motion and served on the original parties. (emphasis ours) Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in We have ruled however that allowance or disallowance of a motion for intervention rests on the sound 12 13 the performance of duties. discretion of the court after consideration of the appropriate circumstances. Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely available for justice.14 Its purpose is not to hinder or delay but to facilitate and promote the (3) Direct the officer concerned to take appropriate action against a public official or administration of justice.15 Thus, interventions have been allowed even beyond the prescribed period in employee at fault, and recommend his removal, suspension, demotion, fine, censure, or the Rule in the higher interest of justice. Interventions have been granted to afford indispensable parties, prosecution, and ensure compliance therewith. who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court,16 when the petition for review of the judgment was already submitted for decision before the (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as Supreme Court,17 and even where the assailed order has already become final and executory.18 In Lim v. may be provided by law, to furnish it with copies of documents relating to contracts and Pacquing,19 the motion for intervention filed by the Republic of the Philippines was allowed by this Court transactions entered into by his office involving the disbursement or use of public funds or to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the properties, to the Commission on Audit for appropriate and report any irregularity action. parties.

(5) Request any government agency for assistance and information necessary in the discharge In the cases at bar, the rulings of the Court of Appeals adversely affected the all-important jurisdiction of of its responsibilities, and to examine, if necessary, pertinent records and documents. the Office of the Ombudsman. The rulings aggrieved the Office of the Ombudsman for they have serious consequences on its effectiveness as the body charged by the Constitution with the prosecution of officials and employees of the government suspected of violating our laws on graft and corruption. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. In Civil Service Commission v. Dacoycoy,20 we recognized the standing of the Civil Service Commission (CSC) to appeal a decision of the Court of Appeals which reversed its decision finding Dacoycoy guilty of (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in nepotism and ordering his dismissal from the service. Although the CSC was the quasi-judicial body the Government and make recommendations for their elimination and the observance of which rendered the decision appealed to the Court of Appeals, it became the party aggrieved or high standards of ethics and efficiency. adversely affected by its decision which "seriously prejudices the civil service system."21 In Constantino- 22 David v. Pangandaman-Gania, we likewise ruled that the CSC may seek a review of decisions of the (8) Promulgate its rules and procedure and exercise such other powers or perform such Court of Appeals that are detrimental to its constitutional mandate as the central personnel agency of functions or duties as may be provided by law. the government.23 The enumeration of these powers is non-exclusive.24 Congress enacted R.A. No. 6770,25 otherwise known (9) Punish for contempt in accordance with the Rules of Court and under the same procedure as The Ombudsman Act of 1989, on November 17, 1989 giving the Office such other powers that it may and with the same penalties provided therein; need to efficiently perform the task given by the Constitution,26 viz: (10) Delegate to the Deputies, or its investigators or representatives such authority or duty as Section 15. Powers, Functions and Duties.- The Office of the Ombudsman shall have the shall ensure the effective exercise or performance of the powers, functions, and duties herein following powers, functions and duties: or hereinafter provided;

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission (11) Investigate and initiate the proper action for the recovery of ill-gotten and/or of any public officer or employee, office or agency, when such act or omission appears to be unexplained wealth amassed after February 25, 1986 and the prosecution of the parties illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the involved therein. x x x x27 Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of the Government, the investigation of such cases; In fine, the manifest intent of the lawmakers was to bestow on the Office of the Ombudsman full administrative disciplinary authority in accord with the constitutional deliberations.28 Unlike the (2) Direct, upon complaint or at its own instance, any officer or employee of the Government, Ombudsman-like agencies of the past the powers of which extend to no more than making findings of or of any subdivision, agency or instrumentality thereof, as well as any government-owned or fact and recommendations, and the Ombudsman or Tanodbayan under the 1973 Constitution who may controlled corporations with original charter, to perform and expedite any act or duty file and prosecute criminal, civil or administrative cases against public officials and employees only in required by law, or to stop, prevent, and correct any abuse or impropriety in the performance cases of failure of justice, the Ombudsman under the 1987 Constitution and R.A. No. 6770 is intended to of duties; play a more active role in the enforcement of laws on anti-graft and corrupt practices and other offenses committed by public officers and employees.29 The Ombudsman is to be an "activist watchman," not merely a passive one.30 He is vested with broad powers to enable him to implement his own actions.31 (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure Respondents, however, insist that the findings of the Ombudsman are mere recommendations, and that compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this he may not directly impose administrative sanctions on public officials and employees, citing Tapiador v. Act; Provided, That the refusal by any officer without just cause to comply with an order of Office of the Ombudsman32 where the following statement is found, viz: the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by x x x x Besides, assuming arguendo, that petitioner was administratively liable, the law shall be a ground for disciplinary action against said officer; Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it XI of the 1987 Constitution, the Ombudsman can only "recommend" the removal of the may provide in its rules of procedure, to furnish it with copies of documents relating to public official or employee found to be at fault, to the public official concerned. contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate 33 The foregoing is now a settled issue. In Ledesma v. Court of Appeals, we explained Tapiador and ruled action; categorically that:

(5) Request any government agency for assistance and information necessary in the discharge x x x x Under Section 13(3) of Article XI of the 1987 Constitution, it is provided: of its responsibilities, and to examine, if necessary, pertinent records and documents;

Section 13. The Office of the Ombudsman shall have the following powers, (6) Publicize matters covered by is investigation of the matters mentioned in paragraphs (1), functions, and duties: (2), (3) and (4) hereof, when circumstances so warrant and with due prudence: Provided, That the Ombudsman under its rules and regulations may determine what cases may not be made public: Provided, further, That any publicity issued by the Ombudsman shall be balanced, fair . . . and true; (3) Direct the officer concerned to take appropriate action against a public official (7) Determine the causes of inefficiency, red tape, mismanagement, fraud and corruption in or employee at fault, and recommend his removal, suspension, demotion, fine, the Government, and make recommendations for their elimination and the observance of censure, or prosecution, and ensure compliance therewith. (Emphasis supplied) high standards of ethics and efficiency; Petitioner insists that the word "recommend" be given its literal meaning; that is, that the (8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any Ombudsman’s action is only advisory in nature rather than one having any binding effect, investigation or inquiry, including the power to examine and have access to bank accounts citing Tapiador v. Office of the Ombudsman, thus: and records; . . . Besides, assuming arguendo, that petitioner were administratively liable, the In Fabella, several public schoolteachers were administratively charged by then DECS Secretary Isidro Ombudsman has no authority to directly dismiss the petitioner from the Cariño for taking part in mass actions in violation of civil service laws and regulations. A committee was government service, more particularly from his position in the BID. Under Section constituted to hear the charges. The teachers assailed the procedure adopted by the committee in a 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can petition for certiorari filed before the Regional Trial Court of Quezon City. In affirming the regional trial only "recommend" the removal of the public official or employee found to be at court’s decision which declared illegal the constitution of the committee, we ruled— fault, to the public official concerned. x x x x Section 9 of RA 4670 x x x reflects the legislative intent to impose a standard and a For their part, the Solicitor General and the Office of the Ombudsman argue that the word separate set of procedural requirements in connection with administrative proceedings "recommend" must be taken in conjunction with the phrase "and ensure compliance involving public schoolteachers. x x x [R]ight to due process of law requires compliance with therewith." The proper interpretation of the Court’s statement in Tapiador should be that these requirements laid down by RA 4670.39 the Ombudsman has the authority to determine the administrative liability of a public official or employee at fault, and direct and compel the head of the office or agency Fabella, however, does not apply to the cases at bar. The public schoolteachers in Fabella were charged concerned to implement the penalty imposed. In other words, it merely concerns the with violations of civil service laws, rules and regulations in administrative proceedings initiated by the procedural aspect of the Ombudsman’s functions and not its jurisdiction. DECS Secretary. In contrast, herein respondents Masing and Tayactac were administratively charged in letter-complaints duly filed before the Office of the Ombudsman for Mindanao. The charges were for We agree with the ratiocination of public respondents. Several reasons militate against a violations of R.A. No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public literal interpretation of the subject Constitutional provision. Firstly, a cursory reading of Officials and Employees, collecting unauthorized fees, failure to remit authorized fees, failure to account Tapiador reveals that the main point of the case was the failure of the complainant therein to for public funds, oppression, serious misconduct, discourtesy in the conduct of official duties, and present substantial evidence to prove the charges of the administrative case. The statement physical or mental incapacity or disability due to immoral or vicious habits. In short, the acts and that made reference to the power of the Ombudsman is, at best, merely an obiter dictum omissions complained of relate to respondents’ conduct as public official and employee, if not to and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations outright graft and corruption. x x x x [h]ence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination. (emphases ours) 40 The authority of the Office of the Ombudsman to conduct administrative investigations is beyond cavil. As the principal and primary complaints and action center41 against erring public officers and We reiterated this ruling in Office of the Ombudsman v. Laja,34 where we emphasized that "the employees, it is mandated by no less than Section 13(1), Article XI of the Constitution.42 In conjunction Ombudsman’s order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is therewith, Section 19 of R.A. No. 6770 grants to the Ombudsman the authority to act on all not merely advisory or recommendatory but is actually mandatory."35 Implementation of the order administrative complaints,43 viz: imposing the penalty is, however, to be coursed through the proper officer.36 Recently, in Office of the Ombudsman v. Court of Appeals,37 we also held— Sec. 19. Administrative complaints.— The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which: While Section 15(3) of RA 6770 states that the Ombudsman has the power to "recommend x x x removal, suspension, demotion x x x" of government officials and employees, the same (1) Are contrary to law or regulation; Section 15(3) also states that the Ombudsman in the alternative may "enforce its disciplinary authority as provided in Section 21" of RA 6770. (emphasis supplied) (2) Are unreasonable, unfair, oppressive or discriminatory; Finally, respondent Masing contends that she may be administratively dealt with only by following the procedure prescribed in Section 9 of R.A. No. 4670 or the The Magna Carta for Public School Teachers. (3) Are inconsistent with the general course of an agency’s functions, though in accordance She cites Fabella v. Court of Appeals.38 with law;

Section 9, R.A. No. 4670 provides— (4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

Section 9. Administrative Charges.- Administrative charges against a teacher shall be heard (5) Are in the exercise of discretionary powers but for an improper purpose; or initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who should at least have the rank of a division (6) Are otherwise irregular, immoral or devoid of justification. supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers’ organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The Committee shall Section 23(1) of the same law provides that administrative investigations conducted by the Office of the submit its findings, and recommendations to the Director of Public Schools within thirty days Ombudsman shall be in accordance with its rules of procedure and consistent with due process. 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 It is erroneous, therefore, for respondents to contend that R.A. No. 4670 confers an exclusive disciplinary shall be appointed by the Secretary of Education. authority on the DECS over public school teachers and prescribes an exclusive procedure in administrative investigations involving them.44 R.A. No. 4670 was approved on June 18, 1966. On the other hand, the 1987 Constitution was ratified by the people in a plebiscite in 1987 while R.A. No. 6770 intervene under the law in his capacity as Project Manager/Consultant of said construction — was enacted on November 17, 1989. It is basic that the 1987 Constitution should not be restricted in its said offense having been committed in relation to the performance of his official duties. meaning by a law of earlier enactment. The 1987 Constitution and R.A. No. 6770 were quite explicit in conferring authority on the Ombudsman to act on complaints against all public officials and employees, 1 CONTRARY TO LAW. with the exception of officials who may be removed only by impeachment or over members of Congress and the Judiciary.45 If an issue should ever arise, therefore, it should rather be whether the 1987 Constitution and R.A. No. 6770 have abrogated R.A. No. 4670. However, repeals by implication are not On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges against him. favored, and courts have the duty to harmonize, so far as it is practicable, apparently conflicting or inconsistent provisions. Therefore, the statement in Fabella that Section 9 of R.A. No. 4670 "reflects the On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan rendered judgment legislative intent to impose a standard and a separate set of procedural requirements in connection with finding petitioner guilty beyond reasonable doubt. The dispositive portion reads as follows: administrative proceedings involving public schoolteachers" should be construed as referring only to the specific procedure to be followed in administrative investigations conducted by the DECS. WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y Jambalos GUILTY beyond reasonable doubt of the violation of Section 3, paragraph (b) of Republic Act No. IN VIEW WHEREOF, the petitions are GRANTED. The assailed Decisions of the Court of Appeals dated 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and he is February 27, 2004 and July 31, 2003, as well as its Resolutions dated September 27, 2004 and September hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE (1) 30, 2004, in CA-G.R. SP No. 61993 and CA-G.R. SP No. 58735, respectively, are REVERSED and SET ASIDE. MONTH, as the minimum, to TEN (10) YEARS and ONE (1) DAY, as the maximum, perpetual The Joint Decision dated June 30, 2000 of the Office of the Ombudsman for Mindanao in Administrative disqualification from public office and to pay the costs of this action. Case Nos. OMB-MIN-ADM-97-193, OMB-MIN-ADM-97-249, OMB-MIN-ADM-97-253 and OMB-MIN-ADM-

97-254 and its Decision dated December 27, 1999 in OMB-MIN-ADM-97-282, as well as its orders 2 denying reconsideration, are REINSTATED. SO ORDERED.

SO ORDERED. The antecedent facts are largely undisputed.

On 1 October 1989, the Chemical Mineral Division of the Industrial Technology Development Institute (ITDI), a component of the Department of Science and Technology (DOST) employed Petitioner under a written contract of services as Project Manager to supervise the construction of the ITDI-CMD (JICA)

Building at the DOST Compound in Bicutan, Taguig, Metro Manila. 3

G.R. No. 111091 August 21, 1995 The contract was to remain in effect from October 1, 1989 up to the end of the construction period unless sooner terminated. 4 Petitioner was to be paid a monthly salary drawn from counter-part funds ENGINEER CLARO J. PRECLARO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, duly financed by foreign-assisted projects and government funds duly released by the Department of respondents. Budget and Management. 5

KAPUNAN, J.: In November 1989, to build the aforementioned CMD Structure, DOST contracted the services of the Jaime Sta. Maria Construction Company with Engr. Alexander Resoso, as the company's project engineer. 6 On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The information against him read as follows: How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act is narrated in the Comment of the Solicitor General and amply supported by the records. The material portions are hereunder reproduced: That on or about June 8, 1990, or sometime prior thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Project Manager/ Consultant of the Chemical Mineral Division, Industrial xxx xxx xxx Technology Development Institute, Department of Science and Technology, a component of the Industrial Development Institute (ITDI for brevity) which is an agency of the Department 3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta. Maria of Science and Technology (DOST for brevity), wherein the Jaime Sta. Maria Construction Construction Company, was in the process of evaluating a Change Order for some electricals undertook the construction of the building in Bicutan, Taguig, Metro Manila, with a total cost in the building construction when petitioner approached him at the project site (p. 11, 25, of SEVENTEEN MILLION SIX HUNDRED NINETY FIVE THOUSAND PESOS (P17,695,000.00) Ibid.). jointly funded by the Philippine and Japanese Governments, and while the said construction has not yet been finally completed, accused either directly requested and/or demanded for himself or for another, the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00), claimed 4. Unexpectedly, petitioner made some overtures that expenses in the Change Order will be as part of the expected profit of FOUR HUNDRED SIXTY THOUSAND PESOS (P460,000.00) in deductive (meaning, charged to the contractor by deducting from the contract price), instead connection with the construction of that government building wherein the accused had to of additive (meaning, charged to the owner). Petitioner intimated that he can forget about the deductive provided he gets P200,000.00, a chunk of the contractor's profit which he a. He told us that it is harder to produce small roughly estimated to be around P460,000.00 (pp. 12-13, 22, Ibid.). items than big ones.

5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta. Maria q. How long did you converse with Engr. Claro Construction Company, Resoso thereafter asked petitioner if he wanted a rendezvous for him Preclaro? to receive the money. Petitioner chose Wendy's Restaurant, corner E. Delos Santos Avenue and Camias Street, on June 6, 1990 at around 8:00 o'clock in the evening (p. 14, Ibid.). a. I think thirty minutes or so.

6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8th of June, perceiving q. Was Preclaro alone when he came? financial constraints (Ibid.).

a. Yes, Your Honor. 7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry." (p. 15, Ibid.) Petitioner was thereafter asked to bring along the result of the punch list (meaning, the list of defective or correctible works to be done by the contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct. xxx xxx xxx 1991). PROS. CAOILI: 8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the National Bureau of Investigation (NBI) to report the incident (p. 15, 35, Ibid.). q. When you talk[ed] about his punch list, did you talk about anything else? 9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified his conformity (p. 16, TSN, 12 Oct. 1990). Accordingly, Sta. Maria, Sr. was requested to produce the amount of a. Engineer Sta. Maria, Jr., they were conversing P50,000.00 in P500.00 denomination to represent the grease money (p. 37, TSN, 6 Sept. with Dave Preclaro and he told [him], "O, paano 1990). na."

10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI. Thereafter, the JUSTICE ESCAREAL: money was dusted with flourescent powder and placed inside an attache case (pp. 16-17, Ibid.). Resoso got the attache case and was instructed not to open it. Similarly, he was advised to proceed at the Wendy's Restaurant earlier than the designated time where a group of NBI q. Who said "Paano na?" men awaited him and his companion, Sta. Maria, Jr. (pp. 17-18, Ibid.). a. Engineer Sta. Maria, [Jr.]. And then Preclaro 11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant in Timog, Quezon City, told [him], "Paano, How will the money be to fetch Sta. Maria, Jr. (Ibid.). arranged and can I bring it?" he said.

12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy's Restaurant. They And then Jimmy Sta. Maria, Jr. told him it was were led by the NBI men to a table previously reserved by them which was similarly adjacent arranged on two bundles on two envelopes. to a table occupied by them (pp. 18-19, Ibid.). And then Dave Preclaro told, "Puede" and he 13. Twenty minutes later, petitioner arrived. Supposedly, the following conversation took asked Jimmy Sta. Maria, Jr. if there is express place, to wit: teller and could he deposit during night time but Engineer Sta. Maria, Jr. told him, "I do not have any knowledge or I do not have any express teller JUSTICE BALAJADIA: you can deposit. I only know credit card."

q. When Dave Preclaro arrived, what did he do? PROS. CAOILI:

a. We asked him his order and we talked about q. When Engr. Sta. Maria intervened and the punch list. interviewed him that way, was there anything that happened? q. What was his comment about the punch list? a. Jimmy Sta. Maria, Jr. handed two envelopes to We are not convinced by petitioner's arguments. Preclaro. Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b) q. Did Claro Preclaro receive these two envelopes thereof "includes elective and appointive officials and employees, permanent or temporary, whether in from Engineer Sta. Maria? the classified or unclassified or exemption service receiving compensation, even nominal, from the government. . . ." a. Yes, sir. (pp. 19-21, Ibid., See also pp. 13-14, TSN, 29 Oct. 1990.) The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have been reclassified into Career Service and Non-Career Service 11 by PD 807 14. From the moment petitioner received the two envelopes with his right hand, thereafter providing for the organization of the Civil Service Commission 12 and by the Administrative Code of 1987. placing them under his left armpit, he was accosted by the NBI men (p. 22, TSN, 12 Oct. 13 1990).

Non-career service in particular is characterized by — 15. A camera flashed to record the event. Petitioner instinctively docked to avoid the taking of pictures. In such manner, the two envelopes fell (p. 23, Ibid.). (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is 16. The NBI men directed petitioner to pick up the two envelopes. Petitioner refused. Hence, coterminous with that of the appointing authority or subject to his pleasure, or which is one of the NBI men picked up the envelopes and placed them inside a big brown envelope (p. limited to the duration of a particular project for which purpose employment was made. 27, Ibid.)

The Non-Career Service shall include: 17. Petitioner was thenceforth brought to the NBI for examination (p. 28; Ibid.).

(1) Elective officials and their personal or confidential staff; 18. At the NBI Forensic Chemistry Section, petitioner's right palmar hand was tested positive of flourescent powder. The same flourescent powder, however, cannot be detected in petitioner's T-shirt and pants (p. 5, TSN, 29 Oct. 1990). 7 (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); xxx xxx xxx (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; Thus, as brought out at the outset, an information was filed against petitioner which, after due hearing, resulted in his conviction by the Sandiganbayan. Not satisfied with the decision, petitioner instituted the present petition for review, ascribing to the Sandiganbayan the following errors: (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no 1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE, INSTEAD OF case shall exceed one year, and performs or accomplishes the specific work or job, under his DISMISSING IT FOR LACK OF JURISDICTION, THE [PETITIONER] NOT BEING A PUBLIC OFFICER; own responsibility with a minimum of direction and supervision from the hiring agency; and and

(5) Emergency and seasonal personnel. (Emphasis ours.) 14 2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THE ELEMENTS OF THE OFFENSE CHARGED HAVE BEEN ESTABLISHED BEYOND REASONABLE DOUBT AND/OR THAT THE GUILT OF THE [PETITIONER] HAS NOT BEEN ESTABLISHED BEYOND REASONABLE DOUBT. From the foregoing classification, it is quite evident that petitioner falls under the non-career service category (formerly termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019). We find the petition unmeritorious.

The fact that petitioner is not required to record his working hours by means of a bundy clock or did not On the first issue, petitioner asserts that he is not a public officer as defined by Sec. 2(b) of the Anti-Graft take an oath of office became unessential considerations in view of the above-mentioned provision of & Corrupt Practices Act (R.A. No. 3019 as amended), because he was neither elected nor appointed to a law clearly including petitioner within the definition of a public officer. public office. Rather, petitioner maintains that he is merely a private individual hired by the ITDI on contractual basis for a particular project and for a specified period 8 as evidenced by the contract of services 9 he entered into with the ITDI. Petitioner, to further support his "theory," alleged that he was Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft & Corrupt Practices not issued any appointment paper separate from the abovementioned contract. He was not required to Act because his intervention "was not required by law but in the performance of a contract of services use the bundy clock to record his hours of work and neither did he take an oath of office. 10 entered into by him as a private individual contractor," 15 is erroneous. As discussed above, petitioner falls within the definition of a public officer and as such, his duties delineated in Annex "B" of the Q What was his answer if any? contract of services 16 are subsumed under the phrase "wherein the public officer in his official capacity has to intervene under the law." 17 Petitioner's allegation, to borrow a cliche, is nothing but a mere A I asked him that my boss is asking me to ask you how come it became splitting of hairs. deductive when my computation is additive and he told me that I have done so much for your company already and then he picked up cement Among petitioner's duties as project manager is to evaluate the contractor's accomplishment bag paper bag and computed our alleged profit amounting to One reports/billings 18 hence, as correctly ruled by the Sandiganbayan he has the "privilege and authority to Hundred Sixty Thousand Pesos and then he told me that he used to use make a favorable recommendation and act favorably in behalf of the government," signing acceptance some percentage in projects maximum and minimum and in our case papers and approving deductives and additives are some examples. 19 All of the elements of Sec. 3(b) of he would use a minimum percentage and multiply to 60 and . . . the Anti-Graft & Corrupt Practices Act are, therefore, present. JUSTICE ESCAREAL: Anent the second issue, we likewise find Petitioner's allegations completely bereft of merit. Q What is 460? Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable doubt and that the charges against him should be rejected for being improbable, unbelievable and contrary to human A P460,000.00 and he said take of the butal and get two Hundred nature. Thousand Pesos.

We disagree. JUSTICE BALAJADIA:

Proof beyond reasonable doubt does not mean that which produces absolute certainty. Only moral What is the translation now? certainty is required or "that degree of proof which produces conviction in an unprejudiced mind." 20 We have extensively reviewed the records of this case and we find no reason to overturn the findings of the Sandiganbayan. WITNESS:

Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies of the A And he said disregard the excess and I will just get the P200,000.00. prosecution witnesses. We shall examine the testimonies referred to with meticulousness. (Emphasis ours.)

Petitioner asserts that it was improbable for him to have demanded P200,000.00 from Engr. Resoso, PROS. CAOILI: when he could have just talked directly to the contractor himself. It is quite irrelevant from whom petitioner demanded his percentage share of P200,000.00 whether from the contractor's project Q What does he mean by that if you know? engineer, Engr. Alexander Resoso or directly from the contractor himself Engr. Jaime Sta. Maria Sr. That petitioner made such a demand is all that is required by Sec. 3(b) of R.A. No. 3019 and this element has been sufficiently established by the testimony of Engr. Resoso, thus: A I do not know sir.

xxx xxx xxx He just said, I will get the P200,000.00 and tell it to your boss. (Emphasis ours.)

Q You said when you were computing your Change Order Mr. Preclaro or Dave Preclaro whom you identified approached you, what did you JUSTICE BALAJADIA: talk about? Q What is P200,000.00? A He mentioned to me that we are deductive in our Change Order three and four so after our conversation I told this conversation to my A It is Two Hundred Thousand Pesos. boss that we are deductible in the Change Order three and four and then my boss told me to ask why it is deductive. PROS. CAOILI:

Q Did you ask the accused here, Dave Preclaro why it is considered deductive? Q What did you answer him when he told you that?

A Yes, sir. A He told me to forget the deductive and electrical and after that I told my boss what he told me. Q Who is your boss? Q What happened next after meeting with Preclaro to relay the postponement if any? A Santa Maria Sr. A Nothing happened. The next day, Thursday the boss instructed me to go with him to the NBI to give a statement. Q What was the reaction of your boss when you relayed the message to Mr. Preclaro? Q Did you go to the NBI and report to the incident to the NBI? A The next day he told me to ask Dave where and when to pick up the money so the next day I asked Dave "Where do you intend to get the A Yes sir. money, the Boss wanted to know." Q Did you give a statement before any of the agents of the of the NBI? Q What was the answer of Dave? A Yes sir. 21 A And he told me, Wendy's Restaurant at 3:00 o'clock. xxx xxx xxx Q When? Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the latter tried to arrange A June 6 Wednesday. meetings with him regarding his demand 22 does not weaken the cause against petitioner. It does not at all prove that petitioner did not ask for money. Conceivably petitioner did not muster enough courage to ask money directly from the contractor himself. Getting the amount through the project engineer would Q When he told you that did you comply with June 6 appointment? be safer because if Mr. Sta. Maria, Sr. had refused to give money, petitioner could always deny having made the demand. A I told my boss what he told me again that the meeting will take place at Wendy's Restaurant corner Edsa and Camias Street at around 8:00 Petitioner contends that the percentage demanded in the amount of P200,000.00 is too high considering o'clock p.m. June 6, Wednesday. that the estimated profit of the contractor from the CMD project is only P460,000.00. In petitioner's words, this would "scare the goose that lays the golden egg." 23 We reject this argument. The Q What did your boss tell you? aforementioned contractor's profit is petitioner's own computation as testified to by Engr. Resoso:

A The next day he told me to ask Dave. xxx xxx xxx

Q What did your boss tell you? A I asked him that my boss is asking me to ask you how come it became deductive when my computation is additive and he told me that I have A My boss told me to ask Dave to postpone the meeting on June 6 to be done so much for your company already and then he picked up cement postponed on June 8 at the same place and same time because my boss bag paper bag and computed our alleged profit amounting to One is having financial problem. Hundred Sixty Thousand Pesos and then he told me that he used to use some percentage in projects maximum and minimum and in our case he would use a minimum percentage and multiply to 460 and . . . Q Did you relay the postponement to Dave Preclaro? (Emphasis ours.)

A Yes sir. I told what my boss told me. JUSTICE ESCAREAL:

Q What was his reaction? Q What is 460?

A Dave told me "O.K. lang with me" because we are not in a hurry. Any A P460,000.00 and it ended to P215 thousand or P20,000.00 and he way we are the ones to sign the acceptance papers and my boss said take of the butal and get the Two Hundred Thousand Pesos. instructed me that on Friday to ask Dave to bring along the result of the (Emphasis ours.) punch list and if possible also to bring along the acceptance papers to be signed by Dave, Lydia Mejia and Dr. Lirag the director. JUSTICE BALAJADIA: What is the translation now? Q As a Project Engineer to whom do you present your billing papers accomplishment report or purchase order? WITNESS: A The billing paper was being taken cared of by the, of our office. I personally do my job as supervision in the construction. A And he said disregard the excess and I will just get the P200,000.00.

Q Do you have any counterpart to supervise the project from the PROS. CAOILI: government side?

Q What does he mean by that if you know? A Yes, we have.

A I do not know sir. Yes, the DOST have a technical Committee Infra-Structure Committee and also the ITDI as its own representative. He just said, I will get the P200,000.00 and tell it to your boss. 24 Q Who composed the Technical Committee of the DOST? xxx xxx xxx A A certain Engineer Velasco, Engineer Sande Banez and Engineer The records, however, do not show the true and actual amount that the Sta. Maria Construction will Mejia. earn as profit. There is, therefore, no basis for petitioner's contention as the actual profit may be lower or higher than his estimation. Q How about the ITDI?

Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentage proper 25 A The ITDI representative composed of Dave Preclaro. compensation since he has allegedly done so much for the Sta. Maria construction company.

Q Who is this Dave Preclaro? Petitioner also argues that:

A He is the consultant of ITDI. (Emphasis ours.) According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. 34-35).

xxx xxx xxx If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00, why would the petitioner still demand P200,000.00 which would increase the contractor's loss to P480,000.00! ATTY. CAOILI:

It might have been different if the changes were additive where STA. MARIA CONSTRUCTION Q As Project Engineer do you consult to any body regarding your job? would have earned more, thereby providing motive for the petitioner to ask for a percentage! 26 A First if there is any problem in the site I consult my boss.

But this is precisely what petitioner was bargaining for — P200,000.00 in exchange for forgetting about PROS. CAOILI: the deductive 27 and thus prevent the Sta. Maria Construction from incurring losses.

Q How about with the other consultants representing the ITDI and Petitioner's contention that it was impossible for him to make any demands because the final decision DOST? regarding accomplishments and billing lies with the DOST technical committee is unacceptable. Petitioner is part of the abovementioned technical committee as the ITDI representative consultant. This is part of his duties under the contract of services in connection with which he was employed by the ITDI. A In the construction site we have meeting every Monday to discuss Even, assuming arguendo that petitioner does not make the final decision, as supervisor/consultant, his any problem. recommendations will necessarily carry much weight. Engr. Resoso testified thus: Q With whom do you discuss this problem? PROS. CAOILI: A The Infra-structure Committee of DOST and the Infra-structure Petitioner also claims that the testimonies of the prosecution witnesses regarding the entrapment itself Committee of ITDI, the architect and the contractor. We had weekly are conflicting, doubtful or improbable: meetings. (aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with flourescent powder Q What matters if any do you consult with Mr. Claro Preclaro? and used in the alleged entrapment.

ATTY. JIMENEZ: Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand (P50,000.00) pesos in P500 denomination to the NBI. 29 No basis. There is no such inconsistency. Said witnesses were testifying on two different subjects. Engr. Sta. Maria, Sr.'s testimony touched on the amount he gave the NBI for use in the entrapment while Engr. Resoso's JUSTICE ESCAREAL: declaration referred only to the number of bills dusted with flourescent powder.

They met on problems on Mondays. Petitioner, likewise, misappreciated the following testimony of Resoso:

ATTY. JIMENEZ: PROS. CAOILI:

But there is no mention of Preclaro specifically. Q What did he do with the two envelopes upon receiving the same?

JUSTICE ESCAREAL: A Then he asked Jaime Sta. Maria, Jr. if there is bank teller express, if he could deposit the money but Mr. Sta. Maria said, "I do not have, I only With the representative of DOST and Preclaro have credit cards." 30

ATTY. JIMENEZ: Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria, Jr. He was merely inquiring from the latter if there was an express teller nearby where he could make the deposit. Does that also mean that Preclaro is also among the representatives he Mr. Sta. Maria Jr. himself testified as follows: is going to consult with? A He asked me if there was express teller. I told him I do not know then Well any way. . . he asked me whether it is possible to deposit at the Express Teller at that time. I told him I don't know because I have no express teller card and he asked me how am I going to arrange, how was it arranged if I JUSTICE ESCAREAL: will bring it, can I bring it. Then I told him that it was placed in two envelopes consisting of 500 Peso bills and then he said "Okay na yan." 31 Witness may answer the question.

Read back the question. The failure of the NBI to take photographs of the actual turn-over of the money to petitioner is not fatal to the People's cause. The transaction was witnessed by several people, among whom were Engr. Resoso, Mr. Sta. Maria Jr. and the NBI agents whose testimonies on the circumstances before, during COURT STENOGRAPHER: and after the turn-over are consistent, logical and credible.

Reading back the question as ordered by the Court. According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of the actual turn- over so as not to alert and scare off the petitioner. During cross-examination Agent Balanban Jr. stated: WITNESS: xxx xxx xxx A Every Monday meeting we tackle with accomplishment report the 28 billing papers. (Emphasis ours.) Q Now, of course, this entrapment operation, you made certain preparation to make sure that you would be able to gather evidence in xxx xxx xxx support of the entrapment? A Yes sir. Petitioner insists that when his hands were placed under ultra-violet light, both were found negative for flourescent powder. This is petitioner's own conclusion which is not supported by evidence. Such self- serving statement will not prevail over the clear and competent testimony and the report 33 submitted Q As a matter of fact you even brought photographer for the purpose? by the forensic expert of the NBI Ms. Demelen R. dela Cruz, who was the one who conducted the test and found petitioner's right palmar hand positive for flourescent powder, the same hand he used, A That is right sir. according to witnesses Resoso and Sta. Maria Jr., to get the money from the latter.

Q And that photographer was precisely brought along to record the xxx xxx xxx entrapment? Q Mrs. dela Cruz since when have you been a Forensic Chemist at NBI? A Yes sir. A Since 1981 sir. Q From the beginning to the end, that was the purpose? Q JUSTICE ESCAREAL: A At the time of the arrest sir. Q By the way, is the defense willing to admit that the witness is a ATTY. JIMENEZ: competent as . . . .

From the time of the handing over of the envelopes until the ATTY. JIMENEZ: entrapment would have been terminated? Admitted Your Honor. A No sir we plan to take the photograph only during the arrest because if we take photographs he would be alerted during the handing of the PROS. CAOILI: envelopes. (Emphasis ours.)

Madam Witness did you conduct a forensic examination in the person Q So you did not intend to take photographs of the act of handing of of one Dave Preclaro y Jambalos? the envelopes to the suspect?

A Yes sir. A We intended but during that time we cannot take photographs at the time of the handling because the flash will alert the suspect. (Emphasis ours.) Q If that person whom you examined is here in court would you be able to recognize him? JUSTICE ESCAREAL: ATTY. JIMENEZ: Why did you not position the photographer to a far distance place with camera with telescopic lens? We admit that the accused is the one examined by the witness.

A We did not Your Honor. ATTY. CAOILI:

ATTY. JIMENEZ: Did you prepare the result of the examination in writing?

So was it your intention to take photographs only at the time that he is A Yes sir. already being arrested? PROS. CAOILI: A Yes sir. 32 Showing to you Physic Examination No. 90-961 which for purposes of xxx xxx xxx identification has already been marked as Exh. H what relation has this have with the report that you mentioned a while ago? A This is the same report that I prepared sir. As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then engaged in the construction of another DOST building, would not risk his business or livelihood just to exact revenge which is neither profitable nor logical. As we aptly stated in Maleg v. Sandiganbayan: 37 Q How did you conduct such flourescent examination?

It is hard to believe that the complainant who is a contractor would jeopardize and prejudice A The left and right hands of the accused were placed under the ultra his business interests and risk being blacklisted in government infrastructure projects, violet lamp sir. knowing that with the institution of the case, he may find it no longer advisable nor profitable to continue in his construction ventures. It is hardly probable that the complainant would Q What was the result? weave out of the blue a serious accusation just to retaliate and take revenge on the accused.

A It gave a . . . under the ultra violent lamp the palmer hands of the From the foregoing, the conclusion is inescapable that on the basis of the testimonial and documentary suspect gave positive result for the presence of flourescent powder. evidence presented during the trial, the guilt of petitioner has been established beyond reasonable doubt. Q What palmar hands? WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED. SO ORDERED. A Right hand sir.

Q What other examination did you conduct?

A And also the clothing, consisting of the t-shirts and the pants were examined. Under the ultra violet lamp the presence of the flourescent powder of the t-shirts and pants cannot be seen or distinguished because the fibers or the material of the cloth under the ultra violet lamp was flouresce.

Q Please tell the Court why the t-shirts and pants under the ultra violent lamp was flouresce?

A The materials or the fibers of the clothings it could have been dyed with flourescent dyes sir. 34

xxx xxx xxx

What we find improbable and contrary to human experience is petitioner's claim that he was set up by Engr. Sta. Maria Sr. and Engr. Resoso for no other purpose but revenge on account, for petitioner's failure to recommend the Sta. Maria Construction to perform the extra electrical works. 35

The Sandiganbayan has aptly ruled on this matter, thus:

For another, the claim of accused that there was ill-will on the part of the construction company is hardly plausible. It is highly improbable for the company to embark on a malicious prosecution of an innocent person for the simple reason that such person had recommended the services of another construction firm. And it is extremely impossible for such company to enlist the cooperation and employ the services of the government's chief investigative agency for such an anomalous undertaking. It is more in accord with reason and logic to presuppose that there was some sort of a mischievous demand made by the accused in exchange for certain favorable considerations, such as, favorable recommendation on the completeness of the project, hassle-free release of funds, erasure of deductives, etc. Indeed, the rationale for the occurrence of the meeting and the demand for money is infinite and boundless. 36 G.R. No. 93711 February 25, 1991 RESOLVED, that upon recommendation of the President of the University of the Executive Committee of the Board of Regents the following Special Orders as amended/corrected are hereby confirmed: DR. EMILY M. MAROHOMBSAR, petitioner, vs. AHMAD E. ALONTO, JR., in his capacity as President of the Mindanao State University, and CORAZON BATARA, respondents. A. DESIGNATIONS GUTIERREZ, JR., J.:p A.1 Major designations The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was appointed Acting Vice-Chancellor for Academic Affairs of the Mindanao State University (MSU) Marawi Campus by the xxx xxx xxx respondent President may be removed from office even without cause. 9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice- Acting Vice Chancellor for Academic Affairs, MSU Marawi Campus, with an Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice- honorarium in accordance with the approved policies of the University, subject to President for External Studies. accounting and auditing rules and regulations, effective January 2, 1989 and shall remain in force until revoked or amended by competent authority. (Rollo, pp. 5354; Emphasis supplied) On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA and, as such, the functions of the former were to be exercised by the latter. The petitioner was appointed acting Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of the It may be noted that the special order confirmed by the Board of Regents specifically designated the MSU, on May 16, 1989, approved her appointment as acting Vice-Chancellor for Academic Affairs. petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed anytime even without hearing or cause. (Austria v. Amante, 79 Phil. 780 [1948]; Castro v. Solidum, 97 On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing her that Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48 [1957]; Valer v. Briones, 9 SCRA 596 [1963]; Abana v. he has decided to tap the petitioner's talent for the MSU system as Vice-President for Academic Affairs Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13 SCRA 293 [1965]. A person who accepts an which position is under the administrative staff of the respondent MSU President. The petitioner, on the appointment in an acting capacity extended and received without any protest or reservation and who same date, answered that she cannot accept the position since she has already started several projects acts thereunder for a considerable time cannot later be heard to say that the appointment was, in in the OVCAA which she wants to see through. reality, permanent and therefore there can be no removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274 [1965]) The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as Vice-Chancellor for Academic Affairs but the latter did not accept the designation. On May 28, 1990, the respondent There are circumstances, however, which rule against the routine or blind application of the principle President issued Special Order No. 158-P designating Professor Corazon Batara, the other respondent in which governs acting appointments to this case. this case, as Officer-in-Charge of the OVCAA.

The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an The petitioner now comes to this Court assailing her removal as Vice-Chancellor by the respondent office for a limited time until a permanent appointment is extended or a new appointee is chosen. President. (Austria v. Amante, supra; Castro v. Solidum, supra; and Valer v. Briones, supra)

On June 21, 1990, the Court issued a temporary restraining order directing the respondents to cease and The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but desist from enforcing and/or implementing Special Order No. 159-P and from interfering and/or also defines the authority of the appointing power. A public officer appointed in an acting capacity preventing the petitioner from performing her duties as Vice-Chancellor for Academic Affairs of the cannot claim that the appointment shall in time ripen into a permanent one. However, neither can the MSU, Marawi Campus. appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. This is similar to the rule that the head of an office On November 19, 1990, the petitioner filed a motion to cite respondent Alonto for contempt, alleging cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely that said respondent, in violation of the temporary restraining order issued by this Court submitted fire and hire or rehire subordinates at his personal discretion. It is the nature of the functions attached to Special Order No. 158-P to the MSU Board of Regents for approval. a position, not the nomenclature or title given by the appointing authority which determines its primarily confidential nature. (Piñero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may The petitioner asserts that her appointment being permanent, she can be removed only after hearing inquire into the true nature of an "acting" appointment to determine whether or not it is used as a and for cause. device to circumvent the security of tenure principle.

Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989, reads as follows: In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU President is obvious. The petitioner is a career official of MSU for over 27 years. She was Vice-President for External Studies since 1982. On March 22, 1988, she was given an additional assignment as Officer-in-Charge of the Office of the Vice-Chancellor for Academic Affairs concurrently with the permanent position as Vice- When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting President for External Studies. on an ad interim appointment effected by the President. No other interpretation can be validly made. If it was a mere designation, it needs no confirmation. The fact that confirmation was needed shows that it is an ad interim one. An ad interim appointment is one made during the time when the appointing or About nine months later, the Vice-Presidency for External Studies was "merged" with the Vice- confirming body is not in session and there is an existing clear and present urgency caused by an Chancellorship for Academic Affairs. At the same time, the petitioner was appointed acting Vice- impending obstruction or paralyzation of the functions assigned to the office if no immediate Chancellor for Academic Affairs. appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for External Studies was abolished and its functions were merged with the Vice-Chancellorship for Academic The effect, therefore, was to abolish the petitioner's permanent office and give her a temporary Affairs, both the security of tenure of the occupant and the needs of the new office called for the ad appointment in the supposedly new office which replaced or absorbed the former office. Another result interim appointment. was the loss by the petitioner of her permanent status. The respondent cannot use the device of an ambiguous designation to go around the security of tenure There are reasons which indicate that these maneuverings by the respondent President cannot be principle. Under the MSU Code, a designation requires a fixed period of not less than one year. The characterized as bona fide. appointment given to the petitioner was indefinite. She would serve at the pleasure of the MSU President who is not even the head of the institution because the head is the Board of Regents. Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides: The intent to convert permanent items into temporary ones is apparent. The petitioner states that the Personnel Matters. In accordance with the policies and rules prescribed by the purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers." Board, the specific powers of the President include the following (delegated (Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers below the powers) President were converted into positions where the occupants serve at the pleasure of the President and presumably, the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and Navy Club alongside the Luneta in Manila, the following acting appointments were submitted for xxx xxx xxx approval or confirmation:

22. Designation of any Dean, Director, or Department Chairman in acting capacity 1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as or any Officer-in-Charge for any of these positions, for a period of less than one Acting Executive Vice-President . . . ; year, such designation being made without additional compensation for the position designated except the honorarium attached to said position; PROVIDED, That the President shall report the designation in the next regular meeting after 2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as winch the designation shall be null and void unless otherwise renewed. Acting Vice President for Academic Affairs . . . ;

The power to designate is vested in the MSU President. The designation must be less than one year. It 3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting must be reported to the Board of Regents at the next regular meeting. After the meeting, another Assistant Vice-President for Academic Affairs . . . ; designation must be issued if no permanent appointment was made. The earlier designation becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied. 4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting Vice President for Planning and Development . . . ; On the other hand, the power to appoint is vested in the Board of Regents as follows: 5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting Sec. 6. The Board of Regents shall have the following powers and duties, in Assistant Vice President for Planning and Development . . . ; addition to its general powers of administration and the exercise of the power of the corporation; 6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer- in-Charge of the Office of the Vice-President for Administration and Finance . . . ; xxx xxx xxx 7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting (e) To appoint, on the recommendation of the President of the University, Assistant Vice President for Administration and Finance . . . ; professor, instructors, lecturers and other employees of the University. . . . — MSU Charter, RA 1387 8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice-Chancellor for Academic Affairs, MSU Marawi Campus . . . ; If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for the information of the Board, the President's action should be merely "noted." 10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting Vice Chancellor for Administration and Finance . . . ; 11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting Vice rules that declaring him in contempt would be too harsh a remedy. The respondent President is, Chancellor for Research and Extension . . . (Rollo, pp. 117-118) nevertheless, admonished for his action. When this Court issues a restraining order, it must be obeyed.

The respondents argue that the permanent item of the petitioner is Professor VI. They state: WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawful occupant in a permanent capacity of the position of Vice-Chancellor for Academic Affairs of MSU Marawi until the end of her three-year term or her tenure is otherwise lawfully terminated. The motion to cite respondent xxx xxx xxx Alonto for contempt is DENIED but the respondent is admonished to faithfully heed court orders in the future. The Temporary Restraining Order issued by this Court on June 21, 1990 is made PERMANENT. Finally, petitioner has not refuted the fact that the position she actually occupies is that of Professor VI. This is precisely the reason why petitioner's designation as SO ORDERED. Acting VCAA can not be deemed a regular or permanent appointment because, if it were so, the anomalous situation of one permanently appointed to two public positions simultaneously would arise. (Rollo, p. 130)

This argument has no merit.

As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of the G.R. No. 120295 June 28, 1996 Philippines (7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt to remove them by limiting their terms of office from permanent to a five (5) year term is unconstitutional. JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents. Deans and Directors are selected from faculty members. An appointment as Professor is also needed for salary rating purposes but does not detract from the permanent nature of the administrative position (id., at pp. 554 and 556). The fact that Professor Tapales was given another appointment as Director of G.R. No. 123755 June 28, 1996 the U.P. Conservatory of Music does not mean that the second appointment is only temporary in nature. In the present case, the fact that Professor Marohombsar has a permanent appointment as Professor RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents. does not detract from the permanent nature of her present appointment as Vice-Chancellor, especially since the same was duly confirmed by the MSU Board of Regents. The only difference is that her position as Vice-Chancellor has a fixed term while that of Professor Tapales was until he retired or resigned. PANGANIBAN, J.:p

The attempt of the respondent to solve the problem by placing the petitioner in his own administrative The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful staff as Vice-President for Academic Affairs cannot be countenanced. The petitioner served in this governor of Sorsogon - capacity from 1975 to 1978 after which she became Vice-President for External Studies in 1982. The proffered position is not only less desirable to the petitioner but she expressly rejected it, preferring to (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive stay in her present position. She thanked the respondent but stated she would not be effective in the elections but who was twice declared by this Court to be disqualified to hold such office due to his alien new position while in the OVCAA she could complete a number of projects and programs. (Rollo, p. 21) citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation; The correctness of the petitioner's stand is explained by this Court in Sta. Maria v. Lopez (31 SCRA 673 [1970]). There are transfers which appear to be promotions or lateral movements but are in truth (ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of demotions. There is no showing that the interest of the service would be served if the proffered Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown appointment would be forced on her. away their ballots; and that legally, he secured the most number of valid votes; or

No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cariño opined, and the (iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of Court agrees with him, that the petitioner may not be removed from the disputed office by the MSU governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by President without the authority of the Board. And, as correctly stated by the Secretary, Special Order No. the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"? 158-P issued by the respondent president designating respondent Batara as officer in-charge of the same office was unapproved by the Board, hence, the special order cannot revoke, or could not have revoked the designation of the petitioner as acting Vice-Chancellor. (Annex A, Petitioner's Memorandum, Rollo, In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies pp. 119-120) existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms. The respondent MSU President, perhaps realizing the vulnerability of his action, submitted Special Order No. 158-P to the Board of Regents for approval. But such submission was made after the Court already G.R. No. 123755 issued its temporary restraining order and consequently, his action constituted contempt of Court. Considering, however, that the respondent appears to have acted in the honest albeit mistaken belief This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary that MSU would progress faster if the executive officers serve at his pleasure and discretion, the Court injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division, 1 promulgated on December 19, 1995 2 and another Resolution of the Comelec en banc alternative, he averred that pursuant to the two cases of Labo vs. Comelec, 12 the Vice-Governor - not Lee promulgated February 23, 1996 3 denying petitioner's motion for reconsideration. - should occupy said position of governor.

The Facts On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution 13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of votes, On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another 4 Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus: candidate, filed a petition with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second Division PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to of the Comelec promulgated a Resolution 5 granting the petition with the following disposition 6: GRANT the Petition.

WHEREFORE, this Division resolves to GRANT the petition and declares that Consistent with the decisions of the Supreme Court, the proclamation of Raul R. respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he ground that he is NOT a citizen of the Philippines. Accordingly, respondent's not having garnered the highest number of votes to warrant his proclamation. certificate of candidacy is canceled. Upon the finality of the annulment of the proclamation of Raul R. Lee, the The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 Provincial Board of Canvassers is directed to immediately reconvene and, on the elections. So, his candidacy continued and he was voted for during the elections held on said date. On basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly May 11, 1995, the Comelec en banc 7 affirmed the aforementioned Resolution of the Second Division. elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of 8 of Governor of Sorsogon. Votes dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon: Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency the President of the Antonio H. Escudero, Jr. 51,060 Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof. Juan G. Frivaldo 73,440 On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc Raul R. Lee 53,304 in its Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Isagani P. Ocampo 1,925 Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition."

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his proclamation as the duly-elected Governor of Sorsogon. The Issues in G.R. No. 123755

10 Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions" In an order dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," 15 the Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the : purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed First -- The initiatory petition below was so far insufficient in form and substance governor of Sorsogon. to warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-317, praying deciding said petition; for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Second -- The judicially declared disqualification of respondent was a continuing Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee condition and rendered him ineligible to run for, to be elected to and to hold the on Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21, Office of Governor; 1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the Third -- The alleged repatriation of respondent was neither valid nor is the effect The Consolidated Issues thereof retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and From the foregoing submissions, the consolidated issues may be restated as follows:

Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity 1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to of petitioner's proclamation as duly elected Governor of Sorsogon. qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when? G.R. No. 120295 2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at eligibility to run for, be elected to or hold the governorship of Sorsogon? issue in G.R. No. 123755, as follows: 3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 1. Resolution 16 of the Second Division, promulgated on May 1, 1995, disqualifying considering that said petition is not "a pre-proclamation case, an election protest or a quo warranto Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on case"? the ground that he is not a citizen of the Philippines"; 4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing 2. Resolution 17 of the Comelec en banc, promulgated on May 11, 1995; and jurisprudence?

3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995 5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed suspending the proclamation of, among others, Frivaldo. Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"? The Facts and the Issue

The First Issue: Frivaldo's Repatriation The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder: The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this. Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy The Local Government Code of 1991 19 expressly requires Philippine citizenship as a qualification for may be filed by any person exclusively on the ground that any material elective local officials, including that of provincial governor, thus: representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the the filing of the certificate of candidacy and shall be decided, after notice and Philippines; a registered voter in the barangay, municipality, city, or province or, in hearing, not later than fifteen days before the election. (Emphasis supplied.) the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident the Comelec had no jurisdiction to issue said Resolutions because they were not rendered therein for at least one (1) year immediately preceding the day of the election; and "within the period allowed by law" i.e., "not later than fifteen days before the election." able to read and write Filipino or any other local language or dialect.

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for (b) Candidates for the position of governor, vice governor or disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional member of the sangguniang panlalawigan, or mayor, vice defect which renders the said Resolutions null and void. mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon. xxx xxx xxx

On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore incumbent upon simultaneously their respective memoranda. him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R.A. 7160). Under Philippine law, 21 citizenship may be reacquired by direct act of Congress, by naturalization or by couched her presidential issuance in terms that clearly indicated the intention of "the present repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this case that government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered to materialize, notwithstanding the endorsement of several members of the House of Representatives" to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at common sense as well. naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects. Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 one day or on June 30, 1995 . . .", which "prevented a judicious review and evaluation of the merits over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a Malacañang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to Committee was reactivated only on June 8, 1995, when presumably the said Committee started boot. Moreover, he now boasts of having successfully passed through the third and last mode of processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General Committee required. Under these circumstances, it could not be said that there was "indecent haste" in himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co- the processing of his application. respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the 2 intended solely for the personal interest of respondent," 7 the Solicitor General explained during the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who date since, clearly and unquestionably, he garnered the highest number of votes in the elections and applied and were considered for repatriation, a list of whom was submitted by him to this Court, through since at that time, he already reacquired his citizenship. 28 a Manifestation filed on April 3, 1996.

En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now On the basis of the parties' submissions, we are convinced that the presumption of regularity in the discuss in seriatim. performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President ground to conclude that such proceedings were necessarily tainted. After all, the requirements of Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a In fact, P.D. serious and contentious issue of policy which the present government, in the exercise of prudence and 725 29 itself requires very little of an applicant, and even the rules and regulations to implement the said sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution", decree were left to the Special Committee to promulgate. This is not unusual since, unlike in adding that in her memorandum dated March 27, 1987 to the members of the Special Committee on naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In "to cease and desist from undertaking any and all proceedings within your functional area of the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23 country and his province prior to his naturalization in the United States -- a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in 24 conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic This memorandum dated March 27, 1987 cannot by any stretch of legal hermeneutics be construed as 25 space, wasted no time in returning to his country of birth to offer once more his talent and services to a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones his people. and a repeal may be express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum -- based on the copy furnished us by Lee -- did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. of statutory construction that repeals by implication are not favored. An implied repeal will not be At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion repugnant and patently inconsistent that they cannot co-exist". 26 of administrative remedies.

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be Government Code "must exist on the date of his election, if not when the certificate of candidacy is treated as an executive policy addressed to the Special Committee to halt the acceptance and processing filed," citing our decision in G.R. 104654 30 which held that "both the Local Government Code and the of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution require that only Philippine citizens can run and be elected to public office." Obviously, Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was first Congress -- once created -- to deal with the matter. If she had intended to repeal such law, she valid or not -- and NOT the effective date thereof. Since the Court held his naturalization to be invalid, should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the The answer to this problem again lies in discerning the purpose of the requirement. If the law intended Court. Which question we shall now directly rule on. the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct Under Sec. 39 of the Local Government Code, "(a)n elective local official must be: from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the * a citizen of the Philippines; need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province * a registered voter in the barangay, municipality, city, or province . . . where he . . . where he intends to be elected." It should be emphasized that the Local Government Code requires intends to be elected; an elective official to be a registered voter. It does not require him to vote actually. Hence, registration -- not the actual voting -- is the core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern * a resident therein for at least one (1) year immediately preceding the day of the -- and not anywhere else. election;

Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a * able to read and write Filipino or any other local language or dialect. registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May 8, 1995." 36 * In addition, "candidates for the position of governor . . . must be at least twenty- three (23) years of age on election day. So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, From the above, it will be noted that the law does not specify any particular date or time when the his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was 3 candidate must possess citizenship, unlike that for residence (which must consist of at least one year's allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995." 7 residency immediately preceding the day of election) and age (at least twenty three years of age on election day). It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

31 Philippine citizenship is an indispensable requirement for holding an elective public office, and the There is yet another reason why the prime issue of citizenship should be reckoned from the date of purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, 253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the an official begins to govern or to discharge his functions only upon his proclamation and on the day the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- 32 Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising the very day the term of office of governor (and other elective officials) began -- he was therefore from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the is the liberal interpretation that should give spirit, life and meaning to our law on qualifications Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be highest number of votes in the immediately preceding elections and such oath had already cured his required at the time of election or at the time of the filing of the certificates of candidacies, as Lee previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible. insists? Literally, such qualifications -- unless otherwise expressly conditioned, as in the case of age and residence -- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship RETROACTED to the date of the filing of his application on August 17, 1994. requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the achieved by construing the citizenship qualification as applying to the time of proclamation of the contrary is provided." But there are settled exceptions 40 to this general rule, such as when the statute is elected official and at the start of his term. CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.

34 But perhaps the more difficult objection was the one raised during the oral argument to the effect that According to Tolentino, 41 curative statutes are those which undertake to cure errors and irregularities, the citizenship qualification should be possessed at the time the candidate (or for that matter the thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, contracts which otherwise would not produce their intended consequences by reason of some statutory 35 also specifies as another item of qualification, that he be a "registered voter". And, under the law a disability or failure to comply with some technical requirement. They operate on conditions already "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand, says that curative less a validly registered one -- if he was not a citizen at the time of such registration. statutes are "healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or said that a remedial statute must be so construed as to make it effect the evident purpose for which it irregularities and to render valid and effective attempted acts which would be otherwise ineffective for was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the the purpose the parties intended." future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty." 46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein. On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo retrospective law, nor within the general rule against the retrospective operation of statutes. 43 considering that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994? A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of While it is true that the law was already in effect at the time that Frivaldo became an American citizen, "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to husbands or the termination of their marital status" and who could neither be benefitted by the 1973 the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine it was the intent of the legislative authority that the law should apply to past events -- i.e., situations and citizenship . . ." because "such provision of the new Constitution does not apply to Filipino women who transactions existing even before the law came into being -- in order to benefit the greatest number of had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed women -- the right to re-acquire Filipino citizenship even during their marital coverture, which right did right of citizenship, and such legislative intention is to be given the fullest effect and expression, then not exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re- events and transactions subsequent to the passage of such law. That is, the repatriation granted to acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier would have had to undergo the tedious and cumbersome process of naturalization, but with the advent mentioned, there is nothing in the law that would bar this or would show a contrary intention on the of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything repatriation. unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested right or breach 44 of some constitutional guaranty. The Solicitor General argues:

Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by since they are intended to supply defects, abridge superfluities in existing laws (Del his repatriation. Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041). Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to In this case, P.D. No. 725 was enacted to cure the defect in the existing delay the processing of applications for any substantial length of time, then the former Filipinos who may naturalization law, specifically C.A. No. 63 wherein married Filipino women are be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may be prejudiced allowed to repatriate only upon the death of their husbands, and natural-born for causes outside their control. This should not be. In case of doubt in the interpretation or application Filipinos who lost their citizenship by naturalization and other causes faced the of laws, it is to be presumed that the law-making body intended right and justice to prevail. 47 difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization. And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively short spans of time after the same were filed. 48 The fact that such Presidential Decree No. 725 provided a remedy for the aforementioned legal interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a aberrations and thus its provisions are considered essentially remedial and result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the curative. government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing only during In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the the interregnum between application and approval, a situation that is not present in the instant case. legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a 45 And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. consideration of the act as a whole, or from the terms thereof." It is obvious to the Court that the Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as statute was meant to "reach back" to those persons, events and transactions not otherwise covered by having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil questions about his possession of the nationality qualification -- whether at the date of proclamation right equally as important as the freedom of speech, liberty of abode, the right against unreasonable (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March The records show that the Honorable Supreme Court had decided that Frivaldo 20, 1995) would become moot. was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any "final judgment" of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), deemed settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino restored -- as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of citizen "having been declared by the Supreme Court in its Order dated March 25, said date. 1995, not a citizen of the Philippines." This declaration of the Supreme Court, however, was in connection with the 1992 elections. It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code 49 Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status would disqualify him "from running for any elective local position?" We answer this question in the with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo Immigration, 56 we held: wrote that he "had long renounced and had long abandoned his American citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim -- when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship." 50 Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority 51 decides therein as to such citizenship is generally not considered res judicata, On this point, we quote from the assailed Resolution dated December 19, 1995: hence it has to be threshed out again and again, as the occasion demands.

By the laws of the United States, petitioner Frivaldo lost his American citizenship The Third Issue: Comelec's Jurisdiction when he took his oath of allegiance to the Philippine Government when he ran for Over The Petition in SPC No. 95-317 Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre- These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he was not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation conclusive upon this Court, absent any showing of capriciousness or arbitrariness or 52 only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's abuse. "recourse was to file either an election protest or a quo warranto action."

The Second Issue: Is Lack of Citizenship This argument is not meritorious. The Constitution 57 has given the Comelec ample power to "exercise a Continuing Disqualification? exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective . . . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in 53 Lee contends that the May 1, 1995 Resolution of the Comelec Second Division in SPA No. 95-028 as the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after invariably recognized the Commission's authority to hear and decide petitions for annulment of 54 five (5) days or on May 17, 1995, no restraining order having been issued by this Honorable Court. proclamations -- of which SPC No. 95-317 obviously is one. 58 Thus, in Mentang vs. COMELEC, 59 we ruled: Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo The petitioner argues that after proclamation and assumption of office, a pre- now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory proclamation controversy is no longer viable. Indeed, we are aware of cases way before the 1995 elections, and these "judicial pronouncements of his political status as an American holding that pre-proclamation controversies may no longer be entertained by the citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the COMELEC after the winning candidate has been proclaimed. (citing Gallardo vs. Philippines." Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that We do not agree. the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to make such It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 COMELEC, 186 SCRA 484.) elections. That he was disqualified for such elections is final and can no longer be changed. In the words 55 of the respondent Commission (Second Division) in its assailed Resolution: The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same. The Fourth Issue: Was Lee's Proclamation Valid? The Fifth Issue: Is Section 78 of the Election Code Mandatory? Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons: In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated 60 May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of First. To paraphrase this Court in Labo vs. COMELEC, "the fact remains that he (Lee) was not the choice 61 citizenship should be annulled because they were rendered beyond the fifteen (15) day period of the sovereign will," and in Aquino vs. COMELEC, Lee is "a second placer, . . . just that, a second prescribed by Section 78, of the Omnibus Election Code which reads as follows: placer."

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the 62 verified petition seeking to deny due course or to cancel a certificate of candidacy aforesaid Labo case, as follows: may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The The rule would have been different if the electorate fully aware in fact and in law petition may be filed at any time not later than twenty-five days from the time of of a candidate's disqualification so as to bring such awareness within the realm of the filing of the certificate of candidacy and shall be decided after notice and notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In hearing, not later than fifteen days before the election. (Emphasis supplied.) such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the votes, in which case, the eligible candidate obtaining the next higher number of subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc 63 on votes may be deemed elected. February 23, 1996; which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for But such holding is qualified by the next paragraph, thus: disqualifications even after the elections, thus:

But this is not the situation obtaining in the instant dispute. It has not been shown, Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by and none was alleged, that petitioner Labo was notoriously known as an ineligible final judgment to be disqualified shall not be voted for, and the votes cast for him candidate, much less the electorate as having known of such fact. On the contrary, shall not be counted. If for any reason a candidate is not declared by final petitioner Labo was even allowed by no less than the Comelec itself in its judgment before an election to be disqualified and he is voted for and receives the resolution dated May 10, 1992 to be voted for the office of the city Payor as its winning number of votes in such election, the Court or Commission shall continue resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of with the trial and hearing of the action, inquiry or protest and upon motion of the candidacy had not yet become final and subject to the final outcome of this case. complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because guilt is strong. (emphasis supplied) Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a pending motion for Refutation of reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Mr. Justice Davide's Dissent Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was. In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the within the realm of notoriety;" in other words, that the voters intentionally wasted their ballots knowing said issuance is not a statute that can amend or abrogate an existing law. that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice- The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz., "(u)nder CA governor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was, to paraphrase No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . . Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo: repatriation". He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a The rule, therefore, is: the ineligibility of a candidate receiving majority votes does non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed not entitle the eligible candidate receiving the next highest number of votes to be earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose declared elected. A minority or defeated candidate cannot be deemed elected to of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which the office. were the subjects of such previous rulings.

Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the Hence, Lee's proclamation was patently erroneous and should now be corrected. denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In therefor. dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is Section 39 of the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this 120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course Decision. under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that a decision Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond Law." We agree -- we must all follow the rule of law. But that is NOT the issue here. The issue is how the 25-day period is out of time. There is no inconsistency nor conflict. should the law be interpreted and applied in this case so it can be followed, so it can rule!

Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of At balance, the question really boils down to a choice of philosophy and perception of how to interpret Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our and apply laws relating to elections: literal or liberal; the letter or the spirit, the naked provision or its holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. That is settled. But his supervening repatriation has changed his political status -- not in 1988 or 1992, Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute but only in the 1995 elections. unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.

Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, E P I L O G U E saying that "informal renunciation or abandonment is not a ground to lose American citizenship". Since our courts are charged only with the duty of determining who are Philippine nationals, we cannot rule on In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an the legal question of who are or who are not Americans. It is basic in international law that a State 65 elective official at the latest as of the time he is proclaimed and at the start of the term of office to which determines ONLY those who are its own citizens -- not who are the citizens of other countries. The he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the and final. remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly retroactive effect as of the date of his application therefor, during the pendency of which he was known". First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the vital there is, such knowledge can be true post facto only of the last two previous elections. Third, even the requirement of Filipino citizenship as of the start of the term of office of governor, and should have been Comelec and now this Court were/are still deliberating on his nationality before, during and after the proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1995 elections. How then can there be such "public" knowledge? 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to elective local officials, i.e., candidates, and not elected officials, and that the citizenship qualification hear and decide petitions for annulment of proclamations. [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were This Court has time and again liberally and equitably construed the electoral laws of our country to give 66 intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of fullest effect to the manifest will of our people, for in case of doubt, political laws must be interpreted differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal citizenship qualification should be possessed at election day or prior thereto, it would have specifically niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: stated such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc. . . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere 6 Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, technical objections (citations omitted). 7 among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference MARIANO G. ALMEDA, SR., and VALERIANA F. ALMEDA, petitioners, vs. THE HON. JESUS Y. PEREZ, to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the Judge of the Court of First Instance of Manila, and the REPUBLIC OF THE PHILIPPINES, respondents. sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a LABRADOR, J.: manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so This is a petition for prohibition and certiorari, with preliminary injunction, filed by petitioners seeking to patently antagonistic 68 to constitutional and legal principles that overriding such ineligibility and thereby set aside and declare null and void the orders, dated March 15, 1961 and May 8, 1961, of the respondent giving effect to the apparent will of the people, would ultimately create greater prejudice to the very Judge Jesus Y. Perez of the Court of First Instance of Manila, in Civil Case No. 44693 of said court. The democratic institutions and juristic traditions that our Constitution and laws so zealously protect and first order allowed the filing of an amended petition for forfeiture against petitioners; the second denied promote. In this undertaking, Lee has miserably failed. a motion for the reconsideration thereof and for the dismissal of the amended petition for forfeiture.

In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have In October, 1961, Epifanio T. Villegas and Jesus A. Mendoza, filed a complaint with the Secretary of refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his Justice, charging Mariano G. Almeda, Sr. with having acquired, during his incumbency as government failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could employee, cash and properties from unknown sources in the total amount of P121,407.98 which have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and acquisitions, according to the complaint, were manifestly out of proportion to the salary and other lawful thus hold his consequent dual citizenship as a disqualification "from running for any elective local income of said Mariano G. Almeda, Sr., and, therefore, in violation of the provisions of Republic Act No. position." But the real essence of justice does not emanate from quibblings over patchwork legal 1379, otherwise known as the Anti-Graft Law. Pursuant to the provisions of said Act, a preliminary technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the investigation was conducted by a committee of investigators designated by the Secretary of Justice. In a ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, resolution of said investigators, dated November 4, 1960, it was certified that there is reasonable ground legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in to believe that from 1950 to 1959, Mariano G. Almeda, Sr. acquired properties manifestly out of the larger social context consistent with Frivaldo's unique situation approximating venerability in proportion to his salary as Assistant Director of the National Bureau of Investigation, and to his other Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the lawful income. dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. On the basis of the findings of the investigators, the Solicitor General, representing the Republic of the The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Philippines as petitioner, filed on November 12, 1960, with, Court of First Instance of Manila, a petition Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it for forfeiture against Mariano G. Almeda, Sr., docketed as Civil Case No. 44693. It charges him with not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of having committed while engaged in the performance of his official and, in consequence of said graft, had birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal acquired properties and made cash disbursements from 1950 to 1959 grossly disproportionate to his technicality, of his consuming intention and burning desire to re-embrace his native Philippines even lawful income. His wife was included as a co-respondent in her capacity as wife of Mariano G. Almeda, now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose Sr. and as co-owner of their conjugal properties. cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but Petitioners herein filed their answer on December 1960 and thereafter the case was set for hearing, but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied February 15, 1961, the Solicitor General filed a "Motion for Leave to Amend Petition for Forfeiture". The in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of judge granted the motion but rejected the inclusion of Mariano F. Almeda, Jr. as party respondent. On Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice. March 25, 196 the Solicitor General filed the amended petition for forfeiture, adding other counts and items of alleged unlawful acquisitions and disbursements thus increasing the alleged cash from unexplained sources received by the respondent from the years 1950-59 to P208,682.45, as against WHEREFORE, in consideration of the foregoing: respondent's salary and other lawful income of only P59,860.97. Respondents, petitioners herein, objected to the amendment on the ground that the new counts or charges already been investigated (1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent and dismissed after investigation, and respondents had not been given a new preliminary investigation Commission are AFFIRMED. with respect to the new counts or charges that the proceeding under Republic Act No. 1379 being criminal in nature, the petition may not be amended as substance without respondents' consent. It is also claim that the amendments were presented only to delay the proceedings to the prejudice of the (2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has respondents, and that the new counts or charges could not be included because one year had already no merit. elapsed after a general election in violation of the provisions of Republic Act No. 1379. After the filing of memoranda by the parties the respondent judge issued the order sought to be reviewed, authorizing the No costs. SO ORDERED. presentation of the second amended petition but without including therein Mariano F. Almeda, Jr. as a party respondent. The court ruled as follows:

The Court finds no merit to the contention that the amended petition seeks to include new counts which were previously dismissed by the investigating Fiscals because no such dismissal G.R. No. L-18428 August 30, 1962 appears in the resolution of said investigating fiscal and moreover, the only function of the investigating fiscals in the preliminary investigation was to determine whether or not there is In the first place a proceedings under the Act (Rep. Act No. 1379) does, not terminate in the imposition probable cause that respondents have acquired properties beyond their means. The items of of penalty but merely in the forfeiture of the properties illegally acquired in favor of the state. (Sec. 6) In receipts and disbursements or acquisitions referred to as new counts by the respondents are the second place the procedure outlined in the law leading to forfeiture is that provided for in a civil but allegations in detail respecting the main allegation that respondents unlawfully acquired action. Thus there is a petition (Sec. 3), then an answer (Sec. 4), and lastly, a hearing. The preliminary the properties described in the amended petition. The new allegations of receipts and investigation which is require prior to the filing of the petition, in accordance with Sec. 2 of the Act, is disbursements embodied in the amended petition objected to by the respondents merely provided expressly to be one similar to a preliminary investigation in a criminal in a criminal case. If the supplement or amplify the facts of unlawful acquisition originally alleged in the original investigation is only similar to that in a criminal case, but other steps in the proceedings are those for petition. These amendments hence relate back to the date of the filing of the original petition civil proceedings, it stands to reason that the proceeding is not criminal. Had it been a criminal so that the prohibition contained in Rep. Act 1379 that no petition shall be filed within one proceeding there would been, after a preliminary investigation, a reading of information, a plea of guilty year before a general election cannot apply with respect to the new items of receipts and or not guilty, and a trial thereafter, with the publication of the judgement in the presence of the disbursements. The Court finds no merit in the respondents' contention that the amended defendant. But these proceedings as above set forth, are not provided for in the law.1äwphï1.ñët petition should not be admitted on the allegation that this proceeding is penal in nature and no amendment as to matters of substance can be admitted after the respondents have filed Section 12 of the law provides a penalty to the public officer, but said penalty is against the employee or their answer because this is a civil case and the rules respecting amendments in civil cases officer for the transfer or conveyance of any unlawfully acquired properties. The law therefore penalizes and not of informations in criminal cases should govern the admission of amendments in this an officer for transferring or conveying properties unlawfully acquired but does not do so for making the case. The mere fact that a preliminary investigation is required to be held in a proceeding of unlawful acquisition; it merely imposes the penalty of forfeiture of the properties unlawfully acquired. this nature does not make the same a criminal proceeding. Hence, the rule that amendments of pleadings are favored and should be liberally allowed in the furtherance of justice should be applied. As the proceeding for forfeiture, as pointed out and as provided for in the law, is not a penal proceeding but a civil one for the forfeiture of the properties illegally acquired, and as the procedure outlined in the law is that which is followed in civil actions, amendment of the charges or the petition for forfeiture may With reference to the objection that no preliminary investigation was conducted insofar as be made as in ordinary civil actions; i.e., the amendments may be made before trial or in the course of the new respondent Mariano P. Almeda is concerned, the Court finds said objection to be trial without need of another investigation. It also follows that amendments setting forth newly well-founded because no preliminary investigation was in fact conducted insofar as said new discovered acquisitions may be in the petition without obtaining the consent of the respondent. respondent is concerned in violation of Sec. 2 of Rep. Act 1379.

WHEREFORE, the petition should be, as it is hereby, denied, with costs. So ordered. WHEREFORE, the Court hereby orders the petitioner to file, within ten days, a second amended petition without including therein, Mariano F. Almeda as party respondent or make reference therein with respect to said person.

SO ORDERED.

The principal contention of the petitioners herein, respondents in the court below, is that Republic Act G.R. No. L-19052 December 29, 1962 No. 1379 is penal in substance and effect, hence the presentation of the amended petition without the benefit of a previous preliminary investigation under the Act cannot be allowed; that the amendment MANUEL F. CABAL, petitioner, vs. HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA, would have the effect of presenting charge (under Republic Act No. 1379) within one year from the date respondents. of a general election; and lastly that amendment may not be made on a matter of substance after the defendants had pleaded. CONCEPCION, J.:

A study of the provisions of Republic Act No. 1379 readily discloses that the proceeding for forfeiture is in nature and not criminal, as claimed by the petitioners. A test has been suggested to determine This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the Hon. whether the proceeding for forfeiture is civil or criminal, thus: Ruperto Kapunan, Jr., as Judge of the Court of First Instance of Manila, from further proceeding in Criminal Case No. 60111 of said court, and to set aside an order of said respondent, as well as the whole proceedings in said criminal case. . . . . Forfeiture proceedings may be either civil or criminal in nature, and may be in rem or in personam. If they are under a statute such that if an indictment is presented forfeiture can be included in the criminal case they are in nature, although they may be civil in form; and where On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of Nation it must be gathered from the statute that the action is meant to be criminal in its nature it Defense a letter-complaint charging petitioner Manuel Cabal, then Chief of Staff of the Armed Forces of cannot be considered as civil. If however, the proceeding does not involve the conviction of the Philippines, with "graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer and wrongdoer for the offense charged the proceeding is of a civil nature; and under statutes gentleman dictatorial tendencies, giving false statements of his as sets and liabilities in 1958 and other which specifically so provision where the act or omission for which the forfeiture is imposed is equally reprehensible acts". On September 6, 1961, the President of the Philippines created a committee not also a misdemeanor, such forfeiture may be sued for recovered in a civil action. (37 CJS, of five (5) members, consisting of former Justice Marceliana R. Montemayor, as Chairman, former Forfeitures, Sec. 5, pp. 15-16). Justices Buenaventura Ocampo and Sotero Cabahug, and Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the charge of unexplained wealth contained in said letter-complaint and submit its report and recommendations as soon as possible. At the beginning of the investigation, on September 15, 1961, the Committee, upon request of complainant Col. Maristela, or considered petitioner herein to By resolution dated October 14, 1961. respondent Judge denied said motion to quash. Thereupon, or on take the witness stand and be sworn to as witness for Maristela, in support of his aforementioned charge October 20, 1961, petitioner began the present action for the purpose adverted to above, alleging that, of unexplained wealth. Thereupon, petitioner objected, personally and through counsel, to said request unless restrained by this court, respondent Judge may summarily punish him for contempt, and that of Col. Maristela and to the aforementioned order of the Committee, invoking his constitutional right such action would not be appealable. against self-incrimination. The Committee insisted that petitioner take the witness stand and be sworn to, subject to his right to refuse to answer such questions as may be incriminatory. This notwithstanding, In their answer, respondents herein allege, inter alia, that the investigation being conducted by the petitioner respectfully refused to be sworn to as a witness to take the witness stand. Hence, in a Committee above referred to is administrative, not criminal, in nature; that the legal provision relied communication dated September 18, 1961, the Committee referred the matter to respondent City Fiscal upon by petitioner in relation to preliminary investigations (Section '08-C, Republic Act No. 409, as of Manila, for such action as he may deem proper. On September 28, 1961, the City Fiscal filed with the amended by Republic Act No. 1201) is inapplicable to contempt proceedings; that, under section 580 of Court of First Instance of Manila a "charge" reading as follows: the Revised Administrative Code. contempt against an administrative officer is to be dealt with as contempt of a superior court; that petitioner herein is charged with only one offense; and that, tinder The undersigned hereby charges Manuel F. Cabal with contempt under section 580 of the the constitutional guarantee against self-incrimination, petitioner herein may refuse, not to take the Revised Administrative Code in relation to sections I and 7, Rule 64 of the Rules of Court, witness stand, but to answer incriminatory questions. committed as follows: At the outset, it is not disputed that the accused in a criminal case may refuse, not only to answer That on or about September 15, 1961, in the investigation conducted at the U.P. incriminatory questions, but, also, to take the witness stand (3 Wharton's Criminal Evidence, pp. 1959- Little Theater:, Padre Faura, Manila, by the Presidential Committee, which was 1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before created by the President of the Republic of the Philippines in accordance with law the aforementioned Committee is civil or criminal in character. to investigate the charges of alleged acquisition by respondent of unexplained wealth and composed of Justice Marceliano Montemayor, as Chairman, and In this connection, it should be noted that, although said Committee was created to investigate the Justices Buenaventura Ocampo and Sotero Cabahug and Generals Basilio Valdez administrative charge of unexplained wealth, there seems to be no question that Col. Maristela does not and Guillermo Francisco, as members, with the power, among others, to compel seek the removal of petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As a matter the attendance of witnesses and take their testimony under oath, respondent who of fact he no longer holds such office. It seems, likewise conceded that the purpose of the charge against was personally present at the time before the Committee in compliance with a petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise known as the Anti- subpoena duly issued to him, did then and there willfully, unlawfully, and Graft Law, which authorizes the forfeiture to the State of property of a public officer or employee which contumaciously, without any justifiable cause or reason refusal and fail and still is manifestly out of proportion to his salary as such public officer or employee and his other lawful refuses and fails to obey the lawful order of the Committee to take the witness income and the income from legitimately acquired property. Such for forfeiture has been held, however, stand, be sworn and testify as witness in said investigation, in utter disregard of to partake of the nature of a penalty. the lawful authority of the Committee and thereby obstructing and degrading the proceedings before said body. In a strict signification, a forfeiture is a divestiture property without compensation, in consequence of a default an offense, and the term is used in such a sense in this article. A Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of forfeiture, as thus defined, is imposed by way of punishment not by the mere convention of contempt of the Presidential Committee and accordingly disciplined as in contempt of court the parties, but by the lawmaking power, to insure a prescribed course of conduct. It is a imprisonment until such time as he shall obey the subject order of said committee. method deemed necessary by the legislature to restrain the commission of an offense and to aid in the prevention of such a offense. The effect of such a forfeiture is to transfer the title to This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII thereof, the specific thing from the owner to the sovereign power (23 Am. Jur. 599) (Emphasis ours.) presided over by respondent Judge. On October 2, 1961, the latter issued an order requiring petitioner to show cause and/or answer the charge filed against him within ten (10) days. Soon thereafter, or on In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a liability to pay a October 4, 1961, petitioner filed with respondent Judge a motion to quash the charge and/or order to definite sum of money as the consequence of violating the provisions of some statute or show cause, upon the ground: (1) that the City Fiscal has neither authority nor personality to file said refusal to comply with some requirement of law." It may be said to be a penalty imposed for char and the same is null and void, for, if criminal, the charge has been filed without a preliminary misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.) investigation, and, civil, the City Fiscal may not file it, his authority in respect of civil cases being limited to representing the City of Manila; (2) that the facts charged constitute no offense for section 580 of the Revised Administrative Code, upon which the charge is based, violates due process, in that it is vague As a consequence, proceedings for forfeiture of proper are deemed criminal or penal, and, hence, the and uncertain as regards the offense therein defined and the fine imposable therefor and that it fail to exemption of defendants in criminal case from the obligation to be witnesses against themselves are specify whether said offense shall be treated also contempt of an inferior court or of a superior court (3) applicable thereto. that more than one offense is charged, for the contempt imputed to petitioner is sought to be punished as contempt of an inferior court, as contempt of a superior court an as contempt under section 7 of Rule Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or 64 of the Rules Court; (4) that the Committee had no power to order an require petitioner to take the imprisonment against any person are deemed to be civil proceedings in rem. Such witness stand and be sworn to, upon the request of Col. Maristela, as witness for the latter, inasmuch as proceedings are criminal in nature to the extent that where the person using the res illegally is said order violates petitioner's constitutional right against self-incrimination. the owner or rightful possessor of it, the forfeiture proceeding is in the nature of a punishment. They have been held to be so far in the nature criminal proceedings that a general verdict on several count in an information is upheld if one count is good. According to the authorities such proceedings, where the owner of the property appears, are so far of the witness is virtually that of an accused on trial, it would appear that he may invoke the considered as quasi-criminal proceeding as to relieve the owner from being a witness against privilege in support of a blanket refusal to answer any and all questions. (C.J.S., p. 252; himself and to prevent the compulsory production of his books and papers. ... (23 Am. Jur. emphasis ours.) 612; emphasis ours.) A person may not be compelled to testify in an action against him for a penalty or to answer Although the contrary view formerly obtained, the late decisions are to the effect that suits any question as a witness which would subject him to a penalty or forfeiture, where the for forfeitures incurred by the commission of offenses against the law are so far of quasi- penalty or forfeiture is imposed as a vindication of the public justice of the state. criminal nature as to be within the reason of criminal proceedings for all purposes of ... that portion of the Fifth Amendment which declares that no person shall be compelled in any In general, both at common law and under a constitution provision against compulsory self- criminal case to be a witness against himself. .... It has frequently been held upon incrimination, a person may not be compelled to answer any question as a witness which constitutional grounds under the various State Constitution, that a witness or party called as would subject him to a penalty or forfeiture, or testify in action against him for a penalty. witness cannot be made to testify against himself as to matters which would subject his property to forfeiture. At early common law no person could be compelled to testify against himself or to answer any question which would have had a tendency to expose his property to The privilege applies where the penalty or forfeiture recoverable, or is imposed in vindication a forfeiture or to form a link in a chain of evidence for that purpose, as well as to incriminate of the public justice the state as a statutory fine or penalty, or a fine or penalty for violation of him. Under this common-law doctrine of protection against compulsory disclosures which a municipal ordinance, even though the action or proceeding for its enforcement is not would tend to subject the witness to forfeiture, such protection was claimed and availed of in brought in a criminal court but is prosecuted through the modes of procedure applicable to some early American cases without placing the basis of the protection upon constitutional ordinary civil remedy. (98 C. J. S., pp. 275-6.) grounds. (23 Am. Jur., 616; emphasis ours.) Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a proceeding to Proceedings for forfeitures are generally considered to be civil and in the nature of declaration a forfeiture of certain property because of the evasion of a certain revenue law, "though proceedings in rem. The statute providing that no judgment or other proceedings in civil cases technically a civil proceeding is in substance and effect a criminal one", and that suits for penalties and shall be arrested or reversed for any defect or want of form is applicable to them. In some forfeitures are within the reason criminal proceedings for the purposes of that portion the Fifth aspects, however, suits for penalties and forfeitures are of quasi-criminal nature and within Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a the reason of criminal proceedings for all the purposes of ... that portion of the Fifth criminal case to be a witness against himself. Similarly, a proceeding for the removal of an officer was Amendment which declares, that no person shall be compelled in any criminal case to be a held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of witness against himself. The proceeding is one against the owner, as well as against the the Fifth Amendment applies "to all cases in which the action prosecution is not to establish, recover or goods; for it is his breach of the laws which has to be proved to establish the forfeiture and redress private and civil rights, but to try and punish persons charged with the commission of public his property is sought to be forfeited. (15 Am. Jur., Sec. 104, p. 368; emphasis offenses" and "a criminal case is a action, suit or cause instituted to punish an infraction the criminal ours.)lawphil.net laws, and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal case ...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an extensive examination of pertinent cases, concludes that said The rule protecting a person from being compelled to furnish evidence which would constitutional provision applies whenever the proceeding is not "purely remedial", or intended "as a incriminate him exists not only when he is liable criminally to prosecution and punishment, redress for a private grievance", but primarily to punish "a violation of duty or a public wrong and to but also when his answer would tend to expose him to a ... forfeiture .... (58 Am. Jur., See. 43, deter others from offending in likewise manner. ...". p. 48; emphasis ours.)

We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the As already observed, the various constitutions provide that no person shall be compelled in theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No. any criminal case to be a witness against himself. This prohibition against compelling a person 1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure, to take the stand as a witness against himself applied only to criminal, quasi-criminal, and was rejected by this Court upon the ground that said forfeiture proceeding in civil in nature. This penal proceedings, including a proceeding civil in form for forfeiture of property by reason of doctrine refers, however, to the purely procedural aspect of said proceeding, and has no bearing the the commission of an offense, but not a proceeding in which the penalty recoverable is civil or substantial rights of the respondents therein, particularly their constitutional right against self- remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49: emphasis ours.) incrimination.

The privilege of a witness not to incriminate himself is not infringed by merely asking the WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently from witness a question which he refuses to answer. The privilege is simply an option of refusal, proceeding further in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so ordered. and not a prohibition of inquiry. A question is not improper merely because the answer may tend to incriminate but, where a witness exercises his constitutional right not to answer, a question by counsel as to whether the reason for refusing to answer is because the answer may tend to incriminate the witness is improper.

The possibility that the examination of the witness will be pursued to the extent of requiring self-incrimination will not justify the refusal to answer questions. However, where the position G.R. No. 85279 July 28, 1989 SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO the petitioners from staging another strike or from pursuing the notice of strike they filed with the AGUSTIN, VIRGILIO MAGPAYO, petitioner, vs. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM Department of Labor and Employment on January 25, 1989 and to maintain the status quo [Rollo, pp. (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents. 151-152].

CORTES, J: The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joined and the case submitted for decision. Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case to work. Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to initiated by the SSS and to issue the restraining order and the writ of preliminary injunction, as strike. jurisdiction lay with the Department of Labor and Employment or the National Labor Relations Commission, since the case involves a labor dispute. The antecedents are as follows: On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws and rules and regulations, not the Labor Code, therefore they do not have On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages the right to strike. Since neither the DOLE nor the NLRC has jurisdiction over the dispute, the Regional with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the Trial Court may enjoin the employees from striking. officers and members of SSSEA staged an illegal strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management Council, which In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS the Court of Appeals held that since the employees of the SSS, are government employees, they are not suffered damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be allowed to strike, and may be enjoined by the Regional Trial Court, which had jurisdiction over the SSS' issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants complaint for damages, from continuing with their strike. (petitioners herein) be ordered to pay damages; and that the strike be declared illegal. Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which Appeals erred in finding that the Regional Trial Court did not act without or in excess of jurisdiction when included: implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) it took cognizance of the case and enjoined the strike are as follows: on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular 1. Do the employees of the SSS have the right to strike? and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of 2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the discrimination and unfair labor practices [Rollo, pp. 21-241]. strikers from continuing with the strike and to order them to return to work?

The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the These shall be discussed and resolved seriatim application for a writ of preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the subject matter [Rollo, pp. 72-82.] To this I motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition peaceful concerted activities, including the right to strike in accordance with law" [Art. XIII, Sec. 31]. with preliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer the case to By itself, this provision would seem to recognize the right of all workers and employees, including those the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the in the public sector, to strike. But the Constitution itself fails to expressly confirm this impression, for in Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. the Sub-Article on the Civil Service Commission, it provides, after defining the scope of the civil service as Petitioners moved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 "all branches, subdivisions, instrumentalities, and agencies of the Government, including government- denied the motion for reconsideration in G.R. No. 97577 for being moot and academic. Petitioners' owned or controlled corporations with original charters," that "[t]he right to self-organization shall not motion to recall the decision of the Court of Appeals was also denied in view of this Court's denial of the be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the provides that "[tlhe right of the people, including those employed in the public and private sectors, to Court of Appeals [Rollo, pp. 12-37]. form unions, associations, or societies for purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to strike. Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and these provisions. A reading of the proceedings of the Constitutional Commission that drafted the 1987 conditions of employment of all government employees, including employees of government owned and Constitution would show that in recognizing the right of government employees to organize, the controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276]. commissioners intended to limit the right to the formation of unions or associations only, without Understandably, the Labor Code is silent as to whether or not government employees may strike, for including the right to strike. such are excluded from its coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter. Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self- organization shall not be denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the On June 1, 1987, to implement the constitutional guarantee of the right of government employees to apprehensions expressed by Commissioner Ambrosio B. Padilla, Vice-President of the Commission, organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to explained: organize of government employees. In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to MR. LERUM. I think what I will try to say will not take that long. When we Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, proposed this amendment providing for self-organization of government "prior to the enactment by Congress of applicable laws concerning strike by government employees ... employees, it does not mean that because they have the right to organize, they enjoins under pain of administrative sanctions, all government officers and employees from staging also have the right to strike. That is a different matter. We are only talking about strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in organizing, uniting as a union. With regard to the right to strike, everyone will temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At remember that in the Bill of Rights, there is a provision that the right to form present, in the absence of any legislation allowing government employees to strike, recognizing their associations or societies whose purpose is not contrary to law shall not be right to do so, or regulating the exercise of the right, they are prohibited from striking, by express abridged. Now then, if the purpose of the state is to prohibit the strikes coming provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be from employees exercising government functions, that could be done because the stated that the validity of Memorandum Circular No. 6 is not at issue]. moment that is prohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including those from the government-owned and controlled, are allowed But are employees of the SSS covered by the prohibition against strikes? to organize but they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he resolution, it carries with it the right to strike. That is a different matter. As a civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, matter of fact, that subject is now being discussed in the Committee on Social including government-owned or controlled corporations with original charters" [Art. IX(B), Sec. .2(l) see Justice because we are trying to find a solution to this problem. We know that this also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "government problem exist; that the moment we allow anybody in the government to strike, employees"] and that the SSS is one such government-controlled corporation with an original charter, then what will happen if the members of the Armed Forces will go on strike? What having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, will happen to those people trying to protect us? So that is a matter of discussion G.R. Nos. 69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's in the Committee on Social Justice. But, I repeat, the right to form an organization memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was does not carry with it the right to strike. [Record of the Constitutional Commission, illegal. vol. 1, p. 569].

The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code [G.R. No. 60403, August 3, 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities between workers in the private sector and government employees with regard to the right to strike: exercising governmental functions, but excluding entities entrusted with proprietary functions:

The general rule in the past and up to the present is that 'the terms and conditions .Sec. 11. Prohibition Against Strikes in the Government. — The terms and of employment in the Government, including any political subdivision or conditions of employment in the Government, including any political subdivision instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, or instrumentality thereof, are governed by law and it is declared to be the policy R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as of this Act that employees therein shall not strike for the purpose of securing amended). Since the terms and conditions of government employment are fixed by changes or modification in their terms and conditions of employment. Such law, government workers cannot use the same weapons employed by workers in employees may belong to any labor organization which does not impose the the private sector to secure concessions from their employers. The principle behind obligation to strike or to join in strike: Provided, however, That this section shall labor unionism in private industry is that industrial peace cannot be secured apply only to employees employed in governmental functions and not those through compulsion by law. Relations between private employers and their employed in proprietary functions of the Government including but not limited to employees rest on an essentially voluntary basis. Subject to the minimum governmental corporations. requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the No similar provision is found in the Labor Code, although at one time it recognized the right of process of collective bargaining. In government employment, however, it is the employees of government corporations established under the Corporation Code to organize and bargain legislature and, where properly given delegated power, the administrative heads collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an through collective bargaining agreements. [At p. 13; Emphasis supplied]. injunction may be issued to restrain it.

Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit: of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276]. More It is the stand, therefore, of this Commission that by reason of the nature of the importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over public employer and the peculiar character of the public service, it must unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no necessarily regard the right to strike given to unions in private industry as not jurisdiction over the dispute. applying to public employees and civil service employees. It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction present in private labor relations could not exist in the relations between under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS's complaint for damages and government and those whom they employ. [At pp. 16-17; also quoted in National issuing the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector Labor - Management Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178- Council has not been granted by law authority to issue writs of injunction in labor disputes within its 179]. jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate. E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Thus: Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the .SECTION 13. Terms and conditions of employment or improvements thereof, parties to refer the unresolved controversies emanating from their employer- employee relationship to except those that are fixed by law, may be the subject of negotiations between the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86]. duly recognized employees' organizations and appropriate government authorities. III The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit: In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory .SECTION 16. The Civil Service and labor laws and procedures, whenever injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to applicable, shall be followed in the resolution of complaints, grievances and cases pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, involving government employees. In case any dispute remains unresolved after dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and exhausting all the available remedies under existing laws and procedures, the who are reporting for work pending the resolution of the administrative cases against them are entitled parties may jointly refer the dispute to the [Public Sector Labor- Management] to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Council for appropriate action. Merit Systems Promotion Board.

Government employees may, therefore, through their unions or associations, either petition the The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy Congress for the betterment of the terms and conditions of employment which are within the ambit of is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it legislation or negotiate with the appropriate government agencies for the improvement of those which has already become final. are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for pressure the Govemment to accede to their demands. As now provided under Sec. 4, Rule III of the Rules review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organization, 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminary and Mandatory Injunction" dated which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the December 13,1988 is DENIED. SO ORDERED. government, including any political subdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes thereof."

II

G.R. No. L-23957 March 18, 1967 ROMAN D. ABELLERA, plaintiff-appellee and appellant, vs. THE CITY OF BAGUIO, ET AL., defendants- government with salary at P330.00 a month, but which will not involve the custody of funds and/or appellants and appellee. property. The court did not award any damages, because no bad faith can be attributed to anyone, including the City Treasurer, and also because municipal corporations cannot be held civilly liable for the misfeasance or malfeasance of any of its officers or employees. Both parties appealed to this Court. REYES, J.B.L., J.:

Appellants City of Baguio and its officials assail the correctness of the award of back salaries to petitioner Direct appeal on points of law from a decision of the Court of First Instance of Baguio, in its Case No. from July 10, 1961 to November 10, 1963. It is claimed that since petitioner was found guilty of 1436. negligence by the Civil Service Board of Appeals although the penalty originally imposed by the Commissioner of Civil Service was reduced to only 2 months suspension, his (Abellera's) suspension from For having paid, out of city funds, various treasury warrants and/or checks which turned out to have the service cannot be considered unjustified to entitle him to payment of the salaries during the period been forged, causing loss to the city in the total amount of P8,750.48, Roman D. Abellera, cashier in the in question. It is also contended that such payment of back salaries is discretionary in the proper office of the City Treasurer of Baguio, was charged administratively on January 18, 1960 for "Dishonesty department head, in this case, the Secretary of Finance. On the other hand, petitioner as appellant and Gross Negligence in the Performance of Official Duties (Case No. R-22111). After the lapse of the claims that the lower court erred in not ordering the respondents, particularly the City Treasurer, to pay period of preventive suspension, he was automatically reinstated to the service on May 24, 1960. him damages and in not ordering his reinstatement to the position of cashier in the office of the City Treasurer of Baguio. On June 6, 1961, the Commissioner of Civil Service found him guilty as charged and considered said respondent "resigned effective the date following his last day of duty with prejudice to reinstatement in The rule on payment of back Salaries during the period of suspension of a member of the civil Service positions involving money and/or property responsibility." In view of the foregoing decision, Abellera who is subsequently ordered reinstated, is already settled in this jurisdiction. Such payment of salaries was dismissed on July 10, 1961, and the position of cashier was filled in by one Francisco Rillera. In the corresponding to the period when an employee is not allowed to work may be decreed not only if he is meantime, upon denial by the Commissioner of his motion for new trial, Abellera appealed to the Civil found innocent of the charges which cause his suspension (Sec. 35, Rep. Act 2260), but also when the Service Board of Appeals. suspension is unjustified.2

On January 25, 1963, the Civil Service Board of Appeals modified the ruling of the Commissioner of Civil In the present case, upon receipt of the decision of the Civil Service Commissioner finding petitioner- Service by reducing the penalty imposed on the employee to two months suspension, without pay. appellant guilty, but even before the period to appeal had expired, respondents dismissed the latter Otherwise, the decision of the Commissioner was affirmed in all other respects. After some delay from the service and another one was appointed to replace him. The separation of petitioner before the attending the exchange of communication between the City Treasurer of Baguio and the Civil Service decision of the Civil Service Commissioner had become final was evidently premature. Respondents Commissioner, Abellera was finally allowed to report for work on November 11, 1963. should have realized that the employee still had the right to appeal the Commissioner's decision to the Civil Service Board of Appeals within a specified period, and the possibility of that decision being On January 17, 1963, however, alleging that he has not been reinstated to his former position of cashier, reversed or modified. As it did happen, on such appeal by the petitioner, the penalty imposed by the but was only required to do work other than that of a cashier, and he has not been paid any salary, Commissioner was reduced by the reviewing Board to only 2 months suspension. And yet, by respondents' action, petitioner was deprived of work for more than 2 years. Clearly, Abellera's second including the back salaries due him from July 10, 1961, Abellera filed an action for mandamus in the 3 Court of First Instance of Baguio against the City of Baguio, the City Council, the City Auditor, and the City suspension from office, from July 10, 1961 to November 10, 1963, was unjustified, and the payment of Treasurer, the latter being sued both in his official as well as his personal capacities; seeking for his the salaries corresponding to said period is, consequently, proper. Otherwise, Abellera would, in effect, reinstatement to the position of city cashier with back salaries from July 10, 1961; for moral damages in suffer a suspension longer than that meted him by the Civil Service Board of Appeals.1äwphï1.ñët the sum of P5,000.00; exemplary damages for P5,000.00; attorneys' fees, in the sum of P1,500.00 and 20% of the recoverable salaries, plus costs of the suit. It is also contended by the respondents-appellants that under its charter, the City of Baguio is exempted from liability for damages or injuries caused by the failure of any city officials to enforce any provision of In their answer, respondents contended that petitioner was not reinstated as cashier due to the law or ordinance, or by the negligence of said officials in enforcing or attempting to enforce the same cancellation of his bond; that said cancellation of bond was recommended by the City Treasurer (Sec. 2547, Rev. Adm. Code). But, this is not an instance of "failure" of the city officials to take action or following the ruling in the administrative case, finding petitioner negligent in his duties. It was also "negligence" in the enforcement of the law. The unjustified action of the respondents here is not that it alleged that petitioner was offered the position of Special Deputy1with compensation at P3,960.00 per was the product of negligence, than of haste or overzeal. The exempting provision invoked is not, annum. Respondent City Treasurer further claimed that in refusing to reinstate petitioner to the position therefore, applicable. of cashier, he had in mind only the best interest of the government. The parties thereafter submitted the case for judgment on the pleadings. Respondents-appellants, likewise, cited a 1959 ruling of the Auditor General to support their contention that the payment of back salaries of suspended employees depends upon the discretion of the proper In its decision of June 8, 1964, the lower court declared that the action of the City Treasurer in not giving department head. It may be pointed out that the aforecited ruling, part of which was quoted in petitioner the work of a cashier was justified by the decision of the Civil Service Board of Appeals, appellants' brief (pp. 13-14) was referring to the authority of the Civil Service Commissioner to suspend reducing merely the penalty by providing a 2 months suspension, but otherwise affirming the decision of employees pursuant to Section 695 of the Revised Administrative Code. The ruling, therefore, must have the Commissioner of Civil Service in all other respects. But the respondents were ordered to pay been based on Section 269 of the same Code which provides that when the chief of a bureau or office Abellera's salary from the date of his suspension on July 10, 1961 until November 10, 1963, deducting suspends a subordinate official or employ, the person suspended shall not receive pay during the therefrom the two-months' pay corresponding to the penalty imposed by the Civil Service Board of suspension, unless so ordered by the department head. These provisions of the Revised Administrative Appeals. Respondents were also directed to reinstate him to a position in the service of the city Code, however, are deemed to have been superseded by Republic Act 2260 (Revised Civil Service Act), which contained provisions on discipline of government officials and employees (Chapter VII), and on preventive suspension (Sec. 35). And, under this later legislation, the authorization of the department head is no longer necessary before back salaries may be paid.

Coming to the petitioner-appellant's assignment of error, we have to sustain the ruling of the lower court. Considering that there is no question that by petitioner's act, which was found even by the Civil Service Board of Appeals to be negligent, the city lost the amount of P8,750.48, his dismissal by the respondent city officials cannot entirely be attributed to malice or bad faith. In the absence of positive showing to the contrary, we have to accept respondents' explanation that the action complained of was prompted by their belief that it was being done for the best interest of the city government.

In view of the foregoing considerations, the decision appealed from is hereby affirmed, with costs against respondents-appellants. So ordered.