ARTICLE VII which was the death of 15 soldiers in a skirmish with the Abu

Sayyaf Group in Patikul, Sulu on 29 August 2016;

Section 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of
the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
WHEREAS, on the night of 2 September 2016, at least 14 people
were killed and 67 others were seriously injured in a bombing
incident in a night market in Davao City, perpetrated by still
unidentified lawless elements;
WHEREAS, the foregoing acts of violence exhibit the audacity and
propensity of these armed lawless groups to defy the rule of law, sow
anarchy, and sabotage the government’s economic development and
peace efforts;
WHEREAS, based on government intelligence reports, there exist
credible threats of further terror attacks and other similar acts of
violence by lawless elements in other parts of the country, including the
metropolitan areas;
WHEREAS, under Section 18, Article VII of the Constitution, the
President, as the Commander-in-Chief of all armed forces of the
Philippines, may call out such armed forces whenever it becomes
necessary to prevent or suppress lawless violence.

The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ of habeas
corpus.
The suspension of the privilege of the writ of habeas corpus shall
apply only to persons judicially charged for rebellion or offenses
inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any
person thus arrested or detained shall be judicially charged within
three days, otherwise he shall be released.
NOW THEREFORE, I, RODRIGO ROA DUTERTE, President of
the Republic of the Philippines, by virtue of the powers vested upon me
by Section 18, Article VII of the Philippine Constitution, do hereby
proclaim a state of national emergency on account of lawless violence,
and hereby command the Armed Forces of the Philippines and the
Philippine National Police to undertake such measures as may be
permitted by the Constitution and existing laws to suppress any and
all forms of lawless violence in Mindanao and to prevent such
lawless violence from spreading and escalating elsewhere in the
Philippines, with due regard to the fundamental civil and political
rights of our citizens.
This proclamation of a state of national emergency on account of
lawless violence shall remain in force and effect until lifted or
withdrawn by the President.
4 September 2016.
(Sgd.) President Rodrigo Roa Duterte

PROCLAMATION NO. 55
By the President:
DECLARING A STATE OF NATIONAL EMERGENCY
ON ACCOUNT OF LAWLESS VIOLENCE IN MINDANAO (Sgd.) SALVADOR C. MEDIALDEA
Executive Secretary
WHEREAS, Mindanao has had a long and complex history of lawless
violence perpetrated by private armies and local warlords, bandits and
criminal syndicates, terrorist groups, and religious extremists;
Are members of Abu Sayaf Group considered rebels?
WHEREAS, in recent months, there has been a spate of violent and
lawless acts across many parts of Mindanao, including abductions,
hostage-takings and murder of innocent civilians, bombing of power
transmission facilities, highway robberies and extortions, attacks on
military outposts, assassinations of media people and mass jailbreaks;

WHEREAS, the valiant efforts of our police and armed forced to quell
this armed lawlessness have been met with stiff resistance, resulting in
several casualties on the part of government forces, the most recent of
 LIM V COMELEC
FACTS:
On September 12, 2007, the Sandiganbayan convicted former
President Estrada, a former President of the Republic of the
Philippines, for the crime of plunder.On the other hand, for failure
of the prosecution to prove and establish their guilt beyond
reasonable doubt, the Court finds the accused Jose "Jinggoy"
Estrada and Atty. Edward S. Serapio NOT GUILTY of the crime
of plunder, and accordingly, the Court hereby orders their
ACQUITTAL.
The penalty imposable for the crime of plunder under Republic
Act No. 7080, as amended by Republic Act No. 7659, is
Reclusion Perpetua to Death. There being no aggravating or
mitigating circumstances, however, the lesser penalty shall be
applied in accordance with Article 63 of the Revised Penal Code.
Accordingly, the accused Former President Joseph Ejercito
Estrada is hereby sentenced to suffer the penalty of
Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute
disqualification.
The period within which accused Former President Joseph
Ejercito Estrada has been under detention shall be credited to
him in full as long as he agrees voluntarily in writing to abide by
the same disciplinary rules imposed upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No.
7080, as amended by Republic Act No. 7659, the Court hereby
declares the forfeiture in favor of the government of the
following:
(1) The total amount of (P545,291,000.00), with interest and
income earned, inclusive of the amount of Two Hundred Million
Pesos (P200,000,000.00), deposited in the name and account of
the Erap Muslim Youth Foundation.
(2) The amount of (P189,000,000.00), inclusive of interests and
income earned, deposited in the Jose Velarde account.
(3) The real property consisting of a house and lot dubbed as
"Boracay Mansion" located at #100 11th Street, New Manila,
Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada and
Atty. Edward S. Serapio are hereby ordered cancelled and
released to the said accused or their duly authorized
representatives upon presentation of the original receipt
evidencing payment thereof and subject to the usual
accounting and auditing procedures. Likewise, the hold-
departure orders issued against the said accused are hereby
recalled and declared functus oficio.
On October 25, 2007, however, former President Arroyo)
extended executive clemency, by way of pardon, to former
President Estrada.
On November 30, 2009, former President Estrada filed a
Certificate of Candidacy7 for the position of President.
During that time, his candidacy earned three oppositions in the
COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due
Course and Cancel Certificate of Candidacy" filed by Rev. Elly
Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a
petition for "Disqualification as Presidential Candidate" filed by
Evilio C. Pormento (Pormento); and (3) SPA No. 09-104 (DC), a
"Petition to Disqualify Estrada Ejercito, Joseph M.from Running
as President due to Constitutional Disqualification and
Creating Confusion to the Prejudice of Estrada, Mary Lou B" filed
by Mary Lou Estrada. In separate Resolutions8 dated January
20, 2010 by the COMELEC, Second Division, however, all three
petitions were effectively dismissed on the uniform grounds that
(i) the Constitutional proscription on reelection applies to a sitting
president; and (ii) the pardon granted to former President
Estrada by former President Arroyo restored the former’s right to
vote and be voted for a public office. The subsequent motions for
reconsideration thereto were denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized elections,
however, former President Estrada only managed to garner
the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento sought
recourse to this Court and filed a petition for certiorari, which was
docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento
v. Joseph ‘ERAP’ Ejercito Estrada and Commission on
Elections." But in a Resolution9 dated August 31, 2010, the Court
dismissed the aforementioned petition on the ground of
mootness considering that former President Estrada lost his
presidential bid.
On October 2, 2012, former President Estrada once more
ventured into the political arena, and filed a Certificate of
Candidacy,10 this time vying for a local elective post, that
ofthe Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case,
filed a Petition for Disqualification against former President
Estrada before the COMELEC. The petition was docketed as
SPA No. 13-211 (DC). Risos Vidal anchored her petition on
the theory that "[Former President Estrada] is Disqualified
to Run for Public Office because of his Conviction for
Plunder by the Sandiganbayan. She relied on Section 40 of the
Local Government Code (LGC), in relation to Section 12 of the
Omnibus Election Code (OEC), which state respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons are
disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year
or more of imprisonment, within two (2) years after serving
sentence;
(b) Those removed from office as a result of an administrative
case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or
abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
(g) The insane or feeble minded. (Emphasis supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been
declared by competent authority insane or incompetent, or has
been sentenced by final judgment for subversion,
insurrection, rebellion, or for any offense for which he has
been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any public office, unless he has
been given plenary pardon or granted amnesty. (Emphases
supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second
Division, dismissed the petition for disqualification, the fallo of
which reads:
WHEREFORE, premises considered, the instant petition is
hereby DISMISSED for utter lack of merit.
Moreso, [Risos-Vidal] failed to present cogent proof
sufficient to reverse the standing pronouncement of this
Commission declaring categorically that [former President
Estrada’s] right to seek public office has been effectively
restored by the pardon vested upon him by former
President Gloria M. Arroyo. Since this Commission has already
spoken, it will no longer engage in disquisitions of a settled
matter lest indulged in wastage of government resources."13
On May 13, 2013, the elections were conducted as scheduled
and former President Estrada was voted into office with
349,770 votes cast in his favor. The next day, the local board
of canvassers proclaimed him as the duly elected Mayor of the
City of Manila.
Lim subscribed to Risos-Vidal’s theory that former
President Estrada is disqualified to run for and hold public
office as the pardon granted to the latter failed to expressly
remit his perpetual disqualification. Further, given that former
President Estrada is disqualified to run for and hold public office,
all the votes obtained by the latter should be declared stray, and,
being the second placer with 313,764 votes to his name, he
(Lim) should be declared the rightful winning candidate for the
position of Mayor of the City of Manila.
The Issue
Whether or not the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction in ruling that
former President Estrada is qualified to vote and be voted for in
public office as a result of the pardon granted to him by former
President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing
out that the pardon granted to former President Estrada was
conditional as evidenced by the latter’s express acceptance
thereof. The "acceptance," she claims, is an indication of the
conditional nature of the pardon, with the condition being
embodied in the third Whereas Clause of the pardon, i.e.,
"WHEREAS, Joseph Ejercito Estrada has publicly committed to
no longer seek any elective position or office." She explains that
the aforementioned commitment was what impelled former
President Arroyo to pardon former President Estrada, without it,
the clemency would not have been extended. And any breach
thereof, that is, when former President Estrada filed his
Certificate of Candidacy for President and Mayor of the City of
Manila, he breached the condition of the pardon; hence, "he
ought to be recommitted to prison to serve the unexpired portion
of his sentence x x x and disqualifies him as a candidate for the
mayoralty [position] of Manila."16
Nonetheless, Risos-Vidal clarifies that the fundamental basis
upon which former President Estrada mustbe disqualified from
running for and holding public elective office is actually the
proscription found in Section 40 of the LGC, in relation to Section
12 ofthe OEC. She argues that the crime of plunder is both an
offense punishable by imprisonment of one year or more and
involving moral turpitude; such that former President Estrada
must be disqualified to run for and hold public elective office.
Even with the pardon granted to former President Estrada,
however, Risos-Vidal insists that the same did not operate to
make available to former President Estrada the exception
provided under Section 12 of the OEC, the pardon being merely
conditional and not absolute or plenary. Moreover, Risos-Vidal
puts a premium on the ostensible requirements provided under
Articles 36 and 41 of the Revised Penal Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the terms
of the pardon.
A pardon shall in no case exempt the culprit from the payment of
the civil indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their
accessory penalties.– The penalties of reclusion perpetua and
reclusion temporal shall carry with them that of civil interdiction
for life or during the period of the sentence as the case may be,
and that of perpetual absolute disqualification which the offender
shall suffer even though pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the
pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not
enough that a pardon makes a general statement that such
pardon carries with it the restoration of civil and political rights.
By virtue of Articles 36 and 41, a pardon restoring civil and
political rights without categorically making mention what specific
civil and political rights are restored "shall not work to restore the
right to hold public office, or the right of suffrage; nor shall it remit
the accessory penalties of civil interdiction and perpetual
absolute disqualification for the principal penalties of reclusion
perpetua and reclusion temporal."17 In other words, she
considers the above constraints as mandatory requirements that
shun a general or implied restoration of civil and political rights in
pardons.
Risos-Vidal cites the concurring opinions of Associate Justices
Teodoro R. Padilla and Florentino P. Feliciano in Monsanto v.
Factoran, Jr.18 to endorse her position that "[t]he restoration of
the right to hold public office to one who has lost such right by
reason of conviction in a criminal case, but subsequently
pardoned, cannot be left to inference, no matter how intensely
arguable, but must be statedin express, explicit, positive and
specific language."
Applying Monsantoto former President Estrada’s case, Risos-
Vidal reckons that "such express restoration is further demanded
by the existence of the condition in the [third] [W]hereas [C]lause
of the pardon x x x indubitably indicating that the privilege to hold
public office was not restored to him."19
On the other hand, the Office ofthe Solicitor General (OSG) for
public respondent COMELEC, maintains that "the issue of
whether or not the pardon extended to [former President
Estrada] restored his right to run for public office had already
been passed upon by public respondent COMELEC way back in
2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-104,
there is no cogent reason for it to reverse its standing
pronouncement and declare [former President Estrada]
disqualified to run and be voted as mayor of the City of Manila in
the absence of any new argument that would warrant its
reversal. To be sure, public respondent COMELEC correctly
exercised its discretion in taking judicial cognizance of the
aforesaid rulings which are known toit and which can be verified
from its own records, in accordance with Section 2, Rule 129 of
the Rules of Court on the courts’ discretionary power to take
judicial notice of matters which are of public knowledge, orare
capable of unquestionable demonstration, or ought to be known
to them because of their judicial functions."20
Further, the OSG contends that "[w]hile at first glance, it is
apparent that [former President Estrada’s] conviction for plunder
disqualifies him from running as mayor of Manila under Section
40 of the [LGC], the subsequent grant of pardon to him, however,
effectively restored his right to run for any public office." 21 The
restoration of his right to run for any public office is the exception
to the prohibition under Section 40 of the LGC, as provided
under Section 12 of the OEC. As to the seeming requirement of
Articles 36 and 41 of the Revised Penal Code, i.e., the express
restoration/remission of a particular right to be stated in the
pardon, the OSG asserts that "an airtight and rigid interpretation
of Article 36 and Article 41 of the [RPC] x x x would be stretching
too much the clear and plain meaning of the aforesaid
provisions."22 Lastly, taking into consideration the third Whereas
Clause of the pardon granted to former President Estrada, the
OSG supports the position that it "is not an integral part of the
decree of the pardon and cannot therefore serve to restrict its
effectivity."23
Thus, the OSG concludes that the "COMELEC did not commit
grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Resolutions."24
For his part, former President Estrada presents the following
significant arguments to defend his stay in office: that "the factual
findings of public respondent COMELEC, the Constitutional body
mandated to administer and enforce all laws relative to the
conduct of the elections, [relative to the absoluteness of the
pardon, the effects thereof, and the eligibility of former President
Estrada to seek public elective office] are binding [and
conclusive] on this Honorable Supreme Court;" that he "was
granted an absolute pardon and thereby restored to his full civil
and political rights, including the right to seek public elective
office such as the mayoral (sic) position in the City of Manila;"
that "the majority decision in the case of Salvacion A. Monsanto
v. Fulgencio S. Factoran, Jr.,which was erroneously cited by both
Vidal and Lim as authority for their respective claims, x x x reveal
that there was no discussion whatsoever in the ratio decidendi of
the Monsanto case as to the alleged necessity for an expressed
restoration of the ‘right to hold public office in the pardon’ as a
legal prerequisite to remove the subject perpetual special
disqualification;" that moreover, the "principal question raised in
this Monsanto case is whether or not a public officer, who has
been granted an absolute pardon by the Chief Executive, is
entitled to reinstatement toher former position without need of a
new appointment;" that his "expressed acceptance [of the
pardon] is not proof that the pardon extended to [him] is
conditional and not absolute;" that this case is a mere rehash of
the casesfiled against him during his candidacy for President
back in 2009-2010; that Articles 36 and 41 of the Revised Penal
Code "cannot abridge or diminish the pardoning power of the
President expressly granted by the Constitution;" that the text of
the pardon granted to him substantially, if not fully, complied with
the requirement posed by Article 36 of the Revised Penal Code
as it was categorically stated in the said document that he was
"restored to his civil and political rights;" that since pardon is an
act of grace, it must be construed favorably in favor of the
grantee;25 and that his disqualification will result in massive
disenfranchisement of the hundreds of thousands of Manileños
who voted for him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that
fully restored allhis civil and political rights, which naturally
includes the right to seek public elective office, the focal point of
this controversy. The wording of the pardon extended to former
President Estrada is complete, unambiguous, and unqualified. It
is likewise unfettered by Articles 36 and 41 of the Revised Penal
Code. The only reasonable, objective, and constitutional
interpretation of the language of the pardon is that the same in
fact conforms to Articles 36 and 41 of the Revised Penal Code.
Recall that the petition for disqualification filed by Risos-Vidal
against former President Estrada, docketed as SPA No. 13-211
(DC), was anchored on Section 40 of the LGC, in relation to
Section 12 of the OEC, that is, having been convicted of a crime
punishable by imprisonment of one year or more, and involving
moral turpitude, former President Estrada must be disqualified to
run for and hold public elective office notwithstanding the fact
that he is a grantee of a pardon that includes a statement
expressing "[h]e is hereby restored to his civil and political
rights." Risos-Vidal theorizes that former President Estrada is
disqualified from running for Mayor of Manila inthe May 13, 2013
Elections, and remains disqualified to hold any local elective post
despite the presidential pardon extended to him in 2007 by
former President Arroyo for the reason that it (pardon) did not
expressly provide for the remission of the penalty of perpetual
absolute disqualification, particularly the restoration of his
(former President Estrada) right to vote and bevoted upon for
public office. She invokes Articles 36 and 41 of the Revised
Penal Code as the foundations of her theory.
It is insisted that, since a textual examination of the pardon given
to and accepted by former President Estrada does not actually
specify which political right is restored, it could be inferred that
former President Arroyo did not deliberately intend to restore
former President Estrada’s rights of suffrage and to hold public
office, orto otherwise remit the penalty of perpetual absolute
disqualification. Even if her intention was the contrary, the same
cannot be upheld based on the pardon’s text.
The pardoning power of the President cannot be limited by
legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and
Section 5 of Article IX-C, provides that the President of the
Philippines possesses the power to grant pardons, along with
other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and regulations
shall be granted by the President without the favorable
recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that the
only instances in which the President may not extend pardon
remain to be in: (1) impeachment cases; (2) cases that have not
yet resulted in a final conviction; and (3) cases involving
violations of election laws, rules and regulations in which there
was no favorable recommendation coming from the COMELEC.
Therefore, it can be argued that any act of Congress by way of
statute cannot operate to delimit the pardoning power of the
President.
In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were
decided under the 1935 Constitution,wherein the provision
granting pardoning power to the President shared similar
phraseology with what is found in the present 1987 Constitution,
the Court then unequivocally declared that "subject to the
limitations imposed by the Constitution, the pardoning power
cannot be restricted or controlled by legislative action." The
Court reiterated this pronouncement in Monsanto v. Factoran,
Jr.29 thereby establishing that, under the present Constitution, "a
pardon, being a presidential prerogative, should not be
circumscribed by legislative action." Thus, it is unmistakably the
long-standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be
interfered with by Congress or the Court, except only when it
exceeds the limits provided for by the Constitution.
This doctrine of non-diminution or non-impairment of the
President’s power of pardon by acts of Congress, specifically
through legislation, was strongly adhered to by an overwhelming
majority of the framers of the 1987 Constitution when they flatly
rejected a proposal to carve out an exception from the pardoning
power of the President in the form of "offenses involving graft
and corruption" that would be enumerated and defined by
Congress through the enactment of a law. The following is the
pertinent portion lifted from the Record of the Commission (Vol.
II):
MR. ROMULO. I ask that Commissioner Tan be recognized to
introduce an amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations of
corrupt practices laws may be limited by legislation.
I suggest that this be deleted on the grounds that, first, violations
of corrupt practices may include a very little offense like
stealing P10; second, which I think is more important, I get the
impression, rightly or wrongly, that subconsciously we are
drafting a constitution on the premise that all our future
Presidents will bebad and dishonest and, consequently, their
acts will be lacking in wisdom. Therefore, this Article seems to
contribute towards the creation of an anti-President Constitution
or a President with vast responsibilities but no corresponding
power except to declare martial law. Therefore, I request that
these lines be deleted.
MR. REGALADO. Madam President,may the Committee react to
that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of
Commissioner Davide because of the fact that similar to the
provisions on the Commission on Elections, the recommendation
of that Commission is required before executive clemency
isgranted because violations of the election laws go into the very
political life of the country.
With respect to violations of our Corrupt Practices Law, we felt
that it is also necessary to have that subjected to the same
condition because violation of our Corrupt Practices Law may be
of such magnitude as to affect the very economic systemof the
country. Nevertheless, as a compromise, we provided here that it
will be the Congress that will provide for the classification as to
which convictions will still require prior recommendation; after all,
the Congress could take into account whether or not the violation
of the Corrupt Practices Law is of such magnitude as to affect
the economic life of the country, if it is in the millions or billions of
dollars. But I assume the Congress in its collective wisdom will
exclude those petty crimes of corruption as not to require any
further stricture on the exercise of executive clemency because,
of course, there is a whale of a difference if we consider a lowly
clerk committing malversation of government property or funds
involving one hundred pesos. But then, we also anticipate the
possibility that the corrupt practice of a public officer is of such
magnitude as to have virtually drained a substantial portion of
the treasury, and then he goes through all the judicial processes
and later on, a President who may have close connections with
him or out of improvident compassion may grant clemency under
such conditions. That is why we left it to Congress to provide and
make a classification based on substantial distinctions between a
minor act of corruption or an act of substantial proportions. SR.
TAN. So, why do we not just insert the word GROSS or GRAVE
before the word "violations"?
MR. REGALADO. We feel that Congress can make a better
distinction because "GRAVE" or "GROSS" can be misconstrued
by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed
amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is
essentially an executive power, and that is precisely why it is
called executive clemency. In this sentence, which the
amendment seeks to delete, an exception is being made.
Congress, which is the legislative arm, is allowed to intrude into
this prerogative of the executive. Then it limits the power of
Congress to subtract from this prerogative of the President to
grant executive clemency by limiting the power of Congress to
only corrupt practices laws. There are many other crimes more
serious than these. Under this amendment, Congress cannot
limit the power of executive clemency in cases of drug addiction
and drug pushing which are very, very serious crimes that can
endanger the State; also, rape with murder, kidnapping and
treason. Aside from the fact that it is a derogation of the power of
the President to grant executive clemency, it is also defective in
that it singles out just one kind of crime. There are far more
serious crimes which are not included.
MR. REGALADO. I will just make one observation on that. We
admit that the pardoning power is anexecutive power. But even
in the provisions on the COMELEC, one will notice that
constitutionally, it is required that there be a favorable
recommendation by the Commission on Elections for any
violation of election laws.
At any rate, Commissioner Davide, as the principal proponent of
that and as a member of the Committee, has explained in the
committee meetings we had why he sought the inclusion of this
particular provision. May we call on Commissioner Davide to
state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the proposal.
We have just approved the Article on Accountability of Public
Officers. Under it, it is mandated that a public office is a public
trust, and all government officers are under obligation to observe
the utmost of responsibility, integrity, loyalty and efficiency, to
lead modest lives and to act with patriotism and justice.
In all cases, therefore, which would go into the verycore of the
concept that a public office is a public trust, the violation is itself
a violation not only of the economy but the moral fabric of public
officials. And that is the reason we now want that if there is any
conviction for the violation of the Anti-Graft and Corrupt Practices
Act, which, in effect, is a violation of the public trust character of
the public office, no pardon shall be extended to the offender,
unless some limitations are imposed.
Originally, my limitation was, it should be with the concurrence of
the convicting court, but the Committee left it entirely to the
legislature to formulate the mechanics at trying, probably, to
distinguish between grave and less grave or serious cases of
violation of the Anti-Graft and Corrupt Practices Act. Perhaps this
is now the best time, since we have strengthened the Article on
Accountability of Public Officers, to accompany it with a mandate
that the President’s right to grant executive clemency for
offenders or violators of laws relating to the concept of a public
office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the
amendment by deletion.
Madam President, over and over again, we have been saying
and arguing before this Constitutional Commission that we are
emasculating the powers of the presidency, and this provision to
me is another clear example of that. So, I speak against this
provision. Even the 1935 and the 1973 Constitutions do not
provide for this kind of provision.
I am supporting the amendment by deletion of Commissioner
Tan.
MR. ROMULO. Commissioner Tingson would like to be
recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the
amendment by deletion because I am in sympathy with the stand
of Commissioner Francisco "Soc" Rodrigo. I do believe and we
should remember that above all the elected or appointed officers
of our Republic, the leader is the President. I believe that the
country will be as the President is, and if we systematically
emasculate the power of this presidency, the time may come
whenhe will be also handcuffed that he will no longer be able to
act like he should be acting.
So, Madam President, I am in favor of the deletion of this
particular line.
MR. ROMULO. Commissioner Colayco would like to be
recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to recommend
the approval of proposals, but now I find that the proposal of
Commissioner Tan is worthy of approval of this body.
Why are we singling out this particular offense? There are other
crimes which cast a bigger blot on the moral character of the
public officials.
Finally, this body should not be the first one to limit the almost
absolute power of our Chief Executive in deciding whether to
pardon, to reprieve or to commute the sentence rendered by the
court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be
recognized, and after him will be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The
Sandiganbayan has been called the Anti-Graft Court, so if this is
allowed to stay, it would mean that the President’s power togrant
pardon or reprieve will be limited to the cases decided by the
Anti-Graft Court, when as already stated, there are many
provisions inthe Revised Penal Code that penalize more serious
offenses.
Moreover, when there is a judgment of conviction and the case
merits the consideration of the exercise of executive clemency,
usually under Article V of the Revised Penal Code the judge will
recommend such exercise of clemency. And so, I am in favor of
the amendment proposed by Commissioner Tan for the deletion
of this last sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will
again chip more powers from the President. In case of other
criminals convicted in our society, we extend probation to them
while in this case, they have already been convicted and we offer
mercy. The only way we can offer mercy to them is through this
executive clemency extended to them by the President. If we still
close this avenue to them, they would be prejudiced even worse
than the murderers and the more vicious killers in our society. I
do not think they deserve this opprobrium and punishment under
the new Constitution.
I am in favor of the proposed amendment of Commissioner Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers to
submit this to the floor and also because of the objection of the
main proponent, Commissioner Davide. So we feel that the
Commissioners should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed
amendment of Commissioner Tan to delete the last sentence of
Section 17 appearing on lines 7, 8 and 9, please raise their
hand. (Several Members raised their hand.)
As many as are against, please raise their hand. (Few Members
raised their hand.)
The results show 34 votes in favor and 4 votes against; the
amendment is approved.30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36
and 41 of the Revised Penal Code cannot, in any way, serve to
abridge or diminish the exclusive power and prerogative of the
President to pardon persons convicted of violating penal
statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation that
the said Articles contain specific textual commands which must
be strictly followed in order to free the beneficiary of presidential
grace from the disqualifications specifically prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the terms
of the pardon.
A pardon shall in no case exempt the culprit from the payment of
the civil indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their
accessory penalties.– The penalties of reclusion perpetua and
reclusion temporal shall carry with them that of civil interdiction
for life or during the period of the sentence as the case may be,
and that of perpetual absolute disqualification which the offender
shall suffer even though pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the
pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as
proposed by Risos-Vidal, is unwarranted, especially so if it will
defeat or unduly restrict the power of the President to grant
executive clemency.
It is well-entrenched in this jurisdiction that where the words of a
statute are clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation.
Verba legis non est recedendum. From the words of a statute
there should be no departure.31 It is this Court’s firm view that the
phrase in the presidential pardon at issue which declares that
former President Estrada "is hereby restored to his civil and
political rights" substantially complies with the requirement of
express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos
Vidal that there was no express remission and/or restoration of
the rights of suffrage and/or to hold public office in the pardon
granted to former President Estrada, as required by Articles 36
and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned
codal provisions must be followed by the President, as they do
not abridge or diminish the President’s power to extend
clemency. He opines that they do not reduce the coverage of the
President’s pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or
form. They only provide a procedural prescription. They are not
concerned with areas where or the instances when the President
may grant pardon; they are only concerned with how he or she is
to exercise such power so that no other governmental
instrumentality needs to intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President
wishes to include in the pardon the restoration of the rights of
suffrage and to hold public office, or the remission of the
accessory penalty of perpetual absolute disqualification,he or
she should do so expressly. Articles 36 and 41 only ask that the
President state his or her intentions clearly, directly, firmly,
precisely, and unmistakably. To belabor the point, the President
retains the power to make such restoration or remission, subject
to a prescription on the manner by which he or she is to state it.32
With due respect, I disagree with the overbroad statement that
Congress may dictate as to how the President may exercise
his/her power of executive clemency. The form or manner by
which the President, or Congress for that matter, should exercise
their respective Constitutional powers or prerogatives cannot be
interfered with unless it is so provided in the Constitution. This is
the essence of the principle of separation of powers deeply
ingrained in our system of government which "ordains that each
of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own
constitutionally allocated sphere."33Moreso, this fundamental
principle must be observed if noncompliance with the form
imposed by one branch on a co-equal and coordinate branch will
result into the diminution of an exclusive Constitutional
prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code
should be construed in a way that will give full effect to the
executive clemency granted by the President, instead of
indulging in an overly strict interpretation that may serve to
impair or diminish the import of the pardon which emanated from
the Office of the President and duly signed by the Chief
Executive himself/herself. The said codal provisions must be
construed to harmonize the power of Congress to define crimes
and prescribe the penalties for such crimes and the power of the
President to grant executive clemency. All that the said
provisions impart is that the pardon of the principal penalty does
notcarry with it the remission of the accessory penalties unless
the President expressly includes said accessory penalties in the
pardon. It still recognizes the Presidential prerogative to grant
executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or to
pardon both. Thus, Articles 36 and 41 only clarify the effect of the
pardon so decided upon by the President on the penalties
imposedin accordance with law.
A close scrutiny of the text of the pardon extended to former
President Estrada shows that both the principal penalty of
reclusion perpetua and its accessory penalties are included in
the pardon. The first sentence refers to the executive clemency
extended to former President Estrada who was convicted by the
Sandiganbayan of plunder and imposed a penalty of reclusion
perpetua. The latter is the principal penalty pardoned which
relieved him of imprisonment. The sentence that followed, which
states that "(h)e is hereby restored to his civil and political
rights," expressly remitted the accessory penalties that attached
to the principal penalty of reclusion perpetua. Hence, even if we
apply Articles 36 and 41 of the Revised Penal Code, it is
indubitable from the textof the pardon that the accessory
penalties of civil interdiction and perpetual absolute
disqualification were expressly remitted together with the
principal penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is
recognized by law as falling under the whole gamut of civil and
political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the
"Citizenship Retention and Reacquisition Act of 2003," reads as
follows:
Section 5. Civil and Political Rights and Liabilities.– Those who
retain or reacquire Philippine citizenship under this Act shall
enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the
Philippines and the following conditions: (1) Those intending to
exercise their right of suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189,
otherwise known as "The Overseas Absentee Voting Act of
2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall
meet the qualifications for holding such public office as required
by the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and
swear an oath of allegiance to the Republic of the Philippines
and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to
the country where they took that oath; (4) Those intending to
practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such
practice; and
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended to,
those who:
(a) are candidates for or are occupying any public office in the
country of which theyare naturalized citizens; and/or
(b) are in active service as commissioned or non commissioned
officers in the armed forces of the country which they are
naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and Political
Rights, to which the Philippines is a signatory, acknowledges the
existence of said right. Article 25(b) of the Convention states:
Article 25
Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in Article 2 and without
unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections which
shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the
electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on Elections, 35 the
Court unequivocally referred to the right to seek public elective
office as a political right, to wit:
Stated differently, it is an additional qualification for elective office
specific only to Filipino citizens who re-acquire their citizenship
under Section 3 of R.A. No. 9225. It is the operative act that
restores their right to run for public office. The petitioner’s failure
to comply there with in accordance with the exact tenor of the
law, rendered ineffectual the Declaration of Renunciation of
Australian Citizenship she executed on September 18, 2006. As
such, she is yet to regain her political right to seek elective office.
Unless she executes a sworn renunciation of her Australian
citizenship, she is ineligible to run for and hold any elective office
in the Philippines. (Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public
elective office is unequivocally considered as a political right.
Hence, the Court reiterates its earlier statement that the pardon
granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the
pardon granted tohim, he regained his FULL civil and political
rights – including the right to seek elective office.
On the other hand, the theory of Risos-Vidal goes beyond the
plain meaning of said penal provisions; and prescribes a formal
requirement that is not only unnecessary but, if insisted upon,
could be in derogation of the constitutional prohibition relative to
the principle that the exercise of presidential pardon cannot be
affected by legislative action.
Risos-Vidal relied heavily on the separate concurring opinions in
Monsanto v. Factoran, Jr.36 to justify her argument that an
absolute pardon must expressly state that the right to hold public
office has been restored, and that the penalty of perpetual
absolute disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the
learned views of Justices Teodoro R. Padilla and Florentino P.
Feliciano are to be respected, they do not form partof the
controlling doctrine nor to be considered part of the law of the
land. On the contrary, a careful reading of the majority opinion in
Monsanto, penned by no less than Chief Justice Marcelo B.
Fernan, reveals no statement that denotes adherence to a
stringent and overly nuanced application of Articles 36 and 41 of
the Revised Penal Code that will in effect require the President
to use a statutorily prescribed language in extending executive
clemency, even if the intent of the President can otherwise be
deduced from the text or words used in the pardon. Furthermore,
as explained above, the pardon here is consistent with, and not
contrary to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section
40 of the LGC in relation to Section 12 of the OEC was removed
by his acceptance of the absolute pardon granted to him.
Section 40 of the LGC identifies who are disqualified from
running for any elective local position. Risos-Vidal argues that
former President Estrada is disqualified under item (a), to wit:
(a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving
sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar prohibitions,
but it provides for an exception, to wit:
Section 12. Disqualifications. – x x x unless he has been given
plenary pardon or granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President
Estrada’s conviction for plunder disqualifies him from running for
the elective local position of Mayor of the City of Manila under
Section 40(a) of the LGC. However, the subsequent absolute
pardon granted to former President Estrada effectively restored
his right to seek public elective office. This is made possible by
reading Section 40(a) of the LGC in relation to Section 12 of the
OEC.
While it may be apparent that the proscription in Section 40(a) of
the LGC is worded in absolute terms, Section 12 of the OEC
provides a legal escape from the prohibition – a plenary pardon
or amnesty. In other words, the latter provision allows any person
who has been granted plenary pardon or amnesty after
conviction by final judgment of an offense involving moral
turpitude, inter alia, to run for and hold any public office, whether
local or national position.
Take notice that the applicability of Section 12 of the OEC to
candidates running for local elective positions is not
unprecedented. In Jalosjos, Jr. v. Commission on Elections, 37 the
Court acknowledged the aforementioned provision as one of the
legal remedies that may be availed of to disqualify a candidate in
a local election filed any day after the last day for filing of
certificates of candidacy, but not later than the date of
proclamation.38 The pertinent ruling in the Jalosjos case is
quoted as follows:
What is indisputably clear is that false material representation of
Jalosjos is a ground for a petition under Section 78. However,
since the false material representation arises from a crime
penalized by prision mayor, a petition under Section 12 ofthe
Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a choice
whether to anchor his petition on Section 12 or Section 78 of the
Omnibus Election Code, or on Section 40 of the Local
Government Code. The law expressly provides multiple
remedies and the choice of which remedy to adopt belongs to
petitioner.39 (Emphasis supplied.)
The third preambular clause of the pardon did not operate to
make the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause
of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or
office," neither makes the pardon conditional, nor militate against
the conclusion that former President Estrada’s rights to suffrage
and to seek public elective office have been restored.
This is especially true as the pardon itself does not explicitly
impose a condition or limitation, considering the unqualified use
of the term "civil and political rights"as being restored.
Jurisprudence educates that a preamble is not an essential part
of an act as it is an introductory or preparatory clause that
explains the reasons for the enactment, usually introduced by
the word "whereas."40 Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the
operative language of the statute.41 In this case, the whereas
clause at issue is not an integral part of the decree of the pardon,
and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent upon the
fulfilment of the aforementioned commitment nor to limit the
scope of the pardon.
On this matter, the Court quotes with approval a relevant excerpt
of COMELEC Commissioner Maria Gracia Padaca’s separate
concurring opinion in the assailed April 1, 2013 Resolution of the
COMELEC in SPA No. 13-211 (DC), which captured the essence
of the legal effect of preambular paragraphs/whereas clauses,
viz:
The present dispute does not raise anything which the 20
January 2010 Resolution did not conclude upon. Here, Petitioner
Risos-Vidal raised the same argument with respect to the 3rd
"whereas clause" or preambular paragraph of the decree of
pardon. It states that "Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office." On
this contention, the undersigned reiterates the ruling of the
Commission that the 3rd preambular paragraph does not have
any legal or binding effect on the absolute nature of the pardon
extended by former President Arroyo to herein Respondent. This
ruling is consistent with the traditional and customary usage of
preambular paragraphs. In the case of Echegaray v. Secretary of
Justice, the Supreme Court ruled on the legal effect of
preambular paragraphs or whereas clauses on statutes. The
Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is
merely an introduction to show its intent or purposes. It cannot
be the origin of rights and obligations. Where the meaning of a
statute is clear and unambiguous, the preamble can neither
expand nor restrict its operation much less prevail over its text.
If former President Arroyo intended for the pardon to be
conditional on Respondent’s promise never to seek a public
office again, the former ought to have explicitly stated the same
in the text of the pardon itself. Since former President Arroyo did
not make this an integral part of the decree of pardon, the
Commission is constrained to rule that the 3rd preambular
clause cannot be interpreted as a condition to the pardon
extended to former President Estrada.42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyo’s silence
on former President Estrada’s decision torun for President in the
May 2010 elections against, among others, the candidate of the
political party of former President Arroyo, after the latter’s receipt
and acceptance of the pardon speaks volume of her intention to
restore him to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended
by the President is in issue, the Court must turn to the only
evidence available to it, and that is the pardon itself. From a
detailed review ofthe four corners of said document, nothing
therein gives an iota of intimation that the third Whereas Clause
is actually a limitation, proviso, stipulation or condition on the
grant of the pardon, such that the breach of the mentioned
commitment not to seek public office will result ina revocation or
cancellation of said pardon. To the Court, what it is simply is a
statement of fact or the prevailing situation at the time the
executive clemency was granted. It was not used as a condition
to the efficacy orto delimit the scope of the pardon.
Even if the Court were to subscribe to the view that the third
Whereas Clausewas one of the reasons to grant the pardon, the
pardon itself does not provide for the attendant consequence of
the breach thereof. This Court will be hard put to discern the
resultant effect of an eventual infringement. Just like it will be
hard put to determine which civil or political rights were restored
if the Court were to take the road suggested by Risos-Vidal that
the statement "[h]e is hereby restored to his civil and political
rights" excludes the restoration of former President Estrada’s
rights to suffrage and to hold public office. The aforequoted text
ofthe executive clemency granted does not provide the Court
with any guide asto how and where to draw the line between the
included and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue for
resolution is not whether the pardon is contingent on the
condition that former President Estrada will not seek janother
elective public office, but it actually concerns the coverage of the
pardon – whether the pardon granted to former President
Estrada was so expansive as to have restored all his political
rights, inclusive of the rights of suffrage and to hold public office.
Justice Leonen is of the view that the pardon in question is not
absolute nor plenary in scope despite the statement that former
President Estrada is "hereby restored to his civil and political
rights," that is, the foregoing statement restored to former
President Estrada all his civil and political rights except the rights
denied to him by the unremitted penalty of perpetual absolute
disqualification made up of, among others, the rights of suffrage
and to hold public office. He adds that had the President chosen
to be so expansive as to include the rights of suffrage and to
hold public office, she should have been more clear on her
intentions.
However, the statement "[h]e is hereby restored to his civil and
political rights," to the mind of the Court, iscrystal clear – the
pardon granted to former President Estrada was absolute,
meaning, it was not only unconditional, it was unrestricted in
scope, complete and plenary in character, as the term "political
rights"adverted to has a settled meaning in law and
jurisprudence.
With due respect, I disagree too with Justice Leonen that the
omission of the qualifying word "full" can be construed as
excluding the restoration of the rights of suffrage and to hold
public office. There appears to be no distinction as to the
coverage of the term "full political rights" and the term "political
rights" used alone without any qualification. How to ascribe to
the latter term the meaning that it is "partial" and not "full" defies
one’s understanding. More so, it will be extremely difficult to
identify which of the political rights are restored by the pardon,
when the text of the latter is silent on this matter. Exceptions to
the grant of pardon cannot be presumed from the absence of the
qualifying word "full" when the pardon restored the "political
rights" of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that the
pardon granted to former President Estrada was absolute in the
absence of a clear, unequivocal and concrete factual basis upon
which to anchor or support the Presidential intent to grant a
limited pardon.
To reiterate, insofar as its coverageis concerned, the text of the
pardon can withstand close scrutiny even under the provisions of
Articles 36 and 41 of the Revised Penal Code.
The COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions.
In light of the foregoing, contrary to the assertions of Risos-Vidal,
the COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions.
The Court has consistently held that a petition for
certiorariagainst actions of the COMELEC is confined only to
instances of grave abuse of discretion amounting to patentand
substantial denial of due process, because the COMELEC is
presumed to be most competent in matters falling within its
domain.43
As settled in jurisprudence, grave abuse of discretion is the
arbitrary exercise of power due to passion, prejudice or personal
hostility; or the whimsical, arbitrary, or capricious exercise of
power that amounts to an evasion or refusal to perform a positive
duty enjoined by law or to act at all in contemplation of law. For
an act to be condemned as having been done with grave abuse
of discretion, such an abuse must be patent and gross.44
The arguments forwarded by Risos-Vidal fail to adequately
demonstrate any factual or legal bases to prove that the assailed
COMELEC Resolutions were issued in a "whimsical, arbitrary or
capricious exercise of power that amounts to an evasion
orrefusal to perform a positive duty enjoined by law" or were so
"patent and gross" as to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds it
unnecessary to separately discuss Lim's petition-in-intervention,
which substantially presented the same arguments as Risos-
Vidal's petition.
WHEREFORE, the petition for certiorari and petition-
inintervention are DISMISSED. The Resolution dated April 1,
2013 of the Commission on Elections, Second Division, and the
Resolution dated April 23, 2013 of the Commission on Elections,
En bane, both in SPA No. 13-211 (DC), are AFFIRMED.
SO ORDERED.
G.R. No. 196231 January 28, 2014
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING
THROUGH AND REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY
EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO,
OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY.
RONALDO A. GERON, DIR. ROWENA TURINGAN-SANCHEZ,
AND ATTY. CARLITO D. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT,
ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY.
FROILAN D. MONTALBAN, JR., IN THEIR CAPACITIES AS
CHAIRMAN AND MEMBERS OF OFFICE OF MALACANANG
LEGAL AFFAIRS,Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for
reconsideration of our September 4, 2012 Decision1which ruled
on the petitions filed by Deputy Ombudsman Emilio Gonzales III
and Special Prosecutor Wendell Barreras-Sulit. Their petitions
challenged the constitutionality of Section 8(2) of Republic Act
(RA) No. 6770.2
In the challenged Decision, the Court upheld the constitutionality
of Section 8(2) of RA No. 6770 and ruled that the President has
disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i)
found Gonzales guilty of Gross Neglect of Duty and Grave
Misconduct constituting betrayal of public trust; and (ii) imposed
on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought
to restrain the disciplinary proceedings against her, solely
questioned the jurisdiction of the OP to subject her to disciplinary
proceedings. The Court affirmed the continuation of the
proceedings against her after upholding the constitutionality of
Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of
the President in OP Case No. 1 O-J-460 is REVERSED and SET
ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED
with payment of backwages corresponding to the period of
suspension effective immediately, even as the Office of the
Ombudsman is directed to proceed with the investigation in
connection with the above case against petitioner. In G.R. No.
196232, We AFFIRM the continuation of OP-DC Case No. ll-B-
003 against Special Prosecutor Wendell Barreras-Sulit for
alleged acts and omissions tantamount to culpable violation of
the Constitution and a betrayal of public trust, in accordance with
Section 8(2) of the Ombudsman Act of 1989.3
In view of the Court’s ruling, the OP filed the present motion for
reconsideration through the Office of the Solicitor General
(OSG).
We briefly narrate the facts that preceded the filing of the
petitions and the present motion for reconsideration.
I. ANTECEDENTS
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with
the Philippine National Police Internal Affairs Service (PNP-IAS)
and with the Manila City Prosecutor’s Office against Manila
Police District Senior Inspector Rolando Mendoza and four
others (Mendoza, et al.) for robbery, grave threat, robbery
extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty. Clarence
Guinto filed an administrative charge for grave misconduct with
the National Police Commission (NAPOLCOM) PNP-NCRPO
against Mendoza, et al. based on the same allegations made by
Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and
Other Law Enforcement Officers (MOLEO), directed the
NAPOLCOM to turn over the records of Mendoza’s case to his
office. The Office of the Regional Director of the NAPOLCOM
duly complied on July 24, 2008. 6 Mendoza, et al. filed their
position papers with Gonzales, in compliance with his Order.7
Pending Gonzales’ action on Mendoza, et al.’s case (on August
26, 2008), the Office of the City Prosecutor of Manila City
dismissed Kalaw’s complaint against Mendoza, et al. for his
failure to substantiate his allegations.8 Similarly, on October 17,
2008, the PNP-IAS recommended the dismissal without
prejudice of the administrative case against Mendoza, et al. for
Kalaw’s failure to prosecute.9
On February 16, 2009, after preparing a draft decision on
Mendoza, et al.’s case, Gonzales forwarded the entire records to
the Office of then Ombudsman Merceditas Gutierrez for her
review.10In his draft decision, Gonzales found Mendoza, et al.
guilty of grave misconduct and imposed on them the penalty of
dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsman’s decision
that approved Gonzales’ recommendation on October 30, 2009.
Mendoza, et al. filed a motion for reconsideration12 on November
5, 2009, followed by a Supplement to the Motion for
Reconsideration.13
On December 10, 2009, the MOLEO-Records Section forwarded
Mendoza, et al.’s case records to the Criminal Investigation,
Prosecution and Administrative Bureau-MOLEO. On December
14, 2009, the case was assigned to Graft Investigation and
Prosecution Officer (GIPO) Dennis Garcia for review and
recommendation.14
GIPO Garcia released a draft order15 to his immediate superior,
Director Eulogio S. Cecilio, for appropriate action on April 5,
2010. Dir. Cecilio signed and forwarded the draft order to
Gonzales’ office on April 27, 2010. Gonzales reviewed the draft
and endorsed the order, together with the case records, on May
6, 2010 for the final approval by the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman on
Mendoza, et al.’s case, Mendoza hijacked a tourist bus and held
the 21 foreign tourists and the four Filipino tour assistants on
board as hostages. While the government exerted earnest
attempts to peacefully resolve the hostage-taking, it ended
tragically, resulting in the deaths of Mendoza and several others
on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the
Department of Justice and the Department of Interior and Local
Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order
No. 01-2010, creating an Incident Investigation and Review
Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the
Ombudsman and Gonzales accountable for their "gross
negligence and grave misconduct in handling the case against
Mendoza."17 The IIRC stated that the Ombudsman and
Gonzales’ failure to promptly resolve Mendoza’s motion for
reconsideration, "without justification and despite repeated
pleas" xxx "precipitated the desperate resort to hostage-
taking."18 The IIRC recommended the referral of its findings to
the OP for further determination of possible administrative
offenses and for the initiation of the proper administrative
proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally
charged before the OP for Gross Neglect of Duty and/or
Inefficiency in the Performance of Official Duty and for
Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged
and dismissed him from the service.21According to the OP, "the
inordinate and unjustified delay in the resolution of [Mendoza’s]
Motion for Reconsideration [‘that spanned for nine (9) long
months’] xxx amounted to gross neglect of duty" and "constituted
a flagrant disregard of the Office of the Ombudsman’s own Rules
of Procedure."22
c. The Petition
Gonzales posited in his petition that the OP has no
administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is the
Ombudsman who exercises administrative disciplinary
jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the draft
order from GIPO Garcia on April 27, 2010. On May 6, 2010, he
completed his review of the draft, approved it, and transmitted it
to the Office of the Ombudsman for final approval. Since the
draft order on Mendoza’s motion for reconsideration had to
undergo different levels of preparation, review and approval, the
period it took to resolve the motion could not be unjustified, since
he himself acted on the draft order only within nine (9) calendars
days from his receipt of the order.23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major
General Carlos F. Garcia and several others, before the
Sandiganbayan, with plunder and money laundering. On May 7,
2007, Garcia filed an Urgent Petition for Bail which the
prosecution opposed. The Sandiganbayan denied Garcia's
urgent petition for bail on January 7, 2010, in view of the strength
of the prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through
Sulit and her prosecutorial staff, entered into a plea bargaining
agreement (Agreement) with Garcia.24 Garcia thereby agreed to:
(i) withdraw his plea of not guilty to the charge of plunder and
enter a plea of guilty to the lesser offense of indirect bribery; and
(ii) withdraw his plea of not guilty to the charge of money
laundering and enter a guilty plea to the lesser offense of
facilitating money laundering. In exchange, he would convey to
the government his ownership, rights and other interests over the
real and personal properties enumerated in the Agreement and
the bank deposits alleged in the information.25
The Sandiganbayan approved the Agreement on May 4,
201026 based on the parties’ submitted Joint Motion for
Approval.27
The apparent one-sidedness of the Agreement drew public
outrage and prompted the Committee on Justice of the House of
Representatives to conduct an investigation. After public
hearings, the Committee found that Sulit, her deputies and
assistants committed culpable violations of the Constitution and
betrayal of public trust – grounds for removal under Section 8(2)
of RA No. 6770.28The Committee recommended to the President
the dismissal from the service of Sulit and the filing of
appropriate charges against her deputies and assistants before
the appropriate government office.
Accordingly, the OP initiated an administrative disciplinary
proceeding against Sulit.29 On March 24, 2011, Sulit filed her
Written Explanation, questioning the OP’s jurisdiction.30 The
question of jurisdiction notwithstanding, the OP set the case for
preliminary investigation on April 15, 2011, prompting Sulit to
seek relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection, the Court
votes to grant Gonzales’ petition and to declare Section 8(2) of
RA No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Court’s vote
describes below, this conclusion does not apply to Sulit as the
grant of independence is solely with respect to the Office of the
Ombudsman which does not include the Office of the Special
Prosecutor under the Constitution. The prevailing ruling on this
latter point is embodied in the Concurring and Dissenting
Opinion of J. Marvic Mario Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the
petitioners
At the outset, the Court notes that Gonzales and Sulit did not file
a motion for reconsideration of the Court’s September 4, 2012
Decision; only the OP, through the OSG, moved for the
reconsideration of our ruling reinstating Gonzales.
This omission, however, poses no obstacle for the Court’s review
of its ruling on the whole case since a serious constitutional
question has been raised and is one of the underlying bases for
the validity or invalidity of the presidential action. If the President
does not have any constitutional authority to discipline a Deputy
Ombudsman and/or a Special Prosecutor in the first place, then
any ruling on the legal correctness of the OP’s decision on the
merits will be an empty one.
In other words, since the validity of the OP’s decision on the
merits of the dismissal is inextricably anchored on the final and
correct ruling on the constitutional issue, the whole case –
including the constitutional issue – remains alive for the Court’s
consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman
may be subjected to the administrative disciplinary jurisdiction of
the President (concurrently with that of the Ombudsman) is a
justiciable – not a political – question. A justiciable question is
one which is inherently susceptible of being decided on grounds
recognized by law,31 as where the court finds that there are
constitutionally-imposed limits on the exercise of the powers
conferred on a political branch of the government.32
In resolving the petitions, we do not inquire into the wisdom of
the Congress’ choice to grant concurrent disciplinary authority to
the President. Our inquiry is limited to whether such statutory
grant violates the Constitution, particularly whether Section 8(2)
of RA No. 6770 violates the core constitutional principle of the
independence of the Office of the Ombudsman as expressed in
Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create
the power that Section 8(2) of RA No. 6770 grants where the
Constitution confers none. When exercised authority is drawn
from a vacuum, more so when the authority runs counter to a
core constitutional principle and constitutional intents, the Court
is duty-bound to intervene under the powers and duties granted
and imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established
several Ombudsman-like agencies to serve as the people's
medium for airing grievances and for direct redress against
abuses and misconduct in the government. Ultimately, however,
these agencies failed to fully realize their objective for lack of the
political independence necessary for the effective performance
of their function as government critic.33
It was under the 1973 Constitution that the Office of the
Ombudsman became a constitutionally-mandated office to give it
political independence and adequate powers to enforce its
mandate. Pursuant to the 1973 Constitution, President
Ferdinand Marcos enacted Presidential Decree (PD) No. 1487,
as amended by PD No. 1607 and PD No. 1630, creating the
Office of the Ombudsman to be known as Tanodbayan. It was
tasked principally to investigate, on complaint or motu proprio,
any administrative act of any administrative agency, including
any government-owned or controlled corporation. When the
Office of the Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority to
conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control
the prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office of the
Ombudsman was created by constitutional fiat. Unlike in the
1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state
policy in Section 27, Article II35 and the standard of accountability
in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the
public service and take positive and effective measures against
graft and corruption.
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the Office
of the Ombudsman is envisioned to be the "protector of the
people" against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action
bureau.36 This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses of
the bureaucracy. Pursuant to Section 13(8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to
further realize the vision of the Constitution. Section 21 of RA No.
6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions.
— The Office of the Ombudsman shall have disciplinary authority
over all elective and appointive officials of the Government and
its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned
or controlled corporations and their subsidiaries, except over
officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary. [emphasis ours, italics
supplied]
As the Ombudsman is expected to be an "activist
watchman,"37 the Court has upheld its actions, although not
squarely falling under the broad powers granted it by the
Constitution and by RA No. 6770, if these actions are reasonably
in line with its official function and consistent with the law and the
Constitution.38
The Ombudsman’s broad investigative and disciplinary powers
include all acts of malfeasance, misfeasance, and nonfeasance
of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad
powers, the Constitution saw it fit to insulate the Office of the
Ombudsman from the pressures and influence of officialdom and
partisan politics and from fear of external reprisal by making it an
"independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one overall Deputy and at least one Deputy each
for Luzon, Visayas, and Mindanao. A separate Deputy for the
military establishment may likewise be appointed. [emphasis
ours]
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional
agency that is considered "a notch above other grievance-
handling investigative bodies."39 It has powers, both
constitutional and statutory, that are commensurate with its
daunting task of enforcing accountability of public officers.40
b. "Independence" of constitutional bodies vis-a-vis the
Ombudsman’s independence
Under the Constitution, several constitutional bodies have been
expressly labeled as "independent."41The extent of the
independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations
in mind: first, the functions performed or the powers involved in a
given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of
checks and balances.
Notably, the independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions shares
certain characteristics – they do not owe their existence to any
act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these "independent"
bodies be insulated from political pressure to the extent that the
absence of "independence" would result in the impairment of
their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the
Judiciary, we ruled against the interference that the President
may bring and maintained that the independence and the
flexibility of the Judiciary, the Constitutional Commissions and
the Office of the Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility needed
in the discharge of their constitutional duties. The imposition of
restrictions and constraints on the manner the independent
constitutional offices allocate and utilize the funds appropriated
for their operations is anathema to fiscal autonomy and violative
not only the express mandate of the Constitution but especially
as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our
constitutional system is based.
The constitutional deliberations explain the Constitutional
Commissions’ need for independence. In the deliberations of the
1973 Constitution, the delegates amended the 1935 Constitution
by providing for a constitutionally-created Civil Service
Commission, instead of one created by law, on the premise that
the effectivity of this body is dependent on its freedom from the
tentacles of politics.43 In a similar manner, the deliberations of the
1987 Constitution on the Commission on Audit highlighted the
developments in the past Constitutions geared towards
insulating the Commission on Audit from political pressure.44
Notably, the Constitution also created an "independent"
Commission on Human Rights, although it enjoys a lesser
degree of independence since it is not granted fiscal autonomy in
the manner fiscal autonomy is granted to the constitutional
commissions. The lack of fiscal autonomy notwithstanding, the
framers of the 1987 Constitution clearly expressed their desire to
keep the Commission independent from the executive branch
and other political leaders:
MR. MONSOD. We see the merits of the arguments of
Commissioner Rodrigo. If we explain to him our concept, he can
advise us on how to reconcile his position with ours. The position
of the committee is that we need a body that would be able to
work and cooperate with the executive because the
Commissioner is right. Many of the services needed by this
commission would need not only the cooperation of the
executive branch of the government but also of the judicial
branch of government. This is going to be a permanent
constitutional commission over time. We also want a commission
to function even under the worst circumstance when the
executive may not be very cooperative. However, the question in
our mind is: Can it still function during that time? Hence, we are
willing to accept suggestions from Commissioner Rodrigo on
how to reconcile this. We realize the need for coordination and
cooperation. We also would like to build in some safeguards that
it will not be rendered useless by an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions or
organizations on human rights go to a country, the most credible
organizations are independent human rights bodies. Very often
these are private organizations, many of which are prosecuted,
such as those we find in many countries in Latin America. In fact,
what we are proposing is an independent body on human rights,
which would provide governments with credibility precisely
because it is independent of the present administration.
Whatever it says on the human rights situation will be credible
because it is not subject to pressure or control from the present
political leadership.
Secondly, we all know how political fortunes come and go. Those
who are in power yesterday are in opposition today and those
who are in power today may be in the opposition tomorrow.
Therefore, if we have a Commission on Human Rights that
would investigate and make sure that the rights of each one is
protected, then we shall have a body that could stand up to any
power, to defend the rights of individuals against arrest, unfair
trial, and so on.45
These deliberative considerations abundantly show that the
independent constitutional commissions have been consistently
intended by the framers to be independent from executive
control or supervision or any form of political influence. At least
insofar as these bodies are concerned, jurisprudence is not
scarce on how the "independence" granted to these bodies
prevents presidential interference.
In Brillantes, Jr. v. Yorac, 46 we emphasized that the Constitutional
Commissions, which have been characterized under the
Constitution as "independent," are not under the control of the
President, even if they discharge functions that are executive in
nature. The Court declared as unconstitutional the President’s
act of temporarily appointing the respondent in that case as
Acting Chairman of the Comelec "however well-meaning"47 it
might have been.
In Bautista v. Senator Salonga, 48 the Court categorically stated
that the tenure of the commissioners of the independent
Commission on Human Rights could not be placed under the
discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize how
an office conceived and created by the Constitution to be
independent – as the Commission on Human Rights – and
vested with the delicate and vital functions of investigating
violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor,
can truly function with independence and effectiveness, when
the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No.
163-A, being antithetical to the constitutional mandate of
independence for the Commission on Human Rights has to be
declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered
even the mere review of the rules of the Commission on
Elections by Congress a "trampling" of the constitutional
mandate of independence of this body. Obviously, the mere
review of rules places considerably less pressure on a
constitutional body than the Executive’s power to discipline and
remove key officials of the Office of the Ombudsman, yet the
Court struck down the law as unconstitutional.
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior – but is similar in
degree and kind – to the independence similarly guaranteed by
the Constitution to the Constitutional Commissions since all
these offices fill the political interstices of a republican
democracy that are crucial to its existence and proper
functioning.50
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution
against presidential interference with the constitutional
commissions, on one hand, and those expressed by the framers
of the 1987 Constitution, on the other, in protecting the
independence of the Constitutional Commissions, speak for
themselves as overwhelming reasons to invalidate Section 8(2)
of RA No. 6770 for violating the independence of the Office of
the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy
Ombudsman to discipline and removal by the President, whose
own alter egos and officials in the Executive Department are
subject to the Ombudsman’s disciplinary authority, cannot but
seriously place at risk the independence of the Office of the
Ombudsman itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them
tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly did.
By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the Office of
the Ombudsman, but inevitably with the principle of checks and
balances that the creation of an Ombudsman office seeks to
revitalize.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete trust
in her subordinate officials who are not as independent as she is,
if only because they are subject to pressures and controls
external to her Office. This need for complete trust is true in an
ideal setting and truer still in a young democracy like the
Philippines where graft and corruption is still a major problem for
the government. For these reasons, Section 8(2) of RA No. 6770
(providing that the President may remove a Deputy
Ombudsman) should be declared void.
The deliberations of the Constitutional Commission on the
independence of the Ombudsman fully support this position.
Commissioner Florenz Regalado of the Constitutional
Commission expressed his apprehension that any form of
presidential control over the Office of the Ombudsman would
diminish its independence.51 The following exchanges between
Commissioners Blas Ople and Christian Monsod further reveal
the constitutional intent to keep the Office of the Ombudsman
independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the
Committee consider later an amendment xxx, by way of
designating the office of the Ombudsman as a constitutional arm
for good government, efficiency of the public service and the
integrity of the President of the Philippines, instead of creating
another agency in a kind of administrative limbo which would be
accountable to no one on the pretext that it is a constitutional
body?
MR. MONSOD. The Committee discussed that during our
committee deliberations and when we prepared the report, it was
the opinion of the Committee — and I believe it still is — that it
may not contribute to the effectiveness of this office of the
Ombudsman precisely because many of the culprits in
inefficiency, injustice and impropriety are in the executive
department. Therefore, as we saw the wrong implementation of
the Tanodbayan which was under the tremendous influence of
the President, it was an ineffectual body and was reduced to the
function of a special fiscal. The whole purpose of our proposal is
precisely to separate those functions and to produce a vehicle
that will give true meaning to the concept of Ombudsman.
Therefore, we regret that we cannot accept the proposition.52
The statements made by Commissioner Monsod emphasized a
very logical principle: the Executive power to remove and
discipline key officials of the Office of the Ombudsman, or to
exercise any power over them, would result in an absurd
situation wherein the Office of the Ombudsman is given the duty
to adjudicate on the integrity and competence of the very
persons who can remove or suspend its members. Equally
relevant is the impression that would be given to the public if the
rule were otherwise. A complainant with a grievance against a
high-ranking official of the Executive, who appears to enjoy the
President’s favor, would be discouraged from approaching the
Ombudsman with his complaint; the complainant’s impression
(even if misplaced), that the Ombudsman would be susceptible
to political pressure, cannot be avoided. To be sure, such an
impression would erode the constitutional intent of creating an
Office of the Ombudsman as champion of the people against
corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress apparently
addressed the concern that a lack of an external check against
the Deputy Ombudsman would result in mutual protection
between the Ombudsman and her Deputies.
While the preceding discussion already suffices to address this
concern, it should be added that this concern stands on shaky
grounds since it ignores the existing checks and balances
already in place. On the one hand, the Ombudsman’s Deputies
cannot protect the Ombudsman because she is subject to the
impeachment power of Congress. On the other hand, the
Ombudsman’s attempt to cover up the misdeeds of her Deputies
can be questioned before the Court on appeal or certiorari. The
same attempt can likewise subject her to impeachment.
The judicial recourse available is only consistent with the nature
of the Supreme Court as a non-political independent body
mandated by the Constitution to settle judicial and quasi-judicial
disputes, whose judges and employees are not subject to the
disciplinary authority of the Ombudsman and whose neutrality
would be less questionable. The Members of the Court
themselves may be subjected to the impeachment power of
Congress.
In these lights, the appeal, if any, of the mutual protection
argument becomes distinctly implausible. At the same time, the
Court remains consistent with its established rulings - that the
independence granted to the Constitutional Commissions bars
any undue interference from either the Executive or Congress –
and is in full accord with constitutional intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987 Constitution, 53 Congress
is empowered to determine the modes of removal from office of
all public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of
the Constitutional Commissions, and the Ombudsman, who are
all impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll
other public officers and employees may be removed from office
as provided by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent Congress from
extending the more stringent rule of "removal only by
impeachment" to favored public officers. 54 Understandably so,
impeachment is the most difficult and cumbersome mode of
removing a public officer from office. It is, by its nature, a sui
generis politico-legal process55 that signals the need for a
judicious and careful handling as shown by the process required
to initiate the proceeding;56 the one-year limitation or bar for its
initiation;57 the limited grounds for impeachment;58 the defined
instrumentality given the power to try impeachment cases; 59 and
the number of votes required for a finding of guilt. 60 All these
argue against the extension of this removal mechanism beyond
those mentioned in the Constitution.
On the practical side, our nation has witnessed the complications
and problems an impeachment proceeding entails, thus justifying
its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few,
some of the negative practical effects of impeachment are: it
stalls legislative work; it is an expensive process in terms of the
cost of prosecution alone; and, more importantly, it is inherently
divisive of the nation.61 Thus, in a cost-benefit analysis of
adopting impeachment as a mechanism, limiting Congress’
power to otherwise legislate on the matter is far more
advantageous to the country.
It is in these lights that the second sentence in Section 2, Article
XI of the 1987 Constitution should be read. Contrary to the
implied view of the minority, in no way can this provision be
regarded as blanket authority for Congress to provide for any
ground of removal it deems fit. While the manner and cause of
removal are left to congressional determination, this must still be
consistent with constitutional guarantees and principles, namely:
the right to procedural and substantive due process; the
constitutional guarantee of security of tenure; the principle of
separation of powers; and the principle of checks and
balances.62
In short, the authority granted by the Constitution to Congress to
provide for the manner and cause of removal of all other public
officers and employees does not mean that Congress can ignore
the basic principles and precepts established by the Constitution.
In the same manner, the congressional determination of the
identity of the disciplinary authority is not a blanket authority for
Congress to repose it on whomsoever Congress chooses
without running afoul of the independence enjoyed by the Office
of the Ombudsman and without disrupting the delicate check and
balance mechanism under the Constitution. Properly viewed
from this perspective, the core constitutional principle of
independence is observed and any possible absurdity resulting
from a contrary interpretation is avoided. In other words, while
the Constitution itself vested Congress with the power to
determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent
with the core constitutional principle of independence of the
Office of the Ombudsman. Our observation in Macalintal v.
Comelec63 is apt:
The ambit of legislative power under Article VI of the Constitution
is circumscribed by other constitutional provisions. One such
provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the
COMELEC shall be "independent."
While one may argue that the grounds for impeachment under
Section 8(2) of RA No. 6770 is intended as a measure of
protection for the Deputy Ombudsman and Special Prosecutor –
since these grounds are not intended to cover all kinds of official
wrongdoing and plain errors of judgment - this argument
seriously overlooks the erosion of the independence of the Office
of the Ombudsman that it creates. The mere fact that a
statutorily-created sword of Damocles hangs over the Deputy
Ombudsman’s head, by itself, opens up all the channels for
external pressures and influence of officialdom and partisan
politics. The fear of external reprisal from the very office he is to
check for excesses and abuses defeats the very purpose of
granting independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that
do not conform to the high standard required in determining
whether a Deputy Ombudsman committed an impeachable
offense) and that the President’s power of removal is limited to
specified grounds are dismally inadequate when balanced with
the constitutional principle of independence. The mere filing of
an administrative case against the Deputy Ombudsman and the
Special Prosecutor before the OP can already result in their
suspension and can interrupt the performance of their functions,
in violation of Section 12, Article XI of the Constitution. With only
one term allowed under Section 11, a Deputy Ombudsman or
Special Prosecutor, if removable by the President, can be
reduced to the very same ineffective Office of the Ombudsman
that the framers had foreseen and carefully tried to avoid by
making these offices independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority
over the Deputy Ombudsman, its decision finding Gonzales
guilty of Gross Neglect of Duty and Grave Misconduct
constituting betrayal of public trust is patently erroneous. The
OP’s decision perfectly illustrates why the requirement of
impeachment-grounds in Section 8(2) of RA No. 6770 cannot be
considered, even at a minimum, a measure of protection of the
independence of the Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s
finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross Neglect of
Duty and of Grave Misconduct. The assailed Decision of the OP
reads:
Upon consideration of the First Report, the evidence and
allegations of respondent Deputy Ombudsman himself, and
other documentary evidence gathered, this Office finds that the
inordinate and unjustified delay in the resolution of Captain
Mendoza’s Motion for Reconsideration timely filed on 5
November 2009 xxx amounted to gross neglect of duty and/or
inefficiency in the performance of official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for
Reconsideration of the decision of the Ombudsman, 65 which was
followed by a Supplement to the Motion for Reconsideration;66
2. December 14, 200967 - GIPO Garcia, who was assigned to
review these motions and make his recommendation for the
appropriate action, received the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order to be
reviewed by his immediate superior, Dir. Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales
this draft order;69
5. May 6, 2010 (or nine days after the records were forwarded to
Gonzales) – Gonzales endorsed the draft order for the final
approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23,
2010, the records of the case were already pending before
Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want
of even the slightest care, acting or omitting to act in a situation
where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences
insofar as other persons may be affected. In the case of public
officials, there is gross negligence when a breach of duty is
flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or
inefficiency since he acted on the case forwarded to him within
nine days. In finding Gonzales guilty, the OP 72 relied on Section
8, Rule III of Administrative Order No. 7 (or the Rules of
Procedure of the Office of the Ombudsman, series of 1990, as
amended) in ruling that Gonzales should have acted on
Mendoza’s Motion for Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds
– Whenever allowable, a motion for reconsideration or
reinvestigation may only be entertained if filed within ten (10)
days from receipt of the decision or order by the party on the
basis of any of the following grounds:
a) New evidence had been discovered which materially affects
the order, directive or decision;
b) Grave errors of facts or laws or serious irregularities have
been committed prejudicial to the interest of the movant.
Only one motion for reconsideration or reinvestigation shall be
allowed, and the Hearing Officer shall resolve the same within
five (5) days from the date of submission for resolution.
[emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period it
requires cannot apply to Gonzales since he is a Deputy
Ombudsman whose obligation is to review the case; he is not
simply a Hearing Officer tasked with the initial resolution of the
motion. In Section 6 of Administrative Order No. 7 on the
resolution of the case and submission of the proposed decision,
the period for resolving the case does not cover the period within
which it should be reviewed:
Section 6. Rendition of decision. – Not later than thirty (30) days
after the case is declared submitted for resolution, the Hearing
Officer shall submit a proposed decision containing his findings
and recommendation for the approval of the Ombudsman. Said
proposed decision shall be reviewed by the Directors, Assistant
Ombudsmen and Deputy Ombudsmen concerned. With respect
to low ranking public officials, the Deputy Ombudsman
concerned shall be the approving authority. Upon approval,
copies thereof shall be served upon the parties and the head of
the office or agency of which the respondent is an official or
employee for his information and compliance with the
appropriate directive contained therein. [italics and emphases
supplied]
Thus, the OP’s ruling that Gonzales had been grossly negligent
for taking nine days, instead of five days, to review a case was
totally baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his
subordinates to promptly act on Mendoza’s motion and apprised
the Tanodbayan of the urgency of resolving the same are
similarly groundless.
The Office of the Ombudsman is not a corner office in our
bureaucracy. It handles numerous cases that involve the
potential loss of employment of many other public employees.
We cannot conclusively state, as the OP appears to suggest,
that Mendoza’s case should have been prioritized over other
similar cases.
The Court has already taken judicial notice of the steady stream
of cases reaching the Office of the Ombudsman. 73 This
consideration certainly militates against the OSG’s observation
that there was "a grossly inordinate and inexcusable delay"74 on
the part of Gonzales.
Equally important, the constitutional guarantee of "speedy
disposition of cases" before, among others, quasi-judicial
bodies,75 like the Office of the Ombudsman, is itself a relative
concept.76 Thus, the delay, if any, must be measured in this
objective constitutional sense. Unfortunately, because of the very
statutory grounds relied upon by the OP in dismissing Gonzales,
the political and, perhaps, "practical" considerations got the
better of what is legal and constitutional.
The facts do not show that Gonzales’ subordinates had in any
way been grossly negligent in their work. While GIPO Garcia
reviewed the case and drafted the order for more than three
months, it is noteworthy that he had not drafted the initial
decision and, therefore, had to review the case for the first
time.77 Even the Ombudsman herself could not be faulted for
acting on a case within four months, given the amount of cases
that her office handles.
The point is that these are not inordinately long periods for the
work involved: examination of the records, research on the
pertinent laws and jurisprudence, and exercise of legal judgment
and discretion. If this Court rules that these periods per se
constitute gross neglect of duty, the Ombudsman’s constitutional
mandate to prosecute all the erring officials of this country would
be subjected to an unreasonable and overwhelming constraint.
Similarly, if the Court rules that these periods per se constitute
gross neglect of duty, then we must be prepared to reconcile this
with the established concept of the right of speedy disposition of
cases – something the Court may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in
Mendoza’s case by having the case endorsed to the Office of the
Ombudsman and by resolving it against Mendoza on the basis of
the unverified complaint-affidavit of the alleged victim, Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his
office lies within his mandate, even if it were based merely on the
request of the alleged victim’s father. The Constitution empowers
the Ombudsman and her Deputies to act promptly on complaints
filed in any form or manner against any public official or
employee of the government.78 This provision is echoed by
Section 13 of RA No. 6770,79 and by Section 3, Rule III of
Administrative Order No. 7, series of 1990, as amended.80
Moreover, Gonzales and his subordinates did not resolve the
complaint only on the basis of the unverified affidavit of Kalaw.
Based on the prosecution officer’s recommendations, the finding
of guilt on the part of Mendoza, et al. was based on their
admissions as well. Mendoza, et al. admitted that they had
arrested Kalaw based on two traffic violations and allowed him to
stay the whole night until the following morning in the police
precinct. The next morning, Kalaw was allowed to leave the
precinct despite his failure to show a valid license and based
merely on his promise to return with the proper
documents.81 These admissions led Gonzales and his staff to
conclude that Mendoza, et al. irregularly acted in apprehending
Kalaw, since the proper procedure for the apprehension of traffic
violators would be to give them a ticket and to file a case, when
appropriate.82
Lastly, we cannot deduce undue interest simply because
Gonzales’ decision differs from the decision of the PNP-IAS
(which dismissed the complaint against Mendoza). To be sure,
we cannot tie the hands of any judicial or quasi-judicial body by
ruling that it should always concur with the decisions of other
judicial or quasi-judicial bodies which may have also taken
cognizance of the case. To do so in the case of a Deputy
Ombudsman would be repugnant to the independence that our
Constitution has specifically granted to this office and would
nullify the very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against Gonzales,
the penalty of removal imposed by the OP necessarily suffers
grave infirmity. Basic strictures of fair play dictate that we can
only be held liable for our own misdeeds; we can be made to
account only for lapses in our responsibilities. It is notable that of
all the officers, it was Gonzales who took the least time — nine
days — followed by Cecilio, who took 21 days; Garcia — the
writer of the draft — took less than four months, and the
Ombudsman, less than four months until the kidnapping incident
rendered Mendoza’s motion moot.
In these lights, the decision of the OP is clearly and patently
wrong. This conclusion, however, does not preclude the
Ombudsman from looking into any other possible administrative
liability of Gonzales under existing Civil Service laws, rules and
regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of the
Ombudsman. The existing Tanodbayan at the time83 became the
Office of the Special Prosecutor under the 1987 Constitution.
While the composition of the independent Office of the
Ombudsman under the 1987 Constitution does not textually
include the Special Prosecutor, the weight of the foregoing
discussions on the unconstitutionality of Section 8(2) of RA No.
6770 should equally apply to the
Special Prosecutor on the basis of the legislative history of the
Office of the Ombudsman as expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to
create the Office of the Ombudsman, known as the Tanodbayan,
with investigative and prosecutorial powers. Accordingly, on June
11, 1978, President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor"
(CSP) was given the "exclusive authority" to conduct preliminary
investigation and to prosecute cases that are within the
jurisdiction of the Sandiganbayan.87 PD No. 1486 expressly gave
the Secretary of Justice the power of control and supervision
over the Special Prosecutor.88 Consistent with this grant of
power, the law also authorized the Secretary of Justice to
appoint or detail to the Office of the CSP "any officer or
employee of Department of Justice or any Bureau or Office
under the executive supervision thereof" to assist the Office of
the CSP.
In December 1978, PD No. 160789 practically gave back to the
Tanodbayan the powers taken away from it by the Office of the
CSP. The law "created in the Office of the Tanodbayan an Office
of the Chief Special Prosecutor" under the Tanodbayan’s
control,90 with the exclusive authority to conduct preliminary
investigation and prosecute all cases cognizable by the
Sandiganbayan. Unlike the earlier decree, the law also
empowered the Tanodbayan to appoint Special Investigators and
subordinate personnel and/or to detail to the Office of the CSP
any public officer or employees who "shall be under the
supervision and control of the Chief Special Prosecutor."91 In
1979, PD No. 1630 further amended the earlier decrees by
transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.92
This was the state of the law at the time the 1987 Constitution
was ratified. Under the 1987 Constitution, an "independent Office
of the Ombudsman" is created.93 The existing Tanodbayan is
made the Office of the Special Prosecutor, "who shall continue to
function and exercise its powers as now 94 or hereafter may be
provided by law."95
Other than the Ombudsman’s Deputies, the Ombudsman shall
appoint all other officials and employees of the Office of the
Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution
provides that the Ombudsman may exercise "such other powers
or perform such functions or duties as may be provided by law."
Pursuant to this constitutional command, Congress enacted RA
No. 6770 to provide for the functional and structural organization
of the Office of the Ombudsman and the extent of its disciplinary
authority.
In terms of composition, Section 3 of RA No. 6770 defines the
composition of the Office of the Ombudsman, including in this
Office not only the offices of the several Deputy Ombudsmen but
the Office of the Special Prosecutor as well. In terms of
appointment, the law gave the President the authority to appoint
the Ombudsman, his Deputies and the Special Prosecutor, from
a list of nominees prepared by the Judicial and Bar Council. In
case of vacancy in these positions, the law requires that the
vacancy be filled within three (3) months from occurrence.97
The law also imposes on the Special Prosecutor the same
qualifications it imposes on the Ombudsman himself/herself and
his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The
requirement on disclosure102 is imposed on the Ombudsman, the
Deputies and the Special Prosecutor as well. In case of vacancy
in the Office of the Ombudsman, the Overall Deputy cannot
assume the role of Acting Ombudsman; the President may
designate any of the Deputies or the Special Prosecutor as
Acting Ombudsman.103The power of the Ombudsman and his or
her deputies to require other government agencies to render
assistance to the Office of the Ombudsman is likewise enjoyed
by the Special Prosecutor.104
Given this legislative history, the present overall legal structure of
the Office of the Ombudsman, both under the 1987 Constitution
and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority
of the OP and yet expose the Special Prosecutor to the same ills
that a grant of independence to the Office of the Ombudsman
was designed for.
Congress recognized the importance of the Special Prosecutor
as a necessary adjunct of the Ombudsman, aside from his or her
deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by
granting the Ombudsman control and supervision over that
office.105 This power of control and supervision includes vesting
the Office of the Ombudsman with the power to assign duties to
the Special Prosecutor as he/she may deem fit.1âwphi1Thus, by
constitutional design, the Special Prosecutor is by no means an
ordinary subordinate but one who effectively and directly aids the
Ombudsman in the exercise of his/her duties, which include
investigation and prosecution of officials in the Executive
Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor
handles the prosecution of criminal cases within the jurisdiction
of the Sandiganbayan and this prosecutorial authority includes
high-ranking executive officials. For emphasis, subjecting the
Special Prosecutor to disciplinary and removal powers of the
President, whose own alter egos and officials in the Executive
Department are subject to the prosecutorial authority of the
Special Prosecutor, would seriously place the independence of
the Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not
expressly made part of the composition of the Office of the
Ombudsman, the role it performs as an organic component of
that Office militates against a differential treatment between the
Ombudsman’s Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the
Ombudsman must be equally true, not only for her Deputies but,
also for other lesser officials of that Office who act directly as
agents of the Ombudsman herself in the performance of her
duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted
with an argument that, at bottom, the Office of the Special
Prosecutor is not a subordinate agency of the Office of the
Ombudsman and is, in fact, separate and distinct from the latter.
In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's
statement as authority to advocate that the intent of the framers
of the 1987 Constitution was to place the Office of the Special
Prosecutor under the Office of the President. Xxx
In the second place, Section 7 of Article XI expressly provides
that the then existing Tanodbayan, to be henceforth known as
the Office of the Special Prosecutor, "shall continue to function
and exercise its powers as now or hereafter may be provided by
law, except those conferred on the Office of the Ombudsman
created under this Constitution." The underscored phrase
evidently refers to the Tanodbayan's powers under P.D. No. 1630
or subsequent amendatory legislation. It follows then that
Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. N0. 1630 or grant it other
powers, except those powers conferred by the Constitution on
the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that
by express mandate of paragraph 8, Section 13, Article XI of the
Constitution, the Ombudsman may "exercise such other powers
or perform functions or duties as may be provided by law," it is
indubitable then that Congress has the power to place the Office
of the Special Prosecutor under the Office of the Ombudsman.107
Thus, under the present Constitution, there is every reason to
treat the Special Prosecutor to be at par with the Ombudsman's
deputies, at least insofar as an extraneous disciplinary authority
is concerned, and must also enjoy the same grant of
independence under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7, 108 the
Court resolved to reverse its September 4, 2012 Decision insofar
as petitioner Gonzales is concerned (G.R. No. 196231). We
declared Section 8(2) of RA No. 6770 unconstitutional by
granting disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the Office of the
Ombudsman.
However, by another vote of 8-7,109 the Court resolved to
maintain the validity of Section 8(2) of RA No. 6770 insofar as
Sulit is concerned. The Court did not consider the Office of the
Special Prosecutor to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the
latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court resolves to
declare Section 8(2) UNCONSTITUTIONAL. This ruling renders
any further ruling on the dismissal of Deputy Ombudsman Emilio
Gonzales III unnecessary, but is without prejudice to the power
of the Ombudsman to conduct an administrative investigation, if
warranted, into the possible administrative liability of Deputy
Ombudsman Emilio Gonzales III under pertinent Civil Service
laws, rules and regulations.
SO ORDERED.
A.M. No. P-12-3069 January 20, 2014
ATTY. VIRGILIO P. ALCONERA, Complainant,
vs.
ALFREDO T. PALLANAN, Respondent.
DECISION
VELASCO, JR., J.:
Before Us is an administrative complaint for Grave Misconduct
and Making Untruthful Statements filed by Atty. Virgilio P.
Alconera against Alfredo Pallanan, Sheriff IV, assigned at the
Regional Trial Court (RTC), Branch 36 in General Santos City.
The antecedent facts are as follows:
Complainant was the counsel for Morito Rafols, the defendant in
Civil Case No. 5967-2, an unlawful detainer case entitled Cua
Beng a.k.a. Manuel Sy and Ka Kieng v. Morita Rafols, et al., filed
before the Municipal Trial Court in Cities (MTCC), Branch 2 in
General Santos City, South Cotabato. After trial, the MTCC ruled
against Rafols and his co-defendants in a Judgment1dated
March 12, 2009, disposing as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiffs and against the defendant MORITO RAFOLS, his
privies, assigns, heirs, transferee, sublessee. co-Jessee or
agents if any to vacate from the subject lots and deliver
possession thereof to the plaintiffs and for defendant to pay back
rentals of P5,000.00 per month from June 2008 and every
succeeding months thereafter until he vacate the premises and
to jointly and severally, together with all other defendants, pay
attorney's fees in the amount of P20,000.00 with the other
defendants and costs of litigation.
SO ORDERED.
Therefrom, Rafols, through complainant Alconera, appealed the
case to the RTC, Branch 36, docketed as Civil Case No. 675.
Pending appeal, the court issued an Order dated February 18,
2011 granting Cua Beng’s motion for execution she filed in Civil
Case No. 5967-2, the unlawful detainer case. Alconera sought
reconsideration but the motion was denied through another
Order2 dated March 14, 2011.
On March 17, 2011, a troubled Evelyn Rafols, Rafols’ daughter-
in-law, called up Alconera, who at that time was in Manila, to
report that the sheriff, respondent Pallanan, was about to
implement the adverted writ of execution. Evelyn Rafols informed
Alconera that respondent sheriff arrived along with the lawyer of
the opposing party and 30 other men to enforce the writ.
Respondent sheriff then allegedly demanded payment of PhP
720,000 to settle Rafols’ obligation to which the latter protested
on the ground that the amount is too exorbitant when they have
been religiously depositing monthly rentals in court to satisfy the
judgment.
After explaining the matter to Alconera, Evelyn Rafols passed
her phone to respondent sheriff. Over the phone, a verbal
disagreement between the two ensued. Alconera claims that he
has a pending motion for reconsideration on the issuance of the
writ of execution, but the respondent said that the motion has
already been denied. And since no Temporary Restraining Order
(TRO) has been issued enjoining the implementation,
respondent claimed that he is legally mandated to perform his
ministerial duty of enforcing the writ. Complainant countered that
he has not yet received a copy of the denial of the motion,
rendering the execution premature and, at the same time,
preventing him from securing a TRO from the higher courts.
Nevertheless, respondent still pushed through with the execution
of the judgment.
On March 18, 2011, complainant returned to General Santos City
and, at his law office, found a copy of the Order denying his
Motion for Reconsideration, which was only served that very
same day. The RTC ruled that there was no pending Motion to
Approve Supersedeas Bond filed with it. Instead, what was filed
not with the RTC but with the MTCC was a "NOTICE OF
APPEAL – and – MOTION TO APPROVE PROPERTY
SUPERSEDEAS BOND," which was not granted.
That afternoon, Alconera went to RTC Br. 36 with his daughter to
confront respondent sheriff. The face-off escalated into a heated
argument caught on video. It was complainant’s daughter, Shyla
Mae Zapanta, who is coincidentally his office clerk, who filmed
the incident and transcribed the dialogue during the altercation.
As hereunder translated in English, the exchanges went:
ATTY. ALCONERA: Pag hatod nimo didto sa demolition order,
kabalo ka na wala pa ko kadawat ug denial? (When you served
the demolition order, you know that I did not yet receive a copy of
the denial order?)
SHERIFF PALLANAN: Denial sa unsa, motion? (Denial of what,
motion?)
ATTY. ALCONERA: Oo. (Yes.)
SHERIFF PALLANAN: Attorney, ang motion inyoha nang kuan
diri sa korte, and akoa sa writ ko. As long as the sheriff did not
receive a TRO or any order from the court restraining him to
implement the writ, I have to go. So in case, just in case, na may
resolution si judge na ireconsider and iyang order after they
declare, ideliver na sa area kung asa gi-execute so the sheriff
will move out. (Attorney, the motion, that is your… what do you
call this, here in court. Mine is the writ. As long as the sheriff did
not receive a TRO or any order from the court restraining him to
implement the writ, I have to go. So in case, just in case, the
judge reconsiders his order, they will declare, deliver it to the
area where the writ if executed so the sheriff will move out.)
ATTY. ALCONERA: Mo execute diay ka? Dili diay ka mangutana
kung duna pa bay motion for recon ani? (So you will execute?
You will not inquire whether a motion for reconsideration has
been filed?)
SHERIFF PALLANAN: Bisag may motion for recon na, Attorney, I
have to go gyud. (Even if there is a motion for reconsideration, I
really have to go.)
ATTY. ALCONERA: Uy, di man na ingon ana, uy! Ana imong
natun-an as sheriff?
SHERIFF PALLANAN: Oo mao na sya. Mao na sya – sa akoa
ha, mao na sya. (Yes, that is it. That is it – to me ha, that is it.)
ATTY. ALCONERA: Kita ra ta sa Supreme Court ani. (Let us see
each other in the Supreme Court.)
SHERIFF PALLANAN: …(unintelligible) Ang imoha ana…imong
motion ana… and imong motion ana, delaying tactic. (Your
motion is a delaying tactic.)
ATTY. ALCONERA: Ah, sige lang, atubang lang ta sa Supreme
Court. (Ok, let’s just see each other in the Supreme Court.)
SHERIFF PALLANAN: Oo, atubangon nako ko na siya, pero
mag-review pud ka.
ATTY. ALCONERA: Unsay mag-review? (What review?)
SHERIFF PALLANAN: Motion nang imoha, Dong. (Yours is
motion, Dong.) ("Dong" is equivalent to the Filipino term "Totoy";
if used by one to address someone older than him, it is an
insult.)
ATTY. ALCONERA: Naunsa man ka, Dong. (What happened to
you, Dong?)
SHERIFF PALLANAN: Motion na imoha… Dapat diri ka mag file,
dili ka didto mag-file. Ayaw ko awaya. (Yours is motion. You
should file it here, you do not file it there. Don’t quarrel with me.)
ATTY. ALCONERA: Lahi imong tono sa akoa sa telepono Dong
ba. (You were rude in the telephone, Dong.)
SHERIFF PALLANAN: Oo, kay lain man pud ka mag sulti. Ang
imong venue kay diri, dili sa area. (Yes, because you also talked
bad, your venue is here in court, not in the area.)
ATTY. ALCONERA: Ingon nako sa imo nakadawat ka ba..
nakadawat ba ug… (I was just asking you whether you
received…)
SHERIFF PALLANAN: Dili nako na concern. (That is not my
concern.)
ATTY. ALCONERA: O, ngano nag ingon man ka nga "Ayaw ko
diktahe, Attorney?" (Why did you say, "Don’t dictate on me,
Attorney?")
SHERIFF PALLANAN: Yes, do not dictate me. Kay abogado ka,
sheriff ko. Lahi tag venue. Trabaho akoa, magtrabaho pud ka.
(Yes, do not dictate me. Because you are a lawyer, and I am a
sheriff. I do my job, you do yours.)
ATTY. ALCONERA: Bastos kaayo ka manulti ba. (You are very
rude!)
SHERIFF PALLANAN: Ikaw ang bastos! (You are the one who is
rude!)
ATTY. ALCONERA: Magkita ta sa Supreme Court. (I will see you
in the Supreme Court.)
SHERIFF PALLANAN: Magkita ta, eh! Ikaw lang akong hadlukan
nga wala man ka sa area. (As you wish, I am not afraid of you,
you were not in the area.)
ATTY. ALCONERA: Unsa nang inyong style diri, Kempeta?
(What is your style here, Kempetai?)
SHERIFF PALLANAN: Dili man! Na may order. Why can’t you
accept? (No! There is an order. Why can’t you accept?)
ATTY. ALCONERA: Naay proseso, Dong. Mao ning proseso: ang
MR, proseso ang MR. (There is a process, Dong. This is the
process: MR.)
SHERIFF PALLANAN: Oo, proseso pud na ang akong
pagimplement. Naa’y writ. (Yes, my implementing the writ is also
a process. There is a writ.)
ATTY. ALCONERA: Nabuang, ka Dong? (What is going on with
you, Dong?)
SHERIFF PALLANAN: Ka dugay na nimo nga abogado, wala ka
kabalo! (You have been a lawyer for a long time now, yet you do
not know!)
ATTY. ALCONERA: Dugay na bitaw. Ikaw bago ka lang na
sheriff. (Yes, I have been a lawyer for a long time now, you, you
are new in your job as sheriff).
SHERIFF PALLANAN: Pero kabalo ko. (But I know.)
ATTY. ALCONERA: Susmaryosep!
SHERIFF PALLANAN: O, di ba? Wala sa padugayay. Naa sa
kahibalo. (Isn’t that true? It is not the length of time one has
spent on his job. It is the knowledge that one possesses.)
ATTY. ALCONERA: Tanawa imong pagka sheriff, Dong. (Know
you job as a sheriff, Dong.)
SHERIFF PALLANAN: Tanawa pud imong pagka abogado kung
sakto. Pilde! Sige mo pangulekta didto ibayad sa imo! (Know
your job also as a lawyer, see if you are correct. Loser! You [and
the Rafols] are always collecting [from the other defendants] so
your fees can be paid!)
ATTY. ALCONERA: Ngano wala man lagi nimo kuhaa ang mga
butang didto, Dong? (Why did you not bring with you the things
that you had gathered, Dong.)
SHERIFF PALLANAN: Oo, kay hulaton ta ka pag demotion.
(Yes, because I will wait for you on demotion day.)
ATTY. ALCONERA: Nahadlok ka, Dong. (You were afraid, Dong.)
SHERIFF PALLANAN: Wala ko nahadlok, Doy. Sa demotion
adto didto, Attorney. Sulayi ko! Sulayan nato imong
pagkaabogado! (I’m not afraid of you, Doy. On demotion day, you
go there, Attorney. You try me! Let us see how good a lawyer you
are.) ("Doy" is the same as "Dong.")
ATTY. ALCONERA: March 22 pa ang hearing sa imong abogado,
Dong. (The hearing of the motion of your lawyer, is on March 22
yet, Dong.)
SHERIFF PALLANAN: Asus, Pinobre na imong style, Attorney.
Bulok! (Your style is that of an impoverished lawyer, Attorney.
Dullard!)
It is against the foregoing backdrop of events that Alconera filed
a Complaint-Affidavit3 against the respondent sheriff for grave
misconduct before this Court on April 6, 2011. The case was
referred to the Office of the Court Administrator (OCA) and was
docketed as AM No. 11-3634-P. As directed by the OCA,
respondent filed his comment.4 In it, he averred that the duty of a
court sheriff in enforcing a writ of execution is ministerial, and
without a TRO enjoining it, a sheriff is duty bound to implement it.
On July 14, 2011, respondent filed his own Affidavit of
Complaint5 against herein complainant for Grave Misconduct and
for violating the Code of Ethics. Respondent alleged that during
the enforcement of the writ, a second phone conversation took
place. Complainant allegedly called up Evelyn Rafols who put
him on loudspeaker for the respondent to hear his words.
Alconera then allegedly made a threat that there will be
bloodshed if respondent’s party pushes through with the
implementation of the writ. Respondent likewise claimed that
complainant berated him at his office on March 18, 2011 and that
the incident was orchestrated by the complainant. His
(respondent sheriff’s) complaint affidavit avers:
6. GRAVE MISCONDUCT OF ATTY. VIRGILIO ALCONERA –
The planned attack happened in our office on March 18, 2011 in
the afternoon, after lunch, in the presence of his lady companion
(believed to [be] his daughter), who is so delighted in taking
videos. He is so angry and at rage as if he is the boss in our
office, yelling and nagging at me with NO RESPECT as a
nomad. THE ONLY PERSON AROUND WAS ME, THE GIRL HE
BROUGHT THERE (who is taking videos), AND THE NAGGING
ATTY. VIRGILIO ALCONERA (JUST THREE OF US), while
pointing his finger into his MOTION for Reconsideration that he
is holding [sic] almost an inch to my face. Saying "KITA NIMO NI,
KITA NIMO NI?" NA INSULTO KO NIMO NGANO WALA KA NI
PATOO NAKO PAYLAN TAKA UG KASO HULATA SA
SUPREME COURT! (DO YOU SEE THIS? DO YOU SEE THIS?
YOU INSULTED ME WHY DID YOU NOT FOLLOW MY ORDER
I WILL FILE CHARGES AGAINST YOU WAIT FOR IT IN THE
SUPREME COURT!) HE wants me to shiver in scare and expect
me to beg. No, GO I said. I ALWAYS REPEATED THE WORDS
"WHERE IS YOUR T.R.O. Just present it." Because he is too
loud, Mrs. Nenita Paredes, our stenographer, ARRIVED and
middle on us our arguments. On the mid part of the arguments,
he recorded the events; he and his companion, cohort in
designing the plan of the attack, orchestrated it. IT’S AN
ASSAULT TO THE OFFICER OF THE LAW. He told me –
SHERIFF KA LANG WALA KAY NABAL AN. NGANON
NADAWAT MAN KA DIRI BOGO KA. (YOU ARE JUST A
SHERIFF. WHAT DO YOU KNOW? WHY ARE YOU ADMITTED
HERE YOU DUMB, WHO TAUGHT YOU THAT?) Ana mo diri
IPINATAY! KINSA NAG TUDLO SA IMOHA ANA. While he
almost struck his motion papers into my face, I was caught
unaware.
In view of respondent’s counter-charge, Alconera supplemented
his affidavit-complaint6 to include a charge against the former for
False Testimony. Complainant belied the claims of respondent
sheriff, and showed that the respondent’s allegations can
nowhere be seen in the transcript of the altercation.
On March 2, 2012, this Court, upon the OCA’s recommendation,
resolved to re-docket Alconera’s complaint as a regular
administrative case with docket No. A.M. No. P-12-3069 and
referred the same to the Executive Judge of the Regional Trial
Court, General Santos City, South Cotabato, for investigation,
report, and recommendation.
After due proceedings, the investigating judge submitted a
report, styled as Order7 dated August 6, 2013, with the following
recommendation:
Based on the findings and evaluation, the herein Executive
Judge hereby recommends the respondent Sheriff be
ADMONISHED. The respondent must be reminded that as a
Court Employee, he must exercise utmost patience and humility
in the performance of his duties amidst all the pressures and
personal attacks against his person because he carried with him
the image of the entire judiciary.
SO ORDERED.
The Executive Judge adopted the transcript of the altercation as
appearing in the affidavit of Shyla Mae Zapanta and based his
recommendation mainly thereon.
The Issues
The main issue in this case is whether or not respondent can be
held administratively liable for grave misconduct and false
testimony. In fine, the controversy stems from the propriety of the
implementation of the writ of execution, and the altercation
between complainant and respondent. While the investigating
judge made a recommendation based on how respondent
conducted himself as an officer of the court in the afternoon of
March 18, 2013, there was no discussion regarding the propriety
of the implementation of the writ, which is the main issue in the
case for grave misconduct. It then behooves this Court to sift
through the arguments and records to rule on this point.
The Court’s Ruling
Grave Misconduct
Misconduct has been defined as "a transgression of some
established and definite rule of action, more particularly, unlawful
behavior or gross negligence by a public officer." The misconduct
is grave if it involves any of the additional elements of corruption,
willful intent to violate the law, or to disregard established rules,
all of which must be established by substantial evidence, and
must necessarily be manifest in a charge of grave misconduct. 8In
this case, complainant imputes grave misconduct on the
respondent for the following acts:
1. For enforcing the writ despite the fact that complainant has yet
to receive the copy of the order denying his motion for
reconsideration on the issuance of the writ of execution;
2. For allegedly leaking to the opposing counsel the issuance of
the order denying the motion for reconsideration;
3. For allegedly demanding P720,000 from Rafols for
a P165,000.00 obligation; and
4. For allegedly being arrogant and disrespectful.
Complainant admits that there is no TRO enjoining the
enforcement of the writ, nor allegation in his pleadings that a
motion to quash the writ of execution was ever filed. However,
complainant asserts that respondent committed grave
misconduct when the latter implemented the writ prior to serving
the complainant a copy of the order denying the motion for
reconsideration. According to complainant, said motion stayed
the execution, and the writ could not have been validly executed
without first informing the parties concerned of the motion’s
denial.
We rule against complainant on this point.
It must be borne in mind that the case at bar traces its roots to
an unlawful detainer case wherein the MTCC ruled against
Rafols, complainant’s client. In ejectment cases, the rulings of
the courts are immediately executory and can only be stayed via
compliance with Section 19, Rule 70 of the Rules of Court, to wit:
Section 19. Immediate execution of judgment; how to stay same.
— If judgment is rendered against the defendant, execution shall
issue immediately upon motion, unless an appeal has been
perfected and the defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal Trial Court and
executed in favor of the plaintiff to pay the rents, damages, and
costs accruing down to the time of the judgment appealed from,
and unless, during the pendency of the appeal, he deposits with
the appellate court the amount of rent due from time to time
under the contract, if any, as determined by the judgment of the
Municipal Trial Court. In the absence of a contract, he shall
deposit with the Regional Trial Court the reasonable value of the
use and occupation of the premises for the preceding month or
period at the rate determined by the judgment of the lower court
on or before the tenth day of each succeeding month or period.
The supersedeas bond shall be transmitted by the Municipal
Trial Court, with the other papers, to the clerk of the Regional
Trial Court to which the action is appealed.
Clearly then under said Sec. 19, Rule 70, a judgment on a
forcible entry and detainer action is made immediately executory
to avoid further injustice to a lawful possessor. The defendant in
such a case may have such judgment stayed only by (a)
perfecting an appeal; (b) filing a supersedeas bond; and (c)
making a periodic deposit of the rental or reasonable
compensation for the use and occupancy of the property during
the pendency of the appeal.9The failure of the defendant to
comply with any of these conditions is a ground for the outright
execution of the judgment, the duty of the court in this respect
being ministerial and imperative. Hence, if the defendant-
appellant has perfected the appeal but failed to file a
supersedeas bond, the immediate execution of the judgment
would automatically follow. Conversely, the filing of a
supersedeas bond will not stay the execution of the judgment if
the appeal is not perfected. Necessarily then, the supersedeas
bond should be filed within the period for the perfection of the
appeal.10
In the case at bar, complainant lost his client’s case and
appealed to the RTC. His client has also been periodically
depositing rental with the court for the use of the property
pending appeal. However, as ruled by the RTC, the bond filed
did not meet the legal requirements because first and foremost,
the bond posted was a property bond, not cash nor surety.
Furthermore, Rafols did not own the property he posted as bond
and besides, it was also not issued in favour of the plaintiff in the
ejectment case. Because of the non-compliance with the
requirements under the above-quoted rule, the execution of the
judgment was not effectively stayed. The only exceptions to non-
compliance are the existence of fraud, accident, mistake or
excusable negligence which prevented the defendant from
posting the supersedeas bond or making the monthly deposit, or
the occurrence of supervening events which brought about a
material change in the situation of the parties and which would
make the execution inequitable.11 But whether or not these
obtain in the case at bar is an issue best left to the court that
issued the writ of execution.
Given the above circumstances, there was no legal impediment
preventing respondent sheriff from performing his responsibility
of enforcing the writ of execution. Since Rafols failed to comply
with the requirements under the Rules, Cua Beng who prevailed
in the unlawful detainer case is entitled as a matter of right to the
immediate execution of the court’s judgment both as to the
restoration of possession and the payment of the accrued rentals
or compensation for the use and occupation of the premises.12
Well-settled is that the sheriff’s duty in the execution of a writ is
purely ministerial; he is to execute the order of the court strictly
to the letter. He has no discretion whether to execute the
judgment or not. When the writ is placed in his hands, it is his
duty, in the absence of any instructions to the contrary, to
proceed with reasonable celerity and promptness to implement it
in accordance with its mandate. It is only by doing so could he
ensure that the order is executed without undue delay. 13 This
holds especially true herein where the nature of the case
requires immediate execution. Absent a TRO, an order of
quashal, or compliance with Sec. 19, Rule 70 of the Rules of
Court, respondent sheriff has no alternative but to enforce the
writ.
Immediacy of the execution, however, does not mean instant
execution. The sheriff must comply with the Rules of Court in
executing a writ. Any act deviating from the procedure laid down
in the Rules of Court is a misconduct and warrants disciplinary
action. In this case, Sec. 10(c), Rule 39 of the Rules prescribes
the procedure in the implementation of the writ. It provides:
Section 10. Execution of judgments for specific act. —
xxxx
(c) Delivery or restitution of real property. — The officer shall
demand of the person against whom the judgment for the
delivery or restitution of real property is rendered and all persons
claiming rights under him to peaceably vacate the property within
three (3) working days, and restore possession thereof to the
judgment obligee, otherwise, the officer shall oust all such
persons therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such means as may
be reasonably necessary to retake possession, and place the
judgment obligee in possession of such property. Any costs,
damages, rents or profits awarded by the judgment shall be
satisfied in the same manner as a judgment for money.
Based on this provision, enforcement in ejectment cases
requires the sheriff to give notice of such writ and to demand
from defendant to vacate the property within three days. Only
after such period can the sheriff enforce the writ by the bodily
removal of the defendant in the ejectment case and his personal
belongings.14 Even in cases wherein decisions are immediately
executory, the required three-day notice cannot be dispensed
with. A sheriff who enforces the writ without the required notice or
before the expiry of the three-day period is running afoul with the
Rules.15
In the present controversy, the Order denying the motion for
reconsideration was allegedly served, according to the
respondent, on the same day the writ was executed on March
17, 2011. Complainant, however, avers that his office was only
able to receive the denial the day after the execution or on March
18, 2011. At first blush, one might hastily conclude that the three-
day notice rule was apparently not observed. This Court,
however, is not prepared to make such a finding. We are mindful
of the possibility that a demand to vacate has already been given
when complainant and Rafols were first served the Order
granting the issuance of a writ of execution, before the motion for
reconsideration was filed. More importantly, complainant failed to
allege con-compliance with Sec. 10(c) of Rule 39.
Thus far, no deviation from the Rules has been properly ascribed
to respondent.1âwphi1 As an officer of the court, he is accorded
the presumption of regularity in the performance of his duties.
The burden was on complainant to adduce evidence that would
prove the respondent’s culpability, if any. Without evidence of
any departure from well established rules, any unlawful
behaviour, or any gross negligence on his part, the presumption
remains applicable and respondent cannot be held
administratively liable for the offense of grave misconduct.
Discourtesy in the Performance of Official Duties
The foregoing notwithstanding, the Court adopts in part the
recommendation of the investigating judge that respondent
should nonetheless be penalized for discourtesy in the
performance of his official duties.
As a public officer and a trustee for the public, it is the ever
existing responsibility of respondent to demonstrate courtesy and
civility in his official actuations with the public. 16 In Court
Personnel of the Office of the Clerk of Court of the Regional Trial
Court – San Carlos City v. Llamas,17 this Court has held that:
Public service requires integrity and discipline. For this reason,
public servants must exhibit at all times the highest sense of
honesty and dedication to duty. By the very nature of their duties
and responsibilities, they must faithfully adhere to, hold sacred
and render inviolate the constitutional principle that a public
office is a public trust; that all public officers and employees must
at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency.
xxxx
At all times, employees of the judiciary are expected to accord
respect to the person and the rights of another, even a co-
employee. Their every act and word should be characterized by
prudence, restraint, courtesy and dignity. Government service is
people-oriented; high-strung and belligerent behavior has no
place therein.
Rude and hostile behavior often translates a personal conflict
into a potent pollutant of an otherwise peaceful work
environment; ultimately, it affects the quality of service that the
office renders to the public. Letting personal hatred affect public
performance is a violation of the principle enshrined in the Code
of Conduct and Ethical Standards for Public Officials and
Employees, a principle that demands that public interest be
upheld over personal ones.

Improper behavior especially during office hours exhibits not only

a paucity of professionalism at the workplace, but also great
disrespect for the court itself. Such demeanor is a failure of
circumspection demanded of every public official and employee.
Thus, the Court looks "with great disfavor upon any display of
animosity by any court employee" and exhorts every court
personnel to act with strict propriety and proper decorum to earn
public trust for the judiciary. Colleagues in the judiciary, including
those occupying the lowliest position, are entitled to basic
courtesy and respect.

In discharging its constitutional duty of supervising lower courts

and their personnel, this Court cannot ignore the fact that the
judiciary is composed essentially of human beings who have
differing personalities, outlooks and attitudes; and who are
naturally vulnerable to human weaknesses. Nevertheless, the
Code of Judicial Ethics mandates that court personnel must not
only be, but also be perceived to be, free from any impropriety --
with respect not only to their duties in the judicial branch, but
also to their behavior anywhere else.

Based on the transcript of the altercation, it is readily apparent

that respondent has indeed been remiss in this duty of observing
courtesy in serving the public. He should have exercised
restraint in dealing with the complainant instead of allowing the
quarrel to escalate into a hostile encounter. The balm of a clean
conscience should have been sufficient to relieve any hurt or
harm respondent felt from complainant's criticisms in the
performance of his duties. On the contrary, respondent's
demeanour tarnished the image not only of his office but that of
the judiciary as a whole, exposing him to disciplinary measure.

Making Untruthful Statements

Lastly, the charge of making untruthful statements must also fail.

While the statements mentioned in respondent's complaint-
affidavit were not reflected in the transcript submitted by the
complainant, this actuality is not conclusive evidence that such
event did not take place. As claimed by respondent,
complainant's clerk was only able to record a part of the
argument. We cannot then discount the probability that there is
more to the argument than what was caught on video and there
remains the possibility that what respondent narrated and what
complainant recorded both actually transpired.

WHEREFORE, respondent Alfredo T. Pallanan is ADMONISHED

and WARNED to be always courteous in dealing with the public
in the performance of official duties. A repetition of the same or
similar acts will be dealt with more severely.

SO ORDERED.