FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs.

SANDIGANBAYAN and PEOPLE OF THE

PHILIPPINES, respondents.

BELLOSILLO, J.:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the Sandiganbayan of thirteen (13)
counts of estafa through falsification of public documents. 1 They now seek a review of their conviction as they insist on
their innocence.

Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, his co-petitioner
Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay Bagong Silang, Municipality of
Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB) representing the Federation of Kabataang
Barangays.

In the 1985 election for the Kabataang Barangay Jowil Red 2 won as KB Chairman of Barangay Matalaba, Santa Cruz.
Parenthetically, Lenlie Lecaroz, did not run as candidate in this electoral exercise as he was no longer qualified for the
position after having already passed the age limit fixed by law.

Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of the Sangguniang
Bayan of Santa Cruz representing the KBs of the municipality. Imee Marcos-Manotoc, then the National Chairperson of
the organization, sent a telegram to Red confirming his appointment and advising him further that copies of his
appointment papers would be sent to him in due time through the KB Regional Office. 3Red received the telegram on 2
January 1986 and showed it immediately to Mayor Francisco M. Lecaroz.

On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral representative of the KBs
to the SB, Red attended the meeting of the Sanggunian upon the invitation of one of its members, Kagawad Rogato
Lumawig. In that meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of the
municipal council until his appointment had been cleared by the Governor of Marinduque. Nonetheless, the telegram
was included in the agenda as one of the subjects discussed in the meeting.

Red finally received his appointment papers sometime in January 1986. 4 But it was only on 23 April 1986, when then
President Corazon C. Aquino was already in power, 5 that he forwarded these documents to Mayor Lecaroz. This
notwithstanding, Red was still not allowed by the mayor to sit as sectoral representative in the Sanggunian.

Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie Lecaroz of twenty-six (26)
sets of payrolls for the twenty-six (26) quincenas covering the period 16 January 1986 to 30 January 1987. Lenlie Lecaroz
signed the payroll for 1-15 January 1986 and then authorized someone else to sign all the other payrolls for the
succeeding quincenas and claim the corresponding salaries in his behalf.

On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment papers from
President Marcos, Red was finally able to secure from the Aquino Administration a confirmation of his appointment as
KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz.

Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor Francisco Lecaroz
and Lenlie Lecaroz arising from the refusal of the two officials to let him assume the position of KB sectoral
representative. After preliminary investigation, the Ombudsman filed with the Sandiganbayan thirteen (13)
Informations for estafa through falsification of public documents against petitioners, and one (1) Information for
violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against Mayor Lecaroz alone.

On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all counts of estafa
through falsification of public documents and sentenced each of them to —

a) imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS, ELEVEN (11) MONTHS AND
ONE (1) DAY of prision correccional to a maximum of TEN (10) YEARS AND ONE (1) DAY of prison mayor FOR EACH OF
THE ABOVE CASES;

b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE ABOVE CASES or a total of SIXTY-FIVE
THOUSAND PESOS (P65,000); and

c) perpetual special disqualification from public office in accordance with Art. 214 of the Revised Penal Code.

. . . (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX HUNDRED SEVENTY-FIVE PESOS
(P23,675), the amount unlawfully obtained, to the Municipality of Sta. Cruz, Marinduque in restitution.

The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office sometime in 1985
before then Assemblywoman Carmencita O. Reyes his assumption of the KB presidency upon the expiration of the term
of accused Lenlie Lecaroz was valid. Conversely, the accused Lenlie Lecaroz ceased to be a member of the KB on the last
Sunday of November 1985 and, as such, was no longer the legitimate representative of the youth sector in the municipal
council of Sta. Cruz, Marinduque.

In convicting both accused on the falsification charges, the Sandiganbayan elucidated —

. . . . when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his son, the accused LENLIE LECAROZ,
in the payroll of the municipality of Sta. Cruz for the payroll period starting January 15, 1986, reinstating accused LENLIE
LECAROZ to his position in the Sangguniang Bayan, he was deliberately stating a falsity when he certified that LENLIE
LECAROZ was a member of the Sangguniang Bayan. The fact is that even accused LENLIE LECAROZ himself no longer
attended the sessions of the Sangguniang Bayan of Sta. Cruz, and starting with the payroll for January 16 to 31, 1986,
did not personally pick up his salaries anymore.

The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which reads:

Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. — The penalty of prision mayor
and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary public who, taking
advantage of his official position, shall falsify a document by committing any of the following acts: . . . . 4. Making
untruthful statements in a narration of facts.

xxx xxx xxx

Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.

Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw salaries from the
municipality to which he was not entitled for services he had admittedly not rendered. This constitutes Estafa . . . . the
deceit being the falsification made, and the prejudice being that caused to the municipality of Sta. Cruz, Marinduque for
having paid salaries to LENLIE LECAROZ who was not entitled thereto.

Conspiracy was alleged in the Informations herein, and the Court found the allegation sufficiently substantiated by the
evidence presented.

There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son LENLIE in the municipal
payrolls from January 16, 1986 to January 31, 1987, yet he did so. He could not have had any other purpose than to
enable his son LENLIE to draw salaries thereby. This conclusion inescapable considering that the very purpose of a payroll
is precisely that — to authorize the payment of salaries. And LENLIE LECAROZ did his part by actually drawing the salaries
during the periods covered, albeit through another person whom he had authorized.

By the facts proven, there was conspiricy in the commission of Estafa between father and son.

However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3019, the Sandiganbayan acquitted Mayor
Francisco Lecaroz. It found that Red was neither authorized to sit as member of the SB because he was not properly
appointed thereto nor had he shown to the mayor sufficient basis for his alleged right to a seat in the municipal council.
On this basis, the court a quo concluded that Mayor Lecaroz was legally justified in not allowing Red to assume the
position of Kagawad.

On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by the accused. This
prompted herein petitioners to elevate their cause to us charging that the Sandiganbayan erred:

First, in holding that Red had validly and effectively assumed the office of KB Federation President by virtue of his oath
taken before then Assembly woman Carmencita Reyes on 27 September 1985, and in concluding that the tenure of
accused Lenlie Lecaroz as president of the KB and his coterminous term of office as KB representative to the SB had
accordingly expired;

Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth representative to the SB had
expired, in holding that accused Lenlie Lecaroz could no longer occupy the office, even in a holdover capacity, despite
the vacancy therein;
Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president had expired, in holding
that by reason thereof accused Lenlie Lecaroz became legally disqualified from continuing in office as KB Sectoral
Representative to the SB even in a holdover capacity;

Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the provisions of the pertinent
Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie Lecaroz was legally entitled
and even mandated to continue in office in a holdover capacity;

Fifth, in holding that the accused had committed the crime of falsification within the contemplation of Art. 171 of The
Revised Penal Code, and in not holding that the crime of estafa of which they, had been convicted required criminal
intent and malice as essential elements;

Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over, still the trial court erred
in not holding — considering the difficult legal questions involved — that the accused acted in good faith and committed
merely an error of judgment, without malice and criminal intent; and,

Seventh, in convicting the accused for crimes committed in a manner different from that alleged in the Information
under which the accused were arraigned and tried.

The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its conviction of the accused
are: (a) although Jowil Red was duly elected KB Chairman he could not validly assume a seat in the Sanggunian as KB
sectoral representative for failure to show a valid appointment; and, (b) Lenlie Lecaroz who was the incumbent KB
representative could not hold over after his term expired because pertinent laws do not provide for holdover.

To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral representatives to
the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51 and Sec. 1 of the KB Constitution respectively provide
—

Sec. 7. Term of office. — Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold
office for a term of six (6) years, which shall commence on the first Monday of March 1980.

In the case of the members of the sanggunian representing the association of barangay councils and the president of
the federation of kabataan barangay, their terms of office shall be coterminous with their tenure as president fo their
respective association and federation.
xxx xxx xxx

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last Sunday of November
1985 or such time that the newly elected officers shall have qualified and assumed office in accordance with this
Constitution.

The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did not present an
authenticated copy of his appointment papers; neither did he take a valid oath of office. Resultantly, this enabled
petitioner Lenlie Lecaroz to continue as member of the SB although in a holdover capacity since his term had already
expired. The Sandiganbayan however rejected this postulate declaring that the holdover provision under Sec. 1 quoted
above pertains only to positions in the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg.
51, there can be no holdover with respect to positions in the SB.

We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer implies that the office
has a fixed term and the incumbent is holding onto the succeeding term. 6 It is usually provided by law that officers
elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been
elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term
if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor
is elected and qualified, even though it be beyond the term fixed by law. 7

In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after
the expiration of his term in case his successor fails to qualify, it does, not also say that he is proscribed from holding
over. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in
office until his successor is appointed or chosen and has qualified. 8 The legislative intent of not allowing holdover must
be clearly expressed or at least implied in the legislative enactment, 9 otherwise it is reasonable to assume that the law-
making body favors the same.

Indeed, the law abhors a vacuum in public offices, 10 and courts generally indulge in the strong presumption against a
legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming,
for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. 11 This is
founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public
convenience from suffering because of a vacancy 12 and to avoid a hiatus in the performance of government functions.
13

The Sandiganbayan maintained that by taking his oath of office before Assembly woman Reyes in 1985 Red validly
assumed the presidency of the KB upon the expiration of the term of Lenlie Lecaroz. It should be noted however that
under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI thereof, members of the then
Batasang Pambansa were not authorized to administer oaths. It was only after the approval of RA No. 673314 on 25 July
1989 and its subsequent publication in a newspaper of general circulation that, members of both Houses of Congress
were vested for the first time with the general authority to administer oaths. Clearly, under this circumstance, the oath
of office taken by Jowil Red before a member of the Batasang Pambansa who had no authority to administer oaths, was
invalid and amounted to no oath at all.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the
office. 15 Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position
becomes plenary and complete. Until then, he has none at all. And for as long as he has not qualified, the holdover
officer is the rightful occupant. It is thus clear in the present case that since Red never qualified for the post, petitioner
Lenlie Lecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a
de jure officer, 16 or at least a de facto officer 17 entitled to receive the salaries and all the emoluments appertaining
to the position. As such, he could not be considered an intruder and liable for encroachment of public office. 18

On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were convicted, i.e., estafa
through falsification of public documents under Art. 171, par. 4, of The Revised Penal Code, are intentional felonies for
which liability attaches only when it is shown that the malefactors acted with criminal intent or malice. 19 If what is
proven is mere judgmental error on the part of the person committing the act, no malice or criminal intent can be
rightfully imputed to him. Was criminal intent then demonstrated to justify petitioners' conviction? It does not so appear
in the case at bar.

Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens sit rea. There
can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest
and real, will exempt the doer from felonious responsibility. The exception of course is neglect in the discharge of a duty
or indifference to consequences, which is equivalent to a criminal intent, for in this instance, the element of malicious
intent is supplied by the element of negligence and imprudence. 20 In the instant case, there are clear manifestations
of good faith and lack of criminal intent on the part of petitioners.

First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he presented to Mayor
Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-Manotoc informing him of his supposed
appointment to the SB, together with a photocopy of a "Mass Appointment." Without authenticated copies of the
appointment papers, Red had no right to assume office as KB representative to the Sanggunian, and petitioner Mayor
Lecaroz had every right to withhold recognition, as he did, of Red as a member of the Sanggunian.

Second. It appears from the records that although Red received his appointment papers signed by President Marcos in
January 1986, he forwarded the same to Mayor Francisco Lecaroz only on 23 April 1986 during which time President
Marcos had already been deposed and President Aquino had already taken over the helm of government. On 25 March
1986 the Freedom Constitution came into being providing in Sec. 2 of Art. III thereof that —

Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise, provided by proclamation or executive order or upon the designation of their successors if such appointment
is made within a period of one (1) year from February 26, 1986. (emphasis supplied).
Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial governor
forwarded the papers of Jowil Red to then Minister of Interior and Local Government Aquilino Pimentel, Jr., requesting
advice on the validity of the appointment signed by former President Marcos. The response was the issuance of MILG
Provincial Memorandum-Circular No. 86-02 21 and Memorandum-Circular No. 86-17 22 stating that —

PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02

2. That newly elected KB Federation Presidents, without their respective authenticated appointments from the
president, cannot, in any way, represent their associations in any sangguniang bayan/sangguniang panlalawigan, as the
case may be, although they are still considered presidents of their federations by virtue of the July 1985 elections.

MEMORANDUM CIRCULAR NO. 86-17

It is informed, however, that until replaced by the Office of the President or by this Ministry the appointive members of
the various Sangguniang Bayan, Sangguniang Panlunsod, and the Sangguniang Panlalawigan shall continue to hold office
and to receive compensation due them under existing laws, rules and regulations.

The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars virtually confirmed the right
of incumbent KB Federation Presidents to hold and maintain their positions until duly replaced either by the President
herself or by the Interior Ministry. Explicit therein was the caveat that newly elected KB Federation Presidents could not
assume the right to represent their respective associations in any Sanggunian unless their appointments were
authenticated by then President Aquino herself. Truly, prudence impelled Mayor Lecaroz to take the necessary steps to
verify the legitimacy of Red's appointment to the Sanggunian.

Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents Macapagal,
Marcos and Aquino concerning the doctrine of holdover. These consistently expressed the view espoused by the
executive branch for more than thirty (30) years that the mere fixing of the term of office in a statute without an express
prohibition against holdover is not indicative of a legislative intent to prohibit it, in light of the legal principle that just
as nature abhors a vacuum so does the law abhor a vacancy in the government. 23 Reliance by petitioners on these
opinions, as, well as on the pertinent directives of the then Ministry of Interior and Local Government, provided them
with an unassailable status of good faith in holding over and acting on such basis; and,

Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in the community,
would deliberately blemish his good name, and worse, involve his own son in a misconduct for a measly sum of
P23,675.00, such as this case before us. As aptly deduced by Justice Del Rosario. 24
If I were to commit a crime, would I involve my son in it? And if I were a town mayor, would I ruin my name for the
measly sum of P1,894.00 a month? My natural instinct as a father to protect my own son and the desire, basic in every
man, to preserve one's honor and reputation would suggest a resounding NO to both questions. But the prosecution
ventured to prove in these thirteen cases that precisely because they were father and son and despite the relatively
small amount involved, accused Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to falsify several municipal
payrolls for the purpose of swindling their own town of the amount of P1,894,00 a month, and the majority has found
them guilty. I find disconhfort with this verdict basically for the reason that there was no criminal intent on their part to
falsify any document or to swindle the government.

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith. 25 In Cabungcal v.
Cordova 26 we affirmed the doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance
by a city mayor does not amount to bad faith that would entitle an aggrieved party to damages against that official. We
reiterated this principle in Mabutol v. Pascual 27 which held that public officials may not be liable for damages in the
discharge of their official functions absent any bad faith. Sanders v. Veridiano II 28 expanded the concept by declaring
that under the law on public officers, acts done in the performance of official duty are protected by the presumption of
good faith.

In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2) circumstances which
purportedly indicated criminal intent. It pointed out that the name of accused Lenlie Lecaroz was not in the municipal
payroll for the first quincena of 1986 which meant that his term had finally ended, and that the reinstatement of Lenlie
Lecaroz by Mayor Francisco Lecaroz in the payroll periods from 15 January 1986 and thereafter for the next twelve and
a half (12-1/2) months was for no other purpose than to enable him to draw salaries from the municipality. 29 There is
however no evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the name of Lenlie
Lecaroz to be dropped from the payroll for the first quincena of January 1986. On the contrary, it is significant that while
Lenlie Lecaroz' name did not appear in the payroll for the first quincena of January 1986, yet, in the payroll for the next
quincena accused Lenlie Lecaroz was paid for both the first and second quincenas, and not merely for the second half
of the month which would have been the case if he was actually "dropped" from the payroll for the first fifteen (15) days
and then "reinstated" in the succeeding payroll period, as held by the court a quo.

From all indications, it is possible that the omission was due to the inadequate documentation of Red's appointment to
and assumption of office, or the result of a mere clerical error which was later rectified in the succeeding payroll. This
however cannot be confirmed by the evidence at hand. But since a doubt is now created about the import of such
omission, the principle of equipoise should properly apply. This rule demands that all reasonable doubt intended to
demonstrate error and not a crime should be resolved in favor of the accused. If the inculpatory facts and circumstances
are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other
with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.
30

Petitioners have been convicted for falsification of public documents through an untruthful narration of facts under Art.
171, par. 4, of The Revised Penal Code. For the offense to be established, the following elements must concur: (a) the
offender makes in a document statements in a narration of facts; (b) the offender has a legal obligation to disclose the
truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and, (d) the perversion of truth in
the narration of facts was made with the wrongful intent of injuring a third person.
The first and third elements of the offense have not been established in this case. In approving the payment of salaries
to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded certifications thus —

I hereby certify on my official oath that the above payroll is correct, and that the services above stated have been duly
rendered. Payment for such services is also hereby approved from the appropriations indicated.

When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts but a conclusion
of law expressing his belief that Lenlie Lecaroz was legally holding over as member of the Sanggunian and thus entitled
to the emoluments attached to the position. This is an opinion undoubtedly involving a legal matter, and any
"misrepresentation" of this kind cannot constitute the crime of false pretenses. 31 In People v. Yanza 32 we ruled —

Now then, considering that when defendant certified she was eligible for the position, she practically wrote a conclusion
of law which turned out to be inexact or erroneous — not entirely groundless — we are all of the opinion that she may
not be declared guilty of falsification, specially because the law which she has allegedly violated (Art. 171, Revised Penal
Code, in connection with other provisions), punishes the making of untruthful statements in a narration of facts —
emphasis on facts . . . . Unfortunately, she made a mistake of judgment; but she could not be held thereby to have
intentionally made a false statement of fact in violation of Art. 171 above-mentioned.

The third element requiring that the narration of facts be absolutely false is not even adequately satisfied as the belief
of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the Sanggunian was not entirely bereft of
basis, anchored as it was on the universally accepted doctrine of holdover. La mera inexactitude no es bastante para
integrar este delito. 33 If the statements are not altogether false, there being some colorable truth in them, the crime
of falsification is deemed not to have been committed.

Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved in this case. The court a
quo used as indication of conspiracy the fact that the accused Mayor certified the payrolls authorizing payment of
compensation to his son Lenlie Lecaroz and that as a consequence thereof the latter collected his salaries. These are not
legally acceptable indicia, for they are the very same acts alleged in the Information as constituting the crime of estafa
through falsification. They cannot qualify as proof of complicity or unity of criminal intent. Conspiracy must be
established separately from the crime itself and must meet the same degree of proof, i.e., proof beyond reasonable
doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the
accused before, during and after the commission of the crime, all taken together however, the evidence must reasonably
be strong enough to show community of criminal design. 34

Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its finding of conspiracy, the
Sandiganbayan stressed that the two accused are father and son. Granting that this is not even ad hominem, we are
unaware of any presumption in law that a conspiracy exists simply because the conspirators are father and son or related
by blood.
WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and Resolution of 1 October 1997 of the
Sandiganbayan are REVERSED and SET ASIDE, and petitioners FRANCISCO M. LECAROZ and LENLIE LECAROZ are
ACQUITTED of all the thirteen (13) counts of estafa through falsification of public documents (Crim. Cases Nos. 13904-
13916). The bail bonds posted for their provisional liberty are cancelled and released. Costs de oficio.

SO ORDERED.
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES,
VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.

and

JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, Desierto respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the
President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are
important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While the
significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy,
Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria
Macapagal-Arroyo was elected Vice-President. Some (10) million Filipinos voted for the petitioner believing he would
rescue them from life's adversity. Both petitioner and the respondent were to serve a six-year term commencing on
June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded
his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governos, Luis "Chavit" Singson, a
longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of
pesos from jueteng lords.[1]

The expose immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona Jr, then
the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He accused the
petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August
2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended
for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee
(then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano)
for joint investigation.[2]
The House of Representatives did no less. The House Committee on Public Order and Security, then headed by
Representative Roilo Golez, decided to investigate the expose of Governor Singson. On the other hand, Representatives
Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral
statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the
presidency as he had lost the moral authority to govern.[3] Two days later or on October 13, the Catholic Bishops
Conference of the Philippines joined the cry for the resignation of the petitioner.[4] Four days later, or on October 17,
former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice" of
resignation.[5] Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo
resigned as Secretary of the Department of Social Welfare and Services[6] and later asked for petitioner's resignation.[7]
However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic
Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente
Paterno and Washington Sycip.[8] On November 2, Secretary Mar Roxas II also resigned from the Department of Trade
and Industry.[9] On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some
47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.[10]

The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar
transmitted the Articles of Impeachment[11] signed by 115 representatives, or more than 1/3 of all the members of the
House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon
was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative Fuentabella.[12]
On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.[13]

The political temperature rose despite the cold December. On December 7, the impeachment trial started.[14] the battle
royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House
Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul
Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor
General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General
and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the
House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live
TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational
piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo,
senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he
affixed the signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on
February 4, 2000.[15]
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on
January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served
as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing charges of insider trading.[16] Then came the fateful day of January 16,
when by a vote of 11-10[17] the senator-judges ruled against the opening of the second envelop which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde."
The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.[18] The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the
metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered
against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation.
They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.[19] Senator Raul Roco
quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives
shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.[20]

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people
holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the
EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers walked
out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all
masters of the physics of persuasion, attracted more and more people.[21]

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive
Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected.
At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did
not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together
with the chiefs of all the armed services went to the EDSA Shrine.[22] In the presence of former Presidents Aquino and
Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of your Armed
Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support
to this government."[23] A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders
gave a similar stunning announcement.[24] Some Cabinet secretaries, undersecretaries, assistant secretaries, and
bureau chiefs quickly resigned from their posts.[25] Rallies for the resignation of the petitioner exploded in various parts
of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of
the highly controversial second envelop.[26] There was no turning back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly
transfer of power started at Malacañang's Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara,
Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla,
and Atty. Macel Fernandez, head of the presidential Management Staff, negotiated for the petitioner. Respondent
Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now
Secretary of Justice Hernando Perez.[27] Outside the palace, there was a brief encounter at Mendiola between pro and
anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations consumed all
morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high
noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the
Philippines.[28] At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.[29] He issued the following
press statement:[30]

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the
Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality
and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace
and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the
opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in
the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation
and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:[31]
"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I
am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President
shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January 20.[32] Another copy was
transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.[33]

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers and duties of
the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to
wit:

"A.M. No. 01-1-05-SC - In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President
of the Republic of the Philippines before the Chief Justice - Acting on the urgent request of Vice-President Gloria
Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and
confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the
court Resolved unanimously to confirm the authority given by the twelve (12) members of the Court then present to
the Chief Justice on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as
President of the Philippines, at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that maybe filed by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.[34] Recognition of
respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d'
honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred
foreign diplomats recognized the government of respondent Arroyo.[35] US President George W. Bush gave the
respondent a telephone call from the White House conveying US recognition of her government.[36]

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.[37] The
House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration
of Her Excellency Gloria Macapagal-Arroyo, President of the Philippines."[38] It also approved Resolution No. 176
"expressing the support of the House of Representatives to the assumption into office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the Constitution."[39]
On January 26, the respondent signed into law the Solid Waste Management Act.[40] A few days later, she also signed
into law the Political Advertising Ban and Fair Election Practices Act.[41]

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.[42] the next day,
February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.[43] Senators
Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmeña voted "yes" with reservations, citing as reason therefore
the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa
Aquino-Oreta and Robert Barbers were absent.[44] The House of Representatives also approved Senator Guingona's
nomination in Resolution No. 178.[45] Senator Guingona took his oath as Vice President two (2) days later.[46]

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has
been terminated.[47] Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of
the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the
resolution left open the question of whether Estrada was still qualified to run for another elective post.[48]

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16% on
January 20, 2001 to 38% on January 26, 2001.[49] In another survey conducted by the ABS-CBN/SWS from February 2-
7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner
Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance
of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by
majorities in all social classes:

58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the E's or very poor class.[50]

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously
filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by
Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the
Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct, violation of the Code of Conduct for government Employees, etc; (3) OMB Case No. 0-00-
1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on
November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc., (5) OMB
Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation
of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December
4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against
the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz:
Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January
22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as
well as other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition
for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from
"conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other
criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally
warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily
unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the
Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos.
146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a non-
extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos.
146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice
Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52] recused themselves on motion of petitioner's counsel,
former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have "compromised
themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves.
Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit
their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag
Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the
President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt
to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending
decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or
deciding the criminal cases pending investigation in his office against petitioner Joseph E. Estrada and subject of the
cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases
against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make
the cases at bar moot and academic."[53]
The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while
respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner
Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal
prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases at bar involve a political question

Private respondents[54] raise the threshold issue that the cases at bar pose a political question, and hence, are beyond
the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the "legitimacy
of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through people power; that
she has already taken her oath as the 14th President of the Republic; that she has exercised the powers of the presidency
and that she has been recognized by foreign governments. They submit that these realities on ground constitute the
political thicket which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on political
question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political
question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be
refined in the mills constitutional law.[55] In the United States, the most authoritative guidelines to determine whether
a question is political were spelled out by Mr. Justice Brennan in the 1962 case of Baker v. Carr,[56] viz:

"x x x Prominent on the surface on any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretions; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence
to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we treat is one of
'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the
inner and outer perimeters of a political question.[57] Our leading case is Tanada v. Cuenco,[58] where this Court,
through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has
narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not
only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government.[59] Heretofore, the judiciary has focused on the "thou shalt not's" of the
Constitution directed against the exercise of its jurisdiction.[60] With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the
Court power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution
trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x 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 x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C.
Aquino, et al.[61] and related cases[62] to support their thesis that since the cases at bar involve the legitimacy of the
government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases
will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was
the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom
Constitution[63] declared that the Aquino government was installed through a direct exercise of the power of the
Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." It is familiar learning that the
legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that
government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent
Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987
Constitution.[64] In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has
stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise
of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of
freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected
the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from
it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President
that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented
political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of
assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not
inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of
our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom
of the press of the Filipinos and included it as among "the reforms sine quibus non."[65] The Malolos Constitution, which
is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of
the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means;
(2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right
to send petitions to the authorities, individually or collectively." These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the instruction to the Second Philippine Commission of April
7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of
grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law,
the Act of Congress of August 29, 1966.[66]

Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and the 1973[68] Constitution. These rights are
now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The reasons
are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second,
it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation
in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a
more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus."[69]
In this sense, freedom of speech and of assembly provides a framework in which the "conflict necessary to the progress
of a society can take place without destroying the society."[70] In Hague v. Committee for Industrial Organization,[71]
this function of free speech and assembly was echoed in the amicus curiae brief filed by the Bill of Rights Committee of
the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by all."[72] In the relatively
recent case of Subayco v. Sandiganbayan,[73] this Court similarly stressed that "... it should be clear even to those with
intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For
in a democracy, it is the people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the
proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,[74] and section
8[75]of Article VII, and the allocation of governmental powers under section 11[76] of Article VII. The issues likewise call
for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of
petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,[77] the doctrine has been laid
down that " it is emphatically the province and duty of the judicial department to say what the law is . . ." Thus,
respondent's invocation of the doctrine of political is but a foray in the dark.

II

Whether or not the petitioner resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it
involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial
notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that
the office of the President was not vacant when respondent Arroyo took her oath as president.

The issue brings under the microscope of the meaning of section 8, Article VII of the Constitution which provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President
shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or
resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker
of the House of Representatives, shall then acts as President until President or Vice President shall have been elected
and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001
when respondent took her oath as the 14th President of the Republic. Resignation is not a high level legal abstraction.
It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.[78] The validity of a resignation is not governed by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be
given legal effect.

In the cases at bar, the facts shows that petitioner did not write any formal letter of resignation before he evacuated
Malacañang Palace in the Afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently,
whether or not petitioner resigned has to be determined from his acts and omissions before, during and after January
20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of
events after the exposá© of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed
revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The
Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of
succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House
of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary
of Social Welfare. Senate President Drilon and Former Speaker Villar defected with 47 representatives in tow. Then, his
respected senior economic advisers resigned together with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached a
new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It
sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with
people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread
to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The
window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in
the Philippine Daily Inquirer.[79] The Angara Diary reveals that in morning of January 19, petitioner's loyal advisers were
worried about the swelling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle it. Their
worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence
and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"[80] An hour
later or at 2:30, p.m., the petitioner decided to call for a snap presidential election and stressed he would not be a
candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that
petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA
demonstrators demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of
support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner
weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the
option of "dignified exit or resignation."[81] Petitioner did nor disagree but listened intently.[82] The sky was falling fast
on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and
dignified exit. He gave the proposal a sweetener by saying that petitioner would allowed to go abroad with enough
funds to support him and his family.[83] Significantly, the petitioner expressed no objection to the suggestion for a
graceful and dignified exit but said he would never leave the country.[84] At 10:00 p.m., petitioner revealed to Secretary
Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace."[85] This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day
grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested,
"Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of
power."[86] There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage,
the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that
fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the
petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open
the second envelope to vindicate the name of the petitioner.[87] Again, we note that the resignation of petitioner was
not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he
briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the
petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately stresses that he just wants
the five-day period promised by Reyes, as well as to open the second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy,
intriga. (I am very tired. I don't want any more of this - it's too painful. I'm tired of the red tape, the bureaucracy, the
intrigue.)

I just want to clear my name, then I will go."[88]

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x x Ayoko
na masyado nang masakit." " Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened:

"Opposition's deal

7:30 a.m. - Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this round, I am
accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday,
24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines.

2. Beginning today, 20 January 2001, the transition process for the assumption of the new administration shall
commence, and persons designated by the Vice president to various positions and offices of the government shall start
their orientation activities in coordination with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as
national military and police effective immediately.

4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the security of the president and his
family as approved by the national military and police authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the
President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate
President.'

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada
will turn over the presidency to Vice President Gloria Macapagal-Arroyo.

2. In return, President Estrada and his families are guaranteed security and safety of their person and property
throughout their natural lifetimes. Likewise, President Estrada and his families are guaranteed freedom from
persecution or retaliation from government and the private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines ('AFP') through the Chief of Staff, as
approved by the national military and police authorities - Vice President (Macapagal).

3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court will authorize the opening of
the second envelope in the impeachment trial as proof that the subject savings account does not belong to President
Estrada.

4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the "Transition Period"), the
incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the
orientation program.

During the Transition Period, the AFP and the Philippine National Police ('PNP') shall function under Vice President
(Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures
as affixed to this agreement and insure faithful implementation and observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in 'Annex A'
heretofore attached to this agreement.'"[89]

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this
second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled
points at that time were the measures to be undertaken by the parties during and after the transition period.

According to Secretary Angara, the draft agreement which was premised on the resignation of the petitioner was further
refined. It was then signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the
signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her
oath-taking. The Angara Diary narrates the fateful events, viz:[90]

"x x x
11:00 a.m. - Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful
transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background.

Agreement

The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24
January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein
persons designated by the Vice President to various government positions shall start orientation activities with
incumbent officials.

3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President
and his families throughout their natural lifetimes as approved by the national military and police authority - Vice
President.

4. The AFP and the Philippine National Police ('PNP') shall function under the Vice President as national military and
police authorities.

5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of
which shall be offered as proof that the subject savings account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex 'B' heretofore attached to
this agreement.

xxx

11:20 a.m. - I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the
signature of the United Opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo
is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldn't you wait? What about the agreement)?' I
asked.

Reyes answered: 'Wala na, sir (It's over, sir).'

I asked him: 'Di yung transition period, moot and academic na?'

And General Reyes answer: 'Oo nga, i-delete na natin, sir (Yes, we're deleting that part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and
academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by
myself, Dondon and Macel to Nene Pimentel and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is
important that the provision on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria
at 12 noon.

The president is too stunned for words.

Final meal

12 noon - Gloria takes her oath as President of the Republic of the Philippines.

12:20 p.m. - The PSG distributes firearms to some people inside the compound.
The President is having his final meal at the Presidential Residence with the few friends and Cabinet members who have
gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to
protect the Palace, since the police and military have already withdrawn their support for the President.

1 p.m. - The President's personal staff is rushing to pack as many of the Estrada family's personal possessions as they
can.

During lunch, Ronie Puno mentions that the President needs to release a final statement before leaving Malacañang.

The statement reads: 'At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President
of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious
doubts about the legality and constitutionality of her proclamation as president, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace
and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the
opportunities given to me for service to our people. I will not shrik from any future challenges that may come ahead in
the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation
and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!'"

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacañang.
In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President
of the Republic albeit with the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of
the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was
leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability
disappears; (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was
referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from
any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future
challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join
him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's
valedictory, his final act of farewell. His presidency is now in the past tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave of absence due to his inability to
govern. In support of this thesis, the letter dated January 20, 2001 of the petitioner sent to Senate President Pimentel
and Speaker Fuentebella is cited. Again, we refer to the said letter, viz:

"Sir

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I
am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President
shall be the Acting President.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.[91] The pleadings filed by the petitioner in the cases at bar did
not discuss, nay even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner
reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite
its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest
hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his
press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent
Arroyo for the time being. Under any circumstance, however, the mysterious letter cannot negate the resignation of the
petitioner. If it was prepared before the press release of the petitioner clearly showing his resignation from the
presidency, then the resignation must prevail as a later act. If, however, it was prepared after the press release, still, it
commands scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing
caprice nor of a whimsical will especially if the resignation is the result of his repudiation by the people. There is another
reason why this Court cannot give any legal significance to petitioner's letter and this shall be discussed in issue number
III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter
of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which
allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or
pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on
bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019
originated from Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain
a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo
Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a provision to
the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative
investigation, shall be allowed to voluntarily resign or retire."[92] During the period of amendments, the following
provision was inserted as section 15:

"Sec. 15. Termination of office - No public official shall be allowed to resign or retire pending an investigation, criminal
or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the
Revised Penal Code on bribery.

The separation or cessation of a public official from office shall not be a bar to his prosecution under this Act for an
offense committed during his incumbency."[93]

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the
provision and insisted that the President's immunity should extend even after his tenure.

Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter passed. Section 15 above
became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity
of the President which was one of the reasons for the veto of the original bill. There was hardly any debate on the
prohibition against the resignation or retirement of a public official with pending criminal and administrative cases
against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or
retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or
administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery
under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation
of his constitutional right.[94] A public official has the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or
prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings
against him. He cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that when
petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-
1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman
refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President
then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman
lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it
contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the
immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA
3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But
even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner
resigned because the process already broke down when a majority of the senator-judges voted against the opening of
the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of
Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment
case pending against petitioner when he resigned.

III

Whether or not the petitioner is only temporarily unable to act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and
duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January
20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner
to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate
authority under the Constitution to determine whether the President is incapable of performing his functions in the
manner provided for in section 11 of Article VII."[95] This contention is the centerpiece of petitioner's stance that he is
a President on leave and respondent Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmit to the President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he
transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of
the House of Representatives their written declaration that the President is unable to discharge the powers and duties
of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of
Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office.
Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate
and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge
the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if
it is not in session, within forty-eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session within twelve days after
it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is
unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the
President shall continue exercising the powers and duties of his office."

That is the law. Now the operative facts:

(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the
House;

(2) Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30
p.m.;

(3) Despite receipt of the letter, the House of Representative passed on January 24, 2001 House Resolution No. 175;[96]

On the same date, the House of the Representatives passed House Resolution No. 176[97]which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY
VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF
THE NATION'S GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph Ejercito Estrada
to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had
withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was
sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her
Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and
reconciliation with justice for the purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of
the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of
fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate
fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity
as it is a direct representative of the various segments of the whole nation;

WHEREAS, without surrendering its independence, it is vital for the attainment of all the foregoing, for the House of
Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria
Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its
support for her administration as a partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 178[98] which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR TEOFISTO T.
GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President
Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall
nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume
office upon confirmation by a majority vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T.
Guingona Jr., to the position of Vice President of the Republic of the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who
has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the
government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines - qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the
nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines.

Adopted,

(Sgd) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate signed the
following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolute
cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in
perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and
resolve to discharge our duties to attain desired changes and overcome the nation's challenges."[99]

On February 7, the Senate also passed Senate Resolution No. 82[100] which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SEN. TEOFISTO T.

GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is it vacancy in the Office of the Vice-President due to the assumption to the Presidency of Vice
President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate
a Vice President from among the members of the Senate and the House of Representatives who shall assume office
upon confirmation by a majority vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T.
Guingona, Jr. to the position of Vice President of the Republic of the Phillippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence, and courage; who has
served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the
government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of Justice. Senator of the land - which qualities merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101] which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officio and has been
terminated.

Resolved, further, That the Journals of the Impeachment Court of Monday, January 15, Tuesday, January 16 and
Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the 'second envelope' be transferred to the
Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition
and retrieval thereof shall be made only upon written approval of the Senate President.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of a vacancy in the Senate and
calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on
May 14, 2001 and the senatorial candidate garnering the thirteenth (13th) highest number of votes shall serve only for
the unexpired term of Senator Teofisto T. Guingona, Jr."

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of
government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the
petitioner continues to claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo
as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer
temporary. Congress has clearly rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and
thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as President of the Philippines.
Following Tañada v. Cuenco,[102] we hold that this Court cannot exercise its judicial power for this is an issue "in regard
to which full discretionary authority has been delegated to the Legislative x x x branch of the government." Or to use
the language in Baker vs. Carr,[103] there is a "textually demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially discoverable and manageable standards for resolving it." Clearly,
the Court cannot pass upon petitioner's claim of inability to discharge the powers and duties of the presidency. The
question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue which cannot
be decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President
on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and
the decision that respondent Arroyo is the de jure President made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should
be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys
immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history on executive immunity will be most enlightening.
The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco
tiaco and Crossfield,[104] the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-
General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the
City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition,
this Court, speaking thru Mr. Justice Johnson, held:

"The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts
of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a
construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad,
destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean,
either, that a person injured by the executive authority by an act unjustifiable under the law has no remedy, but must
submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts and the
members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in
the performance of his official duties. The judiciary has full power to, and will, when the matter is properly presented
to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as
possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured
to every person, however humble or of whatever country, when his personal or property rights have been invaded, even
by the highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally
in damages which result from the performance of his official duty, any more that it can a member of the Philippine
Commission or the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to
acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had,
particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the
Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he
can not be said to have exercise discretion in determining whether or not he had the right to act. What is held here is
that he will be protected from personal liability for damages not only when he acts within his authority, but also when
he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, he is entitled to protection in determining the question of his
authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men,
reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so
plain that two such men could not honestly differ over its determination. In such case, he acts, not as Governor-General
but as a private individual, and, as such, must answer for the consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz: "x x
x. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling
litigation; disrespect engendered for the person of one of the highest officials of the State and for the office he occupies;
a tendency to unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself."[105]

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the
tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In
1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done
by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution."

In his second Vicente G. Sinco Professional Chair Lecture entitled, " Presidential Immunity And All The King's Men: The
Law Of Privilege As A Defense To Actions For Damages,"[106] petitioner's learned counsel, former Dean of the UP college
of Law, Atty. Pacifico Agabin, brightlined the modifications effected by this constitutional amendment on the existing
law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity
concept. First, we extended it to shield the President not only from civil claims but also from criminal cases and other
claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official
duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they
government officials or private individuals, who acted upon orders of the President. It can be said that at that point most
of us were suffering from AIDS (or absolute immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the
1973 Constitution. The move was led by then Member of Parliament, now Secretary of Finance, Alberto Romulo, who
argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a
public trust. He denounced the immunity as a return to the anachronism "the king can do no wrong."[107] The effort
failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution
in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the
1973 Constitution. The following explanation was given by delegate J. Bernas, viz:[108]

"Mr. Suarez. Thank you.

The last question is with reference to the committee's omitting in the draft proposal the immunity provision for the
President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at
the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee
members not agree to a restoration of at least the first sentence that the President shall be immune from suit during
his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure
he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make
that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I thank the Commissioner for the clarification."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be
prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of
petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency.
Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is
Functus Officio."[109] Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that
he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual
bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation
than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a
criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already
be filed against him, viz:[110]

"x x x

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the
President resigns before judgment of conviction has been rendered by the impeachment court or by the body, how does
it affect the impeachment proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render
the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the
ordinary courts."

This is in accord with our ruling in In re: Saturnino Bermudez[111]that "incumbent Presidents are immune from suit or
from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the peculiar
circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment proceedings. His reliance in the case of Lecaroz vs.
Sandiganbayan[112] and related cases[113]are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed
against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch
of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the allege mantle
of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit
criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is
an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts
of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other
trespasser.[114] Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974
case of US v. Nixon,[115] US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings
and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were
facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the
Democratic National Headquarters in Washington's Watergate Hotel during the 1972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground,
among others, that the President was not subject to judicial process and that he should first be impeached and removed
from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court.
It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial
is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,[116] the US Supreme
Court further held that the immunity of the President from civil damages covers only "official acts." Recently, the US
Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones[117] where it held that the US
President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction.
One of the great themes of the 1987 Constitution is that a public office is a public trust.[118] It declared as a state policy
that "(t)he State shall maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption."[119] It ordained that "(p)ublic 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."[120] It set the rule that "(t)he right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches or
estoppel."[121] It maintained the Sandiganbayan as an anti-graft court.[122] It created the office of the Ombudsman
and endowed it with enormous powers, among which is to "(i)nvestigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient."[123] The Office of the Ombudsman was also given fiscal autonomy.[124] These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for
criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the
cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent
Ombudsman has developed bias and is all set to file the criminal cases in violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained
publicity during the investigation and trial of high profile cases.[125] The British approach the problem with the
presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right
of an accused to fair trial suffers a threat.[126] The American approach is different. US courts assume a skeptical
approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed
different strains of tests to resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and
present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions
in high profile criminal cases.[127] In People vs. Teehankee, Jr.,[128] later reiterated in the case of Larranaga vs. Court
of Appeals, et al.,[129] we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true
that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake
criminal trials. Then and now, we now rule that the right of an accused to a fair trial is not incompatible to a free press.
To be sure, responsible reporting enhances an accused's right to a fair trial for, as well pointed out, a responsible press
has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x.
The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting
the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant
was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the
trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-
trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings
news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out
of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest
they lose their impartiality. x x x x x x x x x. Our judges are learned in the law and trained to disregard off-court evidence
and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does
not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity
that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard
of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial
publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might
be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias
against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity
which is incapable if change even by evidence presented during the trial. Appellant has the burden to prove this actual
bias and he has not discharged the burden."

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.[130] and its
companion cases. viz.:

"Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary
investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty
while undergoing a preliminary investigation.
xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases
can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar.
Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public
with views not too many of which are sober and sublime. Indeed, even the principal actors in the case - the NBI, the
respondents, their lawyers and their sympathizers - have participated in this media blitz. The possibility of media abuses
and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. Inn
the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:

'x x x

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that
the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively
open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community
therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and
public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose,
providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's
criminal process 'satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which
can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history,
supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres
in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610,
4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core
purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing
freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to
attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas
means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public at the time the First Amendment was
adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but
also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked
by the draftsmen. A trial courtroom is a public place where the people generally - and representatives of the media -
have a right to be present, and where their presence historically has been thought to enhance the integrity and quality
of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend
criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the
enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment:
without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of
speech and of the press could be eviscerated.'

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an
accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a
finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not
simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove
that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness
of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor
to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of time the investigation was conducted despite its
summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the
ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary
investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to
discharge his burden of proof.[131] He needs to show more weighty social science evidence to successfully prove the
impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No
allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already
been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to
come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the
petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner's
submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports, and he has
buckled to the threats and pressures directed at him by the mobs."[132] News reports have also been quoted to
establish that the respondent Ombudsman has already prejudged the cases of the petitioner[133]and it is postulated
that the prosecutors investigating the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred
to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the
respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance
of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give
investigating prosecutors the independence to make their own findings and recommendations albeit they are
reviewable by their superiors.[134] They can be reversed but they can not be compelled to change their
recommendations nor can they be compelled to prosecute cases which they believe deserve dismissal. In other words,
investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman
resolves to file the cases against the petitioner and the latter believes that the finding of probable cause against him is
the result of bias, he still has the remedy of assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension and
then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice
will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the
respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair
investigation and trial which has been categorized as the "most fundamental of all freedoms."[135] To be sure, the duty
of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary
investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord
Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose
judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a
democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has
proved to be the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's
progress from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the
de jure 14th President of the Republic are DISMISSED.

SO ORDERED.
NELSON P. COLLANTES, Petitioner, versus HON. COURT OF APPEALS, CIVIL SERVICE COMMISSION and
DEPARTMENT OF NATIONAL DEFENSE, Respondents.

CHICO-NAZARIO, J.:

A decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified
in any respect, even if the modification is meant to correct erroneous conclusions of fact and law; and whether it be
made by the court that rendered it or by the highest court in the land.[1]

What would happen, however, if two separate decisions, irreconcilably conflicting with each other, both attained
finality? Quite clearly, to hold that both decisions are immutable and unalterable would cause not only confusion and
uncertainty, but utter bewilderment upon the persons tasked to execute these judgments.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to set aside the Decision[2] dated
10 March 2005 and the Resolution[3] dated 31 August 2005 of the Court of Appeals in CA-G.R. SP No. 78092.

The undisputed facts of this case are summarized by the Court of Appeals:

Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career Executive Service Eligibility on 29 February 1996.
Then President Fidel V. Ramos accorded him the rank of Career Executive Service Officer (CESO) II on 10 February 1997.
More than a year later, he was appointed as Undersecretary for Peace and Order of the Department of Interior and
Local Government (DILG).

With the change of administration, Collantes allegedly received word from persons close to then President Ejercito
Estrada to give up his position so that the President could unreservedly appoint his key officials. As such, Collantes
relinquished his post at the DILG.

Thereafter, on 1 July 1998, President Estrada appointed Collantes to the controversial post - Undersecretary for Civilian
Relations of the Department of National Defense (DND). As it happened, his stint in the DND was short lived. Collantes
was supposedly ordered by then Secretary Orlando Mercado to renounce his post in favor of another presidential
appointee, General Orlando Soriano. In deference to the President's prerogative, he resigned from office believing that
he will soon be given a new assignment.
Unfortunately, Collantes was not given any other post in the government, as in fact, he received a letter from President
Estrada terminating his services effective 8 February 1999. Consequently, on 24 March 1999, Collantes requested the
assistance of the Career Executive Service Board relative to the termination of his services as Undersecretary for Civilian
Relations of the DND invoking his right to security of tenure as a CESO.

The termination of Collantes' services, notwithstanding, President Estrada accorded Collantes the highest rank in the
CES ranking structure, CESO Rank I, on 17 July 1999. But then, despite this promotion in rank, Collantes did not receive
new appointment, and worse, the President appointed Mr. Edgardo Batenga to the much coveted position of
Undersecretary for Civilian Relations of the DND.

Taking definite action on the matter, Collantes instituted a Petition for Quo Warranto and Mandamus before Us on 29
January 2001, docketed as C.A. G.R. SP NO. 62874. Collantes maintained that he was constructively dismissed from work,
without any cause and due process of law, and thus, his position in the DND was never vacated at all. Accordingly, he
prayed that the appointment of Mr. Edgardo Batenga be nullified, and that he be reinstated to his former position with
full back salaries. Notably, Collantes also sought for appointment to a position of equivalent rank commensurate to his
CESO Rank I if reinstatement to his former position is no longer legally feasible.

Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes' letter-request issuing Resolution No. 011364, and
thereby holding that Collantes' relief as Undersecretary of DND amounted to illegal dismissal as he was not given
another post concomitant to his eligibility.

Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No. 62874 dismissing the Petition for Quo Warranto
and Mandamus filed by Collantes. Significantly, We pronounced:

"By such actuations of the petitioner, the Court finds that he has (sic) effectively resigned from his position as
Undersecretary of the DND, and the public respondents are under no compulsion to reinstate him to his old position.

xxxx

"In this case, petitioner has undoubtedly shown his intention to relinquish his public office, and has in fact surrendered
such post to the Chief Executive, who, on the other hand, has shown his acceptance of the same by appointing a new
person to the position relinquished by the petitioner.

xxxx
Quo warranto, it must be pointed out, is unavailing in the instatnt case, as the public office in question has not been
usurped, intruded into or unlawfully held by the present occupant. Nor does the incumbent undersecretary appear to
have done or suffered an act which forfeits his assumption. (Section 1, Rule 66, 1997 Rules of Civil Procedure).
Furthermore, it appears that the action for quo warranto, assuming it is available, has already lapsed by prescription,
pursuant to Section 11 of the pertinent Rule ...

xxxx

WHEREFORE, premises considered, the instant petition for Quo Warranto and Mandamus is hereby DISMISSED."

The controversy reached the Supreme Court as G.R. No. 149883. Nevertheless, the case was considered closed and
terminated when Collantes manifested his desire not to pursue his appeal and withdraw his Petition for Review on
Certiorari. Thereafter, Collantes moved for the execution of CSC Resolution No. 011364, which was accordingly granted
through CSC Resolution No. 020084 dated 15 January 2002 "directing the DND to give Collantes a position where his
eligibility is appropriate and to pay his backwages and other benefits from the time of his termination up to his actual
reinstatement."

In a Letter dated 7 February 2002, the Legal Affairs Division of the DND, through Atty. Leticia A. Gloria, urged the CSC to
revisit its Resolutions which were entirely in conflict with Our 30 August 2001 Decision in C.A. G.R. SP NO. 62874, which
has attained finality pursuant to the Supreme Court's Resolution in G.R. No. 149883.

Consequently, in complete turnabout from its previous stance, the CSC issued Resolution No. 021482 dated 12
November 2002 declaring that had it been properly informed that a Petition for Quo Warranto and Mandamus was then
pending before Us, it would have refrained from ruling on Collantes' quandary, thus:

"WHEREFORE, the Motion for Reconsideration of Assistant Secretary for Legal Affairs Leticia A. Gloria of the department
of National Defense (DND) is hereby GRANTED and CSC Resolutions Nos. 01-1364 dated August 13, 2001 and 02-0084
dated January 15, 2002 are reversed. Accordingly, pursuant to the decision of the Court of Appeals, Nelson P. Collantes
is deemed effectively resigned from his position as Undersecretary of the DND."

Forthwith, Collantes moved for a reconsideration of this Resolution, but was denied by the CSC in the second assailed
Resolution No. 030542 dated 5 May 2003.[4]

On 18 July 2003, herein petitioner Collantes then filed a Petition for Certiorari with the Court of Appeals praying for the
reversal of the Civil Service Commission (CSC) Resolutions No. 021482 and No. 030542. Before the Court of Appeals can
decide this case, however, petitioner was appointed as General Manager of the Philippine Retirement Authority on 5
August 2004. The Court of Appeals dismissed the Petition for Certiorari in the assailed 10 March 2005 Decision:

WHEREFORE, the Petition for Certiorari is hereby DISMISSED. No grave abuse of discretion may be imputed against the
Civil Service Commission for rendering Resolution Nos. 021482 and 030542, dated 12 November 2002 and 5 May 2003,
respectively. No pronouncement as to costs.[5]

The Motion for Reconsideration filed by petitioner was denied in the assailed 31 August 2005 Resolution.[6]

Petitioner filed the present Petition for Review, seeking the reversal of the foregoing Decision and Resolution of the
Court of Appeals. In view of his 5 August 2004 appointment, however, petitioner's prayer is now limited to seeking the
payment of backwages and other benefits that may have been due him from the time of his alleged dismissal on 8
February 1999 to his appointment on 5 August 2004. Petitioner submits the following issues for our consideration:

A.

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT HELD THAT THE DECISION
IN CA-G.R. NO. 62874 IN THE COURT OF APPEALS IS A BAR TO IMPLEMENT THE FINAL AND EXECUTORY JUDGMENT OF
THE CIVIL SERVICE COMMISSION DATED AUGUST 14, 2001.

B.

WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT DID NOT FIND THAT THE
CIVIL SERVICE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT REVERSED ITS VERY OWN DECISION WHICH HAS LONG BECOME FINAL AND EXECUTORY AND IN
FLAGRANT VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.

C.
WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT UPHELD THE RESOLUTION
OF THE CIVIL SERVICE COMMISSION WHICH HELD THAT PETITIONER MAY BE REMOVED FROM HIS POSITION AS
UNDERSECRETARY OF THE DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE CONCOMITANT TRANSFER TO A
POSITION EQUIVALENT IN RANK OR BE REMOVED THEN, BE FLOATED PERPETUALLY, WHICH IS TANTAMOUNT TO A
CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT TO SECURITY OF TENURE AS A CAREER EXECUTIVE SERVICE
ELIGIBLE.[7]

Both petitioner and herein respondents CSC and Department of National Defense (DND) invoke the doctrine of
immutability of final judgments.

Petitioner claims that the 13 August 2001 Resolution of the CSC, which held that petitioner "was illegally removed as
Undersecretary of the Department of National Defense and therefore x x x should be given a position where his eligibility
is appropriate or sufficient," has attained finality. Petitioner adds that, not only has there been no appeal or motion for
reconsideration filed within the allowable periods, the CSC even granted the Motion for Execution filed by petitioner in
its Order dated 15 January 2002. Petitioner thereby invokes our ruling that, before a writ of execution may issue, there
must necessarily be a final judgment or order that disposes of the action or proceeding.[8] Petitioner also faults the CSC
for ruling on a mere letter filed by Atty. Leticia Gloria of the DND, which petitioner claims is fatally defective for failure
to comply with the procedural due process clause of the Constitution, the Rules of Court, and the Uniform Rules in
Administrative Cases in the Civil Service which require notice to adverse parties.[9]

Respondents, on the other hand, invoke the same doctrine of immutability of final judgments, this time with respect to
the 30 August 2001 Decision of the Court of Appeals dismissing the Petition for Quo Warranto and Mandamus filed by
petitioner. This Court of Appeals Decision became final and executory when petitioner withdrew the Motion for
Extension to File a Petition for Review on Certiorari he filed with this Court.[10]

Forum Shopping, Res Judicata, and Litis Pendentia

Our rules on forum shopping are meant to prevent such eventualities as conflicting final decisions as in the case at bar.
We have ruled that what is important in determining whether forum shopping exists or not is the vexation caused the
courts and parties-litigants by a party who asks different courts and/or administrative agencies to rule on the same or
related causes and/or grant the same or substantially the same reliefs, in the process creating the possibility of
conflicting decisions being rendered by the different fora upon the same issues.[11]

More particularly, the elements of forum shopping are: (a) identity of parties or at least such parties as represent the
same interests in both actions; (b) identity of the rights asserted and the reliefs prayed for, the relief being founded on
the same facts; and (c) the identity of the two preceding particulars, such that any judgment rendered in the other action
will, regardless of which party is successful, amount to res judicata in the action under consideration.[12]
Forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with
the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); (2)
filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally
resolved (where the ground for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action
but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or
res judicata).[13] If the forum shopping is not considered willful and deliberate, the subsequent cases shall be dismissed
without prejudice on one of the two grounds mentioned above. However, if the forum shopping is willful and deliberate,
both (or all, if there are more than two) actions shall be dismissed with prejudice.[14]

Petitioner disputes respondents' claim, and the CSC's ruling,[15] that he had lodged two separate actions. Petitioner
explains that he never filed a case before the CSC. He merely sought the assistance of the Career Executive Service Board
(CESB) in a letter-request dated 24 March 1999. Said letter-request, petitioner claims, did not ask for any ruling.

Petitioner claims that, considering that two years had already lapsed without any response from the CESB, he filed on
23 January 2001 his Petition for Quo Warranto and Mandamus with the Court of Appeals. Petitioner was surprised when
he learned through the 8 February 2001 letter of the CESB that, on 29 November 2000, it referred petitioner's request
to the CSC for appropriate action.[16] Petitioner was not required to submit any pleading in support of his request.
Apparently, the CSC treated the letter-request as a complaint or petition over which it could exercise its adjudicative
powers, as it issued its 13 August 2001 Resolution declaring petitioner to have been illegally removed as Undersecretary
of the DND, and should therefore be given a position appropriate or sufficient for his eligibility.[17] As stated above, the
Court of Appeals Decision dismissing the Petition for Quo Warranto and Mandamus was rendered 17 days later, on 30
August 2001. Petitioner filed with this Court a motion for an extension of time within which to file a Petition for Review
on Certiorari, but he later submitted a Manifestation for the withdrawal of this motion as he decided not to pursue his
appeal.[18] Instead, petitioner filed with the CSC on 25 October 2001 a Motion for the Issuance of a Writ of
Execution,[19] which the CSC granted on 15 January 2002.[20]

In repeatedly asserting that he did not file two separate actions, petitioner is arguing, without stating it categorically,
that he cannot be held liable for forum shopping. However, what one cannot do directly cannot be done indirectly.
Petitioner had been aware, through the 8 February 2001 letter of the CESB, that his request for assistance was referred
to the CSC on 29 November 2000 for appropriate action. From that point on, he knew that two government agencies -
the CSC and the Court of Appeals - were simultaneously in the process of reaching their respective decisions on whether
petitioner was entitled to reinstatement or to a position appropriate to his eligibility. Therefore, it cannot be denied
that petitioner knew, from the moment of receipt of the 8 February 2001 letter of the CESB, that he had effectively
instituted two separate cases, and whatever original intention he had for his letter-request is, by then, forgotten.
Petitioner subsequently proceeded to act like a true forum shopper - he abandoned the forum where he could not get
a favorable judgment, and moved to execute the Resolution of the forum where he succeeded.

Petitioner's above actuation is, in fact, a violation of his certification against forum shopping with the Court of Appeals,
a ground for dismissal of actions distinct from forum shopping itself. As petitioner knew from the receipt of the CESB
letter that another claim was pending in a quasi-judicial agency concerning these issues, he was bound by his
certification with the Court of Appeals to report such fact within five days from his knowledge thereof. This circumstance
- of being surprised by the discovery of another pending claim with another court or quasi-judicial agency - is the very
situation contemplated by letter (c) in the first paragraph of Section 5, Rule 7 of the Rules of Court:

Section 5. Certification against forum shopping. - The plaintiff or principal party shall certify under oath in the complaint
or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously
filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in
any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending
therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if
he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact
within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.
(Emphases supplied.)

Petitioner, however, further asserts that the issues brought in the Petition for Certiorari filed with the Court of Appeals
on 18 July 2003 and the Petition for Quo Warranto and Mandamus filed on 29 January 2001 are distinct, and that the
Decision of the Court of Appeals in the latter cannot constitute res judicata with respect to the former.[21] Petitioner
claims that the issues, remedies and reliefs in the two cases are different, citing as basis the textbook definitions of quo
warranto, certiorari and mandamus. Petitioner further claims that:

There is a clear distinction between the right of petitioner to the position of Undersecretary for Civilian Relations and
his right to be re-appointed to another position of equivalent rank, in view of his CESO I status. The former issue may
have been resolved by the Court of Appeals when it ruled that petitioner Collantes had "effectively resigned from his
position as Undersecretary of the DND, and the public respondents are under no compulsion to reinstate him to his old
position." The latter issue, or the right of petitioner Collantes to be given a new assignment fitting to his CESO I rank,
arises from his right to security of tenure as a Career Executive Service Eligible, and not from his appointment to the
DND.[22]

This allegedly clear distinction springs from petitioner's claim that he resigned from his position, but not from his rank
as a Career Executive Service Officer (CESO). Petitioner claims that, as a CESO, there is a "great difference between (1)
resigning from one's position and (2) resigning or relinquishing one's rank, as position is different from one's rank.
POSITION refers to the particular or specific office from which one may be appointed. RANK, on the other hand, refers
not to a particular position but to the class to which one belongs in the hierarchy of authority in an organization or
bureaucracy."[23] Petitioner cites Cuevas v. Bacal[24]:
[S]ecurity of tenure to members of the CES does not extend to the particular positions to which they may be appointed
--- a concept which is applicable only to the first and second-level employees in the civil service --- but to the rank to
which they are appointed by the President.

xxxx

Mobility and flexibility in the assignment of personnel, the better to cope with the exigencies of public service, is thus
the distinguishing feature of the Career Executive Service. x x x.

and General v. Roco[25]:

In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and
second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they
may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to
another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no
diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his
CES rank and not on the basis of the position or office he occupies.

While there is indeed a distinction between position and rank, such that a CESO may be transferred or reassigned from
one position to another without losing his rank, there can be no distinction between resigning from a position and
resigning from a rank. The rank of a CESO is deactivated upon separation from the government service, which includes
the resignation of a CESO from his position. The CESB has clarified this concept of being in the inactive status in its
Resolution No. 554, series of 2002:

Rule II

xxxx

7. CESO in Inactive Status - is a CESO who no longer occupies a position in the CES as a result of any of the modes of
separation from the government service, provided that such separation is not due to dismissal from the service for
cause.
xxxx

Rule IV

Section 1. Modes of Deactivating a CES Rank. - There are three (3) modes by which the CES Rank of a CESO may be
deactivated from the CES:

1. Acceptance of a position by virtue of an appointment outside the coverage of the CES;

2. Dropping from the rolls of government officials and employees; and

3. Other modes of separation from the CES, provided that separation from the CES resulting from dismissal from the
service for cause and after due process shall result in the loss of CES rank and shall not be considered as a mode of
deactivation.

xxxx

Sec. 2. Effect of Deactivation of CES Rank. - A CESO whose CES rank has been deactivated by the Board loses all the rights
and privileges accorded to him/her by law on account of his/her CES rank.

Likewise, it would be absurd for us to rule that a civil servant who resigns from his position can compel the President to
appoint him to another position. Such a ruling would effectively derogate the discretion of the appointing authority,[26]
as it will give the CESO the option to choose which position he or she wants, by the simple expediency of resigning from
the position he or she does not want.

In sum, there is an identity of issues in the two cases which resulted in the two conflicting final and executory decisions.
But while, as stated above, the second petition can be dismissed on the ground of either res judicata or non-compliance
with the undertakings in petitioner's certification against forum shopping, these grounds can only be invoked when the
case is still pending. As petitioner points out, the Resolution of the CSC had already become final and executory.
The 30 August 2001 Decision of the Court of Appeals, however, has also attained finality. Hence, we go back to the main
issue in this petition: which of the two final and executory decisions should be given effect, the 30 August 2001 Court of
Appeals Decision dismissing the petitioner's Petition for Quo Warranto, or the 13 August 2001 CSC Resolution declaring
petitioner Collantes to be illegally removed as Undersecretary of the DND?

Two Conflicting Final and Executory Decisions

Jurisprudence in the United States offers different solutions to this problem:

Where there have been two former actions in which the claim or demand, fact or matter sought to be religated has
been decided contrarily, the rule that, where there is an estoppel against an estoppel, it "setteth the matter at large"
has been applied by some authorities, and in such case both parties may assert their claims anew. Other authorities
have held that, of two conflicting judgments on the same rights of the same parties, the one which is later in time will
prevail, although it has also been held that the judgment prior in time will prevail. It has been held that a decision of a
court of last resort is binding on the parties, although afterward, in another cause, a different principle was declared.[27]

There are thus three solutions which we can adopt in resolving the case at bar: the first is for the parties to assert their
claims anew, the second is to determine which judgment came first, and the third is to determine which of the
judgments had been rendered by a court of last resort.

As there are conflicting jurisprudence on the second solution, it is appropriate for this Court to adopt either the first or
the third solution. The first solution involves disregarding the finality of the two previous judgments and allowing the
parties to argue on the basis of the merits of the case anew. The third solution merely involves the determination of
which judgment has been rendered by this Court, the court of last resort in this jurisdiction.

Adopting the third solution will result in the denial of this Petition for Certiorari. Whereas the finality of the 13 August
2001 CSC Resolution came about by the failure to file a motion for reconsideration or an appeal within the proper
reglementary periods, the finality of the 30 August 2001 Court of Appeals Decision was by virtue of the 12 November
2001 Resolution[28] of this Court which declared the case closed and terminated upon the manifestation of petitioner
that he decided not to pursue his appeal and was thus withdrawing the motion for extension of time to file a petition
for review on certiorari.

The better solution, however, is to let the parties argue the merits of the case anew, and decide the case on the basis
thereof. We can do this either by remanding the case to a lower court, or by resolving the issues in this disposition. The
latter recourse is more appropriate, for three reasons: (1) all the facts, arguments, and pleadings in support of the
parties' contentions are now before us, with the parties advancing the very same contentions as those in this Petition;
(2) a remand to the Court of Appeals would entail asking the latter to resolve the very same issues it had passed upon
twice; and (3) a remand to the Court of Appeals would only entail another unnecessary delay in the termination of the
case when the case is now ripe for adjudication before us.

The merits of the case are the focus of petitioner's third assignment of error in the present petition. Petitioner claims
that the Court of Appeals committed a grave and reversible error when it upheld the resolution of the CSC which
allegedly effectively held "that petitioner may be removed from his position as Undersecretary of the Department of
National Defense without the concomitant transfer to a position equivalent in rank or be removed then, be floated
perpetually, which is tantamount to a constructive dismissal, in violation of his right to security of tenure as a career
executive service eligible."[29]

Petitioner's arguments presuppose that he had been removed from his position as Undersecretary of the DND. He,
however, did not present any evidence to that effect, whether in this Petition or in his earlier Petition for Quo Warranto
and Mandamus with the Court of Appeals. If he is implying that he was removed from office by virtue of his account
that he was approached by persons close to President Joseph Estrada who asked him to relinquish his post, which he
did, then this Petition must fail, for, by his own deliberate deed, he resigned from his position.

There are no special legal effects when a resignation is one of a courtesy resignation. The mere fact that the President,
by himself or through another, requested for someone's resignation does not give the President the obligation to
appoint such person to another position. A courtesy resignation is just as effectual as any other resignation. There can
be no implied promises of another position just because the resignation was made out of courtesy. Any express promise
of another position, on the other hand, would be void, because there can be no derogation of the discretion of the
appointing power,[30] and because its object is outside the commerce of man.[31] As held by the Court of Appeals in
its 30 August 2001 Decision:

In the first place, petitioner has not established by any quantum of certainty the veracity of his claim that he was
promised an equivalent position in the government. Assuming, however, that such promise was true, petitioner, as a
ranking member of the bureaucracy, ought to have known that such promise offers no assurance in law that the same
would be complied with. The time-honored rule is that public office is a public trust, and as such, the same is governed
by law, and cannot be made the subject of personal promises or negotiations by private persons.[32]

WHEREFORE, the present Petition for Review on Certiorari is DENIED. No costs.

SO ORDERED.
MARIO D. ORTIZ, petitioner, vs. COMMISSION ON ELECTIONS and COMMISSION ON AUDIT, respondents.

G.R. No. 78957 | 1988-06-28

FERNAN, J.:

In this petition for certiorari, petitioner presents before the Court the issue of whether or not a constitutional official
whose "courtesy resignation" was accepted by the President of the Philippines during the effectivity of the Freedom
Constitution may be entitled to retirement benefits under Republic Act No. 1568, as amended.

Petitioner was appointed Commissioner of the Commission on Elections [COMELEC] by then President Ferdinand E.
Marcos "for a term expiring May 17, 1992." 1 He took his oath of office on July 30, 1985.

On March 5, 1986, together with Commissioners Quirino D. Marquinez and Mangontawar G. Guro, petitioner sent
President Corazon C. Aquino a letter which reads as follows:

"The undersigned Commissioners were appointed to the Commission on Elections on July 30, 1985.

"Following the example of Honorable Justices of the Supreme Court, on the premise that we have now a revolutionary
government, we hereby place our position at your disposal." 2

Thereafter, or on March 25, 1986, the Freedom Constitution was promulgated through Proclamation No. 3, Article III
thereof provides:

"SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy,
efficiency, and the eradication of graft and corruption.

"SEC. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of
their successors, if such is made within a period of one year from February 25, 1986.

"SEC. 3. Any public officer or employee separated from the service as a result of the reorganization effected under this
Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing
thereunder."
On April 16, 1986, the COMELEC, then composed of Acting Chairman Ramon H. Felipe, Jr. and Commissioners Froilan M.
Bacungan, Quirino A. Marquinez, Mario D. Ortiz (petitioner herein), Ruben E. Agpalo and Jaime J. Layosa, adopted
Resolution No. 86-2364 approving the application for retirement of Commissioners Victorino Savellano and Jaime
Opinion. Seven days later, the same body passed Resolution No. 86-2370 approving the application for retirement of
Commissioner Mangontawar B. Guro.

On July 21, 1986, the Deputy Executive Secretary requested Acting Chairman Felipe to convey the information to
Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had "accepted, with regrets, their respective
resignations, effective immediately." 3 After the presidential acceptance of said "resignations," the new COMELEC was
composed of Ramon H. Felipe, Jr. as Chairman and Commissioners Froilan M. Bacungan, Leopoldo L. Africa, Haydee B.
Yorac, Andres R. Flores, Dario C. Rama and Anacleto D. Badoy, Jr., as members. It was to this body that Commissioners
Agpalo, Ortiz and Marquinez submitted on July 30, 1986 their respective applications for retirement. They were followed
by Commissioner Layosa on August 1, 1986.

To justify their petitions for retirement and their requests for payment of retirement benefits, all seven former COMELEC
Commissioners invoked Republic Act No. 1568 as amended by Republic Act No. 3595 and re-enacted by Republic Act
No. 6118, specifically the following provision:

"SECTION 1. When the Auditor General or the Chairman or any Member of the Commission on Elections retires from
the service for having completed his term of office or by reason of his incapacity to discharge the duties of his office, or
dies while in the service, or resigns at any time after reaching the age of sixty years but before the expiration of his term
of office, he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for every year of
service based upon the last annual salary that he was receiving at the time of retirement incapacity, death or resignation,
as the case may be: Provided, That in case of resignation, he has rendered not less than twenty years of service in the
government; And provided, further, That he shall receive an annuity payable monthly during the residue of his natural
life equivalent to the amount of monthly salary he was receiving on the date of retirement, incapacity or resignation."

In its en banc Resolution No. 86-2491 . . of August 13, 1986, 4 the COMELEC revoked Resolutions Nos. 86-2364 dated
April 16, 1986 and 86-2370 dated April 23, 1986, and denied the applications for retirement of Commissioners
Marquinez, Agpalo, Ortiz and Layosa on the ground that they were "not entitled to retirement benefits under Republic
Act No. 1568, as amended" without specifying the reason therefor. 5

Petitioner Ortiz moved for the reconsideration of said resolution, contending that he was entitled to the benefits under
Republic Act No. 1568, as amended. He averred therein that he did not resign but simply placed his position at the
disposal of the President; that he had in fact completed his term as Commissioner by the "change in the term of [his]
office and eventual replacement," and that he was entitled to retirement benefits under the aforementioned law
because Article 1186 of the Civil Code which states that "the condition [with regard to an obligation] shall be deemed
fulfilled when the obligor voluntarily prevents its fulfillment." He invoked the aforequoted provisions of Proclamation
No. 3 and cited the cases of former Chief Justice Ramon C. Aquino and Associate Justice Hermogenes Concepcion, Jr.
who were allowed to retire by this Court and receive retirement benefits. 6
Petitioner's letter/motion for reconsideration was denied by the COMELEC in its en banc resolution of October 1, 1986.
. . . On December 18, 1986, petitioner appealed the denial of his claim to the Chairman of the Commission on Audit
[COA]. In its memorandum dated January 15, 1987, the COA referred the matter to the COMELEC resident auditor for
comment and recommendation. Having failed to receive any communication from the COA for some six months, on
June 3, 1987, petitioner reiterated his appeal thereto. Again, the matter was referred to the COMELEC resident auditor
with a request for immediate action thereon.

A month later, or on July 9, 1987, petitioner filed the instant petition for certiorari alleging that the COMELEC's "arbitrary
and unjust denial" of his claim for retirement benefits and of his subsequent motion for reconsideration constitutes
"grave and whimsical abuse of discretion amounting to lack of jurisdiction" which can only be remedied through the
instant petition in the absence of an appeal or any plain, speedy and adequate remedy. 7 In his memorandum, however,
petitioner admits that, as correctly stated by the Solicitor General in respondents' comment on the petition, this petition
is basically one for a writ of mandamus aimed at compelling both the COMELEC and the COA to approve his claim for
retirement benefits. 8

We consider this case as a special civil action of both certiorari and mandamus and, notwithstanding the Solicitor
General's contention that action herein is premature as the COA may yet render a decision favorable to the petitioner,
We opt to decide this case to shed light on the legal issue presented.

The respondents posit the view that petitioner's "voluntary resignation" prevented the completion of his term of office,
and, therefore, having rendered only sixteen years of service to the government, he is not entitled to retirement
benefits. 9

We disagree. Petitioner's separation from government service as a result of the reorganization ordained by the then
nascent Aquino government may not be considered a resignation within the contemplation of the law. Resignation is
defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to
use it. 10 To constitute a complete and operative act of resignation, the officer or employee must show a clear intention
to relinquish or surrender his position accompanied by the act of relinquishment. 11 Resignation implies an expression
of the incumbent in some form, express or implied, of the intention to surrender, renounce and relinquish the office,
and its acceptance by competent and lawful authority. 12

From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his
position. We cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his
position at the disposal of the President. He did not categorically state therein that he was unconditionally giving up his
position. It should be remembered that said letter was actually a response to Proclamation No. 1 which President Aquino
issued on February 25, 1986 when she called on all appointive public officials to tender their "courtesy resignation" as
a "first step to restore confidence in public administration."
Verily, a "courtesy resignation" cannot properly be interpreted as resignation in the legal sense for it is not necessarily
a reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the
political authority and the appointing power.

A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases involving
constitutional officials like the petitioner whose removal from office entails an impeachment proceeding. 13 For even if
working for the government is regarded as no more than a privilege, discharge for disloyalty or for doubt about loyalty
may involve such legal rights as those in reputation and eligibility for other employment. 14

The curtailment of his term not being attributable to any voluntary act on the part of the petitioner, equity and justice
demand that he should be deemed to have completed his term albeit much ahead of the date stated in his appointment
paper. Petitioner's case should be placed in the same category as that of an official holding a primarily confidential
position whose tenure ends upon his superior's loss of confidence in him. His cessation from the service entails no
removal but an expiration of his term. 15

As he is deemed to have completed his term of office, petitioner should be considered retired from the service. And, in
the absence of proof that he has been found guilty of malfeasance or misfeasance in office or that there is a pending
administrative case against him, petitioner is entitled to a life pension under Republic Act No. 1568 as amended and re-
enacted by Republic Act No. 6118. He is, therefore, protected by the mantle of the Freedom Constitution specifically
Article III, Section 3 thereof which was in effect when he was replaced by the appointment and qualification of a new
Commissioner.

Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred compensation for services
performed and his right thereto commences to vest upon his entry into the retirement system and becomes an
enforcible obligation in court upon fulfillment of all conditions under which it is to be paid. 16 Similarly, retirement
benefits receivable by public employees are valuable parts of the consideration for entrance into and continuation in
public employment. 17 They serve a public purpose and a primary objective in establishing them is to induce able
persons to enter and remain in public employment, and to render faithful and efficient service while so employed. 18

Worth noting is the fact that, as originally enacted, Republic Act No. 1568 required not less than twenty years of service
in the government at the time of the retirement, death or resignation of the Auditor General or the Chairman and any
Member of the COMELEC. The same length of service was required after Republic Act No. 3473 amended the law.
However, Republic Act No. 3595 further amended Republic Act No. 1568 and the 20-year service requirement was
mandated only in case of resignation of the public official covered by the law. Although Republic Act No. 1568, as
amended, was inoperative and abolished in Section 9 of Republic Act No. 4968, it was re-enacted under Republic Act
No. 6118.

On the respondents' assertion that the retirement law is clear and hence, there is no room for its interpretation, We
reiterate the basic principle that, being remedial in character, a statute creating pensions should be liberally construed
and administered in favor of the persons intended to be benefited thereby. 19 This is as it should be because the liberal
approach aims to achieve the humanitarian purposes of the law in order that the efficiency, security, and well-being of
government employees may be enhanced. 20

WHEREFORE, respondent Commission on Election's denial of petitioner's application for retirement benefits is hereby
reversed and set aside. The Commission on Audit and other public offices concerned are directed to facilitate the
processing and payment of petitioner's retirement benefits.

SO ORDERED.
OFFICE OF THE OMBUDSMAN, Petitioner, vs. ULDARICO P. ANDUTAN, JR., Respondent.
G.R. No. 164679 | 2011-07-27

SECOND DIVISION

DECISION

BRION, J.:

Through a petition for review on certiorari, [1] the petitioner Office of the Ombudsman (Ombudsman) seeks the reversal
of the decision [2] of the Court of Appeals (CA), dated July 28, 2004, in "Uldarico P. Andutan, Jr. v. Office of the
Ombudsman and Fact Finding and Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP No. 68893. The assailed
decision annulled and set aside the decision of the Ombudsman dated July 30, 2001, [3] finding Uldarico P. Andutan, Jr.
guilty of Gross Neglect of Duty.

THE FACTUAL ANTECEDENTS

Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the
Department of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo Zamora issued a Memorandum
directing all non-career officials or those occupying political positions to vacate their positions effective July 1, 1998. [4]
On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF. [5]

On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P. Malonzo,
Tax Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel
Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and Chief Operating Officer, Steel
Asia; and Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact Finding and
Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of Public Documents, and violations of
Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. [6]
As government employees, Andutan, Belicena and Malonzo were likewise administratively charged of Grave
Misconduct, Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.
[7]

The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates (TCCs) to
Steel Asia, among others. [8]
During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-Two
Million, Four Hundred Thirty-Three Thousand, Five Hundred Thirty-Four Pesos (P242,433,534.00). [9] The FFIB
concluded that Belicena, Malonzo and Andutan - in their respective capacities - irregularly approved the "issuance of
the TCCs to several garment/textile companies and allowing their subsequent illegal transfer" to Steel Asia. [10]

On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-
affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on March
13, 2000.

Upon the respondents' failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case submitted
for resolution.

On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. [11] Having been separated
from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and
privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of
the government, including government owned and controlled agencies or corporations. [12]

After failing to obtain a reconsideration of the decision, [13] Andutan filed a petition for review on certiorari before the
CA.

On July 28, 2004, [14] the CA annulled and set aside the decision of the Ombudsman, ruling that the latter "should not
have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the Ombudsman
"may not conduct the necessary investigation of any administrative act or omission complained of if it believes that x x
x [t]he complaint was filed after one year from the occurrence of the act or omission complained of"; [15] and second,
the administrative case was filed after Andutan's forced resignation. [16]

THE PETITIONER'S ARGUMENTS

In this petition for review on certiorari, the Ombudsman asks the Court to overturn the decision of the CA. It submits,
first, that contrary to the CA's findings, administrative offenses do not prescribe after one year from their commission,
[17] and second, that in cases of "capital" administrative offenses, resignation or optional retirement cannot render
administrative proceedings moot and academic, since accessory penalties such as perpetual disqualification and the
forfeiture of retirement benefits may still be imposed. [18]

The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory. Consistent with existing jurisprudence, the use
of the word "may" indicates that Section 20 is merely directory or permissive. [19] Thus, it is not ministerial upon it to
dismiss the administrative complaint, as long as any of the circumstances under Section 20 is present. [20] In any case,
the Ombudsman urges the Court to examine its mandate under Section 13, Article XI of the 1987 Constitution, and hold
that an imposition of a one (1) year prescriptive period on the filing of cases unconstitutionally restricts its mandate.
[21]

Further, the Ombudsman submits that Andutan's resignation from office does not render moot the administrative
proceedings lodged against him, even after his resignation. Relying on Section VI(1) of Civil Service Commission (CSC)
Memorandum Circular No. 38, [22] the Ombudsman argues that "[a]s long as the breach of conduct was committed
while the public official or employee was still in the service x x x a public servant's resignation is not a bar to his
administrative investigation, prosecution and adjudication." [23] It is irrelevant that Andutan had already resigned from
office when the administrative case was filed since he was charged for "acts performed in office which are inimical to
the service and prejudicial to the interests of litigants and the general public." [24] Furthermore, even if Andutan had
already resigned, there is a need to "determine whether or not there remains penalties capable of imposition, like bar
from reentering the (sic) public service and forfeiture of benefits." [25] Finally, the Ombudsman reiterates that its
findings against Andutan are supported by substantial evidence.

THE RESPONDENT'S ARGUMENTS

Andutan raises three (3) counterarguments to the Ombudsman's petition.

First, Andutan submits that the CA did not consider Section 20(5) of R.A. 6770 as a prescriptive period; rather, the CA
merely held that the Ombudsman should not have considered the administrative complaint. According to Andutan,
Section 20(5) "does not purport to impose a prescriptive period x x x but simply prohibits the Office of the Ombudsman
from conducting an investigation where the complaint [was] filed more than one (1) year from the occurrence of the
act or omission complained of." [26] Andutan believes that the Ombudsman should have referred the complaint to
another government agency. [27] Further, Andutan disagrees with the Ombudsman's interpretation of Section 20(5).
Andutan suggests that the phrase "may not conduct the necessary investigation" means that the Ombudsman is
prohibited to act on cases that fall under those enumerated in Section 20(5). [28]

Second, Andutan reiterates that the administrative case against him was moot because he was no longer in the public
service at the time the case was commenced. [29] According to Andutan, Atty. Perez v. Judge Abiera [30] and similar
cases cited by the Ombudsman do not apply since the administrative investigations against the respondents in those
cases were commenced prior to their resignation. Here, Andutan urges the Court to rule otherwise since unlike the
cases cited, he had already resigned before the administrative case was initiated. He further notes that his resignation
from office cannot be characterized as "preemptive, i.e. made under an atmosphere of fear for the imminence of formal
charges" [31] because it was done pursuant to the Memorandum issued by then Executive Secretary Ronaldo Zamora.

Having established the propriety of his resignation, Andutan asks the Court to uphold the mootness of the administrative
case against him since the cardinal issue in administrative cases is the "officer's fitness to remain in office, the principal
penalty imposable being either suspension or removal." [32] The Ombudsman's opinion - that accessory penalties may
still be imposed - is untenable since it is a fundamental legal principle that "accessory follows the principal, and the
former cannot exist independently of the latter." [33]

Third, the Ombudsman's findings were void because procedural and substantive due process were not observed.
Likewise, Andutan submits that the Ombudsman's findings lacked legal and factual bases.

ISSUES

Based on the submissions made, we see the following as the issues for our resolution:

I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative investigation a year
after the act was committed?

II. Does Andutan's resignation render moot the administrative case filed against him?

III. Assuming that the administrative case is not moot, are the Ombudsman's findings supported by substantial
evidence?

THE COURT'S RULING

We rule to deny the petition.

The provisions of Section 20(5) are merely directory;

the Ombudsman is not prohibited from conducting an

investigation a year after the supposed

act was committed.

The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by jurisprudence. [34]
In Office of the Ombudsman v. De Sahagun, [35] the Court, speaking through Justice Austria-Martinez, held:

[W]ell-entrenched is the rule that administrative offenses do not prescribe [Concerned Taxpayer v. Doblada, Jr., A.M.
No. P-99-1342, September 20, 2005, 470 SCRA 218;Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA
476;Heck v. Judge Santos, 467 Phil. 798, 824 (2004);Floria v. Sunga,420 Phil. 637, 648-649 (2001)]. Administrative
offenses by their very nature pertain to the character of public officers and employees. In disciplining public officers and
employees, the object sought is not the punishment of the officer or employee but the improvement of the public
service and the preservation of the public's faith and confidence in our government [Melchor v. Gironella, G.R. No.
151138, February 16, 2005, 451 SCRA 476, 481;Remolona v. Civil Service Commission,414 Phil. 590, 601 (2001)].

Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:

SEC. 20.Exceptions. - The Office of the Ombudsmanmaynot conduct the necessary investigation of any administrative
act or omission complained of if it believes that:

xxxx

(5) The complaint was filed after one year from the occurrence of the act or omission complained of. (Emphasis supplied)

proscribes the investigation of any administrative act or omission if the complaint was filed after one year from the
occurrence of the complained act or omission.

In Melchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA 476], the Court held that the period stated in
Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given to
theOmbudsmanon whether it would investigate a particular administrative offense. The use of the word "may" in the
provision is construed as permissive and operating to confer discretion [Melchor v. Gironella, G.R. No. 151138, February
16, 2005, 451 SCRA 476, 481;Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the words of a statute are clear,
plain and free from ambiguity, they must be given their literal meaning and applied without attempted interpretation
[Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481;National Federation of Labor v. National
Labor Relations Commission, 383 Phil. 910, 918 (2000)].

In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50],the Court interpreted Section 20 (5) of
R.A. No. 6770 in this manner:

Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's complaint is
barred by prescription considering that it was filed more than one year after the alleged commission of the acts
complained of.

Petitioner's argument is without merit.

The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner contends. When
used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating
to impose a duty which may be enforced. Applying Section 20(5), therefore,it is discretionary upon the Ombudsman
whether or not to conduct an investigation on a complaint even if it was filed after one year from the occurrence of the
act or omission complained of. In fine, the complaint is not barred by prescription. (Emphasis supplied)

The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the negative
phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not," becomes prohibitory
and therefore becomes mandatory in character, is not plausible. It is not supported by jurisprudence on statutory
construction. [emphases and underscoring supplied]

Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative investigation after
the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative
case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within its discretion to
conduct the administrative investigation.

However, the crux of the present controversy is not on the issue of prescription, but on the issue of the Ombudsman's
authority to institute an administrative complaint against a government employee who had already resigned. On this
issue, we rule in Andutan's favor.

Andutan's resignation divests the Ombudsman

of its right to institute an administrative

complaint against him.

Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the
Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public servant
at the time the case was filed.

The Ombudsman argued - in both the present petition and in the petition it filed with the CA - that Andutan's retirement
from office does not render moot any administrative case, as long as he is charged with an offense he committed while
in office. It is irrelevant, according to the Ombudsman, that Andutan had already resigned prior to the filing of the
administrative case since the operative fact that determines its jurisdiction is the commission of an offense while in the
public service.

The Ombudsman relies on Section VI(1) of Civil Service Commission Memorandum Circular No. 38 for this proposition,
viz.:
Section VI.

1. x x x

An officer or employee under administrative investigation may be allowed to resign pending decision of his case but it
shall be without prejudice to the continuation of the proceeding against him. It shall also be without prejudice to the
filing of any administrative, criminal case against him for any act committed while still in the service. (emphasis and
underscoring supplied)

The CA refused to give credence to this argument, holding that the provision "refers to cases where the officers or
employees were already charged before they were allowed to resign or were separated from service." [36] In this case,
the CA noted that "the administrative cases were filed only after Andutan was retired, hence the Ombudsman was
already divested of jurisdiction and could no longer prosecute the cases." [37]

Challenging the CA's interpretation, the Ombudsman argues that the CA "limited the scope of the cited Civil Service
Memorandum Circular to the first sentence." [38] Further, according to the Ombudsman, "the court a quo ignored the
second statement in the said circular that contemplates a situation where previous to the institution of the
administrative investigation or charge, the public official or employee subject of the investigation has resigned." [39]

To recall, we have held in the past that a public official's resignation does not render moot an administrative case that
was filed prior to the official's resignation. In Pagano v. Nazarro, Jr., [40] we held that:

In Office of the Court Administrator v. Juan [A.M. No. P-03-1726,22 July 2004, 434 SCRA 654, 658], this Court
categorically ruled that the precipitate resignation of a government employee charged with an offense punishable by
dismissal from the servicedoes notrender moot the administrative case against him.Resignation is not a way out to
evade administrative liability when facing administrative sanction.The resignation of a public servant does not preclude
the finding of any administrative liability to which he or she shall still be answerable [Baquerfo v. Sanchez, A.M. No. P-
05-1974,6 April 2005, 455 SCRA 13, 19-20]. [emphasis and underscoring supplied]

Likewise, in Baquerfo v. Sanchez, [41] we held:

Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No. P-04-1801, 2 April 2004, 427 SCRA 8] or
retirement [Re: Complaint Filed by Atty. Francis Allan A. Rubio on the Alleged Falsification of Public Documents and
Malversation of Public Funds, A.M. No. 2004-17-SC, 27 September 2004;Caja v. Nanquil, A.M. No. P-04-1885, 13
September 2004] neither warrants the dismissal of the administrative complaint filed against him while he was still in
the service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348 Phil. 404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11
June 1975, 64 SCRA 302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22 April 1977, 76 SCRA 301] nor does it render
said administrative case moot and academic [Sy Bang v. Mendez, 350 Phil. 524, 533 (1998)]. The jurisdiction that was
this Court's at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent
public official had ceased in office during the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)].
Respondent's resignation does not preclude the finding of any administrative liability to which he shall still be
answerable [OCA v. Fernandez, A.M. No. MTJ-03-1511, 20 August 2004]. [emphases and underscoring supplied)

However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the Court
found that the public officials - subject of the administrative cases - resigned, either to prevent the continuation of a
case already filed [42] or to pre-empt the imminent filing of one. [43] Here, neither situation obtains.

The Ombudsman's general assertion that Andutan pre-empted the filing of a case against him by resigning, since he
"knew for certain that the investigative and disciplinary arms of the State would eventually reach him" [44] is unfounded.
First, Andutan's resignation was neither his choice nor of his own doing; he was forced to resign. Second, Andutan
resigned from his DOF post on July 1, 1998, while the administrative case was filed on September 1, 1999, exactly one
(1) year and two (2) months after his resignation. The Court struggles to find reason in the Ombudsman's sweeping
assertions in light of these facts.

What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed the
administrative case against him. Additionally, even if we were to accept the Ombudsman's position that Andutan
foresaw the filing of the case against him, his forced resignation negates the claim that he tried to prevent the filing of
the administrative case.

Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of Section VI
of CSC Memorandum Circular No. 38. We disagree with the Ombudsman's interpretation that "[a]s long as the breach
of conduct was committed while the public official or employee was still in the service x x x a public servant's resignation
is not a bar to his administrative investigation, prosecution and adjudication." [45] If we agree with this interpretation,
any official - even if he has been separated from the service for a long time - may still be subject to the disciplinary
authority of his superiors, ad infinitum. We believe that this interpretation is inconsistent with the principal motivation
of the law - which is to improve public service and to preserve the public's faith and confidence in the government, and
not the punishment of the public official concerned. [46] Likewise, if the act committed by the public official is indeed
inimical to the interests of the State, other legal mechanisms are available to redress the same.

The possibility of imposing

accessory penalties does not

negate the Ombudsman's lack

of jurisdiction.
The Ombudsman suggests that although the issue of Andutan's removal from the service is moot, there is an "irresistible
justification" to "determine whether or not there remains penalties capable of imposition, like bar from re-entering the
public service and forfeiture of benefits." [47] Otherwise stated, since accessory penalties may still be imposed against
Andutan, the administrative case itself is not moot and may proceed despite the inapplicability of the principal penalty
of removal from office.

We find several reasons that militate against this position.

First, although we have held that the resignation of an official does not render an administrative case moot and academic
because accessory penalties may still be imposed, this holding must be read in its proper context. In Pagano v. Nazarro,
Jr., [48] indeed, we held:

A case becomes moot and academic only when there is no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128,9 May 2005, 458
SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner's separation from government
service.Even if the most severe of administrative sanctions - that of separation from service - may no longer be imposed
on the petitioner, there are other penalties which may be imposed on her if she is later found guilty of administrative
offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits.
[emphasis and underscoring supplied]

Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of accessory
penalties justifies the continuation of an administrative case. This is a misplaced reading of the case and its ruling.

Esther S. Pagano - who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet - filed her certificate
of candidacy for councilor four days after the Provincial Treasurer directed her to explain why no administrative case
should be filed against her. The directive arose from allegations that her accountabilities included a cash shortage of
P1,424,289.99. She filed her certificate of candidacy under the pretext that since she was deemed ipso facto resigned
from office, she was no longer under the administrative jurisdiction of her superiors. Thus, according to Pagano, the
administrative complaint had become moot.

We rejected Pagano's position on the principal ground "that the precipitate resignation of a government employee
charged with an offense punishable by dismissal from the servicedoes notrender moot the administrative case against
him. Resignation is not a way out to evade administrative liability when facing administrative sanction." [49] Our
position that accessory penalties are still imposable - thereby negating the mootness of the administrative complaint -
merely flows from the fact that Pagano pre-empted the filing of the administrative case against her. It was neither
intended to be a stand-alone argument nor would it have justified the continuation of the administrative complaint if
Pagano's filing of candidacy/resignation did not reek of irregularities. Our factual findings in Pagano confirm this, viz.:
At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer that
she needed to explain why no administrative charge should be filed against her, after it discovered the cash shortage
ofP1,424,289.99 in her accountabilities.Moreover, she had already filed her answer.To all intents and purposes, the
administrative proceedings had already been commenced at the time she was considered separated from service
through her precipitate filing of her certificate of candidacy.Petitioner's bad faith was manifest when she filed it, fully
knowing that administrative proceedings were being instituted against her as part of the procedural due process in
laying the foundation for an administrative case. [50] (emphasis and underscoring supplied)

Plainly, our justification for the continuation of the administrative case - notwithstanding Pagano's resignation - was her
"bad faith" in filing the certificate of candidacy, and not the availability of accessory penalties.

Second, we agree with the Ombudsman that "fitness to serve in public office x x x is a question of transcendental
[importance] [51]" and that "preserving the inviolability of public office" compels the state to prevent the "re-entry [to]
public service of persons who have x x x demonstrated their absolute lack of fitness to hold public office." [52] However,
the State must perform this task within the limits set by law, particularly, the limits of jurisdiction. As earlier stated,
under the Ombudsman's theory, the administrative authorities may exercise administrative jurisdiction over
subordinates ad infinitum; thus, a public official who has validly severed his ties with the civil service may still be the
subject of an administrative complaint up to his deathbed. This is contrary to the law and the public policy behind it.

Lastly, the State is not without remedy against Andutan or any public official who committed violations while in office,
but had already resigned or retired therefrom. Under the "threefold liability rule," the wrongful acts or omissions of a
public officer may give rise to civil, criminal and administrative liability. [53] Even if the Ombudsman may no longer file
an administrative case against a public official who has already resigned or retired, the Ombudsman may still file criminal
and civil cases to vindicate Andutan's alleged transgressions. In fact, here, the Ombudsman - through the FFIB - filed a
criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-Graft and Corrupt Practices Act against
Andutan. If found guilty, Andutan will not only be meted out the penalty of imprisonment, but also the penalties of
perpetual disqualification from office, and confiscation or forfeiture of any prohibited interest. [54]

Conclusion

Public office is a public trust. No precept of administrative law is more basic than this statement of what assumption of
public office involves. The stability of our public institutions relies on the ability of our civil servants to serve their
constituencies well.

While we commend the Ombudsman's resolve in pursuing the present case for violations allegedly committed by
Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that Andutan
is no longer the proper subject of an administrative complaint, we find no reason to delve on the Ombudsman's factual
findings.
WHEREFORE, we DENY the Office of the Ombudsman's petition for review on certiorari, and AFFIRM the decision of the
Court of Appeals in CA-G.R. SP No. 68893, promulgated on July 28, 2004, which annulled and set aside the July 30, 2001
decision of the Office of the Ombudsman, finding Uldarico P. Andutan, Jr. guilty of Gross Neglect of Duty.

No pronouncement as to costs.

SO ORDERED.
[G.R. NO. 149072 : September 21, 2007]

ESTHER S. PAGANO, Petitioner, v. JUAN NAZARRO, Jr., ROSALINE Q. ELAYDA, RODRIGO P. KITO and ERNESTO M.
CELINO, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision1 dated 7 March
2001, rendered by the Court of Appeals in CA-G.R. SP No. 53323. In reversing the Decision,2 dated 4 January 1999,
rendered by Branch 10 of the Regional Trial Court of La Trinidad, Benguet, the Court of Appeals declared that the
petitioner, Esther S. Pagano, may still be held administratively liable for dishonesty, grave misconduct and malversation
of public funds through falsification of official documents.

While the petitioner was employed as Cashier IV of the Office of the Provincial Treasurer of Benguet, it was discovered
that in her accountabilities she had incurred a shortage of P1,424,289.99. On 12 January 1998, the Provincial Treasurer
wrote a letter directing petitioner to explain why no administrative charge should be filed against her in connection with
the cash shortage.3 Petitioner submitted her explanation on 15 January 1998.4

On 16 January 1998, petitioner filed her Certificate of Candidacy for the position of Councilor in Baguio City.5

On 22 January 1998, the Office of the Provincial Governor of Benguet found the existence of a prima facie case for
dishonesty, grave misconduct and malversation of public funds through falsification of official documents and directed
the petitioner to file an answer.6 The Provincial Governor also issued Executive Order No. 98-02, creating an ad hoc
committee composed of herein respondents to investigate and submit findings relative to the administrative charges
against petitioner.7

On 10 February 1998, petitioner filed her Answer before the Office of the Provincial Governor. Petitioner alleged that
she had merely acted under the express direction of her supervisor, Mr. Mauricio B. Ambanloc. She further claimed that
the funds and checks were deposited in the depository banks of the Province of Benguet, but the records are devoid of
any documents to support her claim.8

On 19 February 1998, petitioner filed a motion to dismiss the administrative case on the ground that the committee
created to investigate her case had no jurisdiction over the subject of the action and over her person.9 The respondents
denied the said motion on 21 May 1998.10 Petitioner filed a motion for reconsideration, which was again denied on 1
July 1998.11

On 14 August 1998, petitioner filed a Petition for Certiorari and Prohibition with prayer for issuance of a Temporary
Restraining Order and Writ of Preliminary Injunction before Branch 10 of the Regional Trial Court of La Trinidad, Benguet.
The trial court issued a Writ of Preliminary Injunction on 7 September 1998.12

In the course of the audit and examination of the petitioner's collection accounts, the Commission on Audit (COA)
discovered that the petitioner was unable to account for P4,080,799.77, and not just the initial cash shortage of
P1,424,289.99. Thus, the COA Provincial Auditor, Getulio B. Santos, reported these findings to the Office of the
Ombudsman in a letter dated 11 September 1998 with the recommendation that civil, criminal and administrative cases
be filed against petitioner.13

In its Decision, dated 4 January 1999, the trial court ruled in favor of the petitioner. It noted that the most severe penalty
which may be imposed on the petitioner is removal from service, and that under Section 66 of the Omnibus Election
Code, petitioner was already deemed resigned when she filed her Certificate of Candidacy on 16 January 1998. Section
66 of the Omnibus Election Code provides that:

Any person holding a public appointive office or position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy.

Thus, it declared that even if the committee created by the Provincial Governor had the jurisdiction to hear the
administrative case against the petitioner, such case was now moot and academic.14 The dispositive part of the said
Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of petitioner Esther Sison Pagano and against
herein respondents:

1. Finding that the Committee of which the respondents are members has no longer jurisdiction to conduct any
investigation or proceedings under civil service rules and regulations relative to the administrative case filed against the
petitioner;

2. Finding that the Committee has acted with grave abuse of discretion and without jurisdiction in denying the Motion
to Dismiss filed by the petitioner in Administrative Case No. 98-01;
3. Declaring as null and void all acts, orders, resolutions and proceedings of the Committee in Administrative Case No.
98-01;

4. Ordering the respondents, their agents, representatives and all persons acting on their behalf, to desist from
proceeding with Administrative Case No. 98-01; andcralawlibrary

5. Declaring the writ of preliminary injunction dated September 07, 1998 as permanent.

No pronouncement as to costs.15

Respondents filed an appeal before the Court of Appeals. In reversing the Decision of the trial court, the appellate court
pronounced that even though petitioner's separation from service already bars the imposition upon her of the severest
administrative sanction of separation from service, other imposable accessory penalties such as disqualification to hold
government office and forfeiture of benefits may still be imposed.16

Petitioner filed a Motion for Reconsideration of the Decision of the Court of Appeals, which was denied in a Resolution
dated 10 July 2001.17

Hence, in the present Petition, the sole issue is being raised:

WHETHER OR NOT A GOVERNMENT EMPLOYEE WHO HAS BEEN SEPARATED FROM THE CIVIL SERVICE BY OPERATION
OF LAW PURSUANT TO SECTION 66 OF BATAS PAMBANSA BILANG 881 (THE OMNIBUS ELECTION CODE) MAY STILL BE
ADMINISTRATIVELY CHARGED UNDER CIVIL SERVICE LAWS, RULES AND REGULATIONS18

Petitioner argues that a government employee who has been separated from service, whether by voluntary resignation
or by operation of law, can no longer be administratively charged. Such argument is devoid of merit.19

In Office of the Court Administrator v. Juan,20 this Court categorically ruled that the precipitate resignation of a
government employee charged with an offense punishable by dismissal from the service does not render moot the
administrative case against him. Resignation is not a way out to evade administrative liability when facing administrative
sanction. The resignation of a public servant does not preclude the finding of any administrative liability to which he or
she shall still be answerable.21

A case becomes moot and academic only when there is no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits of the case.22 The instant case is not moot and academic, despite the
petitioner's separation from government service. Even if the most severe of administrative sanctions - that of separation
from service - may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if
she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any
government office and the forfeiture of benefits.

Moreover, this Court views with suspicion the precipitate act of a government employee in effecting his or her
separation from service, soon after an administrative case has been initiated against him or her. An employee's act of
tendering his or her resignation immediately after the discovery of the anomalous transaction is indicative of his or her
guilt as flight in criminal cases.23

In the present case, the Provincial Treasurer asked petitioner to explain the cash shortage of P1,424,289.99, which was
supposedly in her custody on 12 January 1998. In her explanation, dated 15 January 1998, petitioner failed to render a
proper accounting of the amount that was placed in her custody; instead, she tried to shift the blame on her superior.
Thus, the hasty filing of petitioner's certificate of candidacy on 16 January 1998, a mere four days after the Provincial
Treasurer asked her to explain irregularities in the exercise of her functions appears to be a mere ploy to escape
administrative liability.

Public service requires utmost integrity and discipline. A public servant must exhibit at all times the highest sense of
honesty and integrity for no less than the Constitution mandates the principle that "a public office is a public trust and
all public officers and employees must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency."24 The Courts cannot overemphasize the need for honesty and accountability in the
acts of government officials. In Baquerfo v. Sanchez,25 this Court reproached a government employee for the theft of
two unserviceable desk fans and one unserviceable stove. Moreover, the Court refused to take into account the
subsequent resignation of the said government employee. In the aforecited case, this Court emphatically declared that:

Cessation from office of respondent by resignation or retirement neither warrants the dismissal of the administrative
complaint filed against him while he was still in the service nor does it render said administrative case moot and
academic. The jurisdiction that was this Court's at the time of the filing of the administrative complaint was not lost by
the mere fact that the respondent public official had ceased in office during the pendency of his case. Respondent's
resignation does not preclude the finding of any administrative liability to which he shall still be answerable.26

Unlike the previously discussed case (Baquerfo), the present one does not involve unserviceable scraps of appliances.
The petitioner was unable to account for an amount initially computed at P1,424,289.99, and later recomputed by the
COA at P4,080,799.77. With all the more reason, this Court cannot declare petitioner immune from administrative
charges, by reason of her running for public office.

In the very recent case, In re: Non-disclosure before the Judicial and Bar Council of the Administrative Case Filed Against
Judge Jaime V. Quitain, in His Capacity as the then Assistant Regional Director of the National Police Commission,
Regional Office XI, Davao City,27 this Court pronounced the respondent judge guilty of grave misconduct, despite his
resignation:
Verily, the resignation of Judge Quitain which was accepted by the Court without prejudice does not render moot and
academic the instant administrative case. The jurisdiction that the Court had at the time of the filing of the
administrative complaint is not lost by the mere fact that the respondent judge by his resignation and its consequent
acceptance - without prejudice - by this Court, has ceased to be in office during the pendency of this case. x x x. A
contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications. Indeed, if
innocent, the respondent official merits vindication of his name and integrity as he leaves the government which he has
served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and
imposable under the situation.

This Court cannot countenance the petitioner's puerile pretext that since no administrative case had been filed against
her during her employment, she can no longer be administratively charged. Section 48, Chapter 6, Subtitle A, Title I,
Book V of Executive Order No. 292, also known as the Administrative Code of 1987, provides for the initiation of
administrative proceedings by the proper personalities as part of the procedural process in administrative cases:

Section 48. Procedures in Administrative Cases Against Non-Presidential Appointees. (1) Administrative proceedings
may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or
head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other
person.

At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer that
she needed to explain why no administrative charge should be filed against her, after it discovered the cash shortage of
P1,424,289.99 in her accountabilities. Moreover, she had already filed her answer. To all intents and purposes, the
administrative proceedings had already been commenced at the time she was considered separated from service
through her precipitate filing of her certificate of candidacy. Petitioner's bad faith was manifest when she filed it, fully
knowing that administrative proceedings were being instituted against her as part of the procedural due process in
laying the foundation for an administrative case.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

To support her argument that government employees who have been separated can no longer be administratively
charged, petitioner cites the following cases: Diamalon v. Quintillian,28 Vda. de Recario v. Aquino,29 Zamudio v. Penas,
Jr.,30 Pardo v. Cunanan,31 and Mendoza v. Tiongson.32 A piecemeal reference to these cases is too insubstantial to
support the petitioner's allegation that her separation from government service serves as a bar against the filing of an
administrative case for acts she committed as an appointive government official. In order to understand the Court's
pronouncement in these cases, they must be examined in their proper contexts.

In Diamalon v. Quintillian,33 a complaint for serious misconduct was filed against the respondent judge questioning his
issuance of a warrant of arrest without the presence of the accused. A cursory review of the facts in this case shows that
the administrative complaint lacks basis, as there is nothing irregular in the act of the respondent judge in issuing a
warrant of arrest without the presence of the accused during the hearing for such issuance. After the case was filed, the
respondent judge became seriously ill and his application for retirement gratuity could not be acted upon because of
the pending administrative case against him. Thus, the Court, out of Christian justice, dismissed the administrative case
against the respondent who was to retire and desperately needed his retirement benefits.

In Vda. de Recario v. Aquino,34 an administrative case was filed against the respondent judge for failure to immediately
act on a case for prohibition. In dismissing the complaint against the judge, the Court ruled that "there are no indications
of bad faith on the part of the respondent judge when he set for hearing in due course Civil Case No. 13335. If the
complainants were prejudiced at all x x x, it was because of complainant's own error in not asking for a writ of preliminary
injunction or restraining order and not due to respondent's error or delay in taking action or any other fault." It was only
an aside that the Court even mentioned that the respondent judge had already resigned. Thus, this case cannot be the
basis for enjoining the administrative case against herein petitioner.

In Zamudio v. Penas, Jr.,35 an administrative complaint for dishonorable conduct was filed against the respondent judge.
The Court did not exculpate him from administrative liability, despite his retirement. The Court unequivocally declared:
"The jurisdiction of the Court over this case was, therefore, not lost when the respondent retired from the judiciary and,
in the exercise of its power over the respondent as a member of the bar, the Court may compel him to support his
illegitimate daughters."36 The Court merely mitigated the penalty when it took into account the fact that respondent's
dishonorable conduct occurred before his appointment as a judge, along with the fact that he had reached compulsory
retirement age during the pendency of the administrative case.37

In Pardo v. Cunanan,38 the Court did not dismiss the administrative case against the respondent government employee,
but merely imposed a lesser penalty of one-month suspension for her failure to disclose the fact that she had a pending
administrative case when she applied for another government post. In mitigating the penalty, the Court considered her
good faith, as well as her resignation from her previous post. The Court took into account the notice of acceptance of
her resignation, stating that her "services while employed in this office have been satisfactory and your future
application for reinstatement may be favorably considered."39

In Mendoza v. Tiongson,40 this Court refused to accept the resignations filed by the respondents, which were intended
solely to allow them to evade the penalties this Court would impose against them. This ruling cannot be construed as a
bar against filing administrative cases against government employees who have been separated from their employment,
for what would stop the latter from merely abandoning their posts to evade administrative charges against them? To
the contrary, this ruling can only strengthen this Court's resolve to diligently continue hearing administrative cases
against erring government employees, even after they are separated from employment.

To summarize, none of the rulings in the aforecited cases can justify the dismissal of the administrative case filed against
herein petitioner simply because she had filed her certificate of candidacy. The circumstances of the instant case are
vastly different from those in Diamalon v. Quintillian41 and Vda. de Recario v. Aquino,42 in which the respondent judges
were able to present valid and meritorious defenses in the administrative complaints filed against them. Petitioner in
this case did not even attempt to properly account for the cash shortage of P4,080,799.77 from the checks and funds
that were in her custody. On the other hand, the respondent government employees in Zamudio v. Penas, Jr.43 and
Pardo v. Cunanan,44 were not absolved of their administrative liability; rather, the Court merely mitigated the penalty
it imposed upon them. In Mendoza v. Tiongson,45 the Court emphatically denounced the contemptible attempt of
government employees to elude the consequences of their wrongdoings by quitting their jobs. It is clear that this Court
had dismissed administrative cases, taking into consideration the resignation or retirement of the civil servants who
presented meritorious defenses and, in certain cases, even mitigated the penalties of those who were later found guilty
of the administrative charge. But this Court has never abetted government employees who deliberately set out to effect
their separation from service as a means of escaping administrative proceedings that would be instituted against them.

Petitioner relies on Section 66 of the Omnibus Election Code to exculpate her from an administrative charge. The
aforementioned provision reads:

Any person holding a public appointive officer or position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-owned or controlled corporations, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy.

Section 66 of the Omnibus Election Code should be read in connection with Sections 46(b)(26) and 55, Chapters 6 and
7, Subtitle A, Title I, Book V of the Administrative Code of 1987:

Section 44. Discipline: General Provisions:

xxx

(b) The following shall be grounds for disciplinary action:

xxx

(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

xxx

Section 55. Political Activity. - No officer or employee in the Civil Service including members of the Armed Forces, shall
engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use
his official authority or influence to coerce the political activity of any other person or body.

Clearly, the act of filing a Certificate of Candidacy while one is employed in the civil service constitutes a just cause for
termination of employment for appointive officials. Section 66 of the Omnibus Election Code, in considering an
appointive official ipso facto resigned, merely provides for the immediate implementation of the penalty for the
prohibited act of engaging in partisan political activity. This provision was not intended, and should not be used, as a
defense against an administrative case for acts committed during government service.

Section 4746 of the Administrative Code of 1987 provides for the authority of heads of provinces to investigate and
decide matters involving disciplinary actions against employees under their jurisdiction. Thus, the Provincial Governor
acted in accordance with law when it ordered the creation of an independent body to investigate the administrative
complaint filed against petitioner for dishonesty, grave misconduct and malversation of public funds through
falsification of official documents in connection with acts committed while petitioner was employed as Cashier IV in the
Office of the Provincial Treasurer of Benguet.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed Decision of the Court of Appeals in CA-G.R.
SP No. 53323, promulgated on 7 March 2001, is AFFIRMED. The Office of the Provincial Governor of Benguet is hereby
DIRECTED to proceed with Administrative Case No. 98-01 against the petitioner, Esther S. Pagano, for dishonesty, grave
misconduct and malversation of public funds through falsification of official documents. Costs against the petitioner.

SO ORDERED.
FELIPE EVARDONE, petitioner, vs. COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E.
ACLAN and NOEL A. NIVAL, respondents.

G.R. No. 94010 | 1991-12-02

DECISION

PADILLA, J p:

These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557 issued by the respondent
Commission on Elections (COMELEC) dated 20 June 1990 which approved the recommendation of the Election Registrar
of Sulat, Eastern Samar to hold and conduct the signing of the petition for recall of the incumbent Mayor of Sulat, Eastern
Samar, on 14 July 1990.

G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of a restraining order and/or
writ of preliminary injunction to restrain the holding of the signing of the petition for recall on 14 July 1990.

G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc Resolution No. 90-0660 of the
respondent COMELEC nullifying the signing process held on 14 July 1990 in Sulat, Eastern Samar for the recall of Mayor
Evardone of said municipality and en banc Resolution No. 90-0777 denying petitioners' motion for reconsideration, on
the basis of the temporary restraining order issued by this Court on 12 July 1990 in G.R. No. 94010.

Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of Sulat, Eastern Samar, having
been elected to the position during the 1988 local elections. He assumed office immediately after proclamation.

On 14 February 1990, Alexander R. Apelado, Victorino E. Aclan and Noel A. Nival (hereinafter referred to as Apelado, et
al.) filed a petition for the recall of Evardone with the Office of the Local Election Registrar, Municipality of Sulat.

In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-0557, approving the
recommendation of Mr. Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold on 14 July 1990 the
signing of the petition for recall against incumbent Mayor Evardone of the said Municipality.

On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent prayer for immediate issuance
of restraining order and/or writ of preliminary injunction, which was docketed as G.R. No. 94010.
On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective immediately and continuing
until further orders from the Court, ordering the respondents to cease and desist from holding the signing of the petition
for recall on 14 July 1990, pursuant to respondent COMELEC's Resolution No. 2272 dated 23 May 1990.

On the same day (12 July 1990), the notice of TRO was received by the Central Office of the respondent COMELEC. But
it was only on 15 July 1990 that the field agent of the respondent COMELEC received the telegraphic notice of the TRO
- a day after the completion of the signing process sought to be temporarily stopped by the TRO.

In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC nullified the signing process held
in Sulat, Eastern Samar for being violative of the order (the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a
motion for reconsideration and on 29 August 1990, the respondent COMELEC denied said motion holding that:

". . . The critical date to consider is the service or notice of the Restraining Order on 12 July 1990 upon the principal i.e.
the Commission on Election, and not upon its agent in the field." 1

Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set aside en banc Resolution No.
90-0660 of respondent COMELEC.

In G.R. No. 94010, Evardone contends that:

"I. The COMELEC committed grave abuse of discretion in approving the recommendation of the Election Registrar of
Sulat, Eastern Samar to hold the signing of the petition for recall without giving petitioner his day in court.

II. The COMELEC likewise committed grave abuse of discretion amounting to lack or excess of jurisdiction in
promulgating Resolution No. 2272 on May 22, 1990 which is null and void for being unconstitutional." 2

In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of the petition for recall held on
14 July 1990 has been rendered nugatory by the TRO issued by this court in G.R. No. 94010 dated 12 July 1990 but
received by the COMELEC field agent only on 15 July 1990.

The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272 promulgated by respondent
COMELEC on 23 May 1990 by virtue of its powers under the Constitution and Batas Pambansa Blg. 337 (Local
Government Code). The resolution embodies the general rules and regulations on the recall of elective provincial, city
and municipal officials.
Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg. 337 in favor of one
to be enacted by Congress. Said Section 3 provides:

"Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local government units their powers, responsibilities, and
resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions
and duties of local officials, and all other matters relating to the organization and operation of the local units."

Since there was, during the period material to this case, no local government code enacted by Congress after the
effectivity of the 1987 Constitution nor any law for that matter on the subject of recall of elected government officials,
Evardone contends that there is no basis for COMELEC Resolution No. 2272 and that the recall proceedings in the case
at bar is premature.

The respondent COMELEC, in its Comment (G.R. No. 94010), avers that:

"The constitutional provision does not refer only to a local government code which is in futurum but also in esse. It
merely sets forth the guidelines which Congress will consider in amending the provisions of the present Local
Government Code. Pending the enactment of the amendatory law, the existing Local Government Code remains
operative. The adoption of the 1987 Constitution did not abrogate the provisions of BP No. 337, rules a certain provision
thereof is clearly irreconciliable with the provisions of the 1987 Constitution. In this case, Sections 54 to 59 of Batas
Pambansa No. 337 are not inconsistent with the provision of the Constitution. Hence, they are operative." 3

We find the contention of the respondent COMELEC meritorious.

Article XVIII, Section 3 of the 1987 Constitution expressly provides that all existing laws not inconsistent with the 1987
Constitution shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided
in Sec. 534, Title Four of said Act. But the Local Government Code of 1991 will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case. Prior to the
enactment of the new Local Government Code, the effectiveness of B.P. Blg. 337 was expressly recognized in the
proceedings of the 1986 Constitutional Commission. Thus -

"MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code under the report of the Committee
on Amendments and Transitory Provisions, the former Local Government Code, which is Batas Pambansa Blg. 337 shall
continue to be effective until repealed by the Congress of the Philippines." 4
Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59
expressly authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the
exercise of such powers, promulgate the necessary rules and regulations.

The Election Code contains no special provisions on the manner of conducting elections for the recall of a local official.
Any such election shall be conducted in the manner and under the rules on special elections, unless otherwise provided
by law or rule of the COMELEC. 5 Thus, pursuant to the rule-making power vested in respondent COMELEC, it
promulgated Resolution No. 2272 on 23 May 1990.

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional.
Consequently, the respondent COMELEC had the authority to approve the petition for recall and set the date for the
signing of said petition.

The next issue for resolution is whether or not the TRO issued by this Court rendered nugatory the signing process of
the petition for recall held pursuant to Resolution No. 2272.

In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the Philippines, et al., 6 this Court held:

". . . What is sought in this suit is to enjoin respondents particularly respondent Commission from implementing Batas
Pambansa Blg. 86, specifically 'from conducting, holding and undertaking the plebiscite provided for in said act.' The
petition was filed on December 5, 1980. There was a plea for a restraining order, but Proclamation No. 2034 fixing the
date for such plebiscite on December 6, 1980 had been issued as far as back as November 11, 1980. Due to this delay in
filing this suit, attributable solely to petitioners, there was no time even to consider such a plea. The plebiscite was duly
held. The certificate of canvass and proclamation of the result disclosed that out of 2,409 total votes cast in such
plebiscite, 2,368 votes were cast in favor of the creation of the new municipality, which, according to the statute, will
be named municipality of Aguinaldo. There were only 40 votes cast against. As a result, such municipality was created.
There is no turning back the clock. The moot and academic character of this petition is thus apparent.

In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado, et al. on or about 21
February 1990 as evidenced by the Registry Return Receipt; yet, he was not vigilant in following up and determining the
outcome of such notice. Evardone alleges that it was only on or about 3 July 1990 that he came to know about the
Resolution of respondent COMELEC setting the signing of the petition for recall on 14 July 1990. But despite his urgent
prayer for the issuance of a TRO, Evardone filed the petition for prohibition only on 10 July 1990.

Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place just the same on the
scheduled date through no fault of the respondent COMELEC and Apelado, et al. The signing process was undertaken
by the constituents of the Municipality of Sulat and its Election Registrar in good faith and without knowledge of the
TRO earlier issued by this Court. As attested by Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters
of Sulat, Eastern Samar or about 34% signed the petition for recall. As held in Paredes vs. Executive Secretary 7 there is
no turning back the clock.

"The right to recall is complementary to the right to elect or appoint. It is included in the right of suffrage. It is based on
the theory that the electorate must maintain a direct and elastic control over public functionaries. It is also predicated
upon the idea that a public office is 'burdened' with public interests and that the representatives of the people holding
public offices are simply agents or servants of the people with definite powers and specific duties to perform and to
follow if they wish to remain in their respective offices." 8

Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a political
question. It belongs to the realm of politics where only the people are the judge. 9 "Loss of confidence is the formal
withdrawal by an electorate of their trust in a person's ability to discharge his office previously bestowed on him by the
same electorate." 10 The constituents have made a judgment and their will to recall the incumbent mayor (Evardone)
has already been ascertained and must be afforded the highest respect. Thus, the signing process held last 14 July 1990
in Sulat, Eastern Samar, for the recall of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.

However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of B.P. Blg. 337, which
states.

"SEC. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held. - . . .

(2) No recall shall take place within two years from the date of the official's assumption of office or one year
immediately preceding a regular local election."

The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or more specifically, as
provided for in Article XVIII, Sec. 5 - on the second Monday of May, 1992. 11 Thus, to hold an election on recall
approximately seven (7) months before the regular local election will be violative of the above provisions of the
applicable Local Government Code (B.P. Blg. 337).

ACCORDINGLY, both petitions are DISMISSED for having become moot and academic.

SO ORDERED.
ARTURO B. PASCUAL, petitioner-appellant, vs. HON. PROVINCIAL BOARD OF NUEVA ECIJA, respondent-
appellee.

G.R. No. L-11959 | 1959-10-31

Aguinaldo doctrine (Condonation doctrine)

DECISION

GUTIERREZ DAVID, J.:

We are asked in this appeal to revoke an order of the Court of First Instance of Nueva Ecija denying appellant's petition
for a writ of prohibition with preliminary injunction.

Petitioner-appellant Arturo B. Pascual had been elected mayor of San Jose, Nueva Ecija, in November 1951 and reelected
in 1955. On October 6, 1956, the Acting Provincial Governor of that province filed with the Provincial Board three
administrative charges against the said appellant. Charge III was for "Maladministrative, Abuse of Authority, and
Usurpation of Judicial Functions," committed as follows:

"Specification I - That on or about the 18th and 20th day of December, 1954, in the municipality of San Jose, Nueva Ecija,
the above-named respondent, being municipal mayor of San Jose, Nueva Ecija, and while the justice of the peace of the
said municipality was present therein, did then and there willfully, feloniously, criminally, without legal authority, and
with grave abuse of authority, assumed and usurped the judicial powers of the said justice of the peace by accepting
the criminal complaint filed in Criminal Case No. 3556, of the said court, conducting the preliminary investigation
thereof, fixing the bail bond of P6,000.00, and issuing the corresponding warrant of arrest; and after the accused in the
said criminal case had been arrested, while the justice of the peace was in his office in San Jose, Nueva Ecija, the herein
respondent, in defiance of the express refusal by the justice of the peace to reduce the bail bond of the accused in
Criminal Case No. 1556, acted on the motion to reduce bail and did reduce the bail bond to P3,000.00.

After the presentation of evidence regarding the first two charges, petitioner-appellant filed with the respondent-
appellee, the Provincial Board, a motion to dismiss the third charge above referred to, on the main ground that the
wrongful acts therein alleged had been committed during his previous term of office and could not constitute a ground
for disciplining him during his second term. Upon opposition filed by a special counsel for the respondent-appellee, the
motion to dismiss was denied by resolution of the Board.

After the denial of a motion for reconsideration of that resolution, the appellant filed with this Court a petition for a writ
of prohibition with preliminary injunction (G. R. No. L-11730), to enjoin the Provincial Board of Nueva Ecija from taking
cognizance of the third charge, but the petition was denied by minute resolution of December 21, 1956 "without
prejudice to action, if any, in the Court of First Instance." Accordingly, the petitioner-appellant filed with the Court of
First Instance of Nueva Ecija a petition for prohibition with preliminary injunction seeking to inhibit the said Provincial
Board from proceeding with the hearing of Charge No. III, for lack of jurisdiction.

Instead of filing an answer, the respondent-appellee moved for the dismissal of the case on the ground that it states no
cause of action because the petitioner-appellant had not complied with the cardinal principle of exhaustion of
administrative remedies before he could appeal to the courts, and because the Provincial Board had jurisdiction over
Charge No. III. After responsive pleadings had been filed by both parties, the court below issued an order dismissing the
petition "for being premature", for the reason that the petitioner had not first appealed to the Executive Secretary.
From that order, the case was brought before us on appeal. Upon urgent petition, a writ of preliminary injunction was
issued restraining the respondent-appellee from investigating petitioner-appellant on the charge abovementioned.

In his brief, petitioner-appellant claims that the court below erred: (1) in not holding that the alleged usurpation of
judicial functions in December 1954 is not a legal ground for disciplining the appellant during his second term of office
after a reelection, and in not holding that the respondent patently has no authority or jurisdiction to take cognizance of
Charge No. 3; (2) in holding that the petition for prohibition is premature and that the appellant must first exhaust all
administrative remedies available to him under the Revised Administrative Code; and (3) in dismissing the petition for
prohibition.

The first question posed is whether or not it was legally proper for petitioner-appellant to have come to court without
first bringing his case to the Executive Secretary for review. True it is that, in this jurisdiction, the settled rule is that
where the law has delineated the procedure by which administrative appeal or remedy could be effected, the same
should be followed before recourse to judicial action can be initiated (Ang Tuan Kai vs. Import Control Commission, 91
Phil., 143; Coloso vs. Board, 92 Phil., 938; Miguel vs. Reyes, 93 Phil., 542, and several other cases), but we believe that
this rule is not without exceptions, as in a case like the present, where the only question to be settled in the prohibition
proceedings is a purely legal one - whether or not a municipal mayor may be subjected to an administrative investigation
of a charge based on misconduct allegedly committed by him during his prior term.

"The rule is inapplicable where no administrative remedy is provided. Likewise, the rule will be relaxed where there is
grave doubt as to the availability of the administrative remedy; where the question in dispute is purely a legal one, and
nothing of an administrative nature is to be or can be done; where although there are steps to be taken, they are, under
the admitted facts, merely matters of form, and the administrative process, as a process of judgment, is really over; or
where the administrative remedy is not exclusive but merely cumulative or concurrent to a judicial remedy. A litigant
need not proceed with optional administrative process before seeking judicial relief." (73 C.J.S. p. 354) (Emphasis ours)

On the above authority, we are inclined to agree with the petitioner- appellant that his bringing the case to court is not
a violation of, but merely an exception to, the cardinal rule above referred to.

In a case (Mondano vs. Silvosa * 51 Off. Gaz., [6], p. 2884), this Court granted a writ of prohibition against the provincial
board of Capiz, notwithstanding the fact that the petitioner therein did not appeal to the Executive Secretary, the only
question therein involved being whether or not the charged filed against the municipal mayor of Calibo, Capiz,
constituted any one of the grounds for suspension or removal provided for in sec. 2188 of the Revised Administrative
Code.

We now come to the main issue of the controversy - the legality of disciplining an elective municipal official for a
wrongful act committed by him during his immediately preceding term of office.

In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on
the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part,
to a divergence of views with respect to the question of whether the subsequent election or appointment condones the
prior misconduct. The weight of authority, however, seems to incline to the rule denying the right to remove one from
office because of misconduct during a prior term, to which we fully subscribe.

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

The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a
condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor (43 Am.
Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553. As held in Conant vs. Brogan (1887) 6
N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 -

"The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would
be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be
assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically
overrule the will of the people."

In view of the foregoing, the order appealed from is hereby revoked; the writ of prohibition prayed for is hereby granted
and the preliminary injunction heretofore issued made permanent. Without special pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J. B. L., Endencia and Barrera, JJ., concur.

Footnotes

* 97 Phil., 143.
G.R. No. 94115 August 21, 1992

RODOLFO E. AGUINALDO, petitioner, vs. HON. LUIS SANTOS, as Secretary of the Department of Local
Government, and MELVIN VARGAS, as Acting Governor of Cagayan, respondents.

Victor I. Padilla for petitioner.

Doroteo B. Laguna and Manuel T. Molina for private respondent.

NOCON, J.:

In this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, petitioner
Rodolfo E. Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990 in Adm.
Case No. P-10437-89 dismissing him as Governor of Cagayan on the ground that the power of the Secretary of Local
Government to dismiss local government official under Section 14, Article I, Chapter 3 and Sections 60 to 67, Chapter 4
of Batas Pambansa Blg. 337, otherwise known as the Local Government Code, was repealed by the effectivity of the
1987 Constitution.

The pertinent facts are as follows: Petitioner was the duly elected Governor of the province of Cagayan, having been
elected to said position during the local elections held on January 17, 1988, to serve a term of four (4) years therefrom.
He took his oath sometimes around March 1988.

Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local Government sent a telegram and
a letter, both dated December 4, 1989, to petitioner requiring him to show cause why should not be suspended or
remove from office for disloyalty to the Republic, within forty-eight (48) hours from receipt thereof.

On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was
filed by Veronico Agatep, Manuel Mamba and Orlino Agatep, respectively the mayors of the municipalities of Gattaran,
Tuao and Lasam, all in Cagayan, against petitioner for acts the latter committed during the coup. Petitioner was required
to file a verified answer to the complaint.

On January 5, 1990, the Department of Local Government received a letter from petitioner dated December 29, 1989
in reply to respondent Secretary's December 4, 1989 letter requiring him to explain why should not be suspended or
removed from office for disloyalty. In his letter, petitioner denied being privy to the planning of the coup or actively
participating in its execution, though he admitted that he was sympathetic to the cause of the rebel soldiers. 1

Respondent Secretary considered petitioner's reply letter as his answer to the complaint of Mayor Veronico Agatep and
others. 2 On the basis thereof, respondent Secretary suspended petitioner from office for sixty (60) days from notice,
pending the outcome of the formal investigation into the charges against him.

During the hearing conducted on the charges against petitioner, complainants presented testimonial and documentary
evidence to prove the charges. Petitioner neither presented evidence nor even cross-examined the complainant's
witnesses, choosing instead to move that respondent Secretary inhibit himself from deciding the case, which motion
was denied.

Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty as charged and ordering his
removal from office. Installed as Governor of Cagayan in the process was respondent Melvin Vargas, who was then the
Vice-Governor of Cagayan.

Petitioner relies on three grounds for the allowance of the petition, namely: (1) that the power of respondent Secretary
to suspend or remove local government official under Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987
Constitution; (2) that since respondent Secretary no longer has power to suspend or remove petitioner, the former
could not appoint respondent Melvin Vargas as Governor of Cagayan; and (3) the alleged act of disloyalty committed by
petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because
it is an act punishable as rebellion under the Revised Penal Code.

While this case was pending before this Court, petitioner filed his certificate of candidacy for the position of Governor
of Cagayan for the May 11, 1992 elections. Three separate petitions for his disqualification were then filed against him,
all based on the ground that he had been removed from office by virtue of the March 19, 1990 resolution of respondent
Secretary. The commission on Elections granted the petitions by way of a resolution dated May 9, 1992. On the same
day, acting upon a "Motion to Clarify" filed by petitioner, the Commission ruled that inasmuch as the resolutions of the
Commission becomes final and executory only after five (5) days from promulgation, petitioner may still be voted upon
as a candidate for governor pending the final outcome of the disqualification cases with his Court.

Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R. Nos. 105128-30, entitled
Rodolfo E. Aguinaldo v. Commission on Elections, et al., seeking to nullify the resolution of the Commission ordering his
disqualification. The Court, in a resolution dated May 14, 1992, issued a temporary restraining order against the
Commission to cease and desist from enforcing its May 9, 1992 resolution pending the outcome of the disqualification
case, thereby allowing the canvassing of the votes and returns in Cagayan to proceed. However, the Commission was
ordered not to proclaim a winner until this Court has decided the case.
On June 9, 1992, a resolution was issued in the aforementioned case granting petition and annulling the May 9, 1992
resolution of the Commission on the ground that the decision of respondent Secretary has not yet attained finality and
is still pending review with this Court. As petitioner won by a landslide margin in the elections, the resolution paved the
way for his eventual proclamation as Governor of Cagayan.

Under the environmental circumstances of the case, We find the petition meritorious.

Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before Us
moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among
the candidates for governor of Cagayan province. As held by this Court in Aguinaldo v. Comelec et al., supra,:

. . . [T]he certified true xerox copy of the "CERTITICATE OF VOTES OF CANDIDATES", attached to the "VERY URGENT
MOTION FOR THE MODIFICATION OF THE RESOLUTION DATED MAY 14, 1992["] filed by petitioner shows that he
received 170,382 votes while the other candidates for the same position received the following total number of votes:
(1) Patricio T. Antonio — 54,412, (2) Paquito F. Castillo — 2,198; and (3) Florencio L. Vargas — 48,129.

xxx xxx xxx

Considering the fact narrated, the expiration of petitioner's term of office during which the acts charged were allegedly
committed, and his subsequent reelection, the petitioner must be dismissed for the reason that the issue has become
academic. In Pascual v. Provincial Board of Nueva Ecija, L-11959, October 31, 1959, this Court has ruled:

The weight of authority, however, seems to incline to the ruled denying the right to remove from office because of
misconduct during a prior term to which we fully subscribe.

Offenses committed, or acts done, during a previous term are generally held not to furnish cause for removal and this
is especially true were the Constitution provides that the penalty in proceeding for removal shall not extend beyond the
removal from office, and disqualification from holding office for a term for which the officer was elected or appointed.
(6 C.J.S. p. 248, citing Rice v. State, 161 S.W. 2nd 4011; Montgomery v. Newell, 40 S.W. 23rd 418; People ex rel Bashaw
v. Thompson, 130 P. 2nd 237; Board of Com'rs Kingfisher County v. Shutler, 281 P. 222; State v. Blake, 280 P. 388; In re
Fedula, 147 A 67; State v. Wald, 43 S.W. 217)

The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a
condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45,
citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R.
332, cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553.
The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise would
be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be
assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or
misconduct, if he had been guilty of any. It is not for the court, by reason of such fault or misconduct, to practically
overrule the will of the people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57
SCRA 163 [1974]) 3

Clear then, the rule is that a public official can not be removed for administrative misconduct committed during a prior
term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of
cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending
against petitioner for acts he may have committed during the failed coup.

The other grounds raised by petitioner deserve scant consideration. Petitioner contends that the power of respondent
Secretary to suspend or remove local government officials as alter ego of the President, and as embodied in B.P. Blg.
337 has been repealed by the 1987 Constitution and which is now vested in the courts.

We do not agree. The power of respondent Secretary to remove local government officials is anchored on both the
Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17)
and X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments,
bureaus and offices and the power of general supervision over local governments, and by the doctrine that the acts of
the department head are presumptively the acts of the President unless expressly rejected by him. 4 The statutory grant
found in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to
Article XI of the 1973 Constitution, Section 2 of which specifically provided as follows —

Sec. 2. The National Assembly shall enact a local government code which may not thereafter be amended except by a
majority vote of all its Members, defining a more responsive and accountable local government structure with an
effective system of recall, allocating among the different local government units their powers, responsibilities, and
resources, and providing for the qualifications, election and removal, term, salaries, power, functions, and duties of local
government officials, and all other matters relating to the organization and operation of the local units. However, any
change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in the
plebiscite called for the purpose. 5

A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads:

Sec. 3. The Congress shall enact a local government code which shall provided for a more responsive and accountable
local government structure instituted through a system of decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local government units their powers, responsibilities, and
resources, and provide for the qualifications, election, appointment, and removal, term and salaries, powers and
functions and duties of local officials, and all other matters relating to the organization and operation of the local units.
6
Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner
of removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it
can not be said that BP Blg. 337 was repealed by the effective of the present Constitution.

Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., 7 this court had the occasion to state that B.P. Blg. 337 remained in
force despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991
is approved.

The power of respondent Secretary of the Department of Local Government to remove local elective government
officials is found in Secs. 60 and 61 of B.P. Blg. 337. 8

As to petitioner's argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as
Governor of Cagayan, We need but point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to writ —

In case a permanent vacancy arises when a governor . . . refuses to assume office, fails to quality, dies or is removed
from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office, the
vice-governor . . . shall assume the office for the unexpired term of the former. 9

Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond
reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined
and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the
provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected
Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only
substantial evidence. 10

WHEREFORE, petitioner is hereby GRANTED and the decision of public respondent Secretary of Local Government dated
March 19, 1990 in Adm. Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby REVERSED.

SO ORDERED.
ANTONIO F. TRILLANES IV, Petitioner, versus HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE,
REGIONAL TRIAL COURT- BRANCH 148, MAKATI CITY; GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I. CALUNSAG,
MGEN. BENJAMIN DOLORFINO, AND LT. COL. LUCIARDO OBE?A, People of the Philippines Respondents.

G.R. No. 179817 | 2008-06-27

DECISION

CARPIO MORALES, J.:

At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed
Forces of the Philippines (AFP) stormed into the Oakwood Premier Apartments in Makati City and publicly demanded
the resignation of the President and key national officials.

Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a
state of rebellion and calling out the Armed Forces to suppress the rebellion.[1] A series of negotiations quelled the
teeming tension and eventually resolved the impasse with the surrender of the militant soldiers that evening.

In the aftermath of this eventful episode dubbed as the "Oakwood Incident," petitioner Antonio F. Trillanes IV was
charged, along with his comrades, with coup d'etat defined under Article 134-A of the Revised Penal Code before the
Regional Trial Court (RTC) of Makati. The case was docketed as Criminal Case No. 03-2784, "People v. Capt. Milo D.
Maestrecampo, et al."

Close to four years later, petitioner, who has remained in detention,[2] threw his hat in the political arena and won a
seat in the Senate with a six-year term commencing at noon on June 30, 2007.[3]

Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an
"Omnibus Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests"[4] (Omnibus
Motion). Among his requests were:

(a) To be allowed to go to the Senate to attend all official functions of the Senate (whether at the Senate or elsewhere)
particularly when the Senate is in session, and to attend the regular and plenary sessions of the Senate, committee
hearings, committee meetings, consultations, investigations and hearings in aid of legislation, caucuses, staff meetings,
etc., which are normally held at the Senate of the Philippines located at the GSIS Financial Center, Pasay City (usually
from Mondays to Thursdays from 8:00 a.m. to 7:00 p.m.);

(b) To be allowed to set up a working area at his place of detention at the Marine Brig, Marine Barracks Manila, Fort
Bonifacio, Taguig City, with a personal desktop computer and the appropriate communications equipment (i.e., a
telephone line and internet access) in order that he may be able to work there when there are no sessions, meetings or
hearings at the Senate when the Senate is not in session. The costs of setting up the said working area and the related
equipment and utility costs can be charged against the budget/allocation of the Office of the accused from the Senate;

(c) To be allowed to receive members of his staff at the said working area at his place of detention at the Marine Brig,
Marine Barracks Manila, Fort Bonifacio, Taguig City, at reasonable times of the day particularly during working days for
purposes of meetings, briefings, consultations and/or coordination, so that the latter may be able to assists (sic) him in
the performance and discharge of his duties as a Senator of the Republic;

(d) To be allowed to give interviews and to air his comments, reactions and/or opinions to the press or the media
regarding the important issues affecting the country and the public while at the Senate or elsewhere in the performance
of his duties as Senator to help shape public policy and in the light of the important role of the Senate in maintaining
the system of checks and balance between the three (3) co-equal branches of Government;

(e) With prior notice to the Honorable Court and to the accused and his custodians, to be allowed to receive, on Tuesdays
and Fridays, reporters and other members of the media who may wish to interview him and/or to get his comments,
reactions and/or opinion at his place of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig
City, particularly when there are no sessions, meetings or hearings at the Senate or when the Senate is not in session;
and

(f) To be allowed to attend the organizational meeting and election of officers of the Senate and related activities
scheduled in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the Senate of the Philippines located at the GSIS
Financial Center, Pasay City.[5]

By Order of July 25, 2007,[6] the trial court denied all the requests in the Omnibus Motion. Petitioner moved for
reconsideration in which he waived his requests in paragraphs (b), (c) and (f) to thus trim them down to three.[7] The
trial court just the same denied the motion by Order of September 18, 2007.[8]

Hence, the present petition for certiorari to set aside the two Orders of the trial court, and for prohibition and mandamus
to (i) enjoin respondents from banning the Senate staff, resource persons and guests from meeting with him or
transacting business with him in his capacity as Senator; and (ii) direct respondents to allow him access to the Senate
staff, resource persons and guests and permit him to attend all sessions and official functions of the Senate. Petitioner
preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to convene his staff,
resource persons and guests[9] at the Marine Brig.

Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen. Hermogenes Esperon (Esperon);
Philippine Navy's Flag Officer-in-Command, Vice Admiral Rogelio Calunsag; Philippine Marines' Commandant, Major
Gen. Benjamin Dolorfino; and Marine Barracks Manila Commanding Officer, Lt. Col. Luciardo Obeña (Obeña).

Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30, 2007, been in the custody
of the Philippine National Police (PNP) Custodial Center following the foiled take-over of the Manila Peninsula Hotel[10]
the day before or on November 29, 2007.

Such change in circumstances thus dictates the discontinuation of the action as against the above-named military
officers-respondents. The issues raised in relation to them had ceased to present a justiciable controversy, so that a
determination thereof would be without practical value and use. Meanwhile, against those not made parties to the
case, petitioner cannot ask for reliefs from this Court.[11] Petitioner did not, by way of substitution, implead the police
officers currently exercising custodial responsibility over him; and he did not satisfactorily show that they have adopted
or continued the assailed actions of the former custodians.[12]

Petitioner reiterates the following grounds which mirror those previously raised in his Motion for Reconsideration filed
with the trial court:

I. THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY INAPPLICABLE TO THE INSTANT CASE
BECAUSE OF THE FOLLOWING REASONS:

A. UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY CONVICTED AT THE TIME HE FILED HIS
MOTION. IN THE INSTANT CASE, ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL ENJOYS THE
PRESUMPTION OF INNOCENCE;

B. THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2) COUNTS OF STATUTORY RAPE AND SIX (6)
COUNTS OF ACTS OF LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN ACCUSED/PETITIONER IS
CHARGED WITH THE OFFENSE OF "COUP D'ETAT", A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL
OFFENSE;

C. THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO BEING ARRESTED. THE ACCUSED/ PETITIONER
VOLUNTARILY SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE RESPONSIBILITY FOR HIS ACTS AT OAKWOOD;
II. GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE BRIG'S COMMANDING OFFICER TO
ALLOW PETITIONER TO ATTEND THE SENATE SESSIONS;

III. ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR SOVEREIGN CAPACITY, ELECTED HIM TO
THE POSITION OF SENATOR OF THE REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO ALLOW HIM TO WORK
AND SERVE HIS MANDATE AS A SENATOR;

- AND -

IV.MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL TREATMENT OF DETENTION PRISONERS WHO
ARE HELD WITHOUT BAIL AS IN THE CASE OF FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND FORMER ARMM GOV.
NUR MISUARI.[13]

The petition is bereft of merit.

In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep.
Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, when he filed a motion similar
to petitioner's Omnibus Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues to
enjoy civil and political rights since the presumption of innocence is still in his favor.

Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of
statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup d'etat which is regarded as a
"political offense."

Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate grievances against
the rampant and institutionalized practice of graft and corruption in the AFP.

In sum, petitioner's first ground posits that there is a world of difference between his case and that of Jalosjos respecting
the type of offense involved, the stage of filing of the motion, and other circumstances which demonstrate the
inapplicability of Jalosjos.[14]

A plain reading of. Jalosjos suggests otherwise, however.

The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election to Congress is
not a reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial
distinctions which lift one from the class of prisoners interrupted in their freedom and restricted in liberty of
movement.[15]

It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the administration of
justice. No less than the Constitution provides:

All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required.[16] (Underscoring supplied)

The Rules also state that no person charged with a capital offense,[17] or an offense punishable by reclusion perpetua
or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal
action.[18]

That the cited provisions apply equally to rape and coup d'etat cases, both being punishable by reclusion perpetua,[19]
is beyond cavil. Within the class of offenses covered by the stated range of imposable penalties, there is clearly no
distinction as to the political complexion of or moral turpitude involved in the crime charged.

In the present case, it is uncontroverted that petitioner's application for bail and for release on recognizance was
denied.[20] The determination that the evidence of guilt is strong, whether ascertained in a hearing of an application
for bail[21] or imported from a trial court's judgment of conviction,[22] justifies the detention of an accused as a valid
curtailment of his right to provisional liberty. This accentuates the proviso that the denial of the right to bail in such
cases is "regardless of the stage of the criminal action." Such justification for confinement with its underlying rationale
of public self-defense[23] applies equally to detention prisoners like petitioner or convicted prisoners-appellants like
Jalosjos.

As the Court observed in Alejano v. Cabuay,[24] it is impractical to draw a line between convicted prisoners and pre-trial
detainees for the purpose of maintaining jail security; and while pre-trial detainees do not forfeit their constitutional
rights upon confinement, the fact of their detention makes their rights more limited than those of the public.

The Court was more emphatic in People v. Hon. Maceda:[25]

As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of the law.
He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense.
He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be
released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive detention or serving
final sentence can not practice their profession nor engage in any business or occupation, or hold office, elective or
appointive, while in detention. This is a necessary consequence of arrest and detention.[26] (Underscoring supplied)

These inherent limitations, however, must be taken into account only to the extent that confinement restrains the
power of locomotion or actual physical movement. It bears noting that in Jalosjos, which was decided en banc one
month after Maceda, the Court recognized that the accused could somehow accomplish legislative results.[27]

The trial court thus correctly concluded that the presumption of innocence does not carry with it the full enjoyment of
civil and political rights. Petitioner is similarly situated with Jalosjos with respect to the application of the presumption
of innocence during the period material to the resolution of their respective motions. The Court in Jalosjos did not
mention that the presumption of innocence no longer operates in favor of the accused pending the review on appeal of
the judgment of conviction. The rule stands that until a promulgation of final conviction is made, the constitutional
mandate of presumption of innocence prevails.[28]

In addition to the inherent restraints, the Court notes that petitioner neither denied nor disputed his agreeing to a
consensus with the prosecution that media access to him should cease after his proclamation by the Commission on
Elections.[29]

Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a flight risk since he voluntarily
surrendered to the proper authorities and such can be proven by the numerous times he was allowed to travel outside
his place of detention.

Subsequent events reveal the contrary, however. The assailed Orders augured well when on November 29, 2007
petitioner went past security detail for some reason and proceeded from the courtroom to a posh hotel to issue certain
statements. The account, dubbed this time as the "Manila Pen Incident,"[30] proves that petitioner's argument bites
the dust. The risk that he would escape ceased to be neither remote nor nil as, in fact, the cause for foreboding became
real.

Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the reasonable amount
of bail and in canceling a discretionary grant of bail.[31] In cases involving non-bailable offenses, what is controlling is
the determination of whether the evidence of guilt is strong. Once it is established that it is so, bail shall be denied as it
is neither a matter of right nor of discretion.[32]

Petitioner cannot find solace in Montano v. Ocampo[33] to buttress his plea for leeway because unlike petitioner, the
therein petitioner, then Senator Justiniano Montano, who was charged with multiple murder and multiple frustrated
murder,[34] was able to rebut the strong evidence for the prosecution. Notatu dignum is this Court's pronouncement
therein that "if denial of bail is authorized in capital cases, it is only on the theory that the proof being strong, the
defendant would flee, if he has the opportunity, rather than face the verdict of the jury."[35] At the time Montano was
indicted, when only capital offenses were non-bailable where evidence of guilt is strong,[36] the Court noted the obvious
reason that "one who faces a probable death sentence has a particularly strong temptation to flee."[37] Petitioner's
petition for bail having earlier been denied, he cannot rely on Montano to reiterate his requests which are akin to bailing
him out.

Second, petitioner posits that, contrary to the trial court's findings, Esperon did not overrule Obeña's recommendation
to allow him to attend Senate sessions. Petitioner cites the Comment[38] of Obeña that he interposed no objection to
such request but recommended that he be transported by the Senate Sergeant-at-Arms with adequate Senate security.
And petitioner faults the trial court for deeming that Esperon, despite professing non-obstruction to the performance
of petitioner's duties, flatly rejected all his requests, when what Esperon only disallowed was the setting up of a political
office inside a military installation owing to AFP's apolitical nature.[39]

The effective management of the detention facility has been recognized as a valid objective that may justify the
imposition of conditions and restrictions of pre-trial detention.[40] The officer with custodial responsibility over a
detainee may undertake such reasonable measures as may be necessary to secure the safety and prevent the escape of
the detainee.[41] Nevertheless, while the comments of the detention officers provide guidance on security concerns,
they are not binding on the trial court in the same manner that pleadings are not impositions upon a court.

Third, petitioner posits that his election provides the legal justification to allow him to serve his mandate, after the
people, in their sovereign capacity, elected him as Senator. He argues that denying his Omnibus Motion is tantamount
to removing him from office, depriving the people of proper representation, denying the people's will, repudiating the
people's choice, and overruling the mandate of the people.

Petitioner's contention hinges on the doctrine in administrative law that "a public official can not be removed for
administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of
the officer's previous misconduct to the extent of cutting off the right to remove him therefor."[42]

The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no "prior term" to
speak of. In a plethora of cases,[43] the Court categorically held that the doctrine of condonation does not apply to
criminal cases. Election, or more precisely, re-election to office, does not obliterate a criminal charge. Petitioner's
electoral victory only signifies pertinently that when the voters elected him to the Senate, "they did so with full
awareness of the limitations on his freedom of action [and] x x x with the knowledge that he could achieve only such
legislative results which he could accomplish within the confines of prison."[44]

In once more debunking the disenfranchisement argument,[45] it is opportune to wipe out the lingering misimpression
that the call of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the
Constitution and echoed by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the
mandate of the people yields to the Constitution which the people themselves ordained to govern all under the rule of
law.
The performance of legitimate and even essential duties by public officers has never been an excuse to free a person
validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts
that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250
members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of
legislation. Congress continues to function well in the physical absence of one or a few of its members. x x x Never has
the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained
by law.[46] (Underscoring supplied)

Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who have also been
charged with non-bailable offenses, like former President Joseph Estrada and former Governor Nur Misuari who were
allowed to attend "social functions." Finding no rhyme and reason in the denial of the more serious request to perform
the duties of a Senator, petitioner harps on an alleged violation of the equal protection clause.

In arguing against maintaining double standards in the treatment of detention prisoners, petitioner expressly admits
that he intentionally did not seek preferential treatment in the form of being placed under Senate custody or house
arrest,[47] yet he at the same time, gripes about the granting of house arrest to others.

Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the
authorities or upon court orders.[48] That this discretion was gravely abused, petitioner failed to establish. In fact, the
trial court previously allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in
February 2007, cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his oath of office[49] on June
29, 2007. In a seeming attempt to bind or twist the hands of the trial court lest it be accused of taking a complete turn-
around,[50] petitioner largely banks on these prior grants to him and insists on unending concessions and blanket
authorizations.

Petitioner's position fails. On the generality and permanence of his requests alone, petitioner's case fails to compare
with the species of allowable leaves. Jaloslos succinctly expounds:

x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in
a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation
not only elevates accused-appellant's status to that of a special class, it also would be a mockery of the purposes of the
correction system.[51]

WHEREFORE, the petition is DISMISSED.

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

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE OMBUDSMAN, Petitioner, v. COURT OF APPEALS
(SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY, JR., Respondents.

DECISION

PERLAS-BERNABE, J.:

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

The Case

Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner Conchita Carpio
Morales, in her capacity as the Ombudsman (Ombudsman), through the Office of the Solicitor General (OSG), assailing:
(a) the Resolution3 dated March 16, 2015 of public respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453,
which granted private respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the implementation of the Joint Order4 dated March 10, 20,15 of the Ombudsman in
OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively suspending him and several other public officers
and employees of the City Government of Makati, for six (6) months without pay; and (b) the Resolution5 dated March
20, 2015 of the CA, ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt6 in CA-G.R. SP No.
139504.

Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary injunction8 (WPI) in CA-G.R. SP No.
139453 which further enjoined the implementation of the preventive suspension order, prompting the Ombudsman to
file a supplemental petition9 on April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas "Ching" Enciso VI before the
Office of the Ombudsman against Binay, Jr. and other public officers and employees of the City Government of Makati
(Binay, Jr., et al), accusing them of Plunder11 and violation of Republic Act No. (RA) 3019,12 otherwise known as "The
Anti-Graft and Corrupt Practices Act," in connection with the five (5) phases of the procurement and construction of the
Makati City Hall Parking Building (Makati Parking Building).13
On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators14 to conduct a fact-finding
investigation, submit an investigation report, and file the necessary complaint, if warranted (1st Special Panel).15
Pursuant to the Ombudsman's directive, on March 5, 2015, the 1st Special Panel filed a complaint16 (OMB Complaint)
against Binay, Jr., et al, charging them with six (6) administrative cases17 for Grave Misconduct, Serious Dishonesty, and
Conduct Prejudicial to the Best Interest of the Service, and six (6) criminal cases18 for violation of Section 3 (e) of RA
3019, Malversation of Public Funds, and Falsification of Public Documents (OMB Cases).19

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

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

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

(b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of the Makati Parking Building project to
Hilmarc's, and consequently, executed the corresponding contract32 on August 18, 2011,33 without the required
publication and the lack of architectural design,34 and approved the release of funds therefor in the following amounts
as follows: (1) P182,325,538.97 on October 4, 2O11;35 (2) P173,132,606.91 on October 28,2011;36 (3) P80,408,735.20
on December 12, 2011;37 (4) P62,878,291.81 on February 10, 2012;38 and (5) P59,639,167.90 on October 1, 2012;39

(c) On September 6, 2012, Binay, Jr. issued the Notice of Award40 for Phase V of the Makati Parking Building project to
Hilmarc's, and consequently, executed the corresponding contract41 on September 13, 2012,42 without the required
publication and the lack of architectural design,43 and approved the release of the funds therefor in the amounts of
P32,398,220.0544 and P30,582,629.3045 on December 20, 2012; and

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

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining balance of the September
13, 2012 contract with Hilmarc's for Phase V of the Makati Parking Building project in the amount of P27,443,629.97;47
and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the contract48 with MANA
Architecture & Interior Design Co. (MANA) for the design and architectural services covering the Makati Parking Building
project in the amount of P429,011.48.49

On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a preliminary investigation
and administrative adjudication on the OMB Cases (2nd Special Panel).50 Thereafter, on March 9, 2015, the 2nd Special
Panel issued separate orders51 for each of the OMB Cases, requiring Binay, Jr., et al. to file their respective counter-
affidavits.52

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

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

The Proceedings Before the CA

On even date,58 Binay, Jr. filed a petition for certiorari59 before the CA, docketed as CA-G.R. SP No. 139453, seeking
the nullification of the preventive suspension order, and praying for the issuance of a TRO and/or WPI to enjoin its
implementation.60Primarily, Binay, Jr. argued that he could not be held administratively liable for any anomalous
activity attending any of the five (5) phases of the Makati Parking Building project since: (a) Phases I and II were
undertaken before he was elected Mayor of Makati in 2010; and (b) Phases III to V transpired during his first term and
that his re-election as City Mayor of Makati for a second term effectively condoned his administrative liability therefor,
if any, thus rendering the administrative cases against him moot and academic.61In any event, Binay, Jr. claimed that
the Ombudsman's preventive suspension order failed to show that the evidence of guilt presented against him is strong,
maintaining that he did not participate in any of the purported irregularities.62 In support of his prayer for injunctive
relief, Binay, Jr. argued that he has a clear and unmistakable right to hold public office, having won by landslide vote in
the 2010 and 2013 elections, and that, in view of the condonation doctrine, as well as the lack of evidence to sustain
the charges against him, his suspension from office would undeservedly deprive the electorate of the services of the
person they have conscientiously chosen and voted into office.63

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

At noon of the same day, the CA issued a Resolution65 (dated March 16, 2015), granting Binay, Jr.'s prayer for a TRO,66
notwithstanding Pena, Jr.'s assumption of duties as Acting Mayor earlier that day.67 Citing the case of Governor Garcia,
Jr. v. CA,68 the CA found that it was more prudent on its part to issue a TRO in view of the extreme urgency of the matter
and seriousness of the issues raised, considering that if it were established that the acts subject of the administrative
cases against Binay, Jr. were all committed during his prior term, then, applying the condonation doctrine, Binay, Jr.'s
re-election meant that he can no longer be administratively charged.69 The CA then directed the Ombudsman to
comment on Binay, Jr.'s petition for certiorari .70

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

On the same day, Binay, Jr. filed a petition for contempt,73 docketed as CA-G.R. SP No. 139504, accusing Secretary
Roxas, Director Brion, the officials of the Philippine National Police, and Pena, Jr. of deliberately refusing to obey the CA,
thereby allegedly impeding, obstructing, or degrading the administration of justice.74 The Ombudsman and Department
of Justice Secretary Leila M. De Lima were subsequently impleaded as additional respondents upon Binay, Jr.'s filing of
the amended and supplemental petition for contempt75 (petition for contempt) on March 19, 2015.76 Among others,
Binay, Jr. accused the Ombudsman and other respondents therein for willfully and maliciously ignoring the TRO issued
by the CA against the preventive suspension order.77

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

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman filed the present
petition before this Court, assailing the CA's March 16, 2015 Resolution, which granted Binay, Jr.'s prayer for TRO in CA-
G.R. SP No. 139453, and the March 20, 2015 Resolution directing her to file a comment on Binay, Jr.'s petition for
contempt in CA-G.R. SP No. 139504.81 The Ombudsman claims that: (a) the CA had no jurisdiction to grant Binay, Jr.'s
prayer for a TRO, citing Section 14 of RA 6770,82 or "The Ombudsman Act of 1989," which states that no injunctive writ
could be issued to delay the Ombudsman's investigation unless there is prima facie evidence that the subject matter
thereof is outside the latter's jurisdiction;83 and (b) the CA's directive for the Ombudsman to comment on Binay, Jr.'s
petition for contempt is illegal and improper, considering that the Ombudsman is an impeachable officer, and therefore,
cannot be subjected to contempt proceedings.84

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

Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it were held,91 granting
Binay, Jr.'s prayer for a WPI, which further enjoined the implementation of the preventive suspension order. In so ruling,
the CA found that Binay, Jr. has an ostensible right to the final relief prayed for, namely, the nullification of the preventive
suspension order, in view of the condonation doctrine, citing Aguinaldo v. Santos.92 Particularly, it found that the
Ombudsman can hardly impose preventive suspension against Binay, Jr. given that his re-election in 2013 as City Mayor
of Makati condoned any administrative liability arising from anomalous activities relative to the Makati Parking Building
project from 2007 to 2013.93 In this regard, the CA added that, although there were acts which were apparently
committed by Binay, Jr. beyond his first term — namely, the alleged payments on July 3, July 4, and July 24, 2013,94
corresponding to the services of Hillmarc's and MANA - still, Binay, Jr. cannot be held administratively liable therefor
based on the cases of Salalima v. Guingona, Jr.,95 and Mayor Garcia v. Mojica96 wherein the condonation doctrine was
still applied by the Court although the payments were made after the official's re-election, reasoning that the payments
were merely effected pursuant to contracts executed before said re-election.97 To this, the CA added that there was no
concrete evidence of Binay, Jr.'s participation for the alleged payments made on July 3, 4, and 24, 2013.98

In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the Ombudsman filed a
supplemental petition99 before this Court, arguing that the condonation doctrine is irrelevant to the determination of
whether the evidence of guilt is strong for purposes of issuing preventive suspension orders. The Ombudsman also
maintained that a reliance on the condonation doctrine is a matter of defense, which should have been raised by Binay,
Jr. before it during the administrative proceedings, and that, at any rate, there is no condonation because Binay, Jr.
committed acts subject of the OMB Complaint after his re-election in 2013.100

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

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

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

The Issues Before the Court

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

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

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

Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining the implementation of a
preventive suspension order issued by the Ombudsman;cralawlawlibrary

Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the WPI in CA-G.R. SP No. 139453
enjoining the implementation of the preventive suspension order against Binay, Jr. based on the condonation doctrine;
and

Whether or not the CA's directive for the Ombudsman to ' comment on Binay, Jr.'s petition for contempt in CA- G.R. SP
No. 139504 is improper and illegal.
The Ruling of the Court

The petition is partly meritorious.chanrobleslaw

I.

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

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

xxxx

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

x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior to resorting to the
extraordinary remedy of certiorari or prohibition since a motion for reconsideration may still be considered as a plain,
speedy, and adequate remedy in the ordinary course of law. The rationale for the pre-requisite is to grant an opportunity
for the lower court or agency to correct any actual or perceived error attributed to it by the re-examination of the legal
and factual circumstances of the case.110
Jurisprudence states that "[i]t is [the] inadequacy, [and] not the mere absence of all other legal remedies and the danger
of failure of justice without the writ, that must usually determine the propriety of certiorari [or prohibition]. A remedy
is plain, speedy[,] and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment, order,
or resolution of the lower court or agency, x x x."111

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

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

II.

Albeit raised for the first time by the Ombudsman in her Memorandum,114 it is nonetheless proper to resolve the issue
on the CA's lack of subject matter jurisdiction over the main petition for certiorari in CA-G.R. SP No. 139453, in view of
the well-established rule that a court's jurisdiction over the subject matter may be raised at any stage of the proceedings.
The rationale is that subject matter jurisdiction is conferred by law, and the lack of it affects the very authority of the
court to take cognizance of and to render judgment on the action.115 Hence, it should be preliminarily determined if
the CA indeed had subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition, as the same determines
the validity of all subsequent proceedings relative thereto. It is noteworthy to point out that Binay, Jr. was given the
opportunity by this Court to be heard on this issue,116 as he, in fact, duly submitted his opposition through his comment
to the Ombudsman's Memorandum.117 That being said, the Court perceives no reasonable objection against ruling on
this issue.
The Ombudsman's argument against the CA's lack of subject matter jurisdiction over the main petition, and her corollary
prayer for its dismissal, is based on her interpretation of Section 14, RA 6770, or the Ombudsman Act,118 which reads
in full:

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

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

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

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

The exception to the no injunction policy is when there is prima facie evidence that the subject matter of the
investigation is outside the office's jurisdiction. The Office of the Ombudsman has disciplinary authority over all elective
and appointive officials of the government and its subdivisions, instrumentalities, and agencies, with the exception only
of impeachable officers, Members of Congress, and the Judiciary.121 Nonetheless, the Ombudsman retains the power
to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the
purpose of filing a verified complaint for impeachment, if warranted.122 Note that the Ombudsman has concurrent
jurisdiction over certain administrative cases which are within the jurisdiction of the regular courts or administrative
agencies, but has primary jurisdiction to investigate any act or omission of a public officer or employee who is under the
jurisdiction of the Sandiganbayan.123

On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or application for remedy may
be heard against the decision or findings of the Ombudsman, with the exception of the Supreme Court on pure questions
of law. This paragraph, which the Ombudsman particularly relies on in arguing that the CA had no jurisdiction over the
main CA-G.R. SP No. 139453 petition, as it is supposedly this Court which has the sole jurisdiction to conduct a judicial
review of its decisions or findings, is vague for two (2) reasons: (1) it is unclear what the phrase "application for remedy"
or the word "findings" refers to; and (2) it does not specify what procedural remedy is solely allowable to this Court,
save that the same be taken only against a pure question of law. The task then, is to apply the relevant principles of
statutory construction to resolve the ambiguity.
"The underlying principle of all construction is that the intent of the legislature should be sought in the words employed
to express it, and that when found[,] it should be made to govern, x x x. If the words of the law seem to be of doubtful
import, it may then perhaps become necessary to look beyond them in order to ascertain what was in the legislative
mind at the time the law was enacted; what the circumstances were, under which the action was taken; what evil, if
any, was meant to be redressed; x x x [a]nd where the law has contemporaneously been put into operation, and in doing
so a construction has necessarily been put upon it, this construction, especially if followed for some considerable period,
is entitled to great respect, as being very probably a true expression of the legislative purpose, and is not lightly to be
overruled, although it is not conclusive."124

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

A. The Senate deliberations cited by the

Ombudsman do not pertain to the second

paragraph of Section 14, RA 6770.

The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on the matter of judicial
review of her office's decisions or findings, is supposedly clear from the following Senate deliberations:127

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

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

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

xxxx

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

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

Senator Angara. On question of law, yes.

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

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

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

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

xxxx

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

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

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

Senator Angara. That is absolutely correct, Mr. President

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

Senator Angara. That is correct, Mr. President.

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

Senator Angara. Yes, Mr. President.

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

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

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

xxxx

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

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

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

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

xxxx

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

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

Noticeably, these references to a "petition for review" and the proposed "petition for certiorari" are nowhere to be
found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that this provision, particularly its second
paragraph, does not indicate what specific procedural remedy one should take in assailing a decision or finding of the
Ombudsman; it only reveals that the remedy be taken to this Court based on pure questions of law. More so, it was
even commented upon during the oral arguments of this case129 that there was no debate or clarification made on the
current formulation of the second paragraph of Section 14, RA 6770 per the available excerpts of the Senate
deliberations. In any case, at least for the above-cited deliberations, the Court finds no adequate support to sustain the
Ombudsman's entreaty that the CA had no subject matter jurisdiction over the main CA-G.R. SP No. 139453 petition.

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

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

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

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for
reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration
shall be entertained.ChanRoblesVirtualawlibrary

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order,
directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one (1) month's
salary shall be final and unappealable.

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

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

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

RULE 45

Appeal from Court of Appeals to Supreme Court

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

B. Construing the second paragraph of

Section 14, RA 6770.

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

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

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

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

Rule 45, 1964 Rules of Court

RULE 45

Appeal from Court of Appeals to Supreme Court

xxxx

Section 2. Contents of Petition. — The petition shall contain a concise statement of the matters involved, the assignment
of errors made in the court below, and the reasons relied on for the allowance of the petition, and it should be
accompanied with a true copy of the judgment sought to be reviewed, together with twelve (12) copies of the record
on appeal, if any, and of the petitioner's brief as filed in the Court of Appeals. A verified statement of the date when
notice of judgment and denial of the motion for reconsideration, if any, were received shall accompany the petition.
Only questions of law may be raised in the petition and must be distinctly set forth. If no record on appeal has been filed
in the Court of Appeals, the clerk of the Supreme Court, upon admission of the petition, shall demand from the Court of
Appeals the elevation of the whole record of the case. (Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45

Appeal by Certiorari to the Supreme Court

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

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

C. Validity of the second paragraph of

Section 14, RA 6770.

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

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

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

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as
unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997
Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary
cases should be taken to the CA under the provisions of Rule 43.141 (Emphasis supplied)

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

Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the existence of the CA's subject
matter jurisdiction over the main CA-G.R. SP No. 139453 petition, including all subsequent proceedings relative thereto,
as the Ombudsman herself has developed, the Court deems it proper to resolve this issue ex mero motu (on its own
motion146). This procedure, as was similarly adopted in Fabian, finds its bearings in settled case law:
The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to the case,
neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.

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

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

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless the
jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any time or on
the court's own motion. The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case
where that fact is developed. The court has a clearly recognized right to determine its own jurisdiction in any
proceeding.147 (Emphasis supplied)

D. Consequence of invalidity.

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

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

In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension order issued by the
Office of the Ombudsman was - similar to this case - assailed through a Rule 65 petition for certiorari filed by the public
officer before the CA, the Court held that "[t]here being a finding of grave abuse of discretion on the part of the
Ombudsman, it was certainly imperative for the CA to grant incidental reliefs, as sanctioned by Section 1 of Rule 65."152

In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition for certiorari assailing a final
and unappealable order of the Office of the Ombudsman in an administrative case, the Court remarked that "petitioner
employed the correct mode of review in this case, i.e., a special civil action for certiorari before the Court of Appeals."154
In this relation, it stated that while "a special civil action for Certiorari is within the concurrent original jurisdiction of the
Supreme Court and the Court of Appeals, such petition should be initially filed with the Court of Appeals in observance
of the doctrine of hierarchy of courts." Further, the Court upheld Barata v. Abalos, Jr.155 (June 6, 2001), wherein it was
ruled that the remedy against final and unappealable orders of the Office of the Ombudsman in an administrative case
was a Rule 65 petition to the CA. The same verdict was reached in Ruivivar156 (September 16, 2008).

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

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has no jurisdiction to issue
any provisional injunctive writ against her office to enjoin its preventive suspension orders. As basis, she invokes the
first paragraph of Section 14, RA 6770 in conjunction with her office's independence under the 1987 Constitution. She
advances the idea that "[i]n order to further ensure [her office's] independence, [RA 6770] likewise insulated it from
judicial intervention,"157 particularly, "from injunctive reliefs traditionally obtainable from the courts,"158 claiming that
said writs may work "just as effectively as direct harassment or political pressure would."159

A. The concept of Ombudsman independence.

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

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be
known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas[,] and Mindanao. A separate
Deputy for the military establishment may likewise be appointed. (Emphasis supplied)

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

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the people's
medium for airing grievances and for direct redress against abuses and misconduct in the government. Ultimately,
however, these agencies failed to fully realize their objective for lack of the political independence necessary for the
effective performance of their function as government critic.
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-mandated office to
give it political independence and adequate powers to enforce its mandate. Pursuant to the ( 1973 Constitution,
President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD No. 1630,
creating the Office of the Ombudsman to be known as Tanodbayan. It was tasked principally to investigate, on complaint
or motu proprio, any administrative act of any administrative agency, including any government-owned or controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously vested in the Special
Prosecutor were transferred to the Tanodbayan himself. He was given the exclusive authority to conduct preliminary
investigation of all cases cognizable by the Sandiganbayan, file the corresponding information, and control the
prosecution of these cases.

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional fiat. Unlike in
the 1973 Constitution, its independence was expressly and constitutionally guaranteed. Its objectives are to enforce the
state policy in Section 27, Article II and the standard of accountability in public service under Section 1, Article XI of the
1987 Constitution. These provisions read:chanRoblesvirtualLawlibrary

Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest
lives.161 (Emphasis supplied)

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

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the "protector
of the people" against the inept, abusive, and corrupt in the Government, to function essentially as a complaints and
action bureau. This constitutional vision of a Philippine Ombudsman practically intends to make the Ombudsman an
authority to directly check and guard against the ills, abuses and excesses , of the bureaucracy. Pursuant to Section 13
(8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:chanRoblesvirtualLawlibrary

Section 21. Official Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall have disciplinary
authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities, and
agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the
Judiciary.ChanRoblesVirtualawlibrary

As the Ombudsman is expected to be an "activist watchman," the < Court has upheld its actions, although not squarely
falling under the broad powers granted [to] it by the Constitution and by RA No. 6770, if these actions are reasonably in
line with its official function and consistent with the law and the Constitution.
The Ombudsman's broad investigative and disciplinary powers include all acts of malfeasance, misfeasance, and
nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their tenure. To
support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the pressures and
influence of officialdom and partisan politics and from fear of external reprisal by making it an "independent" office, x x
x.

xxxx

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

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

(1) "[T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions shares certain
characteristics - they do not owe their existence to any act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution intended that these
'independent' bodies be insulated from political pressure to the extent that the absence of 'independence' would result
in the impairment of their core functions"163;cralawlawlibrary

(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only [of] the express mandate of the Constitution, but especially as regards the Supreme
Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is
based";164 and

(3) "[T]he constitutional deliberations explain the Constitutional Commissions' need for independence. In the
deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a constitutionally-
created Civil Service Commission, instead of one created by law, on the premise that the effectivity of this body is
dependent on its freedom from the tentacles of politics. In a similar manner, the deliberations of the 1987 Constitution
on the Commission on Audit highlighted the developments in the past Constitutions geared towards insulating the
Commission on Audit from political pressure."165
At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of the Ombudsman, as
well as that of the foregoing independent bodies, meant freedom from control or supervision of the Executive
Department:

[T]he independent constitutional commissions have been consistently intended by the framers to be independent from
executive control or supervision or any form of political influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted to these bodies prevents presidential interference.

In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that the Constitutional
Commissions, which have been characterized under the Constitution as "independent," are not under the control of the
President, even if they discharge functions that are executive in nature. The Court declared as unconstitutional the
President's act of temporarily appointing the respondent in that case as Acting Chairman of the [Commission on
Elections] "however well-meaning" it might have been.

In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the tenure of the
commissioners of the independent Commission on Human Rights could not be placed under the discretionary power of
the President.

xxxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior - but is similar in degree
and kind - to the independence similarly guaranteed by the Constitution to the Constitutional Commissions since all
these offices fill the political interstices of a republican democracy that are crucial to its existence and proper
functioning.166 (Emphases and underscoring supplied)

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

As may be deduced from the various discourses in Gonzales III, the concept of Ombudsman's independence covers three
(3) things:
First: creation by the Constitution, which means that the office cannot be abolished, nor its constitutionally specified
functions and privileges, be removed, altered, or modified by law, unless the Constitution itself allows, or an amendment
thereto is made;cralawlawlibrary

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

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

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

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

B. The first paragraph of Section 14, RA

6770 in light of the powers of Congress and the

Court under the 1987 Constitution.

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

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

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

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

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

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

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

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

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

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

In the enduring words of Justice Laurel in Angara v. The Electoral Commission (Angara),175 the "Constitution has blocked
out with deft strokes and in bold lines, allotment of power to the executive, the legislative[,] and the judicial
departments of the government."176 The constitutional demarcation of the three fundamental powers of government
is more commonly known as the principle of separation of powers. In the landmark case of Belgica v. Ochoa, Jr.
(Belgica),177 the Court held that "there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another."178 In particular, "there is a violation of the principle when
there is impermissible (a) interference with and/or (b) assumption of another department's functions."179
Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme Court and all such lower
courts:

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

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

This Court is the only court established by the Constitution, while all other lower courts may be established by laws
passed by Congress. Thus, through the passage of Batas Pambansa Bilang (BP) 129,180 known as "The Judiciary
Reorganization Act of 1980," the Court of Appeals,181 the Regional Trial Courts,182 and the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts183 were established. Later, through the passage of RA
1125,184 and Presidential Decree No. (PD) 1486,185 the Court of Tax Appeals, and the Sandiganbayan were respectively
established.

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

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

x x x xChanRoblesVirtualawlibrary

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

Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of this Court (subject to
the aforementioned constitutional limitations), the Court of Appeals, and the trial courts, through the passage of BP
129, as amended.
In this case, the basis for the CA's subject matter jurisdiction over Binay, Jr.'s main petition for certiorari in CA-G.R. SP
No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

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

Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary
writs or processes, whether or not in aid of its appellate jurisdiction[.]

Note that the CA's certiorari jurisdiction, as above-stated, is not only original but also concurrent with the Regional Trial
Courts (under Section 21 (1), Chapter II of BP 129), and the Supreme Court (under Section 5, Article VIII of the 1987
Philippine Constitution). In view of the concurrence of these courts' jurisdiction over petitions for certiorari, the doctrine
of hierarchy of courts should be followed. In People v. Cuaresma,188 the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy
of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of
the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most
certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be
filed with the Regional Trial Court, and those against the latter, with the Court of Appeals.189

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

Judicial power, as vested in the Supreme Court and all other courts established by law, has been defined as the "totality
of powers a court exercises when it assumes jurisdiction and hears and decides a case."190 Under Section 1, Article VIII
of the 1987 Constitution, it includes "the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

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

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

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

Judicial power is never exercised in a vacuum. A court's exercise of the jurisdiction it has acquired over a particular case
conforms to the limits and parameters of the rules of procedure duly promulgated by this Court. In other words,
procedure is the framework within which judicial power is exercised. In Manila Railroad Co. v. Attorney-General,193 the
Court elucidated that "[t]he power or authority of the court over the subject matter existed and was fixed before
procedure in a given cause began. Procedure does not alter or change that power or authority; it simply directs the
manner in which it shall be fully and justly exercised. To be sure, in certain cases, if that power is not exercised in
conformity with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. This does not mean that it loses jurisdiction of the subject matter."194

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

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

xxxx

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

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

The records of the deliberations of the Constitutional Commission would show200 that the Framers debated on whether
or not the Court's rule-making powers should be shared with Congress. There was an initial suggestion to insert the
sentence "The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of
the Supreme Court", right after the phrase "Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated
bar, and legal assistance to the underprivileged^" in the enumeration of powers of the Supreme Court. Later,
Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead, after the word
"[underprivileged," place a comma (,) to be followed by "the phrase with the concurrence of the National Assembly."
Eventually, a compromise formulation was reached wherein (a) the Committee members agreed to Commissioner
Aquino's proposal to delete the phrase "the National Assembly may repeal, alter, or supplement the said rules with the
advice and concurrence of the Supreme Court" and (b) in turn, Commissioner Aquino agreed to withdraw his proposal
to add "the phrase with the concurrence of the National Assembly." The changes were approved, thereby leading to the
present lack of textual reference to any form of Congressional participation in Section 5 (5), Article VIII, supra. The
prevailing consideration was that "both bodies, the Supreme Court and the Legislature, have their inherent powers."201

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

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

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

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

Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO and a WPI. A preliminary
injunction is defined under Section 1,205 Rule 58, while Section 3206 of the same Rule enumerates the grounds for its
issuance. Meanwhile, under Section 5207 thereof, a TRO may be issued as a precursor to the issuance of a writ of
preliminary injunction under certain procedural parameters.
The power of a court to issue these provisional injunctive reliefs coincides with its inherent power to issue all auxiliary
writs, processes, and other means necessary to carry its acquired jurisdiction into effect under Section 6, Rule 135 of
the Rules of Court which reads:

Section 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or judicial officer, all
auxiliary writs, f processes and other means necessary to carry it into effect may be employed by such court or officer;
and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law208 or by
these rules, any suitable process or mode of proceeding may be adopted which appears comfortable to the spirit of the
said law or rules.ChanRoblesVirtualawlibrary

In City of Manila v. Grecia-Cuerdo,209 which is a case involving "[t]he supervisory power or jurisdiction of the [Court of
Tax Appeals] to issue a writ of certiorari in aid of its appellate jurisdiction"210 over "decisions, orders or resolutions of
the RTCs in local tax cases originally decided or resolved by them in the exercise of their original or appellate
jurisdiction,"211 the Court ruled that said power "should coexist with, and be a complement to, its appellate jurisdiction
to review, by appeal, the final orders and decisions of the RTC, in order to have complete supervision over the acts of
the latter:"212

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

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

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

x x x x cralawlawlibrary

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

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

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

In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which prohibited courts from
enjoining the enforcement of a revocation order of an alcohol beverage license pending appeal,218 the Supreme Court
of Kentucky held:

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

Significantly, Smothers characterized a court's issuance of provisional injunctive relief as an exercise of the court's
inherent power, and to this end, stated that any attempt on the part of Congress to interfere with the same was
constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28 Am.Jur.2d, Injunctions,
Section 15, and once and for all make clear that a court, once having obtained jurisdiction of a cause of action, has, as
an incidental to its constitutional grant of power, inherent power to do all things reasonably necessary to the
administration of justice in the case before it. In the exercise of this power, a court, when necessary in order to protect
or preserve the subject matter of the litigation, to protect its jurisdiction and to make its judgment effective, may grant
or issue a temporary injunction in aid of or ancillary to the principal action.

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

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

xxxx

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

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

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

With these considerations in mind, the Court rules that when Congress passed the first paragraph of Section 14, RA 6770
and, in so doing, took away from the courts their power to issue a TRO and/or WPI to enjoin an investigation conducted
by the Ombudsman, it encroached upon this Court's constitutional rule-making authority. Clearly, these issuances, which
are, by nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court, are matters of
procedure which belong exclusively within the province of this Court. Rule 58 of the Rules of Court did not create, define,
and regulate a right but merely prescribed the means of implementing an existing right220 since it only provided for
temporary reliefs to preserve the applicant's right in esse which is threatened to be violated during the course of a
pending litigation. In the case of Fabian,211 it was stated that:

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

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

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

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

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

JUSTICE LEONEN:

Okay. Now, would you know what rule covers injunction in the Rules of Court?
ACTING SOLICITOR GENERAL HILBAY:

Rule 58, Your Honor.

JUSTICE LEONEN:

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

xxxx

JUSTICE LEONEN:

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

ACTING SOLICTOR GENERAL HILBAY.

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

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

The Supreme Court, Your Honor.

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

It is an ancillary remedy, Your Honor.

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

No, Your Honor.

xxxx

JUSTICE LEONEN.

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

ACTING SOLICITOR GENERAL HILBAY:

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

JUSTICE LEONEN.

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

ACTING SOLICITOR GENERAL HILBAY:

That is true.

JUSTICE LEONEN

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

ACTING SOLICITOR GENERAL HILBAY:

Correct.

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

ACTING SOLICITOR GENERAL HILBAY:

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

JUSTICE LEONEN:

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

ACTING SOLICTOR GENERAL HILBAY:

When Congress, Your Honor, creates a special court...

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

Yes, Your Honor.

JUSTICE LEONEN:

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

ACTING SOLICITOR GENERAL HILBAY:

Correct, Your Honor.

xxxx228 (Emphasis supplied)

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

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

Hence, with Congress interfering with matters of procedure (through passing the first paragraph of Section 14, RA 6770)
without the Court's consent thereto, it remains that the CA had the authority to issue the questioned injunctive writs
enjoining the implementation of the preventive suspension order against Binay, Jr. At the risk of belaboring the point,
these issuances were merely ancillary to the exercise of the CA's certiorari jurisdiction conferred to it under Section 9
(1), Chapter I of BP 129, as amended, and which it had already acquired over the main CA-G.R. SP No. 139453 case.

IV.

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

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

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

Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure and suspension as
penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have
different ends sought to be achieved.

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

That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service
Laws.

Section. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a
preventive measure. (Emphasis supplied)ChanRoblesVirtualawlibrary

Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual
penalty of suspension. So Section 25 of the same Rule XIV provides:chanRoblesvirtualLawlibrary

Section 25. The period within which a public officer or employee charged is placed under preventive suspension shall
not be considered part of the actual penalty of suspension imposed upon the employee found guilty.232 (Emphases
supplied)ChanRoblesVirtualawlibrary

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

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

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

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

(1) The evidence of guilt is strong; and

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

(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of
duty;cralawlawlibrary
(b) The charge would warrant removal from the service; or

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

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

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

The CA's March 16, 2015 Resolution which directed the issuance of the assailed TRO was based on the case of Governor
Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court emphasized that "if it were established in the CA that the
acts subject of the administrative complaint were indeed committed during petitioner [Garcia's] prior term, then,
following settled jurisprudence, he can no longer be administratively charged."235 Thus, the Court, contemplating the
application of the condonation doctrine, among others, cautioned, in the said case, that "it would have been more
prudent for [the appellate court] to have, at the very least, on account of the extreme urgency of the matter and the
seriousness of the issues raised in the certiorari petition, issued a TRO x x x"236 during the pendency of the proceedings.

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

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

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

C. The origin of the condonation doctrine.

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

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

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

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

The weight of authorities x x x seems to incline toward the rule denying the right to remove one from office because of
misconduct during a prior term, to which we fully subscribe.249 (Emphasis and underscoring supplied)
The conclusion is at once problematic since this Court has now uncovered that there is really no established weight of
authority in the United States (US) favoring the doctrine of condonation, which, in the words of Pascual, theorizes that
an official's re-election denies the right to remove him from office due to a misconduct during a prior term. In fact, as
pointed out during the oral arguments of this case, at least seventeen (17) states in the US have abandoned the
condonation doctrine.250 The Ombudsman aptly cites several rulings of various US State courts, as well as literature
published on the matter, to demonstrate the fact that the doctrine is not uniformly applied across all state jurisdictions.
Indeed, the treatment is nuanced:

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

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

(3) Furthermore, some State courts took into consideration the continuing nature of an offense in cases where the
condonation doctrine was invoked. In State ex rel. Douglas v. Megaarden,264 the public officer charged with
malversation of public funds was denied the defense of condonation by the Supreme Court of Minnesota, observing
that "the large sums of money illegally collected during the previous years are still retained by him." In State ex rel. Beck
v. Harvey265 the Supreme Court of Kansas ruled that "there is no necessity" of applying the condonation doctrine since
"the misconduct continued in the present term of office[;] [thus] there was a duty upon defendant to restore this money
on demand of the county commissioners." Moreover, in State ex rel. Londerholm v. Schroeder,266 the Supreme Court
of Kansas held that "insofar as nondelivery and excessive prices are concerned, x x x there remains a continuing duty on
the part of the defendant to make restitution to the country x x x, this duty extends into the present term, and neglect
to discharge it constitutes misconduct."

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

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

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

D. Testing the Condonation Doctrine.

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

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

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

The underlying theory is that each term is separate from other terms x x x.272

Second, an elective official's re-election serves as a condonation of previous misconduct, thereby cutting the right to
remove him therefor; and

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

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

As held in Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 —

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would
be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be
assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically
overrule the will of the people.274 (Emphases supplied)

The notable cases on condonation following Pascual are as follows:

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

(2) Insco v. Sanchez, et al.276 (December 18, 1967) - wherein the Court clarified that the condonation doctrine does not
apply to a criminal case. It was explained that a criminal case is different from an administrative case in that the former
involves the People of the Philippines as a community, and is a public wrong to the State at large; whereas, in the latter,
only the populace of the constituency he serves is affected. In addition, the Court noted that it is only the President who
may pardon a criminal offense.
(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) - a case decided under the 1987 Constitution wherein the
condonation doctrine was applied in favor of then Cagayan Governor Rodolfo E. Aguinaldo although his re-election
merely supervened the pendency of, the proceedings.

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

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

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

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

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

(7) And finally, the above discussed case of Governor Garcia, Jr. -wherein the Court remarked that it would have been
prudent for the appellate court therein to have issued a temporary restraining order against the implementation of a
preventive suspension order issued by the Ombudsman in view of the condonation doctrine.
A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. -
all cited by the CA to justify its March 16, 2015 and April 6, 2015 Resolutions directing the issuance of the assailed
injunctive writs - would show that the basis for condonation under the prevailing constitutional and statutory framework
was never accounted for. What remains apparent from the text of these cases is that the basis for condonation, as
jurisprudential doctrine, was - and still remains - the above-cited postulates of Pascual, which was lifted from rulings of
US courts where condonation was amply supported by their own state laws. With respect to its applicability to
administrative cases, the core premise of condonation - that is, an elective official's re-election cuts qff the right to
remove him for an administrative offense committed during a prior term - was adopted hook, line, and sinker in our
jurisprudence largely because the legality of that doctrine was never tested against existing legal norms. As in the US,
the propriety of condonation is - as it should be -dependent on the legal foundation of the adjudicating jurisdiction.
Hence, the Court undertakes an examination of our current laws in order to determine if there is legal basis for the
continued application of the doctrine of condonation.

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

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

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

After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987 Constitution,
which sets forth in the Declaration of Principles and State Policies in Article II that "[t]he State shall maintain honesty
and integrity in the public service and take positive and effective measures against graft and corruption."288 Learning
how unbridled power could corrupt public servants under the regime of a dictator, the Framers put primacy on the
integrity of the public service by declaring it as a constitutional principle and a State policy. More significantly, the 1987
Constitution strengthened and solidified what has been first proclaimed in the 1973 Constitution by commanding public
officers to be accountable to the people at all times:
Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency and act with patriotism and justice, and lead
modest lives.ChanRoblesVirtualawlibrary

In Belgica, it was explained that:

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

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

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

Section 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or removed from
office on any of the r following grounds:chanRoblesvirtualLawlibrary

(a) Disloyalty to the Republic of the Philippines;cralawlawlibrary

(b) Culpable violation of the Constitution;cralawlawlibrary

(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;cralawlawlibrary

(d) Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor;cralawlawlibrary

(e) Abuse of authority;cralawlawlibrary

(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang
panlalawigan, sangguniang panlunsod, sanggunian bayan, and sangguniang barangay;cralawlawlibrary

(g) Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country;
and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

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

xxxx

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

x x x x (Emphasis supplied)ChanRoblesVirtualawlibrary

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

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

The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement benefits, perpetual
disqualification from holding public office, and bar from taking the civil service examinations.

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

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

xxxx

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

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

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

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

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

To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein the doctrine of
condonation of administrative liability was supported by either a constitutional or statutory provision stating, in effect,
that an officer cannot be removed by a misconduct committed during a previous term,294 or that the disqualification
to hold the office does not extend beyond the term in which the official's delinquency occurred.295 In one case,296 the
absence of a provision against the re-election of an officer removed - unlike Section 40 (b) of the LGC-was the
justification behind condonation. In another case,297 it was deemed that condonation through re-election was a policy
under their constitution - which adoption in this jurisdiction runs counter to our present Constitution's requirements on
public accountability. There was even one case where the doctrine of condonation was not adjudicated upon but only
invoked by a party as a ground;298 while in another case, which was not reported in full in the official series, the crux
of the disposition was that the evidence of a prior irregularity in no way pertained to the charge at issue and therefore,
was deemed to be incompetent.299 Hence, owing to either their variance or inapplicability, none of these cases can be
used as basis for the continued adoption of the condonation doctrine under our existing laws.
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of suspension beyond the unexpired portion
of the elective local official's prior term, and likewise allows said official to still run for re-election This treatment is
similar to People ex rel Bagshaw v. Thompson300 and Montgomery v. Novell301 both cited in Pascual, wherein it was
ruled that an officer cannot be suspended for a misconduct committed during a prior term. However, as previously
stated, nothing in Section 66 (b) states that the elective local official's administrative liability is extinguished by the fact
of re-election. Thus, at all events, no legal provision actually supports the theory that the liability is condoned.

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

Equally infirm is Pascual's proposition that the electorate, when re-electing a local official, are assumed to have done so
with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been
guilty of any. Suffice it to state that no such presumption exists in any statute or procedural rule.302 Besides, it is
contrary to human experience that the electorate would have full knowledge of a public official's misdeeds. The
Ombudsman correctly points out the reality that most corrupt acts by public officers are shrouded in secrecy, and
concealed from the public. Misconduct committed by an elective official is easily covered up, and is almost always
unknown to the electorate when they cast their votes.303 At a conceptual level, condonation presupposes that the
condoner has actual knowledge of what is to be condoned. Thus, there could be no condonation of an act that is
unknown. As observed in Walsh v. City Council of Trenton304 decided by the New Jersey Supreme Court:

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

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

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

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

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

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

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

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

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

E. Consequence of ruling.

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

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

As earlier established, records disclose that the CA's resolutions directing the issuance of the assailed injunctive writs
were all hinged on cases enunciating the condonation doctrine. To recount, the March 16, 2015 Resolution directing the
issuance of the subject TRO was based on the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing
the issuance of the subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor
Garcia, Jr. Thus, by merely following settled precedents on the condonation doctrine, which at that time, unwittingly
remained "good law," it cannot be concluded that the CA committed a grave abuse of discretion based on its legal
attribution above. Accordingly, the WPI against the Ombudsman's preventive suspension order was correctly issued.

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

F. Exceptions to the mootness principle.

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

First, it would be a violation of the Court's own duty to uphold and defend the Constitution if it were not to abandon
the condonation doctrine now that its infirmities have become apparent. As extensively discussed, the continued
application of the condonation doctrine is simply impermissible under the auspices of the present Constitution which
explicitly mandates that public office is a public trust and that public officials shall be accountable to the people at all
times.
Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense of elective officials
to escape administrative liability. It is the first time that the legal intricacies of this doctrine have been brought to light;
thus, this is a situation of exceptional character which this Court must ultimately resolve. Further, since the doctrine has
served as a perennial obstacle against exacting public accountability from the multitude of elective local officials
throughout the years, it is indubitable that paramount public interest is involved.

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

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

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

V.

With all matters pertaining to CA-G.R. SP No. 139453 passed upon, the Court now rules on the final issue on whether or
not the CA's Resolution316 dated March 20, 2015 directing the Ombudsman to comment on Binay, Jr.'s petition for
contempt in CA-G.R. SP No. 139504 is improper and illegal.

The sole premise of the Ombudsman's contention is that, as an impeachable officer, she cannot be the subject of a
charge for indirect contempt317 because this action is criminal in nature and the penalty therefor would result in her
effective removal from office.318 However, a reading of the aforesaid March 20, 2015 Resolution does not show that
she has already been subjected to contempt proceedings. This issuance, in? fact, makes it clear that notwithstanding
the directive for the Ombudsman to comment, the CA has not necessarily given due course to Binay, Jr.'s contempt
petition:
Without necessarily giving due course to the Petition for Contempt respondents [Hon. Conchita Carpio Morales, in her
capacity as the Ombudsman, and the Department of Interior and Local Government] are hereby DIRECTED to file
Comment on the Petition/Amended and Supplemental Petition for Contempt (CA-G.R. SP No. 139504) within an
inextendible period of three (3) days from receipt hereof. (Emphasis and underscoring
supplied)ChanRoblesVirtualawlibrary

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

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

(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL, while the policy
against the issuance of provisional injunctive writs by courts other than the Supreme Court to enjoin an investigation
conducted by the Office of the Ombudsman under the first paragraph of the said provision is DECLARED ineffective until
the Court adopts the same as part of the rules of procedure through an administrative circular duly issued
therefor;cralawlawlibrary

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

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

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

SO ORDERED.
 CANONIZADO, EDGAR DULA TORRES, and ROGELIO A. PUREZA, petitioners, vs. HON. ALEXANDER P.
ALEXIS C.
AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN, as Secretary of Budget and Management, JOSE
PERCIVAL L. ADIONG, ROMEO L. CAIRME and VIRGINIA U. CRISTOBAL, respondents.

G.R. No. 133132 | 2000-01-25

Abolition of public office

Reorganization of government office, test of good faith

Political Law; Law on Public Officers; Termination of Official Relation

EN BANC

DECISION

GONZAGA-REYES, J.:

The central issue posed before this Court in the present case is the constitutionality of Republic Act No. 8551 (RA 8551),
otherwise known as the "Philippine National Police Reform and Reorganization Act of 1998,"1 by virtue of which
petitioners herein, who were all members of the National Police Commission (NAPOLCOM), were separated from office.
Petitioners claim that such law violates their constitutionally guaranteed right to security of tenure.

The NAPOLCOM was originally created under Republic Act No. 6975 (RA 6975), entitled "An Act Establishing The
Philippine National Police Under A Reorganized Department Of The Interior And Local Government, And For Other
Purposes." Under RA 6975, the members of the NAPOLCOM were petitioners Edgar Dula Torres, Alexis C. Canonizado,
Rogelio A. Pureza and respondent Jose Percival L. Adiong. Dula Torres was first appointed to the NAPOLCOM on January
8, 1991 for a six year term. He was re-appointed on January 23, 1997 for another six years. Canonizado was appointed
on January 25, 1993 to serve the unexpired term of another Commissioner which ended on December 31, 1995. On
August 23, 1995, Canonizado was re-appointed for another six years. Pureza was appointed on January 2, 1997 for a
similar term of six years. Respondent Adiong's appointment to the NAPOLCOM was issued on July 23, 1996. None of
their terms had expired at the time the amendatory law was passed.2

On March 6, 1998, RA 8551 took effect; it declared that the terms of the current Commissioners were deemed as expired
upon its effectivity. Pursuant thereto, President Ramos appointed Romeo L. Cairme on March 11, 1998 as a member of
the NAPOLCOM for a full six year term. On the same date, Adiong, was given a term extension of two years since he had
served less than two years of his previous term. Cairme and Adiong both took their oaths of office on April 6, 1998.3
Completing the membership of the NAPOLCOM are Leo S. Magahum and Cleofe M. Factoran, who were appointed by
President Estrada on June 30, 1998 and who took their oaths of office on July 2, 1998.4
According to petitioners, sections 4 and 8 of RA 8551 are unconstitutional. Section 4, amending section 13 of Republic
Act No. 6975, provides -

SEC. 13. Creation and Composition. - A National Police Commission, hereinafter referred to as the Commission, is hereby
created for the purpose of effectively discharging the functions prescribed in the Constitution and provided in this Act.
The Commission shall be an agency attached to the Department for policy and program coordination. It shall be
composed of a Chairperson, four (4) regular Commissioners, and the Chief of the PNP as ex-officio member. Three (3)
of the regular Commissioners shall come from the civilian sector who are neither active nor former members of the
police or military, one (1) of whom shall be designated as vice chairperson by the President. The fourth regular
Commissioner shall come from the law enforcement sector either active or retired: Provided, That an active member of
a law enforcement agency shall be considered resigned from said agency once appointed to the Commission: Provided
further, That at least one (1) of the Commissioners shall be a woman. The Secretary of the Department shall be the ex-
officio Chairperson of the Commission, while the Vice Chairperson shall act as the executive officer of the Commission.

Meanwhile, section 8 states that -

Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed expired which shall
constitute a bar to their reappointment or an extension of their terms in the Commission except for current
Commissioners who have served less than two (2) years of their terms of office who may be appointed by the President
for a maximum term of two (2) years.

Petitioners argue that their removal from office by virtue of section 8 of RA 8551 violates their security of tenure.

It is beyond dispute that petitioners herein are members of the civil service, which embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled corporations with
original charters.5 As such, they cannot be removed or suspended from office, except for cause provided by law.6 The
phrase "except for cause provided by law" refers to "... reasons which the law and sound public policy recognize as
sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of
discretion may deem sufficient."7

Public respondents insist that the express declaration in section 8 of RA 8551 that the terms of petitioners' offices are
deemed expired discloses the legislative intent to impliedly abolish the NAPOLCOM created under RA 6975 pursuant to
a bona fide reorganization. In support of their theory, public respondents cite the various changes introduced by RA
8551 in the functions, composition and character of the NAPOLCOM as proof of Congress' intention to abolish the body
created under RA 6975 in order to replace it with a new NAPOLCOM which is more civilian in nature, in compliance with
the constitutional mandate. Petitioners' posit the theory that the abolition of petitioners' offices was a result of a
reorganization of the NAPOLCOM allegedly effected by RA 8551.8
The creation and abolition of public offices is primarily a legislative function.9 It is acknowledged that Congress may
abolish any office it creates without impairing the officer's right to continue in the position held10 and that such power
may be exercised for various reasons, such as the lack of funds11 or in the interest of economy.12 However, in order
for the abolition to be valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent
the constitutional security of tenure of civil service employees.13

An abolition of office connotes an intention to do away with such office wholly and permanently, as the word
"abolished" denotes.14 Where one office is abolished and replaced with another office vested with similar functions,
the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul 15 we said:

It is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of tenure. [De la
Lanna v. Alba, 112 SCRA 294 (1982)] However, in this case, the renaming and restructuring of the PGH and its component
units cannot give rise to a valid and bona fide abolition of the position of PGH Director. This is because where the
abolished office and the offices created in its place have similar functions, the abolition lacks good faith. [Jose L. Guerrero
v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 (1990)] We hereby apply the principle
enunciated in Cesar Z. Dario vs. Hon. Salvador M. Mison [176 SCRA 84 (1989)] that abolition which merely changes the
nomenclature of positions is invalid and does not result in the removal of the incumbent.

The above notwithstanding, and assuming that the abolition of the position of the PGH Director and the creation of a
UP-PGH Medical Center Director are valid, the removal of the incumbent is still not justified for the reason that the
duties and functions of the two positions are basically the same.... (underscoring supplied)

This was also our ruling in Guerrero v. Arizabal,16 wherein we declared that the substantial identity in the functions
between the two offices was indicia of bad faith in the removal of petitioner pursuant to a reorganization.

We come now to the case at bench. The question that must first be resolved is whether or not petitioners were removed
by virtue of a valid abolition of their office by Congress. More specifically, whether the changes effected by RA 8551 in
reference to the NAPOLCOM were so substantial as to effectively create a completely new office in contemplation of
the law. In answer to this query, the case of Mayor v. Macaraig17 is squarely in point.

In that case, the petitioners assailed the constitutionality of Republic Act No. 6715 18 insofar as it declared vacant the
positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the National Labor Relations Commission
and provided for the removal of the incumbents upon the appointment and qualification of their successors.19 The
Court held that the removal of petitioners was unconstitutional since Republic Act No. 6715 did not expressly or
impliedly abolish the offices of petitioners, there being no irreconcilable inconsistency in the nature, duties and
functions of the petitioners' offices under the old law and the new law. Thus:
Abolition of an office is obviously not the same as the declaration that that office is vacant. While it is undoubtedly a
prerogative of the legislature to abolish certain offices, it can not be conceded the power to simply pronounce those
offices vacant and thereby effectively remove the occupants or holders thereof from the civil service. Such an act would
constitute, on its face, an infringement of the constitutional guarantee of security of tenure, and will have to be struck
down on that account. It can not be justified by the professed "need to professionalize the higher levels of officialdom
invested with adjudicatory powers and functions, and to upgrade their qualifications, ranks, and salaries or emoluments.

This is precisely what RA 8851 seeks to do - declare the offices of petitioners vacant, by declaring that "the terms of
office of the current Commissioners are deemed expired," thereby removing petitioners herein from the civil service.
Congress may only be conceded this power if it is done pursuant to a bona fide abolition of the NAPOLCOM.

RA 8551 did not expressly abolish petitioners' positions. In order to determine whether there has been an implied
abolition, it becomes necessary to examine the changes introduced by the new law in the nature, composition and
functions of the NAPOLCOM.

Under RA 6975, the NAPOLCOM was described as a collegial body within the Department of the Interior and Local
Government,20 (Department) whereas under RA 8551 it is made "an agency attached to the Department for policy and
program coordination."21 Contrary to what public respondents would have us believe, this does not result in the
creation of an entirely new office. In Mayor, the NLRC, prior to the passage of the amendatory law, was also considered
an integral part of the Department of Labor and Employment. RA 6715, however, changed that by declaring that it shall
instead "..be attached to the Department of Labor and Employment for program coordination only...." making it a more
autonomous body. The Court held that this change in the NLRC's nature was not sufficient to justify a conclusion that
the new law abolished the offices of the labor commissioners.

Another amendment pointed out by public respondents is the revision of the NAPOLCOM's composition. RA 8551
expanded the membership of the NAPOLCOM from four to five Commissioners by adding the Chief of the PNP as an ex-
officio member. In addition, the new law provided that three of the regular Commissioners shall come from the civilian
sector who are neither active nor former members of the police or military, and that the fourth regular Commissioner
shall come from the law enforcement sector either active or retired. Furthermore, it is required that at least one of the
Commissioners shall be a woman.22 Again, as we held in Mayor, such revisions do not constitute such essential changes
in the nature of the NAPOLCOM as to result in an implied abolition of such office. It will be noted that the organizational
structure of the NAPOLCOM, as provided in section 20 of RA 6975 as amended by section 10 of RA 8551,23 remains
essentially the same and that, except for the addition of the PNP Chief as ex-officio member, the composition of the
NAPOLCOM is also substantially identical under the two laws. Also, under both laws, the Secretary of the Department
shall act as the ex-officio Chairman of the Commission and the Vice-Chairman shall be one of the Commissioners
designated by the President.24

Finally, the powers and duties of the NAPOLCOM remain basically unchanged by the amendments. Under RA 6975, the
Commission has the following powers and functions:
(a) Exercise administrative control over the Philippine National Police;

(b) Advise the President on all matters involving police functions and administration;

(c) Foster and develop policies and promulgate rules and regulations, standards and procedures to improve police
services based on sound professional concepts and principles;

(d) Examine and audit, and thereafter establish the standards for such purposes on a continuing basis, the performance,
activities, and facilities of all police agencies throughout the country;

(e) Prepare a police manual prescribing rules and regulations for efficient organization, administration, and operation,
including recruitment, selection, promotion and retirement;

(f) Establish a system of uniform crime reporting;

(g) Conduct surveys and compile statistical data for the proper evaluation of the efficiency and effectiveness of all police
units in the country;

(h) Render to the President and to Congress an annual report on its activities and accomplishments during the thirty
(30) days after the end of the calendar year, which shall include an appraisal of the conditions obtaining in the
organization and administration of police agencies in the municipalities, cities and provinces throughout the country,
and recommendation for appropriate remedial legislation;

(i) Approve or modify plans and programs on education and training, logistical requirements, communications, records,
information systems, crime laboratory, crime prevention and crime reporting;

(j) Affirm reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or
dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine
National Police;

(k) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen
and over decisions on claims for police benefits;
(l) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each
calendar year, a crime prevention;

(m) Prescribe minimum standards for arms, equipment, and uniforms and, after consultation with the Philippine
Heraldry Commission, for insignia of ranks, awards and medals of honor;

(n) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of its own powers and duties, and
designate who among its personnel can issue such processes and administer oaths in connection therewith; and

(o) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct.

Meanwhile, the NAPOLCOM's functions under section 5 of RA 8551 are:

a) Exercise administrative control and operational supervision over the Philippine National Police which shall mean the
power to:

1) Develop policies and promulgate a police manual prescribing rules and regulations for efficient organization,
administration, and operation, including criteria for manpower allocation, distribution and deployment, recruitment,
selection , promotion, and retirement of personnel and the conduct of qualifying entrance and promotional
examinations for uniformed members;

2) Examine and audit, and thereafter establish the standards for such purposes on a continuing basis, the performance,
activities and facilities of all police agencies throughout the country;

3) Establish a system of uniform crime reporting;

4) Conduct an annual self-report survey and compile statistical date for the accurate assessment of the crime situation
and the proper evaluation of the efficiency and effectiveness of all police units in the country;

5) Approve or modify plans and programs on education and training, logistical requirements, communications, records,
information systems, crime laboratory, crime prevention and crime reporting;
6) Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion
or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine
National Police;

7) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and
over decisions on claims for police benefits;

8) Prescribe minimum standards for arms, equipment, and uniforms and after consultation with the Philippine Heraldry
Commission, for insignia of ranks, awards, and medals of honor. Within ninety (90) days from the effectivity of this Act,
the standards of the uniformed personnel of the PNP must be revised which should be clearly distinct from the military
and reflective of the civilian character of the police;

9) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of its own powers and duties, and
designate who among its personnel can issue such processes and administer oaths in connection therewith;

10) Inspect and assess the compliance of the PNP on the established criteria for manpower allocation, distribution, and
deployment and their impact on the community and the crime situation, and therewith formulate appropriate
guidelines for maximization of resources and effective utilization of the PNP personnel;

11) Monitor the performance of the local chief executives as deputies of the Commission; and

12) Monitor and investigate police anomalies and irregularities.

b) Advise the President on all matters involving police functions and administration;

c) Render to the President and to the Congress an annual report on its activities and accomplishments during the thirty
(30) days after the end of the calendar year, which shall include an appraisal of the conditions obtaining in the
organization and administration of police agencies in the municipalities, cities and provinces throughout the country,
and recommendations for appropriate remedial legislation;

d) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each
calendar year, a crime prevention program; and

e) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct."
Clearly, the NAPOLCOM continues to exercise substantially the same administrative, supervisory, rule-making, advisory
and adjudicatory functions.

Public respondents argue that the fact that the NAPOLCOM is now vested with administrative control and operational
supervision over the PNP, whereas under RA 6975 it only exercised administrative control should be construed as
evidence of legislative intent to abolish such office.25 This contention is bereft of merit. Control means "the power of
an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for the that of the latter."26 On the other hand, to supervise is to oversee, to
have oversight of, to superintend the execution of or the performance of a thing, or the movements or work of a person,
to inspect with authority; it is the power or authority of an officer to see that subordinate officers perform their duties.27
Thus, the power of control necessarily encompasses the power of supervision and adding the phrase "operational
supervision" under the powers of the NAPOLCOM would not bring about a substantial change in its functions so as to
arrive at the conclusion that a completely new office has been created.

Public respondents would have this Court believe that RA 8551 reorganized the NAPOLCOM resulting in the abolition of
petitioners' offices. We hold that there has been absolutely no attempt by Congress to effect such a reorganization.

Reorganization takes place when there is an alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them.28 It involves a reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of functions.29 Naturally, it may
result in the loss of one's position through removal or abolition of an office. However, for a reorganization to be valid,
it must also pass the test of good faith, laid down in Dario v. Mison: 30

...As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make
bureaucracy more efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the
position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the
"abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security
of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab
initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of
economy are belied by the existence of ample funds.

It is exceedingly apparent to this Court that RA 8551 effected a reorganization of the PNP, not of the NAPOLCOM. They
are two separate and distinct bodies, with one having supervision and control over the other. In fact, it is the NAPOLCOM
that is given the duty of submitting a proposed reorganization plan of the PNP to Congress.31 As mentioned earlier, the
basic structure of the NAPOLCOM has been preserved by the amendatory law. There has been no revision in its lines of
control, authority and responsibility, neither has there been a reduction in its membership, nor a consolidation or
abolition of the offices constituting the same. Adding the Chief of the PNP as an ex-officio member of the Commission
does not result in a reorganization.
No bona fide reorganization of the NAPOLCOM having been mandated by Congress, RA 8551, insofar as it declares the
terms of office of the incumbent Commissioners, petitioners herein, as expired and resulting in their removal from office,
removes civil service employees from office without legal cause and must therefore be struck down for being
constitutionally infirm.

Petitioners are thus entitled to be reinstated to office. It is of no moment that there are now new appointees to the
NAPOLCOM. It is a well-entrenched principle that when a regular government employee is illegally dismissed, his
position never became vacant under the law and he is considered as not having left his office. The new appointments
made in order to replace petitioners are not valid.32

At this juncture, we note that it is alleged by public respondents that on June 30, 1998, Canonizado accepted an
appointment by President Estrada as the Inspector General of Internal Affairs Services (IAS) of the PNP, pursuant to
sections 40 and 41 of RA 8551 and that he took his oath of office before the President on July 7, 1998. However, this is
a mere allegation on the part of public respondents of which this Court cannot take judicial notice. Furthermore, this
issue has not been fully ventilated in the pleadings of the parties. Therefore, such allegation cannot be taken into
consideration by this Court in passing upon the issues in the present case.

Petitioners also assail the constitutionality of section 4 of RA 8551 insofar as it limits the law enforcement sector to only
one position on the Commission and categorizes the police as being part of the law enforcement sector despite section
6 of Article XVI of the Constitution which provides that the police force shall be civilian in character. Moreover, it is
asserted by petitioners that the requirement in section 4 that one of the Commissioners shall be a woman has no rational
basis and is therefore discriminatory. They claim that it amounts to class legislation and amounts to an undue restriction
upon the appointing power of the President as provided under section 16 of Article VII of the Constitution.33

In view of our ruling upon the unconstitutionality of petitioners' removal from office by virtue of section 8 of RA 8551,
we find that there is no longer any need to pass upon these remaining constitutional questions. It is beyond doubt that
the legislature has the power to provide for the composition of the NAPOLCOM since it created such body. Besides,
these questions go into the very wisdom of the law, and unquestionably lie beyond the normal prerogatives of the Court
to pass upon.34

WHEREFORE, we grant the petition, but only to the extent of declaring section 8 of RA 8551 unconstitutional for being
in violation of the petitioners' right to security of tenure. The removal from office of petitioners as a result of the
application of such unconstitutional provision of law and the appointment of new Commissioners in their stead is
therefore null and void. Petitioners herein are entitled to REINSTATEMENT and to the payment of full backwages to be
reckoned from the date they were removed from office.35

SO ORDERED.
PUBLIC INTEREST CENTER, INC., LAUREANO T. ANGELES and JOCELYN P. CELESTINO, Petitioners, versus
MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the Presidential Commission on Good
Government, and RONALDO ZAMORA, as Executive Secretary,

Accused-Appeellant.

G.R. No. 138965 | 2007-03-05

Tagged under keywords

RESOLUTION

CHICO-NAZARIO, J.:

For consideration is the Omnibus Motion, dated 14 August 2006, where respondent Magdangal B. Elma sought: (1) the
reconsideration of the Decision in the case of Public Interest Center, Inc., et al. v. Magdangal B. Elma, et al. (G.R. No.
138965), promulgated on 30 June 2006; (2) the clarification of the dispositive part of the Decision; and (3) the elevation
of the case to the Court en banc. The Solicitor General, in behalf of the respondents, filed an Omnibus Motion, dated 11
August 2006, with substantially the same allegations.

Respondent Elma was appointed as Chairman of the Presidential Commission on Good Government (PCGG) on 30
October 1998. Thereafter, during his tenure as PCGG Chairman, he was appointed as Chief Presidential Legal Counsel
(CPLC). He accepted the second appointment, but waived any renumeration that he may receive as CPLC. Petitioners
sought to have both appointments declared as unconstitutional and, therefore, null and void.

In its Decision, the Court declared that the concurrent appointments of the respondent as PCGG Chairman and CPLC
were unconstitutional. It ruled that the concurrent appointment to these offices is in violation of Section 7, par. 2, Article
IX-B of the 1987 Constitution, since these are incompatible offices. The duties of the CPLC include giving independent
and impartial legal advice on the actions of the heads of various executive departments and agencies and reviewing
investigations involving heads of executive departments. Since the actions of the PCGG Chairman, a head of an executive
agency, are subject to the review of the CPLC, such appointments would be incompatible.

The Court also decreed that the strict prohibition under Section 13 Article VII of the 1987 Constitution would not apply
to the present case, since neither the PCGG Chairman nor the CPLC is a secretary, undersecretary, or assistant secretary.
However, had the rule thereunder been applicable to the case, the defect of these two incompatible offices would be
made more glaring. The said section allows the concurrent holding of positions only when the second post is required
by the primary functions of the first appointment and is exercised in an ex-officio capacity. Although respondent Elma
waived receiving renumeration for the second appointment, the primary functions of the PCGG Chairman do not require
his appointment as CPLC.

After reviewing the arguments propounded in respondents' Omnibus Motions, we find that the basic issues that were
raised have already been passed upon. No substantial arguments were presented. Thus, the Court denies the
respondents' motion for reconsideration.

In response to the respondents' request for clarification, the Court ruled that respondent Elma's concurrent
appointments as PCGG Chairman and CPLC are unconstitutional, for being incompatible offices. This ruling does not
render both appointments void. Following the common-law rule on incompatibility of offices, respondent Elma had, in
effect, vacated his first office as PCGG Chairman when he accepted the second office as CPLC.[1]

There also is no merit in the respondents' motion to refer the case to the Court en banc. What is in question in the
present case is the constitutionality of respondent Elma's concurrent appointments, and not the constitutionality of any
treaty, law or agreement.[2] The mere application of constitutional provisions does not require the case to be heard
and decided en banc. Contrary to the allegations of the respondent, the decision of the Court in this case does not
modify the ruling in Civil Liberties Union v. Executive Secretary. It should also be noted that Section 3 of Supreme Court
Circular No. 2-89, dated 7 February 1989 clearly provides that the Court en banc is not an Appellate Court to which
decisions or resolutions of a Division may be appealed.

WHEREFORE, the Court denies the respondents' motion for reconsideration and for elevation of this case to the Court
en banc.

SO ORDERED.
DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners, versus RICHARD J. GORDON,
Respondent.

G.R. No. 175352 | 2009-07-15

Quo warranto (Special Civil Action)

DECISION

CARPIO, J.:

The Case

This is a petition to declare Senator Richard J. Gordon (respondent) as having forfeited his seat in the Senate.

The Facts

Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari (petitioners) filed with this Court a Petition to
Declare Richard J. Gordon as Having Forfeited His Seat in the Senate. Petitioners are officers of the Board of Directors
of the Quezon City Red Cross Chapter while respondent is Chairman of the Philippine National Red Cross (PNRC) Board
of Governors.

During respondent's incumbency as a member of the Senate of the Philippines,[1] he was elected Chairman of the PNRC
during the 23 February 2006 meeting of the PNRC Board of Governors. Petitioners allege that by accepting the
chairmanship of the PNRC Board of Governors, respondent has ceased to be a member of the Senate as provided in
Section 13, Article VI of the Constitution, which reads:

SEC. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the
Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office
which may have been created or the emoluments thereof increased during the term for which he was elected.

Petitioners cite Camporedondo v. NLRC,[2] which held that the PNRC is a government-owned or controlled corporation.
Petitioners claim that in accepting and holding the position of Chairman of the PNRC Board of Governors, respondent
has automatically forfeited his seat in the Senate, pursuant to Flores v. Drilon,[3] which held that incumbent national
legislators lose their elective posts upon their appointment to another government office.
In his Comment, respondent asserts that petitioners have no standing to file this petition which appears to be an action
for quo warranto, since the petition alleges that respondent committed an act which, by provision of law, constitutes a
ground for forfeiture of his public office. Petitioners do not claim to be entitled to the Senate office of respondent.
Under Section 5, Rule 66 of the Rules of Civil Procedure, only a person claiming to be entitled to a public office usurped
or unlawfully held by another may bring an action for quo warranto in his own name. If the petition is one for quo
warranto, it is already barred by prescription since under Section 11, Rule 66 of the Rules of Civil Procedure, the action
should be commenced within one year after the cause of the public officer's forfeiture of office. In this case, respondent
has been working as a Red Cross volunteer for the past 40 years. Respondent was already Chairman of the PNRC Board
of Governors when he was elected Senator in May 2004, having been elected Chairman in 2003 and re-elected in 2005.

Respondent contends that even if the present petition is treated as a taxpayer's suit, petitioners cannot be allowed to
raise a constitutional question in the absence of any claim that they suffered some actual damage or threatened injury
as a result of the allegedly illegal act of respondent. Furthermore, taxpayers are allowed to sue only when there is a
claim of illegal disbursement of public funds, or that public money is being diverted to any improper purpose, or where
petitioners seek to restrain respondent from enforcing an invalid law that results in wastage of public funds.

Respondent also maintains that if the petition is treated as one for declaratory relief, this Court would have no
jurisdiction since original jurisdiction for declaratory relief lies with the Regional Trial Court.

Respondent further insists that the PNRC is not a government-owned or controlled corporation and that the prohibition
under Section 13, Article VI of the Constitution does not apply in the present case since volunteer service to the PNRC
is neither an office nor an employment.

In their Reply, petitioners claim that their petition is neither an action for quo warranto nor an action for declaratory
relief. Petitioners maintain that the present petition is a taxpayer's suit questioning the unlawful disbursement of funds,
considering that respondent has been drawing his salaries and other compensation as a Senator even if he is no longer
entitled to his office. Petitioners point out that this Court has jurisdiction over this petition since it involves a legal or
constitutional issue which is of transcendental importance.

The Issues

Petitioners raise the following issues:

1. Whether the Philippine National Red Cross (PNRC) is a government-owned or controlled corporation;
2. Whether Section 13, Article VI of the Philippine Constitution applies to the case of respondent who is Chairman of the
PNRC and at the same time a Member of the Senate;

3. Whether respondent should be automatically removed as a Senator pursuant to Section 13, Article VI of the Philippine
Constitution; and

4. Whether petitioners may legally institute this petition against respondent.[4]

The substantial issue boils down to whether the office of the PNRC Chairman is a government office or an office in a
government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the Constitution.

The Court's Ruling

We find the petition without merit.

Petitioners Have No Standing to File this Petition

A careful reading of the petition reveals that it is an action for quo warranto. Section 1, Rule 66 of the Rules of Court
provides:

Section 1. Action by Government against individuals. - An action for the usurpation of a public office, position or
franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which by provision of law, constitutes a ground for the forfeiture of his
office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful
authority so to act. (Emphasis supplied)

Petitioners allege in their petition that:

4. Respondent became the Chairman of the PNRC when he was elected as such during the First Regular Luncheon-
Meeting of the Board of Governors of the PNRC held on February 23, 2006, the minutes of which is hereto attached and
made integral part hereof as Annex "A."

5. Respondent was elected as Chairman of the PNRC Board of Governors, during his incumbency as a Member of the
House of Senate of the Congress of the Philippines, having been elected as such during the national elections last May
2004.

6. Since his election as Chairman of the PNRC Board of Governors, which position he duly accepted, respondent has
been exercising the powers and discharging the functions and duties of said office, despite the fact that he is still a
senator.

7. It is the respectful submission of the petitioner[s] that by accepting the chairmanship of the Board of Governors of
the PNRC, respondent has ceased to be a Member of the House of Senate as provided in Section 13, Article VI of the
Philippine Constitution, x x x

xxxx

10. It is respectfully submitted that in accepting the position of Chairman of the Board of Governors of the PNRC on
February 23, 2006, respondent has automatically forfeited his seat in the House of Senate and, therefore, has long
ceased to be a Senator, pursuant to the ruling of this Honorable Court in the case of FLORES, ET AL. VS. DRILON AND
GORDON, G.R. No. 104732, x x x

11.Despite the fact that he is no longer a senator, respondent continues to act as such and still performs the powers,
functions and duties of a senator, contrary to the constitution, law and jurisprudence.

12. Unless restrained, therefore, respondent will continue to falsely act and represent himself as a senator or member
of the House of Senate, collecting the salaries, emoluments and other compensations, benefits and privileges
appertaining and due only to the legitimate senators, to the damage, great and irreparable injury of the Government
and the Filipino people.[5] (Emphasis supplied)

Thus, petitioners are alleging that by accepting the position of Chairman of the PNRC Board of Governors, respondent
has automatically forfeited his seat in the Senate. In short, petitioners filed an action for usurpation of public office
against respondent, a public officer who allegedly committed an act which constitutes a ground for the forfeiture of his
public office. Clearly, such an action is for quo warranto, specifically under Section 1(b), Rule 66 of the Rules of Court.
Quo warranto is generally commenced by the Government as the proper party plaintiff. However, under Section 5, Rule
66 of the Rules of Court, an individual may commence such an action if he claims to be entitled to the public office
allegedly usurped by another, in which case he can bring the action in his own name. The person instituting quo warranto
proceedings in his own behalf must claim and be able to show that he is entitled to the office in dispute, otherwise the
action may be dismissed at any stage.[6] In the present case, petitioners do not claim to be entitled to the Senate office
of respondent. Clearly, petitioners have no standing to file the present petition.

Even if the Court disregards the infirmities of the petition and treats it as a taxpayer's suit, the petition would still fail on
the merits.

PNRC is a Private Organization Performing Public Functions

On 22 March 1947, President Manuel A. Roxas signed Republic Act No. 95,[7] otherwise known as the PNRC Charter.
The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is to bring timely,
effective, and compassionate humanitarian assistance for the most vulnerable without consideration of nationality,
race, religion, gender, social status, or political affiliation.[8] The PNRC provides six major services: Blood Services,
Disaster Management, Safety Services, Community Health and Nursing, Social Services and Voluntary Service.[9]

The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a voluntary organization
for the purpose contemplated in the Geneva Convention of 27 July 1929.[10] The Whereas clauses of the PNRC Charter
read:

WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864, a convention by which the nations of the
world were invited to join together in diminishing, so far lies within their power, the evils inherent in war;

WHEREAS, more than sixty nations of the world have ratified or adhered to the subsequent revision of said convention,
namely the "Convention of Geneva of July 29 [sic], 1929 for the Amelioration of the Condition of the Wounded and Sick
of Armies in the Field" (referred to in this Charter as the Geneva Red Cross Convention);

WHEREAS, the Geneva Red Cross Convention envisages the establishment in each country of a voluntary organization
to assist in caring for the wounded and sick of the armed forces and to furnish supplies for that purpose;

WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946 and proclaimed its adherence
to the Geneva Red Cross Convention on February 14, 1947, and by that action indicated its desire to participate with
the nations of the world in mitigating the suffering caused by war and to establish in the Philippines a voluntary
organization for that purpose as contemplated by the Geneva Red Cross Convention;
WHEREAS, there existed in the Philippines since 1917 a Charter of the American National Red Cross which must be
terminated in view of the independence of the Philippines; and

WHEREAS, the volunteer organizations established in the other countries which have ratified or adhered to the Geneva
Red Cross Convention assist in promoting the health and welfare of their people in peace and in war, and through their
mutual assistance and cooperation directly and through their international organizations promote better understanding
and sympathy among the peoples of the world. (Emphasis supplied)

The PNRC is a member National Society of the International Red Cross and Red Crescent Movement (Movement), which
is composed of the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red
Crescent Societies (International Federation), and the National Red Cross and Red Crescent Societies (National
Societies). The Movement is united and guided by its seven Fundamental Principles:

1. HUMANITY - The International Red Cross and Red Crescent Movement, born of a desire to bring assistance without
discrimination to the wounded on the battlefield, endeavors, in its international and national capacity, to prevent and
alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for
the human being. It promotes mutual understanding, friendship, cooperation and lasting peace amongst all peoples.

2. IMPARTIALITY - It makes no discrimination as to nationality, race, religious beliefs, class or political opinions. It
endeavors to relieve the suffering of individuals, being guided solely by their needs, and to give priority to the most
urgent cases of distress.

3. NEUTRALITY - In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or
engage at any time in controversies of a political, racial, religious or ideological nature.

4. INDEPENDENCE - The Movement is independent. The National Societies, while auxiliaries in the humanitarian services
of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that
they may be able at all times to act in accordance with the principles of the Movement.

5. VOLUNTARY SERVICE - It is a voluntary relief movement not prompted in any manner by desire for gain.

6. UNITY - There can be only one Red Cross or one Red Crescent Society in any one country. It must be open to all. It
must carry on its humanitarian work throughout its territory.
7. UNIVERSALITY - The International Red Cross and Red Crescent Movement, in which all Societies have equal status and
share equal responsibilities and duties in helping each other, is worldwide. (Emphasis supplied)

The Fundamental Principles provide a universal standard of reference for all members of the Movement. The PNRC, as
a member National Society of the Movement, has the duty to uphold the Fundamental Principles and ideals of the
Movement. In order to be recognized as a National Society, the PNRC has to be autonomous and must operate in
conformity with the Fundamental Principles of the Movement.[11]

The reason for this autonomy is fundamental. To be accepted by warring belligerents as neutral workers during
international or internal armed conflicts, the PNRC volunteers must not be seen as belonging to any side of the armed
conflict. In the Philippines where there is a communist insurgency and a Muslim separatist rebellion, the PNRC cannot
be seen as government-owned or controlled, and neither can the PNRC volunteers be identified as government
personnel or as instruments of government policy. Otherwise, the insurgents or separatists will treat PNRC volunteers
as enemies when the volunteers tend to the wounded in the battlefield or the displaced civilians in conflict areas.

Thus, the PNRC must not only be, but must also be seen to be, autonomous, neutral and independent in order to conduct
its activities in accordance with the Fundamental Principles. The PNRC must not appear to be an instrument or agency
that implements government policy; otherwise, it cannot merit the trust of all and cannot effectively carry out its mission
as a National Red Cross Society.[12] It is imperative that the PNRC must be autonomous, neutral, and independent in
relation to the State.

To ensure and maintain its autonomy, neutrality, and independence, the PNRC cannot be owned or controlled by the
government. Indeed, the Philippine government does not own the PNRC. The PNRC does not have government assets
and does not receive any appropriation from the Philippine Congress.[13] The PNRC is financed primarily by
contributions from private individuals and private entities obtained through solicitation campaigns organized by its
Board of Governors, as provided under Section 11 of the PNRC Charter:

SECTION 11. As a national voluntary organization, the Philippine National Red Cross shall be financed primarily by
contributions obtained through solicitation campaigns throughout the year which shall be organized by the Board of
Governors and conducted by the Chapters in their respective jurisdictions. These fund raising campaigns shall be
conducted independently of other fund drives by other organizations. (Emphasis supplied)

The government does not control the PNRC. Under the PNRC Charter, as amended, only six of the thirty members of the
PNRC Board of Governors are appointed by the President of the Philippines. Thus, twenty-four members, or four-fifths
(4/5), of the PNRC Board of Governors are not appointed by the President. Section 6 of the PNRC Charter, as amended,
provides:
SECTION 6. The governing powers and authority shall be vested in a Board of Governors composed of thirty members,
six of whom shall be appointed by the President of the Philippines, eighteen shall be elected by chapter delegates in
biennial conventions and the remaining six shall be selected by the twenty-four members of the Board already chosen.
x x x.

Thus, of the twenty-four members of the PNRC Board, eighteen are elected by the chapter delegates of the PNRC, and
six are elected by the twenty-four members already chosen - a select group where the private sector members have
three-fourths majority. Clearly, an overwhelming majority of four-fifths of the PNRC Board are elected or chosen by the
private sector members of the PNRC.

The PNRC Board of Governors, which exercises all corporate powers of the PNRC, elects the PNRC Chairman and all
other officers of the PNRC. The incumbent Chairman of PNRC, respondent Senator Gordon, was elected, as all PNRC
Chairmen are elected, by a private sector-controlled PNRC Board four-fifths of whom are private sector members of the
PNRC. The PNRC Chairman is not appointed by the President or by any subordinate government official.

Under Section 16, Article VII of the Constitution,[14] the President appoints all officials and employees in the Executive
branch whose appointments are vested in the President by the Constitution or by law. The President also appoints those
whose appointments are not otherwise provided by law. Under this Section 16, the law may also authorize the "heads
of departments, agencies, commissions, or boards" to appoint officers lower in rank than such heads of departments,
agencies, commissions or boards.[15] In Rufino v. Endriga,[16] the Court explained appointments under Section 16 in
this wise:

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group
refers to the heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed
forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by
the Constitution. The second group refers to those whom the President may be authorized by law to appoint. The third
group refers to all other officers of the Government whose appointments are not otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments Congress may by law
vest in the heads of departments, agencies, commissions, or boards. x x x

xxx

In a department in the Executive branch, the head is the Secretary. The law may not authorize the Undersecretary,
acting as such Undersecretary, to appoint lower-ranked officers in the Executive department. In an agency, the power
is vested in the head of the agency for it would be preposterous to vest it in the agency itself. In a commission, the head
is the chairperson of the commission. In a board, the head is also the chairperson of the board. In the last three
situations, the law may not also authorize officers other than the heads of the agency, commission, or board to appoint
lower-ranked officers.

xxx

The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically in the "heads" of
the specified offices, and in no other person. The word "heads" refers to the chairpersons of the commissions or boards
and not to their members, for several reasons.

The President does not appoint the Chairman of the PNRC. Neither does the head of any department, agency,
commission or board appoint the PNRC Chairman. Thus, the PNRC Chairman is not an official or employee of the
Executive branch since his appointment does not fall under Section 16, Article VII of the Constitution. Certainly, the
PNRC Chairman is not an official or employee of the Judiciary or Legislature. This leads us to the obvious conclusion that
the PNRC Chairman is not an official or employee of the Philippine Government. Not being a government official or
employee, the PNRC Chairman, as such, does not hold a government office or employment.

Under Section 17, Article VII of the Constitution,[17] the President exercises control over all government offices in the
Executive branch. If an office is legally not under the control of the President, then such office is not part of the Executive
branch. In Rufino v. Endriga,[18] the Court explained the President's power of control over all government offices as
follows:

Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial branches, or must belong
to one of the independent constitutional bodies, or must be a quasi-judicial body or local government unit. Otherwise,
such government office, entity, or agency has no legal and constitutional basis for its existence.

The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one of the
independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local government unit. Thus, the CCP
must fall under the Executive branch. Under the Revised Administrative Code of 1987, any agency "not placed by law or
order creating them under any specific department" falls "under the Office of the President."

Since the President exercises control over "all the executive departments, bureaus, and offices," the President
necessarily exercises control over the CCP which is an office in the Executive branch. In mandating that the President
"shall have control of all executive . . . offices," Section 17, Article VII of the 1987 Constitution does not exempt any
executive office - one performing executive functions outside of the independent constitutional bodies - from the
President's power of control. There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-
judicial functions.
The President's power of control applies to the acts or decisions of all officers in the Executive branch. This is true
whether such officers are appointed by the President or by heads of departments, agencies, commissions, or boards.
The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the
exercise of discretion.

In short, the President sits at the apex of the Executive branch, and exercises "control of all the executive departments,
bureaus, and offices." There can be no instance under the Constitution where an officer of the Executive branch is
outside the control of the President. The Executive branch is unitary since there is only one President vested with
executive power exercising control over the entire Executive branch. Any office in the Executive branch that is not under
the control of the President is a lost command whose existence is without any legal or constitutional basis. (Emphasis
supplied)

An overwhelming four-fifths majority of the PNRC Board are private sector individuals elected to the PNRC Board by the
private sector members of the PNRC. The PNRC Board exercises all corporate powers of the PNRC. The PNRC is controlled
by private sector individuals. Decisions or actions of the PNRC Board are not reviewable by the President. The President
cannot reverse or modify the decisions or actions of the PNRC Board. Neither can the President reverse or modify the
decisions or actions of the PNRC Chairman. It is the PNRC Board that can review, reverse or modify the decisions or
actions of the PNRC Chairman. This proves again that the office of the PNRC Chairman is a private office, not a
government office.

Although the State is often represented in the governing bodies of a National Society, this can be justified by the need
for proper coordination with the public authorities, and the government representatives may take part in decision-
making within a National Society. However, the freely-elected representatives of a National Society's active members
must remain in a large majority in a National Society's governing bodies.[19]

The PNRC is not government-owned but privately owned. The vast majority of the thousands of PNRC members are
private individuals, including students. Under the PNRC Charter, those who contribute to the annual fund campaign of
the PNRC are entitled to membership in the PNRC for one year. Thus, any one between 6 and 65 years of age can be a
PNRC member for one year upon contributing P35, P100, P300, P500 or P1,000 for the year.[20] Even foreigners,
whether residents or not, can be members of the PNRC. Section 5 of the PNRC Charter, as amended by Presidential
Decree No. 1264,[21] reads:

SEC. 5. Membership in the Philippine National Red Cross shall be open to the entire population in the Philippines
regardless of citizenship. Any contribution to the Philippine National Red Cross Annual Fund Campaign shall entitle the
contributor to membership for one year and said contribution shall be deductible in full for taxation purposes.

Thus, the PNRC is a privately owned, privately funded, and privately run charitable organization. The PNRC is not a
government-owned or controlled corporation.
Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC,[22] which ruled that the PNRC is a
government-owned or controlled corporation. In ruling that the PNRC is a government-owned or controlled corporation,
the simple test used was whether the corporation was created by its own special charter for the exercise of a public
function or by incorporation under the general corporation law. Since the PNRC was created under a special charter,
the Court then ruled that it is a government corporation. However, the Camporedondo ruling failed to consider the
definition of a government-owned or controlled corporation as provided under Section 2(13) of the Introductory
Provisions of the Administrative Code of 1987:

SEC. 2. General Terms Defined. - x x x

(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation,
vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the
Government directly or through its instrumentalities either wholly, or where applicable as in the case of stock
corporations, to the extent of at least fifty-one (51) percent of its capital stock: Provided, That government-owned or
controlled corporations may be further categorized by the Department of the Budget, the Civil Service Commission, and
the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and
responsibilities with respect to such corporations.(Boldfacing and underscoring supplied)

A government-owned or controlled corporation must be owned by the government, and in the case of a stock
corporation, at least a majority of its capital stock must be owned by the government. In the case of a non-stock
corporation, by analogy at least a majority of the members must be government officials holding such membership by
appointment or designation by the government. Under this criterion, and as discussed earlier, the government does not
own or control PNRC.

The PNRC Charter is Violative of the Constitutional Proscription against the Creation of Private Corporations by Special
Law

The 1935 Constitution, as amended, was in force when the PNRC was created by special charter on 22 March 1947.
Section 7, Article XIV of the 1935 Constitution, as amended, reads:

SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations, unless such corporations are owned or controlled by the Government or any subdivision or instrumentality
thereof.

The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress from creating private
corporations except by general law. Section 1 of the PNRC Charter, as amended, creates the PNRC as a "body corporate
and politic," thus:
SECTION 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary
organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the
Geneva Conventions and to perform such other duties as are inherent upon a National Red Cross Society. The national
headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied)

In Feliciano v. Commission on Audit,[23] the Court explained the constitutional provision prohibiting Congress from
creating private corporations in this wise:

We begin by explaining the general framework under the fundamental law. The Constitution recognizes two classes of
corporations. The first refers to private corporations created under a general law. The second refers to government-
owned or controlled corporations created by special charters. Section 16, Article XII of the Constitution provides:

Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations may be created or established by special charters in the
interest of the common good and subject to the test of economic viability.

The Constitution emphatically prohibits the creation of private corporations except by general law applicable to all
citizens. The purpose of this constitutional provision is to ban private corporations created by special charters, which
historically gave certain individuals, families or groups special privileges denied to other citizens.

In short, Congress cannot enact a law creating a private corporation with a special charter. Such legislation would be
unconstitutional. Private corporations may exist only under a general law. If the corporation is private, it must
necessarily exist under a general law. Stated differently, only corporations created under a general law can qualify as
private corporations. Under existing laws, the general law is the Corporation Code, except that the Cooperative Code
governs the incorporation of cooperatives.

The Constitution authorizes Congress to create government-owned or controlled corporations through special charters.
Since private corporations cannot have special charters, it follows that Congress can create corporations with special
charters only if such corporations are government-owned or controlled.[24] (Emphasis supplied)

In Feliciano, the Court held that the Local Water Districts are government-owned or controlled corporations since they
exist by virtue of Presidential Decree No. 198, which constitutes their special charter. The seed capital assets of the Local
Water Districts, such as waterworks and sewerage facilities, were public property which were managed, operated by or
under the control of the city, municipality or province before the assets were transferred to the Local Water Districts.
The Local Water Districts also receive subsidies and loans from the Local Water Utilities Administration (LWUA). In fact,
under the 2009 General Appropriations Act,[25] the LWUA has a budget amounting to P400,000,000 for its subsidy
requirements.[26] There is no private capital invested in the Local Water Districts. The capital assets and operating funds
of the Local Water Districts all come from the government, either through transfer of assets, loans, subsidies or the
income from such assets or funds.

The government also controls the Local Water Districts because the municipal or city mayor, or the provincial governor,
appoints all the board directors of the Local Water Districts. Furthermore, the board directors and other personnel of
the Local Water Districts are government employees subject to civil service laws and anti-graft laws. Clearly, the Local
Water Districts are considered government-owned or controlled corporations not only because of their creation by
special charter but also because the government in fact owns and controls the Local Water Districts.

Just like the Local Water Districts, the PNRC was created through a special charter. However, unlike the Local Water
Districts, the elements of government ownership and control are clearly lacking in the PNRC. Thus, although the PNRC
is created by a special charter, it cannot be considered a government-owned or controlled corporation in the absence
of the essential elements of ownership and control by the government. In creating the PNRC as a corporate entity,
Congress was in fact creating a private corporation. However, the constitutional prohibition against the creation of
private corporations by special charters provides no exception even for non-profit or charitable corporations.
Consequently, the PNRC Charter, insofar as it creates the PNRC as a private corporation and grants it corporate
powers,[27] is void for being unconstitutional. Thus, Sections 1,[28] 2,[29] 3,[30] 4(a),[31] 5,[32] 6,[33] 7,[34] 8,[35]
9,[36] 10,[37] 11,[38] 12,[39] and 13[40] of the PNRC Charter, as amended, are void.

The other provisions[41] of the PNRC Charter remain valid as they can be considered as a recognition by the State that
the unincorporated PNRC is the local National Society of the International Red Cross and Red Crescent Movement, and
thus entitled to the benefits, exemptions and privileges set forth in the PNRC Charter. The other provisions of the PNRC
Charter implement the Philippine Government's treaty obligations under Article 4(5) of the Statutes of the International
Red Cross and Red Crescent Movement, which provides that to be recognized as a National Society, the Society must be
"duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national
legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field."

In sum, we hold that the office of the PNRC Chairman is not a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. However, since
the PNRC Charter is void insofar as it creates the PNRC as a private corporation, the PNRC should incorporate under the
Corporation Code and register with the Securities and Exchange Commission if it wants to be a private corporation.

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office
or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of
the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the
Philippine National Red Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID
because they create the PNRC as a private corporation or grant it corporate powers.

SO ORDERED.
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs. COMMISSION ON ELECTIONS,
Respondent

G.R. No. 189698 | 2010-02-22

Tagged under keywords

A discussion citing this case or law is available.

Effect of filing of certificate of candidacy

DISSENTING OPINION

NACHURA, J.:

I vote to maintain this Court's December 1, 2009 Decision. The automatic resignation rule on appointive government
officials and employees running for elective posts is, to my mind, unconstitutional. I therefore respectfully register my
dissent to the resolution of the majority granting the motion for reconsideration.

I earnestly believe that by this resolution, the majority refused to rectify an unjust rule, leaving in favor of a
discriminatory state regulation and disregarding the primacy of the people's fundamental rights to the equal protection
of the laws.

Let it be recalled that, on December 1, 2009, the Court rendered its Decision granting the petition and declaring as
unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act (R.A.) No. 9369, Section 66 of
the Omnibus Election Code (OEC) and Section 4(a) of Commission on Elections (COMELEC) Resolution No. 8678.[1]

Claiming to have legal interest in the matter in litigation, Senator Manuel A. Roxas filed, on December 14, 2009, his
Omnibus Motion for Leave of Court to: (a) Intervene in the Instant Case; (b) Admit Attached Motion for Reconsideration;
and (c) If Necessary, Set the Instant Case for Oral Arguments.[2]

On the same date, respondent COMELEC, through its Law Department, moved for the reconsideration of the aforesaid
December 1, 2009 Decision.[3]
Expressing a similar desire, Franklin M. Drilon, a former senator and a senatorial candidate in the 2010 elections, filed,
on December 17, 2009, his Motion for Leave to Intervene and to Admit the Attached Motion for Reconsideration in
Intervention.[4]

On December 28, 2009, the Integrated Bar of the Philippines (IBP), Cebu City Chapter, also filed its Motion for Leave to
Intervene[5] and Motion for Reconsideration in Intervention.[6]

In a related development, on January 8, 2010, the Office of the Solicitor General (OSG), which initially represented the
COMELEC in the proceedings herein, this time disagreed with the latter, and, instead of moving for the reconsideration
of the December 1, 2009 Decision, moved for clarification of the effect of our declaration of unconstitutionality.[7]

Subsequently, Tom V. Apacible, a congressional candidate in the 2010 elections, filed, on January 11, 2010, his Motion
to Intervene and for the Reconsideration of the Decision dated December 1, 2009.[8]

In its January 12, 2010 Resolution,[9] the Court required petitioners to comment on the aforesaid motions.

On February 1, 2010, petitioners filed their consolidated comment on the motions.

Parenthetically, petitioner Quinto admitted that he did not pursue his plan to run for an elective office.[10] Petitioner
Tolentino, on the other hand, disclosed that he filed his certificate of candidacy but that he had recently resigned from
his post in the executive department. These developments could very well be viewed by the Court as having rendered
this case moot and academic. However, I refuse to proceed to such a conclusion, considering that the issues, viewed in
relation to other appointive civil servants running for elective office, remain ubiquitously present. Thus, the issues in the
instant case could fall within the classification of controversies that are capable of repetition yet evading review.

I then implore that the Court rule on the motions.

The intervention

The motions for intervention should be denied. Section 2, Rule 19 of the Rules of Court explicitly states that motions to
intervene may be filed at any time "before the rendition of judgment."[11] Obviously, as this Court already rendered
judgment on December 1, 2009, intervention may no longer be allowed.[12] The movants, Roxas, Drilon, IBP-Cebu City
Chapter, and Apacible, cannot claim to have been unaware of the pendency of this much publicized case. They should
have intervened prior to the rendition of this Court's Decision on December 1, 2009. To allow their intervention at this
juncture is unwarranted and highly irregular.[13]
While the Court has the power to suspend the application of procedural rules, I find no compelling reason to excuse
movants' procedural lapse and allow their much belated intervention. Further, a perusal of their pleadings-in-
intervention reveals that they merely restated the points and arguments in the earlier dissenting opinions of Chief
Justice Puno and Senior Associate Justices Carpio and Carpio Morales. These very same points, incidentally, also
constitute the gravamen of the motion for reconsideration filed by respondent COMELEC. Thus, even as the Court should
deny the motions for intervention, it is necessary to, pass upon the issues raised therein, because they were the same
issues raised in respondent COMELEC's motion for reconsideration.

The COMELEC's motion for reconsideration

Interestingly, in its motion for reconsideration, the COMELEC does not raise a matter other than those already
considered and discussed by the Court in the assailed decision. As aforesaid, the COMELEC merely echoed the arguments
of the dissenters.

I remain unpersuaded.

I wish to reiterate the Court's earlier declaration that the second proviso in the third paragraph of Section 13 of R.A. No.
9369, Section 66 of the OEC and Section 4(a) of COMELEC Resolution No. 8678 are unconstitutional for being violative
of the equal protection clause and for being overbroad.

In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their
certificates of candidacy (CoCs), but not considering as resigned all other civil servants, specifically the elective ones, the
law unduly discriminates against the first class. The fact alone that there is substantial distinction between the two
classes does not justify such disparate treatment. Constitutional law jurisprudence requires that the classification must
and should be germane to the purposes of the law. As clearly explained in the assailed decision, whether one holds an
appointive office or an elective one, the evils sought to be prevented by the measure remain. Indeed, a candidate,
whether holding an appointive or an elective office, may use his position to promote his candidacy or to wield a
dangerous or coercive influence on the electorate. Under the same scenario, he may also, in the discharge of his official
duties, be swayed by political considerations. Likewise, he may neglect his or her official duties, as he will predictably
prioritize his campaign. Chief Justice Puno, in his dissent to the assailed decision, even acknowledges that the "danger
of systemic abuse" remains present whether the involved candidate holds an appointive or an elective office, thus-

Attempts by government employees to wield influence over others or to make use of their respective positions
(apparently) to promote their own candidacy may seem tolerable-even innocuous-particularly when viewed in isolation
from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally
(if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together,
constitute a veiled effort on the part of a reigning political party to advance its own agenda through a "carefully
orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy.[14]
To repeat for emphasis, classifying candidates, whether they hold appointive or elective positions, and treating them
differently by considering the first as ipso facto resigned while the second as not, is not germane to the purposes of the
law, because, as clearly shown, the measure is not reasonably necessary to, nor does it necessarily promote, the
fulfillment of the state interest sought to be served by the statute.

In fact, it may not be amiss to state that, more often than not, the elective officials, not the appointive ones, exert more
coercive influence on the electorate, with the greater tendency to misuse the powers of their office. This is illustrated
by, among others, the proliferation of "private armies" especially in the provinces. It is common knowledge that "private
armies" are backed or even formed by elective officials precisely for the latter to ensure that the electorate will not
oppose them, be cowed to submit to their dictates and vote for them. To impose a prohibitive measure intended to
curb this evil of wielding undue influence on the electorate and apply the prohibition only on appointive officials is not
only downright ineffectual, but is also, as shown in the assailed decision, offensive to the equal protection clause.

Furthermore, as the Court explained in the assailed decision, this ipso facto resignation rule is overbroad. It covers all
civil servants holding appointive posts without distinction, regardless of whether they occupy positions of influence in
government or not. Certainly, a utility worker, a messenger, a chauffeur, or an industrial worker in the government
service cannot exert the same influence as that of a Cabinet member, an undersecretary or a bureau head.
Parenthetically, it is also unimaginable how an appointive utility worker, compared to a governor or a mayor, can form
his own "private army" to wield undue influence on the electorate. It is unreasonable and excessive, therefore, to
impose a blanket prohibition-one intended to discourage civil servants from using their positions to influence the votes-
on all civil servants without considering the nature of their positions. Let it be noted, that, despite their employment in
the government, civil servants remain citizens of the country, entitled to enjoy the civil and political rights granted to
them in a democracy, including the right to aspire for elective public office.

In addition, this general provision on automatic resignation is directed to the activity of seeking any and all public elective
offices, whether partisan or nonpartisan in character, whether in the national, municipal or barangay level. No
compelling state interest has been shown to justify such a broad, encompassing and sweeping application of the law.

It may also be pointed out that this automatic resignation rule has no pretense to be the exclusive and only available
remedy to curb the uncontrolled exercise of undue influence and the feared "danger of systemic abuse." As we have
explained in the assailed decision, our Constitution and our body of laws are replete with provisions that directly address
these evils. We reiterate our earlier pronouncement that specific evils require specific remedies, not overly broad
measures that unduly restrict guaranteed freedoms.

It should be stressed that when the Court struck down (in the earlier decision) the assailed provisions, the Court did not
act in a manner inconsistent with Section 2(4) of Article IX-B of the Constitution, which reads:

Sec. 2. x x x.
(4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political
activity.

or with Section 5(3), Article XVI of the Constitution, which reads:

Sec. 5. x x x.

(3) Professionalism in the armed forces and adequate remuneration and benefits of its members shall be a prime
concern of the State. The armed forces shall be insulated from partisan politics.

No member of the military shall engage, directly or indirectly, in any partisan political activity, except to vote.

Neither does the Court's earlier ruling infringe on Section 55, Chapter 8, Title I, Book V of the Administrative Code of
1987, which reads:

Sec. 55. Political Activity.-No officer or employee in the Civil Service including members of the Armed Forces, shall
engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use
his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided
shall be understood to prevent any officer or employee from expressing his views on current political problems or issues,
or from mentioning the names of candidates for public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to
solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the
Election Code.

"Partisan political activity" includes every form of solicitation of the elector's vote in favor of a specific candidate.[15]
Section 79(b) of the OEC defines "partisan political activity" as follows:

SEC. 79. Definitions.-As used in this Code:

xxxx

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any
candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any
candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for
candidacy to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election
campaign or partisan political activity.

Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention shall not be
construed as part of any election campaign or partisan political activity contemplated under this Article.

Given the aforequoted Section 79(b), it is obvious that the filing of a Certificate of Candidacy (CoC) for an elective
position, while it may be a political activity, is not a "partisan political activity" within the contemplation of the law. The
act of filing is only an announcement of one's intention to run for office. It is only an aspiration for a public office, not
yet a promotion or a solicitation of votes for the election or defeat of a candidate for public office. In fact, even after
the filing of the CoC but before the start of the campaign period, there is yet no candidate whose election or defeat will
be promoted. Rosalinda A. Penera v. Commission on Elections and Edgar T. Andanar[16] instructs that any person who
files his CoC shall only be considered a candidate at the start of the campaign period. Thus, in the absence of a
"candidate," the mere filing of CoC cannot be considered as an "election campaign" or a "partisan political activity."
Section 79 of the OEC does not even consider as "partisan political activity" acts performed for the purpose of enhancing
the chances of aspirants for nominations for candidacy to a public office. Thus, when appointive civil servants file their
CoCs, they are not engaging in a "partisan political activity" and, therefore, do not transgress or violate the Constitution
and the law. Accordingly, at that moment, there is no valid basis to consider them as ipso facto resigned from their
posts.
There is a need to point out that the discussion in Fariñas v. The Executive Secretary,[17] relative to the differential
treatment of the two classes of civil servants in relation to the ipso facto resignation clause, is obiter dictum. That
discussion is not necessary to the decision of the case, the main issue therein being the constitutionality of the repealing
clause in the Fair Election Act. Further, unlike in the instant case, no direct challenge was posed in Fariñas to the
constitutionality of the rule on the ipso facto resignation of appointive officials. In any event, the Court en banc, in
deciding subsequent cases, can very well reexamine, as it did in the assailed decision, its earlier pronouncements and
even abandon them when perceived to be incorrect.

Let it also be noted that Mancuso v. Taft[18] is not the heart of the December 1, 2009 Decision. Mancuso was only cited
to show that resign-to-run provisions, such as those which are specifically involved herein, have been stricken down in
the United States for unduly burdening First Amendment rights of employees and voting rights of citizens, and for being
overbroad. Verily, in our jurisdiction, foreign jurisprudence only enjoys a persuasive influence on the Court. Thus, the
contention that Mancuso has been effectively overturned by subsequent American cases, such as United States Civil
Service Commission v. National Association of Letter Carriers[19] and Broadrick v. State of Oklahoma,[20] is not
controlling.

Be that as it may, a closer reading of these latter US cases reveals that Mancuso is still applicable.

On one hand, Letter Carriers and Broadrick, which are based on United Public Workers of America v. Mitchell,[21] involve
provisions prohibiting Federal employees from engaging in partisan political activities or political campaigns.

In Mitchell, the appellants sought exemption from the implementation of a sentence in the Hatch Act, which reads: "No
officer or employee in the executive branch of the Federal Government x x x shall take any active part in political
management or in political campaigns."[22] Among the appellants, only George P. Poole violated the provision[23] by
being a ward executive committeeman of a political party and by being politically active on election day as a worker at
the polls and a paymaster for the services of other party workers.[24]

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the
Hatch Act's prohibition against "active participation in political management or political campaigns." The plaintiffs
desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local
offices, to participate as delegates in party conventions, and to hold office in a political club.[25]

In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the Oklahoma's Merit
System of Personnel Administration Act restricting the political activities of the State's classified civil servants, in much
the same manner as the Hatch Act proscribed partisan political activities of federal employees.[26] Prior to the
commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior,
and were administratively charged for asking other Corporation Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and
distributing campaign posters in bulk.[27]
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full-time
police officer and classified civil service employee of the City of Cranston, filed his candidacy for nomination as
representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the
resign-to-run provision of the City Home Rule Charter.[28]

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts,
Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. Thus, in Magill v. Lynch,[29] the
same collegial court which decided Mancuso was so careful in its analysis that it even remanded the case for
consideration on the overbreadth claim. The Magill court stated thus-

Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to
demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal
employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have
interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim.[30]

As observed by the Court (citing Clements v. Fashing[31]) in the December 1, 2009 Decision, U.S. courts, in subsequent
cases, sustained the constitutionality of resign-to-run rules when applied to specified or particular officials, as
distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run
legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane
to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. In fact, Morial v. Judiciary Commission of the State of
Louisiana,[32] where the resign-to-run provision pertaining to judges running for political offices was upheld, declares
that "there is no blanket approval of restriction on the right of public employees to become candidates for public
office."[33] The Morial court instructed thus-

Because the judicial office is different in key respects from other offices, the state may regulate its judges with the
differences in mind. For example the contours of the judicial function make inappropriate the same kind of particularized
pledges of conduct in office that are the very stuff of campaigns for most non-judicial offices. A candidate for the
mayoralty can and often should announce his determination to effect some program, to reach a particular result on
some question of city policy, or to advance the interests of a particular group. It is expected that his decisions in office
may be predetermined by campaign commitment. Not so the candidate for judicial office. He cannot, consistent with
the proper exercise of his judicial powers, bind himself to decide particular cases in order to achieve a given
programmatic result. Moreover, the judge acts on individual cases and not broad programs. The judge legislates but
interstitially; the progress through the law of a particular judge's social and political preferences is, in Mr. Justice Holmes'
words, "confined from molar to molecular motions."

As one safeguard of the special character of the judicial function, Louisiana's Code of Judicial Conduct bars candidates
for judicial office from making "pledges or promises of conduct in office other than the faithful and impartial
performance of the duties of the office." Candidates for non-judicial office are not subject to such a ban; in the conduct
of his campaign for the mayoralty, an erstwhile judge is more free to make promises of post-campaign conduct with
respect both to issues and personnel, whether publicly or privately, than he would be were he a candidate for re-election
to his judgeship. The state may reasonably conclude that such pledges and promises, though made in the course of a
campaign for non-judicial office, might affect or, even more plausibly, appear to affect the post-election conduct of a
judge who had returned to the bench following an electoral defeat. By requiring resignation of any judge who seeks a
non-judicial office and leaving campaign conduct unfettered by the restrictions which would be applicable to a sitting
judge, Louisiana has drawn a line which protects the state's interests in judicial integrity without sacrificing the equally
important interests in robust campaigns for elective office in the executive or legislative branches of government.

This analysis applies equally to the differential treatment of judges and other office holders. A judge who fails in his bid
for a post in the state legislature must not use his judgeship to advance the cause of those who supported him in his
unsuccessful campaign in the legislature. In contrast, a member of the state legislature who runs for some other office
is not expected upon his return to the legislature to abandon his advocacy of the interests which supported him during
the course of his unsuccessful campaign. Here, too, Louisiana has drawn a line which rests on the different functions of
the judicial and non-judicial office holder.[34]

Indeed, for an ipso facto resignation rule to be valid, it must be shown that the classification is reasonably necessary to
attain the objectives of the law. Here, as already explained in the assailed decision, the differential treatment in the
application of this resign-to-run rule is not germane to the purposes of the law, because whether one holds an
appointive office or an elective one, the evils sought to be prevented are not effectively addressed by the measure.
Thus, the ineluctable conclusion that the concerned provisions are invalid for being unconstitutional.

Without unnecessarily preempting the resolution of any subsequent actual case or unwittingly giving an advisory
opinion, the Court, in the December 1, 2009 Decision, in effect, states that what should be implemented are the other
provisions of Philippine laws (not the concerned unconstitutional provisions) that specifically and directly address the
evils sought to be prevented by the measure. It is highly speculative then to contend that members of the police force
or the armed forces, if they will not be considered as resigned when they file their COCs, is a "disaster waiting to
happen." There are, after all, appropriate laws in place to curb abuses in the government service.

The invalidation of the ipso facto resignation provisions does not mean the cessation in operation of other provisions of
the Constitution and of existing laws. Section 2(4) of Article IX-B and Section 5(3), Article XVI of the Constitution, and
Section 55, Chapter 8, Title I, Book V of the Administrative Code of 1987 still apply. So do other statutes, such as the Civil
Service Laws, OEC, the Anti-Graft Law, the Code of Conduct and Ethical Standards for Public Officials and Employees,
and related laws. Covered civil servants running for political offices who later on engage in "partisan political activity"
run the risk of being administratively charged.[35] Civil servants who use government funds and property for campaign
purposes, likewise, run the risk of being prosecuted under the Anti-Graft and Corrupt Practices Act or under the OEC on
election offenses. Those who abuse their authority to promote their candidacy shall be made liable under the
appropriate laws. Let it be stressed at this point that the said laws provide for specific remedies for specific evils, unlike
the automatic resignation provisions that are sweeping in application and not germane to the purposes of the law.
To illustrate, we hypothetically assume that a municipal election officer, who is an employee of the COMELEC, files his
CoC. Given the invalidation of the automatic resignation provisions, the said election officer is not considered as ipso
facto resigned from his post at the precise moment of the filing of the CoC. Thus, he remains in his post, and his filing of
a CoC cannot be taken to be a violation of any provision of the Constitution or any statute. At the start of the campaign
period, however, if he is still in the government service, that is, if he has not voluntarily resigned, and he, at the same
time, engages in a "partisan political activity," then, he becomes vulnerable to prosecution under the Administrative
Code, under civil service laws, under the Anti-Graft and Corrupt Practices Act or under the OEC. Upon the proper action
being filed, he could, thus, be disqualified from running for office, or if elected, prevented from assuming, or if he had
already assumed office, be removed from, office.

At this juncture, it may even be said that Mitchell, Letter Carriers and Broadrick, the cases earlier cited by Chief Justice
Puno and Associate Justices Carpio and Carpio-Morales, support the proposition advanced by the majority in the
December 1, 2009 Decision. While the provisions on the ipso facto resignation of appointive civil servants are
unconstitutional for being violative of the equal protection clause and for being overbroad, the general provisions
prohibiting civil servants from engaging in "partisan political activity" remain valid and operational, and should be strictly
applied.

The COMELEC's motion for reconsideration should, therefore, be denied.

The OSG's motion for clarification

In its motion, the OSG pleads that this Court clarify whether, by declaring as unconstitutional the concerned ipso facto
resignation provisions, the December 1, 2009 Decision intended to allow appointive officials to stay in office during the
entire election period.[36] The OSG points out that the official spokesperson of the Court explained before the media
that "the decision would in effect allow appointive officials to stay on in their posts even during the campaign period,
or until they win or lose or are removed from office."[37]

I pose the following response to the motion for clarification. The language of the December 1, 2009 Decision is too plain
to be mistaken. The Court only declared as unconstitutional Section 13 of R.A. No. 9369, Section 66 of the OEC and
Section 4(a) of COMELEC Resolution No. 8678. The Court never stated in the decision that appointive civil servants
running for elective posts are allowed to stay in office during the entire election period.

The only logical and legal effect, therefore, of the Court's earlier declaration of unconstitutionality of the ipso facto
resignation provisions is that appointive government employees or officials who intend to run for elective positions are
not considered automatically resigned from their posts at the moment of filing of their CoCs. Again, as explained above,
other Constitutional and statutory provisions do not cease in operation and should, in fact, be strictly implemented by
the authorities.
Let the full force of the laws apply. Then let the axe fall where it should.