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A.M. No. P-12-3069 January 20, 2014 already been denied.

already been denied. And since no Temporary Restraining Order (TRO) has been
ATTY. VIRGILIO P. ALCONERA, Complainant, issued enjoining the implementation, respondent claimed that he is legally
vs. ALFREDO T. PALLANAN, Respondent. mandated to perform his ministerial duty of enforcing the writ. Complainant
countered that he has not yet received a copy of the denial of the motion, rendering
the execution premature and, at the same time, preventing him from securing a
D E C I S I O N - VELASCO, JR., J.:
TRO from the higher courts. Nevertheless, respondent still pushed through with the
execution of the judgment.
Before Us is an administrative complaint for Grave Misconduct and Making
Untruthful Statements filed by Atty. Virgilio P. Alconera against Alfredo Pallanan,
On March 18, 2011, complainant returned to General Santos City and, at his law
Sheriff IV, assigned at the Regional Trial Court (RTC), Branch 36 in General Santos
office, found a copy of the Order denying his Motion for Reconsideration, which was
City.
only served that very same day. The RTC ruled that there was no pending Motion to
Approve Supersedeas Bond filed with it. Instead, what was filed not with the RTC
The antecedent facts are as follows: but with the MTCC was a "NOTICE OF APPEAL – and – MOTION TO APPROVE
PROPERTY SUPERSEDEAS BOND," which was not granted.
Complainant was the counsel for Morito Rafols, the defendant in Civil Case No.
5967-2, an unlawful detainer case entitled Cua Beng a.k.a. Manuel Sy and Ka Kieng That afternoon, Alconera went to RTC Br. 36 with his daughter to confront
v. Morita Rafols, et al., filed before the Municipal Trial Court in Cities (MTCC), respondent sheriff. The face-off escalated into a heated argument caught on video.
Branch 2 in General Santos City, South Cotabato. After trial, the MTCC ruled against It was complainant’s daughter, Shyla Mae Zapanta, who is coincidentally his office
Rafols and his co-defendants in a Judgment1dated March 12, 2009, disposing as clerk, who filmed the incident and transcribed the dialogue during the altercation.
follows: As hereunder translated in English, the exchanges went:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the ATTY. ALCONERA: Pag hatod nimo didto sa demolition order, kabalo ka na wala pa
defendant MORITO RAFOLS, his privies, assigns, heirs, transferee, sublessee. co- ko kadawat ug denial? (When you served the demolition order, you know that I did
Jessee or agents if any to vacate from the subject lots and deliver possession not yet receive a copy of the denial order?)
thereof to the plaintiffs and for defendant to pay back rentals of ₱5,000.00 per
month from June 2008 and every succeeding months thereafter until he vacate the
SHERIFF PALLANAN: Denial sa unsa, motion? (Denial of what, motion?)
premises and to jointly and severally, together with all other defendants, pay
attorney's fees in the amount of ₱20,000.00 with the other defendants and costs of
litigation. ATTY. ALCONERA: Oo. (Yes.)

SO ORDERED. SHERIFF PALLANAN: Attorney, ang motion inyoha nang kuan diri sa korte, and akoa
sa writ ko. As long as the sheriff did not receive a TRO or any order from the court
restraining him to implement the writ, I have to go. So in case, just in case, na may
Therefrom, Rafols, through complainant Alconera, appealed the case to the RTC,
resolution si judge na ireconsider and iyang order after they declare, ideliver na sa
Branch 36, docketed as Civil Case No. 675. Pending appeal, the court issued an
area kung asa gi-execute so the sheriff will move out. (Attorney, the motion, that is
Order dated February 18, 2011 granting Cua Beng’s motion for execution she filed
your… what do you call this, here in court. Mine is the writ. As long as the sheriff did
in Civil Case No. 5967-2, the unlawful detainer case. Alconera sought
not receive a TRO or any order from the court restraining him to implement the
reconsideration but the motion was denied through another Order2 dated March 14,
writ, I have to go. So in case, just in case, the judge reconsiders his order, they will
2011.
declare, deliver it to the area where the writ if executed so the sheriff will move
out.)
On March 17, 2011, a troubled Evelyn Rafols, Rafols’ daughter-in-law, called up
Alconera, who at that time was in Manila, to report that the sheriff, respondent
ATTY. ALCONERA: Mo execute diay ka? Dili diay ka mangutana kung duna pa bay
Pallanan, was about to implement the adverted writ of execution. Evelyn Rafols
motion for recon ani? (So you will execute? You will not inquire whether a motion
informed Alconera that respondent sheriff arrived along with the lawyer of the
for reconsideration has been filed?)
opposing party and 30 other men to enforce the writ. Respondent sheriff then
allegedly demanded payment of PhP 720,000 to settle Rafols’ obligation to which
the latter protested on the ground that the amount is too exorbitant when they SHERIFF PALLANAN: Bisag may motion for recon na, Attorney, I have to go gyud.
have been religiously depositing monthly rentals in court to satisfy the judgment. (Even if there is a motion for reconsideration, I really have to go.)

After explaining the matter to Alconera, Evelyn Rafols passed her phone to ATTY. ALCONERA: Uy, di man na ingon ana, uy! Ana imong natun-an as sheriff?
respondent sheriff. Over the phone, a verbal disagreement between the two
ensued. Alconera claims that he has a pending motion for reconsideration on the
SHERIFF PALLANAN: Oo mao na sya. Mao na sya – sa akoa ha, mao na sya. (Yes,
issuance of the writ of execution, but the respondent said that the motion has
that is it. That is it – to me ha, that is it.)
ATTY. ALCONERA: Kita ra ta sa Supreme Court ani. (Let us see each other in the SHERIFF PALLANAN: Magkita ta, eh! Ikaw lang akong hadlukan nga wala man ka sa
Supreme Court.) area. (As you wish, I am not afraid of you, you were not in the area.)

SHERIFF PALLANAN: …(unintelligible) Ang imoha ana…imong motion ana… and ATTY. ALCONERA: Unsa nang inyong style diri, Kempeta? (What is your style here,
imong motion ana, delaying tactic. (Your motion is a delaying tactic.) Kempetai?)

ATTY. ALCONERA: Ah, sige lang, atubang lang ta sa Supreme Court. (Ok, let’s just SHERIFF PALLANAN: Dili man! Na may order. Why can’t you accept? (No! There is
see each other in the Supreme Court.) an order. Why can’t you accept?)

SHERIFF PALLANAN: Oo, atubangon nako ko na siya, pero mag-review pud ka. ATTY. ALCONERA: Naay proseso, Dong. Mao ning proseso: ang MR, proseso ang
MR. (There is a process, Dong. This is the process: MR.)
ATTY. ALCONERA: Unsay mag-review? (What review?)
SHERIFF PALLANAN: Oo, proseso pud na ang akong pagimplement. Naa’y writ.
(Yes, my implementing the writ is also a process. There is a writ.)
SHERIFF PALLANAN: Motion nang imoha, Dong. (Yours is motion, Dong.) ("Dong" is
equivalent to the Filipino term "Totoy"; if used by one to address someone older
than him, it is an insult.) ATTY. ALCONERA: Nabuang, ka Dong? (What is going on with you, Dong?)

ATTY. ALCONERA: Naunsa man ka, Dong. (What happened to you, Dong?) SHERIFF PALLANAN: Ka dugay na nimo nga abogado, wala ka kabalo! (You have
been a lawyer for a long time now, yet you do not know!)
SHERIFF PALLANAN: Motion na imoha… Dapat diri ka mag file, dili ka didto mag-file.
Ayaw ko awaya. (Yours is motion. You should file it here, you do not file it there. ATTY. ALCONERA: Dugay na bitaw. Ikaw bago ka lang na sheriff. (Yes, I have been
Don’t quarrel with me.) a lawyer for a long time now, you, you are new in your job as sheriff).

ATTY. ALCONERA: Lahi imong tono sa akoa sa telepono Dong ba. (You were rude in SHERIFF PALLANAN: Pero kabalo ko. (But I know.)
the telephone, Dong.)
ATTY. ALCONERA: Susmaryosep!
SHERIFF PALLANAN: Oo, kay lain man pud ka mag sulti. Ang imong venue kay diri,
dili sa area. (Yes, because you also talked bad, your venue is here in court, not in
SHERIFF PALLANAN: O, di ba? Wala sa padugayay. Naa sa kahibalo. (Isn’t that
the area.)
true? It is not the length of time one has spent on his job. It is the knowledge that
one possesses.)
ATTY. ALCONERA: Ingon nako sa imo nakadawat ka ba.. nakadawat ba ug… (I was
just asking you whether you received…)
ATTY. ALCONERA: Tanawa imong pagka sheriff, Dong. (Know you job as a sheriff,
Dong.)
SHERIFF PALLANAN: Dili nako na concern. (That is not my concern.)
SHERIFF PALLANAN: Tanawa pud imong pagka abogado kung sakto. Pilde! Sige mo
ATTY. ALCONERA: O, ngano nag ingon man ka nga "Ayaw ko diktahe, Attorney?" pangulekta didto ibayad sa imo! (Know your job also as a lawyer, see if you are
(Why did you say, "Don’t dictate on me, Attorney?") correct. Loser! You [and the Rafols] are always collecting [from the other
defendants] so your fees can be paid!)
SHERIFF PALLANAN: Yes, do not dictate me. Kay abogado ka, sheriff ko. Lahi tag
venue. Trabaho akoa, magtrabaho pud ka. (Yes, do not dictate me. Because you are ATTY. ALCONERA: Ngano wala man lagi nimo kuhaa ang mga butang didto, Dong?
a lawyer, and I am a sheriff. I do my job, you do yours.) (Why did you not bring with you the things that you had gathered, Dong.)

ATTY. ALCONERA: Bastos kaayo ka manulti ba. (You are very rude!) SHERIFF PALLANAN: Oo, kay hulaton ta ka pag demotion. (Yes, because I will wait
for you on demotion day.)
SHERIFF PALLANAN: Ikaw ang bastos! (You are the one who is rude!)
ATTY. ALCONERA: Nahadlok ka, Dong. (You were afraid, Dong.)
ATTY. ALCONERA: Magkita ta sa Supreme Court. (I will see you in the Supreme
Court.)
SHERIFF PALLANAN: Wala ko nahadlok, Doy. Sa demotion adto didto, Attorney. In view of respondent’s counter-charge, Alconera supplemented his affidavit-
Sulayi ko! Sulayan nato imong pagkaabogado! (I’m not afraid of you, Doy. On complaint6 to include a charge against the former for False Testimony. Complainant
demotion day, you go there, Attorney. You try me! Let us see how good a lawyer belied the claims of respondent sheriff, and showed that the respondent’s
you are.) ("Doy" is the same as "Dong.") allegations can nowhere be seen in the transcript of the altercation.

ATTY. ALCONERA: March 22 pa ang hearing sa imong abogado, Dong. (The hearing On March 2, 2012, this Court, upon the OCA’s recommendation, resolved to re-
of the motion of your lawyer, is on March 22 yet, Dong.) docket Alconera’s complaint as a regular administrative case with docket No. A.M.
No. P-12-3069 and referred the same to the Executive Judge of the Regional Trial
Court, General Santos City, South Cotabato, for investigation, report, and
SHERIFF PALLANAN: Asus, Pinobre na imong style, Attorney. Bulok! (Your style is
recommendation.
that of an impoverished lawyer, Attorney. Dullard!)

After due proceedings, the investigating judge submitted a report, styled as


It is against the foregoing backdrop of events that Alconera filed a Complaint-
Order7 dated August 6, 2013, with the following recommendation:
Affidavit3 against the respondent sheriff for grave misconduct before this Court on
April 6, 2011. The case was referred to the Office of the Court Administrator (OCA)
and was docketed as AM No. 11-3634-P. As directed by the OCA, respondent filed Based on the findings and evaluation, the herein Executive Judge hereby
his comment.4 In it, he averred that the duty of a court sheriff in enforcing a writ of recommends the respondent Sheriff be ADMONISHED. The respondent must be
execution is ministerial, and without a TRO enjoining it, a sheriff is duty bound to reminded that as a Court Employee, he must exercise utmost patience and humility
implement it. in the performance of his duties amidst all the pressures and personal attacks
against his person because he carried with him the image of the entire judiciary.
On July 14, 2011, respondent filed his own Affidavit of Complaint 5 against herein
complainant for Grave Misconduct and for violating the Code of Ethics. Respondent SO ORDERED.
alleged that during the enforcement of the writ, a second phone conversation took
place. Complainant allegedly called up Evelyn Rafols who put him on loudspeaker
The Executive Judge adopted the transcript of the altercation as appearing in the
for the respondent to hear his words. Alconera then allegedly made a threat that
affidavit of Shyla Mae Zapanta and based his recommendation mainly thereon.
there will be bloodshed if respondent’s party pushes through with the
implementation of the writ. Respondent likewise claimed that complainant berated
him at his office on March 18, 2011 and that the incident was orchestrated by the The Issues
complainant. His (respondent sheriff’s) complaint affidavit avers:
The main issue in this case is whether or not respondent can be held
6. GRAVE MISCONDUCT OF ATTY. VIRGILIO ALCONERA – The planned attack administratively liable for grave misconduct and false testimony. In fine, the
happened in our office on March 18, 2011 in the afternoon, after lunch, in the controversy stems from the propriety of the implementation of the writ of
presence of his lady companion (believed to [be] his daughter), who is so delighted execution, and the altercation between complainant and respondent. While the
in taking videos. He is so angry and at rage as if he is the boss in our office, yelling investigating judge made a recommendation based on how respondent conducted
and nagging at me with NO RESPECT as a nomad. THE ONLY PERSON AROUND WAS himself as an officer of the court in the afternoon of March 18, 2013, there was no
ME, THE GIRL HE BROUGHT THERE (who is taking videos), AND THE NAGGING discussion regarding the propriety of the implementation of the writ, which is the
ATTY. VIRGILIO ALCONERA (JUST THREE OF US), while pointing his finger into his main issue in the case for grave misconduct. It then behooves this Court to sift
MOTION for Reconsideration that he is holding [sic] almost an inch to my face. through the arguments and records to rule on this point.
Saying "KITA NIMO NI, KITA NIMO NI?" NA INSULTO KO NIMO NGANO WALA KA NI
PATOO NAKO PAYLAN TAKA UG KASO HULATA SA SUPREME COURT! (DO YOU SEE The Court’s Ruling
THIS? DO YOU SEE THIS? YOU INSULTED ME WHY DID YOU NOT FOLLOW MY
ORDER I WILL FILE CHARGES AGAINST YOU WAIT FOR IT IN THE SUPREME
COURT!) HE wants me to shiver in scare and expect me to beg. No, GO I said. I Grave Misconduct
ALWAYS REPEATED THE WORDS "WHERE IS YOUR T.R.O. Just present it." Because
he is too loud, Mrs. Nenita Paredes, our stenographer, ARRIVED and middle on us Misconduct has been defined as "a transgression of some established and definite
our arguments. On the mid part of the arguments, he recorded the events; he and rule of action, more particularly, unlawful behavior or gross negligence by a public
his companion, cohort in designing the plan of the attack, orchestrated it. IT’S AN officer." The misconduct is grave if it involves any of the additional elements of
ASSAULT TO THE OFFICER OF THE LAW. He told me – SHERIFF KA LANG WALA KAY corruption, willful intent to violate the law, or to disregard established rules, all of
NABAL AN. NGANON NADAWAT MAN KA DIRI BOGO KA. (YOU ARE JUST A SHERIFF. which must be established by substantial evidence, and must necessarily be
WHAT DO YOU KNOW? WHY ARE YOU ADMITTED HERE YOU DUMB, WHO TAUGHT manifest in a charge of grave misconduct.8 In this case, complainant imputes grave
YOU THAT?) Ana mo diri IPINATAY! KINSA NAG TUDLO SA IMOHA ANA. While he misconduct on the respondent for the following acts:
almost struck his motion papers into my face, I was caught unaware.
1. For enforcing the writ despite the fact that complainant has yet to receive the the filing of a supersedeas bond will not stay the execution of the judgment if the
copy of the order denying his motion for reconsideration on the issuance of the writ appeal is not perfected. Necessarily then, the supersedeas bond should be filed
of execution; within the period for the perfection of the appeal.10

2. For allegedly leaking to the opposing counsel the issuance of the order denying In the case at bar, complainant lost his client’s case and appealed to the RTC. His
the motion for reconsideration; client has also been periodically depositing rental with the court for the use of the
property pending appeal. However, as ruled by the RTC, the bond filed did not meet
the legal requirements because first and foremost, the bond posted was a property
3. For allegedly demanding ₱720,000 from Rafols for a ₱165,000.00 obligation; and
bond, not cash nor surety. Furthermore, Rafols did not own the property he posted
as bond and besides, it was also not issued in favour of the plaintiff in the ejectment
4. For allegedly being arrogant and disrespectful. case. Because of the non-compliance with the requirements under the above-quoted
rule, the execution of the judgment was not effectively stayed. The only exceptions
Complainant admits that there is no TRO enjoining the enforcement of the writ, nor to non-compliance are the existence of fraud, accident, mistake or excusable
allegation in his pleadings that a motion to quash the writ of execution was ever negligence which prevented the defendant from posting the supersedeas bond or
filed. However, complainant asserts that respondent committed grave misconduct making the monthly deposit, or the occurrence of supervening events which brought
when the latter implemented the writ prior to serving the complainant a copy of the about a material change in the situation of the parties and which would make the
order denying the motion for reconsideration. According to complainant, said motion execution inequitable.11 But whether or not these obtain in the case at bar is an
stayed the execution, and the writ could not have been validly executed without issue best left to the court that issued the writ of execution.
first informing the parties concerned of the motion’s denial.
Given the above circumstances, there was no legal impediment preventing
We rule against complainant on this point. respondent sheriff from performing his responsibility of enforcing the writ of
execution. Since Rafols failed to comply with the requirements under the Rules, Cua
Beng who prevailed in the unlawful detainer case is entitled as a matter of right to
It must be borne in mind that the case at bar traces its roots to an unlawful the immediate execution of the court’s judgment both as to the restoration of
detainer case wherein the MTCC ruled against Rafols, complainant’s client. In possession and the payment of the accrued rentals or compensation for the use and
ejectment cases, the rulings of the courts are immediately executory and can only occupation of the premises.12
be stayed via compliance with Section 19, Rule 70 of the Rules of Court, to wit:

Well-settled is that the sheriff’s duty in the execution of a writ is purely ministerial;
Section 19. Immediate execution of judgment; how to stay same. — If judgment is he is to execute the order of the court strictly to the letter. He has no discretion
rendered against the defendant, execution shall issue immediately upon motion, whether to execute the judgment or not. When the writ is placed in his hands, it is
unless an appeal has been perfected and the defendant to stay execution files a his duty, in the absence of any instructions to the contrary, to proceed with
sufficient supersedeas bond, approved by the Municipal Trial Court and executed in reasonable celerity and promptness to implement it in accordance with its mandate.
favor of the plaintiff to pay the rents, damages, and costs accruing down to the time It is only by doing so could he ensure that the order is executed without undue
of the judgment appealed from, and unless, during the pendency of the appeal, he delay.13 This holds especially true herein where the nature of the case requires
deposits with the appellate court the amount of rent due from time to time under immediate execution. Absent a TRO, an order of quashal, or compliance with Sec.
the contract, if any, as determined by the judgment of the Municipal Trial Court. In 19, Rule 70 of the Rules of Court, respondent sheriff has no alternative but to
the absence of a contract, he shall deposit with the Regional Trial Court the enforce the writ.
reasonable value of the use and occupation of the premises for the preceding month
or period at the rate determined by the judgment of the lower court on or before
the tenth day of each succeeding month or period. The supersedeas bond shall be Immediacy of the execution, however, does not mean instant execution. The sheriff
transmitted by the Municipal Trial Court, with the other papers, to the clerk of the must comply with the Rules of Court in executing a writ. Any act deviating from the
Regional Trial Court to which the action is appealed. procedure laid down in the Rules of Court is a misconduct and warrants disciplinary
action. In this case, Sec. 10(c), Rule 39 of the Rules prescribes the procedure in the
implementation of the writ. It provides:
Clearly then under said Sec. 19, Rule 70, a judgment on a forcible entry and
detainer action is made immediately executory to avoid further injustice to a lawful
possessor. The defendant in such a case may have such judgment stayed only by Section 10. Execution of judgments for specific act. —
(a) perfecting an appeal; (b) filing a supersedeas bond; and (c) making a periodic
deposit of the rental or reasonable compensation for the use and occupancy of the (c) Delivery or restitution of real property. — The officer shall demand of the
property during the pendency of the appeal.9The failure of the defendant to comply person against whom the judgment for the delivery or restitution of real property is
with any of these conditions is a ground for the outright execution of the judgment, rendered and all persons claiming rights under him to peaceably vacate the
the duty of the court in this respect being ministerial and imperative. Hence, if the property within three (3) working days, and restore possession thereof to the
defendant-appellant has perfected the appeal but failed to file a supersedeas bond, judgment obligee, otherwise, the officer shall oust all such persons therefrom with
the immediate execution of the judgment would automatically follow. Conversely, the assistance, if necessary, of appropriate peace officers, and employing such
means as may be reasonably necessary to retake possession, and place the At all times, employees of the judiciary are expected to accord respect to the person
judgment obligee in possession of such property. Any costs, damages, rents or and the rights of another, even a co-employee. Their every act and word should be
profits awarded by the judgment shall be satisfied in the same manner as a characterized by prudence, restraint, courtesy and dignity. Government service is
judgment for money. people-oriented; high-strung and belligerent behavior has no place therein.

Based on this provision, enforcement in ejectment cases requires the sheriff to give Rude and hostile behavior often translates a personal conflict into a potent pollutant
notice of such writ and to demand from defendant to vacate the property within of an otherwise peaceful work environment; ultimately, it affects the quality of
three days. Only after such period can the sheriff enforce the writ by the bodily service that the office renders to the public. Letting personal hatred affect public
removal of the defendant in the ejectment case and his personal belongings. 14 Even performance is a violation of the principle enshrined in the Code of Conduct and
in cases wherein decisions are immediately executory, the required three-day notice Ethical Standards for Public Officials and Employees, a principle that demands that
cannot be dispensed with. A sheriff who enforces the writ without the required public interest be upheld over personal ones.
notice or before the expiry of the three-day period is running afoul with the Rules. 15
Improper behavior especially during office hours exhibits not only a paucity of
In the present controversy, the Order denying the motion for reconsideration was professionalism at the workplace, but also great disrespect for the court itself. Such
allegedly served, according to the respondent, on the same day the writ was demeanor is a failure of circumspection demanded of every public official and
executed on March 17, 2011. Complainant, however, avers that his office was only employee. Thus, the Court looks "with great disfavor upon any display of animosity
able to receive the denial the day after the execution or on March 18, 2011. At first by any court employee" and exhorts every court personnel to act with strict
blush, one might hastily conclude that the three-day notice rule was apparently not propriety and proper decorum to earn public trust for the judiciary. Colleagues in
observed. This Court, however, is not prepared to make such a finding. We are the judiciary, including those occupying the lowliest position, are entitled to basic
mindful of the possibility that a demand to vacate has already been given when courtesy and respect.
complainant and Rafols were first served the Order granting the issuance of a writ
of execution, before the motion for reconsideration was filed. More importantly,
In discharging its constitutional duty of supervising lower courts and their
complainant failed to allege con-compliance with Sec. 10(c) of Rule 39.
personnel, this Court cannot ignore the fact that the judiciary is composed
essentially of human beings who have differing personalities, outlooks and
Thus far, no deviation from the Rules has been properly ascribed to attitudes; and who are naturally vulnerable to human weaknesses. Nevertheless,
respondent.1âwphi1 As an officer of the court, he is accorded the presumption of the Code of Judicial Ethics mandates that court personnel must not only be, but also
regularity in the performance of his duties. The burden was on complainant to be perceived to be, free from any impropriety -- with respect not only to their duties
adduce evidence that would prove the respondent’s culpability, if any. Without in the judicial branch, but also to their behavior anywhere else.
evidence of any departure from well established rules, any unlawful behaviour, or
any gross negligence on his part, the presumption remains applicable and
Based on the transcript of the altercation, it is readily apparent that respondent has
respondent cannot be held administratively liable for the offense of grave
indeed been remiss in this duty of observing courtesy in serving the public. He
misconduct.
should have exercised restraint in dealing with the complainant instead of allowing
the quarrel to escalate into a hostile encounter. The balm of a clean conscience
Discourtesy in the Performance of Official Duties should have been sufficient to relieve any hurt or harm respondent felt from
complainant's criticisms in the performance of his duties. On the contrary,
respondent's demeanour tarnished the image not only of his office but that of the
The foregoing notwithstanding, the Court adopts in part the recommendation of the
judiciary as a whole, exposing him to disciplinary measure.
investigating judge that respondent should nonetheless be penalized for discourtesy
in the performance of his official duties.
Making Untruthful Statements
As a public officer and a trustee for the public, it is the ever existing responsibility of
respondent to demonstrate courtesy and civility in his official actuations with the Lastly, the charge of making untruthful statements must also fail. While the
public.16 In Court Personnel of the Office of the Clerk of Court of the Regional Trial statements mentioned in respondent's complaint-affidavit were not reflected in the
Court – San Carlos City v. Llamas,17 this Court has held that: transcript submitted by the complainant, this actuality is not conclusive evidence
that such event did not take place. As claimed by respondent, complainant's clerk
was only able to record a part of the argument. We cannot then discount the
Public service requires integrity and discipline. For this reason, public servants must
probability that there is more to the argument than what was caught on video and
exhibit at all times the highest sense of honesty and dedication to duty. By the very
there remains the possibility that what respondent narrated and what complainant
nature of their duties and responsibilities, they must faithfully adhere to, hold
recorded both actually transpired.
sacred and render inviolate the constitutional principle that a public office is a public
trust; that all public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency. WHEREFORE, respondent Alfredo T. Pallanan is ADMONISHED and WARNED to be
always courteous in dealing with the public in the performance of official duties. A
repetition of the same or similar acts will be dealt with more severely.
G.R. No. 182967 April 6, 2011 1. ₱333,894.07 representing the unreleased retention money plus legal interest at
PHILIPPINE NATIONAL RAILWAYS, Petitioner, vs. KANLAON 12% per annum computed from the date of the first written demand; [and]
CONSTRUCTION ENTERPRISES CO., INC. Respondent.
2. ₱531,652.72 representing the unpaid contract price for the completed projects
D E C I S I O N - CARPIO, J.: plus legal interest of 12% per annum computed from the date of the first written
demand.
The Case
Defendant COA is absolved of any liability for actual damages or moral damages.
This is a petition for review1 of the 26 February 2008 Decision2 and 26 May 2008
Resolution3 of the Court of Appeals in CA-G.R. CV No. 70205. In its 26 February However, both defendant PNR and defendant COA are solidarily liable for reasonable
2008 Decision, the Court of Appeals affirmed the 12 December 2000 Decision, 4 as attorney’s fees in the amount of ₱50,000.00 and cost of suit.
amended by the 22 February 2001 Order,5 of the Regional Trial Court of Quezon
City, Branch 221 (trial court), directing petitioner Philippine National Railways (PNR)
SO ORDERED.16
to pay respondent Kanlaon Construction Enterprises Co., Inc. (Kanlaon) the
remaining balance of the contracts and to release the retention money. In its 26
May 2008 Resolution, the Court of Appeals denied PNR’s motion for reconsideration. On 28 December 2000, COA appealed. On 9 January 2001, PNR filed a motion for
reconsideration.
The Facts
In its 22 February 2001 Order, the trial court modified its 12 December 2000
Decision and fixed the interest rate from twelve percent to six percent per annum
In July 1990, PNR and Kanlaon entered into contracts for the repair of three PNR
from the date of the first written demand.
station buildings and passenger shelters, namely: 1) College Station for
₱2,316,568.41;6 2) Biñan Station for ₱2,547,978.63;7 and 3) Buendia Station for
₱1,820,534.40.8 The total cost of the three projects was ₱6,685,081.44. By PNR and COA appealed to the Court of Appeals.
November 1990, Kanlaon alleged that it had already completed the three projects. 9
In its 26 February 2008 Decision, the Court of Appeals affirmed the trial court’s 12
On 30 June 1994, Kanlaon sent a demand letter to PNR requesting for the release of December 2000 Decision, as amended by its 22 February 2001 Order.
the retention money in the amount of ₱333,894.07.10
PNR filed a motion for reconsideration.
In a letter dated 12 July 1994,11 PNR denied Kanlaon’s demand because of the 24
January 1994 Notices of Suspension12 issued by the Commission on Audit (COA). In its 26 May 2008 Resolution, the Court of Appeals denied PNR’s motion.

On 8 November 1994, Kanlaon filed a complaint for collection of sum of money plus The Ruling of the Trial Court
damages against PNR.13Kanlaon sought to recover from PNR a total of ₱865,906.79
consisting of the remaining balance of the three projects in the amount of
₱531,652.7214 and the retention money in the amount of ₱334,254.07. In its The trial court found that Kanlaon completed the projects and that it was entitled to
amended complaint dated 17 August 1995, Kanlaon impleaded the COA. 15 payment in full of the contract price, as well as the release of the retention money.
The trial court declared the PNR ledger, which was the only documentary evidence
presented by PNR to show that the projects were not completed, to be self-serving
In its answer, PNR admitted the existence of the three contracts but alleged that and unverified. The trial court declared that PNR failed to present any credible and
Kanlaon did not comply with the conditions of the contract. PNR also alleged that substantial evidence that Kanlaon failed to complete the projects. Moreover, the
Kanlaon did not complete the projects and that PNR did not have any unpaid trial court stated that COA suspended payment because PNR failed to comply with
balance. PNR added that it had a valid ground to refuse the release of the retention certain conditions and not because Kanlaon did not complete the projects. The trial
money because of the COA orders suspending the release of payment to Kanlaon. court also took judicial notice of the fact that the PNR stations at College, Biñan and
Buendia are fully operational and have been continuously used by PNR and the
In its 12 December 2000 Decision, the trial court ruled in favor of Kanlaon. The riding public. The trial court absolved COA from actual and moral damages because
dispositive portion of the 12 December 2000 Decision reads: there was no contractual relations between COA and Kanlaon and it was not shown
that COA acted in bad faith or with malice or gross negligence when it issued the
Notices of Suspension.
WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiff [Kanlaon] and against the herein defendants [PNR and COA]. Accordingly,
defendant PNR is ordered to pay the plaintiff the following amount[s]: The Ruling of the Court of Appeals
The Court of Appeals sustained the trial court’s ruling that PNR was liable for the banking transactions of government-owned or controlled banks, no contract
remaining balance of the contract price and the retention money. The Court of involving the expenditure of public funds by any government agency shall
Appeals agreed with the trial court that the preponderance of evidence leaned in be entered into or authorized unless the proper accounting official of the
favor of Kanlaon’s claim against PNR and that there was nothing on record which agency concerned shall have certified to the officer entering into the
supports PNR’s allegation that Kanlaon failed to complete the project. The Court of obligation that funds have been duly appropriated for the purpose and that
Appeals said the only reason PNR refused to pay Kanlaon was because of COA’s the amount necessary to cover the proposed contract for the current
Notices of Suspension and not Kanlaon’s non-completion of the projects. However, calendar year is available for expenditure on account thereof, subject to
the Court of Appeals held that COA is not liable for attorney’s fees and costs of the verification by the auditor concerned. The certificate signed by the proper
suit for lack of factual and legal bases. accounting official and the auditor who verified it, shall be attached to and become
an integral part of the proposed contract, and the sum so certified shall not
thereafter be available for expenditure for any other purpose until the obligation of
The Issues
the government agency concerned under the contract is fully extinguished.

PNR raises the following issues:


SECTION 48. Void Contract and Liability of Officer. — Any contract entered into
contrary to the requirements of the two (2) immediately preceding sections
I. The Court of Appeals erred in finding that the projects were completed. shall be void, and the officer or officers entering into the contract shall be liable to
the Government or other contracting party for any consequent damage to the same
II. The Court of Appeals erred in affirming the 12 December 2000 Decision extent as if the transaction had been wholly between private parties. (Emphasis
of the trial court, as modified by the Order dated February 22, 2001. supplied)

III. The Court of Appeals erred in ruling that interest should be reckoned Thus, the Administrative Code of 1987 expressly prohibits the entering into
from the date of respondent’s first written demand.17 contracts involving the expenditure of public funds unless two prior requirements
are satisfied. First, there must be an appropriation law authorizing the expenditure
required in the contract. Second, there must be attached to the contract a
The Ruling of the Court certification by the proper accounting official and auditor that funds have been
appropriated by law and such funds are available. Failure to comply with any of
The petition is meritorious. these two requirements renders the contract void.

The Court notes that one of the reasons the COA issued the Notices of Suspension In several cases,19 the Court had the occasion to apply these provisions of the
was because the contracts did not contain a Certificate of Availability of Funds as Administrative Code of 1987 and the Government Auditing Code of the Philippines.
required under Sections 85 and 86 of Presidential Decree No. 1445. 18 Kanlaon does In these cases, the Court clearly ruled that the two requirements – the existence of
not dispute the absence of a Certificate of Availability of Funds. appropriation and the attachment of the certification – are "conditions sine qua
non for the execution of government contracts."
The Administrative Code of 1987, a more recent law, also contains the same
provisions. Sections 46, 47, and 48, Chapter 8, Subtitle B, Title I, Book V of the In COMELEC v. Quijano-Padilla,20 we stated:
Administrative Code of 1987 provide:
It is quite evident from the tenor of the language of the law that the existence of
SECTION 46. Appropriation Before Entering into Contract. — appropriations and the availability of funds are indispensable pre-requisites to or
conditions sine qua non for the execution of government contracts. The obvious
intent is to impose such conditions as a priori requisites to the validity of the
1. No contract involving the expenditure of public funds shall be entered into unless proposed contract.21
there is an appropriation therefor, the unexpended balance of which, free of other
obligations, is sufficient to cover the proposed expenditure; and
The law expressly declares void a contract that fails to comply with the two
requirements, namely, an appropriation law funding the contract and a certification
2. Notwithstanding this provision, contracts for the procurement of supplies and of appropriation and fund availability. 22 The clear purpose of these requirements is
materials to be carried in stock may be entered into under regulations of the to insure that government contracts are never signed unless supported by the
Commission provided that when issued, the supplies and materials shall be charged corresponding appropriation law and fund availability. 23
to the proper appropriations account.

The three contracts between PNR and Kanlaon do not comply with the requirement
SECTION 47. Certificate Showing Appropriation to Meet Contract. — Except in the of a certification of appropriation and fund availability. Even if a certification of
case of a contract for personal service, for supplies for current consumption or to be appropriation is not applicable to PNR if the funds used are internally generated, still
carried in stock not exceeding the estimated consumption for three (3) months, or a certificate of fund availability is required. Thus, the three contracts between PNR
and Kanlaon are void for violation of Sections 46, 47, and 48, Chapter 8, Subtitle B, Facunla, and Alicia A. Villanueva (collectively, complainants) were the defendants in
Title I, Book V of the Administrative Code of 1987, as well as Sections 85, 86, and Civil Case No. 1416, entitled "Agueda Garlitos, et al. v. Sps. Benjamin & Priscilla
87 of the Government Auditing Code of the Philippines.1avvphi1 Buenavides, et al.," involving a suit for recovery of possession and damages. Both
cases were filed before the Municipal Trial Court of Paniqui, Tarlac, and raffled to
the sala of Judge Ovejera. Eventually, the aforementioned cases were decided
However, Kanlaon is not left without recourse. The law itself affords it the remedy.
against complainants.6
Section 48 of the Administrative Code of 1987 provides that "the officer or officers
entering into the contract shall be liable to the Government or other contracting
party for any consequent damage to the same extent as if the transaction had been For their part, the complainants involved in Civil Case No. 1330 appealed the MTC
wholly between private parties."24 Kanlaon could go after the officers who signed the decision adverse to them to the Regional Trial Court of Paniqui Tarlac, Branch 67
contract and hold them personally liable. (RTC). The appeal was, however, dismissed on June 7, 2007,7leading to the
issuance of a writ of execution on January 15, 2008.8 Due to said complainants‟
failure to vacate the premises, a writ of demolition was issued on April 15,
WHEREFORE, we GRANT the petition. We REVERSE and SET ASIDE the 26
2008.9 Maintaining that there was a pending appeal before the Court of Appeals
February 2008 Decision and 26 May 2008 Resolution of the Court of Appeals in CA-
involving the same parties, the latter moved10 for the stoppage of the writ of
G.R. CV No. 70205.
demolition’s implementation, but the same was denied in an Order 11 dated March
30, 2009 issued by Judge Ovejera wherein it was enunciated that the proffered
A.M. No. P-11-2903 February 5, 2014 ground is not one which could validly stay the implementation of a writ of
[Formerly A.M. OCA IPI No. 09-2181-MTJ] execution/demolition. Similarly, a writ of execution was issued in Civil Case No.
1416 on May 21, 2009,12 followed by a writ of demolition13 on August 7, 2009 due to
ANGELITO R. MARQUEZ, EDUARDO R. MARQUEZ, CRISTINA M. OCAMPO, the failure of the complainants in said case to remove the improvements involved
CARMEN MARQUEZ-ROSAS, HEIRS OF ERNESTO MARQUEZ, RENATO R. therein. Collado, in her capacity as sheriff, was tasked to implement the writs of
MARQUEZ, ALFREDO R. MARQUEZ, FRED EVANGELISTA, JOSE MACALINO, demolition issued in both cases.14
SANTIAGO MARQUEZ, SPOUSES FREDDIE AND JOCELYN FACUNLA,
SPOUSES RODRIGO AND VIRGINIA MAZON, SPOUSES ALFONSO AND Feeling aggrieved, complainants filed the subject complaint before the Office of the
LEONILA CASCO, SPOUSES BENJAMIN AND PRISCILLA BUENAVIDES, Court Administrator (OCA) on August 25, 2009, docketed as A.M. OCA IPI No. 09-
EDUARDO FACUNLA, AND ALICIA A. VILLANUEVA, Complainants, 2181-MTJ, imputing abuse of authority, disregard of due process, misuse and
vs. JUDGE VENANCIO M. OVEJERA in his capacity as presiding judge of fabrication of judicial orders, arrogance and conduct unbecoming of an officer of the
Municipal Trial Court of Paniqui, Tarlac, AND SHERIFF IV LOURDES E. court against Ovejera and Collado in relation to the issuance and implementation of
COLLADO, Regional Trial Court, Branch 67, Paniqui, Tarlac,Respondents. the afore-stated writs of demolition. In addition, Collado was charged with violating
the AMLA and failure to disclose in her SALN for the years 2004 and 2005 certain
R E S O L U T I O N - PERLAS-BERNABE, J.: time deposits (subject time deposits) with the Moncada Women’s Credit Corporation
(MWCC) in the following amounts: (a) ₱200,100.00 on September 3, 2003; (b)
₱300,100.00 on December 29, 2003; (c) ₱400,100.00 on January 28, 2004; (d)
For the Court's resolution is a Consolidated Administrative Complaint 1 (subject ₱400,100.00 on January 28, 2004; (e) ₱500,100.00 on April 28, 2004; (f)
complaint) filed against respondents Judge Venancio M. Ovejera (Judge Ovejera) ₱600,100.00 on April 28, 2004; (g) ₱500,100.00 in July 2004; and (h) ₱800,100.00
and Sheriff IV Lourdes E. Collado (Collado) for abuse of authority, disregard of due on October 25, 2004.15
process, misuse and fabrication of judicial orders, arrogance and conduct
unbecoming of an officer of the court, and, with respect to Collado, violations of: (a)
Republic Act No. (RA) 6713,2 otherwise known as the "Code of Conduct and Ethical In his Comment,16 Judge Ovejera denied the charges and contended that the
Standards for Public Officials and Employees," particularly the provisions on the complaint was baseless and failed to state the specific acts complained. He
submission of Statements of Assets, Liabilities and Net Worth (SALN) of public maintained that the writs of execution and demolition were issued in accordance
officials and employees; and (b) RA 9160,3 otherwise known as the "Anti-Money with law and pointed out that a similar administrative case, i.e., OCA IPI NO. 09-
Laundering Act of 2001" (AMLA), as amended by RA 91944 and RA 10167.5 2168 MTJ, had already been filed against him by the same complainants and
dismissed by the Court in a Resolution dated November 25, 2009. 17

The Facts
Collado also filed her Comment,18 denying any abuse of authority on her part and
contending that she was merely implementing a lawful order of the court. She
Complainants Angelito R. Marquez, Eduardo R. Marquez, Cristina M. Ocampo, likewise claimed that she did not misuse or fabricate a judicial order, explaining that
Carmen Marquez-Rosas, Heirs of Ernesto Marquez, Renato R. Marquez, Alfredo R. complainants were only misled by the caption indicated in her correspondence to
Marquez, Fred Evangelista, Jose Macalino, and Santiago Marquez were the the Barangay Captain relative to the writ of demolition issued in Civil Case No.
defendants in Civil Case No. 1330, entitled "Jose Labutong v. Eduardo R. Marquez, 1330. Finally, she questioned the authenticity of the documents submitted by
et al.," involving a suit for unlawful detainer and damages, while complainants complainants for her alleged violation of the AMLA and refused to comment on the
Spouses (Sps.) Freddie and Jocelyn Facunla, Sps. Rodrigo and Virginia Mazon, Sps. same for being premature.19
Alfonso and Leonila Casco, Sps. Benjamin and Priscilla Buenavides, Eduardo
The Action and Recommendation of the OCA and business interests including those of their spouses and of unmarried children
under 18 years of age living in their households. In this relation, the same provision
mandates full disclosure of the concerned public official’s (a) real property, its
In a Memorandum20 dated November 5, 2010, the OCA found no factual and legal
improvements, acquisition costs, assessed value and current fair market value, (b)
bases to support the complaint against Judge Ovejera and Collado for violations of
personal property and acquisition cost, (c) all other assets such as investments,
their administrative and judicial functions. Nonetheless, finding that Collado did not
cash on hand or in banks, stocks, bonds, and the like, (d) liabilities, and (e) all
indicate in her SALN for the years 2004 and 2005 the amounts indicated in the
business interests and financial connections.
subject time deposits,21 the OCA recommended that the matter be re-docketed as a
regular administrative case for possible violations of the pertinent provisions on
SALN submission and the AMLA, and that the same be referred to the Executive Verily, the requirement of SALN submission is aimed at curtailing and minimizing
Judge of the RTC for further investigation, report and recommendation. The OCA’s the opportunities for official corruption, as well as at maintaining a standard of
recommendations were adopted by the Court in a Resolution 22 dated February 2, honesty in the public service.30 With such disclosure, the public would, to a
2011, and the case was re-docketed as A.M. No. P-11-2903. reasonable extent, be able to monitor the affluence of public officials, and, in such
manner, provides a check and balance mechanism to verify their undisclosed
properties and/or sources of income.31
In her Report and Findings23 dated June 3, 2011, RTC Executive Judge Liberty O.
Castañeda (Executive Judge) recommended the dismissal of the complaint against
Collado, finding that: (a) while the imputed amounts on the subject time deposits Based on Section 8 of RA 6713 as above-stated, "all other assets such as
were not specifically stated in her SALN for the years 2004 and 2005 as Collado investments, cash on hand or in banks, stocks, bonds, and the like", should be
herself admitted,24 she nonetheless declared the initial capital thereof as an asset declared by the public official in his or her SALN. In this case, however, it was
therein, (b) she honestly believed then that the interest on said deposits may only established, through Collado’s admission, 32 that she only declared the original
be declared when the certificates of time deposit were converted into cash; and (c) amount of her time deposits in her SALN for the years 2004 and 2005, and did not
she had no intent to falsify her SALN. The Executive Judge also did not find any disclose the interests which had eventually accrued on the same. Accordingly,
violation of the AMLA absent any evidence that Collado’s investment with the MWCC Collado fell short of the legal requirement stated under Section 8 of RA 6713 and
was sourced from any unlawful activity enumerated under the subject law, noting thus should be held administratively liable for said infraction.1âwphi1
further that Collado had not made a single deposit of ₱500,000.00 or more at any
instance as shown in MWCC’s Certification25 dated May 4, 2011. The matter was
The Court cannot hold Collado administratively liable for her purported failure to
then referred to the OCA for evaluation, report and recommendation. 26
submit her SALN for the years 2000 and 2001 as she was not given an opportunity
to be heard on this matter considering that said infraction was not included in the
In a Memorandum27 dated August 13, 2012, the OCA, based on a original charge.
Certification28 dated January 22, 2010 of the Office of Administrative Services (OAS
Certification), found that Collado failed to submit her SALN for the years 2000 and
As for the appropriate penalty, Section 11 of RA 6713 states that "any public official
2001. Citing Section 8 of RA 6713, among others, the OCA pointed out that every
or employee, regardless of whether or not he holds office or employment in a
public officer is mandated to submit a true, detailed and sworn statement of his
casual, temporary, holdover, permanent or regular capacity, committing any
assets and liabilities. However, it no longer delved on the issue of whether or not
violation of this Act shall be punished [with, among others,] a fine not exceeding
Collado’s time deposits were reflected in her SALN for the years 2004 and 2005
the equivalent of six (6) months‟ salary x x x depending on the gravity of the
considering that she had already retired in 2011 and no copies of the subject SALNs
offense after due notice and hearing by the appropriate body or agency." Consistent
could be found in her 201 file. Accordingly, the OCA recommended that Collado be
with existing jurisprudence,33 the Court finds that the penalty of a fine in the
fined in an amount equivalent to her salary for six (6) months.
amount of ₱5,000.00 is amply justified considering that Collado’s misstep in her
SALN for the years 2004 and 2005 appears to be her first offense, adding too that
The Issue Before the Court same does not appear to have been attended by any bad faith or fraudulent intent.

The lone issue left for the Court‟s resolution is whether or not Collado should be Separately, the Court finds it unnecessary to delve on Collado’s purported violation
held administratively liable for violating the pertinent provisions on SALN of the AMLA since the complaint and the records are bereft of any substantial basis
submission. on this score. In similar regard, the complaint against Judge Ovejera appears to be
unsupported by any substantial basis, and is therefore dismissed.
The Court’s Ruling
WHEREFORE, respondent Lourdes E. Collado is found GUILTY of violating Section 8
in relation to Section 11 of Republic Act No. 6713 for her failure to duly comply with
The Court concurs with the OCA, but modifies the penalty imposed to a fine of only
the legal requirements pertaining to the submission of her Statement of Assets,
₱5,000.00.
Liabilities and Net Worth (SALN) and is thus FINED the amount of ₱5,000.00 to be
deducted from her retirement benefits in view of her compulsory retirement on June
Section 829 of RA 6713, requires all public officials and employees to accomplish and 11, 2011. On the other hand, the administrative complaint against Judge Venancio
submit declarations under oath of their assets, liabilities, net worth and financial M. Ovejera is DISMISSED.
G.R. No. 185685 January 31, 2011 Racho moved for reconsideration13 but his motion was denied in an Order dated July
Office of the Ombudsman, Petitioner, vs. Nieto A. Racho, Respondent. 15, 2003.14

D E C I S I O N - MENDOZA, J.: Racho appealed the said order of dismissal to the CA. On January 26, 2004, the CA
reversed the Ombudsman’s ruling and ordered the reinvestigation of the case. 15
This petition for review on certiorari 1 under Rule 45 of the Rules of Court filed by the
Office of the Ombudsman (Ombudsman) assails the February 21, 2008 In compliance with the CA’s decision, the Ombudsman reinvestigated the case. In
Decision2 and November 20, 2008 Resolution3 of the Court of Appeals-Cebu (CA) in his Comment,16 Racho denied sole ownership of the bank deposits. In support of his
CA-G.R. CEB-SP No. 00694 which reversed and set aside the administrative aspect position, he presented the Joint Affidavit 17 of his brothers and nephew, particularly
of the April 1, 2005 Joint Order4 of the Office of the Ombudsman-Visayas. Vieto, Dean and Henry Racho, allegedly executed on December 18, 2004. In the
joint sworn statement, it was alleged that he and his siblings planned to put up a
business and eventually established "Angelsons Lending and Investors, Inc.," a
The April 1, 2005 Joint Order of the Ombudsman found respondent Nieto A.
corporation registered18 with the Securities and Exchange Commission (SEC) on
Racho (Racho) guilty of dishonesty and ordered him dismissed from the service with
April 30, 1999. To prove their agreement, Racho presented a Special Power of
forfeiture of all benefits and perpetual disqualification from public office. The
Attorney,19 dated January 28, 1993, wherein his brothers and nephew designated
assailed CA Decision, however, found Racho guilty of negligence only and reduced
him as the trustee of their investments in the business venture they were intending
the penalty to suspension from office for six months, without pay.
to put up and authorized him to deposit their money into his questioned bank
accounts to defray business-related expenses. Racho averred that his wife also set
From the records, it appears that DYHP Balita Action Team (DYHP), in a letter dated up a small business named "Nal Pay Phone Services" registered under the
November 9, 2001, reported to Deputy Ombudsman for the Visayas, Primo Miro, a Department of Trade and Industry (DTI) on April 30, 1999.20
concerned citizen’s complaint regarding the alleged unexplained wealth of Racho,
then Chief of the Special Investigation Division of the Bureau of Internal Revenue
On January 10, 2005, in its Reinvestigation Report, the Office of the Ombudsman-
(BIR), Cebu City.5 To support the allegation, the complainant attached copies of
Visayas found no reason to deviate from its previous findings against Racho. 21 Thus,
bank certifications, all issued in June of 1999, by Metrobank Cebu (Tabunok
the Reinvestigation Report disposed:
Branch),6 BPI Cebu (Mango Branch),7 and PCI Bank (Magallanes Branch).8 In total,
Racho appeared to have an aggregate bank deposit of ₱5,798,801.39.
With all the foregoing, undersigned finds no basis to change, modify nor reverse her
previous findings that there is probable cause for the crime of FALSIFICATION OF
Acting on the letter, the Ombudsman launched a fact-finding investigation and
PUBLIC DOCUMENT, defined and penalized under Article 171 of the Revised Penal
directed the BIR to submit Racho’s Statements of Assets, Liabilities and Net Worth
Code, against respondent Nieto A. Racho for making untruthful statements in a
(SALN) from 1995 to 1999. BIR complied with the order and gave copies of Racho’s
narration of facts in his SALN. As there are additional facts established during the
SALN. Soon, the Ombudsman found that Racho did not declare the bank deposits in
reinvestigation, re: failure of Mr. Racho to reflect his business connections, then the
his SALN, as mentioned in the DYHP’s letter. Accordingly, the Ombudsman filed a
Information filed against him should be amended to include the same. Let this
Complaint for Falsification of Public Document under Article 171 of the Revised
Amended Information be returned to the court for further proceedings.
Penal Code (OMB-V-C-02-0240-E) and Dishonesty (OMB-V-A-02-0214-E) against
Racho.
SO RESOLVED.22
The Ombudsman, in its August 21, 2002 Memorandum, adopted the Final
Evaluation Report9 of Administrative Officer Elpidio Montecillo as the sworn Racho filed a motion for reconsideration23 but the Ombudsman denied it in its April
complaint. Thereafter, Racho submitted his counter-affidavit attacking the 1, 2005 Joint Order.24
procedural infirmities of the complaint against him.10 At the scheduled clarificatory
hearing, Racho invoked his right to remain silent. On January 02, 2003, Graft
Racho elevated the case to the CA by way of a petition for review 25 under Rule 43 of
Prosecution Officer (GPO) Pio Dargantes did not give weight to the bank documents
the Rules of Court assailing the administrative aspect of the April 1, 2005 Joint
because they were mere photocopies. As a result, he dismissed the complaint for
Order of the Ombudsman-Visayas.
dishonesty (OMB-V-A-02-214-E) due to insufficiency of evidence. 11

On February 21, 2008, the CA rendered the challenged decision. Citing Pleyto v.
On review, Director Virginia Palanca, through a memorandum dated May 30,
Philippine National Police (PNP)-Criminal Investigation and Detection Group
2003,12 decreed that Racho’s act of not declaring said bank deposits in his SALN,
(CIDG),26 the CA opined that in charges of dishonesty "intention is an important
which were disproportionate to his and his wife’s salaries, constituted falsification
element in its commission."27 The CA ruled that Racho "never denied the existence
and dishonesty. She found Racho guilty of the administrative charges against him
of the bank accounts. Instead, he undertook to explain that those were not wholly
and imposed the penalty of dismissal from service with forfeiture of all benefits and
owned by him and endeavored to secure and submit documentary evidence to
perpetual disqualification to hold public office.
buttress explanation. Judging from his conduct, there is want of intent to conceal
information. Intent, as held in the Pleyto case, is essential to constitute dishonesty
and without the intent to commit a wrong, the public officer is not dishonest, albeit THE COUNTER-AFFIDAVITS COUNTERING ITS AUTHENTICITY WAS
he is adjudged to be negligent."28 SUBMITTED FOR THE FIRST TIME BEFORE THE COURT OF APPEALS,
AND NOT BEFORE THIS HONORABLE COURT.
Accordingly, the decretal portion of the CA decision reads:
IV
WHEREFORE, the instant Petition for Review on the administrative aspect of
Ombudsman Visayas JOINT ORDER dated April 1, 2005 is hereby GRANTED. The THE DECISIONS, RESOLUTIONS AND ORDERS OF THE OFFICE OF
said JOINT ORDER, in so far as it affirmed the petitioner’s guilt for dishonesty and THE OMBUDSMAN ARE IMMEDIATELY EXECUTORY EVEN PENDING
imposed the penalty of dismissal with forfeiture of all benefits and perpetual APPEAL UNDER SECTION 7, RULE III OF THE RULES OF PROCEDURE
disqualification to hold office is hereby REVERSED and SET ASIDE. Petitioner is OF THE OFFICE OF THE OMBUDSMAN, AS AMENDED;
adjudged GUILTY of NEGLIGENCE in accomplishing his Statement of Assets, CONSEQUENTLY THE WRIT OF INJUNCTION EARLIER ISSUED
Liabilities and Networth (SALN) and is ORDERED to be SUSPENDED FROM OFFICE SHOULD BE LIFTED.33
WITHOUT PAY FOR A PERIOD OF SIX (6) MONTHS.29
The Ombudsman argues that the CA failed to see the discrepancies on Racho’s
The Ombudsman moved for reconsideration,30 but the CA stood by its decision and Special Power of Attorney itself "such as a statement that the date of registration of
denied said motion in its November 20, 2008 Resolution. 31 the Nal Pay Phone Services was ‘last April 30, 1999,’ when the Special Power of
Attorney had been allegedly executed on 28 January 1993." 34 The Ombudsman
insists that these inconsistencies should have alerted the CA to delve more deeply
Hence, this petition.
into the case and check if Racho’s explanation through the supposed dubious
documents should be given weight at all.35
In its Memorandum,32 the Office of the Ombudsman submits the following:
THE COURT’S RULING
ISSUES
The Court finds merit in the petition.
I. THE ACTIVE PARTICIPATION OF THE OFFICE OF THE
OMBUDSMAN IN THE INSTANT CASE IS SANCTIONED BY THE
As a general rule, only questions of law may be raised in a petition for review on
MANDATE OF THE OFFICE AS AN "ACTIVIST WATCHMAN."
certiorari because the Court is not a trier of facts.36 When supported by substantial
evidence, the findings of fact of the CA are conclusive and binding on the parties
II. THE HONORABLE COURT OF APPEALS’ RELIANCE ON A and are not reviewable by this Court, unless the case falls under any of the
FICTITIOUS DOCUMENT WHOSE AUTHENTICITY HAS BEEN PUT TO following recognized exceptions:
QUESTION IN A SEPARATE CRIMINAL CASE PRESENTS AN
EXCEPTION TO THE GENERAL RULE THAT AN APPEAL BY
(1) When the conclusion is a finding grounded entirely on speculation, surmises and
CERTIORARI UNDER RULE 45 SHOULD RAISE ONLY QUESTIONS OF
conjectures;
LAW CONSIDERING THAT –

(2) When the inference made is manifestly mistaken, absurd or impossible;


THE OFFICE OF THE OMBUDSMAN FOUND THE SPECIAL POWER OF
ATTORNEY AND THE JOINT AFFIDAVIT OFFERED AS EVIDENCE BY
RESPONDENT TO BE SPURIOUS, HOWEVER, THE HONORABLE (3) Where there is a grave abuse of discretion;
COURT OF APPEALS WITHOUT RULING ON THE AUTHENTICITY OF
THE SAME DOCUMENTS, RELIED ON THE SAME TO FIND
(4) When the judgment is based on a misapprehension of facts;
RESPONDENT GUILTY ONLY OF NEGLIGENCE;

(5) When the findings of fact are conflicting;


AND

(6) When the Court of Appeals, in making its findings, went beyond the issues of
THE COURT OF APPEALS’ FINDING OF LACK OF INTENT ON THE
the case and the same is contrary to the admissions of both appellant and appellee;
PART OF RESPONDENT RACHO TO CONCEAL INFORMATION IS NOT
BASED ON THE EVIDENCE
(7) When the findings are contrary to those of the trial court;
III . THE OFFICE OF THE OMBUDSMAN HAS REPEATEDLY RAISED
THE SPURIOUS CHARACTER OF THE JOINT AFFIDAVIT AND (8) When the findings of fact are conclusions without citation of specific evidence on
SPECIAL POWER OF ATTORNEY BEFORE THE COURT OF APPEALS. which they are based;
(9) When the facts set forth in the petition as well as in the petitioners' main and Hundred Seventy-Nine, a public official has been found to have acquired during his
reply briefs are not disputed by the respondents; and incumbency, whether in his name or in the name of other persons, an amount of
property and/or money manifestly out of proportion to his salary and to his other
lawful income, that fact shall be ground for dismissal or removal. Properties in the
(10) When the findings of fact of the Court of Appeals are premised on the
name of the spouse and dependents of such public official may be taken into
supposed absence of evidence and contradicted by the evidence on
consideration, when their acquisition through legitimate means cannot be
record.37 [Emphasis
satisfactorily shown. Bank deposits in the name of or manifestly excessive
supplied]http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/172690.htm -
expenditures incurred by the public official, his spouse or any of their dependents
_ftn
including but not limited to activities in any club or association or any ostentatious
display of wealth including frequent travel abroad of a non-official character by any
Undeniably, the findings of fact of the Ombudsman are different from those of the public official when such activities entail expenses evidently out of proportion to
CA. Thus, the Court finds it necessary to take a second look at the factual matters legitimate income, shall likewise be taken into consideration in the enforcement of
surrounding the present case. this Section, notwithstanding any provision of law to the contrary. The
circumstances hereinabove mentioned shall constitute valid ground for the
From the records, it is undisputed that Racho admitted the bank accounts, but administrative suspension of the public official concerned for an indefinite period
explained that the deposits reflected therein were not entirely his. Racho proffered until the investigation of the unexplained wealth is completed.
that some of the money came from his brothers and nephew as part of their
contribution to the business that they had planned to put up. He presented a In the case of Carabeo v. Court of Appeals,39 citing Ombudsman v. Valeroso,40 the
Special Power of Attorney (SPA), dated January 28, 1993, and Joint Affidavit of his Court restated the rationale for the SALN and the evils that it seeks to thwart, to
siblings that echoed his explanation. wit:

In the appreciation of the said documents, the Ombudsman and the CA took Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be
opposing views. The Ombudsman did not give weight to the SPA due to some suppressed and avoided, and Section 7, which mandates full disclosure of wealth in
questionable entries therein. The CA, on the other hand, recognized the fact that the SALN, is a means of preventing said evil and is aimed particularly at curtailing
Racho never denied the existence of the bank accounts and accepted his and minimizing, the opportunities for official corruption and maintaining a standard
explanation. Accordingly, the CA decreed that although Racho was remiss in fully of honesty in the public service. "Unexplained" matter normally results from "non-
declaring the said bank deposits in his SALN, the intent to make a false statement, disclosure" or concealment of vital facts. SALN, which all public officials and
as would constitute dishonesty, was clearly absent. employees are mandated to file, are the means to achieve the policy of
accountability of all public officers and employees in the government. By the SALN,
The pivotal issue in this case, however, is whether or not Racho’s non-disclosure of the public are able to monitor movement in the fortune of a public official; it is a
the bank deposits in his SALN constitutes dishonesty. valid check and balance mechanism to verify undisclosed properties and wealth.

The Court views it in the affirmative. Complimentary to the above-mentioned provisions, Section 2 of R.A. 1379 41 states
that "whenever any public officer or employee has acquired during his incumbency
an amount of property which is manifestly out of proportion to his salary as such
Section 7 and Section 8 of Republic Act (R.A.) 301938 explain the nature and public officer or employee and to his other lawful income and the income from
importance of accomplishing a true, detailed and sworn SALN, thus: legitimately acquired property, said property shall be presumed prima facie to have
been unlawfully acquired."
Sec. 7. Statement of Assets and Liabilities. — Every public officer, within thirty days
after assuming office, and thereafter, on or before the fifteenth day of April By mandate of law, every public official or government employee is required to
following the close of every calendar year, as well as upon the expiration of his term make a complete disclosure of his assets, liabilities and net worth in order to
of office, or upon his resignation or separation from office, shall prepare and file suppress any questionable accumulation of wealth because the latter usually results
with the office of corresponding Department Head, or in the case of a Head from non-disclosure of such matters. Hence, a public official or employee who has
Department or chief of an independent office, with the Office of the President, a acquired money or property manifestly disproportionate to his salary or his other
true, detailed and sworn statement of the amounts and sources of his income, the lawful income shall be prima facie presumed to have illegally acquired it.
amounts of his personal and family expenses and the amount of income taxes paid
for the next preceding calendar year: Provided, That public officers assuming office
less than two months before the end of the calendar year, may file their first It should be understood that what the law seeks to curtail is "acquisition of
statement on or before the fifteenth day of April following the close of said calendar unexplained wealth." Where the source of the undisclosed wealth can be properly
year. accounted, then it is "explained wealth" which the law does not penalize.

Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth. — If in In this case, Racho not only failed to disclose his bank accounts containing
accordance with the provisions of Republic Act Numbered One Thousand Three substantial deposits but he also failed to satisfactorily explain the accumulation of
his wealth or even identify the sources of such accumulated wealth. The documents Administrative Cases in Civil Service treats dishonesty as a grave offense the
that Racho presented, like those purportedly showing that his brothers and nephew penalty of which is dismissal from the service at the first infraction. 54
were financially capable of sending or contributing large amounts of money for their
business,42 do not prove that they did contribute or remit money for their supposed
Indeed, an honest public servant will have no difficulty in gathering, collating and
joint business venture.1âwphi1 Equally, the Special Power of Attorney43 that was
presenting evidence that will prove his credibility, but a dishonest one will only
supposedly issued by Vieto, Dido and Henry Racho in favor of Racho on January 28,
provide shallow excuses in his explanations.
1993 to show their business plans, contained a glaringly inconsistent statement that
belies the authenticity of the document, to wit:
For these reasons, the Court is of the view that Pleyto v. Philippine National Police
(PNP)-Criminal Investigation and Detection Group (CIDG)55 which the CA cited as
1. To be the Trustee Attorney-in-fact of our investment in ANGELSONS LENDING
basis to exculpate Racho of dishonesty, is not applicable in this case. In
AND INVESTORS, INC. of whom we are the Stockholders/Investors as well as the
the Pleyto case, the Court recognized Pleyto’s candid admission of his failure to
NAL PAY PHONE SERVICES, which was registered by the DTI last April 30,
properly and completely fill out his SALN, his vigorous effort to clarify the entries
1999 in the name of NIETO RACHO’s wife of whom we are likewise investors.
and provide the necessary information and supporting documents to show how he
[emphasis supplied]
and his wife acquired their properties.56 The Court found substantial evidence that
Pleyto and his wife had lawful sources of income other than Pleyto’s salary as a
Definitely, a document that was allegedly executed in 1993 could not contain a government official which allowed them to purchase several real properties in their
statement referring to a future date "registered by the DTI last April 30, 1999." This names and travel abroad.57
certainly renders the intrinsic and extrinsic value of the SPA questionable.
Unfortunately for Racho, his situation is different. The Court, thus, holds that the CA
More important, the Joint Affidavits allegedly executed by Racho’s siblings and erred in finding him guilty of simple neglect of duty only.1âwphi1 As defined, simple
nephew to corroborate his story were later disowned and denied by his nephew, neglect of duty is the failure to give proper attention to a task expected from an
Henry, and brother, Vieto, as shown by their Counter-Affidavits.44Henry averred that employee resulting from either carelessness or indifference. 58 In this case, the
he was out of the country at the time of the alleged execution of the Joint Affidavit discrepancies in the statement of Racho’s assets are not the results of mere
on December 18, 2004 and he arrived in Manila only on September 16, 2005. Vieto, carelessness. On the contrary, there is substantial evidence pointing to a conclusion
on the other hand, denied having signed the Joint Affidavit. He disclosed that as a that Racho is guilty of dishonesty because of his unmistakable intent to cover up the
left-handed person, he pushes the pen instead of pulling it. He concluded that the true source of his questioned bank deposits.
signature on the Joint Affidavit was made by a right-handed person. 45 He likewise
included a copy of his passport containing his real signature for comparison. 46
It should be emphasized, however, that mere misdeclaration of the SALN does not
automatically amount to dishonesty. Only when the accumulated wealth becomes
Thus, the SPA and Joint Affidavits which should explain the sources of Racho’s manifestly disproportionate to the employee’s income or other sources of income
wealth are dubious and merit no consideration. and the public officer/employee fails to properly account or explain his other sources
of income, does he become susceptible to dishonesty because when a public officer
takes an oath or office, he or she binds himself or herself to faithfully perform the
Although Racho presented the SEC Certificate of Registration of Angelsons,47 the
duties of the office and use reasonable skill and diligence, and to act primarily for
business that he supposedly put up with his relatives, he showed no other
the benefit of the public. Thus, in the discharge of duties, a public officer is to use
document to confirm that the business is actually existing and operating. He
that prudence, caution and attention which careful persons use in the management
likewise tried to show that his wife built a business of her own but he did not bother
of their affairs.59
to explain how the business grew and merely presented a Certificate of Registration
of Business Name from the DTI.48 These documents, however, do not prove that
Racho had enough other sources of income to justify the said bank deposits. The Court has consistently reminded our public servants that public service
Ultimately, only ₱1,167,186.3349 representing his wife’s retirement benefits, was demands utmost integrity and discipline. A public servant must display at all times
properly accounted for. Even this money, however, was reduced by his loan payable the highest sense of honesty and integrity, for no less than the Constitution
of ₱1,000,000.00 as reflected in his 2000 SALN.50 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 and serve them with
utmost responsibility, integrity, loyalty and efficiency. 60
Dishonesty begins when an individual intentionally makes a false statement in any
material fact, or practicing or attempting to practice any deception or fraud in order
to secure his examination, registration, appointment or promotion. 51 It is WHEREFORE, the petition is GRANTED. The February 21, 2008 Decision and
understood to imply the disposition to lie, cheat, deceive, or defraud; November 20, 2008 Resolution of the Court of Appeals-Cebu are hereby REVERSED
untrustworthiness; lack of integrity; lack of honesty, probity or integrity in principle; and SET ASIDE. The administrative aspect of the April 1, 2005 Joint Order of the
lack of fairness and straightforwardness; disposition to defraud, deceive or Office of the Ombudsman-Visayas is hereby REINSTATED.
betray.52 It is a malevolent act that puts serious doubt upon one’s ability to perform
his duties with the integrity and uprightness demanded of a public officer or
G.R. No. 176058 March 23, 2011
employee.53 Section 52 (A)(1), Rule IV of the Revised Uniform Rules on
PRESIDENTIAL ANTI-GRAFT COMMISSION (PAGC) and THE OFFICE OF THE On March 11, 2005 Executive Secretary Eduardo R. Ermita ordered PAGC to conduct
PRESIDENT, Petitioners, a reinvestigation of Pleyto’s case.15 In compliance, PAGC queried the Department of
vs. SALVADOR A. PLEYTO, Respondent. Trade and Industry of Region III–Bulacan regarding the businesses registered in the
name of Miguela Pleyto, his wife. PAGC found that she operated the following
businesses: 1) R.S. Pawnshop, registered since May 19, 1993; 2) M. Pleyto Piggery
D E C I S I O N - ABAD, J.:
and Poultry Farm, registered since December 29, 1998; 3) R.S. Pawnshop–Pulong
Buhangin Branch, registered since July 24, 2000; and 4) RSP Laundry and Dry
This case is about the dismissal of a department undersecretary for failure to Cleaning, registered since July 24, 2001.16
declare in his Sworn Statement of Assets, Liabilities, and Net Worth (SALN) his
wife’s business interests and financial connections.
The PAGC also inquired with the DPWH regarding their Review and Compliance
procedure. The DPWH said that, they merely reminded their officials of the need for
The Facts and the Case them to comply with R.A. 6713 by filing their SALNs on time and that they had no
mechanism for reviewing or validating the entries in the SALNs of their more than
On December 19, 2002 the Presidential Anti-Graft Commission (PAGC) received an 19,000 permanent, casual and contractual employees.17
anonymous letter-complaint1from alleged employees of the Department of Public
Works and Highways (DPWH). The letter accused DPWH Undersecretary Salvador A. On February 21, 2006 the PAGC maintained its finding and recommendation
Pleyto of extortion, illicit affairs, and manipulation of DPWH projects. respecting Pleyto.18 On August 29, 2006 the OP denied Pleyto’s Motion for
Reconsideration.19 Pleyto raised the matter to the Court of Appeals (CA),20which on
In the course of the PAGC’s investigation, Pleyto submitted his 1999, 2 2000,3 and December 29, 2006 granted Pleyto’s petition and permanently enjoined the PAGC
20014 SALNs. PAGC examined these and observed that, while Pleyto said therein and the OP from implementing their decisions. 21 This prompted the latter offices to
that his wife was a businesswoman, he did not disclose her business interests and come to this Court on a petition for review.22
financial connections. Thus, on April 29, 2003 PAGC charged Pleyto before the Office
of the President (OP) for violation of Section 8 of Republic Act (R.A.) 6713, 5 also Issues Presented
known as the Code of Conduct and Ethical Standards for Public Officials and
Employees" and Section 7 of R.A. 30196 or "The Anti-Graft and Corrupt Practices
This case presents the following issues:
Act."7

1. Whether or not the CA erred in not finding Pleyto’s failure to indicate his spouse’s
Pleyto claimed that he and his wife had no business interests of any kind and for
business interests in his SALNs a violation of Section 8 of R.A. 6713.
this reason, he wrote "NONE" under the column "Business Interests and Financial
Connections" on his 1999 SALN and left the column blank in his 2000 and 2001
SALNs.8 Further, he attributed the mistake to the fact that his SALNs were merely 2. Whether or not the CA erred in finding that under the Review and Compliance
prepared by his wife’s bookkeeper.9 Procedure, Pleyto should have first been allowed to correct the error in his SALNs
before being charged for violation of R.A. 6713.
On July 10, 2003 PAGC found Pleyto guilty as charged and recommended to the OP
his dismissal with forfeiture of all government financial benefits and disqualification The Court’s Rulings
to re-enter government service.10
This is the second time Pleyto’s SALNs are before this Court. The first time was in
On January 29, 2004 the OP approved the recommendation.11 From this, Pleyto filed G.R. 169982, Pleyto v. Philippine National Police Criminal Investigation and
an Urgent Motion for Reconsideration12 claiming that: 1) he should first be allowed Detection Group (PNP-CIDG).23 In that case, the PNP-CIDG filed on July 28, 2003
to avail of the review and compliance procedure in Section 10 of R.A. 6713 13 before administrative charges against Pleyto with the Office of the Ombudsman for
he is administratively charged; 2) he indicated "NONE" in the column for financial violating, among others, Section 8 of R.A. 6713 in that he failed to disclose in his
and business interests because he and his wife had no business interests related to 2001 and 2002 SALNs his wife’s business interests and financial connections.
DPWH; and 3) his failure to indicate his wife’s business interests is not punishable
under R.A. 3019.
On June 28, 2004 the Office of the Ombudsman ordered Pleyto dismissed from the
service. He appealed the order to the CA but the latter dismissed his petition and
On March 2, 2004 PAGC filed its comment, 14 contending that Pleyto’s reliance on the the motion for reconsideration that he subsequently filed. Pleyto then assailed the
Review and Complicance Procedure was unavailing because the mechanism had not CA’s ruling before this Court raising, among others, the following issues: 1) whether
yet been established and, in any case, his SALN was a sworn statement, the or not Pleyto violated Section 8(a) of R.A. 6713; and 2) whether or not Pleyto’s
contents of which were beyond the corrective guidance of the DPWH Secretary. reliance on the Review and Compliance Procedure in the law was unwarranted.
Furthermore, his failure to declare his wife's business interests and financial
connections was highly irregular and was a form of dishonesty.
After threshing out the other issues, this Court found that Pleyto’s failure to disclose Since the facts and the issues in the two cases are identical, the judgment in G.R.
his wife’s business interests and financial connections constituted simple negligence, 169982, the first case, is conclusive upon this case.
not gross misconduct or dishonesty. Thus:
There is "conclusiveness of judgment" when any right, fact, or matter in issue,
Neither can petitioner’s failure to answer the question, "Do you have any directly adjudicated on the merits in a previous action by a competent court or
business interest and other financial connections including those of your necessarily involved in its determination, is conclusively settled by the judgment in
spouse and unmarried children living in your household?" be tantamount to such court and cannot again be litigated between the parties and their privies
gross misconduct or dishonesty. On the front page of petitioner’s 2002 whether or not the claim, demand, purpose, or subject matter of the two actions is
SALN, it is already clearly stated that his wife is a businesswoman, and it the same.25
can be logically deduced that she had business interests. Such a statement
of his wife’s occupation would be inconsistent with the intention to conceal
Thus, as in G.R. 169982, Pleyto’s failure to declare his wife’s business interest and
his and his wife’s business interests. That petitioner and/or his wife had
financial connections does not constitute dishonesty and grave misconduct but only
business interests is thus readily apparent on the face of the SALN; it is
simple negligence, warranting a penalty of forfeiture of the equivalent of six months
just that the missing particulars may be subject of an inquiry or
of his salary from his retirement benefits.26
investigation.

With regard to the issue concerning compliance with the Review and Compliance
An act done in good faith, which constitutes only an error of judgment and
Procedure provided in R.A. 6713, this Court already held in G.R. 169982 that such
for no ulterior motives and/or purposes, does not qualify as gross
procedure cannot limit the authority of the Ombudsman to conduct administrative
misconduct, and is merely simple negligence. Thus, at most, petitioner is
investigations. R.A. 6770, otherwise known as "The Ombudsman Act of 1989,"
guilty of negligence for having failed to ascertain that his SALN was
intended to vest in the Office of the Ombudsman full administrative disciplinary
accomplished properly, accurately, and in more detail.
authority.27 Here, however, it was the PAGC and the OP, respectively, that
conducted the investigation and meted out the penalty of dismissal against Pleyto.
Negligence is the omission of the diligence which is required by the nature Consequently, the ruling in G.R. 169982 in this respect cannot apply.
of the obligation and corresponds with the circumstances of the persons, of
the time and of the place. In the case of public officials, there is negligence
Actually, nowhere in R.A. 6713 does it say that the Review and Compliance
when there is a breach of duty or failure to perform the obligation, and
Procedure is a prerequisite to the filing of administrative charges for false
there is gross negligence when a breach of duty is flagrant and palpable.
declarations or concealments in one’s SALN. Thus:
Both Section 7 of the Anti-Graft and Corrupt Practices Act and Section 8 of
the Code of Conduct and Ethical Standards for Public Officials and
Employees require the accomplishment and submission of a true, detailed Section 10. Review and Compliance Procedure. - (a) The designated
and sworn statement of assets and liabilities. Petitioner was negligent for Committees of both Houses of the Congress shall establish procedures for
failing to comply with his duty to provide a detailed list of his assets and the review of statements to determine whether said statements which have
business interests in his SALN. He was also negligent in relying on the been submitted on time, are complete, and are in proper form. In the event
family bookkeeper/accountant to fill out his SALN and in signing the same a determination is made that a statement is not so filed, the appropriate
without checking or verifying the entries therein. Petitioner’s negligence, Committee shall so inform the reporting individual and direct him to take
though, is only simple and not gross, in the absence of bad faith or the the necessary corrective action.
intent to mislead or deceive on his part, and in consideration of the fact
that his SALNs actually disclose the full extent of his assets and the fact (b) In order to carry out their responsibilities under this Act, the
that he and his wife had other business interests. designated Committees of both Houses of Congress shall have the power
within their respective jurisdictions, to render any opinion interpreting this
Gross misconduct and dishonesty are serious charges which warrant the Act, in writing, to persons covered by this Act, subject in each instance to
removal or dismissal from service of the erring public officer or employee, the approval by affirmative vote of the majority of the particular House
together with the accessory penalties, such as cancellation of eligibility, concerned.
forfeiture of retirement benefits, and perpetual disqualification from
reemployment in government service. Hence, a finding that a public officer The individual to whom an opinion is rendered, and any other individual
or employee is administratively liable for such charges must be supported involved in a similar factual situation, and who, after issuance of the
by substantial evidence.24 opinion acts in good faith in accordance with it shall not be subject to any
sanction provided in this Act.
The above concerns Pleyto’s 2001 and 2002 SALN; the present case, on the other
hand, is about his 1999, 2000 and 2001 SALNs but his omissions are identical. (c) The heads of other offices shall perform the duties stated in subsections
While he said that his wife was a businesswoman, he also did not disclose her (a) and (b) hereof insofar as their respective offices are concerned, subject
business interests and financial connections in his 1999, 2000 and 2001 SALNs. to the approval of the Secretary of Justice, in the case of the Executive
Department and the Chief Justice of the Supreme Court, in the case of the Officials and employees are assumed to be accountable for the veracity of
Judicial Department. the entries considering that the SALNs are under oath. 301avvphi1

The provision that gives an impression that the Review and Compliance Procedure is Indeed, if the Committee knows the truth about the assets, liabilities, and net worth
a prerequisite to the filing of an administrative complaint is found in paragraph (b) of its department’s employees, there would be no need for the law to require the
of Section 10 which states that "The individual to whom an opinion is rendered, and latter to file their sworn SALNs yearly.
any other individual involved in a similar factual situation, and who, after the
issuance of the opinion acts in good faith in accordance with it shall not be subject
In this case, the PAGC succeeded in discovering the business interest of Pleyto’s
to any sanction provided in this Act." This provision must not, however, be read in
wife only after it subpoenaed from the Department of Trade and Industry—Bulacan
isolation.
certified copies of her business interests there. The Heads of Offices do not have the
means to compel production of documents in the hands of other government
Paragraph (b) concerns the power of the Review and Compliance Committee to agencies or third persons.
interpret the law governing SALNs. It authorizes the Committee to issue
interpretative opinions regarding the filing of SALNs. Officers and employees
The purpose of R.A. 6713 is "to promote a high standard of ethics in public service.
affected by such opinions "as well as" all who are similarly situated may be allowed
Public officials and employees shall at all times be accountable to the people and
to correct their SALNs according to that opinion. What the law prohibits is merely
shall discharge their duties with utmost responsibility, integrity, competence, and
the retroactive application of the committee’s opinions. In no way did the law say
loyalty, act with patriotism and justice, lead modest lives, and uphold public interest
that a public officer clearly violating R.A. 6713 must first be notified of any
over personal interest."31 The law expects public officials to be accountable to the
concealed or false information in his SALN and allowed to correct the same before
people in the matter of their integrity and competence. Thus, the Court cannot
he is administratively charged.
interpret the Review and Compliance Procedure as transferring such accountability
to the Committee.
Furthermore, the only concern of the Review and Compliance Procedure, as per
paragraph (a), is to determine whether the SALNs are complete and in proper form.
WHEREFORE, the Court GRANTS the petition but finds petitioner Salvador A.
This means that the SALN contains all the required data, i.e., the public official
Pleyto guilty only of simple negligence and imposes on him the penalty of forfeiture
answered all the questions and filled in all the blanks in his SALN form. If it finds
of the equivalent of six months of his salary from his retirement benefits.
that required information has been omitted, the appropriate Committee shall so
inform the official who prepared the SALN and direct him to make the necessary
correction. G.R. No. 97351 February 4, 1992
RAMON A. GONZALES, petitioner,
vs. HON. FRANCISCO I. CHAVEZ, in his capacity as Solicitor General,
The Court cannot accept the view that the review required of the Committee refers
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and COMMISSION
to the substance of what is stated in the SALN, i.e., the truth and accuracy of the
ON AUDIT, respondents.
answers stated in it, for the following reasons:

First. Assuring the truth and accuracy of the answers in the SALN is the function of
ROMERO, J.:
the filer’s oath28 that to the best of his knowledge and information, the data he
provides in it constitutes the true statements of his assets, liabilities, net worth,
business interests, and financial connections, including those of his spouse and In the instant petition for mandamus and prohibition with prayer for the issuance of
unmarried children below 18 years of age.29 Any falsity in the SALN makes him a temporary restraining order, petitioner submits for the Court's adjudication the
liable for falsification of public documents under Article 172 of the Revised Penal twin issues of whether or not the Solicitor General neglected his public duty by
Code. withdrawing as counsel for the Republic of the Philippines and the Presidential
Commission on Good Government (PCGG) in cases he had filed in court and
whether or not the PCGG acted without or in excess of jurisdiction in hiring private
Second. The law will not require the impossible, namely, that the Committee must
lawyers as a result of such withdrawal of appearance.
ascertain the truth of all the information that the public officer or employee stated
or failed to state in his SALNs and remind him of it. The DPWH affirms this fact in its
certification below: Petitioner Ramon A. Gonzales, as a citizen taxpayer, filed the petition as a class suit
under Section 12, Rule 3 of the Rules of Court on the ground that the subject
matters involved are of common and general interest to all Filipino citizens and
This is to certify that this Department issues a memorandum every year
taxpayers as they pertain to the enforcement of a public duty and the prevention of
reminding its officials and employees to submit their Statement of Assets
unlawful expenditure of public funds.
and Liabilities and Networth (SALN) in compliance with R.A. 6713.
Considering that it has approximately 19,000 permanent employees plus a
variable number of casual and contractual employees, the Department does According to the petitioner, the Solicitor General is the counsel for the Republic and
not have the resources to review or validate the entries in all the SALNs. the PCGG in thirty-three (33) cases before this Court, one hundred nine (109) cases
in the Sandiganbayan, one (1) case in the National Labor Relations Commission and treaty, law, ordinance or executive order for which Rule 3 Section 23 of the Rules of
another case in the Municipal Trial Court or a total of one hundred forty-four (144) Court 6 mandates his appearance, the Solicitor General is not authorized to appear
cases. 1 In December 1990, the Solicitor General withdrew as counsel in said cases therein after his withdrawal as counsel inasmuch as he himself is not a party-
through a pleading entitled "Withdrawal of Appearance with Reservation." 2 The litigant.
pleading states:
Furthermore, under Section 26, of Rule 138,7 the Solicitor General may not
The SOLICITOR GENERAL, to this Honorable Court, hereby unilaterally withdraw his appearance without the consent of the Republic or the
respectfully withdraws as counsel for plaintiff Presidential PCGG unless the court authorizes his withdrawal. Since there was no such court
Commission on Good Government (PCGG) in the above-captioned authority, the Solicitor General's withdrawal of appearance in said several cases is
case, with the reservation, however, conformably with Presidential null and void, as it constitutes an act against a mandatory law and hence, it may be
Decree No. 478, the provisions of Executive Order No. 292 as well attacked collaterally. Neither may the Solicitor General withdraw on the authority
as the decisional law of "Orbos v. Civil Service Commission, et of Orbos v. Civil Service Commission 8 wherein this Court held:
al.," (G.R. No. 92561, September 12, 1990), to submit his
comment/observation on incidents/matters pending with this
In the discharge of this task the Solicitor General must see to it that the best
Honorable Court, if called for by circumstances in the interest of
interest of the government is upheld within the limits set by law. . .
the government or if he is so required by the court.

There are cases where a government agency declines the services of the Solicitor
Makati, Metro Manila, December 3, 1990.
General or otherwise fails or refuses to forward the papers of the case to him for
appropriate action. . .
(Sgd.) FRANCISCO I.
CHAVEZ
The Court finds and so holds that this practice should be stopped. To repeat, the
IBP O.R. No. 289417-
Solicitor General is the lawyer of the government, any of its agents and officials in
2.06.90
any litigation, proceeding, investigation or matter requiring the services of a lawyer.
The exception is when such officials or agents are being charged criminally or are
The Solicitor General filed a substantially similar pleading in the cases where the being civilly sued for damages arising from a felony. His services cannot be lightly
Republic is a party. rejected, much less ignored by the officer or officials concerned.

As a result of such withdrawal of appearance, the PCGG hired forty (40) private Indeed, the assistance of the Solicitor General should be welcomed by the parties.
lawyers, nineteen (19) of whom are trial lawyers. They would receive a monthly He should be given full support and cooperation by any agency or official involved in
compensation of at least P10,000.00 plus appearance fee of P1,700.00 in actual trial litigation. He should be enabled to faithfully discharge his duties and responsibilities
and/or P500.00 if trial is postponed. 3 as the government advocate. And he should do no less for his clients. His burden of
assisting in the fair and just administration of justice is clear.
Petitioner contends that since the Solicitor General's withdrawal of appearance was
made without any reason, it implied that it was "within the absolute discretion" of This Court does not expect the Solicitor General to waver in the performance of his
said public official. Section 1 of Presidential Decree No. 478 and Section 35 of the duty. As a matter of fact, the Court appreciates the participation of the Solicitor
Administrative Code of 1987, however, mandatorily require the Solicitor General to General in many proceedings and his continued fealty to his assigned task. He
stand in the place of, and act for the Republic and the PCGG in court. Therefore, the should not therefore desist from appearing before this Court even in those cases he
Solicitor General has "no discretion to reject by withdrawing" as counsel for said finds his opinion inconsistent with the government or any of its agents he is
entities. expected to represent. The Court must be advised of his position just as well.
(Emphasis supplied)
Applying the ruling of this Court with respect to a fiscal in Sta. Rosa Mining
Co. v. Zabala, 4 the petitioner further states that: "Similarly, it is the duty of the The petitioner adds the following observations: 9

Solicitor General to appear for the Republic and the PCGG, hence regardless of his
personal convictions or opinions, he must proceed to discharge his duty (not
Therefore, this case militates more against the Solicitor General than in his favor.
withdraw, which is equivalent to refusal to prosecute), and let the court decide the
For if the government and its officials cannot reject the services of the Solicitor
merits of the case." 5
General, neither may the latter select the case he would represent by withdrawing
in some and retaining others. For unlike private lawyers who are bound to their
Moreover, petitioner avers that the Solicitor General cannot withdraw his clients by contract and, therefore, can reject cases offered to them, the Solicitor
appearance "with reservation" nor can he file his "comment/observation on the General and PCGG are wedded to each other by statute for better and for worse.
incident/matters" after such withdrawal because by ceasing to appear as counsel, And only a divorce, through the abolition of PCGG or resignation of the Solicitor
he loses his standing in court. Unless a case involves the constitutionality of a General, can untie the marital knot. Otherwise, the relationship should continue
sans PCGG demurring, and the Solicitor General withdrawing. Absent such to render assistance to the PCGG and whether or not such discretion is required by
resignation or abolition, the Solicitor General has to prosecute or defend the said the Commission is a matter of discretion on its part. Such provision does not
cases to the best of his ability. preclude the PCGG from engaging the services of private lawyers in the same way
that it is "clearly authorized to hire accountants, appraisers, researchers and other
professionals as it performs its functions." Since, upon the dictates of legal and
Hence, petitioner contends, the PCGG acted without or in excess of jurisdiction in
practical necessity, it has hired lawyers in the United States and in Switzerland, "it
hiring private lawyers as substitutes for the Solicitor General. Nowhere in Executive
may similarly hire Filipino lawyers in prosecuting its Philippine cases." 13
Order Nos. 1, 2 and 14 does it appear that the PCGG is authorized to hire said
lawyers. Since the Solicitor General is named by law as the lawyer for all
government agencies, the hiring of private lawyers by such agencies is impliedly The PCGG further asserts that the hiring of private lawyers is "not an ultra vires" act
excluded. Thus, by employing private lawyers, the PCGG is creating a public office but a "means by which (it) can effectively exercise its powers." It emphasizes the
and naming a public officer. However, in the absence of a law providing for the fact that it hired private lawyers "only after the Officer of the Solicitor General had
creation of the office of PCGG counsel, said hired lawyers are usurpers or intruders unilaterally withdrawn its appearance" for the PCGG in the various pending PCGG-
whose acts may be challenged in a collateral proceeding such as an action for instituted cases. Its own Litigation Division, which was constituted after the Solicitor
prohibition. General's withdrawal, is "sorely undermanned" but it has to contend with "affluent
and influential individuals and entities" who can "afford to hire skilled lawyers and
organize vast litigation networks." The PCGG tried to seek the assistance of the
Similarly, petitioner asserts, prohibition will lie against the Commission on Audit
Department of Justice and the Office of the Government Corporate Counsel but only
considering that any payment for the services of the PCGG-hired lawyers would
the former sent two additional prosecutors to handle its cases. 14
result in an unlawful expenditure of public funds. Stressing the need to preserve
the status quo until the determination of his rights as a citizen and taxpayer,
petitioner prays for the issuance of temporary restraining order. The PCGG clarifies that its powers are circumscribed not only by the executive
orders aforementioned but also by the inherent police power of the State. By hiring
private lawyers, it was merely trying to assist the President of the Philippines in
Acting on the petition, however, the Court required the respondent to file their
protecting the interest of the State. As such, it was acting as an alter ego of the
respective comments on the petition without granting the prayer for a temporary
President and therefore, it was the Executive which determined the necessity of
restraining order. 10
engaging the services of private prosecutors. Contending that "overwhelming
necessity" impelled it to hire private lawyers, the PCGG avers that inasmuch as the
In its comment, the Commission on Audit (COA) alleges that it has not allowed the Central Bank of the Philippines or the Philippine National Bank may engage the
disbursement of funds to pay for the services of PCGG-hired private lawyers. It services of private lawyers, with more reason may it be allowed to hire private
points out the fact that under COA Circular No. 89-299 dated March 21, 1989, the prosecutors after it was abandoned by the Solicitor General in the prosecution of the
COA has withdrawn the pre-audit of transactions entered into by national ill-gotten wealth cases. Consequently, "the Solicitor General's withdrawal of
government agencies pursuant to the constitutional provision that the COA has the assistance is tantamount to his tacit approval of the PCGG's hiring of private
exclusive authority to "define the scope of its audit and examination, to establish prosecutors in replacement of the solicitors handling the said civil cases." 15
the techniques and methods required therefor." 11 Neither has the COA allowed in
post-audit the disbursements of funds in payment of the services of the hired
The PCGG concludes that the reasonableness of the compensation for its hired
private lawyers. Moreover, under COA Circular No. 86-255 dated April 2, 1986, the
lawyers can hardly be questioned considering the expertise of said lawyers and the
hiring of private lawyers by government agencies and instrumentalities is prohibited
complexity of the cases they would be handling for the PCGG. Thus, the prayer for a
unless there is prior written conformity of the Solicitor General or the Government
preliminary injunction must be denied otherwise "the harm that would be done
Corporate Counsel, as the case may be, as well as the written concurrence of COA.
would be far greater than the perceived mischief petitioner seeks to prevent." 16

For its part, the PCGG, through Commissioner Maximo A. Maceren and lawyer Eliseo
Solicitor General Francisco I. Chavez inhibits himself from appearing in this case
B. Alampay, asserts in its comment that the scope of its authority under Executive
"considering that as far as the Office of the Solicitor General (OSG for brevity) is
Orders Nos. 1, 2 and 14 is broad enough to include the authority to engage the
concerned, the subject is a closed matter among the OSG, the PCGG and the
services of private lawyers, if necessary, for the fulfillment of its mandate. While
Courts." 17 In the comment filed by Assistant Solicitor General Edgardo L. Kilayko
such authority is not expressly stated in said executive orders, "it must be deemed
and Solicitor Iderlina P. Pagunuran, the OSG sets out at length the history of the
necessarily implied in and subsumed under the expressly enumerated powers of the
PCGG from its creation until the filing in the Sandiganbayan of thirty-nine (39)
Commission." 12
" prima facie cases" for ill-gotten wealth against former President Marcos and his
cronies. As suits and countersuits stemmed from the original thirty-nine (39) civil
The PCGG contends that its power under Section 1 of Executive Order No. 14 to "file cases, "the OSG had been put to a tremendous task and thus invariably in urgent
and prosecute all cases investigated by it" includes "the grant of discretion to the need of being consulted or informed by the PCGG of the facts and circumstances
Commission in determining the manner of filing and prosecuting its cases including material to the prosecution and progress not only of the original 39 civil cases, but
the matter of who, in particular, will control and supervise the prosecution of said also of all kinds of "incidents."
cases." The phrase "with the assistance of the Office of the Solicitor General and
other government agencies" simply means that the Solicitor General is called upon
Nonetheless, the OSG lawyers faced the challenge and the odds if only to live up to 92561, September 12, 1990, . . ." 19 For its part, the Sandiganbayan had also
their task as "the best lawyers there are in the country." The OSG further resolved that "the appearance of the Solicitor General is deemed withdrawn to be
explains: 18 substituted by the PCGG's legal panel." 20

On many a time, however a time, however, the lack of the above-mentioned The OSG maintains further that the instant petition does not present a case and
consultation or information resulted in situations that rendered the OSG unavoidably controversy as the petitioner himself does not even have a "court standing" and a
incapable of performing its functions and duties as Lawyer of the Government, not "litigable interest." All the petitioner seeks is an "advisory opinion." The OSG asserts
only as mandated upon it by law and as spelled out in Orbos v. CSC, G.R. No. that the "incident" (referring to the Solicitor General's withdrawal of appearance)
92561, September 12, 1990, but also in consonance with its office motto: "Integrity should be distinguished from that in JPC Enterprise, Inc. v. Court of Appeals, et
In Advocacy." al., 21 wherein the Assets Privatization Trust (APT) decided to appear for itself
because the law names the Minister of Justice only as its ex oficio legal adviser
while by itself it can file suits and institute proceedings and engage external
Once the OSG argued before the Sandiganbayan that an asset was under
expertise in the fulfillment of its tasks. However, since the APT has no personality of
sequestration, only to be informed by the adverse party waving a document before
its own, it should have appeared through the Solicitor General. The OSG argues that
the Sandiganbayan Justices that the sequestration had earlier been lifted, with a
said "adversarial incident" is not present in this case.
PCGG resolution, the document, to boot (Razon case). Then, again, OSG argued,
even before this Honorable Court, that an ill-gotten asset had "mysteriously"
disappeared, only to be informed by the Honorable Court, that a PCGG In his reply to the comments of the PCGG and the OSG, the petitioner insists that
Commissioner had earlier by resolution authorized the disposition of the asset although as between the Solicitor General and the PCGG, this case may have been
(COCOFED case). All the instances need not be enumerated here, as they are not rendered moot and academic, as between him on the one hand and the Solicitor
meat and substance, even as OSG is rendered thereby a laughing stock in its General and the PCGG on the other hand, a "real controversy" still exists and the
professionalism. issues raised herein have not ceased to exist either. Moreover, a judgment of
prohibition and mandamus would have a "practical legal effect and can be
enforced." 22
As to matters that are of great pith and moment, suffice it to say that the recent
Benedicto "compromise" agreement, not to mention the SMC-UCPB Compromise
settlement, is sub judice or under advisement not only of the Sandiganbayan but Citing Miguel v. Zulueta, 23 and Tañada v. Tuvera, 24 petitioner asserts that he has a
also of this Honorable Court in separate "incidents," and suffice it to state that the standing in court because where a question of public right is involved and the object
relationship, obtaining between the Government offices/agencies and the Office of of the mandamus is the enforcement of a public duty, the relator need not show any
the Solicitor General as counsel, is not at all like one that simply would obtain legal or special interest in the result of the proceeding. It is sufficient that, as a
between private client and private lawyer in private practice, although constant citizen, he is interested in having the laws executed and the duty in question
consultation and advice are sine qua non in both types of relationship. The enforced.
relationship is rather one, created as it is by law, where imposed upon OSG is the
responsibility to present to the courts the position that will uphold the best interests
The petitioner rebuts the PCGG's contention that its power to hire private lawyers
of the People, the Government and the State, albeit the same may run counter to
may be implied from its expressly enumerated powers. He asserts that since P.D.
its client's position or route of action. At any rate, the PCGG through nationwide TV
No. 478 mandates that "the Solicitor General as law office of the government with
broadcast and print media, publicly announced that PCGG had disposed with or
the duty to appear for the PCGG," no implication from the express powers of (the)
otherwise did not need the legal services of the Lawyer of the Government, and
PCGG can stand against the language of P.D. No. 478. On the other hand, the law
thus OSG descended, not the unmerited remark of having "abandoned" the ill-
regarding the PCGG and that regarding the Solicitor General should be
gotten wealth cases, but the time-honored principle of impossibilium nulla obligatio
harmonized. 25
est, i.e., there is no obligation to do impossible things (Lim Co Chui v. Paredes, 47
Phil. 463), without in any way casting any aspersion on the moral integrity of any
Commissioner or PCGG official, as made clear by the Solicitor General to the The Court considers these pleadings sufficient bases for resolving this petition and,
President in a meeting with PCGG. on account of the importance and imperativeness of the issues raised herein, the
filing of memoranda by the parties is dispensed with.
Hence, in the light of all the foregoing circumstances, at rock-bottom precisely so as
not to prejudice "the interest of the Government" (Orbos), the Solicitor General We shall, first of all, confront a preliminary issue interposed by the OSG — whether
withdrew as counsel for PCGG in all said cases by filing a notice of "Withdrawal of or not this case has been rendered moot and academic by this Court's resolution
Appearance with Reservation." granting the Solicitor General's motion to withdraw appearance as counsel in the
several cases pending herein. It should be clarified that the resolution had to be
issued with the national interest in mind. Time was of the essence and any hedging
In arguing that the instant petition should be dismissed, the OSG contends that this
on the part of the PCGG and/or its counsel could, not merely set back but prejudice,
case has become moot and academic as this very Court had resolved to allow the
the government's all-out efforts to recover ill-gotten wealth.
withdrawal of appearance of the Solicitor General in all the cases pending before it
"with reservation, conformably with PD No. 478, Executive Order No. 292, as well
as the doctrine laid down in 'Orbos v. Civil Service Commission, et al.,' G.R. No.
Notwithstanding the ostensible mootness of the issues raised in a case, this Court Six months later, a law was passed reorganizing the Office of the Attorney-General
has never shirked from its symbolic function of educating bench and bar by and providing for the appointment of the said official and the Solicitor General by
formulating guiding and controlling principles, precepts, doctrines and rules. 26 More the Civil Governor and for an increase in their salaries. Their duties remained
so, if the case is of such magnitude that certain legal ambiguities must be basically the same. 30
unravelled for the protection of the national interest. 27
In the meantime, Act No. 222 was passed on September 5, 1901 providing for the
To allow the transcendental issue of whether the OSG may withdraw its appearance organization of, among others, the Department of Finance and Justice which
in a cluster of cases of national import to pass into legal limbo simply because it has embraced within its executive control the Bureau of Justice. 31
been "mooted" would be a clear case of misguided judicial self-restraint. This Court
has assiduously taken every opportunity to lay down brick by brick the doctrinal
Under Act No. 2711, otherwise known as the Administrative Code of 1917, the
infrastructure of our legal system. Certainly, this is no time for a display of judicial
Bureau of Justice is specifically constituted "the law office of the Government of the
timorousness of the kind which the Solicitor General is untimely exhibiting now.
Philippine Islands and by it shall be performed duties requiring the services of a law
officer." 32 Its chief officials are the Attorney-General and his assistant, the Solicitor
Accordingly, we confront the issue conscious of their far-reaching implications, not General. 33
alone on the instant case but on future ones as well, which the OSG will surely be
called upon to handle again and again.
As principal law officer of the Government, the Attorney-General shall have
authority to act for and represent the Government of the Philippine Islands, its
The resolution of the first issue laid down at the beginning of this ponencia hinges officers, and agents in any official investigation, proceeding, or matter requiring the
on whether or not the Solicitor General may be compelled by mandamus to appear services of a lawyer. 34
for the Republic and the PCGG. This issue is best resolved by a close scrutiny of the
nature and extent of the power and authority lodged by law on the Solicitor
In 1932, the office of the Attorney-General was phased out and his functions were
General.
assumed by the Secretary of Justice. 35 Subsequently, the Bureau of Justice came to
be known as the Office of the Solicitor General, 36 headed by the Solicitor General. 37
At this juncture, a flashback on the statutory origins of the Office of the Solicitor
General is in order. Incorporated in Act No. 136 dated June 11,
Parenthetically, these institutions were patterned after the Office of Attorney-
1901 28 providing for the organization of courts in the Philippine Islands was Chapter
General, created by the First U.S. Congress in the Judiciary Act of 1789 which called
III entitled "The Attorney General." Section 40 states:
for a "meet person, learned in the law, to act as Attorney-General for the
U.S." 38 When the Department of Justice was established in 1870, the position of
There shall be an Attorney-General for the Philippine Islands, to be appointed by the Solicitor-General was created as an assistant to the Attorney-General. 39 Over a
Philippine Commission . . . century later, their respective positions and functions remain the same. The
Attorney-General of the United States, appointed by the President with the advice
and consent of the Senate, is now the head of the Department of Justice. 40 In the
The catalog of his duties includes the following:
same manner, a Solicitor General, learned in the law, is appointed to assist the
Attorney-General in the performance of his duties. 41
He shall prosecute or defend therein all causes, civil and criminal, to which the
Government of the Philippine Islands, or any officer thereof, in his official capacity,
In contrast, the Solicitor-General of the Philippines, emerging from the shadow of
is a party . . . 29
the Attorney-General and later, of the Secretary of Justice, has come to his own. On
July 20, 1948, Republic Act. No. 335, amending Section 1659 of the Administrative
Section 41 further provides: Code, bestowed on him the rank of Undersecretary of a Department. Subsequently,
a series of amendatory laws designed to enlarge the complement of the Office of
There shall be an officer learned in the law to assist the Attorney-General in the the Solicitor General was enacted 42 until on June 4, 1974, by virtue of Presidential
performance of all his duties, called the Solicitor-General who shall be appointed by Decree No. 478, its pivotal role in the government became clearly defined and
the Commission . . . In case of a vacancy in the office of Attorney-General, or of his delineated.
absence or disability, the Solicitor-General shall have power to exercise the duties of
that office. Under the supervision of the Attorney-General, it shall be the especial During the martial law years, President Ferdinand E. Marcos leaned heavily on his
duty of the Solicitor-General to conduct and argue suits and appeals in the Supreme Solicitor General to provide legal underpinnings of his official acts. Reflective of the
Court, in which the Philippine Government is interested, and the Attorney-General tremendously enhanced power of the official and the position was Executive Order
may, whenever he deems it for the interest of the Philippine Government, either in No. 454 enacted on September 23, 1975, conferring upon the Solicitor General the
person conduct and argue any case in any court of the Philippine Islands in which rank of a member of the Cabinet "with all the rights, honors and privileges
the Philippine Government is interested or may direct the Solicitor General to do so. pertaining to the position." Said executive order was superseded by Executive Order
(Emphasis supplied) No. 473 dated August 12, 1976 "making the Solicitor General a member of the
Cabinet." These executive orders were capped by Executive Order No. 552 dated
August 14, 1979 elevating the OSG into a Ministry with the same powers and (10) Represent, upon the instructions of the President of the Republic of the
functions defined in P.D. Nos. 478 and 1347. Philippines in international litigations, negotiations or conferences where the legal
position of the Republic must be defended or presented.
P.D. 478 became, as it were, the Magna Carta of the Office of the Solicitor General.
After the change of administration, or on July 25, 1987, President Corazon C. (11) Act for the Republic and/or the people before any court, tribunal, body or
Aquino signed into law Executive Order No. 292 instituting the Administrative Code commission in any matter, action or proceeding which, in his opinion , affects the
of 1987. Under Book IV, Title III, Chapter 12 thereof, the Office of the Solicitor welfare of the people as the ends of justice may require; and
General is described as an "independent and autonomous office attached to the
Department of Justice." Headed by the Solicitor General, "who is the principal law
(12) Perform such other functions as may be provided by law. 44
officer and legal defender of the Government," the Office shall have a Legal Staff
composed of fifteen (15) Assistant Solicitors General and such number of Solicitors
and Trial Attorneys "as may be necessary to operate the Office which shall divided In thus tracing the origins of the Office of the Solicitor General to gain a clear
into fifteen (15) divisions. 43 Among its powers and functions are the following which understanding of the nature of the functions and extent of the powers of the
are relevant to the issues:Sec. 35. Powers and Functions. — The office of the Solicitor General himself, it is evident that a policy decision was made in the early
Solicitor General shall represent the Government of the Philippines, its agencies and beginnings to consolidate in one official the discharge of legal functions and services
instrumentalities and its officials and agents in any litigation, proceeding, in the government. These took the form mostly of representing the Government in
investigation or matter requiring the services of a lawyer. When authorized by the various legal proceedings.
President or head of the office concerned, it shall also represent government owned
or controlled corporations. The Office of the Solicitor General shall constitute the The rationale behind this step is not difficult to comprehend. Sound government
law office of the Government, and, as such, shall discharge duties requiring the operations require consistency in legal policies and practices among the
services of a lawyer. (Emphasis supplied.) It shall have the following specific powers instrumentalities of the State. Moreover, an official learned in the law and skilled in
and functions: advocacy could best plan and coordinate the strategies and moves of the legal
battles of the different arms of the government. Surely, the economy factor, too,
(1) Represent the Government in the Supreme Court and the Court of Appeals in all must have weighed heavily in arriving at such a decision.
criminal proceedings; represent the Government and its officers in the Supreme
Court, the Court of Appeals, and all other courts or tribunals in all civil actions and It is patent that the intent of the lawmaker was to give the designated official, the
special proceedings in which the Government or any officer thereof in his official Solicitor General, in this case, the unequivocal mandate to appear for the
capacity is a party. government in legal proceedings. Spread out in the laws creating the office is the
discernible intent which may be gathered from the term "shall," which is invariably
(2) Investigate, initiate court action, or in any manner proceed against any person, employed, from Act No. 136 (1901) to the more recent Executive Order No. 292
corporation or firm for the enforcement of any contract, bond, guarantee, (1987).
mortgage, pledge or other collateral executed in favor of the Government. Where
proceedings are to be conducted outside of the Philippines, the Solicitor General Under the principles of statutory construction, so familiar even to law students, the
may employ counsel to assist in the discharge of the aforementioned term "shall" is nothing if not mandatory.
responsibilities.

In common or ordinary parlance and in its ordinary significance, the term "shall" is a
(8) Deputize legal officers of government departments, bureaus, agencies and word of command, and one which has always and which must be given a
offices to assist the Solicitor General and appear or represent the Government in compulsory meaning, and it is generally imperative or mandatory. It has the
cases involving their respective offices, brought before the courts and exercise invariable significance of operating to impose a duty which may be enforced,
supervision and control over such legal Officers with respect to such cases. particularly if public policy is in favor of this meaning or when public interest is
involved, or where the public or persons have rights which ought to be exercised or
(9) Call on any department, bureau, office, agency or instrumentality of the enforced, unless a contrary intent appears. 45
Government for such service, assistance and cooperation as may be necessary in
fulfilling its function and responsibilities and for this purpose enlist the services of The presumption is that the word "shall" in a statute is used in an imperative, and
any government official or employees in the pursuit of his tasks. not in a directory, sense. If a different interpretations if sought, it must rest upon
something in the character of the legislation or in the context which will justify a
Departments, bureaus, agencies, offices, instrumentalities and corporations to different meaning. 46
whom the Office of the Solicitor General renders legal services are authorized to
disburse funds from their sundry operating and other funds for the latter Office. For Exactly what is the signification of the mandate for the OSG "to represent the
this purpose, the Solicitor General and his staff are specifically authorized to receive Government of the Philippines, its agencies and instrumentalities and its officials
allowances as may be provided by the Government offices, instrumentalities and and agents in any litigation, proceeding, investigations or matter requiring the
corporations concerned, in addition to their regular compensation. services of the lawyer?"
To "represent" is standing in place, supplying the place, or performing the duties or party. 53 Abandonment of a case, however, does not mean that the Solicitor General
exercising the rights, of the party represented; to speak or act with authority on may just drop it without any legal and valid reason for the discretion given him is
behalf of another; to conduct and control proceedings in court on behalf of not unlimited. 54 Its exercise must be, not only within the parameters set by law but
another.47 with the best interest of the State as the ultimate goal. Such are reflected in its
policies, thus:
The decision of this Court as early as 1910 with respect to the duties of Attorney-
General well applies to the Solicitor General under the facts of the present case. The The discretionary power of the attorney for the United States in determining
Court then declared: whether a prosecution shall be commenced or maintained may well depend upon
matters of policy wholly apart from any question of probable cause. Although as
member of the bar, the Attorney for the United States is an officer of the court, he
In this jurisdiction, it is the duty of the Attorney General "to perform the duties
is nevertheless an executive official of the Government, and it is as an officer of the
imposed upon him by law" and "he shall prosecute all causes, civil and criminal, to
executive department that he exercises a discretion as to whether or not there shall
which the Government of the Philippines Islands, or any officer thereof, in his official
be a prosecution in a particular case. . . . 55
capacity, is a party . . ." 48

The first executive order ever issued by President Aquino on February 28, 1986,
Being a public officer, the Solicitor General is "invested with some portion of the
created the PCGG. It announced the government's policy of recovering all ill-gotten
sovereign functions of the government, to be exercised by him for the benefit of the
wealth amassed by former President Marcos, his immediate family, relatives and
public." 49 Another role of the Solicitor General is an officer of the Court, in which
close associates. It charged the PCGG with the "task of assisting the President" in
case he is called upon "to share in the task and responsibility of dispensing justice
regard to the recovery of all ill-gotten wealth, investigation of "such cases of graft
and resolving disputes;" therefore, he may be enjoined in the same manner that a
and corruption as the President may assign" to it, and the adoption of safeguards to
special prosecutor was sought enjoined by this Court from committing any act which
ensure that corruption may not be again committed with impunity.
may tend to "obstruct, pervert or impede and degrade the administration of
justice." 50
This issuance was followed by Executive Order No. 2 dated March 12, 1986 freezing
all assets and properties of Marcos, his family and cronies; prohibiting their transfer,
In one case where a fiscal manifested before the trial court that he would not
conveyance, encumbrance or concealment, and requiring all persons in and outside
prosecute the case in court for insufficiency of evidence after his motion to dismiss
of the Philippines who are in possession of said properties to make full disclosure of
had been denied, this Court granted a petition for mandamus to compel him to
the same to the PCGG.
prosecute the case. We declared:

On April 11, 1986, the PCGG promulgated its Rules and Regulations. A pertinent
Notwithstanding his personal convictions or opinions, the fiscal must proceed with
provision states:
his duty of presenting evidence to the Court to enable the court to arrive at its own
independent judgment as to the culpability of the accused. The fiscal should not
shirk from his responsibility much less leave the prosecution of the case at the Sec. 10. Findings of the Commission. — Based on the evidence adduced, the
hands of a private prosecutor . . . In the trial of criminal cases, it is the duty of the Commission shall determine whether there is reasonable ground to believe that the
public prosecutor to appear for the government since an offense is an outrage to asset, property or business enterprise in question constitute ill-gotten wealth as
the sovereignty of the State . . . This is so because "the prosecuting officer is the described in Executive Orders Nos. 1 and 2. In the event of an affirmative finding,
representative not of an ordinary party to a controversy but of a sovereignty where the Commission shall certify the case to the Solicitor General for appropriate action
obligation to govern impartially is as compelling as its obligations to govern at all; in accordance with law. Business, properties, funds, and other assets found to be
and whose interest, therefore, in criminal prosecution is not that it shall win a case, lawfully acquired shall be immediately released and the writ of sequestration, hold
but that justice shall be done. As such, he is in a peculiar and very definite sense or freeze orders lifted accordingly. (Emphasis supplied)
the servant of the law, the two-fold aim of which is that guilt shall not escape or
innocence suffer. 51
Thereafter, or on May 7, 1986, Executive Order No. 14 defining the jurisdiction over
cases involving such ill-gotten wealth was issued, it contains the following
Undoubtedly, the above arguments apply equally well to the Solicitor General who is provisions:
sought to be compelled to appear before the different courts to ensure that the case
of the Republic of the Philippines against those who illegally amassed wealth at the
Sec. 1. Any provision of law to the contrary notwithstanding, the Presidential
expense the people maybe made to account for their misdeeds and return said
Commission on Good Government, with the assistance of the Solicitor General and
wealth.
other government agencies, is hereby empowered to file and prosecute all cases
investigated by it under Executive Order No. 1, dated February 28, 1986, and
Like the Attorney-General of the United States who has absolute discretion in Executive Order No. 2, dated March 12, 1986, as may be warranted by its finding.
choosing whether to prosecute or not to prosecute or to abandon a prosecution
already started, 52 our own Solicitor General may even dismiss, abandon,
discontinue or compromise suit either with or without stipulations with other
Sec. 2. The Presidential Commission on Good Government shall file all such cases, Communications Secretary Orbos. At the risk of being repetitious, the parties were
whether civil or criminal, with the Sandiganbayan, which shall have exclusive and reminded that under Section 1 of Presidential Decree No. 478 —
original jurisdiction thereof.
The Office of the Solicitor General shall represent the Government of the Philippines,
Sec. 3. Civil suits for restitution, reparation of damages, or indemnification for its agencies and instrumentalities and its officials and agents in any litigation,
consequential damages, forfeiture proceedings provided for under Republic Act No. proceeding, investigation, or matter requiring the services of a lawyer. (Emphasis
1379, or any other civil actions under the Civil Code or other existing laws, in supplied)
connection with Executive Order No. 2 dated March 12, 1986, may be filed
separately from and proceed independently of any criminal proceedings and may be
This Court clarified that even when "confronted with a situation where one
proved by a preponderance of evidence. (Emphasis supplied).
government office takes an adverse position against another government agency,
as in this case, the Solicitor General should not refrain from performing his duty as
All these legal provisions ineluctably lead to no other conclusion but that under the the lawyer of the government. It is incumbent upon him to present to the court
law of its creation and the complementary Rules, the law office of the PCGG, as it is what he considers would legally uphold the best interest of the government
for the rest of the Government, is the Office of the Solicitor General. Although the although it may run counter to a client's position. In such an instance, the
PCGG is "empowered to file and prosecute all cases investigated by it" under government office adversely affected by the position taken by the Solicitor General,
Executive Orders No. 1 and 2, it does not thereby oust the Office of the Solicitor if it still believes in the merit of its case may appear in its own behalf through its
General from its lawful mandate to represent the Government and its agencies in legal personnel or representative."
any litigation, proceeding, investigation or matter requiring the services of a lawyer.
Moreover, such express grant of power to PCGG does not imply that it may abdicate
The Court further pointed out that it is not entirely impossible that the Office of the
such power and turn over the prosecution of the cases to private lawyers whom it
Solicitor General may take a position adverse to his clients like the Civil Service
may decide to employ. In those instances where proceedings are to be conducted
Commission and the National Labor Relations Commission, among others, and even
outside of the Philippines, the Solicitor General, continuing to discharge his duties,
the People of the Philippines. In such instances, however, it is not proper for the
may employ counsel to assist him, 56 particularly because he may not be licensed to
Solicitor General to simply decline to handle the case or arbitrarily withdraw
appear before the courts in a foreign jurisdiction.
therefrom. The Court enjoins him to "nevertheless manifest his opinion and
recommendations to the Court which is an invaluable aid in the disposition of the
Under its own Rules and Regulations, specifically the provision aforequoted, the case." 58
PCGG certifies to the Solicitor General the cases for which it had found reasonable
ground to believe that certain assets and properties are ill-gotten under Executive
However, in those cases where a government agency declines the services of the
Order Nos. 1 and 2. The Solicitor General shall then proceed "in accordance with
Solicitor General or otherwise fails or refuses to forward the papers of the case to
law."
him for appropriate action, the Court categorically held that ". . . this practice
should be estopped." 59 By the same token, the Solicitor General should not decline
Upon receipt of a case certified to him, the Solicitor General exercises his discretion to appear in court to represent a government agency without just and valid reason,
in the management of the case. He may start the prosecution of the case by filing especially the PCGG which is under the Office of the President, he being a part of
the appropriate action in court or he may opt not to file the case at all. He may do the Executive Department.
everything within his legal authority but always conformably with the national
interest and the policy of the government on the matter at hand.
In the case at bar, the reason advanced by the Solicitor General for his motion to
withdraw his appearance as lawyer for the PCGG is that he has been, more than
After filing a case, he may even move for its dismissal in the event that, along the once embarrassed in court and thereby made "a laughing stock in its (his)
way, he realizes that prosecuting the case would not serve the government's professionalism." Examples are when the OSG lawyers betrayed ignorance in open
purposes. In other words, because he was appointed to the position on account of court of certain moves taken by the PCGG, such as the lifting of a sequestration of
his qualification as a man "learned in the law," the Solicitor General is obligated to an asset or when it was under the impression that an asset had mysteriously
perform his functions and to perform them well. He may not, however, abdicate his disappeared only to be informed that "a PCGG Commissioner had earlier by
function through an arbitrary exercise of his discretion. We find that a withdrawal of resolution authorized the disposition of said asset."
appearance on flimsy or petty grounds is tantamount to withdrawing on no grounds
at all and to a dereliction of duty.
The last straw, as it were, was the public announcement through media made by
the PCGG that it had "dispensed with or otherwise did not need the legal services of
The Office of the Solicitor General repeatedly invoked the ruling in Orbos v. Civil the lawyer of the government." 60 It is evident that the withdrawal of the Solicitor
Service Commission, 57 which hardly constitutes authority to uphold its position with General was precipitated by institutional pique, the lawyers concerned having
respect to the withdrawal of the Solicitor General in the instant case. On the allowed their collective pride to prevail over their sense of duty in protecting and
contrary, in said case, this Court struck down private respondent's motion to upholding the public interest.
disqualify the OSG from appearing for petitioner Department of Transportation and
One wistfully wishes that the OSG could have been as zealous in representing the Indeed, in the final analysis, it is the Filipino people as a collectivity that constitutes
PCGG as it was in appearing for the head of their office, the Solicitor General, in a the Republic of the Philippines. Thus, the distinguished client of the OSG is the
civil suit for damages filed against him in a Regional Trial Court arising from people themselves of which the individual lawyers in said office are a part.
allegedly defamatory remarks uttered by him.
In order to cushion the impact of his untimely withdrawal of appearance which
Such enthusiasm, according to this Court, was misplaced. For Section 1 of might adversely affect the case, the Solicitor General has offered "to submit his
Presidential Decree No. 478 which authorizes the OSG to represent the Government comment/observation on incidents/matters pending with this Honorable Court, if
of the Philippines, its agencies and instrumentalities and its officials and agents in called for by circumstances in the interest of the government or if he is so required
any litigation, admits of an exception, and that it is, it stops short of representing "a by the court." However, as correctly pointed out by the petitioner, while the Solicitor
public official at any stage of a criminal case or in a civil suit for damages arising General may be free to express his views and comments before the Court in
from a felony."61 connection with a case he is handling, he may not do so anymore after he has
formally expressed his refusal to appear therein. For by then, he has lost his
standing in court. Unless his views are sought by the court, the Solicitor General
In instances such as the above, the OSG can, with reason, withdraw its
may not voluntarily appear in behalf of his client after his withdrawal from the case;
representation even if it has already entered its appearance. But the Solicitor
otherwise, such reappearance would constitute a blatant disregard for court rules
General, as the officially-mandated lawyer of the government, is not empowered to
and procedure, and that, on the part of one who is presumed to be "learned in the
take a similar step on the basis of a petty reason like embarrassment, as that to
law."
which the individual lawyers assigned to appear for their office were subjected. Had
they not been too preoccupied with their personal feelings, they could have checked
themselves in time. For a sense of professional responsibility and proper decorum In the face of such express refusal on the part of the Solicitor General to continue
would dictate that they distinguish between the institution which, from the very his appearance as counsel of the PCGG in the cases to recover the ill-gotten wealth
beginning, had been constituted as the law office of the Government and of the Filipino people from the Marcoses and their cronies, the PCGG has had to
the individuals through whom its powers and duties are exercised. No emotions, of employ the service of a group of private attorneys lest the national interest be
whatever kind and degree, should be allowed to becloud their high sense of duty prejudiced. Were this Court to allow such action to remain unchallenged, this could
and commitment to country and people. well signal the laying down of the novel and unprecedented doctrine that the
representation by the Solicitor General of the Government enunciated by law is,
after all, not mandatory but merely directory. Worse, that this option may be
The OSG itself admitted refraining from citing other incidents as additional bases for
exercised on less than meritorious grounds; not on substance but on whimsy,
the Solicitor General's withdrawal "as they are not of meat and substance" but
depending on the all too human frailties of the lawyers in the OSG assigned to a
apparently, their overwhelming sense of shame overcame them as the OSG was
particular case. Under such circumstances, it were better to repeal the law than
"rendered thereby a laughing stock in its professionalism." 62
leave the various government agencies, all dependent on the OSG for legal
representation, in a condition of suspenseful uncertainty. With every looming legal
Now a word on the incidents that allegedly caused humiliation to the OSG lawyers, battle, they will be speculating whether they can rely on the Solicitor General to
thus provoking the Solicitor General into withdrawing his appearance as counsel for defend the Government's interest or whether they shall have to depend on their
the PCGG. No litigation can be assured of success if counsel does not enjoy the own "in-house" resources for legal assistance.
confidence of his client. This is manifested by, among other things, holding regular,
constant and untrammeled consultation with each other. Who can say but that if the
The Court is firmly convinced that, considering the spirit and the letter of the law,
communication lines had been kept open between the OSG and PCGG, no surprises
there can be no other logical interpretation of Sec. 35 of the Administrative Code
would have been sprung on the former by the latter in open court?
than that it is, indeed, mandatory upon the OSG to "represent the Government of
the Philippines, its agencies and instrumentalities and its officials and agents in any
Petitioner's claim that the Solicitor General could not withdraw his appearance as litigation, proceeding, investigation or matter requiring the services of a lawyer."
lawyer of PCGG inasmuch as he had neither the consent of his client nor the
authority from the court, applying the pertinent provision of the Rules of Court, is
Sound management policies require that the government's approach to legal
not well-taken. Here is no ordinary lawyer-client relationship. Let it be remembered
problems and policies formulated on legal issues be harmonized and coordinated by
that the client is no less than the Republic of the Philippines in whom the plenum of
a specific agency. The government owes it to its officials and their respective
sovereignty resides. Whether regarded as an abstract entity or an ideal person, it is
offices, the political units at different levels, the public and the various sectors, local
to state the obvious that it can only act through the instrumentality of the
and international, that have dealings with it, to assure them of a degree of certitude
government which, according to the Administrative Code of 1987, refers to the
and predictability in matters of legal import.
"corporate governmental entity through which the functions of government are
exercised throughout the Philippines . . ." 63 And the OSG is, by law, constituted the
law office of the Government whose specific powers and functions include that of From the historical and statutory perspectives detailed earlier in this ponencia, it is
representing the Republic and/or the people before any court in any action which beyond cavil that it is the Solicitor General who has been conferred the singular
affects the welfare of the people as the ends of justice may require. honor and privilege of being the "principal law officer and legal defender of the
Government." One would be hard put to name a single legal group or law firm that
can match the expertise, experience, resources, staff and prestige of the OSG which SHARP INTERNATIONAL MARKETING, petitioner,
were painstakingly built up for almost a century. vs. HON. COURT OF APPEALS (14th Division), LAND BANK OF THE
PHILIPPINES and DEOGRACIAS VISTAN,respondents.
Moreover, endowed with a broad perspective that spans the legal interests of
virtually the entire government officialdom, the OSG may be expected to transcend CRUZ, J.:
the parochial concerns of a particular client agency and instead, promote and
protect the public weal. Given such objectivity, it can discern, metaphorically
This case involves the aborted sale of the Garchitorena estate to the Government in
speaking, the panoply that is the forest and not just the individual trees. Not merely
connection with the Comprehensive Agrarian Reform Program. This opinion is not
will it strive for a legal victory circumscribed by the narrow interests of the client
intended as a pre-judgment of the informations that have been filed with the
office or official, but as well, the vast concerns of the sovereign which it is
Sandiganbayan for alleged irregularities in the negotiation of the said transaction.
committed to serve.
We are concerned here only with the demand of the petitioner that the private
respondents sign the contract of sale and thus give effect thereto as a perfected
In light of the foregoing, the Solicitor General's withdrawal of his appearance on agreement. For this purpose, we shall determine only if the challenged decision of
behalf of the PCGG was beyond the scope of his authority in the management of a the Court of Appeals denying that demand should be affirmed or reversed.
case. As a public official, it is his sworn duty to provide legal services to the
Government, particularly to represent it in litigations. And such duty may be
The subject-matter of the proposed sale is a vast estate consisting of eight parcels
enjoined upon him by the writ of mandamus. And such duty may be enjoined upon
of land situated in the municipality of Garchitorena in Camarines Norte and with an
him by the writ of mandamus. Such order, however, should not be construed to
area of 1,887.819 hectares. The record shows that on April 27, 1988, United
mean that his discretion in the handling of his cases may be interfered with. The
Coconut Planters Bank (UCPB) entered into a Contract to Sell the property to Sharp
Court is not compelling him to act in a particular way. 64 Rather, the Court is
International Marketing, the agreement to be converted into a Deed of Absolute
directing him to prevent a failure of justice 65resulting from his abandonment in
Sale upon payment by the latter of the full purchase price of P3,183,333.33. On
midstream of the cause of the PCGG and the Republic and ultimately, of the Filipino
May 14, 1988, even before it had acquired the land, the petitioner, through its
people.
President Alex Lina, offered to sell it to the Government for P56,000,000.00, (later
increased to P65,000,000.00). Although the land was still registered in the name of
In view of the foregoing, there need be no proof adduced that the petitioner has a UCPB, the offer was processed by various government agencies during the months
personal interest in the case, as his petition is anchored on the right of the people, of June to November, 1988, resulting in the recommendation by the Bureau of Land
through the PCGG and the Republic, to be represented in court by the public officer Acquisition and Distribution in the Department of Agrarian Reform for the
duly authorized by law. The requirement of personal interest is satisfied by the acquisition of the property at a price of P35,532.70 per hectare, or roughly
mere fact that the petitioner is a citizen and hence, part of the public which P67,000,000.00. On December 1, 1988, a Deed of Absolute Sale was executed
possesses the right. 66 between UCPB and Sharp by virtue of which the former sold the estate to the latter
for the stipulated consideration of P3,183,333.33. The property was registered in
the name of the petitioner on December 6, 1988. On December 27, 1988, DAR and
The writ of prohibition, however, may not be similarly treated and granted in this
the Land Bank of the Philippines created a Compensation Clearing Committee (CCC)
petition. The said writ, being intended to prevent the doing of some act that is
to expedite processing of the papers relating to the acquisition of the land and the
about to be done, it may not provide a remedy for acts which are already fait
preparation of the necessary deed of transfer for signature by the DAR Secretary
accompli. 67 Having been placed in a situation where it was constrained to hire
and the LBP President. The following day, the CCC held its first meeting and decided
private lawyers if the Republic's campaign to legally recover the wealth amassed by
to recommend the acquisition of the property for P62,725,077.29. The next day,
the Marcoses, their friends and relatives was to prosper, the PCGG's action is
December 29, 1988, DAR Secretary Philip Ella Juico issued an order directing the
justified. However, it was not entirely blameless. Its failure to coordinate closely
acquisition of the estate for the recommended amount and requiring LBP to pay the
with the Solicitor General has spawned the incidents which culminated in the
same to Sharp, 30% in cash and the balance in government financial instruments
withdrawal of the latter from appearing as counsel in its cases.
negotiable within 30 days from issuance by Sharp of the corresponding muniments
of title.
WHEREFORE, the petition for a writ of mandamus is hereby GRANTED. The Solicitor
General is DIRECTED to immediately re-enter his appearance in the cases wherein
On January 9, 1989, Secretary Juico and petitioner Lina signed the Deed of Absolute
he had filed a motion to withdraw appearance and the PCGG shall terminate the
Sale. On that same day, the LBP received a copy of the order issued by Secretary
services of the lawyers it had employed but not before paying them the reasonable
Juico on December 29, 1988. On January 17, 1989, LBP Executive Vice President
fees due them in accordance with rules and regulations of the Commission on Audit.
Jesus Diaz signed the CCC evaluation worksheet but with indicated reservations. For
his part, LBP President Deogracias Vistan, taking into account these reservations
This decision is immediately executory. and the discovery that Sharp had acquired the property from UCPB for only P3.1
million, requested Secretary Juico to reconsider his December 29, 1988 order.
G.R. No. 93661 September 4, 1991 Secretary Juico then sought the opinion of the Secretary of Justice as to whether
the LBP could refuse to pay the seller the compensation fixed by the DAR Secretary.
Meantime, on February 3, 1989, Vistan informed Juico that LBP would not pay the
stipulated purchase price. The reply of the Justice Department on March 12, 1989, The Court of Appeals seriously erred in including in its Decision findings of facts
was that the decision of the DAR Secretary fixing the compensation was not final if which are not borne by competent evidence.
seasonably questioned in court by any interested party (including the LBP);
otherwise, it would become final after 15 days from notice and binding on all parties
The Court of Appeals erred in holding that the valuation made on the Garchitorena
concerned, including the LBP, which then could not refuse to pay the compensation
estate has not yet become final.
fixed. Reacting to Sharp's repeated demands for payment, Juico informed Lina on
April 7,1989, that DAR and LBP had dispatched a team to inspect the land for
reassessment. Sharp then filed on April 18, 1989, a petition for mandamus with this The Court of Appeals erred in holding that the opinion of the Secretary of Justice is
court to compel the DAR and LBP to comply with the contract, prompting Juico to not applicable to the case at bar.
issue the following order:
The Court of Appeals erred in holding that herein petitioner is not entitled to a writ
Since the whole property of 1,887 hectares was acquired by Claimant for a of mandamus.
consideration of P3 M, the buying price per hectare then was only about P1,589.83.
It is incomprehensible how the value-of land per hectare in this secluded Caramoan The Court of Appeals erred in holding that the sale of Garchitorena estate from
Peninsula can go so high after a short period of time. The increase is difficult to UCPB in favor of the petitioner is void.
understand since the land is neither fully cultivated nor has it been determined to
possess special and rich features or potentialities other than agricultural purposes.
The Court of Appeals erred in holding that the P62 million is not a just
compensation.
We cannot fail to note that the value of land under CARP, particularly in the most
highly developed sections of Camarines Sur, ranges from P18,000.00 to P27,000
per hectare. We need not go into each of these grounds as the basic question that need only to
be resolved is whether or not the petitioners are entitled to a writ of mandamus to
compel the LBP President Deogracias Vistan to sign the Deed of Absolute Sale dated
In view of the above findings of fact, the value of P62,725,077.29 is definitely too January 9, 1989.
high as a price for the property in question.

It is settled that mandamus is not available to control discretion. The writ may issue
However, in order to be fair and just to the landowner, a reevaluation of the land in to compel the exercise of discretion but not the discretion itself. mandamus can
question by an impartial and competent third party shall be undertaken. For this require action only but not specific action where the act sought to be performed
purpose, a well known private licensed appraiser shall he commissioned by DAR. involves the exercise of discretion.2

WHEREFORE, premises considered, Order is hereby issued for the reappraisal and Section 18 of RA 6657 reads as follows:
re-evaluation of the subject property. For that purpose, DAR shall avail of the
services of Cuervo and Associates to undertake and complete the appraisal of the
subject property within 60 days from date of this Order. Sec. 18. Valuation and mode of compensation. — The LBP shall compensate the
landowner in such amount as may be agreed upon by the landowner and the DAR
and the LBP, in accordance with the criteria provided for in Secs. 16 and 17, and
On April 26, 1989, this Court referred the petition to the Court of Appeals, which other pertinent provisions hereof, or as may be finally determined by the court, as
dismissed it on October 31, 1989. In an exhaustive and well-reasoned decision the just compensation for the land. ... (Emphasis supplied).
penned by Justice Josue M. Bellosillo,1 it held that mandamus did not he because
the LBP was not a mere rubber stamp of the DAR and its signing of the Deed of
Absolute Sale was not a merely ministerial act. It especially noted the failure of the We agree with the respondent court that the act required of the LBP President is not
DAR to take into account the prescribed guidelines in ascertaining the just merely ministerial but involves a high degree of discretion. The compensation to be
compensation that resulted in the assessment of the land for the unconscionable approved was not trifling but amounted to as much as P62 million of public funds, to
amount of P62 million notwithstanding its original acquisition cost of only P3 million. be paid in exchange for property acquired by the seller only one month earlier for
The decision also held that the opinion of the Secretary of Justice applied only to only P3 million. The respondent court was quite correct when it observed:
compulsory acquisition of lands, not to voluntary agreements as in the case before
it. Moreover, the sale was null and void ab initio because it violated Section 6 of RA As may be gleaned very clearly from EO 229, the LBP is an essential part of the
6657, which was in force at the time the transaction was entered into. government sector with regard to the payment of compensation to the landowner.
It is, after all, the instrumentality that is charged with the disbursement of public
The petitioners are now back with this Court, this time to question the decision of funds for purposes of agrarian reform. It is therefore part, an indispensable cog, in
the Court of Appeals on the following grounds: the governmental machinery that fixes and determines the amount compensable to
the landowner. Were LBP to be excluded from that intricate, if not sensitive,
function of establishing the compensable amount, there would be no amount "to be
established by the government" as required in Sec. 6, EO 229. This is precisely why
the law requires the DAS, even if already approved and signed by the DAR Without the signature of the LBP President, there was simply no contract between
Secretary, to be transmitted still to the LBP for its review, evaluation and approval. Sharp and the Government. The Deed of Absolute Sale dated January 9, 1989, was
incomplete and therefore had no binding effect at all. Consequently, Sharp cannot
claim any legal right thereunder that it can validly assert in a petition for
It needs no exceptional intelligence to understand the implications of this
mandamus.
transmittal. It simply means that if LBP agrees on the amount stated in the DAS,
after its review and evaluation, it becomes its duty to sign the deed. But not until
then. For, it is only in that event that the amount to be compensated shall have In National Marketing Corporation v. Cloribel,3 this Court held:
been "established' according to law. Inversely, if the LBP, after review and
evaluation, refuses to sign, it is because as a party to the contract it does not give
... the action for mandamus had no leg to stand on because the writ was sought to
its consent thereto. This necessarily implies the exercise of judgment on the part of
enforce alleged contractual obligations under a disputed contract — disputed not
LBP, which is not supposed to be a mere rubber stamp in the exercise. Obviously,
only on the ground that it had failed of perfection but on the further ground that it
were it not so, LBP could not have been made a distinct member of PARC, the super
was illegal and against public interest and public policy ...
body responsible for the successful implementation of the CARP. Neither would it
have been given the power to review and evaluate the DAS already signed by the
DAR Secretary. If the function of the LBP in this regard is merely to sign the DAS The petitioner argues that the LBP President was under obligation to sign the
without the concomitant power of review and evaluation, its duty to agreement because he had been required to do so by Secretary Juico, who was
"review/evaluate' mandated in Adm. Order No. 5 would have been a mere acting by authority of the President in the exercise of the latter's constitutional
surplusage, meaningless, and a useless ceremony. power of control. This argument may be dismissed with only a brief comment. If the
law merely intended LBP's automatic acquiescence to the DAR Secretary's decision,
it would not have required the separateapproval of the sale by that body and the
Thus, in the exercise of such power of review and evaluation, it results that the
DAR. It must also be noted that the President herself, apparently disturbed by
amount of P62,725,077.29 being claimed by petitioner is not the "amount to be
public suspicion of anomalies in the transaction, directed an inquiry into the matter
established by the government." Consequently, it cannot be the amount that LBP is
by a committee headed by former Justice Jose Y. Feria of this Court. Whatever
by law bound to compensate petitioner.
presumed authority was given by her to the DAR Secretary in connection with the
sale was thereby impliedly withdrawn.
Under the facts, SHARP is not entitled to a writ of mandamus. For, it is essential for
the writ to issue that the plaintiff has a legal right to the thing demanded and that it
It is no argument either that the Government is bound by the official decisions of
is the imperative duty of the defendant to perform the act required. The legal right
Secretary Juico and cannot now renege on his commitment. The Government is
of the plaintiff to the thing demanded must be well-defined, clear and certain. The
never estopped from questioning the acts of its officials, more so if they are
corresponding duty of the defendant to perform the required act must also be clear
erroneous, let alone irregular.4
and specific (Enriquez v. Bidin, L-29620, October 12, 1972, 47 SCRA 183; Orencia
v. Enrile, L-28997, February 22, 1974, 55 SCRA 580; Dionisio v. Paterno, 103 SCRA
342; Lemi v. Valencia, 26 SCRA 203; Aquino v. Mariano, 129 SCRA 532). Given the circumstances attending the transaction which plainly show that it is not
merely questionable but downright dishonest, the Court can only wonder at the
temerity of the petitioner in insisting on its alleged right to be paid the questioned
Likewise, respondents cannot be compelled by a writ of mandamus to discharge a
purchase price. The fact that criminal charges have been flied by the Ombudsman
duty that involves the exercise of judgment and discretion, especially where
against the principal protagonists of the sale has, inexplicably, not deterred or
disbursement of public funds is concerned. It is established doctrine that mandamus
discomfited it. It does not appear that the petitioner is affected by the revelation
will not issue to control the performance of discretionary, non-ministerial, duties,
that it offered the property to the Government even if it was not yet the owner at
that is, to compel a body discharging duties involving the exercise of discretion to
the time; acquired it for P3 million after it had been assured that the sale would
act in a particular way or to approve or disapprove a specific application (B.P.
materialize; and sold it a month later for the bloated sum of P62 million, to earn a
Homes, Inc. v. National Water Resources Council, L-78529, Sept. 17, 1987; 154
gross profit of P59 million in confabulation with some suspect officials in the DAR.
SCRA 88). mandamus win not issue to control or review the exercise of discretion
How the property appreciated that much during that brief period has not been
by a public officer where the law imposes upon him the right or duty to exercise
explained. What is clear is the public condemnation of the transaction as articulated
judgment in reference to any matter in which he is required to act (Mata v. San
in the mass media and affirmed in the results of the investigations conducted by the
Diego, L-30447, March 21, 1975; 63 SCRA 170).
Feria Fact-Finding Committee, the Senate House Joint Committee on Agrarian
Matters, and the Office of the Ombudsman.
Even more explicit is R.A. 6657 with respect to the indispensable role of LBP in the
determination of the amount to be compensated to the landowner. Under Sec. 18
It would seem to the Court that the decent tiling for the petitioner to do, if only in
thereof, "the LBP shall compensate the landowner in such amount as may be agreed
deference to a revolted public opinion, was to voluntarily withdraw from the
upon by the landowner and the DAR and LBP, in accordance with the criteria
agreement. Instead, it is unabashedly demanding the exorbitant profit it would
provided in Secs. 16 and 17, and other pertinent provisions hereof, or as may be
derive from an illegal and unenforceable transaction that ranks as one of the most
finally determined by the court, as the just compensation for the land."
cynical attempts to plunder the public treasury.
The above rulings render unnecessary discussion of the other points raised by the On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"), Roberto
petitioner. The Court has given this petition more attention than it deserves. We Peralta ("Peralta"), Reynaldo dela Paz ("dela Paz"), Edilberto Yamat ("Yamat"), and
shall waste no more time in listening to the petitioner's impertinent demands. LBP Ram Alan Cruz ("Cruz") (collectively, "petitioners"), filed a petition for
President Deogracias Vistan cannot be faulted for refusing to be a party to the disqualification8 under Sections 68 and 80 of the Omnibus Election Code against
shameful scheme to defraud the Government and undermine the Comprehensive Eusebio before the COMELEC. Lanot, Obispo, and Eusebio were candidates for Pasig
Agrarian Reform Program for the petitioner's private profit. We see no reason at all City Mayor, while Peralta, dela Paz, Yamat, and Cruz were candidates for Pasig City
to disturb his discretion. It merits in fact the nation's commendation. Councilor in the 10 May 2004 elections. The case was docketed as SPA (NCR-RED)
No. C04-008.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so
ordered. Petitioners alleged that Eusebio engaged in an election campaign in various forms
on various occasions outside of the designated campaign period, such as (1)
addressing a large group of people during a medical mission sponsored by the Pasig
G.R. No. 164858 November 16, 2006
City government; (2) uttering defamatory statements against Lanot; (3) causing
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner,
the publication of a press release predicting his victory; (4) installing billboards,
CHARMIE Q. BENAVIDES, Petitioner-Intervenor,
streamers, posters, and stickers printed with his surname across Pasig City; and (5)
vs. COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.
distributing shoes to schoolchildren in Pasig public schools to induce their parents to
vote for him.
D E C I S I O N - CARPIO, J.:
In his Answer filed on 29 March 2004,9 Eusebio denied petitioners’ allegations and
The Case branded the petition as a harassment case. Eusebio further stated that petitioners’
evidence are merely fabricated.
This is a petition for certiorari1 assailing the Resolution dated 20 August 2004,2 the
Resolution dated 21 May 20043of the Commission on Elections (COMELEC) En Banc, Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she received the
and the Advisory dated 10 May 20044 of COMELEC Chairman Benjamin S. Abalos parties’ documentary and testimonial evidence. Petitioners submitted their
("Chairman Abalos") in SPA No. 04-288. memorandum10 on 15 April 2004, while Eusebio submitted his memorandum 11 on 16
April 2004.
The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National Capital
Region (NCR) Regional Director Esmeralda Amora-Ladra ("Director Ladra") from The Ruling of the Regional Director
implementing the COMELEC First Division’s 5 May 2004 Resolution. 5 The 5 May 2004
Resolution ordered (1) the disqualification of respondent Vicente P. Eusebio
On 4 May 2004, Director Ladra submitted her findings and recommendations to the
("Eusebio") as a candidate for Pasig City Mayor in the 10 May 2004 elections, (2)
COMELEC. Director Ladra recommended that:
the deletion of Eusebio’s name from the certified list of candidates for Pasig City
Mayor, (3) the consideration of votes for Eusebio as stray, (4) the non-inclusion of
votes for Eusebio in the canvass, and (5) the filing of the necessary information WHEREFORE, in view of the foregoing, undersigned respectfully recommends that
against Eusebio by the COMELEC Law Department. the instant petition be GRANTED. Consequently, pursuant to Section 68 (a) and (e)
of the Omnibus Election Code, respondent VICENTE P. EUSEBIO shall
be DISQUALIFIED to run for the position of Mayor, Pasig City for violation of
The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May 2004 Order
Section 80 of the Omnibus Election Code.
of the COMELEC En Banc6and directed the Pasig City Board of Canvassers to
proclaim the winning candidate for Pasig City Mayor without prejudice to the final
outcome of Eusebio’s disqualification case. The 11 May 2004 Order suspended the Further, undersigned respectfully recommends that the instant case be referred to
proclamation of Eusebio in the event that he would receive the winning number of the Law Department for it to conduct a preliminary investigation on the possible
votes. violation by the respondent of Sec. 261 (a) of the Omnibus Election Code. 12

Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5 May 2004 The Ruling of the COMELEC
Resolution of the COMELEC First Division7 and nullified the corresponding order. The
COMELEC En Banc referred the case to the COMELEC Law Department to determine
In a resolution dated 5 May 2004, or five days before the elections, the COMELEC
whether Eusebio actually committed the acts subject of the petition for
First Division adopted the findings and recommendation of Director Ladra. The
disqualification.
dispositive portion of the resolution read:

The Facts
WHEREFORE, in view of the foregoing, the Commission (FIRST
DIVISION) RESOLVED as it hereby RESOLVESto ORDER:
1. the disqualification of respondent VICENTE P. EUSEBIO from being a candidate Banc partially denied the motion on the same day. The dispositive portion of the
for mayor of Pasig City in the May 10, 2004 elections; Order declared:

2. the Election Officers of District I and District II of Pasig City WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the motion
to DELETE and CANCEL the name of respondent VICENTE P. EUSEBIO from the for suspension of the counting of votes and the canvassing of votes. However, in
certified list of candidates for the City Offices of Pasig City for the May 10, 2004 order not to render moot and academic the issues for final disposition by the En
elections; Banc and considering that on the basis of the Resolution of the FIRST DIVISION, the
evidence of respondent’s guilt is strong, the Commission En Banc hereby ORDERS
to SUSPEND, UNTIL FURTHER ORDERS OF THE COMMISSION, the proclamation of
3. the Board of Election Inspectors of all the precincts comprising the City of Pasig
respondent in the event he receives the winning number of votes. 19 (Emphasis in
not to count the votes cast for respondent VICENTE EUSEBIO, the same being cast
the original)
for a disqualified candidate and therefore must be considered stray;

On 12 May 2004, Eusebio filed his opposition to petitioners’ motion.


4. the City Board of Canvassers of Pasig City not to canvass the votes erroneously
cast for the disqualified candidate respondent VICENTE P. EUSEBIO, in the event
that such votes were recorded in the election returns[;] On 21 May 2004, the COMELEC En Banc issued the second questioned issuance. The
order quoted from the motion for advisory opinion of the Pasig City Board of
Canvassers which reported that 98% of the total returns of Pasig City had been
5. the Regional Director of NCR, and the Election Officers of Pasig City to
canvassed and that there were only 32 uncanvassed returns involving 6,225
immediately implement the foregoing directives[;]
registered voters. Eusebio had 119,693 votes while Lanot had 108,941 votes. Thus,
the remaining returns would not affect Eusebio’s lead over Lanot. The COMELEC En
6. the Law Department through its Director IV, Atty. ALIODEN DALAIG to file the Banc stated its "established policy" to "expedite the canvass of votes and
necessary information against Vicente P. Eusebio before the appropriate court. proclamation of winning candidates to ease the post election tension and without
prejudice to [its] action in [the] x x x case"20 and resolved to declare Eusebio as
This Resolution is immediately executory unless restrained by the Commission En Pasig City Mayor. The dispositive portion of the 21 May 2004 Order read:
Banc.13 (Emphasis in the original)
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to LIFT AND
In a Very Urgent Advisory14 dated 8 May 2004, or two days before the elections, SET ASIDE the order suspending the proclamation of the respondent.
Chairman Abalos informed the following election officers of the resolution of the
COMELEC First Division: Director Ladra; Atty. Romeo Alcazar, Acting Election Officer FURTHER, the City Board of Canvassers is DIRECTED to complete [the] canvass
of the First District of Pasig City; Ms. Marina Gerona, Acting Election Officer of the and immediately proceed with the proclamation of the winning candidate for Mayor
Second District of Pasig City; and all Chairmen and Members of the Board of of Pasig City without prejudice to the final outcome of the case entitled,
Election Inspectors and City Board of Canvassers of Pasig City (collectively, "Henry P. Lanot, et al., vs. Vicente Eusebio[, "] docketed as SPA No. 04-
"pertinent election officers"). Director Ladra repeated the dispositive portion of the 5 288.21 (Emphasis in the original)
May 2004 resolution in a Memorandum15 which she issued the next day. On 9 May
2004, Eusebio filed a motion for reconsideration16 of the resolution of the COMELEC
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21 May
First Division.
2004 Order.1âwphi1 On 25 June and 6 July 2004, the COMELEC En Banc conducted
hearings on Eusebio’s motion for reconsideration of the 5 May 2004 COMELEC First
On election day itself, Chairman Abalos issued the first of the three questioned Division resolution. On 6 August 2004, Lanot filed a motion to annul Eusebio’s
COMELEC issuances. In a memorandum, Chairman Abalos enjoined Director Ladra proclamation and to order his proclamation instead.22
from implementing the COMELEC First Division’s 5 May 2004 resolution due to
Eusebio’s motion for reconsideration. The 10 May 2004 memorandum stated:
On 20 August 2004, the COMELEC En Banc promulgated the third questioned
issuance. The COMELEC En Banc invoked Section 1 of COMELEC Resolution No.
Considering the pendency of a Motion for Reconsideration timely filed by 2050 ("Resolution 2050") and this Court’s rulings in Albaña v.
Respondent, Vicente P. Eusebio[,] with the Commission En Banc, you are COMELEC,23 Lonzanida v. COMELEC,24 and Sunga v. COMELEC25 in justifying the
hereby ENJOINED from implementing the Resolution promulgated on May 5, 2004, annulment of the order to disqualify Eusebio and the referral of the case to the Law
in the x x x case until further orders from the Commission En Banc.17 (Emphasis in Department for preliminary investigation. The dispositive portion stated:
the original)
WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by the First
On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela Paz, Division dated 8 May 2004 on the above-captioned case, affirming the
Yamat, and Cruz filed before the COMELEC En Banc a motion to suspend the recommendation of the Regional Director (NCR) to disqualify herein respondent, is
counting and canvassing of votes and the proclamation of the winning mayoral hereby SET ASIDE, and the corresponding ORDER issued thereunder, ANNULLED.
candidate for Pasig City.18 Without waiting for Eusebio’s opposition, the COMELEC En
Accordingly, this case is referred to the Law Department for investigation to finally C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTED WITH GRAVE
determine [whether] the acts complained of were in fact committed by respondent ABUSE OF POWER, AUTHORITY OR DISCRETION OR LACK OR IN EXCESS OF
Eusebio.26 (Emphasis in the original) JURISDICTION

Hence, this petition. 1. by unilaterally enjoining the implementation of the Order of Respondent’s
disqualification despite the condition therein that it could only be restrained by the
Commission En Banc, and whether or not he illegally, erroneously and blatantly
The Issues
whimsically grabbed the exclusive adjudicatory power of the Commission En Banc.

Lanot alleged that as the COMELEC’s issuances are not supported by substantial
D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
evidence and are contrary to law and settled jurisprudence, the COMELEC
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CAPRICIOUSLY
committed grave abuse of discretion amounting to lack of or excess of jurisdiction.
DISREGARDING THE RESOLUTION OF MAY 5, 2004 AS ALREADY FINAL AND
Lanot raised the following issues before this Court:
EXECUTED AND IN FAILING TO ORDER THE PROCLAMATION OF PETITIONER.

A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS] RESOLUTION


E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO WARRANT RESPONDENT
DATED AUGUST 20, 2004, ACTED WITH GRAVE ABUSE OF DISCRETION OR LACK
EUSEBIO’S DISQUALIFICATION.
OR IN EXCESS OF JURISDICTION

b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED WITH


1. by setting aside the Resolution of Disqualification promulgated by its First
FOUR (4) AFFIRMATIVE VOTES OF COMMISSIONERS, TWO (2) VOTES FROM
Division on May 5, 2004 affirming the recommendation of the Regional Election
COMMISSIONERS BORRA AND GARCILLANO WHO VOTED FOR THE
Director (NCR) to disqualify Respondent, and by annulling the order issued
DISQUALIFICATION IN THE MAY 5, 2004
thereunder,

RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM COMMISSIONERS TUAZON,
a) erroneously, whimsically and maliciously ADOPTED and APPLIED Sections 1 and 2
JR. AND SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIR DISSENTING OPINION
of Rule 2050 to this case,
(ANNEX "A-1") SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT BY
RESPONDENT COMELEC BE DECLARED A PATENT NULLITY.
b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6, R.A. 6646,
F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO, WHETHER
c) erroneously, whimsically and capriciously ARROGATED unto themselves a quasi- PETITIONER LANOT CAN BE PROCLAIMED AND ALLOWED TO SIT AS MAYOR-ELECT,
judicial legislation, and AND WHETHER THE DOCTRINES IN TOPACIO, CODILLA, JR., LABO AND OTHERS
APPLY IN THIS CASE.27
d) erroneously and maliciously MISAPPLIED the Albaña and Sunga cases to the case
at bar; The Ruling of the Court

2. by referring the case to the Law Department for investigation, it illegally, The petition has no merit.
erroneously and maliciously DISMISSED the electoral aspect of the case and
whimsically VIOLATED Resolution 6452 and Section 6 of RA 6646;
Parties to the Present Petition

3. by disregarding the Order of disqualification, it erroneously and whimsically


On 13 April 2005, during the pendency of this case, an unidentified person shot and
IGNORED and DISREGARDED the inchoate right of petitioner as the winning party.
killed Lanot in Pasig City. It seemed that, like an endangered specie, the
disqualification case would be extinguished by Lanot’s death. However, on 27 April
B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION OR 2005, Lanot’s counsel manifested, over Eusebio’s objections, that Mario S.
IN EXCESS OR LACK OF JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY Raymundo ("Raymundo"), a registered voter and former Mayor of Pasig City, is
21, 2004 Lanot’s substitute in this case. Also, on 25 August 2005, Charmie Q. Benavides
("Benavides"), a Pasig City mayoral candidate and the third placer in the 10 May
1. by lifting and setting aside the Order of suspension of proclamation by winning 2004 elections, filed a petition-in-intervention. Benavides asked whether she could
candidate issued on May 11, 2004, it erroneously and intentionally and whimsically be proclaimed Pasig City Mayor because she is the surviving qualified candidate with
DISREGARDED the strong evidence of guilt of Respondent to warrant the the highest number of votes among the remaining candidates.
suspension of his proclamation and erroneously and capriciously VIOLATED
Resolution of May 11, 2004.
The law and the COMELEC rules have clear pronouncements that the electoral reason of the timely filing of a Motion for Reconsideration thereof. A disposition that
aspect of a disqualification case is not rendered inutile by the death of petitioner, has not yet attained finality cannot be implemented even through indirect means. 31
provided that there is a proper substitution or intervention of parties while there is a
pending case. On Raymundo’s substitution, any citizen of voting age is competent to
Moreover, Chairman Abalos’ 10 May 2004 memorandum is merely an advisory
continue the action in Lanot’s stead.28 On Benavides’ intervention, Section 6 of
required by the circumstances at the time. Eusebio filed a motion for
Republic Act No. 6646, or the Electoral Reforms Law of 1987 ("Electoral Reforms
reconsideration on 9 May 2004, and there was not enough time to resolve the
Law of 1987"), allows intervention in proceedings for disqualification even after
motion for reconsideration before the elections. Therefore, Eusebio was not yet
elections if no final judgment has been rendered. Although Eusebio was already
disqualified by final judgment at the time of the elections. Section 6 of the Electoral
proclaimed as Pasig City Mayor, Benavides could still intervene, as there was still no
Reforms Law of 1987 provides that "[a] candidate who has been declared by final
final judgment in the proceedings for disqualification. 29
judgment to be disqualified shall not be voted for, and

The case for disqualification exists, and survives, the election and proclamation of
the votes cast for him shall not be counted." Under Section 13 of the COMELEC
the winning candidate because an outright dismissal will unduly reward the
Rules of Procedure, a decision or resolution of a Division in a special action becomes
challenged candidate and may even encourage him to employ delaying tactics to
final and executory after the lapse of fifteen days following its promulgation while a
impede the resolution of the disqualification case until after he has been
decision or resolution of the COMELEC En Banc becomes final and executory after
proclaimed.30 The exception to the rule of retention of jurisdiction after proclamation
five days from its promulgation unless restrained by this Court.
applies when the challenged candidate becomes a member of the House of
Representatives or of the Senate, where the appropriate electoral tribunal would
have jurisdiction. There is no law or jurisprudence which says that intervention or Propriety of the Lifting of the Suspension of Eusebio’s Proclamation
substitution may only be done prior to the proclamation of the winning candidate. A
substitution is not barred by prescription because the action was filed on time by In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the suspension
the person who died and who is being substituted. The same rationale applies to a of Eusebio’s proclamation in the event he would receive the winning number of
petition-in-intervention. votes. Ten days later, the COMELEC En Banc set aside the 11 May 2004 order and
directed the Pasig City Board of Canvassers to proclaim Eusebio as the winning
COMELEC’s Grave Abuse of Discretion candidate for Pasig City Mayor. The COMELEC relied on Resolutions 7128 and
712932 to justify the counting of Eusebio’s votes and quoted from the Resolutions as
follows:
Propriety of Including Eusebio’s Name in the Pasig City Mayoral Candidates and of
the Counting of Votes and Canvassing of Election Returns
Resolution No. 7128 -
In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinent
election officials to delete and cancel Eusebio’s name from the certified list of Pasig NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to adopt
City mayoral candidates, not to count votes cast in Eusebio’s favor, and not to certain policies and to direct all Board of Canvassers, as follows:
include votes cast in Eusebio’s favor in the canvass of election returns. Eusebio filed
a motion for reconsideration of the resolution on 9 May 2004. Hence, COMELEC 1. to speed up its canvass and proclamation of all winning candidates except under
Chairman Abalos issued a memorandum on 10 May 2004 which enjoined the the following circumstances:
pertinent election officials from implementing the 5 May 2004 resolution. In a
Resolution dated 11 May 2004, the COMELEC En Banc subsequently ratified and
adopted Chairman Abalos’ 10 May 2004 memorandum when it denied Lanot’s a. issuance of an order or resolution suspending the proclamation;
motion to suspend the counting of votes and canvassing of election returns.
b. valid appeal[s] from the rulings of the board in cases where appeal is
Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of allowed and the subject appeal will affect the results of the elections;
the COMELEC En Banc when he issued the 10 May 2004 memorandum. Lanot
asserts that the last sentence in the dispositive portion of the COMELEC First Resolution No. 7129
Division’s 5 May 2004 Resolution, "[t]his Resolution is immediately executory unless
restrained by the Commission En Banc," should have prevented Chairman Abalos
from acting on his own. NOW THEREFORE, the Commission on Elections, by virtue of the powers vested in it
by the Constitution, the Omnibus Election Code and other elections laws, has
RESOLVED, as it hereby RESOLVES, to refrain from granting motions and petitions
Lanot’s claim has no basis, especially in light of the 11 May 2004 Resolution of the seeking to postpone proclamations by the Board of Canvassers and other pleadings
COMELEC En Banc. The COMELEC En Banc’s explanation is apt: with similar purpose unless they are grounded on compelling reasons, supported by
convincing evidence and/or violative of the canvassing procedure outlined in
Suspension of these proceedings is tantamount to an implementation of the Resolution No. 6669.
Resolution of the FIRST DIVISION which had not yet become final and executory by
We agree with Eusebio that the COMELEC En Banc did not commit grave abuse of The COMELEC also quoted from Sunga v. COMELEC to justify its referral of the
discretion in issuing its 21 May 2004 order. The COMELEC has the discretion to disqualification case to its Law Department.
suspend the proclamation of the winning candidate during the pendency of a
disqualification case when evidence of his guilt is strong. 33 However, an order
x x x We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or
suspending the proclamation of a winning candidate against whom a disqualification
directing the dismissal of a disqualification case filed before the election but which
case is filed is merely provisional in nature and can be lifted when warranted by the
remained unresolved after the election. What the Resolution mandates in such a
evidence.34
case is for the Commission to refer the complaint to its Law Department for
investigation to determine whether the acts complained of have in fact been
Propriety of the Dismissal of the committed by the candidate sought to be disqualified. The findings of the Law
Disqualification Case and of the Department then become the basis for disqualifying the erring candidate. This is
Referral to the COMELEC totally different from the other two situations contemplated by Resolution No.
Law Department 2050, i.e., a disqualification case filed after the election but before the proclamation
of winners and that filed after the election and the proclamation of winners, wherein
it was specifically directed by the same Resolution to be dismissed as a
Lanot filed the petition for disqualification on 19 March 2004, a little less than two
disqualification case.35
months before the 10 May 2004 elections. Director Ladra conducted hearings on the
petition for disqualification on 2, 5 and 7 April 2004. Director Ladra submitted her
findings and recommendations to the COMELEC on 4 May 2004. The COMELEC First For his part, Eusebio asserts that the COMELEC has the prerogative to refer the
Division issued a resolution adopting Director Ladra’s recommendations on 5 May disqualification case to its Law Department. Thus, no grave abuse of discretion can
2004. Chairman Abalos informed the pertinent election officers of the COMELEC be imputed to the COMELEC. Moreover, the pendency of a case before the Law
First Division’s resolution through an Advisory dated 8 May 2004. Eusebio filed a Department for purposes of preliminary investigation should be considered as
Motion for Reconsideration on 9 May 2004. Chairman Abalos issued a memorandum continuation of the COMELEC’s deliberations.
to Director Ladra on election day, 10 May 2004, and enjoined her from
implementing the 5 May 2004 COMELEC First Division resolution. The petition for
However, contrary to the COMELEC En Banc’s reliance on Resolution No. 2050 in its
disqualification was not yet finally resolved at the time of the elections. Eusebio’s
20 August 2004 resolution, the prevailing law on the matter is Section 6 of the
votes were counted and canvassed, after which Eusebio was proclaimed as the
Electoral Reforms Law of 1987. Any rule or action by the COMELEC should be in
winning candidate for Pasig City Mayor. On 20 August 2004, the COMELEC En Banc
accordance with the prevailing law. Section 6 of the Electoral Reforms Law of 1987
set aside the COMELEC First Division’s order and referred the case to the COMELEC
provides:
Law Department.

Section 6. Effect of Disqualification Case. — Any candidate who has been declared
In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on the timing
by final judgment to be disqualified shall not be voted for, and the votes cast for
of the filing of the petition. The COMELEC En Banc invoked Section 1 of Resolution
him shall not be counted. If for any reason a candidate is not declared by final
No. 2050, which states:
judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or
1. Any complaint for the disqualification of a duly registered candidate based upon Commission shall continue with the trial and hearing of the action, inquiry
any of the grounds specifically enumerated under Section 68 of the Omnibus or protest and, upon motion of the complainant or any intervenor, may during the
Election Code, filed directly with the Commission before an election in which the pendency thereof order the suspension of the proclamation of such candidate
respondent is a candidate, shall be inquired into by the Commission for the purpose whenever the evidence of his guilt is strong. (Emphasis added)
of determining whether the acts complained of have in fact been committed. Where
the inquiry by the Commission results in a finding before election, that the
Moreover, this Court’s ruling in Sunga was further explained in Bagatsing v.
respondent candidate did in fact commit the acts complained, the Commission shall
COMELEC,36 thus:
order the disqualification of the respondent candidate from continuing as such
candidate.
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the
disqualification case therein simply because it remained unresolved before the
In case such complaint was not resolved before the election, the
election and, in lieu thereof, referring it to its Law Department for possible criminal
Commission may motu proprio, or on motion of any of the parties, refer the
prosecution of the respondent for violation of the election laws. Notably, there is
complaint to the Law Department of the Commission as the instrument of
nothing in paragraph 1 of Resolution No. 2050 which directs the dismissal of the
the latter in the exercise of its exclusive power to conduct a preliminary
disqualification case not resolved before the election. It says the COMELEC "may
investigation of all cases involving criminal infractions of the election laws.
motu prop[r]io or on motion of any of the parties, refer the complaint to the Law
Such recourse may be availed of irrespective of whether the respondent
Department of the Commission as an instrument of the latter in the exercise of its
has been elected or has lost in the election. (Emphasis added)
exclusive power to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws." The referral to the Law Department is discretionary
on the part of the COMELEC and in no way may it be interpreted that the COMELEC
will dismiss the disqualification case or will no longer continue with the hearing of Section 1. Delegation of reception of evidence. — The Commission hereby
the same. The reason for this is that a disqualification case may have two (2) designates its field officials who are members of the Philippine Bar to hear and
aspects, the administrative, which requires only a preponderance of evidence to receive evidence in the following petitions:
prove disqualification, and the criminal, which necessitates proof beyond reasonable
doubt to convict. Where in the opinion of the COMELEC, the acts which are grounds
c. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election
for disqualification also constitute a criminal offense or offenses, referral of the case
Code and disqualify a candidate for lack of qualifications or possessing same
to the Law Department is proper.
grounds for disqualification;

It bears stressing that the Court in Sunga recognized the difference between a
Sec. 2. Suspension of the Comelec Rules of Procedure. — In the interest of justice
disqualification case filed before and after an election when, as earlier mentioned, it
and in order to attain speedy disposition of cases, the Comelec Rules of Procedure
stated that the referral of the complaint for disqualification where the case is filed
or any portion thereof inconsistent herewith is hereby suspended.
before election "is totally different from the other two situations contemplated by
Resolution No. 2050, i.e., a disqualification case filed after the election but before
the proclamation of winners and that filed after the election and the proclamation of Sec. 3. Where to file petitions. — The petitions shall be filed with the following
winners, wherein it was specifically directed by the same Resolution to be dismissed offices of the Commission:
as a disqualification case."
b. For x x x local positions including highly-urbanized cities, in the National Capital
Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed its Region, with the Regional Election Director of said region;
misunderstanding of the two aspects of a disqualification case. The electoral aspect
of a disqualification case determines whether the offender should be disqualified PROVIDED, in cases of highly-urbanized cities the filing of petitions for
from being a candidate or from holding office. Proceedings are summary in disqualification shall be with the Office of the Regional Election Directors. x x x
character and require only clear preponderance of evidence. An erring candidate
may be disqualified even without prior determination of probable cause in a
preliminary investigation. The electoral aspect may proceed independently of the The Regional Election Directors concerned shall hear and receive evidence strictly in
criminal aspect, and vice-versa. accordance with the procedure and timeliness herein provided.

The criminal aspect of a disqualification case determines whether there is probable Sec. 5. Procedure in filing petitions. — For purposes of the preceding section, the
cause to charge a candidate for an election offense. The prosecutor is the COMELEC, following procedure shall be observed:
through its Law Department, which determines whether probable cause exists. 37 If
there is probable cause, the COMELEC, through its Law Department, files the C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE
criminal information before the proper court. Proceedings before the proper court OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF
demand a full-blown hearing and require proof beyond reasonable doubt to QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION
convict.38 A criminal conviction shall result in the disqualification of the offender,
which may even include disqualification from holding a future public office. 39
1. The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus
Election Code x x x may be filed any day after the last day [of] filing of certificates
The two aspects account for the variance of the rules on disposition and resolution of candidacy but not later than the date of proclamation.
of disqualification cases filed before or after an election. When the disqualification
case is filed before the elections, the question of disqualification is raised before the
voting public. If the candidate is disqualified after the election, those who voted for 2. The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election
him assume the risk that their votes may be declared stray or invalid. There is no Code shall be filed in ten (10) legible copies with the concerned office mentioned in
such risk if the petition is filed after the elections. 40 The COMELEC En Banc erred Sec. 3 personally or through a duly authorized representative by any citizen of
when it ignored the electoral aspect of the disqualification case by setting aside the voting age, or duly registered political party, organization or coalition of political
COMELEC First Division’s resolution and referring the entire case to the COMELEC parties against any candidate who, in an action or protest in which he is a party, is
Law Department for the criminal aspect. declared by final decision of a competent court guilty of, or found by the
Commission of:

Moreover, the COMELEC En Banc’s act and Eusebio’s assertions lose sight of the
provisions of Resolution No. 6452 ("Resolution 6452"), "Rules Delegating to 2.a having given money or other material consideration to influence, induce or
COMELEC Field Officials the Hearing and Reception of Evidence of Disqualification corrupt the voters or public officials performing electoral functions; or
Cases Filed in Connection with the May 10, 2004 National and Local Elections; Motu
ProprioActions and Disposition of Disqualification Cases," promulgated on 10 2.d having solicited, received or made any contribution prohibited under Sections
December 2003. The pertinent portions of Resolution 6452 provide: 89, 95, 96, 97 and 104 of the Omnibus Elections Code; or
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v The questioned acts of [Eusebio] are as follows:
and cc sub-paragraph 6 of the Omnibus Election Code, shall be disqualified from
continuing as a candidate, or if he has been elected, from holding the office.
1) The speech uttered on February 14, 2004 during the meeting dubbed as
"Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein [Eusebio]
Indeed, what the COMELEC did in its 20 August 2004 resolution was contrary to allegedly asked the people to vote for him and solicited for their support x x
"the interest of justice and x x x speedy disposition of cases." Resolution No. 2050 x:
referring the electoral aspect to the Law Department is procedurally inconsistent
with Resolution 6452 delegating reception of evidence of the electoral aspect to the
2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City
Regional Election Director. The investigation by the Law Department under
wherein [Eusebio] again allegedly uttered defamatory statements against
Resolution No. 2050 produces the same result as the investigation under Resolution
co-[candidate] Lanot and campaigned for his (respondent’s) and his
6452 by the Regional Election Director. Commissioner Tuason’s dissent underscored
group’s candidacy.
the inconsistency between the avowed purpose of Resolution 6452 and the
COMELEC En Banc’s 20 August 2004 resolution:
3) He caused to be published in leading newspapers about a survey
allegedly done by Survey Specialist, Inc. showing him to be leading in the
x x x [T]he preliminary investigation for purposes of finding sufficient ground for
mayoralty race in Pasig City.
[Eusebio’s] disqualification, has already been accomplished by the RED-NCR prior to
the election. There also appears no doubt in my mind, that such recommendation of
the investigating officer, RED-NCR, was substantive and legally sound. The First 4) He paid a political advertisement in the Philippine Free Press in the
Division agreed with the result of the investigation/recommendation, with the facts amount of ₱193,660.00 as published in its issue dated February 7, 2004.
of the case clearly distilled in the assailed resolution. This, I likewise found to be in
accord with our very own rules and the jurisprudential doctrines aforestated. There 5) The display of billboards containing the words "Serbisyo Eusebio" and
could be no rhyme and reason then to dismiss the electoral aspect of the case (i.e., "ST" which means "Serbisyong Totoo" before the start of the campaign
disqualification) and refer the same to the Law Department for preliminary period.
investigation. As held in Sunga, clearly, the legislative intent is that the COMELEC
should continue the trial and hearing of the disqualification case to its
conclusion, i.e., until judgment is rendered thereon. The criminal aspect of the case 6) Posters showing the respondent and his running mate Yoyong Martirez
is an altogether different issue. as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY
EUSEBIO" in connection with the dengue project were posted everywhere
even before the start of the campaign period.
Sunga said the reason is obvious: A candidate guilty of election offenses would be
undeservedly rewarded, instead of punished, by the dismissal of the disqualification
case against him simply because the investigating body was unable, for any reason 7) Streamers bearing the words "Pasig City is for PEACE" were likewise
caused upon it, to determine before the election if the offenses were indeed displayed with the two letters "E" prominently written.
committed by the candidate sought to be disqualified. All that the erring aspirant
would need to do is to employ delaying tactics so that the disqualification case 8) Stickers of [Eusebio] were likewise pasted all over the city before the
based on the commission of election offenses would not be decided before the start of the campaign period.
election. This scenario is productive of more fraud which certainly is not the main
intent and purpose of the law.41
9) [Eusebio] engaged in vote-buying by distributing shoes to the students
while telling the parents that by way of gratitude, they should vote for him.
We agree with Lanot that the COMELEC committed grave abuse of discretion when
it ordered the dismissal of the disqualification case pending preliminary investigation
of the COMELEC Law Department. A review of the COMELEC First Division’s 5 May Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedings
2004 resolution on Eusebio’s disqualification is in order, in view of the grave abuse before the COMELEC Law Department; (2) Lanot abandoned the present petition
of discretion committed by the COMELEC En Banc in its 20 August 2004 resolution. also because of his participation in the proceedings before the COMELEC Law
Department; and (3) Lanot is guilty of forum-shopping. These arguments fail for
lack of understanding of the two aspects of disqualification cases. The proceedings
Rightful Pasig City Mayor before the COMELEC Law Department concern the criminal aspect, while the
proceedings before this Court concern the electoral aspect, of disqualification cases.
Eusebio’s Questioned Acts The proceedings in one may proceed independently of the other.

We quote the findings and recommendations of Director Ladra as adopted by the Eusebio is correct when he asserts that this Court is not a trier of facts. What he
COMELEC First Division: overlooks, however, is that this Court may review the factual findings of the
COMELEC when there is grave abuse of discretion and a showing of arbitrariness in
the COMELEC’s decision, order or resolution.43 We find that the COMELEC committed The foregoing enumerated acts if performed for the purpose of enhancing the
grave abuse of discretion in issuing its 20 August 2004 resolution. chances of aspirants for nomination for candidacy to a public office by a political
party, aggroupment, or coalition of parties shall not be considered as election
campaign or partisan election activity.
Our review of the factual findings of the COMELEC, as well as the law applicable to
this case, shows that there is no basis to disqualify Eusebio. Director Ladra
recommended the disqualification of Eusebio "for violation of Section 80 of the Public expressions or opinions or discussions of probable issues in a forthcoming
Omnibus Election Code." The COMELEC First Division approved Director Ladra’s election or on attributes of or criticisms against probable candidates proposed to be
recommendation and disqualified Eusebio. Section 80 of the Omnibus Election Code nominated in a forthcoming political party convention shall not be construed as part
provides: of any election campaign or partisan political activity contemplated under this
Article.
SECTION 80. Election campaign or partisan political activity outside campaign
period. — It shall be unlawful for any person, whether or not a voter or candidate, Thus, the essential elements for violation of Section 80 of the Omnibus Election
or for any party, or association of persons, to engage in an election campaign or Code are: (1) a person engages in an election campaign or partisan political
partisan political activity except during the campaign period: Provided, That political activity; (2) the act is designed to promote the election or defeat of a particular
parties may hold political conventions or meetings to nominate their official candidate or candidates; (3) the act is done outside the campaign period.
candidates within thirty days before the commencement of the campaign period and
forty-five days for Presidential and Vice-Presidential election. (Emphasis supplied)
The second element requires the existence of a "candidate." Under Section 79(a), a
candidate is one who "has filed a certificate of candidacy" to an elective public
What Section 80 of the Omnibus Election Code prohibits is "an election campaign or office. Unless one has filed his certificate of candidacy, he is not a "candidate." The
partisan political activity" by a "candidate" "outside" of the campaign period. Section third element requires that the campaign period has not started when the election
79 of the same Code defines "candidate," "election campaign" and "partisan political campaign or partisan political activity is committed.
activity" as follows:
Assuming that all candidates to a public office file their certificates of candidacy on
SECTION 79. Definitions. — As used in this Code: the last day, which under Section 75 of the Omnibus Election Code is the day before
the start of the campaign period, then no one can be prosecuted for violation of
Section 80 for acts done prior to such last day. Before such last day, there is no
(a) The term "candidate" refers to any person aspiring for or seeking an elective
"particular candidate or candidates" to campaign for or against. On the day
public office, who has filed a certificate of candidacy by himself or through an
immediately after the last day of filing, the campaign period starts and Section 80
accredited political party, aggroupment, or coalition of parties;
ceases to apply since Section 80 covers only acts done "outside" the campaign
period.
(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
Thus, if all candidates file their certificates of candidacy on the last day, Section 80
a public office which shall include:
may only apply to acts done on such last day, which is before the start of the
campaign period and after at least one candidate has filed his certificate of
(1) Forming organizations, associations, clubs, committees or other groups of candidacy. This is perhaps the reason why those running for elective public office
persons for the purpose of soliciting votes and/or undertaking any campaign for or usually file their certificates of candidacy on the last day or close to the last day.
against a candidate;
There is no dispute that Eusebio’s acts of election campaigning or partisan political
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other activities were committed outside of the campaign period. The only question is
similar assemblies, for the purpose of soliciting votes and/or undertaking any whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
campaign or propaganda for or against a candidate; "candidate" when he committed those acts before the start of the campaign period
on 24 March 2004.
(3) Making speeches, announcements or commentaries, or holding interviews for or
against the election of any candidate for public office; Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of
certificates of candidacy to 120 days before election day. Thus, the original deadline
(4) Publishing or distributing campaign literature or materials designed to support or was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial
oppose the election of any candidate; or question is: did this change in the deadline for filing the certificate of candidacy
make one who filed his certificate of candidacy before 2 January 2004 immediately
liable for violation of Section 80 if he engaged in election campaign or partisan
(5) Directly or indirectly soliciting votes, pledges or support for or against a political activities prior to the start of the campaign period on 24 March 2004?
candidate.
Section 11 of RA 8436 provides: SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the
same[,] uniform for local and national officials?
SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of
the official ballot which shall contain the titles of the positions to be filled and/or the THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the
propositions to be voted upon in an initiative, referendum or plebiscite. Under each present periods.
position, the names of candidates shall be arranged alphabetically by surname and
uniformly printed using the same type size. A fixed space where the chairman of the
SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s
Board of Election Inspectors shall affix his/her signature to authenticate the official
already a candidate, and there are many prohibited acts on the part of candidate.
ballot shall be provided.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .


Both sides of the ballots may be used when necessary.

SENATOR GONZALES. And you cannot say that the campaign period has not yet
For this purpose, the deadline for the filing of certificate of
began [sic].
candidacy/petition for registration/manifestation to participate in the
election shall not be later than one hundred twenty (120) days before the
elections: Provided, That, any elective official, whether national or local, running THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the
for any office other than the one which he/she is holding in a permanent capacity, certificate will not bring about one’s being a candidate.
except for president and vice-president, shall be deemed resigned only upon the
start of the campaign period corresponding to the position for which he/she is SENATOR GONZALES. If that’s a fact, the law cannot change a fact.
running: Provided, further, That, unlawful acts or omissions applicable to a
candidate shall take effect upon the start of the aforesaid campaign period:
Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the
filing of the certificate of candidacy for the positions of President, Vice-President, certificate of candidacy will not result in that official vacating his position, we can
Senators and candidates under the party-list system as well as petitions for also provide that insofar he is concerned, election period or his being a candidate
registration and/or manifestation to participate in the party-list system shall be on will not yet commence. Because here, the reason why we are doing an early filing is
February 9, 1998 while the deadline for the filing of certificate of candidacy for other to afford enough time to prepare this machine readable ballots.
positions shall be on March 27, 1998.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the
The official ballots shall be printed by the National Printing Office and/or the Bangko House Panel will withdraw its proposal and will agree to the 120-day period provided
Sentral ng Pilipinas at the price comparable with that of private printers under in the Senate version.
proper security measures which the Commission shall adopt. The Commission may
contract the services of private printers upon certification by the National Printing THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements.
Accredited political parties and deputized citizens’ arms of the Commission may
assign watchers in the printing, storage and distribution of official ballots. SENATOR GONZALES. How about prohibition against campaigning or doing partisan
acts which apply immediately upon being a candidate?

To prevent the use of fake ballots, the Commission through the Committee shall
ensure that the serial number on the ballot stub shall be printed in magnetic ink THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is
that shall be easily detectable by inexpensive hardware and shall be impossible to just to afford the Comelec enough time to print the ballots, this provision does not
reproduce on a photocopying machine, and that identification marks, magnetic intend to change the campaign
strips, bar codes and other technical and security markings, are provided on the
ballot. periods as presently, or rather election periods as presently fixed by existing law.

The official ballots shall be printed and distributed to each city/municipality at the THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other
rate of one (1) ballot for every registered voter with a provision of additional four prohibition.
(4) ballots per precinct.44 (Emphasis added)
THE CHAIRMAN (REP. TANJUATCO). That’s right.
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of
candidacy is to give ample time for the printing of official ballots. This is clear from
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
the following deliberations of the Bicameral Conference Committee:
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no co-[candidate] Lanot and campaigned for his (respondent’s) and his
conflict anymore because we are talking about the 120-day period before election group’s candidacy.47 (Emphasis in the original)
as the last day of filing a certificate of candidacy, election period starts 120 days
also. So that is election period already. But he will still not be considered as a
The 14 February 2004 and 17 March 2004 speeches happened before the date
candidate.45(Emphasis added)
Eusebio is deemed to have filed his certificate of candidacy on 23 March 2004 for
purposes other than the printing of ballots. Eusebio, not being a candidate then, is
Thus, because of the early deadline of 2 January 2004 for purposes of printing of not liable for speeches on 14 February 2004 and 17 March 2004 asking the people
official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. to vote for him.
Congress, however, never intended the filing of a certificate of candidacy before 2
January 2004 to make the person filing to become immediately a "candidate" for
The survey showing Eusebio leading in the mayoralty race was published before
purposes other than the printing of ballots. This legislative intent prevents the
Eusebio was deemed to have filed his certificate of candidacy on 23 March 2004.
immediate application of Section 80 of the Omnibus Election Code to those filing to
Thus:
meet the early deadline. The clear intention of Congress was to preserve the
"election periods as x x x fixed by existing law" prior to RA 8436 and that one who
files to meet the early deadline "will still not be considered as a candidate." 3) He caused to be published in leading newspapers about a survey
allegedly done by Survey Specialist, Inc. showing him to be leading in the
mayoralty race in Pasig City.
Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA
8436, the campaign period for local officials commences 45 days before election
day. For the 2004 local elections, this puts the start of the campaign period on 24 They also presented Certification issued by Mr. Diego Cagahastian, News Editor of
March 2004. This also puts the last day for the filing of certificate of candidacy, Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of
under the law prior to RA 8436, on 23 March 2004. Eusebio is deemed to have filed Philippine Star dated March 2, 2004 to the effect that the articles in question came
his certificate of candidacy on from the camp of [Eusebio].48 (Emphasis in the original)

this date for purposes other than the printing of ballots because this is the Eusebio is not liable for this publication which was made before he became a
interpretation of Section 80 of the Omnibus Election Code most favorable to one candidate on 23 March 2004.
charged of its violation. Since Section 80 defines a criminal offense, 46 its provisions
must be construed liberally in favor of one charged of its violation. Thus, Eusebio The political advertisement in the Philippine Free Press issue of 7 February 2004
became a "candidate" only on 23 March 2004 for purposes other than the printing of was also made before Eusebio became a candidate on 23 March 2004. Thus:
ballots.

4) He paid a political advertisement in the Philippine Free Press in the


Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even amount of ₱193,660.00 as published in its issue dated February 7,
if constituting election campaigning or partisan political activities, are not punishable 2004.49 (Emphasis in the original)
under Section 80 of the Omnibus Election Code. Such acts are protected as part of
freedom of expression of a citizen before he becomes a candidate for elective public
office. Acts committed by Eusebio on or after 24 March 2004, or during the The display of Eusebio’s billboards, posters, stickers, and streamers, as well as his
campaign period, are not covered by Section 80 which punishes only acts outside distribution of free shoes, all happened also before Eusebio became a candidate on
the campaign period. 23 March 2004. Thus:

We now examine the specific questioned acts of Eusebio whether they violate 5) The display of billboards containing the words "Serbisyo Eusebio" and
Section 80 of the Omnibus Election Code. "ST" which means "Serbisyong Totoo" before the start of the campaign
period.

We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio:
6) Posters showing the respondent and his running mate Yoyong Martinez
as well those showing the name "KA ENTENG EUSEBIO" and "BOBBY
1) The speech uttered on February 14, 2004 during the meeting dubbed as EUSEBIO" in connection with the dengue project were posted everywhere
"Lingap sa Barangay" in Barangay San Miguel, Pasig City wherein [Eusebio] even before the start of the campaign period.
allegedly asked the people to vote for him and solicited for their support x
x x:
Petitioners’ witnesses Alfonso Cordova and Alfredo Lacsamana as well as
Hermogenes Garcia stated in their respective affidavits marked as Exhs. "L" and "L-
2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City 1" that the pictures were taken on March 3, 7 & 8, 2004.
wherein [Eusebio] again allegedly uttered defamatory statements against
7) Streamers bearing the words "Pasig City is for PEACE" were likewise Eusebio’s theory, Section 11 of RA 8436 punishes unlawful acts applicable to a
displayed with the two letters "E" prominently written. candidate only if committed during the campaign period.

Said streamers were among those captured by the camera of the petitioners’ By definition, the election offense in Section 80 of the Omnibus Election Code
witnesses Hermogenes Garcia and Nelia Sarmiento before the start of the campaign cannot be committed during the campaign period. On the other hand, under
period. Eusebio’s theory, unlawful acts applicable to a candidate cannot be committed
outside of the campaign period. The net result is to make the election offense in
Section 80 physically impossible to commit at any time. We shall leave this issue for
8) Stickers of [Eusebio] were likewise pasted all over the city before the
some other case in the future since the present case can be resolved without
start of the campaign period.
applying the proviso in Section 11 of RA 8436.

9) [Eusebio] engaged in vote-buying by distributing shoes to the students


Effect of Eusebio’s Possible
while telling the parents that by way of gratitude, they should vote for him.
Disqualification

The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon, Norie
As second placer, Lanot prayed that he be proclaimed as the rightful Pasig City
Altiche and Myrna Verdillo marked as Exh. "O" are uncontroverted. Their statement
Mayor in the event of Eusebio’s disqualification. As third placer, Benavides, on the
that free shoes were given to the students of Rizal High School was corroborated by
other hand, prays that she be proclaimed as the rightful Pasig City Mayor in the
the Manila Bulletin issue of February 6, 2004 which showed the picture of the
event of Eusebio’s disqualification and in view of Lanot’s death. Even if we assume
respondent delivering his speech before a group of students.
Eusebio’s disqualification as fact, we cannot grant either prayer.

Based on the findings of Director Ladra, the questioned acts attributed to Eusebio all
The disqualification of the elected candidate does not entitle the candidate who
occurred before the start of the campaign period on 24 March 2004. Indeed,
obtained the second highest number of votes to occupy the office vacated because
Director Ladra applied Section 80 of the Omnibus Election Code against Eusebio
of the disqualification.51 Votes cast in favor of a candidate who obtained the highest
precisely because Eusebio committed these acts "outside" of the campaign period.
number of votes, against whom a petition for disqualification was filed before the
However, Director Ladra erroneously assumed that Eusebio became a "candidate,"
election, are presumed to have been cast in the belief that he was qualified. For this
for purposes of Section 80, when Eusebio filed his certificate of candidacy on 29
reason, the second placer cannot be declared elected.52
December 2003.

The exception to this rule rests on two assumptions. First, the one who obtained the
Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes of
highest number of votes is disqualified. Second, the voters are so fully aware in fact
Section 80 of the Omnibus Election Code, only on 23 March 2004, the last day for
and in law of a candidate’s disqualification to bring such awareness within the realm
filing certificates of candidacy. Applying the facts - as found by Director Ladra and
of notoriety but nonetheless the voters still cast their votes in favor of the ineligible
affirmed by the COMELEC First Division - to Section 11 of RA 8436, Eusebio clearly
candidate.53 Lanot and Benavides failed to prove that the exception applies in the
did not violate Section 80 of the Omnibus Election Code which requires the
present case. Thus, assuming for the sake of argument that Eusebio is disqualified,
existence of a "candidate," one who has filed his certificate of candidacy, during the
the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall
commission of the questioned acts.
succeed in Eusebio’s place.54

Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the
WHEREFORE, we DISMISS the petition. We find no grave abuse of discretion in
questioned acts.1âwphi1 Eusebio points out that Section 11 contains the following
the 10 May 2004 Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004
proviso:
Order of the Commission on Elections En Banc. We SET ASIDE the 20 August 2004
Resolution of the Commission En Banc since respondent Vicente P. Eusebio did not
Provided, further, That, unlawful acts or omissions applicable to a candidate shall commit any act which would disqualify him as a candidate in the 10 May 2004
take effect upon the start of the aforesaid campaign period: x x x elections.

Eusebio theorizes that since the questioned acts admittedly took place before the G.R. No. 181613 September 11, 2009
start of the campaign period, such acts are not "unlawful acts or omissions ROSALINDA A. PENERA, Petitioner,
applicable to a candidate." vs. COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.

We find no necessity to apply in the present case this proviso in Section 11 of RA D E C I S I O N - CHICO-NAZARIO, J.:
8436. Eusebio’s theory legalizes election campaigning or partisan political activities
before the campaign period even if a person has already filed his certificate of
This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary
candidacy based on the election periods under existing laws prior to RA 8436. Under
Injunction and/or Temporary Restraining Order 1 under Rule 65, in relation to Rule
64 of the Rules of Court, seeks the nullification of the Resolution 2 dated 30 January On 24 July 2007, the COMELEC Second Division issued its Resolution in SPA No. 07-
2008 of the Commission on Elections (COMELEC) en banc. Said Resolution denied 224, penned by Commissioner Nicodemo T. Ferrer (Ferrer), which disqualified
the Motion for Reconsideration of the earlier Resolution 3 dated 24 July 2007 of the Penera from continuing as a mayoralty candidate in Sta. Monica, for engaging in
COMELEC Second Division in SPA No. 07-224, ordering the disqualification of herein premature campaigning, in violation of Sections 80 and 68 of the Omnibus Election
petitioner Rosalinda A. Penera (Penera) as a candidate for the position of mayor of Code.
the Municipality of Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007
Synchronized National and Local Elections.
The COMELEC Second Division found that:

The antecedents of the case, both factual and procedural, are set forth hereunder:
On the afternoon of 29 March 2007, the 1st [sic] day to file the certificates of
candidacy for local elective positions and a day before the start of the campaign
Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty period for the May 14, 2007 elections – [some of the members of the political party
candidates in Sta. Monica during the 14 May 2007 elections. Partido Padajon Surigao], headed by their mayoralty candidate "Datty" Penera, filed
their respective Certificates of Candidacy before the Municipal Election Officer of
Sta. Monica, Surigao del Norte.
On 2 April 2007, Andanar filed before the Office of the Regional Election Director
(ORED), Caraga Region (Region XIII), a Petition for Disqualification 4 against Penera,
as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to Accompanied by a bevy of supporters, [Penera and her partymates] came to the
her political party,5 for unlawfully engaging in election campaigning and partisan municipal COMELEC office on board a convoy of two (2) trucks and an undetermined
political activity prior to the commencement of the campaign period. The petition number of motorcycles, laden with balloons ad [sic] posters/banners containing
was docketed as SPA No. 07-224. names and pictures and the municipal positions for which they were seeking
election. Installed with [sic] one of the trucks was a public speaker sound
subsystem which broadcast [sic] the intent the [sic] run in the coming elections.
Andanar claimed that on 29 March 2007 – a day before the start of the authorized
The truck had the posters of Penera attached to it proclaiming his [sic] candidacy
campaign period on 30 March 2007 – Penera and her partymates went around the
for mayor. The streamer of [Mar Longos, a candidate for the position of Board
different barangays in Sta. Monica, announcing their candidacies and requesting the
Member,] was proudly seen at the vehicle’s side. The group proceeded to
people to vote for them on the day of the elections. Attached to the Petition were
motorcade until the barangays of Bailan, Libertad and as afar [sic] as Mabini almost
the Affidavits of individuals6 who witnessed the said incident.
nine (9) kilometers from Sta. Monica. [Penera and her partymates] were seen
aboard the vehicles and throwing candies to the residents and onlookers.
Penera alone filed an Answer7 to the Petition on 19 April 2007, averring that the
charge of premature campaigning was not true. Although Penera admitted that a
Various affidavits and pictures were submitted elucidating the above-mentioned
motorcade did take place, she explained that it was simply in accordance with the
facts. The above facts were also admitted in the Answer, the Position Paper and
usual practice in nearby cities and provinces, where the filing of certificates of
during the hearings conducted for this case, the only defense propounded by
candidacy (COCs) was preceded by a motorcade, which dispersed soon after the
[Penera] is that such acts allegedly do not constitute campaigning and is therefore
completion of such filing. In fact, Penera claimed, in the motorcade held by her
not proscribed by the pertinent election laws.
political party, no person made any speech, not even any of the candidates.
Instead, there was only marching music in the background and "a grand standing
for the purpose of raising the hands of the candidates in the motorcade." Finally, What we however find disturbing is [Penera’s] reference to the Ampig Case as the
Penera cited Barroso v. Ampig8 in her defense, wherein the Court supposedly ruled justification for the acts committed by [her]. There is really no reference to the acts
that a motorcade held by candidates during the filing of their COCs was not a form or similar acts committed by [Penera] as having been considered as not constituting
of political campaigning. political campaign or partisan political activity. The issue in that case is whether or
not the defect of the lack of a certification against non-forum [sic] shopping should
result to the immediate dismissal of the election cases filed in that case. There is
Also on 19 April 2007, Andanar and Penera appeared with their counsels before the
nothing in said case justifying a motorcade during the filing of certificates of
ORED-Region XIII, where they agreed to submit their position papers and other
candidacy. [Penera’s] reliance thereon is therefore misplaced and of no potency at
evidence in support of their allegations.9
all.

After the parties filed their respective Position Papers, the records of the case were
However, the photos submitted by [Andanar] only identified [Penera] and did not
transmitted to the COMELEC main office in Manila for adjudication. It was
have any notation identifying or indicating any of the other [candidates from
subsequently raffled to the COMELEC Second Division.1avvphi1
Penera’s party]. It cannot be conclusively proven that the other [candidates from
Penera’s party] were indeed with Penera during the Motorcade. More importantly,
While SPA No. 07-224 was pending before the COMELEC Second Division, the 14 the Answer and the Position Paper contain admissions referring only to [Penera].
May 2007 elections took place and, as a result thereof, Penera was proclaimed the There is therefore no justification for a whole sale [sic] disqualification of all the
duly elected Mayor of Sta. Monica. Penera soon assumed office on 2 July 2002. [candidates from Penera’s party], as even the petition failed to mention particularly
the participation of the other individual [party members]. 10
The afore-quoted findings of fact led the COMELEC Second Division to decree: importance should be given to sworn statements or affidavits submitted as
evidence, this did not mean that such affidavits should not be given any evidentiary
weight at all. Since Penera neither refuted the material averments in Andanar’s
PREMISES CONSIDERED, this Commission resolves to disqualify [Penera] but
Petition and the Affidavits attached thereto nor submitted countervailing evidence,
absolves the other [candidates from Penera’s party] from violation of section 80 and
then said Affidavits, even if taken ex parte, deserve some degree of importance.
68 of the Omnibus Elections [sic] Code.11
The COMELEC en banc likewise conceded that the pictures submitted by Andanar as
evidence would have been unreliable, but only if they were presented by their
Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion 12 on the lonesome. However, said pictures, together with Penera’s admissions and the
24 July 2007 Resolution. Although Commissioner Tuason concurred with the Affidavits of Andanar’s witnesses, constituted sufficient evidence to establish
ponente, he stressed that, indeed, Penera should be made accountable for her Penera’s violation of the rule against premature campaigning. Lastly, the COMELEC
actions after the filing of her COC on 29 March 2007. Prior thereto, there was no en banc accused Penera of deliberately trying to mislead the Commission by citing
candidate yet whose candidacy would have been enhanced by the premature Barroso, given that the said case was not even remotely applicable to the case at
campaigning. bar.

It was the third member of the COMELEC Second Division, Commissioner Rene V. Consistent with his previous stand, Commissioner Sarmiento again dissented 17 from
Sarmiento (Sarmiento) who put forth a Dissenting Opinion 13 on the 24 July 2007 the 30 January 2008 Resolution of the COMELEC en banc. He still believed that
Resolution. Commissioner Sarmiento believed that the pieces of evidence submitted Andanar was not able to adduce substantial evidence that would support the claim
by Andanar did not sufficiently establish probable cause that Penera engaged in of violation of election laws. Particularly, Commissioner Sarmiento accepted
premature campaigning, in violation of Sections 80 and 68 of the Omnibus Election Penera’s explanation that the motorcade conducted after the filing by Penera and
Code. The two photocopied pictures, purporting to be those of Penera, did not the other candidates of their COCs was merely part of the dispersal of the
clearly reveal what was actually happening in the truck or who were the passengers spontaneous gathering of their supporters. The incident was only in accord with
thereof. Likewise, the Affidavits seemed to have been prepared and executed by normal human social experience.
one and the same person because they had similar sentence construction and form,
and they were sworn to before the same attesting officer.
Still undeterred, Penera filed the instant Petition before us, praying that the
Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second
Penera filed before the COMELEC en banc a Motion for Reconsideration of the 24
14
Division and en banc, respectively, be declared null and void for having been issued
July 2007 Resolution of the COMELEC Second Division, maintaining that she did not with grave abuse of discretion amounting to lack or excess of jurisdiction.
make any admission on the factual matters stated in the appealed resolution.
Penera also contended that the pictures and Affidavits submitted by Andanar should
In a Resolution18 dated 4 March 2008, we issued a Temporary Restraining Order
not have been given any credence. The pictures were mere photocopies of the
(TRO), enjoining the COMELEC from implementing the assailed Resolutions, on the
originals and lacked the proper authentication, while the Affidavits were taken ex
condition that Penera post a bond in the amount of ₱5,000.00. We also directed
parte, which would almost always make them incomplete and inaccurate.
COMELEC and Andanar to comment on the instant Petition.
Subsequently, Penera filed a Supplemental Motion for Reconsideration, 15 explaining
that supporters spontaneously accompanied Penera and her fellow candidates in
filing their COCs, and the motorcade that took place after the filing was actually part After the COMELEC, through the Office of the Solicitor General (OSG), and Andanar
of the dispersal of said supporters and their transportation back to their respective filed their respective Comments19 on the Petition at bar, we required Penera, in a
barangays. Resolution20 dated 17 June 2008, to file a Reply. However, as no Reply was filed in
due time, we dismissed Penera’s Petition in a Resolution 21 dated 14 October 2008, in
accordance with Rule 56, Section 5(e) of the Rules of Court.22 Penera subsequently
In the Resolution dated 30 January 2008, the COMELEC en banc denied Penera’s
filed an Ex Parte Motion to Admit Reply,23 which we treated as a Motion for
Motion for Reconsideration, disposing thus:
Reconsideration of the Resolution dated 14 October 2008. On 11 November 2008,
we issued another Resolution reinstating Penera’s Petition. 24
WHEREFORE, this Commission RESOLVES to DENY the instant Motion for
Reconsideration filed by [Penera] for UTTER LACK OF MERIT.16
Penera presents the following issues for our consideration:

The COMELEC en banc ruled that Penera could no longer advance the arguments set
I. Whether or not [Penera] has engaged in an election campaign or partisan political
forth in her Motion for Reconsideration and Supplemental Motion for
activity outside the campaign period.
Reconsideration, given that she failed to first express and elucidate on the same in
her Answer and Position Paper. Penera did not specifically deny the material
averments that the motorcade "went as far as Barangay Mabini, announcing their II. Whether the contents of the complaint are deemed admitted for failure of
candidacy and requesting the people to vote for them on Election Day," despite the [Penera] to specifically deny the same.
fact that the same were clearly propounded by Andanar in his Petition for
Disqualification and Position Paper. Therefore, these material averments should be
considered admitted. Although the COMELEC en banc agreed that no undue
III. Whether or not [Andanar] has presented competent and substantial evidence to The sole function of a writ of certiorari is to address issues of want of jurisdiction or
justify a conclusion that [Penera] violated Section 80 and 68 of the Omnibus grave abuse of discretion, and it does not include a review of the tribunal’s
Election Code. evaluation of the evidence.25 Because of its fact-finding facilities and its knowledge
derived from actual experience, the COMELEC is in a peculiarly advantageous
position to evaluate, appreciate and decide on factual questions before it. Factual
IV. Whether or not [the COMELEC] committed grave abuse of discretion amounting
findings of the COMELEC, based on its own assessments and duly supported by
to lack of or in excess of jurisdiction in finding that the act of [Penera] in conducting
evidence, are conclusive on this Court, more so in the absence of a grave abuse of
a motorcade before the filing of her certificate of candidacy constitutes premature
discretion, arbitrariness, fraud, or error of law in the questioned resolutions. Unless
campaigning.
any of these causes are clearly substantiated, the Court will not interfere with the
findings of fact of the COMELEC.26
V. Whether or not [the COMELEC] committed grave abuse of discretion amounting
to lack of or in excess of jurisdiction when it resolves [sic] to disqualify [Penera]
Grave abuse of discretion is such capricious and whimsical exercise of judgment
despite the failure of [Andanar] to present competent, admissible and substantial
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be
evidence to prove [the] violation of Section 68 and 80 of the Omnibus Election
grave, as when it is exercised arbitrarily or despotically by reason of passion or
Code.
personal hostility. The abuse must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to
Penera claims that the COMELEC exercised its discretion despotically, arbitrarily and act at all in contemplation of law.27
whimsically in disqualifying her as a mayoralty candidate in Sta. Monica on the
ground that she engaged in premature campaigning. She asserts that the evidence
We find no grave abuse of discretion amounting to lack or excess of jurisdiction on
adduced by Andanar was grossly insufficient to warrant the ruling of the COMELEC.
the part of the COMELEC Second Division in disqualifying Penera as a mayoralty
candidate in Sta. Monica in the Resolution dated 24 July 2007; and also on the part
Penera insists that the COMELEC Second Division erred in its findings of fact, of the COMELEC en banc in denying Penera’s Motion for Reconsideration on the
basically adopting Andanar’s allegations which, contrary to the belief of the Resolution dated 30 January 2008. Said Resolutions are sufficiently supported by
COMELEC Second Division, Penera never admitted. Penera maintains that the substantial evidence, meaning, such evidence as a reasonable mind might accept as
motorcade was spontaneous and unplanned, and the supporters merely joined adequate to support a conclusion.28
Penera and the other candidates from her party along the way to, as well as within
the premises of, the office of the COMELEC Municipal Election Officer. Andanar’s
The prohibited act of premature campaigning is defined under Section 80 of the
averments – that after Penera and the other candidates from her party filed their
Omnibus Election Code, to wit:
COCs, they held a motorcade in the different barangays of Sta. Monica, waived their
hands to the public and threw candies to the onlookers – were not supported by
competent substantial evidence. Echoing Commissioner Sarmiento’s dissent from SECTION 80. Election campaign or partisan political activity outside campaign
the assailed COMELEC Resolutions, Penera argues that too much weight and period. — It shall be unlawful for any person, whether or not a voter or
credence were given to the pictures and Affidavits submitted by Andanar. The candidate, or for any party, or association of persons, to engage in an
declaration by the COMELEC that it was Penera in the pictures is tenuous and election campaign or partisan political activity except during the campaign
erroneous, as the COMELEC has no personal knowledge of Penera’s identity, and the period: Provided, That political parties may hold political conventions or meetings
said pictures do not clearly reveal the faces of the individuals and the contents of to nominate their official candidates within thirty days before the commencement of
the posters therein. In the same vein, the Affidavits of Andanar’s known supporters, the campaign period and forty-five days for Presidential and Vice-Presidential
executed almost a month after Andanar filed his Petition for Disqualification before election. (Emphasis ours.)
the ORED-Region XIII, were obviously prepared and executed by one and the same
person, because they have a similar sentence construction, and computer font and
If the commission of the prohibited act of premature campaigning is duly proven,
form, and were even sworn to before the same attesting officer on the same date.
the consequence of the violation is clearly spelled out in Section 68 of the said
Code, which reads:
We find no merit in the instant Petition.
SECTION. 68. Disqualifications. - Any candidate who, in an action or protest in
The questions of fact which he is a party is declared by final decision of a competent court guilty of, or
found by the Commission of having xxx (e) violated any of Sections80, 83, 85,
86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified
Crystal clear from the above arguments is that Penera is raising only questions of
from continuing as a candidate, or if he has been elected, from holding the
fact in her Petition presently before us. We do not find any reason to pass upon the
office. Any person who is a permanent resident of or an immigrant to a foreign
same, as this Court is not a trier of facts. It is not the function of the Court to
country shall not be qualified to run for any elective office under this Code, unless
review, examine and evaluate or weigh the probative value of the evidence
said person has waived his status as permanent resident or immigrant of a foreign
presented. A question of fact would arise in such an event.
country in accordance with the residence requirement provided for in the election
laws. (Emphases ours.)
In the case at bar, it had been sufficiently established, not just by Andanar’s undertaken for no other purpose than to promote the election of a particular
evidence, but also those of Penera herself, that Penera and her partymates, after candidate or candidates.
filing their COCs on 29 March 2007, participated in a motorcade which passed
through the different barangays of Sta. Monica, waived their hands to the public,
In the instant Petition, Penera never denied that she took part in the conduct of the
and threw candies to the onlookers.
motorcade after she filed her COC on the day before the start of the campaign
period. She merely claimed that the same was not undertaken for campaign
Indeed, Penera expressly admitted in her Position Paper that: purposes. Penera proffered the excuse that the motorcade was already part of the
dispersal of the supporters who spontaneously accompanied Penera and her
partymates in filing their COCs. The said supporters were already being transported
Respondents actually had a motorcade of only two (2) jeppneys [sic] and ten (10)
back to their respective barangays after the COC filing. Penera stressed that no
motorcycles after filing their Certificate of Candidacy at 3:00 P.M., March 29, 2007
speech was made by any person, and there was only background marching music
without any speeches made and only one streamer of a board member Candidate
and a "grand standing for the purpose of raising the hands of the candidates in the
and multi-colored balloons attached to the jeppneys [sic] and
motorcade.
motorcycles.29 (Emphasis ours.)

We are not convinced.


Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante Platil,
attached to Penera’s Position Paper, gave an even more straightforward account of
the events, thus: As we previously noted, Penera and her witnesses admitted that the vehicles,
consisting of two jeepneys and ten motorcycles, were festooned with multi-colored
balloons; the motorcade went around three barangays in Sta. Monica; and Penera
1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao del Norte,
and her partymates waved their hands and threw sweet candies to the crowd. With
Mayoralty Candidates Rosalinda CA. Penera [sic] and her parties of four (4)
vehicles, balloons, and even candies on hand, Penera can hardly persuade us that
kagawads filed their certificate of candidacy at the COMELEC Office;
the motorcade was spontaneous and unplanned.

2. That their [sic] was a motorcade consisting of two jeppneys [sic] and 10
For violating Section 80 of the Omnibus Election Code, proscribing election
motorcycles after actual registration with the COMELEC with jeeps decorated with
campaign or partisan political activity outside the campaign period, Penera must be
balloons and a streamer of Margarito Longos, Board Member Candidate;
disqualified from holding the office of Mayor of Sta. Monica.

3. That the motorcade proceeded to three (3) barangays out of the 11 barangays
The questions of law
while supporters were throwing sweet candies to the crowd;

The dissenting opinion, however, raises the legal issue that Section 15 of Republic
4. That there was merriment and marching music without mention of any name of
Act No. 8436, as amended by Republic Act No. 9369, provides a new definition of
the candidates more particularly lead-candidate Rosalinda CA. Penera [sic];
the term "candidate," as a result of which, premature campaigning may no longer
be committed.
5. That we were in the motorcade on that afternoon only riding in one of the
jeepneys.30 (Emphases ours.)
Under Section 79(a) of the Omnibus Election Code, a candidate is "any person
aspiring for or seeking an elective public office, who has filed a certificate of
In view of the foregoing admissions by Penera and her witnesses, Penera cannot candidacy by himself or through an accredited political party, aggroupment, or
now be allowed to adopt a conflicting position. coalition of parties."

More importantly, the conduct of a motorcade is a form of election campaign or Republic Act No. 8436,32 enacted on 22 December 1997, authorized the COMELEC to
partisan political activity, falling squarely within the ambit of Section 79(b)(2) of the use an automated election system for the process of voting, counting of votes, and
Omnibus Election Code, on "[h]olding political caucuses, conferences, meetings, canvassing/consolidating the results of the national and local elections. The statute
rallies, parades, or other similar assemblies, for the purpose of soliciting votes also mandated the COMELEC to acquire automated counting machines, computer
and/or undertaking any campaign or propaganda for or against a candidate[.]" A equipment, devices and materials; and to adopt new electoral forms and printing
motorcade is a procession or parade of automobiles or other motor vehicles. 31 The materials. In particular, Section 11 of Republic Act No. 8436 provided for the
conduct thereof during election periods by the candidates and their supporters is a specifications of the official ballots to be used in the automated election system and
fact that need not be belabored due to its widespread and pervasive practice. The the guidelines for the printing thereof, the relevant portions of which state:
obvious purpose of the conduct of motorcades is to introduce the candidates and
the positions, to which they seek to be elected, to the voting public; or to make
SECTION 11. Official ballot. - The Commission shall prescribe the size and form of
them more visible so as to facilitate the recognition and recollection of their names
the official ballot which shall contain the titles of the positions to be filled and/or the
in the minds of the voters come election time. Unmistakably, motorcades are
propositions to be voted upon in an initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged alphabetically by surname and period: Provided, finally, That any person holding a public appointive office or
uniformly printed using the same type size. A fixed space where the chairman of the position, including active members of the armed forces, and officers, and employees
Board of Election inspectors shall affix his/her signature to authenticate the official in government-owned or-controlled corporations, shall be considered ipso
ballot shall be provided. factor resigned from his/her office and must vacate the same at the start of the day
of the filing of his/her certification of candidacy. (Emphases ours.)
Both sides of the ballots may be used when necessary.
In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended,
the Dissenting Opinion argues that Section 80 of the Omnibus Election Code can not
For this purpose, the deadline for the filing of certificate of candidacy/petition for
be applied to the present case since, as the Court held in Lanot v. Commission on
registration/manifestation to participate in the election shall not be later than one
Elections,34 the election campaign or partisan activity, which constitute the
hundred twenty (120) days before the elections: Provided, That, any elective
prohibited premature campaigning, should be designed to promote the election or
official, whether national or local, running for any office other than the one which
defeat of a particular candidate or candidates. Under present election laws, while a
he/she is holding in a permanent capacity, except for president and vice-president,
person may have filed his/her COC within the prescribed period for doing so, said
shall be deemed resigned only upon the start of the campaign period corresponding
person shall not be considered a candidate until the start of the campaign period.
to the position for which he/she is running: Provided, further, That, unlawful acts or
Thus, prior to the start of the campaign period, there can be no election campaign
omissions applicable to a candidate shall take effect upon the start of the aforesaid
or partisan political activity designed to promote the election or defeat of a
campaign period: Provided, finally, That, for purposes of the May 11, 1998
particular candidate to public office because there is no candidate to speak of.
elections, the deadline for filing of the certificate of candidacy for the positions of
President, Vice President, Senators and candidates under the Party-List System as
well as petitions for registration and/or manifestation to participate in the Party-List According to the Dissenting Opinion, even if Penera’s acts before the start of the
System shall be on February 9, 1998 while the deadline for the filing of certificate of campaign period constitute election campaigning or partisan political activities,
candidacy for other positions shall be on March 27, 1998. (Emphases ours.) these are not punishable under Section 80 of the Omnibus Election Code given that
she was not yet a candidate at that time. On the other hand, Penera’s acts, if
committed within the campaign period, when she was already a candidate, are
On 10 February 2007, Republic Act No. 936933 took effect. Section 13 of Republic
likewise not covered by Section 80 as this provision punishes only acts outside the
Act No. 9369 amended Section 11 of Republic Act No. 8436 and renumbered the
campaign period.
same as the new Section 15 of Republic Act No. 8436. The pertinent portions of
Section 15 of Republic Act No. 8436, as amended by Republic Act No. 9369, now
read: The Dissenting Opinion ultimately concludes that because of Section 15 of Republic
Act No. 8436, as amended, the prohibited act of premature campaigning in Section
80 of the Omnibus Election Code, is practically impossible to commit at any time.
SECTION.15. Official Ballot. - The Commission shall prescribe the format of the
electronic display and/or the size and form of the official ballot, which shall contain
the titles of the position to be filled and/or the proposition to be voted upon in an We disagree. Section 80 of the Omnibus Election Code remains relevant and
initiative, referendum or plebiscite. Where practicable, electronic displays must be applicable despite Section 15 of Republic Act No. 8436, as amended.
constructed to present the names of all candidates for the same position in the
same page or screen, otherwise, the electronic displays must be constructed to
A close reading of the entire Republic Act No. 9369, which amended Republic Act
present the entire ballot to the voter, in a series of sequential pages, and to ensure
No. 8436, would readily reveal that that it did not contain an express repeal of
that the voter sees all of the ballot options on all pages before completing his or her
Section 80 of the Omnibus Election Code. An express repeal is one wherein a
vote and to allow the voter to review and change all ballot choices prior to
statute declares, usually in its repealing clause, that a particular and specific law,
completing and casting his or her ballot. Under each position to be filled, the names
identified by its number or title, is repealed.35 Absent this specific requirement, an
of candidates shall be arranged alphabetically by surname and uniformly indicated
express repeal may not be presumed.
using the same type size. The maiden or married name shall be listed in the official
ballot, as preferred by the female candidate. Under each proposition to be vote
upon, the choices should be uniformly indicated using the same font and size. Although the title of Republic Act No. 9369 particularly mentioned the amendment
of Batas Pambansa Blg. 881, or the Omnibus Election Code, to wit:
A fixed space where the chairman of the board of election inspector shall affix
her/her signature to authenticate the official ballot shall be provided. An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the
Commission on Elections to Use an Automated Election System x x x, Amending
for the Purpose Batas Pambansa Blg. 881, As Amended x x x. (Emphasis
For this purpose, the Commission shall set the deadline for the filing of certificate of
ours.),
candidacy/petition of registration/manifestation to participate in the election. Any
person who files his certificate of candidacy within this period shall only be
considered as a candidate at the start of the campaign period for which he filed his said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa
certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a Blg. 881. Such fact is indeed very material. Repeal of a law means its complete
candidate shall effect only upon the start of the aforesaid campaign abrogation by the enactment of a subsequent statute, whereas the amendment of a
statute means an alteration in the law already existing, leaving some part of the For this reason, the plain declaration in Lanot that "[w]hat Section 80 of the
original still standing.36 Section 80 of the Omnibus Election Code is not even one of Omnibus Election Code prohibits is ‘an election campaign or partisan political
the specific provisions of the said code that were expressly amended by Republic activity’ by a ‘candidate’ ‘outside’ of the campaign period," 41 is clearly erroneous.
Act No. 9369.
Second, Section 79(b) of the Omnibus Election Code defines election campaign or
Additionally, Section 46,37 the repealing clause of Republic Act No. 9369, states partisan political activity in the following manner:
that:
SECTION 79. Definitions. - As used in this Code:
Sec. 46. Repealing Clause. – All laws, presidential decrees, executive orders, rules
and regulations or parts thereof inconsistent with the provisions of this Act are
(b) The term "election campaign" or "partisan political activity" refers to an act
hereby repealed or modified accordingly.
designed to promote the election or defeat of a particular candidate or candidates to
a public office which shall include:
Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause
which predicates the intended repeal under the condition that a substantial conflict
(1) Forming organizations, associations, clubs, committees or other groups of
must be found in existing and prior acts. The failure to add a specific repealing
persons for the purpose of soliciting votes and/or undertaking any campaign for or
clause indicates that the intent was not to repeal any existing law, unless an
against a candidate;
irreconcilable inconsistency and repugnancy exist in the terms of the new and old
laws. This latter situation falls under the category of an implied repeal. 38
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any
Well-settled is the rule in statutory construction that implied repeals are disfavored.
campaign or propaganda for or against a candidate;
In order to effect a repeal by implication, the later statute must be so irreconcilably
inconsistent and repugnant with the existing law that they cannot be made to
reconcile and stand together. The clearest case possible must be made before the (3) Making speeches, announcements or commentaries, or holding interviews for or
inference of implied repeal may be drawn, for inconsistency is never presumed. against the election of any candidate for public office;
There must be a showing of repugnance clear and convincing in character. The
language used in the later statute must be such as to render it irreconcilable with (4) Publishing or distributing campaign literature or materials designed to support or
what had been formerly enacted. An inconsistency that falls short of that standard oppose the election of any candidate; or
does not suffice.39

(5) Directly or indirectly soliciting votes, pledges or support for or against a


Courts of justice, when confronted with apparently conflicting statutes, should candidate.
endeavor to reconcile the same instead of declaring outright the invalidity of one as
against the other. Such alacrity should be avoided. The wise policy is for the judge
to harmonize them if this is possible, bearing in mind that they are equally the True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after
handiwork of the same legislature, and so give effect to both while at the same time the filing of the COC but before the start of the campaign period, a person is not yet
also according due respect to a coordinate department of the government. 40 officially considered a candidate. Nevertheless, a person, upon the filing of his/her
COC, already explicitly declares his/her intention to run as a candidate in the
coming elections. The commission by such a person of any of the acts enumerated
To our mind, there is no absolute and irreconcilable incompatibility between Section under Section 79(b) of the Omnibus Election Code (i.e., holding rallies or parades,
15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election making speeches, etc.) can, thus, be logically and reasonably construed as for the
Code, which defines the prohibited act of premature campaigning. It is possible to purpose of promoting his/her intended candidacy.
harmonize and reconcile these two provisions and, thus, give effect to both.

When the campaign period starts and said person proceeds with his/her candidacy,
The following points are explanatory: his/her intent turning into actuality, we can already consider his/her acts, after the
filing of his/her COC and prior to the campaign period, as the promotion of his/her
First, Section 80 of the Omnibus Election Code, on premature campaigning, election as a candidate, hence, constituting premature campaigning, for which
explicitly provides that "[i]t shall be unlawful for any person, whether or not a voter he/she may be disqualified. Also, conversely, if said person, for any reason,
or candidate, or for any party, or association of persons, to engage in an election withdraws his/her COC before the campaign period, then there is no point to view
campaign or partisan political activity, except during the campaign period." Very his/her acts prior to said period as acts for the promotion of his/her election as a
simply, premature campaigning may be committed even by a person who is not a candidate. In the latter case, there can be no premature campaigning as there is no
candidate. candidate, whose disqualification may be sought, to begin with. 42
Third, in connection with the preceding discussion, the line in Section 15 of Republic Verily, the consequences provided for in Section 6844 of the Omnibus Election Code
Act No. 8436, as amended, which provides that "any unlawful act or omission for the commission of the prohibited act of premature campaigning are severe: the
applicable to a candidate shall take effect only upon the start of the campaign candidate who is declared guilty of committing the offense shall be disqualified from
period," does not mean that the acts constituting premature campaigning can only continuing as a candidate, or, if he/she has been elected, from holding office. Not to
be committed, for which the offender may be disqualified, during the campaign mention that said candidate also faces criminal prosecution for an election offense
period. Contrary to the pronouncement in the dissent, nowhere in the said proviso under Section 262 of the same Code.
was it stated that campaigning before the start of the campaign period is lawful,
such that the offender may freely carry out the same with impunity.
The Dissenting Opinion, therefore, should not be too quick to pronounce the
ineffectiveness or repeal of Section 80 of the Omnibus Election Code just because of
As previously established, a person, after filing his/her COC but prior to his/her a change in the meaning of candidate by Section 15 of Republic Act No. 8436, as
becoming a candidate (thus, prior to the start of the campaign period), can already amended, primarily, for administrative purposes. An interpretation should be
commit the acts described under Section 79(b) of the Omnibus Election Code as avoided under which a statute or provision being construed is defeated, or as
election campaign or partisan political activity. However, only after said person otherwise expressed, nullified, destroyed, emasculated, repealed, explained away,
officially becomes a candidate, at the beginning of the campaign period, can said or rendered insignificant, meaningless, inoperative, or nugatory. 45 Indeed, not only
acts be given effect as premature campaigning under Section 80 of the Omnibus will the prohibited act of premature campaigning be officially decriminalized, the
Election Code. Only after said person officially becomes a candidate, at the start of value and significance of having a campaign period before the conduct of elections
the campaign period, can his/her disqualification be sought for acts constituting would also be utterly negated. Any unscrupulous individual with the deepest of
premature campaigning. Obviously, it is only at the start of the campaign period, campaign war chests could then afford to spend his/her resources to promote
when the person officially becomes a candidate, that the undue and iniquitous his/her candidacy well ahead of everyone else. Such is the very evil that the law
advantages of his/her prior acts, constituting premature campaigning, shall accrue seeks to prevent. Our lawmakers could not have intended to cause such an absurd
to his/her benefit. Compared to the other candidates who are only about to begin situation.
their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her candidacy.
The Dissenting Opinion attempts to brush aside our preceding arguments by
contending that there is no room for statutory construction in the present case since
As can be gleaned from the foregoing disquisition, harmony in the provisions of Section 15 of Republic Act No. 8436,46 as amended by Section 13 of Republic Act
Sections 80 and 79 of the Omnibus Election Code, as well as Section 15 of Republic No. 9369,47 is crystal clear in its meaning. We disagree. There would only be no
Act No. 8436, as amended, is not only very possible, but in fact desirable, need for statutory construction if there is a provision in Republic Act No. 8436 or
necessary and consistent with the legislative intent and policy of the law. Republic Act No. 9369 that explicitly states that there shall be no more premature
campaigning. But absent the same, our position herein, as well as that of the
Dissenting Opinion, necessarily rest on our respective construction of the legal
The laudable and exemplary intention behind the prohibition against premature
provisions involved in this case.
campaigning, as declared in Chavez v. Commission on Elections, 43 is to level the
playing field for candidates of public office, to equalize the situation between the
popular or rich candidates, on one hand, and lesser-known or poorer candidates, on Notably, while faulting us for resorting to statutory construction to resolve the
the other, by preventing the former from enjoying undue advantage in exposure instant case, the Dissenting Opinion itself cites a rule of statutory construction,
and publicity on account of their resources and popularity. The intention for particularly, that penal laws should be liberally construed in favor of the offender.
prohibiting premature campaigning, as explained in Chavez, could not have been The Dissenting Opinion asserts that because of the third paragraph in Section 15 of
significantly altered or affected by Republic Act No. 8436, as amended by Republic Republic Act No. 8436, as amended, the election offense described in Section 80 of
Act No. 9369, the avowed purpose of which is to carry-on the automation of the the Omnibus Election Code is practically impossible to commit at any time and that
election system. Whether the election would be held under the manual or the this flaw in the law, which defines a criminal act, must be construed in favor of
automated system, the need for prohibiting premature campaigning – to level the Penera, the offender in the instant case.
playing field between the popular or rich candidates, on one hand, and the lesser-
known or poorer candidates, on the other, by allowing them to campaign only within
The application of the above rule is uncalled for. It was acknowledged in Lanot that
the same limited period – remains.
a disqualification case has two aspects: one, electoral; 48 the other, criminal.49 The
instant case concerns only the electoral aspect of the disqualification case. Any
We cannot stress strongly enough that premature campaigning is a pernicious act discussion herein on the matter of Penera’s criminal liability for premature
that is continuously threatening to undermine the conduct of fair and credible campaigning would be nothing more than obiter dictum. More importantly, as
elections in our country, no matter how great or small the acts constituting the heretofore already elaborated upon, Section 15 of Republic Act No. 8436, as
same are. The choice as to who among the candidates will the voting public bestow amended, did not expressly or even impliedly repeal Section 80 of the Omnibus
the privilege of holding public office should not be swayed by the shrewd conduct, Election Code, and these two provisions, based on legislative intent and policy, can
verging on bad faith, of some individuals who are able to spend resources to be harmoniously interpreted and given effect. Thus, there is no flaw created in the
promote their candidacies in advance of the period slated for campaign activities. law, arising from Section 15 of Republic Act No. 8436, as amended, which needed
to be construed in Penera’s favor.
The Dissenting Opinion further expresses the fear that pursuant to our "theory," all Succession
the politicians with "infomercials" prior to the filing of their COCs would be subject
to disqualification, and this would involve practically all the prospective presidential
Despite the disqualification of Penera, we cannot grant Andanar’s prayer to be
candidates who are now leading in the surveys.
allowed to assume the position of Mayor of Sta. Monica. The well-established
principle is that the ineligibility of a candidate receiving majority votes does not
This fear is utterly unfounded. It is the filing by the person of his/her COC through entitle the candidate receiving the next highest number of votes to be declared
which he/she explicitly declares his/her intention to run as a candidate in the elected.51
coming elections. It is such declaration which would color the subsequent acts of
said person to be election campaigning or partisan political activities as described
In this case, the rules on succession under the Local Government Code shall apply,
under Section 79(b) of the Omnibus Election Code. It bears to point out that, at this
to wit:
point, no politician has yet submitted his/her COC. Also, the plain solution to this
rather misplaced apprehension is for the politicians themselves to adhere to the
letter and intent of the law and keep within the bounds of fair play in the pursuit of SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,
their candidacies. This would mean that after filing their COCs, the prudent and Mayor, and Vice-Mayor. – If a permanent vacancy occurs in the office of the xxx
proper course for them to take is to wait for the designated start of the campaign mayor, the x x x vice-mayor concerned shall become the x x x mayor.
period before they commence their election campaign or partisan political activities.
Indeed, such is the only way for them to avoid disqualification on the ground of For purposes of this Chapter, a permanent vacancy arises when an elective local
premature campaigning. It is not for us to carve out exceptions to the law, much official fills a higher vacant office, refuses to assume office, fails to qualify or is
more to decree away the repeal thereof, in order to accommodate any class of removed from office, voluntarily resigns, or is otherwise permanently
individuals, where no such exception or repeal is warranted. incapacitated to discharge the functions of his office. (Emphases ours.)

Lastly, as we have observed at the beginning, Penera’s Petition is essentially Considering Penera’s disqualification from holding office as Mayor of Sta. Monica,
grounded on questions of fact. Penera’s defense against her disqualification, before the proclaimed Vice-Mayor shall then succeed as Mayor.
the COMELEC and this Court, rests on the arguments that she and her partymates
did not actually hold a motorcade; that their supporters spontaneously accompanied
Penera and the other candidates from her political party when they filed their WHEREFORE, premises considered, the instant Petition for Certiorari is hereby
certificates of candidacy; that the alleged motorcade was actually the dispersal of DISMISSED. The Resolutions dated 24 July 2007 and 30 January 2008 of the
the supporters of Penera and the other candidates from her party as said supporters COMELEC Second Division and en banc, respectively, in SPA No. 07-224 are hereby
were dropped off at their respective barangays; and that Andanar was not able to AFFIRMED. In view of the disqualification of petitioner Rosalinda A. Penera from
present competent, admissible, and substantial evidence to prove that Penera running for the office of Mayor of Sta. Monica, Surigao del Norte, and the resulting
committed premature campaigning. Penera herself never raised the argument that permanent vacancy therein, it is hereby DECLARED that the proclaimed Vice-Mayor
she can no longer be disqualified for premature campaigning under Section 80, in is the rightful successor to said office. The Temporary Restraining Order issued on 4
relation to Section 68, of the Omnibus Election Code, since the said provisions have March 2008 is hereby ORDERED lifted. Costs against the petitioner.
already been, in the words of the Dissenting Opinion, rendered "inapplicable,"
"repealed," and "done away with" by Section 15 of Republic Act No. 8436, as G.R. No. 139792 November 22, 2000
amended. This legal argument was wholly raised by the Dissenting Opinion. ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS,
METROPOLITAN AUTHORITY, now known as METROPOLITAN MANILA
As a rule, a party who deliberately adopts a certain theory upon which the case is DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE
tried and decided by the lower court will not be permitted to change theory on COMMISSION, respondents.
appeal. Points of law, theories, issues, and arguments not brought to the attention
of the lower court need not be, and ordinarily will not be, considered by a reviewing D E C I S I O N - DAVIDE, JR., C.J.:
court, as these cannot be raised for the first time at such late stage. Basic
considerations of due process underlie this rule.50 If we do not allow and consider
the change in theory of a case by a party on appeal, should we not also refrain from In this petition for review on certiorari petitioner assails the decision of 19 August
motu proprio adopting a theory which none of the parties even raised before us? 1999 of the Court of Appeals1 in CA-G.R. SP No. 48301, which held that petitioner’s
separation pay under Section 11 of R.A. No. 7924 should be limited to the number
of years of his service in the Metropolitan Manila Authority (MMA) only, excluding
Nonetheless, the questions of fact raised by Penera and questions of law raised by his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City
the Dissenting Opinion must all be resolved against Penera. Penera should be for which he has already been given retirement gratuity and pension.
disqualified from holding office as Mayor of Sta. Monica for having committed
premature campaigning when, right after she filed her COC, but still a day before
the start of the campaign period, she took part in a motorcade, which consisted of The undisputed facts are as follows:
two jeepneys and ten motorcycles laden with multi-colored balloons that went
around several barangays of Sta. Monica, and gave away candies to the crowd.
On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, Judiciary, should be credited in the computation of his separation benefits under
and he thereafter assumed office. After the military-backed EDSA revolt, petitioner R.A. No. 7924. The Assistant Manager for Finance of the MMDA referred the Position
was reappointed to the same position. Paper to the Regional Office of the CSC-NCR.

On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. On 7 October 1996, Director IV Nelson Acebedo of the CSC-NCR handed down an
910,2 as amended, and received his retirement gratuity under the law for his entire opinion that the payment of petitioner’s separation pay must be in accordance with
years in the government service; and five years thereafter he has been regularly Civil Service Resolution No. 92-063, pertinent portions of which read:
receiving a monthly pension.
[T]he payment of separation/[retirement] benefits cannot be subject to the
On 2 December 1993, petitioner re-entered the government service. He was prohibition against the [sic] double compensation in cases when officers and
appointed Director III of the Traffic Operation Center of the MMA. His appointment employees who were previously granted said benefits are rehired or reemployed in
was approved by the Civil Service Commission (CSC). another government Agency or Office. Thus, there is no need for separated
employees to refund the separation/retirement benefits they received when
subsequently reemployed in another government agency or office.
On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and
renamed it as Metropolitan Manila Development Authority (MMDA). Section 11
thereof reads: … This being so, while an employee who was paid separation/retirement benefits is
not required to refund the same once reemployed in the government service, as
aforestated, for reasons of equity however, it would be proper and logical that said
Section 11. Transitory Provisions. – To prevent disruption in the delivery of basic
separation/retirement benefits should nevertheless be deducted from the
urban services pending the full implementation of the MMDA’s organizational
retirement/[separation] pay to be received by the employee concerned. Moreover,
structure and staffing pattern, all officials and employees of the interim MMA shall
in this instance, the employee concerned has the option either to refund his
continue to exercise their duties and functions and receive their salaries and
separation/retirement benefits and claim his gross retirement/separation pay
allowances until they shall have been given notice of change of duties and functions,
without any deduction corresponding to his separation pay received, or not [to]
and of being transferred to another office or position.
refund his separation/retirement pay but suffer a deduction of his
retirement/separation gratuity for the total amount representing his previous
... separation/retirement pay received.

The civil service laws, rules and regulations pertinent to the displacement of His motion for reconsideration having been denied, petitioner elevated the opinion
personnel affected by this Act shall be strictly enforced. The national government of Director Acebedo to the CSC.
shall provide such amounts as may be necessary to pay the benefits accruing to
displaced employees at the rate of one and one-fourth (1¼) month’s salary for
On 21 October 1997, the CSC promulgated Resolution No. 97-4266 affirming the
every year of service: Provided, That, if qualified for retirement under existing
opinion of Director Acebedo and dismissing petitioner’s appeal. Citing Chaves v.
retirement laws, said employees may opt to receive the benefits thereunder.
Mathay,3 it held that petitioner cannot be paid retirement benefits twice – one under
R.A. No. 910, as amended, and another under R.A. No. 7924 – for the same
On 16 May 1996, the President of the Philippines issued Memorandum Order No. services he rendered as MeTC Judge. He can only exercise one of two options in the
372 approving the Rules and Regulations Implementing R.A. No. 7924. Pursuant computation of his separation pay under R.A. 7924. These options are (1) to refund
thereto, the MMDA issued Resolution No. 16, series of 1996, which, inter the gratuity he received under R.A. No. 910, as amended, after he retired from the
alia, authorized the payment of separation benefits to the officials and employees of MeTC and get the full separation pay for his entire years in the government, that is
the former MMA who would be separated as a result of the implementation of R.A. 9 years and 2 months with the MeTC plus two (2) years and eight (8) months for
No. 7924. his services as Director III in the defunct MMA, at the rate of one and one-fourth
salary for every year of service pursuant to MMDA Memorandum dated 30 August
On 30 August 1996, the MMDA issued a Memorandum to petitioner informing him 1996; or (2) to retain the gratuity pay he received for his services as MeTC Judge
that in view of his "voluntary option to be separated from the service" his services but an equivalent amount shall be deducted from the separation benefits due from
would automatically cease effective at the close of office hours on 15 September the former MMA for his entire government service.
1996, and that he would be entitled to "separation benefits equivalent to one and
one-fourth (1¼) monthly salary for every year of service as provided under Section On 9 June 1998, the CSC promulgated Resolution No. 98-1422 denying petitioner’s
11 of the MMDA Law." motion for reconsideration. Accordingly, petitioner filed with the Court of Appeals a
petition to set aside these Resolutions.
In view of some doubt or confusion as to the extent of his separation benefits,
petitioner submitted a Position Paper wherein he asserted that since the retirement On 19 August 1999, the Court of Appeals promulgated its decision, now challenged
gratuity he received under R.A. No. 910, as amended, is not an additional or double in this case. It held that the CSC was "correct in dismissing petitioner’s appeal from
compensation, all the years of his government service, including those years in the the opinion of Director Acebedo." It ratiocinated as follows:
There is no specific rule of law which applies to petitioner’s case. Nevertheless, the In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of
Court finds it equitable to deny his claim for payment of separation pay at the rate separation pay at the rate of "one and one-fourth (1¼) months of salary for every
of one and one-fourth (1¼) month’s salary for every year of his service in year of service" cannot by any stretch of logic or imagination be interpreted to refer
government, that is, inclusive of the number of years he served as Judge of the to the total length of service of an MMA employee in the government, i.e., to include
Metropolitan Trial Court of Manila [sic]. such service in the government outside the MMA. Since it allows the grant of
separation pay to employees who were to be displaced thereby the separation pay
can be based only on the length of service in the MMA. The displacement amounted
Petitioner already received and is continually receiving gratuity for his years of
to an abolition of the office or position of the displaced employees, such as that of
service as a Metropolitan Trial Court Judge. Equity dictates that he should no longer
petitioner. The rule is settled that Congress may abolish public offices. Such a
be allowed to receive further gratuity for said years of service in the guise of
power is a consequent prerogative of its power to create public offices. 4 However,
separation pay.
the power to abolish is subject to the condition that it be exercised in good
faith.5 The separation partook of the nature of a disturbance of compensation;
Suffice it to state that upon his retirement from his office as a Judge, petitioner has hence, the separation pay must relate only to the employment thus affected.
already closed a chapter of his government service. The State has already shown its
gratitude for his services when he was paid retirement benefits under Republic Act
Second, petitioner himself must have realized that Section 11 does not allow the
No. 901 [sic]. For that is what retirement benefits are for. Rewards [are] given to
tacking in of his previous government service. If he were convinced that it does he
an employee who has given up the best years of his life to the service of his country
could have instead applied for retirement benefits, since by adding his years of
(Gov’t. Service Insurance System v. Civil Service Commission, 245 SCRA 179, 188).
service in the MMA to his previous years of service in the Government he could have
retired under the third paragraph of Section 11, which pertinently reads:
Now, the state again wishes to show its gratitude to petitioner by awarding him
separation pay for his services as a director of the Metro Manila Authority (MMA),
Provided, That, if qualified for retirement under existing retirement laws, said
another chapter of petitioner’s government service which has come to a close by the
employee may opt to receive the benefits thereunder.
reorganization of the MMA into the Metropolitan Manila Development Authority.

Third, after the approval of his optional retirement on 1 April 1992, petitioner was
The Court, in limiting the computation of petitioner’s separation pay to the number
fully paid of his retirement gratuity under R.A. No. 910, as amended; and five years
of years of his service at the MMA, merely is implementing the ruling in "Chavez, Sr.
thereafter he has been receiving a monthly pension.
vs. Mathay" (37 SCRA 776), which ruling, if not actually in point, is nevertheless
applicable owing to its "common-sense consideration." Said ruling reads:
The petitioner cannot take refuge under the second paragraph of Section 8 of Article
IX-B of the Constitution, which provides:
"The ‘common-sense consideration’ stated by Mr. Justice J.B.L. Reyes for the Court
in Espejo, that if a retiree is being credited with his years of service under
his first retirement in computing his gratuity under his secondretirement, it is but Pensions or gratuities shall not be considered as additional, double, or indirect
just that the retirement gratuity received by him under his first retirement should compensation.
also be charged to his account, manifestly govern the case at bar.1ªvvph!1 It is but
in accordance with the rule consistently enunciated by the Court as in Anciano v.
This provision simply means that a retiree receiving pension or gratuity can
Otadoy, affirming Borromeo, that claims for double retirement or pension such as
continue to receive such pension or gratuity even if he accepts another government
petitioner’s, ‘would run roughshod over the well-settled rule that in the absence of
position to which another compensation is attached.6
an express legal exception, pension and gratuity laws should be so construed as to
preclude any person from receiving double pension.’ (p. 780, underscoring supplied)
Indeed, the retirement benefits which petitioner had received or has been receiving
under R.A. No. 910, as amended, do not constitute double compensation. He could
The case at bench is not, strictly speaking, about ‘double pension.’ It is, however,
continue receiving the same even if after his retirement he had been receiving
about the interpretation of a gratuity law, viz., Section 11 of Republic Act No. 7924
salary from the defunct MMA as Director III thereof. This is but just because said
which awards separation pay to those government employees who were displaced
retirement benefits are rewards for his services as MeTC Judge, while his salary was
by the reorganization of the MMA into the MMDA, which should be construed to
his compensation for his services as Director III of the MMA.
preclude a government employee from receiving double gratuity for the same years
of service.
However, to credit his years of service in the Judiciary in the computation of his
separation pay under R.A. No. 7924 notwithstanding the fact that he had received
We affirm the assailed judgment. We agree with the Court of Appeals and the Civil
or has been receiving the retirement benefits under R.A. No. 910, as amended,
Service Commission that for the purpose of computing or determining petitioner’s
would be to countenance double compensation for exactly the same services, i.e.,
separation pay under Section 11 of R.A. No. 7924, his years of service in the
his services as MeTC Judge. Such would run counter to the policy of this Court
Judiciary should be excluded and that his separation pay should be solely confined
against double compensation for exactly the same services. 7 More important, it
to his services in the MMA.
would be in violation of the first paragraph of Section 8 of Article IX-B of the
Constitution, which proscribes additional, double, or indirect compensation. Said N.D. No. DATE PAYEE TOTAL
provision reads: AMOUNT

No elective or appointive public officer or employee shall receive additional, double, 2006-001-101 (02- 7/26/07 Eduardo R. Soliman, Jr. ₱ 632,000.00
or indirect compensation, unless specifically authorized by law… . 06)

2006-002-101 (02- 7/16/07 Juanita D. Amatong 448,000.00


Section 11 of R.A. No. 7924 does not specifically authorize payment of additional 05)
compensation for years of government service outside of the MMA.
2006-003-101 (01- 7/16/07 Anselmo S. Avenido 162,000.00
02)
WHEREFORE, finding no reversible error in the judgment appealed from, the
petition in this case is DENIED for want of merit, and the decision of 19 August 2006-004-101 (01) 7/16/07 Rosalinda Dimapilis-Baldoz 45,000.00
1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.
2006-005-101(05) 7/16/07 Benedicto Ernesto R. Bitonio, 56,000.00
Jr.
.R. No. 189767 July 3, 2012
2006-006-101 (05- 7/19/07 Manuel M. Bonoan 112,000.00
PHILIPPINE ECONOMIC ZONE AUTHORITY (PEZA), Petitioner, 06)
vs.
2006-007-101(01-02) 7/19/07 Arturo D. Brion 177,000.00
COMMISSION ON AUDIT and REYNALDO A. VILLAR, Chairman, Commission
on Audit, Respondents. 2006-008-101(05/06) 7/19/07 Armando A. De Castro 144,000.00

RESOLUTION 2006-009-101(02-06) 7/19/07 Fortunato T. De La Peña 904,000.00

2006-010-101(01) 7/19/07 Roseller S. Dela Peña 36,000.00


VILLARAMA, JR., J.:
2006-011-101(01-05) 7/23/07 Cyril Del Callar 762,000.00

Before us is a petition for certiorari under Rule 64 in relation to Rule 65 of the 1997 2006-012-101(03) 7/23/07 Renato A. De Rueda 48,000.00
Rules of Civil Procedure, as amended, seeking to annul Commission on Audit (COA)
Decision No. 2009-0811 which affirmed the Decision2 of the Director, Cluster IV - 2006-013-101(01-06) 7/23/07 Cesar M. Drilon, Jr. 811,000.00
Industrial and Area Development and Regulatory, Corporate Government Sector,
COA, affirming Notice of Disallowance Nos. 2006-001-101 (02-06) to 2006-021-101 2006-014-101(03-05) 7/23/07 Josephus B. Jimenez 336,000.00
(01-03)3 for the payment of ₱5,451,500.00 worth of per diems to ex officio
2006-015-101(01) 7/23/07 Rufino C. Lirag, Jr. 63,000.00
members of the Board of Directors of petitioner Philippine Economic Zone Authority
(PEZA). 2006-016-101(06) 7/26/07 Gaudencio A. Mendoza, Jr. 16,000.00

2006-017-101(03-04) 7/26/07 Rolando L. Metin 256,000.00


The Facts
2006-018-101(01-02) 7/26/07 Edmundo V. Mir 124,500.00
The PEZA Board of Directors is composed of 13 members which include the
Undersecretaries of the Department of Finance, the Department of Labor and 2006-019-101(05-06) 7/26/07 Melinda L. Ocampo 104,000.00
Employment, the Department of the Interior and Local Government, the 2006-020-101(05-06) 7/26/07 Luzviminda G. Padilla 56,000.00
Department of Environment and Natural Resources, the Department of Agriculture,
the Department of Public Works and Highways, the Department of Science and 2006-021-101(01-03) 7/26/07 Ramon J.P. Paje 159,000.00
Technology and the Department of Energy. Said Undersecretaries serve in ex officio
capacity and were granted per diems by PEZA for every attendance in a board
meeting. TOTAL P5,451,500.004

On September 13, 2007, the PEZA Auditor Corazon V. Españo issued Notice of
Disallowance Nos. 2006-001-101 (02-06) to 2006-021-101 (01-03) on the following
payments of per diems to ex officio members of the PEZA Board for the period The disallowance was based on this Court’s April 4, 2006 En Banc Resolution
2001-2006: dismissing the petition for certiorari in Cyril del Callar, et al., Members of the Board
of Directors, Philippine Economic Zone Authority v. COA and Guillermo N. Carague,
Chairman, COA5 which assailed COA Decision No. 2006-009 dated January 31, 2006
affirming the March 29, 2002 decision of the Director, then Corporate Audit Office per diems. The Auditor of PEZA is also directed to inform this Commission of the
II, disallowing the payment of per diems of ex officio members of the PEZA Board of settlement made thereon.14
Directors. Said disallowance was based on COA Memorandum No. 97-038 dated
September 19, 1997 implementing Senate Committee Report No. 509 and this
The COA ruled that the last paragraph of Section 11 of Republic Act (R.A.) No. 7916
Court’s ruling in Civil Liberties Union v. Executive Secretary. 6
authorizing the members of the Board to receive per diems was deleted in the
amendatory law, R.A. No. 8748. Hence, from the time of the effectivity of R.A. No.
On October 31, 2007, the Deputy Director General for Finance and Administration of 8748 in 1999, the members of the PEZA Board of Directors were no longer entitled
PEZA moved to reconsider7the subject Notices of Disallowance (NDs) and prayed to per diems. It further held that the payments to and receipt by ex officio members
that the concerned ex officio members be allowed to retain the per diems already of the PEZA Board of per diems for CYs 2001-2006 run counter to the express
received as they received them in good faith. It was contended that the payment of prohibition in Section 13, Article VII of the 1987 Constitution.
the per diems covered the period when the April 4, 2006 Supreme Court Resolution
was not yet final and thus, PEZA honestly believed that the grant of the same was
The COA also dismissed PEZA’s claim of good faith in making the disbursements of
moral and legal. In the same vein, the ex officio members received them in good
per diems to the ex officio members of its Board. It ruled:
faith. The motion cited the cases of Home Development Mutual Fund v. Commission
on Audit8 and De Jesus v. Commission on Audit9 as bases.
As to the petitioners’ claim of "good faith," it must be emphasized that under
the Bitonio case, as early as 1998, PEZA was already notified of the illegality of the
In a letter dated November 16, 2007, PEZA Auditor Españo denied the motion for
10
payment of per diems to ex-officio members of the PEZA Board thru the NDs issued
reconsideration. She stated that the PEZA Management continued paying the per
by the COA Auditor from 1995 to 1998 on the payment of per diem to every board
diems even after they were duly notified through said NDs that such was in violation
meeting attended by the petitioner Benedicto Ernesto R. Bitonio, Jr. as
of the Constitution as explained in the Civil Liberties Union case. She opined that
representative of the Secretary of Labor to the PEZA. This was anchored on the case
the receipt of the NDs in effect notified the recipients and PEZA officials that such
of Civil Liberties Union v. Executive Secretary, supra, which affirmed COA Decision
payment was illegal and hence, the failure of PEZA to heed the notices cannot be
Nos. 2001-045 and 98-017-101(97) dated January 30, 2001 and October 9, 1998,
deemed consistent with the presumption of good faith.
respectively, which declared that:

By letter11 dated January 4, 2008, PEZA Director General Lilia B. De Lima appealed
"x x x The framers of R.A. No. 7916 (Special Economic Zone Act of 1995) must have
the denial of their motion for reconsideration to the Office of the Cluster Director,
realized the flaw in the law which is the reason why the law was later amended by
COA. De Lima reiterated their claim of good faith contending that the Del Callar case
R.A. No. 8748 to cure such defect.
had yet to be decided with finality when the subject per diems were disbursed. She
argued that since the issue on the propriety of giving per diems to ex officio
members was still unresolved, and because PEZA firmly believed that it had legal Likewise, the last paragraph as to the payment of per diems to the members of the
basis, it continued to pay the per diems despite knowledge and receipt of NDs. Good Board of Directors was also deleted, considering that such stipulation was clearly in
faith, therefore, guided PEZA in releasing the payments. conflict with proscription set by the Constitution.

In a 2nd Indorsement12 dated March 17, 2008, the COA Cluster Director, Ma. Prescinding from the above, the petitioner (Benedicto Ernesto R. Bitonio, Jr.) is
Cristina Dizon-Dimagiba, denied PEZA’s appeal. She ruled that PEZA’s claim of good indeed, not entitled to receive a per diem for his attendance at board meetings
faith cannot be given merit because in several other instances previous payments of during his tenure as member of the Board of Directors of the PEZA." (italics ours)
per diems have been disallowed. She noted that by the time PEZA received the
notices of disallowance, it can be said that there is already an iota of doubt as to After the Bitonio case, the Auditor again disallowed the payments of per diems
whether the said transaction is valid or not. Hence, good faith can no longer apply. granted for the period 1999 to 2000 by PEZA to the ex-officio members of the PEZA
Board under ND Nos. 2001-001-101 to 2001-008-101, which were upheld under
On April 30, 2008, PEZA filed a petition for review 13 before the COA to assail the COA Decision No. 2006-009 dated January 31, 2006. Thus, PEZA was repeatedly
denial of its appeal by the Office of the Cluster Director. PEZA reiterated the same notified of the illegality of the payment of the said per diems. However, similar
arguments it raised in its appeal. disbursements were continued, ignoring the Auditor’s findings. At the time they first
received the ND in 1998, it can be said that there should already have been a doubt
to say the least, on the legality of the said transaction which should have made
On September 15, 2009, the COA rendered the assailed decision denying PEZA’s
management discontinue such payments. But even after the promulgation of the SC
petition for review. The dispositive portion reads:
decision in the Bitonio case, PEZA continued the payment of the same until year
2006. Indeed, such actuation is incompatible with good faith. Hence, even if the per
WHEREFORE, foregoing premises considered, the instant petition is hereby DENIED diems were granted prior to the finality of the Cyril Del Callar v. COA case cited by
for lack of merit. Accordingly, ND Nos. 2006-001-101 (02-06) to 2006-021-101 (01- herein petitioner, PEZA management was already aware that the payment thereof
03) in the total amount of P5,451,500.00 representing payment of per diems to ex- had been declared illegal by the SC in the earlier aforecited cases. 15
officio members of the Board of Directors of PEZA are hereby AFFIRMED. All the
recipients and the persons liable thereon are required to refund the said disallowed
PEZA now comes to this Court seeking to annul the assailed decision on the The lack of legal basis to grant per diems to ex officio members of the PEZA Board,
following grounds: including their representatives, has already been settled by no less than the Court
En Banc in the case of Bitonio, Jr. where we held that the amendatory law, R.A. No.
8748, purposely deleted the last paragraph of Section 11 of R.A. No. 7916 that
REPUBLIC ACT NO. 7916, AS AMENDED BY REPUBLIC ACT NO. 8748 ALLOWS THE
authorized the grant of per diems to PEZA Board members as it was in conflict with
PAYMENT OF PER DIEMS TO THE MEMBERS OF THE PEZA BOARD OF DIRECTORS.
the proscription laid down in the 1987 Constitution. We held in Bitonio, Jr.:

THE EX-OFFICIO MEMBERS OF THE PEZA BOARD OF DIRECTORS SHOULD NO


The framers of R.A. No. 7916 must have realized the flaw in the law which is the
LONGER BE REQUIRED TO REFUND THE PER DIEMS ALREADY RECEIVED BECAUSE
reason why the law was later amended by R.A. No. 8748 to cure such defect. In
THEY WERE OF THE HONEST BELIEF THAT THEY WERE LEGALLY ENTITLED TO
particular, Section 11 of R.A. No. 7916 was amended to read:
RECEIVE THE SAME.16

SECTION 11. The Philippine Economic Zone Authority (PEZA) Board. – There is
PEZA argues that contrary to the COA’s position, the last paragraph of Section 11,
hereby created a body corporate to be known as the Philippine Economic Zone
R.A. No. 7916 authorizing the members of the PEZA Board to receive per diems still
Authority (PEZA) attached to the Department of Trade and Industry. The Board shall
exists because it was never deleted in R.A. No. 8748. It contends that just because
have a director general with the rank of department undersecretary who shall be
the last paragraph of Section 11, R.A. No. 7916 does not appear in Section 1 of R.A.
appointed by the President. The director general shall be at least forty (40) years of
No. 8748 but is merely represented by the characters "x x x" does not mean that it
age, of proven probity and integrity, and a degree holder in any of the following
has already been deleted. PEZA submits that since there was no repeal by R.A. No.
fields: economics, business, public administration, law, management or their
8748 and neither was the last paragraph of Section 11 of R.A. No. 7916 declared
equivalent, and with at least ten (10) years relevant working experience preferably
void or unconstitutional by this Court, the provision enjoys the presumption of
in the field of management or public administration.
validity and therefore, PEZA cannot be faulted for relying on the authority granted
by law.
The director general shall be assisted by three (3) deputy directors general each for
policy and planning, administration and operations, who shall be appointed by the
PEZA also insists on its claim of good faith. It emphasizes that the per diems were
PEZA Board, upon the recommendation of the director general. The deputy directors
granted by PEZA in good faith as it honestly believed that the grant of the same was
general shall be at least thirty-five (35) years old, with proven probity and integrity
legal and similarly, the ex officio members of the PEZA Board received the per
and a degree holder in any of the following fields: economics, business, public
diems in good faith.
administration, law, management or their equivalent.

COA, for its part, opposes PEZA’s contention that the last paragraph of Section 11 of
The Board shall be composed of thirteen (13) members as follows: the Secretary of
R.A. No. 7916 authorizing the grant of per diems to ex officio members of the PEZA
the Department of Trade and Industry as Chairman, the Director General of the
Board was not deleted by its amendatory law, R.A. No. 8748, citing this Court’s
Philippine Economic Zone Authority as Vice-chairman, the undersecretaries of the
ruling in Bitonio, Jr. v. Commission on Audit.17
Department of Finance, the Department of Labor and Employment, the Department
of [the] Interior and Local Government, the Department of Environment and Natural
COA likewise contends that the deletion of the last paragraphs of the subject Resources, the Department of Agriculture, the Department of Public Works and
provision merely conformed with the Constitution. It argues that the position of the Highways, the Department of Science and Technology, the Department of Energy,
undersecretaries of the Cabinet as members of the Board is in an ex officio capacity the Deputy Director General of the National Economic and Development Authority,
or part of their principal office and thus, they were already being paid in their one (1) representative from the labor sector, and one (1) representative from the
respective Departments. To allow them to receive additional compensation in PEZA investors/business sector in the ECOZONE. In case of the unavailability of the
would amount to double compensation. COA submits that this is precisely the Secretary of the Department of Trade and Industry to attend a particular board
reason why this Court, in several cases, declared unconstitutional the payment of meeting, the Director General of PEZA shall act as Chairman.
additional compensation to ex officio officials.
As can be gleaned from above, the members of the Board of Directors was
The Issues increased from 8 to 13, specifying therein that it is the undersecretaries of the
different Departments who should sit as board members of the PEZA. The option of
Does the PEZA have legal basis in granting per diems to the ex officio members of designating his representative to the Board by the different Cabinet Secretaries was
its Board? And if there is no legal basis, was there good faith in PEZA’s grant and deleted. Likewise, the last paragraph as to the payment of per diems to the
the ex officio members’ receipt of the per diems? members of the Board of Directors was also deleted, considering that such
stipulation was clearly in conflict with the proscription set by the Constitution.

Our Ruling
Prescinding from the above, the petitioner is, indeed, not entitled to receive a per
diem for his attendance at board meetings during his tenure as member of the
The Court finds the petition devoid of merit. Board of Directors of the PEZA.18 (Italics in the original.)
PEZA’s insistence that there is legal basis in its grant of per diems to the ex officio questioned by virtue of the notices of disallowance issued to them by the COA and
members of its Board does not hold water.1âwphi1 The constitutional prohibition knowledge of the pronouncements of the Court in the Civil Liberties Union case and
explained in Civil Liberties Union case still stands and this Court finds no reason to in other cases21 where ex officio members in several government agencies were
revisit the doctrine laid down therein as said interpretation, to this Court’s mind, is prohibited from receiving additional compensation, militate against its claim of good
in consonance with what our Constitution provides. faith.

Neither can this Court give credence to PEZA’s claim of good faith. WHEREFORE, in light of the foregoing, the present petition is DISMISSED. The
assailed COA Decision No. 2009-081 dated September 15, 2009 is AFFIRMED and
UPHELD.
In common usage, the term "good faith" is ordinarily used to describe that state of
mind denoting "honesty of intention, and freedom from knowledge of
circumstances which ought to put the holder upon inquiry; an honest G.R. No. 154952 July 16, 2012
intention to abstain from taking any unconscientious advantage of another, even HILARION F. DIMAGIBA, IRMA MENDOZA, and ELLEN RASCO, Petitioners,
through technicalities of law, together with absence of all information, notice, or vs. JULITA ESPARTERO, MA. BERNARDITA L. CARREON and MELINA SAN
benefit or belief of facts which render transaction unconscientious." 19 PEDRO, Respondents.

Definitely, PEZA cannot claim that it was not aware of circumstances pointing to the D E C I S I O N - PERALTA, J.:
possible illegality of the disbursements of per diems to the ex officio members of the
Board. In Civil Liberties Union, this Court clarified the prohibition under Section 13,
Assailed in this petition for review on certiorari are the Decision 1 dated May 30, 2002
Article VII of the Constitution and emphasized that a public official holding an ex
and the Resolution2 dated August 28, 2002 of the Court of Appeals issued in CA-G.R.
officioposition as provided by law has no right to receive additional compensation
SP No. 61261.
for the ex officio position. This Court ruled:

Petitioners Hilarion Dimagiba (Dimagiba), Irma Mendoza (Mendoza), and Ellen


It bears repeating though that in order that such additional duties or functions may
Rasco (Rasco) were employees of The Livelihood Corporation (LIVECOR), a
not transgress the prohibition embodied in Section 13, Article VII of the 1987
government-owned and controlled corporation created under Executive Order No.
Constitution, such additional duties or functions must be required by the primary
866. Petitioner Dimagiba was the Group Manager, Asset Development and
functions of the official concerned, who is to perform the same in an ex-officio
Management Group; petitioner Mendoza was the
capacity as provided by law, without receiving any additional compensation
therefor.
Division Chief III, Asset Development and Management Group; and petitioner Rasco
was the Project Evaluation Officer IV, Asset Development and Management Group.
The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position. The reason is that these services On March 8, 1990, LIVECOR and the Human Settlement Development Corporation
are already paid for and covered by the compensation attached to his principal (HSDC), now known as Strategic Investment and Development Corporation
office. It should be obvious that if, say, the Secretary of Finance attends a meeting (SIDCOR), also a government-owned and controlled corporation, created under
of the Monetary Board as an ex-officio member thereof, he is actually and in legal Presidential Decree (P.D.) 1396, entered into a Trust Agreement 3 whereby the
contemplation performing the primary function of his principal office in defining former would undertake the task of managing, administering, disposing and
policy in monetary and banking matters, which come under the jurisdiction of his liquidating the corporate assets, projects and accounts of HSDC. In HSDC Board
department. For such attendance, therefore, he is not entitled to collect any extra Resolution No. 3-26-A4 dated March 26, 1990, it was provided that in order to carry
compensation, whether it be in the form of a per diem or an honorarium or an out the trust agreement, LIVECOR personnel must be designated concurrently to
allowance, or some other such euphemism. By whatever name it is designated, operate certain basic HSDC/SIDCOR functions, thus, LIVECOR personnel, namely,
such additional compensation is prohibited by the Constitution. 20 (Italics in the petitioners Dimagiba and Mendoza were designated as Assistant General Manager
original; emphasis supplied.) for Operations and Head, Inter-Agency Committee on Assets Disposal and as
Treasurer and Controller, respectively. The same resolution provided for the
designees' monthly honoraria and commutable reimbursable representation
It bears stressing that the Civil Liberties Union case was promulgated in 1991, or a
allowances (CRRA). Petitioner Rasco was designated as Technical Assistant to the
decade before the subject disallowed payments of per diems for the period starting
Officer-in-Charge (OIC), also with CRRA, under HSDC Board Resolution No. 05-19-
2001 were made by PEZA. Thus, even if the Bitonio case was only promulgated in
B5 dated May 19, 1993.
2004 when part of the disallowed payments have already been made, PEZA should
have been guided by the Civil Liberties Union case and acted with caution. It would
have been more prudent for PEZA, if it honestly believed that there is a clear legal In a letter6 dated November 14, 1997, the Department of Budget and Management
basis for the per diems and there was a chance that this Court might rule in their informed LIVECOR of the approval of its organization/staffing pattern modifications
favor while the Bitonio case was pending, to withhold payment of the per diem which resulted in the abolition of petitioners' positions. As a result, petitioners were
instead of paying them. PEZA’s actual knowledge that the disbursements are being
separated from the service effective June 30, 1998 and were each given a 3. MS. ELLEN RASCO is hereby granted a Gratuity Pay in the amount of
separation package7 as follows: SIXTY THOUSAND PESOS (P60,000.00).

Dimagiba Mendoza Rasco RESOLVED FURTHER, That the total budgetary requirement and disbursement of the
above Gratuity Pay is hereby approved and allocated from Corporate Funds;
1. Separation Pay ₱608,580.00 ₱815,021.91 ₱519,125.16
RESOLVED FINALLY, That the Officer-in-Charge and the Trustee of corporate funds
2. Gratuity Pay 165,600.00 132,150.00 112,555.00
are hereby directed and authorized to disburse funds and execute the necessary
3. Terminal Pay 352,075.48 58,398.18 22,633.25 documentation, acts and deeds relative to the immediate and full implementation of
this resolution.10
4. Last Month
Gross Salary 17,410.00 15,815.00 13,555.50 In a Memorandum dated July 17, 1998 issued by LIVECOR Administrator Manuel
5. Service Award 10,000.00 10,000.00 10,000.00 Portes (Portes), it was stated that any payment of gratuities by the HSDC/SIDCOR
to LIVECOR officers concurrently performing HSDC functions shall not be processed
without prior clearance from him as the same shall be first cleared with the COA and
OGCC to avoid any legal problem. Portes then sought the opinion of LIVECOR’s
TOTAL ₱1,153,665.48 ₱1,031,385.00 ₱678,169.91
Resident COA Auditor, Alejandro Fumar, regarding petitioners' claim for additional
gratuity, who opined that such gratuity payment would amount to double
The HSDC resolved to terminate petitioners' services because the latter's separation compensation.
from LIVECOR would no longer allow them to perform their functions at the HSDC.
However, the HSDC, through its OIC, Jose Rufino, wrote the Office of the Subsequently, petitioners wrote a letter11 dated July 29, 1998 addressed to Portes
Government Corporate Counsel (OGCC) and sought its opinion on the legality of requesting for the processing of their HSDC gratuity pay. Attached in their letter
HSDC's granting gratuity pay to petitioners. were OGCC Opinion No. 078 and a letter12 from the Presidential Management Staff
(PMS), dated June 29, 1998, concurring with the OGCC's opinion.
On April 8, 1998, the OGCC rendered Opinion No. 078,8 series of 1998, which
resolved among others the grant of gratuity pay to petitioners. The OGCC found Portes then instructed respondent Atty. Ma. Bernardita L. Carreon (Carreon),
that it is within the power of the Board to grant reasonable Gratuity Pay/Package to Attorney IV of LIVECOR’s Legal Services Department and a designated member of
petitioners subject to the usual rules of the Special Task Force for HSDC, to draft a letter seeking clarification on OGCC Opinion
No. 078. He likewise requested the LIVECOR Legal Services Department to issue an
Commission on Audit (COA) pertaining to allowances/benefits and disbursements of opinion on the matter of petitioners' HSDC/SIDCOR gratuity pay.
funds.
In a Memorandum13 dated August 25, 1998 addressed to Portes, respondent Atty.
On May 19, 1998, the HSDC Board passed Resolution No. 05-19-A terminating
9 Julita A. Espartero (Espartero), then LIVECOR'S Chief Legal Counsel, wrote that
petitioners' services but resolved to grant petitioners their Gratuity Package/Pay, as petitioners' designation as HSDC officers would not entitle them to receive any
follows: gratuity pay because:

1. MR. HILARION DIMAGIBA is hereby granted a Gratuity Package as follows: First, the purpose for which Mr. Dimagiba, Ms. Mendoza and Ms. Rasco were elected
or designated as SIDCOR officers is already made clear in the subject Resolution
which provides as follows, viz: WHEREAS, in order to carry out the trust, LIVECOR
1.1 Gratuity Pay in the amount of SEVEN HUNDRED THOUSAND PESOS personnel must be designated/elected concurrently to operate certain basic SIDCOR
(P700,000.00); corporate offices/positions.

1.2 Termination of LBP Lease Agreement No. 282-C/Lease Schedule I (Nissan The election or designation of Mr. Dimagiba, Ms. Mendoza and Ms. Rasco as SIDCOR
Sentra UDC 919) effective 15 July 1998 in favor of Mr. Dimagiba, with Mr. Dimagiba officers were not intended to be independent of or separate from their employment
paying LBP Leasing Corporation all charges, fees penalties, etc., including pre- with LIVECOR but was made precisely because of their being LIVECOR personnel
termination charges; tasked to carry out the Trust Agreement between SIDCOR and LIVECOR.

2. MS. IRMA MENDOZA is hereby granted a Gratuity Pay in the amount of Second, Mr. Dimagiba, Ms. Mendoza and Ms. Rasco do not receive salaries or wages
ONE HUNDRED EIGHTY THOUSAND (P180,000.00) PESOS; from SIDCOR but CRREs. This clearly shows that they are not organic SIDCOR
employees but, as heretofore indicated, LIVECOR officers merely holding concurrent
positions in SIDCOR.
The reason for the above-mentioned arrangement (grant of CRREs and not salaries On June 2, 2000, the Ombudsman rendered its Decision,17 the dispositive portion of
or wages) is that: "While dual appointments in two government- owned which reads:
corporations are permissible, dual compensation is not."
WHEREFORE, foregoing premises considered, respondents JULITA ESPARTERO,
To allow Mr. Dimagiba, Ms. Mendoza and Ms. Rasco, therefore, to receive gratuity BERNARDITA CARREON and MELINA SAN PEDRO are hereby found guilty of Gross
pay/package apart from what they are entitled to receive or have already received Neglect of Duty, Oppression, Conduct Prejudicial to the Best Interest of Service,
from LIVECOR will be to subvert or indirectly circumvent the above-stated legal Inefficiency and Incompetence, and Violation of Section 5 (a), Republic Act No.
principle. 6713, and are hereby meted out the penalty of DISMISSAL from the service coupled
with the accessory penalties of cancellation of their eligibilities, forfeiture of leave
credits and retirement benefits as well as disqualification of reemployment in the
Third, not being organic SIDCOR employees but LIVECOR officers merely holding
government service pursuant to Sections 9, 17 and 22, Rule XIV of the Omnibus
concurrent positions in SIDCOR, Mr. Dimagiba, Ms. Mendoza and Ms. Rasco cannot
Rules Implementing Book V of Executive Order No. 292.
be said to have been "separated" from SIDCOR.14

On the contrary, the instant complaint against respondents MANUEL PORTES and
In the meantime, petitioners had requested respondent Melina San Pedro (San
CHRISTINE TOMAS-ESPINOSA is DISMISSED for being moot and academic, they
Pedro), LIVECOR's Financial Analyst, to sign and process the disbursement vouchers
being already out of the government service without prejudice to any civil or
for the payment of their gratuity pay but the latter refused to do so because of the
criminal actions filed against them.
adverse opinion of the LIVECOR Legal Department and based on the memorandum
issued by Portes.
Furthermore, pursuant to Section 15 (2), Republic Act No. 6770, the incumbent
Administrator of the Livelihood Corporation and other public officers concerned are
In October 1998, Portes was replaced by Atty. Salvador C. Medialdea (Atty.
hereby directed to facilitate the processing and payment of complainants’ gratuity in
Medialdea) to whom petitioners subsequently referred the matter of their gratuity
accordance with HSDC Board Resolution No. 05-19-A, s. 1998.
payment. In a letter15 dated June 14, 1999, Atty. Medialdea sought clarification from
the OGCC regarding its Opinion No. 078. The OGCC responded with the issuance of
its Opinion No. 019,16 s. 2000 on January 31, 2000, where it declared that HSDC The Honorable Administrator, Livelihood Corporation (LIVECOR), 7/F Hanston
Resolution No. 05-19-A, granting gratuities in favor of petitioners, could not be Building, Emerald Avenue, Pasig City, is hereby tasked to implement this Decision in
implemented as the intended beneficiaries were prohibited by law from receiving accordance with law informing this Office of the action taken thereon within ten (10)
the same, citing Section 8 of Article IX-B of the Constitution, i.e., proscription on days upon receipt hereof.
double compensation.
Let copies of this Decision be furnished the Civil Service Commission for their
On October 27, 1998, petitioners filed with the Office of the Ombudsman a guidance and reference.
Complaint-Affidavit charging Administrator Portes, Atty. Christine Tomas-Espinosa,
Chief of Staff of the Office of the Administrator, respondents Espartero, Carreon,
SO ORDERED.18
and San Pedro, with grave misconduct, conduct prejudicial to the best interest of
the service, inefficiency and incompetence in the performance of official functions,
and violation of Section 5 (a), Republic Act (RA) No. 6713. In so ruling, the Ombudsman stated that the prohibition on double compensation
would not apply to pensions or gratuities because they are gifts or bounty given in
recognition of the employees' past services. It found that the HSDC Board had the
In their complaint-affidavit, petitioners alleged that respondents conspired in
discretion and authority to decide on matters which were within its competence and
refusing to release their gratuity pay and that such refusal for an unreasonable
jurisdiction, such as granting of benefits and retirement gratuities to its officers and
length of time despite repeated demands constituted the offenses charged.
employees. It concluded that payment of petitioners' gratuities did not involve
judgment or discretion on LIVECOR's part, hence, a ministerial act; and that
Respondents filed their respective Counter-Affidavits denying the charges against Resolution No. 05-19-A which granted the gratuity pay to petitioners directed
them. Respondent Espartero contended that her actions relative to the processing of LIVECOR as HSDC's trustee to disburse funds and execute the necessary
gratuity pay merely consisted of rendering an opinion that such gratuity would documentation for the full implementation of the same.
amount to double compensation, while respondent Carreon alleged that her only
participation with regard to petitioners' claims for additional gratuity was to draft a
Respondents filed their motions for reconsideration, which the Ombudsman
letter addressed to the OGCC. On the other hand, respondent San Pedro claimed
disposed in an Order19 dated August 8, 2000 in this wise:
that her refusal to affix her signature on petitioners' disbursement vouchers for the
release of said gratuity pay was based on the memorandum of Administrator Portes
preventing LIVECOR officers and employees from acting on any claims for gratuity WHEREFORE, except as to the finding of guilt on respondent ESPARTERO’s alleged
without the latter's prior approval. violation of Section 5 (a), Republic Act No. 6713, the assailed June 23, 2000
DECISION is affirmed with finality.20
SO ORDERED. BEYOND THE REGLEMENTARY PERIOD OF TEN (10) DAYS SET BY SECTION 27 OF
REPUBLIC ACT 6770.
On September 7, 2000, the Ombudsman issued an Order21 directing the
implementation of its decision; thus, LIVECOR's Final Notice of Dismissal from WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE
Service were subsequently served on respondents. Petitioners' gratuity pay were GRATUITIES GRANTED TO PETITIONERS DIMAGIBA, MENDOZA AND RASCO BY
then released. HSDC CONSTITUTE DOUBLE COMPENSATION PROHIBITED UNDER ARTICLE IX (B),
SECTION 8 OF THE 1987 CONSTITUTION DESPITE THE FACT THAT SAID
GRATUITIES CLEARLY FALL UNDER THE EXCEPTION UNDER THE SAME
Respondents filed with the CA a petition for review under Rule 43 with application
PROVISION.26
for a writ of preliminary mandatory injunction and/or temporary restraining order
(TRO) and/or writ of preliminary prohibitory injunction. The CA issued a TRO 22 and
later granted the writ of preliminary injunction.23 Anent the first issue, petitioners contend that the CA erred in acting on the petition
which was filed beyond the 10-day reglementary period for filing the same as
provided under Section 27 of RA 6770. They claim that respondents received the
On May 30, 2002, the CA rendered its assailed Decision, the dispositive portion of
Ombudsman order denying their motion for reconsideration on August 25, 2000 and
which reads:
filed a motion for extension of time with the CA on September 11, 2000, which was
the 15th day from receipt of the order, relying on our ruling in Fabian v.
WHEREFORE, the petition is hereby GRANTED and the assailed decision of the Office Desierto27 and Rule 43 of the Rules of Court. Petitioners cite the cases of Lapid v.
of the Ombudsman, dated June 2, 2000, and the Order dated August 8, 2000, are CA28 and Barata v. Abalos, Jr.29 to support the application of the 10-day period for
REVERSED and SET ASIDE and judgment is hereby rendered: filing the petition in the CA from receipt of the Ombudsman order.

1. Reinstating petitioners to their positions held prior to their dismissal from office We are not persuaded.
with full backwages and benefits;
Section 27 of RA 6770 provides as follows:
2. Ordering private respondents to return the gratuity packages received from
HSDC; and
Section 27. Effectivity and Finality of Decisions. - All provisionary orders of the
Office of the Ombudsman are immediately effective and executory.
3. Granting a permanent and final injunction enjoining the Office of the Ombudsman
from executing the assailed decision and Order.24
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
The CA found that the gratuity packages received by petitioners from HSDC public censure or reprimand, suspension of not more than one month's salary shall
constituted the prohibited additional or double compensation under the Constitution. be final and unappealable.
It found no evidence to support the Ombudsman decision finding respondents guilty
of the administrative charges as they acted accordingly as public officers. Anent the
In all administrative disciplinary cases, orders, directives or decisions of the Office
issue of the timeliness of the filing of the petition, the CA ruled that petitioners filed
of the Ombudsman may be appealed to the Supreme Court by filing a petition for
their appeal within the 15-day period prescribed under Section 4 of Rule 43 of the
certiorari within ten (10) days from receipt of the written notice of the order,
Rules of Court, relying on the case of Fabian v. Desierto.25 However, since there was
directive or decision or denial of the motion for reconsideration in accordance with
no clear pronouncement that appeals of Ombudsman decision in administrative
Rule 45 of the Rules of Court.
cases cannot be made under Section 4 of Rule 43, the dismissal of the petition on
the ground that it was filed beyond the 10-day period provided under Section 27 of
RA 6770, or the Ombudsman Act of 1989, would result to glaring injustice to The then Rules of Procedure of the Office of the Ombudsman likewise contain a
respondents; and that dismissal of appeals purely on technical grounds is frowned similar provision. Section 7, Rule III of Administrative Order (A.O.) No. 07 30 provides
upon especially if it will result to injustice. as follows:

Petitioners' motion for reconsideration was denied by the CA in a Resolution dated Sec. 7. Finality and Execution of Decision - Where the respondent is absolved of the
August 28, 2002. charge and in case of conviction where the penalty imposed is public censure or
reprimand, suspension of not more than one month, or a fine equivalent to one
month salary, the decision shall be final, executory and unappealable. In all other
Hence, this petition for review. Petitioners raise the following issues:
cases, the decision shall become final after the expiration of ten (10) days from
receipt thereof by the respondent, unless a motion for reconsideration or petition for
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT GAVE certiorari, shall have been filed by him as prescribed in Section 27 of R.A. 6770.
DUE COURSE TO RESPONDENTS' PETITION FOR REVIEW DESPITE BEING FILED
In Fabian v. Desierto,31 we declared unconstitutional Section 27 of RA 6770 and Thus, it appeared that the period provided under Section 27 of RA 6770 which is ten
Section 7, Rule III of A.O. No. 7 and any other provision of law implementing the days must be observed in filing a petition with the CA assailing the Ombudsman
aforesaid Act and insofar as they provide for appeals in administrative disciplinary decision in administrative case.
cases from the Office of the Ombudsman to the Supreme Court. We held that such
provision was violative of Section 30, Article VI of the Constitution as it expanded
In this case, respondents filed with the CA their motion for extension of time to file
our appellate jurisdiction without our advice and concurrence; and that it was also
petition for review under Rule 43 on September 11, 2000, i.e., on the 15th day from
inconsistent with Section 1, Rule 45 of the Rules of Court which provides that a
receipt of the Ombudsman order denying their motion for reconsideration, and filed
petition for review on certiorari shall apply only to a review of judgments or final
the petition on September 19, 2000. At the time the petition was filed, the matter of
orders of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the
which reglementary period must apply, whether 10 days under Section 27 of RA
Regional Trial Court, or other courts authorized by law. We then said:
6770 or 15 days under Section 4, Rule 43 of the Rules of Court, had not been
established with definiteness until the Barata case was decided later. Considering
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 that the Fabian ruling stated that Rule 43 of the Rules of Court should be the proper
should be struck down as unconstitutional, and in line with the regulatory mode of appeal from an Ombudsman decision in administrative cases, and Section 4
philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised of Rule 43 provides for 15 days from receipt of the order appealed from, the motion
Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in for extension to file petition which was filed on the 15 th day from receipt of the
administrative disciplinary cases should be taken to the Court of Appeals under the Ombudsman order is considered timely filed.
provisions of Rule 43.32
Moreover, as correctly stated by the CA, dismissal of appeals on purely technical
Subsequently, in Lapid v. CA33 which involved the issue of whether or not the ground is frowned upon especially if it will result to unfairness as in this case. In
decision of the Ombudsman finding then Governor Manuel Lapid administratively Baylon v. Fact-Finding Intelligence Bureau,37 we cited reasons or justifications to
liable for misconduct and imposing on him a penalty of one year suspension without resist the strict adherence to procedure, to wit: (1) matters of life, liberty, honor
pay is immediately executory. We then ruled: and property; (2) counsel's negligence without the participatory negligence on the
part of the client; (3) the existence of special or compelling circumstances; (4) the
merits of the case; (5) a cause not entirely attributable to the fault or negligence of
x x x The only provision affected by the Fabian ruling is the designation of the Court
the party favored by the suspension of the rules; (6) a lack of any showing that the
of Appeals as the proper forum and of Rule 43 of the Rules of Court as the proper
review sought is merely frivolous and dilatory; and (7) the other party will not be
mode of appeal. All other matters included in said Section 27, including the finality
unjustly prejudiced thereby.
or non-finality of decisions, are not affected and still stand.34

Here, the Ombudsman found respondents guilty of the charges filed against them
Thus, we said that since the penalty imposed on Lapid which was one year
and imposed upon them the penalty of dismissal from the service. The penalty of
suspension was not among those enumerated under Section 27 as final and
dismissal is a severe punishment, because it blemishes a person's record in
unappealable, an appeal timely filed by Lapid will stay the immediate
government service.38 It is an injury to one's reputation and honor which produces
implementation of the decision of the Ombudsman appealed from.
irreversible effects on one's career and private life. Worse, it implies loss of
livelihood to the employee and his family.39 If only to assure the judicial mind that
Later came the case of Barata v. Abalos, Jr.35 which was decided in 2001. The issue no injustice is allowed to take place due to a blind adherence to rules of procedure,
brought to us then was whether the CA committed grave abuse of discretion in the dismissal on technicality of respondents' petition, which is aimed at establishing
ruling that the Ombudsman decision exonerating respondent Mayor Abalos, Jr. of an not just their innocence but the truth, cannot stand.40
administrative charge is not appealable, which we answered in the negative. We
also said that even on the assumption that appeal is allowed, the same can no
As to the second issue, petitioners contend that the gratuity given to them by the
longer prosper, thus:
HSDC Board cannot be considered as additional or double compensation which is
prohibited by the Constitution.
This notwithstanding, even on the assumption that appeal is allowed, the same can
no longer prosper. As correctly pointed out by private respondent, since the Order
We find no merit in this argument.
dated September 10, 1999 of the Ombudsman denying the motion for
reconsideration was received by petitioner on October 15, 1999, petitioner had until
October 25, 1999 to appeal in accordance with Section 27, R.A. 6770 or at the The additional grant of gratuity pay to petitioners amounted to additional
most, until November 24, 1999, if he availed of the 30-day extension provided compensation prohibited by the Constitution.
under Section 2, Rule 43 of the 1997 Rules on Civil Procedure. However, the
petition was filed with the Court of Appeals only on February 1, 2000, way beyond
As provided under Section 8 of Article IX-B of the 1987 Constitution:
the reglementary period.36

Section 8. No elective or appointive public officer or employee shall receive


additional, double, or indirect compensation, unless specifically authorized by law,
nor accept without the consent of the Congress, any present, emolument, office, or cause; and establish and maintain a recruitment and merit system for the
title of any kind from any foreign government. Corporation and its affiliates and subsidiaries.

Pensions or gratuities shall not be considered as additional, double, or indirect The above-quoted provision applies to the persons appointed as employees of the
compensation. HSDC and does not extend to petitioners who were LIVECOR employees merely
designated in HSDC under a trust agreement. The fact that they were not HSDC
employees was emphatically stated in Resolution No. 3-26-A passed by the HSDC
Clearly, the only exception for an employee to receive additional, double and
Board of Directors on March 26, 1990, where it was provided that "in order to carry
indirect compensation is where the law allows him to receive extra compensation for
out the trust agreement, LIVECOR personnel must be designated/elected
services rendered in another position which is an extension or is connected with his
concurrently to operate certain basic SIDCOR corporate offices and positions."
basic work. The prohibition against additional or double compensation, except when
specifically authorized by law, is considered a "constitutional curb" on the spending
power of the government. In Peralta v. Mathay,41 we stated the purpose of the Petitioners claim that the proscription against double compensation does not include
prohibition, to wit: pensions and gratuity.1âwphi1

x x x This is to manifest a commitment to the fundamental principle that a public We are not persuaded. We quote with approval what the CA said, thus:
office is a public trust. It is expected of a government official or employee that he
keeps uppermost in mind the demands of public welfare. He is there to render
The second paragraph of Section 8, Article IX specifically adds that "pensions and
public service. He is of course entitled to be rewarded for the performance of the
gratuities shall not be considered as additional, double or indirect compensation."
functions entrusted to him, but that should not be the overriding consideration. The
This has reference to compensation already earned, for instance by a retiree. A
intrusion of the thought of private gain should be unwelcome. The temptation to
retiree receiving pensions or gratuities after retirement can continue to receive such
further personal ends, public employment as a means for the acquisition of wealth,
pension or gratuity even if he accepts another government position to which
is to be resisted. That at least is the ideal. There is then to be awareness on the
another compensation is attached.
part of an officer or employee of the government that he is to receive only such
compensation as may be fixed by law. With such a realization, he is expected not to
avail himself of devious or circuitous means to increase the remuneration attached The grant to designees Dimagiba et al. of another gratuity from HSDC would not fall
to his position.42x x x under the exception in the second paragraph as the same had not been primarily
earned, but rather being granted for service simultaneously rendered to LIVECOR
and HSDC. Hence, to allow the release of the second gratuity from HSDC would run
The gratuity pay being given to petitioners by the HSDC Board was by reason of the
afoul over the well-settled rule that "in the absence of an express legal exception,
satisfactory performance of their work under the trust agreement. It is considered a
pension or gratuity laws should be construed as to preclude any person from
bonus and by its very nature, a bonus partakes of an additional remuneration or
receiving double compensation.44
compensation.43 It bears stressing that when petitioners were separated from
LIVECOR, they were given separation pay which also included gratuity pay for all
the years they worked thereat and concurrently in HSDC/SIDCOR. Granting them We thus find no reversible error committed by theCA in granting the petition filed by
another gratuity pay for the works done in HSDC under the trust agreement would respondents and reversing the Ombudsman decision finding them guilty of the
be indirectly giving them additional compensation for services rendered in another administrative charges.
position which is an extension or is connected with his basic work which is
prohibited. This can only be allowed if there is a law which specifically authorizes WHEREFORE, the petition for review is DENIED. The Decision dated May 30, 2002
them to receive an additional payment of gratuity. The HSDC Board Resolution No. and the Resolution dated August 28, 2002 of the Court of Appeals are hereby
05-19-A granting petitioners’ gratuity pay is not a law which would exempt them AFFIRMED.
from the Constitutional proscription against additional, double or indirect
compensation.
G.R. No. 71562 October 28, 1991
JOSE P. LAUREL V, in his official capacity as Provincial Governor of
Neither does the HSDC law under P.D. 1396 contain a provision allowing the grant Batangas, petitioner,
of such gratuity pay to petitioners.1âwphi1 Section 9 of P.D. 1396 provides: vs. CIVIL SERVICE COMMISSION and LORENZO SANGALANG, respondents.

Section 9. Appointment, Control and Discipline of Personnel. – The Board, upon R E S O L U T I O N - DAVIDE, JR., J.:
recommendation of the General Manager of the Corporation, shall appoint the
officers, and employees of the Corporation and its subsidiaries; fix their
compensation, allowances and benefits, their working hours and such other Is the position of Provincial Administrator primarily confidential?
conditions of employment as it may deem proper; grant them leaves of absence
under such regulations as it may promulgate; discipline and/or remove them for Does the rule on nepotism apply to designation?
May a private citizen who does not claim any better right to a position file a verified Appointment is generally permanent, hence the officer appointed cannot be
complaint with the Civil Service Commission to denounce a violation by an removed except for cause; designation is merely temporary and the new or
appointing authority of the Civil Service Law and rules? additional powers may be withdrawn with or without cause.

These are the issues raised in this petition. Benjamin C. Laurel had already been appointed Senior Executive Assistant
in the Office of the Governor when Governor Laurel designated him Acting
Provincial Administrator.
The antecedent facts are not disputed.

It is further alleged that there was no violation of the Anti-Graft and Corrupt
Petitioner, the duly elected Governor of the Province of Batangas, upon assuming
Practices Act because:
office on 3 March 1980, appointed his brother, Benjamin Laurel, as Senior Executive
Assistant in the Office of the Governor, a non-career service position which belongs
to the personal and confidential staff of an elective official. 1 As Acting Provincial Administrator, Benjamin is entitled under Office of the
President Memorandum-Circular No. 437, series of 1971, to a monthly
On 31 December 1980, the position of Provincial Administrator of Batangas became vacant due to the resignation of representation allowance of P350.00. And said allowance is "strictly on
reimbursement basis." 6
Mr. Felimon C. Salcedo III. Allegedly for lack of qualified applicants and so as not to prejudice the operation of the

Provincial Government, petitioner designated his brother, Benjamin Laurel, as Acting Provincial Administrator
On 12 July 1983, the Civil Service Commission handed down the aforesaid Resolution No. 83-358
effective 2 January 1981 and to continue until the appointment of a regular Provincial Administrator, unless the which, inter 7

alia, revokes the designation of Benjamin as Acting Provincial Administrator on the


designation is earlier revoked. 2
ground that it is "nepotic", or in violation of Section 49, P.D. No. 807 on nepotism.
The relevant portion of said section reads as follows:
On 28 April 1981, he issued Benjamin Laurel a promotional appointment as Civil Security Officer, a position which

the Civil Service Commission classifies as "primarily confidential" pursuant to P.D. No. 868. 3 SECTION 49. Nepotism. — (a) All appointments in the national, provincial,
city and municipal governments or in any branch or instrumentality
thereof, including government-owned or controlled corporations, made in
On 10 January 1983, private respondent Sangalang wrote a letter to the Civil Service Commission 4
to bring to favor of a relative of the appointing or recommending authority, or of the
its attention the "appointment" of Benjamin Laurel as Provincial Administrator of chief of the bureau or office, or of the persons exercising immediate
Batangas by the Governor, his brother. He alleges therein that: (1) the position in supervision over him, are hereby prohibited.
question is a career position, (2) the appointment violates civil service rules, and
(3) since the Governor authorized said appointee to receive representation As used in this Section, the word "relative" and members of the family
allowance, he violated the Anti-Graft and Corrupt Practices Act. He then asks that referred to are those related within the third degree either of consanguinity
the matter be investigated. or affinity.

In his letter to the Chairman of the Civil Service Commission dated 18 January (b) The following are exempted from the operation of the rules on
1983, 5 Jose A. Oliveros, Acting Provincial Attorney of Batangas, for and in behalf of nepotism: (1) persons employed in a confidential capacity, (2) teachers,
herein petitioner, asserts that the latter did not violate the provision prohibiting (3) physicians, and (4) members of the Armed Forces of the
nepotism under Section 49 of P.D. No. 807 because, with respect to the positions of Philippines: Provided, however, That in each particular instance full report
Senior Executive Assistant and Civil Security Officer, both are primarily confidential of such appointment shall be made to the Commission.
in nature; and, with respect to the position of Provincial Administrator:

Although what was extended to Benjamin was merely a designation and not an
. . . what is prohibited under Section 49 of P.D. 807 is the appointment of appointment, the Civil Service Commission ruled that "the prohibitive mantle on
a relative to a career Civil Serviceposition, like that of a provincial nepotism would include designation, because what cannot be done directly cannot
administrator. Governor Laurel did not appoint his brother, Benjamin, as be done indirectly." It further held that Section 24(f) of Republic Act No. 2260
Provincial Administrator. He merely designated him "Acting Provincial provides that no person appointed to a position in the non-competitive service (now
Administrator." And "appointment" and "designation" are two entirely non-career) shall perform the duties properly belonging to any position in the
different things. Appointment implies original establishment of official competitive service (now career service). The petitioner, therefore, could not legally
relation. Designation is the imposition of new or additional duties upon an and validly designate Benjamin, who successively occupied the non-career positions
officer to be performed by him in a special manner. It presupposes a of Senior Executive Assistant and Civil Security Officer, to the position of Provincial
previous appointment of the officer in whom the new or additional duties Administrator, a career position under Section 4 of R.A. No. 5185.
are imposed.

Petitioner's motion to reconsider said Resolution, 8 based on the claim that the
questioned position is primarily confidential in nature, having been denied in
Resolution No. 85-271 of 3 July 1985 9 wherein the respondent Civil Service confidential do not place the said position in the career service; the position of
Commission maintains that said position is not primarily-confidential in nature since Provincial Administrator is in the non-career service; and that the Benitez vs.
it neither belongs to the personal staff of the Governor nor are the duties thereof Paredes and Tañada vs. Tuvera cases are not applicable in this case. Petitioner
confidential in nature considering that its principal functions involve general insists that the controlling doctrines are those enunciated in Salazar vs.
planning, directive and control of administrative and personnel service in the Mathay, 12 where this Court held that there are two instances when a position may
Provincial Office, petitioner filed the instant petition invoking the following grounds: be considered primarily confidential, to wit: (a) when the President, upon
recommendation of the Commissioner of Civil Service (now Civil Service
Commission) has declared a position to be primarily confidential; and (2) in the
A. Respondent Commission has committed a (sic) grave abuse of discretion
absence of such declaration, when by the very nature of the functions of the office,
amounting to lack or excess of jurisdiction when it held that the position of
there exists close intimacy between the appointee and the appointing power which
provincial administrator is not a primarily-confidential position because said
insures freedom of intercourse without embarrassment or freedom from misgiving
ruling is diametrically opposed to, and in utter disregard of rulings of this
or betrayals of personal trust or confidential matters of state and Piñero vs.
Honorable Court as to what is a primarily-confidential position under Article
Hechanova, 13 where this Court ruled that at least, since the enactment of the 1959
XII-B, Sec. 2 of the Constitution.
Civil Service Act (R.A. No. 2260), it is the nature of the position that finally
determines whether a position is primarily confidential, policy determining, or highly
B. Respondent Commission gravely abused its discretion and acted without technical and that executive pronouncements can be no more than initial
jurisdiction when it arrogated unto itself the power to review a designation determinations that are not conclusive in case of conflict, which must be so, or else
made by petitioner by virtue of the powers in him vested under Section "it would then lie within the discretion of the Chief Executive to deny to any officer,
2077 of the Revised Administrative Code. by executive fiat, the protection of section 4, Article XII of the Constitution."

C. Respondent Commission exceeded its jurisdiction when it gave due In his Rejoinder filed on 16 December 1986, the Solicitor General states that the
course to the complaint of private respondent and thereafter promulgated rulings in the Salazar and Piñerocases have been modified and superseded by
the resolutions under question in this petition. Section 6 of P.D. No. 807, and by the third paragraph of Section 1 of P.D. No. 868,
which provides:
D. There is no appeal, nor any other plain, speedy and adequate remedy in
the ordinary course of law available to petitioner to have the questioned Any provision of law authorizing any official, other than the President, to
resolutions of respondent Commission reviewed and thereafter nullified, declare positions policy-determining, primarily confidential or highly
revoked and set aside, other than this recourse to a petition technical which are exempt from the Civil Service Law and rules is hereby
for certiorari under Rule 65 of the Rules of Court. repealed, and only the President may declare a position-determining,
highly technical or primarily confidential, upon recommendation of the Civil
In the Comment filed for the respondent Commission on 7 October 1985, the Service Commission, the Budget Commission and the Presidential
Solicitor General sustains the challenged resolutions and contends that the position Reorganization Commission.
of Provincial Administrator is intended to be part of the career system and since it
requires a specific civil service eligibility, it belongs to the career service under The Solicitor General further asseverates that the Commissions' giving due course
Section 5(1) of P.D. No. 807 and has not been declared primarily confidential by the to the complaint of Sangalang is manifestly valid and legal for it is also in
President pursuant to Section 1 of P.D. No. 868; that the Commission has the accordance with the declared policies of the State provided for in Section 2 of P.D.
authority to review, disapprove, and set aside even mere designations, as No. 807.
distinguished from appointments, for Section 2 of P.D. No. 807 vests in it the power
to enforce the laws and rules governing the selection, utilization, training and
In the Resolution of 9 February 1987, this Court gave due course to the petition and
discipline of civil servants; and that it can act on Sangalang's complaint pursuant to
required the parties to submit simultaneous memoranda.
Section 37 of P.D. No. 807, for what he filed was not an action for quo warranto,
but an administrative complaint to correct a violation of the Civil Service law and
rules which involved public service and the public interest. Per Benitez vs. We shall take up the issues in the order they are presented above.
Paredes, 10 reiterated in Tañada vs.
Tuvera, 11 where the question is one of public right, the people are regarded as the
1. The first issue becomes important because if the questioned position is primarily
real parties in interest, and the relator at whose instigation the proceedings are
confidential, Section 49 of P.D. No. 807 on nepotism would not apply in the instant
instituted need only show that he is a citizen and as such interested in the execution
case. Interestingly, however, petitioner did not raise it in the letter to the Chairman
of the laws.
of the Civil Service Commission dated 18 January 1983. 14

On 11 December 1985, petitioner filed his Reply to the Comment insisting therein
that the duties, functions and responsibilities of the Provincial Administrator render
said position primarily confidential in nature; the requirement of a specific service
eligibility and absence of a presidential declaration that the position is primarily
On the contrary, he submits, or otherwise admits therein, that said position is not primarily confidential for it This is the class for top professional level management, administrative and
belongs to the career service. He even emphasized this fact with an air of absolute certainty, thus: organizational work in the operation of provincial government with highly
complex, involved relationships with considerable delegation of authority
and responsibility and a high degree of public contact.
At this juncture, may I emphasize that what is prohibited under Sec. 49 of P.D. 807 is the appointment

of a relative to a career Civil Service position, LIKE THAT OF PROVINCIAL ADMINISTRATOR . . .


render indisputable the above conclusion that the subject position is in the career
(capitalization supplied for emphasis). service which, per Section 5 of P.D. No. 807, is characterized by (a) entrance based
on merit and fitness to be determined as far as practicable by competitive
examinations, or based on highly technical qualifications, (b) opportunity for
advancement to higher career positions, and (c) security of tenure. More
specifically, it is an open career position, for appointment to it requires prior
The sole ground invoked by him for exemption from the rule on nepotism is, as above indicated: the rule does not qualification in an appropriate examination. 17 It falls within the second major level
of positions in the career service, per Section 7 of P.D. No. 807, which reads:
apply to designation — only to appointment. He changed his mind only after the public respondent, in its Resolution

No. 83-358, ruled that the "prohibitive mantle on nepotism would include designation, because what cannot be done
Sec. 7. Classes of Positions in the Career Service. — (a) Classes of
directly cannot be done indirectly" and, more specifically, only when he filed his motion to reconsider said
positions in the career service appointment to which requires examinations
resolution. Strictly speaking, estoppel has bound petitioner to his prior admission. Per Article 1431 of the Civil Code, shall be grouped into three major levels as follows:
through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be

denied or disproved as against the person relying thereon. 15 (2) The second level shall include professional, technical, and scientific
positions which involve professional, technical, or scientific work in a non-
supervisory or supervisory capacity requiring at least four years of college
But even if estoppel were not to operate against him, or regardless thereof, his claim that the position of Provincial
work up to Division Chief level; . . .
Administrator is primarily confidential, is without merit.

As correctly maintained by the public respondent and the Solicitor General, the position of Provincial Administrator
In Piñero, et al. vs. Hechanova, et al., 18 this Court had the occasion to rule that:

is embraced within the Career Service under Section 5 of P.D. No. 807 as evidenced by the qualifications prescribed

for it in the Manual of Position Descriptions, 16


to wit: It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it is the nature of

the position which finally determines whether a position is primarily confidential, policy determining or

highly technical. Executive pronouncements can be no more than initial determinations that are not
Education : Bachelor's degree preferably in Law/Public or Business
Administration. conclusive in case of conflict. And it must be so or else it would then lie within the discretion of the

Chief Executive to deny to any officer, by executive fiat, the protection of Section 4, Article XII 19 of the

Experience : Six years of progressively responsible experience in planning, Constitution.


directing and administration of provincial government operations.
Experience in private agencies considered are those that have been more
This rule stands despite the third paragraph of Section 1 of P.D. No. 868 which pertinently reads:
or less familiar level of administrative proficiency.

Eligibility : RA 1080 (BAR)/Personnel Management Officer/Career Service . . . and only the President may declare a position policy-determining, highly technical or primarily
(Professional)/First Grade/Supervisor). confidential, upon recommendation of the Civil Service Commission, the Budget Commission and the

Presidential Reorganization Commission.


It may be added that the definition of its functions and its distinguishing
characteristics as laid down in the Manual, thus:
for the reason that the latter may be considered merely as the initial determination of the Executive, which in no

case forecloses judicial review. A rule that exclusively vests upon the Executive the power to declare what position
2. DEFINITION:
may be considered policy-determining, primarily confidential, or highly technical would subvert the provision on the

civil service under the 1973 Constitution which was then in force at the time the decree was promulgated.
Under the direction of the Provincial Governor, responsible for the overall
coordination of the activities of the various national and local agencies in Specifically, Section 2 of Article XII of said Constitution makes reference to positions which are policy-determining,

the province; and general planning, direction and control of the personnel primarily confidential, or highly technical in nature," thereby leaving no room for doubt that, indeed, it is
functions and the administrative services of the Governor's Office. the nature of the position which finally determines whether it falls within the above mentioned classification. The

1987 Constitution retains this rule when in Section 2 of Article IX-C, it clearly makes reference to "positions which
3. DISTINGUISHING CHARACTERISTICS: are policy-determining, primarily confidential, or highly technical."
In Borromeo vs. Mariano, 26
this Court said:

In the light of the foregoing, We cannot accept the view of the Solicitor General in his Rejoinder 20
that Salazar vs. . . . All the authorities unite in saying that the term "appoint" is well-known
Mathay 21
and Piñero, et al. vs. Hechanova, et al., 22 have already been modified by Section 6 of P.D. No. in law and whether regarded in its legal or in its ordinary acceptation, is
807 and the third paragraph of Section 1 of P.D. No. 868. applied to the nomination or designation of an individual . . . (emphasis
supplied).
Not being primarily confidential, appointment thereto must, inter alia, be subject to the rule on nepotism.
In Binamira vs. Garrucho, 27
this Court, per Mr. Justice Isagani M. Cruz, stated:

We likewise agree with the public respondent that there is one further obstacle to the occupation by Benjamin
Designation may also be loosely defined as an appointment because it
Laurel of the position of Provincial Administrator. At the time he was designated as Acting Provincial Administrator,
likewise involves the naming of a particular person to a specified public
he was holding the position of Senior Executive Assistant in the Office of the Governor, a primarily confidential office. That is the common understanding of the term. However, where the
position. He was thereafter promoted as Civil Security Officer, also a primarily confidential position. Both positions person is merely designated and not appointed, the implication is that he
belong to the non-career service under Section 6 of P.D. No. 807. As correctly ruled by the public respondent,
shall hold the office only in a temporary capacity and may be replaced at
will by the appointing authority. In this sense, the designation is
petitioner cannot legally and validly designate Benjamin Laurel as Acting Provincial Administrator, a career position,
considered only an acting or temporary appointment, which does not
because Section 24(f) of R.A. No. 2260 provides that no person appointed to a position in the non-competitive confer security of tenure on the person named.
service (now non-career) shall perform the duties properly belonging to any position in the competitive service (now

career service). It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that
designation should be differentiated from appointment. Reading this section with
Section 25 of said decree, career service positions may be filled up only by
appointment, either permanent or temporary; hence a designation of a person to fill
it up because it is vacant, is necessarily included in the term appointment, for it
precisely accomplishes the same purpose. Moreover, if a designation is not to be
2. Being embraced in the career service, the position of Provincial Administrator must, as mandated by Section 25
deemed included in the term appointment under Section 49 of P.D. No. 807, then
of P.D. No. 807, be filled up by permanent or temporary appointment. The first shall be issued to a person who
the prohibition on nepotism would be meaningless and toothless. Any appointing
meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. authority may circumvent it by merely designating, and not appointing, a relative
In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary within the prohibited degree to a vacant position in the career service. Indeed, as
appointment shall be issued to a person who meets all the requirements for the position except the appropriate civil
correctly stated by public respondent, "what cannot be done directly cannot be done
indirectly." 28
service eligibility, provided, however, that such temporary appointment shall not exceed twelve months, but the

appointee may be replaced sooner if a qualified civil service eligible becomes available. 23
3. As regards the last issue, We rule that the letter-complaint of Sangalang was validly given due course by public

respondent. Undoubtedly, as shown above, there was a violation of law committed by petitioner in designating his
Petitioner could not legally and validly appoint his brother Benjamin Laurel to said position because of the brother as Acting Provincial Administrator. Any citizen of the Philippines may bring that matter to the attention of
prohibition on nepotism under Section 49 of P.D. No. 807. They are related within the third degree of consanguinity the Civil Service Commission for appropriate action conformably with its role as the central personnel agency to set
and the case does not fall within any of the exemptions provided therein. standards and to enforce the laws and rules governing the selection, utilization, training and discipline of civil

servants, 29
with the power and function to administer and enforce the Constitutional
Petitioner, however, contends that since what he extended to his brother is not an appointment, but a and statutory provisions on the merit system. 30 Moreover, Section 37 of the decree
DESIGNATION, he is not covered by the prohibition. Public respondent disagrees, for: expressly allows a private citizen to directly file with the Civil Service Commission a
complaint against a government official or employee, in which case it may hear and
decide the case or may deputize any department or agency or official or group of
officials to conduct an investigation. The results of the investigation shall be
submitted to the Commission with recommendation as to the penalty to be imposed
or other action to be taken. This provision gives teeth to the Constitutional
By legal contemplation, the prohibitive mantle on nepotism would include designation, because what cannot be done directly
exhortation that a public office is a public trust and public officers and employees
cannot be done indirectly. 24
must at all times be, inter alia, accountable to the people. 31 An ordinary citizen who
brings to the attention of the appropriate office any act or conduct of a government
We cannot accept petitioner's view. His specious and tenuous distinction between appointment and designation is nothing more than either a ploy official or employee which betrays the public interest deserves nothing less than the
ingeniously conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of praises, support and encouragement of society. The vigilance of the citizenry is vital
no distinction between appointment and designation.Designation is also defined as "an appointment or assignment to a particular office"; and "to in a democracy.
designate" means "to indicate, select, appoint or set apart for a purpose or duty. 25
WHEREFORE, this petition is DENIED for lack of merit, and the challenged on 28 October 1992, and that the appointment was thereafter approved by Director
Resolutions of the Civil Service Commission are AFFIRMED. Purita H. Escobia of that CSC-Field Office, on 18 November 1992.

Costs against petitioner. Acting on the report of Director Caberoy, the Commission, in its Resolution No. 93-
1427 dated 13 April 1993, recalled the approval issued by Director Escobia and
disapproved the promotion of petitioner Victoria to the position of General Services
G.R. No. 111471 September 26, 1994
Officer of San Carlos City upon the ground that that promotion violated the
CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T.
statutory prohibition against nepotic appointments.
DEBULGADO, petitioners, vs. CIVIL SERVICE COMMISSION, respondent.

On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of


FELICIANO, J.:
Resolution No. 93-1427 of the Commission. 4 Petitioners moved for reconsideration,
contending that the statutory prohibition against nepotism was not applicable to the
Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, appointment of Victoria as General Services Officer. Petitioners also asserted that
Negros Occidental. On 1 October 1992, petitioner Mayor appointed his wife, the Commission had deprived petitioner Victoria of her right to due process by
petitioner Victoria T. Debulgado, as General Services Officer, that is, as head of the unilaterally revoking her appointment. The motion for reconsideration was denied
Office of General Services 1 of the City Government of San Carlos. by the Commission on 21 July 1993.

Petitioner Victoria was one of three (3) employees of the City Government who were In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that
considered for the position of General Services Officer. Before her promotion in the Commission had gravely abused its discretion in withdrawing and disapproving
1992, she had been in the service of the City Government for about thirty-two (32) petitioner Victoria's promotional appointment. Petitioners assert that Victoria can no
years. She joined the City Government on 3 January 1961 as Assistant License longer be removed from the position of General Services Officer without giving her
Clerk. Through the years, she rose from the ranks, successively occupying the an opportunity to be heard and to answer the charged of nepotism.
following positions:
Petitioner Mayor denies that he had been motivated by personal reasons when he
(a) Assistant Chief of the License & Fees Division, from 1 July 1965 to 30 June appointed his wife to the new post. He states that his wife was the most qualified
1973; among the candidates for appointment to that position, she having worked for the
City Government for thirty-two (32) years and being highly recommended by the
(b) Chief of the License and Fees Division, from 1 July 1973 to 1 January 1981; OIC-Treasurer of San Carlos City. 5 It is also claimed by petitioner Mayor that his
choice of his wife for the position was concurred in by the Sangguniang
Panglungsod. 6 He further avers that he had consulted the Field and Regional
(c) Cashier, from 2 January 1981 to 30 June 1989; and Officers of the Commission in Bacolod City, and raised the question of applicability
of the prohibition against nepotism to the then proposed promotion of his wife in
(d) Cashier IV, from 1 July 1989 to 30 September 1992. 2 one of the seminars conducted by the Commission's Regional Office held in San
Carlos City on 21 and 22 September 1992. According to petitioner Mayor, one
Gregorio C. Agdon, a supervising personnel specialist in the Commission's Bacolod
On 1 October 1992, petitioner Victoria assumed the new post, and commenced Office, informed him that the promotional appointment was not covered by the
discharging the functions, of General Services Officer of San Carlos City and prohibition. 7
receiving the regular salary attached to that position.

The basic contention of petitioners is that the prohibition against nepotic


On 16 December 1992, public respondent Civil Service Commission ("Commission") appointments is applicable only to original appointments and not to promotional
received a letter 3 from Congressman Tranquilino B. Carmona of the First District of appointments. They believe that because petitioner Victoria was already in the
Negros Occidental, calling attention to the promotional appointment issued by service of the City Government before she married petitioner Mayor, the reason
petitioner Mayor in favor of his wife. behind the prohibition no longer applied to her promotional appointment. Petitioners
also affirm that petitioner Victoria deserves to be promoted to General Services
The Commission directed its Regional Office No. 6-Iloilo City to submit a report on Officer, considering her long and faithful service to the City Government. 8
the appointment of petitioner Victoria.
The task before this Court is, accordingly, two-fold:
From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No.
6, the Commission found that petitioner Mayor was the lawful husband of the (1) to determine whether a promotional appointment is covered by the legal
appointee, petitioner Victoria, the two (2) having been married sometime in 1964. prohibition against nepotism, or whether that prohibition applies only to original
Director Caberoy also reported that the appointment papers prepared by the Office appointments to the Civil Service; and
of the City Mayor of San Carlos were submitted to the Bacolod City CSC-Field Office
(2) to determine whether the Commission had gravely abused its discretion in Unless otherwise specifically provided by law, as used in this Section, the word
recalling and disapproving the promotional appointment given to petitioner Victoria "relative" and the members of the family referred to are those related within the
after the Commission, through Director Escobia, had earlier approved that same third degree either of consanguinity or of affinity.
appointment, without giving an opportunity to petitioner Victoria to explain her side
on the matter.
The following are exempted from the operation of the rules on nepotism: (a)
persons employed in a confidential capacity; (b) teachers; (c) physicians; (d)
I. The prohibitory norm against nepotism in the public service is set out in members of the Armed Forces of the Philippines. Provided, however, That in each
Section 59, Book V of the Revised Administrative Code of 1987 (also known particular instance full report of such appointment shall be made to the
as E.O. No. 292). Section 59 reads as follows: Commission.

Sec. 59. Nepotism — (1) All appointments in the national, provincial, city and The restriction mentioned in the first paragraph of this Section shall not be
municipal governments or in any branch or instrumentality thereof, including applicable to the case of a member of any family who after his or her appointment
government-owned or controlled corporations, made in favor of a relative of the to any position in an office or bureau, contracts marriage with someone in the same
appointing or recommending authority, or of the chief of the bureau or office, or of office or bureau, in which event the employment or retention therein of both
the persons exercising immediate supervision over him, are hereby prohibited. husband and wife may be allowed.

As used in this Section the word "relative" and members of the family referred to Cases of previous appointment which are in contravention hereof shall be corrected
are those related within the third degree either of consanguinity or of affinity. by transfer, and pending such transfer no promotion or salary increase shall be
allowed in favor of the relative or relatives who were appointed in violation of these
provisions. (Emphasis supplied)
(2) The following are exempted from the operation of the rules on nepotism: (a)
persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d)
members of the Armed Forces of the Philippines: Provided, however, That in each It will be noted that the abovequoted Section 6 of Implementing Rule XVIII
particular instance full report of such appointment shall be made to the essentially tracks the provisions of Section 59, Book V of E.O. No. 292. 9
Commission.
We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292, quoted
The restriction mentioned in subsection (1) shall not be applicable to the case of a above. The noteworthy fact may be pointed out, at the outset, that Section 59 as it
member of any family who, after his or her appointment to any position in an office exists today has been in our statute books in substantially identical form and
or bureau, contracts marriage with someone in the same office or bureau, in which language for at least thirty (30) years. 10
event the employment or retention therein of both husband and wife may be
allowed.
A textual examination of Section 59 at once reveals that the prohibition was cast in
comprehensive and unqualified terms. Firstly, it explicitly covers "all appointments",
(3) In order to give immediate effect to these provisions, cases of previous without seeking to make any distinction between differing kinds or types of
appointment which are in contravention hereof shall be corrected by transfer and appointments. Secondly, Section 59 covers all appointments to
pending such transfer, no promotion or salary increase shall be allowed in favor of the national, provincial, city and municipal government, as well as any branch or
the relative or relatives who were appointed in violation of these provisions. instrumentality thereof and all government owned or controlled corporations.
(Emphasis supplied). Thirdly, there is a list of exceptions set out in Section 59 itself, but it is a short list:

Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of Executive (a) persons employed in a confidential capacity;
Order No. 292 and other Pertinent Civil Service Laws," issued on 27 December (b) teachers;
1991, implementing, among other things, the abovequoted Section 59, provides as (c) physicians; and
follows: (d) members of the Armed Forces of the Philippines.

Sec. 6. No appointments in the national, provincial, city and The list has not been added to or subtracted from for the past thirty (30) years. The
municipal government or in any branch or instrumentality thereof, including list does not contain words like "and other similar positions." Thus, the list appears
government-owned or controlled corporations with original charters shall be made to us to be a closed one, at least closed until lengthened or shortened by Congress.
in favor of a relative of the appointing or recommending authority, or of the chief of
the bureau or office, or of the persons exercising immediate supervision over the
Section 59 of Book V, E.O. No. 292 should, of course, be read in connection with the
appointee.
Omnibus Implementing Rules. Additional light is shed on the issue we here address
by some provisions of these Rules. Section 1, Rule V of the Omnibus Implementing
Rules reads as follows:
Sec. 1. All appointments in the career service shall be made only according to merit Court held that the appointment or designation as Acting Provincial Administrator
and fitness to be determined as far as practicable by competitive examinations. was violative of the prohibition against nepotism, then embodied in Section 49, P.D.
No. 807. Moreover, the Court emphatically agreed with the Civil Service Commission
that "although what was extended to Benjamin was merely a designation and not an
As used in these Rules, any action denoting movement or progress of personnel in
appointment, . . . the prohibitive mantle on nepotism would include designation,
the civil service shall be known as personnel action. Such action shall include
because what cannot be done directly, cannot be done indirectly:"
promotion, transfer, reinstatement, reemployment, detail, secondment,
reassignment, demotion and separation. All original appointments and personnel
actions shall be in accordance with these Rules and with other regulations and We cannot accept petitioner's view. His specious and tenuous distinction between
standards that may be promulgated by the Commission. (Emphasis supplied) appointment and designation is nothing more than either a ploy ingeniously
conceived to circumvent the rigid rule on nepotism or a last-ditch maneuver to
cushion the impact of its violation. The rule admits of no distinction between
Section 1, Rule VII of the same Rules also bears upon our inquiry:
appointment and designation. Designation is also defined as "an appointment or
assignment to a particular office"; and "to designate" means "to indicate,
Sec. 1. The following constitute personnel actions: original appointment, select, appoint or set apart for a purpose of duty." (Black's Law Dictionary, Fifth ed.,
appointment through certification, promotion, transfer, reinstatement, 402)
reemployment, detail, secondment, demotion and separation. (Emphasis supplied)
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that
Under the abovequoted provisions of the Implementing Rules, both an original designation should be differentiated from appointment. Reading this section with
appointment and a promotion are particular species of personnel action. Section 25 of said decree, career service positions may be filled up only by
The original appointment of a civil service employee and all subsequent personnel appointment, either permanent or temporary; hence a designation of a person to fill
actions undertaken by or in respect of that employee such as promotion, transfer, it up because it is vacant, is necessarily included in the term appointment, for it
reinstatement, reemployment, etc., must comply with the Implementing Rules precisely accomplishes the same purpose. Moreover, if a designation is not to be
including, of course, the prohibition against nepotism in Rule XVIII. To the extent deemed included in the term appointment under Section 49 of P.D. No. 807, then
that all personnel actions occurring after an original appointment, require the the prohibition on nepotism would be meaningless and toothless. Any appointing
issuance of a new appointment to another position (or to the original position in authority may circumvent it by merely designating, and not appointing, a relative
case of reinstatement), we believe that such appointment must comply with all within the prohibited degree to a vacant position in the career service. Indeed, as
applicable rules and prohibitions, including the statutory and regulatory prohibition correctly stated by public respondent, "what cannot be done directly cannot be done
against nepotism. To limit the thrust of the prohibition against nepotism to the indirectly." 13 (Emphasis partly in the original and partly supplied; citation omitted)
appointment issued at the time of initial entry into the government service, and to
insulate from that prohibition appointments subsequently issued when personnel
Thus, the Court was unwilling to restrict and limit the scope of the prohibition which
actions are thereafter taken in respect of the same employee, would be basically to
is textually very broad and comprehensive.
render that prohibition, in the words of Laurel V, etc. v. Civil Service
Commission, 11 "meaningless and toothless."
One of the contentions of petitioner in the case at bar is that the ratio of the
prohibition against nepotism is not applicable here because petitioner Victoria was
Inquiry into the basic purpose or objective of the prohibition against nepotism also
already in the government service at the time petitioners were married in 1964. It is
strongly indicates that that prohibition was intended to be a comprehensive one.
not disputed that the original 1961 appointment of petitioner Victoria as an
Section 1, Book V, E.O. No. 292 sets out the basic policy which pervades all the
Assistant License Clerk was not a nepotic appointment. Indeed, Section 59 itself
provisions of our Civil Service law, including Section 59 thereof:
states, in the 4th paragraph thereof, that the prohibition against nepotism is not
applicable to the case of a member of any family who, after his or her
Sec. 1. Declaration of Policy. — The State shall insure and promote appointment to any position in any office or bureau, contracts marriage with
the Constitutional mandate that appointments in the Civil Service shall be made someone in the same office or bureau, in which event the employment or retention
only according to merit and fitness; . . . (Emphasis supplied) therein of both husband and wife may be allowed. (Emphasis supplied)

Put succinctly, that purpose is to ensure that all appointments and other personnel The subsequent marriage of one to the other of petitioners did not retroactively
actions in the civil service should be based on merit and fitness and should never convert the original appointment of petitioner Victoria into a prohibited nepotic one.
depend on how close or intimate an appointee is to the appointing power. 12 It is the promotional appointment issued by petitioner Mayor to petitioner Victoria in
1 October 1982 that is at stake.
Laurel V, etc. v. Civil Service Commission supra, is instructive in this connection. In
that case, petitioner Governor of Batangas Province appointed or designated his Here, the basic argument of petitioners is that to read the prohibition in Section 59,
brother, Benjamin Laurel, who had been holding a promotional appointment as Civil Book V of E.O. No. 292 as applicable both to original and promotional or subsequent
Security Officer, a position classified as "primarily confidential" by the Civil Service, appointments, would be to deprive the government of the services of loyal and
to the position of Provincial Administrator, a position in the Career Civil Service. This faithful employees who would thereby be penalized simply because the appointing
or recommending official happens to be related to the employees within the third provisions of law and whether the appointee possesses all the minimum
degree of consanguinity or affinity. qualifications and none of the disqualifications. At all events, as the Solicitor General
has noted, petitioner Victoria was afforded an opportunity to be heard when she
filed a motion for reconsideration with the Commission and there challenged the
A major difficulty with the petitioners' argument is that it tends to prove too much.
disapproval by the Commission.
For the appointee, whether in an original or a promotion appointment, may in fact
be quite loyal and efficient and hard-working; yet that circumstance will not prevent
the application of the prohibition certainly in respect of the original appointment. The action of the Commission was, in other words, taken in implementation of
The Court is not unaware of the difficulties that the comprehensive prohibition Section 59, Book V, E.O. No. 292 and the relevant Implementing Regulations.
against nepotism would impose upon petitioner Victoria and others who maybe in Because the promotional appointment in favor of petitioner Victoria was a violation
the same position. It is essential to stress, however, that the prohibition applies of Section 59, it was null and void as being contra legem. Section 9 of Rule V of the
quite without regard to the actual merits of the proposed appointee and to the good Omnibus Implementing Regulations sets out the principal legal consequence of an
intentions of the appointing or recommending authority, and that the prohibition appointment issued in disregard of the statutory prohibition:
against nepotism in appointments whether original or promotional, is not intended
by the legislative authority to penalize faithful service.
Sec. 9. An appointment accepted by the appointee cannot be withdrawn or revoked
by the appointing authority and shall remain in force and effect until disapproved by
The purpose of Section 59 which shines through the comprehensive and unqualified the Commission. However, an appointment may be void from the beginning due to
language in which it was cast and has remained for decades, is precisely to take out fraud on the part of the appointee or because it was issued in violation of law.
of the discretion of the appointing and recommending authority the matter of (Emphasis supplied)
appointing or recommending for appointment a relative. In other words, Section 59
insures the objectivity of the appointing or recommending official by preventing that
A void appointment cannot give rise to security of tenure on the part of the holder
objectivity from being in fact tested. The importance of this statutory objective is
of such appointment.
difficult to overstress in the culture in which we live and work in the Philippines,
where family bonds remain, in general, compelling and cohesive.
The Commission is empowered to take appropriate action on all appointments and
other personnel actions, e.g., promotions. 15 Such power includes the authority to
The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly
recall an appointment initially approved in disregard of applicable provisions of Civil
what it says in plain and ordinary language: it refers to "all appointments" whether
Service law and regulations. Section 20 of Rule VI of the Omnibus Implementing
original or promotional in nature. The public policy embodied in Section 59 is clearly
Rules makes this clear:
fundamental in importance, and the Court has neither authority nor inclination to
dilute that important public policy by introducing a qualification here or a distinction
there. Sec. 20. Notwithstanding the initial approval of an appointment, the same may be
recalled on any of the following grounds:
It follows that the promotional appointment of petitioner Victoria by her husband,
petitioner Mayor, falls within the prohibited class of appointments: the prohibited (a) Non-compliance with the procedures/criteria provided in the agency's Merit
relationship between the appointing authority (petitioner Mayor) and the appointee Promotion Plan;
(wife Victoria) existed at the time the promotional appointment was issued. It is
scarcely necessary to add that the reasons which may have moved petitioner Mayor (b) Failure to pass through the agency's Selection/Promotion Board;
to issue the prohibited appointment are, as a matter of law, not relevant in this
connection. 14
(c) Violation of the existing collective agreement between management and
employees relative to promotion; or
II. We turn to the second issue where petitioners contend that when the
promotional appointment of petitioner Victoria was approved by Director Escobia,
CSC Field Office, Bacolod City, that appointment become complete. When petitioner (d) Violation of other existing civil service law, rules and
Victoria took her oath of office and commenced the discharge of the duties of a regulations. (Emphasis supplied).
General Services Officer, she acquired a vested right to that position and cannot,
according to petitioners, be removed from that position without due process of law. The recall or withdrawal by the Commission of the approval which had been issued
by one of its Field Officers, Director Escobia, was accordingly lawful and appropriate,
This argument misconceives the nature of the action taken by the respondent the promotional appointment of petitioner Victoria being void "from the beginning."
Commission. That action was not the imposition of an administrative disciplinary The approval issued by Director Escobia did not, as it could not, cure the intrinsic
measure upon petitioner Victoria, nor upon petitioner Mayor. There were no vice of that appointment.
administrative charges in respect of which petitioner Victoria would have been
entitled to notice and hearing. The Commission, in approving or disapproving an
appointment, only examines the conformity of the appointment with applicable
We conclude, in respect of the second issue, that petitioners have not shown any On February 25, 1997, respondent Dacoycoy filed a motion for
grave abuse of discretion, amounting to lack of excess of jurisdiction on the part of reconsideration; 4 however, on May 20, 1997, the Civil Service Commission denied
respondent Commission. the motion. 5

Petitioners have also complained that the letter of Congressman Carmona which had On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special
precipitated action on the part of respondent Commission, was not a verified letter. civil action for certiorari with preliminary injunction6 to set aside the Civil Service
They contend that the Commission could not or should not have acted upon the Commission's resolutions.
charges raised in that letter.
On July 29, 1998, the Court of Appeals promulgated its decision reversing and
We are not aware of any law or regulation requiring the letter written by the setting aside the decision of the Civil Service Commission, ruling that respondent
Congressman to be subscribed under oath before the Commission could act did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty
thereon. Under its own rules and regulations, the Commission may of nepotism. The Court further held that it is "the person who recommends or
review motu proprio personnel actions involving the position of a Division Chief or appoints who should be sanctioned, as it is he who performs the prohibited act." 7
above, such as the position of General Services Officer. 16 We hold that the
respondent Commission had authority, indeed the duty, to recall on its own
Hence, this appeal.
initiative the erroneous initial approval of the promotional appointment extended to
petitioner Victoria, and to review the same de novo.
On November 17, 1998, we required respondent to comment on the petition within
ten (10) days from notice.8 On December 11, 1998, respondent filed his comment.
WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED
for lack of merit. No pronouncement as to costs.
We give due course to the petition.
G.R. No. 135805 April 29, 1999
CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. The basic issue raised is the scope of the ban on nepotism.
DACOYCOY, respondent.
We agree with the Civil Service Commission that respondent Pedro O. Dacoycoy was
PARDO, J guilty of nepotism and correctly meted out the penalty of dismissal from the service.

The case before us is an appeal via certiorari interposed by the Civil Service The law defines nepotism9 as follows:
Commission from a decision of the Court of Appeals ruling that respondent Pedro O.
Dacoycoy was not guilty of nepotism and declaring null and void the Civil Service Sec. 59. Nepotism. — (1) All appointments to the national, provincial, city and
Commission's resolution dismissing him from the service as Vocational School municipal governments or in any branch or instrumentality thereof, including
Administrator, Balicuatro College of Arts and Trade, Allen, Northern Samar. government owned or controlled corporations, made in favor of a relative of the
appointing or recommending authority, or of the chief of the bureau or office, or of
The facts may be succinctly related as follows: the persons exercising immediate supervision over him, are hereby prohibited.

On November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, As used in this Section, the word "relative" and members of the family referred to
Allen Chapter, Northern Samar, filed with the Civil Service Commission, Quezon are those related within the third degree either of consanguinity or of affinity.
City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct
and nepotism.1 (2) The following are exempted from the operations of the rules on nepotism: (a)
persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d)
After a fact-finding investigation, the Civil Service Regional Office No. 8, Tacloban members of the Armed Forces of the Philippines: Provided, however, That in each
City, found a prima facie case against respondent, and, on March 5, 1996, issued particular instance full report of such appointment shall be made to the
the corresponding formal charge against him.2 Accordingly, the Civil Service Commission.
Commission conducted a formal investigation, and, on January 28, 1997, the Civil
Service Commission promulgated its resolution finding no substantial evidence to Under the definition of nepotism, one is guilty of nepotism if an appointment is
support the charge of habitual drunkenness and misconduct. However, the Civil issued in favor of a relative within the third civil degree of consanguinity or affinity
Service Commission found respondent Pedro O. Dacoycoy guilty of nepotism on two of any of the following:
counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as
driver and utility worker, respectively, and their assignment under his immediate
supervision and control as the Vocational School Administrator as Balicuatro College a) appointing authority;
of Arts and Trades, and imposed on him the penalty of dismissal from the service. 3
b) recommending authority; Subsequently, the Court of Appeals reversed the decision of the Civil Service
Commission and held respondent not guilty of nepotism. Who now may appeal the
decision of the Court of Appeals to the Supreme Court? Certainly not the
c) chief of the bureau or office, and
respondent, who was declared not guilty of the charge. Nor the complainant George
P. Suan, who was merely a witness for the government.13 Consequently, the Civil
d) person exercising immediate supervision over the appointee. Service Commission has become the party adversely affected by such ruling, which
seriously prejudices the civil service system. Hence, as an aggrieved party, it may
Clearly, there are four situations covered. In the last two mentioned situations, it is appeal the decision of the Court of Appeals to the Supreme Court. 14 By this ruling,
immaterial who the appointing or recommending authority is. To constitute a we now expressly abandon and overrule extant jurisprudence that "the phrase
violation of the law, it suffices that an appointment is extended or issued in favor of 'party adversely affected by the decision' refers to the government employee
a relative within the third civil degree of consanguinity or affinity of the chief of the against whom the administrative case is filed for the purpose of disciplinary action
bureau or office, or the person exercising immediate supervision over the which, may take the form of suspension, demotion in rank or salary, transfer,
appointee. removal or dismissal from office"15 and not included are "cases where the penalty
imposed is suspension for not more than thirty (30) days or fine in an amount not
exceeding thirty days salary"16 or "when the respondent is exonerated of the
Respondent Dacoycoy is the Vocational School Administrator, Balicuatro College of charges, there is no occasion for appeal."17 In other words, we overrule prior
Arts and Trades, Allen, Northern Samar. It is true that he did not appoint or decisions holding that the Civil Service Law "does not contemplate a review of
recommend his two sons to the positions of driver and utility worker in the decisions exonerating officers or employees from administrative charges"
Balicuatro College of Arts and Trades. In fact, it was Mr. Jaime Daclag, Head of the enunciated in Paredes v. Civil Service Commission; 18 Mendez v. Civil Service
Vocational Department of the BCAT, who recommended the appointment of Rito. Commission;19 Magpale v. Civil Service Commission;20 Navarro v. Civil Service
Mr. Daclag's authority to recommend the appointment of first level positions such as Commission and Export Processing Zone Authority 21 and more recently Del Castillo
watchmen, security guards, drivers, utility workers, and casuals and emergency v. Civil Service Commission. 22
laborers for short durations of three to six months was recommended by respondent
Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the
provision that such positions shall be under Mr. Daclag's immediate supervision. On The Court of Appeals' reliance on Debulgado vs. Civil Service Commission,23 to
July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, support its ruling is misplaced. The issues in Debulgado are whether a promotional
Leyte, appointed Rito Dacoycoy driver of the school. On January 3, 1993, Mr. appointment is covered by the prohibition against nepotism or the prohibition
Daclag also appointed Ped Dacoycoy casual utility worker. However, it was applies only to original appointments to the civil service, and whether the
respondent Dacoycoy who certified that "funds are available for the proposed Commission had gravely abused its discretion in recalling and disapproving the
appointment of Rito Dacoycoy" and even rated his performance as "very promotional appointment given to petitioner after the Commission had earlier
satisfactory". On the other hand, his son Ped stated in his position description form approved that appointment. Debulgado never even impliedly limited the coverage of
that his father was "his next higher supervisor". The circumvention of the ban on the ban on nepotism to only the appointing or recommending authority for
nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of appointing a relative. Precisely, in Debulgado, the Court emphasized that Section 59
respondent Pedro O. Dacoycoy, who was the school administrator. He authorized "means exactly what it says in plain and ordinary language: . . . The public policy
Mr. Daclag to recommend the appointment of first level employees under his embodied in Section 59 is clearly fundamental in importance, and the Court has
immediate supervision. Then Mr. Daclag recommended the appointment of neither authority nor inclination to dilute that important public policy by introducing
respondent's two sons and placed them under respondent's immediate supervision a qualification here or a distinction there. 24
serving as driver and utility worker of the school. Both positions are career
positions. Nepotism is one pernicious evil impeding the civil service and the efficiency of its
personnel. In Debulgado, we stressed that "[T]the basic purpose or objective of the
To our mind, the unseen but obvious hand of respondent Dacoycoy was behind the prohibition against nepotism also strongly indicates that the prohibition was
appointing or recommending authority in the appointment of his two sons. Clearly, intended to be a comprehensive one."25 "The Court was unwilling to restrict and
he is guilty of nepotism. limit the scope of the prohibition which is textually very broad and
comprehensive."26 If not within the exceptions, it is a form of corruption that must
be nipped in the bud or abated whenever or wherever it raises its ugly head. As we
At this point, we have necessarily to resolve the question of the party adversely said in an earlier case "what we need now is not only to punish the wrongdoers or
affected who may take an appeal from an adverse decision of the appellate court in reward the "outstanding" civil servants, but also to plug the hidden gaps and
an administrative civil service disciplinary case. There is no question that potholes of corruption as well as to insist on strict compliance with existing legal
respondent Dacoycoy may appeal to the Court of Appeals from the decision of the procedures in order to abate any occasion for graft or circumvention of the law." 27
Civil Service Commission adverse to him. 10 He was the respondent official meted
out the penalty of dismissal from the service. On appeal to the Court of Appeals the
court required the petitioner therein, here respondent Dacoycoy, to implead the WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of
Civil Service Commission as public respondent 11 as the government agency tasked the Court of Appeals in CA-G.R. SP No. 44711.
with the duty to enforce the constitutional and statutory provisions on the civil
service.12
ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Officer of the AFP Intelligence Service Unit (AFP-ISU) based in Baguio City and
Commission dated January 28, 1998 and September 30, 1998, dismissing several John Does.
respondent Pedro O. Dacoycoy from the service.
James M. Balao is a Psychology and Economics graduate of the University of the
G.R. No. 186050 December 13, 2011 Philippines-Baguio (UP-Baguio). In 1984, he was among those who founded the
Cordillera Peoples Alliance (CPA), a coalition of non-government organizations
(NGOs) working for the cause of indigenous peoples in the Cordillera Region. As
ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-
head of CPA’s education and research committee, James actively helped in the
STRUGAR and BEVERLY LONGID, Petitioners,
training and organization of farmers. He was also the President of Oclupan Clan
vs. GLORIA MACAPAGAL-ARROYO, EDUARDO ERMITA, GILBERTO TEODORO,
Association which undertakes the registration and documentation of clan properties
RONALDO PUNO, NORBERTO GONZALES, Gen. ALEXANDER YANO, Gen.
to protect their rights over ancestral lands. In 1988, while working for the CPA, he
JESUS VERZOSA, Brig. Gen. REYNALDO MAPAGU, Lt. P/Dir. EDGARDO
was arrested on the charge of violation of the Anti-Subversion Law but the case was
DOROMAL, Maj. Gen. ISAGANI CACHUELA, Commanding Officer of the AFP-
eventually dismissed for lack of evidence.
ISU based in Baguio City, PSS EUGENE MARTIN and several JOHN
DOES, Respondents.
The testimonies and statements of eyewitnesses established the following
circumstances surrounding James’s disappearance:
G.R. No. 186059

On September 17, 2008, at around 8:30 in the morning, a man clad in black jacket,
PRESIDENT GLORIA MACAPAGAL-ARROYO, SECRETARY EDUARDO ERMITA,
black shirt, black visor and gray pants was standing infront of Saymor’s 3 Store at
SECRETARY GILBERTO TEODORO, SECRETARY RONALDO PUNO, SECRETARY
Tomay, La Trinidad, Benguet. He had a belt bag and a travelling bag which was
NORBERTO GONZALES, GEN. ALEXANDER YANO, P/DGEN. JESUS VERZOSA,
placed on a bench. Vicky Bonel was at the time attending to the said store owned
BRIG GEN. REYNALDO MAPAGU, MAJ. GEN. ISAGANI CACHUELA ANDPOL.
by her brother-in-law while Aniceto G. Dawing, Jr. and his co-employee were
SR. SUPT. EUGENE MARTIN, Petitioners,
delivering bakery products thereat. A white van then arrived and stopped infront of
vs. ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-
the store. Five men in civilian clothes who were carrying firearms alighted from the
STRUGAR and BEVERLY LONGID, Respondents.
van and immediately approached the man poking their guns on him. They grabbed
and handcuffed him. The man was asking why he was being apprehended. One of
D E C I S I O N - VILLARAMA, JR., J.: the armed men addressed the people witnessing the incident, saying they were
policemen. Another warned that no one should interfere because the man was being
Before us are consolidated appeals under Section 19 of the Rule on the Writ of arrested for illegal drugs. Thereafter, they pushed the man inside the van. One of
Amparofrom the January 19, 2009 Judgment1 of the Regional Trial Court (RTC) of the armed men went back to the store to get the man’s travelling bag. Before
La Trinidad, Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001, entitled leaving the place, one of the armed men was also heard telling the driver of the van
"In the Matter of the Petition for Issuance of Writ of Amparo in favor of James that they are going to proceed to Camp Dangwa (PNP Provincial Headquarters in La
Balao, Arthur Balao, et al. v. Gloria Macapagal-Arroyo, et al." The RTC granted the Trinidad, Benguet). The van headed towards the direction of La Trinidad town
petition for the writ of amparo but denied the prayer for issuance of inspection, proper. The witnesses later identified the man as James Balao after seeing his
production and witness protection orders. photograph which appeared in posters announcing him as missing.

The Antecedents The petition alleged that in May 2008, James reported surveillances on his person to
his family, particularly to his sister Nonette Balao (Nonette), and to CPA Chairperson
Beverly Longid (Beverly). James supposedly observed certain vehicles tailing him
On October 8, 2008, Arthur Balao, Winston Balao, Nonette Balao and Jonilyn Balao- and suspiciously parked outside his residence, one of which was a van with plate
Strugar, siblings of James Balao, and Beverly Longid (petitioners), filed with the number USC 922. He also claimed to have received calls and messages through his
RTC of La Trinidad, Benguet a Petition for the Issuance of a Writ of Amparo 2 in favor mobile phone informing him that he was under surveillance by the PNP Regional
of James Balao who was abducted by unidentified armed men on September 17, Office and the AFP-ISU. To prove the surveillance, the informer gave the exact
2008 in Tomay, La Trinidad, Benguet. Named respondents in the petition were then dates he visited his family, clothes he wore, and dates and times he goes home or
President Gloria Macapagal-Arroyo, Executive Secretary Eduardo R. Ermita, Defense visits friends and relatives. Attached to the petition were the affidavits 4 of Nonette
Secretary Gilberto C. Teodoro, Jr.,Interior and Local Government Secretary Ronaldo and Beverly attesting to James’s reports of surveillance to his family and to the CPA.
V. Puno, National Security Adviser (NSA) Norberto B. Gonzales, Armed Forces of the
Philippines (AFP) Chief of Staff Gen. Alexander B. Yano, Philippine National Police
(PNP) Police Director General Jesus A. Verzosa, Philippine Army (PA) Chief Brig. It was further alleged that on September 17, 2008, around 7:00 in the morning,
Gen. Reynaldo B. Mapagu, PNP Criminal Investigation and Detection Group (PNP- James sent a text message to Nonette informing her that he was about to leave his
CIDG) Chief Lt. P/Dir. Edgardo Doromal, Northern Luzon Command (NOLCOM) rented house in Fairview Central, Baguio City and that he was going to their
Commander Maj. Gen. Isagani C. Cachuela, PNP-Cordillera Administrative Region ancestral residence in Pico, La Trinidad, Benguet to do his laundry. The travel time
Regional Director Police Senior Supt. Eugene Gabriel Martin, the Commanding from Fairview, Baguio City to Pico usually takes only 20 to 45 minutes. Around 8:00
a.m., Nonette, after discovering that James never reached their parents’ house at
Pico, started contacting their friends and relatives to ask about James’s Intelligence Group I (MIG1) and the Commanding Officer of the Internal Service
whereabouts. No one, however, had any idea where he was. Unit-Internal Security Group, Philippine Army;and (6) that petitioners themselves
did not cooperate with police authorities in the investigation and neither did they
ask the National Bureau of Investigation to locate James.
Thus, the Balao family, with the assistance of the CPA and other NGOs, tried to
locate James. Teams were formed to follow James’s route from Fairview, Baguio
City to Pico, La Trinidad and people along the way were asked if they happened to Respondents contended that the petition failed to meet the requirement in the Rule
see him. These searches, however, yielded negative results. One of the teams also on the Writ of Amparo that claims must be established by substantial evidence
went to the office of the AFP-ISU (PA-ISU) in Navy Base and the office of the considering that: (1) petitioners’ allegations do not mention in anyway the manner,
Military Intelligence Group in Camp Allen, both in Baguio City, but the personnel in whether directly or indirectly, the alleged participation of respondents in the
said offices denied any knowledge on James’s whereabouts. The family likewise purported abduction of James; (2) Nonette and Beverly do not have personal
went to Baguio Police Station 7 to report James’s disappearance. The report was knowledge of the circumstances surrounding the abduction of James, hence, their
duly entered on the blotter but there have been no developments as of the filing of statements are hearsay with no probative value; and (3) the allegations in the
the petition. They also sought the help of the media to announce James’s petition do not show the materiality and relevance of the places sought to be
disappearance and wrote several government agencies to inform them of his searched/inspected and documents to be produced, specifically the requirement
disappearance and enlist their help in locating him. that the prayer for an inspection order shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the whereabouts of the
aggrieved party.
Petitioners, moreover, enumerated in their petition several incidents of harassments
and human rights violations against CPA officers, staff and members.
Respondents further argued that it is the PNP as the law enforcement agency, and
not the respondent military and executive officials, which has the duty to investigate
Contending that there is no plain, speedy or adequate remedy for them to protect
cases of missing persons. At most, the AFP may inquire on the matters being
James’s life, liberty and security, petitioners prayed for the issuance of a writ of
alluded to them as may be ordered by the proper superior, which is primarily done
amparo ordering the respondents to disclose where James is detained or confined,
for possible court martial proceedings. Hence, their common denials of having any
to release James, and to cease and desist from further inflicting harm upon his
knowledge, participation or authorization for the alleged disappearance of James
person. They likewise prayed for (1) an inspection order for the inspection of at
Balao. Nonetheless, respondents executed their affidavits to show the actions they
least 11 military and police facilities which have been previously reported as
have taken and reports submitted to them by the proper authorities, as follows:
detention centers for activists abducted by military and police operatives; (2) a
production order for all documents that contain evidence relevant to the petition,
particularly the Order of Battle List and any record or dossier respondents have on Executive Secretary Ermitastated that upon receipt of copy of the petition for a writ
James; and (3) a witness protection order. of amparo, he caused the issuance of a letter addressed to the PNP Chief and AFP
Chief of Staff for the purpose of inquiring and establishing the circumstances
surrounding the alleged disappearance of James Balao, and which letters also called
Petitioners simultaneously filed an Urgent Ex-Parte Motion 5 for the immediate
for the submission of pertinent reports on the results of the investigation conducted,
issuance of a writ of amparo pursuant to Section 6 of the Rule on the Writ of
if any.8
Amparo.

Secretary Teodoro declared that soon after the promulgation by this Court of
On October 9, 2008, the Writ of Amparo6 was issued directing respondents to file
the Rule on the Writ of Amparo, he issued "Policy Directive on the Actions and
their verified return together with their supporting affidavit within five days from
Defenses Under the Amparo Rule" which instructed members of the AFP to
receipt of the writ.
undertake specific measures even without waiting for the filing of an amparo
petition in court whenever any member of the AFP or any of its commands or units
Respondents in their Joint Return7 stated: (1) that President Gloria Macapagal- have been reported or published as being involved in the alleged violation of an
Arroyo is immune from suit and should thus be dropped as party-respondent; (2) individual’s right to life, liberty and security or threat thereof, as a preparatory step
that only Arthur Balao should be named petitioner and the rest of the other in the filing of a verified return as required by A.M. No. 07-9-12-SC. The AFP was
petitioners dropped; (3) that there is no allegation of specific wrongdoing against therein also directed to immediately coordinate with the PNP, NBI, DOJ and other
respondents that would show their knowledge, involvement or participation in the government agencies in the attainment of the desired actions in the event a petition
abduction of James; (4) that Exec. Sec. Ermita, Sec. Teodoro, Sec. Puno, Sec. is filed. Said policy directive was contained in his Memorandum dated October 31,
Gonzales, Gen. Yano, Gen. Cachuela, Gen. Mapagu and Gen. Verzosa in their 2007 to the Chief of Staff, AFP, and there is no reason for him to doubt that the AFP
respective affidavits denied having such participation or knowledge of James’s will comply with it insofar as the present petition for writ of amparo is concerned. 9
abduction, set forth their actions taken in investigating the matter and undertaking
to continue exerting extraordinary diligence in securing the liberty of James and
Secretary Puno confirmed receipt of a copy of the petition and said he will write to
bring all those responsible for his disappearance to the bar of justice, including
the PNP Chief to call for pertinent reports relative to the circumstances of the
military or police personnel when warranted by the findings of the investigations;
alleged "taking" of the person in whose favor the writ of amparo was sought. He
(5) that Supt. Martin already ordered an investigation, came up with interviews of
undertook to make available any report he will receive from the PNP on the
several witnesses, and held a dialogue with the Commander of the Military
matter.10
NSA Gonzales asserted that as a public officer, he is presumed to have performed were set forth in his affidavit. He had constant coordination with the CPA leaders
his duties in accordance with law, which presumption remains undisturbed amid and Balao family who divulged the plate numbers of vehicles allegedly observed by
gratuitous assumptions and conclusions in the petition devoid of factual and legal James prior to his disappearance as conducting surveillance on his person. Upon
basis. Upon receipt of a copy of the petition, he caused to be issued verification with the Land Transportation Office, the said vehicles were found to be
letters/communications to the Director General of the National Intelligence registered under the following persons: TNH 787 – Narciso Magno of #20 Darasa,
Coordinating Agency, the PNP Chief and the AFP Chief of Staff for the purpose of Tanauan, Batangas; and USC 922 – G & S Transport Corp. On October 6, 2008, he
making active inquiries and establishing the circumstances of the alleged received information regarding an abduction incident in Tomay, La Trinidad
disappearance insofar as the possible involvement of military/police personnel is whereupon he ordered the Provincial Director of Benguet to conduct an in-depth
concerned. He undertook to provide the material results of investigations conducted investigation; said investigation disclosed that the person abducted was indeed
or to be conducted by the concerned agencies.11 James. On October 8, 2008, Task Force Balao with the help of the CPA and Balao
family were able to convince two witnesses in the abduction incident in Tomay, La
Trinidad, Benguet to shed light on the incident; as a result, cartographic sketches of
General Yano narrated that prior to the receipt of a copy of the petition, he received
the suspects were made. In the morning of October 9, 2008, he presided over a
a memorandum from the Department of National Defense transmitting the letter of
dialogue which was attended by the Group Commander, MIG1 and Commanding
Bayan Muna Representative Teodoro A. Casiño inquiring about the alleged abduction
Officer of ISU, ISG and PA, for the coordinated efforts to locate James. In the
of James Balao. On the basis of said memo, he directed by radio message the
afternoon of the same day, he met with the family and relatives of James to inform
NOLCOM Commander to conduct a thorough investigation on the matter and to
them of initial efforts and investigation of the case. The Task Force Balao was also
submit the result thereof to the AFP General Headquarters. This was also done in
able to secure the affidavits of witnesses Aniceto Dawing and Vicky Bonel, and
compliance with the Policy Directive issued by Defense Secretary Teodoro. He
invited some members of the CPA who retrieved James’s personal belongings in
reiterated his October 6, 2008 directive to the PA Commanding General in another
Fairview, Baguio City and his companions prior to his disappearance on September
radio message dated October 16, 2008. He undertook to provide the court with
17, 2008 to appear before the Task Force Balao for some clarifications but none of
material results of the investigations conducted by the concerned units as soon as
them appeared. The case is still under follow-up and continuing investigation to
the same are received by Higher Headquarters.12
know what really happened, identify the abductors, determine the real motive for
the abduction and file the necessary charges in court against those responsible. 16
Lt. Gen. Cachuela said that even prior to the receipt of a copy of the petition, he
was already directed by Higher Headquarters to conduct a thorough investigation on
Also attached to the Return are the more detailed reports (with attached affidavits
the alleged abduction of James Balao. Acting on said directive, he in turn directed
of other witnesses) dated October 14, 2008 and October 6, 2008 submitted by Task
the 5th Infantry Division, PA to investigate the matter since the place of the
Force Balao Commander P/S Supt. Fortunato B. Albas to the PNP Cordillera Regional
commission of the abduction is within its area of responsibility. He undertook to
Director. Pertinent portions of the two reports read:
furnish the court with a copy of the result of the investigation conducted or to be
conducted, as soon as NOLCOM receives the same.13
xxxx
BGen. Mapagu on his part declared that there is nothing in the allegations of the
petition that would show the involvement of the PA in the reported disappearance of 2. Inquiries conducted from Mr. Zusimo Unarosa, a resident of Nr 126,
James Balao. He claimed that he immediately called the attention of the "concerned Purok 3, Central Fairview, Baguio City, claimed that on the 1st week of
staff" to give some information regarding the case and directed them to submit a September 2008, he frequently observed two (2) unidentified male persons
report if they are able to obtain information.14 aged 50-70 years old and about 5’1" to 5’5" in height, bringing boxes from
the house, the contents of which could not be determined. However,
averred that these two (2) male personalities are not familiar in the
Pol. Dir. General Verzosa set forth the actions and steps taken by the PNP,
barangay. He further stated that he had never seen a van conducting
particularly the PNP Regional Office-Cordillera (PRO-COR) headed by PCSupt.
surveillance on the house and have not heard of any incident of kidnapping
Eugene Martin, being the lead PNP unit investigating the case of James Balao. 15
or abduction in the community.

Pol. Chief Supt. Martin recounted that in the afternoon of September 17, 2008, CPA
3. Mr[.] Anselmo Alukim, a neighbor, residing adjacent to the house of the
Chairperson Beverly Longid called up and informed him of the disappearance of
subject, when interviewed, averred that he observed some unidentified
James. On September 20, 2008, he was informed that James was allegedly missing
male and female persons visiting the said house.
and immediately ordered the Office of the Regional Intelligence Division (RID) to
send flash alarm to all lower units to look for and locate James Balao. This was
followed by a Memorandum with his picture and description. Upon his orders, Police 4. Interview conducted on Mr[.] Danny Griba, a resident of said barangay
Station 1 of the Baguio City Police Office (BCPO) immediately conducted inquiries at averred that James Balao is not a resident or occupant of the said house
the boarding house of James at Barangay Fairview, Baguio City. Likewise, he and claimed that he only saw the subject last summer and stated there are
ordered the creation of Task Force Balao to fast track the investigation of the case. five (5) unidentified persons occupying the said house. He further stated
He further instructed the RID to exert all efforts and supervise all lower units to that three (3) male persons aged 40 to 50 years old and a female aged
intensify their investigation and ascertain the whereabouts and other circumstances between 20-30 years old goes out during day time with several boxes and
surrounding the disappearance of James. Results of the investigations conducted
returns at about 6:00 PM to 7:00 PM on board a taxi cab again with some 5. On October 12, 2008, one Vicky Bonel y Felipe, 19 years old, single,
boxes of undetermined contents. native of Atok, Benguet, resident of Tomay, LTB and store keeper of
Saymor[’s] Store appeared before the office of Benguet PPO and gave her
sworn statement on the alleged abduction. A cartographic sketch was
5. Mrs[.] Corazon Addun, resident of Nr 114, Purok 3, Central Fairview,
made on the person who identified himself as policeman. She further
Baguio City averred that the subject is not residing in the said place and
stated that it was when while she was tending her brother-in-law’s store,
saw him only once, sometime on April 2008. She further narrated that a
gun-wielding men, of about six or more, handcuffed and shove the victim
certain Uncle John aged 40 to 50 years old and a male person aged 20 to
inside their vehicle. She recalled that she can recognize the abductors if
30 are among the occupants of said house. Accordingly, on September 21,
she can see them again.
2008, Uncle John went to the house of Mrs. Addun and over a cup of coffee
told her that he will be going to Sagada, Mountain Province purposely to
locate a missing colleague who was sent there. Accordingly[,] he received 6. Another witness stated that she was preparing her merchandise in the
a phone call that his missing colleague (James Balao) did not reach the waiting shed of Lower Tomay when she noticed a parked motorcycle beside
municipality and reported missing. After that short talk, she never saw the elementary school at about 7:00 AM of September 17, 2008. The rider
Uncle John again. Additionally, she did not notice any vehicle conducting of the bike was suspiciously scouring the area and kept on calling someone
surveillance therein and any unusual incidents that transpired in said place. from his cellular phone before the abduction was made.

xxxx 7. Baguio City Police Office conducted follow-up investigation and were
able to secure affidavit of Florence Luken y Mayames, 47 years old,
married, and a resident of 135 Central Fairview averred that James Balao
7. This office has likewise coordinated with MIG-1 and ISU, ISG, PA but
together with a certain Uncle John about 65-75 years old, about 5’4" in
both offices denied any knowledge on the alleged abduction of James
height and a certain Rene about 30-35 years old and stands 5’5", were her
Balao.
neighbors for almost one year. She further stated that James Balao and
company do not mingle with their neighbors and only one person is usually
8. It was found out that it was SPO4 Genero Rosal, residing within the left behind while James and Rene goes out at 6:00 or 7:00 AM and goes
vicinity, who followed-up the incident because it was reported to him by his back at around 6:00 or 7:00 PM.
neighbors. That after he learned about [James’ abduction], he contacted
PDEA, La Trinidad PS, RID ad Intel BPPO to verify if they had an operation
She further averred that she did not notice any van or any kind of vehicle
in Tomay, La Trinidad but all of them answered negative.
parked along the roadside infront of any residence not his neighbors nor
any person or persons observing the occupants of the said house.
x x x x17 Accordingly, at around 1:00 PM of September 26, 2008, a closed van
(Ca[n]ter) with unknown plate number was seen parked infront of the said
xxxx house and more or less (10) unidentified male person[s] aging from 20-23
and an unidentified female entered the alleged rented house of James
Balao and took some table, chairs and cabinets then left immediately to
3. A photocopy of the photograph of James Balao was presented to the unknown destination.
witnesses wherein they confirmed that the picture is the same person who
was arrested and handcuffed. Another witness divulged that prior to the
arrest of the person in the picture/photograph, a red motorcycle with two 8. Mrs[.] Mina Cabati Serdan the owner of the house being rented by
(2) male riders allegedly conducted surveillance along the highway about James Balao averred that sometime May of 2007, a certain Mr[.] June, a
ten (10) meters away from the place where the victim was picked-up. realtor agent, recommended to her that a certain James Balao will rent the
Minutes later, a white Mitsubishi Adventure arrived and took the victim house for one (1) year term with an agreed monthly rent of fifteen
inside the car. The motorcycle riding in tandem followed the Mitsubushi thousand pesos (P15,000.00). She stated that James Balao had extended
Adventure en route to Camp Dangwa, La Trinidad, Benguet. Another his stay for almost 4 months. On the last week of August 2008, Mrs[.]
witness overheard one of the abductors instructing the driver to quote Serdan called up James Balao through phone to inform him that she will
"pare sa Camp Dangwa tayo." terminate his stay at the rented house on September 30, 2008. Mrs[.]
Serdan further stated that [she]visited the rented house only twice and
that was the only time she saw James Balao with an unidentified
4. Follow[-]up investigation resulted in the identification of a certain companions.
"KULOT" who also witnessed the alleged abduction. However, he was
hesitant to talk and instead pointed to the driver of the delivery van of
Helen’s Bread. At about 8:30 AM of October 9, 2008, Aniceto Dawing Jr[.] That she only discovered that James Balao was missing when a certain Carol
y Gano, the driver of the delivery van of Helen’s Bread, surfaced and gave informed her that he was missing. [Sh]e further stated that she visited her house
his statements on what he witnessed on the alleged abduction. and found out that the said occupants have already left on September 26, 2008 and
discovered that all personal belongings of the occupants have already been taken
out by the relatives.
xxxx men were in civilian clothes and did not wear any police badges or identification
cards. He just assumed that they were policemen because of their posture and
haircut and because they introduced themselves as such.
VI. ACTIONS TAKEN:

Anvil Lumbag stated in his affidavit20 that he was also at Saymor’s Store in the
1. That a composite team "TASK FORCE BALAO" from this office and the
morning of September 17, 2008 to buy chicken. He said that a ToyotaRevo stopped
Regional Headquarters headed by [P/S SUPT] FORTUNATO BASCO ALBAS
infront of the store from where four men alighted. The men handcuffed a man who
was formed.
was standing infront of the store and uttered "Walang makikialam, drugs kaso nito"
while pointing a gun at the said man. Then, they forced the man to board the Revo.
2. That the composite team of investigators conducted ocular inspection on Before the Revo fled, Lumbag heard one of the men say that they will be going to
the area. Camp Dangwa. Lumbag’s affidavit, however, did not mention if it was James who
was forcibly taken by the armed men.
3. On October 8, 2008, two (2) witnesses namely: Marjore Domingo
Hipolito and Jenny Lynn Malondon Valdez gave their sworn statements and Beverly Longid21 testified that she got to know James when she was a member of
cartographic sketch of one of the abductors. the CPA youth organization in her student days. Every time James will have an
activity that is CPA-related, he would coordinate with Beverly, she being the CPA
4. On the morning of October 9, 2008, a dialogue was presided by RD, chair. She also testified that prior to his disappearance, the last time she talked with
PRO-COR and attended by the Group Commander, MIG1 and Commanding James was in July or August of 2008 when he reported surveillances on his person
Officer of ISU, SG, PA. Both commanders denied the accusations against by the PNP and the AFP. In her affidavit, she alleged that James reported to her
them. several vehicles tailing him, one of which was a green van with plate number USC
922, the same plate number she had seen at the Intelligence Security Unit in Navy
Base, Baguio City, and which was attached to a silver grey van.
5. In the afternoon of the same day, a meeting with the family and
relatives of James Balao was again presided by RD, PRO-COR wherein the
results of the initial efforts and investigation were given to the family. He Beverly admitted that at the time of the alleged abduction, she was in Baguio City,
also reported the surfacing of another two (2) witnesses who described the at the Office of the Cordillera People’s Legal Center and that she only came to know
suspect who handcuffed James Balao. that James was missing in the afternoon of September 18, 2008. She also
confirmed that they met with Pol. Supt. Martin to seek assistance regarding James’s
disappearance.
6. PRO-Cordillera wrote a letter to the Cordillera Peoples Alliance
requesting them to present Uncle John, Rene and his other companions
who are then residing in the same boarding house including all his Nonette Balao22 testified that she was at her bakeshop located in Km. 4, La Trinidad,
companions on September 17, 2008 and prior to his disappearance. Benguet in the morning of September 17, 2008. At around 6:30 a.m., she received
a text message from James saying that he will be going home to their ancestral
home to do some laundry. Thirty minutes later, she received another text message
REMARKS: from James saying that he was already leaving his place in Fairview, Baguio City.
When around 8:00 a.m. James had not yet arrived at their ancestral home, she got
Case is still under follow-up investigation to identify the alleged abductors to worried. She texted him but failed to get a reply, so she tried to call him. His phone,
determine the real motive of the abduction and to file necessary charges against however, had already been turned off. She then called the CPA office to check if
them in court.18 James was there. She was told that he was not there so she went to James’s house
in Fairview at around 9:00 a.m. James’s housemates, however, told her that he left
at 7:00 a.m.
During the hearing, the affidavits and testimonies of the following witnesses were
presented by petitioners:
Nonette also testified that they only reported James’s disappearance to the police
on September 20, 2008 because they thought that it was necessary that a person
Aniceto Dawing testified that on September 17, 2008, around 8:00 in the morning,
19
be missing for at least 48 hours before the disappearance could be reported. They
while he was delivering bread at Saymor’s Store in Tomay, La Trinidad, Benguet, a went to Sub-Station Police Precinct No. 1 in Baguio and to the police precinct in La
white van stopped infront of them and five armed men alighted. The armed men, Trinidad to report the matter. They also went to Camp Dangwa to see if James was
who introduced themselves as policemen in Filipino, held and pointed a gun at one there.
male person. The armed men told the male person that he was being apprehended
for illegal drugs. They then let the male person board the vehicle and informed him
that they will proceed to Camp Dangwa. Dawing admitted that he did not know that Nonette claimed that she became worried because James never switched off his
it was James whom he saw that time and came to know only of his identity when he mobile phone and since he already texted her that he was coming home, he could
saw a poster bearing James’s photograph. On cross-examination, he stated that the have texted again if there was a change of plans. Also, James had told them since
white van did not have any markings that it was a police vehicle and that the armed
April 2008 that he had been under surveillance. She does not know why James went The RTC likewise ruled that the government unmistakably violated James’s right to
to Tomay, La Trinidad. security of person. It found the investigation conducted by respondents as very
limited, superficial and one-sided. The police and military thus miserably failed to
conduct an effective investigation of James’s abduction as revealed by the
Samuel Anongos stated in his affidavit23 that he is a member of the Education
investigation report of respondents’ own witnesses, Supt. Martin and P/S Supt.
Commission of the CPA. He claimed that when they conducted trainings and
Fortunato Basco Albas, the Commander of Task Force Balao. It further noted that
educational discussions on mining education in Abra, members of the AFP harassed
respondents did not investigate the military officials believed to be behind the
the community and committed various human rights violations. The AFP also
abduction as said military officials were merely invited to a dialogue and there was
allegedly held community meetings where they said that the CPA is part of the New
no investigation made in Camp Dangwa where the abductors were believed to have
People’s Army. Attached to Anongos’s affidavit is a copy of a paper that the AFP was
taken James as narrated by the witnesses. Moreover, the RTC observed that despite
allegedly distributing. It shows the organizational structure of the Communist Party
the undertaking of respondents to investigate the abduction and provide results
of the Philippines-New People’s Army (CPP-NPA) wherein CPA was identified as one
thereof, four months have passed but petitioners have not been furnished reports
of the organizations under the National Democratic Front (NDF).24
regarding the investigation.

RTC Ruling
As to the denial of the interim reliefs, the RTC stated that the stringent provisions of
the rules were not complied with and granting said reliefs might violate
On January 19, 2009, the RTC issued the assailed judgment, disposing as follows: respondents’ constitutional rights and jeopardize State security.

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered: Both parties appealed to this Court.

ISSUE a Writ of Amparo Ordering the respondents to (a) disclose where James The Consolidated Petitions
Balao is detained or confined, (b) to release James Balao considering his unlawful
detention since his abduction and (c) to cease and desist from further inflicting
Petitioners, in G.R. No. 186050, question the RTC’s denial of the interim reliefs.
harm upon his person; and

Respondents, on the other hand, assail in their petition in G.R. No. 186059, the
DENY the issuance of INSPECTION ORDER, PRODUCTION ORDER and WITNESS
issuance of the writ of amparo. They raise the following arguments:
PROTECTION ORDER for failure of herein Petitioners to comply with the stringent
provisions on the Rule on the Writ of Amparo and substantiate the same. 25
I
In denying respondents’ prayer that President Arroyo be dropped as party-
respondent, the RTC held that a petition for a writ of amparo is not "by any stretch THE TRIAL COURT’S JUDGMENT ORDERING RESPONDENT-PETITIONERS
of imagination a niggling[,] vexing or annoying court case" 26 from which she should TO: (A) DISCLOSE WHERE JAMES BALAO IS DETAINED AND CONFINED;
be shielded. The RTC ruled that said petition is nothing more than a tool to aid the (B) TO RELEASE JAMES BALAO CONSIDERING HIS UNLAWFUL DETENTION
president to guarantee that laws on human rights are devotedly and staunchly SINCE HIS "ABDUCTION" AND (C) TO CEASE AND DESIST FROM FURTHER
carried out. It added that those who complain against naming the president as INFLICTING HARM UPON HIS PERSON IS BASED PURELY ON
party-respondent are only those who "either do not understand what the Writ of CONJECTURES, SURMISES AND HEARSAY EVIDENCE; HENCE, IT MUST BE
Amparo is all about or who do not want to aid Her Excellency in her duty to SET ASIDE.
supervise and control the machinery of government." 27
II
In upholding the standing of James’s siblings and Beverly to file the petition, the
RTC held that what Section 2 of the Rule on the Writ of Amparorules out is the right
RESPONDENT-PETITIONERS HAD PROVEN THAT THEY OBSERVED
to file similar petitions, meaning there could be no successive petitions for the
EXTRAORDINARY DILIGENCE AS REQUIRED BY APPLICABLE LAWS, RULES
issuance of a writ of amparo for the same party.
AND REGULATIONS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

The RTC further held that "more likely than not," the motive for James’s
III
disappearance is his activist/political leanings and that James’s case is one of an
enforced disappearance as defined under the Rule on the Writ of Amparo. In so
ruling, the RTC considered (1) the several incidents of harassment mentioned in THE FACTUAL CIRCUMSTANCES AND THE EVIDENCE PRESENTED IN THE
Beverly’s testimony and enumerated in the petition; and (2) the references in the MANALO CASE ARE TOTALLY DIFFERENT FROM THE CASE AT BAR; HENCE,
petition to the CPA as a front for the CPP-NPA. THE TRIAL COURT GROSSLY ERRED IN APPLYING THE RULING THEREIN
TO THE CASE AT BAR.
IV administration of President Arroyo included targeting of identified legal
organizations under the NDF, which included the CPA, and their members, as
"enemies of the state." The petition cited other documents confirming such "all-out
THE TRIAL COURT CORRECTLY DENIED PETITIONER-RESPONDENTS’
war" policy which resulted in the prevalence of extrajudicial killings: namely, the
PRAYER FOR THE ISSUANCE OF AN INSPECTION ORDER, PRODUCTION
published reports of the Melo Commission and the UNHRC’s Special Rapporteur on
ORDER AND A WITNESS PROTECTION ORDER. 28
Extrajudicial Summary or Arbitrary Executions, Mr. Philip Alston. The petition also
enumerated previously documented cases of extralegal killings of activists belonging
Our Ruling to militant groups, including CPA leaders and workers, almost all of which have been
preceded by surveillance by military or police agents and acts of harassment.
The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising Consequently, petitioners postulated that the surveillance on James and his
incidence of "extralegal killings" and "enforced disappearances." It was formulated subsequent abduction are interconnected with the harassments, surveillance,
in the exercise of this Court’s expanded rule-making power for the protection and threats and political assassination of other members and officers of CPA which is his
enforcement of constitutional rights enshrined in the 1987 Constitution, albeit organization.
limited to these two situations. "Extralegal killings" refer to killings committed
without due process of law, i.e., without legal safeguards or judicial We hold that such documented practice of targeting activists in the military’s
proceedings.29 On the other hand, "enforced disappearances" are attended by the counter-insurgency program by itself does not fulfill the evidentiary standard
following characteristics: an arrest, detention, or abduction of a person by a provided in the Amparo Rule to establish an enforced disappearance.
government official or organized groups or private individuals acting with the direct
or indirect acquiescence of the government; the refusal of the State to disclose the
In the case of Roxas v. Macapagal-Arroyo,32 the Court noted that the similarity
fate or whereabouts of the person concerned or a refusal to acknowledge the
between the circumstances attending a particular case of abduction with those
deprivation of liberty which places such person outside the protection of law. 30
surrounding previous instances of enforced disappearances does not, necessarily,
carry sufficient weight to prove that the government orchestrated such abduction.
Section 18 of the Amparo Rule provides: Accordingly, the trial court in this case cannot simply infer government involvement
in the abduction of James from past similar incidents in which the victims also
SEC. 18. Judgment. - The court shall render judgment within ten (10) days from the worked or affiliated with the CPA and other left-leaning groups.
time the petition is submitted for decision. If the allegations in the petition are
proven by substantial evidence, the court shall grant the privilege of the writ and The petition further premised government complicity in the abduction of James on
such reliefs as may be proper and appropriate; otherwise, the privilege shall be the very positions held by the respondents, stating that --
denied. (Emphasis supplied.)
The abduction of James Balao can only be attributed to the Respondents who have
The threshold issue in this case is whether the totality of evidence satisfies the command responsibility of all the actions of their subordinates and who are the
degree of proof required by the Amparo Rule to establish an enforced primary persons in the implementation of the government’s all out war
disappearance. policy.33 (Emphasis supplied.)

In granting the privilege of the writ of amparo, the trial court ratiocinated: The Court in Rubrico v. Macapagal-Arroyo34 had the occasion to expound on the
doctrine of command responsibility and why it has little bearing, if at all, in amparo
On record is evidence pointing to the more likely than not motive for James Balao’s proceedings.
disappearance – his activist/political leanings. This is shown by the several incidents
relating to harassments of activists as mentioned in the unrebutted testimony of The evolution of the command responsibility doctrine finds its context in the
Beverly Longid and the enumeration made in par. 48 (a) to (cc) of the petition. development of laws of war and armed combats. According to Fr. Bernas,
There were also references in the petition’s pars. 52 et. seq. to the CPA (of which "command responsibility," in its simplest terms, means the "responsibility of
James Balao was an active staff) as a front organization of the Communist Party of commanders for crimes committed by subordinate members of the armed forces or
the Philippines-New People’s Army. More likely than not he was not taken to parts other persons subject to their control in international wars or domestic conflict." In
unknown for reasons other than his involvement in the CPA, that is, politically- this sense, command responsibility is properly a form of criminal complicity. The
motivated. The Court considers these facts enough circumstances to establish Hague Conventions of 1907 adopted the doctrine of command responsibility,
substantial evidence of an enforced disappearance as defined under the Rule on the foreshadowing the present-day precept of holding a superior accountable for the
Writ of Amparo. For after all, substantial evidence requires nothing greater than atrocities committed by his subordinates should he be remiss in his duty of control
"more likely than not" degree of proof.31 (Emphasis supplied.) over them. As then formulated, command responsibility is "an omission mode of
individual criminal liability," whereby the superior is made responsible for crimes
The trial court gave considerable weight to the discussion in the petition of briefing committed by his subordinates for failing to prevent or punish the perpetrators (as
papers supposedly obtained from the AFP (Oplan Bantay-Laya implemented since opposed to crimes he ordered).
2001) indicating that the anti-insurgency campaign of the military under the
The doctrine has recently been codified in the Rome Statute of the International In Razon, Jr. v. Tagitis,37 the Court defined responsibility and accountability as these
Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute terms are applied to amparo proceedings, as follows:
imposes individual responsibility on military commanders for crimes committed by
forces under their control. The country is, however, not yet formally bound by the
x x x Responsibility refers to the extent the actors have been established by
terms and provisions embodied in this treaty-statute, since the Senate has yet to
substantial evidence to have participated in whatever way, by action or omission, in
extend concurrence in its ratification.
an enforced disappearance, as a measure of the remedies this Court shall craft,
among them, the directive to file the appropriate criminal and civil cases against the
While there are several pending bills on command responsibility, there is still no responsible parties in the proper courts. Accountability, on the other hand, refers
Philippine law that provides for criminal liability under that doctrine. to the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their
complicity to the level of responsibility defined above; or who are imputed with
It may plausibly be contended that command responsibility, as legal basis to hold
knowledge relating to the enforced disappearance and who carry the burden of
military/police commanders liable for extra-legal killings, enforced disappearances,
disclosure; or those who carry, but have failed to discharge, the burden of
or threats, may be made applicable to this jurisdiction on the theory that the
extraordinary diligence in the investigation of the enforced disappearance. x x
command responsibility doctrine now constitutes a principle of international law or
x38 (Emphasis supplied.)
customary international law in accordance with the incorporation clause of the
Constitution. Still, it would be inappropriate to apply to these proceedings the
doctrine of command responsibility, as the CA seemed to have done, as a form of Assessing the evidence on record, we find that the participation in any manner of
criminal complicity through omission, for individual respondents’ criminal liability, if military and police authorities in the abduction of James has not been adequately
there be any, is beyond the reach of amparo. In other words, the Court does not proven. The identities of the abductors have not been established, much less their
rule in such proceedings on any issue of criminal culpability, even if incidentally a link to any military or police unit. There is likewise no concrete evidence indicating
crime or an infraction of an administrative rule may have been committed. As the that James is being held or detained upon orders of or with acquiescence of
Court stressed in Secretary of National Defense v. Manalo (Manalo), the writ of government agents. Consequently, the trial court erred in granting amparo reliefs
amparo was conceived to provide expeditious and effective procedural relief against by ordering the respondent officials (1) to disclose where James Balao is detained or
violations or threats of violation of the basic rights to life, liberty, and security of confined, (2) to release him from such detention or confinement, and (3) to cease
persons; the corresponding amparo suit, however, "is not an action to determine and desist from further inflicting harm upon his person. Such pronouncement of
criminal guilt requiring proof beyond reasonable doubt x x x or administrative responsibility on the part of public respondents cannot be made given the
liability requiring substantial evidence that will require full and exhaustive insufficiency of evidence.39 However, we agree with the trial court in finding that the
proceedings." Of the same tenor, and by way of expounding on the nature and role actions taken by respondent officials are "very limited, superficial and one-sided."
of amparo, is what the Court said in Razon v. Tagitis: Its candid and forthright observations on the efforts exerted by the respondents are
borne by the evidence on record, thus:
It does not determine guilt nor pinpoint criminal culpability for the disappearance
[threats thereof or extrajudicial killings]; it determines responsibility, or at least x x x the violation of the right to security as protection by the government is
accountability, for the enforced disappearance [threats thereof or extrajudicial unmistakable. The police and the military miserably failed in conducting an effective
killings] for purposes of imposing the appropriate remedies to address the investigation of James Balao’s abduction as revealed by the investigation report of
disappearance [or extrajudicial killings]. respondent’s own witnesses Honorable Chief Superintendent Eugene Martin and
Honorable Senior Superintendent Fortunato Albas. The investigation was – to use
the words in The Secretary of National Defense, et. al., v. Manalo et. al. –
xxxx
"verylimited, superficial and one-sided."

As the law now stands, extrajudicial killings and enforced disappearances in this
The actions taken were simply these: (a) organization of the "Task Force Balao"; (b)
jurisdiction are not crimes penalized separately from the component criminal acts
conduct of ocular inspection at the place of abduction; (c) taking of sworn
undertaken to carry out these killings and enforced disappearances and are now
statements of civilian witnesses, whose testimonies did not prove much as shown
penalized under the Revised Penal Code and special laws. The simple reason is that
by the continued disappearance of James Balao; (d) dialogue with implicated
the Legislature has not spoken on the matter; the determination of what acts are
military officials as well as family members and friends of James Balao; and (e)
criminal x x x are matters of substantive law that only the Legislature has the power
writing of letter to the CPA. The Court does not want to second-guess police
to enact. x x x35
protocols in investigation but surely some things are amiss where the investigation
DID NOT INVESTIGATE the military officials believed to be behind the abduction as
Subsequently, we have clarified that the inapplicability of the doctrine of command they were merely invited to a dialogue and where the investigation DID NOT LEAD
responsibility in an amparo proceeding does not, by any measure, preclude to Camp Dangwa where the abductors were supposed to have proceeded as
impleading military or police commanders on the ground that the complained acts in narrated by the witnesses. To the mind of this Court, there is a seeming prejudice in
the petition were committed with their direct or indirect acquiescence. Commanders the process of investigation to pin suspects who are not connected with the military
may therefore be impleaded—not actually on the basis of command responsibility— establishments. By any measure, this cannot be a thorough and good faith
but rather on the ground of their responsibility, or at least accountability. 36 investigation but one that falls short of that required by the Writ of Amparo. 40
Respondents reiterate that they did their job the best they could and fault the The seeming reluctance on the part of the Rubricos or their witnesses to cooperate
petitioners instead for their non-cooperation which caused delay in the ought not to pose a hindrance to the police in pursuing, on its own initiative, the
investigation. They particularly blamed Beverly who failed to attend the October 15, investigation in question to its natural end. To repeat what the Court said in Manalo,
2008 invitation to appear before the investigators and shed light on James’s the right to security of persons is a guarantee of the protection of one’s right by the
disappearance. government. And this protection includes conducting effective investigations of
extra-legal killings, enforced disappearances, or threats of the same kind. The
nature and importance of an investigation are captured in the Velasquez
We are not persuaded.
Rodriguez case, in which the Inter-American Court of Human Rights pronounced:

First, the Task Force Balao had acknowledged the fact that Pol. Chief Supt. Martin
"[The duty to investigate] must be undertaken in a serious manner and not as a
was already in constant coordination with the Balao family and CPA, and hence the
mere formality preordained to be ineffective. An investigation must have an
investigators could have readily obtained whatever information they needed from
objective and be assumed by the State as its own legal duty, not a step taken by
Beverly. Pol. Chief Supt. Martin even mentioned in his affidavit that Task Force
private interests that depends upon the initiative of the victim or his family
Balao was able to secure the testimonies of two eyewitnesses with the help of
or upon offer of proof, without an effective search for the truth by the
Beverly and the Balao family, and that as a result cartographic sketches were made
government."44 (Emphasis supplied.)1avvphi1
of some suspects.41 Moreover, Beverly had explained during the cross-examination
conducted by Associate Solicitor Paderanga that she was at the time coordinating
with national and local agencies even as the police investigation was Indeed, why zero in on James’s own kin and colleagues when independent
ongoing.42 There is nothing wrong with petitioners’ simultaneous recourse to other eyewitnesses already provided firsthand accounts of the incident, as well as
legal avenues to gain public attention for a possible enforced disappearance case descriptions of the abductors? With the cartographic sketches having been made
involving their very own colleague. Respondents should even commend such from interviews and statements of witnesses, the police investigators could have
initiative that will encourage those who may have any information on the identities taken proper steps to establish the personal identities of said suspects and yet this
and whereabouts of James’s abductors to help the PNP in its investigation. was not done, the police investigators not even lifting a finger to ascertain whether
the cartographic sketches would match with any enlisted personnel of AFP and PNP,
or their civilian agents/assets. As to the vehicles, the plate numbers of which have
Assuming there was reluctance on the part of the Balao family and CPA to submit
earlier been disclosed by James to his family and the CPA as used in conducting
James’s relatives or colleagues for questioning by agents of the PNP and AFP, they
surveillance on him prior to his abduction, the military merely denied having a
cannot be faulted for such stance owing to the military’s perception of their
vehicle with such plate number on their property list despite the fact that the same
organization as a communist front: ergo, enemies of the State who may be targeted
plate number (USC 922) was sighted attached to a car which was parked at the PA-
for liquidation. But more important, such non-cooperation provides no excuse for
ISU compound in Navy Base, Baguio City. As to the other plate number given by
respondents’ incomplete and one-sided investigations. As we held in Rubrico v.
James (TNH 787), while the police investigators were able to verify the name and
Macapagal-Arroyo43 :
address of the registered owner of the vehicle, there is no showing that said owner
had been investigated or that efforts had been made to locate the said vehicle.
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied Respondents’ insistence that the CPA produce the alleged companions of James in
that they have no direct or indirect hand in the alleged enforced disappearance of his rented residence for investigation by the PNP team, while keeping silent as to
Lourdes and the threats against her daughters. As police officers, though, theirs was why the police investigators had not actively pursued those evidentiary leads
the duty to thoroughly investigate the abduction of Lourdes, a duty that would provided by eyewitnessesand the Balao family, only reinforce the trial court’s
include looking into the cause, manner, and like details of the disappearance; observation that the investigators are seemingly intent on building up a case
identifying witnesses and obtaining statements from them; and following against other persons so as to deflect any suspicion of military or police involvement
evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and in James Balao’s disappearance.
securing and preserving evidence related to the abduction and the threats that may
aid in the prosecution of the person/s responsible. As we said in Manalo, the right to
In view of the foregoing evidentiary gaps, respondents clearly failed to discharge
security, as a guarantee of protection by the government, is breached by the
their burden of extraordinary diligence in the investigation of James’s abduction.
superficial and one-sided––hence, ineffective––investigation by the military or the
Such ineffective investigation extant in the records of this case prevents us from
police of reported cases under their jurisdiction. As found by the CA, the local police
completely exonerating the respondents from allegations of accountability for
stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a
James’ disappearance. The reports submitted by the PNP Regional Office, Task
preliminary fact-finding on petitioners’ complaint. They could not, however, make
Force Balao and Baguio City Police Station do not contain meaningful results or
any headway, owing to what was perceived to be the refusal of Lourdes, her family,
details on the depth and extent of the investigation made. In Razon, Jr. v. Tagitis,
and her witnesses to cooperate. Petitioners’ counsel, Atty. Rex J.M.A. Fernandez,
the Court observed that such reports of top police officials indicating the personnel
provided a plausible explanation for his clients and their witnesses’ attitude, "[They]
and units they directed to investigate can never constitute exhaustive and
do not trust the government agencies to protect them.The difficulty arising from a
meaningful investigation, or equal detailed investigative reports of the activities
situation where the party whose complicity in extrajudicial killing or enforced
undertaken to search for the victim.45 In the same case we stressed that the
disappearance, as the case may be, is alleged to be the same party who
standard of diligence required – the duty of public officials and employees to
investigates it is understandable, though.
observe extraordinary diligence – called for extraordinary measures expected in the
protection of constitutional rights and in the consequent handling and investigation 2) AFFIRMING the denial of the prayer for inspection and production
of extra-judicial killings and enforced disappearance cases. orders, without prejudice to the subsequent grant thereof, in the course of
hearing and other developments in the investigations by the Philippine
National Police/Philippine National Police Criminal Investigation and
As to the matter of dropping President Arroyo as party-respondent, though not
Detection Group and the Armed Forces of the Philippines;
raised in the petitions, we hold that the trial court clearly erred in holding that
presidential immunity cannot be properly invoked in an amparo proceeding. As
president, then President Arroyo was enjoying immunity from suit when the petition 3) ORDERING the incumbent Chief of Staff of the Armed Forces of the
for a writ of amparo was filed. Moreover, the petition is bereft of any allegation as Philippines, or his successor, and the incumbent Director General of the
to what specific presidential act or omission violated or threatened to violate Philippine National Police, or his successor, to CONTINUE the
petitioners’ protected rights.46 investigations and actions already commenced by the Philippine National
Police Regional Office–Cordillera, Baguio City Police, Northern Luzon
Command, Philippine National Police/Philippine National Police Criminal
In order to effectively address thru the amparo remedy the violations of the
Investigation and Detection Group, Philippine Army-Intelligence Service
constitutional rights to liberty and security of James who remains missing to date,
Unit and other concerned units, and specifically take and continue to take
the Court deems it appropriate to refer this case back to the trial court for further
the necessary steps:
investigation by the PNP and CIDG and monitoring of their investigative activities
that complies with the standard of diligence required by the Amparo Rule. Section
24 of Republic Act No. 6975, otherwise known as the "PNP Law" 47 specifies the PNP (a) to identify the persons described in the cartographic sketches
as the governmental office with the mandate to "[i]nvestigate and prevent crimes, submitted by Task Force Balao;
effect the arrest of criminal offenders, bring offenders to justice and assist in their
prosecution." The trial court should further validate the results of such
(b) to locate and search the vehicles bearing the plate numbers
investigations and actions through hearings it may deem necessary to conduct.
submitted by the petitioners and which James Balao had reported
to be conducting surveillance on his person prior to his abduction
Lastly, on the denial of the prayer for interim reliefs under the Amparo Rule. on September 17, 2008, and investigate the registered owners or
whoever the previous and present possessors/transferees thereof;
and to pursue any other leads relevant to the abduction of James
An inspection order is an interim relief designed to give support or strengthen the
Balao;
claim of a petitioner in an amparo petition, in order to aid the court before making a
decision.48 A basic requirement before an amparo court may grant an inspection
order is that the place to be inspected is reasonably determinable from the The incumbent Armed Forces of the Philippines Chief of Staff, Philippine
allegations of the party seeking the order. 49 In this case, the issuance of inspection National Police Director General, or their successors, shall ensure that the
order was properly denied since the petitioners specified several military and police investigations and actions of their respective units on the abduction of
establishments based merely on the allegation that the testimonies of victims and James Balao are pursued with extraordinary diligence as required by Sec.
witnesses in previous incidents of similar abductions involving activists disclosed 17 of the Amparo Rule.
that those premises were used as detention centers. In the same vein, the prayer
for issuance of a production order was predicated on petitioners’ bare allegation that
For purposes of these investigations, the Philippine National
it obtained confidential information from an unidentified military source, that the
Police/Philippine National Police Criminal Investigation and Detection Group
name of James was included in the so-called Order of Battle. Indeed, the trial court
shall periodically report the detailed results of its investigation to the trial
could not have sanctioned any "fishing expedition" by precipitate issuance of
court for its consideration and action. On behalf of this Court, the trial
inspection and production orders on the basis of insufficient claims of one party.
court shall pass upon the sufficiency of their investigative efforts. The
Philippine National Police and the Philippine National Police Criminal
Nonetheless, the trial court is not precluded, as further evidence warrants, to grant Investigation and Detection Group shall have six (6) months from notice
the above interim reliefs to aid it in making a decision upon evaluation of the hereof to undertake their investigations. Within fifteen (15) days after
actions taken by the respondents under the norm of extraordinary diligence. completion of the investigations, the Chief of Staff of the Armed Forces of
the Philippines and the DirectorGeneral of the Philippine National Police
shall submit a full report of the results of the said investigations to the trial
WHEREFORE, the petitions in G.R. Nos. 186050 and 186059 are PARTLY GRANTED.
court. Within thirty (30) days thereafter, the trial court shall submit its full
The Judgment dated January 19, 2009 of the Regional Trial Court of La Trinidad,
reportto this Court.
Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001 is MODIFIED as
follows:
These directives and those of the trial court made pursuant to this Decision
shall be given to, and shall be directly enforceable against, whoever may
1) REVERSING the grant of the privilege of the writ of amparo;
be the incumbent Armed Forces of the Philippines Chief of Staff, Director
General of the Philippine National Police and Chief of the Philippine National
Police Criminal Investigation and Detection Group and other concerned
units, under pain of contempt from this Court when the initiatives and VILLARAMA, JR., J.:
efforts at disclosure and investigation constitute less than the
EXTRAORDINARY DILIGENCE that the Amparo Rule and the circumstances
Before us are consolidated appeals under Section 19 of the Rule on the Writ of
of the case demand; and1awphi1
Amparofrom the January 19, 2009 Judgment1 of the Regional Trial Court (RTC) of
La Trinidad, Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001, entitled
4) DROPPING former President Gloria Macapagal-Arroyo as party- "In the Matter of the Petition for Issuance of Writ of Amparo in favor of James
respondent in the petition for writ of amparo; Balao, Arthur Balao, et al. v. Gloria Macapagal-Arroyo, et al." The RTC granted the
petition for the writ of amparo but denied the prayer for issuance of inspection,
production and witness protection orders.
This case is hereby REMANDED to the Regional Trial Court of La Trinidad, Benguet,
Branch 63 for continuation of proceedings in Special Proceeding No. 08-AMP-0001
for the purposes of monitoring compliance with the above directives and The Antecedents
determining whether, in the light of any recent reports or recommendations, there
would already be sufficient evidence to hold any of the public respondents
On October 8, 2008, Arthur Balao, Winston Balao, Nonette Balao and Jonilyn Balao-
responsible, or, at least, accountable. After making such determination, the trial
Strugar, siblings of James Balao, and Beverly Longid (petitioners), filed with the
court shall submit its own report and recommendation to this Court for final action.
RTC of La Trinidad, Benguet a Petition for the Issuance of a Writ of Amparo 2 in favor
The trial court will continue to have jurisdiction over this case in order to accomplish
of James Balao who was abducted by unidentified armed men on September 17,
its tasks under this decision;
2008 in Tomay, La Trinidad, Benguet. Named respondents in the petition were then
President Gloria Macapagal-Arroyo, Executive Secretary Eduardo R. Ermita, Defense
Accordingly, the public respondents shall remain personally impleaded in this Secretary Gilberto C. Teodoro, Jr.,Interior and Local Government Secretary Ronaldo
petition to answer for any responsibilities and/or accountabilities they may have V. Puno, National Security Adviser (NSA) Norberto B. Gonzales, Armed Forces of the
incurred during their incumbencies. Philippines (AFP) Chief of Staff Gen. Alexander B. Yano, Philippine National Police
(PNP) Police Director General Jesus A. Verzosa, Philippine Army (PA) Chief Brig.
Gen. Reynaldo B. Mapagu, PNP Criminal Investigation and Detection Group (PNP-
No pronouncement as to costs.
CIDG) Chief Lt. P/Dir. Edgardo Doromal, Northern Luzon Command (NOLCOM)
Commander Maj. Gen. Isagani C. Cachuela, PNP-Cordillera Administrative Region
G.R. No. 186050 December 13, 2011 Regional Director Police Senior Supt. Eugene Gabriel Martin, the Commanding
Officer of the AFP Intelligence Service Unit (AFP-ISU) based in Baguio City and
ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO- several John Does.
STRUGAR and BEVERLY LONGID, Petitioners,
vs. James M. Balao is a Psychology and Economics graduate of the University of the
GLORIA MACAPAGAL-ARROYO, EDUARDO ERMITA, GILBERTO TEODORO, Philippines-Baguio (UP-Baguio). In 1984, he was among those who founded the
RONALDO PUNO, NORBERTO GONZALES, Gen. ALEXANDER YANO, Gen. Cordillera Peoples Alliance (CPA), a coalition of non-government organizations
JESUS VERZOSA, Brig. Gen. REYNALDO MAPAGU, Lt. P/Dir. EDGARDO (NGOs) working for the cause of indigenous peoples in the Cordillera Region. As
DOROMAL, Maj. Gen. ISAGANI CACHUELA, Commanding Officer of the AFP- head of CPA’s education and research committee, James actively helped in the
ISU based in Baguio City, PSS EUGENE MARTIN and several JOHN training and organization of farmers. He was also the President of Oclupan Clan
DOES, Respondents. Association which undertakes the registration and documentation of clan properties
to protect their rights over ancestral lands. In 1988, while working for the CPA, he
x - - - - - - - - - - - - - - - - - - - - - - -x was arrested on the charge of violation of the Anti-Subversion Law but the case was
eventually dismissed for lack of evidence.

G.R. No. 186059


The testimonies and statements of eyewitnesses established the following
circumstances surrounding James’s disappearance:
PRESIDENT GLORIA MACAPAGAL-ARROYO, SECRETARY EDUARDO ERMITA,
SECRETARY GILBERTO TEODORO, SECRETARY RONALDO PUNO, SECRETARY
NORBERTO GONZALES, GEN. ALEXANDER YANO, P/DGEN. JESUS VERZOSA, On September 17, 2008, at around 8:30 in the morning, a man clad in black jacket,
BRIG GEN. REYNALDO MAPAGU, MAJ. GEN. ISAGANI CACHUELA ANDPOL. black shirt, black visor and gray pants was standing infront of Saymor’s 3 Store at
SR. SUPT. EUGENE MARTIN, Petitioners, Tomay, La Trinidad, Benguet. He had a belt bag and a travelling bag which was
vs. placed on a bench. Vicky Bonel was at the time attending to the said store owned
ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO- by her brother-in-law while Aniceto G. Dawing, Jr. and his co-employee were
STRUGAR and BEVERLY LONGID, Respondents. delivering bakery products thereat. A white van then arrived and stopped infront of
the store. Five men in civilian clothes who were carrying firearms alighted from the
van and immediately approached the man poking their guns on him. They grabbed
DECISION and handcuffed him. The man was asking why he was being apprehended. One of
the armed men addressed the people witnessing the incident, saying they were production order for all documents that contain evidence relevant to the petition,
policemen. Another warned that no one should interfere because the man was being particularly the Order of Battle List and any record or dossier respondents have on
arrested for illegal drugs. Thereafter, they pushed the man inside the van. One of James; and (3) a witness protection order.
the armed men went back to the store to get the man’s travelling bag. Before
leaving the place, one of the armed men was also heard telling the driver of the van
Petitioners simultaneously filed an Urgent Ex-Parte Motion 5 for the immediate
that they are going to proceed to Camp Dangwa (PNP Provincial Headquarters in La
issuance of a writ of amparo pursuant to Section 6 of the Rule on the Writ of
Trinidad, Benguet). The van headed towards the direction of La Trinidad town
Amparo.
proper. The witnesses later identified the man as James Balao after seeing his
photograph which appeared in posters announcing him as missing.
On October 9, 2008, the Writ of Amparo6 was issued directing respondents to file
their verified return together with their supporting affidavit within five days from
The petition alleged that in May 2008, James reported surveillances on his person to
receipt of the writ.
his family, particularly to his sister Nonette Balao (Nonette), and to CPA Chairperson
Beverly Longid (Beverly). James supposedly observed certain vehicles tailing him
and suspiciously parked outside his residence, one of which was a van with plate Respondents in their Joint Return7 stated: (1) that President Gloria Macapagal-
number USC 922. He also claimed to have received calls and messages through his Arroyo is immune from suit and should thus be dropped as party-respondent; (2)
mobile phone informing him that he was under surveillance by the PNP Regional that only Arthur Balao should be named petitioner and the rest of the other
Office and the AFP-ISU. To prove the surveillance, the informer gave the exact petitioners dropped; (3) that there is no allegation of specific wrongdoing against
dates he visited his family, clothes he wore, and dates and times he goes home or respondents that would show their knowledge, involvement or participation in the
visits friends and relatives. Attached to the petition were the affidavits 4 of Nonette abduction of James; (4) that Exec. Sec. Ermita, Sec. Teodoro, Sec. Puno, Sec.
and Beverly attesting to James’s reports of surveillance to his family and to the CPA. Gonzales, Gen. Yano, Gen. Cachuela, Gen. Mapagu and Gen. Verzosa in their
respective affidavits denied having such participation or knowledge of James’s
abduction, set forth their actions taken in investigating the matter and undertaking
It was further alleged that on September 17, 2008, around 7:00 in the morning,
to continue exerting extraordinary diligence in securing the liberty of James and
James sent a text message to Nonette informing her that he was about to leave his
bring all those responsible for his disappearance to the bar of justice, including
rented house in Fairview Central, Baguio City and that he was going to their
military or police personnel when warranted by the findings of the investigations;
ancestral residence in Pico, La Trinidad, Benguet to do his laundry. The travel time
(5) that Supt. Martin already ordered an investigation, came up with interviews of
from Fairview, Baguio City to Pico usually takes only 20 to 45 minutes. Around 8:00
several witnesses, and held a dialogue with the Commander of the Military
a.m., Nonette, after discovering that James never reached their parents’ house at
Intelligence Group I (MIG1) and the Commanding Officer of the Internal Service
Pico, started contacting their friends and relatives to ask about James’s
Unit-Internal Security Group, Philippine Army;and (6) that petitioners themselves
whereabouts. No one, however, had any idea where he was.
did not cooperate with police authorities in the investigation and neither did they
ask the National Bureau of Investigation to locate James.
Thus, the Balao family, with the assistance of the CPA and other NGOs, tried to
locate James. Teams were formed to follow James’s route from Fairview, Baguio
Respondents contended that the petition failed to meet the requirement in the Rule
City to Pico, La Trinidad and people along the way were asked if they happened to
on the Writ of Amparo that claims must be established by substantial evidence
see him. These searches, however, yielded negative results. One of the teams also
considering that: (1) petitioners’ allegations do not mention in anyway the manner,
went to the office of the AFP-ISU (PA-ISU) in Navy Base and the office of the
whether directly or indirectly, the alleged participation of respondents in the
Military Intelligence Group in Camp Allen, both in Baguio City, but the personnel in
purported abduction of James; (2) Nonette and Beverly do not have personal
said offices denied any knowledge on James’s whereabouts. The family likewise
knowledge of the circumstances surrounding the abduction of James, hence, their
went to Baguio Police Station 7 to report James’s disappearance. The report was
statements are hearsay with no probative value; and (3) the allegations in the
duly entered on the blotter but there have been no developments as of the filing of
petition do not show the materiality and relevance of the places sought to be
the petition. They also sought the help of the media to announce James’s
searched/inspected and documents to be produced, specifically the requirement
disappearance and wrote several government agencies to inform them of his
that the prayer for an inspection order shall be supported by affidavits or
disappearance and enlist their help in locating him.
testimonies of witnesses having personal knowledge of the whereabouts of the
aggrieved party.
Petitioners, moreover, enumerated in their petition several incidents of harassments
and human rights violations against CPA officers, staff and members.
Respondents further argued that it is the PNP as the law enforcement agency, and
not the respondent military and executive officials, which has the duty to investigate
Contending that there is no plain, speedy or adequate remedy for them to protect cases of missing persons. At most, the AFP may inquire on the matters being
James’s life, liberty and security, petitioners prayed for the issuance of a writ of alluded to them as may be ordered by the proper superior, which is primarily done
amparo ordering the respondents to disclose where James is detained or confined, for possible court martial proceedings. Hence, their common denials of having any
to release James, and to cease and desist from further inflicting harm upon his knowledge, participation or authorization for the alleged disappearance of James
person. They likewise prayed for (1) an inspection order for the inspection of at Balao. Nonetheless, respondents executed their affidavits to show the actions they
least 11 military and police facilities which have been previously reported as have taken and reports submitted to them by the proper authorities, as follows:
detention centers for activists abducted by military and police operatives; (2) a
Executive Secretary Ermitastated that upon receipt of copy of the petition for a writ the 5th Infantry Division, PA to investigate the matter since the place of the
of amparo, he caused the issuance of a letter addressed to the PNP Chief and AFP commission of the abduction is within its area of responsibility. He undertook to
Chief of Staff for the purpose of inquiring and establishing the circumstances furnish the court with a copy of the result of the investigation conducted or to be
surrounding the alleged disappearance of James Balao, and which letters also called conducted, as soon as NOLCOM receives the same.13
for the submission of pertinent reports on the results of the investigation conducted,
if any.8
BGen. Mapagu on his part declared that there is nothing in the allegations of the
petition that would show the involvement of the PA in the reported disappearance of
Secretary Teodoro declared that soon after the promulgation by this Court of James Balao. He claimed that he immediately called the attention of the "concerned
the Rule on the Writ of Amparo, he issued "Policy Directive on the Actions and staff" to give some information regarding the case and directed them to submit a
Defenses Under the Amparo Rule" which instructed members of the AFP to report if they are able to obtain information.14
undertake specific measures even without waiting for the filing of an amparo
petition in court whenever any member of the AFP or any of its commands or units
Pol. Dir. General Verzosa set forth the actions and steps taken by the PNP,
have been reported or published as being involved in the alleged violation of an
particularly the PNP Regional Office-Cordillera (PRO-COR) headed by PCSupt.
individual’s right to life, liberty and security or threat thereof, as a preparatory step
Eugene Martin, being the lead PNP unit investigating the case of James Balao. 15
in the filing of a verified return as required by A.M. No. 07-9-12-SC. The AFP was
therein also directed to immediately coordinate with the PNP, NBI, DOJ and other
government agencies in the attainment of the desired actions in the event a petition Pol. Chief Supt. Martin recounted that in the afternoon of September 17, 2008, CPA
is filed. Said policy directive was contained in his Memorandum dated October 31, Chairperson Beverly Longid called up and informed him of the disappearance of
2007 to the Chief of Staff, AFP, and there is no reason for him to doubt that the AFP James. On September 20, 2008, he was informed that James was allegedly missing
will comply with it insofar as the present petition for writ of amparo is concerned. 9 and immediately ordered the Office of the Regional Intelligence Division (RID) to
send flash alarm to all lower units to look for and locate James Balao. This was
followed by a Memorandum with his picture and description. Upon his orders, Police
Secretary Puno confirmed receipt of a copy of the petition and said he will write to
Station 1 of the Baguio City Police Office (BCPO) immediately conducted inquiries at
the PNP Chief to call for pertinent reports relative to the circumstances of the
the boarding house of James at Barangay Fairview, Baguio City. Likewise, he
alleged "taking" of the person in whose favor the writ of amparo was sought. He
ordered the creation of Task Force Balao to fast track the investigation of the case.
undertook to make available any report he will receive from the PNP on the
He further instructed the RID to exert all efforts and supervise all lower units to
matter.10
intensify their investigation and ascertain the whereabouts and other circumstances
surrounding the disappearance of James. Results of the investigations conducted
NSA Gonzales asserted that as a public officer, he is presumed to have performed were set forth in his affidavit. He had constant coordination with the CPA leaders
his duties in accordance with law, which presumption remains undisturbed amid and Balao family who divulged the plate numbers of vehicles allegedly observed by
gratuitous assumptions and conclusions in the petition devoid of factual and legal James prior to his disappearance as conducting surveillance on his person. Upon
basis. Upon receipt of a copy of the petition, he caused to be issued verification with the Land Transportation Office, the said vehicles were found to be
letters/communications to the Director General of the National Intelligence registered under the following persons: TNH 787 – Narciso Magno of #20 Darasa,
Coordinating Agency, the PNP Chief and the AFP Chief of Staff for the purpose of Tanauan, Batangas; and USC 922 – G & S Transport Corp. On October 6, 2008, he
making active inquiries and establishing the circumstances of the alleged received information regarding an abduction incident in Tomay, La Trinidad
disappearance insofar as the possible involvement of military/police personnel is whereupon he ordered the Provincial Director of Benguet to conduct an in-depth
concerned. He undertook to provide the material results of investigations conducted investigation; said investigation disclosed that the person abducted was indeed
or to be conducted by the concerned agencies.11 James. On October 8, 2008, Task Force Balao with the help of the CPA and Balao
family were able to convince two witnesses in the abduction incident in Tomay, La
Trinidad, Benguet to shed light on the incident; as a result, cartographic sketches of
General Yano narrated that prior to the receipt of a copy of the petition, he received
the suspects were made. In the morning of October 9, 2008, he presided over a
a memorandum from the Department of National Defense transmitting the letter of
dialogue which was attended by the Group Commander, MIG1 and Commanding
Bayan Muna Representative Teodoro A. Casiño inquiring about the alleged abduction
Officer of ISU, ISG and PA, for the coordinated efforts to locate James. In the
of James Balao. On the basis of said memo, he directed by radio message the
afternoon of the same day, he met with the family and relatives of James to inform
NOLCOM Commander to conduct a thorough investigation on the matter and to
them of initial efforts and investigation of the case. The Task Force Balao was also
submit the result thereof to the AFP General Headquarters. This was also done in
able to secure the affidavits of witnesses Aniceto Dawing and Vicky Bonel, and
compliance with the Policy Directive issued by Defense Secretary Teodoro. He
invited some members of the CPA who retrieved James’s personal belongings in
reiterated his October 6, 2008 directive to the PA Commanding General in another
Fairview, Baguio City and his companions prior to his disappearance on September
radio message dated October 16, 2008. He undertook to provide the court with
17, 2008 to appear before the Task Force Balao for some clarifications but none of
material results of the investigations conducted by the concerned units as soon as
them appeared. The case is still under follow-up and continuing investigation to
the same are received by Higher Headquarters.12
know what really happened, identify the abductors, determine the real motive for
the abduction and file the necessary charges in court against those responsible. 16
Lt. Gen. Cachuela said that even prior to the receipt of a copy of the petition, he
was already directed by Higher Headquarters to conduct a thorough investigation on
the alleged abduction of James Balao. Acting on said directive, he in turn directed
Also attached to the Return are the more detailed reports (with attached affidavits neighbors. That after he learned about [James’ abduction], he contacted
of other witnesses) dated October 14, 2008 and October 6, 2008 submitted by Task PDEA, La Trinidad PS, RID ad Intel BPPO to verify if they had an operation
Force Balao Commander P/S Supt. Fortunato B. Albas to the PNP Cordillera Regional in Tomay, La Trinidad but all of them answered negative.
Director. Pertinent portions of the two reports read:
x x x x17
xxxx
xxxx
2. Inquiries conducted from Mr. Zusimo Unarosa, a resident of Nr 126,
Purok 3, Central Fairview, Baguio City, claimed that on the 1st week of
3. A photocopy of the photograph of James Balao was presented to the
September 2008, he frequently observed two (2) unidentified male persons
witnesses wherein they confirmed that the picture is the same person who
aged 50-70 years old and about 5’1" to 5’5" in height, bringing boxes from
was arrested and handcuffed. Another witness divulged that prior to the
the house, the contents of which could not be determined. However,
arrest of the person in the picture/photograph, a red motorcycle with two
averred that these two (2) male personalities are not familiar in the
(2) male riders allegedly conducted surveillance along the highway about
barangay. He further stated that he had never seen a van conducting
ten (10) meters away from the place where the victim was picked-up.
surveillance on the house and have not heard of any incident of kidnapping
Minutes later, a white Mitsubishi Adventure arrived and took the victim
or abduction in the community.
inside the car. The motorcycle riding in tandem followed the Mitsubushi
Adventure en route to Camp Dangwa, La Trinidad, Benguet. Another
3. Mr[.] Anselmo Alukim, a neighbor, residing adjacent to the house of the witness overheard one of the abductors instructing the driver to quote
subject, when interviewed, averred that he observed some unidentified "pare sa Camp Dangwa tayo."
male and female persons visiting the said house.
4. Follow[-]up investigation resulted in the identification of a certain
4. Interview conducted on Mr[.] Danny Griba, a resident of said barangay "KULOT" who also witnessed the alleged abduction. However, he was
averred that James Balao is not a resident or occupant of the said house hesitant to talk and instead pointed to the driver of the delivery van of
and claimed that he only saw the subject last summer and stated there are Helen’s Bread. At about 8:30 AM of October 9, 2008, Aniceto Dawing Jr[.]
five (5) unidentified persons occupying the said house. He further stated y Gano, the driver of the delivery van of Helen’s Bread, surfaced and gave
that three (3) male persons aged 40 to 50 years old and a female aged his statements on what he witnessed on the alleged abduction.
between 20-30 years old goes out during day time with several boxes and
returns at about 6:00 PM to 7:00 PM on board a taxi cab again with some
5. On October 12, 2008, one Vicky Bonel y Felipe, 19 years old, single,
boxes of undetermined contents.
native of Atok, Benguet, resident of Tomay, LTB and store keeper of
Saymor[’s] Store appeared before the office of Benguet PPO and gave her
5. Mrs[.] Corazon Addun, resident of Nr 114, Purok 3, Central Fairview, sworn statement on the alleged abduction. A cartographic sketch was
Baguio City averred that the subject is not residing in the said place and made on the person who identified himself as policeman. She further
saw him only once, sometime on April 2008. She further narrated that a stated that it was when while she was tending her brother-in-law’s store,
certain Uncle John aged 40 to 50 years old and a male person aged 20 to gun-wielding men, of about six or more, handcuffed and shove the victim
30 are among the occupants of said house. Accordingly, on September 21, inside their vehicle. She recalled that she can recognize the abductors if
2008, Uncle John went to the house of Mrs. Addun and over a cup of coffee she can see them again.
told her that he will be going to Sagada, Mountain Province purposely to
locate a missing colleague who was sent there. Accordingly[,] he received
6. Another witness stated that she was preparing her merchandise in the
a phone call that his missing colleague (James Balao) did not reach the
waiting shed of Lower Tomay when she noticed a parked motorcycle beside
municipality and reported missing. After that short talk, she never saw
the elementary school at about 7:00 AM of September 17, 2008. The rider
Uncle John again. Additionally, she did not notice any vehicle conducting
of the bike was suspiciously scouring the area and kept on calling someone
surveillance therein and any unusual incidents that transpired in said place.
from his cellular phone before the abduction was made.

xxxx
7. Baguio City Police Office conducted follow-up investigation and were
able to secure affidavit of Florence Luken y Mayames, 47 years old,
7. This office has likewise coordinated with MIG-1 and ISU, ISG, PA but married, and a resident of 135 Central Fairview averred that James Balao
both offices denied any knowledge on the alleged abduction of James together with a certain Uncle John about 65-75 years old, about 5’4" in
Balao. height and a certain Rene about 30-35 years old and stands 5’5", were her
neighbors for almost one year. She further stated that James Balao and
company do not mingle with their neighbors and only one person is usually
8. It was found out that it was SPO4 Genero Rosal, residing within the
left behind while James and Rene goes out at 6:00 or 7:00 AM and goes
vicinity, who followed-up the incident because it was reported to him by his
back at around 6:00 or 7:00 PM.
She further averred that she did not notice any van or any kind of vehicle also reported the surfacing of another two (2) witnesses who described the
parked along the roadside infront of any residence not his neighbors nor suspect who handcuffed James Balao.
any person or persons observing the occupants of the said house.
Accordingly, at around 1:00 PM of September 26, 2008, a closed van
6. PRO-Cordillera wrote a letter to the Cordillera Peoples Alliance
(Ca[n]ter) with unknown plate number was seen parked infront of the said
requesting them to present Uncle John, Rene and his other companions
house and more or less (10) unidentified male person[s] aging from 20-23
who are then residing in the same boarding house including all his
and an unidentified female entered the alleged rented house of James
companions on September 17, 2008 and prior to his disappearance.
Balao and took some table, chairs and cabinets then left immediately to
unknown destination.
REMARKS:
8. Mrs[.] Mina Cabati Serdan the owner of the house being rented by
James Balao averred that sometime May of 2007, a certain Mr[.] June, a Case is still under follow-up investigation to identify the alleged abductors to
realtor agent, recommended to her that a certain James Balao will rent the determine the real motive of the abduction and to file necessary charges against
house for one (1) year term with an agreed monthly rent of fifteen them in court.18
thousand pesos (P15,000.00). She stated that James Balao had extended
his stay for almost 4 months. On the last week of August 2008, Mrs[.] During the hearing, the affidavits and testimonies of the following witnesses were
Serdan called up James Balao through phone to inform him that she will presented by petitioners:
terminate his stay at the rented house on September 30, 2008. Mrs[.]
Serdan further stated that [she]visited the rented house only twice and
that was the only time she saw James Balao with an unidentified Aniceto Dawing19 testified that on September 17, 2008, around 8:00 in the morning,
companions. while he was delivering bread at Saymor’s Store in Tomay, La Trinidad, Benguet, a
white van stopped infront of them and five armed men alighted. The armed men,
who introduced themselves as policemen in Filipino, held and pointed a gun at one
That she only discovered that James Balao was missing when a certain Carol male person. The armed men told the male person that he was being apprehended
informed her that he was missing. [Sh]e further stated that she visited her house for illegal drugs. They then let the male person board the vehicle and informed him
and found out that the said occupants have already left on September 26, 2008 and that they will proceed to Camp Dangwa. Dawing admitted that he did not know that
discovered that all personal belongings of the occupants have already been taken it was James whom he saw that time and came to know only of his identity when he
out by the relatives. saw a poster bearing James’s photograph. On cross-examination, he stated that the
white van did not have any markings that it was a police vehicle and that the armed
xxxx men were in civilian clothes and did not wear any police badges or identification
cards. He just assumed that they were policemen because of their posture and
haircut and because they introduced themselves as such.
VI. ACTIONS TAKEN:

Anvil Lumbag stated in his affidavit20 that he was also at Saymor’s Store in the
1. That a composite team "TASK FORCE BALAO" from this office and the
morning of September 17, 2008 to buy chicken. He said that a ToyotaRevo stopped
Regional Headquarters headed by [P/S SUPT] FORTUNATO BASCO ALBAS
infront of the store from where four men alighted. The men handcuffed a man who
was formed.
was standing infront of the store and uttered "Walang makikialam, drugs kaso nito"
while pointing a gun at the said man. Then, they forced the man to board the Revo.
2. That the composite team of investigators conducted ocular inspection on Before the Revo fled, Lumbag heard one of the men say that they will be going to
the area. Camp Dangwa. Lumbag’s affidavit, however, did not mention if it was James who
was forcibly taken by the armed men.
3. On October 8, 2008, two (2) witnesses namely: Marjore Domingo
Hipolito and Jenny Lynn Malondon Valdez gave their sworn statements and Beverly Longid21 testified that she got to know James when she was a member of
cartographic sketch of one of the abductors. the CPA youth organization in her student days. Every time James will have an
activity that is CPA-related, he would coordinate with Beverly, she being the CPA
chair. She also testified that prior to his disappearance, the last time she talked with
4. On the morning of October 9, 2008, a dialogue was presided by RD,
James was in July or August of 2008 when he reported surveillances on his person
PRO-COR and attended by the Group Commander, MIG1 and Commanding
by the PNP and the AFP. In her affidavit, she alleged that James reported to her
Officer of ISU, SG, PA. Both commanders denied the accusations against
several vehicles tailing him, one of which was a green van with plate number USC
them.
922, the same plate number she had seen at the Intelligence Security Unit in Navy
Base, Baguio City, and which was attached to a silver grey van.
5. In the afternoon of the same day, a meeting with the family and
relatives of James Balao was again presided by RD, PRO-COR wherein the
results of the initial efforts and investigation were given to the family. He
Beverly admitted that at the time of the alleged abduction, she was in Baguio City, DENY the issuance of INSPECTION ORDER, PRODUCTION ORDER and WITNESS
at the Office of the Cordillera People’s Legal Center and that she only came to know PROTECTION ORDER for failure of herein Petitioners to comply with the stringent
that James was missing in the afternoon of September 18, 2008. She also provisions on the Rule on the Writ of Amparo and substantiate the same. 25
confirmed that they met with Pol. Supt. Martin to seek assistance regarding James’s
disappearance.
In denying respondents’ prayer that President Arroyo be dropped as party-
respondent, the RTC held that a petition for a writ of amparo is not "by any stretch
Nonette Balao22 testified that she was at her bakeshop located in Km. 4, La Trinidad, of imagination a niggling[,] vexing or annoying court case" 26 from which she should
Benguet in the morning of September 17, 2008. At around 6:30 a.m., she received be shielded. The RTC ruled that said petition is nothing more than a tool to aid the
a text message from James saying that he will be going home to their ancestral president to guarantee that laws on human rights are devotedly and staunchly
home to do some laundry. Thirty minutes later, she received another text message carried out. It added that those who complain against naming the president as
from James saying that he was already leaving his place in Fairview, Baguio City. party-respondent are only those who "either do not understand what the Writ of
When around 8:00 a.m. James had not yet arrived at their ancestral home, she got Amparo is all about or who do not want to aid Her Excellency in her duty to
worried. She texted him but failed to get a reply, so she tried to call him. His phone, supervise and control the machinery of government." 27
however, had already been turned off. She then called the CPA office to check if
James was there. She was told that he was not there so she went to James’s house
In upholding the standing of James’s siblings and Beverly to file the petition, the
in Fairview at around 9:00 a.m. James’s housemates, however, told her that he left
RTC held that what Section 2 of the Rule on the Writ of Amparorules out is the right
at 7:00 a.m.
to file similar petitions, meaning there could be no successive petitions for the
issuance of a writ of amparo for the same party.
Nonette also testified that they only reported James’s disappearance to the police
on September 20, 2008 because they thought that it was necessary that a person
The RTC further held that "more likely than not," the motive for James’s
be missing for at least 48 hours before the disappearance could be reported. They
disappearance is his activist/political leanings and that James’s case is one of an
went to Sub-Station Police Precinct No. 1 in Baguio and to the police precinct in La
enforced disappearance as defined under the Rule on the Writ of Amparo. In so
Trinidad to report the matter. They also went to Camp Dangwa to see if James was
ruling, the RTC considered (1) the several incidents of harassment mentioned in
there.
Beverly’s testimony and enumerated in the petition; and (2) the references in the
petition to the CPA as a front for the CPP-NPA.
Nonette claimed that she became worried because James never switched off his
mobile phone and since he already texted her that he was coming home, he could
The RTC likewise ruled that the government unmistakably violated James’s right to
have texted again if there was a change of plans. Also, James had told them since
security of person. It found the investigation conducted by respondents as very
April 2008 that he had been under surveillance. She does not know why James went
limited, superficial and one-sided. The police and military thus miserably failed to
to Tomay, La Trinidad.
conduct an effective investigation of James’s abduction as revealed by the
investigation report of respondents’ own witnesses, Supt. Martin and P/S Supt.
Samuel Anongos stated in his affidavit23 that he is a member of the Education Fortunato Basco Albas, the Commander of Task Force Balao. It further noted that
Commission of the CPA. He claimed that when they conducted trainings and respondents did not investigate the military officials believed to be behind the
educational discussions on mining education in Abra, members of the AFP harassed abduction as said military officials were merely invited to a dialogue and there was
the community and committed various human rights violations. The AFP also no investigation made in Camp Dangwa where the abductors were believed to have
allegedly held community meetings where they said that the CPA is part of the New taken James as narrated by the witnesses. Moreover, the RTC observed that despite
People’s Army. Attached to Anongos’s affidavit is a copy of a paper that the AFP was the undertaking of respondents to investigate the abduction and provide results
allegedly distributing. It shows the organizational structure of the Communist Party thereof, four months have passed but petitioners have not been furnished reports
of the Philippines-New People’s Army (CPP-NPA) wherein CPA was identified as one regarding the investigation.
of the organizations under the National Democratic Front (NDF).24
As to the denial of the interim reliefs, the RTC stated that the stringent provisions of
RTC Ruling the rules were not complied with and granting said reliefs might violate
respondents’ constitutional rights and jeopardize State security.
On January 19, 2009, the RTC issued the assailed judgment, disposing as follows:
Both parties appealed to this Court.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:
The Consolidated Petitions
ISSUE a Writ of Amparo Ordering the respondents to (a) disclose where James
Balao is detained or confined, (b) to release James Balao considering his unlawful Petitioners, in G.R. No. 186050, question the RTC’s denial of the interim reliefs.
detention since his abduction and (c) to cease and desist from further inflicting
harm upon his person; and
Respondents, on the other hand, assail in their petition in G.R. No. 186059, the SEC. 18. Judgment. - The court shall render judgment within ten (10) days from the
issuance of the writ of amparo. They raise the following arguments: time the petition is submitted for decision. If the allegations in the petition are
proven by substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege shall be
I
denied. (Emphasis supplied.)

THE TRIAL COURT’S JUDGMENT ORDERING RESPONDENT-PETITIONERS


The threshold issue in this case is whether the totality of evidence satisfies the
TO: (A) DISCLOSE WHERE JAMES BALAO IS DETAINED AND CONFINED;
degree of proof required by the Amparo Rule to establish an enforced
(B) TO RELEASE JAMES BALAO CONSIDERING HIS UNLAWFUL DETENTION
disappearance.
SINCE HIS "ABDUCTION" AND (C) TO CEASE AND DESIST FROM FURTHER
INFLICTING HARM UPON HIS PERSON IS BASED PURELY ON
CONJECTURES, SURMISES AND HEARSAY EVIDENCE; HENCE, IT MUST BE In granting the privilege of the writ of amparo, the trial court ratiocinated:
SET ASIDE.
On record is evidence pointing to the more likely than not motive for James Balao’s
II disappearance – his activist/political leanings. This is shown by the several incidents
relating to harassments of activists as mentioned in the unrebutted testimony of
Beverly Longid and the enumeration made in par. 48 (a) to (cc) of the petition.
RESPONDENT-PETITIONERS HAD PROVEN THAT THEY OBSERVED
There were also references in the petition’s pars. 52 et. seq. to the CPA (of which
EXTRAORDINARY DILIGENCE AS REQUIRED BY APPLICABLE LAWS, RULES
James Balao was an active staff) as a front organization of the Communist Party of
AND REGULATIONS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.
the Philippines-New People’s Army. More likely than not he was not taken to parts
unknown for reasons other than his involvement in the CPA, that is, politically-
III motivated. The Court considers these facts enough circumstances to establish
substantial evidence of an enforced disappearance as defined under the Rule on the
THE FACTUAL CIRCUMSTANCES AND THE EVIDENCE PRESENTED IN THE Writ of Amparo. For after all, substantial evidence requires nothing greater than
MANALO CASE ARE TOTALLY DIFFERENT FROM THE CASE AT BAR; HENCE, "more likely than not" degree of proof.31 (Emphasis supplied.)
THE TRIAL COURT GROSSLY ERRED IN APPLYING THE RULING THEREIN
TO THE CASE AT BAR. The trial court gave considerable weight to the discussion in the petition of briefing
papers supposedly obtained from the AFP (Oplan Bantay-Laya implemented since
IV 2001) indicating that the anti-insurgency campaign of the military under the
administration of President Arroyo included targeting of identified legal
organizations under the NDF, which included the CPA, and their members, as
THE TRIAL COURT CORRECTLY DENIED PETITIONER-RESPONDENTS’ "enemies of the state." The petition cited other documents confirming such "all-out
PRAYER FOR THE ISSUANCE OF AN INSPECTION ORDER, PRODUCTION war" policy which resulted in the prevalence of extrajudicial killings: namely, the
ORDER AND A WITNESS PROTECTION ORDER. 28 published reports of the Melo Commission and the UNHRC’s Special Rapporteur on
Extrajudicial Summary or Arbitrary Executions, Mr. Philip Alston. The petition also
Our Ruling enumerated previously documented cases of extralegal killings of activists belonging
to militant groups, including CPA leaders and workers, almost all of which have been
preceded by surveillance by military or police agents and acts of harassment.
The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising Consequently, petitioners postulated that the surveillance on James and his
incidence of "extralegal killings" and "enforced disappearances." It was formulated subsequent abduction are interconnected with the harassments, surveillance,
in the exercise of this Court’s expanded rule-making power for the protection and threats and political assassination of other members and officers of CPA which is his
enforcement of constitutional rights enshrined in the 1987 Constitution, albeit organization.
limited to these two situations. "Extralegal killings" refer to killings committed
without due process of law, i.e., without legal safeguards or judicial
proceedings.29 On the other hand, "enforced disappearances" are attended by the We hold that such documented practice of targeting activists in the military’s
following characteristics: an arrest, detention, or abduction of a person by a counter-insurgency program by itself does not fulfill the evidentiary standard
government official or organized groups or private individuals acting with the direct provided in the Amparo Rule to establish an enforced disappearance.
or indirect acquiescence of the government; the refusal of the State to disclose the
fate or whereabouts of the person concerned or a refusal to acknowledge the In the case of Roxas v. Macapagal-Arroyo,32 the Court noted that the similarity
deprivation of liberty which places such person outside the protection of law. 30 between the circumstances attending a particular case of abduction with those
surrounding previous instances of enforced disappearances does not, necessarily,
Section 18 of the Amparo Rule provides: carry sufficient weight to prove that the government orchestrated such abduction.
Accordingly, the trial court in this case cannot simply infer government involvement
in the abduction of James from past similar incidents in which the victims also violations or threats of violation of the basic rights to life, liberty, and security of
worked or affiliated with the CPA and other left-leaning groups. persons; the corresponding amparo suit, however, "is not an action to determine
criminal guilt requiring proof beyond reasonable doubt x x x or administrative
liability requiring substantial evidence that will require full and exhaustive
The petition further premised government complicity in the abduction of James on
proceedings." Of the same tenor, and by way of expounding on the nature and role
the very positions held by the respondents, stating that --
of amparo, is what the Court said in Razon v. Tagitis:

The abduction of James Balao can only be attributed to the Respondents who have
It does not determine guilt nor pinpoint criminal culpability for the disappearance
command responsibility of all the actions of their subordinates and who are the
[threats thereof or extrajudicial killings]; it determines responsibility, or at least
primary persons in the implementation of the government’s all out war
accountability, for the enforced disappearance [threats thereof or extrajudicial
policy.33 (Emphasis supplied.)
killings] for purposes of imposing the appropriate remedies to address the
disappearance [or extrajudicial killings].
The Court in Rubrico v. Macapagal-Arroyo34 had the occasion to expound on the
doctrine of command responsibility and why it has little bearing, if at all, in amparo
xxxx
proceedings.

As the law now stands, extrajudicial killings and enforced disappearances in this
The evolution of the command responsibility doctrine finds its context in the
jurisdiction are not crimes penalized separately from the component criminal acts
development of laws of war and armed combats. According to Fr. Bernas,
undertaken to carry out these killings and enforced disappearances and are now
"command responsibility," in its simplest terms, means the "responsibility of
penalized under the Revised Penal Code and special laws. The simple reason is that
commanders for crimes committed by subordinate members of the armed forces or
the Legislature has not spoken on the matter; the determination of what acts are
other persons subject to their control in international wars or domestic conflict." In
criminal x x x are matters of substantive law that only the Legislature has the power
this sense, command responsibility is properly a form of criminal complicity. The
to enact. x x x35
Hague Conventions of 1907 adopted the doctrine of command responsibility,
foreshadowing the present-day precept of holding a superior accountable for the
atrocities committed by his subordinates should he be remiss in his duty of control Subsequently, we have clarified that the inapplicability of the doctrine of command
over them. As then formulated, command responsibility is "an omission mode of responsibility in an amparo proceeding does not, by any measure, preclude
individual criminal liability," whereby the superior is made responsible for crimes impleading military or police commanders on the ground that the complained acts in
committed by his subordinates for failing to prevent or punish the perpetrators (as the petition were committed with their direct or indirect acquiescence. Commanders
opposed to crimes he ordered). may therefore be impleaded—not actually on the basis of command responsibility—
but rather on the ground of their responsibility, or at least accountability. 36
The doctrine has recently been codified in the Rome Statute of the International
Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute In Razon, Jr. v. Tagitis,37 the Court defined responsibility and accountability as these
imposes individual responsibility on military commanders for crimes committed by terms are applied to amparo proceedings, as follows:
forces under their control. The country is, however, not yet formally bound by the
terms and provisions embodied in this treaty-statute, since the Senate has yet to
x x x Responsibility refers to the extent the actors have been established by
extend concurrence in its ratification.
substantial evidence to have participated in whatever way, by action or omission, in
an enforced disappearance, as a measure of the remedies this Court shall craft,
While there are several pending bills on command responsibility, there is still no among them, the directive to file the appropriate criminal and civil cases against the
Philippine law that provides for criminal liability under that doctrine. responsible parties in the proper courts. Accountability, on the other hand, refers
to the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their
It may plausibly be contended that command responsibility, as legal basis to hold
complicity to the level of responsibility defined above; or who are imputed with
military/police commanders liable for extra-legal killings, enforced disappearances,
knowledge relating to the enforced disappearance and who carry the burden of
or threats, may be made applicable to this jurisdiction on the theory that the
disclosure; or those who carry, but have failed to discharge, the burden of
command responsibility doctrine now constitutes a principle of international law or
extraordinary diligence in the investigation of the enforced disappearance. x x
customary international law in accordance with the incorporation clause of the
x38 (Emphasis supplied.)
Constitution. Still, it would be inappropriate to apply to these proceedings the
doctrine of command responsibility, as the CA seemed to have done, as a form of
criminal complicity through omission, for individual respondents’ criminal liability, if Assessing the evidence on record, we find that the participation in any manner of
there be any, is beyond the reach of amparo. In other words, the Court does not military and police authorities in the abduction of James has not been adequately
rule in such proceedings on any issue of criminal culpability, even if incidentally a proven. The identities of the abductors have not been established, much less their
crime or an infraction of an administrative rule may have been committed. As the link to any military or police unit. There is likewise no concrete evidence indicating
Court stressed in Secretary of National Defense v. Manalo (Manalo), the writ of that James is being held or detained upon orders of or with acquiescence of
amparo was conceived to provide expeditious and effective procedural relief against government agents. Consequently, the trial court erred in granting amparo reliefs
by ordering the respondent officials (1) to disclose where James Balao is detained or initiative that will encourage those who may have any information on the identities
confined, (2) to release him from such detention or confinement, and (3) to cease and whereabouts of James’s abductors to help the PNP in its investigation.
and desist from further inflicting harm upon his person. Such pronouncement of
responsibility on the part of public respondents cannot be made given the
Assuming there was reluctance on the part of the Balao family and CPA to submit
insufficiency of evidence.39 However, we agree with the trial court in finding that the
James’s relatives or colleagues for questioning by agents of the PNP and AFP, they
actions taken by respondent officials are "very limited, superficial and one-sided."
cannot be faulted for such stance owing to the military’s perception of their
Its candid and forthright observations on the efforts exerted by the respondents are
organization as a communist front: ergo, enemies of the State who may be targeted
borne by the evidence on record, thus:
for liquidation. But more important, such non-cooperation provides no excuse for
respondents’ incomplete and one-sided investigations. As we held in Rubrico v.
x x x the violation of the right to security as protection by the government is Macapagal-Arroyo43 :
unmistakable. The police and the military miserably failed in conducting an effective
investigation of James Balao’s abduction as revealed by the investigation report of
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied
respondent’s own witnesses Honorable Chief Superintendent Eugene Martin and
that they have no direct or indirect hand in the alleged enforced disappearance of
Honorable Senior Superintendent Fortunato Albas. The investigation was – to use
Lourdes and the threats against her daughters. As police officers, though, theirs was
the words in The Secretary of National Defense, et. al., v. Manalo et. al. –
the duty to thoroughly investigate the abduction of Lourdes, a duty that would
"verylimited, superficial and one-sided."
include looking into the cause, manner, and like details of the disappearance;
identifying witnesses and obtaining statements from them; and following
The actions taken were simply these: (a) organization of the "Task Force Balao"; (b) evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and
conduct of ocular inspection at the place of abduction; (c) taking of sworn securing and preserving evidence related to the abduction and the threats that may
statements of civilian witnesses, whose testimonies did not prove much as shown aid in the prosecution of the person/s responsible. As we said in Manalo, the right to
by the continued disappearance of James Balao; (d) dialogue with implicated security, as a guarantee of protection by the government, is breached by the
military officials as well as family members and friends of James Balao; and (e) superficial and one-sided––hence, ineffective––investigation by the military or the
writing of letter to the CPA. The Court does not want to second-guess police police of reported cases under their jurisdiction. As found by the CA, the local police
protocols in investigation but surely some things are amiss where the investigation stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a
DID NOT INVESTIGATE the military officials believed to be behind the abduction as preliminary fact-finding on petitioners’ complaint. They could not, however, make
they were merely invited to a dialogue and where the investigation DID NOT LEAD any headway, owing to what was perceived to be the refusal of Lourdes, her family,
to Camp Dangwa where the abductors were supposed to have proceeded as and her witnesses to cooperate. Petitioners’ counsel, Atty. Rex J.M.A. Fernandez,
narrated by the witnesses. To the mind of this Court, there is a seeming prejudice in provided a plausible explanation for his clients and their witnesses’ attitude, "[They]
the process of investigation to pin suspects who are not connected with the military do not trust the government agencies to protect them.The difficulty arising from a
establishments. By any measure, this cannot be a thorough and good faith situation where the party whose complicity in extrajudicial killing or enforced
investigation but one that falls short of that required by the Writ of Amparo. 40 disappearance, as the case may be, is alleged to be the same party who
investigates it is understandable, though.
Respondents reiterate that they did their job the best they could and fault the
petitioners instead for their non-cooperation which caused delay in the The seeming reluctance on the part of the Rubricos or their witnesses to cooperate
investigation. They particularly blamed Beverly who failed to attend the October 15, ought not to pose a hindrance to the police in pursuing, on its own initiative, the
2008 invitation to appear before the investigators and shed light on James’s investigation in question to its natural end. To repeat what the Court said in Manalo,
disappearance. the right to security of persons is a guarantee of the protection of one’s right by the
government. And this protection includes conducting effective investigations of
extra-legal killings, enforced disappearances, or threats of the same kind. The
We are not persuaded.
nature and importance of an investigation are captured in the Velasquez
Rodriguez case, in which the Inter-American Court of Human Rights pronounced:
First, the Task Force Balao had acknowledged the fact that Pol. Chief Supt. Martin
was already in constant coordination with the Balao family and CPA, and hence the
"[The duty to investigate] must be undertaken in a serious manner and not as a
investigators could have readily obtained whatever information they needed from
mere formality preordained to be ineffective. An investigation must have an
Beverly. Pol. Chief Supt. Martin even mentioned in his affidavit that Task Force
objective and be assumed by the State as its own legal duty, not a step taken by
Balao was able to secure the testimonies of two eyewitnesses with the help of
private interests that depends upon the initiative of the victim or his family
Beverly and the Balao family, and that as a result cartographic sketches were made
or upon offer of proof, without an effective search for the truth by the
of some suspects.41 Moreover, Beverly had explained during the cross-examination
government."44 (Emphasis supplied.)1avvphi1
conducted by Associate Solicitor Paderanga that she was at the time coordinating
with national and local agencies even as the police investigation was
ongoing.42 There is nothing wrong with petitioners’ simultaneous recourse to other Indeed, why zero in on James’s own kin and colleagues when independent
legal avenues to gain public attention for a possible enforced disappearance case eyewitnesses already provided firsthand accounts of the incident, as well as
involving their very own colleague. Respondents should even commend such descriptions of the abductors? With the cartographic sketches having been made
from interviews and statements of witnesses, the police investigators could have
taken proper steps to establish the personal identities of said suspects and yet this Lastly, on the denial of the prayer for interim reliefs under the Amparo Rule.
was not done, the police investigators not even lifting a finger to ascertain whether
the cartographic sketches would match with any enlisted personnel of AFP and PNP,
An inspection order is an interim relief designed to give support or strengthen the
or their civilian agents/assets. As to the vehicles, the plate numbers of which have
claim of a petitioner in an amparo petition, in order to aid the court before making a
earlier been disclosed by James to his family and the CPA as used in conducting
decision.48 A basic requirement before an amparo court may grant an inspection
surveillance on him prior to his abduction, the military merely denied having a
order is that the place to be inspected is reasonably determinable from the
vehicle with such plate number on their property list despite the fact that the same
allegations of the party seeking the order. 49 In this case, the issuance of inspection
plate number (USC 922) was sighted attached to a car which was parked at the PA-
order was properly denied since the petitioners specified several military and police
ISU compound in Navy Base, Baguio City. As to the other plate number given by
establishments based merely on the allegation that the testimonies of victims and
James (TNH 787), while the police investigators were able to verify the name and
witnesses in previous incidents of similar abductions involving activists disclosed
address of the registered owner of the vehicle, there is no showing that said owner
that those premises were used as detention centers. In the same vein, the prayer
had been investigated or that efforts had been made to locate the said vehicle.
for issuance of a production order was predicated on petitioners’ bare allegation that
Respondents’ insistence that the CPA produce the alleged companions of James in
it obtained confidential information from an unidentified military source, that the
his rented residence for investigation by the PNP team, while keeping silent as to
name of James was included in the so-called Order of Battle. Indeed, the trial court
why the police investigators had not actively pursued those evidentiary leads
could not have sanctioned any "fishing expedition" by precipitate issuance of
provided by eyewitnessesand the Balao family, only reinforce the trial court’s
inspection and production orders on the basis of insufficient claims of one party.
observation that the investigators are seemingly intent on building up a case
against other persons so as to deflect any suspicion of military or police involvement
in James Balao’s disappearance. Nonetheless, the trial court is not precluded, as further evidence warrants, to grant
the above interim reliefs to aid it in making a decision upon evaluation of the
actions taken by the respondents under the norm of extraordinary diligence.
In view of the foregoing evidentiary gaps, respondents clearly failed to discharge
their burden of extraordinary diligence in the investigation of James’s abduction.
Such ineffective investigation extant in the records of this case prevents us from WHEREFORE, the petitions in G.R. Nos. 186050 and 186059 are PARTLY GRANTED.
completely exonerating the respondents from allegations of accountability for The Judgment dated January 19, 2009 of the Regional Trial Court of La Trinidad,
James’ disappearance. The reports submitted by the PNP Regional Office, Task Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001 is MODIFIED as
Force Balao and Baguio City Police Station do not contain meaningful results or follows:
details on the depth and extent of the investigation made. In Razon, Jr. v. Tagitis,
the Court observed that such reports of top police officials indicating the personnel 1) REVERSING the grant of the privilege of the writ of amparo;
and units they directed to investigate can never constitute exhaustive and
meaningful investigation, or equal detailed investigative reports of the activities
undertaken to search for the victim.45 In the same case we stressed that the 2) AFFIRMING the denial of the prayer for inspection and production
standard of diligence required – the duty of public officials and employees to orders, without prejudice to the subsequent grant thereof, in the course of
observe extraordinary diligence – called for extraordinary measures expected in the hearing and other developments in the investigations by the Philippine
protection of constitutional rights and in the consequent handling and investigation National Police/Philippine National Police Criminal Investigation and
of extra-judicial killings and enforced disappearance cases. Detection Group and the Armed Forces of the Philippines;

As to the matter of dropping President Arroyo as party-respondent, though not 3) ORDERING the incumbent Chief of Staff of the Armed Forces of the
raised in the petitions, we hold that the trial court clearly erred in holding that Philippines, or his successor, and the incumbent Director General of the
presidential immunity cannot be properly invoked in an amparo proceeding. As Philippine National Police, or his successor, to CONTINUE the
president, then President Arroyo was enjoying immunity from suit when the petition investigations and actions already commenced by the Philippine National
for a writ of amparo was filed. Moreover, the petition is bereft of any allegation as Police Regional Office–Cordillera, Baguio City Police, Northern Luzon
to what specific presidential act or omission violated or threatened to violate Command, Philippine National Police/Philippine National Police Criminal
petitioners’ protected rights.46 Investigation and Detection Group, Philippine Army-Intelligence Service
Unit and other concerned units, and specifically take and continue to take
the necessary steps:
In order to effectively address thru the amparo remedy the violations of the
constitutional rights to liberty and security of James who remains missing to date,
the Court deems it appropriate to refer this case back to the trial court for further (a) to identify the persons described in the cartographic sketches
investigation by the PNP and CIDG and monitoring of their investigative activities submitted by Task Force Balao;
that complies with the standard of diligence required by the Amparo Rule. Section
24 of Republic Act No. 6975, otherwise known as the "PNP Law" 47 specifies the PNP (b) to locate and search the vehicles bearing the plate numbers
as the governmental office with the mandate to "[i]nvestigate and prevent crimes, submitted by the petitioners and which James Balao had reported
effect the arrest of criminal offenders, bring offenders to justice and assist in their to be conducting surveillance on his person prior to his abduction
prosecution." The trial court should further validate the results of such on September 17, 2008, and investigate the registered owners or
investigations and actions through hearings it may deem necessary to conduct.
whoever the previous and present possessors/transferees thereof; G.R. No. 183871 February 18, 2010
and to pursue any other leads relevant to the abduction of James
Balao;
LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO
CARBONEL, Petitioners,
The incumbent Armed Forces of the Philippines Chief of Staff, Philippine vs. GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.
National Police Director General, or their successors, shall ensure that the GEN. AVELINO RAZON, MAJ. DARWIN SY a.k.a. DARWIN REYES, JIMMY
investigations and actions of their respective units on the abduction of SANTANA, RUBEN ALFARO, CAPT. ANGELO CUARESMA, a certain
James Balao are pursued with extraordinary diligence as required by Sec. JONATHAN, P/SUPT. EDGAR B. ROQUERO, ARSENIO C. GOMEZ, and OFFICE
17 of the Amparo Rule. OF THE OMBUDSMAN, Respondents.

For purposes of these investigations, the Philippine National D E C I S I O N - VELASCO, JR., J.:
Police/Philippine National Police Criminal Investigation and Detection Group
shall periodically report the detailed results of its investigation to the trial
In this petition for review under Rule 45 of the Rules of Court in relation to Section
court for its consideration and action. On behalf of this Court, the trial
191 of the Rule on the Writ of Amparo2 (Amparo Rule), Lourdes D. Rubrico, Jean
court shall pass upon the sufficiency of their investigative efforts. The
Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and seek to set aside the
Philippine National Police and the Philippine National Police Criminal
Decision3 of the Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No.
Investigation and Detection Group shall have six (6) months from notice
00003, a petition commenced under the Amparo Rule.
hereof to undertake their investigations. Within fifteen (15) days after
completion of the investigations, the Chief of Staff of the Armed Forces of
the Philippines and the DirectorGeneral of the Philippine National Police The petition for the writ of amparo dated October 25, 2007 was originally filed
shall submit a full report of the results of the said investigations to the trial before this Court. After issuing the desired writ and directing the respondents to file
court. Within thirty (30) days thereafter, the trial court shall submit its full a verified written return, the Court referred the petition to the CA for summary
reportto this Court. hearing and appropriate action. The petition and its attachments contained, in
substance, the following allegations:
These directives and those of the trial court made pursuant to this Decision
shall be given to, and shall be directly enforceable against, whoever may 1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and
be the incumbent Armed Forces of the Philippines Chief of Staff, Director Security Squadron (AISS, for short) based in Fernando Air Base in Lipa City
General of the Philippine National Police and Chief of the Philippine National abducted Lourdes D. Rubrico (Lourdes), then attending a Lenten pabasa in
Police Criminal Investigation and Detection Group and other concerned Bagong Bayan, Dasmariñas, Cavite, and brought to, and detained at, the
units, under pain of contempt from this Court when the initiatives and air base without charges. Following a week of relentless interrogation -
efforts at disclosure and investigation constitute less than the conducted alternately by hooded individuals - and what amounts to verbal
EXTRAORDINARY DILIGENCE that the Amparo Rule and the circumstances abuse and mental harassment, Lourdes, chair of the Ugnayan ng Maralita
of the case demand; and1awphi1 para sa Gawa Adhikan, was released at Dasmariñas, Cavite, her
hometown, but only after being made to sign a statement that she would
be a military asset.
4) DROPPING former President Gloria Macapagal-Arroyo as party-
respondent in the petition for writ of amparo;
After Lourdes’ release, the harassment, coming in the form of being tailed
on at least two occasions at different places, i.e., Dasmariñas, Cavite and
This case is hereby REMANDED to the Regional Trial Court of La Trinidad, Benguet,
Baclaran in Pasay City, by motorcycle-riding men in bonnets, continued;
Branch 63 for continuation of proceedings in Special Proceeding No. 08-AMP-0001
for the purposes of monitoring compliance with the above directives and
determining whether, in the light of any recent reports or recommendations, there 2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez
would already be sufficient evidence to hold any of the public respondents (P/Insp. Gomez), then sub-station commander of Bagong Bayan,
responsible, or, at least, accountable. After making such determination, the trial Dasmariñas, Cavite, kept sending text messages to Lourdes’ daughter,
court shall submit its own report and recommendation to this Court for final action. Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking her
The trial court will continue to have jurisdiction over this case in order to accomplish questions about Karapatan, an alliance of human rights organizations. He,
its tasks under this decision; however, failed to make an investigation even after Lourdes’ disappearance
had been made known to him;
Accordingly, the public respondents shall remain personally impleaded in this
petition to answer for any responsibilities and/or accountabilities they may have 3. A week after Lourdes’ release, another daughter, Jean R. Apruebo
incurred during their incumbencies. (Jean), was constrained to leave their house because of the presence of
men watching them;
No pronouncement as to costs.
4. Lourdes has filed with the Office of the Ombudsman a criminal complaint Commanding General of the PAF, with information to all concerned units, to
for kidnapping and arbitrary detention and administrative complaint for conduct an investigation to establish the circumstances behind the
gross abuse of authority and grave misconduct against Capt. Angelo disappearance and the reappearance of Lourdes insofar as the involvement
Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana (Santana) of alleged personnel/unit is concerned. The Provost Marshall General and
and a certain Jonathan, c/o Headquarters 301st AISS, Fernando Air Base the Office of the Judge Advocate General (JAGO), AFP, also undertook a
and Maj. Sy/Reyes with address at No. 09 Amsterdam Ext., Merville Subd., parallel action.
Parañaque City, but nothing has happened; and the threats and
harassment incidents have been reported to the Dasmariñas municipal and
Gen. Esperon manifested his resolve to provide the CA with material
Cavite provincial police stations, but nothing eventful resulted from their
results of the investigation; to continue with the probe on the alleged
respective investigations.
abduction of Lourdes and to bring those responsible, including military
personnel, to the bar of justice when warranted by the findings and the
Two of the four witnesses to Lourdes’ abduction went into hiding after competent evidence that may be gathered in the investigation process by
being visited by government agents in civilian clothes; and those mandated to look into the matter;5

5. Karapatan conducted an investigation on the incidents. The investigation 2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered
would indicate that men belonging to the Armed Forces of the Philippines upon receiving a copy of the petition is on-going vis-à-vis Lourdes’
(AFP), namely Capt. Cuaresma of the Philippine Air Force (PAF), Alfaro, abduction, and that a background verification with the PNP Personnel
Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Accounting and Information System disclosed that the names Santana,
Lourdes; that unknown to the abductors, Lourdes was able to pilfer a Alfaro, Cuaresma and one Jonathan do not appear in the police personnel
"mission order" which was addressed to CA Ruben Alfaro and signed by records, although the PNP files carry the name of Darwin Reyes Y. Muga.
Capt. Cuaresma of the PAF.
Per the initial investigation report of the Dasmariñas municipal police
The petition prayed that a writ of amparo issue, ordering the individual respondents station, P/Dir. Gen. Razon disclosed, Lourdes was abducted by six armed
to desist from performing any threatening act against the security of the petitioners men in the afternoon of April 3, 2007 and dragged aboard a Toyota Revo
and for the Office of the Ombudsman (OMB) to immediately file an information for with plate number XRR 428, which plate was issued for a Mitsubishi van to
kidnapping qualified with the aggravating circumstance of gender of the offended AK Cottage Industry with address at 9 Amsterdam St., Merville Subd.,
party. It also prayed for damages and for respondents to produce documents Parañaque City. The person residing in the apartment on that given
submitted to any of them on the case of Lourdes. address is one Darius/Erwin See @ Darius Reyes allegedly working, per the
latter’s house helper, in Camp Aguinaldo.
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen. Hermogenes
Esperon, then Armed Forces of the Philippines (AFP) Chief of Staff, Police Director- P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never
General (P/Dir. Gen.) Avelino Razon, then Philippine National Police (PNP) Chief, contacted nor coordinated with the local police or other investigating units
Police Superintendent (P/Supt.) Roquero of the Cavite Police Provincial Office, Police of the PNP after her release, although she is in the best position to
Inspector (P/Insp.) Gomez, now retired, and the OMB (answering respondents, establish the identity of her abductors and/or provide positive description
collectively) filed, through the Office of the Solicitor General (OSG), a joint return through composite sketching. Nonetheless, he manifested that the PNP is
on the writ specifically denying the material inculpatory averments against them. ready to assist and protect the petitioners and the key witnesses from
The OSG also denied the allegations against the following impleaded persons, threats, harassments and intimidation from whatever source and, at the
namely: Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, for lack of knowledge same time, to assist the Court in the implementation of its
or information sufficient to form a belief as to the allegations’ truth. And by way of orders.61avvphi1
general affirmative defenses, answering respondents interposed the following
defenses: (1) the President may not be sued during her incumbency; and (2) the
3. P/Supt. Roquero – stated conducting, upon receipt of Lourdes’
petition is incomplete, as it fails to indicate the matters required by Sec. 5(d) and
complaint, an investigation and submitting the corresponding report to the
(e) of the Amparo Rule.4
PNP Calabarzon, observing that neither Lourdes nor her relatives provided
the police with relevant information;
Attached to the return were the affidavits of the following, among other public
officials, containing their respective affirmative defenses and/or statements of what
4. P/Insp. Gomez – alleged that Lourdes, her kin and witnesses refused to
they had undertaken or committed to undertake regarding the claimed
cooperate with the investigating Cavite PNP; and
disappearance of Lourdes and the harassments made to bear on her and her
daughters:
5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for
violation of Articles 267 and 124, or kidnapping and arbitrary detention,
1. Gen. Esperon – attested that, pursuant to a directive of then Secretary
respectively, have been filed with, and are under preliminary investigation
of National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the
by the OMB against those believed to be involved in Lourdes’ kidnapping;
that upon receipt of the petition for a writ of amparo, proper coordination Petitioners first take issue on the President’s purported lack of immunity from suit
was made with the Office of the Deputy Ombudsman for the Military and during her term of office. The 1987 Constitution, so they claim, has removed such
other Law Enforcement Offices (MOLEO) where the subject criminal and immunity heretofore enjoyed by the chief executive under the 1935 and 1973
administrative complaints were filed. Constitutions.

Commenting on the return, petitioners pointed out that the return was no more Petitioners are mistaken. The presidential immunity from suit remains preserved
than a general denial of averments in the petition. They, thus, pleaded to be under our system of government, albeit not expressly reserved in the present
allowed to present evidence ex parte against the President, Santana, Alfaro, Capt. constitution. Addressing a concern of his co-members in the 1986 Constitutional
Cuaresma, Darwin Sy, and Jonathan. And with leave of court, they also asked to Commission on the absence of an express provision on the matter, Fr. Joaquin
serve notice of the petition through publication, owing to their failure to secure the Bernas, S.J. observed that it was already understood in jurisprudence that the
current address of the latter five and thus submit, as the CA required, proof of President may not be sued during his or her tenure.9 The Court subsequently made
service of the petition on them. it abundantly clear in David v. Macapagal-Arroyo, a case likewise resolved under the
umbrella of the 1987 Constitution, that indeed the President enjoys immunity during
her incumbency, and why this must be so:
The hearing started on November 13, 2007.7 In that setting, petitioners’ counsel
prayed for the issuance of a temporary protection order (TPO) against the
answering respondents on the basis of the allegations in the petition. At the hearing Settled is the doctrine that the President, during his tenure of office or actual
of November 20, 2007, the CA granted petitioners’ motion that the petition and writ incumbency, may not be sued in any civil or criminal case, and there is no need to
be served by the court’s process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. provide for it in the Constitution or law. It will degrade the dignity of the high office
Cuaresma, and Jonathan. of the President, the Head of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the
The legal skirmishes that followed over the propriety of excluding President Arroyo
performance of his official duties and functions. Unlike the legislative and judicial
from the petition, petitioners’ motions for service by publication, and the issuance of
branch, only one constitutes the executive branch and anything which impairs his
a TPO are not of decisive pertinence in this recital. The bottom line is that, by
usefulness in the discharge of the many great and important duties imposed upon
separate resolutions, the CA dropped the President as respondent in the case;
him by the Constitution necessarily impairs the operation of the Government. 10 x x x
denied the motion for a TPO for the court’s want of authority to issue it in the tenor
sought by petitioners; and effectively denied the motion for notice by publication
owing to petitioners’ failure to submit the affidavit required under Sec. 17, Rule 14 And lest it be overlooked, the petition is simply bereft of any allegation as to what
of the Rules of Court.8 specific presidential act or omission violated or threatened to violate petitioners’
protected rights.
After due proceedings, the CA rendered, on July 31, 2008, its partial judgment,
subject of this review, disposing of the petition but only insofar as the answering This brings us to the correctness of the assailed dismissal of the petition with
respondents were concerned. The fallo of the CA decision reads as follows: respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and
the OMB.
WHEREFORE, premises considered, partial judgment is hereby
rendered DISMISSING the instant petition with respect to respondent Gen. None of the four individual respondents immediately referred to above has been
Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/Sr. implicated as being connected to, let alone as being behind, the alleged abduction
Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman. and harassment of petitioner Lourdes. Their names were not even mentioned in
Lourdes’ Sinumpaang Salaysay11 of April 2007. The same goes for the
respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang Salaysay of
Nevertheless, in order that petitioners’ complaint will not end up as another
Jean12 and Mary Joy.13
unsolved case, the heads of the Armed Forces of the Philippines and the Philippine
National Police are directed to ensure that the investigations already commenced
are diligently pursued to bring the perpetrators to justice. The Chief of Staff of the As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the
Armed Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed to case on the theory that they, as commanders, were responsible for the unlawful
regularly update petitioners and this Court on the status of their investigation. acts allegedly committed by their subordinates against petitioners. To the appellate
court, "the privilege of the writ of amparo must be denied as against Gen. Esperon
and P/Dir. Gen. Razon for the simple reason that petitioners have not presented
SO ORDERED.
evidence showing that those who allegedly abducted and illegally detained Lourdes
and later threatened her and her family were, in fact, members of the military or
In this recourse, petitioners formulate the issue for resolution in the following wise: the police force." The two generals, the CA’s holding broadly hinted, would have
been accountable for the abduction and threats if the actual malefactors were
WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition members of the AFP or PNP.
and dropping President Gloria Macapagal Arroyo as party respondent.
As regards the three other answering respondents, they were impleaded because liability requiring substantial evidence that will require full and exhaustive
they allegedly had not exerted the required extraordinary diligence in investigating proceedings."23 Of the same tenor, and by way of expounding on the nature and
and satisfactorily resolving Lourdes’ disappearance or bringing to justice the actual role of amparo, is what the Court said in Razon v. Tagitis:
perpetrators of what amounted to a criminal act, albeit there were allegations
against P/Insp. Gomez of acts constituting threats against Mary Joy.
It does not determine guilt nor pinpoint criminal culpability for the disappearance
[threats thereof or extra-judicial killings]; it determines responsibility, or at least
While in a qualified sense tenable, the dismissal by the CA of the case as against accountability, for the enforced disappearance [threats thereof or extra-judicial
Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of killings] for purposes of imposing the appropriate remedies to address the
the stated rationale underpinning the assailed decision vis-à-vis the two generals, disappearance [or extra-judicial killings].
i.e., command responsibility. The Court assumes the latter stance owing to the fact
that command responsibility, as a concept defined, developed, and applied under
xxxx
international law, has little, if at all, bearing in amparo proceedings.

As the law now stands, extra-judicial killings and enforced disappearances in this
The evolution of the command responsibility doctrine finds its context in the
jurisdiction are not crimes penalized separately from the component criminal acts
development of laws of war and armed combats. According to Fr. Bernas,
undertaken to carry out these killings and enforced disappearances and are now
"command responsibility," in its simplest terms, means the "responsibility of
penalized under the Revised Penal Code and special laws. The simple reason is that
commanders for crimes committed by subordinate members of the armed forces or
the Legislature has not spoken on the matter; the determination of what acts are
other persons subject to their control in international wars or domestic conflict." 14 In
criminal x x x are matters of substantive law that only the Legislature has the power
this sense, command responsibility is properly a form of criminal complicity. The
to enact.24 x x x
Hague Conventions of 1907 adopted the doctrine of command
responsibility,15foreshadowing the present-day precept of holding a superior
accountable for the atrocities committed by his subordinates should he be remiss in If command responsibility were to be invoked and applied to these proceedings, it
his duty of control over them. As then formulated, command responsibility is "an should, at most, be only to determine the author who, at the first instance, is
omission mode of individual criminal liability," whereby the superior is made accountable for, and has the duty to address, the disappearance and harassments
responsible for crimes committed by his subordinates for failing to prevent or complained of, so as to enable the Court to devise remedial measures that may be
punish the perpetrators16 (as opposed to crimes he ordered). appropriate under the premises to protect rights covered by the writ of amparo. As
intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to
The doctrine has recently been codified in the Rome Statute 17 of the International
administrative disciplinary proceedings under existing administrative issuances, if
Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute
there be any.
imposes individual responsibility on military commanders for crimes committed by
forces under their control. The country is, however, not yet formally bound by the
terms and provisions embodied in this treaty-statute, since the Senate has yet to Petitioners, as the CA has declared, have not adduced substantial evidence pointing
extend concurrence in its ratification.18 to government involvement in the disappearance of Lourdes. To a concrete point,
petitioners have not shown that the actual perpetrators of the abduction and the
harassments that followed formally or informally formed part of either the military
While there are several pending bills on command responsibility, 19 there is still no
or the police chain of command. A preliminary police investigation report, however,
Philippine law that provides for criminal liability under that doctrine. 20
would tend to show a link, however hazy, between the license plate (XRR 428) of
the vehicle allegedly used in the abduction of Lourdes and the address of Darwin
It may plausibly be contended that command responsibility, as legal basis to hold Reyes/Sy, who was alleged to be working in Camp Aguinaldo. 25 Then, too, there
military/police commanders liable for extra-legal killings, enforced disappearances, were affidavits and testimonies on events that transpired which, if taken together,
or threats, may be made applicable to this jurisdiction on the theory that the logically point to military involvement in the alleged disappearance of Lourdes, such
command responsibility doctrine now constitutes a principle of international law or as, but not limited to, her abduction in broad daylight, her being forcibly dragged to
customary international law in accordance with the incorporation clause of the a vehicle blindfolded and then being brought to a place where the sounds of planes
Constitution.21 Still, it would be inappropriate to apply to these proceedings the taking off and landing could be heard. Mention may also be made of the fact that
doctrine of command responsibility, as the CA seemed to have done, as a form of Lourdes was asked about her membership in the Communist Party and of being
criminal complicity through omission, for individual respondents’ criminal liability, if released when she agreed to become an "asset."
there be any, is beyond the reach of amparo. In other words, the Court does not
rule in such proceedings on any issue of criminal culpability, even if incidentally a
Still and all, the identities and links to the AFP or the PNP of the alleged abductors,
crime or an infraction of an administrative rule may have been committed. As the
namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to be
Court stressed in Secretary of National Defense v. Manalo (Manalo), 22 the writ of
established.
amparo was conceived to provide expeditious and effective procedural relief against
violations or threats of violation of the basic rights to life, liberty, and security of
persons; the corresponding amparo suit, however, "is not an action to determine Based on the separate sworn statements of Maj. Paul Ciano 26 and Technical
criminal guilt requiring proof beyond reasonable doubt x x x or administrative Sergeant John N. Romano,27 officer-in-charge and a staff of the 301st AISS,
respectively, none of the alleged abductors of Lourdes belonged to the 301st AISS investigators the necessary support. As of this date, however, the investigations
based in San Fernando Air Base. Neither were they members of any unit of the have yet to be concluded with some definite findings and recommendation.
Philippine Air Force, per the certification 28 of Col. Raul Dimatactac, Air Force
Adjutant. And as stated in the challenged CA decision, a verification with the
As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied
Personnel Accounting and Information System of the PNP yielded the information
that they have no direct or indirect hand in the alleged enforced disappearance of
that, except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e.,
Lourdes and the threats against her daughters. As police officers, though, theirs was
Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP.
the duty to thoroughly investigate the abduction of Lourdes, a duty that would
Petitioners, when given the opportunity to identify Police Officer 1 Darwin Reyes y
include looking into the cause, manner, and like details of the disappearance;
Muga, made no effort to confirm if he was the same Maj. Darwin Reyes a.k.a.
identifying witnesses and obtaining statements from them; and following
Darwin Sy they were implicating in Lourdes’ abduction.
evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and
securing and preserving evidence related to the abduction and the threats that may
Petitioners, to be sure, have not successfully controverted answering respondents’ aid in the prosecution of the person/s responsible. As we said in Manalo,33 the right
documentary evidence, adduced to debunk the former’s allegations directly linking to security, as a guarantee of protection by the government, is breached by the
Lourdes’ abductors and tormentors to the military or the police establishment. We superficial and one-sided––hence, ineffective––investigation by the military or the
note, in fact, that Lourdes, when queried on cross-examination, expressed the belief police of reported cases under their jurisdiction. As found by the CA, the local police
that Sy/Reyes was an NBI agent.29 The Court is, of course, aware of what was stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a
referred to in Razon30 as the "evidentiary difficulties" presented by the nature of, preliminary fact-finding on petitioners’ complaint. They could not, however, make
and encountered by petitioners in, enforced disappearance cases. But it is precisely any headway, owing to what was perceived to be the refusal of Lourdes, her family,
for this reason that the Court should take care too that no wrong message is sent, and her witnesses to cooperate. Petitioners’ counsel, Atty. Rex J.M.A. Fernandez,
lest one conclude that any kind or degree of evidence, even the outlandish, would provided a plausible explanation for his clients and their witnesses’ attitude, "[They]
suffice to secure amparo remedies and protection. do not trust the government agencies to protect them." 34 The difficulty arising from
a situation where the party whose complicity in extra-judicial killing or enforced
disappearance, as the case may be, is alleged to be the same party who
Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the
investigates it is understandable, though.
minimum evidentiary substantiation requirement and norm to support a cause of
action under the Rule, thus:
The seeming reluctance on the part of the Rubricos or their witnesses to cooperate
ought not to pose a hindrance to the police in pursuing, on its own initiative, the
Sec. 17. Burden of Proof and Standard of Diligence Required.—The parties shall
investigation in question to its natural end. To repeat what the Court said in Manalo,
establish their claims by substantial evidence.
the right to security of persons is a guarantee of the protection of one’s right by the
government. And this protection includes conducting effective investigations of
xxxx extra-legal killings, enforced disappearances, or threats of the same kind. The
nature and importance of an investigation are captured in the Velasquez
Sec. 18. Judgment.—x x x If the allegations in the petition are proven by substantial Rodriguez case,35 in which the Inter-American Court of Human Rights pronounced:
evidence, the court shall grant the privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege shall be denied. (Emphasis added.) [The duty to investigate] must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
Substantial evidence is more than a mere imputation of wrongdoing or violation that objective and be assumed by the State as its own legal duty, not a step taken by
would warrant a finding of liability against the person charged;31 it is more than a private interests that depends upon the initiative of the victim or his family
scintilla of evidence. It means such amount of relevant evidence which a reasonable or upon offer of proof, without an effective search for the truth by the government.
mind might accept as adequate to support a conclusion, even if other equally (Emphasis added.)
reasonable minds might opine otherwise.32 Per the CA’s evaluation of their evidence,
consisting of the testimonies and affidavits of the three Rubrico women and five This brings us to Mary Joy’s charge of having been harassed by respondent P/Insp.
other individuals, petitioners have not satisfactorily hurdled the evidentiary bar Gomez. With the view we take of this incident, there is nothing concrete to support
required of and assigned to them under the Amparo Rule. In a very real sense, the the charge, save for Mary Joy’s bare allegations of harassment. We cite with
burden of evidence never even shifted to answering respondents. The Court finds no approval the following self-explanatory excerpt from the appealed CA decision:
compelling reason to disturb the appellate court’s determination of the answering
respondents’ role in the alleged enforced disappearance of petitioner Lourdes and
In fact, during her cross-examination, when asked what specific act or threat P/Sr.
the threats to her family’s security.
Gomez (ret) committed against her or her mother and sister, Mary Joy replied
"None …"36
Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon and
P/Dir. Gen. Razon, per their separate affidavits, lost no time, upon their receipt of
Similarly, there appears to be no basis for petitioners’ allegations about the OMB
the order to make a return on the writ, in issuing directives to the concerned units
failing to act on their complaint against those who allegedly abducted and illegally
in their respective commands for a thorough probe of the case and in providing the
detained Lourdes. Contrary to petitioners’ contention, the OMB has taken the police connection has not been adequately proved either by identifying the
necessary appropriate action on said complaint. As culled from the affidavit 37 of the malefactors as components of the AFP or PNP; or in case identification is not
Deputy Overall Ombudsman and the joint affidavits 38 of the designated possible, by showing that they acted with the direct or indirect acquiescence of the
investigators, all dated November 7, 2007, the OMB had, on the basis of said government. For this reason, the Court is unable to ascribe the authorship of and
complaint, commenced criminal39 and administrative40 proceedings, docketed as responsibility for the alleged enforced disappearance of Lourdes and the harassment
OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma, and threats on her daughters to individual respondents. To this extent, the
Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission of dismissal of the case against them is correct and must, accordingly, be sustained.
counter-affidavits and verified position papers had been sent out.
Prescinding from the above considerations, the Court distinctly notes that the
The privilege of the writ of amparo, to reiterate, is a remedy available to victims of appealed decision veritably extended the privilege of the writ of amparo to
extra-judicial killings and enforced disappearances or threats of similar nature, petitioners when it granted what to us are amparo reliefs. Consider: the appellate
regardless of whether the perpetrator of the unlawful act or omission is a public court decreed, and rightly so, that the police and the military take specific measures
official or employee or a private individual. for the protection of petitioners’ right or threatened right to liberty or security. The
protection came in the form of directives specifically to Gen. Esperon and P/Dir.
Gen. Razon, requiring each of them (1) to ensure that the investigations already
At this juncture, it bears to state that petitioners have not provided the CA with the
commenced by the AFP and PNP units, respectively, under them on the complaints
correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and
of Lourdes and her daughters are being pursued with urgency to bring to justice the
Sy/Reyes. The mailed envelopes containing the petition for a writ of amparo
perpetrators of the acts complained of; and (2) to submit to the CA, copy furnished
individually addressed to each of them have all been returned unopened. And
the petitioners, a regular report on the progress and status of the investigations.
petitioners’ motion interposed before the appellate court for notice or service via
The directives obviously go to Gen. Esperon in his capacity as head of the AFP and,
publication has not been accompanied by supporting affidavits as required by the
in a sense, chief guarantor of order and security in the country. On the other hand,
Rules of Court. Accordingly, the appealed CA partial judgment––disposing of the
P/Dir. Gen. Razon is called upon to perform a duty pertaining to the PNP, a crime-
underlying petition for a writ of amparo without (1) pronouncement as to the
preventing, investigatory, and arresting institution.
accountability, or lack of it, of the four non-answering respondents or (2) outright
dismissal of the same petition as to them––hews to the prescription of Sec. 20 of
the Amparo Rule on archiving and reviving cases.41 Parenthetically, petitioners have As the CA, however, formulated its directives, no definitive time frame was set in its
also not furnished this Court with sufficient data as to where the afore-named decision for the completion of the investigation and the reportorial requirements. It
respondents may be served a copy of their petition for review. also failed to consider Gen. Esperon and P/Dir. Gen. Razon’s imminent compulsory
retirement from the military and police services, respectively. Accordingly, the CA
directives, as hereinafter redefined and amplified to fully enforce the amparo
Apart from the foregoing considerations, the petition did not allege ultimate facts as
remedies, are hereby given to, and shall be directly enforceable against, whoever
would link the OMB in any manner to the violation or threat of violation of the
sits as the commanding general of the AFP and the PNP.
petitioners’ rights to life, liberty, or personal security.

At this stage, two postulates and their implications need highlighting for a proper
The privilege of the writ of amparo is envisioned basically to protect and guarantee
disposition of this case.
the rights to life, liberty, and security of persons, free from fears and threats that
vitiate the quality of this life.42 It is an extraordinary writ conceptualized and
adopted in light of and in response to the prevalence of extra-legal killings and First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention
enforced disappearances.43 Accordingly, the remedy ought to be resorted to and rooted in the same acts and incidents leading to the filing of the subject amparo
granted judiciously, lest the ideal sought by the Amparo Rule be diluted and petition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The
undermined by the indiscriminate filing of amparo petitions for purposes less than usual initial steps to determine the existence of a prima facie case against the five
the desire to secure amparo reliefs and protection and/or on the basis of (5) impleaded individuals suspected to be actually involved in the detention of
unsubstantiated allegations. Lourdes have been set in motion. It must be pointed out, though, that the filing 44 of
the OMB complaint came before the effectivity of the Amparo Rule on October 24,
2007.
In their petition for a writ of amparo, petitioners asked, as their main prayer, that
the Court order the impleaded respondents "to immediately desist from doing any
acts that would threaten or seem to threaten the security of the Petitioners and to Second, Sec. 2245 of the Amparo Rule proscribes the filing of an amparo petition
desist from approaching Petitioners, x x x their residences and offices where they should a criminal action have, in the meanwhile, been commenced. The succeeding
are working under pain of contempt of [this] Court." Petitioners, however, failed to Sec. 23,46 on the other hand, provides that when the criminal suit is filed
adduce the threshold substantive evidence to establish the predicate facts to subsequent to a petition for amparo, the petition shall be consolidated with the
support their cause of action, i.e., the adverted harassments and threats to their criminal action where the Amparo Rule shall nonetheless govern the disposition of
life, liberty, or security, against responding respondents, as responsible for the the relief under the Rule. Under the terms of said Sec. 22, the present petition
disappearance and harassments complained of. This is not to say, however, that ought to have been dismissed at the outset. But as things stand, the outright
petitioners’ allegation on the fact of the abduction incident or harassment is dismissal of the petition by force of that section is no longer technically feasible in
necessarily contrived. The reality on the ground, however, is that the military or light of the interplay of the following factual mix: (1) the Court has, pursuant to
Sec. 647 of the Rule, already issued ex parte the writ of amparo; (2) the CA, after a Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one
summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and Jonathan; and submit certifications of this determination to the
(3) the complaint in OMB-P-C-O7-0602-E named as respondents only those believed OMB with copy furnished to petitioners, the CA, and this Court;
to be the actual abductors of Lourdes, while the instant petition impleaded, in
addition, those tasked to investigate the kidnapping and detention incidents and
(b) Pursue with extraordinary diligence the evidentiary leads
their superiors at the top. Yet, the acts and/or omissions subject of the criminal
relating to Maj. Darwin Sy and the Toyota Revo vehicle with Plate
complaint and the amparo petition are so linked as to call for the consolidation of
No. XRR 428; and
both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation.

(c) Prepare, with the assistance of petitioners and/or witnesses,


Given the above perspective and to fully apply the beneficial nature of the writ of
cartographic sketches of respondents Maj. Sy/Reyes, Jimmy
amparo as an inexpensive and effective tool to protect certain rights violated or
Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain
threatened to be violated, the Court hereby adjusts to a degree the literal
Jonathan to aid in positively identifying and locating them.
application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation
obtaining under the premises. 48 Towards this end, two things are at once indicated:
(1) the consolidation of the probe and fact-finding aspects of the instant petition The investigations shall be completed not later than six (6) months from receipt of
with the investigation of the criminal complaint before the OMB; and (2) the this Decision; and within thirty (30) days after completion of the investigations, the
incorporation in the same criminal complaint of the allegations in this petition Chief of Staff of the AFP and the Director-General of the PNP shall submit a full
bearing on the threats to the right to security. Withal, the OMB should be furnished report of the results of the investigations to the Court, the CA, the OMB, and
copies of the investigation reports to aid that body in its own investigation and petitioners.
eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy
access to all pertinent documents and evidence, if any, adduced before the CA. This case is accordingly referred back to the CA for the purpose of monitoring the
Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should be allowed, if investigations and the actions of the AFP and the PNP.
so minded, to amend her basic criminal complaint if the consolidation of cases is to
be fully effective.
Subject to the foregoing modifications, the Court AFFIRMS the partial judgment
dated July 31, 2008 of the CA.
WHEREFORE, the Court PARTIALLY GRANTS this petition for review and makes a
decision:
G.R. No. 191805 November 15, 2011

(1) Affirming the dropping of President Gloria Macapagal-Arroyo from the


petition for a writ of amparo; IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS
DATA IN FAVOR OF NORIEL H. RODRIGUEZ, NORIEL H.
RODRIGUEZ, Petitioner,
(2) Affirming the dismissal of the amparo case as against Gen. vs.
Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME
under the command responsibility principle, to attach accountability and VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA,
responsibility to them, as then AFP Chief of Staff and then PNP Chief, for P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL.
the alleged enforced disappearance of Lourdes and the ensuing REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG,
harassments allegedly committed against petitioners. The dismissal of the GEORGE PALACPAC under the name "HARRY," ANTONIO CRUZ, ALDWIN
petition with respect to the OMB is also affirmed for failure of the petition "BONG" PASICOLAN and VINCENT CALLAGAN,Respondents.
to allege ultimate facts as to make out a case against that body for the
enforced disappearance of Lourdes and the threats and harassment that
followed; and x------------------------x

(3) Directing the incumbent Chief of Staff, AFP, or his successor, and the G.R. No. 193160
incumbent Director-General of the PNP, or his successor, to ensure that the
investigations already commenced by their respective units on the alleged IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS
abduction of Lourdes Rubrico and the alleged harassments and threats she DATA IN FAVOR OF NORIEL H. RODRIGUEZ, POLICE DIR. GEN. JESUS A.
and her daughters were made to endure are pursued with extraordinary VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA, 1st LT.
diligence as required by Sec. 1749 of the Amparo Rule. They shall order RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA, ANTONIO C. CRUZ,
their subordinate officials, in particular, to do the following: ALDWIN C. PASICOLAN and VICENTE A. CALLAGAN, Petitioners,
vs.
(a) Determine based on records, past and present, the identities NORIEL H. RODRIGUEZ, Respondent.
and locations of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes,
DECISION Santos, Brig. Gen. De Vera, 1st Lt. Matutina and Lt. Col. Mina were officers of the
Philippine National Police (PNP). Cruz, Pasicolan and Callagan were Special
Investigators of the Commission on Human Rights (CHR) in Region II.
SERENO, J.:

Antecedent Facts
Before this Court are two consolidated cases, namely, (1) Petition for Partial Review
on Certiorari dated 20 April 2010 (G.R. No. 191805), and (2) Petition for Review on
Certiorari dated 19 August 2010 (G.R. No. 193160).1 Both Petitions assail the 12 Rodriguez claims that the military tagged KMP as an enemy of the State under the
April 2010 Decision of the Court of Appeals, the dispositive portion of which reads: Oplan Bantay Laya, making its members targets of extrajudicial killings and
enforced disappearances.2
WHEREFORE, the petition for writ of amparo and writ of habeas data is GRANTED.
On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel,
Cagayan onboard a tricycle driven by Hermie Antonio Carlos (Carlos), when four
Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Z.
men forcibly took him and forced him into a car. Inside the vehicle were several
Ochoa, PCSupt. Ameto G. Tolentino, PSSupt. Jude W. Santos, Col. Remigio M. De
men in civilian clothes, one of whom was holding a .45 caliber pistol. Subsequently,
Vera, Lt. Col. Laurence E. Mina and 1Lt. Ryan S. Matutina, or their replacements in
three more persons arrived, and one of them carried a gun at his side. Two men
their official posts if they have already vacated the same, are ORDERED to furnish
boarded the car, while the others rode on the tricycle.3
this Court within five (5) days from notice of this decision, official or unofficial
reports pertaining to petitioner – covering but not limited to intelligence reports,
operation reports and provost marshal reports prior to, during and subsequent to The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his
September 6, 2009 – made by the 5th Infantry Division, Philippine Army, its back and started punching him. The car travelled towards the direction of Sta.
branches and subsidiaries, including the 17th Infantry Battalion, Philippine Army. Teresita-Mission and moved around the area until about 2:00 a.m. During the drive,
the men forced Rodriguez to confess to being a member of the New People’s Army
(NPA), but he remained silent. The car then entered a place that appeared to be a
The above-named respondents are also DIRECTED to refrain from using the said
military camp. There were soldiers all over the area, and there was a banner with
reports in any transaction or operation of the military. Necessarily, the afore-named
the word "Bravo" written on it. Rodriguez later on learned that the camp belonged
respondents are ORDERED to expunge from the records of the military all
to the 17th Infantry Battalion of the Philippine Army.4
documents having any reference to petitioner.

Rodriguez was brought to a canteen, where six men confronted him, ordering him
Likewise, the afore-named respondents, as well as respondents Police Director
to confess to his membership in the NPA. Due to his exhaustion, he unintentionally
General Jesus Ame Versoza, Antonio Cruz, Aldwin Pasicolan and Vicente Callagan
fell asleep. As a result, the men hit him on the head to wake him up. After the
are DIRECTED to ensure that no further violation of petitioner’s rights to life, liberty
interrogation, two of the men guarded him, but did not allow him to sleep. 5
and security is committed against the latter or any member of his family.

In the morning of 7 September 2009, the men tied the hands of Rodriguez,
The petition is DISMISSED with respect to President Gloria Macapagal-Arroyo on
blindfolded him and made him board a vehicle. While they were in transit, the
account of her presidential immunity from suit. Similarly, the petition is DISMISSED
soldiers repeatedly hit him in the head and threatened to kill him. When the car
with respect to respondents Calog and George Palacpac or Harry for lack of merit.
stopped after about ten minutes, the soldiers brought him to a room, removed his
blindfold, and forced him to confess to being a member of the NPA. During the
Petitioner’s prayer for issuance of a temporary protection order and inspection order interrogation, the soldiers repeatedly hit him on the head. Thereafter, he was
is DENIED. detained inside the room for the entire day. The soldiers tied his stomach to
a papag, and gave him rice and viand. Fearing that the food might be poisoned, he
Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent in refused to eat anything. He slept on the papag while being tied to it at the waist.6
G.R. No. 193160. He is a member of Alyansa Dagiti Mannalon Iti Cagayan
(Kagimungan), a peasant organization affiliated with Kilusang Magbubukid ng On 8 September 2009, the men forced Rodriguez into a vehicle, which brought
Pilipinas (KMP). them to Bugey and Mission. While passing houses along the way, the men asked
him if his contacts lived in those houses. When he failed to answer, a soldier pointed
On the other hand, Gloria Macapagal-Arroyo (former President Arroyo), Police a gun to his head and threatened to kill him and his family. Because he remained
Director General (PDG.) Jesus A. Verzosa, Police Senior Superintendent (P/SSupt.) silent, the soldiers beat him and tied him up. The vehicle returned to the military
Jude W. Santos, Brigadier General (Brig. Gen.) Remegio M. De Vera, First camp at past 1:00 p.m., where he was again subjected to tactical interrogation
Lieutenant (1st Lt.) Ryan S. Matutina, Lieutenant Colonel (Lt. Col.) Laurence E. about the location of an NPA camp and his alleged NPA comrades. He suffered
Mina, Antonio C. Cruz (Cruz), Aldwin C. Pasicolan (Pasicolan) and Vicente A. incessant mauling every time he failed to answer. 7
Callagan (Callagan) are respondents in G.R. No. 191805 and petitioners in G.R. No.
193160. At the time the events relevant to the present Petitions occurred, former
President Arroyo was the President of the Philippines. PDG. Verzosa, P/SSupt.
At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made In the morning of 16 September 2009, the soldiers and Rodriguez started their
him their guide on their way to an NPA camp in Birao. Accompanying them was a descent. When they stopped, the soldiers took his photograph and asked him to
man named Harry, who, according to the soldiers, was an NPA member who had name the location of the NPA camp. Thereafter, they all returned to the military
surrendered to the military. Harry pointed to Rodriguez and called him a member of camp. The soldiers asked him to take a bath and wear a white polo shirt handed to
the NPA. He also heard Harry tell the soldiers that the latter knew the area well and him. He was then brought to the Enrile Medical Center, where Dr. Juliet Ramil (Dr.
was acquainted with a man named Elvis. The soldiers loaded Rodriguez into a Ramil) examined him.14 When the doctor asked him why he had bruises and
military truck and drove to Tabbak, Bugey. While he was walking with the soldiers, contusions, he lied and told her that he sustained them when he slipped, as he
he noticed a soldier with the name tag "Matutina," who appeared to be an official noticed a soldier observing him. Dr. Ramil’s medical certificate indicated that he
because the other soldiers addressed him as "sir." 8 suffered from four hematomas in the epigastric area, chest and sternum. 15

Upon reaching Birao on foot, the soldiers looked for and was able to locate a certain Back at the camp, the soldiers let Rodriguez eat with several military officials and
Elvis and told him that Rodriguez had identified his whereabouts location. The took pictures of him while he was eating with them. They also asked him to point to
soldiers forced Rodriguez to convince Elvis to disclose the location of the NPA camp. a map in front of him and again took his photograph. Later, they told him that he
They brought the two to the mountains, where both were threatened with death. would finally see his mother. 16
When the soldiers punched Elvis, Rodriguez told them that he would reveal the
location of the NPA camp if they let Elvis go home. They finally released Elvis
Rodriguez was brought to another military camp, where he was ordered to sign a
around 3:00 p.m. that day. The soldiers and Rodriguez spent the next three nights
piece of paper stating that he was a surrenderee and was never beaten up. Scared
in the mountains.9
and desperate to end his ordeal, he signed the paper and was warned not to report
anything to the media.17
On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify
the location of the NPA camp. He was blindfolded and warned to get ready because
Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take
they would beat him up again in the military camp. Upon arrival therein, they
a bath. They gave him a pair of jeans and perfume. While he was having breakfast,
brought him to the same room where he had first been detained, and two soldiers
the two soldiers guarding him repeatedly reminded him not to disclose to the media
mauled him again. They repeatedly punched and kicked him. In the afternoon, they
his experience in the camp and to say instead that he had surrendered to the
let him rest and gave him an Alaxan tablet. Thereafter, he fell asleep due to over-
military.18
fatigue and extreme body pain. The soldiers, however, hit him again. After giving
him a pen and a piece of paper, they ordered him to write down his request for rice
from the people. When he refused, the soldiers maltreated him once more. 10 At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived
surrounded by several men. His mother, Wilma Rodriguez (Wilma), talked to Lt. Col.
Mina. Rodriguez heard one of the soldiers tell Wilma that he had surrendered to the
On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring
military and had long been its asset. His brother, Rodel Rodriguez (Rodel), informed
that he had surrendered in an encounter in Cumao, and
him that the men accompanying them were from the CHR, namely, Pasicolan, Cruz
and Callagan. Upon seeing Rodriguez, Cruz instructed him to lift up his shirt, and
that the soldiers did not shoot him because he became a military asset in May. one of the CHR employees took photographs of his bruises.19
When he refused to sign the document, he received another beating. Thus, he was
compelled to sign, but did so using a different signature to show that he was merely
A soldier tried to convince Wilma to let Rodriguez stay in the camp for another two
coerced.11
weeks to supposedly prevent the NPA from taking revenge on him. Respondent
Calog also approached Rodriguez and Rodel and asked them to become military
The soldiers showed Rodriguez photographs of different persons and asked him if he assets. Rodel refused and insisted that they take Rodriguez home to Manila. Again,
knew the men appearing therein. When he told them that he did not recognize the the soldiers reminded them to refrain from facing the media. The soldiers also told
individuals on the photos, the soldiers instructed him to write down the name of his them that the latter will be taken to the Tuguegarao Airport and guarded until they
school and organization, but he declined. The soldiers then wrote something on the reached home.20
paper, making it appear that he was the one who had written it, and forced him to
sign the document. The soldiers took photographs of him while he was signing.
Rodriguez and his family missed their flight. Subsequently, the soldiers
Afterwards, the soldiers forced him down, held his hands, and sat on his feet. He did
accompanied them to the CHR office, where Rodriguez was made to sign an affidavit
not only receive another beating, but was also electrocuted. The torture lasted for
stating that he was neither abducted nor tortured. Afraid and desperate to return
about an hour.12
home, he was forced to sign the document. Cruz advised him not to file a case
against his abductors because they had already freed him. The CHR personnel then
At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military led him and his family to the CHR Toyota Tamaraw FX service vehicle. He noticed
operation in the mountains, where he saw Matutina again. They all spent the night that a vehicle with soldiers on board followed them.21
there.13
The Tamaraw FX pulled over and respondent 1st Lt. Matutina boarded the vehicle.
Upon reaching a mall in Isabela, Rodriguez, his family, Callagan, 1st Lt. Matutina
and two other soldiers transferred to an orange Toyota Revo with plate number On 15 December 2009, we granted the respective writs after finding that the
WTG 579. Upon reaching the boundary of Nueva Ecija and Nueva Viscaya, 1st Lt. petition sufficiently alleged that Rodriguez had been abducted, tortured and later
Matutina alighted and called Rodriguez to a diner. A certain Alan approached released by members of the 17th Infantry Battalion of the Philippine Army. 28 We
Rodriguez and handed him a cellphone with a SIM card. The latter and his family likewise ordered respondents therein to file a verified return on the writs on or
then left and resumed their journey back home. 22 before 22 December 2009 and to comment on the petition on or before 4 January
2010.29 Finally, we directed the Court of Appeals to hear the petition on 4 January
2010 and decide on the case within 10 days after its submission for decision. 30
Rodriguez reached his house in Sta. Ana, Manila at 3:00 a.m. on 18 September
2010. Callagan and two soldiers went inside the house, and took photographs and a
video footage thereof. The soldiers explained that the photos and videos would During the initial hearing on 4 January 2010, the Court of Appeals required the
serve as evidence of the fact that Rodriguez and his family were able to arrive home parties to submit affidavits and other pieces of evidence at the next scheduled
safely. Despite Rodriguez’s efforts to confront the soldiers about their acts, they still hearing on 27 January 2010.31
continued and only left thirty minutes later.23
On 8 January 2010, respondents therein, through the Office of the Solicitor General
On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the (OSG), filed their Return of the Writ, which was likewise considered as their
International Committee on Torture and Rehabilitation, examined Rodriguez and comment on the petition.32 In their Return, respondents therein alleged that
issued a Medical Certificate stating that the latter had been a victim of torture. 24 Rodriguez had surrendered to the military on 28 May 2009 after he had been put
under surveillance and identified as "Ka Pepito" by former rebels. 33 According to his
military handlers, Corporal (Cpl.) Rodel
Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel
Robles, noticed that several suspicious-looking men followed them at the Metro Rail
Transit (MRT), in the streets and on a jeepney. 25 B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the NPA
operating in Cagayan Valley.34 Wanting to bolt from the NPA, he told Cpl. Cabaccan
and Cpl. Navarro that he would help the military in exchange for his protection. 35
On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ of
Amparo and Petition for the Writ of Habeas Data with Prayers for Protection Orders,
Inspection of Place, and Production of Documents and Personal Properties dated 2 Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign an Oath
December 2009.26 The petition was filed against former President Arroyo, Gen. of Loyalty and an Agent’s Agreement/Contract, showing his willingness to return to
Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj. Gen.) Nestor Z. Ochoa, society and become a military asset.36 Since then, he acted as a double agent,
P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1st Lt. Matutina, Calog, George returning to the NPA to gather information.37 However, he feared that his NPA
Palacpac (Palacpac), Cruz, Pasicolan and Callagan. The petition prayed for the comrades were beginning to suspect him of being an infiltrator. 38 Thus, with his
following reliefs: knowledge and consent, the soldiers planned to stage a sham abduction to erase
any suspicion about him being a double agent. 39 Hence, the abduction subject of the
instant petition was conducted.40
a. The issuance of the writ of amparo ordering respondents to desist from
violating Rodriguez’s right to life, liberty and security.
Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ
dated 15 January 2010,41 alleging that they had exercised extraordinary diligence in
b. The issuance of an order to enjoin respondents from doing harm to or
locating Rodriguez, facilitating his safe turnover to his family and securing their
approaching Rodriguez, his family and his witnesses.
journey back home to Manila. More specifically, they alleged that, on 16 September
2009, after Wilma sought their assistance in ascertaining the whereabouts of her
c. Allowing the inspection of the detention areas of the Headquarters of son, Cruz made phone calls to the military and law enforcement agencies to
Bravo Co., 5th Infantry Division, Maguing, Gonzaga, Cagayan and another determine his location.42 Cruz was able to speak with Lt. Col. Mina, who confirmed
place near where Rodriguez was brought. that Rodriguez was in their custody.43 This information was transmitted to CHR
Regional Director Atty. Jimmy P. Baliga. He, in turn, ordered Cruz, Pasicolan and
d. Ordering respondents to produce documents submitted to them Callagan to accompany Wilma to the 17th Infantry Division.44
regarding any report on Rodriguez, including operation reports and provost
marshall reports of the 5th Infantry Division, the Special Operations Group When the CHR officers, along with Wilma and Rodel, arrived at the 17th Infantry
of the Armed Forces of the Philippines (AFP), prior to, on and subsequent Battalion at Masin, Alcala, Cagayan, Brigade Commander Col. de Vera and Battalion
to 6 September 2009.1âwphi1 Commander Lt. Col. Mina alleged that Rodriguez had become one of their assets, as
evidenced by the Summary on the Surrender of Noriel Rodriguez and the latter’s
e. Ordering records pertinent or in any way connected to Rodriguez, which Contract as Agent.45 The CHR officers observed his casual and cordial demeanor
are in the custody of respondents, to be expunged, disabused, and forever with the soldiers.46 In any case, Cruz asked him to raise his shirt to see if he had
barred from being used.27 been subjected to any maltreatment. Cruz and Pasicolan did not see any traces of
torture. Thereafter, Rodriguez was released to his family, and they were made to
sign a certification to this effect. During the signing of the document, herein CHR
officers did not witness any threat, intimidation or force employed against Rodriguez Has not presented any adequate and competent evidence, must less substantial
or his family. 47 evidence, to establish his claim that petitioners have violated, are violating or
threatening with violation his rights to life, liberty and security, as well as his right
to privacy; hence, he is not entitled to the privilege of the writs of amparo and
During their journey back to the home of Rodriguez, the CHR officers observed that
habeas data and their corresponding interim reliefs (i.e., inspection order,
he was very much at ease with his military escorts, especially with 1st Lt.
production order and temporary protection order) provided under the Rule on the
Matutina.48 Neither was there any force or intimidation when the soldiers took
Writ of Amparo and the Rule on the Writ of Habeas Data.56
pictures of his house, as the taking of photographs was performed with Wilma’s
consent.49
In ascertaining whether the Court of Appeals committed reversible error in issuing
its assailed Decision and Resolution, the following issues must be resolved:
During the hearing on 27 January 2010, the parties agreed to file additional
affidavits and position papers and to have the case considered submitted for
decision after the filing of these pleadings.50 I. Whether the interim reliefs prayed for by Rodriguez may be granted after
the writs of amparo and habeas data have already been issued in his favor.
On 12 April 2010, the Court of Appeals rendered its assailed
Decision.51 Subsequently, on 28 April 2010, respondents therein filed their Motion II. Whether former President Arroyo should be dropped as a respondent on
for Reconsideration.52 Before the Court of Appeals could resolve this Motion for the basis of the presidential immunity from suit.
Reconsideration, Rodriguez filed the instant Petition for Partial Review on Certiorari
(G.R. No. 191805), raising the following assignment of errors:
III. Whether the doctrine of command responsibility can be used in amparo
and habeas data cases.
a. The Court of Appeals erred in not granting the Interim Relief for
temporary protection order.
IV. Whether the rights to life, liberty and property of Rodriguez were
violated or threatened by respondents in G.R. No. 191805.
b. The Court of Appeals erred in saying: "(H)owever, given the nature of
the writ of amparo, which has the effect of enjoining the commission by
At the outset, it must be emphasized that the writs of amparo and habeas data
respondents of violation to petitioner’s right to life, liberty and security, the
were promulgated to ensure the protection of the people’s rights to life, liberty and
safety of petitioner is ensured with the issuance of the writ, even in the
security.57 The rules on these writs were issued in light of the alarming prevalence
absence of an order preventing respondent from approaching petitioner."
of extrajudicial killings and enforced disappearances.58 The Rule on the Writ of
Amparo took effect on 24 October 2007,59 and the Rule on the Writ of Habeas Data
c. The Court of Appeals erred in not finding that respondent Gloria on 2 February 2008.60
Macapagal Arroyo had command responsibility.53
The writ of amparo is an extraordinary and independent remedy that provides rapid
On the other hand, respondents therein, in their Comment dated 30 July 2010, judicial relief, as it partakes of a summary proceeding that requires only substantial
averred: evidence to make the appropriate interim and permanent reliefs available to the
petitioner.61 It is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of evidence, or
a. The Court of Appeals properly dropped then President Gloria Macapagal
administrative responsibility requiring substantial evidence that will require full and
Arroyo as a party-respondent, as she may not be sued in any case during
exhaustive proceedings.62 Rather, it serves both preventive and curative roles in
her tenure of office or actual incumbency.
addressing the problem of extrajudicial killings and enforced disappearances. 63 It is
preventive in that it breaks the expectation of impunity in the commission of these
b. Petitioner had not presented any adequate and competent evidence, offenses, and it is curative in that it facilitates the subsequent punishment of
much less substantial evidence, to establish his claim that public perpetrators by inevitably leading to subsequent investigation and action. 64
respondents had violated, were violating or threatening to violate his rights
to life, liberty and security, as well as his right to privacy. Hence, he was
Meanwhile, the writ of habeas data provides a judicial remedy to protect a person’s
not entitled to the privilege of the writs of amparo and habeas data or to
right to control information regarding oneself, particularly in instances where such
the corresponding interim reliefs (i.e. inspection order, production order
information is being collected through unlawful means in order to achieve unlawful
and temporary protection order) provided under the rule on the writ of
ends.65 As an independent and summary remedy to protect the right to privacy –
amparo and the rule on the writ of habeas data.54
especially the right to informational privacy66 – the proceedings for the issuance of
the writ of habeas data does not entail any finding of criminal, civil or administrative
On 19 August 2010, PDG. Verzosa, P/SSupt. Santos, BGen. De Vera, 1st Lt. culpability. If the allegations in the petition are proven through substantial
Matutina, Lt. Col. Mina, Cruz, Pasicolan and Callagan filed a Petition for Review on evidence, then the Court may (a) grant access to the database or information; (b)
Certiorari, seeking the reversal of the 12 April 2010 Decision of the Court of
Appeals.55 They alleged that Rodriguez –
enjoin the act complained of; or (c) in case the database or information contains (b) Production Order. – The court, justice, or judge, upon verified motion and after
erroneous data or information, order its deletion, destruction or rectification. 67 due hearing, may order any person in possession, custody or control of any
designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which constitute or contain
First issue: Grant of interim reliefs
evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.
In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary
protection order. It must be underscored that this interim relief is only available
The motion may be opposed on the ground of national security or of the privileged
before final judgment. Section 14 of the Rule on the Writ of Amparo clearly
nature of the information, in which case the court, justice or judge may conduct a
provides:
hearing in chambers to determine the merit of the opposition.

Interim Reliefs. – Upon filing of the petition or at anytime before final judgment, the
The court, justice or judge shall prescribe other conditions to protect the
court, justice or judge may grant any of the following reliefs:
constitutional rights of all the parties.

Temporary Protection Order. – The court, justice or judge, upon motion or motu
(c) Witness Protection Order. – The court, justice or judge, upon motion or motu
proprio, may order that the petitioner or the aggrieved party and any member of
proprio, may refer the witnesses to the Department of Justice for admission to the
the immediate family be protected in a government agency or by an accredited
Witness Protection, Security and Benefit Program, pursuant to Republic Act No.
person or private institution capable of keeping and securing their safety. If the
6981.
petitioner is an organization, association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the officers involved.
The court, justice or judge may also refer the witnesses to other government
agencies, or to accredited persons or private institutions capable of keeping and
The Supreme Court shall accredit the persons and private institutions that shall
securing their safety. (Emphasis supplied)
extend temporary protection to the petitioner or the aggrieved party and any
member of the immediate family, in accordance with guidelines which it shall issue.
We held in Yano v. Sanchez68 that "[t]hese provisional reliefs are intended to assist
the court before it arrives at a judicious determination of the amparo petition."
The accredited persons and private institutions shall comply with the rules and
Being interim reliefs, they can only be granted before a final adjudication of the
conditions that may be imposed by the court, justice or judge.
case is made. In any case, it must be underscored that the privilege of the writ of
amparo, once granted, necessarily entails the protection of the aggrieved party.
(a) Inspection Order. – The court, justice or judge, upon verified motion and after Thus, since we grant petitioner the privilege of the writ of amparo, there is no need
due hearing, may order any person in possession or control of a designated land or to issue a temporary protection order independently of the former. The order
other property, to permit entry for the purpose of inspecting, measuring, surveying, restricting respondents from going near Rodriguez is subsumed under the privilege
or photographing the property or any relevant object or operation thereon. of the writ.

The motion shall state in detail the place or places to be inspected. It shall be Second issue: Presidential immunity from suit
supported by affidavits or testimonies of witnesses having personal knowledge of
the enforced disappearance or whereabouts of the aggrieved party.
It bears stressing that since there is no determination of administrative, civil or
criminal liability in amparo and habeas data proceedings, courts can only go as far
If the motion is opposed on the ground of national security or of the privileged as ascertaining responsibility or accountability for the enforced disappearance or
nature of the information, the court, justice or judge may conduct a hearing in extrajudicial killing. As we held in Razon v. Tagitis: 69
chambers to determine the merit of the opposition.
It does not determine guilt nor pinpoint criminal culpability for the disappearance;
The movant must show that the inspection order is necessary to establish the right rather, it determines responsibility, or at least accountability, for the enforced
of the aggrieved party alleged to be threatened or violated. disappearance for purposes of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors have been established
The inspection order shall specify the person or persons authorized to make the by substantial evidence to have participated in whatever way, by action or omission,
inspection and the date, time, place and manner of making the inspection and may in an enforced disappearance, as a measure of the remedies this Court shall craft,
prescribe other conditions to protect the constitutional rights of all parties. The among them, the directive to file the appropriate criminal and civil cases against the
order shall expire five (5) days after the date of its issuance, unless extended for responsible parties in the proper courts. Accountability, on the other hand, refers to
justifiable reasons. the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their
complicity to the level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of This is in accord with our ruling in In Re: Saturnino Bermudez that "incumbent
disclosure; or those who carry, but have failed to discharge, the burden of Presidents are immune from suit or from being brought to court during the period of
extraordinary diligence in the investigation of the enforced disappearance. In all their incumbency and tenure" but not beyond. xxx
these cases, the issuance of the Writ of Amparo is justified by our primary goal of
addressing the disappearance, so that the life of the victim is preserved and his
We now come to the scope of immunity that can be claimed by petitioner as a non-
liberty and security are restored.70 (Emphasis supplied.)
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
Thus, in the case at bar, the Court of Appeals, in its Decision 71 found respondents in imagination can these crimes, especially plunder which carries the death penalty, be
G.R. No. 191805 – with the exception of Calog, Palacpac or Harry – to be covered by the alleged mantle of immunity of a non-sitting president. Petitioner
accountable for the violations of Rodriguez’s right to life, liberty and security cannot cite any decision of this Court licensing the President to commit criminal acts
committed by the 17th Infantry Battalion, 5th Infantry Division of the Philippine and wrapping him with post-tenure immunity from liability. It will be anomalous to
Army. 72 The Court of Appeals dismissed the petition with respect to former hold that immunity is an inoculation from liability for unlawful acts and omissions.
President Arroyo on account of her presidential immunity from suit. Rodriguez The rule is that unlawful acts of public officials are not acts of the State and the
contends, though, that she should remain a respondent in this case to enable the officer who acts illegally is not acting as such but stands in the same footing as any
courts to determine whether she is responsible or accountable therefor. In this other trespasser.
regard, it must be clarified that the Court of Appeals’ rationale for dropping her from
the list of respondents no longer stands since her presidential immunity is limited
Indeed, a critical reading of current literature on executive immunity will reveal a
only to her incumbency.
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, US
In Estrada v. Desierto,73 we clarified the doctrine that a non-sitting President does President Richard Nixon, a sitting President, was subpoenaed to produce certain
not enjoy immunity from suit, even for acts committed during the latter’s tenure. recordings and documents relating to his conversations with aids and advisers.
We emphasize our ruling therein that courts should look with disfavor upon the Seven advisers of President Nixon's associates were facing charges of conspiracy to
presidential privilege of immunity, especially when it impedes the search for truth or obstruct justice and other offenses which were committed in a burglary of the
impairs the vindication of a right, to wit: 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
We reject [Estrada’s] argument that he cannot be prosecuted for the reason that he
others, that the President was not subject to judicial process and that he should first
must first be convicted in the impeachment proceedings. The impeachment trial of
be impeached and removed from office before he could be made amenable to
petitioner Estrada was aborted by the walkout of the prosecutors and by the events
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded
that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate
that "when the ground for asserting privilege as to subpoenaed materials sought for
passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is
use in a criminal trial is based only on the generalized interest in confidentiality, it
Functus Officio." Since the Impeachment Court is now functus officio, it is untenable
cannot prevail over the fundamental demands of due process of law in the fair
for petitioner to demand that he should first be impeached and then convicted
administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald, the US
before he can be prosecuted. The plea if granted, would put a perpetual bar against
Supreme Court further held that the immunity of the President from civil damages
his prosecution. Such a submission has nothing to commend itself for it will place
covers only "official acts." Recently, the US Supreme Court had the occasion to
him in a better situation than a non-sitting President who has not been subjected to
reiterate this doctrine in the case of Clinton v. Jones where it held that the US
impeachment proceedings and yet can be the object of a criminal prosecution. To be
President's immunity from suits for money damages arising out of their official acts
sure, the debates in the Constitutional Commission make it clear that when
is inapplicable to unofficial conduct.74 (Emphasis supplied)
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:
Further, in our Resolution in Estrada v. Desierto,75 we reiterated that the
presidential immunity from suit exists only in concurrence with the president’s
"x x x xxx xxx
incumbency:

Mr. Aquino. On another point, if an impeachment proceeding has been filed against
Petitioner stubbornly clings to the contention that he is entitled to absolute
the President, for example, and the President resigns before judgment of conviction
immunity from suit. His arguments are merely recycled and we need not prolong
has been rendered by the impeachment court or by the body, how does it affect the
the longevity of the debate on the subject. In our Decision, we exhaustively traced
impeachment proceeding? Will it be necessarily dropped?
the origin of executive immunity in our jurisdiction and its bends and turns up to the
present time. We held that given the intent of the 1987 Constitution to breathe life
Mr. Romulo. If we decide the purpose of impeachment to remove one from office, to the policy that a public office is a public trust, the petitioner, as a non-sitting
then his resignation would render the case moot and academic. However, as the President, cannot claim executive immunity for his alleged criminal acts committed
provision says, the criminal and civil aspects of it may continue in the ordinary while a sitting President. Petitioner's rehashed arguments including their thinly
courts." disguised new spins are based on the rejected contention that he is still President,
albeit, a President on leave. His stance that his immunity covers his entire term of
office or until June 30, 2004 disregards the reality that he has relinquished the Applying the foregoing rationale to the case at bar, it is clear that former President
presidency and there is now a new de jure President. Arroyo cannot use the presidential immunity from suit to shield herself from judicial
scrutiny that would assess whether, within the context of amparo proceedings, she
was responsible or accountable for the abduction of Rodriguez.
Petitioner goes a step further and avers that even a non-sitting President enjoys
immunity from suit during his term of office. He buttresses his position with the
deliberations of the Constitutional Commission, viz: Third issue: Command responsibility in amparo proceedings

"Mr. Suarez. Thank you. To attribute responsibility or accountability to former President Arroyo, Rodriguez
contends that the doctrine of command responsibility may be applied. As we
explained in Rubrico v. Arroyo,77 command responsibility pertains to the
The last question is with reference to the Committee's omitting in the draft proposal
"responsibility of commanders for crimes committed by subordinate members of the
the immunity provision for the President. I agree with Commissioner Nolledo that
armed forces or other persons subject to their control in international wars or
the Committee did very well in striking out this second sentence, at the very least,
domestic conflict."78 Although originally used for ascertaining criminal complicity, the
of the original provision on immunity from suit under the 1973 Constitution. But
command responsibility doctrine has also found application in civil cases for human
would the Committee members not agree to a restoration of at least the first
rights abuses.79 In the United States, for example, command responsibility was used
sentence that the president shall be immune from suit during his tenure,
in Ford v. Garcia and Romagoza v. Garcia – civil actions filed under the Alien Tort
considering that if we do not provide him that kind of an immunity, he might be
Claims Act and the Torture Victim Protection Act.80 This development in the use of
spending all his time facing litigations, as the President-in-exile in Hawaii is now
command responsibility in civil proceedings shows that the application of this
facing litigations almost daily?
doctrine has been liberally extended even to cases not criminal in nature. Thus, it is
our view that command responsibility may likewise find application in proceedings
Fr. Bernas: seeking the privilege of the writ of amparo. As we held in Rubrico:

The reason for the omission is that we consider it understood in present It may plausibly be contended that command responsibility, as legal basis to hold
jurisprudence that during his tenure he is immune from suit. military/police commanders liable for extra-legal killings, enforced disappearances,
or threats, may be made applicable to this jurisdiction on the theory that the
Mr. Suarez: command responsibility doctrine now constitutes a principle of international law or
customary international law in accordance with the incorporation clause of the
Constitution.
So there is no need to express it here.

xxx xxx xxx


Fr. Bernas:

If command responsibility were to be invoked and applied to these proceedings, it


There is no need. It was that way before. The only innovation made by the 1973 should, at most, be only to determine the author who, at the first instance, is
Constitution was to make that explicit and to add other things. accountable for, and has the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial measures that may be
Mr. Suarez: appropriate under the premises to protect rights covered by the writ of amparo. As
intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to
On the understanding, I will not press for any more query, madam President. administrative disciplinary proceedings under existing administrative issuances, if
there be any.81 (Emphasis supplied.)
I thank the Commissioner for the clarification."
Precisely in the case at bar, the doctrine of command responsibility may be used to
Petitioner, however, fails to distinguish between term and tenure. The term means determine whether respondents are accountable for and have the duty to address
the time during which the officer may claim to hold the office as of right, and fixes the abduction of Rodriguez in order to enable the courts to devise remedial
the interval after which the several incumbents shall succeed one another. The measures to protect his rights. Clearly, nothing precludes this Court from applying
tenure represents the term during which the incumbent actually holds office. The the doctrine of command responsibility in amparo proceedings to ascertain
tenure may be shorter than the term for reasons within or beyond the power of the responsibility and accountability in extrajudicial killings and enforced
incumbent. From the deliberations, the intent of the framers is clear that the disappearances. In this regard, the Separate Opinion of Justice Conchita Carpio-
immunity of the president from suit is concurrent only with his tenure and not his Morales in Rubrico is worth noting, thus:
term.76(Emphasis supplied)
That proceedings under the Rule on the Writ of Amparo do not determine criminal,
civil or administrative liability should not abate the applicability of the doctrine of
command responsibility. Taking Secretary of National Defense v. Manalo and Razon Rubrico categorically denies the application of command responsibility
v. Tagitis in proper context, they do not preclude the application of the doctrine of in amparo cases to determine criminal liability. The Court maintains its adherence to
command responsibility to Amparo cases. this pronouncement as far as amparo cases are concerned.

Manalo was actually emphatic on the importance of the right to security of person Rubrico, however, recognizes a preliminary yet limited application of command
and its contemporary signification as a guarantee of protection of one’s rights by responsibility in amparo cases to instances of determining the responsible or
the government. It further stated that protection includes conducting effective accountable individuals or entities that are duty-bound to abate any transgression
investigations, organization of the government apparatus to extend protection to on the life, liberty or security of the aggrieved party.
victims of extralegal killings or enforced disappearances, or threats thereof, and/or
their families, and bringing offenders to the bar of justice.
If command responsibility were to be invoked and applied to these proceedings, it
should, at most, be only to determine the author who, at the first instance, is
Tagitis, on the other hand, cannot be more categorical on the application, at least in accountable for, and has the duty to address, the disappearance and harassments
principle, of the doctrine of command responsibility: complained of, so as to enable the Court to devise remedial measures that may be
appropriate under the premises to protect rights covered by the writ of amparo. As
intimated earlier, however, the determination should not be pursued to fix criminal
Given their mandates, the PNP and PNP-CIDG officials and members were the ones
liability on respondents preparatory to criminal prosecution, or as a prelude to
who were remiss in their duties when the government completely failed to exercise
administrative disciplinary proceedings under existing administrative issuances, if
the extraordinary diligence that the Amparo Rule requires. We hold these
there be any.
organizations accountable through their incumbent Chiefs who, under this Decision,
shall carry the personal responsibility of seeing to it that extraordinary diligence, in
the manner the Amparo Rule requires, is applied in addressing the enforced In other words, command responsibility may be loosely applied in amparo cases in
disappearance of Tagitis. order to identify those accountable individuals that have the power to effectively
implement whatever processes an amparo court would issue. In such application,
the amparo court does not impute criminal responsibility but merely pinpoint the
Neither does Republic Act No. 9851 emasculate the applicability of the command
superiors it considers to be in the best position to protect the rights of the aggrieved
responsibility doctrine to Amparo cases. The short title of the law is the "Philippine
party.
Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes
Against Humanity." Obviously, it should, as it did, only treat of superior
responsibility as a ground for criminal responsibility for the crimes Such identification of the responsible and accountable superiors may well be a
covered.http://www.lawphil.net/judjuris/juri2010/feb2010/gr_183871_2010.html - preliminary determination of criminal liability which, of course, is still subject to
fnt20cm Such limited treatment, however, is merely in keeping with the statute’s further investigation by the appropriate government agency. (Emphasis supplied.)
purpose and not intended to rule out the application of the doctrine of command
responsibility to other appropriate cases.
As earlier pointed out, amparo proceedings determine (a) responsibility, or the
extent the actors have been established by substantial evidence to have
Indeed, one can imagine the innumerable dangers of insulating high-ranking participated in whatever way, by action or omission, in an enforced disappearance,
military and police officers from the coverage of reliefs available under the Rule on and (b) accountability, or the measure of remedies that should be addressed to
the Writ of Amparo. The explicit adoption of the doctrine of command responsibility those (i) who exhibited involvement in the enforced disappearance without bringing
in the present case will only bring Manalo and Tagitis to their logical conclusion. the level of their complicity to the level of responsibility defined above; or (ii) who
are imputed with knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or (iii) those who carry, but have failed to discharge, the
In fine, I submit that the Court should take this opportunity to state what the law
burden of extraordinary diligence in the investigation of the enforced disappearance.
ought to be if it truly wants to make the Writ of Amparo an effective remedy for
Thus, although there is no determination of criminal, civil or administrative
victims of extralegal killings and enforced disappearances or threats thereof. While
liabilities, the doctrine of command responsibility may nevertheless be applied to
there is a genuine dearth of evidence to hold respondents Gen. Hermogenes
ascertain responsibility and accountability within these foregoing definitions.
Esperon and P/Dir. Gen. Avelino Razon accountable under the command
responsibility doctrine, the ponencia’s hesitant application of the doctrine itself is
replete with implications abhorrent to the rationale behind the Rule on the Writ of a. Command responsibility of the President
Amparo.82(Emphasis supplied.)
Having established the applicability of the doctrine of command responsibility in
This Separate Opinion was reiterated in the recently decided case of Boac v. amparo proceedings, it must now be resolved whether the president, as
Cadapan,83 likewise penned by Justice Carpio-Morales, wherein this Court ruled: commander-in-chief of the military, can be held responsible or accountable for
extrajudicial killings and enforced disappearances. We rule in the affirmative.
To hold someone liable under the doctrine of command responsibility, the following perpetrators. While the Alston Report states that there is a policy allowing enforced
elements must obtain: disappearances and pins the blame on the President, we do not automatically
impute responsibility to former President Arroyo for each and every count of forcible
disappearance.93 Aside from Rodriguez’s general averments, there is no piece of
a. the existence of a superior-subordinate relationship between the
evidence that could establish her responsibility or accountability for his abduction.
accused as superior and the perpetrator of the crime as his subordinate;
Neither was there even a clear attempt to show that she should have known about
the violation of his right to life, liberty or security, or that she had failed to
b. the superior knew or had reason to know that the crime was about to be investigate, punish or prevent it.
or had been committed; and
Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805
c. the superior failed to take the necessary and reasonable measures to
prevent the criminal acts or punish the perpetrators thereof. 84
The doctrine of totality of evidence in amparo cases was first laid down in this
Court’s ruling in Razon,94 to wit:
The president, being the commander-in-chief of all armed forces, 85 necessarily
possesses control over the military that qualifies him as a superior within the
The fair and proper rule, to our mind, is to consider all the pieces of evidence
purview of the command responsibility doctrine. 86
adduced in their totality, and to consider any evidence otherwise inadmissible under
our usual rules to be admissible if it is consistent with the admissible evidence
On the issue of knowledge, it must be pointed out that although international adduced. In other words, we reduce our rules to the most basic test of reason – i.e.,
tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may to the relevance of the evidence to the issue at hand and its consistency with all
nonetheless be established through circumstantial evidence. 87 In the Philippines, a other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it
more liberal view is adopted and superiors may be charged with constructive satisfies this basic minimum test.95 (Emphasis supplied.)
knowledge. This view is buttressed by the enactment of Executive Order No. 226,
otherwise known as the Institutionalization of the Doctrine of ‘Command
In the case at bar, we find no reason to depart from the factual findings of the Court
Responsibility’ in all Government Offices, particularly at all Levels of Command in
of Appeals, the same being supported by substantial evidence. A careful
the Philippine National Police and other Law Enforcement Agencies (E.O.
examination of the records of this case reveals that the totality of the evidence
226).88 Under E.O. 226, a government official may be held liable for neglect of duty
adduced by Rodriguez indubitably prove the responsibility and accountability of
under the doctrine of command responsibility if he has knowledge that a crime or
some respondents in G.R. No. 191805 for violating his right to life, liberty and
offense shall be committed, is being committed, or has been committed by his
security.
subordinates, or by others within his area of responsibility and, despite such
knowledge, he did not take preventive or corrective action either before, during, or
immediately after its commission.89 Knowledge of the commission of irregularities, a. The totality of evidence proved by substantial evidence the responsibility or
crimes or offenses is presumed when (a) the acts are widespread within the accountability of respondents for the violation of or threat to Rodriguez’s right to
government official’s area of jurisdiction; (b) the acts have been repeatedly or life, liberty and security.
regularly committed within his area of responsibility; or (c) members of his
immediate staff or office personnel are involved.90
After a careful examination of the records of these cases, we are convinced that the
Court of Appeals correctly found sufficient evidence proving that the soldiers of the
Meanwhile, as to the issue of failure to prevent or punish, it is important to note 17th Infantry Battalion, 5th Infantry Division of the military abducted Rodriguez on
that as the commander-in-chief of the armed forces, the president has the power to 6 September 2009, and detained and tortured him until 17 September 2009.
effectively command, control and discipline the military. 91
Rodriguez’s Sinumpaang Salaysay dated 4 December 2009 was a meticulous and
b. Responsibility or accountability of former President Arroyo straightforward account of his horrific ordeal with the military, detailing the manner
in which he was captured and maltreated on account of his suspected membership
in the NPA.96 His narration of his suffering included an exhaustive description of his
The next question that must be tackled is whether Rodriguez has proven through
physical surroundings, personal circumstances and perceived observations. He
substantial evidence that former President Arroyo is responsible or accountable for
likewise positively identified respondents 1st Lt. Matutina and Lt. Col. Mina to be
his abduction. We rule in the negative.
present during his abduction, detention and torture, 97 and respondents Cruz,
Pasicolan and Callagan as the CHR representatives who appeared during his
Rodriguez anchors his argument on a general allegation that on the basis of the release.98
"Melo Commission" and the "Alston Report," respondents in G.R. No. 191805
already had knowledge of and information on, and should have known that a
More particularly, the fact of Rodriguez’s abduction was corroborated by Carlos in
climate of enforced disappearances had been perpetrated on members of the
his Sinumpaang Salaysay dated 16 September 2009,99 wherein he recounted in
NPA.92 Without even attaching, or at the very least, quoting these reports,
detail the circumstances surrounding the victim’s capture.
Rodriguez contends that the Melo Report points to rogue military men as the
As regards the allegation of torture, the respective Certifications of Dr. Ramil and difficulty of sleeping is a symptom experience (sic) by the subject as a result of the
Dr. Pamugas validate the physical maltreatment Rodriguez suffered in the hands of psychological trauma he encountered during his detention.
the soldiers of the 17th Infantry Battalion, 5th Infantry Division. According to the
Certification dated 12 October 2009 executed by Dr. Ramil, 100 she examined
XI. Conclusions and Recommendations
Rodriguez in the Alfonso Ponce Enrile Memorial District Hospital on 16 September
2009 and arrived at the following findings:
The physical injuries and psychological trauma suffered by the subject are
secondary to the torture and ill-treatment done to him while in detention for about
FACE
11 days. The physical injuries sustained by the subject, of which the age is
compatible with the alleged date of infliction (sic). 103 (Emphasis supplied.)
- 10cm healed scar face right side
In assessing the weight of the Certifications, the Court of Appeals correctly relied on
- 2cm healed scar right eyebrow (lateral area) the medical finding that the injuries suffered by Rodriguez matched his account of
the maltreatment inflicted on him by the soldiers of the 17th Infantry Battalion, 5th
Infantry Division of the Philippine Army. Further, the kind of injuries he sustained
- 2cm healed scar right eye brow (median area)
showed that he could not have sustained them from merely falling, thus making
respondents’ claim highly implausible.
- 4cm x 2cm hematoma anterior chest at the sternal area right side
Despite these medical findings that overwhelmingly supported and lent credibility to
- 3cm x 2cm hematoma sternal area left side the allegations of Rodriguez in his Sinumpaang Salaysay, respondents in G.R. No.
191805 still stubbornly clung to their argument that he was neither abducted nor
- 6cm x 1cm hematoma from epigastric area to ant. chest left side detained. Rather, they claimed that he was a double agent, whose relationship with
the military was at all times congenial. This contention cannot be sustained, as it is
far removed from ordinary human experience.
- 6cm x 1cm hematoma from epigastric area to ant. chest right side

If it were true that Rodriguez maintained amicable relations with the military, then
- Multiple healed rashes (brownish discoloration) both forearm he should have unhesitatingly assured his family on 17 September 2009 that he
was among friends. Instead, he vigorously pleaded with them to get him out of the
- Multiple healed rashes (brownish discoloration) military facility. In fact, in the Sinumpaang Salaysay dated 4 December
2009104 Wilma executed, she made the following averments:
- both leg arm
18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng
awa dahil sa mukha syang pagod at malaki ang kanyang ipinayat.
- hip area/lumbar area 101

19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako


Dr. Pamugas performed a separate medical examination of Rodriguez on 19 na wag ko syang iiwan sa lugar na iyon;
September 2009, the results of which confirmed that the injuries suffered by the
latter were inflicted through torture. Dr. Pamugas thus issued a Medical Report
dated 23 September 2009,102 explicitly stating that Rodriguez had been tortured xxx xxx xxx
during his detention by the military, to wit:
23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan
X. Interpretation of Findings muna ng dalawang linggo sa kampo ako at si Noriel para daw matrain pa si
Noriel sa loob ng kampo;
The above physical and psychological findings sustained by the subject are related
to the torture and ill-treatment done to him. The multiple circular brown to dark 24. Na hindi ako pumayag na maiwan ang aking anak;
brown spots found on both legs and arms were due to the insect bites that he
sustained when he was forced to join twice in the military operations. The abrasions xxx xxx xxx
could also be due to the conditions related during military operations. The multiple
pin-point blood spots found on his left ear is a result of an unknown object placed
inside his left ear. The areas of tenderness he felt during the physical examination 33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa
were due to the overwhelming punching and kicking on his body. The occasional (sic) sa kaligtasan ng aming buong pamilya, lalo na kay Noriel; xxx 105
Also, Rodel made the following supporting averments in his Sinumpaang into the very core of petitioner’s right to security guaranteed by the fundamental
Salaysay dated 3 December 2009:106 law.109(Emphasis supplied.)

24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang- Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the
hina sya, malaki ang ipinayat at nanlalalim ang mga mata; contradictory defenses presented by respondents in G.R. No. 191805, give credence
to his claim that he had been abducted, detained and tortured by soldiers belonging
to the 17th Infantry Battalion, 5th Infantry Division of the military.
25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa
dahil nakilala ko syang masigla at masayahin;
It must be pointed out, however, that as to respondents Cruz, Pasicolan and
Callagan, there was no substantial evidence to show that they violated, or
26. Na ilang minuto lang ay binulugan nya ako ng "Kuya, ilabas mo ako
threatened with violation, Rodriguez’s right to life, liberty and security. Despite the
dito, papatayin nila ako."
dearth of evidence to show the CHR officers’ responsibility or accountability, this
Court nonetheless emphasizes its criticism as regards their capacity to recognize
27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng torture or any similar form of abuse. The CHR, being constitutionally mandated to
dalwang linggo ang aking kapatid sa kanila para raw ma-train sya. protect human rights and investigate violations thereof, 110 should ensure that its
officers are well-equipped to respond effectively to and address human rights
28. Na hindi kami pumayag ng aking nanay; xxx107 violations. The actuations of respondents unmistakably showed their insufficient
competence in facilitating and ensuring the safe release of Rodriguez after his
ordeal.
Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not
outrightly contradictory, contention of respondents in G.R. No. 191805 that while
Rodriguez had complained of his exhaustion from his activities as a member of the b. The failure to conduct a fair and effect investigation amounted to a violation of or
CPP-NPA, he nevertheless willingly volunteered to return to his life in the NPA to threat to Rodriguez’s rights to life, liberty and security.
become a double-agent for the military. The lower court ruled in this manner:
The Rule on the Writ of Amparo explicitly states that the violation of or threat to the
In the Return of the Writ, respondent AFP members alleged that petitioner confided right to life, liberty and security may be caused by either an act or an omission of a
to his military handler, Cpl. Navarro, that petitioner could no longer stand the public official.111 Moreover, in the context of amparo proceedings, responsibility may
hardships he experienced in the wilderness, and that he wanted to become an refer to the participation of the respondents, by action or omission, in enforced
ordinary citizen again because of the empty promises of the CPP-NPA. However, in disappearance.112 Accountability, on the other hand, may attach to respondents who
the same Return, respondents state that petitioner agreed to become a double are imputed with knowledge relating to the enforced disappearance and who carry
agent for the military and wanted to re-enter the CPP-NPA, so that he could get the burden of disclosure; or those who carry, but have failed to discharge, the
information regarding the movement directly from the source. If petitioner was tired burden of extraordinary diligence in the investigation of the enforced
of life in the wilderness and desired to become an ordinary citizen again, it defies disappearance.113
logic that he would agree to become an undercover agent and work alongside
soldiers in the mountains – or the wilderness he dreads – to locate the hideout of In this regard, we emphasize our ruling in Secretary of National Defense v.
his alleged NPA comrades.108 (Emphasis supplied.) Manalo114 that the right to security of a person includes the positive obligation of the
government to ensure the observance of the duty to investigate, viz:
Furthermore, the appellate court also properly ruled that aside from the abduction,
detention and torture of Rodriguez, respondents, specifically 1st Lt. Matutina, had Third, the right to security of person is a guarantee of protection of one's rights by
violated and threatened the former’s right to security when they made a visual the government. In the context of the writ of Amparo, this right is built into the
recording of his house, as well as the photos of his relatives, to wit: guarantees of the right to life and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as freedom from threat and
In the videos taken by the soldiers – one of whom was respondent Matutina – in the guarantee of bodily and psychological integrity) under Article III, Section 2. The
house of petitioner on September 18, 2009, the soldiers even went as far as taking right to security of person in this third sense is a corollary of the policy that the
videos of the photos of petitioner’s relatives hung on the wall of the house, as well State "guarantees full respect for human rights" under Article II, Section 11 of the
as videos of the innermost part of the house. This Court notes that 1Lt. Matutina, by 1987 Constitution. As the government is the chief guarantor of order and security,
taking the said videos, did not merely intend to make proofs of the safe arrival of the Constitutional guarantee of the rights to life, liberty and security of person is
petitioner and his family in their home. 1Lt. Matutina also desired to instill fear in rendered ineffective if government does not afford protection to these rights
the minds of petitioner and his family by showing them that the sanctity of their especially when they are under threat. Protection includes conducting effective
home, from then on, will not be free from the watchful eyes of the military, investigations, organization of the government apparatus to extend protection to
permanently captured through the medium of a seemingly innocuous cellhpone victims of extralegal killings or enforced disappearances (or threats thereof) and/or
video camera. The Court cannot – and will not – condone such act, as it intrudes their families, and bringing offenders to the bar of justice. The Inter-American Court
of Human Rights stressed the importance of investigation in the Velasquez Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of
Rodriguez Case, viz: Republic Act No. 6975, otherwise known as the "PNP Law," specifies the PNP as the
governmental office with the mandate "to investigate and prevent crimes, effect the
arrest of criminal offenders, bring offenders to justice and assist in their
(The duty to investigate) must be undertaken in a serious manner and not as a
prosecution." In this case, PDG Verzosa failed to order the police to conduct the
mere formality preordained to be ineffective. An investigation must have an
necessary investigation to unmask the mystery surrounding petitioner’s abduction
objective and be assumed by the State as its own legal duty, not as a step taken by
and disappearance. Instead, PDG Verzosa disclaims accountability by merely stating
private interests that depends upon the initiative of the victim or his family or upon
that petitioner has no cause of action against him. Palpable, however, is the lack of
their offer of proof, without an effective search for the truth by the government.
any effort on the part of PDG Verzosa to effectively and aggressively investigate the
violations of petitioner’s right to life, liberty and security by members of the 17th
xxx xxx xxx Infantry Battalion, 17th Infantry Division, Philippine Army. 116 (Emphasis supplied.)

Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to Clearly, the absence of a fair and effective official investigation into the claims of
security" not only as prohibiting the State from arbitrarily depriving liberty, but Rodriguez violated his right to security, for which respondents in G.R. No. 191805
imposing a positive duty on the State to afford protection of the right to liberty. The must be held responsible or accountable.
ECHR interpreted the "right to security of person" under Article 5(1) of the European
Convention of Human Rights in the leading case on disappearance of persons, Kurt
Nevertheless, it must be clarified that Rodriguez was unable to establish any
v. Turkey. In this case, the claimant's son had been arrested by state authorities
responsibility or accountability on the part of respondents P/CSupt. Tolentino,
and had not been seen since. The family's requests for information and investigation
P/SSupt. Santos, Calog and Palacpac. Respondent P/CSupt. Tolentino had already
regarding his whereabouts proved futile. The claimant suggested that this was a
retired when the abduction and torture of Rodriguez was perpetrated, while
violation of her son's right to security of person. The ECHR ruled, viz:
P/SSupt. Santos had already been reassigned and transferred to the National
Capital Regional Police Office six months before the subject incident occurred.
... any deprivation of liberty must not only have been effected in conformity with Meanwhile, no sufficient allegations were maintained against respondents Calog and
the substantive and procedural rules of national law but must equally be in keeping Palacpac.
with the very purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual it is incumbent on the
From all the foregoing, we rule that Rodriguez was successful in proving through
authorities to account for his or her whereabouts. For this reason, Article 5 must be
substantial evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit,
seen as requiring the authorities to take effective measures to safeguard
Maj. Gen. Ochoa, Brig. Gen. De Vera, 1st Lt. Matutina, and Lt. Col. Mina were
against the risk of disappearance and to conduct a prompt effective
responsible and accountable for the violation of Rodriguez’s rights to life, liberty and
investigation into an arguable claim that a person has been taken into
security on the basis of (a) his abduction, detention and torture from 6 September
custody and has not been seen since.115 (Emphasis supplied)
to 17 September 2009, and (b) the lack of any fair and effective official
investigation as to his allegations. Thus, the privilege of the writs of amparo and
In the instant case, this Court rules that respondents in G.R. No. 191805 are habeas data must be granted in his favor. As a result, there is no longer any need
responsible or accountable for the violation of Rodriguez’s right to life, liberty and to issue a temporary protection order, as the privilege of these writs already has the
security on account of their abject failure to conduct a fair and effective official effect of enjoining respondents in G.R. No. 191805 from violating his rights to life,
investigation of his ordeal in the hands of the military. Respondents Gen. Ibrado, liberty and security.
PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only
conducted a perfunctory investigation, exerting no efforts to take Ramirez’s account
It is also clear from the above discussion that despite (a) maintaining former
of the events into consideration. Rather, these respondents solely relied on the
President Arroyo in the list of respondents in G.R. No. 191805, and (b) allowing the
reports and narration of the military. The ruling of the appellate court must be
application of the command responsibility doctrine to amparo and habeas data
emphasized:
proceedings, Rodriguez failed to prove through substantial evidence that former
President Arroyo was responsible or accountable for the violation of his rights to life,
In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and liberty and property. He likewise failed to prove through substantial evidence the
Mina are accountable, for while they were charged with the investigation of the accountability or responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and
subject incident, the investigation they conducted and/or relied on is superficial and Callagan.
one-sided. The records disclose that the military, in investigating the incident
complained of, depended on the Comprehensive Report of Noriel Rodriguez @Pepito
WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No.
prepared by 1Lt. Johnny Calub for the Commanding Officer of the 501st Infantry
191805 and DENY the Petition for Review in G.R. No. 193160. The Decision of the
Brigade, 5th Infantry Division, Philippine Army. Such report, however, is merely
Court of Appeals is hereby AFFIRMED WITH MODIFICATION.
based on the narration of the military. No efforts were undertaken to solicit
petitioner’s version of the subject incident and no witnesses were questioned
regarding the alleged abduction of petitioner. The case is dismissed with respect to respondents former President Gloria
Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos,
Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vicent Callagan for lack That on or about May 12, 1986, in the City of Manila, Philippines,
of merit. and within the jurisdiction of this Honorable Court, the said
accused, a public officer, being then a Deputy Sheriff of the
Regional Trial Court of Manila, National Capital Judicial Region,
This Court directs the Office of the Ombudsman (Ombudsman) and the Department
Branch 31, taking advantage of his official position and,
of Justice (DOJ) to take the appropriate action with respect to any possible liability
committing the offense in relation to his official duties, did then
or liabilities, within their respective legal competence, that may have been incurred
and there wilfully, unlawfully and feloniously forge and falsify, or
by respondents Gen. Victor Ibrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj.
cause to be forged and falsified, Sheriff's (sic) Certificate of Sale
Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan Matutina, and Lt. Col.
dated May 12, 1986, which is a public document, wherein he is
Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court
legally bound to disclose the truth, by stating therein that the
the results of their action within a period of six months from receipt of this Decision.
payment for the properties which he levied and sold at public
auction was made on May 12, 1986, and that the amount of
In the event that herein respondents no longer occupy their respective posts, the P1,325,000.00, representing the bid price for the aforesaid levied
directives mandated in this Decision and in the Court of Appeals are enforceable properties, was paid to him on May 12, 1986, when in truth and in
against the incumbent officials holding the relevant positions. Failure to comply with fact, as the said accused well knew, the payment thereof was
the foregoing shall constitute contempt of court. actually made on May 23, 1986 to Genstar Container Corporation
through its attorney-in-fact, to the damage and prejudice of public
A.M. No. P-89-290 January 29, 1993 interest.

OFFICE OF THE COURT ADMINISTRATOR, complainant, The respondent was directed to file his answer/explanation within ten (10) days
vs. RAMON G. ENRIQUEZ, respondent from receipt of the charge.

PER CURIAM: Instead of filing the answer/explanation as ordered, the respondent forwarded to
the Court Administrator a letter on 20 February 1989 informing the latter that
Criminal Case No. 12987 was still pending resolution before the Sandiganbayan and
In a letter dated 19 January 1987, one Eliodoro C. Cruz of Compania Maritima, Inc. that therefore, he (respondent) should not be held administratively liable.
informed this Court that the company's lawyer filed with the Tanodbayan on 12
December 1986 a complaint for falsification of a public document, use of falsified
documents, robbery and the violation of R.A. No. 3019 against herein respondent On 15 May 1989, the Sandiganbayan, acting on a demurrer to evidence,
Ramon G. Enriquez, Deputy Sheriff of Branch XXXI of the Regional Trial Court (RTC) promulgated a Resolution granting the same and dismissing the case against the
of Manila and others. The said company lawyer requested that an investigation be respondent "for insufficiency of evidence." This conclusion is based on its findings
conducted on the administrative aspect of the case. that (a) the Sheriff's Certificate of Sale, presented and admitted without
qualification or limitation and objection as to purpose, showed that the public
auction was held on 12 May 1986 and that the movable properties were sold to
In his 20 January 1987 letter to Mr. Cruz, then Court Administrator Leo D. Rolando Patriarca for P1,325,000.00; this fact was confirmed by prosecution witness
Medialdea, who later became a member of this Court, informed the latter that as a Rizalina Cailian, (b) the private prosecutor's contention that there was no public
matter of policy, the administrative aspect of the case "will be undertaken by this auction on that date runs counter to the Information which is based on the fact that
Office upon the filing of a corresponding information by the Tanodbayan before the a public auction was held on 12 May 1986, (c) it is presumed that the respondent
Sandiganbayan." regularly performed his official duty when he sold, during the said public auction, all
the properties levied upon, and (d) the fact stands in bold relief that payment was
Consequently, an Information for falsification of a public document was filed against actually made; whether the same was to the respondent or to Genstar, the fact also
the respondent with the Sandiganbayan on 6 October 1988. The case was docketed stands out that if the payment was to Genstar it was because the amount was due
as Criminal Case No. 12987 and was assigned to the Second Division. A copy of the it as a judgment creditor; if made to the respondent "it was in effect to and
Information was furnished the Office of the Court Administrator on 17 October intended for Genstar," — thus having the same net effect; as a result, the assertion
1988. that the bid price was paid on 12 May 1986 to the respondent is not absolutely false
but has some truth to it. The Sandiganbayan went on to state that the rule is
settled that if the statements are not altogether false, there being some colorable
On 1 February 1989, then Court Administrator Meynardo A. Tiro, pursuant to this truth to them, the crime of falsification is not deemed to have been committed; it
Court's en banc resolution of 12 March 1981 and on the basis of the Information further declared that the records "do not show that the rights . . . of the parties
filed with the Sandiganbayan, administratively charged the herein respondent with involved would not be substantially the same if the bid price was paid on May 12,
the crime of falsification of a public document and with conduct prejudicial to the 1986, through the accused (respondent), as when the payment was done 11 days
best interest of the service committed in the manner alleged in the said thereafter directly to Genstar, or vice-versa." Hence, the integrity of the Sheriff's
Information, to wit: Certificate of Sale was not affected.
On 10 April 1991, respondent filed a Manifestation informing this Court of the the defendant and scheduled the sale on May 12, 1986 at 10:00
promulgation of the above resolution and praying that "by virtue of the dismissal of o'clock in the morning at El Varadero de Manila, Sangley Point,
the Criminal Case filed against the respondent before the Sandiganbayan, the Cavite City, to satisfy the writ of execution. On May 8, 1986, third
Administrative Case . . . be likewise dismissed." party claims were filed involving the levied property. On May 12,
1986, the judgment creditor posted the necessary indemnity bond
duly approved by the court. After the bond was posted, deputy
On 6 May 1991, this Court resolved to refer the case to the Office of the Court
sheriff Enriquez conducted the sale and one Rolando Patriarca was
Administrator for investigation, report and recommendation.
the highest bidder in the total amount of P1,325.000.00 and which
amount was credited to the partial satisfaction of the writ (copy of
In his Memorandum of 11 December 1991, then Court Administrator, now a the Sheriff's Partial Report dated May 23, 1986 as filed in the
member of this Court, Josue N. Bellosillo, opined that the dismissal of Criminal Case record of Civil Case No. 85-30134 is hereto attached Annex "B" for
No. 12987 by the Sandiganbayan does not necessarily warrant the dismissal of the ready reference). In the minutes of the sheriff's sale dated May
administrative case against the respondent considering that the quantum of 12, 1986, it is made to appear that the bidding started at 3:55
evidence needed to sustain a judgment of conviction in a criminal case is proof p.m. and was finished at 5:00 p.m. on May 12, 1986 with Rolando
beyond reasonable doubt, while in administrative proceedings, only moral certainty C. Patriarca as the highest bidder (copy of the said minutes is
is required; by way of comment to the Sandiganbayan's statement to the effect that hereto attached as Annex "C").
the records do not show that the rights and obligations of any of the parties
involved would have been substantially affected if the bid price was paid either on
Deputy Sheriff Ramon G. Enriquez did not present any evidence
12 May 1986 or 23 May 1986, he avers that in the crime of falsification of public or
during the investigation. He submitted the case on the basis of the
official documents, whether by public officials or private persons, it is not necessary
Sheriff's Return dated May 23, 1986. He stated that he received
that there be present the idea of gain or intent to cause damage to a third person
the bid money on May 12, 1986 on which date he issued the
for the reason that in contradistinction to falsification of private documents, the
certificate of sale. Respondent Enriquez admitted that he did not
principal act punished in the former is the violation of the public faith and the
require the judgment creditor to pay the sheriff's percentage of
destruction of the truth as therein solemnly proclaimed. 1 Court Administrator
commission.
Bellosillo then recommended the referral of the case to the Executive Judge of the
RTC of Manila for investigation, report and recommendation.
In his testimony, Atty. Jose C. Sison, counsel for judgment
creditor stated that the auction took place May 12, 1986 on which
Acting thereon, this Court, in the Resolution of 5 February 1992, referred the
date the bid price was given to him in check by the highest bidder
instant case to the said Executive Judge for investigation, report and
Rolando Patriarca; that he would not have agreed if the payment
recommendation.
was made on May 23, 1986.

Thereupon, Executive Judge Bernardo P. Pardo conducted an investigation; after


Much as we would like to accept the testimony of Atty. Sison as
completing the same, he submitted on 5 August 1992 his Report and
the truth, we find that he is sadly mistaken. In its resolution dated
Recommendation wherein, on the basis of the following summation of evidence and
May 15, 1989, the Sandiganbayan, on the basis of stipulation (sic)
findings:
of facts and the evidence adduced, held that on May 23, 1986, the
highest bidder Rolando Patriarca offered the three (3) vessels M/V
In his testimony, Atty. Redentor R. Melo stated that on May 12, Dadiangas, T/B Marinero and T/B Timonel out of several other
1986, at 9:00 o'clock in the morning, he personally went to El personal properties bidded (sic), to Rizalina Ingco-Cailian, a
Varadero de Manila Compound in Cavite City to attend the auction businesswoman engaged in the sale of scrap iron. These vessels
sale of property levied upon by deputy sheriff Ramon G. Enriquez were sold to Cailian for the price of P1,325,000.00. Cailian,
and advertised for sale at auction scheduled on said date and highest bidder Patriarca and his wife repaired to the Navotas
time. He waited until past 4:00 o'clock in the afternoon without Branch of the Philippine National Bank that same day. Cailian
sheriff Enriquez appearing. Then, he left and returned to Manila. bought cashier's check No. 273290 dated May 23, 1986 for
At about 5:00 o'clock that same afternoon, he was advised that P1,325,000.00, which, upon request of Patriarca, who said he had
Sheriff Enriquez appeared at past 4:00 o'clock but that no auction no money to pay for the vessels, was made payable to the order
sale was conducted. of "Genstar Container c/o Atty. Jose C. Sison" the judgment
creditor (resolution, p. 4, p. 84, rec.). This piece of evidence is
In a sheriff's partial report dated May 23, 1986, respondent certainly eloquent proof of the fact that there was no payment of
deputy sheriff Enriquez stated that on May 3, 1986, he served a the bid price by the bidder Rolando Patriarca on May 12, 1986 to
copy of a writ of execution issued by Judge Regino T. Veridiano of the sheriff amounting to P1,325,000.00. As found by the
the Regional Trial Court of Manila upon Gregorio Coronel at the El Sandiganbayan, it was the bidder's buyer (sic) Rizalina Ingco-
Varadero de Manila dockyard at Sangley Point, Cavite City. Cailian who paid the bid price directly to the judgment creditor.
Immediately thereafter, he made a levy of personal property of This took place on May 23, 1986. Indeed, if the bid price was
given to the respondent deputy sheriff on May 12, 1986, it was his
duty to deposit the amount immediately with the court's cashier. evident that the respondent falsified this entry in the Minutes. In his Sheriff's
He did not do this. He did not also require the judgment creditor Certificate of Sale also dated 12 May 1986, the respondent certified that the highest
to pay the sheriff's percentage of collection. bidder "thereupon did pay to the undersigned Deputy Sheriff the bid price of ONE
MILLION THREE HUNDRED TWENTY FIVE THOUSAND (P1,325,000.00) PESOS,
which amount was credited to the partial satisfaction of the Writ of Execution."
Consequently, the inevitable conclusion is that the respondent
However, it is a fact that as also found by the Sandiganbayan in its Resolution of 15
sheriff was remiss in his duties and that the sheriff's certificate of
May 1989, which the respondent cannot refute as he himself submitted the same to
sale was falsified because the truth is that the bid price was not
this Court and even asked for the dismissal of the administrative case against him
paid by the highest bidder on May 12, 1986. In fact, there was no
on the basis of the said Resolution:
auction conducted on that date because it was already past 4:00
o'clock, the (sic) sheriff was not yet at the place of auction which
was indeed scheduled at 10:00 a.m., May 12, 1896. The bid price . . .on May 23, 1986, Patriarca offered the three vessels — M/V
was actually paid by a third who bought the three (3) vessels out Dadiangas, T/B Marinero, and T/B Timonel — to Rizalina Ingco-
of several other properties levied upon. She paid therefor directly Cailian, a businesswoman engaged in the buy and sell of scrap
to the judgment creditor. The sheriff 's percentage of commission iron. Having agreed on the price of P1,325,000.00 for the three
was not paid. vessels, Cailian, Patriarca, and his wife repaired to the Navotas
Branch of the Philippine National Bank that same day. Cailian
bought Cashiers Check No. 273290 dated May 23, 1986, for
IN VIEW WHEREOF, we respectfully submit that the respondent
P1,325,000.00 which, upon request of Patriarca who said he had
Deputy Sheriff Ramon G. Enriquez is guilty of the charge of
no money to pay for the vessels, was made payable to the order
falsifying the sheriff's certificate of sale dated May 12, 1986 in
of "GEN. STAR CONTAINER C/O ATTY. JOSE C. SISON," the
Civil Case No. 85-30134 of the Regional Trial Court of Manila.
judgment creditor.

he recommended the following:


On the same day, May 23, 1986, they went to Branch XXXI, RTC
of Manila, where Cailian met the accused for the first time. Atty.
WHEREFORE, we respectfully recommend that respondent Deputy Jose C. Sison, and one Judge Luz. Atty. Sison, Judge Luz, and
Sheriff Ramon G. Enriquez be dismissed from the service, with Patriarca with his wife brought Cailian to the canteen of the
forfeiture of retirement benefits, if any. building housing Branch XXXI. She gave the cashier's check to
Atty. Sison, and Judge Luz prepared our Deed of Sale. It was
We find the above findings of Executive Judge Pardo to be supported by the dated May 20, 1986, the figure "20" being handwritten, and
evidence. His conclusions and recommendation are therefore in order. appeared to have been acknowledged on the same date.

We wish to add, however, that from the facts surrounding the case, it appears that As a result of the transaction, Patriarca delivered to Cailian M/V
(a) no bidding was held on 12 May 1986; even if one was conducted, the alleged Dadiangas and one of the tugboats, which was later on taken back
highest bidder, one Rolando Patriarca, did not have the money to pay for his bid of from her. The other tugboat was the subject of a third-party claim
P1,325,000.00, thereby resulting in a failure of the proceedings; or (b) the sale was of Compania Maritima alleged to be different from Maritime, the
consummated only on 23 May 1986, without the requisite bidding, to Rizalina Ingco- judgment debtor.
Cailian to whom Patriarca allegedly "sold" what he bought during the "bidding" of 12
May 1986. In his Notice of Levy and Sale dated 3 May 1986, the respondent Clearly, therefore, if indeed the public auction was held on 12 May 1986 and
expressly stated that he "will sell at PUBLIC AUCTION to the highest bidder for Patriarca was the highest bidder therein, he did not at such time have
CASH and in Philippine Currency on May 12, 1986 at 10:00 o'clock in the morning the cash, corresponding to his submitted bid, for delivery to the respondent and
or soon thereafter at El Varadero de Manila, Sangley Point, Cavite" the vessel M/V eventually, the judgment creditor. Accordingly, pursuant to his own Notice, which of
Dadiangas, Tugboat Timonel, Tugboat Marinero and the other properties therein course is binding on him, Patriarca could not be awarded the bid. The latter's
described. The unrebutted testimony of Atty. Redentor R. Melo reveals that he went inability to produce cash is equivalent to a bidder's refusal to pay under Section 22,
to the auction site at 9:00 o'clock in the morning of 12 May 1986 and stayed there Rule 39 of the Rules of Court in which case, as provided therein, the sheriff "may
until past 4:00 o'clock in the afternoon. Respondent did not show up to conduct the again sell the property to the highest bidder and shall not be responsible for any
auction sale. Later, at around 5:00 o'clock in the afternoon, Atty. Melo, who had by loss occasioned thereby." Moreover, the sheriff may thereafter reject any
that time returned to Manila, was advised that the respondent appeared at 4:00 subsequent bid of such person. Since Patriarca had no available cash to pay for the
o'clock but that no auction was conducted. In his Minutes of Sheriff's Sale dated 12 bid, the respondent could neither deliver the subject articles nor execute and deliver
May 1986, the respondent made it appear that he started the auction sale at 3:55 to the former a certificate of sale as provided for in Section 25, Rule 39 of the Rules
P.M. and concluded the proceedings at 5:00 o'clock that same afternoon with of Court. Thus, even granting for the sake of argument that he did conduct the
Patriarca submitting the highest bid in the amount of P1,325,000.00. There is no public auction on 12 May 1986, the respondent, in view of the non-payment of the
explanation as to why he could not start the bidding at 10:00 o'clock in the morning purchase price, violated said Section 25. Furthermore, he falsified his Sheriff's
as set out in his Notice. In the light of Atty. Melo's unrebutted testimony, it is Certificate of Sale upon entering therein the fact that Patriarca "thereupon did pay"
to him the bid price of P1,325,000.00 which was credited to the partial satisfaction should be circumscribed with the heavy burden of responsibility. His conduct, at all
of the writ of execution. Assuming that Patriarca truly paid the purchase price, there times, must not only be characterized with propriety and decorum, but above all
could be no possible explanation for the belated Sheriff's Partial Report dated 23 else must be beyond suspicion.
May 1986.
While it is but proper that the respondent should not be kept a minute longer in the
In the light of the foregoing, We conclude that Patriarca never acquired ownership Judiciary, his dismissal from the service should not end this case. In the light of the
over the vessel M/V Dadiangas and the tugboats Marinero and Timonel. Neither above findings of conspiracy with other parties, including a certain Judge Luz who
could he then have "sold" the same to Cailian. Hence, the latter stands on an prepared the alleged deed of sale in favor of Cailian, there is a need to dig deeper,
entirely different footing and must then be considered as the true vendee who in a manner of speaking, in this case. This could open the door to the secret
purchased the vessels on 23 May 1986 without any public bidding. In this regard, chambers of a rumored syndicate which is in the business of fixing attachments and
the respondent, together with a certain Judge Luz and Atty. Jose C. Sison, became execution sales.
a willing co-conspirator to conceal this illegal act by making it appear that Patriarca
sold the vessels to Cailian per a deed of sale which the said Judge Luz prepared on
WHEREFORE, the Court resolves to DISMISS from the service, effective
23 May 1986, but which was dated 20 May 1986. In his haste to cover up for his
immediately, respondent RAMON G. ENRIQUEZ, for gross dishonesty, grave
misdeeds, he even forgot to charge against the proceeds of the said "sale" the
misconduct and conduct prejudicial to the best interest of the service, with forfeiture
sheriff's fee which is prescribed in Section 7, Rule 141 of the Rules of Court; such
of all benefits, except the monetary value of his leave credits, if any, and with
an omission certainly prejudiced the government. It is unfortunate that the
prejudice to his re-employment in any branch or service of the government,
Sandiganbayan failed to appreciate these illegal acts and despicable maneuverings.
including government-owned or controlled corporations.
Be that as it may, its dismissal of the criminal case on the ground of insufficiency of
evidence was never meant, as respondent doggedly believed and arrogantly
asserted, to foreclose administrative action against him or to give him a clean bill of The Office of the Court Administrator is hereby directed to conduct a thorough
health in all respects. The Sandiganbayan, in dismissing the same, was simply inquiry into and investigation of the circumstances surrounding the execution sale in
saying that the prosecution was unable to prove the guilt of the respondent beyond question, more particularly the true identity and alleged participation of a certain
reasonable doubt, a condition sine qua non for conviction 2 because of the Judge Luz as above indicated. For that purpose, it should avail of the records of
presumption of innocence which the Constitution guarantee an accused. 3 Lack or Criminal Case No. 12987 of the Second Division of the Sandiganbayan and take the
absence of proof beyond reasonable doubt does not mean an absence of any testimonies of, among others, the respondent, Ms. Rizalina Ingco-Cailian, Atty. Jose
evidence whatsoever for there is another class of evidence which, though C. Sison and Mr. Rolando Patriarca.
insufficient to establish guilt beyond reasonable doubt, is adequate in civil cases;
this is preponderance of evidence. 4 Then too, there is the "substantial evidence" This decision is immediately executory.
rule in administrative proceedings which merely requires in these cases such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. 5 G.R. No. 114683 January 18, 2000

Going back to Our findings, there is no doubt in Our minds that the respondent (a) JESUS C. OCAMPO, petitioner,
falsified the Minutes of Sale and the Sheriff's Certificate of Sale; (b) violated vs.OFFICE OF THE OMBUDSMAN and MAXIMO ECLIPSE, respondents.
Sections 22 and 25, Rule 39 of the Rules of Court by not conducting another bidding
— assuming one was held on 12 May 1986 — after the alleged highest bidder, BUENA, J.:
Patriarca, failed to pay the bid price, by executing in the latter's favor a certificate of
Sheriff's Sale and by delivering the auctioned vessels despite the failure to pay: (c)
illegally sold the vessels to Cailian on 23 May 1986 without a public bidding; and (d) This petition for certiorari seeks to nullify the Resolutions of the Ombudsman in
maliciously connived and conspired with Patriarca, Cailian and others to cover up OMB-Adm-0-92-0020 dated November 18, 19931 and February 28, 19942 which
such illegal acts by making it appear, by means of an antedated deed of sale, that dismissed petitioner from the service, with forfeiture of benefits and special
Patriarca sold the vessels to Cailian. perpetual disqualification to hold office in the government or any government-
owned or controlled corporation, and which denied the motion for reconsideration
thereof, respectively.
Respondent is therefore guilty of gross dishonesty, grave misconduct and conduct
prejudicial to the best interest of the service. He not only deliberately violated the
integrity of official acts of an employee of the court, but also undermined the faith The facts are as follows:
and trust of the public in the Judiciary. He has transgressed the constitutional
command that as a public office is a public trust, all public officers and employees Petitioner is the Training Coordinator of NIACONSULT, INC., a subsidiary of the
must at all times be accountable to the people, serve them with utmost National Irrigation Administration.
responsibility, integrity, loyalty and efficiency, act with patriotism and justice and
lead modest lives. 6 In Jereos vs. Reblando, 7 We laid down the rule that the conduct
and behavior of every one connected with an office charged with the dispensation of
justice, such as the court of which the herein respondent is the assigned sheriff,
On March 21, 1988, K.N. Paudel of the Agricultural Development Bank of Nepal On February 16, 1994 petitioner moved for reconsideration and to re-open the case
(ADBN) Mote a letter to NIACONSULT requesting a training proposal on small-scale claiming that he was denied due process in that the administrative case was
community irrigation development.3 resolved on the basis of the complainant's evidences, without affording him the
opportunity to file a counter-affidavit and to present his evidence. Petitioner likewise
contends that he was not given access to the records of the subject transaction vital
On November 17, 1988, petitioner as the training coordinator of the NIACONSULT,
to his defense and in the preparation of his counter-affidavit despite his verbal
sent a letter-proposal requested by ABDN.4 Another letter was sent by petitioner on
requests to the graft investigator.14
January 31, 1989 to Dr. Peiter Roeloffs of ADBN confirming the availability of
NIACONSULT to conduct the training program and formally requesting advance
payment of thirty (30%) percent of the training fee5 in the amount of US $9,600.00 The respondent OMBUDSMAN denied the motion on February 28, 1994. 15
or P204,960.00.
Aggrieved, petitioner filed the instant petition basically reiterating his arguments in
NIACONSULT conducted the training program for six Nepalese Junior Engineers his motion for reconsideration.
from February 6 to March 7, 1989.6 ADBN, thru its representative, Deutsche
Gesselschaft Technische Zusummenarbeit (GTZ) Gmbh Technical Cooperation of the
We gave due course to the petition and required the parties to submit their
Federal Republic of Germany paid to the petitioner the agreed training fee in two
respective memoranda.
installments of P61,488.00 and P143, 472.00.7

While the case is pending, petitioner filed a Manifestation on May 24, 1997 16 stating
On April 1, 1991, NIACONSULT, through its president, Wilfredo S. Tiongco, wrote a
that the criminal complaint for estafa and falsification filed against him based on the
letter to petitioner demanding the turn-over of the total training fee paid by ADBN
same facts or incidents which gave rise to the administrative case, was dismissed
which petitioner personally received.8 Despite receipt of the letter, petitioner failed
by the Regional Trial Court on February 24, 1997. With the dismissal of the criminal
to remit the said amount prompting NIACONSULT through its president, Maximino
case, petitioner manifests that the administrative case can no longer stand on its
Eclipse, to file an administrative case before respondent OMBUDSMAN for serious
own and therefore should be dismissed.17
misconduct and/or fraud or willful breach of trust.9

Such manifestation is not well taken.


Finding enough basis to proceed with the administrative case, the Administrative
Adjudication Bureau of the respondent OMBUDSMAN, on February 17, 1992, issued
an order10 requiring petitioner to file his counter-affidavit within ten (10) days from The dismissal of the criminal case will not foreclose administrative action filed
receipt with a caveat that failure to file the same would be deemed a waiver of his against petitioner or give him a clean bill of health in all respects. The Regional Trial
right to present evidence. Despite notice, petitioner failed to comply with the said Court, in dismissing the criminal complaint, was simply saying that the prosecution
order. was unable to prove the guilt of petitioner beyond reasonable doubt, a
condition sine qua non for conviction. The lack or absence of proof beyond
reasonable doubt does not mean an absence of any evidence whatsoever for there
A year later, or on March 17, 1993, respondent OMBUDSMAN issued another
is another class of evidence which, though insufficient to establish guilt beyond
order11 giving petitioner another chance to file his counter-affidavit and
reasonable doubt, is adequate in civil cases; this is preponderance of evidence.
controverting evidence. Again, petitioner failed. Thus, on April 14, 1993, private
Then too, there is the "substantial evidence" rule in administrative proceedings
respondent was required to appear before the OMBUDSMAN to present evidence to
which merely requires such relevant evidence as a reasonable mind might accept as
support its complaint.12
adequate to support a conclusion.18 Thus, considering the difference in the quantum
of evidence, as well as the procedure followed and the sanctions imposed in criminal
Thereafter, on November 18, 1993, respondent OMBUDSMAN issued the assailed and administrative proceedings, the findings and conclusions in one should not
Resolution, the decretal portion of which reads: necessarily be binding on the other.19

Withal, for such dishonesty, untrustworthiness, and conduct prejudicial to Going now to the crux of the controversy, petitioner asserts that he was denied the
the service as established by overwhelming evidences, it is respectfully opportunity to be heard.
recommended that respondent Jesus C. Ocampo be discharged from the
service, with forfeiture of benefits and special perpetual disqualification to
The essence of due process is an opportunity to be heard. One may be heard, not
hold office in the government or any government-owned or controlled
solely by verbal presentation but also, and perhaps even many times more
corporation; without prejudice to any civil action NIACONSULT, Inc., may
creditably and practicable than oral argument, through pleadings. In administrative
institute to recover the amount so retained by the respondent.
proceedings, moreover, technical rules of procedure and evidence are not strictly
applied; administrative due process cannot be fully equated to due process in its
SO ORDERED.13 strict judicial sense.20
Petitioner has been amply accorded the opportunity to be heard. He was required to BLAQUERA V. ALCALA, GR NO. 109406, SEPT 11, 1998
answer the complaint against him. In fact, petitioner was given considerable length
of time to submit his counter-affidavit. It took more than one year from February
These are cases for certiorari and prohibition, challenging the
17, 1992 before petitioner was considered to have waived his right to file his
constitutionality and validity of Administrative Order Nos. 29 and 268 on
counter-affidavit and the formal presentation of the complainant's evidence was set.
various grounds.
The March 17, 1993 order was issued to give the petitioner a last chance to present
his defense, despite the private respondent's objections. But petitioner failed to
comply with the second order.1âwphi1.nêt The facts in G.R. Nos. 109406, 110642, 111494, and 112056 are
undisputed, to wit:
Thus, petitioner's failure to present evidence is solely of his own making and cannot
escape his own remissness by passing the blame on the graft investigator. While Petitioners are officials and employees of several government departments
the respondent OMBUDSMAN has shown forbearance, petitioner has not displayed and agencies who were paid incentive benefits for the year 1992, pursuant
corresponding vigilance. He therefore cannot validly claim that his right to due to Executive Order No. 292 1 ("EO 292"), otherwise known as the
process was violated. We need only to reiterate that a party who chooses not to Administrative Code of 1987, and the Omnibus Rules Implementing Book
avail of the opportunity to answer the charges cannot complain of a denial of due V 2 of EO 292. On January 19, 1993, then President Fidel V. Ramos
process.21 ("President Ramos") issued Administrative Order No. 29 ("AO 29")
authorizing the grant of productivity incentive benefits for the year 1992 in
the maximum amount of P1,000.00 3 and reiterating the
Petitioner's claim that he was not given any notice of the order declaring him to
prohibition 4 under Section 7 5 of Administrative Order No. 268 ("AO
have waived his right to file his counter-affidavit and of allowing the private
268"), enjoining the grant of productivity incentive benefits without prior
respondent to present evidence ex-parte is unmeritorious.
approval of the President. Section 4 of AO 29 directed "[a]ll departments,
offices and agencies which authorized payment of CY 1992 Productivity
The orders of respondent OMBUDSMAN requiring petitioner to submit his counter- Incentive Bonus in excess of the amount authorized under Section 1 hereof
affidavit and which was admittedly received by the latter explicitly contain a warning [are hereby directed] to immediately cause the return/refund of the excess
that if no counter-affidavit was filed within the given period, a waiver would be within a period of six months to commence fifteen (15) days after the
considered and the administrative proceedings shall continue according to the rules. issuance of this Order." In compliance therewith, the heads of the
Thus, respondent OMBUDSMAN need not issue another order notifying petitioner departments or agencies of the government concerned, who are the herein
that he has waived his right to file a counter-affidavit. In the same way, petitioner respondents, caused the deduction from petitioners' salaries or allowances
need not be notified of the ex-parte hearing for the reception of private of the amounts needed to cover the alleged overpayments. To prevent the
respondent's evidence. As such, he could not have been expected to appear at respondents from making further deductions from their salaries or
the ex-parte hearing. allowances, the petitioners have come before this Court to seek relief.

With regard to the petitioner's claim that he made requests for the production of the In G.R. No. 119597, the facts are different but the petition poses a common
documents alleged to be material to his defense, the record is bereft of any proof of issue with the other consolidated cases. The petitioner, Association of
such requests. If it were true that the graft investigator did not act on such Dedicated Employees of the Philippine Tourism Authority ("ADEPT"), is an
requests, petitioner should have filed the proper motion before the respondent association of employees of the Philippine Tourism Authority ("PTA") who
OMBUDSMAN for the production of the documents or to compel the respondent were granted productivity incentive bonus for calendar year 1992 pursuant
complainant to produce whatever record necessary for his defense. Petitioner did to Republic Act No. 6971 ("RA 6971"), otherwise known as the Productivity
not. It was only after the respondent OMBUDSMAN issued the assailed resolution of Incentives Act of 1990. Subject bonus was, however, disallowed by the
November 18, 1993 that he bewailed the alleged failure of respondent's graft Corporate Auditor on the ground that it was "prohibited under
investigator to require the production of the records of the subject transaction. Administrative Order No. 29 dated January 19, 1993." 6 The disallowance
of the bonus in question was finally brought on appeal to the Commission
The record of this case indisputably shows that petitioner is guilty of dishonesty and an Audit (COA) which denied the appeal in its Decision 7 of March 6, 1995,
conduct prejudicial to the government when he failed to remit the payment of the ratiocinating, thus:
training program conducted by NIACONSULT. The evidence presented sufficiently
established that petitioner received the payments of ADBN through its . . . Firstly, the provisions of RA #6971 insofar as the coverage is concerned
representative, GTZ, Philippines the amount of US $9,600.00 and that he failed to refer to business enterprises including government owned and/or
account this and remit the same to the corporation. All these acts constitute controlled corporations performing proprietary functions.
dishonesty and untrustworthiness.
Sec. 1a of the Supplemental Rules Implementing RA #6971 classified such
WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed coverage as:
Resolutions of the respondent OMBUDSMAN are hereby AFFIRMED.
All business enterprises, with or without existing duly certified labor April 3, 1992 the Supplemental to Rules implementing RA 6971 otherwise
organizations, including government owned and/or controlled corporations known as the "Productivity Incentives Act of 1990." . . .
performing proprietary functions which are established solely for business
or profit and accordingly excluding those created, maintained or acquired
Lastly, considering the title of RA #6971, i.e. "An Act to encourage
in pursuance of a policy of the State enunciated in the Constitution, or by
productivity and maintain industrial peace by providing incentives to both
law and those whose officers and employess are covered by the Civil
labor and capital", and its implementing rules and regulations prepared by
Service. (emphasis supplied)
the Department of Labor and Employment and the Department of Finance,
this Office concludes that said law/regulation pertains to agencies in the
The PTrA is a GOCC created in pursuance of a policy of the State, Section 9 private sector whose employees are covered by the Labor Code.
of Presidential Decree No. 189 states that "To implement the policies and
program of the Department (Dept. of Tourism), there is hereby created a
With the denial of its appeal, petitioner found its way here via the petition
Philippine Tourism Authority, . . ." Likewise, Section 21 of the same decree
in G.R. No. 119597, to seek relief from the aforesaid decision of COA.
provides that "All officials and employees of the Authority, . . ., shall be
subject to Civil Service Law, rules and regulations, and the coverage of the
Wage and Position Classification Office. We will first resolve the issue on the applicability of RA 6971 to petitioner
ADEPT in G.R. No. 119597 before passing upon the constitutionality or
validity of Administrative Orders 29 and 268.
Furthermore, although Supplemental Rules and Regulations implementing
R.A. #6971 was issued only on December 27, 1991, the law itself is clear
that it pertains to private business enterprises whose employees are Sec. 3 of RA 6971, reads:
covered by the Labor Code of the Philippines, as mentioned in the following
provisions: Sec. 3. Coverage. This Act shall apply to all business enterprises with or
without existing and duly recognized or certified labor organizations,
Sec. 5. Labor Management Committee. . . . that at the reguest of any party including government-owned and controlled corporations performing
to the negotiation, the National Wages and Productivity Commission of the proprietary functions. It shall cover all employees and workers including
Department of Labor and Employment shall provide the necessary studies, . casual, regular, supervisory and managerial employees. (emphasis ours)
...
Pursuant to Section 10 8 of RA 6971, the Secretary of Labor and Secretary
Sec. 8. Notification. — A business enterprise which adopts a productivity of Finance issued Supplemental Rules to Implement the said law, as
incentive program shall submit copies of the same to the National Wages follows:
and Productivity Commission and to the Bureau of Internal Revenue for
their information and record. Sec. 1. — Paragraph (a) Section 1, Rule II of the Rules Implementing RA
6971, shall be amended to read as follows:
Sec. 9. Disputes and Grievances. — Whenever disputes, grievances, or
other matters arise from the interpretation or implementation of the Coverage. These Rules shall apply to:
productivity incentive program, . . . may seek the assistance of the National
Conciliation and Mediation Board of the Department of Labor and
Employment for such purpose. . . . (a) All business enterprises with or without existing duly certified labor
organizations, including government-owned and controlled corporations
performing proprietary functions which are established solely for business
Therefore, considering the foregoing, the PTrA is within the "exclusion" or profit or gain and accordingly excluding those created, maintained or
provision of the Implementing Rules of RA #6971 and so, it (PTrA) does acquired in pursuance of a policy of the state, enunciated in the
not fall within its coverage as being entitled to, the productivity incentive Constitution or by law, and those whose officers and employees are
bonus under RA #6971. covered by the Civil Service. (emphasis ours)

Secondly, Administrative Order No. 29 which is the basis for the grant of Petitioner contends that the PTA is a government-owned and controlled
the productivity incentive bonus/benefits for CY 1992 also explessly corporation performing proprietary function, and therefore the Secretary of
provides "prohibiting payments of similar benefits in future years unless Labor and Employment and Secretary of Finance exceeded their authority
duly authorized by the President." in issuing the aforestated Supplemental Rules Implementing RA 6971.

Thirdly, the disallowance of the Auditor, PTrA has already been resolved Government-owned and controlled corporations may perform
when this Commission circularized thru COA Memorandum #92-758 dated governmental or proprietary functions or both, depending on the purpose
for which they have been created. If the purpose, is to obtain special
corporate benefits or earn pecuniary profit, the function is proprietary. If it 2. Acquisition and disposition of lands and other assets for tourist zone
is in the interest of health, safety and for the advancement of public good purposes
and welfare, affecting the public in general, the function is
governmental. 9 Powers classified as "proprietary" are those intended for
a. To acquire possession and ownership of all lands transferred to it from
private advantage and benefit. 10
other government corporations and institutions and any land having
tourism potential and earmarked in the Tourism Priorities Plans for
The PTA was established by Presidential Decree No. 189, as amended by intensive development into a tourist zone or as a part thereof, subject to
Presidential Decree No. 564 ("PD 564"). the approval of the President.

Its general purposes 11 are: b. To acquire by purchase, by negotiation or by condemnation proceedings


any private land within and without the tourist zones for any of the
following reasons: (a) consolidation of lands for tourist zone development
1. To implement the policies and programs of the Department of Tourism
purposes, (b) prevention of land speculation in areas declared as tourist
("Department");2. To develop tourist zones;
zones, (c) acquisition of right of way to the zones, (d) protection of water
shed areas and natural assets with tourism value, and (e) for any other
3. To assist private enterprises in undertaking tourism projects; purpose expressly authorized under PD 564.

4. To operate and maintain tourist facilities; c. For the purpose of providing land acquisition assistance to registered
tourism enterprises, to sell, subdivide, resell, lease, sublease, rent out, or
5. To assure rand availability for private investors in hotels and other otherwise, to said registered tourism enterprises under sufficiently soft
tourist facilities; terms for use specifically in the development of hotels, recreational
facilities, and other tourist services.

6. To coordinate all tourism project plans and operations.


d. To develop and/or subdivide any land in its name or undertake
condominium projects thereon, and sell subdivision lots or condominium
Its specific functions and powers 12 are: units to private persons for investment purposes.

1. Planning and development of tourism projects e. To take over or transfer to a registered tourism enterprise in accordance
with law any lease on foreshore areas within a tourist zone or adjacent
a. To assist the Department make a comprehensive survey of the physical thereto, in cases said areas are not being utilized in accordance with the
and natural tourism resources of the Philippines; to establish the order of PTA's approved zone development plan and wherein the lessee concerned
priority for development of said areas; to recommend to the President the does not agree to conform accordingly.
proclamation of a tourist zone; and to define and fix the boundaries of the
zone; f. To arrange for the reclamation of any land adjacent to or adjoining a
tourist zone in coordination with appropriate government agencies.
b. To formulate a development plan for each zone;
3. Infrastructure development for tourist zone purposes
c. To submit to the President through the National Economic and
Development Athority for review and approval all development plans a. To contract, supervise and pay for infrastructure works and civil works
before the same are enforced or implemented; within a tourist zone owned and operated by the PTA.

d. To submit to the President an Annual Progress Report; b. To coordinate with appropriate government agencies the development of
infrastructure requirements supporting a tourist zone.
e. To assist the Department to determine the additional capacity
requirements for various tourist facilities and services; to prepare a ten- c. To take water from any public stream, river, creek, lake, spring, or
year Tourism Priorities Plan; to update annually the ten year Tourism waterfall and to alter, straighten, obstruct or increase the flow of water in
Priorities Plan. streams.

f. To gather, collate and analyze statistical data and other pertinent 4. Zone adminstration and control
information for the effective implementation of PD 564.
a. To formulate and implement zoning regulations. g. To identify, contact and assist in negotiations of suitable partners for
both local and foreign investors interested in investment or participation in
the tourism industry.
b. To determine and regulate the enterprises to be established within a
tourist zone.
h. To assist registered enterprises and prospective investors to have their
papers processed with dispatch by government offices.
c. To ensure, through the proper authorities concerned, the ecological
preservation, maintenance and/or rehabilitation of the common and the
public areas within a tourist zone and the environment thereof. 7. Other powers and functions

d. To identify and recommend to the President the preservation and/or a. To engage or retain the services of financial, management, legal,
restoration of national monuments or preserves; to arrange for the technical, and/or project consultants from the private or government
preservation and/or restoration of the same with appropriate government sector.
agencies or with the private sector or with the owners themselves of said
tourist attractions; and to identify and recommend to the appropriate
b. To have the power to succeed by its corparate name.
authorities concerned the declaration of tourist areas and attractions as
national monuments and preserves.
c. To adopt, alter, and use a corporate seal.
5. Project and investment promotions
d. To sue and be sued under its corporate name.
a. To identify, develop, invest in, own, manage and operate such projects
as it may deem to be vital for recreation and rest but not sufficiently e. To enter into any contracts of any kind and description.
attractive economically for private investment.
f. To own or possess personal and/or real property.
b. To construct hotel buildings and other tourist facilities within a tourist
zone and in turn lease such facilities to registered tourism enterprises for g. To make, adopt and enforce rules and regulations to execute its powers,
operation, management and maintenance. duties and functions.

c. To organize, finance, invest in, manage and operate wholly-owned h. To purchase, hold, and alienate shares of stock or bonds of any
subsidiary corporations. corporation.

6. Direct assistance to registered enterprises i. To collect fees or charges as may be imposed under PD 564.

a. To administer the tax and other incentives granted to registered j. To contract indebtedness and issue bonds.
enterprises.

k. To fix and collect rentals for the lease, use or occupancy of lands,
b. To evaluate, approve and register or reject any and all tourism projects buildings, or other property owned or administered by PTA.
or enterprises established within the tourist zones.

l. To do any and all acts and things necessary to carry out the purposes for
c. To grant medium and long-term loans and/or re-lend any funds which the PTA is created.
borrowed for the purpose to duly qualified registered tourism enterprises.

Categorited in light of the foregoing provisions of law in point, PTA's


d. To guarantee local and foreign borrowings of registered enterprises. governmental functions include the first, third, fourth, and sixth of the
aforesaid general purposes. The second 13 and fifth general purposes fall
e. To provide equity investments in the form of cash and/or land. under its proprietary functions.

f. To extend technical, management and financial assistance to tourism With respect to PTA's specific functions and powers, the first and fourth are
projects. governmental in nature while the specific functions and powers are
proprietary in character. The second, third, sixth, and seventh specific
functions and powers can be considered partly-governmental and partly-
proprietary, considering that 2(a), 2(b), 2(c), 2(d), 2(e), 3(a), 6(c), 6(d), Since the terms and conditions of
6(e), 7(h), 7(j), and 7(k) are proprietary functions while 2(f), 3(b), 3(c), government employment are fixed by law,
6(a), 6(b), 6(f), 6(g), 6(h), 7(a), 7(b), 7(c), 7(d), 7(f), 7(g), and 7(l) are government workers cannot use the same
governmental functions. The specific functions and powers treated in 7(e) weapons employed by workers in the
and 7(i) may be classified either as propietary or governmental, depending private sector to secure concessions from
on the circumstances under which they are exercised or performed. their employers. The principle behind labor
unionism in private industry is that
industrial peace cannot be secured through
The aforecited powers and functions of PTA are predominantly
compulsion by law. Relations between
governmental, principally geared towards the development and promotion
private employers and their employees rest
of tourism in the scenic Philippine archipelago. But it is irrefutable that
on an essentially voluntary basis. Subject
PTA.also performs proprietary functions, as envisaged by its charter.
to the minimum requirements of wage laws
and other labor and welfare legislation, the
Reliance on the above analysis of the functions and powers of PTA does not terms and conditions of employment in the
suffice for the determination of whether or not it is within the coverage of unionized private sector are settled
RA 6971. For us to resolve the issues raised here solely on the basis of the through the process of collective
classification of PTA's powers and functions may lead to the rendition of bargaining. In government employment
judgment repugnant to the legislative intent and to established doctrines, however, it is the legisleture and, where
as well, such as on the prohibition against government workers to properly given delegated power, the
strike. 14 Under RA 6971, the workers have the right to strike. administrative heads of government which
fix the terms and conditions of
To ascertain whether PTA is within the ambit of RA 6971, there is need to employment. And this is effected through
find out the legislative intent, and to refer to other provisions of RA 6971 statutes or administrative circulars, rules,
and other pertinent laws, that may aid the Court in ruling on the right or and regulations, not through collective
officials and employees of PTA to receive bonuses under RA 8971. bargaining agreements. (Alliance of
Government Workers v. Minister of Labor
and Employment, 124 SCRA 1) (emphasis
Petitioner cites an entry in the journal of the House of Representatives to ours)
buttress its submission that PTA is within the coverage of RA 6971, to wit:

Government corporations may be created by special charters or by


Chairman Veloso: The intent of including government-owned and controlled incorporation under the general corporation law. Those created by special
corporations within the coverage of the Act is the recognition of the charters are governed by the Civil Service Law while those incorporated
principle that when government goes into business, it (divests) itself of its under the general corporation law are governed by the Labor Code. 16
immunity from suit and goes down to the level of ordinary private
enterprises and subjects itself to the ordinary laws of the land just like
ordinary private enterprises. Now, when people work therefore in The legislative intent to place only government-owned and controlled
government-owned or controlled corporations, it is as if they are also, just corporations performing proprietary functions under the coverage of RA
like in the private sector, entitled to all the benefits of all laws that apply to 6971 is gleanable from the other provisions of the law. For instance,
workers in the private sector. In my view, even including the right to section 2 17 of said law envisions "industrial peace and harmony" and "to
organize, bargain. . . . VELOSO (Bicameral Conference Committee on Labor provide corresponding incentives to both labor and capital;" section
and Employment, pp. 15-16) 4 18 refers to "representatives of labor and management," section
5 19 mentions of "collective bargaining agent(s) of the bargaining unit(s);"
section 6 20 relates to "existing collective bargaining agreements," and
After a careful study, the Court is of the view, and go holds, that contrary "labor and management;" section 7 21 speaks of "strike or lockout;" and
to petitioner's interpretation, the government-owned and controlled section 9 22 purports to "seek the assistance of the National Conciliation
corporations Mr. Chairman Veloso had in mind were government-owned and Mediation Board of the Department of Labor and Employment" and
and controlled corporations incorporated under the general corporation "include the name(s) of the voluntary arbitrators or panel of voluntary
law. This is so because only workers in private corporations and arbitrator." All the aforecited provisions of law apply only to private
government-owned and controlled corporations, incorporated under the corporations and government-owned and controlled corporations organized
general corporation law, have the right to bargain (collectively). Those in under the general corporation law. Only they have collective bargaining
government corporations with special charter, which are subject to Civil agents, collective bargaining units, collective bargaining agreements, and
Service Laws, have no right to bargain (collectively), except where the the right to strike or lockout.
terms and conditions of employment are not fixed by law 15. Their rights
and duties are not comparable with those in the private sector.
To repeat, employees of government corporations created by special
charters have neither the right to strike nor the right to bargain
collectively, as defined in the Labor Code. The case of Social Security All things studiedly considered in proper perspective, the Court finds no
System Employees Associalion indicates the following remedy of reversible error in the finding by respondent Commission that PTA is not
government workers not allowed to strike or bargain collectively, to wit: within the purview of RA 6971. As regards the promulgation of
implementing rules and regulations, it bears stressing that the "power of
administrative officials to promulgate rules in the implementation of the
Government employees may, therefore,
statute is necessarily limited to what is provided for in the legislative
through their unions or associations, either
enactment." 26 In the case under scrutiny, the Supplementary Rules
petition the Congress the betterment of the
Implementing RA 6971 issued by the Secretary of Labor and Employment
terms and conditions of employment which
and the Secretary of Finance accord with the intendment and provisions of
are within the ambit of legislation or
RA 6971. Consequently, not being covered by RA 6971, AO 29 applies to
negotiate with the appropriate government
the petitioner.
agencies for the improvement of those
which are not fixed by law. If there be any
unresolved grievances, the dispute may be We now tackle the common issue posited by the consolidated petitions on
referred to the Public Sector Labor- the constitutionality of AO 29 and AO 268.
Management Council for appropriate action.
But employees in the civil service may not
Petitioners contend and argue, that:
resort to strikes, walkouts and other
temporary work stoppages, like workers in
the private sector, to pressure the I. AO 29 AND AO 268 ARE VIOLATIVE OF THE PROVISIONS OF EO 292 AND,
Government to accede to their demands, HENCE, NULL AND VOID.
(supra, footnote 14, p. 698; emphasis ours)
II. AO 29 AND AO 268 UNLAWFULLY USURP THE CONSTITUTIONAL
It is a rule in statutory construction that every part of the statute must be AUTHORITY GRANTED SOLELY TO THE CIVIL SERVICE COMMISSION.
interpreted with reference to the context, i.e., that every part of the statute
must be considered together with the other parts, and kept subservient to III. THE FORCED REFUND OF INCENTIVE PAY IS AN UNCONSTITUTIONAL
the general intent of the whole enactment. 23 The provisions of RA 6971, IMPAIRMENT OF A CONTRACTUAL OBLIGAITION.
taken together, reveal the legislative intent to include only government-
owned and controlled corporations performing proprietary functions within
its coverage. IV. ASSUMING, FOR THE SAKE OF ARGUMENT ONLY, THAT THE GRANT OF
PRODUCTIVITY INCENTIVE BENEFITS WAS INVALID, THE SAME SHOULD BE
THE PERSONAL LIABILITY OF OFFICIALS DIRECTLY RESPONSIBLE
Every statute must be construed harmonized with other statutes as to form THEREFOR IN ACCORDANCE WITH SECTION 9 OF AO 268.
a uniform system of jurisprudence. 24 We note Section 1, Rule X of the
Omnibus Rules Implementing Book V of EO 292, which reads:
Issued by the then President Corazon Aquino ("President Aquino") on July
25, 1987 in the exercise ol her legislative powers under the 1987
Sec. 1. — Each department or agency of government, whether national or Constitution, 27 EO 292, or the Administrative Code or 1987, provided for
local, including bureaus and agencies, state colleges and universities, the following incentive award system:
and government owned and controlled corporations with original charters,
shall establish its own Department or Agency Employee Suggestions and
Incentives Award System in accordance with these Rules and shall submit Sec. 31. Career and Personnel Development Plans. — Each department or
the same to the Commission for approval. (emphasis ours) agency shall prepare a career and personnel development plan which shall
be integrated into a national plan by the Commission. Such career and
personnel development plans which shall include provisions on merit
It is thus evident that PTA, being a government-owned and promotions, performance evaluation, in-service training, including overseas
controlled corporation with original charter subject to Civil Service and local schorlarship and training grants, job rotation, suggestions and
Law, Rules and Regulations, 25 is already within the scope of an incentive award systems, and such other provisions for employees' health,
incentives award systern under Section 1, Rule X of the Omnibus welfare, counseling, recreation and similar services.
Rules Implementing EO 292 issued by the Civil Service Commission
("Commission"). Since government-owned and controlled
corporations with original charters do have an incentive award Sec. 35. Employee Suggestions and Incentive Award Syatem. — There shall
system, Congress enacted a law that would address the same be established a government-wide employee suggestions and incentive
concern of officials and employees of government-owned and awards system which shall be administered under such rules, regulations,
controlled corporations incorporated under the general corporation and standards as maybe promulgated by the Commssion.
law.
In accordance with rules, regulations, and standards promulgated by the Sec. 7. The productivity incentive benefits herein authorized shall be
Commission, the President or the head of each department or agency is granted only for Calendar Year 1991. Accordingly, all heads of agencies,
authorized to incur whatever necessary expensesd involved in the honorary including the governing boards of government-owned or -controlled
recognition of subordinate officers and employees of the government who corporations and financial institutions, are hereby strictly prohibited from
by their suggestions, inventions, superior accomplishment, and other authorizing/granting productivity incentive benefits or other allowances of
personal efforts contribute to the efficiency, economy, or other similar nature for Calendar Year 1992 and future years pending the result
improvement of government operations, or who perform such other of a comprehensive study being undertaken by the Office of the President
extraordinary acts or services in the public interest in connection with, or in coordination with the Civil Service Commission and the Department of
in relations to, their official employment. Budget and Management on the matter.

Sec. 36. Personnel Relations. — (1) It shall be the concern of the The formulation of the necessary implementing guidelines for Executive
Commission to provide leadership and assistance in developing employee Order No. 486 dated 8 November 1991 establishing a performance-based
relations programs in the department or agencies. incentive system for government-owned or
-controlled corporations shall likewise be included in the comprehensive
study referred to in the preceding paragraph.
(2) Every Secretary or head of agency shall take all proper steps toward
the creation of an atmosphere conducive to good supervisor-employee
relations and the improvement of employee morale. On January 19, 1993, President Ramos issued AO 29 which granted
productivity incentive benefits to government employees in the maximum
amount of P1,000.00 31 for the calendar year 1992 but reiterated the
Pursuant to the provision of Section 12(2), 28 Chapter 3, Book V or
proscription under Section 7 of AO 268, thus:
EO 292, the commission adopted and prescribed the Omnibus Rules
Implementing Book V of EO 292 which, among others, provide:
Sec. 2. The prohibition prescribed under Section 7 of Administrative Order
No. 268 is hereby reiterated. Accordingly, all heads of government
Sec. 1. — Each department or agency of government, whether national or
offices/agencies, including government-owned and/or controlled
local, including bureaus and agencies, state colleges and universities, and
corporations, as well as their respective governing boards are hereby
government owned and controlled corporations with original charters, shall
enjoined and prohibited from authorizing/granting Productivity Incentive
establish its own Department or Agency Employee Suggestions and
Benefits or any and all similar forms of allowances/benefits without prior
Incentives Award System in accordance with these Rules and shall submit
approval and authorization via Administrative Order by the Office of the
the same to the Commission for approval.
President. Henceforth, anyone found violating any of the mandates in this
Order, including all officials/employees and the COA Auditor-in-Charge of
Sec. 2. — The System is designed to encourage creativity, innovativeness, such government office/agency found to have taken part thereof, shall be
efficiency, integrity and productivity in the public service by recognizing accordingly and severely dealt with in accordance with the applicable
and rewarding officials and employees, individually or in groups, for their provisions of existing penal laws.
suggestions, inventions, superior accomplishments, and other personal
efforts which contribute to the efficiency, economy, or other improvement
Consequently, all administrative authorizations to grant any form of
in government operations, or for other extraordinary acts of services in the
allowances/benefits and all forms of additional compensation usually paid
public interest.
outside of the prescribed basic salary under R.A. No. 6758, the Salary
Standardization Law, that are inconsistent with the legislated policy on the
Sec. 7. — The incentive awards shall consist of, though not limited to, the matter or are not covered by any legislative action are hereby revoked.
following:
The implementation of Executive Order No. 486 dated November 8, 1991,
(c) Productivity Incentive which shall be given to an employee or group of as amended by Executive Order No. 518 dated May 29, 1992, is hereby
employees who has exceeded their targets or has incurred incremental deferred until a more comprehensive and equitable scheme for the grant of
improvement over existing targets. the benefits that can be applied government-wide is formulated by the
Department of Budget and Management.
On February 21, 1992, President Aquino issued AO 268 which granted
"each official and employee of the government the productivity incentive Petitioners theorize that AO 29 and AO 268 violate EO 292 and since the
benefits in a maximum amount equivalent to thirty percent (30%) of his latter is a law, it prevails over executive issuances. Petitioners likewise
one (1) month basic salary but in no case shall such amount be less than assert that AO 29 and AO 268 encroach upon the constitutional authority of
two thousand pesos (P2,000.00)," 29 for those who have rendered at least the Civil Service Commission to adopt measures to strengthen the merit
one year of service as of December 31, 1991. 30 Said AO carried the and rewards system and to promulgate rules, regulations and standards
prohibition, provided in Section 7 thereof, which reads: governing the incentive awards system of the civil service.
The Court is not impressed with petitioners' submission. AO 29 and AO 268 authorized to incur whatever necessary expenses involved in the honorary
were issued in the valid exercise of presidential control over the executive recognition of subordinate officers and employees of the government who
departments. by their suggestions, inventions, superior accomplishment, and other
personal efforts contribute to the efficiency, economy, or other
improvement of government operations or who perform such other
In establishing a Civil Service Commission, the 1987 Constitution
extraordinary acts or services in the public interest in connection with, or
delineated its function, as follows:
in relation to, their official employment. (EO 292) (emphasis ours)

The Civil Service Commission, as the central personnel agency of the


The President is the head of the government. Governmental power and
Government, shall establish a career service and adopt measures to
authority are exercised and implemented through him. His power includes
promote morale, efficiency, integrity responsiveness, progressiveness, and
the control executive departments —
courtesy in the civil service. It shall strengthen the merit and rewards
system, integrate all human resources development programs for all levels
and ranks, and institutionalize a management climate conducive to public The president shall have control of all the executive departments, bureaus,
accountability. It shall submit to the President and the Congress an annual and offices. He shall ensure that the laws be faithfully execute. (Section 17,
report on its personnel programs. (Section 3, Article IX, B, 1987 Article VII, 1987 Constitution)
Constitution)
Control means "the power of an officer to alter or modify or set aside what
The Commission handles personnel matters of the government. As the a subordinate officer had done in the performance of his duties and to
central personnel agency of the Government, it is tasked to formulate and substitute the judgment of the former for that of the latter." 32 It has been
establish a system of incentives and rewards for officials and employees in held that "[t]he President can, by virtue of his power of control, review,
the public sector, alike. modify, alter or nullify any action, or decision, of his subordinate in the
executive departments, bureaus, or offices under him. He can exercise this
power motu proprio without need of any appeal from any party." 33
The functions of the Commission have been decentralized to the different
departments, offices, and agencies of the government —
When the President issued AO 29 limiting the amount of incentive benefits,
enjoining heads of government agencies from granting incentive benefits
Sec. 1. Declaration of Policy. — The State shall insure and promote the
without prior approval from him, and directing the refund of the excess
Constitutional mandate that appointment in the Civil Service shall be made
over the prescribed amount, the President was just exercising his power of
only according to merit and fitness; that the Civil Service Commission, as
control over executive departments. This is decisively clear from the
the central personnel agency of the Government shall establish a career
WHEREAS CLAUSES of AO 268 and AO 29, to wit:
service, adopt measures to promote morale, efficiency, integrity,
responsiveness, and courtesy in the civil service, strengthen the merit and
rewards system, integrate all human resources development programs for ADMINISTRATIVE ORDER NO. 268
all levels and ranks, and institutionalize a management climate conducive
to public accountability; that public office is a public trust and public
WHEREAS, the Productivity incentive benefits granted by the different
officers and employees must at all times be accountable to the people; and
agencies are of varying amounts, causing dissension/demoralization on the
that personnel functions shall be decentralized, delegating the
part of those who had received less and those who have not yet received
corresponding authority to the departments, offices and agencies where
any such benefit, thereby defeating the purpose for which the same should
such functions can be effectively performed. (Section 1, Chapter I, Subtitle
be granted; and
A, Title I, EO 292) (emphasis ours)

WHEREAS, there exists the need to regulate the grant of the productivity
Specifically, implementation of the Employee Suggestions and Incentive
incentive benefits or other similar allowances in conformity with the policy
Award System has been decentralized to the President or to the head of
on standardization of compensation pursuant to Republic Act No. 6758;
each department of agency —

ADMINISTRATIVE ORDER NO. 29


Sec. 35. Employee Suggestions and Incentive Award System. — There shall
be established a government-wide employee suggestions and incentive
awards system which shall be administered under such rules, regulations, WHEREAS the faithful implementation of statutes, including the
and standards as maybe promulgated by the Commission. Administrative Code of 1987 and all laws governing all forms of additional
compensation and personnel benefits is a Constitutional prerogative vested
in the President of the Philippines under Section 17, Article VII of the, 1987
In accordance with rules, regulations, and standards promulgated by the
Constitution;
Commission, the President or the head of each department or agency is
WHEREAS, the Constitutional prerogetive includes the determination of the incentive benefits. The same merely regulated the grant and amount
rates, the timing and schedule of payment, and final authority to commit thereof.
limited resources of government for the payment of personnel incentives,
cash awards, productivity bonus, and other forms of additional
Sound management and effective utilization of financial resources of
compensation and fringe benefits;
government are basically executive functions, 34 not the Commission's.
Implicit is this recognition in EO 292, which states:
WHEREAS, some government agencies have overlooked said Constitutional
prerogative and have unilaterally granted to their respective officials and
Sec. 35. Employee Suggestions and Incentive Award System. — There shall
employees incentive awards;
be established a government-wide employee suggestions and incentive
awards system which shall be administered under such rules, regulations,
WHEREAS, the Offioe of the President issued Administrative Order No. 268, and standards as maybe promulgated by the Commission.
dated February 21, 1992, strictly prohibiting the grant of Productivity
Incentive Bonus or other allowances of similar nature for Calender Year
In accordance with rules, regulations and standards promulgeted by the
1992 and future years pending the issuance of the requisite authorization
Commission, the President or the head of each department or agency is
by the President;
authorized to incur whatever necessary expenses involved in the honorary
recognition of subordinate officers and employees of the government who
WHEREAS, notwithstanding said prohibition some government by their suggestions, inventions, superior accomplishment, and other
offices/agencies and government-owned and/or controlled corporations personal efforts contribute to the efficiency, economy, or other
and financial institutions have granted productivity incentive benefits in improvement of government operations, or who perform such other
varying nomenclature and amounts without the proper extraordinary acts or services in the public interest in connection with, or
authorization/coordination with the Office of the President; in relation to their official employment. (Chapter 5, Subtitle A, Book V)
(emphasis ours)
WHEREAS, the unilateral and uncoordinated grant of productivity incentive
benefits gave rise to discontentment, dissatisfaction and demoralization Conformably, it is "the President or the head of each department or agency
among government personnel who have received less or have not received who is authorized to incur the necessary expenses involved in the honorary
at all such benefits; recognition of subordinate officers and employees of the government." It is
not the duty of the Commission to fix the amount of the incentives. Such
function belongs to the President or his duly empowered alter ego.
The President issued subject Administrative Orders to regulate the grant of
productivity incentive benefits and to prevent discontentment,
dissatisfaction and demoralization among government personnel by Anent petitioners' contention that the forcible refund of incentive benefits
committing limited resources of government for the equal payment of is an unconstitutional impairment of a contractual obligation, suffice it to
incentives and awards. The President was only exercising his power of state that "[n]ot all contracts entered into by the government will operate
control by modifying the acts of the respondents who granted incentive as a waiver of its non-suability; distinction must be made between its
benefits to their employees without appropriate clearance from the Office sovereign and proprietary acts (United States of America v. Ruiz, 136 SCRA
of the President, thereby resulting in the uneven distribution of 487)." 35 The acts involved in this case are governmental. Besides, the
government resources. In the view of the President, respondents did a Court is in agreement with the Solicitor General that the incentive pay or
mistake which had to be corrected. In so acting, the President exercised a benefit is in the nature of a bonus which is not a demandable or
constitutionally-protected prerogative — enforceable obligation.

The President's duty to execute the law is of constitutional origin. So, too, It is understood that the Judiciary, Civil Service Commission, Commission
is his control of all executive departments. Thus it is, that department on Audit, Commission on Elections, and Office of the Ombudsman, which
heads are men of his confidence. His is the power to appoint them; his, too, enjoy fiscal autonomy, are not covered by the amount fixed by the
is the privilege to dismiss them at pleasure. Naturally he controls and President. As explained in Bengzon vs. Drilon (208 SCRA 133):
directs their acts. Implicit then is his authority to go over, confirm, modify
or reverse the action taken by his department secretaries. In this context,
As envisioned in the Constitution, the fiscal autonomy enjoyed by the
it may not be said that the President cannot rule on the correctness of a
Judiciary, the Civil Service Commission, the Commission on Audit, the
decision of a department secretary. (Lacson-Magallanes Co., Inc. v. Paño,
Commission on Elections, and the Office of the Ombudsman contemplates a
21 SCRA 898)
guarantee of full flexibility to allocate and utilize their resources with the
wisdom and dispatch that their needs require. It recognizes the power and
Neither can it be said that the President encroached upon the authority of authority to levy, assess and collect fees, fix rates of compensation not
the Commission on Civil Service to grant benefits to government personnel. exceeding the highest rates authorized by law for compensation and pay
AO 29 and AO 268 did not revoke the privilege of employees to receive plans of the government and allocate and disburse such sums as may be
provided by law or prescribed by them in the course of the discharge of In G.R. No. 119597, the assailed Decision of respondent Commission on
their functions. Audit is AFFIRMED. No pronouncement as to costs.

Fiscal autonomy means freedom from outside control. If the Supreme Court SO ORDERED.
says it needs 100 typewriters but DBM rules we need only 10 typewriters
and sends its recommendations to Congress without even informing us, the
Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
autonomy given by the Constitution becomes an empty and illusory
Mendoza, Panganiban, Martinez and Quisumbing, JJ., concur.
platitude.

Regalado, J., is on leave.


The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence and flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions and constraints on the Footnotes
manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and 1 The applicable provisions are contained in Chapter 5, Subtitle A, Title I, of
violative not only of the express mandate of the Constitution but especially Book V:
as regards the Supreme Court, of the independence and separation of
powers upon which the entire fabric of our constitutional system is based.
In the interest of comity and cooperation, the Supreme Court, Sec. 31. Career and Personnel Development Plans. — Each department or
Constitutional Commissions, and the Ombudsman have so far limited their agency shall prepare a career and personnel deveplopment plan which
objections to constant reminders. We now agree with the petitioners that shall be integrated into a national plan by the Commission. Such career and
this grant of autonomy should cease to be a meaningless provision. personnl development plans which shall include provisions on merit
promotions, performance evaluation, in-service training, including overseas
and local scholarship and training grants, job rotation, suggestions and
Untenable is petitioners' contention that the herein respondents be held incentive award systems, and such other provisions for employees' health,
personally liable for the refund in question. Absent a showing of bad faith welfare, counseling, recreation and similar services.
or malice, public officers are not personally liable for damage resulting
from the performance of official duties. 36
Sec. 35. Employee Suggestions and Incentive Award System. — There shall
be established a government-wide employee suggestions and incentive
Every public official is entitled to the presumption of good faith in the awards system which shall be administered under such rules, regulations,
discharge of official duties. 37 Absent any showing of bad faith or malice, and standards as maybe promulgated by the Commission.
there is likewise a presumption of regularity in the performance of official
duties. 38
In accordance with rules, regulations, and standards
promulgated by the Commission, the President or the head
In upholding the constitutionality of AO 268 and AO 29, the Court of each department or agency is authorized to incur
reiterates the well-entrenched doctrine that "in interpreting statutes, that whatever necessary expenses involved in the honorary
which will avoid a finding of unconstitutionality is to be preferred." 39 recognition of subordinate officers and employees of the
government who by their suggestions, inventions, superior
Considering, however, that all the parties here acted in good faith, we accomplishment, and other personal efforts contribute to
cannot countenance the refund of subject incentive benefits for the year the efficiency, economy, or other improvement of
1992, which amounts the petitioners have already received. Indeed, government operations, or who perform such other
no indicia of bad faith can be detected under the attendant facts and estraordinary acts or services in the public interest in
circumstances. The officials and chiefs of offices concerned disbursed such connection with, or in relation to their official employment.
incentive benefits in the honest belief that the amounts given were due to
the recipients and the latter accepted the same with gratitude, confident Sec. 36. Personnel Relations. — (1) It shall be the concern
that they richly deserve such benefits. of the Commission to provide leadership and assistance in
developing employee relations programs in the department
WHEREFORE, the Petitions in G.R. Nos. 109406, 110642, 111494, and or agencies.
112056 are hereby DIMISSED, and as above ratiocinated, further
deductions from the salaries and allowances of petitioners are hereby (2) Every Secretary or head of agency shall take all proper
ENJOINED. steps toward the creation of an atmosphere conducive to
good supervisor-employee relations and the improvement
of employee morale.
2 The applicable provisions are contained in Sections 1, 2, government office/agency found to have taken thereof,
and 7(c) of Rule X: shall be accordingly and severely dealt with in accordance
with the applicable provisions of existing penal laws.
Sec. 1. — Each department or agency of government,
whether national or local, including bureaus and agencies, Consequently, all administrative authorizations to grant
state colleges and universities, and government owned and any form of allowances/benefits and all forms of additional
controlled corporations with original charters, shall compensation usually paid outside of the prescribed baisc
establish its own Department or Agency Employee salary under R.A. No. 6758, the Salary Standardization Law,
Suggestions and Incentive Awards System in accordance that are inconsistent with th legislated policy on the matter
with these Rules and shall submit the same to the or are not covered by any legislative action are hereby
Commission for approval. revoked.

Sec. 2. — The System is designed to encourage creativity, The implementation of Executive Order No. 486 dated
innovativeness, efficiency, integrity and productivity in the November 8, 1991, as amended by executive Order No. 518
public service by recognizing and rewarding officials and dated May 29, 1992, is hereby deferred until a more
employees, individually or in groups, for their suggestions, comprehensive and equitable scheme for the grant of the
inventions, superior accomplishments, and othe personal benefits that can be applied government-wide is
efforts which contribute to the efficiency, economy, or formulated by the Department of Budget and Management.
other improvement in government operations, or for other
extraordinary acts of services in the public interest.
5 Sec. 7. The productivity incentive benfits herein
authorized shall be granted only for Calendar Year 1991.
Sec. 7. — The incentive.awards shall consist of, though not Accordingly, all heads of agencies, including the governing
limited to, the following: boards of government-owned or -controlled corporations
and financial institutions, are hereby stictly prohibitde from
authorizing/granting productivity incentive benefits or
(c) Productivity Incentive which shall be given to an
other allowances of similar nature for Calendar Year 1992
employee or group of employees who has exceeded their
and future years pending the result of a comprehensive
targets or has incurred incremental improvement over
study being undertaken by the Office of the President in
existing targest.
coordination with the Civil Service Commission and the
Department of Budget and Management on the matter.
3 Sec. 1. All agencies of the National Government, including
government-owned and/or -controlled corporations and
The formulation of the necessary implementing guidelines
government financial institutions, and local government
for executive Order No. 486 dated 8 November 1991
units, are hereby authorized to grant productivity incentive
establishing a performance-based incentive system for
benefits in the maximum amount of ONE THOUSAND PESOS
government-owned or -controlled corporations shall
(P1,000.00) each to their permanent and full-time
likewise be included in the comprehensive study referred to
temporary and casual employees, including contractual
in the preceding paragraph.
personnel with employment in the nature of regular
employee, who have rendered at least one (1) year of
service in the Government as of December 31, 1992. 6 Rollo, G.R. No. 119597, p. 29.

4 Sec. 2. The prohibition prescribed under Section 7 of 7 Ibid., pp. 21-23.


Administrative Order No. 268 is hereby reiterated.
Accordingly, all heads of government offices/agencies,
8 Sec. 10. Rule Making Power — The Secretary of Labor and
including government-owned and/or controlled
Employment and the Secretary of Finance, after due notice
corporations, as well as their respective governing boards
and hearing, shall jointly promulgate and issue within six
are hereby enjoined and prohibited from
(6) months from the effectivity of this Act such rules and
authorizing/granting Productivity Incentive Benefits or any
regulations as are necessary to carry out the provisions
and all similar forms of allowances/benefits without prior
hereof.
approval authorization via Administrative Order by the
Office of the President. Henceforth, anyone found violating
any of the mandates in this Order, including all 9 Department of Public Services Labor Unions v. The Court
officials/employees and the COA Auditor-in-Charge of such of Industrial Relations, 1 SCRA 319.
10 Words and Phrases, "Proprietary Function" principle of shared responsibility in the relations between
workers and employers, recognizing the right of labor to its
just share in the fruits of production and the right of
11 Sec. 4, Presidential Decree No. 564.
business enterprises to reasonable returns of investments
and to epansion and growth, and the accordingly to provide
12 Sec. 5, Presidential Decree No. 564. corresponding incentives to both labor and capital for
undertaking voluntary programs to ensure greater sharing
13 The full text of the second general purpose reads: by the workers in the fruits of their labor.

(b) Develop tourist zones. — To promote the development 18 Sec. 4. Definition of Terms. — As used in this Act:
into integrated resort complexes of selected and well
defined geographic areas with potential tourism value, xxx xxx xxx
known oterwise as "tourist zones", wherein optimum use
of natural assets and attractions as well as existing
b) "Labor-Management Committee" refers to anegotiating
facilities and concentration of efforts and limited resources
body in a business enterprise composed of the
of both government and private sector may be effected and
representatives of labor and management created to
realized in order to generate foreign exchange as well as
establish a productivity incentives program, and to settle
other tourist receipts. Such tourist zones shall consist of
disputes theefrom in accordance with Section 9 hereof.
substantially undeveloped areas the owership of which may
be partially or wholly acquired by the Authority or whose
existing owners may choose to contibute their property 19 Sec. 5. Labor-Management Committee. —
into a consortium or in a new corporation in which the
Authority shall participate, which in any case shall be under
a) xxx xxx xxx
the control of the Authority as to the manner of
development tobe undertaken within the zone.
b) In business enterprises with duly recognized or certified
labor organizations, the representatives of labor shall be
14 Social Security System Employees Association (SSSEA)
those designated by the collective bargaining agent(s) of
v. Court of Appeals, 175 SCRA 686, 696.
the bargaining unit(s).

Considering that under the 1987 Constitution "[t]he civil


c) In business enterprises without duly recognized or
service embraces all branches, subdivisions,
certified labor organizations, the representative of labor
instrumentalities, and agencies of the Government,
shall be elected by at least a majority of all rank-and-file
including government-owned or controlled corporations
employees who have rendered at least six (6) months of
with original charters", [Art. IX(B). Sec. 2(1); see also Sec.
continuous service.
1 of E.O. No. 180 where the employees in the civil service
are denominated as "government employees"] and that the
SSS is one such government-controlled corporation with an 20 Sec. 6. Productivity Incentives Program. —
original charter, having been created under R.A. No. 1161,
its employees are part of the civil service [NASECO v. NLRC, a) xxx xxx xxx
G.R. Nos. 69870 & 70295, November 24, 1988] and are
covered by the Civil Service Commission's memorandum
prohibiting strikes. b) Productivity agreements reache by the parties as
provided in this Act shall supplement existing collective
bargaining agreements.
15 Sec. 13, Executive Order No. 180.

c) If, during the existence of the productivity incentives


16 Sec. 2(1), Article IX. B, 1987 Constitution: PNOC-Energy program or agreement, the employees will join or form a
Development Corporation v. Leogardo, 175 SCRA 26; union, such program or agreement may, in addition to the
National Service Corporation v. NLRC, 168 SCRA 134. terms and conditions agreed upon by labor and
management, be integrated in the collective bargaining
17 Sec. 2. Declaration of Policy. — It is the declared policy agreement that may be entered into between them.
of the State to encourage higher levels of productivity,
maintain industrial peace and harmony and promote the 21 Sec. 7. Benefits and Tax Incentives. —
a) xxx xxx xxx (2) Prescribe, amend and enfore rules and regulatios for
carrying into effect the provisions of the Civil Service Law
and other pertinent laws;
b) Any strike of lockout arisingfrom any violation of the
productivity incentives program shall suspend the
effectivity thereof pending settlement of such strike or xxx xxx xxx"
lockout: Provided, That the business enterprise shall not be
deemed to have forfeited tax incentives accrued prior to
29 Sec. 2. Administrative Order No. 268.
the date of occurrence of such strike or lockout, and the
workers shall not be required to reimburse the productivity
bonuses already granted to them under the incentive 30 Sec. 1. Administrative Order No. 268
program. Likewise, bonuses which have already accrued
before the strike or lockout shall be paid the worker within 31 Supra, footnote 3.
six (6) months from their accrual.

32 Mondano v. Silvosa, etc. et al., 97 Phil. 148.


xxx xxx xxx

33 Echeche v. Court of Appeals, 198 SCRA


22 Sec. 9. Disputes and Grievances. — Whenever disputes, 584, citing Oliveros-Torre v. Bayot, 58 SCRA 272, and Ang-
grievances, or other matters arise from the interpretation Angco v. Castillo, et al., 118 Phil. 1468.
or implementation of the productivity incentives program,
the labor-management committee shall meet to resolve the
dispute, and may seek the assistance of the National 34 These are found in Book IV of Executive Orde No. 292
Conciliation and Mediation Board of the Department of whose applicable provisions follows:
Labor and Employment for such purpose. Any dispute
which remains unresolved within twenty (20) days from Sec. 1. Declaration of Policy. — It is the policy of the State
the time of its submission to the labor-management that the Department of Finance shall be primarily
committee shall be submitted for voluntary arbitration in responsible for the sound and efficient management of the
line with the pertinent provisions of the Labor Code, as financial resources of the Government, its subdivisions,
amended. agencies and instrumentalities. (Title II)

The productivity incentives program shall include the Sec. 1. Declaration of Policy. — The national budget shall be
name(s) of the voluntary arbitrator or panel of voluntary formulated and implemented as an instrument of national
arbitrators previously chosen and agreed upon by the development, reflective of national objectives and plans,
labor-management committee. supportive of and consistent with the socio-economic
development plans and oriented towards the achievement
23 Paras v. Commission on Elections, 264 SCRA 54. of explicit objectives and expected results, to ensure that
the utilization of funds and operations of government
entities are conducted effectively; formulated within the
24 Cabada v. Alunan III, 260 SCRA 838. context of a regionalized governmental structure and
within the totality of revenues and other receipts,
25 Sec. 29, Presidential Decree No. 564. expenditures and borrowings of all levels of government-
owned or controlled.
26 Teoxon v. Member of the Board of Administrators, 33
SCRA 585. 35 M.H. Wylie v. Rarang, 209 SCRA 357.

27 Sec. 6, Article XVIII. 1987 Constitution. 36 Yulo v. Civil Service Commission, 219 SCRA
478, citing Mabutol v. Pascual, 124 SCRA 867.
28 Sec. 12. Powers and Functions. — The Commission shall
have the following powers and functions: 37 Mendiola v. People, 207 SCRA 85.

xxx xxx xxx 38 Fernando v. Sto. Tomas, 234 SCRA 546; Tuazon v. Court
of Appeals, 212 SCRA 471.
39 National Economic Protectionism Association v. Ongpin,
171 SCRA 666, citing Paredes v. Executive Secretary, 128
SCRA 6.

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