SION

[G.R. No. 145368. April 12, 2002]

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO,

in his capacity as Ombudsman, respondent.

DECISION
KAPUNAN,  J.:

On June 13, 1991, President Corazon C. Aquino issued Administrative

Order No. 223 constituting a Committee for the preparation of the National
Centennial Celebration in 1998. The Committee was mandated to take charge
of the nationwide preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress. [1]

Subsequently, President Fidel V. Ramos issued Executive Order No. 128,

reconstituting the Committee for the preparation of the National Centennial
Celebrations in 1998. It renamed the Committee as the National Centennial
Commission. Appointed to chair the reconstituted Commission was Vice-
President Salvador H. Laurel. Presidents Diosdado M. Macapagal and
Corazon C. Aquino were named Honorary Chairpersons. [2]

Characterized as an ad-hoc body, the existence of the Commission shall

terminate upon the completion of all activities related to the Centennial
Celebrations.  Like its predecessor Committee, the Commission was tasked
[3]

to take charge of the nationwide preparations for the National Celebration of

the Philippine Centennial of the Declaration of Philippine Independence and
the Inauguration of the Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged
with the responsibility to prepare, for approval of the President, a
Comprehensive Plan for the Centennial Celebrations within six (6) months
from the effectivity of the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:

Sec. 3. The Commission shall be provided with technical and administrative staff
support by a Secretariat to be composed of, among others, detailed personnel from the
Presidential Management Staff, the National Commission for Culture and the Arts,
and the National Historical Institute. Said Secretariat shall be headed by a full time
Executive Director who shall be designated by the President.

Sec. 4. The Commission shall be funded with an initial budget to be drawn from the
Department of Tourism and the presidents Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President. Appropriations for
succeeding years shall be incorporated in the budget of the Office of the President.

Subsequently, a corporation named the Philippine Centennial Expo 98

Corporation (Expocorp) was created.  Petitioner was among the nine (9)
[4]

Expocorp incorporators, who were also its first nine (9) directors. Petitioner
was elected Expocorp Chief Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a
privilege speech in the Senate denouncing alleged anomalies in the
construction and operation of the Centennial Exposition Project at the Clark
Special Economic Zone. Upon motion of Senator Franklin Drilon, Senator
Cosetengs privilege speech was referred to the Committee on Accountability
of Public Officers and Investigation (The Blue Ribbon Committee) and several
other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative
Order No. 35, creating an ad hoc and independent citizens committee to
investigate all the facts and circumstances surrounding the Philippine
centennial projects, including its component activities. Former Senator Rene
A.V. Saguisag was appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the
Secretary of the Senate its Committee Final Report No. 30 dated February 26,
1999. Among the Committees recommendations was the prosecution by the
Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP
for violating the rules on public bidding, relative to the award of centennial
contracts to AK (Asia Construction & Development Corp.); for exhibiting
manifest bias in the issuance of the NTP (Notice to Proceed) to AK to
construct the FR (Freedom Ring) even in the absence of a valid contract that
has caused material injury to government and for participating in the scheme
to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation of the anti-graft law. [5]

Later, on November 5, 1999, the Saguisag Committee issued its own

report. It recommended the further investigation by the Ombudsman, and
indictment, in proper cases of, among others, NCC Chair Salvador H. Laurel
for violations of Section 3(e) of R.A. No. 3019, Section 4(a) in relation to
Section 11 of R.A. No. 6713, and Article 217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee
were apparently referred to the Fact-finding and Intelligence Bureau of the
Office of the Ombudsman.On January 27, 2000, the Bureau issued its
Evaluation Report, recommending:
1. that a formal complaint be filed and preliminary investigation be conducted before
the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the
Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former
EXPOCORP President Teodoro Q. Pea and AK President Edgardo H. Angeles for
violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594
and COA Rules and Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
complainant.[6]

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the

Evaluation and Preliminary Investigation Bureau, directed petitioner to submit
his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners
motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13,
2000 Order but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation
Bureau issued a resolution finding probable cause to indict respondents
SALVADOR H. LAUREL and TEODORO Q. PEA before the Sandiganbayan
for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to
Republic Act No. 1594. The resolution also directed that an information for
violation of the said law be filed against Laurel and Pea. Ombudsman Aniano
A. Desierto approved the resolution with respect to Laurel but dismissed the
charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary
restraining order, commanding respondents to desist from filing any
information before the Sandiganbayan or any court against petitioner for
alleged violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the
parties in oral argument.
 Petitioner assails the jurisdiction of the Ombudsman on the ground that he
is not a public officer because:
A.

EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL

WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION
WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT
PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE
CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION.

B.

THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A

PUBLIC OFFICE.

C.

PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP

WAS NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT &
CORRUPT PRACTICES ACT.[7]

In addition, petitioner in his reply  invokes this Courts decision in Uy vs.
[8]

Sandiganbayan,  where it was held that the jurisdiction of the Ombudsman

[9]

was limited to cases cognizable by the Sandiganbayan, i.e., over public

officers of Grade 27 and higher. As petitioners position was purportedly not
classified as Grade 27 or higher, the Sandiganbayan and, consequently, the
Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Courts decision in Uy, we
held that it is the prosecutor, not the Ombudsman, who has the authority to file
the corresponding information/s against petitioner in the regional trial
court. The Ombudsman exercises prosecutorial powers only in cases
cognizable by the Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:

The clear import of such pronouncement is to recognize the authority of the State and
regular provincial and city prosecutors under the Department of Justice to have
control over prosecution of cases falling within the jurisdiction of the regular
courts. The investigation and prosecutorial powers of the Ombudsman relate to cases
rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of
R.A. 6770 (An Act Providing for the Functional and Structural Organization of the
Office of the Ombudsman, and for other purposes) which vests upon the
Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan And
this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the
Office of the Special Prosecutor shall have the power to conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan. Thus, repeated references to the Sandiganbayans jurisdiction clearly
serve to limit the Ombudsmans and Special Prosecutors authority to cases cogniz

izable by the Sandiganbayan. [Emphasis in the original.]

The foregoing ruling in Uy, however, was short-lived. Upon motion for

clarification by the Ombudsman in the same case, the Court set aside the
foregoing pronouncement in its Resolution dated March 20, 2001. The Court
explained the rationale for this reversal:

The power to investigate and to prosecute granted by law to the Ombudsman is

plenary and unqualified. It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the clause
any illegal act or omission of any public official is broad enough to embrace any
crime committed by a public officer or employee.

The reference made by RA 6770 to cases cognizable by the Sandiganbayan,

particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute criminal cases within
the jurisdiction of the Sandiganbayan, should not be construed as confining the scope
of the investigatory and prosecutory power of the Ombudsman to such cases.

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases

cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman to take over, at any stage, from any investigatory agency
of the government, the investigation of such cases. The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of cases involving public officers
and employees by other courts. The exercise by the Ombudsman of his primary
jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the
discharge of his duty to investigate and prosecute other offenses committed by public
officers and employees. Indeed, it must be stressed that the powers granted by the
legislature to the Ombudsman are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public officers and employees during
their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated
with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The
Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control and upon authority
of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is
limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly,
the lawmakers did not intend to confine the investigatory and prosecutory power of
the Ombudsman to these types of cases. The Ombudsman is mandated by law to act
on all complaints against officers and employees of the government and to enforce
their administrative, civil and criminal liability in every case where the evidence
warrants. To carry out this duty, the law allows him to utilize the personnel of his
office and/or designate any fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to assist in the investigation and
prosecution of certain cases. Those designated or deputized to assist him work under
his supervision and control. The law likewise allows him to direct the Special
Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance
with Section 11 (4c) of RA 6770.

The prosecution of offenses committed by public officers and employees is one of the
most important functions of the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to make him a more active
and effective agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent. [Emphasis in the
original.]

Having disposed of this contention, we proceed to the principal grounds

upon which petitioner relies. We first address the argument that petitioner, as
Chair of the NCC, was not a public officer.
The Constitution  describes the Ombudsman and his Deputies as
[10]

protectors of the people, who shall act promptly on complaints filed in any
form or manner againstpublic officials or employees of the government, or
any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations. Among the awesome powers, functions,
and duties vested by the Constitution  upon the Office of the Ombudsman is
[11]

to [i]nvestigate any act or omission of any public official, employee, office or

agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
The foregoing constitutional provisions are substantially reproduced in
R.A. No. 6770, otherwise known as the Ombudsman Act of 1989. Sections 13
and 15(1) of said law respectively provide:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people
shall act promptly on complaints file in any form or manner against officers or
employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants
in order to promote efficient service by the Government to the people.

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases;

x x x.
The coverage of the law appears to be limited only by Section 16, in
relation to Section 13, supra:

SEC 16. Applicability. The provisions of this Act shall apply to all kinds of

malfeasance, misfeasance and non-feasance that have been committed by any officer
or employee as mentioned in Section 13 hereof, during his tenure of office.

In sum, the Ombudsman has the power to investigate any malfeasance,

misfeasance and non-feasance by a public officer or employee of the
government, or of any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations. [12]

Neither the Constitution nor the Ombudsman Act of 1989, however,

defines who public officers are. A definition of public officers cited in
jurisprudence  is that provided by Mechem, a recognized authority on the
[13]

subject:

A public office is the right, authority and duty, created and conferred by law, by
which, for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign functions
of the government, to be exercised by him for the benefit of the public. The individual
so invested is a public officer.[14]
 The characteristics of a public office, according to Mechem, include the
delegation of sovereign functions, its creation by law and not by contract, an
oath, salary, continuance of the position, scope of duties, and the designation
of the position as an office. [15]

Petitioner submits that some of these characteristics are not present in the
position of NCC Chair, namely: (1) the delegation of sovereign functions; (2)
salary, since he purportedly did not receive any compensation; and (3)
continuance, the tenure of the NCC being temporary.
Mechem describes the delegation to the individual of some of the
sovereign functions of government as [t]he most important characteristic in
determining whether a position is a public office or not.

The most important characteristic which distinguishes an office from an employment

or contract is that the creation and conferring of an office involves a delegation to the
individual of some of the sovereign functions of government, to be exercised by him
for the benefit of the public; that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be exercised for the
public benefit. Unless the powers conferred are of this nature, the individual is not a
public officer.[16]

Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions that
can be described as legislative or judicial. May the functions of the NCC then
be described as executive?
We hold that the NCC performs executive functions. The executive power
is generally defined as the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and enforcing their due
observance.  The executive function, therefore, concerns the implementation
[17]

of the policies as set forth by law.

The Constitution provides in Article XIV (Education, Science and
Technology, Arts, Culture, and Sports) thereof:

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nations historical and cultural heritage and
resources, as well as artistic creations.

In its preamble, A.O. No. 223 states the purposes for the creation of the
Committee for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and
the centennial presents an important vehicle for fostering nationhood and a strong
sense of Filipino identity;

Whereas, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;

Whereas, the success of the Centennial Celebrations may be insured only through
long-range planning and continuous developmental programming;

Whereas, the active participation of the private sector in all areas of special expertise
and capability, particularly in communication and information dissemination, is
necessary for long-range planning and continuous developmental programming;

Whereas, there is a need to create a body which shall initiate and undertake the
primary task of harnessing the multisectoral components from the business, cultural,
and business sectors to serve as effective instruments from the launching and
overseeing of this long-term project;

x x x.

E.O. No. 128, reconstituting the Committee for the National Centennial
Celebrations in 1998, cited the need to strengthen the said Committee to
ensure a more coordinated and synchronized celebrations of the Philippine
Centennial and wider participation from the government and non-government
or private organizations. It also referred to the need to rationalize the
relevance of historical links with other countries.
The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was vested
with the following functions:
(a) To undertake the overall study, conceptualization, formulation and implementation
of programs and projects on the utilization of culture, arts, literature and media as
vehicles for history, economic endeavors, and reinvigorating the spirit of national
unity and sense of accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National Exposition 98
within Metro Manila, the original eight provinces, and Clark Air Base as its major
venues;
(b) To act as principal coordinator for all the activities related to awareness and
celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of all
information about the plans and events for the Centennial Celebrations;
 (d) To constitute working groups which shall undertake the implementation of the
programs and projects;
(e) To prioritize the refurbishment of historical sites and structures nationwide. In this
regard, the Commission shall formulate schemes (e.g. lease-maintained-and-
transfer, build-operate-transfer, and similar arrangements) to ensure the
preservation and maintenance of the historical sites and structures;
(f) To call upon any government agency or instrumentality and corporation, and to
invite private individuals and organizations to assist it in the performance of its
tasks; and,
(g) Submit regular reports to the President on the plans, programs, projects, activities
as well as the status of the preparations for the Celebration.[18]

It bears noting the President, upon whom the executive power is vested,
 created the NCC by executive order. Book III (Office of the President),
[19]

Chapter 2 (Ordinance Power), Section 2 describes the nature of executive

orders:

SEC. 2. Executive Orders. Acts of the President providing for rules of a general or

permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Underscoring ours.]

Furthermore, the NCC was not without a role in the countrys economic
development, especially in Central Luzon. Petitioner himself admitted as much
in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, dont you agree that the
task of the centennial commission was also to focus on the long term over all socio
economic development of the zone and Central Luzon by attracting investors in
the area because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I wanted to touch on
by lack of material time I could not but that is a very important point. When I was
made Chairman I wanted the Expo to be in Batangas because I am a Batangeo
but President Ramos said Mr. Vice President the Central Luzon is suffering,
suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic]
economic recovery in that area by putting this Expo in Clark Field and so it was
done I agreed and Your Honor if I may also mention we wanted to generate
employment aside from attracting business investments and employment. And the
Estrada administration decided to junk this project there 48, 40 thousand people
who lost job, they were employed in Expo. And our target was to provide 75
thousand jobs. It would have really calibrated, accelerated the development of
Central Luzon. Now, I think they are going back to that because they had the
airport and there are plan to revive the Expo site into key park which was the
original plan.
There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy. [20]

Petitioner invokes the ruling of this Court in Torio vs. Fontanilla  that the
[21]

holding by a municipality of a town fiesta is a proprietary rather than a

governmental function. Petitioner argues that the holding of a nationwide
celebration which marked the nations 100  birthday may be likened to a
th

national fiesta which involved only the exercise of the national governments
proprietary function.  In Torio, we held:
[22]

[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]
simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for
the special benefit of the community and not for thegeneral welfare of the public
performed in pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide entertainment to the
town inhabitants is not a conclusive test. For instance, the maintenance of parks is not
a source of income for the town, nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools, jails, and the like which are for
public service.

As stated earlier, there can be no hard and fast rule for purposes of determining the
true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. The basic
element, however beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the state is involved in the
celebration of a town fiesta.

Torio, however, did not intend to lay down an all-encompassing

doctrine. Note that the Court cautioned that there can be no hard and fast rule
for purposes of determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to be
considered and will be decisive. Thus, in footnote 15 of Torio, the Court, citing
an American case, illustrated how the surrounding circumstances plus the
political, social, and cultural backgrounds could produce a conclusion different
from that in Torio:

We came across an interesting case which shows that surrounding circumstances plus
the political, social, and cultural backgrounds may have a decisive bearing on this
question. The case ofPope v. City of New Haven, et al. was an action to recover
damages for personal injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have been caused by defendants
negligence. The defendants demurred to the complaint invoking the defense that the
city was engaged in the performance of a public governmental duty from which it
received no pecuniary benefit and for negligence in the performance of which no
statutory liability is imposed. This demurrer was sustained by the Superior Court of
New Haven Country.Plaintiff sought to amend his complaint to allege that the
celebration was for the corporate advantage of the city. This was denied. In affirming
the order, the Supreme Court of Errors of Connecticut held inter alia:

Municipal corporations are exempt from liability for the negligent performance of
purely public governmental duties, unless made liable by statute.

A municipality corporation, which under permissive authority of its charter or of

statute, conducted a public Fourth of July celebration, including a display of
fireworks, and sent up a bomb intended to explode in the air, but which failed to
explode until it reached the ground, and then killed a spectator, was engaged in the
performance of a governmental duty. (99 A.R. 51)

This decision was concurred in by three Judges while two dissented.

At any rate the rationale of the Majority Opinion is evident from [this] excerpt:

July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a similar provision, the
different departments of the government recognize, and have recognized since the
government was established, July 4th as a national holiday.Throughout the country it
has been recognized and celebrated as such. These celebrations, calculated to entertain
and instruct the people generally and to arouse and stimulate patriotic sentiments and
love of country, frequently take the form of literary exercises consisting of patriotic
speeches and the reading of the Constitution, accompanied by a musical program
including patriotic air sometimes preceded by the firing of cannon and followed by
fireworks. That such celebrations are of advantage to the general public and their
promotion a proper subject of legislation can hardly be questioned. x x x

Surely, a town fiesta cannot compare to the National Centennial

Celebrations. The Centennial Celebrations was meant to commemorate the
birth of our nation after centuries of struggle against our former colonial
master, to memorialize the liberation of our people from oppression by a
foreign power. 1998 marked 100 years of independence and sovereignty as
one united nation. The Celebrations was an occasion to reflect upon our
history and reinvigorate our patriotism. As A.O. 223 put it, it was a vehicle for
fostering nationhood and a strong sense of Filipino identity, an opportunity to
showcase Filipino heritage and thereby strengthen Filipino values. The
significance of the Celebrations could not have been lost on petitioner, who
remarked during the hearing:

Oh, yes, certainly the State is interested in the unity of the people, we wanted to
rekindle the love for freedom, love for country, that is the over-all goal that has to
make everybody feel proud that he is a Filipino, proud of our history, proud of what
our forefather did in their time. x x x.

Clearly, the NCC performs sovereign functions. It is, therefore, a public

office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his
tenure is of little consequence. A salary is a usual but not a necessary
criterion for determining the nature of the position. It is not conclusive. The
salary is a mere incident and forms no part of the office. Where a salary or
fees is annexed, the office is provided for it is a naked or honorary office, and
is supposed to be accepted merely for the public good.  Hence, the office of
[23]

petitioner as NCC Chair may be characterized as an honorary office, as

opposed to a lucrative office or an office of profit, i.e., one to which salary,
compensation or fees are attached.  But it is a public office, nonetheless.
[24]

Neither is the fact that the NCC was characterized by E.O. No. 128 as an
ad-hoc body make said commission less of a public office.

The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an
office. But, says Chief Justice Marshall, if a duty be a continuing one, which is
defined by rules prescribed by the government and not by contract, which an
individual is appointed by government to perform, who enters on the duties pertaining
to his station without any contract defining them, if those duties continue though the
person be changed, -- it seems very difficult to distinguish such a charge or
employment from an office of the person who performs the duties from an officer.

At the same time, however, this element of continuance can not be considered as

indispensable, for, if the other elements are present it can make no difference, says Pearson,
C.J.,whether there be but one act or a series of acts to be done, -- whether the office expires
as soon as the one act is done, or is to be held for years or during good behavior.[25]

Our conclusion that petitioner is a public officer finds support in In Re

Corliss.  There the Supreme Court of Rhode Island ruled that the office of
[26]
Commissioner of the United States Centennial Commission is an office of
trust as to disqualify its holder as elector of the United States President and
Vice-President. (Under Article II of the United States Constitution, a person
holding an office of trust or profit under the United States is disqualified from
being appointed an elector.)

x x x. We think a Commissioner of the United States Centennial Commission holds an

office of trust under the United States, and that he is therefore disqualified for the
office of elector of President and Vice-President of the United States.

The commission was created under a statute of the United States approved March 3,
1871. That statute provides for the holding of an exhibition of American and foreign
arts, products, and manufactures, under the auspices of the government of the United
States, and for the constitution of a commission, to consist of more than one delegate
from each State and from each Territory of the United States, whose functions shall
continue until close of the exhibition, and whose duty it shall be to prepare and
superintend the execution of the plan for holding the exhibition. Under the statute the
commissioners are appointed by the President of the United States, on the nomination
of the governor of the States and Territories respectively. Various duties were
imposed upon the commission, and under the statute provision was to be made for it
to have exclusive control of the exhibit before the President should announce, by
proclamation, the date and place of opening and holding the exhibition. By an act of
Congress approved June 1st, 1872, the duties and functions of the commission were
further increased and defined. That act created a corporation, called The Centennial
Board of Finance, to cooperate with the commission and to raise and disburse the
funds. It was to be organized under the direction of the commission. The seventh
section of the act provides that the grounds for exhibition shall be prepared and the
buildings erected by the corporation, in accordance with plans which shall have been
adopted by the United States Centennial Commission; and the rules and regulations of
said corporation, governing rates for entrance and admission fees, or otherwise
affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be
fixed and established by the United States Centennial Commission; and no grant
conferring rights or privileges of any description connected with said grounds or
buildings, or relating to said exhibition or celebration, shall be made without the
consent of the United States Centennial Commission, and said commission shall have
power to control, change, or revoke all such grants, and shall appoint all judges and
examiners and award all premiums. The tenth section of the act provides that it shall
be the duty of the United States Centennial Commission to supervise the closing up of
the affairs of said corporation, to audit its accounts, and submit in a report to the
President of the United States the financial results of the centennial exhibition.
It is apparent from this statement, which is but partial, that the duties and functions of
the commission were various, delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of affairs; and that they
were not merely subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons performing such
duties and exercising such functions, in pursuance of statutory direction and authority,
are not to be regarded as mere employees, agents, or committee men, but that they are,
properly speaking, officers, and that the places which they hold are offices. It appears,
moreover, that they were originally regarded as officers by Congress; for the act under
which they were appointed declares, section 7, that no compensation for services shall
be paid to the commissioners or other officers, provided for in this act, from the
treasury of the United States. The only other officers provided for were the alternates
appointed to serve as commissioners when the commissioners were unable to attend.

Having arrived at the conclusion that the NCC performs executive

functions and is, therefore, a public office, we need no longer delve at length
on the issue of whether Expocorp is a private or a public corporation. Even
assuming that Expocorp is a private corporation, petitioners position as Chief
Executive Officer (CEO) of Expocorp arose from his Chairmanship of the
NCC. Consequently, his acts or omissions as CEO of Expocorp must be
viewed in the light of his powers and functions as NCC Chair. [27]

Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public
officer as defined in Republic Act No. 3019 (The Anti-Graft and Corrupt
Practices Act) and is, therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of
said law, which reads:

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:

xxx

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.
 A public officer, under R.A. No. 3019, is defined by Section 2 of said law
as follows:

SEC. 2. Definition of terms. As used in this Act, the term

xxx

(b) Public officer includes elective and appointive officials and employees, permanent
or temporary, whether in the classified or unclassified or exemption service receiving
compensation, even nominal, from the government as defined in the preceding
paragraph. [Emphasis supplied.]

It is clear from Section 2 (b), above, that the definition of a public officer is
expressly limited to the application of R.A. No. 3019. Said definition does not
apply for purposes of determining the Ombudsmans jurisdiction, as defined by
the Constitution and the Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the
Anti-Graft and Corrupt Practices Act involves the appreciation of evidence and
interpretation of law, matters that are best resolved at trial.
To illustrate, the use of the term includes in Section 2 (b) indicates that the
definition is not restrictive.  The Anti-Graft and Corrupt Practices Act is just
[28]

one of several laws that define public officers. Article 203 of the Revised
Penal Code, for example, provides that a public officer is:

x x x any person who, by direct provision of law, popular election or appointment by

competent authority, takes part in the performance of public functions in the
Government of Philippines, or performs in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of any rank or class.

Section 2 (14) of the Introductory Provisions of the Administrative Code of

1987,  on the other hand, states:
[29]

Officer as distinguished from clerk or employee, refers to a person whose duties not
being of a clerical or manual nature, involves the exercise of discretion in the
performance of the functions of the government. When used with reference to a
person having authority to do a particular act or perform a particular person in the
exercise of governmental power, officer includes any government employee, agent or
body having authority to do the act or exercise that function.

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees), one may
be considered a public official whether or not one receives compensation,
thus:

Public Officials include elective and appointive officials and employees, permanent or
temporary, whether in the career or non-career service including military and police
personnel, whether or not they receive compensation, regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive,
the term compensation, which is not defined by said law, has many meanings.

Under particular circumstances, compensation has been held to include allowance for
personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling
expenses, payments for services, restitution or a balancing of accounts, salary, and
wages.[30]

How then is compensation, as the term is used in Section 2 (b) of R.A. No.
3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting
that petitioner did not receive any salary, the records do not reveal if he
received any allowance, fee, honorarium, or some other form of
compensation. Notably, under the by-laws of Expocorp, the CEO is entitled
to per diems and compensation.  Would such fact bear any significance?
[31]

Obviously, this proceeding is not the proper forum to settle these issues
lest we preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction
issued in the Courts Resolution dated September 24, 2001 is hereby LIFTED.
SO ORDERED.
G.R. No. 162059             January 22, 2008

HANNAH EUNICE D. SERANA, petitioner, 

vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

REYES, R.T., J.:

CAN the Sandiganbayan try a government scholaran** accused, along with her brother, of
swindling government funds?

MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang
kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan?

The jurisdictional question is posed in this petition for certiorari assailing the Resolutions 1 of
the Sandiganbayan, Fifth Division, denying petitioner’s motion to quash the information and
her motion for reconsideration.

The Antecedents

Petitioner Hannah Eunice D. Serana was a senior student of the University of the
Philippines-Cebu. A student of a state university is known as a government scholar. She
was appointed by then President Joseph Estrada on December 21, 1999 as a student
regent of UP, to serve a one-year term starting January 1, 2000 and ending on December
31, 2000.

In the early part of 2000, petitioner discussed with President Estrada the renovation of
Vinzons Hall Annex in UP Diliman.2 On September 4, 2000, petitioner, with her siblings and
relatives, registered with the Securities and Exchange Commission the Office of the Student
Regent Foundation, Inc. (OSRFI).3

One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex. 4 President
Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance
for the proposed renovation. The source of the funds, according to the information, was the
Office of the President.

The renovation of Vinzons Hall Annex failed to materialize. 5 The succeeding student regent,
Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA
sa U.P., a system-wide alliance of student councils within the state university, consequently
filed a complaint for Malversation of Public Funds and Property with the Office of the
Ombudsman.6

On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict
petitioner and her brother Jade Ian D. Serana for estafa, docketed as Criminal Case No.
27819 of the Sandiganbayan.7 The Information reads:
 The undersigned Special Prosecution Officer III, Office of the Special Prosecutor,
hereby accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the
crime of Estafa, defined and penalized under Paragraph 2(a), Article 315 of the
Revised Penal Code, as amended committed as follows:

That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City,
Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, above-
named accused, HANNAH EUNICE D. SERANA, a high-ranking public officer, being
then the Student Regent of the University of the Philippines, Diliman, Quezon City,
while in the performance of her official functions, committing the offense in relation to
her office and taking advantage of her position, with intent to gain, conspiring with
her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully,
unlawfully and feloniously defraud the government by falsely and fraudulently
representing to former President Joseph Ejercito Estrada that the renovation of the
Vinzons Hall of the University of the Philippines will be renovated and renamed as
"President Joseph Ejercito Estrada Student Hall," and for which purpose accused
HANNAH EUNICE D. SERANA requested the amount of FIFTEEN MILLION PESOS
(P15,000,000.00), Philippine Currency, from the Office of the President, and the
latter relying and believing on said false pretenses and misrepresentation gave and
delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in
the amount of FIFTEEN MILLION PESOS (P15,000,000.00), which check was
subsequently encashed by accused Jade Ian D. Serana on October 25, 2000 and
misappropriated for their personal use and benefit, and despite repeated demands
made upon the accused for them to return aforesaid amount, the said accused failed
and refused to do so to the damage and prejudice of the government in the aforesaid
amount.

CONTRARY TO LAW. (Underscoring supplied)

Petitioner moved to quash the information. She claimed that the Sandiganbayan does not
have any jurisdiction over the offense charged or over her person, in her capacity as UP
student regent.

Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249,
enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction. 8 It has
no jurisdiction over the crime of estafa.9 It only has jurisdiction over crimes covered by Title
VII, Chapter II, Section 2 (Crimes Committed by Public Officers), Book II of the Revised
Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book
II of the RPC is not within the Sandiganbayan’s jurisdiction.

She also argued that it was President Estrada, not the government, that was duped. Even
assuming that she received the P15,000,000.00, that amount came from Estrada, not from
the coffers of the government.10

Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. As a
student regent, she was not a public officer since she merely represented her peers, in
contrast to the other regents who held their positions in an ex officio capacity. She addsed
that she was a simple student and did not receive any salary as a student regent.
She further contended that she had no power or authority to receive monies or funds. Such
power was vested with the Board of Regents (BOR) as a whole. Since it was not alleged in
the information that it was among her functions or duties to receive funds, or that the crime
was committed in connection with her official functions, the same is beyond the jurisdiction
of the Sandiganbayan citing the case of Soller v. Sandiganbayan.11

The Ombudsman opposed the motion.12 It disputed petitioner’s interpretation of the law.
Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains the catch -all phrase "in
relation to office," thus, the Sandiganbayan has jurisdiction over the charges against
petitioner. In the same breath, the prosecution countered that the source of the money is a
matter of defense. It should be threshed out during a full-blown trial. 13

According to the Ombudsman, petitioner, despite her protestations, iwas a public officer. As
a member of the BOR, she hads the general powers of administration and exerciseds the
corporate powers of UP. Based on Mechem’s definition of a public office, petitioner’s stance
that she was not compensated, hence, not a public officer, is erroneous. Compensation is
not an essential part of public office. Parenthetically, compensation has been interpreted to
include allowances. By this definition, petitioner was compensated. 14

Sandiganbayan Disposition

In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioner’s motion
for lack of merit.15 It ratiocinated:

The focal point in controversy is the jurisdiction of the Sandiganbayan over this case.

It is extremely erroneous to hold that only criminal offenses covered by Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code are within the jurisdiction of
this Court. As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249
provides that the Sandiganbayan also has jurisdiction over other offenses committed
by public officials and employees in relation to their office. From this provision, there
is no single doubt that this Court has jurisdiction over the offense
of estafa committed by a public official in relation to his office.

Accused-movant’s claim that being merely a member in representation of the student

body, she was never a public officer since she never received any compensation nor
does she fall under Salary Grade 27, is of no moment, in view of the express
provision of Section 4 of Republic Act No. 8249 which provides:

Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive original

jurisdiction in all cases involving:

(A) x x x

(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade "27" and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:
 xxxx

(g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions or foundations. (Italics supplied)

It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive
jurisdiction over all offenses involving the officials enumerated in subsection
(g), irrespective of their salary grades, because the primordial consideration in the inclusion
of these officials is the nature of their responsibilities and functions.

Is accused-movant included in the contemplated provision of law?

A meticulous review of the existing Charter of the University of the Philippines reveals that
the Board of Regents, to which accused-movant belongs, exclusively exercises the general
powers of administration and corporate powers in the university, such as: 1) To receive and
appropriate to the ends specified by law such sums as may be provided by law for the
support of the university; 2) To prescribe rules for its own government and to enact for the
government of the university such general ordinances and regulations, not contrary to law,
as are consistent with the purposes of the university; and 3) To appoint, on
recommendation of the President of the University, professors, instructors, lecturers and
other employees of the University; to fix their compensation, hours of service, and such
other duties and conditions as it may deem proper; to grant to them in its discretion leave of
absence under such regulations as it may promulgate, any other provisions of law to the
contrary notwithstanding, and to remove them for cause after an investigation and hearing
shall have been had.

It is well-established in corporation law that the corporation can act only through its board of
directors, or board of trustees in the case of non-stock corporations. The board of directors
or trustees, therefore, is the governing body of the corporation.

It is unmistakably evident that the Board of Regents of the University of the Philippines is
performing functions similar to those of the Board of Trustees of a non-stock corporation.
This draws to fore the conclusion that being a member of such board, accused-movant
undoubtedly falls within the category of public officials upon whom this Court is vested with
original exclusive jurisdiction, regardless of the fact that she does not occupy a position
classified as Salary Grade 27 or higher under the Compensation and Position Classification
Act of 1989.

Finally, this court finds that accused-movant’s contention that the same of P15
Million was received from former President Estrada and not from the coffers of the
government, is a matter a defense that should be properly ventilated during the trial
on the merits of this case.16

On November 19, 2003, petitioner filed a motion for reconsideration. 17 The motion was
denied with finality in a Resolution dated February 4, 2004. 18

Issue
Petitioner is now before this Court, contending that "THE RESPONDENT COURT
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION AND DISMISING
THE CASE NOTWITHSTANDING THAT IS HAS NO JURISDICTION OVER THE
OFFENSE CHARGED IN THE INFORMATION."19

In her discussion, she reiterates her four-fold argument below, namely: (a) the
Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer with
Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in
relation to her office; (d) the funds in question personally came from President Estrada, not
from the government.

Our Ruling

The petition cannot be granted.

Preliminarily, the denial of a motion to

quash is not correctible by certiorari.

We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Well-

established is the rule that when a motion to quash in a criminal case is denied, the remedy
is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating
the special defenses invoked in their motion to quash. 20Remedial measures as regards
interlocutory orders, such as a motion to quash, are frowned upon and often
dismissed.21 The evident reason for this rule is to avoid multiplicity of appeals in a single
action.22

In Newsweek, Inc. v. Intermediate Appellate Court,23 the Court clearly explained and

illustrated the rule and the exceptions, thus:

As a general rule, an order denying a motion to dismiss is merely interlocutory and

cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule
41). The ordinary procedure to be followed in such a case is to file an answer, go to
trial and if the decision is adverse, reiterate the issue on appeal from the final
judgment. The same rule applies to an order denying a motion to quash, except that
instead of filing an answer a plea is entered and no appeal lies from a judgment of
acquittal.

This general rule is subject to certain exceptions. If the court, in denying the motion
to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave
abuse of discretion, then certiorari or prohibition lies. The reason is that it would be
unfair to require the defendant or accused to undergo the ordeal and expense of a
trial if the court has no jurisdiction over the subject matter or offense, or is not the
court of proper venue, or if the denial of the motion to dismiss or motion to quash is
made with grave abuse of discretion or a whimsical and capricious exercise of
judgment. In such cases, the ordinary remedy of appeal cannot be plain and
adequate. The following are a few examples of the exceptions to the general rule.
 In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based
on lack of jurisdiction over the subject matter, this Court granted the petition
for certiorari and prohibition against the City Court of Manila and directed the
respondent court to dismiss the case.

In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based
on lack of jurisdiction over the offense, this Court granted the petition for prohibition
and enjoined the respondent court from further proceeding in the case.

In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss

based on improper venue, this Court granted the petition for prohibition and enjoined
the respondent judge from taking cognizance of the case except to dismiss the
same.

In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based
on bar by prior judgment, this Court granted the petition for certiorari and directed the
respondent judge to dismiss the case.

In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss

based on the Statute of Frauds, this Court granted the petition for certiorari and
dismissed the amended complaint.

In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after
the motion to quash based on double jeopardy was denied by respondent judge and
ordered him to desist from further action in the criminal case except to dismiss the
same.

In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on
prescription was set aside on certiorari and the criminal case was dismissed by this
Court.24

We do not find the Sandiganbayan to have committed a grave abuse of discretion.

The jurisdiction of the Sandiganbayan is

set by P.D. No. 1606, as amended, not by
R.A. No. 3019, as amended.

We first address petitioner’s contention that the jurisdiction of the Sandiganbayan is

determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as
amended). We note that petitioner refers to Section 4 of the said law yet quotes Section 4 of
P.D. No. 1606, as amended, in her motion to quash before the Sandiganbayan. 25 She
repeats the reference in the instant petition for certiorari26 and in her memorandum of
authorities.27

We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears
stressing that petitioner repeated this claim twice despite corrections made by the
Sandiganbayan.28
Her claim has no basis in law. It is P.D. No. 1606, as amended, rather than R.A. No. 3019,
as amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative
history of the statute creating the Sandiganbayan is in order. The Sandiganbayan was
created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11,
1978. It was promulgated to attain the highest norms of official conduct required of public
officers and employees, based on the concept that public officers and employees shall
serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall
remain at all times accountable to the people. 29

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on
December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan. 30

P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the
Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding
amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No.
8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As
it now stands, the Sandiganbayan has jurisdiction over the following:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original

jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft
and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title
VII, Book II of the Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade "27" and higher, of the Compensation and
Position Classification Act of 989 (Republic Act No. 6758), specifically including:

" (a) Provincial governors, vice-governors, members of the sangguniang

panlalawigan, and provincial treasurers, assessors, engineers, and other city
department heads;

" (b) City mayor, vice-mayors, members of the sangguniang panlungsod, city

treasurers, assessors, engineers, and other city department heads;

"(c ) Officials of the diplomatic service occupying t

"(c ) Officials of the diplomatic service occupying the position of consul and higher;

" (d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

" (e) Officers of the Philippine National Police while occupying the position of provincial
director and those holding the rank of senior superintended or higher;
" (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the
Office of the Ombudsman and special prosecutor;

" (g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions or foundations.

" (2) Members of Congress and officials thereof classified as Grade "27'" and up under the
Compensation and Position Classification Act of 1989;

" (3) Members of the judiciary without prejudice to the provisions of the Constitution;

" (4) Chairmen and members of Constitutional Commission, without prejudice to the
provisions of the Constitution; and

" (5) All other national and local officials classified as Grade "27'" and higher under the
Compensation and Position Classification Act of 1989.

B. Other offenses of felonies whether simple or complexed with other crimes committed by
the public officials and employees mentioned in subsection a of this section in relation to
their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1,
2, 14 and 14-A, issued in 1986.

" In cases where none of the accused are occupying positions corresponding to Salary
Grade "27'" or higher, as prescribed in the said Republic Act No. 6758, or military and PNP
officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper
regional court, metropolitan trial court, municipal trial court, and municipal circuit trial court,
as the case may be, pursuant to their respective jurisdictions as provided in Batas
Pambansa Blg. 129, as amended.

" The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments,
resolutions or order of regional trial courts whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction as herein provided.

" The Sandiganbayan shall have exclusive original jurisdiction over petitions for the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction
and over petitions of similar nature, including quo warranto, arising or that may arise
in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986: Provided, That the jurisdiction over these petitions shall not be
exclusive of the Supreme Court.

" The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules that the Supreme Court has promulgated and may thereafter
promulgate, relative to appeals/petitions for review to the Court of Appeals, shall
apply to appeals and petitions for review filed with the Sandiganbayan. In all cases
elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court,
 the Office of the Ombudsman, through its special prosecutor, shall represent the
People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1,
2, 14 and 14-A, issued in 1986.

" In case private individuals are charged as co-principals, accomplices or

accessories with the public officers or employees, including those employed in
government-owned or controlled corporations, they shall be tried jointly with said
public officers and employees in the proper courts which shall exercise exclusive
jurisdiction over them.

" Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal
action and the corresponding civil action for the recovery of civil liability shall, at all
times, be simultaneously instituted with, and jointly determined in, the same
proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal
action being deemed to necessarily carry with it the filing of the civil action, and no
right to reserve the filing such civil action separately from the criminal action shall be
recognized: Provided, however, That where the civil action had heretofore been filed
separately but judgment therein has not yet been rendered, and the criminal case is
hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall
be transferred to the Sandiganbayan or the appropriate court, as the case may be,
for consolidation and joint determination with the criminal action, otherwise the
separate civil action shall be deemed abandoned."

Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The
said law represses certain acts of public officers and private persons alike which constitute
graft or corrupt practices or which may lead thereto. 31 Pursuant to Section 10 of R.A. No.
3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan. 32

R.A. No. 3019 does not contain an enumeration of the cases over which the
Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by
petitioner, deals not with the jurisdiction of the Sandiganbayan but with prohibition on
private individuals. We quote:

Section 4. Prohibition on private individuals. – (a) It shall be unlawful for any person
having family or close personal relation with any public official to capitalize or exploit
or take advantage of such family or close personal relation by directly or indirectly
requesting or receiving any present, gift or material or pecuniary advantage from any
other person having some business, transaction, application, request or contract with
the government, in which such public official has to intervene. Family relation shall
include the spouse or relatives by consanguinity or affinity in the third civil degree.
The word "close personal relation" shall include close personal friendship, social and
fraternal connections, and professional employment all giving rise to intimacy which
assures free access to such public officer.

(b) It shall be unlawful for any person knowingly to induce or cause any public official
to commit any of the offenses defined in Section 3 hereof.
In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of
the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices
and provides for their penalties.

Sandiganbayan has jurisdiction over

the offense of estafa.

Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those
crimes cognizable by the Sandiganbayan. We note that in hoisting this argument, petitioner
isolated the first paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding
paragraphs of the said provision.

The rule is well-established in this jurisdiction that statutes should receive a sensible
construction so as to avoid an unjust or an absurd conclusion. 33 Interpretatio talis in
ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is
ambiguity, such interpretation as will avoid inconvenience and absurdity is to be
adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging
mahirap at katawa-tawa.

Every section, provision or clause of the statute must be expounded by reference to each
other in order to arrive at the effect contemplated by the legislature. 34 The intention of the
legislator must be ascertained from the whole text of the law and every part of the act is to
be taken into view.35 In other words, petitioner’s interpretation lies in direct opposition to the
rule that a statute must be interpreted as a whole under the principle that the best
interpreter of a statute is the statute itself. 36 Optima statuti interpretatrix est ipsum
statutum. Ang isang batas ay marapat na bigyan ng kahulugan sa kanyang kabuuan
sa ilalim ng prinsipyo na ang pinakamainam na interpretasyon ay ang mismong
batas.

Section 4(B) of P.D. No. 1606 reads:

B. Other offenses or felonies whether simple or or complexed with other crimes
committed by the public officials and employees mentioned in subsection a of this
section in relation to their office.

Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public
officials in relation to their office. We see no plausible or sensible reason to
exclude estafa as one of the offenses included in Section 4(bB) of P.D. No. 1606.
Plainly, estafa is one of those other felonies. The jurisdiction is simply subject to the twin
requirements that (a) the offense is committed by public officials and employees mentioned
in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in
relation to their office.

In Perlas, Jr. v. People,37 the Court had occasion to explain that the Sandiganbayan has
jurisdiction over an indictment for estafa versus a director of the National Parks
Development Committee, a government instrumentality. The Court held then:
 The National Parks Development Committee was created originally as an Executive
Committee on January 14, 1963, for the development of the Quezon Memorial,
Luneta and other national parks (Executive Order No. 30). It was later designated as
the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No.
69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were
designated Chairman and Vice-Chairman respectively (E.O. No. 3). Despite an
attempt to transfer it to the Bureau of Forest Development, Department of Natural
Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant
to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office
of the President (E.O. No. 709, dated July 27, 1981).

Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular
government agency under the Office of the President and allotments for its
maintenance and operating expenses were issued direct to NPDC (Exh. 10-A,
Perlas, Item Nos. 2, 3).

The Sandiganbayan’s jurisdiction over estafa was reiterated with greater firmness

in Bondoc v. Sandiganbayan.38Pertinent parts of the Court’s ruling in Bondoc read:

Furthermore, it is not legally possible to transfer Bondoc’s cases to the Regional Trial
Court, for the simple reason that the latter would not have jurisdiction over the
offenses. As already above intimated, the inability of the Sandiganbayan to hold a
joint trial of Bondoc’s cases and those of the government employees separately
charged for the same crimes, has not altered the nature of the offenses charged,
as estafa thru falsification punishable by penalties higher than prision correccional or
imprisonment of six years, or a fine of P6,000.00, committed by government
employees in conspiracy with private persons, including Bondoc. These crimes are
within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot
be taken cognizance of by the regular courts, apart from the fact that even if the
cases could be so transferred, a joint trial would nonetheless not be possible.

Petitioner UP student regent

is a public officer.

Petitioner also contends that she is not a public officer. She does not receive any salary or
remuneration as a UP student regent. This is not the first or likely the last time that We will
be called upon to define a public officer. InKhan, Jr. v. Office of the Ombudsman, We ruled
that it is difficult to pin down the definition of a public officer. 39The 1987 Constitution does
not define who are public officers. Rather, the varied definitions and concepts are found in
different statutes and jurisprudence.

In Aparri v. Court of Appeals,40 the Court held that:

A public office is the right, authority, and duty created and conferred by law, by which
for a given period, either fixed by law or enduring at the pleasure of the creating
power, an individual is invested with some portion of the sovereign functions of the
government, to be exercise by him for the benefit of the public ([Mechem Public
Offices and Officers,] Sec. 1). The right to hold a public office under our political
 system is therefore not a natural right. It exists, when it exists at all only because and
by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid.,
Sec. 64). There is no such thing as a vested interest or an estate in an office, or
even an absolute right to hold office. Excepting constitutional offices which provide
for special immunity as regards salary and tenure, no one can be said to have any
vested right in an office or its salary (42 Am. Jur. 881).

In Laurel v. Desierto,41 the Court adopted the definition of Mechem of a public office:

"A public office is the right, authority and duty, created and conferred by law, by
which, for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign functions
of the government, to be exercised by him for the benefit of the public. The individual
so invested is a public officer."42

Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a
regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary
grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has
jurisdiction over other officers enumerated in P.D. No. 1606. InGeduspan v. People,43 We
held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and
higher, its second part specifically includes other executive officials whose positions may
not be of Salary Grade 27 and higher but who are by express provision of law placed under
the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan
as she is placed there by express provision of law. 44

Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction
over Presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations. Petitioner falls
under this category. As the Sandiganbayan pointed out, the BOR performs functions similar
to those of a board of trustees of a non-stock corporation. 45 By express mandate of law,
petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.

Moreover, it is well established that compensation is not an essential element of public

office.46 At most, it is merely incidental to the public office. 47

Delegation of sovereign functions is essential in the public office. An investment in an

individual of some portion of the sovereign functions of the government, to be exercised by
him for the benefit of the public makes one a public officer. 48

The administration of the UP is a sovereign function in line with Article XIV of the
Constitution. UP performs a legitimate governmental function by providing advanced
instruction in literature, philosophy, the sciences, and arts, and giving professional and
technical training.49 Moreover, UP is maintained by the Government and it declares no
dividends and is not a corporation created for profit. 50

The offense charged was committed

in relation to public office, according
to the Information.
Petitioner likewise argues that even assuming that she is a public officer, the
Sandiganbayan would still not have jurisdiction over the offense because it was not
committed in relation to her office.

According to petitioner, she had no power or authority to act without the approval of the
BOR. She adds there was no Board Resolution issued by the BOR authorizing her to
contract with then President Estrada; and that her acts were not ratified by the governing
body of the state university. Resultantly, her act was done in a private capacity and not in
relation to public office.

It is axiomatic that jurisdiction is determined by the averments in the information. 51 More

than that, jurisdiction is not affected by the pleas or the theories set up by defendant or
respondent in an answer, a motion to dismiss, or a motion to quash. 52 Otherwise, jurisdiction
would become dependent almost entirely upon the whims of defendant or respondent. 53

In the case at bench, the information alleged, in no uncertain terms that petitioner, being
then a student regent of U.P., "while in the performance of her official functions, committing
the offense in relation to her office and taking advantage of her position, with intent to gain,
conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there
wilfully, unlawfully and feloniously defraud the government x x x." (Underscoring supplied)

Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it
did not quash the information based on this ground.

Source of funds is a defense that should

be raised during trial on the merits.

It is contended anew that the amount came from President Estrada’s private funds and not
from the government coffers. Petitioner insists the charge has no leg to stand on.

We cannot agree. The information alleges that the funds came from the Office of the
President and not its then occupant, President Joseph Ejercito Estrada. Under the
information, it is averred that "petitioner requested the amount of Fifteen Million Pesos
(P15,000,000.00), Philippine Currency, from the Office of the President, and the latter
relying and believing on said false pretenses and misrepresentation gave and delivered to
said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen
Million Pesos (P15,000,000.00)."

Again, the Court sustains the Sandiganbayan observation that the source of
the P15,000,000 is a matter of defense that should be ventilated during the trial on the
merits of the instant case.54

A lawyer owes candor, fairness

and honesty to the Court.

As a parting note, petitioner’s counsel, Renato G. dela Cruz, misrepresented his reference
to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of
his motion to quash, the instant petition forcertiorari and his memorandum, unveils the
misquotation. We urge petitioner’s counsel to observe Canon 10 of the Code of
Professional Responsibility, specifically Rule 10.02 of the Rules stating that "a lawyer shall
not misquote or misrepresent."

The Court stressed the importance of this rule in Pangan v. Ramos,55 where Atty Dionisio D.
Ramos used the name Pedro D.D. Ramos in connection with a criminal case. The Court
ruled that Atty. Ramos resorted to deception by using a name different from that with which
he was authorized. We severely reprimanded Atty. Ramos and warned that a repetition may
warrant suspension or disbarment.56

We admonish petitioner’s counsel to be more careful and accurate in his citation. A lawyer’s
conduct before the court should be characterized by candor and fairness. 57 The
administration of justice would gravely suffer if lawyers do not act with complete candor and
honesty before the courts.58

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

Ynares-Santiago, Chairperson, Austria-Martin

G.R. Nos. 147026-27

AROLINA R. JAVIER,  
Petitioner,
  Present:
 
YNARES-SANTIAGO, J.,
- versus -
Chairperson,
  CHICO-NAZARIO,
  VELASCO, JR.,
THE FIRST DIVISION OF THE NACHURA, and
SANDIGANBAYAN and the PERALTA, JJ.
 
PEOPLE OF THE PHILIPPINES,
Respondents. Promulgated:
  September 11, 2009
x-----------------------------------------------------x
  
 
DECISION
 
PERALTA, J.:
 
 
Before the Court is a petition for certiorari[1] under Rule 65 of the Rules of Court
filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898,
entitled People of the Philippines, Plaintiff versus Carolina R. Javier,
Accused, seeking to nullify respondent Sandiganbayan's: (1) Order[2] dated
November 14, 2000 in Criminal Case No. 25867, which denied her Motion to
Quash Information; (2) Resolution[3] dated January 17,
2001 in Criminal Case No. 25898, which denied herMotion for Reconsideration
and Motion to Quash Information; and (3) Order[4] dated February 12, 2001,
declaring that a motion for reconsideration in Criminal Case No. 25898 would be
superfluous as the issues are fairly simple and straightforward.
 
The factual antecedents follow.
 
On June 7, 1995, Republic Act (R.A.) No. 8047, [5] or otherwise known as the Book
Publishing Industry Development Act, was enacted into law. Foremost in its policy
is the State's goal in promoting the continuing development of the book publishing
industry, through the active participation of the private sector, to ensure an
adequate supply of affordable, quality-produced books for the domestic and export
market.
 
To achieve this purpose, the law provided for the creation of the National Book
Development Board (NBDB or the Governing Board, for brevity), which shall be
under the administration and supervision of the Office of the President. The
Governing Board shall be composed of eleven (11) members who shall be
appointed by the President of the Philippines, five (5) of whom shall come from
the government, while the remaining six (6) shall be chosen from the nominees of
organizations of private book publishers, printers, writers, book industry related
activities, students and the private education sector.
 
On February 26, 1996, petitioner was appointed to the Governing Board as a
private sector representative for a term of one (1) year. [6] During that time, she was
also the President of the Book Suppliers Association of the Philippines
(BSAP). She was on a hold-over capacity in the following year. On September 14,
1998, she was again appointed to the same position and for the same period of one
(1) year.[7] Part of her functions as a member of the Governing Board is to attend
book fairs to establish linkages with international book publishing
bodies. On September 29, 1997, she was issued by the Office of the President a
travel authority to attend the Madrid International Book Fair in Spain on October
8-12, 1997.[8] Based on her itinerary of travel,[9] she was paid P139,199.00[10] as her
travelling expenses.
Unfortunately, petitioner was not able to attend the scheduled international book
fair.
 
On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to
immediately return/refund her cash advance considering that her trip was canceled.
[11]
 Petitioner, however, failed to do so. On July 6, 1998, she was issued a Summary
of Disallowances[12] from which the balance for settlement amounted
toP220,349.00. Despite said notice, no action was forthcoming from the petitioner.
 
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the
NBDB, filed with the Ombudsman a complaint against petitioner for malversation
of public funds and properties. She averred that despite the cancellation of the
foreign trip, petitioner failed to liquidate or return to the NBDB her cash advance
within sixty (60) days from date of arrival, or in this case from the date of
cancellation of the trip, in accordance with government accounting and auditing
rules and regulations. Dr. Apolonio further charged petitioner with violation of
Republic Act (R.A.) No. 6713[13] for failure to file her Statement of Assets and
Liabilities.
 
The Ombudsman found probable cause to indict petitioner for violation of Section
3(e) of R.A. No. 3019,[14] as amended, and recommended the filing of the
corresponding information.[15] It, however, dismissed for insufficiency of evidence,
the charge for violation of R.A. No. 6713.
 
In an Information dated February 18, 2000, petitioner was charged with violation
of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit:
 
That on or about October 8, 1997, or for sometime prior or subsequent
thereto, in the City of Quezon, Philippines and within the jurisdiction of
this Honorable Court, the aforenamed accused, a public officer, being
then a member of the governing Board of the National Book
Development Board (NBDB), while in the performance of her official
and administrative functions, and acting with evident bad faith or gross
inexcusable negligence, did then and there willfully, unlawfully and
criminally, without any justifiable cause, and despite due demand by the
Resident Auditor and the Executive Director of NBDB, fail and refuse to
return and/or liquidate her cash advances intended for official travel
abroad which did not materialize, in the total amount of P139,199.00 as
of September 23, 1999, as required under EO No. 248 and Sec. 5 of
COA Circular No. 97-002 thereby causing damage and undue injury to
the Government.
 
CONTRARY TO LAW.[16]
 
 
The case was docketed as Criminal Case No. 25867 and raffled to the First
Division.
 
Meanwhile, the Commission on Audit charged petitioner with Malversation of
Public Funds, as defined and penalized under Article 217 of the Revised Penal
Code, for not liquidating the cash advance granted to her in connection with her
supposed trip to Spain. During the conduct of the preliminary investigation,
petitioner was required to submit her counter-affidavit but she failed to do so. The
Ombudsman found probable cause to indict petitioner for the crime charged and
recommended the filing of the corresponding information against her. [17]
Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan,
which was docketed as Criminal Case No. 25898, and raffled to the Third
Division, the accusatory portion of which reads:
 
That on or about and during the period from October 8, 1997 to February
16, 1999, or for sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a high ranking officer, being a member of the
Governing Board of the National Book Development Board and as such,
is accountable for the public funds she received as cash advance in
connection with her trip to Spain from October 8-12, 1997, per LBP
Check No. 10188 in the amount ofP139,199.00, which trip did not
materialize, did then and there willfully, unlawfully and feloniously take,
malverse, misappropriate, embezzle and convert to her own personal use
and benefit the aforementioned amount of P139,199.00, Philippine
currency, to the damage and prejudice of the government in the aforesaid
amount.
 
CONTRARY TO LAW.[18]
 
 
During her arraignment in Criminal Case No. 25867, petitioner pleaded not
guilty. Thereafter, petitioner delivered to the First Division the money subject of
the criminal cases, which amount was deposited in a special trust account during
the pendency of the criminal cases.
 
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No.
25898 on May 16, 2000 in order to determine jurisdictional issues. On June 3,
2000, petitioner filed with the same Division a Motion for Consolidation [19] of
Criminal Case No. 25898 with Criminal Case No. 25867, pending before the First
Division.On July 6, 2000, the People filed an Urgent Ex-Parte Motion to Admit
Amended Information[20] in Criminal Case No. 25898, which was
granted. Accordingly, the Amended Information dated June 28, 2000 reads as
follows:
 
That on or about and during the period from October 8, 1997 to February
16, 1999, or for sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a high ranking officer, being a member of the
Governing Board of the National Book Development Board equated to
Board Member II with a salary grade 28 and as such, is accountable for
the public funds she received as case advance in connection with her trip
to Spain from October 8-12, 1997, per LBP Check No. 10188 in the
amount of P139,199.00, which trip did not materialize, did then and
there willfully, unlawfully and feloniously take, malverse,
misappropriate, embezzle and convert to her own personal use and
benefit the aforementioned amount of P139,199.00, Philippine currency,
to the damage and prejudice of the government in the aforesaid amount.
 
CONTRARY TO LAW.[21]
 
In its Resolution dated October 5, 2000, the Third Division ordered the
consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. [22]
 
On October 10, 2000, petitioner filed a Motion to Quash Information,
[23]
 averring that the Sandiganbayan has no jurisdiction to hear Criminal Case No.
25867 as the information did not allege that she is a public official who is
classified as Grade 27 or higher. Neither did the information charge her as a co-
principal, accomplice or accessory to a public officer committing an offense under
the Sandiganbayan's jurisdiction. She also averred that she is not a public officer or
employee and that she belongs to the Governing Board only as a private sector
representative under R.A. No. 8047, hence, she may not be charged under R.A. No.
3019 before the Sandiganbayan or under any statute which covers public
officials. Moreover, she claimed that she does not perform public functions and is
without any administrative or political power to speak of that she is serving the
private book publishing industry by advancing their interest as participant in the
government's book development policy.
 In an Order[24] dated November 14, 2000, the First Division [25] denied the
motion to quash with the following disquisition:
 
The fact that the accused does not receive any compensation in terms of
salaries and allowances, if that indeed be the case, is not the sole
qualification for being in the government service or a public official. The
National Book Development Board is a statutory government agency
and the persons who participated therein even if they are from the private
sector, are public officers to the extent that they are performing their
duty therein as such.
 
Insofar as the accusation is concerned herein, it would appear that
monies were advanced to the accused in her capacity as Director of the
National Book Development Board for purposes of official travel. While
indeed under ordinary circumstances a member of the board remains a
private individual, still when that individual is performing her functions
as a member of the board or when that person receives benefits or when
the person is supposed to travel abroad and is given government money
to effect that travel, to that extent the private sector representative is a
public official performing public functions; if only for that reason, and
not even considering situation of her being in possession of public funds
even as a private individual for which she would also covered by
provisions of the Revised Penal Code, she is properly charged before this
Court.
 
On November 15, 2000, the First Division accepted the consolidation of the
criminal cases against petitioner and scheduled her arraignment on November 17,
2000, for Criminal Case No. 25898. On said date, petitioner manifested that she is
not prepared to accept the propriety of the accusation since it refers to the same
subject matter as that covered in Criminal Case No. 25867 for which the
Sandiganbayan gave her time to file a motion to quash. On November 22, 2000,
petitioner filed a Motion to Quash the Information [26] in Criminal Case No. 25898,
by invoking her right against double jeopardy. However, her motion was denied in
open court. She then filed a motion for reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution[27] denying
petitioners motion with the following disquisition:
  
The accused is under the jurisdiction of this Court because Sec. 4
(g) of P.D. 1606 as amended so provides, thus:
 
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:
 
xxxx
 
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations;
 
xxxx
 
The offense is office-related because the money for her travel
abroad was given to her because of her Directorship in the National
Book Development Board.
 
Furthermore, there are also allegations to hold the accused liable
under Article 222 of the Revised Penal Code which reads:
 
Art. 222. Officers included in the preceding
provisions. The provisions of this chapter shall apply
to private individuals who, in any capacity whatever, have
charge of any insular, provincial or municipal funds,
revenues, or property and to any administrator or depository
of funds or property attached , seized or deposited by public
authority, even if such property belongs to a private
individual.
 
Likewise, the Motion to Quash the Information in Criminal Case
No. 25898 on the ground of litis pendencia is denied since in this
instance, these two Informations speak of offenses under different
statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of
which precludes prosecution of the other.
Petitioner hinges the present petition on the ground that the Sandiganbayan has
committed grave abuse of discretion amounting to lack of jurisdiction for not
quashing the two informations charging her with violation of the Anti-Graft Law
and the Revised Penal Code on malversation of public funds. She advanced the
following arguments in support of her petition, to wit: first, she is not a public
officer, and second, she was being charged under two (2) informations, which is in
violation of her right against double jeopardy.
 
A motion to quash an Information is the mode by which an accused assails the
validity of a criminal complaint or Information filed against him for insufficiency
on its face in point of law, or for defects which are apparent in the face of the
Information.[28]
 
Well-established is the rule that when a motion to quash in a criminal case is
denied, the remedy is not a petition for certiorari, but for petitioners to go to trial,
without prejudice to reiterating the special defenses invoked in their motion to
quash. Remedial measures as regards interlocutory orders, such as a motion to
quash, are frowned upon and often dismissed. The evident reason for this rule is to
avoid multiplicity of appeals in a single action.[29]
 
The above general rule, however admits of several exceptions, one of which is
when the court, in denying the motion to dismiss or motion to quash, acts without
or in excess of jurisdiction or with grave abuse of discretion, then certiorari or
prohibition lies. The reason is that it would be unfair to require the defendant or
accused to undergo the ordeal and expense of a trial if the court has no jurisdiction
over the subject matter or offense, or is not the court of proper venue, or if the
denial of the motion to dismiss or motion to quash is made with grave abuse of
discretion or a whimsical and capricious exercise of judgment. In such cases, the
ordinary remedy of appeal cannot be plain and adequate.[30]
 
To substantiate her claim, petitioner maintained that she is not a public officer and
only a private sector representative, stressing that her only function among the
eleven (11) basic purposes and objectives provided for in Section 4, R.A. No.
8047, is to obtain priority status for the book publishing industry. At the time
of her appointment to the NDBD Board, she was the President of the BSAP, a
book publishers association. As such, she could not be held liable for the crimes
imputed against her, and in turn, she is outside the jurisdiction of the
Sandiganbayan.
 
The NBDB is the government agency mandated to develop and support the
Philippine book publishing industry. It is a statutory government agency created by
R.A. No. 8047, which was enacted into law to ensure the full development of the
book publishing industry as well as for the creation of organization structures to
implement the said policy. To achieve this end, the Governing Board of the NBDB
was created to supervise the implementation. The Governing Board was vested
with powers and functions, to wit:
a) assume responsibility for carrying out and implementing the policies,
purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies and guidelines for
undertaking activities relative to promoting book development, production and
distribution as well as an incentive scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that editors, compilers
and especially authors are paid justly and promptly royalties due them for
reproduction of their works in any form and number and for whatever purpose;
d) conduct or contract research on the book publishing industry including
monitoring, compiling and providing data and information of book production;
e) provide a forum for interaction among private publishers, and, for the purpose,
establish and maintain liaison will all the segments of the book publishing
industry;
f) ask the appropriate government authority to ensure effective implementation of
the National Book Development Plan;
g) promulgate rules and regulations for the implementation of this Act in
consultation with other agencies concerned, except for Section 9 hereof on
incentives for book development, which shall be the concern of appropriate
agencies involved;
h) approve, with the concurrence of the Department of Budget and Management
(DBM), the annual and supplemental budgets submitted to it by the Executive
director;
i) own, lease, mortgage, encumber or otherwise real and personal property for the
attainment of its purposes and objectives;
j) enter into any obligation or contract essential to the proper administration of its
affairs, the conduct of its operations or the accomplishment of its purposes and
objectives;
 k) receive donations, grants, legacies, devices and similar acquisitions which shall
form a trust fund of the Board to accomplish its development plans on book
publishing;
l) import books or raw materials used in book publishing which are exempt from
all taxes, customs duties and other charges in behalf of persons and enterprises
engaged in book publishing and its related activities duly registered with the
board;
m) promulgate rules and regulations governing the matter in which the general
affairs of the Board are to be exercised and amend, repeal, and modify such rules
and regulations whenever necessary;
n) recommend to the President of the Philippines nominees for the positions of the
Executive Officer and Deputy Executive Officer of the Board;
o) adopt rules and procedures and fix the time and place for holding meetings:
Provided, That at least one (1) regular meeting shall be held monthly;
p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other
related activities on book development such as indigenous authorship, intellectual
property rights, use of alternative materials for printing, distribution and others;
and
q) exercise such other powers and perform such other duties as may be required
by the law.[31]
 
 
A perusal of the above powers and functions leads us to conclude that they partake
of the nature of public functions. A public office is the right, authority and duty,
created and conferred by law, by which, for a given period, either fixed by law or
enduring at the pleasure of the creating power, an individual is invested with
some portion of the sovereign functions of the government, to be exercised by
him for the benefit of the public. The individual so invested is a public officer.[32]
 
Notwithstanding that petitioner came from the private sector to sit as a member of
the NBDB, the law invested her with some portion of the sovereign functions of
the government, so that the purpose of the government is achieved. In this case, the
government aimed to enhance the book publishing industry as it has a significant
role in the national development. Hence, the fact that she was appointed from the
public sector and not from the other branches or agencies of the government does
not take her position outside the meaning of a public office. She was appointed to
the Governing Board in order to see to it that the purposes for which the law was
enacted are achieved. The Governing Board acts collectively and carries out its
mandate as one body. The purpose of the law for appointing members from the
private sector is to ensure that they are also properly represented in the
implementation of government objectives to cultivate the book publishing industry.
 
Moreover, the Court is not unmindful of the definition of a public officer pursuant
to the Anti-Graft Law, which provides that a public officer includes elective and
appointive officials and employees, permanent or temporary, whether in the
classified or unclassified or exempt service receiving compensation, even nominal,
from the government.[33]
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been
elected or appointed to a public office. Petitioner was appointed by the President to
the Governing Board of the NDBD. Though her term is only for a year that does
not make her private person exercising a public function. The fact that she is not
receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047
provides that members of the Governing Board shall receive per diem and such
allowances as may be authorized for every meeting actually attended and subject to
pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature of
one's appointment, and whether the compensation one receives from the
government is only nominal, is immaterial because the person so elected or
appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any person
who, by direct provision of the law, popular election, popular election or
appointment by competent authority, shall take part in the performance of public
functions in the Government of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as an employee, agent, or
subordinate official, of any rank or classes, shall be deemed to be a public officer.
[34]

Where, as in this case, petitioner performs public functions in pursuance of the

objectives of R.A. No. 8047, verily, she is a public officer who takes part in the
performance of public functions in the government whether as an employee, agent,
subordinate official, of any rank or classes. In fact, during her tenure, petitioner
took part in the drafting and promulgation of several rules and regulations
implementing R.A. No. 8047. She was supposed to represent the country in the
canceled book fair in Spain.
 
In fine, We hold that petitioner is a public officer. The next question for the Court
to resolve is whether, as a public officer, petitioner is within the jurisdiction of the
Sandiganbayan.
Presently,[35] the Sandiganbayan has jurisdiction over the following:
 
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
 
A. Violations of Republic Act No. 3019, as
amended, other known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials occupying
the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense:
 
(1)   Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade 27 and
higher, of the Compensation and Position Classification Act of
989 (Republic Act No. 6758), specifically including:
xxxx
 
(2) Members of Congress and officials thereof classified as Grade Grade
'27' and up under the Compensation and Position Classification Act of
1989;
 
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
 
(4) Chairmen and members of Constitutional Commission,
without prejudice to the provisions of the Constitution; and
 
(5) All other national and local officials classified
as Grade Grade '27' and higher under the Compensation and
Position Classification Act of 1989.
  
xxxx
 
 
Notably, the Director of Organization, Position Classification and Compensation
Bureau, of the Department of Budget and management provided the following
information regarding the compensation and position classification and/or rank
equivalence of the member of the Governing Board of the NBDB, thus:
 
Per FY 1999 Personal Services Itemization, the Governing Board of
NDBD is composed of one (1) Chairman (ex-officio), one (1) Vice-
Chairman (ex-officio), and nine (9) Members, four (4) of whom are ex-
officio and the remaining five (5) members represent the private
sector. The said five members of the Board do not receive any salary and
as such their position are not classified and are not assigned any salary
grade.
 
For purposes however of determining the rank equivalence of said
positions, notwithstanding that they do not have any salary grade
assignment, the same may be equated to Board Member II, SG-28. [36]
Thus, based on the Amended Information in Criminal Case No. 25898, petitioner
belongs to the employees classified as SG-28, included in the phrase all other
national and local officials classified as Grade 27' and higher under the
Compensation and Position Classification Act of 1989.
 
Anent the issue of double jeopardy, We can not likewise give in to the contentions
advanced by petitioner. She argued that her right against double jeopardy was
violated when the Sandiganbayan denied her motion to quash the two informations
filed against her.
 
We believe otherwise. Records show that the Informations in Criminal Case Nos.
25867 and 25898 refer to offenses penalized by different statues, R.A. No. 3019
and RPC, respectively. It is elementary that for double jeopardy to attach, the case
against the accused must have been dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon valid information
sufficient in form and substance and the accused pleaded to the charge. [37] In the
instant case, petitioner pleaded not guilty to the Information for violation of the
Anti-Graft Law. She was not yet arraigned in the criminal case for malversation of
public funds because she had filed a motion to quash the latter information. Double
jeopardy could not, therefore, attach considering that the two cases remain pending
before the Sandiganbayan and that herein petitioner had pleaded to only one in the
criminal cases against her.
 
It is well settled that for a claim of double jeopardy to prosper, the following
requisites must concur: (1) there is a complaint or information or other formal
charge sufficient in form and substance to sustain a conviction; (2) the same
is filed before a court of competent jurisdiction; (3) there is a valid arraignment or
plea to the charges; and (4) the accused is convicted or acquitted or the case is
otherwise dismissed or terminated without his express consent.[38] The third and
fourth requisites are not present in the case at bar.
 
In view of the foregoing, We hold that the present petition does not fall under the
exceptions wherein the remedy of certiorari may be resorted to after the denial of
one's motion to quash the information. And even assuming that petitioner may
avail of such remedy, We still hold that the Sandiganbayan did not commit grave
abuse of discretion amounting to lack of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and
Order of the Sandiganbayan are AFFIRMED. Costs against petitioner.
SO ORDERED.
 

ABAKADA GURO PARTY G.R. No. 166715

LIST (formerly AASJS)*

OFFICERS/MEMBERS

SAMSON S. ALCANTARA,

ED VINCENT S. ALBANO,

ROMEO R. ROBISO,

RENE B. GOROSPE and

EDWIN R. SANDOVAL,

Petitioners, Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- v e r s u s - CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.

NACHURA,

REYES,

LEONARDO-DE CASTRO and

BRION, JJ.

HON. CESAR V. PURISIMA, in

his capacity as Secretary of

Finance, HON. GUILLERMO L.

PARAYNO, JR., in his capacity

as Commissioner of the Bureau

of Internal Revenue, and

HON. ALBERTO D. LINA, in his

Capacity as Commissioner of

Bureau of Customs,

Respondents. Promulgated:

August 14, 2008

x---------------------------------------------------x

DECISION
CORONA, J.:

This petition for prohibition[1] seeks to prevent respondents from

implementing and enforcing Republic Act (RA) 9335[2] (Attrition Act of 2005).
 

RA 9335 was enacted to optimize the revenue-generation capability and

collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC). The law intends to encourage BIR and BOC officials and employees to
exceed their revenue targets by providing a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund (Fund) and a Revenue
Performance Evaluation Board (Board).[3] It covers all officials and employees of
the BIR and the BOC with at least six months of service, regardless of employment
status.[4]
 

The Fund is sourced from the collection of the BIR and the BOC in excess of
their revenue targets for the year, as determined by the Development Budget and
Coordinating Committee (DBCC). Any incentive or reward is taken from the fund
and allocated to the BIR and the BOC in proportion to their contribution in the
excess collection of the targeted amount of tax revenue.[5]
 

The Boards in the BIR and the BOC are composed of the Secretary of the
Department of Finance (DOF) or his/her Undersecretary, the Secretary of the
Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or
his/her Deputy Director General, the Commissioners of the BIR and the BOC or
their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their recognized
organization.[6]
 
 Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and procedures for
removing from the service officials and employees whose revenue collection falls
short of the target; (3) terminate personnel in accordance with the criteria
adopted by the Board; (4) prescribe a system for performance evaluation; (5)
perform other functions, including the issuance of rules and regulations and (6)
submit an annual report to Congress.[7]
 

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC)
were tasked to promulgate and issue the implementing rules and regulations of
RA 9335,[8] to be approved by a Joint Congressional Oversight Committee created
for such purpose.[9]
 

Petitioners, invoking their right as taxpayers filed this petition challenging

the constitutionality of RA 9335, a tax reform legislation. They contend that, by
establishing a system of rewards and incentives, the law transform[s] the officials
and employees of the BIR and the BOC into mercenaries and bounty hunters as
they will do their best only in consideration of such rewards. Thus, the system of
rewards and incentives invites corruption and undermines the constitutionally
mandated duty of these officials and employees to serve the people with utmost
responsibility, integrity, loyalty and efficiency.
 
 Petitioners also claim that limiting the scope of the system of rewards and
incentives only to officials and employees of the BIR and the BOC violates the
constitutional guarantee of equal protection. There is no valid basis for
classification or distinction as to why such a system should not apply to officials
and employees of all other government agencies.
 

In addition, petitioners assert that the law unduly delegates the power to
fix revenue targets to the President as it lacks a sufficient standard on that matter.
While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be
dismissed from the service if their revenue collections fall short of the target by at
least 7.5%, the law does not, however, fix the revenue targets to be achieved.
Instead, the fixing of revenue targets has been delegated to the President without
sufficient standards. It will therefore be easy for the President to fix an unrealistic
and unattainable target in order to dismiss BIR or BOC personnel.
 

Finally, petitioners assail the creation of a congressional oversight

committee on the ground that it violates the doctrine of separation of powers.
While the legislative function is deemed accomplished and completed upon the
enactment and approval of the law, the creation of the congressional oversight
committee permits legislative participation in the implementation and
enforcement of the law.
 
In their comment, respondents, through the Office of the Solicitor General,
question the petition for being premature as there is no actual case or
controversy yet. Petitioners have not asserted any right or claim that will
necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents
acknowledge that public policy requires the resolution of the constitutional issues
involved in this case. They assert that the allegation that the reward system will
breed mercenaries is mere speculation and does not suffice to invalidate the law.
Seen in conjunction with the declared objective of RA 9335, the law validly
classifies the BIR and the BOC because the functions they perform are distinct
from those of the other government agencies and instrumentalities. Moreover,
the law provides a sufficient standard that will guide the executive in the
implementation of its provisions. Lastly, the creation of the congressional
oversight committee under the law enhances, rather than violates, separation of
powers. It ensures the fulfillment of the legislative policy and serves as a check to
any over-accumulation of power on the part of the executive and the
implementing agencies.
 

After a careful consideration of the conflicting contentions of the parties,

the Court finds that petitioners have failed to overcome the presumption of
constitutionality in favor of RA 9335, except as shall hereafter be discussed.
 

ACTUAL CASE AND RIPENESS

 

An actual case or controversy involves a conflict of legal rights, an assertion of

opposite legal claims susceptible of judicial adjudication. [10] A closely related
requirement is ripeness, that is, the question must be ripe for adjudication. And a
constitutional question is ripe for adjudication when the governmental act being
challenged has a direct adverse effect on the individual challenging it. [11] Thus, to
be ripe for judicial adjudication, the petitioner must show a personal stake in the
outcome of the case or an injury to himself that can be redressed by a favorable
decision of the Court.[12]

In this case, aside from the general claim that the dispute has ripened into a
judicial controversy by the mere enactment of the law even without any further
overt act,[13] petitioners fail either to assert any specific and concrete legal claim
or to demonstrate any direct adverse effect of the law on them. They are unable
to show a personal stake in the outcome of this case or an injury to themselves.
On this account, their petition is procedurally infirm.
 

This notwithstanding, public interest requires the resolution of the

constitutional issues raised by petitioners. The grave nature of their allegations
tends to cast a cloud on the presumption of constitutionality in favor of the law.
And where an action of the legislative branch is alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute.[14]
 

ACCOUNTABILITY OF

PUBLIC OFFICERS

Section 1, Article 11 of the Constitution states:

 

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

Public office is a public trust. It must be discharged by its holder not for his
own personal gain but for the benefit of the public for whom he holds it in trust.
By demanding accountability and service with responsibility, integrity, loyalty,
efficiency, patriotism and justice, all government officials and employees have the
duty to be responsive to the needs of the people they are called upon to serve.

Public officers enjoy the presumption of regularity in the performance of

their duties. This presumption necessarily obtains in favor of BIR and BOC officials
and employees. RA 9335 operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for the purpose of encouraging the
officials and employees of the BIR and the BOC to exceed their revenue targets
and optimize their revenue-generation capability and collection.[15]
 

The presumption is disputable but proof to the contrary is required to rebut

it. It cannot be overturned by mere conjecture or denied in advance (as
petitioners would have the Court do) specially in this case where it is an
underlying principle to advance a declared public policy.

Petitioners claim that the implementation of RA 9335 will turn BIR and BOC
officials and employees into bounty hunters and mercenaries is not only without
any factual and legal basis; it is also purely speculative.
 

A law enacted by Congress enjoys the strong presumption of

constitutionality. To justify its nullification, there must be a clear and unequivocal
breach of the Constitution, not a doubtful and equivocal one. [16] To invalidate RA
9335 based on petitioners baseless supposition is an affront to the wisdom not
only of the legislature that passed it but also of the executive which approved it.
 

Public service is its own reward. Nevertheless, public officers may by law be
rewarded for exemplary and exceptional performance. A system of incentives for
exceeding the set expectations of a public office is not anathema to the concept
of public accountability. In fact, it recognizes and reinforces dedication to duty,
industry, efficiency and loyalty to public service of deserving government
personnel.
 

In United States v. Matthews,[17] the U.S. Supreme Court validated a law

which awards to officers of the customs as well as other parties an amount not
exceeding one-half of the net proceeds of forfeitures in violation of the laws
against smuggling. Citing Dorsheimer v. United States,[18] the U.S. Supreme Court
said:
 

The offer of a portion of such penalties to the collectors is to

stimulate and reward their zeal and industry in detecting fraudulent
attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled
to a reward when, as a consequence of their zeal in the enforcement of tax and
customs laws, they exceed their revenue targets. In addition, RA 9335 establishes
safeguards to ensure that the reward will not be claimed if it will be either the
fruit of bounty hunting or mercenary activity or the product of the irregular
performance of official duties. One of these precautionary measures is embodied
in Section 8 of the law:
 

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the
BOC. The officials, examiners, and employees of the [BIR] and the [BOC]
who violate this Act or who are guilty of negligence, abuses or acts of
malfeasance or misfeasance or fail to exercise extraordinary diligence in
 the performance of their duties shall be held liable for any loss or injury
suffered by any business establishment or taxpayer as a result of such
violation, negligence, abuse, malfeasance, misfeasance or failure to
exercise extraordinary diligence.

 
 

EQUAL PROTECTION

Equality guaranteed under the equal protection clause is equality under the
same conditions and among persons similarly situated; it is equality among
equals, not similarity of treatment of persons who are classified based on
substantial differences in relation to the object to be accomplished. [19] When
things or persons are different in fact or circumstance, they may be treated in law
differently. In Victoriano v. Elizalde Rope Workers Union,[20] this Court declared:
 

The guaranty of equal protection of the laws is not a guaranty of

equality in the application of the laws upon all citizens of the [S]tate. It
is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should
be affected alike by a statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely as such, but on
persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows

classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on
substantial distinctions which make for real differences, that it must
be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied
if the classification or distinction is based on a reasonable foundation
or rational basis and is not palpably arbitrary.

In the exercise of its power to make classifications for the

purpose of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. It is not necessary
that the classification be based on scientific or marked differences of
things or in their relation. Neither is it necessary that the classification
be made with mathematical nicety. Hence, legislative classification may
in many cases properly rest on narrow distinctions, for the equal
protection guaranty does not preclude the legislature from recognizing
degrees of evil or harm, and legislation is addressed to evils as they may
appear.[21] (emphasis supplied)

 
 The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not arbitrary.
[22]
 With respect to RA 9335, its expressed public policy is the optimization of the
revenue-generation capability and collection of the BIR and the BOC. [23] Since the
subject of the law is the revenue- generation capability and collection of the BIR
and the BOC, the incentives and/or sanctions provided in the law should logically
pertain to the said agencies. Moreover, the law concerns only the BIR and the
BOC because they have the common distinct primary function of generating
revenues for the national government through the collection of taxes, customs
duties, fees and charges.
 

The BIR performs the following functions:

 

Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal

Revenue, which shall be headed by and subject to the supervision and
control of the Commissioner of Internal Revenue, who shall be
appointed by the President upon the recommendation of the Secretary
[of the DOF], shall have the following functions:

(1)                 Assess and collect all taxes, fees and charges and account for
all revenues collected;

(2)                 Exercise duly delegated police powers for the proper

performance of its functions and duties;

(3)                 Prevent and prosecute tax evasions and all other illegal

economic activities;
 (4)                 Exercise supervision and control over its constituent and
subordinate units; and

(5)                 Perform such other functions as may be provided by law.[24]

xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

 

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be

headed and subject to the management and control of the
Commissioner of Customs, who shall be appointed by the President
upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following
functions:

(1)                 Collect custom duties, taxes and the corresponding fees,

charges and penalties;

(2)                 Account for all customs revenues collected;

(3)                 Exercise police authority for the enforcement of tariff and

customs laws;

(4)                 Prevent and suppress smuggling, pilferage and all other

economic frauds within all ports of entry;

(5)                 Supervise and control exports, imports, foreign mails and the

clearance of vessels and aircrafts in all ports of entry;

(6)                 Administer all legal requirements that are appropriate;

(7)                 Prevent and prosecute smuggling and other illegal activities in

all ports under its jurisdiction;
 (8)                 Exercise supervision and control over its constituent units;

(9)                 Perform such other functions as may be provided by law.[25]

xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which the
State exercises one of its great inherent functions taxation. Indubitably, such
substantial distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR and the BOC
under RA 9335 fully satisfy the demands of equal protection.

 
UNDUE DELEGATION

Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete when
it sets forth therein the policy to be executed, carried out or implemented by the
delegate.[26] It lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegates
authority and prevent the delegation from running riot. [27] To be sufficient, the
standard must specify the limits of the delegates authority, announce the
legislative policy and identify the conditions under which it is to be implemented.
[28]

RA 9335 adequately states the policy and standards to guide the President
in fixing revenue targets and the implementing agencies in carrying out the
provisions of the law. Section 2 spells out the policy of the law:
 

SEC. 2. Declaration of Policy. It is the policy of the State to optimize the

revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC) by providing for a
system of rewards and sanctions through the creation of a Rewards and
Incentives Fund and a Revenue Performance Evaluation Board in the
above agencies for the purpose of encouraging their officials and
employees to exceed their revenue targets.

Section 4 canalized within banks that keep it from overflowing [29] the

delegated power to the President to fix revenue targets:

SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund,

hereinafter referred to as the Fund, is hereby created, to be sourced from
the collection of the BIR and the BOC in excess of their respective
revenue targets of the year, as determined by the Development
Budget and Coordinating Committee (DBCC), in the following
percentages:

Excess of Collection of the Percent (%) of the Excess

Excess the Revenue Collection to Accrue to the
Targets Fund
    

30% or below 15%

   

More than 30% 15% of the first 30%

  plus 20% of the

remaining excess

The Fund shall be deemed automatically appropriated the year

immediately following the year when the revenue collection target was
exceeded and shall be released on the same fiscal year.

Revenue targets shall refer to the original estimated revenue

collection expected of the BIR and the BOC for a given fiscal year as
stated in the Budget of Expenditures and Sources of Financing
(BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies revenue
targets as allocated among its revenue districts in the case of the BIR,
and the collection districts in the case of the BOC.

xxx xxx xxx (emphasis supplied)

 

Revenue targets are based on the original estimated revenue collection

expected respectively of the BIR and the BOC for a given fiscal year as approved
by the DBCC and stated in the BESF submitted by the President to Congress.
[30]
 Thus, the determination of revenue targets does not rest solely on the
President as it also undergoes the scrutiny of the DBCC.

On the other hand, Section 7 specifies the limits of the Boards authority
and identifies the conditions under which officials and employees whose revenue
collection falls short of the target by at least 7.5% may be removed from the
service:
 

SEC. 7. Powers and Functions of the Board. The Board in the agency

shall have the following powers and functions:
 
xxx xxx xxx

(b) To set the criteria and procedures for removing from service

officials and employees whose revenue collection falls short of the
target by at least seven and a half percent (7.5%), with due
consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this
Act, subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process: Provided,
That the following exemptions shall apply:

1. Where the district or area of responsibility is newly-created, not

exceeding two years in operation, as has no historical record of
collection performance that can be used as basis for evaluation;
and

2. Where the revenue or customs official or employee is a recent

transferee in the middle of the period under consideration unless
the transfer was due to nonperformance of revenue targets or
potential nonperformance of revenue targets: Provided, however,
That when the district or area of responsibility covered by revenue
or customs officials or employees has suffered from economic
difficulties brought about by natural calamities or force
majeure or economic causes as may be determined by the Board,
termination shall be considered only after careful and proper
review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the

preceding paragraph: Provided, That such decision shall be immediately
executory: Provided, further, Thatthe application of the criteria for the
separation of an official or employee from service under this Act
shall be without prejudice to the application of other relevant laws
 on accountability of public officers and employees, such as the Code
of Conduct and Ethical Standards of Public Officers and Employees
and the Anti-Graft and Corrupt Practices Act;

xxx xxx xxx (emphasis supplied)

 

Clearly, RA 9335 in no way violates the security of tenure of officials and

employees of the BIR and the BOC. The guarantee of security of tenure only
means that an employee cannot be dismissed from the service for causes other
than those provided by law and only after due process is accorded the employee.
[31]
 In the case of RA 9335, it lays down a reasonable yardstick for removal (when
the revenue collection falls short of the target by at least 7.5%) with due
consideration of all relevant factors affecting the level of collection. This standard
is analogous to inefficiency and incompetence in the performance of official
duties, a ground for disciplinary action under civil service laws. [32] The action for
removal is also subject to civil service laws, rules and regulations and compliance
with substantive and procedural due process.
 

At any rate, this Court has recognized the following as sufficient standards:
public interest, justice and equity, public convenience and welfare and simplicity,
economy and welfare.[33] In this case, the declared policy of optimization of the
revenue-generation capability and collection of the BIR and the BOC is infused
with public interest.

 
SEPARATION OF POWERS
 

Section 12 of RA 9335 provides:

 

SEC. 12. Joint Congressional Oversight Committee. There is hereby

created a Joint Congressional Oversight Committee composed of seven
Members from the Senate and seven Members from the House of
Representatives. The Members from the Senate shall be appointed by
the Senate President, with at least two senators representing the
minority. The Members from the House of Representatives shall be
appointed by the Speaker with at least two members representing the
minority. After the Oversight Committee will have approved the
implementing rules and regulations (IRR) it shall thereafter
become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for

the purpose of approving the implementing rules and regulations (IRR)
formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it
approved the said IRR. From then on, it became functus officio and ceased to
exist. Hence, the issue of its alleged encroachment on the executive function of
implementing and enforcing the law may be considered moot and academic.
 
 This notwithstanding, this might be as good a time as any for the Court to
confront the issue of the constitutionality of the Joint Congressional Oversight
Committee created under RA 9335 (or other similar laws for that matter).
 

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the
concept of congressional oversight  in Macalintal v. Commission on Elections[34] is
illuminating:
 

Concept and bases of congressional oversight

 
Broadly defined, the power of oversight embraces all activities
undertaken by Congress to enhance its understanding of and
influence over the implementation of legislation it has enacted.
Clearly, oversight concerns post-enactment measures undertaken by
Congress: (a) to monitor bureaucratic compliance with program
objectives, (b) to determine whether agencies are properly
administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (d) to
assess executive conformity with the congressional perception of
public interest.
 
 
The power of oversight has been held to be intrinsic in the grant
of legislative power itself and integral to the checks and balances
inherent in a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with
increased frequency to check the perceived exponential accumulation of
power by the executive branch. By the beginning of the 20 th century,
Congress has delegated an enormous amount of legislative authority to
the executive branch and the administrative agencies. Congress, thus,
uses its oversight power to make sure that the administrative agencies
perform their functions within the authority delegated to them. x x x x x
x x x x
 
Categories of congressional oversight functions
 
The acts done by Congress purportedly in the exercise of its
oversight powers may be divided into three categories,
namely: scrutiny, investigation and supervision.
 
a. Scrutiny
 
Congressional scrutiny implies a lesser intensity and continuity of
attention to administrative operations. Its primary purpose is to
determine economy and efficiency of the operation of government
activities. In the exercise of legislative scrutiny, Congress may request
information and report from the other branches of government. It can
give recommendations or pass resolutions for consideration of the
agency involved.
 
xxx xxx xxx
 
b. Congressional investigation
 
While congressional scrutiny is regarded as a passive process of
looking at the facts that are readily available, congressional
investigation involves a more intense digging of facts. The power of
Congress to conduct investigation is recognized by the 1987 Constitution
under section 21, Article VI, xxx xxx xxx
 
c. Legislative supervision
 
The third and most encompassing form by which Congress
exercises its oversight power is thru legislative supervision. Supervision
connotes a continuing and informed awareness on the part of a
congressional committee regarding executive operations in a given
administrative area. While both congressional scrutiny and investigation
involve inquiry into past executive branch actions in order to influence
future executive branch performance, congressional supervision allows
Congress to scrutinize the exercise of delegated law-making authority,
and permits Congress to retain part of that delegated authority.
 
Congress exercises supervision over the executive agencies
through its veto power. It typically utilizes veto provisions when
granting the President or an executive agency the power to promulgate
regulations with the force of law. These provisions require the President
or an agency to present the proposed regulations to Congress, which
retains a right to approve or disapprove any regulation before it takes
effect. Such legislative veto provisions usually provide that a proposed
regulation will become a law after the expiration of a certain period of
time, only if Congress does not affirmatively disapprove of the
regulation in the meantime. Less frequently, the statute provides that a
proposed regulation will become law if Congress affirmatively approves
it.
 
Supporters of legislative veto stress that it is necessary to maintain
the balance of power between the legislative and the executive branches
of government as it offers lawmakers a way to delegate vast power to the
executive branch or to independent agencies while retaining the option to
cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement
promotes democratic accountability as it provides legislative check on
the activities of unelected administrative agencies. One proponent thus
explains:
 
It is too late to debate the merits of this delegation policy: the policy
is too deeply embedded in our law and practice. It suffices to say that the
complexities of modern government have often led Congress-whether by
actual or perceived necessity- to legislate by declaring broad policy goals and
general statutory standards, leaving the choice of policy options to the
discretion of an executive officer. Congress articulates legislative aims, but
leaves their implementation to the judgment of parties who may or may not
have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our
constitutional scheme could be effected: Congress proposes, the Executive
disposes. One safeguard, of course, is the legislative power to enact new
legislation or to change existing law. But without some means of overseeing
post enactment activities of the executive branch, Congress would be unable to
determine whether its policies have been implemented in accordance with
legislative intent and thus whether legislative intervention is appropriate.
 
Its opponents, however, criticize the legislative veto as undue
encroachment upon the executive prerogatives. They urge that any
post-enactment measures undertaken by the legislative branch
should be limited to scrutiny and investigation; any measure beyond
that would undermine the separation of powers guaranteed by the
Constitution. They contend that legislative veto constitutes an
impermissible evasion of the Presidents veto authority and intrusion into
the powers vested in the executive or judicial branches of government.
Proponents counter that legislative veto enhances separation of powers
as it prevents the executive branch and independent agencies from
accumulating too much power. They submit that reporting requirements
and congressional committee investigations allow Congress to scrutinize
only the exercise of delegated law-making authority. They do not allow
Congress to review executive proposals before they take effect and they
do not afford the opportunity for ongoing and binding expressions of
congressional intent. In contrast, legislative veto permits Congress to
participate prospectively in the approval or disapproval of subordinate
law or those enacted by the executive branch pursuant to a delegation of
authority by Congress. They further argue that legislative veto is a
necessary response by Congress to the accretion of policy control by
forces outside its chambers. In an era of delegated authority, they point
out that legislative veto is the most efficient means Congress has yet
devised to retain control over the evolution and implementation of its
policy as declared by statute.
 
In Immigration and Naturalization Service v. Chadha, the U.S.
Supreme Court resolved the validity of legislative veto provisions.
The case arose from the order of the immigration judge suspending the
deportation of Chadha pursuant to 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a
resolution vetoing the suspension pursuant to 244(c)(2) authorizing
either House of Congress, by resolution, to invalidate the decision of the
executive branch to allow a particular deportable alien to remain in the
United States. The immigration judge reopened the deportation
proceedings to implement the House order and the alien was ordered
deported. The Board of Immigration Appeals dismissed the aliens
appeal, holding that it had no power to declare unconstitutional an act of
Congress. The United States Court of Appeals for Ninth Circuit held that
the House was without constitutional authority to order the aliens
deportation and that 244(c)(2) violated the constitutional doctrine on
separation of powers.
 
On appeal, the U.S. Supreme Court declared 244(c)(2)
unconstitutional. But the Court shied away from the issue of
separation of powers and instead held that the provision violates the
presentment clause and bicameralism. It held that the one-house veto
was essentially legislative in purpose and effect. As such, it is subject to
the procedures set out in Article I of the Constitution requiring the
passage by a majority of both Houses and presentment to the President. x
x x x x x x x x
  
Two weeks after the Chadha decision, the Court upheld, in
memorandum decision, two lower court decisions invalidating the
legislative veto provisions in the Natural Gas Policy Act of 1978 and the
Federal Trade Commission Improvement Act of 1980. Following this
precedence, lower courts invalidated statutes containing legislative veto
provisions although some of these provisions required the approval of
both Houses of Congress and thus met the bicameralism requirement of
Article I. Indeed, some of these veto provisions were not even exercised.
[35]
 (emphasis supplied)
 
 
In Macalintal, given the concept and configuration of the power of
congressional oversight and considering the nature and powers of a constitutional
body like the Commission on Elections, the Court struck down the provision in RA
9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional
Committee. The committee was tasked not only to monitor and evaluate the
implementation of the said law but also to review, revise, amend and approve the
IRR promulgated by the Commission on Elections. The Court held that these
functions infringed on the constitutional independence of the Commission on
Elections.[36]
 

With this backdrop, it is clear that congressional oversight is not

unconstitutional per se, meaning, it neither necessarily constitutes an
encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and
balances inherent in a democratic system of government. It may in fact even
enhance the separation of powers as it prevents the over-accumulation of power
in the executive branch.
 

However, to forestall the danger of congressional encroachment beyond

the legislative sphere, the Constitution imposes two basic and related constraints
on Congress.[37] It may not vest itself, any of its committees or its members with
either executive or judicial power.[38] And, when it exercises its legislative power,
it must follow the single, finely wrought and exhaustively considered, procedures
specified under the Constitution,[39] including the procedure for enactment of laws
and presentment.
 

Thus, any post-enactment congressional measure such as this should be

limited to scrutiny and investigation. In particular, congressional oversight must
be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and the

budget hearings conducted in connection with it, its power to ask
heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power
of confirmation[40] and

(2) investigation and monitoring[41] of the implementation of laws pursuant

to the power of Congress to conduct inquiries in aid of legislation. [42]
 
Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. Legislative vetoes fall in this class.
 

Legislative veto is a statutory provision requiring the President or an

administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee formed
by it, retains a right or power to approve or disapprove such regulations before
they take effect. As such, a legislative veto in the form of a congressional
oversight committee is in the form of an inward-turning delegation designed to
attach a congressional leash (other than through scrutiny and investigation) to an
agency to which Congress has by law initially delegated broad powers. [43] It
radically changes the design or structure of the Constitutions diagram of power as
it entrusts to Congress a direct role in enforcing, applying or implementing its own
laws.[44]
 

Congress has two options when enacting legislation to define national

policy within the broad horizons of its legislative competence. [45] It can itself
formulate the details or it can assign to the executive branch the responsibility for
making necessary managerial decisions in conformity with those standards. [46] In
the latter case, the law must be complete in all its essential terms and conditions
when it leaves the hands of the legislature.[47] Thus, what is left for the executive
branch or the concerned administrative agency when it formulates rules and
regulations implementing the law is to fill up details (supplementary rule-making)
or ascertain facts necessary to bring the law into actual operation (contingent
rule-making).[48]
 

Administrative regulations enacted by administrative agencies to

implement and interpret the law which they are entrusted to enforce have the
force of law and are entitled to respect. [49] Such rules and regulations partake of
the nature of a statute[50] and are just as binding as if they have been written in
the statute itself. As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set aside with finality
in an appropriate case by a competent court. [51] Congress, in the guise of assuming
the role of an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers
established by the Constitution. In exercising discretion to approve or disapprove
the IRR based on a determination of whether or not they conformed with the
provisions of RA 9335, Congress arrogated judicial power unto itself, a power
exclusively vested in this Court by the Constitution.
CONSIDERED OPINION OF

MR. JUSTICE DANTE O. TINGA

 
 Moreover, the requirement that the implementing rules of a law be
subjected to approval by Congress as a condition for their effectivity violates the
cardinal constitutional principles of bicameralism and the rule on presentment.[52]
 

Section 1, Article VI of the Constitution states:

 
Section 1. The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and
referendum. (emphasis supplied)
 
 

Legislative power (or the power to propose, enact, amend and repeal laws)
[53]
 is vested in Congress which consists of two chambers, the Senate and the House

of Representatives. A valid exercise of legislative power requires the act of both

chambers. Corrollarily, it can be exercised neither solely by one of the two

chambers nor by a committee of either or both chambers. Thus, assuming the

validity of a legislative veto, both a single-chamber legislative veto and a

congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:
 
Section 27. (1) Every bill passed by the Congress shall, before it
becomes a law, be presented to the President. If he approves the same, he shall
sign it, otherwise, he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at large in its Journal
and proceed to reconsider it. If, after such reconsideration, two-thirds of all the
 Members of such House shall agree to pass the bill, it shall be sent, together with
the objections, to the other House by which it shall likewise be reconsidered, and
if approved by two-thirds of all the Members of that House, it shall become a law.
In all such cases, the votes of each House shall be determined byyeas or nays, and
the names of the members voting for or against shall be entered in its Journal. The
President shall communicate his veto of any bill to the House where it originated
within thirty days after the date of receipt thereof; otherwise, it shall become a
law as if he had signed it. (emphasis supplied)
 
 

Every bill passed by Congress must be presented to the President for

approval or veto. In the absence of presentment to the President, no bill passed by

Congress can become a law. In this sense, law-making under the Constitution is a

joint act of the Legislature and of the Executive. Assuming that legislative veto is a

valid legislative act with the force of law, it cannot take effect without such

presentment even if approved by both chambers of Congress.

In sum, two steps are required before a bill becomes a law. First, it must be

approved by both Houses of Congress.[54] Second, it must be presented to and

approved by the President.[55] As summarized by Justice Isagani Cruz[56] and Fr.

Joaquin G. Bernas, S.J.[57], the following is the procedure for the approval of bills:
 

A bill is introduced by any member of the House of

Representatives or the Senate except for some measures that must
originate only in the former chamber.

The first reading involves only a reading of the number and title
of the measure and its referral by the Senate President or the Speaker
to the proper committee for study.
  

The bill may be killed in the committee or it may be

recommended for approval, with or without amendments, sometimes
after public hearings are first held thereon. If there are other bills of the
same nature or purpose, they may all be consolidated into one bill
under common authorship or as a committee bill.

Once reported out, the bill shall be calendared for second

reading. It is at this stage that the bill is read in its entirety, scrutinized,
debated upon and amended when desired. The second reading is the
most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form

and copies thereof are distributed at least three days before the third
reading. On the third reading, the members merely register their votes
and explain them if they are allowed by the rules. No further debate is
allowed.

Once the bill passes third reading, it is sent to the other chamber,
where it will also undergo the three readings. If there are differences
between the versions approved by the two chambers, a conference
committee[58] representing both Houses will draft a compromise
measure that if ratified by the Senate and the House of Representatives
will then be submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the

Congress, thereafter authenticated with the signatures of the Senate
President, the Speaker, and the Secretaries of their respective
chambers[59]
 The Presidents role in law-making.

The final step is submission to the President for approval. Once

approved, it takes effect as law after the required publication. [60]

Where Congress delegates the formulation of rules to implement the law it

has enacted pursuant to sufficient standards established in the said law, the law

must be complete in all its essential terms and conditions when it leaves the hands

of the legislature. And it may be deemed to have left the hands of the legislature

when it becomes effective because it is only upon effectivity of the statute that

legal rights and obligations become available to those entitled by the language of

the statute. Subject to the indispensable requisite of publication under the due

process clause,[61] the determination as to when a law takes effect is wholly the

prerogative of Congress.[62] As such, it is only upon its effectivity that a law may be

executed and the executive branch acquires the duties and powers to execute the

said law. Before that point, the role of the executive branch, particularly of the

President, is limited to approving or vetoing the law.[63]

From the moment the law becomes effective, any provision of law that

empowers Congress or any of its members to play any role in the implementation

or enforcement of the law violates the principle of separation of powers and is thus

unconstitutional. Under this principle, a provision that requires Congress or its

members to approve the implementing rules of a law after it has already taken

effect shall be unconstitutional, as is a provision that allows Congress or its

members to overturn any directive or ruling made by the members of the executive

branch charged with the implementation of the law.

 

Following this rationale, Section 12 of RA 9335 should be struck down as

unconstitutional. While there may be similar provisions of other laws that may be

invalidated for failure to pass this standard, the Court refrains from invalidating

them wholesale but will do so at the proper time when an appropriate case

assailing those provisions is brought before us.[64]

 

The next question to be resolved is: what is the effect of the

unconstitutionality of Section 12 of RA 9335 on the other provisions of the law?
Will it render the entire law unconstitutional? No.
 

Section 13 of RA 9335 provides:

 

SEC. 13. Separability Clause. If any provision of this Act is declared

invalid by a competent court, the remainder of this Act or any provision
not affected by such declaration of invalidity shall remain in force and
effect.

 
 In Tatad v. Secretary of the Department of Energy,[65] the Court laid down
the following rules:
 

The general rule is that where part of a statute is void as

repugnant to the Constitution, while another part is valid, the valid
portion, if separable from the invalid, may stand and be enforced. The
presence of a separability clause in a statute creates the presumption
that the legislature intended separability, rather than complete nullity
of the statute. To justify this result, the valid portion must be so far
independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it
could not constitutionally enact the other. Enough must remain to
make a complete, intelligible and valid statute, which carries out the
legislative intent. x x x

The exception to the general rule is that when the parts of a

statute are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as to
warrant a belief that the legislature intended them as a whole, the
nullity of one part will vitiate the rest. In making the parts of the statute
dependent, conditional, or connected with one another, the legislature
intended the statute to be carried out as a whole and would not have
enacted it if one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent, conditional,
or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to

isolate and detach any invalid provision from the other provisions so that the
latter may continue in force and effect. The valid portions can stand
independently of the invalid section. Without Section 12, the remaining provisions
still constitute a complete, intelligible and valid law which carries out the
legislative intent to optimize the revenue-generation capability and collection of
the BIR and the BOC by providing for a system of rewards and sanctions through
the Rewards and Incentives Fund and a Revenue Performance Evaluation Board.
 

To be effective, administrative rules and regulations must be published in

full if their purpose is to enforce or implement existing law pursuant to a valid
delegation. The IRR of RA 9335 were published on May 30, 2006 in two
newspapers of general circulation[66] and became effective 15 days thereafter.
[67]
 Until and unless the contrary is shown, the IRR are presumed valid and
effective even without the approval of the Joint Congressional Oversight
Committee.
 

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section

12 of RA 9335 creating a Joint Congressional Oversight Committee to approve the
implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to
Section 13 of RA 9335, the rest of the provisions remain in force and effect.
SO ORDERED.
ISMAEL G. KHAN, JR. and G.R. No. 125296
WENCESLAO L. MALABANAN,

Petitioners, Present:

PUNO, J., Chairperson,  SANDOVAL-GUTIERREZ,

- v e r s u s - CORONA,

AZCUNA and

GARCIA, JJ.

OFFICE OF THE OMBUDSMAN,

DEPUTY OMBUDSMAN

(VISAYAS), ROSAURO F.

TORRALBA* and CELESTINO

BANDALA,**

Respondents. Promulgated:

July 20, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

 
DECISION

CORONA, J.:
 

This petition for certiorari under Rule 65 of the Rules of

Court addresses the issue of whether public respondents Deputy

Ombudsman (Visayas) and the Ombudsman have jurisdiction

over petitioners Ismael G. Khan, Jr.

and Wenceslao L. Malabanan, former officers of Philippine

Airlines (PAL), for violation of Republic Act No. (RA) 3019 [1] (the

Anti-Graft and Corrupt Practices Act).

 

In February 1989, private

respondents Rosauro Torralba and Celestino Bandala charged
petitioners before the Deputy Ombudsman (Visayas) for violation of
RA 3019. In their complaint, private respondents accused
petitioners of using their positions in PAL to secure a contract for
Synergy Services Corporation, a corporation engaged in hauling and
janitorial services in which they were shareholders.
 

Petitioners filed an omnibus motion to dismiss the complaint

on the following grounds: (1) the Ombudsman had no jurisdiction
over them since PAL was a private entity and (2) they were not
public officers, hence, outside the application of RA 3019.
 In a resolution dated July 13, 1989, [2] the Deputy
Ombudsman[3] denied petitioners omnibus motion to dismiss.

On petitioners first argument, he ruled that, although PAL was

originally organized as a private corporation, its controlling stock
was later acquired by the government through the Government
Service Insurance System (GSIS). [4] Therefore, it became a
government-owned or controlled corporation (GOCC) as enunciated
in Quimpo  v.  Tanodbayan.[5]
 

On the second argument, the Deputy Ombudsman held that

petitioners were public officers within the definition of RA 3019,
Section 2 (b). Under that provision, public officers included elective,
appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt service receiving
compensation, even nominal, from the Government.
The dispositive portion of the Deputy Ombudsmans order
read:

WHEREFORE, finding no merit to [petitioners] OMNIBUS

MOTION TO DISMISS, the same is hereby DENIED and
petitioners are hereby ordered to submit their answer within ten
(10) days from receipt hereof.[6]
  

xxx xxx xxx

Petitioners appealed the order to the Ombudsman. There, they

raised the same issues. Treating the appeal as a motion for
reconsideration, the Ombudsman dismissed it on February 22,
1996. He held that petitioners were officers of a GOCC, hence, he
had jurisdiction over them.[7] He also affirmed the Deputy
Ombudsmans ruling that Quimpo was applicable to petitioners
case.
 

In this petition for certiorari, with prayer for issuance of a

temporary restraining order, petitioners assail the orders dated July
13, 1989 and February 22, 1996 of the Deputy Ombudsman
(Visayas) and the Ombudsman, respectively. They claim that public
respondents acted without jurisdiction and/or grave abuse of
discretion in proceeding with the investigation of the case against
them although they were officers of a private corporation and not
public officers."[8]
 

In support of their petition, petitioners argue that: (1) the

Ombudsmans jurisdiction only covers GOCCs with original
charters and these do not include PAL, a private entity created
under the general corporation law; (2) Quimpo does not apply to the
case at bar and (3) RA 3019 only concerns public officers, thus,
they cannot be investigated or prosecuted under that law.
 

We find merit in petitioners arguments and hold that public

respondents do not have the authority to prosecute them for
violation of RA 3019.
 

JURISDICTION OF THE
OMBUDSMAN OVER GOCCS IS
CONFINED ONLY
TO THOSE WITH ORIGINAL CHART
ERS

The 1987 Constitution states the powers and functions of the Office
of the Ombudsman. Specifically, Article XI, Section 13(2) provides:
 

Sec. 13. The Office of the Ombudsman shall have the

following powers, functions, and duties:

xxx xxx xxx

 
 (2)   Direct, upon complaint or at its own instance, any public
official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as
any government-owned or controlled corporation with
original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any
abuse or impropriety in the performance of duties. (italics
supplied)

xxx xxx xxx

Based on the foregoing provision, the Office of the

Ombudsman exercises jurisdiction over public officials/ employees
of GOCCswith original charters. This being so, it can only
investigate and prosecute acts or omissions of the
officials/employees of government corporations. Therefore, although
the government later on acquired the controlling interest in PAL, the
fact remains that the latter did not have an original charter and its
officers/employees could not be investigated and/or prosecuted by
the Ombudsman.
 

In Juco v. National Labor Relations Commission,[9] we ruled

that the phrase with original charter means chartered by special
law as distinguished from corporations organized under the
Corporation Code. PAL, being originally a private corporation seeded
by private capital and created under the general corporation law,
does not fall within the jurisdictional powers of the Ombudsman
under Article XI, Section 13(2) of the Constitution. Consequently,
the latter is devoid of authority to investigate or prosecute
petitioners.
 

QUIMPO NOT APPLICABLE

TO THE CASE AT BAR

Quimpo[10] is not applicable to the case at bar. In that

case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in
theTanodbayan (now Ombudsman) for violation of RA 3019. These
officers sought the dismissal of the case on the ground that
theTanodbayan had no jurisdiction over them as officers/employees
of a private company. The Court declared that the Tanodbayan had
jurisdiction over them because PETROPHIL ceased to be a private
entity when Philippine National Oil Corporation (PNOC) acquired its
shares.
 

In hindsight, although Quimpo appears, on first impression,

relevant to this case (like PETROPHIL, PALs shares were also
acquired by the government), closer scrutiny reveals that it is not
actually on all fours with the facts here.
 

In Quimpo, the government acquired PETROPHIL to perform

functions related to government programs and policies on oil. [11] The
fact that the purpose in acquiring PETROPHIL was for it to
undertake governmental functions related to oil was decisive in
sustaining the Tanodbayans jurisdiction over it. This was certainly
not the case with PAL. The records indicate that the government
acquired the controlling interest in the airline as a result of the
conversion into equity of its unpaid loans in GSIS. No governmental
functions at all were involved.
 

Furthermore, Quimpo was decided prior to the 1987

Constitution. In fact, it was the 1973 Constitution which the Court
relied on in concluding that the Tanodbayan had jurisdiction
over PETROPHILs accused officers. Particularly, the Court cited
Article XIII, Section 6:
 

SEC. 6. The Batasang Pambansa shall create an office of

the Ombudsman, to be known as the Tanodbayan, which shall
receive and investigate complaints relative to public
office, including those in government-owned or controlled
corporations, make appropriate recommendations, and in case of
failure of justice as defined by law, file and prosecute the
corresponding criminal, civil, or administrative case before the
proper court or body. (italics supplied)

The term government-owned or controlled corporations in the

1973 Constitution was qualified by the 1987 Constitution to refer
only to those with original charters.[12]

 
PETITIONERS, AS THEN OFFICERS OF
PAL, WERE NOT PUBLIC OFFICERS
 

Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of

1989) defines who public officers are. Instead, its varied definitions
and concepts are found in different statutes [13] and jurisprudence.
[14]
 Usually quoted in our decisions is Mechem, a recognized
authority on the subject. In the 2002 case of Laurel v.  Desierto,
[15]
 the Court extensively quoted his exposition on the term public
officers:
A public office is the right, authority and duty, created and
conferred by law, by which, for a given period, either fixed by law
or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public.
The individual so invested is a public officer.

The characteristics of a public office, according to Mechem,

include the delegation of sovereign functions, its creation by law
and not by contract, an oath, salary, continuance of the position,
scope of duties, and the designation of the position as an office.

xxx xxx xxx

Mechem describes the delegation to the individual of the

sovereign functions of government as [t]he most important
characteristic in determining whether a position is a public office
or not.

The most important characteristic which distinguishes an

office from an employment or contract is that the creation and
conferring of an office involves a delegation to the individual of
some of the sovereign functions of government to be exercised by
him for the benefit of the public; − that some portion of the
sovereignty of the country, either legislative, executive, or judicial,
 attaches, for the time being, to be exercised for the public benefit.
Unless the powers conferred are of this nature, the individual is
not a public officer.[16] (italics supplied)

From the foregoing, it can be reasonably inferred that public

officers are those endowed with the exercise of sovereign executive,
legislative or judicial functions. [17] The explication of the term is also
consistent with the Courts pronouncement in Quimpo  that, in the
case of officers/employees in GOCCs, they are deemed public
officers if their corporations are tasked to carry out governmental
functions.
 

In any event, PAL has since reverted to private ownership and

we find it pointless to scrutinize the implications of a legal issue
that technically no longer exists.

WHEREFORE, the petition is hereby GRANTED. Public

respondents Deputy Ombudsman (Visayas) and Office of the
Ombudsman are restrained from proceeding with the investigation
or prosecution of the complaint against petitioners for violation of
RA 3019. Accordingly, their assailed orders of July 13, 1989 and
February 22, 1996, respectively, are SET ASIDE and ANNULLED.
 
 A.M. No. P-05-2015. June 28, 2005]

ANONYMOUS COMPLAINT AGAINST PERSHING T. YARED, Sheriff III,

Municipal Trial Court in Cities, Canlaon City.

DECISION
CALLEJO, SR., J.:

The instant administrative case arose when an anonymous complainant

filed a Letter-Complaint[1] dated April 10, 2001 before the Office of the
Ombudsman, Visayas, charging Perishing T. Yared, Sheriff III, presently
detailed at the Municipal Trial Court in Cities (MTCC), Guihulngan, Negros
Oriental, with grave misconduct for collecting excessive service fees.
In support of the charge, the unknown complainant submitted two receipts
issued by the respondent Sheriff: (1) an undated receipt [2] where the amount
of P1,350.00 was reflected as service fees for summons in three civil cases;
and (2) a receipt[3] dated February 7, 2000 reflecting the amount of P1,650.00
for four civil cases. Citing Section 9(a) of Resolution No. 00-2-01-SC,
amending Rule 141 of the Rules of Court, the complainant pointed out that
multiplying the number of defendants by P60.00 per service fee, the
respondent was only entitled to P660.00 for the service of summons in the
civil cases; following the same computation, the fee for the rest of the cases
should have been onlyP720.00.[4]
In a Letter[5] dated April 30, 2001, the Office of the Ombudsman forwarded
the anonymous complaint to the Office of the Court Administrator. Thereafter,
then Deputy Court Administrator Bernardo T. Ponferrada referred the matter
to Executive Judge Hector B. Barillo of the MTCC, Canlaon City, for discreet
investigation and report.[6]
In his Report[7] dated July 27, 2001, Judge Barillo enumerated the cases
subject matter of Annexes A and B, and averred that there were 24
defendants who were to be served with summons. The Executive Judge
opined that Section 9 of Rule 141 does not fix the amount for sheriffs
expenses in serving or executing processes. He further reported that Sheriff
Yared only asked P150.00 for each defendant whose residence was outside
the poblacion even if he (the respondent Sheriff) was uncertain that the
defendants could be contacted immediately in his first attempt to serve the
summons. According to the Investigating Judge, it was from the amount
collected that respondent Sheriff took P300.00 for the rental of a motorcycle.
Judge Barillo added that he was well aware of the sheriffs procedure in
collecting fees, and understood that the same was based on the doctrine of
equity.
In a 1st Indorsement[8] dated January 14, 2002, the matter was referred to
the respondent Sheriff for comment. The respondent denied the allegations
against him in his Comment[9] dated February 11, 2002, alleging that the
amount of P60.00 provided for under Rule 141 of the Rules of Court is
inadequate to cover and defray all the necessary and incidental expenses for
the service of summons outside of his station. He further contended that the
said rule applies only to service of summons within the poblacion where the
sheriff is stationed, and does not apply to the barangays outside
the poblacion.
Although the respondent admitted having received the amount
of P3,000.00 from the Rural Bank of Guihulngan, he argued that the same
was for the necessary and incidental expenses which he incurred in serving
summons at Vallehermoso, Negros Oriental. He elaborated that he hired a
motorcycle at P200.00 a day, and engaged the services of a guide at the cost
of P100.00 just to locate the residence of the 24 defendants. The respondent,
likewise, averred that since some of the defendants were nowhere to be
found, he still had to go back in order to serve the summons, thus, incurring
more expenses.[10]
In justifying the amount of P3,000.00, the respondent invoked Executive
Order No. 248, which he averred entitles all government officials or
employees who go out of their station on official business to traveling
expenses. He also claimed that a public officer is entitled to P300.00 a day
excluding transportation fares, board and lodging, and other incidental
expenses. The amount of P3,000.00 was not even enough to defray his
expenses, and as such, he had to spend his own money for the service of
summons.[11]
Thereafter, Deputy Court Administrator Zenaida N. Elepao filed her Report
dated April 22, 2002, with the following recommendation:
1. The instant administrative complaint be DOCKETED as a regular administrative
matter;
2. Respondent Sheriff Pershing T. Yared, of [the] MTCC, Canlaon City, Negros
Oriental, be FINED the amount of Two Thousand Pesos (P2,000.00) with
a WARNING that a repetition of the same or similar offense shall be dealt with more
severely.[12]

The respondent, thereafter, filed a Motion to Dismiss [13] the complaint on

February 13, 2003. He alleged that the anonymous complainant was not the
proper party to file the complaint, as he could not convincingly claim to be
injured as a result of the act or omission complained of. The respondent
further alleged that the pertinent administrative regulation, Administrative
Circular No. 3-2000 dated June 15, 2000, explicitly provides in no uncertain
terms that the party should shoulder the necessary and incidental expenses
and other similar charges for the service of summons. He added that in this
case, the expenses included the hiring of the motorcycle and a guide to
expedite the service of summonses with least possible delay. [14] In support of
his motion, the respondent attached a certification/acknowledgment receipt
marked as Annex A, executed by Atty. Jonathan L. Eleco, former Clerk of
Court, MTCC, Canlaon City, and now a practicing lawyer. The receipt
reflected that in eight other cases where he was required to serve summons
within the vicinity of Canlaon City, the respondent received the total amount
of P2,000.00, to wit:
1. CC# 965-Dominga Calderon P200.00
2. CC# 966-Lacria Trasmonte P200.00
3. CC# 967-Mirasol Vailoces P200.00
4. CC# 968-Jesus Rudavites P400.00
5. CC# 969-Maria Duro P200.00
6. CC# 970-Roselo Velara P400.00
7. CC# 971-Jose Espaa P200.00
8. CC# 972-Urcesia Banacia P200.00

The respondent further elaborated as follows:

A reasonable and prudent mind could easily perceive and reach a conclusion the
extreme impossibility for a person not so familiar on the terrain of the place and the
persons to be served to dispatch the summonses to the 23 defendants in one setting
alone or for only one day. This is the reason why I have to go back and forth to said
town for a number of days. As a matter of fact, I have to spend my own personal
money to defray the necessary and incidental expenses in serving the summonses for
fear that I would be scolded by the Judge considering that the plaintiff in these cases is
the formers nephew. One can imagine that the amount said to be exorbitant and
excessive is very such (sic) insufficient and inadequate to defray the expenses. How
could I charge more than what is allowable as what is being claimed by the
complainant when the latter knows the intimate relationship by affinity between the
Judge and the plaintiff? There were even several instances that I served summonses
and writs of said plaintiff bank without asking even a single centavo because of this
relationship.

WHEREFORE, it is most respectfully prayed to summarily dismiss the above-entitled

case for it is a principle in law that no person should be brought within the terms of
penal statutes who is not clearly within them, nor should any act be pronounced
violative to a certain administrative regulation which is not clearly made so by statute.
[15]

In a Resolution[16] dated July 7, 2003, the Court resolved to deny the

respondents motion and refer the matter back to Executive Judge Barillo for
investigation, report and recommendation.
In a 2nd Indorsement dated March 18, 2005, the Executive Judge
manifested that he concurs with the recommendation of Deputy Court
Administrator Elepao that the respondent be fined the amount of P2,000.00.
At the outset, the Court stresses that an anonymous complaint is always
received with great caution, originating as it does from an unknown author.
However, a complaint of such sort does not always justify its outright dismissal
for being baseless or unfounded for such complaint may be easily verified and
may, without much difficulty, be substantiated and established by other
competent evidence.[17] As this Court ruled in Anonymous Complaint Against
Gibson A. Araula:[18]

Although the Court does not as a rule act on anonymous complaints, cases are
accepted in which the charge could be fully borne by public records of indubitable
integrity, thus, needing no corroboration by evidence to be offered by the
complainant, whose identity and integrity could hardly be material where the matter
involved is of public interest.

Indeed, any conduct, act or omission on the part of all those involved in
the administration of justice which would violate the norm of public
accountability and would diminish or even just tend to diminish the faith of the
people in the Judiciary cannot be countenanced;[19] as such, anonymous
complaints of this nature should be accordingly acted upon by this Court.
Section 9(a), Rule 141, of the Rules of Court authorizes the sheriff and
other persons serving summons and copy of complaint to collect the amount
of P60.00 for each defendant. According to the same rule:

In addition to the fees hereinabove fixed, the party requesting the process of any court,
preliminary, incidental or final, shall pay the sheriffs expenses in serving or executing
the process, or safeguarding the property levied upon, attached or seized, including
kilometrage for each kilometer travel, guards fees, warehousing and similar charges,
in an amount estimated by the sheriff, subject to the approval of the court. Upon
approval of said estimated expenses, the interested party shall deposit such amount
with the clerk of court and ex officio sheriff, who shall disburse the same to the deputy
sheriff assigned to effect the process, subject to liquidation within the same period for
rendering a return on the process. Any unspent amount shall be refunded to the party
making the deposit. A full report shall be submitted by the deputy sheriff assigned
with his return, and the sheriffs expenses shall be taxed as costs against the judgment
debtor.

It is clear then that a sheriff, in the performance of his duties, is not

precluded from collecting additional sums from a requesting party. He is,
however, mandated by the Rules to follow certain steps: First, the sheriff must
make an estimate of the expenses to be incurred by him; Second, he must
obtain court approval for such estimated expenses; Third, the approved
amount shall be deposited by the interested party with the Clerk of Court
and Ex Officio Sheriff; Fourth, the Clerk of Court shall disburse the amount to
the executing sheriff; and Fifth, the executing sheriff shall liquidate his
expenses within the same period for rendering a return on the writ.
There is no evidence on record that the respondent followed this
procedure. As aptly stated by Deputy Court Administrator Elepao in her
evaluation dated April 22, 2002:

In the instant case, respondent sheriff collected the amounts of P1,350.00

and P1,650.00 from the plaintiff Rural Bank of Guihulngan, Negros Oriental, as
service fees for the summons. The records are bereft of any indication that he obtained
court approval for the estimated expenses nor does it show that the amounts involved
were deposited with the Clerk of Court. In fact, the evidence (Annexes A and B)
furnished by complainant and which were admitted by respondent in his comment,
point out that the total amount of P3,000.00 was personally asked by respondent and
was directly received by him.

The respondent Sheriff was authorized to collect the amount of P1,380.00

for serving summonses to a total of 23 defendants. There was a difference
of P1,620.00, the amount in excess of the former. The glaring fact then is that
the respondent asked for the amount of P3,000.00 not as lawful fees alone,
but as a consideration for the performance of his duty. Any portion of the
amount in excess of the lawful fees allowed by the Rules of Court is an
unlawful exaction, which makes the respondent liable for grave misconduct
and gross dishonesty.[20]
Contrary to respondents contention, his acts and omissions are in patent
violation of law. They disturb the ethics of public life and vitiate the integrity of
the court personnel as well as the court itself. Public service requires utmost
integrity and strictest discipline. A public servant must exhibit at all times the
highest sense of honesty and integrity.[21]This yardstick has been imprinted in
no less than the Constitution itself, under Section 1 of Article XI:
Public office is a public trust. Public officers and employees must at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency, act with patriotism and justice, and lead modest lives.

The nature and responsibilities of public officers enshrined in the

Constitution and oft-repeated in case law are not mere rhetorical words, not to
be taken as idealistic sentiments but as working standards and attainable
goals that should be matched with actual deeds.[22] Time and again, this Court
has stressed that the conduct and behavior of everyone connected with an
office charged with the dispensation of justice, from the presiding judge to the
lowliest clerk, should be circumscribed with the heavy burden of responsibility.
They must, at all times, not only observe propriety and decorum; they must
also be above suspicion.[23] Every official and employee of the Judiciary should
be an example of integrity, uprightness and honesty.[24]
While the Investigating Judge opined that the amounts asked by
respondent may be considered reasonable under the circumstances, the fact
that the required procedure was not followed cannot be ignored. This Court
has also ruled that a sheriffs repeated demands for sums of money to defray
expenses without court approval constitutes grave misconduct. [25] Sheriffs
cannot receive gratuities and voluntary payments from parties in the course of
the performance of their duties. The respondents failure to faithfully comply
with the provisions of Rule 141 of the Rules of Court constitutes dereliction of
duty and negligence, which warrants the imposition of disciplinary measures.
[26]

It must be stressed that sheriffs play an important role in the administration

of justice, and as agents of the law, high standards are expected of them.
[27]
 Being ranking officers of the court and agents of the law, they must
discharge their duties with great care and diligence. [28] It is well to remind all
persons serving the Government through its Judicial Arm that the conduct and
behavior of every person connected with an office charged with the
dispensation of justice, from the presiding judge to the lowest clerk, is tasked
with a heavy burden of responsibility. Their conduct, at all times, must not only
be characterized by propriety and decorum but also above suspicion.[29] Good
faith on the part of the respondent Sheriff, or lack of it, in proceeding to
properly execute his mandate would be of no moment, for he is chargeable
with the knowledge that being an officer of the court tasked therefor, it
behooves him to make due compliances.[30]
What is very disconcerting in this case is the fact that the respondent
sheriff seems to have made a habit of ignoring the aforementioned rules. By
his own admission, he was given more than the amount complained of by the
anonymous complainant in other cases, as evidenced by the
certification/acknowledgment receipt[31] duly attached to his motion to dismiss.
The respondent Sheriff even alleged that Atty. Jonathan L. Eleco, the lawyer
who executed the said document, is conversant as to the reasonable amount
a Sheriff [receives] to defray all his expenses, [32] being a former Clerk of Court
himself.
The respondents actuations constitute an erroneous practice that should
be eradicated. The tenacity with which the respondent insists on the
correctness of his conduct should be checked. Every officer or employee in
the Judiciary is duty-bound to obey the orders and processes of the Court
without the least delay, and to exercise, at all times, a high degree of
professionalism in the performance of his duties.[33] The respondent Sheriff
failed miserably in this wise.
WHEREFORE, respondent Pershing T. Yared is found GUILTY of gross
dereliction of duty and is hereby FINED Five Thousand Pesos (P5,000.00).
He is, likewise, STERNLY WARNED that a repetition of the same or similar
act shall be dealt with more severely.

[G.R. No. 152295. July 9, 2002]

ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO,

JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA
DECENA, and OTHER YOUTH OF THE LAND SIMILARLY
SITUATED, petitioners, vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
DEPARTMENT OF BUDGET AND MANAGEMENT, EXECUTIVE
SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR
FRANKLIN DRILON in his capacity as Senate President and
SENATOR AQUILINO PIMENTEL in his capacity as Minority
Leader of the Senate of the Philippines, CONGRESSMAN JOSE
DE VENECIA in his capacity as Speaker, CONGRESSMAN
AGUSTO L. SYJOCO in his capacity as Chairman of the
Committee on Suffrage and Electoral Reforms, and
 CONGRESSMAN EMILIO C. MACIAS II in his capacity as
Chairman of the Committee on Local Government of the House
of Representatives, THE PRESIDENT OF THE PAMBANSANG
KATIPUNAN NG MGA SANGGUNIANG KABATAAN, AND ALL
THEIR AGENTS AND REPRESENTATIVES, respondents.

DECISION
CARPIO, J.:

The Case

Before us is a petition for certiorari, prohibition and mandamus with prayer for a
temporary restraining order or preliminary injunction. The petition seeks to prevent the
postponement of the Sangguniang Kabataan (SK for brevity) elections originally
scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the age
requirement for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayers and class suit,
on their own behalf and on behalf of other youths similarly situated. Petitioners claim
that they are in danger of being disqualified to vote and be voted for in the SK elections
should the SK elections on May 6, 2002 be postponed to a later date. Under the Local
Government Code of 1991 (R.A. No. 7160), membership in the SK is limited to youths
at least 15 but not more than 21 years old.
Petitioners allege that public respondents connived, confederated and conspired to
postpone the May 6, 2002 SK elections and to lower the membership age in the SK to
at least 15 but less than 18 years of age. Petitioners assail the alleged conspiracy
because youths at least 18 but not more than 21 years old will be summarily and unduly
dismembered, unfairly discriminated, unnecessarily disenfranchised, unjustly
disassociated and obnoxiously disqualified from the SK organization. [1]

Thus, petitioners pray for the issuance of a temporary restraining order or

preliminary injunction -

a) To prevent, annul or declare unconstitutional any law, decree, Comelec

resolution/directive and other respondents issuances, orders and actions and
the like in postponing the May 6, 2002 SK elections.

b) To command the respondents to continue the May 6, 2002 SK elections set

by the present law and in accordance with Comelec Resolutions No. 4713 and
4714 and to expedite the funding of the SK elections.

c) In the alternative, if the SK elections will be postponed for whatever reason,

there must be a definite date for said elections, for example, July 15, 2002,
and the present SK membership, except those incumbent SK officers who
were elected on May 6, 1996, shall be allowed to run for any SK elective
position even if they are more than 21 years old.

d) To direct the incumbent SK officers who are presently representing the SK

in every sanggunian and the NYC to vacate their post after the barangay
elections. [2]

The Facts

The SK is a youth organization originally established by Presidential Decree No.

684 as the Kabataang Barangay (KB for brevity). The KB was composed of all barangay
residents who were less than 18 years old, without specifying the minimum age. The KB
was organized to provide its members with the opportunity to express their views and
opinions on issues of transcendental importance. [3]

The Local Government Code of 1991 renamed the KB to SK and limited SK

membership to those youths at least 15 but not more than 21 years of age.  The SK[4]

remains as a youth organization in every barangay tasked to initiate programs  to

enhance the social, political, economic, cultural, intellectual, moral, spiritual, and
physical development of the youth.  The SK in every barangay is composed of a
[5]

chairperson and seven members, all elected by the Katipunan ng

Kabataan. The Katipunan ng Kabataan in every barangay is composed of all citizens
actually residing in the barangay for at least six months and who meet the membership
age requirement.
The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK
elections to the first Monday of May of 1996 and every three years thereafter. RA No.
7808 mandated the Comelec to supervise the conduct of the SK elections under rules
the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued
Resolution Nos. 4713  and 4714  to govern the SK elections on May 6, 2002.
[6] [7]

On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros for

brevity) sent a letter  to the Comelec, demanding that the SK elections be held as
[8]

scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to her

letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity), then
Comelec Chairman, wrote identical letters to the Speaker of the House  and the Senate
[9]

President  about the status of pending bills on the SK and Barangay elections. In his
[10]

letters, the Comelec Chairman intimated that it was operationally very difficult to hold
both elections simultaneously in May 2002. Instead, the Comelec Chairman expressed
support for the bill of Senator Franklin Drilon that proposed to hold the Barangay
elections in May 2002 and postpone the SK elections to November 2002.
 Ten days lapsed without the Comelec responding to the letter of
Montesclaros. Subsequently, petitioners received a copy of Comelec En
Banc Resolution No. 4763  dated February 5, 2002 recommending to Congress the
[11]

postponement of the SK elections to November 2002 but holding the Barangay

elections in May 2002 as scheduled. [12]

On March 6, 2002, the Senate and the House of Representatives passed their
respective bills postponing the SK elections. On March 11, 2002, the Bicameral
Conference Committee (Bicameral Committee for brevity) of the Senate and the House
came out with a Report  recommending approval of the reconciled bill consolidating
[13]

Senate Bill No. 2050  and House Bill No. 4456.  The Bicameral Committees
[14] [15]

consolidated bill reset the SK and Barangay elections to July 15, 2002 and lowered the
membership age in the SK to at least 15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committees consolidated
bill and on March 13, 2002, the House of Representatives approved the same. The
President signed the approved bill into law on March 19, 2002.

The Issues

Petitioners  raise the following grounds in support of their petition:

[16]

I.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND

UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK
ELECTIONS.
II.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND

UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE,
DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK MEMBERS
WHO ARE 18 BUT NOT LESS  (SIC) THAN 21 YEARS OLD COMPOSED
[17]

OF ABOUT 7 MILLION YOUTH.

III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE SK
ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO
IMPLEMENT THEIR ILLEGAL SCHEME AND MACHINATION IN SPITE OF
THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.

THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON

THEIR RESPECTIVE OFFICES CONTRARY TO THE ENVISION (SIC) OF
THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF
LAW AND CONSTITUTION. [18]

The Courts Ruling

The petition is bereft of merit.

At the outset, the Court takes judicial notice of the following events that have
transpired since petitioners filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not held
as scheduled.
2. Congress enacted RA No. 9164[19] which provides that voters and candidates for the
SK elections must be at least 15 but less than 18 years of age on the day of the
election.[20] RA No. 9164 also provides that there shall be a synchronized SK and
Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the
conduct of the July 15, 2002 synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the
May 6, 2002 SK elections disenfranchises them, preventing them from voting and being
voted for in the SK elections. Petitioners theory is that if the SK elections were
postponed to a date later than May 6, 2002, the postponement would disqualify from SK
membership youths who will turn 21 years old between May 6, 2002 and the date of the
new SK elections. Petitioners claim that a reduction in the SK membership age to 15 but
less than 18 years of age from the then membership age of 15 but not more than 21
years of age would disqualify about seven million youths. The public respondents failure
to hold the elections on May 6, 2002 would prejudice petitioners and other youths
similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to hold the
SK elections on May 6, 2002 and should it be postponed, the SK elections should be
held not later than July 15, 2002; (2) prevent public respondents from passing laws and
issuing resolutions and orders that would lower the membership age in the SK; and (3)
compel public respondents to allow petitioners and those who have turned more than 21
years old on May 6, 2002 to participate in any re-scheduled SK elections.
The Courts power of judicial review may be exercised in constitutional cases only if
all the following requisites are complied with, namely: (1) the existence of an actual and
appropriate case or controversy; (2) a personal and substantial interest of the party
raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the case.
[21]

In the instant case, there is no actual controversy requiring the exercise of the
power of judicial review. While seeking to prevent a postponement of the May 6, 2002
SK elections, petitioners are nevertheless amenable to a resetting of the SK elections to
any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July
15, 2002, a date acceptable to petitioners. With respect to the date of the SK elections,
there is therefore no actual controversy requiring judicial intervention.
Petitioners prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a law. A
proposed bill creates no right and imposes no duty legally enforceable by the Court. A
proposed bill, having no legal effect, violates no constitutional right or duty. The Court
has no power to declare a proposed bill constitutional or unconstitutional because that
would be in the nature of rendering an advisory opinion on a proposed act of
Congress. The power of judicial review cannot be exercised in vacuo.  The second
[22]

paragraph of Section 1, Article VIII of the Constitution states

Judicial power includes the duty of the courts of justice to settle actual

controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. (Emphasis supplied)

Thus, there can be no justiciable controversy involving the constitutionality of a

proposed bill. The Court can exercise its power of judicial review only after a law is
enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing
any law, or from setting into motion the legislative mill according to its internal
rules. Thus, the following acts of Congress in the exercise of its legislative powers are
not subject to judicial restraint: the filing of bills by members of Congress, the approval
of bills by each chamber of Congress, the reconciliation by the Bicameral Committee of
approved bills, and the eventual approval into law of the reconciled bills by each
chamber of Congress.Absent a clear violation of specific constitutional limitations or of
constitutional rights of private parties, the Court cannot exercise its power of judicial
review over the internal processes or procedures of Congress. [23]
 The Court has also no power to dictate to Congress the object or subject of bills that
Congress should enact into law. The judicial power to review the constitutionality of laws
does not include the power to prescribe to Congress what laws to enact. The Court has
no power to compel Congress by mandamus to enact a law allowing petitioners,
regardless of their age, to vote and be voted for in the July 15, 2002 SK elections. To do
so would destroy the delicate system of checks and balances finely crafted by the
Constitution for the three co-equal, coordinate and independent branches of
government.
Under RA No. 9164, Congress merely restored the age requirement in PD No. 684,
the original charter of the SK, which fixed the maximum age for membership in the SK
to youths less than 18 years old. Petitioners do not have a vested right to the
permanence of the age requirement under Section 424 of the Local Government Code
of 1991.Every law passed by Congress is always subject to amendment or repeal by
Congress. The Court cannot restrain Congress from amending or repealing laws, for the
power to make laws includes the power to change the laws. [24]

The Court cannot also direct the Comelec to allow over-aged voters to vote or be
voted for in an election that is limited under RA No. 9164 to youths at least 15 but less
than 18 years old. A law is needed to allow all those who have turned more than 21
years old on or after May 6, 2002 to participate in the July 15, 2002 SK
elections. Youths from 18 to 21 years old as of May 6, 2002 are also no longer SK
members, and cannot participate in the July 15, 2002 SK elections. Congress will have
to decide whether to enact an amendatory law. Petitioners remedy is legislation, not
judicial intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A party
must show that he has been, or is about to be denied some personal right or privilege to
which he is lawfully entitled.  A party must also show that he has a real interest in the
[25]

suit. By real interest is meant a present substantial interest, as distinguished from a

mere expectancy or future, contingent, subordinate, or inconsequential interest. [26]

In the instant case, petitioners seek to enforce a right originally conferred by law on
those who were at least 15 but not more than 21 years old. Now, with the passage of
RA No. 9164, this right is limited to those who on the date of the SK elections are at
least 15 but less than 18 years old. The new law restricts membership in the SK to this
specific age group. Not falling within this classification, petitioners have ceased to be
members of the SK and are no longer qualified to participate in the July 15, 2002 SK
elections.Plainly, petitioners no longer have a personal and substantial interest in the
SK elections.
This petition does not raise any constitutional issue. At the time petitioners filed this
petition, RA No. 9164, which reset the SK elections and reduced the age requirement
for SK membership, was not yet enacted into law. After the passage of RA No. 9164,
petitioners failed to assail any provision in RA No. 9164 that could be
unconstitutional. To grant petitioners prayer to be allowed to vote and be voted for in the
July 15, 2002 SK elections necessitates assailing the constitutionality of RA No.
9164. This, petitioners have not done. The Court will not strike down a law unless its
constitutionality is properly raised in an appropriate action and adequately argued. [27]
 The only semblance of a constitutional issue, albeit erroneous, that petitioners raise
is their claim that SK membership is a property right within the meaning of the
Constitution.  Since certain public offices are reserved for SK officers, petitioners also
[28]

claim a constitutionally protected opportunity to occupy these public offices. In

petitioners own words, they and others similarly situated stand to lose their opportunity
to work in the government positions reserved for SK members or officers.  Under the
[29]

Local Government Code of 1991, the president of the federation of SK organizations in

a municipality, city or province is an ex-officio member of the municipal council, city
council or provincial board, respectively.  The chairperson of the SK in the barangay is
[30]

an ex-officio member of the Sangguniang Barangay.  The president of the national

[31]

federation of SK organizations is an ex-officio member of the National Youth

Commission, with rank of a Department Assistant Secretary. [32]

Congress exercises the power to prescribe the qualifications for SK

membership. One who is no longer qualified because of an amendment in the law
cannot complain of being deprived of a proprietary right to SK membership. Only those
who qualify as SK members can contest, based on a statutory right, any act
disqualifying them from SK membership or from voting in the SK elections. SK
membership is not a property right protected by the Constitution because it is a mere
statutory right conferred by law.Congress may amend at any time the law to change or
even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a [P]ublic
office is a public trust.  No one has a vested right to any public office, much less a
[33]

vested right to an expectancy of holding a public office. In Cornejo v. Gabriel,  decided

[34]

in 1920, the Court already ruled:

Again, for this petition to come under the due process of law prohibition, it
would be necessary to consider an office a property. It is, however, well
settled x x x that a public office is not property within the sense of the
constitutional guaranties of due process of law, but is a public trust or
agency. x x x The basic idea of the government x x x is that of a popular
representative government, the officers being mere agents and not rulers of
the people, one where no one man or set of men has a proprietary or
contractual right to an office, but where every officer accepts office pursuant to
the provisions of the law and holds the office as a trust for the people he
represents. (Emphasis supplied)

Petitioners, who apparently desire to hold public office, should realize from the very
start that no one has a proprietary right to public office. While the law makes an SK
officer an ex-officio member of a local government legislative council, the law does not
confer on petitioners a proprietary right or even a proprietary expectancy to sit in local
legislative councils. The constitutional principle of a public office as a public trust
precludes any proprietary claim to public office. Even the State policy directing equal
access to opportunities for public service  cannot bestow on petitioners a proprietary
[35]

right to SK membership or a proprietary expectancy to ex-officio public offices.

 Moreover, while the State policy is to encourage the youths involvement in public
affairs,  this policy refers to those who belong to the class of people defined as the
[36]

youth.Congress has the power to define who are the youth qualified to join the SK,
which itself is a creation of Congress. Those who do not qualify because they are past
the age group defined as the youth cannot insist on being part of the youth. In
government service, once an employee reaches mandatory retirement age, he cannot
invoke any property right to cling to his office. In the same manner, since petitioners are
now past the maximum age for membership in the SK, they cannot invoke any property
right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. RA No. 9164 is now the law that prescribes the
qualifications of candidates and voters for the SK elections. This law also fixes the date
of the SK elections. Petitioners are not even assailing the constitutionality of RA No.
9164. RA No. 9164 enjoys the presumption of constitutionality and will apply to the July
15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse of
discretion in recommending to Congress the postponement of the SK elections. The
very evidence relied upon by petitioners contradict their allegation of illegality. The
evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated
February 5, 2002 that recommended the postponement of the SK elections to 2003; (2)
the letter of then Comelec Chairman Benipayo addressed to the Speaker of the House
of Representatives and the President of the Senate; and (3) the Conference Committee
Report consolidating Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall  and to recommend to Congress effective measures to minimize election
[37]

spending.  The Comelecs acts enjoy the presumption of regularity in the performance
[38]

of official duties.  These acts cannot constitute proof, as claimed by petitioners, that
[39]

there exists a connivance and conspiracy (among) respondents in contravention of the

present law. As the Court held in Pangkat Laguna v. Comelec,  the Comelec, as the
[40]

government agency tasked with the enforcement and administration of elections laws, is
entitled to the presumption of regularity of official acts with respect to the elections.
The 1987 Constitution imposes upon the Comelec the duty of enforcing and
administering all laws and regulations relative to the conduct of elections. Petitioners
failed to prove that the Comelec committed grave abuse of discretion in recommending
to Congress the postponement of the May 6, 2002 SK elections. The evidence cited by
petitioners even establish that the Comelec has demonstrated an earnest effort to
address the practical problems in holding the SK elections on May 6, 2002. The
presumption remains that the decision of the Comelec to recommend to Congress the
postponement of the elections was made in good faith in the regular course of its official
duties.
Grave abuse of discretion is such capricious and whimsical exercise of judgment
that is patent and gross as to amount to an evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law.  Public respondents having acted strictly pursuant to
[41]
their constitutional powers and duties, we find no grave abuse of discretion in their
assailed acts.
Petitioners contend that the postponement of the SK elections would allow the
incumbent SK officers to perpetuate themselves in power, depriving other youths of the
opportunity to serve in elective SK positions. This argument deserves scant
consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials
can remain in office only until their successors have been elected or qualified. On July
15, 2002, when the SK elections are held, the hold-over period expires and all
incumbent SK officials automatically cease to hold their SK offices and their ex-officio
public offices.
In sum, petitioners have no personal and substantial interest in maintaining this
suit. This petition presents no actual justiciable controversy. Petitioners do not cite any
provision of law that is alleged to be unconstitutional. Lastly, we find no grave abuse of
discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.

G.R. No. 125249. February 7, 1997]

JIMMY S. DE CASTRO, petitioner, vs. THE COMMISSION ON

ELECTIONS and AMANDO A. MEDRANO, respondents.

DECISION
HERMOSISIMA, JR., J.:

Before us is a petition for certiorari raising twin issues as regards the effect

of the contestants death in an election protest: Is said contest a personal
action extinguished upon the death of the real party in interest? If not, what is
the mandatory period within which to effectuate the substitution of parties?
The following antecedent facts have been culled from the pleadings and
are not in dispute:
Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the
May 8, 1995 elections.
 In the same elections, private respondent was proclaimed Vice-Mayor of
the same municipality.
On May 19, 1995, petitioners rival candidate, the late Nicolas M. Jamilla,
filed an election protest  before the Regional Trial Court of Pinamalayan,
[1]

Oriental Mindoro. [2]

During the pendency of said contest, Jamilla died.  Four days after such
[3]

death or on December 19, 1995, the trial court dismissed the election protest
ruling as it did that [a]s this case is personal, the death of the protestant
extinguishes the case itself. The issue or issues brought out in this protest
have become moot and academic. [4]

On January 9, 1995, private respondent learned about the dismissal of the

protest from one Atty. Gaudencio S. Sadicon, who, as the late Jamillas
counsel, was the one who informed the trial court of his clients demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion
(For Intervention and/or Substitution with Motion for Reconsideration).
 Opposition thereto was filed by petitioner on January 30, 1996.
[5] [6]

In an Order dated February 14, 1996,  the trial court denied private
[7]

respondents Omnibus Petition/Motion and stubbornly held that an election

protest being personal to the protestant, is ipso facto terminated by the latters
death.
Unable to agree with the trial courts dismissal of the election protest,
private respondent filed a petition for certiorari and mandamus before the
Commission on Elections (COMELEC); private respondent mainly assailed
the trial court orders as having been issued with grave abuse of discretion.
COMELEC granted the petition for certiorari and mandamus.  It ruled that
[8]

an election contest involves both the private interests of the rival candidates
and the public interest in the final determination of the real choice of the
electorate, and for this reason, an election contest necessarily survives the
death of the protestant or the protestee.
We agree.
It is true that a public office is personal to the public officer and is not a
property transmissible to his heirs upon death.  Thus, applying the doctrine
[9]

of actio personalis moritur cum persona, upon the death of the incumbent, no
heir of his may be allowed to continue holding his office in his place.
But while the right to a public office is personal and exclusive to the public
officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that the death of either would oust the
court of all authority to continue the protest proceedings.
An election contest, after all, involves not merely conflicting private
aspirations but is imbued with paramount public interests. As we have held in
the case of Vda. de De Mesa v. Mencias: [10]

x x x. It is axiomatic that an election contest, involving as it does not only the
adjudication and settlement of the private interests of the rival candidates but
also the paramount need of dispelling once and for all the uncertainty that
beclouds the real choice of the electorate with respect to who shall discharge
the prerogatives of the offices within their gift, is a proceeding imbued with
public interest which raises it onto a plane over and above ordinary civil
actions. For this reason, broad perspectives of public policy impose upon
courts the imperative duty to ascertain by all means within their command who
is the real candidate elected in as expeditious a manner as possible, without
being fettered by technicalities and procedural barriers to the end that the will
of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512,
December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So
inextricably intertwined are the interests of the contestants and those of the
public that there can be no gainsaying the logic of the proposition that even the
voluntary cessation in office of the protestee not only does not ipso
facto divest him of the character of an adversary in the contest inasmuch as he
retains a party interest to keep his political opponent out of the office and
maintain therein his successor, but also does not in any manner impair or
detract from the jurisdiction of the court to pursue the proceeding to its final
conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs.
Hernandez, 62 Phil. 584, 587; Galves vs. Maramba, G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate the
proceedings in the election protest filed against him, and it may stated as a rule
that an election contest survives and must be prosecuted to final judgment
despite the death of the protestee.
[11]

The death of the protestant, as in this case, neither constitutes a ground

for the dismissal of the contest nor ousts the trial court of its jurisdiction to
decide the election contest. Apropos is the following pronouncement of this
court in the case of Lomugdang v. Javier: [12]

Determination of what candidate has been in fact elected is a matter clothed

with public interest, wherefore, public policy demands that an election contest,
duly commenced, be not abated by the death of the contestant. We have
squarely so rule in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No. L-24583,
October 29, 1966, in the same spirit that led this Court to hold that the
 ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57),
and that the protestees cessation in office is not a ground for the dismissal of
the contest nor detract the Courts jurisdiction to decide the case (Angeles vs.
Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584). [13]

The asseveration of petitioner that private respondent is not a real party in

interest entitled to be substituted in the election protest in place of the late
Jamilla, is utterly without legal basis. Categorical was our ruling in Vda. de
Mesa and Lomugdang that:
x x x the Vice Mayor elect has the status of a real party in interest in the
continuation of the proceedings and is entitled to intervene therein. For if the
protest succeeds and the protestee is unseated, the Vice-Mayor succeeds to the
office of Mayor that becomes vacant if the one duly elected can not assume the
post.[14]

To finally dispose of this case, we rule that the filing by private respondent
of his Omnibus Petition/Motion on January 15, 1996, well within a period of
thirty days from December 19, 1995 when Jamillas counsel informed the trial
court of Jamillas death, was in compliance with Section 17, Rule 3 of the
Revised Rules of Court. Since the Rules of Court, though not generally
applicable to election cases, may however be applied by analogy or in a
suppletory character,  private respondent was correct to rely thereon.
[15]

The above jurisprudence is not ancient; in fact these legal moorings have
been recently reiterated in the 1991 case of De la Victoria vs. COMELEC.  If [16]

only petitioners diligence in updating himself with case law is as spirited as his
persistence in pursuing his legal asseverations up to the highest court of the
land, no doubt further derailment of the election protest proceedings could
have been avoided.
WHEREFORE, premises considered, the instant petition for certiorari is
hereby DISMISSED.
Costs against petitioner.

MA. LOURDES T. DOMINGO, G.R. No. 155831

Petitioner,  
   
- versus -  
   
ROGELIO I. RAYALA,  
 Respondent.  
x-------------------------x  
ROGELIO I. RAYALA, G.R. No. 155840
Petitioner,  
   
- versus -  
   
OFFICE OF THE PRESIDENT; RONALDO  
V. ZAMORA, in his capacity as Executive  
Secretary; ROY V. SENERES, in his capacity  
as Chairman of the National Labor Relations  
Commission (in lieu of RAUL T. AQUINO, in  
his capacity as Acting Chairman of the  
National labor Relations Commission); and  
MA. LOURDES T. DOMINGO,  
Respondents.  
x-------------------------x  
The REPUBLIC OF THE PHILIPPINES, G.R. No. 158700
represented by the OFFICE OF THE  
PRESIDENT; and ALBERTO G. ROMULO, Present:
in his capacity as Executive Secretary,  
Petitioners, YNARES-SANTIAGO, J.,
  Chairperson,
  AUSTRIA-MARTINEZ,
- versus - CORONA,*
  NACHURA, and
  REYES, JJ.
   
  Promulgated:
ROGELIO I. RAYALA,  
Respondent. February 18, 2008
x------------------------------------------------------------------------------------x
 
 

DECISION
 
NACHURA, J.:
 

 
 Sexual harassment is an imposition of misplaced superiority which is
enough to dampen an employees spirit and her capacity for advancement. It affects
her sense of judgment; it changes her life.[1]
 
Before this Court are three Petitions for Review on Certiorari assailing the
October 18, 2002 Resolution of the CAs Former Ninth Division [2] in CA-G.R. SP
No. 61026. The Resolution modified the December 14, 2001 Decision [3] of the
Court of Appeals Eleventh Division, which had affirmed the Decision of the Office
of the President (OP) dismissing from the service then National Labor Relations
Commission (NLRC) Chairman Rogelio I. Rayala (Rayala) for disgraceful and
immoral conduct.
 
All three petitions stem from the same factual antecedents.
 
On November 16, 1998, Ma. Lourdes T. Domingo (Domingo), then
Stenographic Reporter III at the NLRC, filed a Complaint for sexual harassment
against Rayala before Secretary Bienvenido Laguesma of the Department of Labor
and Employment (DOLE).
 
To support the Complaint, Domingo executed an Affidavit narrating the
incidences of sexual harassment complained of, thus:
 
xxxx
 
4. Sa simula ay pabulong na sinasabihan lang ako ni Chairman Rayala
ng mga salitang Lot, gumaganda ka yata?
 
5. Sa ibang mga pagkakataon nilalapitan na ako ni Chairman at
hahawakan ang aking balikat sabay pisil sa mga ito habang ako ay
nagta-type at habang nagbibigay siya ng diktasyon. Sa mga
pagkakataong ito, kinakabahan ako. Natatakot na baka mangyari
sa akin ang mga napapabalitang insidente na nangyari na noon
tungkol sa mga sekretarya niyang nagbitiw gawa ng mga
mahahalay na panghihipo ni Chairman.
 
6. Noong ika-10 ng Setyembre, 1998, nang ako ay nasa 8 th Floor, may
nagsabi sa akin na kailangan akong bumaba sa 7 th Floor kung
nasaan ang aming opisina dahil sa may koreksyon daw na
gagawin sa mga papel na tinayp ko. Bumaba naman ako para
gawin ito. Habang ginagawa ko ito, lumabas si Chairman Rayala
sa silid ni Mr. Alex Lopez. Inutusan ako ni Chairman na sumunod
sa kaniyang silid. Nang nasa silid na kami, sinabi niya sa akin:
 
Chairman: Lot, I like you a lot. Naiiba ka sa lahat.
 
At pagkatapos ako ay kaniyang inusisa tungkol sa mga personal na
bagay sa aking buhay. Ang ilan dito ay tungkol sa aking mga magulang,
kapatid, pag-aaral at kung may boyfriend na raw ba ako.
 
Chairman: May boyfriend ka na ba?
Lourdes: Dati nagkaroon po.
Chairman: Nasaan na siya?
Lourdes: Nag-asawa na ho.
Chairman: Bakit hindi kayo nagkatuluyan?
Lourdes: Nainip po.
Chairman: Pagkatapos mo ng kurso mo ay kumuha ka ng
Law at ako ang bahala sa iyo, hanggang ako
pa ang Chairman dito.
 
Pagkatapos ay kumuha siya ng pera sa kaniyang amerikana at inaabot sa
akin.
 
Chairman: Kuhanin mo ito.
Lourdes: Huwag na ho hindi ko kailangan.
Chairman: Hindi sige, kuhanin mo. Ayusin mo ang dapat
ayusin.
 
Tinanggap ko po ang pera ng may pag-aalinlangan. Natatakot at
kinakabahan na kapag hindi ko tinanggap ang pera ay baka siya
magagalit kasabay na rito ang pagtapon sa akin kung saan-saan opisina o
kaya ay tanggalin ako sa posisyon.
 
Chairman: Paglabas mo itago mo ang pera. Ayaw ko ng
may makaka-alam nito. Just the two of us.
Lourdes: Bakit naman, Sir?
 Chairman: Basta. Maraming tsismosa diyan sa labas. But
I dont give them a damn. Hindi ako mamatay
sa kanila.
 
Tumayo na ako at lumabas. Pumanhik na ako ng 8th Floor at pumunta
ako sa officemate ko na si Agnes Magdaet. Ikinwento ko ang nangyari sa
akin sa opisina ni Chairman.Habang kinikwento ko ito kay Agnes ay
binilang namin ang pera na nagkakahalaga ng tatlong libong piso (PHP
3,000). Sinabi ni Agnes na isauli ko raw ang pera, pero ang sabi ko ay
natatakot ako baka magalit si Sir. Nagsabi agad kami kay EC Perlita
Velasco at sinalaysay ko ang nangyari. Sinabi niya na isauli ko ang pera
at noong araw ding iyon ay nagpasiya akong isauli na nga ito ngunit
hindi ako nagkaroon ng pagkakataon dahil marami siyang naging
bisita. Isinauli ko nga ang pera noong Lunes, Setyembre 14, 1998.
 
7. Noong huling linggo ng Setyembre, 1998, ay may tinanong din sa
akin si Chairman Rayala na hindi ko masikmura, at sa aking palagay at
tahasang pambabastos sa akin.
 
Chairman: Lot, may ka live-in ka ba?
Lourdes: Sir, wala po.
Chairman: Bakit malaki ang balakang mo?
Lourdes: Kayo, Sir ha! Masama sa amin ang may ka live-
in.
Chairman: Bakit, ano ba ang relihiyon ninyo?
Lourdes: Catholic, Sir. Kailangan ikasal muna.
Chairman: Bakit ako, hindi kasal.
Lourdes: Sir, di magpakasal kayo.
Chairman: Huh. Ibahin na nga natin ang usapan.
 
8. Noong Oktubre 29, 1998, ako ay pumasok sa kwarto ni Chairman
Rayala. Ito ay sa kadahilanang ang fax machine ay nasa loob ng
kaniyang kwarto. Ang nag-aasikaso nito, si Riza Ocampo, ay naka-leave
kaya ako ang nag-asikaso nito noong araw na iyon. Nang mabigyan ko
na ng fax tone yung kausap ko, pagharap ko sa kanan ay nakaharang sa
dadaanan ko si Chairman Rayala. Tinitingnan ako sa mata at ang titig
niya ay umuusad mula ulo hanggang dibdib tapos ay ngumiti na may
mahalay na pakahulugan.
 
9. Noong hapon naman ng pareho pa ring petsa, may nag-aapply na
sekretarya sa opisina, sinabi ko ito kay Chairman Rayala:
  
Lourdes: Sir, si Pinky po yung applicant, mag-
papainterview po yata sa inyo.
Chairman: Sabihin mo magpa-pap smear muna siya
Chairman: O sige, i-refer mo kay Alex. (Alex Lopez, Chief
of Staff).
 
10. Noong Nobyembre 9, 1998, ako ay tinawag ni Chairman Rayala sa
kaniyang opisina upang kuhanin ko ang diktasyon niya para kay ELA
Oscar Uy. Hindi pa kami nakakatapos ng unang talata, may pumasok na
bisita si Chairman, si Baby Pangilinan na sinamahan ni Riza
Ocampo. Pinalabas muna ako ni Chairman. Nang maka-alis na si Ms.
Pangilinan, pinapasok na niya ako ulit. Umupo ako. Lumapit sa likuran
ko si Chairman, hinawakan ang kaliwang balikat ko na pinipisil ng
kanang kamay niya at sinabi:
 
Chairman: Saan na ba tayo natapos?
 
Palakad-lakad siya sa aking likuran habang nag-didikta. Huminto siya
pagkatapos, at nilagay niya ang kanang kamay niya sa aking kanang
balikat at pinisil-pisil ito pagkatapos ay pinagapang niya ito sa kanang
bahagi ng aking leeg, at pinagapang hanggang kanang tenga at saka
kiniliti. Dito ko inalis ang kaniyang kamay sa pamamagitan ng aking
kaliwang kamay. At saka ko sinabi:
 
Lourdes: Sir, yung kamay ninyo alisin niyo!
 
Natapos ko rin ang liham na pinagagawa niya pero halos hindi ko na
maintindihan ang na-isulat ko dahil sa takot at inis na nararamdaman ko.
[4]

 
 
After the last incident narrated, Domingo filed for leave of absence and
asked to be immediately transferred. Thereafter, she filed the Complaint for sexual
harassment on the basis of Administrative Order No. 250, the Rules and
Regulations Implementing RA 7877 in the Department of Labor and Employment.
 
Upon receipt of the Complaint, the DOLE Secretary referred the Complaint
to the OP, Rayala being a presidential appointee. The OP, through then Executive
Secretary Ronaldo Zamora, ordered Secretary Laguesma to investigate the
allegations in the Complaint and create a committee for such purpose. On
December 4, 1998, Secretary Laguesma issued Administrative Order (AO) No.
280, Series of 1998,[5] constituting a Committee on Decorum and Investigation
(Committee) in accordance with Republic Act (RA) 7877, the Anti-Sexual
Harassment Act of 1995.[6]
 
The Committee heard the parties and received their respective evidence. On
March 2, 2000, the Committee submitted its report and recommendation to
Secretary Laguesma. It found Rayala guilty of the offense charged and
recommended the imposition of the minimum penalty provided under AO 250,
which it erroneously stated as suspension for six (6) months.
 
The following day, Secretary Laguesma submitted a copy of the Committee
Report and Recommendation to the OP, but with the recommendation that the
penalty should be suspension for six (6) months and one (1) day, in accordance
with AO 250.
 
On May 8, 2000, the OP, through Executive Secretary Zamora, issued AO
119,[7] the pertinent portions of which read:
 
Upon a careful scrutiny of the evidence on record, I concur with
the findings of the Committee as to the culpability of the respondent
[Rayala], the same having been established by clear and convincing
evidence. However, I disagree with the recommendation that respondent
be meted only the penalty of suspension for six (6) months and one (1)
day considering the circumstances of the case.
 
What aggravates respondents situation is the undeniable
circumstance that he took advantage of his position as the superior of the
complainant. Respondent occupies the highest position in the NLRC,
being its Chairman. As head of said office, it was incumbent upon
respondent to set an example to the others as to how they should conduct
themselves in public office, to see to it that his subordinates work
efficiently in accordance with Civil Service Rules and Regulations, and
 to provide them with healthy working atmosphere wherein co-workers
treat each other with respect, courtesy and cooperation, so that in the end
the public interest will be benefited (City Mayor of Zamboanga vs. Court
of Appeals, 182 SCRA 785 [1990]).
 
What is more, public service requires the utmost integrity and
strictest discipline (Gano vs. Leonen, 232 SCRA 99 [1994]). Thus, a
public servant must exhibit at all times the highest sense of honesty and
integrity, and utmost devotion and dedication to duty (Sec. 4 (g), RA
6713), respect the rights of others and shall refrain from doing acts
contrary to law, and good morals (Sec. 4(c)). No less than the
Constitution sanctifies the principle that a public office is a public trust,
and enjoins all public officers and employees to serve with the highest
degree of responsibility, integrity, loyalty and efficiency (Section 1,
Article XI, 1987 Constitution).
 
Given these established standards, I see respondents acts not just
[as] a failure to give due courtesy and respect to his co-employees
(subordinates) or to maintain good conduct and behavior but defiance of
the basic norms or virtues which a government official must at all times
uphold, one that is contrary to law and public sense of morality.
Otherwise stated, respondent to whom stricter standards must apply
being the highest official [of] the NLRC had shown an attitude, a frame
of mind, a disgraceful conduct, which renders him unfit to remain in the
service.
 
WHEREFORE, in view of the foregoing, respondent Rogelio I.
Rayala, Chairman, National Labor Relations Commission, is found
guilty of the grave offense of disgraceful and immoral conduct and is
hereby DISMISSED from the service effective upon receipt of this
Order.
 
SO ORDER[ED].
 
 
Rayala filed a Motion for Reconsideration, which the OP denied in a
Resolution[8] dated May 24, 2000. He then filed a Petition for Certiorari and
Prohibition with Prayer for Temporary Restraining Order under Rule 65 of the
Revised Rules on Civil Procedure before this Court on June 14, 2000. [9] However,
the same was dismissed in a Resolution dated June 26, 2000 for
disregarding the hierarchy of courts.[10] Rayala filed a Motion for
Reconsideration[11] on August 15, 2000. In its Resolution[12] dated September 4,
2000, the Court recalled its June 26 Resolution and referred the petition to the
Court of Appeals (CA) for appropriate action.
 
The CA rendered its Decision[13] on December 14, 2001. It held that there
was sufficient evidence on record to create moral certainty that Rayala committed
the acts he was charged with. It said:
 
The complainant narrated her story complete with details. Her
straightforward and uninhibited testimony was not emasculated by the
declarations of Commissioner Rayala or his witnesses. x x x
 
Moreover, Commissioner Rayala has not proven any vicious
motive for Domingo and her witnesses to invent their stories. It is very
unlikely that they would perjure themselves only to accommodate the
alleged conspiracy to oust petitioner from office. Save for his empty
conjectures and speculations, Rayala failed to substantiate his contrived
conspiracy. It is a hornbook doctrine that conspiracy must be proved by
positive and convincing evidence (People v. Noroa, 329 SCRA 502
[2000]). Besides, it is improbable that the complainant would concoct a
story of sexual harassment against the highest official of the NLRC and
thereby expose herself to the possibility of losing her job, or be the
subject of reprisal from her superiors and perhaps public ridicule if she
was not telling the truth.
 
 
It also held that Rayalas dismissal was proper. The CA pointed out that
Rayala was dismissed for disgraceful and immoral conduct in violation of RA
6713, theCode of Conduct and Ethical Standards for Public Officials and
Employees. It held that the OP was correct in concluding that Rayalas acts violated
RA 6713:
 
Indeed, [Rayala] was a public official, holding the Chairmanship
of the National Labor Relations Commission, entrusted with the sacred
 duty of administering justice. Occupying as he does such an exalted
position, Commissioner Rayala must pay a high price for the honor
bestowed upon him. He must comport himself at all times in such a
manner that the conduct of his everyday life should be beyond reproach
and free from any impropriety. That the acts complained of were
committed within the sanctuary of [his] office compounded the
objectionable nature of his wrongdoing. By daring to violate the
complainant within the solitude of his chambers, Commissioner Rayala
placed the integrity of his office in disrepute. His disgraceful and
immoral conduct warrants his removal from office. [14]
 
 
Thus, it dismissed the petition, to wit:
 
IN VIEW OF ALL THE FOREGOING, the instant petition is
hereby DISMISSED and Administrative Order No. 119 as well [as] the
Resolution of the Office of the President in O.P. Case No. 00-E-9118
dated May 24, 2000 are AFFIRMED IN TOTO. No cost.
 
SO ORDERED.[15]
 
 
Rayala timely filed a Motion for Reconsideration. Justices Vasquez and
Tolentino voted to affirm the December 14 Decision. However, Justice Reyes
dissented mainly because AO 250 states that the penalty imposable is suspension
for six (6) months and one (1) day.[16] Pursuant to the internal rules of the CA, a
Special Division of Five was constituted.[17] In its October 18, 2002 Resolution, the
CA modified its earlier Decision:
 
ACCORDINGLY, the Decision dated December [14], 2001 is
MODIFIED to the effect that the penalty of dismissal is DELETED and
instead the penalty of suspension from service for the maximum period
of one (1) year is HEREBY IMPOSED upon the petitioner. The rest of
the challenged decision stands.
 
SO ORDERED.
 
 
 Domingo filed a Petition for Review[18] before this Court, which we denied
in our February 19, 2003 Resolution for having a defective verification. She filed a
Motion for Reconsideration, which the Court granted; hence, the petition was
reinstated.
 
Rayala likewise filed a Petition for Review [19] with this Court essentially
arguing that he is not guilty of any act of sexual harassment.
 
Meanwhile, the Republic filed a Motion for Reconsideration of the CAs
October 18, 2002 Resolution. The CA denied the same in its June 3, 2003
Resolution, the dispositive portion of which reads:
 
ACCORDINGLY, by a majority vote, public respondents
Motion for Reconsideration, (sic) is DENIED.
 
SO ORDERED.
 
 
The Republic then filed its own Petition for Review.[20]
 
On June 28, 2004, the Court directed the consolidation of the three (3)
petitions.
 
G.R. No. 155831
 
Domingo assails the CAs resolution modifying the penalty imposed by the
Office of the President. She raises this issue:
 
The Court of Appeals erred in modifying the penalty for the respondent
from dismissal to suspension from service for the maximum period of
one year. The President has the prerogative to determine the proper
penalty to be imposed on an erring Presidential appointee. The President
was well within his power when he fittingly used that prerogative in
deciding to dismiss the respondent from the service. [21]
 
  
She argues that the power to remove Rayala, a presidential appointee, is
lodged with the President who has control of the entire Executive Department, its
bureaus and offices. The OPs decision was arrived at after affording Rayala due
process. Hence, his dismissal from the service is a prerogative that is entirely with
the President.[22]
 
As to the applicability of AO No. 250, she argues that the same was not
intended to cover cases against presidential appointees. AO No. 250 refers only to
the instances wherein the DOLE Secretary is the disciplining authority, and thus,
the AO does not circumscribe the power of the President to dismiss an erring
presidential appointee.
 
G.R. No. 155840
 
In his petition, Rayala raises the following issues:
 
I.                    CONTRARY TO THE FINDINGS OF THE COURT OF
APPEALS, THE ACTS OF HEREIN PETITIONER DO NOT
CONSTITUTE SEXUAL HARASSMENT AS LAID DOWN
BY THE En Banc RULING IN THE CASE OF AQUINO vs.
ACOSTA, ibid., AS WELL AS IN THE APPLICATION OF
EXISTING LAWS.
 
II.                 CONTRARY TO THE FINDINGS OF THE HONORABLE
COURT OF APPEALS, INTENT IS AN INDISPENSABLE
ELEMENT IN A CASE FOR SEXUAL HARASSMENT.
THE HONORABLE COURT ERRED IN ITS FINDING
THAT IT IS AN OFFENSE THAT IS MALUM
PROHIBITUM.
 
III.               THE INVESTIGATION COMMITTEE, THE OFFICE OF
THE PRESIDENT, AND NOW, THE HONORABLE
COURT OF APPEALS, HAS MISAPPLIED AND
EXPANDED THE DEFINITION OF SEXUAL
HARASSMENT IN THE WORKPLACE UNDER R.A. No.
 7877, BY APPLYING DOLE A.O. 250, WHICH RUNS
COUNTER TO THE RECENT PRONOUNCEMENTS OF
THIS HONORABLE SUPREME COURT.[23]
 
 
Invoking Aquino v. Acosta,[24] Rayala argues that the case is the definitive
ruling on what constitutes sexual harassment. Thus, he posits that for sexual
harassment to exist under RA 7877, there must be: (a) demand, request, or
requirement of a sexual favor; (b) the same is made a pre-condition to hiring, re-
employment, or continued employment; or (c) the denial thereof results in
discrimination against the employee.
 
Rayala asserts that Domingo has failed to allege and establish any sexual
favor, demand, or request from petitioner in exchange for her continued
employment or for her promotion. According to Rayala, the acts imputed to him
are without malice or ulterior motive. It was merely Domingos perception of
malice in his alleged acts a product of her own imagination [25] that led her to file
the sexual harassment complaint.
 
Likewise, Rayala assails the OPs interpretation, as upheld by the CA, that
RA 7877 is malum prohibitum such that the defense of absence of malice is
unavailing. He argues that sexual harassment is considered an offense against a
particular person, not against society as a whole. Thus, he claims that intent is an
essential element of the offense because the law requires as a conditio sine qua
non that a sexual favor be first sought by the offender in order to achieve certain
specific results. Sexual harassment is committed with the perpetrators deliberate
intent to commit the offense.[26]
 
Rayala next argues that AO 250 expands the acts proscribed in RA 7877. In
particular, he assails the definition of the forms of sexual harassment:
 
Rule IV
 
FORMS OF SEXUAL HARASSMENT
  
Section 1. Forms of Sexual Harassment. Sexual harassment may
be committed in any of the following forms:
 
a) Overt sexual advances;
 
b) Unwelcome or improper gestures of affection;
 
c) Request or demand for sexual favors including but not limited
to going out on dates, outings or the like for the same purpose;
 
d) Any other act or conduct of a sexual nature or for purposes of
sexual gratification which is generally annoying, disgusting or offensive
to the victim.[27]
 
 
He posits that these acts alone without corresponding demand, request, or
requirement do not constitute sexual harassment as contemplated by the law. [28] He
alleges that the rule-making power granted to the employer in Section 4(a) of RA
7877 is limited only to procedural matters. The law did not delegate to the
employer the power to promulgate rules which would provide other or additional
forms of sexual harassment, or to come up with its own definition of sexual
harassment.[29]
 
G.R. No. 158700
 
The Republic raises this issue:
 
Whether or not the President of the Philippines may validly dismiss
respondent Rayala as Chairman of the NLRC for committing acts of
sexual harassment.[30]
 
 
The Republic argues that Rayalas acts constitute sexual harassment under
AO 250. His acts constitute unwelcome or improper gestures of affection and are
acts or conduct of a sexual nature, which are generally annoying or offensive to the
victim.[31]
 
It also contends that there is no legal basis for the CAs reduction of the
penalty imposed by the OP. Rayalas dismissal is valid and warranted under the
circumstances. The power to remove the NLRC Chairman solely rests upon the
President, limited only by the requirements under the law and the due process
clause.
 
The Republic further claims that, although AO 250 provides only a one (1)
year suspension, it will not prevent the OP from validly imposing the penalty of
dismissal on Rayala. It argues that even though Rayala is a presidential appointee,
he is still subject to the Civil Service Law. Under the Civil Service Law,
disgraceful and immoral conduct, the acts imputed to Rayala, constitute grave
misconduct punishable by dismissal from the service.[32] The Republic adds that
Rayalas position is invested with public trust and his acts violated that trust; thus,
he should be dismissed from the service.
 
This argument, according to the Republic, is also supported by Article 215
of the Labor Code, which states that the Chairman of the NLRC holds office until
he reaches the age of 65 only during good behavior. [33] Since Rayalas security of
tenure is conditioned upon his good behavior, he may be removed from office if it
is proven that he has failed to live up to this standard.
 
All the issues raised in these three cases can be summed up in two ultimate
questions, namely:
 
(1)   Did Rayala commit sexual harassment?
(2)   If he did, what is the applicable penalty?
 
 
Initially, however, we must resolve a procedural issue raised by Rayala. He
accuses the Office of the Solicitor General (OSG), as counsel for the Republic, of
forum shopping because it filed a motion for reconsideration of the decision in CA-
G.R. SP No. 61026 and then filed a comment in G.R. No. 155840 before this
Court.
 
We do not agree.
 
Forum shopping is an act of a party, against whom an adverse judgment or
order has been rendered in one forum, of seeking and possibly securing a favorable
opinion in another forum, other than by appeal or special civil action for certiorari.
[34]
 It consists of filing multiple suits involving the same parties for the same cause
of action, either simultaneously or successively, for the purpose of obtaining a
favorable judgment.[35]
 
There is forum shopping when the following elements concur: (1) identity of
the parties or, at least, of the parties who represent the same interest in both
actions; (2) identity of the rights asserted and relief prayed for, as the latter is
founded on the same set of facts; and (3) identity of the two preceding particulars
such that any judgment rendered in the other action will amount to res judicata in
the action under consideration or will constitute litis pendentia.[36]
 
Reviewing the antecedents of these consolidated cases, we note that the CA
rendered the assailed Resolution on October 18, 2002. The Republic filed its
Motion for Reconsideration on November 22, 2002. On the other hand, Rayala
filed his petition before this Court on November 21, 2002. While the Republics
Motion for Reconsideration was pending resolution before the CA, on December 2,
2002, it was directed by this Court to file its Comment on Rayalas petition, which
it submitted on June 16, 2003.
 
When the CA denied the Motion for Reconsideration, the Republic filed its
own Petition for Review with this Court on July 3, 2003. It cited in its Certification
and Verification of a Non-Forum Shopping (sic), that there was a case involving
the same facts pending before this Court denominated as G.R. No. 155840. With
respect to Domingos petition, the same had already been dismissed on February
19, 2003. Domingos petition was reinstated on June 16, 2003 but the resolution
was received by the OSG only on July 25, 2003, or after it had filed its own
petition.[37]
 
Based on the foregoing, it cannot be said that the OSG is guilty of forum
shopping. We must point out that it was Rayala who filed the petition in the CA,
with the Republic as the adverse party. Rayala himself filed a motion for
reconsideration of the CAs December 21, 2001 Decision, which led to a more
favorable ruling,i.e., the lowering of the penalty from dismissal to one-year
suspension. The parties adversely affected by this ruling (Domingo and the
Republic) had the right to question the same on motion for reconsideration. But
Domingo directly filed a Petition for Review with this Court, as did Rayala. When
the Republic opted to file a motion for reconsideration, it was merely exercising a
right. That Rayala and Domingo had by then already filed cases before the SC did
not take away this right. Thus, when this Court directed the Republic to file its
Comment on Rayalas petition, it had to comply, even if it had an unresolved
motion for reconsideration with the CA, lest it be cited for contempt.
 
Accordingly, it cannot be said that the OSG file[d] multiple suits involving
the same parties for the same cause of action, either simultaneously or
successively, for the purpose of obtaining a favorable judgment.
 
We now proceed to discuss the substantive issues.
 
It is noteworthy that the five CA Justices who deliberated on the case were
unanimous in upholding the findings of the Committee and the OP. They found the
assessment made by the Committee and the OP to be a meticulous and
dispassionate analysis of the testimonies of the complainant (Domingo), the
respondent (Rayala), and their respective witnesses.  [38] They differed only on the
appropriate imposable penalty.
 
 That Rayala committed the acts complained of and was guilty of sexual
harassment is, therefore, the common factual finding of not just one, but three
independent bodies: the Committee, the OP and the CA. It should be remembered
that when supported by substantial evidence, factual findings made by quasi-
judicial and administrative bodies are accorded great respect and even finality by
the courts.[39] The principle, therefore, dictates that such findings should bind us.[40]
 
Indeed, we find no reason to deviate from this rule. There appears no valid
ground for this Court to review the factual findings of the CA, the OP, and the
Investigating Committee. These findings are now conclusive on the Court. And
quite significantly, Rayala himself admits to having committed some of the acts
imputed to him.
 
He insists, however, that these acts do not constitute sexual harassment,
because Domingo did not allege in her complaint that there was a demand, request,
or requirement of a sexual favor as a condition for her continued employment or
for her promotion to a higher position.[41] Rayala urges us to apply to his case our
ruling in Aquino v. Acosta.[42]
 
We find respondents insistence unconvincing.
 
Basic in the law of public officers is the three-fold liability rule, which states
that the wrongful acts or omissions of a public officer may give rise to civil,
criminal and administrative liability. An action for each can proceed independently
of the others.[43] This rule applies with full force to sexual harassment.
 
The law penalizing sexual harassment in our jurisdiction is RA
7877. Section 3 thereof defines work-related sexual harassment in this wise:
 
Sec. 3. Work, Education or Training-related Sexual Harassment
Defined. Work, education or training-related sexual harassment is
committed by an employer, manager, supervisor, agent of the employer,
teacher, instructor, professor, coach, trainor, or any other person who,
 having authority, influence or moral ascendancy over another in a work
or training or education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of whether the
demand, request or requirement for submission is accepted by the object
of said Act.
 
(a) In a work-related or employment environment, sexual
harassment is committed when:
 
(1) The sexual favor is made as a condition in the hiring or in the
employment, re-employment or continued employment of said
individual, or in granting said individual favorable compensation, terms,
conditions, promotions, or privileges; or the refusal to grant the sexual
favor results in limiting, segregating or classifying the employee which
in a way would discriminate, deprive or diminish employment
opportunities or otherwise adversely affect said employee;
 
(2) The above acts would impair the employees rights or
privileges under existing labor laws; or
 
(3) The above acts would result in an intimidating, hostile, or
offensive environment for the employee.
 
 
This section, in relation to Section 7 on penalties, defines the criminal aspect of the
unlawful act of sexual harassment. The same section, in relation to Section 6,
authorizes the institution of an independent civil action for damages and other
affirmative relief.
 
Section 4, also in relation to Section 3, governs the procedure for administrative
cases, viz.:
 
Sec. 4. Duty of the Employer or Head of Office in a Work-related,
Education or Training Environment. It shall be the duty of the employer
or the head of the work-related, educational or training environment or
institution, to prevent or deter the commission of acts of sexual
harassment and to provide the procedures for the resolution, settlement
or prosecution of acts of sexual harassment. Towards this end, the
employer or head of office shall:
  
(a)                Promulgate appropriate rules and regulations
in consultation with and jointly approved by
the employees or students or trainees, through
their duly designated representatives,
prescribing the procedure for the investigation
or sexual harassment cases and the
administrative sanctions therefor.
 
Administrative sanctions shall not be a
bar to prosecution in the proper courts for
unlawful acts of sexual harassment.
 
The said rules and regulations issued
pursuant to this section (a) shall include,
among others, guidelines on proper decorum
in the workplace and educational or training
institutions.
 
(b)               Create a committee on decorum and
investigation of cases on sexual harassment.
The committee shall conduct meetings, as the
case may be, with other officers and
employees, teachers, instructors, professors,
coaches, trainors and students or trainees to
increase understanding and prevent incidents
of sexual harassment. It shall also conduct the
investigation of the alleged cases constituting
sexual harassment.
 
In the case of a work-related environment, the committee shall be
composed of at least one (1) representative each from the management,
the union, if any, the employees from the supervisory rank, and from the
rank and file employees.
 
In the case of the educational or training institution, the committee
shall be composed of at least one (1) representative from the
administration, the trainors, teachers, instructors, professors or coaches
and students or trainees, as the case maybe.
 
 The employer or head of office, educational or training institution
shall disseminate or post a copy of this Act for the information of all
concerned.
 
 
The CA, thus, correctly ruled that Rayalas culpability is not to be determined
solely on the basis of Section 3, RA 7877, because he is charged with the
administrative offense, not the criminal infraction, of sexual harassment. [44] It
should be enough that the CA, along with the Investigating Committee and the
Office of the President, found substantial evidence to support the administrative
charge.
 
Yet, even if we were to test Rayalas acts strictly by the standards set in
Section 3, RA 7877, he would still be administratively liable. It is true that this
provision calls for a demand, request or requirement of a sexual favor. But it is not
necessary that the demand, request or requirement of a sexual favor be articulated
in a categorical oral or written statement. It may be discerned, with equal certitude,
from the acts of the offender. Holding and squeezing Domingos shoulders, running
his fingers across her neck and tickling her ear, having inappropriate conversations
with her, giving her money allegedly for school expenses with a promise of future
privileges, and making statements with unmistakable sexual overtones all these
acts of Rayala resound with deafening clarity the unspoken request for a sexual
favor.
 
Likewise, contrary to Rayalas claim, it is not essential that the demand,
request or requirement be made as a condition for continued employment or for
promotion to a higher position. It is enough that the respondents acts result in
creating an intimidating, hostile or offensive environment for the employee. [45] That
the acts of Rayala generated an intimidating and hostile environment for Domingo
is clearly shown by the common factual finding of the Investigating Committee,
the OP and the CA that Domingo reported the matter to an officemate and, after
the last incident, filed for a leave of absence and requested transfer to another unit.
 
 Rayalas invocation of Aquino v. Acosta[46] is misplaced, because the factual
setting in that case is different from that in the case at bench. In Aquino, Atty.
Susan Aquino, Chief of the Legal and Technical Staff of the Court of Tax Appeals
(CTA), charged then CTA Presiding Judge (now Presiding Justice) Ernesto Acosta
of sexual harassment. She complained of several incidents when Judge Acosta
allegedly kissed her, embraced her, and put his arm around her shoulder. The case
was referred to CA Justice Josefina G. Salonga for investigation. In her report,
Justice Salonga found that the complainant failed to show by convincing evidence
that the acts of Judge Acosta in greeting her with a kiss on the cheek, in a `beso-
beso fashion, were carried out with lustful and lascivious desires or were motivated
by malice or ill motive. It is clear from the circumstances that most of the kissing
incidents were done on festive and special occasions, and they took place in the
presence of other people and the same was by reason of the exaltation or happiness
of the moment. Thus, Justice Salonga concluded:
 
In all the incidents complained of, the respondent's pecks on the
cheeks of the complainant should be understood in the context of having
been done on the occasion of some festivities, and not the assertion of
the latter that she was singled out by Judge Acosta in his kissing
escapades. The busses on her cheeks were simply friendly and innocent,
bereft of malice and lewd design. The fact that respondent judge kisses
other people on the cheeks in the 'beso-beso' fashion, without malice,
was corroborated by Atty. Florecita P. Flores, Ms. Josephine Adalem
and Ms. Ma. Fides Balili, who stated that they usually practice 'beso-
beso' or kissing on the cheeks, as a form of greeting on occasions when
they meet each other, like birthdays, Christmas, New Year's Day and
even Valentine's Day, and it does not matter whether it is Judge Acosta's
birthday or their birthdays. Theresa Cinco Bactat, a lawyer who belongs
to complainant's department, further attested that on occasions like
birthdays, respondent judge would likewise greet her with a peck on the
cheek in a 'beso-beso' manner. Interestingly, in one of several festive
occasions, female employees of the CTA pecked respondent judge on
the cheek where Atty. Aquino was one of Judge Acosta's well wishers.
 
In sum, no sexual harassment had indeed transpired on those six
occasions. Judge Acosta's acts of bussing Atty. Aquino on her cheek
were merely forms of greetings, casual and customary in nature. No
 evidence of intent to sexually harass complainant was apparent, only that
the innocent acts of 'beso-beso' were given malicious connotations by the
complainant. In fact, she did not even relate to anyone what happened to
her. Undeniably, there is no manifest sexual undertone in all those
incidents.[47]
 
 
This Court agreed with Justice Salonga, and Judge Acosta was exonerated.
 
To repeat, this factual milieu in Aquino does not obtain in the case at bench. While
in Aquino, the Court interpreted the acts (of Judge Acosta) as casual gestures of
friendship and camaraderie, done during festive or special occasions and with other
people present, in the instant case, Rayalas acts of holding and squeezing
Domingos shoulders, running his fingers across her neck and tickling her ear, and
the inappropriate comments, were all made in the confines of Rayalas office when
no other members of his staff were around. More importantly, and a circumstance
absent in Aquino, Rayalas acts, as already adverted to above, produced a hostile
work environment for Domingo, as shown by her having reported the matter to an
officemate and, after the last incident, filing for a leave of absence and requesting
transfer to another unit.
 
Rayala also argues that AO 250 does not apply to him. First, he argues that
AO 250 does not cover the NLRC, which, at the time of the incident, was under the
DOLE only for purposes of program and policy coordination. Second, he posits
that even assuming AO 250 is applicable to the NLRC, he is not within its
coverage because he is a presidential appointee.
 
We find, however, that the question of whether or not AO 250 covers Rayala
is of no real consequence. The events of this case unmistakably show that the
administrative charges against Rayala were for violation of RA 7877; that the OP
properly assumed jurisdiction over the administrative case; that the participation of
the DOLE, through the Committee created by the Secretary, was limited to
initiating the investigation process, reception of evidence of the parties, preparation
of the investigation report, and recommending the appropriate action to be taken by
the OP. AO 250 had never really been applied to Rayala. If it was used at all, it
was to serve merely as an auxiliary procedural guide to aid the Committee in the
orderly conduct of the investigation.
 
Next, Rayala alleges that the CA erred in holding that sexual harassment is
an offense malum prohibitum. He argues that intent is an essential element in
sexual harassment, and since the acts imputed to him were done allegedly without
malice, he should be absolved of the charges against him.
 
We reiterate that what is before us is an administrative case for sexual
harassment. Thus, whether the crime of sexual harassment is malum in
se or malum prohibitum is immaterial.
 
We also reject Rayalas allegations that the charges were filed because of a
conspiracy to get him out of office and thus constitute merely political harassment.
A conspiracy must be proved by clear and convincing evidence. His bare assertions
cannot stand against the evidence presented by Domingo. As we have already
ruled, the acts imputed to Rayala have been proven as fact. Moreover, he has not
proven any ill motive on the part of Domingo and her witnesses which would be
ample reason for her to conjure stories about him. On the contrary, ill motive is
belied by the fact that Domingo and her witnesses all employees of the NLRC at
that time stood to lose their jobs or suffer unpleasant consequences for coming
forward and charging their boss with sexual harassment.
 
Furthermore, Rayala decries the alleged violation of his right to due process.
He accuses the Committee on Decorum of railroading his trial for violation of RA
7877. He also scored the OPs decision finding him guilty of disgraceful and
immoral conduct under the Revised Administrative Code and not for violation of
RA 7877. Considering that he was not tried for disgraceful and immoral conduct,
he argues that the verdict is a sham and total nullity.
 
 We hold that Rayala was properly accorded due process. In previous cases,
this Court held that:
 
[i]n administrative proceedings, due process has been recognized
to include the following: (1) the right to actual or constructive notice of
the institution of proceedings which may affect a respondents legal
rights; (2) a real opportunity to be heard personally or with the assistance
of counsel, to present witnesses and evidence in ones favor, and to
defend ones rights; (3) a tribunal vested with competent jurisdiction and
so constituted as to afford a person charged administratively a reasonable
guarantee of honesty as well as impartiality; and (4) a finding by
said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made
known to the parties affected.[48]
 
 
The records of the case indicate that Rayala was afforded all these
procedural due process safeguards. Although in the beginning he questioned the
authority of the Committee to try him,[49] he appeared, personally and with counsel,
and participated in the proceedings.
 
On the other point raised, this Court has held that, even in criminal cases, the
designation of the offense is not controlling, thus:
 
What is controlling is not the title of the complaint, nor the
designation of the offense charged or the particular law or part thereof
allegedly violated, these being mere conclusions of law made by the
prosecutor, but the description of the crime charged and the particular
facts therein recited. The acts or omissions complained of must be
alleged in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and
enable the court to pronounce proper judgment. No information for a
crime will be sufficient if it does not accurately and clearly allege the
elements of the crime charged. Every element of the offense must be
stated in the information. What facts and circumstances are necessary to
be included therein must be determined by reference to the definitions
and essentials of the specified crimes. The requirement of alleging the
elements of a crime in the information is to inform the accused of the
 nature of the accusation against him so as to enable him to suitably
prepare his defense.[50]
 
 
It is noteworthy that under AO 250, sexual harassment amounts to
disgraceful and immoral conduct.[51] Thus, any finding of liability for sexual
harassment may also be the basis of culpability for disgraceful and immoral
conduct.
With the foregoing disquisitions affirming the finding that Rayala
committed sexual harassment, we now determine the proper penalty to be imposed.
 
Rayala attacks the penalty imposed by the OP. He alleges that under the
pertinent Civil Service Rules, disgraceful and immoral conduct is punishable by
suspension for a period of six (6) months and one (1) day to one (1) year. He also
argues that since he is charged administratively, aggravating or mitigating
circumstances cannot be appreciated for purposes of imposing the penalty.
 
Under AO 250, the penalty for the first offense is suspension for six (6)
months and one (1) day to one (1) year, while the penalty for the second offense is
dismissal.[52] On the other hand, Section 22(o), Rule XVI of the Omnibus Rules
Implementing Book V of the Administrative Code of 1987 [53] and Section 52 A(15)
of the Revised Uniform Rules on Administrative Cases in the Civil Service [54] both
provide that the first offense of disgraceful and immoral conduct is punishable by
suspension of six (6) months and one (1) day to one (1) year. A second offense is
punishable by dismissal.
 
Under the Labor Code, the Chairman of the NLRC shall hold office during
good behavior until he or she reaches the age of sixty-five, unless sooner
removed for cause as provided by law or becomes incapacitated to discharge the
duties of the office.[55]
 
In this case, it is the President of the Philippines, as the proper disciplining
authority, who would determine whether there is a valid cause for the removal of
Rayala as NLRC Chairman. This power, however, is qualified by the phrase for
cause as provided by law. Thus, when the President found that Rayala was indeed
guilty of disgraceful and immoral conduct, the Chief Executive did not have
unfettered discretion to impose a penalty other than the penalty provided by law for
such offense. As cited above, the imposable penalty for the first offense of either
the administrative offense of sexual harassment or for disgraceful and immoral
conduct is suspension of six (6) months and one (1) day to one (1) year.
Accordingly, it was error for the Office of the President to impose upon Rayala the
penalty of dismissal from the service, a penalty which can only be imposed upon
commission of a second offense.
 
Even if the OP properly considered the fact that Rayala took advantage of
his high government position, it still could not validly dismiss him from the
service. Under the Revised Uniform Rules on Administrative Cases in the Civil
Service,[56] taking undue advantage of a subordinate may be considered as an
aggravating circumstance[57] and where only aggravating and no mitigating
circumstances are present, the maximum penalty shall be imposed. [58] Hence, the
maximum penalty that can be imposed on Rayala is suspension for one (1) year.
 
Rayala holds the exalted position of NLRC Chairman, with the rank
equivalent to a CA Justice. Thus, it is not unavailing that rigid standards of conduct
may be demanded of him. In Talens-Dabon v. Judge Arceo,[59] this Court, in
upholding the liability of therein respondent Judge, said:
 
The actuations of respondent are aggravated by the fact that
complainant is one of his subordinates over whom he exercises control
and supervision, he being the executive judge. He took advantage of his
position and power in order to carry out his lustful and lascivious
desires. Instead of he being in loco parentis over his subordinate
employees, respondent was the one who preyed on them, taking
advantage of his superior position.
 
 
In yet another case, this Court declared:
  
As a managerial employee, petitioner is bound by more exacting
work ethics. He failed to live up to his higher standard of responsibility
when he succumbed to his moral perversity. And when such moral
perversity is perpetrated against his subordinate, he provides a justifiable
ground for his dismissal for lack of trust and confidence. It is the right,
nay, the duty of every employer to protect its employees from oversexed
superiors.[60]
 
 
It is incumbent upon the head of office to set an example on how his
employees should conduct themselves in public office, so that they may work
efficiently in a healthy working atmosphere. Courtesy demands that he should set a
good example.[61]
 
Rayala has thrown every argument in the book in a vain effort to effect his
exoneration. He even puts Domingos character in question and casts doubt on the
morality of the former President who ordered, albeit erroneously, his dismissal
from the service. Unfortunately for him, these are not significant factors in the
disposition of the case. It is his character that is in question here and sadly, the
inquiry showed that he has been found wanting.
 
WHEREFORE, the foregoing premises considered, the October 18, 2002
Resolution of the Court of Appeals in CA-G.R. SP No. 61026
is AFFIRMED.Consequently, the petitions in G.R. Nos. 155831, 155840, and
158700 are DENIED. No pronouncement as to costs.