Republic SUPREME Manila EN BANC

of

the

Philippines COURT

Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local Government sent a telegram and a letter, both dated December 4, 1989, to petitioner requiring him to show cause why should not be suspended or remove from office for disloyalty to the Republic, within forty-eight (48) hours from receipt thereof. On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed by Veronico Agatep, Manuel Mamba and Orlino Agatep, respectively the mayors of the municipalities of Gattaran, Tuao and Lasam, all in Cagayan, against petitioner for acts the latter committed during the coup. Petitioner was required to file a verified answer to the complaint. On January 5, 1990, the Department of Local Government received a letter from petitioner dated December 29, 1989 in reply to respondent Secretary's December 4, 1989 letter requiring him to explain why should not be suspended or removed from office for disloyalty. In his letter, petitioner denied being privy to the planning of the coup or actively participating in its execution, though he admitted that he was 1 sympathetic to the cause of the rebel soldiers. Respondent Secretary considered petitioner's reply letter as his answer to the complaint of Mayor Veronico Agatep and 2 others. On the basis thereof, respondent Secretary suspended petitioner from office for sixty (60) days from notice, pending the outcome of the formal investigation into the charges against him. During the hearing conducted on the charges against petitioner, complainants presented testimonial and documentary evidence to prove the charges. Petitioner neither presented evidence nor even cross-examined the complainant's witnesses, choosing instead to move that respondent Secretary inhibit himself from deciding the case, which motion was denied. Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty as charged and ordering his removal from office. Installed as Governor of Cagayan in the

process was respondent Melvin Vargas, who was then the ViceGovernor of Cagayan. Petitioner relies on three grounds for the allowance of the petition, namely: (1) that the power of respondent Secretary to suspend or remove local government official under Section 60, Chapter IV of B.P. Blg. 337 was repealed by the 1987 Constitution; (2) that since respondent Secretary no longer has power to suspend or remove petitioner, the former could not appoint respondent Melvin Vargas as Governor of Cagayan; and (3) the alleged act of disloyalty committed by petitioner should be proved by proof beyond reasonable doubt, and not be a mere preponderance of evidence, because it is an act punishable as rebellion under the Revised Penal Code. While this case was pending before this Court, petitioner filed his certificate of candidacy for the position of Governor of Cagayan for the May 11, 1992 elections. Three separate petitions for his disqualification were then filed against him, all based on the ground that he had been removed from office by virtue of the March 19, 1990 resolution of respondent Secretary. The commission on Elections granted the petitions by way of a resolution dated May 9, 1992. On the same day, acting upon a "Motion to Clarify" filed by petitioner, the Commission ruled that inasmuch as the resolutions of the Commission becomes final and executory only after five (5) days from promulgation, petitioner may still be voted upon as a candidate for governor pending the final outcome of the disqualification cases with his Court. Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R. Nos. 105128-30, entitled Rodolfo E. Aguinaldo v. Commission on Elections, et al., seeking to nullify the resolution of the Commission ordering his disqualification. The Court, in a resolution dated May 14, 1992, issued a temporary restraining order against the Commission to cease and desist from enforcing its May 9, 1992 resolution pending the outcome of the disqualification case, thereby allowing the canvassing of the votes and returns in Cagayan to proceed. However, the Commission was ordered not to proclaim a winner until this Court has decided the case.

G.R. No. 94115 August 21, 1992 RODOLFO E. AGUINALDO, petitioner, vs. HON. LUIS SANTOS, as Secretary of the Department of Local Government, and MELVIN VARGAS, as Acting Governor of Cagayan, respondents. Victor I. Padilla for petitioner. Doroteo B. Laguna and Manuel T. Molina for private respondent.

NOCON, J.: In this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, petitioner Rodolfo E. Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990 in Adm. Case No. P-10437-89 dismissing him as Governor of Cagayan on the ground that the power of the Secretary of Local Government to dismiss local government official under Section 14, Article I, Chapter 3 and Sections 60 to 67, Chapter 4 of Batas Pambansa Blg. 337, otherwise known as the Local Government Code, was repealed by the effectivity of the 1987 Constitution. The pertinent facts are as follows: Petitioner was the duly elected Governor of the province of Cagayan, having been elected to said position during the local elections held on January 17, 1988, to serve a term of four (4) years therefrom. He took his oath sometimes around March 1988.

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On June 9, 1992, a resolution was issued in the aforementioned case granting petition and annulling the May 9, 1992 resolution of the Commission on the ground that the decision of respondent Secretary has not yet attained finality and is still pending review with this Court. As petitioner won by a landslide margin in the elections, the resolution paved the way for his eventual proclamation as Governor of Cagayan. Under the environmental circumstances of the case, We find the petition meritorious. Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before Us moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among the candidates for governor of Cagayan province. As held by this Court in Aguinaldo v. Comelec et al., supra,: . . . [T]he certified true xerox copy of the "CERTITICATE OF VOTES OF CANDIDATES", attached to the "VERY URGENT MOTION FOR THE MODIFICATION OF THE RESOLUTION DATED MAY 14, 1992["] filed by petitioner shows that he received 170,382 votes while the other candidates for the same position received the following total number of votes: (1) Patricio T. Antonio 54,412, (2) Paquito F. Castillo 2,198; and (3) Florencio L. Vargas 48,129. xxx xxx xxx Considering the fact narrated, the expiration of petitioner's term of office during which the acts charged were allegedly committed, and his subsequent reelection, the petitioner must be dismissed for the reason that the issue

has become academic. In Pascual v. Provincial Board of Nueva Ecija, L-11959, October 31, 1959, this Court has ruled: The weight of authority, however, seems to incline to the ruled denying the right to remove from office because of misconduct during a prior term to which we fully subscribe. Offenses committed, or acts done, during a previous term are generally held not to furnish cause for removal and this is especially true were the Constitution provides that the penalty in proceeding for removal shall not extend beyond the removal from office, and disqualification from holding office for a term for which the officer was elected or appointed. (6 C.J.S. p. 248, citing Rice v. State, 161 S.W. 2nd 4011; Montgomery v. Newell, 40 S.W. 23rd 418; People ex rel Bashaw v. Thompson, 130 P. 2nd 237; Board of Com'rs Kingfisher County v. Shutler, 281 P. 222; State v. Blake, 280 P. 388; In re Fedula, 147 A 67; State v. Wald, 43 S.W. 217)

The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599, 50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R. 332, cited in 17 A.L.R. 63 Sec. 559, 50 [NE] 553. The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the court, by reason of such fault or misconduct, to practically overrule the will of the people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also Oliveros v. 3 Villaluz, 57 SCRA 163 [1974]) Clear then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminalcases pending against petitioner for acts he may have committed during the failed coup. The other grounds raised by petitioner deserve scant consideration. Petitioner contends that the power of respondent

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Secretary to suspend or remove local government officials as alter ego of the President, and as embodied in B.P. Blg. 337 has been repealed by the 1987 Constitution and which is now vested in the courts. We do not agree. The power of respondent Secretary to remove local government officials is anchored on both the Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments, bureaus and offices and the power of general supervision over local governments, and by the doctrine that the acts of the department head are presumptively the acts of the President unless expressly rejected 4 by him. The statutory grant found in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2 of which specifically provided as follows Sec. 2. The National Assembly shall enact a local government code which may not thereafter be amended except by a majority vote of all its Members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local government units their powers, responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, power, functions, and duties of local government officials, and all other matters relating to the organization and operation of the local units. However, any change in the existing form of local government shall not take effect until ratified by a majority of the votes cast in the plebiscite 5 called for the purpose. A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads:

Sec. 3. The Congress shall enact a local government code which shall provided for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment, and removal,term and salaries, powers and functions and duties of local officials, and all other matters relating to the organization and 6 operation of the local units. Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner of removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it can not be said that BP Blg. 337 was repealed by the effective of the present Constitution. Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., this court had the occasion to state that B.P. Blg. 337 remained in force despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991 is approved. The power of respondent Secretary of the Department of Local Government to remove local elective government officials is found in Secs. 60 and 61 of B.P. Blg. 337. 8 As to petitioner's argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as Governor of Cagayan, We need but point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to writ In case a permanent vacancy arises when a governor . . . refuses to assume office, fails to quality, dies or isremoved from office, voluntarily resigns, or is otherwise
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permanently incapacitated to discharge the functions of his office, the vice-governor . . . shall assume the office for the unexpired term 9 of the former. Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined and penalized under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the provisions of the Revised Penal Code, but administratively with the end in view of removing petitioner as the duly elected Governor of Cagayan Province for acts of disloyalty to the Republic where 10 the quantum of proof required is only substantial evidence. WHEREFORE, petitioner is hereby GRANTED and the decision of public respondent Secretary of Local Government dated March 19, 1990 in Adm. Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby REVERSED. SO ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, GrioAquino, Medialdea, Regalado, Davide, Jr., Romero and Bellosillo, JJ., concur. SECOND DIVISION

[G.R. No. 139043. September 10, 1999]

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MAYOR ALVIN B. GARCIA, petitioner, vs. HON. ARTURO C. MOJICA, in his capacity as Deputy Ombudsman for the Visayas, VIRGINIA PALANCA-SANTIAGO, in his capacity as Director, Office of the Ombudsman (Visayas), ALAN FRANCISCO S. GARCIANO, in his capacity as Graft

Investigation Officer I, Office of the Ombudsman (Visayas), and JESUS RODRIGO T. TAGAAN, respondents. DECISION QUISUMBING, J.: The present controversy involves the preventive suspension order issued on June 25, 1999, by the Office of the Ombudsman (Visayas) in OMB-VIS-ADM-99-0452, against petitioner Cebu City Mayor Alvin B. Garcia and eight other city officials. Under the said order, petitioner was placed under preventive suspension without pay for the maximum period of six months and told to cease and desist from holding office immediately. The factual antecedents are as follows: On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E. Zuellig for the supply of asphalt to the city. The contract covers the period 1998-2001, which period was to commence on September 1998 when the first delivery should have been made by F.E. Zuellig. Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City, through the contract signed by petitioner. This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into [1] the matter. Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to conduct the inquiry, docketed as INQ-VIS-99-0132. After his investigation, he recommended that the said inquiry be upgraded to criminal and administrative cases against petitioner and the other city officials involved. Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this recommendation. In a memorandum dated June 22, 1999, respondent Allan Francisco S. Garciano, the graft investigating officer to whom the case was raffled for investigation, recommended the preventive suspension of petitioner and the others. Two days later, or on June 24, 1999, the affidavit-complaint against petitioner was

filed. The following day, on June 25, 1999, the Office of the Ombudsman issued the questioned preventive suspension order. On June 29, 1999, petitioner filed a motion for reconsideration of said order, which motion was denied in an order dated July 5, 1999. Petitioner is now before this Court assailing the validity of the said order. He pleads for immediate relief through the present petition for certiorari and prohibition with a prayer for temporary restraining order and/or writ of preliminary injunction. Petitioner contends that: I THE RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ASSUMING JURISDICTION OVER OMB-VIS-ADM-99-0452 AND ISSUING THE PREVENTIVE SUSPENSION ORDER, THE OFFICE OF THE OMBUDSMAN BEING WITHOUT JURISDICTION OVER THE ADMINISTRATIVE CASE, CONSIDERING THAT THE ALLEGED ACT CONSTITUTING THE CHARGE AGAINST PETITIONER HEREIN WAS COMMITTED DURING HIS PREVIOUS TERM, AND PETITIONER HAVING BEEN REELECTED TO THE SAME POSITION. II ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VISADM-99-0452, THE PREVENTIVE SUSPENSION FOR SIX MONTHS WAS WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF THE PROVISIONS OF SECTION 63 OF THE LOCAL GOVERNMENT CODE WHICH MANDATES THAT THE PREVENTIVE SUSPENSION OF LOCAL ELECTIVE OFFICIALS BE ORDERED ONLY AFTER THE ISSUES HAVE BEEN JOINED, AND ONLY FOR A PERIOD NOT IN EXCESS OF SIXTY (60) DAYS. III

ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER OMB-VISADM-99-0452, THE PREVENTIVE SUSPENSION WAS ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF SECTION 26(2) OF THE OMBUDSMAN LAW. IV ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION, THE RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CONCLUDING THAT THE EVIDENCE AGAINST PETITIONER WAS STRONG, THE LITTLE EVIDENCE ON RECORD CONSISTING SOLELY OF A HEARSAY AFFIDAVIT, AND INADMISSIBLE NEWSPAPER REPORTS. On July 19, 1999, we directed the parties to maintain the status quo until further orders from this Court. It appears that on the same day, petitioner issued a memorandum informing employees and officials of the Office of the City Mayor that he was assuming the post of mayor effective immediately. On July 23, 1999, respondents filed a motion seeking clarification of our status quo order. Respondents claimed that the status quoreferred to in the order should be that where petitioner is already suspended and vice mayor Renato Osmea is the acting city mayor. Petitioner, in reply, argued that the status quo refers to the last actual peaceable uncontested status which preceded [2] the pending controversy. Thus, the status quo could not be that where petitioner is preventively suspended since the suspension did not precede the present controversy; it is the controversy. We agree with petitioner in this regard. As explained by Justice Florenz D. Regalado, an authority on remedial law: There have been instances when the Supreme Court has issued a status quo order which, as the very term connotes, is merely intended to maintain the last, actual, peaceable and

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uncontested state of things which preceded the controversy. This was resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential, but the affected party neither sought such relief or the allegations in his pleading did not sufficiently make out a case for a temporary restraining order. The status quo order was thus issued motu proprio on equitable considerations. Also, unlike a temporary restraining order or a preliminary injunction, a status quo order is more in the nature of a cease and desist order, since it neither directs the doing or undoing of acts as in the case of prohibitory or mandatory injunctive relief. The further distinction is provided by the present amendment in the sense that, unlike the amended rule on restraining orders, a status quo order does not require the [3] posting of a bond. On July 28, 1999, we heard the parties oral arguments on the following issues: 1. What is the effect of the reelection of petitioner on the investigation of acts done before his reelection? Did the Ombudsman for the Visayas gravely abuse his discretion in conducting the investigation of petitioner and ordering his preventive suspension? 2. Assuming that the Ombudsman properly took cognizance of the case, what law should apply to the investigation being conducted by him, the Local Government Code (R.A. 7160) or the Ombudsman Law (R.A. 6770)? Was the procedure in the law properly observed? 3. Assuming further that the Ombudsman has jurisdiction, is the preventive suspension of petitioner based on strong evidence as required by law? We will now address these issues together, for the proper resolution on the merits of the present controversy. Petitioner contends that, per our ruling in Aguinaldo v. [4] Santos, his reelection has rendered the administrative case filed against him moot and academic. This is because reelection

operates as a condonation by the electorate of the misconduct committed by an elective official during his previous term. Petitioner further cites the ruling of this Court in Pascual [5] v. Hon. Provincial Board of Nueva Ecija, that . . . When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of the people. Respondents, on the other hand, contend that while the contract in question was signed during the previous term of petitioner, it was to commence or be effective only on September 1998 or during his current term. It is the respondents submission that petitioner went beyond the [6] protective confines of jurisprudence when he agreed to [7] extend his act to his current term of office. Aguinaldo cannot apply, according to respondents, because what is involved in this case is a misconduct committed during a previous term but to be effective during the current term. Respondents maintain that, ...petitioner performed two acts with respect to the contract: he provided for a suspensive period making the supply contract commence or be effective during his succeeding or current term and during his current term of office he acceded to the suspensive period making the contract effective during his [8] current term by causing the implementation of the contract. Hence, petitioner cannot take refuge in the fact of his reelection, according to respondents. Further, respondents point out that the contract in question was signed just four days before the date of the 1998 election and so it could not be presumed that when the people of Cebu City voted petitioner to office, they did so with full knowledge of petitioners character.

On this point, petitioner responds that knowledge of an officials previous acts is presumed and the court need not inquire whether, in reelecting him, the electorate was actually aware of his prior misdeeds. Petitioner cites our ruling in Salalima v. [9] Guingona, wherein we absolved Albay governor Romeo R. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm during his previous term, although disbursements of public funds to cover payments under the agreement were still being done during his subsequent term. Petitioner argues that, following Salalima, the doctrine in Aguinaldo applies even where the effects of the act complained of are still evident during the subsequent term of the reelected official. The implementation of the contract is a mere incident of its execution. Besides, according to petitioner, the sole act for which he has been administratively charged is the signing of the contract with F.E. Zuellig. The charge, in his view, excludes the contracts execution or implementation, or any act subsequent to the perfection of the contract. In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not apply to that case because the administrative case against Governor Rodolfo Aguinaldo of Cagayan was already pending when he filed his certificate of candidacy for his reelection bid. Nevertheless, in Salalima, the Court applied the Aguinaldo doctrine, even if the administrative case against Governor Salalima was filed after his reelection. Worth stressing, to resolve the present controversy, we must recall that the authority of the Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. Under Article XI, Section 13[1], the Ombudsman has the power to: investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. R.A. 6770, the Ombudsman Law, further grants the Office the Ombudsman the statutory power to conduct

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administrative investigations. Thus, Section 19 of said law provides: SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: (1) Are contrary to law or regulation; (2) Are unreasonable, unfair, oppressive or discriminatory; (3) Are inconsistent with the general course of an agencys functions, though in accordance with law; (4) Proceed from a mistake of law or an arbitrary ascertainment of facts; (5) Are in the exercise of discretionary powers but for an improper purpose; or (6) Are otherwise irregular, immoral or devoid of justification. Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary authority: SEC. 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.(Emphasis supplied.) Petitioner is an elective local official accused of grave [10] misconduct and dishonesty. That the Office of the Ombudsman may conduct an administrative investigation into the acts complained of, appears clear from the foregoing provisions of R.A. 6770. However, the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission, is different from the question of whether or not petitioner, after investigation, may be held administratively liable. This distinction ought here to be kept in mind, even as we must also take note that the power to investigate is distinct from the power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend an official subject to its administrative investigation is provided by specific provision of law. Under Section 24 of R.A. 6770 SEC. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Underscoring supplied.) We have previously interpreted the phrase under his authority to mean that the Ombudsman can preventively suspend all officials under investigation by his office, regardless of the branch of government in which they are [11] employed, excepting of course those removable by impeachment, members of Congress and the Judiciary. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited. There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or [12] influence witnesses or to tamper with records that might be [13] vital to the prosecution of the case against him. In our view, the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the

circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse of discretion when he set the period of preventive suspension at six months? Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be imposed when, among other factors, the evidence of guilt is strong. The period for which an official may be preventively suspended must not exceed six months. In this case, petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months, which is the maximum provided by law. SEC. 24. Preventive Suspension. xxx The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (Underscoring supplied.) The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the [14] Ombudsman. The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman, except that he cannot extend the period of suspension beyond that [15] provided by law. But, in our view, both the strength of the evidence to warrant said suspension and the propriety of the length or period of suspension imposed on petitioner are properly raised in this petition for certiorari and prohibition. These equitable remedies under Rule 65 of the Rules of Court precisely exist to provide prompt relief where an officer exercising judicial or quasi-judicial functions has acted...with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. (See Rule 65, Sec. 1).

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It is pertinent to note here that the inquiry that preceded the filing of an administrative case against petitioner was prompted by newspaper reports regarding the allegedly anomalous contract entered into by petitioner, on behalf of [16] Cebu City, with F.E. Zuellig. In the memorandum to [17] respondent Mojica, respondent Garciano recommended that petitioner be preventively suspended, based on an initial investigation purportedly showing: (1) the contract for supply of asphalt to Cebu City was designed to favor F.E. Zuellig, (2) the amount quoted in the contract was too expensive compared to the amount for which asphalt may be bought from local suppliers such as Shell and Petron, particularly considering that the amount was fixed in dollars and was payable in pesos, thus exposing the city government to the risks attendant to a fluctuating exchange rate, and (3) the interest of the city under the contract is not protected by adequate security. These findings were based on the contract itself and on letters from Bitumex and Credit Lyonnais. There were also letters from Shell and Petron that were replies to the Office of the Ombudsmans (Visayas) inquiry on whether or not they could supply Cebu City with asphalt and on what terms. Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted. On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioners guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence

against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him. We reach the foregoing conclusion, however, without necessarily subscribing to petitioners claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive suspension. Respondents base their argument on the deliberations of the Senate on Senate Bill No. 155, which became the Local Government Code. Senator Aquilino Pimentel, Jr., commenting on the preservation in the proposed Code of the power of the Office of the President to suspend local officials, said: Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only

wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one [18] case is filed right after the other, Mr. President. Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or Presidents office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, as respondents would have us believe. In Hagad v. Gozo-Dadole, on the matter of whether or not the Ombudsman has been stripped of his power to investigate local elective officials by virtue of the Local Government Code, we said: Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and [20] strike down the other. It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is much too repugnant to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, the two provisions govern [21] differently. However, petitioner now contends that Hagad did not settle the question of whether a local elective official may be preventively suspended even before the issues could be joined. Indeed it did not, but we have held in other cases that there could be preventive suspension even before the charges
[19]

Page

against the official are heard, or before the official is given an [22] opportunity to prove his innocence. Preventive suspension is merely a preliminary step in an administrative investigation and is not in any way the final determination of the guilt of the official concerned. Petitioner also avers that the suspension order against him was issued in violation of Section 26(2) of the Ombudsman Law, which provides: SEC. 26. Inquiries. xxx (2) The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt thereof Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation, the official concerned must be given 72 hours to answer the charges against him. In his case, petitioner says the inquiry was converted into an administrative investigation without him being given the required number of hours to answer. Indeed, it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against him. This, however, does not make invalid the preventive suspension order issued against him. As we have earlier stated, a preventive suspension order may be issued even before the charges against the official concerned is heard. Moreover, respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by respondent Tagaan. We find this 10-day period is in keeping with Section 5(a) of the Rules of Procedure of the Office of the [23] Ombudsman, which provides:

Sec. 5. Administrative adjudication; How conducted. (a) If the complaint is not dismissed for any of the causes enumerated in Section 20 of Republic Act No. 6770, the respondent shall be furnished with copy of the affidavits and other evidences submitted by the complainant, and shall be ordered to file his counter-affidavits and other evidences in support of his defense, within ten (10) days from receipt thereof, together with proof of service of the same on the complainant who may file reply affidavits within ten (10) days from receipt of the counter-affidavits of the respondent. We now come to the concluding inquiry. Granting that the Office of the Ombudsman may investigate, for purposes provided for by law, the acts of petitioner committed prior to his present term of office; and that it may preventively suspend him for a reasonable period, can that office hold him administratively liable for said acts? In a number of cases, we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of [24] office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds. However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just four days before the date of the elections. It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character. For his part, petitioner contends that the only conclusive [25] determining factor as regards the peoples thinking on the matter is an election. On this point, we agree with petitioner. That the people voted for an official with knowledge of his character is presumed, precisely to eliminate the need to determine, in factual terms, the extent of this knowledge. Such

an undertaking will obviously be impossible. Our rulings on the matter do not distinguish the precise timing or period when the misconduct was committed, reckoned from the date of the officials reelection, except that it must be prior to said date. As held in Salalima, The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned, is still a good law. Such a rule is not only founded on the theory that an officials reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. We may add that sound policy dictates it. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts alleged to have been committed during his previous term. His second term may thus be devoted to defending himself in the said cases to the [26] detriment of public service... (Emphasis added.) The above ruling in Salalima applies to this case. Petitioner cannot anymore be held administratively liable for an act done during his previous term, that is, his signing of the contract with F.E. Zuellig. The assailed retainer agreement in Salalima was executed sometime in 1990. Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during his succeeding term. This situation is no different from the one in the present case, wherein deliveries of the asphalt under the contract with F.E. Zuellig and the payments therefor were supposed to have commenced on September 1998, during petitioners second term. However, respondents argue that the contract, although signed on May 7, 1998, during petitioners prior term, is to be made effective only during his present term. We fail to see any difference to justify a valid distinction in the result. The agreement between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the

Page

contract was signed, during petitioners prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later. While petitioner can no longer be held administratively liable for signing the contract with F. E. Zuellig, however, this should not prejudice the filing of any case other than administrative against petitioner. Our ruling in this case, may not be taken to mean the total exoneration of petitioner for whatever wrongdoing, if any, might have been committed in signing the subject contract. The ruling now is limited to the question of whether or not he may be held administratively liable therefor, and it is our considered view that he may not. WHEREFORE, the petition is hereby DENIED insofar as it seeks to declare that respondents committed grave abuse of discretion in conducting an inquiry on complaints against petitioner, and ordering their investigation pursuant to respondents mandate under the Constitution and the Ombudsman Law. But the petition is hereby GRANTED insofar as it seeks to declare that respondents committed grave abuse of discretion concerning the period of preventive suspension imposed on petitioner, which is the maximum of six months, it appearing that 24 days the number of days from the date petitioner was suspended on June 25, 1999, to the date of our status quo order on July 19, 1999 were sufficient for the purpose. Accordingly, petitioners preventive suspension, embodied in the order of respondent Deputy Ombudsman, dated June 25, 1999, should now be, as it is hereby, LIFTED immediately. SO ORDERED. Bellosillo, Acting C.J., (Chairman), Mendoza, and Buena, JJ., concur.

RODOLFO Petitioner, G. R. No. 93252 November 8, 1991

T.

GANZON, RODOLFO Petitioner, G. R. No. 95245 -versusNovember 8, 1991 -versusT. GANZON,

COURT

OF

APPEALS

and

LUIS

T.

SANTOS, HON. and LUIS as DEPARTMENT COURT T. the OF OF SANTOS, in APPEALS his of

Respondents.

______________________________

capacity the

Secretary LOCAL

GOVERNMENT, Respondents.

MARY

ANN Petitioner,

RIVERA

ARTIEDA,

G. R. No. 93746 RESOLUTION November 8, 1991 -versusHON. of LUIS the SANTOS, DEPARTMENT M. PATRICIO, of the and in his OF in capacity LOCAL his as Secretary PADILLA, J.: Before the Court for resolution are the various issues raised by Rodolfo T. Ganzon's urgent motion, dated 7 September 1991, wherein he asks the Court to dissolve the temporary restraining order [TRO] it had issued, dated 5 September 1991, against the TRO earlier issued by the Court of Appeals in CA-G. R. SP No. 25840 entitled Ganzon vs. Santos, et al. On 5 August 1991, the Court's decision in the present case was _____________________________________ promulgated, upholding the validity of the orders of preventive suspension issued by respondent Secretary Santos, the

GOVERNMENT, as OF Chief, LOCAL

NICANOR Legal

capacity

Service

DEPARTMENT SALVADOR

GOVERNMENT

CABALUNA,

Respondents.

Page

9
EN BANC

dispositive part of which decision reads:

WHEREFORE, premises considered, the petitions are dismissed. The Temporary Restraining Order issued is lifted. The suspensions of the petitioners are affirmed; Provided, that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on account of any of the remaining administrative charges pending against him for acts committed prior to August 11, 1988. The Secretary of Interior is ordered to consolidate all such administrative cases pending against Mayor Ganzon. The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is affirmed. No costs. [1]

the decision in CA-G. R. SP Nos. 16417 and 20736 dismissing the petitions for lack of merit. Hence, petitioner Ganzon filed with this Court two [2] separate petitions assailing the decision in CAG. R. SP No. 16417 [subject of G. R. No. 93252], and that in CA-G. R. SP No. 20736 [subject of G. R. No. 95245]. [2] 3. On 26 June 1990, we issued a temporary restraining order barring the respondent Secretary from implementing the suspension orders, and restraining the enforcement of the Court of Appeals' two [2] decisions.cralaw However, it appears that even before the promulgation on 5 August 1991 of the main decision, respondent Secretary Santos had issued on 3 July 1991 against petitioner Ganzon another

comment on petitioner's urgent motion. After the main decision in the present petitions was rendered by the Court on 5 August 1991, respondents filed motions dated, 9 and 29 August 1991 alleging therein that the issues raised in petitioner's motion [6 July 1991] were rendered moot and academic by the said decision, and seeking clarification on whether it was still necessary to comply with this Court's Resolutions requiring respondents to file comment on petitioner's said motion of 6 July 1991. Meanwhile, on 29 August 1991, respondent Santos issued a memorandum addressed to petitioner Ganzon, in connection with the 5 August 1991 main decision, stating therein that the third order of preventive suspension issued against petitioner on 3 May 1990 shall be deemed in force and effect. The memorandum states: The Supreme Court, in its Decision in the above-referred cases, which affirmed the authority of the Secretary of Local Government to discipline local elective officials, explicitly states that: We are, therefore, allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and lifting for the purpose, the Temporary Restraining Order earlier issued. In view thereof, the third preventive suspension imposed on you, photocopy of which is hereto attached, is hereby deemed

A brief summary of the facts that led to this Court's decision of 5 August 1991 ["main decision", for brevity] is as follows: 1. Sometime in 1988, a series of ten [10] administrative complaints were filed by various city officials, against petitioner Ganzon, the elected City Mayor of Iloilo City, on various charges such as abuse of authority, oppression, grave misconduct and others.cralaw 2. In the course of the hearing of the administrative cases, respondent Secretary Santos issued against petitioner Ganzon three [3] separate orders of preventive suspension dated 11 August 1988, 11 October 1988, and 3 May 1990, each of the orders to last for a 60-day period.cralaw Petitioner assailed the validity of the said orders by filing with

order

of

preventive

suspension

in

connection

with

Administrative Case No. 51-90 filed by complainant Octavius J. Jopson, which order states: It appearing from a perusal of the complaint as well as the answer in Administrative Case No 51-90, entitled Octavius J. Jopson, Complainant, versus, Mayor Rodolfo T. Ganzon, Respondent, for Oppression, etc., that there is reasonable ground to believe that Respondent has committed the act or acts complained of, as prayed for by Complainant Jopson, you are hereby preventively suspended from office for a period of sixty [60] days effective immediately. [Emphasis supplied].

On 6 July 1991, petitioner Ganzon filed his "extremely urgent motion" (with supplemental motions later filed) questioning the validity of the said last mentioned suspension order. This Court issued a resolution dated 9 July 1991, requiring respondents to

in force.

10

the Court of Appeals two [2] separate petitions for prohibition docketed CA-G. R. SP No. 16417 and CA-G. R. SP No. 20736. On 7 September 1988 and 5 July 1990, the appellate court rendered

On 30 August 1991, petitioner Ganzon filed with the Court of Appeals a petition for mandamus, docketed CA-G. R. SP No.

Page

25480 against respondents. On the same day, petitioner filed in these petitions his "manifestation and compliance," alleging that he had already fully served the suspension orders issued against him, in compliance with the main decision of 5 August 1991, and that he should be allowed to re-assume his office starting 4 September 1991. Meanwhile, in reaction to the Memorandum dated 29 August 1991 issued by respondent Santos, petitioner filed in CA-G. R. SP No. 25840 a motion praying for the issuance of a temporary restraining order, which motion was granted by the Court of Appeals, when on 3 September 1991, it [CA] issued the said TRO. On 4 September 1991, respondents filed with this Court a motion asking for the issuance of a restraining order addressed to the Court of Appeals and against the TRO issued in CA-G. R. SP No. 25840. Granting respondents' motion, this Court on 5 September 1991, issued a temporary restraining order directing the Court of Appeals to cease and desist from implementing the TRO it had issued dated 3 September 1991, immediately suspending the implementation of the order of the Secretary of Interior and Local Government dated 29 August 1991. On 9 September 1991, petitioner Ganzon filed a motion to dissolve this Court's restraining order dated 5 September 1991.cralaw The records show that petitioner Ganzon, to this date, remains suspended from office [as the elected Mayor of Iloilo City] and since the order of preventive suspension dated 3 July 1991 [the

said fourth suspension order which is to expire after a period of 60 days, or on 4 September 1991.cralaw Similar to the argument raised in his petition filed with the Court of Appeals in CA-G.R. SP No. 25840, petitioner Ganzon, in support of his plea for the lifting of the TRO dated 5 September 1991 issued by this Court, In Re: TRO dated 3 September 1991, issued by Court of Appeals, contends that inasmuch as he has already served fully the suspension orders issued against him, in compliance with the mandate of this Court's decision dated 5 August 1991, coupled with the fact that he had also completely served by 4 September 1991 the fourth order of preventive suspension dated 3 July 1991, he should, therefore, be allowed to re-assume his office starting 4 September 1991.cralaw On the other hand, respondent Secretary maintains that petitioner Ganzon can be allowed to return to his office [as Mayor of Iloilo City] only after 19 October 1991, as it is only after such date when petitioner may be said to have fully served the preventive suspension orders as decreed in the main decision and in the order dated 3 July 1991 [fourth suspension]. The question then is when petitioner Ganzon may be allowed to reassume his position and duties as mayor of Iloilo City. Is it only after 19 October 1991 as claimed by respondents, or at some earlier date? The answer to this question would depend on how petitioner has served the preventive suspension orders issued against him.cralaw We note that the main decision refers to three [3] orders of preventive suspension each to last for 60 days. The first dated 11 August 1988, was admittedly fully served by petitioner. The

second order dated 11 October 1988 was not served because its enforcement was restrained by an order of the Regional Trial Court of Iloilo City upon petition of petitioner himself. [4] As to the third order dated 3 May 1990, the main decision states that petitioner is allowed to serve the duration of said third suspension order. It would seem, therefore, that after petitioner has served in full the third suspension order as decreed in the main decision, he can then return to his official duties as Iloilo City Mayor.cralaw However, We must also take note of the supervening 3 July 1991 order, again suspending petitioner from office for another 60 days, which order was issued even before the main decision of 5 August 1991 was promulgated. [The records show, however, that petitioner has in fact fully served the fourth suspension order, as admitted by respondents no less. This will be discussed shortly; but any issue on its validity is now moot and academic. [5] Besides, it is clear that this fourth suspension order is not one of the three orders covered by and subject of the main decision].cralaw Considering, nonetheless, the necessity of serving the third and fourth orders of suspension, there is need to look into when petitioner started to serve these orders so as to determine when their service expires.cralaw Petitioner contends that the following are the periods within which he stayed out of his office as he was serving the orders of preventive suspension issued against him: From May 4, Up 1990 to May and 18, Including 1990 [6]

11
Page

fourth suspension order] [3] was issued against him by respondent Secretary; in other words, he has been serving the

June

9,

1990

June

26,

1990 [7]

We also do not accept petitioner's contention that from 9 June 1990 up to 26 June 1990 [13] he again started to serve the third suspension order, inasmuch as during the period of 9 June 1990

mean the following: that from 5 August 1991 [the date the TRO issued by this Court was lifted] up to 3 September 1991 [the last day for serving the fourth order], twenty-nine [29] days have elapsed; that these twenty-nine [29] days which form part of his service for the fourth order can be also credited to his favor by treating said twenty-nine [29] days as forming part of his service of the third order; if this were so, he would need to serve only seventeen [17] days more to complete the service of the third order; said seventeen [17] days from 3 September 1991 will expire on 20 September 1991, which would be the last day for serving the third suspension order.cralaw Respondents however object to adopting the idea of "simultaneous service," of preventive suspensions as, according of them, this is not allowed under the Local Government Code. We agree with petitioner that he can be allowed the benefit of simultaneous service of the third and fourth suspension orders, for the following reasons.cralaw If simultaneous service of two [2] suspension orders is allowed, this would work in favor of the petitioner [an elective local official] as the balance of his third preventive suspension would, in effect, be reduced from 46 days to 17 days.cralaw It will be recalled that, in the main decision, noting that successive suspensions have been inflicted on Mayor Ganzon we stated that what "is intriguing is that respondent Secretary has been cracking down, so to speak, on the Mayor piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary could have pursued a consolidated effort."[17] Surely, allowing petitioner to serve simultaneously

July 5, 1991 September 3, 1991 [8]

Petitioner argues that for the periods of 4 May to 18 May 1990, and 9 June to 26 June 1990, he was serving the third suspension order; whereas for the period of 5 July to 3 September 1991, he was then serving the fourth suspension order. On the other hand, respondent Secretary contends that as to the third order of preventive suspension, dated 3 May 1990, petitioner served it only from 4 May 1990 to 19 May 1990. [9] Respondent denies that from 11 June to 30 June 1990, [10] petitioner had served again the third suspension order.cralaw As to the fourth suspension order, respondent Secretary confirms that petitioner served it starting from 5 July 1991 to 3 September 1991. [11] As regards the third suspension order, it is noted that though both parties admit that petitioner started serving it on 4 May 1990, they however differ as to when the service ended [petitioner claims he served it even after 18 May 1990, whereas, respondent claims it ended 19 May 1990]. In view of this divergence, the Court rules that the third order was served by petitioner from 4 May 1990 up to 18 May 1990 only, the latter date being the date when the Court of Appeals issued a TRO in CA-G. R. SP No. 20736, [12] and thus, interrupted petitioner's

to 26 June 1990, the records show that he was then in office discharging the functions of the Mayor of Iloilo City. [14]In sum, we rule that petitioner served the third suspension order only from 4 May 1990 up to 18 May 1990.cralaw The period from 4 May 1990 to 18 May 1990 is equivalent to fourteen [14] days. [15] Hence, as to the third suspension order [3 May 1990], petitioner having served fourteen [14] days of the 60-day preventive suspension imposed in the order, 46 days still remained to be served by him as decreed in the main decision. If we follow the mandate of such main decision which ordained that the third order be served and that the temporary restraining order [16] against it be lifted, it would follow that the remaining 46 days should be served starting 5 August 1991 (date of promulgation of main decision) until fully served. Another way to serve the 46 days would be to begin serving it only on 4 September 1991 [the day after 3 September 1991 which was the last day of service for the fourth suspension order] or until 20 October 1991 [the 46th day from 4 September 1990].cralaw However, We take note of the fact that petitioner has already fully served the 60-day fourth order of preventive suspension which started 5 July 1991 [that is, even before the main decision was rendered] and ended on 3 September 1991. Petitioner raises the issue of whether he could or should be allowed to serve the third and the fourth orders "simultaneously". If We allow his submission and accept "simultaneous service", it would

12
Page

service of the suspension orders and enabled him re-assume his office as Iloilo City Mayor.cralaw

the overlapping third and fourth suspensions will favor him, [and presumably the local constituency] and certainly lessen if not offset the harsh effects of whatever motive may be behind the intriguing action of the respondent Secretary in issuing those successive suspension orders.cralaw Furthermore, We may already take judicial notice of the recently-approved Local Government Code of 1991 [recently signed into law by the President][18] which provides [as to imposition of preventive suspensions] as follows: Sec. 63. Preventive Suspension.xxx xxx xxx (b) that, any single preventive suspension of local elective official shall not extend beyond sixty [60] days: Provided, further that in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety [90] days within a single year on the same ground or grounds existing and known at the time of the first suspension. [Emphasis supplied]. Since we can allow, as we here allow, under the bizarre circumstances of this case, petitioner to serve the third and fourth orders simultaneously [insofar as they overlap], this means that, as explained earlier, petitioner shall serve only 17 days more [not 46 days] to complete the service of the third order, that is, starting from 3 September 1991 and ending on 20 September 1991. Hence, as of this latter date, petitioner has

But then another issue is raised by respondents, i.e. that considering that the main decision refers to the first, second and third orders of preventive suspension [as far as Mayor Ganzon is concerned], petitioner, apart from serving the third order [the first one having been fully served], should also serve the second order [for another 60 days] as the latter has admittedly not been serve yet due to a restraining order issued by a trial court, [19] and considering that the dispositive portion of the main decision decreed that "suspensions of petitioners [including the other petitioner Artieda in G.R. No. 93746] are affirmed." We agree with the respondents on this point.cralaw The main decision refers to the three [3] suspension orders: the first, the second and the third. As shown earlier, the first and the third orders have already been served. It is only the second order which seems to have been unserved. If we follow the decision which states that the three [3] suspensions are affirmed, there appears to be no reason why the second order should not be served for another 60-day period. However, there is no cogent reason why, under the bizarre circumstances of this case where the respondent Secretary has chosen to impose preventive suspensions piecemeal, instead of consolidating the several administrative cases of similar nature and close vintage We cannot allow the concept of simultaneous service to apply to the second order [as we did in the third order]. It would follow then that the second order is also fully served to this date for the service of said second order would have started on 5 August 1991 when the main decision was rendered as this was the time

when this Court found and affirmed the validity of the three [3] suspension orders, including the second order. The 60-day period from 5 August 1991 expired on 4 October 1991.cralaw It appears that, as to the second preventive suspension, petitioner manifested that there is still an existing preliminary injunction issued by the RTC of Iloilo City, Branch 33 in Special Civil Action No. 18312, entitled Ganzon vs. Santos, et al. [20] One may ask as to the status of the case pending with the RTC, Iloilo City, Branch 33 insofar as the said case involves the issue on the validity of the second preventive suspension order. Under the main decision of this Court, dated 5 August 1991, second preventive suspension has been affirmed; under the present resolution, said second preventive suspension has been served. Consequently, Special Civil Action No. 18312 before the Regional Trial Court of Iloilo City has been rendered moot and academic, insofar as the second preventive suspension order is concerned.cralaw As to the petition [docketed CA-G. R. SP No. 25840] filed with the Court of Appeals, which involves the question of the validity of the fourth order, and which has clearly been served, petitioner admitted that he filed it, on the belief that it was the proper remedy for his reinstatement to office; thinking that his suspensions have been served and ended. [21] As we have ruled that petitioner has served the suspension orders decreed in the main decision and in the light of the finding of this Court that the fourth preventive suspension order has been served, the issues raised in CA-G. R. SP No. 25840; have also become moot and academic, warranting dismissal thereof.cralaw

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Page

complied with the mandate of the main decision for he has already fully served the third preventive suspension which ended on 20 September 1991.

WHEREFORE, the urgent motion of petitioner dated 7 September 1991 is hereby granted. The temporary restraining order dated 5 September 1991 is hereby lifted. Respondents are ordered to allow petitioner to re-assume his office as elected Mayor of Iloilo City effective immediately.

ANTONIO Y. DE JESUS, SR., ANATOLIO A. ANG AND MARTINA S. APIGO, PETITIONERS, VS. SANDIGANBAYAN-FOURTH DIVISION AND PEOPLE OF THE PHILIPPINES, RESPONDENTS. DECISION ABAD, J.: These are criminal cases involving a simulated bidding/canvassing in favor of the municipal mayor's son. The Facts and the Case

evidence, however, they proceeded to file their demurrer, in [4] effect waiving their right to present evidence. The prosecution opposed the demurrer. On March 7, 2007 the Sandiganbayan rendered judgment, convicting the accused local officials of the crimes charged. It, [5] however, acquitted accused De Jesus, Jr. Upon denial of their motion for reconsideration in a Resolution dated April 16, 2008, the accused public officers came to this Court on petition for [6] review. The Issues Presented

The Court of Appeals is directed to dismiss CA-G. R. SP No. 25840 for having become moot and academic. The Regional Trial Court of Iloilo City, Branch 33, before which petitioner's action for prohibition [Special Civil Action No. 18312] is pending is also ordered to dismiss the said case for having become moot and academic insofar as petitioner prays therein to enjoin his [second] preventive suspension.cralaw This resolution is without prejudice to the administrative cases [where the first, second, third and fourth preventive suspension orders were issued] proceeding on the merits thereof. Also, as decreed in the main decision of 5 August 1991, petitioner, Mayor Rodolfo Ganzon, may not be made to serve future suspensions on account of any of the remaining administrative charges pending against him for acts committed prior to August 11, 1988.cralaw SO ORDERED.cralaw Fernan C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., and Romero, JJ., concur.

The Office of the Ombudsman charged the accused public officers Antonio Y. de Jesus, Sr. (De Jesus, Sr.), Mayor of Anahawan, Southern Leyte, Anatolio A. Ang (Ang), his ViceMayor, and Martina S. Apigo (Apigo), the Treasurer, of falsification of public document before the Sandiganbayan in Criminal Case 26764 and all three, along with Antonio de Jesus, Jr. (De Jesus, Jr.), the mayor's son, of violation of Republic Act [1] (R.A.) 3019 before the same court in Criminal Case 26766. The first information alleged that De Jesus, Sr., Ang, and Apigo (accused local officials) falsified the Requests for Quotation and Abstract of Proposal of Canvass on January 18, 1994 by making it appear that Cuad Lumber and Hinundayan Lumber submitted quotations for the supply of coco lumber, when they did not in fact do so, in violation of Article 171 of the Revised Penal [2] Code. The second information alleges that, taking advantage of their positions, the three municipal officers gave unwarranted advantage to De Jesus, Jr., who operated under the name Anahawan Coco Lumber Supply, by awarding to him the supply [3] of coco lumber worth P16,767.00. On April 12, 2005, after the prosecution rested its case, all three accused filed a motion for leave to file demurrer to evidence, which motion the Sandiganbayan denied. Rather than present

The

petition

presents

four

issues:

1. Whether or not the Sandiganbayan erred in finding the accused local officials guilty of the two crimes charged when these referred to only one transaction; 2. Whether or not the Sandiganbayan erred in denying the accused local officials the opportunity to present their defense after it denied their demurrer to evidence; 3. Whether or not the Sandiganbayan erred in finding that the accused local officials falsified the pertinent Requests for Quotation and Abstract of Proposal of Canvass when they made it appear that Cuad Lumber and Hinundayan Lumber submitted quotations for the supply of coco lumber, when they did not in fact do so, in violation of Article 171 of the Revised Penal Code; 4. Whether or not the Sandiganbayan erred in finding that the accused local officials, taking advantage of their positions, gave unwarranted advantage to De Jesus, Jr. by awarding to him the supply of coco lumber worth P16,767.00 to the detriment of the municipality.

14

Melencio-Herrera, J., is on leave.cralaw SECOND [G.R. Nos. 182539-40, February 21,

DIVISION 2011]

Page

Rulings of the Court The accused municipal mayor, vice-mayor, and treasurer point out that, since the two charges involved only one transaction, the Sandiganbayan made a mistake in finding them guilty of both. But, as the Sandiganbayan and the prosecution point out, Section 3 of R.A. 3019 expressly allows the filing of the two charges based on one transaction. Section 3 provides that the crimes described in it are "in addition to acts or omissions of public officials already penalized by existing laws." The accused local officials assail the Sandiganbayan's refusal to allow them to present evidence of their defense after it denied their demurrer to evidence. But, contrary to their claim, the Sandiganbayan did not grant these officials leave to file their demurrer. It in fact denied them that leave without prejudice, however, to their nonetheless filing one subject to the usual risk of denial. Based on the Minutes of the Hearing on May 4, [7] 2005, the Sandiganbayan resolved as follows: The defense's Motion for Leave of Court to File Demurrer to Evidence dated April 12, 2005 is DENIED, without prejudice, however, to its right to file such demurrer to evidence, without prior leave of court, but subject to the legal consequences stated in Section 23, Rule 119 of the 2000 Rules on Criminal Procedure. WHEREFORE, the defense is hereby given a non-extendible period of ten (10) days from notice within which to file, if it so desires, a demurrer to evidence without prior leave of court. Should this Court fail to hear from the defense within the said period, it shall be understood to mean that the defense will forego the filing of the demurrer to evidence and will forthwith proceed with the presentation of its evidence on May 23, 2005 at 8:30 a.m. and 2:00 p.m. at the Palace of Justice, Cebu City, as previously scheduled. On receipt of the above, the accused local officials informed the court that they would file a demurrer to evidence even without [8] leave of court. The Sandiganbayan acknowledged the defense's manifestation and ordered the prosecution to [9] comment on or oppose it. Having denied the accused local officials' demurrer to evidence, the Sandiganbayan was justified in likewise denying their motion to be allowed to present evidence in their defense. The 2000 Rules on Criminal Procedure, particularly Section 23, Rule 119, provide: Section 23. Demurrer to evidence. x x x

that a canvass of suppliers was undertaken and that their quotations on the Requests for Quotations were correct. This obviously did not take place since the document lacked the required signatures of two supposed bidders. Besides, the Cuad Lumber's owner testified that he took no part in the canvass and that his business name was Cuad General Merchandise and not Cuad Lumber as stated in the Requests. During pre-trial the defense admitted that the accused local officials signed the Requests for Quotation and the Abstract of Proposal of Canvass [11] despite the absence of bidders' signatures. The accused local officials acted in concert. The Court also finds their signing in two capacities unusual or irregular. Normally, the roles of witnesses are performed by subordinates since superior officers assume the job of assessing the correctness of the transaction. This circumstance is suspicious and supports the belief that the accused local officials conspired to falsify the documents to favor the mayor's son. Further the Court notes that the Purchase Request did not bear the signature of the local auditor, whose task is to examine or inspect transactions, accounts, or books to prevent irregular government expenditures. Additionally, the accused municipal mayor signed the document as "Head of Department/Office" that executed the purchase request in connection with the repair of the municipal building. His signing as such is irregular since it is normally the proper subordinate official in charge of procurement for building repair, the municipal engineer, who signs the same. This circumstance strengthens the Court's belief that the accused local officials limited the signatories among themselves to prevent discovery of the illicit purchase. The accused local officials point out, citing Arias v. [13] Sandiganbayan, that "heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into
[12]

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. The accused local officials contend that the prosecution failed to prove conspiracy among them. The Sandiganbayan itself, they say, did not believe prosecution witness Maria Fe Lakilak's testimony that she saw Ang and Apigo sign the Requests for Quotation for Hinundayan Lumber and Cuad Lumber. But the prosecution is not required to prove conspiracy by evidence that the three local officials sat down and came to an agreement to commit the crimes of which they were charged. Such conspiracy may be proved by a number of circumstances from which one may infer that the accused were animated by a [10] common criminal purpose. Here, the accused municipal treasurer certified by her signature

Page

15

negotiations." But the documents and other circumstances of these cases negate reliance on the competence and good faith of subordinates. First, the accused local officials knew or could have known that the winning supplier was the accused mayor's son. Second, the accused local officials signed the documents both in their official capacities and as witnesses evidently to avoid, as stated above, exposing the deal to other eyes. And third, the rejected suppliers did not sign the quotations they supposedly submitted. Indeed, the space for their signatures was just above the space where the accused local officials [14] signed. The accused local officials seek rejection of the relevant documents presented in court on the ground that these were mere certified copies that were inadmissible under the best evidence rule. But the prosecution established by testimony that the original documents could no longer be found, paving the way for the introduction of secondary evidence. Indeed, the accused themselves adopted these documents as common exhibits. The accused local officials also argue that, since what were involved were emergency purchases, canvassing could be dispensed with. But, although Section 366 of the Local Government Code authorized such kind of purchases, here the documents show on their faces that there was actual resort to canvassing. Indeed, the documents do not recite the supposed circumstances that render the procurement an urgent one that under Section 368 did not require bidding or canvassing. Accused local officials point out that, since the resident auditor did not detect any anomaly in the transaction, they could not be [15] held liable on account of it. But an adverse audit finding by the resident auditor is not a requisite for prosecution for graft. The offense could be proved sans an auditor's report.

The accused local officials also contend that, although the coco lumber the municipality bought in this case was pricier, it was sturdier being of the best kind. They doubt if Cuad Lumber's [16] products had the same quality. But this argument is based on pure conjecture since Cuad Lumber did not submit a quotation for its products nor did it mention the quality of its inventory. The Court upholds the Sandiganbayan's conclusion that the accused local officials went along with the evidently falsified quotation documents to favor De Jesus, Jr., the mayor's son. This renders such officials guilty of violation of R.A. 3019. WHEREFORE, the Court DENIES the petition and AFFIRMS the Sandiganbayan Decision promulgated on March 7, 2007 and its Resolution dated April 16, 2008. SO Carpio, (Chairperson), JJ., concur. Republic of the Philippines Supreme Court Manila Nachura, ORDERED. Peralta, and Mendoza,

THE HON. SANDIGANBAYAN (4 Div.) and HENRY BARRERA, Respondents.

TH

LEONARDO-DE CASTRO, DEL CASTILLO, and PEREZ, JJ. Promulgated:

August 23, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

LEONARDO-DE CASTRO, J.:

This Petition for Certiorari under Rule 65 of the Rules of Court assails the Decision dated May 6, 2002 of the Sandiganbayan granting the Demurrer to Evidence of Mayor Henry E. Barrera (Mayor Barrera) and dismissing Criminal Case Nos. 25035-25037, 25039-25041, 25043, 25045-25047, 2504925050, and 25053-25054, on the ground that the elements of the offense under Section 3(e) of Republic Act No. 3019,
[1]

FIRST DIVISION

otherwise known as the Anti-Graft and Corrupt Practices Act, as G.R. Nos. 15395271 Present: CORONA, C.J., Chairperson, VELASCO, JR., amended, were not established beyond reasonable doubt.

PEOPLE OF THE PHILIPPINES, Plaintiff,

Mayor Barrera, together with Rufina Escala (Escala) and Santos Edquiban (Edquiban), were charged with 14 counts of violation of Sections 3(e) and 9 of Republic Act No. 3019 in

16

Page

- versus -

separate Informations, which alleged essentially similar set of facts, save for the names of the complainants, to wit: That on or about 30 June 1998, or sometime prior or subsequent thereto, in Candelaria, province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, accused Henry E. Barrera, Santos Edquiban and Rufina E. Escala, all public officers, then being the Municipal Mayor, Market Collector, and District Supervisor, respectively, all of Candelaria, Province of Zambales, committing the penal offense herein charged against them while in the performance of, in relation to, and taking advantage of their official functions and duties as such, thru manifest partiality and/or evident bad faith, did then and there, willfully, unlawfully, and criminally, in conspiracy with one another, prevent [Ermelinda Abella (Criminal Case No. 25035), Lourdes Jaquias (C.C. No. 25036), John Espinosa (C.C. No. 25037), Jean Basa (C.C. No. 25038), Lerma Espinosa (C.C. No. 25039), Eduardo Sison (C.C No. 25040), Lina Hebron (C. C. No. 25041), Nora Elamparo (C.C. No. 25042), Luz Aspiras (C.C . No. 25043), Oscar Lopez (C.C. No. 25044), Corazon Cansas (C.C. No. 25045), Michelle Palma (C.C. No. 25046), Mila Saberon (C.C. No.25047), Merlina Miraflor (C.C. No. 25048), Edna Bagasina (C.C. No. 25049), Jocelyn Educalane (C.C. No. 25050), Alvin Gatdula (C.C. No. 25051), Helen Egenias (C.C. No. 25052), Luz Eclarino (C.C. No. 25053) and Josephine Elamparo (C.C. No. 25054)], a legitimate lessee-stallholder from exercising his/her contractual and/or proprietary rights to transfer to, occupy and/or operate his/her assigned stall at the public market of

Candelaria, Province of Zambales, under the subsisting lease contract dated 25 June 1998, without any valid or justifiable reason whatsoever, by means of the issuance and implementation of the patently unlawful Memorandum No. 1 dated 30 June 1998, thereby causing undue injury to (private [2] complainants).

During the Pre-Trial Conference on February 22, 2000, the People and Mayor Barrera marked their respective documentary exhibits and entered into the following stipulation of facts: 1. That at the time material to this case as alleged in all of the Informations, accused Henry E. Barrera was a public officer being then the municipal mayor of Candelaria, Zambales; 2. That private complainants were awarded individual contract of lease for a market stall in the new Candelaria Public Market by the former Mayor Fidel Elamparo before the oath taking of the accused on June 30, 1998; 3. following: That the awardees are the

3. John Espinosa Saberon 4. Jean Basa Merlinda Miraflor 5. Lerma Espinosa Bagasina 6. Eduardo Sison Educalane 7. Lina Hebron 8. Nora Elamparo 9. Luz Aspiras 10. Oscar Lopez Josephine Elamparo

13. Mila 14. 15. 16. Edna Jocelyn

17. Alvin Gatdula 18. Helen Egenias 19. Luz Eclarino 20.

4. That on June 30, 1998 accused Henry E. Barrera after taking his oath as the new Mayor of Candelaria, Zambales went to the public market and pleaded with the complainants herein not to occupy the new market stalls; 5. That there was a public hearing conducted on the issue of the public market on July 8, 1998 by the Sangguniang Bayan with the new elected mayor as presiding officer; 6. That accused Henry E. Barrera was the Vice-Mayor of Candelaria, Zambales from 1986 to 1992; 7. That the accused was a stall holder or lessee of one of the stalls at the Candelaria Public Market; 8. That on March 11, 1995 during the time of Mayor Fidel Elamparo, the public market of Candelaria, Zambales was razed to the ground;

17

1. Ermelina Abella 2. Lourdes Jaquias Palma

Page

11. Corazon Cansas 12. Michelle

9. That the displaced about 60 market vendors;

incident

10. That Ex-Mayor Elamparo assured the market vendors who were displaced together with Congressman Antonio Diaz that they will enjoy priority/preference over the new stalls once the public market is re-built; and 11. That the displaced market vendors were temporarily sheltered along Perla St. and Ruby St., adjacent to the burned public market. The parties agreed, that the only issue to be resolved is: whether or not accused Henry E. Barrera is liable for violation of [3] Section 3(e) and 9 of Republic Act No. 3019.

ground that the Ombudsman approved the recommendation of the Special Prosecutor to drop said two accused from the Informations.

Mayor Barrera filed a Motion for Leave to File Demurrer to Evidence on October 23, 2001, which the Sandiganbayan granted in an Order dated October 29, 2001.

In an Order dated August 8, 2000, the Sandiganbayan granted the Omnibus Motion and accordingly ordered Escala and Edquiban dropped from the Informations.

Mayor Barrera filed his Demurrer to Evidence on November 8, 2001, avowing that there was no bad faith in his issuance of Memorandum No. 1, which prevented Abella, et al., from occupying the new stalls at the Candelaria Public

Complainants Abella, Jaquias, John Espinosa, Lerma Espinosa, Sison, Hebron, Cansas, Palma, Saberon, Bagasina, Educalane, Eclarino, and Josephine Elamparo testified for the

Market. He explained that he needed to issue Memorandum No. 1 since the previous Municipal Mayor, Fidel Elamparo, awarded the Lease Contracts over the new public market stalls less than a week before the end of the latters term and without regard to the requirement of pertinent laws. Mayor Barrera also claimed that he did not act with manifest partiality in issuing Memorandum No. 1 considering that said issuance applies not only to Abella, et al., but also to all awardees of the questionable Lease Contracts. Mayor Barrera further pointed out that Abella, et al., did not suffer any undue injury even when they were unable to occupy the new public market stalls as they were able to continue working and earning as market vendors at the temporary public market site. Hence, Mayor Barrera argued that any purported damage sustained by Abella, et al., by reason

While the Pre-Trial Order, reflecting the foregoing stipulation of facts, was not signed by the members of the Fourth Division of the Sandiganbayan, the issuance, authenticity, and contents thereof were never disputed nor put in issue by any of the parties.

People. Upon motion of the People, the Sandiganbayan issued an Order dated August 14, 2001, dismissing the complaints of Basa, Norma Elamparo, Lopez, Miraflor, Gatdula, and Egenias, on the ground that said charges cannot be prosecuted successfully without the testimony of these six

complainants. The People, however, proceeded with the When arraigned, accused Mayor Barrera, Escala, and Edquiban separately pleaded not guilty. prosecution of the complaints of Abella and the 13 other complainants (Abella, et al.). Subsequently, the People formally offered its documentary exhibits, which were admitted in On August 2, 2000, Escala and Edquiban filed an evidence.

18
Page

Omnibus Motion: 1) For the Issuance of an Order Dropping Dr. Rufina Escala and Mr. Santos Edquiban from the Information; 2) To Withdraw Bond; and 3) To Lift Hold Departure Orders on the

of the issuance and implementation of Memorandum No. 1 should be solely borne by them, being damnum absque injuria.

Criminal Cases Nos. 25035-37; 25039-41; 25043; 25045-47; 25049-50 and 25053-54 are hereby DISMISSED on the ground that the elements of the offense under Sec. 3(e) of R.A. No. 3019, as amended, were not established [4] beyond reasonable doubt.

The Petition has no merit.

At

the

outset,

we

note

that

this

Petition

In

its Comment/Opposition

to

Mayor Barreras Without filing a Motion for Reconsideration of the Sandiganbayan judgment, the People filed the present Petition, faulting the graft court for the following:

for Certiorari under Rule 65 of the Rules of Court was filed without a Motion for Reconsideration of the Decision dated May 6, 2002 having been filed before the Sandiganbayan. This fact alone would have warranted the dismissal of the instant Petition given the general rule that a motion for reconsideration is a condition sine qua non before the filing of a petition I THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION IN PROMULGATING THE ASSAILED DECISION AS IT NEVER EXPRESSED CLEARLY AND DISTINCTLY THE FACTS AND THE EVIDENCE ON WHICH IT IS BASED, IN VIOLATION OF THE PROVISIONS OF SEC. 14, ARTICLE VIII OF THE CONSTITUTION. II THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THE PROSECUTION FAILED TO PROVE AND QUANTIFY ACTUAL INJURY AND DAMAGE SUFFERED BY THE PRIVATE COMPLAINANTS. III THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THE PROSECUTION FAILED TO PROVE EVIDENT BAD FAITH ON THE PART OF THE PRIVATE RESPONDENT. for certiorari. In Republic v. Sandiganbayan, we held: As a rule, the special civil action of certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, lies only when the lower court has been given the opportunity to correct the error imputed to it through a motion for reconsideration of the assailed order or resolution. The rationale of the rule rests upon the presumption that the court or administrative body which issued the assailed order or resolution may amend the same, if given the chance to correct its mistake or error. The motion for reconsideration, therefore, is a condition sine qua non before filing a petition for certiorari. Here, petitioners filed the instant petitions for certiorari without interposing a motion for reconsideration of the assailed Resolution of the Sandiganbayan. Section 1 of the same Rule 65 requires that petitioners must not only show that the trial court, in issuing the questioned Resolution, acted
[5]

Demurrer to Evidence, the People asserted that the pieces of evidence it adduced and presented were more than sufficient to sustain the accused Mayors conviction. The People maintained that it would be in Mayor Barreras best interest to explain during trial why on June 30, 1998, said Mayor, assisted by the police, forcibly evicted Abella, et al., from the new public market and padlocked the market stalls without the benefit of any court order. According to the People, Mayor Barreras actuations displayed a wanton disregard of the constitutional rights to life and property, as well as to due process of law, which resulted to business losses on the part of Abella, et al., from the time their market stalls were closed.

On May 6, 2002, the Sandiganbayan rendered its Decision granting Mayor Barreras Demurrer to Evidence and dismissing the criminal cases against said Mayor. The dispositive portion of the Decision reads:

19
Page

WHEREFORE, the Demurrer to Evidence filed by accused HENRY E. BARRERA, through counsel, is hereby GRANTED and

without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, but that there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. We have held that the plain, speedy, and adequate remedy referred to in Section 1 of Rule 65 is a motion for reconsideration of the questioned Order or Resolution. It bears stressing that the strict application of this rule will also prevent unnecessary and premature resort to appellate proceedings. We thus cannot countenance petitioners disregard of this procedural norm and frustrate its purpose of attaining speedy, inexpensive, and orderly judicial proceedings. In justifying their failure to file the required motion for reconsideration, petitioners vehemently assert that they were deprived of due process and there is extreme urgency for relief, and that under the circumstances, a motion for reconsideration would be useless. We are not persuaded. Petitioners may not arrogate to themselves the determination of whether a motion for reconsideration is necessary or not. To dispense with the requirement of filing a motion for reconsideration, petitioners must show concrete, compelling, and valid reason for doing so. They must demonstrate that the Sandiganbayan, in issuing the assailed Resolution, acted capriciously, whimsically and arbitrarily by reason of passion and personal hostility. Such capricious, whimsical and arbitrary acts must be apparent on the face of the assailed Resolution. These, they failed to do.

the facts and the law on which it is based leaves the parties in The People in the instant case absolutely failed to provide any explanation as to why it did not first move for reconsideration of the challenged Sandiganbayan judgment before seeking a writ of certiorari from this Court. We therefore cannot find any concrete, compelling, and valid reason to except the People from the aforementioned general rule of procedure. Our review of the Sandiganbayan Decision dated May 6, 2006 reveals that said judgment actually contained a summary The Petition at bar must also be dismissed on substantive grounds. of the antecedent facts and proceedings; as well as a discussion on the relevant statutory provisions, the elements of the offense charged, and the testimonial and documentary evidence Article VIII, Section 14 of the 1987 Constitution mandates that *n+o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. The purpose of Article VIII, Section 14 of the Constitution is to inform the person reading the decision, and especially the parties, of how it was reached by the court after consideration of the pertinent facts and examination of the applicable laws. The losing party is entitled to know why he lost, so he may appeal to a higher court, if permitted, should he believe that the decision should be reversed. A decision that does not clearly and distinctly state presented by the People. The factual and legal bases of the assailed Sandiganbayan Decision, granting Mayor Barreras Demurrer to Evidence, are readily evident in the following excerpts therefrom: The instant Demurrer to Evidence is impressed with merit. Section 3, paragraph (e) of R.A. 3019, provides that: Section 3. Corrupt Practices of Public Officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall the dark as to how it was reached and is especially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal. Thus, a decision is adequate if a party desiring to appeal therefrom can assign errors against it.
[6]

Page

20

constitute corrupt practices of any public officer and are hereby declared to be unlawful; xxxx e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefit, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. x x x To be liable for violation of Section 3(e) of Republic Act No. 3019, four essential elements (as stated in the Information filed in the present cases) must be present: 1) That the accused is a public officer or a private person charged in conspiracy with the public officers; That said public officer commits the prohibited acts during the performance of his official duties or in relation to his public position; That he causes undue injury to any party,

whether government or private individuals; and 4) That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.

proven to the point of moral certainty. In the instant cases, the evidence presented by the prosecution failed to prove actual injury and damage suffered by the private complainants, as one of the elements of the crime herein charged, in that it failed to specify, quantify and prove to the point of moral certainty the purported undue injury. The complainants in their testimonies, admitted that they have been working and earning, either as market vendors or in pursuit of their profession from the time of the closure of their respective market stalls up to now. Also, their claims of business losses, at the time material to the cases at bar, leave much to be desired vis--vis the moral certitude exacted by law to prove the alleged undue injury. Pathetically, said evidence, are either contradictory or incredible. Likewise, the prosecutions evidence failed to prove manifest partiality and/or evident bad faith on the part of the accused, as the fourth of the abovestated requisites for the commission of the crime herein charged. For an act to be considered as exhibiting manifest partiality, there must be a showing of a clear, notorious or plain inclination or predilection to favor one side rather than the other. Partiality is synonymous with bias which excites a disposition to see and report matters as they are wished for rather than as they are. Evident bad faith, on the other hand, is something which does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and

The first two above-stated elements are clearly present in the instance cases. However, the third and fourth elements appear to be absent, or at best remain doubtful. The undue injury mentioned as the third essential element in the commission of the crime requires proof of actual injury and damage. Clarifying, the Supreme Court, in Llorente v. Sandiganbayan, stated: x x x Unlike in actions for torts, undue injury in Sec. 3(e) cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of a crime. In fact, the causing of undue injury or the giving of any unwarranted advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and

2)

21

Page

3)

conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; It partakes of the nature of fraud. It contemplates a state of mind affirmatively operating with furtive design, or some motive of self-interest or ill will for ulterior purpose. Evident bad faith connotes a manifest and deliberate intent on the part of the accused to do wrong or cause damage. The evidence presented by the prosecution falls short of that quantum of proof necessary to establish the fact that the accused acted with manifest partiality or with evident bad faith. On the contrary, what is clear from the evidence adduced, was that herein accused simply exercised his legitimate powers under the Local Government Code of 1991 (LGC) which provides that a municipal mayor has the power to enforce all laws and ordinances relative to the governance of the municipality and the exercise of its corporate powers and, for this purpose, he shall have the power to issue such executive order as are necessary for the proper enforcement and execution of the laws and ordinances. ExMayor Elamparos acts of entering into lease contracts, when his term was about to expire and herein accused-movants term was about to commence, being the mayor-elect, was not only in violation of the Local Government Code provision that no contract may be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sangguniang concerned, but also of the other requirements of law such as, a verified application from the complainants, payment of application fees, drawing of lots and the opening of bids, since not all the displaced vendors can be accommodated in the thirty-two stalls in the

new public market. The intent of such a maneuvering was obviously to tie the hands of the incoming administration. The undue haste of awarding stalls in the new public market by Ex-Mayor Elamparo was flagrant, because from 26 June to 30 June, 1998, former stall holders of the old market that burned down, held a rally to denounce the allegedly unfair awarding of contracts of lease over the new stalls, complaints ranging from awards to new comers, to instances of two stalls, being awarded to one lessee. It was precisely in this state of affair that prompted herein accused-movant Barrera to cause the issuance of Memorandum No. 1, Series of 1998, after he had taken his oath as mayor of Candelaria, Zambales, to wit: You are hereby advised that effective 1:00 PM, June 30, 1998, the transferring to and occupancy of stalls inside the Public Market shall be temporarily suspended. For your implementation compliance. strict and

memorandum was to award the new stalls to Mayor Barreras supporters. In the light of all the foregoing, We find that herein accused-movant Henry E. Barrera cannot in fairness be held liable under the indictment. In this connection, it has been held that the prosecution must rely on the strength of its own evidence and not on the weakness of the defense; the burden of proof is never on the accused to disprove the facts necessary to establish the crime charged. It is safely entrenched in our jurisprudence says the Supreme Court, that unless the prosecution discharges its burden to prove the guilt of an accused beyond reasonable doubt, the latter need not even offer evidence in his [7] behalf.

In fact, based on the foregoing, the People was able to identify and discuss with particularity in its present Petition the grave abuse of discretion allegedly committed by the graft court in granting Mayor Barreras Demurrer to Evidence. Thus, contrary to the Peoples contention, the aforequoted

Sandiganbayan judgment did not violate the mandate of Article VIII, Section 14 of the 1987 Constitution.

Page

Lastly, of significance is the fact that Memorandum No. 1 applied to all stallholders at the new public market, be they supporters or not of Mayor Barrera during the 1998 mayoralty elections just past. These admissions of the complaining witnesses in open court, thus, refute their allegations in their affidavits that the purpose of the

We further disagree with the Peoples assertion of grave abuse of discretion on the part of Sandiganbayan in ruling that several elements for the violation of Section 3(e) of

22

Republic Act No. 3019 are lacking, or at best, doubtful, in this case.

[8]

In order to be held guilty of violating Section 3(e) of Republic Act No. 3019, the provision itself explicitly requires that the accused caused undue injury for having actedwith manifest partiality, evident bad faith, or with gross inexcusable negligence, in the discharge of his official administrative or judicial function. The Peoples evidence failed to support the existence of these two elements. The issuance by Mayor Barrera of Memorandum No. 1 is rooted in Section 444, in relation to Section 22, of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, which provide: Section 444. The Chief Executive: Powers, Duties, Functions and Compensation. (a) The municipal mayor, as the chief executive of the municipal government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall:

(2) Enforce all laws and ordinances relative to the governance of the municipality and the exercise of its corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activities of the municipality and, in addition to the foregoing, shall: xxxx (iii) Issue such executive orders as are necessary for the proper enforcement and execution of laws and ordinances.

authorization by the sanggunian as required by Section 22(c) of Republic Act No. 7160. Also, there were 60 market vendors displaced by the fire at the old public market, but only 32 stalls were available for occupancy at the new public market. A rally was held by the stall holders displaced by the fire from the old public market to denounce the allegedly unfair awarding of the Lease Contracts over the new public market stalls to new comers, and even in some instances, the awarding of two stalls to only one lessee. These circumstances prompted Mayor Barrera, the newly elected Municipal Mayor, to issue Memorandum No. 1 pursuant to his duty of enforcing and implementing laws and ordinances for the general welfare of the

Section 22. Corporate Powers. x x x xxxx (c) Unless otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sanggunianconcerned. A legible copy of such contract shall be posted at a conspicuous place in the provincial capitol or the city, municipality or barangay hall.

municipality and its inhabitants. It bears to stress that Memorandum No. 1 applies equitably to all awardees of the Lease Contracts over the new public market stalls, not just Abella, et al., and did not give any unwarranted benefit, advantage, or preference to any particular private

party. Consequently, we find that the Sandiganbayan did not commit grave abuse of discretion when it declared that Mayor

The award of Lease Contracts over the new public market stalls were marred by several irregularities, among which, was it being made by the former Mayor with only one week before the expiration of his term and the lack of prior

Barrera did not issue Memorandum No. 1 with manifest partiality, evident bad faith, or with gross inexcusable negligence.

23

xxxx

Page

Moreover, in Pecho v. Sandiganbayan, we explained that the undue injury caused to any party, including the government, under Section 3(e) of Republic Act No. 3019, could only mean actual injury or damage which must be established by evidence. Abella, et al., alleged undue damage/injury by reason of Memorandum No. 1 because they had been unable to occupy the new public market stalls and were thus deprived of their daily income of varying amounts. However, Abella, et al., in their own testimonies,
[10]

[9]

xxxx The demurrer to evidence in criminal cases, such as the one at bar, is filed after the prosecution had rested its case, and when the same is granted, it calls for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused. Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double jeopardy. The verdict being one of acquittal, the case ends there. The sole office of an extraordinary writ of certiorari is the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack or excess of jurisdiction. For as long as the court acted within its jurisdiction, an error of judgment that it may commit in the exercise thereof is not correctible through the special civil action of certiorari. To reiterate, the Sandiganbayan, in rendering the challenged Decision, acted with jurisdiction and did not gravely abuse its discretion. WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.

Republic of the Philippines Supreme Court Baguio City

admitted that that they have continued

working and earning either as market vendors at the temporary public market site, or in pursuit of their profession from the time their market stalls were closed until present time. Hence, there was no sufficient evidence to establish actual injury or damage suffered by Abella, et al., by reason of Memorandum No. 1. In People v. Sandiganbayan, discretion as follows:
[11]

EN BANC

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAA, Petitioners,

G.R. No. 1

Present:

we defined grave abuse of

PUNO, C. Grave abuse of discretion is the capricious and whimsical exercise of judgment as equivalent to lack of jurisdiction or where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined or to act in contemplation of law. x x x. CARPIO, There being no grave abuse of discretion on the part of the Sandiganbayan in granting Mayor Barreras Demurrer to Evidence as to deprive the graft court of jurisdiction, the issuance of a writ of certiorari is not warranted in the present case. - versus CORONA,

CARPIO M

24

VELASCO,

Page

NACHURA

LEONARDO-DE CASTRO, Petitioners Vicente Salumbides, Jr. (Salumbides) and BRION, OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON,SALVADOR ADUL, and AGNES FABIAN, Respondents, Glenda Araa (Glenda) challenge the October 11, 2007 Decision

implemented by administration, as had been done in a previous classroom building project of the former mayor.

PERALTA, and the December 13, 2007 Resolution of the Court of

[1] BERSAMIN, Appeals in CA-G.R. SP No. 96889 affirming the Office of the

Ombudsmans decision finding them guilty of Simple Neglect of DEL CASTILLO, ABAD, Duty.

Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available funds that could be taken from the MOOE/RMF, but the savings of the municipal government were adequate to fund the projects. She

VILLARAMA, JR., PEREZ, and Salumbides and Glenda were appointed in July 2001 as MENDOZA, JJ. Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon. Promulgated:

added, however, that the approval by the Sangguniang Bayan of a proposed supplemental budget must be secured.

The members of the Sangguniang Bayan having already April 23, 2010 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x Towards the end of 2001, Mayor Vicente Salumbides III gone on recess for the Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation
[3]

(the mayor) saw the urgent need to construct a two-classroom building with fence (the projects) for the Tagkawayan Municipal High School (TMHS) since the public school in the poblacion
[2]

in

the

approved

Municipal Annual Budget for 2002.

DECISION

area would no longer admit high school freshmen starting school year 2002-2003. On how to solve the classroom shortage, the mayor consulted Salumbides who suggested that the The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with the construction of the projects based on the program of work and bill of materials he (Aquino) prepared with a total cost estimate of P222,000.

CARPIO MORALES, J.: construction of the two-classroom building be charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and

Page

25

Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor included the projects in the list of local government projects scheduled for bidding

fact, payments for the expenses on these 2 projects have been made only starting 19 [4] March 2002. x x x (underscoring supplied)

On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the Ombudsman a complaint against Salumbides and Glenda (hereafter petitioners), the mayor,
[6]

on January 25, 2002 which, together with the January 31, Coleta, Jason and Aquino. 2002 public bidding, failed. The construction of the projects commenced without any approved appropriation and ahead of the public bidding. Salumbides was of the opinion that the projects were The mayor was to admit later his expectation or assumption of risk on reimbursement: regular and legal, based on an earlier project that was implemented in the same manner, using the same source of fund and for the same reason of urgency which was allowed x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time on-going (although it was also my thinking then that no bidder would possibly bid for these 2 projects as these were costestimated very low-P150,000 for the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project. I said I because up to the time of the failed 2 biddings I have shouldered the vale of the laborers and I requisitioned some materials on credit on my own personal account, and not a single centavo was at the time disbursed by our municipal treasury until all requirements for negotiated purchase of the materials for the project had been accomplished. As a matter of because the building was considered merely temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal government is presently negotiating to buy.
[5]

The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et al. with

Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code.

Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of model guidelines in the implementation of infrastructure projects to be executed by administration, while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan. By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al. under preventive suspension pending investigation. By Order datedFebruary 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case, the 2004 elections having mooted the case. The parties were thereupon directed to submit their respective verified position

Page

26

papers to which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005. Meanwhile, in response to the subpoena duces

Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court.

compliance with the required showing of competent proof of identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008,
[11]

later

granted

their

motion

for

reconsideration with motion to admit appeal (Motion with tecum issued by the Office of the Ombudsman on February 18, Appeal) that was filed on February 18, 2008 or the last day of 2005 requiring the regional officer of the COA to submit the post-audit report on the projects, Celerino Alviar, COA State against Auditor II claimed by Affidavit of May 23, 2005 that the required dismissal. The verification portion of the petition does not carry documents were among those razed by fire on April 14, 2004 a certification against forum shopping. that hit the Office of the Municipal Accountant where they were temporarily stored due to lack of space at the Provincial Auditors Office. The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against forum shopping. A defective verification shall be treated On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty, for which they were meted the penalty of suspension from shopping shall be cause for dismissal without prejudice, unless office for a maximum period of six months with a stern warning otherwise provided, and is not curable by amendment of the against a similar repetition. It also approved on November 2, 2006 the March 27, 2006 Order denying the motion for reconsideration. Petitioners disregard of the rules was not the first. Their motion for extension of time to file petition was previously denied by Resolution of January 15, 2008
[10] [7] [8]

For non-compliance with the rule on certification forum shopping, the petition merits outright

filing within the extended period.

Moreover, in their Manifestation/Motion later, petitioners prayed only for the

[12]

filed a day of

admission

nine additional copies of the Motion with Appeal due to honest inadvertence in earlier filing an insufficient number of copies. Petitioners were less than candid when they

surreptitiously submitted a Motion with Appeal which is different from the first set they had submitted. The second set of Appeal includes specific Assignment of Errors already shopping
[14] [13]

as an unsigned pleading and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum

and

contains

certification

against

forum

embedded in the Verification. The two different

Verifications were notarized by the same notary public and bear the same date and document number.
[15]

initiatory pleading.

[9]

The rectified

verification with certification, however, was filed beyond the reglementary period.

Page

27

for non-

Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation

[16]

to cover coterminous appointive officials who

were administratively charged along with the reelected official/appointing authority with infractions allegedly

committed during their preceding term.

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of [19] the people. (underscoring supplied)

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a Senator and a Member of the House of Representatives.
[27]

Salalima v. Guingona, Jr. Mojica

[29]

[28]

and Mayor Garcia v. Hon.

reinforced the doctrine. The condonation rule was

applied even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred four days before the elections,

The Court rejects petitioners thesis.

Lizares

v.

Hechanova,

et

al.

[20]

replicated

the

respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public officials

doctrine. The Court dismissed the petition in that case for being moot, the therein petitioner having been duly reelected, is no More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija
[17]

longer amenable to administrative sanctions.

[21]

issued the landmark ruling culpability was committed prior to the date of reelection.

that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that *t+he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor.
[18]

Ingco v. Sanchez, et al.

[22]

clarified that the condonation

[23]

doctrine does not apply to a criminal case. Provincial Villaluz,

[25]

Luciano v. The v. Judge Petitioners theory is not novel.

Governor,

et

al.,

[24]

Olivarez

and Aguinaldo v. Santos

[26]

echoed the qualified rule

that reelection of a public official does not bar prosecution for crimes committed by him prior thereto. A parallel question was involved in Civil Service Commission v. Sojor
[30]

28

Page

where the Court found no basis to broaden the scope

of the doctrine of condonation:

In Lastly, We do not agree with respondents contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex, the reelection of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR reappointed respondent Sojor to the post of [31] university president. (emphasis and underscoring supplied) Elections,

the
[32]

recent

case

of Quinto

v.

Commission

on

the Court applied the four-fold test in an equal

[33]

authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

protection challenge

against the resign-to-run provision, xxxx An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)

wherein it discussed the material and substantive distinctions between elective and appointive officials that could well apply to the doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing

The

electorates

condonation

of

the

previous

administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees.

Contrary to petitioners asseveration, the non-application of the condonation doctrine to appointive officials does not violate the right to equal protection of the law.

Page

29

It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every probable appointee of the elective official ahead of the latters actual reelection.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts.
[34]

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides failed to uphold the law and provide a sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of adequate facilities when he advised [the mayor] to proceed with the construction of the subject projects without prior competitive bidding.
[38]

As a rule,

the Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the province of the Court.

As pointed out by the Office of the

Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice, Moreover, as correctly observed by respondents, the lack when by law he is precisely tasked to advise the mayor on matters related to upholding the rule of law.
[39]

Moreover,

the

unwarranted

expansion

of

of conspiracy cannot be appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes intentional. can hardly be conspiracy to commit negligence.
[36] [35]

Indeed, a legal

the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the

officer who renders a legal opinion on a course of action without any legal basis becomes no different from a lay person who may approve the same because it appears justified.

There

Simple neglect of duty is defined as the failure to give bureaucracy. proper attention to a task expected from an employee resulting from either carelessness or indifference. Asserting want of conspiracy, petitioners implore this them, for failing to exercise due care and prudence in Court to sift through the evidence and re-assess the factual ascertaining the legal requirements and fiscal soundness of the findings. This the Court cannot do, for being improper and projects before stamping their imprimatur and giving their immaterial. advice to their superior.
[37]

In the present case,

As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the mayor and prior advice by the municipal legal officer did not relieve her of liability for willingly cooperating rather than registering her written objection
[40]

petitioners fell short of the reasonable diligence required of

as municipal budget officer.

Page

30

Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held that the funding for the projects should have been taken from the capital outlays that refer to the appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of the local government unit. It added that current operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the conduct of normal local government operations within the fiscal year.
[41]

of six months, the Court finds the imposition of suspension without pay for three months justified.

are AFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araa, are suspended from office for three (3) months without pay.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and attention which careful persons use in the management of their affairs.
[43]

SO ORDERED.

EN BANC

JOSE C. MIRANDA, Petitioner,

[42]

G.R. NO. 154098 Pr esent:

In Office of the Ombudsman v. Tongson,

the Court

Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, JR., in his capacity as Secretary of the DILG, and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela, Respondents. PANGANIB AN, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, * CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ. - versus PUNO, DAVIDE, JR., C.J.,

reminded the therein respondents, who were guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with the requirements provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one

utmost responsibility, integrity, loyalty and efficiency.

[44]

31

day to six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty the WHEREFORE, the assailed Decision and Resolution of Court of Appeals in CA-G.R. SP No. 96889

Page

Promulgated: July 27, 2005 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --x

Miranda committed the following acts on 24 November 1997 despite the continuing effectivity of the Ombudsmans preventive suspension order: (a) issued a memorandum

faith. He contended that under Section 63(b) of the Local Government Code, local elective officials could not be preventively suspended for a period beyond 60 days. He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied with the same.
[10] [9]

[8]

DECISION

addressed to Navarro advising her that he was assuming his position as City Mayor; (b) gave directives to the heads of offices and other employees; (c) issued Office Order No. 11[4] [3]

PUNO, J.:

First, the facts.

021 which authorized certain persons to start work; and (d) insisted on performing the functions and duties of Mayor despite Navarrros requests to desist from doing so without a valid court order and in spite of the order of Department of

[5]

Notably, Mayor Mirandas counter-affidavit

The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312. In
[2] [1]

also stated that he left the mayoralty post after coercion by the Philippine National Police.
[11]

On 28 October 1998, the Ombudsman filed with the Interior and Local Government (DILG) Undersecretary Manuel Sandiganbayan an Information against Mayor Miranda for Sanchez directing him to cease from reassuming the violation of Article 177 of the RPC, penalizing usurpation of position. Vice Mayor Navarro contended that Mayor Miranda authority. On 20 November 1998, the Sandiganbayan ordered committed the felony of usurpation of authority or official the Office of Special Prosecutor to conduct a reinvestigation of functions under Article 177 of the Revised Penal Code (RPC).
[7] [6]

the case in light of the manifestations made by prosecution and In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good defense counsel.
[12]

32

After reinvestigation, Special Prosecution

Page

the said Complaint, Vice Mayor Navarro alleged that Mayor

Officer Rodrigo V. Coquia (Coquia) recommended the dismissal

of the case in a Resolution dated 14 September 2000.

[13]

Coquia

prosecution

filed
[19]

an

amended

Information

with

the

deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious

held that Miranda reassumed his office in good faith and on mistake of fact due to the difficult questions of law involved.
[14]

Sandiganbayan, plea.
[20]

to which the petitioner interposed a negative

On 28 November 2001, the prosecution filed before the advantage is taken of another. Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquias resolution to the Ombudsmans Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquias findings and recommended the filing of the case against Mayor Miranda.
[15] [24]

It further ruled that Mirandas

Sandiganbayan a motion to suspend Mayor Miranda pendente act fell within the catch-all provision x x x or for any offense lite based on Section 13 of Republic Act No. 3019 (R.A. No. involving fraud upon government. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.
[21] [25]

Mirandas motion for

reconsideration was denied in the Sandiganbayans Resolution Miranda opposed the motion on the ground that the dated 17 June 2002.
[26]

Hence, the present petition assailing the

He pointed out that Mayor

offense of usurpation of authority or official functions under Sandiganbayans orders of preventive suspension. The petitioner Article 177 of the RPC is not embraced by Section 13 of R.A. No. contends that the Sandiganbayan gravely abused its discretion 3019 which only contemplates offenses enumerated under R.A. when it preventively suspended him on a ground not authorized No. 3019, Title VII, Book II of the RPC or which involve fraud upon government or public funds or property.
[22]

Mirandas invocation of good faith was belied by the fact that he received a memorandum from the DILG informing him that his view of the preventive suspension period was untenable and that he should serve out its remaining period.
[16]

by law and raises the following issues: (1) whether Section 13 of R.A. No. 3019 applies only to fraudulent acts involving public

He further

noted that Miranda violated the orders of both the Ombudsman In and the DILG.
[17]

Resolution

dated

February

2002,

the

funds or property; and (2) whether the crime of usurpation of authority or official functions involves fraud upon government or public funds or property found in Section 13 of R.A. No. 3019.

Ombudsman Desierto adopted the Chief Legal Sandiganbayan preventively suspended Mayor Miranda from
[18]

33

Counsels recommendation,

and the case was re-raffled to office for 90 days.

[23]

The anti-graft court held that a violation of

Page

Special Prosecution Officer Evelyn T. Lucero. Subsequently, the Article 177 of the RPC involves fraud which in a general sense is

We rule in the negative.

public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019 evinces any legislative intent

Second. We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled that petitioners act fell within the catch-all provision x x x or for any offense involving fraud upon government. The term fraud is defined, viz.: An instance or an act of trickery or deceit esp. when involving misrepresentation: [27] an act of deluding

First. provides:

Section 13 of R.A. No. 3019, as amended, to limit Section 13 only to acts involving fraud on public funds or

Section 13. Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government.

property. The phrase any offense involving fraud upon government or public funds or property is clear and categorical. To limit the use of government as an adjective that qualifies funds is baseless. The word public precedes funds and distinguishes the same from private funds. To qualify further public funds as government funds, as petitioner claims is the laws intent, is plainly superfluous. We are bound by the rule that a statute should be construed reasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope and object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act, should be read to protect the State from fraud by its own

It is obvious to the eyes that the phrase fraud upon government means any instance or act of trickery or deceit against the government. It cannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the preceding phrase any offense involving . . . public funds or property. It ought to follow that fraud upon government was committed when the petitioner allegedly assumed the duties and performed acts pertaining to the Office of the Mayor under pretense of official position.

The Sandiganbayan properly construed Section 13 of

officials.

34
Page

R.A. No. 3019 as covering two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving

The dissent opines that fraud upon government is not necessarily an essential element of the crime of usurpation of authority. The submission may be correct as a general proposition but general propositions hardly decide a case. In the case at bar, the issue is whether the alleged acts of usurpation of authority committed by the petitioner involve fraud upon government or public funds or property as the term is understood under Section 13 of R.A. No. 3019. In ruling in the affirmative, the Sandiganbayan held: Let us take a look at the acts complained of as alleged in the Amended Information dated July 27, 2001: x x x the abovenamed accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension did then and there, willfully, unlawfully and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the City Government and perform acts pertaining to an

office to which he knowingly was deprived of. Moreover, in private complainant Amelita S. Navarros Affidavit of Complaint dated November 26, 1997, she said: x x x, he proceeded to his office and started giving directives to the various heads of office and other employees, the unexpected acts of respondents had caused serious disruptions in the day to day affairs of the city government. Accuseds acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to a clear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, suffered confusion as to who is the head of the Office. This actuation of herein accused constitutes fraud which in general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the catchall provision x x x or for any offense involving fraud upon government x x x. Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of cases is that x x x under Section 13 of the Anti-Graft and Corrupt Practices Law, the suspension of a public officer is mandatory after a determination has been made of the validity of the Information x x x. In fact, as early as 1984 in the case of Bayot v. Sandiganbayan, 128 SCRA 383, the

Honorable Supreme Court speaking thru Justice Relova said: Once the information is found to be sufficient in form and substance, then the Court must issue the order of suspension as a matter of course. There are no ifs and buts about it. x x x After a perusal of the amended information herein, it clearly appeared that the same was apparently valid for it conforms to the requirements laid down under Section 6[,] Rule 110 of the Rules of Court. In fact, accused herein interposed a negative plea thereto thereby tacitly acquiescing to the validity of the said Information. There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in its Motion to Suspend AccusedPende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said prayer should be [28] accorded affirmative relief. (Citations omitted)

In denying petitioners Motion for Reconsideration, the Sandiganbayan further held: Accused in his motion substantially alleged that Article 177 (Usurpation of Authority and Official Function) of the Revised Penal Code, which is the charge against herein accused, does not fall under the catchall provision of Section 13 of Republic Act No.

Page

35

3019 x x x or for any offense involving fraud upon government or public funds or property x x x. He said that the acts complained of as alleged in the Information do not constitute fraud upon government or public fund or property. Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending accused pendente lite. The accused argued that the fraud contemplated in the law is one involving (1) government funds or property; and (2) public funds or property. This is precisely availing in the case at bar. The Information in herein case, says: x x x accused x x x assume the duties and functions of the Office of the Mayor, issue directives and memoranda and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived of. When accused-mayor appointed persons in various positions, he indirectly dealt with the citys funds as those persons appointed will be given their respective salaries, benefits and other monetary consideration which will be paid wholly or mainly out of the citys funds. Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.[,]approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly dealt with the funds of the city. Moreover, as the prosecution said, when accused Miranda, willfully and knowingly, during the effectivity of his suspension barged into the City Hall, issued orders and directives and performed functions as City Mayor, he was sending the unwritten

yet visible message that he was authorized to do and function as such. x x x. We hold this as a fraud upon government resulting in the chaos or confusion albeit temporary, as the employees would be in a quandary whom to follow or obey. Hence, considering that the charge herein evidently falls within the compass of the suspension provision invoked by the prosecution, there is no cogent reason for this Court to depart from its previous ruling. Further, considering the mandatory tenor of Section 13[,] Republic Act No. 3019, the motion for reconsideration is hereby denied. Accordingly, the Motion for [29] Reconsideration is denied for lack of merit.

The dissenting opinion, however, says there was no fraud. It holds that it would be fraud of public funds if these public officials just collected their salaries without rendering service to the government. It further asserts that fraud upon government must be read so as to require that malversation of funds was committed.
[31]

This is acomplete volte face from its

claim that Section 13 of R.A. No. 3019 covers two types of offenses: (1) any offense involving fraud upon the government; and (2) any offense involving public funds or property.
[32]

What is

This Court finds no reason to disagree with the more, adopting the dissenting opinions line of reasoning would Sandiganbayan. Its conclusions are amply supported by the render superfluous the phrase fraud upon government as record. Additionally, the issue of whether petitioner committed malversation is subsumed by any offense involving public funds fraud upon the government or public funds or property is or property. essentially factual. In a special civil action for certiorari, the only question that may be raised is whether or not the respondent acted without or in excess of jurisdiction or with grave abuse of discretion. The Court cannot correct errors of fact or law which do not amount to grave abuse of discretion.
[30]

Third. We are not a bit persuaded by the posture of the petitioner that he reassumed office under an honest belief that he was no longer under preventive

Page

36

suspension.Petitioners

pretense
[33]

cannot

stand

happen to me and any constituents; x x [34] x. (Emphases supplied)

scrutiny. Petitioners own affidavit states: 8. That on November 24, 1997, at that time, (sic) I had already served my single preventive suspension for a total number of ONE HUNDRED TWENTY (120) days more or less counted from July 24, 1997, which far exceeds the allowable period of 60 days as maximum preventive suspension, for a single suspension for a local elective official like me as provided for under the Local Government Code of 1991 (sic) on the same date, November 24, 1997 in good faith and upon the advise (sic) of my lawyers, I notified both the Ombudsman and DILG of my intention to assume my office as the duly elected City Mayor of Santiago City; 9. That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City; surprisingly on the same date, November 24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desist from my plan to reassume the functions and duties of my office; 10. For less than a week, after November 24, 1997 Vice-Mayor AMELITA NAVARRO relentlessly harassed and threatened me and my constituents with bodily harm using the strong arm of the law thru the brute force of the PNP courteousy (sic) of Undersecretary Manuel R. Sanchez I was constrained to ceased (sic) from performing my duties and functions to avoid any possible unfortunate incident that may

By petitioners own admission, he refused to leave his position despite the memorandum of Undersecretary Sanchez and left only a few days after receipt thereof due to the coercion of the Philippine National Police. This contradicts his assertion that he immediately complied with the memorandum of Undersecretary Sanchez. own admission.
[35]

Petitioner cannot escape from his

Whereupon the Vice-Mayor sent a telegram to the Executive Secretary informing the latter of the controversy. And the said Secretary replied by letter, that under sec. 2195 of the Revised Administrative Code it was the ViceMayor who should discharge the duties of the Mayor during the latters temporary absence. Shown this official pronouncement, Hilvano still refused to surrender the position. Again the Vice-Mayor sought the opinion of the Provincial Fiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the right to the office. Notwithstanding such opinion which was exhibited to him Hilvano declined to vacate the post, which he held for about a month, appointing some policemen, solemnizing marriages and collecting the corresponding salary for mayor. Wherefore Francisco Hilvano was prosecuted and after trial was convicted of usurpation of public authority under Republic Act No. 10. He appealed in due time.

To be sure, petitioners honest belief defense is old hat. In the 1956 case of People v. Hilvano, the facts are: When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in the morning of September 22, 1952, he designated the herein defendant Francisco Hilvano, councilor, to discharge the duties of his office. Later, during office hours on that same day, Vice-Mayor Juan Latorre went to the municipal building; and having found Hilvano acting in the place of the Mayor, he served written notices to the corresponding municipal officers, including Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However, Hilvano refused to yield, arguing that he had been designated by the Mayor.
[36] [37]

In rejecting the defense of the accused Hilvano, we

ruled:

There is no excuse for defendantappellant. In the beginning he might have pleaded good faith, invoking the designation by the Mayor; but after he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly to stick to the position. He was rightfully convicted.

Page

37

Petitioners excuse for violating the order of preventive suspension is too flimsy to merit even a side-glance. He alleged that he merely followed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule of law, they should have assailed the validity of the order of suspension in court instead of taking the law into their own hands.

With due respect, the dissent is way off-line. The records will show that petitioner did not file a motion to quash the information or a motion for bill of particulars before pleading to the information. It is basic that entering a plea waives any objection the petitioner may have to the validity of the information except on the following grounds: (1) the information charges no offense; (2) the trial court has no

the accusation against him. Worse, it is improper for the dissenting opinion to raise this issue motu proprio. Under our Rules of Court, it is the petitionerwho should raise this objection in a motion to quash or motion for bill of particulars before entering his plea. dissent would
[41]

The irregular procedure followed by the the pernicious practice of

encourage

sandbagging where counsel foregoes raising a pleading defect before trial where it can be easily corrected only to raise the defect later in the hope of obtaining an arrest of judgment or new trial from a sympathetic magistrate.
[42]

Fourth.

It should be stressed that petitioner jurisdiction over the offense charged; (3) the penalty or the

was suspended by the Sandiganbayan. Under Section 13 of R.A. offense has been extinguished; and (4) double jeopardy has No. 3019, this suspension is mandatory if the information is attached. sufficient. Understandably, the dissent argues that the the Amended Information do not fall among the exceptions to Amended Information is insufficient in form as it should have the rule. They fall under the objection that the information expressly and clearly stated that Miranda re-assumed office to does defraud the government or that in re-assuming office Miranda committed acts that defrauded the government
[38] [39]

Objections to the sufficiency of the allegations in

It is precisely this

evil that is addressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure.

not
[40]

conform

substantially

to

the

prescribed Even assuming for the nonce, that the objection to the

form. and that it is

Needless to state, the petitioner has by his acts sufficiency of the information was raised in a timely fashion by

acquiesced to the validity and sufficiency of the Amended improper to take into account the petitioners admissions in his Information. It is, thus, incorrect for the dissenting opinion to the petitioner, the dissenting opinions arguments still do not convince. The validity or sufficiency of allegations in an peddle the proposition that the petitioner has been deprived of his constitutional right to be apprised of the nature and cause of

Page

38

affidavit for this purpose.

information is determined according to the provisions of Section 9 of the Revised Rules of Criminal Procedure, viz: SECTION 9. Cause of the Accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances [43] and for the court to pronounce judgment.

function of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to an office to which he knowingly was deprived [45] of.

elective officials for 6 months is limited by Section 63(b) of the Local Government Code. Under the latter law, petitioner can only be suspended for a maximum period of 60 days. It then jumps to the conclusion that petitioner could not have usurped

Using this test, it cannot be said that the Amended authority because he reassumed office after 60 days. Information failed to properly apprise the petitioner of the charge against him. The information charged the petitioner with assuming the duties and performing acts pertaining to the office

[46]

With due respect, the dissent fails to focus on the proper issue. The issue before this Court is whether the Sandiganbayan committed a grave abuse of discretion in suspending the petitioner for 90 days. The validity of the Ombudsmans order of preventive suspension of the petitioner for 6 months is not the one assailed in the case at bar. The irrelevance of the suspension order of the Ombudsman notwithstanding, the reliance of the dissenting opinion on Garcia v. Mojica is inapropos. In Garcia, we held: Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that the imposition of the maximum period of six months is unwarranted.

The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. The raison detre of the rule is to enable the accused to suitably prepare his defense.
[44]

of Mayor willfully, unlawfully and knowingly under the pretense of official position. Moreover, it states some of the specific acts which constitute usurpation of official functions, namely, issuing directives and memoranda and appointing certain persons to various positions in the city government. These allegations are clear enough for a layman to understand. Indeed, even the petitioner does not complain about their ambiguity. Only the dissent does.

A perusal of the Amended Information will bear out

Page

that it has hurdled this legal bar. We quote its contents: That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then and there, willfully, unlawfully, and knowingly and under pretense of official position, assume the duties and

39

Fifth. The dissenting opinion also contends that the Ombudsmans authority to preventively suspend local

On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents' comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were obtained after petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If the purpose of the preventive suspension was to enable the investigating authority to gather documents without intervention from petitioner, then, from respondents' submission, we can only conclude that this purpose was already achieved, during the nearly month-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is already strong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive and definitely longer than necessary for the Ombudsman to make its legitimate case against petitioner. We must conclude that the period during which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents, or harassing and preventing witnesses who wish to appear against him. We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local Government Code, which he averred should apply to this case of an elective local official, has been violated. True, under said Code, preventive suspension may only be imposed after the issues are joined, and only for a maximum

period of sixty days. Here, petitioner was suspended without having had the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But as respondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan political considerations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarly motivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuse of discretion in a specific case of preventive [47] suspension. (Emphases supplied)

admitted that the documents required were already obtained by 19 July 1999 or 24 days after the imposition of the preventive suspension. Therefore, the purpose for which the suspension was imposed was already served.

The dissenting opinion also cites the case of Rios v. Sandiganbayan

[48]

as basis for assailing the Ombudsmans order

of preventive suspension. Rios is neither here nor there since the powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. It is also worth noting that Rios cited Section 63 of the Local Government Code as its legal basis. This

Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to the Ombudsman. In fact,

provision provides: SECTION 63. Preventive Suspension. (a) Preventive suspension may be imposed: (1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city; By the governor, if the respondent is an elective official of a component city or municipality; or

the Court expressly stated that its decision was rendered without subscribing to the petitioners claim that the Local Government Code had been violated. In fine, the Court only ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6-month preventive suspension since it was

(2)

Page

40

(3)

By the mayor, if the respondent is an elective official of the barangay. It is plain that the provision was only meant as a cap on the discretionary power of the President, governor and mayor to impose excessively long preventive suspensions. The

(b)

(c)

Page

Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension. Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formally notified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than the appeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case.

Ombudsman is not mentioned in the said provision and was not meant to be governed thereby. Indeed, the reason is not hard to distill. The President, governor and mayor are political personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office which is protected by no less than the Constitution. This view was embraced by the Court in Hagad v. Gozo-Dadole Mojica.
[50] [49]

under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of [51] the records and other evidence.

and Garcia v.

In the same vein, we made the following observations in Garcia, viz.: Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President's office. In contrast the Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the

In Hagad, we held: Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official

41

vagaries of politics, as respondents would have us believe. x x x It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too repugnant" to the 60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions govern [52] differently." (Emphases supplied)

There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It bears emphasis that Senator Pimentel
[53]

to adopt a more stringent rule regarding the power of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60 days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a local government official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr. President. The President. Can that be done under this new Code? Senator Pimentel. Under our proposal, that can no longer be done, Mr. [55] President.

6770,

[57]

otherwise known as The Ombudsman Act of 1989,

which provides: SECTION 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of [58] suspension herein provided. (Emphasis supplied)

explained

during

the

Senate

deliberations that the purpose of Section 63 of the Code is to prevent the abuse of the power of preventive suspension by members of the executive branch, to wit: [54] The President. I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him - Senator Pimentel. That is true, Mr. President. The President. - - contending that under the new Constitution, even the President does not have that right. Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready

Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government.
[56]

The six-month period of preventive suspension imposed by the Ombudsman

[59]

The Ombudsmans

was indubitably within the limit provided by its

42

power of preventive suspension is governed by Republic Act No.

enabling law. This enabling law has not been modified by the legislature.

Page

The dissenting opinion submits that providing for a sixmonth limit for the Ombudsman while keeping the limit for executive officials at sixty days violates the constitutional proscription against equal protection of the law. In essence, it avers that there is no substantial distinction between preventive

dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office

February 2002, preventively suspending the petitioner for 90 days.

SO ORDERED. may prejudice the case filed against him.

[64]

The dissenting opinion finally points out the possibility suspensions handed down by the Ombudsman and those of abuse by the Ombudsman in imposing preventive imposed by executive officials. On the contrary, there is a world suspensions. The short reply is that all powers are susceptible of of difference between them. The Constitution has endowed the abuse but that is no reason to strike down the grant of power. Ombudsman with unique safeguards to ensure immunity from Suffice it to say that the proper remedies against abuse in the political pressure. Among these statutory protections are fiscal exercise of power are a petition for certiorari under Rule 65 of autonomy,
[60]

Republic SUPREME Manila FIRST DIVISION G.R. No. 169241

of

the

Philippines COURT

May 2, 2006

OFFICE OF THE OMBUDSMAN, Petitioner, vs. PENDATUN G. LAJA and the COURT OF APPEALS, Respondents.

fixed term of office

[62]

[61]

and classification as an the 1997 Rules of Civil Procedure or amendment of the

DECISION YNARES-SANTIAGO, J.:

impeachable officer.

This much was recognized by this Court Ombudsmans enabling law by the legislature, not a
[63]

in the earlier cited case of Garcia v. Mojica.

Moreover, there contortionist statutory interpretation by this Court.

are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is IN VIEW WHEREOF, the instant petition

is DISMISSED there being no showing that the Sandiganbayan gravely abused its discretion in issuing its Resolution of 4

strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves

Page

This petition for certiorari under Rule 65 of the Rules of Court 1 assails the May 12, 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 00101-MIN which granted respondent Pendatun G. Lajas prayer for the issuance of the writ of preliminary injunction conditioned upon the posting of the requisite bond, 2 as well as the June 24, 2005 Resolution which issued a writ of preliminary injunction enjoining the Office of the Solicitor General, Mindanao, from enforcing the April 15, 2004 Joint 3 4 Decision and the September 27, 2004 Joint Order of the Office of the Ombudsman, Mindanao, in Case Nos. OMB-M-A-02-306-K and OMB-M-A-02-312-L. The Joint Decision and Joint Order of the Office of the Ombudsman, Mindanao, ordered the dismissal

43

from service of respondent Laja for dishonesty, neglect of duty and grave misconduct. The facts of the case are undisputed. On November 18, 2002 an administrative complaint for 5 Misconduct and Neglect of Duty was filed by the employees of the Provincial Government of Tawi-Tawi against respondent Laja, in his capacity as Provincial Treasurer, in connection with the non-remittance of their contributions to the Government Service Insurance System (GSIS) for the years 1998 to 2001 which resulted in the denial of their loan applications. Thereafter, on November 29, 2002, a similar administrative 6 complaint for Dishonesty, Oppression and Violation of Republic Act (R.A.) No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, was filed by former employees of the Provincial Government of Tawi-Tawi against said respondent in connection with the non-remittance of their GSIS contributions which resulted in the deduction of the corresponding amounts from their retirement benefits.1avvphil.net These two cases were subsequently consolidated and submitted for resolution.1avvphil.net The Office of the Ombudsman for Mindanao proceeded to hear both cases and in a Joint Decision dated April 15, 2004 disposed of the cases, thus: WHEREFORE, WITH THE FOREGOING PREMISES CONSIDERED, this Office finds respondent PENDATUN G. LAJA, Provincial Treasurer of Tawi-Tawi and currently Officer-In-Charge of Office of the Assistant Regional Director of the Bureau of Local Government Finance-Legaspi City, GUILTY of the administrative charges of DISHONESTY, NEGLECT OF DUTY and GRAVE MISCONDUCT pursuant to the Revised Administrative Code and Section 52, paragraph (A), sub-paragraph (1, 2 and 3) of the Uniform Rules on Administrative Cases in the Civil Service. The subject offenses being all classified as grave, respondent Laja is consequently meted the penalty of DISMISSAL FROM SERVICE, with the accessory penalties of perpetual disqualification to hold public office and cancellation of civil service eligibility, effective upon the finality of this Decision.

SO DECREED.

Preliminary Injunction and/or Extend the Lifetime of the 13 Temporary Restraining Order.
8

Respondent filed a motion for reconsideration which was denied in a Joint Order dated September 27, 2004. Thus, he filed a Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary 9 Injunction with the Court of Appeals where the same was docketed as CA-G.R. SP No. 00101-MIN. On March 8, 2005, the appellate court issued a Temporary Restraining Order for a period of 60 days enjoining the enforcement of the Joint Decision and required petitioner to file a comment and to show cause why a writ of preliminary injunction should not issue. On March 18, 2005, petitioner endorsed the foregoing resolution of the appellate court to the Office of the Solicitor General (OSG) for appropriate action. Thereafter, the OSG filed an Entry of Appearance with Motion to Defer Filing of 10 Comment pending receipt of the petition and its accompanying documents. Upon receipt of the petition, the OSG filed a Manifestation and 11 Motion dated May 16, 2005 praying that it be excused from further participation in the case on the ground that under Section 5, Rule 65 of the Rules of Court, it is the private respondents who are tasked to defend the validity of the proceedings below as well as the challenged Joint Decision dated April 15, 2004 and Joint Order dated September 27, 2004. On April 4, 2005, counsel for private respondents in CA-G.R. SP 12 No. 00101-MIN filed a Comment praying for the dismissal of the petition on the ground of forum shopping, pointing out that Laja appealed the Joint Decision to this Court by way of a petition under Rule 45 of the Rules of Court which was denied in a Resolution dated January 12, 2005 and a motion for reconsideration thereof is still pending. Due to the impending expiration of the 60-day temporary restraining order issued by the appellate court, Laja filed a Motion To Resolve the Prayer for the Issuance of a Writ of

On May 12, 2005, the appellate court issued a Resolution granting the issuance of a writ of preliminary injunction on the condition that a bond of P500,000.00 Pesos be posted within five days from receipt. Upon posting of the requisite bond, the Court of Appeals issued on June 24, 2005 a Resolution issuing a writ of preliminary injunction enjoining the Office of the Solicitor General from enforcing the Joint Decision and Joint Order of the Office of the Ombudsman. Prefatorily, respondent Laja raises procedural objections on the propriety of this proceeding pointing out that no motion for reconsideration was filed by petitioner before elevating its cause to this Court and that the petition is tardily filed. Concededly, the settled rule is that a motion for reconsideration is a condition sine qua non for the filing of a petition for certiorari. Its purpose is to grant an opportunity for the court to correct any actual or perceived error attributed to it by the reexamination of the legal and factual circumstances of the 14 case. The rule is, however, circumscribed by well-defined exceptions such as where the order is a patent nullity, as where the court a quo had no jurisdiction; where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; where, under the circumstances, a motion for reconsideration would be useless; where petitioner was deprived of due process and there is extreme urgency for relief; where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; where the proceedings in the lower court are a nullity for lack of due process; where the proceedings were ex parte or in which the petitioner had no opportunity to object; and where the issue 15 raised is one purely of law or where public interest is involved.

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Furthermore, as is oft said the provisions of the Rules of Court should be applied with reason and liberality to promote its objective of securing a just, speedy and inexpensive disposition of every action and proceeding. Rules of procedure are used to help secure and not override substantial justice. Thus, the dismissal of an appeal on a purely technical ground is frowned 16 upon especially if it will result in unfairness. In accordance with this policy, appeals tardily filed were allowed 17 by the Court in a plethora of cases. Prescinding, therefore, from the foregoing, the technical objections raised by the respondent will be disregarded by the Court to get at the substantive issues raised by both parties, consistent with this Courts inherent power to suspend the application of procedural rules when warranted, in relation to the dictum that all controversies should be resolved on their merits. The primordial question posed is whether the Court of Appeals may enjoin petitioner from enforcing its judgment in an administrative case ordering respondents dismissal from the service pending the final resolution of respondents appeal from said verdict before the appellate tribunal. The crux of the controversy is the effectivity or binding effect of the challenged Joint Decision. Petitioner insists that the issuance of the injunctive writ is improper because respondent does not have a vested right to hold public office and that decisions imposing administrative sanctions in administrative disciplinary cases are executory pending appeal. Respondent, on the other hand, contends that petitioners authority and jurisdiction to order his dismissal is merely recommendatory under the Constitution. On the question of whether the assailed judgment dismissing respondent Laja from the service is executory pending appeal, 18 we held in Lopez v. Court of Appeals that:

final and unappealable hence, immediately executory. In all other disciplinary cases where the penalty imposed is other than public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary, the law gives the respondent the right to appeal. In these cases, the order, directive or decision becomes final and executory only after the lapse of the period to appeal if no appeal is perfected, or after the denial of the appeal from the said order, directive or decision. It is only then that execution shall perforce issue as a matter of right. The fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would 19 be rendered nugatory. [Emphasis added] Thus, the order imposing the penalty of dismissal from the service of the respondent is not immediately executory. An appeal timely filed will stay the immediate implementation of 20 the decision. Regarding respondent Lajas argument that the Ombudsmans administrative decisions are merely recommendatory, we held 21 in Ledesma v. Court of Appeals, that the Ombudsmans order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is not merely advisory or recommendatory but is actually mandatory, thus: We note that the proviso above qualifies the "order" "to remove, suspend, denote, fine, censure, or prosecute" an officer or employee akin to the questioned issuances in the case at bar. That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsmans "recommendation" is not merely advisory in nature but is actually mandatory within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense

charged. By stating therefore that the Ombudsman "recommends" the action to be taken against an erring officer or employee, the provisions in the Constitution and RA 6770 intended that the implementation of the order be coursed 22 through the proper officer, x x x. [Emphasis added] All told, we sustain the grant of injunctive relief by the appellate court. The order dismissing an employee from the service, as in this case, is not immediately executory considering the pendency of the appeal. The Joint Decision dated April 15, 2004 becomes final and executory only after the denial of the appeal from said Joint Decision. It is only then that execution shall perforce issue as a matter of right. WHEREFORE, in view of all the foregoing, the challenged Resolutions of the Court of Appeals dated May 12, 2005 and June 24, 2005 in CA-G.R. SP No. 00101-MIN are AFFIRMED and the instant petition is DISMISSED. SO ORDERED. CONSUELO Associate Justice WE CONCUR: YNARES-SANTIAGO

EN BANC

LIBERATO M. CARABEO, Petitioner,

G.R. Nos. 178000 and 178003 Present:

- versus -

[O]nly orders, directives or decisions of the Office of the Ombudsman in administrative cases imposing the penalty of public censure, reprimand, or suspension of not more than one month, or a fine not equivalent to one month salary shall be

COURT OF APPEALS, OMBUDSMAN SIMEON B. MARCELO, ASSISTANT OMBUDSMAN PAMO PELAGIO

PUNO, C.J., CARPIO, CORONA, CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR., NACHURA,

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S. APOSTOL, MARGARITO LEONARDO-DE CASTRO, TEVES, IN HIS CAPACITY AS BRION, SECRETARY OF FINANCE, PERALTA, AND TROY FRANCIS C. BERSAMIN, PIZARRO, JOEL APOLONIO, DEL CASTILLO, REYNALITO L. LAZARO, ABAD, and ISMAEL LEONOR, AND VILLARAMA, JR., JJ. MELCHOR PIOL, IN THEIR CAPACITY AS MEMBERS OF THE PANEL OF INVESTIGATORS OF THE DEPARTMENT OF FINANCE-REVENUE INTEGRITY Promulgated: PROTECTION SERVICE, Respondents. December 4, 2009 x------------------------------------------------ - -x DECISION CARPIO, J.: The Case

On 8 July 2005, the Department of Finance-Revenue Integrity Protection Service (DOF-RIPS), composed of private respondents Troy Francis Pizarro, Joel Apolonio, Reynalito L. Lazaro, Ismael Leonor, and Melchor Piol, filed a complaint with the Office of the Ombudsman against Carabeo, Officer-in-Charge (OIC) of the Office of the Treasurer of Paraaque City. The complaint pertinently alleged: 4. Based on the records we obtained, CARABEO is currently designated by the BLGF as City Treasurer II x x x. In September 1981, CARABEO first occupied the position of Revenue Collection Clerk at the Office of the City Treasurer of Paraaque earning an annual gross salary of Eight Thousand Four Hundred Pesos (P8,400.00). As the present City Treasurer (In-charge of Office) at the City of Paraaque, CARABEO receives an annual gross salary of Two Hundred Ninety One Thousand Thirty Six Pesos (P291,036.00). The net worth of CARABEO, based on his Statements of Assets Liabilities and Net Worth (SALNs), from the time he commenced employment at the Paraaque Treasurers Office in 1981 has ballooned from P114,900.00 to approximately P7.5 Million in the year 2004. Equally noticeable as the drastic increase in his net worth is the steady accumulation of various expensive properties by CARABEO and his spouse ranging from real properties to vehicles to club shares ownership. In the last nine years, CARABEO and/or his spouse was able to purchase numerous real properties, including:

a. 1,000 sq.m. Residential lot in Tagaytay City; b. 1,500 sq.m. Residential lot also in Tagaytay City; c. Townhouse in Cavite; and d. Three separate parcels of land in Laguna.

8.

Also, various expensive vehicles were found to be currently owned by CARABEO and/or his spouse, including the following:

b. c. d. e.

a. Ford F150 Flareside (WMD-126); Mazda Familia (WCL-191); Chevrolet Cassia (WSG-781); Mitsubishi Lancer (XCW-149); Honda CRV (CYN-808). In addition to these vehicles, CARABEO also owned, as of last year, two additional vehicles a Honda City (WLX-553) and a Nissan Sentra (WSG869).

5. This petition for certiorari challenges the Court of Appeals 31 October 2006 Joint Decision
[2] [1]

in CA-G.R.

SP Nos. 91607 and 92313 dismissing Liberato M. Carabeos certiorari petition against [3] respondents, and the 28 March 2007 Resolution denying reconsideration and dismissing the contempt charge against Secretary Margarito Teves (Secretary Teves).

6.

9. However, CARABEO did not declare most of the foregoing vehicles in his SALNs. In his SALN for year 2003, CARABEO claimed that he owns only three vehicles GSR, CITY and CASSIA. In the succeeding year, CARABEO only declared ownership of only one vehicle, a GSR supposed acquired in 2002. 10. The records of the Land Transportation Office however belie this declaration of ownership of only three vehicles and later (in year 2004), of only one vehicle, with the LTO certification that CARABEO and/or his spouse owns at least seven vehicles including the expensive Ford F150 and Honda CRV.

46

The Facts 7.

Page

11. Also, CARABEO and/or his spouse acquired the 1,000 sq.m. Tagaytay property in year 2001 but this substantial property acquisition was not reflected in the SALNs of CARABEO for said year as well as for the subsequent year. 12. CARABEOs failure to disclose his and his spouses ownership of the foregoing Tagaytay property and vehicles in the pertinent SALNs amounts to a violation of Section 7 of RA 3019 and Section 8(A) of RA 6713 requiring him to file under oath the true and detailed statement of his assets as well as those of his spouse. 13. Punctuating the expensive list of purchases CARABEO and/or his spouse is his recent purchase of a share in the very exclusive The Palms Country Club in Alabang, Muntinlupa. An individual share in this premiere country club is currently priced at Seven Hundred Forty Five Thousand Pesos (P745,000.00) and can only be purchased in cash. 14. x x x 15. While CARABEO claims in his SALNs to have investments in various businesses (Diosa Properties, Nalpa Trading, L.M. Carabeo Realty, Romilia Enterprises and Js Appleseed Food Products), the information we gathered on these alleged businesses indicates that these purported investments could not possibly justify the foregoing substantial purchases. xxxx

16. Any anticipated claim to the effect that CARABEOs wife has business undertakings that should explain their acquired wealth cannot also be given credence. Our inquiry with the BIR further showed that CARABEOs spouse, Cynthia, had no tax payments reflected on the Bureaus records, except for a onetime tax payment of approximately three thousand pesos (representing capital gains tax for one transaction). Such information provided by the BIR shows that CARABEOs spouse had no substantial income that can justify the foregoing property acquisitions. 17. It was also discovered in the course of our investigation that, in addition to the foregoing purchases, during the period 1996 to 2004, CARABEO went abroad at least fifteen times (or more than once a [4] year) x x x .

(d) placing Carabeo under preventive suspension pursuant to Section 24 of RA 6770.

[8]

In an Order dated 26 July 2005 in OMB-C-A-05-0333-G (LSC) and OMB-C-C-05-0337-G(LSC), the Office of the Ombudsmans Preliminary Investigation and Administrative Adjudication Bureau-A Acting Director, Corazon DLP. Tanglao[9]

Dacanay (Acting Director Dacanay), directed Secretary Teves to place Carabeo under preventive suspension for a period not to exceed six months without pay. The order likewise directed Carabeo to file his counter-affidavit to the DOF-RIPS complaint within ten days from receipt thereof and gave the DOF-RIPS a similar period to file its reply thereto. On 19 September 2005, Ombudsman Simeon V. Marcelo

The DOF-RIPS prayed that the Office of the Ombudsman issue an order: (a) filing the appropriate criminal informations against Carabeo for violation of Republic Act (RA) Nos. 3019, 6713, and 1379 and the Revised Penal Code; (b) instituting the appropriate administrative cases against Carabeo for the same violations, for dishonesty and grave misconduct; (c) commencing forfeiture proceedings against Carabeos
[5] [6] [7]

(Ombudsman Marcelo), upon the recommendation of Assistant Ombudsman Pelagio S. Apostol (Assistant Ombudsman Apostol), approved Acting Director Dacanays 26 July 2005 Order.
[10]

47

unlawfully acquired properties including those illegally obtained in the names of his spouse, children, relatives and agents; and

Aggrieved, Carabeo filed a petition for certiorari, docketed as CA-G.R. SP No. 91607, against Ombudsman Marcelo, Assistant Ombudsman Apostol, Secretary Teves, and the members of the DOF-RIPS, alleging that grave abuse of discretion amounting to lack or excess of jurisdiction attended the approval of his preventive suspension.

Page

On 18 October 2005, the Court of Appeals issued a 60-day Temporary Restraining Order (TRO) enjoining the enforcement of Carabeos preventive suspension.
[11]

Carabeo moved for reconsideration, which the Court of Appeals denied in its Resolution of 28 March 2007.

On Carabeos contempt charge against Secretary Teves, the Court of Appeals classified it as indirect contempt, since it consisted of disobedience of or resistance to a lawful order of a court, under Section 3, Rule 71 of the Rules of Court. Thus, the contempt charge must be in writing and due process must be observed before the penalty is imposed. In its Resolution of 28 March 2007, the Court of Appeals, aside from denying Carabeos motion for reconsideration, ruled

Meanwhile, on 10 November 2005, Secretary Teves issued Department Special Order No. 4-05 directing the detail of Carabeo to the DOFs Bureau of Local Government Finance at the DOFs Central Office (BLGF-CO). In his stead, Assistant City Treasurer of Makati, Jesusa E. Cuneta, was designated OIC-City Treasurer of Paraaque. Claiming that his detail to the BLGF-CO violated the TRO issued in CA-G.R. SP No. 91607, Carabeo filed another petition before the Court of Appeals, docketed as CA-G.R. SP No. 92313, where he prayed, among others, that Secretary Teves be cited for contempt of court. On 19 December 2005, the Court of Appeals granted Carabeos request that CA-G.R. SP No. 92313 be consolidated with CA-G.R. SP No. 91607 after holding that both petitions involved the same parties or related questions of fact and law and that the later petition for contempt arose out of Secretary Teves alleged violation of the TRO issued in CA-G.R. SP No. 91607. On 31 October 2006, the Court of Appeals rendered a Joint Decision, the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING, the consolidated petitions are hereby DISMISSED. No costs. SO ORDERED.
[12]

The Ruling of the Court of Appeals

In dismissing the petition for certiorari, the Court of Appeals held that a preventive suspension decreed by the Ombudsman by virtue of his authority under Section 21 of RA 6770, in relation to Section 9 of Administrative Order No. 7, is not meant to be a penalty but a means taken to insure the proper and impartial conduct of an investigation, which did not require prior notice and hearing. The Court of Appeals rejected Carabeos contention that he was deprived of due process. Carabeo wrongfully assumed that the Ombudsman did not consider the evidence he presented when the Ombudsman approved Assistant Ombudsman Apostols recommendation to preventively suspend him. Contrary to Carabeos conclusion, however, the order of the Ombudsman to preventively suspend him stemmed from the Ombudsmans review of the factual findings reached by the investigating prosecutor. The Court of Appeals also ruled that there is no need to publish Executive Order No. 259 (EO 259) before it could be given the force and effect of law because it is merely internal in nature regulating only the personnel of the administrative agency and not the public.

that the detail order was in accordance with Section 6 of Rule IV of the Civil Service Rules on Personnel Actions and Policies and CSC Resolution No. 621181 dated 21 September

2002. Therefore, Secretary Teves, in detailing Carabeo to BLGFCO, did not commit contempt of court.

The Issue The issue in this case is whether the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction in (1) ruling that the failure to provide implementing rules of EO 259 does not render the same unenforceable; (2) sustaining the preventive suspension imposed by the Ombudsman on Carabeo; and (3) not consi dering the complaint against Carabeo a violation of Section 10 of RA 6713 which entitles Carabeo to be informed beforehand and to take the necessary corrective action. There is no more dispute on the matter of publication of EO 259 as it was clearly established that it was published in the Official Gazette on 23 February 2004. The Ruling of this Court
[13]

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48

regulations in order to be enforceable. Principally aimed at We dismiss the petition. curbing graft and corruption in the DOF and its attached agencies,
[14]

finds nothing illegal with the lifestyle check as long as the constitutional and statutory rights of the accused are recognized and respected by the DOF-RIPS. II. The preventive suspension order was legal.

I. The question on EO 259s enforceability is immaterial to the validity of the charges against Carabeo.

EO 259 covers only officers and employees engaged

in revenue collection. DOF-RIPS, which was created by virtue of EO 259, acts as the anti-corruption arm of the DOF that investigates allegations of corruption in the DOF and its

Carabeo impugns the validity of EO 259 for lack of implementing rules and regulations. Indeed, EO 259 lacks any implementing guidelines. However, such fact is immaterial and does not affect, in any manner, the validity of the criminal and administrative charges against Carabeo. While the DOF-RIPS derived from EO 259 its power and authority to gather evidence against DOF officials and employees suspected of graft and corruption, the DOF-RIPS need not be vested with such power in order to validly file criminal and administrative charges against Carabeo. In fact, any concerned ordinary citizen can file criminal and administrative charges against any corrupt government official or employee if there exists sufficient evidence of culpability. Hence, the DOF-RIPS, even without EO 259 and whether as subordinates of the Secretary of Finance or as private citizens, can validly file criminal and administrative charges against Carabeo.

attached agencies, then files the necessary charges against erring officials and employees with the proper government agencies.
[15]

Carabeo contends that there must be prior notice and hearing before the Ombudsman may issue a preventive suspension order.

EO 259 expressly provides that the DOF-RIPS has

the function, among others, to gather evidence and file the appropriate criminal, civil or administrative complaints against government officials and employees before the appropriate court of law, administrative body, or agency of The contention is bereft of merit. Settled is the rule that prior notice and hearing are not required in the issuance of a preventive suspension order, such suspension not being a penalty but only a preliminary step in an administrative investigation.
[16]

competent jurisdiction, and to assist the prosecuting agency or officer towards the successful prosecution of such

As held in Nera v. Garcia:

[17]

cases. Simply put, the creation of an internal body in the DOF (RIPS), through EO 259, is but an essential component in the organized and effective collection of evidence against corrupt DOF officials and employees. The so-called lifestyle check pertains to the evidence-gathering process itself because it is through this method that the DOF-RIPS would be able to collect

49

At any rate, the Court finds that EO 259 is basically internal in nature needing no implementing rules and

sufficient evidence to indict a suspected DOF official or employee for graft and corruption. Considering this, the Court

In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an

Page

officer pending his investigation and before the charges against him are heard and be given an opportunity to prove his innocence.

Carabeo also points out that his counter-affidavit and the evidence presented clearly shows that the complaint filed by the DOF-RIPS was baseless. Hence, the preventive suspension order had no leg to stand on.

1,000 square meter residential lot located at Tagaytay City which he failed to disclose in his SALN for 2001 and 2002, respectively. Contrary to the respondents declaration in his SALN for 2003 and 2004 respectively, the LTO-IT System database as of July 7, 2004 issued by Arabele O. Petilla, Chief, Record Section Management Information Division of the Land Transportation Office, x x x disclosed that there are seven motor vehicles registered in his name, x x x As regards the 1,000 square meter residential lot located at Tagaytay City, records from the Office of Engr. Gregorio M. Monreal, City Assessor of Tagaytay disclosed that the same was the subject of a Deed of Absolute Sale between the heirs of Teodoro Ambion and spouses Carabeo dated July 16, 2001. Records show that respondent only included the said property in his SALN in 2003 and 2004, respectively. Second, being the Officer-in-Charge of the Office of the City Treasurers Office of Paraaque, respondent Carabeos continued stay thereat may prejudice the outcome of the instant case, he being the head of that particular office, albeit in an Officer-in-Charge capacity. Third, the evidence of guilt against him is strong. It bears stressing that as the current Officer-in-Charge of the Office of the City Treasurers Office of Paraaque receiving only an annual gross salary ofP291,036.00, it is highly inconceivable how respondent Carabeo could have legally acquired all these real and personal properties. The fact is that complainant has submitted evidence showing that from 1996 to 2004, respondent Carabeo traveled abroad fifteen (15) times, as shown by his travel records furnished by the Bureau of Immigration; his 2004 club share purchase at Palm Country Club at Ayala Alabang worth P640,000.00; two (2) lots in Bian, Laguna and one (1) townhouse in Cavite purchased in 1998 in the total amount of P668,365.00; (3) real properties in Bian, Laguna and in Tagaytay City, purchased in 1999, 2001 and 2003,

Moreover, there is nothing in the law, specifically Section 24 of RA 6770, or The Ombudsman Act of 1989, which requires that notice and hearing precede the preventive suspension of an erring public official. This provision states: SEC. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. Under Section 24 of RA 6770, two requisites must concur to render the preventive suspension order valid. First, there must be a prior determination by the Ombudsman that the evidence of respondents guilt is strong. Second, (a) the offense charged must involve dishonesty, oppression, grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him.
[19]

These requisites are present here. The Ombudsman justified the issuance of the preventive suspension order in this While a preventive suspension order may originate from a complaint, the Ombudsman is not required to furnish the respondent with a copy of the complaint prior to ordering a preventive suspension.
[18]

wise: As can be gleaned from the evidence on record, the deliberate failure of respondent Carabeo to disclose all of his supposed properties in his SALN, particularly the vehicles which are registered in his name involves dishonesty which, if proven, warrant his corresponding removal from the government service. The same is true with respect to the

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50

respectively, in the total amount of P1,272,960.00. This is exclusive of the seven (7) vehicles all registered in his name. Fourth, respondents unauthorized foreign travels abroad numbering fifteen (15) times between the years 1996 to 2004, indicates that he has financial resources which could not be legally justified relying solely on his [20] declared income.

question

of

whether

the

Ethical Standards for Public Officials and Employees, which entitles him to be informed beforehand of his omission and to take the necessary corrective action. Section 10 of RA 6713 provides: Section 10. Review of Compliance Procedure. - (a) The designated Committees of both Houses of the Congress shall establish procedures for the review of statements to determine whether said statements which have been submitted on time, are complete, and are in proper form. In the event a determination is made that a statement is not so filed, the appropriate Committee shall so inform the reporting individual and direct him to take the necessary corrective action. (b) In order to carry out their responsibilities under this Act, the designated Committees of both Houses of Congress shall have the power within their respective jurisdictions, to render any opinion interpreting this Act, in writing, to persons covered by this Act, subject in each instance to the approval by affirmative vote of the majority of the particular House concerned. The individual to whom an opinion is rendered, and any other individual involved in a similar factual situation, and who, after issuance of the opinion acts in good faith in accordance with it shall not be subject to any sanction provided in this Act. (c) The heads of other offices shall perform the duties stated in subsections (a) and (b) hereof insofar as their respective

evidence of respondents guilt is strong warranting the issu ance of the preventive suspension order, absent a clear showing of grave abuse of discretion on the part of the Ombudsman. Moreover, Carabeo cannot claim any right against, or damage or injury that he is bound to suffer from the issuance of the preventive suspension order, since there is no vested right to a public office, or even an absolute right to hold it.
[23] [24]

Public While

office is not property but a public trust or agency.

their right to due process may be relied upon by public officials to protect their security of tenure which, in a limited sense, is Whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him.
[21]

analogous to property, such fundamental right to security of tenure cannot be invoked against a preventive suspension order which is a preventive measure, not imposed as a penalty.
[25]

In Buenaseda v. Flavier,

[22]

the Court

An

relevantly pronounced: The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the judgment of the Ombudsman on the basis of the administrative complaint x x x

order of preventive suspension is not a demonstration of a public officials guilt, which can be pronounced only after a trial on the merits.
[26]

III. Carabeos non-disclosure of assets in his SALN constitutes a violation of RA 3019, among others.

51

As aptly stated by the Court of Appeals, the court cannot substitute its own judgment for that of the Ombudsman on the

Carabeo claims that the complaint against him involves a violation of Section 10, RA 6713, or the Code of Conduct and

Page

offices are concerned, subject to the approval of the Secretary of Justice, in the case of the Executive Department and the Chief Justice of the Supreme Court, in the case of the Judicial Department.

on or before the fifteenth day of April following the close of said calendar year. Sec. 8. Prima Facie Evidence of and Dismissal Due to Unexplained Wealth. If in accordance with the provisions of Republic Act Numbered One Thousand Three Hundred SeventyNine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be ground for dismissal or removal. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently out of proportion to legitimate income, shall likewise be taken into consideration in the enforcement of this Section, notwithstanding any provision of law to the contrary. The circumstances hereinabove mentioned shall constitute valid ground for the administrative suspension of the public official concerned for an indefinite period until the investigation of the unexplained wealth is completed.

While Section 10 of RA 6713 indeed allows for corrective measures, Carabeo is charged not only with violation of RA 6713, but also with violation of the Revised Penal Code, RA 1379, and RA 3019, as amended, specifically Sections 7 and 8 thereof, which read:

opportunities for official corruption and maintaining a standard of honesty in the public service. Unexplained matter normally results from non-disclosure or concealment of vital facts. SALN, which all public officials and employees are mandated to file, are the means to achieve the policy of accountability of all public officers and employees in the government. By the SALN, the public are able to monitor movement in the fortune of a public official; it is a valid check and balance mechanism to verify undisclosed properties and wealth. Significantly, Carabeo failed to show any requirement under RA 3019 that prior notice of the non-completion of the SALN and its correction precede the filing of charges for violation of its provisions. Neither are these measures needed for the charges of dishonesty and grave misconduct, which Carabeo presently faces. Based on the foregoing, the Court of Appeals did not commit grave abuse of discretion in rendering the assailed decision. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of [28] jurisdiction. It exists where the power is exercised in an arbitrary or despotic manner by reason of passion or personal [29] hostility. It must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the [30] duty enjoined or to act at all in contemplation of law. No abuse, much less grave abuse, attended the Court of Appeals judgment in these cases. WHEREFORE, we DISMISS the petitioner Liberato M. Carabeo. SO ORDERED. petitions. Costs against

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Sec. 7. Statement of Assets and Liabilities. Every public officer, within thirty days after assuming office, and thereafter, on or before the fifteenth day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of corresponding Department Head, or in the case of a Head Department or chief of an independent office, with the Office of the President, a true, detailed and sworn statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their first statement

In Ombudsman v. Valeroso,

[27]

the Court explained fully the

significance of these provisions, to wit: Section 8 above, speaks of unlawful acquisition of wealth, the evil sought to be suppressed and avoided, and Section 7, which mandates full disclosure of wealth in the SALN, is a means of preventing said evil and is aimed particularly at curtailing and minimizing, the

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Republic SUPREME Manila EN BANC G. R. No. 146824

of

the

Philippines COURT

Generoso V. Ortua were detected by the examining auditors during their audit. 3. Trust liabilities under General Fund totaling P3,439,868.07 were not remitted to the agencies concerned in violation of GSIS Act of 1997.

Petitioner was informed about her cash shortage of P3,580,378.80 in a demand letter dated August 19, 1998. On September 11, 1998, petitioner submitted her letter of explanation for the cash shortage with a notation that she will submit the liquidation documents on or before September 23, 1998. In her Comment, respondent COA Director Linda N. Solite, Regional Office No. V, Legazpi City, stated that petitioner did not fulfill her promise to submit the liquidation documents by September 23, 1998. But petitioner wrote a letter to the Provincial Treasurer, Camarines Sur requesting that she be detailed at the said office "in view of the lack of confidence of the present administration with the undersigned." Due to the cash shortage and the failure of petitioner to submit all the supporting documents enumerated in the demand letter dated August 19, 1998, State Auditors del Rosario and Follero informed petitioner through a letter dated September 24, 1998 that she was relieved from her duties and responsibilities as municipal treasurer effective September 24, 1998 in accordance 2 3 with paragraph 2, Section 348 of Republic Act No. 7160. The Municipal Mayor and Municipal Accountant were also informed of the fact. Thereafter, a second demand letter dated November 23, 1998 was sent to petitioner Santiago reiterating her cash shortage of P3,580,378.80 and apprising her of additional credits to her accountability. A final demand was made on petitioner to submit immediately all supporting documents stated in the accompanying schedules and to submit within 72 hours a written explanation why said documents were not submitted within the reglementary period. In her Comment, respondent COA Region V Director stated that petitioner Santiago did not dispute the shortage in the second demand letter. Accordingly, COA, through Director Lourdes M. Castillo of Regional Office No. V, Rawis, Legazpi City, filed with the Office of the Ombudsman a complaint on June 24, 1999 for

June 15, 2006 4. All vouchers covering cash advances were not certified by the Municipal Budget Officer as to the existence of appropriation, which is a violation of Sec. 344 of the Local Government Code of 1991. 5. Cash advances made by Claro G. Pitallano, Cashier II, totaling P5,031,746.57 were granted by means of cash transfer from Municipal Treasurer Encarnacion E. Santiago which is in gross violation of Section 4.1.6 of COA Circular No. 97-002 dated February 10, 1997. 6. Cash advances were drawn by Municipal Treasurer Encarnacion E. Santiago with no legal specific purpose. Additional cash advances were likewise drawn even if the previous cash advances given were not settled, nor proper accounting was made, which is in violation of Sec. 339 of the Local Government Code in relation to Sec. 4.1.1 and 4.1.2 of COA Circular No. 97-002 dated February 10, 1999. 7. Payments for recurring expenses exceeding P15,000 were paid by Municipal Treasurer Encarnacion E. Santiago out of her cash advances in violation of Section 4.3.2 of COA Circular No. 97-002 dated February 10, 1997. 8. Report of Collection and Disbursements together with the corresponding journals and supporting documents were not prepared and submitted to the auditor on the date required under Sections 8 and 9 of the Manual on the Certificate of Settlement and 1 Balances.

ENCARNACION E. SANTIAGO, Petitioner, vs. COMMISSION ON AUDIT and THE DIRECTOR OF THE COMMISSION ON AUDIT, REGIONAL OFFICE NO. V,Respondents. DECISION AZCUNA, J.: This is a special civil action for certiorari raising a question of law: Can the salary of a government employee be ordered withheld, retained and applied to the payment of public funds allegedly embezzled under the employees care on the basis of an audit report and the filing of administrative and criminal cases against the employee? The antecedents are as follows: On June 16, 1998, COA State Auditors Erlinda B. del Rosario and Rodolfo T. Follero, assigned at the Provincial Auditors Office, Pili, Camarines Sur, examined the cash and accounts of petitioner municipal treasurer covering the period from June 1997 to June 1998. As a result of the examination, the auditors made these findings: 1. Municipal Treasurer Encarnacion E. Santiago was found short of her accountability totalingP3,580,378.80;

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2. Rampant manipulation of books of account perpetrated by Municipal Treasurer Encarnacion E. Santiago and Municipal Accountant Designate

Malversation of Public Funds against petitioner, Municipal Accountant Generoso Ortua and Cashier II Claro Pitallano. Upon a finding of probable cause against petitioner, two criminal cases were filed against her with the Regional Trial Court, Fifth Judicial Region, Branch 58, San Jose, Camarines Sur, which are still pending. In addition, an administrative case was filed on December 13, 1999 against petitioner with the Civil Service Commission, Regional Office No. V, Legazpi City, which case is still pending. In a letter dated July 20, 1999, State Auditor del Rosario directed Municipal Mayor Marcel S. Pan of Goa, Camarines Sur to "withhold payment of the salary and other emoluments due Mrs. Encarnacion E. Santiago or so much thereof as may be necessary, effective immediately and to apply the said withheld amounts in full satisfaction of her x x x shortage of P3,580,378.80" pursuant to Section 37 of Presidential Decree (PD) No. 1445, otherwise known as the "Government Auditing Code of the Philippines," which provides: Sec. 37. Retention of money for satisfaction of indebtedness to government. When any person is indebted to any government agency, the Commission [on Audit] may direct the proper officer to withhold the payment of any money due such person or his 5 estate to be applied in satisfaction of the indebtedness. Due to the directive of State Auditor del Rosario, petitioner was not able to collect her salary for the period from October 1998 to July 1999. After five (5) checks in payment of her salary were issued, the Municipal Mayor of Goa, Camarines Sur, endorsed the checks and the proceeds thereof, in the total amount of P124,606.20, was used to pay petitioners cash shortage, 6 which is evidenced by official receipts of the Republic of the Philippines. In a letter dated January 7, 2000 to the COA Director of Regional Office No. V, Legazpi City, petitioner requested reconsideration of the directive to withhold payment of her salary and other emoluments. She asserted that there is no valid basis for the application of her salary, without her consent, to the unconfirmed accountability, and that there is no final judicial
4

order that she incurred such accountability, citing as legal 7 basis Villanueva v. Tantuico, Jr. In a First Indorsement dated January 25, 2000, COA Regional Office No. V denied petitioners request for reconsideration on the ground that the ruling in Villanueva is not applicable in this case. It anchored its decision on COA Decision No. 97-084 dated January 28, 1997 and held that State Auditor del Rosario acted within the bounds of law in issuing the directive. Petitioner appealed from the denial to COA. In a letter dated March 8, 2000, COA informed petitioner to litigate the appeal in accordance with its Revised Rules of Procedure. In compliance, petitioner reproduced her appeal in a Petition for Review. After the COA Director of Regional Office No. V, Legazpi City filed an Answer to the petition, petitioner filed a motion for early resolution of the petition on the ground that the issue was purely a legal one. In a letter dated December 8, 2000, COA, through its General Counsel, informed the counsel of petitioner that the motion for early resolution cannot be given due course since the Commission temporarily archived the petition for review until the final resolution of the pending criminal and administrative cases against petitioner. Petitioners motion for reconsideration was denied by COA in a letter dated January 22, 2001. COA, through its General Counsel, stated that the Commission decided to archive the petition for review pending resolution of the related criminal and administrative cases filed with the appropriate tribunals in order not to preempt their respective decisions. It emphasized, thus: ". . . Clearly stated, what this Commission has denied is your Motion for Early Resolution and not the Petition for Review. The Commission has its legal grounds in withholding the salary of the petitioner until the amount defalcated has been satisfied." Hence, petitioner filed this petition.

Petitioner states that the issue she raised before COA is whether the State Auditor can order the suspension and retention of her salary based merely on an audit finding of a shortage in her account and the pendency of the criminal case against her. She contends that in archiving her petition for review to await the resolution of the administrative and criminal actions against petitioner, COA, in effect, sustained the decision of COA Regional Office No. V and adversely resolved her petition. Petitioner alleges that she is filing this petition for review of the judgment of COA under Rule 64 of the Rules of Court if COAs denial of her motion for reconsideration may be considered a final decision of COA of the petition. However, if the action of COA is not yet appealable, petitioner submits that this petition should alternatively be considered as a petition for certiorari under Rule 65, there being no appeal nor any plain and speedy remedy in the ordinary course of law. Petitioner prays that judgment be issued setting aside the Directors First Indorsement dated January 25, 2000, the Commissions Letters dated December 8, 2000 and January 22, 8 2001, the Second Indorsement dated December 8, 2000, and that the respondents, including the Municipal Mayor of Goa, Camarines Sur, be ordered to immediately pay her salary in the accumulated amount of P124,606.21, and the salary accruing after the month of July 1999 to which she may be entitled. It is true that COA has not yet formally ruled on the petition for review of petitioner because it archived the same to await the resolution of the pending criminal and administrative cases it filed against petitioner. The Court notes, however, that in the letter dated January 22, 2001 denying petitioners motion for reconsideration of the denial of her motion for early resolution, COA, through its General Counsel, maintained that "[t]he Commission has its legal grounds in withholding the salary of the petitioner until the amount defalcated has been satisfied." The Court takes cognizance of this petition insofar as it raises this question of law: Can the salary of a government employee be ordered withheld, retained and applied to the payment of public funds allegedly embezzled under the employees care on

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the basis of an audit report and the filing of an administrative case and a criminal case for malversation of public funds? Stated otherwise, may State Auditor del Rosario direct that the salary and other emoluments of petitioner be withheld and applied to her cash shortage determined merely in an audit examination? Petitioner contends that there is no legal basis for the seizure of her salaries and other emoluments. She argues that the finding of a cash shortage during the audit examination does not definitely and finally establish that she is already indebted to the government in the amount of the shortage. She points out that Section 37 of PD No. 1445, which is the legal basis cited by State Auditor del Rosario for directing the withholding of her salary, is 9 identical with Section 21, Chapter 4, Subtitle B (Commission on Audit), Book V of Executive Order No. 292, otherwise known as the "Administrative Code of 1987." She asserts that the meaning of "indebtedness" in said Section 21 is defined in Villanueva v. 10 Tantuico as follows: "Unless admitted by a debtor himself, the conclusion that he is in truth indebted to the Government cannot be definitely and finally pronounced by a Government auditor, no matter how convinced he may be from his examination of the pertinent records of the validity of that conclusion. Such a declaration, that a government employee or officer is indeed indebted to the government, if it is to have binding authority, may only be made by a court. That determination is after all, plainly a judicial, not an administrative function. No executive officer or administrative body possesses such a power." Petitioner thus contends that the Auditor cannot definitely and finally pronounce that she is indebted to the government based merely on the audit examination conducted on her account; hence, the withholding and seizure of her salaries and other emoluments is not in accordance with law.

the Government. In that case, Auditor Emiliana Cruz of the Bureau of Records Management made the finding that petitioner therein Villanueva was indebted to the government in 11 the sum of P31,949.15, and pursuant to Section 624 of the Revised Administrative Code of 1919, as amended, which is substantially the same as Section 21 of the Administrative Code of 1987, the indebtedness may properly be set off against Villanuevas salary and other monetary benefits due from the Government. The Court therein ruled that before set off can take place under Section 624 of the Revised Administrative Code of 1919, as amended, a persons indebtedness must be one that is admitted by him or pronounced by final judgment of a competent court. The ruling of the Court reads: While Section 624 of the Revised Administrative Code does indeed authorize the set-off of a persons indebtedness to the Government against "any money due him or his estate to be applied in satisfaction of such indebtedness," that indebtedness must be one that is admitted by the alleged debtor or pronounced by final judgment of a competent court. In such a case, the person and the Government are in their own right both debtors and creditors of each other, and compensation takes place by operation of law in accordance with Article 1278 of the Civil Code. Absent, however, any such categorical admission by an obligor or final adjudication, no legal compensation can take place, as this Court has already had occasion to rule in an early case. Unless admitted by a debtor himself, the conclusion that he is in truth indebted to the Government cannot be definitely and finally pronounced by a Government auditor, no matter how convinced he may be from his examination of the pertinent records of the validity of that conclusion. Such a declaration, that a government employee or officer is indeed indebted to the government, if it is to have binding authority, may only be made by a court. That determination is after all, plainly a judicial, not an administrative function. No executive officer or administrative 12 body possesses such a power. Regarding the propriety of withholding petitioners salary, the Court holds that COA can direct the proper officer to withhold petitioners salary and other emoluments under Section 21, Chapter 4, Subtitle B, Book V of the Administrative Code of 1987,

which is substantially the same as Section 37 of PD No. 1445, the legal basis of COA, thus: SEC. 21. Retention of Money for Satisfaction of Indebtedness to Government.When any person is indebted to any government agency, the Commission may direct the proper officer to withhold the payment of any money due such person or his estate to be applied in satisfaction of the indebtedness. It is noted that the directive of State Auditor del Rosario to the Municipal Mayor of Goa, Camarines Sur to withhold the salary of petitioner is in accordance with the COA Guidelines to the Examiner/Auditor in case of a cash shortage contained in Chapter 3 of the COA Handbook on Cash Examination, thus: SPECIFIC GUIDELINES FOR CASH SHORTAGE/OVERAGE Cash Shortages 1. Should the examination disclose cash shortages, the examiner shall not immediately make any announcement, notice or report until all arithmetical and mathematical computations are rechecked and documents reviewed. 2. The examiner shall prepare the report on the shortage after completion of the examination when all amounts and computations have been reviewed and after the reconciliation of related accounts and the verifications of all transactions. 3. He/She shall issue a demand letter to the AO for the immediate restitution of the shortage (for sample refer to Appendix 10). 4. Within seventy-two (72) hours upon receipt of demand letter, the examiner shall obtain from the AO a written explanation of the shortage.

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Villanueva referred to the propriety of setting off the indebtedness to the Government of the petitioner therein against his salary and other monetary benefits payable to him by

5. Upon failure by the AO to immediately restitute the amount, the examiner shall recommend to the agency head in writing for the immediate relief of the AO from his/her duties. The letter-recommendation should be duly acknowledged by the agency head or his/her authorized representative. The acknowledgement shall form part of the examiners working paper. 6. The examiner shall see to it that all cash and records pertaining to the account are adequately safeguarded. 7. He/She shall submit an interim or advance report to the appropriate COA official in case there will be a delay in the completion of the report. 8. He/She shall direct the proper officer to withhold the payment of any money due the AO, except retirement pay or gratuity due her/him, as soon as the cash 13 shortage is ascertained and is not contested. Please refer to Appendix 11 for sample copy of the withholding order. The amount withheld shall be applied to the shortage pursuant to Section 73 (should be Section 37), PD 1445. The examiner shall report the ordering of the withholding to the COA Chairman immediately. 9. In the case of a local treasurer, the [examiner] shall seize the office and its contents and shall notify the COA and the local chief executive. He/She shall immediately take full possession of the office and its contents, close and render his/her accounts at the date of taking possession and temporarily continue the public business of the office. The auditor who takes possession of the office of the local treasurer shall ipso facto supersede the local treasurer until the officer involved is restored, or other provision has been lawfully made for filling the office. (Sec. 46, PD 1445)

the RLAO/LAO. (The Report shall be submitted to RLAO/LAO for shortages and overages) 11. If the shortage is material, the examiner shall request thru the Chairman, the Department of Foreign Affairs, the National Bureau of Investigation, the Commission on Immigration and Deportation and the National Intelligence and Security Agency that no clearance for purposes of travel abroad should be issued to erring AO and that he/she be included in the hold order list unless cleared by COA. Under Paragraph 8 of the aforequoted Guidelines, the examiner/auditor is authorized to direct the proper officer to withhold the payment of any money due the accountable officer, except retirement pay or gratuity due her/him, as soon as the cash shortage is ascertained and is not contested. In this case, respondent COA Regional Director Linda N. Solite stated in her Comment that petitioner Santiago never disputed the second and final demand letter dated November 23, 1998 informing her of her cash shortage. Hence, the directive of State Auditor del Rosario to withhold petitioners salary was in order. The State Auditors finding of cash shortage against petitioner municipal treasurer, which has not been satisfactorily disputed is prima facie evidence against her. The prima facie evidence suffices for the withholding of petitioners salary, in order to safeguard the interest of the Government. However, it must be stated that although State Auditor del Rosario properly directed the Municipal Mayor of Goa, Camarines Sur to withhold petitioners salary and other emoluments, she incorrectly directed that the same be applied or set off against petitioners cash shortage. As ruled in Villanueva, before set-off can take place under Section 624 of the Revised Administrative Code of 1919, as amended, now Section 21 of the Administrative Code of 1987, a persons indebtedness to the government must be one that is admitted by him or pronounced by final judgment of a competent court. In this case, the indebtedness was not admitted by petitioner

and a competent court has not yet pronounced final judgment thereon. As a result, the amount of petitioners salary remitted to the local government treasurer as payment of petitioners cash shortage should be considered merely withheld until final resolution on her indebtedness. In the event that petitioner is found not liable for the cash shortage, the withheld salary and other emoluments will be released to her; otherwise, it will be applied in payment of her indebtedness. WHEREFORE, the petition is PARTLY GRANTED in that respondent COA is authorized merely to withhold petitioners salary but not to apply it to the alleged shortage for which her liability is still being litigated. No costs. SO ORDERED. ADOLFO S. AZCUNA THIRD DIVISION

[G.R. No. 155620. August 9, 2005]

PRUDENCIO QUIMBO, petitioner, vs. ACTING OMBUDSMAN MARGARITO GERVACIO and DIRECTRESS MARY SUSAN S. GUILLERMO OF THE OMBUDSMAN OFFICE, respondents. DECISION CARPIO-MORALES, J.: Culled from the records of the case are the following facts: Petitioner, Prudencio C. Quimbo, Provincial Engineer of Samar, was on May 21, 1995 administratively charged for

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10. The examiner shall submit his/her report to the RCD/CD. The latter shall review it and forward [it] to

harassment and oppression by Elmo V. Padaon (Padaon), a general foreman who was detailed to the Motor Pool Division, Provincial Engineering, Barangay Payao, Catbalogan, Samar by then Provincial Governor Jose Roo. During the pendency of the administrative case before the Office of the Deputy Ombudsman, petitioner, on motion of the complainant Padaon, was by November 28, 1997 Order of the [1] Ombudsman placed under preventive suspension without pay to commence upon receipt of the order and until such time that it is lifted but in no case beyond Six (6) Months. Petitioner began serving his preventive suspension on March 18, 1998. After petitioner had presented on direct examination his last two witnesses, the Office of the Ombudsman, by Order of [2] April 27, 1998, lifted petitioners preventive suspension. He was thus thereupon ordered, by Memorandum of June 3, 1998 issued by the OIC Provincial Governor, to resume performing his [3] duties as Provincial Engineer. By Decision of April 5, 2000, the Office of the Deputy Ombudsman found petitioner guilty of oppression and recommended that he be suspended from office for a period of eight (8) months without pay, this case being the second [5] commission by him of the same offense. The Deputy Ombudsmans recommendation was approved by the Ombudsman on April 28, 2000. Petitioners motion for reconsideration of the Ombudsmans decision having been denied, he elevated the case to the Court of Appeals. The appellate court, by Decision of March 1, [6] 2001, modifying the decision of the Ombudsman, found petitioner guilty of simple misconduct only and penalized him with suspension from office for a period of Two (2) Months without pay. Following the finality of the appellate courts decision, the Office of the Ombudsman, by Order dated June 24, [7] 2002, directed the Provincial Governor to implement its decision, as modified by the appellate court.
[4]

Petitioner filed, however, before the Office of the [8] Ombudsman a Motion for Modification/Reconsideration of its June 24, 2002 Order, calling attention to the fact that he had been on preventive suspension from March 18, 1998 to June 1, 1998 and praying that the order under reconsideration be modified to take into account the period of *his+ PREVENTIVE SUSPENSION of TWO (2) MONTHS and SEVENTEEN (17) [DAYS] [9] WITHOUT PAY as part of the final penalty imposed. In a similar move, Provincial Governor Milagrosa Tan sent a [10] letter also dated July 23, 2002 to the Ombudsman seeking clarification on the merits of petitioners contention that he should no longer be required to serve the penalty of Two (2) Months suspension without pay, he having priorly served preventive suspension for more than Two (2) Months. By letter dated August 21, 2002 addressed to the Provincial Governor, the Office of the Ombudsman clarified that preventive suspension is not a penalty but a preliminary step in an investigation; [and that] [i]f after such investigation, the charge is established and the person investigated upon is found guilty . . . warranting the imposition of penalty, then he shall accordingly be penalized. The order for the implementation of its decision, as modified by the appellate court, was thus reiterated in the letter. Unperturbed, petitioner, via certiorari, assailed before the Court of Appeals the Office of the Ombudsmans denial of his plea to be considered having served the modified penalty. By Resolution dated October 2, 2002, the Court of Appeals dismissed petitioners petition for certiorari, it affirming the Ombudsmans ruling that preventive suspension pending investigation is not a penalty. Hence, the present petition for review on certiorari raising as sole issue whether the appellate court committed reversible error when it dismissed his petition. Petitioner contends in the affirmative, he arguing that the dismissal of his petition is in violation of the doctrine enunciated in Gloria v. Court of [13] Appeals and the rule on equity that a person should not be punished twice nor be made to suffer the suspension penalty after [he] had [served] the same (although in a preventive [14] suspension).
[12] [11]

The petition fails. Jurisprudential law establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may [16] be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the [17] penalty. That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws. SEC. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. (Emphasis supplied). Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV provides: SEC. 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty. (Emphasis supplied). Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between,
[15]

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and purposes of imposing preventive suspension and suspension as penalty. Petitioners reliance on Gloria fails. In said case, this Court recognized two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension, to wit: (1) preventive suspension pending investigation (Section 51 of the Civil Service Law [Book V, Title I, Subtitle A of the Administrative Code of 1987]), and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated [18] (Section 47(4) of The Civil Service Law). The foregoing classification has significant implications in determining the entitlement of the employee to compensation during the period of suspension, and to credit the preventive suspension to the final penalty of suspension. Thus, in Gloria, this Court held: Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of [19] suspension or dismissal. (Emphasis and underscoring supplied). In fine, as petitioners preventive suspension was carried out pending his investigation, not while his appeal from his conviction was pending, the same cannot be credited to form part of the final penalty of suspension.

En passant, neither may the concept of crediting, in criminal law, preventive imprisonment in the service of a [20] convicts term of imprisonment be applied to preventive suspension during investigation in administrative law in the service of a respondents final penalty of suspension. For not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension; the respective laws covering them are explicit. Finally, as shown above, since the law explicitly prescribes the rules on crediting of preventive suspension to the final penalty of suspension, petitioners invocation of equity may not lie. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED. Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ., concur. Corona, J., on leave.

[1]

Rollo at 56-59.

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