1

1.
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 177042 December 10, 2012 6. That said certificate of title has never been pledged or otherwise delivered to any person or entity to guarantee any obligation or for any other purpose. 7. That the fact of its los[s] was reported to the Register of Deeds of Pasig on 28 April 2003 by wa[y] of Affidavit of Los[s]. WHEREFORE, the petitioner respectfully prays this Honorable Court to declare null and void the owner's duplicate of Transfer Certificate of Title No. 169526 which has been lost, and to order and direct the Registrar of Land Titles and Deeds of Pasig City, after payment to him of the fees prescribe by law, to issue in lieu thereof a new owner's duplicate certificate which shall in all respects be entitled to like faith and credit as the original duplicate, in accordance with Section 109 of Act No. 496, as amended by Presidential Decree No. 1529. xxxx
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SPOUSES CRISANTO ALCAZAR and SUSANA VILLAMAYOR, Petitioners, vs. EVELYN ARANTE, Respondent. DECISION PERALTA, J.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and set aside the 1 Decision of the Court of Appeals (CA) dated November 29, 2006 in CA-G.R. SP No. 88475. The assailed Decision nullified 2 the Decision of the Regional Trial Court (RTC) of Pasig City, Branch 268 in LRC Case No. R-6309. The petition also seeks to reverse and set aside the appellate court's March 14, 2007 3 Resolution denying petitioner's Motion for Reconsideration. On November 14, 2003, herein petitioner Crisanto Alcazar (hereinafter referred to as Alcazar) filed a Petition for Reconstitution of Lost Owner's Duplicate Copy of Transfer Certificate of Title with the RTC of Pasig City alleging and praying as follows: 2. That petitioner is the sole heir of his deceased parents, Emilio Alcazar and Caridad Alcazar, who both died on 12 December 1967 and 04 March 2002, respectively. x x x 3. That said petitioner's parents left a real estate property covered by TCT No. 169526, then registered at the Register of Deeds of the Province of Rizal but was transferred to the Register of Deeds of Pasig City. x x x 4. That the owner's duplicate of said owner's certificate of title was lost on or about April 2003 and have since, the petitioner exerted diligent efforts to recover the same but failed. 5. That the facts of its los[s] are as follows: Since the demise of the petitioner's mother, he has been in his desire to transfer in his name the title of the said property, he being the sole and compulsory heir. Being unknowledgeable about the procedures, petitioner, who was living in the province, went to the Land Registration Office in Quezon City to inquire about the requirements. Unfortunately, petitioner was approached by a group [of] individuals who identified themselves as connected with the LRA and they [offered to] help. An[d] to cut the story short, said individuals lured herein petitioner to have the said owner's duplicate of title entrusted to them for alleged transfer. Since then said group of individuals have never seen or contacted with the petitioner's copy of TCT.

Acting on the petition, the RTC issued an order which set the case for hearing and directed Alcazar to comply with the statutory requirements of posting. The RTC also ordered that copies of the above order and the petition be furnished the Office of the Solicitor General (OSG), the Office of the City Prosecutor of Pasig and the Register of Deeds of Pasig. When the case was called for initial hearing on December 9, 2003, there was no appearance from the OSG, Pasig City Registry of Deeds and the Pasig City Prosecutor's Office. Upon Alcazar's motion and there being no opposition, he was allowed to present evidence ex parte. On January 6, 2004, the RTC issued a Decision in favor of Alcazar, the dispositive portion of which reads thus: WHEREFORE, the owner's duplicate copy of TCT No. 169526 is hereby declared null and void and of no force and effect. The Registry of Deeds for the City of Pasig is hereby directed to issue a new Owner's Duplicate of Transfer Certificate of Title No. 169526 based on the original thereof on file in his office, which shall contain a memorandum of the fact that it was issued in lieu of the lost duplicate and which shall, in all respect[s], be entitled to like faith and credit as the original, for all legal intents and purposes. xxxx
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On February 16, 2004, the RTC issued an Entry of Judgment stating that the abovementioned Decision of the RTC became final and executory on February 5, 2004.

On February 8, 2005, herein respondent filed with the CA a Petition for Annulment of Final Decision contending that the RTC, sitting as a land registration court, had no jurisdiction to entertain Alcazar's petition because the subject owner's duplicate certificate of title which was allegedly lost was not, in 8 fact, lost but actually exists, contrary to Alcazar's claim. Respondent alleged in her petition that on April 4, 2003, petitioners obtained a loan of P350,000.00 from her as evidenced by a promissory note; as security for the loan, petitioners executed in respondent's favor a real estate mortgage over a parcel of land located in Pasig City, covered by

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Transfer Certificate of Title (TCT) No. 169526; simultaneous with the execution of the mortgage contract, Alcazar personally delivered and turned over to respondent the original owner's duplicate copy of TCT No. 169526; respondent did not then see the need to immediately annotate the mortgage with the concerned Register of Deeds; when petitioners subsequently failed to pay their loan, respondent decided to register the mortgage with the Pasig City Register of Deeds; to her surprise, respondent learned that Alcazar had caused to be annotated to the copy of TCT No. 169526 on file with the Pasig Register of Deeds, an affidavit stating the owner's duplicate copy thereof was lost; respondent also learned that Alcazar filed with the RTC of Pasig City a petition for the issuance of a new owner's duplicate copy of the subject TCT in lieu of the allegedly lost one; that the RTC decision granting Alcazar's petition became final on February 5, 2004; that, as a consequence, TCT No. 169526 was canceled and in lieu thereof TCT No. PT-125372 9 was issued. Petitioners filed their Answer claiming that they did not enter into a contract of real estate mortgage with respondent; that the deed evidencing such alleged contract is forged; that during the date that the alleged real estate mortgage contract was executed, they were not yet the absolute owners of the subject 10 property and, thus, cannot mortgage the same. After the parties filed their Reply and Rejoinder, the CA set 13 the petition for pre-trial conference. Thereafter, the parties were directed to submit their respective memoranda. On November 29, 2006, the CA promulgated its assailed Decision, disposing as follows: In the light of the foregoing, the petition having merit in fact and in law is GIVEN DUE COURSE. Resultantly, and as prayed for, the decision of public respondent Regional Trial Court, Branch 268, Pasig City, LRC Case No. R-6309 is hereby ANNULLED and SET ASIDE. Consequently, the new owners[] duplicate copy of TCT No. 169526, in the name of Emilio Alcazar, married to Caridad Alcazar issued by virtue of the said decision of the Regional Trial Court as well as the replacement thereof namely, TCT No. PT-125372 in the name of Crisanto Alcazar married to Susana Villamayor, is hereby declared void and the original duplicate certificate of TCT No. 169526 in the custody and possession of the petitioner, hereby reinstated for all legal intents and purposes. As regards the claim for damages, We find an award for moral damages justifiable in view of private respondents' malicious concoctions and fraudulent machinations undoubtedly causing petitioner besmirched reputation, social humiliation and mental anguish. Exemplary damages should likewise be imposed by way of example for the public good and to deter others from following private respondents' wanton and irresponsible actuations against petitioner. And by reason of private respondents' perjurious and malicious claim, petitioner was constrained to retain counsel not only to recover what is rightfully his but more so to protect his good name and reputation, thus payment of attorney's fees is also justified. Private respondents therefore are further hereby directed to pay jointly and severally, petitioner, the following: (1) P30,000.00 as moral damages (2) exemplary damages in the amount of P20,000.00 and (3) P20,000.00 as attorney's fees and to pay the costs.
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SO ORDERED.

14

Herein petitioners-spouses filed a Motion for Reconsideration but the CA denied it in its Resolution dated March 14, 2007.

15

Hence, the instant petition with the following Assignment of Errors: I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE VERSION OF THE PRIVATE RESPONDENTS HEREIN. II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT TCT NO. 169526 WAS NEVER LOST OR MISPLACED BY HEREIN PETITIONERS. III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT SECTION 109 OF PRESIDENTIAL DECREE (P.D.) NO. 1529 IS NOT APPLICABLE TO HEREIN PETITIONERS. IV. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE HONORABLE RTC OF PASIG CITY, BRANCH 268 HAD NO JURISDICTION TO ORDER THE ISSUANCE OF TCT NO. PT-125372 IN LIEU OF THE ALLEGED LOST CERTIFICATE OF TITLE. V. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AWARDING MORAL AND EXEMPLARY DAMAGES AS WELL AS ATTORNEYS FEES TO THE 16 HEREIN PRIVATE RESPONDENT. The petition lacks merit. In their first and second assigned errors, petitioners assail the factual findings of the CA. It is a time-honored principle that in a petition for review on certiorari under Rule 45, only questions of 17 law may be raised. It is not this Court's function to analyze or weigh all over again evidence already considered in the proceedings below, as this Court's jurisdiction is limited to reviewing only errors of law that may have been committed by 18 the lower court. The resolution of factual issues is the function of lower courts, whose findings on these matters are received 19 with respect. A question of law which this Court may pass upon must not involve an examination of the probative value of 20 the evidence presented by the litigants. Thus, as a rule, findings of facts of the CA are conclusive, subject to certain exceptions, to wit: (1) the factual findings of the Court of Appeals and the trial court are contradictory; (2) the findings are grounded entirely on speculation, surmises or conjectures; (3) the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd or impossible; (4) there is grave abuse of discretion in the appreciation of facts; (5) the appellate court, in making its findings, goes beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee; (6) the judgment of the Court of Appeals is premised on a misapprehension of facts; (7) the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different conclusion; and (8) the findings of fact of the Court of Appeals are contrary to those of the trial court or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by

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respondent, or where the findings of fact of the Court of Appeals are premised on the absence of evidence but are 21 contradicted by the evidence on record. However, this Court finds that none of these exceptions are present in the instant case. Moreover, the Court finds no cogent reason to depart from the assailed findings of the CA on the following grounds: First, petitioners simply alleged, without any proof, that they did not mortgage the subject property and that respondent and her cohorts defrauded them in obtaining possession of the disputed TCT. However, the rule is well settled that he who alleges a fact has the burden of proving it and a mere allegation is not 22 evidence. Second, the real estate mortgage contract between the parties was notarized. A notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and it has in its favor the presumption of regularity which may only be rebutted by evidence so clear, strong and convincing as to 23 exclude all controversy as to the falsity of the certificate. 24 Absent such, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a 25 notarial document lies on the one contesting the same. Furthermore, an allegation of forgery must be proved by clear and convincing evidence, and whoever alleges it has the 26 burden of proving the same. As stated above, petitioners failed to prove their allegations. They merely denied that they did not execute the REM and that the same was a forgery. Certainly, the pieces of evidence presented by respondent weigh more than petitioners' bare claims and denials. With respect to the third assignment of error, the Court does not agree with petitioners' contention that when respondent and her alleged cohorts supposedly took from them the subject owner's duplicate copy of the TCT through fraud and deceit, the said TCT was considered to have been "lost," in accordance with the 27 provisions of Section 109 of Presidential Decree No. 1529. In construing words and phrases used in a statute, the general rule is that, in the absence of legislative intent to the contrary, they should be given their plain, ordinary and common usage 28 meaning. The words should be read and considered in their natural, ordinary, commonly-accepted and most obvious signification, according to good and approved usage and 29 without resorting to forced or subtle construction. Words are presumed to have been employed by the lawmaker in their 30 ordinary and common use and acceptation. Thus, petitioners should not give a special or technical interpretation to a word which is otherwise construed in its ordinary sense by the law. In the instant case, respondent was able to prove that the subject owner's duplicate copy of the TCT is not lost and is in fact existing and in her possession. Moreover, petitioners admit that they entrusted the subject TCT to respondent. There is, thus, no dispute that the TCT in the possession of respondent is the genuine owner's duplicate copy of the TCT covering the subject property. The fact remains, then, that the owner's duplicate copy of the certificate of title has not been lost but is in fact in the possession of respondent, with the knowledge of petitioners. As to the fourth assigned error, the Court agrees with the ruling of the CA that the RTC had no jurisdiction over the action for reconstitution filed by petitioners. In Manila v. Gallardo-Manzo,
31

this Court held:

Lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim. In a petition for annulment of judgment based on lack of jurisdiction, petitioner must show not merely an abuse of jurisdictional discretion but an absolute lack of jurisdiction. Lack of jurisdiction means absence of or no jurisdiction, that is, the court should not have taken cognizance of the petition because the law does not vest it with jurisdiction over the subject matter. Jurisdiction over 32 the nature of the action or subject matter is conferred by law. As early as the case of Strait Times, Inc. v. CA, this Court has held that when the owners duplicate certificate of title has not been lost, but is in fact in the possession of another person, then the reconstituted certificate is void, because the court that 34 rendered the decision had no jurisdiction. Reconstitution can 35 validly be made only in case of loss of the original certificate. This rule was later reiterated in the cases of Rexlon Realty 36 Group, Inc. v. Court of Appeals, Eastworld Motor Industries 37 38 Corporation v. Skunac Corporation, Rodriguez v. Lim, 39 Villanueva v. Viloria and Camitan v. Fidelity Investment 40 Corporation. Thus, with proof and with the admission of petitioners that the owners duplicate copy of the TCT was actually in the possession of respondent, the RTC Decision was properly annulled for lack of jurisdiction. Whether or not respondent came into possession of the said TCT through fraudulent means is not an issue in determining the propriety of canceling the owner's duplicate copy of the subject TCT. Stated differently, granting that respondent obtained possession of the subject TCT through fraud or deceit, the same is not sufficient justification for the court to issue an order declaring the same to be null and void and directing the issuance of a new copy. If petitioners were indeed defrauded, then they could have filed a criminal complaint for estafa against respondent for the alleged fraud and deceit employed upon them. Moreover, petitioners' remedy to recover the title in the possession of respondent should not have been a petition for reconstitution of a lost title but some other form of action such as a suit for specific performance to compel respondent to turn over the owner's duplicate copy of the subject TCT. Another issue is whether or not the subject lot was already owned by petitioners at the time that it was mortgaged to respondent on April 25, 2003. Petitioners admit in the instant petition that petitioner Alcazar's father died on December 12, 1967, while his mother died on March 4, 2002 and that he is their sole heir. On these bases, the Court agrees with respondent's contention that upon the death of Alcazar's mother in 2002, the latter became the absolute owner of the subject lot 41 by operation of law, pursuant to the provisions of Articles 774 42 and 777 of the Civil Code. As to the propriety of the award of damages by the CA, this Court again quotes with approval the disquisition of the CA on this matter, to wit: xxxx As regards the claim for damages, We find an award for moral damages justifiable in view of private respondents['] [herein petitioners] malicious concoctions and fraudulent machinations undoubtedly causing petitioner [herein respondent] besmirched
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reputation, social humiliation and mental anguish. Exemplary damages should likewise be imposed by way of example for the public good and to deter others from following private respondents' wanton and irresponsible actuations against petitioner. And by reason of private respondents['] perjurious and malicious claim petitioner was constrained to retain counsel not only to recover what is rightfully his but more so to protect his good name and reputation, thus payment of attorney's fees is also justified. xxxx
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BRION, J.: Before us is a Petition for Certiorari, Mandamus and Prohibition with Application for Writ of Preliminary Injunction and/or 1 Temporary Restraining Order, seeking to nullify and enjoin the implementation of Commission on Elections (Co melee) 2 Resolution No. 8808 issued on March 30, 2010. Republic Act 3 (R.A.) No. 1568, as amended, extends a five-year lump sum gratuity to the chairman or any member of the Comelec upon retirement, after completion of the term of office; incapacity; death; and resignation after reaching 60 years of age but before expiration of the term of office. The Comelec en banc determined that former Comelec Commissioners Evalyn I. 4 5 Fetalino and Amado M. Calderon (petitioners) - whose ad interim appointments were not acted upon by the Commission on Appointments (CA) and, who were subsequently, not reappointed are not entitled to the five-year lump sum gratuity because they did not complete in full the seven year term of office. The Antecedent Facts On February 10, 1998, President Fidel V. Ramos extended an interim appointment to the petitioners as Comelec Commissioners, each for a term of seven (7) years, pursuant to 6 Section 2, Article IX-D of the 1987 Constitution. Eleven days later (or on February 21, 1998), Pres. Ramos renewed the petitioners ad interim appointments for the same position. Congress, however, adjourned in May 1998 before the CA could act on their appointments. The constitutional ban on presidential appointments later took effect and the petitioners 7 were no longer re-appointed as Comelec Commissioners. Thus, the petitioners merely served as Comelec Commissioners for more than four months, or from 8 February 16, 1998 to June 30, 1998. Subsequently, on March 15, 2005, the petitioners applied for their retirement benefits and monthly pension with the Comelec, 9 pursuant to R.A. No. 1568. The Comelec initially approved the 10 petitioners claims pursuant to its Resolution No. 06 -1369 dated December 11, 2006 whose dispositive portion reads: The Commission RESOLVED, as it hereby RESOLVES, to approve the recommendation of Director Alioden D. Dalaig, Law Department, to grant the request of former Comelec Commissioners Evalyn Fetalino and Amado Calderon for the payment of their retirement benefits, subject to release of funds for the purpose by the Department of Budget and 11 Management. On February 6, 2007, the Comelec issued Resolution No. 0712 0202 granting the petitioners a pro-rated gratuity and pension. Subsequently, on October 5, 2007, the petitioners asked for a re-computation of their retirement pay on the principal ground 13 that R.A. No. 1568, does not cover a pro-rated computation of retirement pay. In response, the Comelec issued a resolution referring the matter to its Finance Services Department for 14 comment and recommendation. On July 14, 2009, the Comelec issued another resolution referring the same matter to 15 its Law Department for study and recommendation. In the presently assailed Resolution No. 8808 dated March 30, 2010, the Comelec, on the basis of the Law Departments study, completely disapproved the petitioners claim for a lump sum benefit under R.A. No. 1568. The Comelec reasoned out
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The rule is that in order that moral damages may be awarded, there must be pleading and proof of moral suffering, mental 44 anguish, fright and the like. In the instant case, respondent alleged that he suffered from wounded feelings, sleepless nights and mental anxiety and the CA found that respondent was able to substantiate these claims and allegations. Suffice it to reiterate that the findings of fact of the CA are final and 45 conclusive and this Court will not review them on appeal 46 subject to exceptions, which do not obtain in this case.1wphi1 The Court also affirms the award of exemplary damages and attorney's fees. Exemplary or corrective damages are imposed, by way of example or correction for the public good, in addition 47 to moral, temperate, liquidated or compensatory damages. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages 48 should be awarded. As correctly pointed out by the CA, respondent is entitled to moral damages. Moreover, since exemplary damages are awarded, attorney's fees may also be 49 awarded in consonance with Article 2208 ( 1 ) of the Civil Code. WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the November 29, 2006. Decision and the March 14, 2007 Resolution of the Court of Appeals in CA-G.R. SP No. 88475. SO ORDERED. DIOSDADO M. PERALTA Associate Justice ____________________________

2.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 191890 December 04, 2012

EVALYN I. FETALINO and AMADO M. CALDERON, Petitioners, MANUEL A. BARCELONA, JR., PetitionerIntervenor, vs. COMMISSION ON ELECTIONS, Respondent. DECISION

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that: Of these four (4) modes by which the Chairman or a Commissioner shall be entitled to lump sum benefit, only the first instance (completion of term) is pertinent to the issue we have formulated above. It is clear that the non-confirmation and non-renewal of appointment is not a case of resignation or incapacity or death. The question rather is: Can it be considered as retirement from service for having completed ones term of office? xxxx The full term of the Chairman and the Commissioners is seven (7) years. When there has been a partial service, what remains is called the "unexpired term." The partial service is usually called tenure. There is no doubt in the distinction between a term and tenure. Tenure is necessarily variable while term is always fixed. When the law, in this case, RA 1568 refers to completion of term of office, it can only mean finishing up to the end of the seven year term. By completion of term, the law could not have meant partial service or a variable tenure that does not reach the end. It could not have meant, the "expiration of term" of the Commissioner whose appointment lapses by reason of non-confirmation of appointment by the Commission on Appointments and non-renewal thereof by the President. It is rightly called expiration of term but note: it is not completion of term. RA 1568 requires having completed his term of office for the Commissioner to be entitled to the benefits. Therefore, one whose ad interim appointment expires cannot be said to have completed his term of office so as to fall under the provisions of Section 1 of RA 1568 that would entitle him to 17 a lump sum benefit of five (5) years salary. (emphasis, italics and underscores ours) On this basis, the Comelec ruled on the matter, as follows: Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE and ADOPT the study of the Law Department on the payment of retirement benefits to members of the Commission. Consequently, the following former Chairman and Commissioners of this Commission whose appointments expired by reason of nonapproval by Commission on Appointments and non-renewal by the President are not entitled to a lump sum benefit under Republic Act 1528 (sic): Name 1. Alfredo Benipayo, Jr. 2. Evalyn Fetalino 3. Amado Calderon 4. Virgilio Garciliano 5. Manuel Barcelona, Jr. 6. Moslemen Macarambon Position Chairman Commissioner Commissioner Commissioner Commissioner Commissioner Date of Service Feb. 16, 2001 to June 5, 2002 Feb. 16, 1998 to June 30, 1998 Feb. 16, 1998 to June 30, 1998 Feb. 12, 2004 to June 10, 2005 Feb. 12, 2004 to June 10, 2005 Nov[.] 05, 2007 to Oct. 10, 2008 7. Leonardo Leonida Commissioner July 03, 2008 to June 26, 2009

This resolution shall also apply to all requests of former COMELEC Chairmen and Commissioners similarly situated. All previous resolutions which are inconsistent herewith are hereby AMENDED or REVOKED accordingly. Let the Finance Services and Personnel 18 implement this resolution. (emphasis ours) The Petitions The petitioners sought the nullification of Comelec Resolution No. 8808 via a petition for certiorari under Rule 65 of the Rules of Court. Petitioner intervenor Manuel A. Barcelona, Jr. later joined the petitioners in questioning the assailed resolution. Like the petitioners, Barcelona did not complete the full seven-year term as Comelec Commissioner since he served only from February 12, 2004 to July 10, 2005. The petitioners and Barcelona commonly argue that: (1) the non-renewal of their ad interim appointments by the CA until Congress already adjourned qualifies as retirement under the law and entitles them to the full five-year lump sum gratuity; (2) Resolution No. 06-1369 that initially granted the five-year lump sum gratuity is already final and executory and cannot be modified by the Comelec; and (3) they now have a vested right over the full retirement benefits provided by RA No. 1568 in view of the finality of Resolution No. 19 06- 1369. In the main, both the petitioners and Barcelona pray for a liberal interpretation of Section 1 of R.A. No. 1568. They submit that the involuntary termination of their ad interim appointments as Comelec Commissioners should be deemed by this Court as a retirement from the service. Barcelona, in support of his plea for liberal construction, specifically cites the case of Ortiz v. 20 COMELEC. The Court ruled in this cited case that equity and justice demand that the involuntary curtailment of Mario D. Ortizs term be deemed a completion of his term of office so that he should be considered retired from the service. In addition, the petitioners also bewail the lack of notice and hearing in the issuance of Comelec Resolution No. 8808. Barcelona also assails the discontinuance of his monthly 21 pension on the basis of the assailed Comelec issuance. The Case for the Respondents On July 22, 2010, the Comelec filed its Comment through the Office of the Solicitor General. The Comelec prays for the dismissal of the petition on the grounds outlined below: First, it submits that the petitioners reliance on Section 13, Rule 18 of the Comelec Rules of Procedure to show that Resolution No. 06-1369 has attained finality is misplaced as this resolution is not the final decision contemplated by the Rules. It also argues that estoppel does not lie against the Comelec since the erroneous application and enforcement of the law by public
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Departments

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officers do not estop the Government from making a 23 subsequent correction of its errors. Second, the Comelec reiterates that the petitioners are not entitled to the lump sum gratuity, considering that they cannot be considered as officials who retired after completing their term of office. It emphasizes that R.A. No. 1568 refers to the completion of the term of office, not to partial service or to a variable tenure that does not reach its end, as in the case of the petitioners. The Comelec also draws the Courts attention to the 24 case of Matibag v. Benipayo where the Court categorically ruled that an ad interim appointment that lapsed by inaction of the Commission on Appointments does not constitute a term of 25 office. Third, it argues that the petitioners do not have any vested right on their retirement benefits considering that the retirements benefits afforded by R.A. No. 1568 are purely gratuitous in nature; they are not similar to pension plans where employee participation is mandatory so that they acquire vested rights in the pension as part of their compensation. Without such vested rights, the Comelec concludes that the petitioners were not 26 deprived of their property without due process of law. The Courts Ruling We DISMISS the petition and DENY Barcelonas petition for intervention. Preliminary Considerations R.A. No. 1568 provides two types of retirement benefits for a Comelec Chairperson or Member: a gratuity or five-year lump 27 sum, and an annuity or a lifetime monthly pension. Our review of the petitions, in particular, Barcelonas petition for intervention, indicates that he merely questions the discontinuance of his monthly pension on the basis of Comelec 28 Resolution No. 8808. As the assailed resolution, by its plain terms (cited above), only pertains to the lump sum benefit afforded by R.A. No. 1568, it appears that Barcelonas petition for intervention is misdirected. We note, too, that Barcelona has not substantiated his bare claim that the Comelec discontinued the payment of his monthly pension on the basis of the assailed Resolution. To put the case in its proper perspective, the task now before us is to determine whether the petitioners are entitled to the full five-year lump sum gratuity provided for by R.A. No. 1568. We conclude under our discussion below that they are not so entitled as they did not comply with the conditions required by law. The petitioners are not entitled to the lump sum gratuity under Section 1 of R.A. No. 1568, as amended That the petitioners failed to meet conditions of the applicable 29 retirement law Section 1 of R.A. No. 1568 is beyond dispute. The law provides: Sec. 1. When the Auditor General or the Chairman or any Member of the Commission on Elections retires from the service for having completed his term of office or by reason of his incapacity to discharge the duties of his office, or dies while in the service, or resigns at any time after reaching the age of sixty years but before the expiration of his term of office, he or his heirs shall be paid in lump sum his salary for one year, not exceeding five years, for every year of service based upon the last annual salary that he was receiving at the time of retirement, incapacity, death or resignation, as the case may be: Provided, That in case of resignation, he has rendered not less than twenty years of service in the government; And, provided, further, That he shall receive an annuity payable monthly during the residue of his natural life equivalent to the amount of monthly salary he was receiving on the date of retirement, incapacity or resignation. [italics supplied] To be entitled to the five-year lump sum gratuity under Section 1 of R.A. No. 1568, any of the following events must transpire: (1) Retirement from the service for having completed the term of office; (2) Incapacity to discharge the duties of their office; (3) Death while in the service; and (4) Resignation after reaching the age of sixty (60) years but before the expiration of the term of office. In addition, the officer should have rendered not less than twenty years of service in the government at the time of retirement. Death during the service obviously does not need to be considered in the present case, thus leaving retirement, incapacity and resignation as the event that must transpire in order to be entitled to the lump sum gratuity. We note that the termination of the petitioners ad interim appointments could hardly be considered as incapacity since it was not the result of any disability that rendered them incapable of performing the duties of a Commissioner. Thus, incapacity is likewise effectively removed from active consideration. "Resignation is defined as the act of giving up or the act of an officer by which he declines his office and renounces the further right to it. To constitute a complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his position accompanied by the act of 30 relinquishment." In this sense, resignation likewise does not appear applicable as a ground because the petitioners did not voluntarily relinquish their position as Commissioners; their termination was merely a consequence of the adjournment of Congress without action by the CA on their ad interim appointments. This eliminative process only leaves the question of whether the termination of the petitioners ad interim appointments amounted to retirement from the service after completion of the term of office. We emphasize at this point that the right to retirement benefits accrues only when two conditions are met: first, when the conditions imposed by the applicable law in this case, R.A. No. 1568 are fulfilled; and second, when an 31 actual retirement takes place. This Court has repeatedly emphasized that retirement entails compliance with certain age and service requirements specified by law and jurisprudence, 32 and takes effect by operation of law. Section 1 of R.A. No. 1568 allows the grant of retirement benefits to the Chairman or any Member of the Comelec who

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has retired from the service after having completed his term of office. The petitioners obviously did not retire under R.A. No. 1568, as amended, since they never completed the full sevenyear term of office prescribed by Section 2, Article IX-D of the 1987 Constitution; they served as Comelec Commissioners for barely four months, i.e., from February 16, 1998 to June 30, 1998. In the recent case of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, 33 as amended by Republic Act No. 9946, where the Court did not allow Judge Macarambon to retire under R.A. No. 910 because he did not comply with the age and service requirements of the law, the Court emphasized: Strict compliance with the age and service requirements under the law is the rule and the grant of exception remains to be on a case to case basis. We have ruled that the Court allows seeming exceptions to these fixed rules for certain judges and justices only and whenever there are ample reasons to grant such exception. (emphasis ours; citations omitted) More importantly, we agree with the Solicitor General that the petitioners service, if any, could only amount to tenure in office and not to the term of office contemplated by Section 1 of R.A. No. 1568. Tenure and term of office have well-defined meanings in law and jurisprudence. As early as 1946, the Court, 34 in Topacio Nueno v. Angeles, provided clear distinctions between these concepts in this wise: The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold-over. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. There is no principle, law or doctrine by which the term of an office may be extended by reason of war. [emphasis ours] This is the ruling that has been followed since then and is the 35 settled jurisprudence on these concepts. While we characterized an ad interim appointment in Matibag v. 36 Benipayo "as a permanent appointment that takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office," we have also positively ruled in that case that "an ad interim appointment that has lapsed by inaction of the Commission on Appointments 37 does not constitute a term of office." We consequently ruled: However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the 38 Commission on Appointments. (emphasis ours; italics supplied) Based on these considerations, we conclude that the petitioners can never be considered to have retired from the service not only because they did not complete the full term, but, more importantly, because they did not serve a "term of office" as required by Section 1 of R.A. No. 1568, as amended. Ortiz v. COMELEC cannot be applied to the present case We are not unmindful of the Courts ruling in Ortiz v. 39 COMELEC which Barcelona cites as basis for his claim of retirement benefits despite the fact that like the petitioners he did not complete the full term of his office. In that case, the petitioner was appointed as Comelec Commissioner, for a term expiring on May 17, 1992, by then President Ferdinand E. Marcos, and took his oath of office on July 30, 1985. When President Corazon Aquino assumed the Presidency and following the lead of the Justices of the Supreme Court, Ortiz together with the other Comelec Commissioners tendered his courtesy resignation on March 5, 1986. On July 21, 1986, President Aquino accepted their resignations effective immediately. Thereafter, Ortiz applied for retirement benefits under R.A. No. 1568, which application the Comelec denied. The Court, however, reversed the Comelec and held that "[t]he curtailment of [Ortizs] term not being attributable to any voluntary act on the part of the petitioner, equity and justice demand that he should be deemed to have completed his term xxx. [That he] should be placed in the same category as that of an official holding a primarily confidential position whose tenure ends upon his superiors loss of confidence in him." Thus, as "he is deemed to have completed his term of office, [Ortiz] should be considered retired from the 40 service." A close reading of Ortiz reveals that it does not have the same fact situation as the present case and is thus not decisive of the present controversy. We note that the impact of the principle of stare decisis that Barcelona cited as basis is limited; specific judicial decisions are binding only on the parties to the case and on future parties with similar or identical factual 41 situations. Significantly, the factual situation in Ortiz is totally different so that its ruling cannot simply be bodily lifted and applied arbitrarily to the present case. First, in Ortiz, Ortizs appointment was a regular appointment made by then President Marcos, while the petitioners were appointed by President Ramos ad interim or during the recess of Congress. Second, Ortizs appointment was made under the 1973 Constitution which did not require the concurrence of the CA. Notably, the 1973 Constitution abolished the CA and did not provide for an executive limit on the appointing authority of the President. In the present case, the petition ers ad interim appointment was made under the 1987 Constitution which mandated that an appointment shall be effective only until disapproval by the CA or until the next adjournment of Congress. Third, in Ortiz, the Court addressed the issue of whether a constitutional official, whose "courtesy resignation" had been accepted by the President of the Philippines during the effectivity of the Freedom Constitution, may be entitled to retirement benefits under R.A. No. 1568. In the present case, the issue is whether the termination of the petitioners ad interim appointments entitles them to the full five-year lump sum gratuity provided for by R.A. No. 1568.

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No occasion for liberal construction since Section 1 of R.A. No. 1568, as amended, is clear and unambiguous The petitioners appeal to liberal construction of Section 1 of R.A. No. 1568 is misplaced since the law is clear and unambiguous. We emphasize that the primary modality of addressing the present case is to look into the provisions of the retirement law itself. Guided by the rules of statutory construction in this consideration, we find that the language of the retirement law is clear and unequivocal; no room for construction or interpretation exists, only the application of the letter of the law. The application of the clear letter of the retirement law in this case is supported by jurisprudence. As early as 1981, in the 42 case of In Re: Claim of CAR Judge Noel, the Court strictly adhered to the provisions of R.A. No. 910 and did not allow the judges claim of monthly pension and annuity under the aforementioned law, considering that his length of government service fell short of the minimum requirements. Similarly, in Re: Judge Alex Z. Reyes, the Court dismissed CTA Judge Reyes invocation of the doctri ne of liberal construction of retirement laws to justify his request that the last step increment of his salary grade be used in the computation of his retirement pay and terminal leave benefits, and held: In Borromeo, the court had occasion to say: "It is axiomatic that retirement laws are liberally construed and administered in favor of the persons intended to be benefited. All doubts as to the intent of the law should be resolved in favor of the retiree to achieve its humanitarian purposes." Such interpretation in favor of the retiree is unfortunately not called for nor warranted, where the clear intent of the applicable law and rules are demonstrably against the petitioner's claim. (Paredes v. City of Manila, G.R. No. 88879, March 21, 1991). Section 4 is explicit and categorical in its prohibition and, unfortunately for Judge Reyes, applies squarely to the instant 44 case. (emphasis ours; italics supplied) Finally, in Govt Service Insurance System v. Civil Service 45 Commission, the Court was asked to resolve whether government service rendered on a per diem basis is creditable for computing the length of service for retirement purposes. In disregarding the petitioners plea for liberal construction, the Court held: The law is very clear in its intent to exclude per diem in the definition of "compensation." Originally, per diem was not among those excluded in the definition of compensation (See Section 1(c) of C.A. No. 186), not until the passage of the amending laws which redefined it to exclude per diem. The law not only defines the word "compensation," but it also distinguishes it from other forms of remunerations. Such distinction is significant not only for purposes of computing the contribution of the employers and employees to the GSIS but also for computing the employees' service record and benefits. xxxx Private respondents both claim that retirement laws must be liberally interpreted in favor of the retirees. However, the doctrine of liberal construction cannot be applied in the
43

instant petitions, where the law invoked is clear, unequivocal and leaves no room for interpretation or construction. Moreover, to accommodate private respondents' plea will contravene the purpose for which the law was enacted, and will defeat the ends which it sought to attain (cf. Re: Judge 46 Alex Z. Reyes, 216 SCRA 720 [1992]). [italics supplied; emphasis ours] No compelling reasons exist to warrant the liberal application of Section 1 of R.A. No. 1568, as amended, to the present case We find no compelling legal or factual reasons for the application of the Courts liberality in the interpretation of retirement laws to the present case. The discretionary power of the Court to exercise the liberal application of retirement laws is not limitless; its exercise of liberality is on a case-to-case basis and only after a consideration of the factual circumstances that justify the grant of an exception. The recent case of Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No. 910, as amended by Republic Act No. 47 9946 fully explained how a liberal approach in the application of retirement laws should be construed, viz: The rule is that retirement laws are construed liberally in favor of the retiring employee. However, when in the interest of liberal construction the Court allows seeming exceptions to fixed rules for certain retired Judges or Justices, there are ample reasons behind each grant of an exception. The crediting of accumulated leaves to make up for lack of required age or length of service is not done indiscriminately. It is always on a case to case basis. In some instances, the lacking elementsuch as the time to reach an age limit or comply with length of service is de minimis. It could be that the amount of accumulated leave credits is tremendous in comparison to the lacking period of time. More important, there must be present an essential factor before an application under the Plana or Britanico rulings may be granted. The Court allows a making up or compensating for lack of required age or service only if satisfied that the career of the retiree was marked by competence, integrity, and dedication to the public service; it was only a bowing to policy considerations and an acceptance of the realities of political will which brought him or her to premature retirement. (emphases and italics ours; citation omitted) In the present case, as previously mentioned, Ortiz cannot be used as authority to justify a liberal application of Section 1 of R.A. No. 1568, as amended not only because it is not on all fours with the present case; more importantly, the Court in Ortiz had ample reasons, based on the unique factual circumstances of the case, to grant an exception to the service requirements of the law. In Ortiz, the Court took note of the involuntariness of Ortizs "courtesy resignation," as well as the peculiar circumstances obtaining at that time President Aquino issued Proclamation No. 1 calling for the courtesy resignation of all appointive officials, viz: From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his position. We cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his position at the

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disposal of the President. He did not categorically state therein that he was unconditionally giving up his position. It should be remembered that said letter was actually a response to Proclamation No. 1 which President Aquino issued on February 25, 1986 when she called on all appointive public officials to tender their "courtesy resignation" as a "first step to restore 48 confidence in public administration." In stark contrast, no such peculiar circumstances obtain in the present case. Finally, in the absence of any basis for liberal interpretation, the Court would be engaged in judicial legislation if we grant the petitioners plea. We cannot overemphasize that the policy of liberal construction cannot and should not be to the point of engaging in judicial legislation an act that the Constitution absolutely forbids this Court to do. In the oft-cited case of 49 Tanada v. Yulo, Justice George A. Malcolm cautioned against judicial legislation and warned against liberal construction being 50 used as a license to legislate and not to simply interpret, thus: Counsel in effect urges us to adopt a liberal construction of the statute. That in this instance, as in the past, we aim to do. But counsel in his memorandum concedes "that the language of the proviso in question is somewhat defective and does not clearly convey the legislative intent", and at the hearing in response to questions was finally forced to admit that what the Government desired was for the court to insert words and phrases in the law in order to supply an intention for the legislature. That we cannot do. By liberal construction of statutes, courts from the language used, the subject matter, and the purposes of those framing them are able to find out their true meaning. There is a sharp distinction, however, between construction of this nature and the act of a court in engrafting upon a law something that has been omitted which someone believes ought to have been embraced. The former is liberal construction and is a legitimate exercise of judicial power. The latter is judicial legislation forbidden by the tripartite division of powers among the three departments of government, the executive, the legislative, and 51 the judicial. In the present case, Section 1 of R.A. No. 1568, by its plain terms, is clear that retirement entails the completion of the term of office. To construe the term "retirement" in Section 1 of R.A. No. 1568 to include termination of an ad interim appointment is to read into the clear words of the law exemptions that its literal wording does not support; to depart from the meaning expressed by the words of R.A. No. 1568 is to alter the law and to legislate, and not to interpret. We would thereby violate the timehonored rule on the constitutional separation of powers. The words of Justice E. Finley Johnson in the early case of 52 Nicolas v. Alberto still ring true today, viz.: The courts have no legislative powers. In the interpretation and construction of statutes their sole function is to determine, and, within the constitutional limits of the legislative power, to give effect to the intention of the legislature. The courts cannot read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself. To depart from the meaning expressed by the words of a statute, is to alter the statute, to legislate and not to interpret. The responsibility for the justice or wisdom of legislation rests with the legislature, and it is the province of the courts to construe, not to make the laws. To reiterate, in light of the express and clear terms of the law, the basic rule of statutory construction should therefore apply: "legislative intent is to be determined from the language employed, and where there is no ambiguity in the words, there 53 is no room for construction." The Comelec did not violate the rule on finality of judgments Petitioners argue that Resolution No. 06-1369, which initially granted them a five-year lump sum gratuity, attained finality thirty (30) days after its promulgation, pursuant to Section 13, Rule 18 of the Comelec Rules of Procedure, and, thus, can no longer be modified by the Comelec. We cannot agree with this position. Section 13, Rule 18 of the Comelec Rules of Procedure reads: Sec. 13. Finality of Decisions or Resolutions. a. In ordinary actions, special proceedings, provisional remedies and special reliefs a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation. A simple reading of this provision shows that it only applies to ordinary actions, special proceedings, provisional remedies and special reliefs. Under Section 5, Rule 1 of the Comelec Rules of Procedures, ordinary actions refer to election protests, quo warranto, and appeals from decisions of courts in election protest cases; special proceedings refer to annulment of permanent list of voters, registration of political parties and accreditation of citizens arms of the Commission; provisional remedies refer to injunction and/or restraining order; and special reliefs refer to certiorari, prohibition, mandamus and contempt. Thus, it is clear that the proceedings that precipitated the issuance of Resolution No. 06-1369 do not fall within the coverage of the actions and proceedings under Section 13, Rule 18 of the Comelec Rules of Procedure. Thus, the Comelec did not violate its own rule on finality of judgments. 1wphi1 No denial of due process We also find no merit in the petitioners contention that that they were denied due process of law when the Comelec issued Resolution No. 8808 without affording them the benefit of a notice and hearing. We have held in the past that "[t]he essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to seek a reconsideration of the action or ruling complained of. [Thus, a] formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are given fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is absolute lack of notice and 54 55 hearing." In Bautista v. Commission on Elections, we emphasized: In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the right to be heard does not only refer to the right to present verbal arguments in court. A party may also be heard through his pleadings. Where opportunity to be heard is accorded either through oral arguments or pleadings, there is no denial of procedural due process. As reiterated in National

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Semiconductor (HK) Distribution, Ltd. vs. NLRC (G.R. No. 123520, June 26, 1998), the essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side. Hence, in Navarro III vs. Damaso (246 SCRA 260 1995), we held that a formal or trial-type hearing is not at all times and not in all 56 instances essential. (italics supplied) Thus, "a party cannot successfully invoke deprivation of due process if he was accorded the opportunity of a hearing, through either oral arguments or pleadings. There is no denial of due process when a party is given an opportunity through his 57 pleadings." In the present case, the petitioners cannot claim deprivation of due process because they actively participated in the Comelec proceedings that sought for payment of their retirement benefits under R.A. No. 1568. The records clearly show that the issuance of the assailed Comelec resolution was precipitated by the petitioners application for retirement benefits with the Comelec. Significantly, the petitioners were given ample opportunity to present and explain their respective positions when they sought a re-computation of the initial prorated retirement benefits that were granted to them by the Comelec. Under these facts, no violation of the right to due process of law took place. No vested rights over retirement benefits As a last point, we agree with the Solicitor General that the retirement benefits granted to the petitioners under Section 1 of R.A. No. 1568 are purely gratuitous in nature; thus, they have 58 no vested right over these benefits. Retirement benefits as provided under R.A. No. 1568 must be distinguished from a pension which is a form of deferred compensation for services performed; in a pension, employee participation is mandatory, thus, employees acquire contractual or vested rights over the 59 pension as part of their compensation. In the absence of any vested right to the R.A. No. 1568 retirement benefits, the petitioners' due process argument must perforce fail. WHEREFORE, premises considered, we hereby DISMISS the petition for certiorari filed by petitioners Evalyn I. Fetalino and Amado M. Calderon for lack of merit. We likewise DENY Manuel A. Barcelona, Jr.'s petition for intervention for lack of merit. No costs. SO ORDERED. ARTURO D. BRION Associate Justice ________________________________ Edgardo Ligon, and FREEDOM FROM DEBT COALITION (FDC), represented by its Vice President Rebecca L. Malay, AKBAYAN CITIZEN'S ACTION PARTY, represented by its Chair Emeritus Loretta Anne P. Rosales, ALLIANCE OF PROGRESSIVE LABOR, represented by its Chairperson, Daniel L. Edralin, REP. WALDEN BELLO, in his capacity as duly-elected Member of the House of Representatives, Petitioners, vs. POWER SECTOR ASSETS AND LIABILITIES MANAGEMENT CORPORATION (PSALM), represented by its Acting President and Chief Executive Officer Atty. Ma. Luz L. Caminero, METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS), represented by its Administrator Atty. Diosdado M. Allado, NATIONAL IRRIGATION ADMINISTRATION (NIA), represented by its Administrator Carlos S. Salazar, KOREA WATER RESOURCES CORPORATION, represented by its Chief Executive Officer, Kim Kuen-Ho and/or Attorneys-infact, Atty. Anna Bianca L. Torres and Atty. Luther D. Ramos, FIRST GEN NORTHERN ENERGY CORP., represented by its President, Mr. Federico R. Lopez, SAN MIGUEL CORP., represented by its President, Mr. Ramon S. Ang, SNABOITIZ POWER-PANGASINAN INC., represented by its President, Mr. Antonio R. Moraza, TRANS-ASIA OIL AND ENERGY DEVELOPMENT CORPORATION, represented by its President and CEO, Mr. Francisco L. Viray, and DMCI POWER CORP., represented by its President, Mr. Nestor Dadivas, Respondents. DECISION VILLARAMA, J.: Before us is a petition for certiorari and prohibition seeking to permanently enjoin the sale of the Angat Hydro-Electric Power Plant (AHEPP) to Korea Water Resources Corporation (KWater) which won the public bidding conducted by the Power Sector Assets and Liabilities Management Corporation (PSALM). The Facts Respondent PSALM is a government-owned and controlled 1 corporation created by virtue of Republic Act No. 9136, otherwise known as the "Electric Power Industry Reform Act of 2001" (EPIRA). The EPIRAprovided a framework for the restructuring of the electric power industry, including the privatization of the assets of the National Power Corporation (NPC), the transition to the desired competitive structure, and the definition of the responsibilities of the various government agencies and private entities. Said law mandated PSALM to manage the orderly sale, disposition, and privatization of NPC generation assets, real estate and other disposable assets, and Independent Power Producer (IPP) contracts with the objective of liquidating all NPC financial obligations and stranded contract costs in an optimal manner, which liquidation is to be completed 2 within PSALMs 25-year term of existence. Sometime in August 2005, PSALM commenced the privatization of the 246-megawatt (MW) AHEPP located in San Lorenzo, Norzagaray, Bulacan. AHEPPs main units built in 1967 and 1968, and 5 auxiliary units, form part of the Angat Complex which includes the Angat Dam, Angat Reservoir and the outlying watershed area. A portion of the AHEPP - the 10 MW Auxiliary Unit No. 4 completed on June 16, 1986 and the 18 MW Auxiliary Unit No. 5 completed on January 14, 1993 - is

3.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 192088 October 9, 2012

INITIATIVES FOR DIALOGUE AND EMPOWERMENT THROUGH ALTERNATIVE LEGAL SERVICES, INC. (IDEALS, INC.), represented by its Executive Director, Mr.

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owned by respondent Metropolitan Waterworks and Sewerage 3 System (MWSS). The main units produce a total of 200 MW of power while the auxiliary units yield the remaining 46 MW of power. The Angat Dam and AHEPP are utilized for power generation, irrigation, water supply and flood control purposes. Because of its multi-functional design, the operation of the Angat Complex involves various government agencies, namely: (1) NPC; (2) National Water Resources Board (NWRB); (3) MWSS; (4) respondent National Irrigation Administration (NIA); and (5) Philippine Atmospheric, Geophysical and Astronomical Services Administration (PAG-ASA). On December 15, 2009, PSALMs Board of Directors approved the Bidding Procedures for the privatization of the AHEPP. An Invitation to Bid was published on January 11, 12 and 13, 2010 in three major national newspapers. Subject of the bid was the AHEPP consisting of 4 main units and 3 auxiliary units with an aggregate installed capacity of 218 MW. The two auxiliary units owned by MWSS were excluded from the bid. The following terms and conditions for the purchase of AHEPP were set forth in the Bidding Package: IB-05 CONDITION OF THE SALE The Asset shall be sold on an "AS IS, WHERE IS" basis. The Angat Dam (which is part of the Non-Power Components) is a multi-purpose hydro facility which currently supplies water for domestic use, irrigation and power generation. The four main units of the Angat Plant release water to an underground trailrace that flows towards the Bustos Dam which is owned and operated by the National Irrigation Administration ("NIA") and provides irrigation requirements to certain areas in Bulacan. The water from the auxiliary units 1, 2 and 3 flows to the Ipo Dam which is owned and operated by MWSS and supplies domestic water to Metro Manila and other surrounding cities. The priority of water usage under Philippine Law would have to be observed by the Buyer/Operator. The Winning Bidder/Buyer shall be requested to enter into an operations and maintenance agreement with PSALM for the Non-Power Components in accordance with the terms and conditions of the O & M Agreement to be issued as part of the Final Transaction Documents. The Buyer, as Operator, shall be required to operate and maintain the Non-Power Components at its own cost and expense. PSALM is currently negotiating a water protocol agreement with various parties which are currently the MWSS, NIA, the National Water Resources Board and NPC. If required by PSALM, the Buyer will be required to enter into the said water protocol agreement as a condition to the award of the Asset. The Buyer shall be responsible for securing the necessary 4 rights to occupy the land underlying the Asset. (Emphasis supplied.) All participating bidders were required to comply with the following: (a) submission of a Letter of Interest; (b) execution of Confidentiality Agreement and Undertaking; and (c) payment of 5 a non-refundable fee of US$ 2,500 as Participation Fee. After On May 24, 2010, this Court issued a Status QuoAnte Order directing the respondents to maintain the status quo prevailing before the filing of the petition and to file their respective 7 Comments on the petition. Arguments of the Parties Petitioners contend that PSALM gravely abused its discretion when, in the conduct of the bidding it disregarded and violated the peoples right to information guaranteed under the Constitution, as follows: (1) the bidding process was commenced by PSALM without having previously released to the public critical information such as the terms and conditions of the sale, the parties qualified to bid and the minimum bid price, as laid down in the case of Chavez v. Public Estates 8 Authority ; (2) PSALM refused to divulge significant information requested by petitioners, matters which are of public concern; and (3) the bidding was not conducted in an open and transparent manner, participation was indiscriminately restricted to the private sectors in violation of the EPIRA which provides that its provisions shall be "construed in favor of the establishment, promotion, preservation of competition and people empowerment so that the widest participation of the 9 people, whether directly or indirectly, is ensured." Petitioners also assail the PSALM in not offering the sale of the AHEPP to MWSS which co-owned the Angat Complex together with NPC and NIA. Being a mere co-owner, PSALM cannot sell the AHEPP without the consent of co-owners MWSS and NIA, and being an indivisible thing, PSALM has a positive obligation to offer its undivided interest to the other co-owners before selling the same to an outsider. Hence, PSALMs unilateral disposition of the said hydro complex facility violates the Civil Code rules on co-ownership (Art. 498) and Sec. 47 (e) of the EPIRA which granted PSALM the legal option of transferring possession, control and operation of NPC generating assets like the AHEPP to another entity in order "to protect potable water, irrigation and all other requirements imbued with public interest." As to the participation in the bidding of and award of contract to holding pre-bid conferences and forum discussions with various stakeholders, PSALM received the following bids from six competing firms:

K-Water US$ 440 First Gen Northern Energy 365 Corporation San Miguel Corporation 312 SNAboitiz Power-Pangasinan, Inc. 256 Trans-Asia Oil & Energy 237 Development Corporation DMCI Power Corporation 188 On May 5, 2010, and after a post-bid evaluation, PSALMs Board of Directors approved and confirmed the issuance of a 6 Notice of Award to the highest bidder, K-Water. On May 19, 2010, the present petition with prayer for a temporary restraining order (TRO) and/or writ of preliminary injunction was filed by the Initiatives for Dialogue and Empowerment Through Alternative Legal Services, Inc. (IDEALS), Freedom from Debt Coalition (FDC), AKBAYAN Citizens Action Party (AKBAYAN) and Alliance of Progressive Labor.

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K-Water which is a foreign corporation, petitioners contend that PSALM clearly violated the constitutional provisions on the appropriation and utilization of water as a natural resource, as implemented by the Water Code of the Philippines limiting water rights to Filipino citizens and corporations which are at least 60% Filipino-owned. Further considering the importance of the Angat Dam which is the source of 97% of Metro Manilas water supply, as well as irrigation for farmlands in 20 municipalities and towns in Pampanga and Bulacan, petitioners assert that PSALM should prioritize such domestic and community use of water over that of power generation. They maintain that the Philippine Government, along with its agencies and subdivisions, have an obligation under international law, to recognize and protect the legally enforceable human right to water of petitioners and the public in general. Petitioners cite the Advisory on the "Right to Water in Light of 10 the Privatization of the Angat Hydro-Electric Power Plant" dated November 9, 2009 issued by the Commission on Human Rights (CHR) urging the Government to revisit and reassess its policy on water resources vis--vis its concurrent obligations under international law to provide, and ensure and sustain, among others, "safe, sufficient, affordable and convenient access to drinking water." Since investment in hydropower business is primarily driven by generation of revenues both for the government and private sector, the CHR warns that once the AHEPP is privatized, there will be less accessible water supply, particularly for those living in Metro Manila and the Province of Bulacan and nearby areas which are currently benefited by the AHEPP. The CHR believes that the management of AHEPP is better left to MWSS being a government body and considering the public interest involved. However, should the decision to privatize the AHEPP become inevitable, the CHR strongly calls for specific and concrete safeguards to ensure the right to water of all, as the domestic use of water is more fundamental than the need for electric power. Petitioners thus argue that the protection of their right to water and of public interest requires that the bidding process initiated by PSALM be declared null and void for violating such right, as defined by international law and by domestic law establishing the States obligation to ensure water security for its people. In its Comment With Urgent Motion to Lift Status Quo Ante Order, respondent PSALM prayed for the dismissal of the petition on the following procedural grounds: (a) a petition for certiorari is not the proper remedy because PSALM was not acting as a tribunal or board exercising judicial or quasi-judicial functions when it commenced the privatization of AHEPP; (b) the present petition is rendered moot by the issuance of a Notice of Award in favor of K-Water; (c) assuming the petition is not mooted by such contract award, this Court has no jurisdiction over the subject matter of the controversy involving a political question, and also because if it were the intent of Congress to exclude the AHEPP in the privatization of NPC assets, it should have clearly expressed such intent as it did with the Agus and Pulangui power plants under Sec. 47 of the EPIRA; (d) petitioners lack of standing to que stion the bidding process for failure to show any injury as a result thereof, while Rep. Walden Bello likewise does not have such legal standing in his capacity as a duly elected member of the House of Representatives as can be gleaned from the rulings in David v. 11 12 Arroyo and Philippine Constitutional Association v. Enriquez. On the alleged violation of petitioners right to information, PSALM avers that it conducted the bidding in an open and transparent manner, through a series of events in accordance with the governing rules on public bidding. The non-disclosure of certain information in the invitation to bid was understandable, such as the minimum or reserve price which are still subject to negotiation and approval of PSALMs Board 13 of Directors. The ruling in Chavez v. Public Estates Authority is inapplicable since it involved government property which has become unserviceable or was no longer needed and thus fell under Sec. 79 of the Government Auditing Code whereas the instant case concerns a hydroelectric power plant adjacent to a dam which still provides water supply to Metro Manila. In the bidding for the AHEPP, PSALM claims that it relied on the Rules and Regulations Implementing the EPIRA, as well as COA Circular No. 89-296 on the general procedures for bidding by government agencies and instrumentalities of assets that will be divested or government property that will be disposed of. PSALM likewise avers that it was constrained to deny petitioner IDEALS letter dated April 20, 2010 requesting d ocuments relative to the privatization of Angat Dam due to non-submission of a Letter of Interest, Confidentiality and Undertaking and nonpayment of the Participation Fee. With regard to IDEALS request for information about the winning bidder, as contained in its letter dated May 14, 2010, the same was already referred to respondent K-Waters counsel for appropriate action. In any case, PSALM maintains that not all details relative to the privatization of the AHEPP can be readily disclosed; the confidentiality of certain matters was necessary to ensure the optimum bid price for the property. PSALM further refutes the assertion of petitioners that the Angat Complex is an indivisible system and co-owned with MWSS and NIA. It contends that MWSSs contribution in the funds used for the construction of the AHEPP did not give rise to a regime of co-ownership as the said funds were merely in exchange for the supply of water that MWSS would get from the Angat Dam, while the Umiray-AngatTransbasin Rehabilitation Project the improvement and repair of which were funded by MWSS, did not imply a co-ownership as these facilities are located in remote places. Moreover, PSALM points out that PSALM, MWSS and NIA each was issued a water permit, and are thus holders of separate water rights. On the alleged violation of petitioners and the peoples right to water, PSALM contends that such is baseless and proceeds from the mistaken assumption that the Angat Dam was sold and as a result thereof, the continuity and availability of domestic water supply will be interrupted. PSALM stresses that only the hydroelectric facility is being sold and not the Angat Dam which remains to be owned by PSALM, and that the NWRB still governs the water allocation therein while the NPC-FFWSDO still retains exclusive control over the opening of spillway gates during rainy season. The foregoing evinces the continued collective control by government agencies over the Angat Dam, which in the meantime, is in dire need of repairs, the cost of which cannot be borne by the Government. PSALM further debunks the nationality issue raised by petitioners, citing previous opinions rendered by the Department of Justice (DOJ) consistently holding that the utilization of water by a hydroelectric power plant does not constitute appropriation of water from its natural source considering that the source of water (dam) that enters the intake gate of the power plant is an artificial structure. Moreover, PSALM is mindful of the States

13
duty to protect the publics right to water when it sold the AHEPP. In fact, such concern as taken into consideration by PSALM in devising a privatization scheme for the AHEPP whereby the water allocation is continuously regulated by the NWRB and the dam and its spillway gates remain under the ownership and control of NPC. In its Comment, respondent MWSS asserts that by virtue of its various statutory powers since its creation in 1971, which includes the construction, maintenance and operation of dams, reservoir and other waterworks within its territorial jurisdiction, it has supervision and control over the Angat Dam given that the Angat Reservoir supplies approximately 97% of the water requirements of Metro Manila. Over the course of its authority over the Angat Dam, Dykes and Reservoir, MWSS has incurred expenses to maintain their upkeep, improve and upgrade their facilities. Thus, in 1962, MWSS contributed about 20% for the construction cost of the Angat Dam and Dykes (then equivalent to about P 21 million); in 1992, MWSS contributed about P 218 million for the construction of Auxiliary Unit No. 5; in 1998, MWSS contributed P 73.5 million for the construction cost of the low level outlet; and subsequently, MWSS invested P 3.3 billion to build the Umiray-AngatTransbasin Tunnel to supplement the water supply available from the Angat Dam, which tunnel contributes a minimum of about 9 cubic meters per second to the Angat Reservoir, thus increasing power generation. MWSS argues that its powers over waterworks are vested upon it by a special law (MWSS Charter) which prevails over the EPIRA which is a general law, as well as other special laws, issuances and presidential edicts. And as contained in Sec. 1 of the MWSS Charter, which remains valid and effective, it is expressly provided that the establishment, operation and maintenance of waterworks systems must always be supervised by the State. MWSS further alleges that after the enactment of EPIRA, it had expressed the desire to acquire ownership and control of the AHEPP so as not to leave the operation of the Angat Reservoir to private discretion that may prejudice the water allocation to MWSS as dictated by NWRB rules. Representations were thereafter made with the Office of the President (OP) for the turn over of the management of these facilities to MWSS, and joint consultation was also held with PSALM officials for the possibility of a Management Committee to manage and control the Angat Dam Complex under the chairmanship of the water sector, which position was supported by former Secretary HermogenesEbdane of the Department of Public Works and Highways (DPWH). In March 2008, PSALM proposed the creation of an inter-agency technical working group (TWG) to draft the Operations and Maintenance (O & M) Agreement for the AHEPP that will be in effect after its privatization. PSALM likewise sought the view of the Office of the Government Corporate Counsel (OGCC) which opined that PSALM may turn over the facility to a qualified entity such as MWSS without need of public bidding. In 2009, various local governments supported the transfer of the control and management of the AHEPP to MWSS, while the League of Cities and Municipalities interposed its opposition to the privatization of the AHEPP fearing that it might increase the cost of water in Metro Manila, and also because it will be disadvantageous to the national government since the AHEPP only contributes 246 MW of electricity to the Luzon Grid. Even the CHR has advised the Government to reassess its privatization policy and to always consider paramount the most basic resources necessary and indispensable for human
14

survival, which includes water. MWSS further avers that upon the facilitation of the OGCC and participated in by various stakeholders, including its two concessionaires, Manila Water Company, Inc. and Maynilad Water Services, Inc., various meetings and conferences were held relative to the drafting of the Memorandum of Agreement on the Angat Water Protocol. On April 20, 2010, the final draft of the Angat Water Protocol was finally complete. However, as of June 18, 2010, only MWSS and NIA signed the said final draft. MWSS thus contends that PSALM failed to institute any safeguards as prescribed in Sec. 47 of the EPIRA when it proceeded with the privatization of the AHEPP. As to the issue of nationality requirement in the appropriation of water resources under the Constitution, MWSS cites the case of 15 Manila Prince Hotel v. Government Service Insurance System which interpreted paragraph 2, Sec. 10, Art. XII of the 1987 Constitution providing that "in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos" to imply "a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement x xx and is per se judicially enforceable." In this case, the AHEPP is in dire danger of being wholly-owned by a Korean corporation which probably merely considers it as just another business opportunity, and as such cannot be expected to observe and ensure the smooth facilitation of the more critical purposes of water supply and irrigation. Respondent First Gen Northern Energy Corporation (FGNEC) 16 also filed a Comment disagreeing with the contentions of petitioners and respondent MWSS on account of the following: (1) the NPC charter vested upon it complete jurisdiction and control over watersheds like the Angat Watershed surrounding the reservoir of the power plants, and hence Art. 498 of the Civil Code is inapplicable; (2) NPC, MWSS and NIA are not coowners of the various rights over the Angat Dam as in fact each of them holds its own water rights; (3) the State through the EPIRA expressly mandates PSALM to privatize all NPC assets, which necessarily includes the AHEPP; (4) the privatization of the AHEPP will not affect the priority of water for domestic and municipal uses as there are sufficient safeguards to ensure the same, and also because the Water Code specifically mandates that such use shall take precedence over other uses, and even the EPIRA itself gives priority to use of water for domestic and municipal purposes over power generation; (5) the Water Protocol also safeguards priority of use of water for domestic purposes; (6) the bidding procedure for the AHEPP was valid, and the bidding was conducted by PSALM in an open and transparent manner; and (7) the right to information of petitioners and the public in general was fully satisfied, and PSALM adopted reasonable rules and regulations for the orderly conduct of its functions pursuant to its mandate under the EPIRA. FGNEC nevertheless prays of this Court to declare the nationality requirements for the ownership, operation and maintenance of the AHEPP as prescribed by the Constitution and pertinent laws. Considering the allegation of petitioners that K-Water is owned by the Republic of South Korea, FGNEC asserts that PSALM should not have allowed said entity to participate in the bidding because under our Constitution, the

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exploration, development and utilization of natural resources are reserved to Filipino citizens or to corporations with 60% of their capital being owned by Filipinos. Respondent NIA filed its Comment stating that its interest in this case is limited only to the protection of its water allocation drawn from the Angat Dam as determined by the NWRB. Acknowledging that it has to share the meager water resources with other government agencies in fulfilment of their respective mandate, NIA submits that it is willing to sit down and discuss issues relating to water allocation, as evidenced by the draft Memorandum of Agreement on the Angat Water Protocol. Since the reliefs prayed for in the instant petition will not be applicable to NIA which was not involved in the bidding conducted by PSALM, it will thus not be affected by the outcome of the case. Respondents San Miguel Corporation (SMC), DMCI Power Corporation, Trans-Asia Oil and Energy Development Corporation and SNAboitiz Power-Pangasinan, Inc. filed their 18 respective Comments with common submission that they are not real parties-in-interest and should be excluded from the case. They assert that PSALM acted pursuant to its mandate to privatize the AHEPP when it conducted the bidding, and there exists no reason for them to take any action to invalidate the said bidding wherein they lost to the highest bidder K-Water. On its part, respondent K-Water filed a Manifestation In Lieu of 19 Comment stating that it is not in a position to respond to petitioners allegations, having justifiably relied on the mandate and expertise of PSALM in the conduct of public bidding for the privatization of the AHEPP and had no reason to question the legality or constitutionality of the privatization process, including the bidding. K-Water submits that its participation in the bidding for the AHEPP was guided at all times by an abiding respect for the Constitution and the laws of the Philippines, and hopes for a prompt resolution of the present petition to further strengthen and enhance the investment environment considering the level of investment entailed, not only in financial terms by providing a definitive resolution and reliable guidance for investors, whether Filipino or foreign, as basis for effective investment and business decisions. In their Consolidated Reply, petitioners contend that the instant petition is not mooted with the issuance of a Notice of Award to K-Water because the privatization of AHEPP is not finished until and unless the deed of absolute sale has been 21 executed. They cite the ruling in David v. Arroyo, that courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; and fourth, the case is capable of repetition yet evading review. Petitioners reiterate their legal standing to file the present suit in their capacity as taxpayers, or as Filipino citizens asserting the promotion and protection of a public right, aside from being directly injured by the proceedings of PSALM. As to the absence of Certification and Verification of Non-Forum Shopping from petitioner Bello in the file copy of PSALM, the same was a mere inadvertence in photocopying the same. On the matter of compliance with an open and transparent
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bidding, petitioners also reiterate as held in Chavez v. Public 22 Estates Authority, that the Courts interpretation of public bidding applies to any law which requires public bidding, especially since Sec. 79 of the Government Auditing Code does not enumerate the data that must be disclosed to the public. PSALM should have followed the minimum requirements laid down in said case instead of adopting the "format generally used by government entities in their procurement of goods, infrastructure and consultancy services," considering that what was involved in Chavez is an amended Joint Venture Agreement which seeks to transfer title and ownership over government property. Petitioners point out that the requirement under COA Circular 89-296 as regards confidentiality covers only sealed proposals and not all information relating to the AHEPP privatization. PSALMs simple referral of IDEALS request letter to the counsel of K-Water is very telling, indicating PSALMs limited knowledge about a company it allowed to participate in the bidding and which even won the bidding. On the transfer of water rights to K-Water, petitioners reiterate that this violates the Water Code, and contrary to PSALMs statements, once NPC transfers its water permit to K-Water, in accordance with the terms of the Asset Purchase Agreement, NPC gives up its authority to extract or utilize water from the Angat River. Petitioners further assert that the terms of the sale of AHEPP allowing the buyer the operation and management of the Non-Power Components, constitutes a relinquishment of government control over the Angat Dam, in violation of Art. XII, Sec. 2 of the Constitution. PSALM likewise has not stated that all stakeholders have signed the Water Protocol. Such absence of a signed Water Protocol is alarming in the light of PSALMs pronouncement that the terms of the sale to K-Water would still subject to negotiation. Is PSALMs refusal to sign the Water Protocol part of its strategy to negotiate the terms of the sale with the bidders? If so, then PSALM is blithely and cavalierly bargaining away the Filipinos right to water. Responding to the claims of MWSS in its Comment, PSALM contends that MWSSs allegations regarding the bidding process is belied by MWSSs own admission that it held discussions with PSALM to highlight the important points and issues surrounding the AHEPP privatization that needed to be threshed out. Moreover, MWSS also admits having participated, along with other agencies and stakeholders, various meetings and conferences relative to the drafting of a Memorandum of Agreement on the Angat Water Protocol. As regards the Angat Dam, PSALM emphasizes that MWSS never exercised jurisdiction and control over the said facility. PSALM points out that the Angat Dam was constructed in 1967, or four years before the enactment of Republic Act No. 6234, upon the commissioning thereof by the NPC and the consequent construction by Grogun, Inc., a private corporation. MWSS attempt to base its claim of jurisdiction over the Angat Dam upon its characterization of EPIRA as a general law must likewise fail. PSALM explains that EPIRA cannot be classified as a general law as it applies to a particular portion of the State, i.e., the energy sector. The EPIRA must be deemed an exception to the provision in the Revised MWSS Charter on MWSSs general jurisdiction over waterworks systems. PSALM stresses that pursuant to the EPIRA, PSALM took ownership of all existing NPC generation assets, liabilities, IPP contracts, real estate and other disposable assets, which necessarily includes the AHEPP Complex, of which the Angat Dam is part. As to the OGCC opinion cited by MWSS to support

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its position that control and management of the Angat Dam Complex should be turned over to MWSS, the OGCC had already issued a second opinion dated August 20, 2008 which clarified the tenor of its earlier Opinion No. 107, s. 2008, stating that "the disposal of the Angat HEPP by sale through public bidding the principal mode of disposition under EPIRA remains PSALMs primary option." Moreover, as pointed out by the National Economic Development Authority (NEDA) in its letter dated September 16, 2009, the ownership and operation of a hydropower plant goes beyond the mandate of MWSS. This view is consistent with the provisions of EPIRA mandating the transfer of ownership and control of NPC generation assets, IPP Contracts, real estate and other disposable assets to a private person or entity. Consequently, a transfer to another government entity of the said NPC assets would be a clear violation of the EPIRA. Even assuming such is allowed by EPIRA, it would not serve the objective of the EPIRA, i.e., that of liquidating all NPCs financial obligations and would merely transfer NPCs debts from the hands of one government entity to another, the funds that would be utilized by MWSS in the acquisition of the AHEPP would doubtless come from the pockets of the Filipino people. As regards the opposition of various local government units to the sale of the AHEPP, PSALM said that a forum was held specifically to address their concerns. After the said forum, these LGUs did not anymore raise the same concerns; such inaction on their part could be taken as an acquiescence to, and acceptance of, the explanations made by PSALM during the forum. PSALM had made it clear that it is only the AHEPP and not the Angat Dam which was being privatized. The same wrong premise underpinned the position of the CHR with its erroneous allegation that MWSS is allowed, under its Revised Charter, to operate and maintain a power plant. PSALM further contends that the sale of AHEPP to K-Water did not violate the Constitutions provision on the States natural resources and neither is the ruling in Manila Prince Hotel applicable as said case was decided under different factual circumstances. It reiterates that the AHEPP, being a generation asset, can be sold to a foreign entity, under the EPIRA, in accordance with the policy reforms said law introduced in the power sector; the EPIRA aims to enable open access in the electricity market and then enable the government to concentrate more fully on the supply of basic needs to the Filipino people. Owing to the competitive and open nature of the generation sector, foreign corporation may own generation assets. Issues The present controversy raised the following issues: 1) Legal standing of petitioners; 2) Mootness of the petition; 3) Violation of the right to information; 4) Ownership of the AHEPP; 5) Violation of Sec. 2, Art. XII of the Constitution; 6) Violation of the Water Code provisions on the grant of water rights; and 7) Failure of PSALM to comply with Sec. 47 (e) of EPIRA. Mootness and Locus Standi PSALMs contention that the present petition had already been mooted by the issuance of the Notice of Award to K-Water is misplaced. Though petitioners had sought the immediate issuance of injunction against the bidding commenced by PSALM -- specifically enjoining it from proceeding to the next step of issuing a notice of award to any of the bidders -- they further prayed that PSALM be permanently enjoined from disposing of the AHEPP through privatization. The petition was thus filed not only as a means of enforcing the States obligation to protect the citizens "right to water" that is recognized under international law and legally enforceable under our Constitution, but also to bar a foreign corporation from exploiting our water resources in violation of Sec. 2, Art. XII of the 1987 Constitution. If the impending sale of the AHEPP to K-Water indeed violates the Constitution, it is the duty of the Court to annul the contract award as well as its implementation. As this Court held in 23 Chavez v. Philippine Estates Authority, "supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution." We also rule that petitioners possess the requisite legal standing in filing this suit as citizens and taxpayers. "Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged, alleging more than a generalized grievance. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court 24 depends for illumination of difficult constitutional questions." This Court, however, has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the 25 issues raised are of paramount importance to the public. Thus, when the proceeding involves the assertion of a public right, the mere fact that the petitioner is a citizen satisfies the 26 requirement of personal interest. There can be no doubt that the matter of ensuring adequate water supply for domestic use is one of paramount importance to the public. That the continued availability of potable water in Metro Manila might be compromised if PSALM proceeds with the privatization of the hydroelectric power plant in the Angat Dam Complex confers upon petitioners such personal stake in the resolution of legal issues in a petition to stop its implementation. Moreover, we have held that if the petition is anchored on the peoples right to information on matters of public concern, any citizen can be the real party in interest. The requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public which possesses the right. There is no need to show any special interest in the result. It is sufficient that petitioners are citizens and, as such, are interested in the faithful execution of the

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laws.
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Violation of Right to Information The peoples right to information is provided in Section 7, Article III of the Constitution, which reads: Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Emphasis supplied.) The peoples constitutional right to information is intertwined with the governments constitutional duty of full public disclosure 28 of all transactions involving public interest. Section 28, Article II of the Constitution declares the State policy of full transparency in all transactions involving public interest, to wit: Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Italics supplied.) The foregoing constitutional provisions seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights. They are also essential to hold public officials "at all times x xx accountable to the people," for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of 29 any democracy. Consistent with this policy, the EPIRA was enacted to provide for "an orderly and transparent privatization" of NPCs assets 30 and liabilities. Specifically, said law mandated that "all assets of NPC shall be sold in an open and transparent manner 31 through public bidding." In Chavez v. Public Estates Authority involving the execution of an Amended Joint Venture Agreement on the disposition of reclaimed lands without public bidding, the Court held: x x xBefore the consummation of the contract, PEA must, on its own and without demand from anyone, disclose to the public matters relating to the disposition of its property. These include the size, location, technical description and nature of the property being disposed of, the terms and conditions of the disposition, the parties qualified to bid, the minimum price and similar information. PEA must prepare all these data and disclose them to the public at the start of the disposition process, long before the consummation of the contract, because the Government Auditing Code requires public bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at any time during the bidding process.
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Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the publics right to information attaches, and any citizen can access all the nonproprietary information leading to such definite proposition. In Chavez v. PCGG, the Court ruled as follows: "Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of illgotten wealth. Such information, though, must pertain to definite propositions of the government not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the "exploratory" stage. There is need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information." (Emphasis supplied.) Chavez v. Public Estates Authority thus laid down the rule that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. In addition, Congress has prescribed other limitations on the right 33 to information in several legislations. In this case, petitioners first letter dated April 20, 2010 requested for documents such as Terms of Reference and proposed bids submitted by the bidders. At that time, the bids were yet to be submitted at the bidding scheduled on April 28, 2010. It is also to be noted that PSALMs website carried news and updates on the sale of AHEPP, providing important information on bidding activities and clarifications regarding the terms and conditions of the Asset Purchase Agreement (APA) 34 to be signed by PSALM and the winning bidder (Buyer). In Chavez v. National Housing Authority, the Court held that pending the enactment of an enabling law, the release of information through postings in public bulletin boards and government websites satisfies the constitutional requirement, thus: It is unfortunate, however, that after almost twenty (20) years from birth of the 1987 Constitution, there is still no enabling law that provides the mechanics for the compulsory duty of government agencies to disclose information on government transactions. Hopefully, the desired enabling law will finally see the light of day if and when Congress decides to approve the proposed "Freedom of Access to Information Act." In the meantime, it would suffice that government agencies post on their bulletin boards the documents incorporating the information on the steps and negotiations that produced the agreements and the agreements themselves, and if finances
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permit, to upload said information on their respective websites for easy access by interested parties. Without any law or regulation governing the right to disclose information, the NHA or any of the respondents cannot be faulted if they were not able to disclose information relative to the SMDRP to the public 36 in general. (Emphasis supplied.) The Court, however, distinguished the duty to disclose information from the duty to permit access to information on matters of public concern under Sec. 7, Art. III of the Constitution. Unlike the disclosure of information which is mandatory under the Constitution, the other aspect of the peoples right to know requires a demand or request for one to gain access to documents and paper of the particular agency. Moreover, the duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the 37 government agency. Such relief must be granted to the party requesting access to official records, documents and papers relating to official acts, transactions, and decisions that are relevant to a government contract. Here, petitioners second letter dated May 14, 2010 specifically requested for detailed information regarding the winning bidder, such as company profile, contact person or responsible officer, office address and Philippine registration. But before PSALM could respond to the said letter, petitioners filed the present suit on May 19, 2010. PSALMs letter-reply dated May 21, 2010 advised petitioners that their letter-re quest was referred to the counsel of K-Water. We find such action insufficient compliance with the constitutional requirement and inconsistent with the policy under EPIRA to implement the privatization of NPC assets in an "open and transparent" manner. PSALMs evasive response to the request for information was unjustified because all bidders were required to deliver documents such as company profile, names of authorized officers/representatives, financial and technical experience. Consequently, this relief must be granted to petitioners by directing PSALM to allow petitioners access to the papers and documents relating to the company profile and legal capacity of the winning bidder. Based on PSALMs own press releases, K Water is described as a Korean firm with extensive experience in implementing and managing water resources development projects in South Korea, and also contributed significantly to the development of that countrys heavy and chemical industries and the modernization of its national industrial structure. AngatHEPP is Under the Jurisdiction of the Department of Energy Through NPC It must be clarified that though petitioners had alleged a coownership by virtue of the joint supervision in the operation of the Angat Complex by MWSS, NPC and NIA, MWSS actually recognized the ownership and jurisdiction of NPC over the hydroelectric power plant itself. While MWSS had initially sought to acquire ownership of the AHEPP without public bidding, it now prays that PSALM be ordered to turn over the possession and control of the said facility to MWSS. MWSS invokes its own authority or "special powers" by virtue of its general jurisdiction over waterworks systems, and in consideration of its substantial investments in the construction of two auxiliary units in the AHEPP, as well as the construction of the Umiray-AngatTransbasin Tunnel to supplement the water intake at the Angat Reservoir which resulted in increased power generation. Records disclosed that as early as December 2005, following the decision of PSALMs Board of Directors to commence the sale process of the AHEPP along with Magat and AmlanHEPPs in August 2005, MWSS was actively cooperating and working with PSALM regarding the proposed Protocol for the Privatization of the AHEPP, specifically on the terms and conditions for the management, control and operation of the Angat Dam Complex taking into consideration the concerns of its concessionaires. A Technical Working Group (TWG) similar to that formed for the Operation and Management Agreement of Pantabangan and Magat dams was created, consisting of representatives from PSALM, MWSS and other concerned agencies, to formulate strategies for the effective implementation of the privatization of AHEPP and appropriate structure for the operation and management of the Angat Dam 38 Complex. In March 2008, PSALM sought legal advice from the OGCC on available alternatives to a sale structure for the AHEPP. On May 27, 2008, then Government Corporate Counsel Alberto C. 39 Agra issued Opinion No. 107, s. 2008 stating that PSALM is not limited to "selling" as a means of fulfilling its mandate under the EPIRA, and that in dealing with the AHEPP, PSALM has the following options: 1. Transfer the ownership, possession, control, and operation of the Angat Facility to another entity, which may or may not be a private enterprise, as specifically provided under Section 47 (e) of RA 9136; 2. Transfer the Angat Facility, through whatever form, to 40 another entity for the purpose of protecting the public interest. The OGCC cited COA Circular No. 89-296 which provides that government property or assets that are no longer serviceable or needed "may be transferred to other government entities/agencies without cost or at an appraised value upon authority of the head or governing body of the agency or corporation, and upon due accomplishment of an Invoice and Receipt of Property." Pointing out the absence of any prohibition under R.A. No. 9136 and its IRR for PSALM to transfer the AHEPP to another government instrumentality, and considering that MWSS is allowed under its charter to acquire the said facility, the OGCC expressed the view that PSALM may, "in the interest of stemming a potential water crisis, turn over the ownership, operations and management of the Angat Facility to a qualified entity, such as the MWSS, without need of 41 public bidding as the latter is also a government entity." Consequently, MWSS requested the Office of the President (OP) to exclude the AHEPP from the list of NPC assets to be privatized under the EPIRA. Said request was endorsed to the Department of Finance (DOF) which requested the National Economic Development Authority (NEDA) to give its comments. Meanwhile, on August 20, 2008, the OGCC issued a 42 Clarification on its Opinion No. 107, s. 2008 stating that the tenor of the latter issuance was "permissive" and "necessarily, the disposal of the AHEPP by sale through public bidding the principal mode of disposition under x xx R.A. 9136 remains PSALMs primary option." The OGCC further explained its position, thus:

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If, in the exercise of PSALMs discretion, it determines that privatization by sale through public bidding is the best mode to fulfill its mandate under R.A. 9136, and that this mode will not contravene the States declared policy on water resources, then the same is legally permissible. Finally, in OGCC Opinion No. 107 s. 2008, this Office underscored "the overriding policy of the State x xx recognizing that water is vital to national development x xx and the crucial role which the Angat Facility plays in the uninterrupted and adequate supply and distribution of potable water to residents of Metro Manila." This Office reiterates "the primacy of the States interest in mitigating the possible deleterious effects of an impending "water crisis" encompassing areas even beyond Metro Manila." Any transfer of the AHEPP to be undertaken by PSALM whether to a private or public entity must not contravene the States declared policy of ensuring the flow of clean, potable water under RA 6395 and 9136, and Presidential Decree 1067. Hence, said transfer and/or privatization scheme must ensure the preservation of the AHEPP as a vital source of 43 water for Metro Manila and the surrounding provinces. (Emphasis supplied.) On September 16, 2009, NEDA Deputy Director General Rolando G. Tungpalan, by way of comment to MWSSs position, wrote the DOF stating that MWSSs concern on ensuring an uninterrupted and adequate supply of water for domestic use is amply protected and consistently addressed in the EPIRA. Hence, NEDA concluded that there appears to be no basis to exclude AHEPP from the list of NPC generation assets to be privatized and no compelling reason to transfer its 44 management, operations and control to MWSS. NEDA further pointed out that: Ownership and operation of a hydropower plant, however, goes beyond the mandate of MWSS. To operate a power generation plant, given the sectors legislative setup would require certification and permits that has to be secured by the operator. MWSS does not have the technical capability to undertake the operation and maintenance of the AHEPP nor manage the contract of a contracted private party to undertake the task for MWSS. While MWSS may tap NPC to operate and maintain the AHEPP, this, similar to contracting out a private party, may entail additional transaction costs, and ultimately 45 result to higher generation rates. (Emphasis supplied.) Thereafter, MWSS sought the support of the DPWH in a letter dated September 24, 2009 addressed to then Secretary Hermogenes E. Ebdane, Jr., for the exclusion of the AHEPP from the list of NPC assets to be privatized and instead transfer the ownership, possession and control thereof to MWSS with reasonable compensation. Acting on the said request, Secretary Ebdane, Jr. wrote a memorandum for the President recommending that "the Angat Dam be excluded from the list of NPC assets to be privatized, and that the ownership, management and control of the Dam be transferred from NPC 46 to MWSS, with reasonable compensation." Based on the foregoing factual backdrop, there seems to be no dispute as to the complete jurisdiction of NPC over the government-owned Angat Dam and AHEPP. The Angat Reservoir and Dam were constructed from 1964 to 1967 and have become operational since 1968. They have multiple functions: 1) To provide irrigation to about 31,000 hectares of land in 20 municipalities and towns in Pampanga and Bulacan; 2) To supply the domestic and industrial water requirements of residents in Metro Manila; 3) To generate hydroelectric power to feed the Luzon Grid; and 4) To reduce flooding to downstream towns and villages.
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The Angat Dam is a rockfill dam with a spillway equipped with three gates at a spilling level of 219 meters and has storage capacity of about 850 million cubic meters. Water supply to the MWSS is released through five auxiliary turbines where it is 48 diverted to the two tunnels going to the Ipo Dam. The Angat Dam is one of the dams under the management of NPC while the La Mesa and Ipo dams are being managed by MWSS. MWSS is a government corporation existing by virtue of R.A. 49 No. 6234. NAPOCOR or NPC is also a government-owned 50 corporation created under Commonwealth Act (C.A.) No. 120, which, among others, was vested with the following powers under Sec. 2, paragraph (g): (g) To construct, operate and maintain power plants, auxiliary plants, dams, reservoirs, pipes, mains, transmission lines, power stations and substations, and other works for the purpose of developing hydraulic power from any river, creek, lake, spring and waterfall in the Philippines and supplying such power to the inhabitants thereof; to acquire, construct, install, maintain, operate and improve gas, oil, or steam engines, and/or other prime movers, generators and other machinery in plants and/or auxiliary plants for the production of electric power; to establish, develop, operate, maintain and administer power and lighting system for the use of the Government and the general public; to sell electric power and to fix the rates and provide for the collection of the charges for any service rendered: Provided, That the rates of charges shall not be subject to revision by the Public Service Commission; x x x x (Emphasis supplied.) On September 10, 1971, R.A. No. 6395 was enacted which revised the charter of NPC, extending its corporate life to the year 2036. NPC thereafter continued to exercise complete jurisdiction over dams and power plants including the Angat Dam, Angat Reservoir and AHEPP. While the NPC was expressly granted authority to construct, operate and maintain power plants, MWSS was not vested with similar function. Section 3 (f), (o) and (p) of R.A. No. 6234 provides that MWSSs powers and attributes include the following (f) To construct, maintain, and operate dams, reservoirs, conduits, aqueducts, tunnels, purification plants, water mains, pipes, fire hydrants, pumping stations, machineries and other waterworks for the purpose of supplying water to the inhabitants of its territory, for domestic and other purposes; and to purify, regulate and control the use, as well as prevent the wastage of water; xxxx (o) To assist in the establishment, operation and maintenance of waterworks and sewerage systems within its jurisdiction under cooperative basis;

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(p) To approve and regulate the establishment and construction of waterworks and sewerage systems in privately owned subdivisions within its jurisdiction; x xx. (Emphasis supplied.) On December 9, 1992, by virtue of R.A. No. 7638, NPC was placed under the Department of Energy (DOE) as one of its attached agencies. Aside from its ownership and control of the Angat Dam and AHEPP, NPC was likewise mandated to exercise complete jurisdiction and control over its watershed, pursuant to Sec. 2 (n) and (o) of R.A. No. 6395 for development and conservation purposes: (n) To exercise complete jurisdiction and control over watersheds surrounding the reservoirs of plants and/or projects constructed or proposed to be constructed by the Corporation. Upon determination by the Corporation of the areas required for watersheds for a specific project, the Bureau of Forestry, the Reforestation Administration and the Bureau of Lands shall, upon written advice by the Corporation, forthwith surrender jurisdiction to the Corporation of all areas embraced within the watersheds, subject to existing private rights, the needs of waterworks systems, and the requirements of domestic water supply; (o) In the prosecution and maintenance of its projects, the Corporation shall adopt measures to prevent environmental pollution and promote the conservation, development and maximum utilization of natural resources; and x x x x (Emphasis supplied.) On December 4, 1965, Presidential Proclamation No. 505 was issued amending Proclamation No. 71 by transferring the administration of the watersheds established in Montalban, San Juan del Monte, Norzagaray, Angat, San Rafael, Pearanda and Infanta, Provinces of Rizal, Bulacan, Nueva Ecija and Quezon, to NPC. Subsequent executive issuances Presidential Decree (P.D.) No. 1515 which was signed in June 1978 and amended by P.D. No. 1749 in December 1980 led to the creation of the NPC Watershed Management Division which 52 presently has 11 watershed areas under its management. Privatization of AHEPP Mandatory Under EPIRA With the advent of EPIRA in 2001, PSALM came into existence for the principal purpose of managing the orderly sale, privatization and disposition of generation assets, real estate and other disposable assets of the NPC including IPP Contracts. Accordingly, PSALM was authorized to take title to and possession of, those assets transferred to it. EPIRA mandated that all such assets shall be sold through public bidding with the exception of Agus and Pulangui complexes in Mindanao, the privatization of which was left to the discretion of 53 PSALM in consultation with Congress, thus: Sec. 47. NPC Privatization. Except for the assets of SPUG, the generation assets, real estate, and other disposable assets as well as IPP contracts of NPC shall be privatized in accordance with this Act. Within six (6) months from the effectivity of this Act, the PSALM Corp. shall submit a plan for the endorsement by the Joint Congressional Power Commission and the approval of the President of the
51

Philippines, on the total privatization of the generation assets, x xx of NPC and thereafter, implement the same, in accordance with the following guidelines, except as provided for in paragraph (f) herein: x xxx (d) All assets of NPC shall be sold in an open and transparent manner through public bidding, x xx; x xxx (f) The Agus and the Pulangui complexes in Mindanao shall be excluded from among the generation companies that will be initially privatized. Their ownership shall be transferred to the PSALM Corp. and both shall continue to be operated by the NPC. Said complexes may be privatized not earlier than ten (10) years from the effectivity of this Act, x xx.The privatization of Agus and Pulangui complexes shall be left to the discretion of PSALM Corp. in consultation with Congress; x xxx (Emphasis supplied.) The intent of Congress not to exclude the AHEPP from the privatization of NPC generation assets is evident from the express provision exempting only the aforesaid two power plants in Mindanao. Had the legislature intended that PSALM should likewise be allowed discretion in case of NPC generation assets other than those mentioned in Sec. 47, it could have explicitly provided for the same. But the EPIRA exempted from privatization only those two plants in Mindanao and the Small 54 Power Utilities Group (SPUG). Expressiouniusestexclusioalterius, the express inclusion of one 55 implies the exclusion of all others. It is a settled rule of statutory construction that the express mention of one person, thing, or consequence implies the exclusion of all others. The rule is expressed in the familiar maxim, expressiouniusestexclusioalterius. The rule of expressiouniusestexclusioalterius is formulated in a number of ways. One variation of the rule is principle that what is expressed puts an end to that which is implied. Expressiumfacitcessaretacitum. Thus, where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. x xxx The rule of expressiouniusestexclusioalterius and its variations are canons of restrictive interpretation. They are based on the rules of logic and the natural workings of the human mind. They are predicated upon ones own voluntary act and not upon that of others. They proceed from the premise that the legislature would not have made specified enumeration in a statute had the intention been not to restrict its meaning and confine its 56 terms to those expressly mentioned. The Court therefore cannot sustain the position of petitioners, adopted by respondent MWSS, that PSALM should have exercised the discretion not to proceed with the privatization of AHEPP, or at least the availability of the option to transfer the said facility to another government entity such as MWSS.

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Having no such discretion in the first place, PSALM committed no grave abuse of discretion when it commenced the sale process of AHEPP pursuant to the EPIRA. In any case, the Court finds that the operation and maintenance of a hydroelectric power plant is not among the statutorily granted powers of MWSS. Although MWSS was granted authority to construct and operate dams and reservoirs, such was for the specific purpose of supplying water for domestic and other uses, and the treatment, regulation and control of 57 water usage, and not power generation. Moreover, since the sale of AHEPP by PSALM merely implements the legislated reforms for the electric power industry through schemes that aim "to enhance the inflow of private capital and broaden the ownership base of the power generation, transmission and 58 distribution sectors," the proposed transfer to MWSS which is another government entity contravenes that State policy. COA Circular No. 89-296 likewise has no application to NPC generating assets which are still serviceable and definitely needed by the Government for the purpose of liquidating NPCs accumulated debts amounting to billions in US Dollars. Said administrative circular cannot prevail over the EPIRA, a special law governing the disposition of government properties under the jurisdiction of the DOE through NPC. Sale of Government-Owned AHEPP to a Foreign Corporation Not Prohibited But Only Filipino Citizens and Corporations 60% of whose capital is owned by Filipinos May be Granted Water Rights The core issue concerns the legal implications of the acquisition by K-Water of the AHEPP in relation to the constitutional policy on our natural resources. Sec. 2, Art. XII of the 1987 Constitution provides in part: SEC.2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or productionsharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In case of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. x xxx (Emphasis supplied.) The States policy on the management of water resources is implemented through the regulation of water rights. Presidential Decree No. 1067, otherwise known as "The Water Code of the Philippines" is the basic law governing the ownership, appropriation utilization, exploitation, development, conservation and protection of water resources and rights to land related thereto. The National Water Resources Council (NWRC) was created in 1974 under P.D. No. 424 and was subsequently renamed as National Water Resources Board 59 (NWRB) pursuant to Executive Order No. 124-A. The NWRB is the chief coordinating and regulating agency for all water resources management development activities which is tasked with the formulation and development of policies on water utilization and appropriation, the control and supervision of water utilities and franchises, and the regulation and 60 rationalization of water rates. The pertinent provisions of Art. 3, P.D. No. 1067 provide: Art. 3. The underlying principles of this code are: a. All waters belong to the State. b. All waters that belong to the State can not be the subject to acquisitive prescription. c. The State may allow the use or development of waters by administrative concession. d. The utilization, exploitation, development, conservation and protection of water resources shall be subject to the control and regulation of the government through the National Water Resources Council x xx e. Preference in the use and development of waters shall consider current usages and be responsive to the changing needs of the country. x xxx Art. 9. Waters may be appropriated and used in accordance with the provisions of this Code. Appropriation of water, as used in this Code, is the acquisition of rights over the use of waters or the taking or diverting of waters from a natural source in the manner and for any purpose allowed by law. Art. 10. Water may be appropriated for the following purposes: x xxx (d) Power generation x xxx Art. 13. Except as otherwise herein provided, no person including government instrumentalities or government-owned or controlled corporations, shall appropriate water without a water right, which shall be evidenced by a document known as a water permit. Water right is the privilege granted by the government to appropriate and use water. x xxx Art. 15. Only citizens of the Philippines, of legal age, as well as juridical persons, who are duly qualified by law to exploit and

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develop water resources, may apply for water permits. (Emphasis supplied.) It is clear that the law limits the grant of water rights only to Filipino citizens and juridical entities duly qualified by law to exploit and develop water resources, including private corporations with sixty percent of their capital owned by Filipinos. In the case of Angat River, the NWRB has issued 61 separate water permits to MWSS, NPC and NIA. Under the EPIRA, the generation of electric power, a business affected with public interest, was opened to private sector and any new generation company is required to secure a certificate of compliance from the Energy Regulatory Commission (ERC), as well as health, safety and environmental clearances from the concerned government agencies. Power generation shall not be 62 considered a public utility operation, and hence no franchise is necessary. Foreign investors are likewise allowed entry into the electric power industry. However, there is no mention of water rights in the privatization of multi-purpose hydropower facilities. Section 47 (e) addressed the issue of water security, as follows: (e) In cases of transfer of possession, control, operation or privatization of multi-purpose hydro facilities, safeguards shall be prescribed to ensure that the national government may direct water usage in cases of shortage to protect potable water, irrigation, and all other requirements imbued with public interest; x xxx (Emphasis supplied.) This provision is consistent with the priority accorded to 63 domestic and municipal uses of water under the Water Code, thus: Art. 22. Between two or more appropriators of water from the same sources of supply, priority in time of appropriation shall give the better right, except that in times of emergency the use of water for domestic and municipal purposes shall have a better right over all other uses; Provided, That, where water shortage is recurrent and the appropriator for municipal use has a lower priority in time of appropriation, then it shall be his duty to find an alternative source of supply in accordance with conditions prescribed by the Board. (Emphasis supplied.) Rule 23, Section 6 of the Implementing Rules and Regulations (IRR) of the EPIRA provided for the structure of appropriation of water resources in multi-purpose hydropower plants which will undergo privatization, as follows: Section 6. Privatization of Hydroelectric Generation Plants. (a) Consistent with Section 47(e) of the Act and Section 4(f) of this Rule, the Privatization of hydro facilities of NPC shall cover the power component including assignable long-term water rights agreements for the use of water, which shall be passed onto and respected by the buyers of the hydroelectric power plants. (b) The National Water Resources Board (NWRB) shall ensure that the allocation for irrigation, as indicated by the NIA and requirements for domestic water supply as provided for by the appropriate Local Water District(s) are recognized and provided for in the water rights agreements. NPC or PSALM may also impose additional conditions in the shareholding agreement with the winning bidders to ensure national security, including, but not limited to, the use of water during drought or calamity. (c) Consistent with Section 34(d) of the Act, the NPC shall continue to be responsible for watershed rehabilitation and management and shall be entitled to the environmental charge equivalent to one-fourth of one centavo per kilowatt-hour sales (P0.0025/kWh), which shall form part of the Universal Charge. This environmental fund shall be used solely for watershed rehabilitation and management and shall bemanaged by NPC under existing arrangements. NPC shall submit an annual report to the DOE detailing the progress of the water shed rehabilitation program. (d) The NPC and PSALM or NIA, as the case may be, shall continue to be responsible for the dam structure and all other appurtenant structures necessary for the safe and reliable operation of the hydropower plants. The NPC and PSALM or NIA, as the case may be, shall enter into an operations and maintenance agreement with the private operator of the power plant to cover the dam structure and all other appurtenant facilities. (Emphasis supplied.) In accordance with the foregoing implementing regulations, and 64 in furtherance of the Asset Purchase Agreement (APA), PSALM, NPC and K-Water executed on April 28, 2010 an 65 Operations and Maintenance Agreement (O & M Agreement) for the administration, rehabilitation, operation, preservation and maintenance, by K-Water as the eventual owner of the AHEPP, of the Non-Power Components meaning the Angat Dam, nonpower equipment, facilities, installations, and appurtenant devices and structures, including the water sourced from the Angat Reservoir. It is the position of PSALM that as the new owner only of the hydroelectric power plant, K-Water will be a mere operator of the Angat Dam. In the power generation activity, K-Water will have to utilize the waters already extracted from the river and impounded on the dam. This process of generating electric power from the dam water entering the power plant thus does not constitute appropriation within the meaning of natural resource utilization in the Constitution and the Water Code. The operation of a typical hydroelectric power plant has been described as follows: Hydroelectric energy is produced by the force of falling water. The capacity to produce this energy is dependent on both the available flow and the height from which it falls. Building up behind a high dam, water accumulates potential energy. This is transformed into mechanical energy when the water rushes down the sluice and strikes the rotary blades of turbine. The turbine's rotation spins electromagnets which generate current in stationary coils of wire. Finally, the current is put through a transformer where the voltage is increased for long distance 66 transmission over power lines. Foreign ownership of a hydropower facility is not prohibited under existing laws. The construction, rehabilitation and development of hydropower plants are among those infrastructure projects which even wholly-owned foreign corporations are allowed to undertake under the Amended 67 Build-Operate-Transfer (Amended BOT) Law (R.A. No. 7718).

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Beginning 1987, the policy has been openness to foreign investments as evident in the fiscal incentives provided for the restructuring and privatization of the power industry in the Philippines, under the Power Sector Restructuring Program (PSRP) of the Asian Development Bank. The establishment of institutional and legal framework for the entry of private sector in the power industry began with the issuance by President Corazon C. Aquino of Executive Order No. 215 in 1987. Said order allowed the entry of private sector the IPPs to participate in the power generation activities in the country. The entry of IPPs was facilitated and made attractive through the first BOT Law in 1990 (R.A. No. 6957) which aimed to "minimize the burden of infrastructure projects on the national government budget, minimize external borrowing for infrastructure projects, and use the efficiency of the private sector in delivering a public good." In 1993, the Electric Power Crisis Act was passed giving the President emergency powers 68 to urgently address the power crisis in the country. The full implementation of the restructuring and privatization of the power industry was achieved when Congress passed the EPIRA in 2001. With respect to foreign investors, the nationality issue had been framed in terms of the character or nature of the power generation process itself, i.e., whether the activity amounts to utilization of natural resources within the meaning of Sec. 2, Art. XII of the Constitution. If so, then foreign companies cannot engage in hydropower generation business; but if not, then government may legally allow even foreign-owned companies to operate hydropower facilities. The DOJ has consistently regarded hydropower generation by foreign entities as not constitutionally proscribed based on the definition of water appropriation under the Water Code, thus: Opinion No. 173, 1984 This refers to your request for opinion on the possibility of granting water permits to foreign corporations authorized to do business in the Philippines x xx x xxx x xx while the Water Code imposes a nationality requirement for the grant of water permits, the same refers to the privilege "to appropriate and use water." This should be interpreted to mean the extraction of water from its natural source (Art. 9, P.D. No. 1067). Once removed therefrom, they cease to be a part of the natural resources of the country and are the subject of ordinary commerce and may be acquired by foreigners (Op. No. 55, series of 1939). x xx in case of a contract of lease, the water permit shall be secured by the lessor and included in the lease as an improvement. The water so removed from the natural source may be appropriated/used by the foreign corporation leasing the property. Opinion No. 14, S. 1995 The nationality requirement imposed by the Water Code refers to the privilege "to appropriate and use water." This, we have consistently interpreted to mean the extraction of water directly from its natural source. Once removed from its natural source the water ceases to be a part of the natural resources of the country and may be subject of ordinary commerce and may even be acquired by foreigners. (Secretary of Justice Op. No. 173, s. 1984; No. 24, s. 1989; No. 100 s. 1994) In fine, we reiterate our earlier view that a foreign entity may legally process or treat water after its removal from a natural source by a qualified person, natural or juridical. Opinion No. 122, s. 1998 The crucial issue at hand is the determination of whether the utilization of water by the power plant to be owned and operated by a foreign-owned corporation (SRPC) will violate the provisions of the Water Code. As proposed, the participation of SRPC to the arrangement commences upon construction of the power station, consisting of a dam and a power plant. After the completion of the said station, its ownership and control shall be turned over to NPC. However, SRPC shall remain the owner of the power plant and shall operate it for a period of twenty-five (25) years. It appears that the dam, which will be owned and controlled by NPC, will block the natural flow of the river. The power plant, which is situated next to it, will entirely depend upon the dam for its water supply which will pass through an intake gate situated one hundred (100) meters above the riverbed. Due to the distance from the riverbed, water could not enter the power plant absent the dam that traps the flow of the river. It appears further that no water shall enter the power tunnel without specific dispatch instructions from NPC, and such supplied water shall be used only by SRPC for power generation and not for any other purpose. When electricity is generated therein, the same shall be supplied to NPC for distribution to the public. These facts x xx viewed in relation to the Water Code, specifically Article 9 thereof, x xx clearly show that there is no circumvention of the law. This Department has declared that the nationality requirement imposed by the Water Code refers to the privilege "to appropriate and use water" and has interpreted this phrase to mean the extraction of water directly from its natural source (Secretary of Justice Opinion No. 14, s. 1995). "Natural" is defined as that which is produced without aid of stop, valves, slides, or other supplementary means (see Websters New International Dictionary, Second Edition, p. 1630). The water that is used by the power plant could not enter the intake gate without the dam, which is a man-made structure. Such being the case, the source of the water that enters the power plant is of artificial character rather than natural. This Department is consistent in ruling, that once water is removed from its natural source, it ceases to be a part of the natural resources of the country and may be the subject of ordinary commerce and may even be acquired by foreigners. (Ibid., No. 173, s. 1984; No. 24, s. 1989; No. 100, s. 1994). It is also significant to note that NPC, a government-owned and controlled corporation, has the effective control over all elements of the extraction process, including the amount and timing thereof considering that x xx the water will flow out of the power tunnel and through the power plant, to be used for the generation of electricity, only when the Downstream Gates are opened, which occur only upon the specific water release instructions given by NPC to SRPC. This specific feature of the agreement, taken together with the above-stated analysis of the

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source of water that enters the plant, support the view that the nationality requirement embodied in Article XII, Section 2 of the present Constitution and in Article 15 of the Water Code, is not 69 violated. (Emphasis supplied.) The latest executive interpretation is stated in DOJ Opinion No. 52, s. 2005 which was rendered upon the request of PSALM in connection with the proposed sale structure for the privatization of hydroelectric and geothermal generation assets (Gencos) of NPC. PSALM sought a ruling on the legality of its proposed privatization scheme whereby the non-power components (dam, reservoir and appurtenant structures and watershed area) shall be owned by the State through government entities like NPC or NIA which shall exercise control over the release of water, while the ownership of the power components (power plant and related facilities) is open to both Filipino citizens/corporations and 100% foreign-owned corporations. Sustaining the position of PSALM, then Secretary Raul M. Gonzalez opined: Premised on the condition that only the power components shall be transferred to the foreign bidders while the non-power components/structures shall be retained by state agencies concerned, we find that both PSALMs proposal and position are tenable. x xxx x xx as ruled in one case by a U.S. court: Where the State of New York took its natural resources consisting of Saratoga Spring and, through a bottling process, put those resources into preserved condition where they could be sold to the public in competition with private waters, the state agencies were not immune from federal taxes imposed upon bottled waters on the theory that state was engaged in the sale of "natural resources." Applied to the instant case, and construed in relation to the earlier-mentioned constitutional inhibition, it would appear clear that while both waters and geothermal steam are, undoubtedly "natural resources", within the meaning of Section 2 Article XII of the present Constitution, hence, their exploitation, development and utilization should be limited to Filipino citizens or corporations or associations at least sixty per centum of the capital of which is owned by Filipino citizens, the utilization thereof can be opened even to foreign nationals, after the same have been extracted from the source by qualified persons or entities. The rationale is because, since they no longer form part of the natural resources of the country, they become subject to ordinary commerce. A contrary interpretation, i.e., that the removed or extracted natural resources would remain inalienable especially to foreign nationals, can lead to absurd consequences, e.g. that said waters and geothermal steam, and any other extracted natural resources, cannot be acquired by foreign nationals for sale within or outside the country, which could not have been intended by the framers of the Constitution. The fact that under the proposal, the non-power components and structures shall be retained and maintained by the government entities concerned is, to us, not only a sufficient compliance of constitutional requirement of "full control and supervision of the State" in the exploitation, development and utilization of natural resources. It is also an enough safeguard against the evil sought to be avoided by the constitutional 70 reservation x xx. (Italics in the original, emphasis supplied.) Appropriation of water, as used in the Water Code refers to the "acquisition of rights over the use of waters or the taking or diverting of waters from a natural source in the manner and for 71 any purpose allowed by law." This definition is not as broad as the concept of appropriation of water in American jurisprudence: An appropriation of water flowing on the public domain consists in the capture, impounding, or diversion of it from its natural course or channel and its actual application to some beneficial use private or personal to the appropriator, to the entire exclusion (or exclusion to the extent of the water appropriated) 72 of all other persons. x xx On the other hand, "water right" is defined in the Water Code as the privilege granted by the government to appropriate and use 73 water. Blacks Law Dictionary defined "water rights" as "a legal right, in the nature of a corporeal hereditament, to use the water of a natural stream or water furnished through a ditch or canal, for general or specific purposes, such as irrigation, mining, power, or domestic use, either to its full capacity or to a measured extent or during a defined portion of the time," or "the right to have the water flow so that some portion of it may be reduced to possession and be made private property of individual, and it is therefore the right to divert water from natural stream by artificial means and apply the same to 74 beneficial use." Under the Water Code concept of appropriation, a foreign company may not be said to be "appropriating" our natural resources if it utilizes the waters collected in the dam and converts the same into electricity through artificial devices. Since the NPC remains in control of the operation of the dam by virtue of water rights granted to it, as determined under DOJ Opinion No. 122, s. 1998, there is no legal impediment to foreign-owned companies undertaking the generation of electric power using waters already appropriated by NPC, the holder of water permit. Such was the situation of hydropower projects under the BOT contractual arrangements whereby foreign investors are allowed to finance or undertake construction and rehabilitation of infrastructure projects and/or own and operate the facility constructed. However, in case the facility requires a public utility franchise, the facility operator must be a Filipino 75 corporation or at least 60% owned by Filipino. With the advent of privatization of the electric power industry which resulted in its segregation into four sectors -- generation, transmission, distribution and supply NPCs generation and transmission functions were unbundled. Power generation and transmission were treated as separate sectors governed by distinct rules under the new regulatory framework introduced by EPIRA. The National Transmission Corporation (TRANSCO) was created to own and operate the transmission assets and perform the transmission functions previously under NPC. While the NPC continues to undertake missionary electrification programs through the SPUG, PSALM was also created to liquidate the assets and liabilities of NPC.

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Under the EPIRA, NPCs generation function was restricted as it was allowed to "generate and sell electricity only from the undisposed generating assets and IPP contracts of PSALM" and was prohibited from incurring "any new obligations to purchase power through bilateral contracts with generation 76 companies or other suppliers." PSALM, on the other hand, was tasked "to structure the sale, privatization or disposition of NPC assets and IPP contracts and/or their energy output based on such terms and conditions which shall optimize the value 77 and sale prices of said assets." In the case of multi-purpose hydropower plants, the IRR of R.A. No. 9136 provided that their privatization would extend to water rights which shall be transferred or assigned to the buyers thereof, subject to safeguards mandated by Sec. 47(e) to enable the national government to direct water usage in cases of shortage to protect water requirements imbued with public interest. Accordingly, the Asset Purchase Agreement executed between PSALM and K-Water stipulated: 2.04 Matters Relating to the Non-Power Component x xxx Matters relating to Water Rights NPC has issued a certification (the "Water Certification") wherein NPC consents, subject to Philippine Law, to the (i) transfer of the Water Permit to the BUYER or its Affiliate, and (ii) use by the BUYER or its Affiliate of the water covered by the Water Permit from Closing Date up to a maximum period of one (1) year thereafter to enable the BUYER to appropriate and use water sourced from Angat reservoir for purposes of power generation; provided, that should the consent or approval of any Governmental Body be required for either (i) or (ii), the BUYER must secure such consent or approval. The BUYER agrees and shall fully comply with the Water Permit and the Water Certification. x xx x xxx Multi-Purpose Facility The BUYER is fully aware that the Non-Power Components is a multi-purpose hydro-facility and the water is currently being appropriated for domestic use, municipal use, irrigation and power generation. Anything in this Agreement notwithstanding, the BUYER shall, at all times even after the Payment Date, fully and faithfully comply with Philippine Law, including the Instructions, the Rule Curve and Operating Guidelines and the 78 Water Protocol. (Emphasis supplied.) Lease or transfer of water rights is allowed under the Water Code, subject to the approval of NWRB after due notice and 79 hearing. However, lessees or transferees of such water rights must comply with the citizenship requirement imposed by the Water Code and its IRR. But regardless of such qualification of water permit holders/transferees, it is to be noted that there is no provision in the EPIRA itself authorizing the NPC to assign or transfer its water rights in case of transfer of operation and possession of multi-purpose hydropower facilities. Since only the power plant is to be sold and privatized, the operation of the non-power components such as the dam and reservoir, including the maintenance of the surrounding watershed, should remain under the jurisdiction and control of NPC which continue to be a government corporation. There is therefore no necessity for NPC to transfer its permit over the water rights to K-Water. Pursuant to its purchase and operation/management contracts with K-Water, NPC may authorize the latter to use water in the dam to generate electricity. NPCs water rights remain an integral aspect of its jurisdiction and control over the dam and reservoir. That the EPIRAitselfdid not ordain any transfer of water rights leads us to infer that Congress intended NPC to continue exercising full supervision over the dam, reservoir and, more importantly, to remain in complete control of the extraction or diversion of water from the Angat River. Indeed, there can be no debate that the best means of ensuring that PSALM/NPC can fulfill the duty to prescribe "safeguards to enable the national government to direct water usage to protect potable water, irrigation, and all other requirements imbued with public interest" is for it to retain the water rights over those water resources from where the dam waters are extracted. In this way, the States full supervision and control over the countrys water resources is also assured notwithstanding the privatized power generation business. Section 6 (a) of the IRR of R.A. No. 9136 insofar as it directs the transfer of water rights in the privatization of multi-purpose hydropower facilities, is thus merely directory. It is worth mentioning that the Water Code explicitly provides that Filipino citizens and juridical persons who may apply for water permits should be "duly qualified by law to exploit and develop water resources." Thus, aside from the grant of authority to construct and operate dams and power plants, NPCs Revised Charter spe cifically authorized it (f) To take water from any public stream, river, creek, lake, spring or waterfall in the Philippines, for the purposes specified in this Act; to intercept and divert the flow of waters from lands of riparian owners and from persons owning or interested in waters which are or may be necessary for said purposes, upon payment of just compensation therefor; to alter, straighten, obstruct or increase the flow of water in streams or water channels intersecting or connecting therewith or contiguous to its works or any part thereof: Provided, That just compensation shall be paid to any person or persons whose property is, 80 directly or indirectly, adversely affected or damaged thereby. The MWSS is likewise vested with the power to construct, maintain and operate dams and reservoirs for the purpose of supplying water for domestic and other purposes, as well to construct, develop, maintain and operate such artesian wells and springs as may be needed in its operation within its 81 territory. On the other hand, NIA, also a water permit holder in Angat River, is vested with similar authority to utilize water resources, as follows: (b) To investigate all available and possible water resources in the country for the purpose of utilizing the same for irrigation, and to plan, design and construct the necessary projects to make the ten to twenty-year period following the approval of this 82 Act as the Irrigation Age of the Republic of the Philippines; (c) To construct multiple-purpose water resources projects

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designed primarily for irrigation, and secondarily for hydraulic power development and/or other uses such as flood control, drainage, land reclamation, domestic water supply, roads and highway construction and reforestation, among others, provided, that the plans, designs and the construction thereof, shall be undertaken in coordination with the agencies 83 concerned; To reiterate, there is nothing in the EPIRAwhich declares that it is mandatory for PSALM or NPC to transfer or assign NPCs water rights to buyers of its multi-purpose hydropower facilities as part of the privatization process. While PSALM was mandated to transfer the ownership of all hydropower plants except those mentioned in Sec. 47 (f), any transfer of possession, operation and control of the multi-purpose hydropower facilities, the intent to preserve water resources under the full supervision and control of the State is evident when PSALM was obligated to prescribe safeguards to enable the national government to direct water usage to domestic and other requirements "imbued with public interest." There is no express requirement for the transfer of water rights in all cases where the operation of hydropower facilities in a multi-purpose dam complex is turned over to the private sector. As the new owner of the AHEPP, K-Water will have to utilize the waters in the Angat Dam for hydropower generation. Consistent with the goals of the EPIRA, private entities are allowed to undertake power generation activities and acquire NPCs generation assets. But since only the hydroelectric power plants and appurtenances are being sold, the privatization scheme should enable the buyer of a hydroelectric power plant in NPCs multi-purpose dam complex to have beneficialuse of the waters diverted or collected in the Angat Dam for its hydropower generation activities, and at the same time ensure that the NPC retains full supervision and control over the extraction and diversion of waters from the Angat River. In fine, the Court rules that while the sale of AHEPP to a foreign corporation pursuant to the privatization mandated by the EPIRA did not violate Sec. 2, Art. XII of the 1987 Constitution which limits the exploration, development and utilization of natural resources under the full supervision and control of the State or the States undertaking the same through joint venture, co-production or production sharing agreements with Filipino corporations 60% of the capital of which is owned by Filipino citizens, the stipulation in the Asset Purchase Agreement and Operations and Maintenance Agreement whereby NPC consents to the transfer of water rights to the foreign buyer, KWater, contravenes the aforesaid constitutional provision and the Water Code.1wphi1 Section 6, Rule 23 of the IRR of EPIRA, insofar as it ordered NPCs water rights in multi-purpose hydropower facilities to be included in the sale thereof, is declared as merely directoryand not an absolute condition in the privatization scheme. In this case, we hold that NPC shall continue to be the holder of the water permit even as the operational control and day-to-day management of the AHEPP is turned over to K-Water under the terms and conditions of their APA and O & M Agreement, whereby NPC grants authority to K-Water to utilize the waters diverted or collected in the Angat Dam for hydropower generation. Further, NPC and K-Water shall faithfully comply with the terms and conditions of the Memorandum of Agreement on Water Protocol, as well as with such other regulations and issuances of the NWRB governing water rights and water usage. WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s is PARTLY GRANTED. The following DISPOSITIONS are in ORDER: 1) The bidding conducted and the Notice of Award issued by PSALM in favor of the winning bidder, KOREA WATER RESOURCES CORPORATION (K-WATER), are declared VALID and LEGAL; 2) PSALM is directed to FURNISH the petitioners with copies of all documents and records in its files pertaining to K-Water; 3) Section 6 (a), Rule 23, IRR of the EPIRA, is hereby declared as merely DIRECTORY, and not an absolute condition in all cases where NPC-owned hydropower generation facilities are privatized; 4) NPC shall CONTINUE to be the HOLDER of Water Permit No. 6512 issued by the National Water Resources Board. NPC shall authorize K-Water to utilize the waters in the Angat Dam for hydropower generation, subject to the NWRBs rules and regulations governing water right and usage. The Asset Purchase Agreement and Operation & Management Agreement between NPC/PSALM and K- Water are thus amended accordingly. Except for the requirement of securing a water permit, K-Water remains BOUND by its undertakings and warranties under the APA and O & M Agreement; 5) NPC shall be a CO-PARTY with K-Water in the Water Protocol Agreement with MWSS and NIA, and not merely as a conforming authority or agency; and 6) The Status Quo Ante Order issued by this Court on May 24, 2010 is hereby LIFTED and SET ASIDE. No pronouncement as to costs. SO ORDERED. MARTIN S. VILLARAMA, JR. Associate Justice _________________________________

4.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 176162 October 9, 2012

CIVIL SERVICE COMMISSION, Petitioner, vs. COURT OF APPEALS, DR. DANTE G. GUEV ARRA and ATTY. AUGUSTUS F. CEZAR, Respondents. x-----------------------x

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G.R. No. 178845 ATTY. HONESTO L. CUEVA, Petitioner, vs. COURT OF APPEALS, DR. DANTE G. GUEV ARRA and ATTY. AUGUSTUS F. CEZAR, Respondents. DECISION MENDOZA, J.: These are consolidated petitions for review under Rule 45 of the Revised Rules of Civil Procedure assailing the December 1 29, 2006 Decision of the Court of Appeals (CA) in CA-G.R. SP No. 95293, entitled "Dr. Dante G. Guevarra and Atty. Augustus Cezar v. Civil Service Commission and Atty. Honesto L. Cueva." The Facts Respondents Dante G. Guevarra (Guevarra) and Augustus F. Cezar (Cezar) were the Officer-in-Charge/President and the Vice President for Administration, respectively, of the 2 Polytechnic University of the Philippines (PUP) in 2005. On September 27, 2005, petitioner Honesto L. Cueva (Cueva), then PUP Chief Legal Counsel, filed an administrative case against Guevarra and Cezar for gross dishonesty, grave misconduct, falsification of official documents, conduct prejudicial to the best interest of the service, being notoriously undesirable, and for violating Section 4 of Republic Act (R.A.) 3 No. 6713. Cueva charged Guevarra with falsification of a public document, specifically the Application for Bond of Accountable Officials and Employees of the Republic of the Philippines, in which the latter denied the existence of his pending criminal and administrative cases. As the head of the school, Guevarra was required to be bonded in order to be able to engage in 4 financial transactions on behalf of PUP. In his Application for Bond of Accountable Officials and Employees of the Republic of the Philippines (General Form No. 58-A), he answered Question No. 11 in this wise: 11. Do you have any criminal or administrative records? NO. 5 If so, state briefly the nature thereof NO. This was despite the undisputed fact that, at that time, both Guevarra and Cezar admittedly had 17 pending cases for violation of Section 3(e) of R.A. No. 3019 before the 6 Sandiganbayan. Cezar, knowing fully well that both he and Guevarra had existing cases before the Sandiganbayan, 7 endorsed and recommended the approval of the application. The respondents explained that they believed "criminal or administrative records" to mean final conviction in a criminal or 8 administrative case. Thus, because their cases had not yet been decided by the Sandiganbayan, they asserted that Guevarra responded to Question No. 11 in General Form No. 9 58-A correctly and in good faith. On March 24, 2006, the Civil Service Commission (CSC) issued 10 Resolution No. 060521 formally charging Guevarra with Dishonesty and Cezar with Conduct Prejudicial to the Best Interest of the Service after a prima facie finding that they had committed acts punishable under the Civil Service Law and Rules. Subsequently, the respondents filed their Motion for Reconsideration and Motion to Declare Absence of Prima Facie 11 Case praying that the case be suspended immediately and that the CSC declare a complete absence of a prima facie case against them. Cueva, on the other hand, filed an Urgent Ex12 Parte Motion for the Issuance of Preventive Suspension and 13 an Omnibus Motion seeking the issuance of an order of preventive suspension against Guevarra and Cezar and the inclusion of the following offenses in the formal charge against them: Grave Misconduct, Falsification of Official Document, Conduct Prejudicial to the Best Interest of the Service, Being Notoriously Undesirable, and Violation of Section 4 of R.A. No. 6713. In Resolution No. 061141, dated June 30, 2006, the CSC denied the motion for reconsideration filed by the respondents for being a non-responsive pleading, akin to a motion to dismiss, which was a prohibited pleading under Section 16 of the Uniform Rules on Administrative Cases in the Civil Service 15 Commission. It also denied Cuevas motion to include additional charges against the respondents. The CSC, however, placed Guevarra under preventive suspension for ninety (90) days, believing it to be necessary because, as the officer-in-charge of PUP, he was in a position to unduly influence possible witnesses against him. Aggrieved, Guevarra and Cezar filed a petition for certiorari and prohibition before the CA essentially questioning the jurisdiction of the CSC over the administrative complaint filed against them by Cueva. On December 29, 2006, the CA rendered its Decision granting the petition and nullifying and setting aside the questioned resolutions of the CSC for having been rendered without jurisdiction. According to the CA, Section 47, Chapter 7, Subtitle A, Title I, Book V of Executive Order No. 292 (The Administrative Code of 1987), the second paragraph of which states that heads of agencies and instrumentalities "shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction," bestows upon the Board of Regents the jurisdiction to investigate and decide matters involving disciplinary action against respondents Guevarra and Cezar. In addition, the CA noted that the CSC erred in recognizing the complaint filed by Cueva, reasoning out that the latter should have exhausted all administrative remedies by first bringing his grievances to the attention of the PUP Board of Regents. Hence, these petitions. THE ISSUE In G.R. No. 176162, petitioner CSC raises the sole issue of: Whether or not the Civil Service Commission has original concurrent jurisdiction over administrative cases falling under the jurisdiction of heads of agencies. The same issue is among those raised by petitioner Cueva in G.R. No. 178845. The Court agrees that the only question which must be addressed in this case is whether the CSC has jurisdiction over administrative cases filed directly with it against officials of a
14

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chartered state university. The Courts Ruling The petitions are meritorious. Both CSC and Cueva contend that because the CSC is the central personnel agency of the government, it has been expressly granted by Executive Order (E.O.) No. 292 the authority to assume original jurisdiction over complaints directly filed with it. The CSC explains that under the said law, it has appellate jurisdiction over all administrative disciplinary proceedings and original jurisdiction over complaints against government officials and employees filed before it by private 16 citizens. Accordingly, the CSC has concurrent original jurisdiction, together with the PUP Board of Regents, over the administrative case against Guevarra and Cezar and it can take cognizance of a case filed directly with it, despite the fact that the Board of Regents is the disciplining authority of university employees. Respondents Guevarra and Cezar, on the other hand, fully adopted the position of the CA in its questioned decision and propounded the additional argument that the passage of R.A. No. 8292 has effectively removed from the CSC the authority to hear and decide on cases filed directly with it. CSC has jurisdiction over cases filed directly with it, regardless of who initiated the complaint The CSC, as the central personnel agency of the government, has the power to appoint and discipline its officials and employees and to hear and decide administrative cases 17 instituted by or brought before it directly or on appeal. Section 2(1), Article IX(B) of the 1987 Constitution defines the scope of the civil service: The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. By virtue of Presidential Decree (P.D.) No. 1341, PUP became a chartered state university, thereby making it a government-owned or controlled corporation with an original charter whose employees are part of the Civil Service and are 19 subject to the provisions of E.O. No. 292. The parties in these cases do not deny that Guevarra and Cezar are government employees and part of the Civil Service. The controversy, however, stems from the interpretation of the disciplinary jurisdiction of the CSC as specified in Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292: SECTION 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the
18

investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. (2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. [Emphases and underscoring supplied] While in its assailed decision, the CA conceded that paragraph one of the same provision abovequoted allows the filing of a complaint directly with the CSC, it makes a distinction between a complaint filed by a private citizen and that of an employee under the jurisdiction of the disciplining authority involved. The CA resolved that because Cueva was then the Dean of the College of Law and the Chief Legal Counsel of PUP when he filed the complaint with the CSC, he was under the authority of the PUP Board of Regents. Thus, it is the Board of Regents which had exclusive jurisdiction over the administrative case he initiated against Guevarra and Cezar. The Court finds itself unable to sustain the reading of the CA. The issue is not novel. The understanding by the CA of Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 which states that "a complaint may be filed directly with the Commission by a private citizen against a government official or employee" is that the CSC can only take cognizance of a case filed directly before it if the complaint was made by a private citizen. The Court is not unaware of the use of the words "private citizen" in the subject provision and the plain meaning rule of statutory construction which requires that when the law is clear and unambiguous, it must be taken to mean exactly what it says. The Court, however, finds that a simplistic interpretation is not in keeping with the intention of the statute and prevailing jurisprudence. It is a well-established rule that laws should be given a reasonable interpretation so as not to defeat the very purpose for which they were passed. As such, "a literal interpretation is to be rejected if it would be unjust or lead to 20 21 absurd results." In Secretary of Justice v. Koruga, the Court emphasized this principle and cautioned us on the overzealous application of the plain meaning rule: The general rule in construing words and phrases used in a statute is that in the absence of legislative intent to the contrary, they should be given their plain, ordinary, and common usage meaning. However, a literal interpretation of a statute is to be rejected if it will operate unjustly, lead to absurd results, or contract the evident meaning of the statute taken as a whole. After all, statutes should receive a sensible construction, such as will give effect to the legislative intention and so as to avoid an unjust or an absurd conclusion. Indeed, courts are not to

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give words meanings that would 22 unreasonable consequences. lead to absurd or It cannot be overemphasized that the identity of the complainant is immaterial to the acquisition of jurisdiction over an administrative case by the CSC. The law is quite clear that the CSC may hear and decide administrative disciplinary cases brought directly before it or it may deputize any department or agency to conduct an investigation. CSC has concurrent original jurisdiction with the Board of Regents over administrative cases The Uniform Rules on Administrative Cases in the Civil 28 Service (the Uniform Rules) explicitly allows the CSC to hear and decide administrative cases directly brought before it: Section 4. Jurisdiction of the Civil Service Commission. The Civil Service Commission shall hear and decide administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices and of the agencies attached to it. Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees. [Emphases and underscoring supplied] The CA construed the phrase "the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service" to mean that the CSC could only step in after the relevant disciplinary authority, in this case the Board of Regents of PUP, had investigated and decided on the charges against the respondents. Regrettably, the CA failed to take into consideration the succeeding section of the same rules which undeniably granted original concurrent jurisdiction to the CSC and belied its suggestion that the CSC could only take cognizance of cases on appeal: Section 7. Jurisdiction of Heads of Agencies. Heads of Departments, agencies, provinces, cities, municipalities and other instrumentalities shall have original concurrent jurisdiction, with the Commission, over their respective officers and 29 employees. [Emphasis supplied] It was also argued that although Section 4 of the Uniform Rules is silent as to who can file a complaint directly with the CSC, it cannot be construed to authorize one who is not a private citizen to file a complaint directly with the CSC. This is because a rule issued by a government agency pursuant to its lawmaking power cannot modify, reduce or enlarge the scope of 30 the law which it seeks to implement. Following the earlier disquisition, it can be said that the Uniform Rules does not contradict the Administrative Code. Rather, the former simply provides a reasonable interpretation of the latter. Such action is perfectly within the authority of the CSC, pursuant to Section 12(2), Chapter 3, Subtitle A, Title I, Book V of E.O. No. 292, which gives it the power to "prescribe, amend and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws." Another view has been propounded that the original jurisdiction of the CSC has been further limited by Section 5 of the Uniform

A literal interpretation of E.O. 292 would mean that only private citizens can file a complaint directly with the CSC. For administrative cases instituted by government employees against their fellow public servants, the CSC would only have appellate jurisdiction over those. Such a plain reading of the subject provision of E.O. 202 would effectively divest CSC of its original jurisdiction, albeit shared, provided by law. Moreover, it is clearly unreasonable as it would be tantamount to disenfranchising government employees by removing from them an alternative course of action against erring public officials. There is no cogent reason to differentiate between a complaint filed by a private citizen and one filed by a member of the civil service, especially in light of Section 12(11), Chapter 3, Subtitle A, Title I, Book V of the same E.O. No. 292 which confers upon the CSC the power to "hear and decide administrative cases instituted by or brought before it directly or on appeal" without any qualification. In the case of Camacho v. Gloria, the Court stated that "under E.O. No. 292, a complaint against a state university official may be filed with either the universitys Board of Regents or directly 24 with the Civil Service Commission." It is important to note that the Court did not interpret the Administrative Code as limiting such authority to exclude complaints filed directly with it by a member of the civil service. Moreover, as early as in the case of Hilario v. Civil Service 25 Commission, the Court interpreted Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 as allowing the direct filing with the CSC by a public official of a complaint against a fellow government employee. In the said case, Quezon City Vice-Mayor Charito Planas directly filed with the CSC a complaint for usurpation, grave misconduct, being notoriously undesirable, gross insubordination, and conduct prejudicial to the best interest of the service against the City Legal Officer of Quezon City. The CSC issued a resolution ruling that the respondent official should not be allowed to continue holding the position of legal officer. In a petition to the Supreme Court, the official in question asserted that the City Mayor was the only one who could remove him from office directly and not the CSC. The Court upheld the decision of the CSC, citing the same provision of the Administrative Code: Although respondent Planas is a public official, there is nothing under the law to prevent her from filing a complaint directly with the CSC against petitioner. Thus, when the CSC determined that petitioner was no longer entitled to hold the position of City Legal Officer, it was acting within its authority under the Administrative Code to hear and decide complaints filed before 26 it. [Underscoring supplied] It has been argued that Hilario is not squarely in point. While it is true that the circumstances present in the two cases are not identical, a careful reading of Hilario reveals that petitioner therein questioned the authority of the CSC to hear the disciplinary case filed against him, alleging that the CSCs jurisdiction was only appellate in nature. Hence, the reference to the abovequoted passage in Hilario is very appropriate in this case as respondents herein pose a similar query before us.
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Rules, such that the CSC can only take cognizance of complaints filed directly with it which: (1) are brought against personnel of the CSC central office, (2) are against third level officials who are not presidential appointees, (3) are against officials and employees, but are not acted upon by the agencies themselves, or (4) otherwise require direct or immediate action in the interest of justice: Section 5. Jurisdiction of the Civil Service Commission Proper. The Civil Service Commission Proper shall have jurisdiction over the following cases: A. Disciplinary 1. Decisions of the Civil Service Regional Offices brought before it on petition for review; 2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities, imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary brought before it on appeal; 3. Complaints brought against Civil Service Commission Proper personnel; 4. Complaints against third level officials who are not presidential appointees; 5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and such other complaints requiring direct or immediate action, in the interest of justice; 6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices; 7. Appeals from the Order of Preventive Suspension; and 8. Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations. It is the Courts position that the Uniform Rules did not supplant the law which provided the CSC with original jurisdiction. While the Uniform Rules may have so provided, the Court invites 31 attention to the cases of Civil Service Commission v. Alfonso 32 and Civil Service Commission v. Sojor, to be further discussed in the course of this decision, both of which buttressed the pronouncement that the Board of Regents shares its authority to discipline erring school officials and employees with the CSC. It can be presumed that, at the time of their promulgation, the members of this Court, in Alfonso and Sojor, were fully aware of all the existing laws and applicable rules and regulations pertaining to the jurisdiction of the CSC, including the Uniform Rules. In fact, Sojor specifically cited the Uniform Rules in support of its ruling allowing the CSC to take cognizance of an administrative case filed directly with it against the president of a state university. As the Court, in the two cases, did not consider Section 5 of the Uniform Rules as a limitation to the original concurrent jurisdiction of the CSC, it can be stated that Section 5 is merely implementary. It is merely directory and not restrictive of the CSCs powers. The CSC itself is of this view as it has vigorously asserted its jurisdiction over this case through this petition. The case of Alfonso is on all fours with the case at bench. The case involved a complaint filed before the CSC against a PUP employee by two employees of the same university. The CA was then faced with the identical issue of whether it was the CSC or the PUP Board of Regents which had jurisdiction over the administrative case filed against the said PUP employee. The CA similarly ruled that the CSC could take cognizance of an administrative case if the decisions of secretaries or heads of agencies, instrumentalities, provinces, cities and municipalities were appealed to it or if a private citizen directly filed with the CSC a complaint against a government official or employee. Because the complainants in the said case were PUP employees and not private citizens, the CA held that the CSC had no jurisdiction to hear the administrative case. It further posited that even assuming the CSC had the authority to do so, immediate resort to the CSC violated the doctrine of exhaustion of administrative remedies as the complaint should have been first lodged with the PUP Board of Regents to allow them the opportunity to decide on the matter. This Court, however, reversed the said decision and declared the following: xxx. Admittedly, the CSC has appellate jurisdiction over disciplinary cases decided by government departments, agencies and instrumentalities. However, a complaint may be filed directly with the CSC, and the Commission has the authority to hear and decide the case, although it may opt to deputize a department or an agency to conduct the investigation. x x x xxx xxx xxx
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We are not unmindful of certain special laws that allow the creation of disciplinary committees and governing bodies in different branches, subdivisions, agencies and instrumentalities of the government to hear and decide administrative complaints against their respective officers and employees. Be that as it may, we cannot interpret the creation of such bodies nor the passage of laws such as R.A. Nos. 8292 and 4670 allowing for the creation of such disciplinary bodies as having divested the CSC of its inherent power to supervise and discipline government employees, including those in the academe. To hold otherwise would not only negate the very purpose for which the CSC was established, i.e. to instill professionalism, integrity, and accountability in our civil service, but would also impliedly amend the Constitution itself. xxx xxx xxx

But it is not only for this reason that Alfonsos argument must fail. Equally significant is the fact that he had already submitted himself to the jurisdiction of the CSC when he filed his counteraffidavit and his motion for reconsideration and requested for a change of venue, not from the CSC to the BOR of PUP, but from the CSC-Central Office to the CSC-NCR. It was only when his motion was denied that he suddenly had a change of heart and raised the question of proper jurisdiction. This cannot be allowed because it would violate the doctrine of res judicata, a legal principle that is applicable to administrative cases as well. At the very least, respondents active participation in the proceedings by seeking affirmative relief before the CSC already bars him from impugning the Commissions authority under the principle of estoppel by laches. In this case, the complaint-affidavits were filed by two PUP

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employees. These complaints were not lodged before the disciplinary tribunal of PUP, but were instead filed before the CSC, with averments detailing respondents alleged violation of civil service laws, rules and regulations. After a fact-finding investigation, the Commission found that a prima facie case existed against Alfonso, prompting the Commission to file a formal charge against the latter. Verily, since the complaints were filed directly with the CSC, and the CSC has opted to assume jurisdiction over the complaint, the CSCs exercise of jurisdiction shall be to the exclusion of other tribunals exercising concurrent jurisdiction. To repeat, it may, however, choose to deputize any department or agency or official or group of officials such as the BOR of PUP to conduct the investigation, or to delegate the investigation to the proper regional office. But the same is merely permissive and not mandatory upon the 34 Commission. [Emphases and underscoring supplied] It has been opined that Alfonso does not apply to the case at bar because respondent therein submitted himself to the jurisdiction of the CSC when he filed his counter-affidavit before it, thereby preventing him from later questioning the jurisdiction of the CSC. Such circumstance is said to be totally absent in 35 this case. The records speak otherwise. As in Alfonso, respondents herein submitted themselves to the jurisdiction of the CSC when they 36 filed their Joint Counter-Affidavit. It was only when their Motion for Reconsideration and Motion to Declare Absence of 37 Prima Facie Case was denied by the CSC that they thought to put in issue the jurisdiction of the CSC before the CA, clearly a desperate attempt to evade prosecution by the CSC. As in Alfonso, respondents are also estopped from questioning the jurisdiction of the CSC. Based on all of the foregoing, the inescapable conclusion is that the CSC may take cognizance of an administrative case filed directly with it against an official or employee of a chartered state college or university. This is regardless of whether the complainant is a private citizen or a member of the civil service and such original jurisdiction is shared with the Board of Regents of the school. Gaoiran not applicable In its decision, the CA relied heavily on Gaoiran v. Alcala to support its judgment that it is the Board of Regents, and not the CSC, which has jurisdiction over the administrative complaint filed against the respondents. A thorough study of the said case, however, reveals that it is irrelevant to the issues discussed in the case at bench. Gaoiran speaks of a complaint filed against a high school teacher of a state-supervised school by another employee of the same school. The complaint was referred to the Legal Affairs Service of the Commission on Higher Education (LAS-CHED). After a fact-finding investigation established the existence of a prima facie case against the teacher, the Officer-in-Charge of the Office of the Director of LAS-CHED issued a formal charge for Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service, together with the Order of Preventive Suspension. The newly-appointed Director of LAS-CHED, however, dismissed the administrative complaint on the ground that the letter-complaint was not made under oath. Unaware of this previous resolution, the Chairman of the CHED issued another resolution finding petitioner therein guilty of the charges
38

against him and dismissing him from the service. The trial court upheld the resolution of the director of LAS-CHED but on appeal, this was reversed by the CA, affirming the decision of the CHED chairman removing petitioner from service. One of the issues raised therein before this Court was whether the CA erred in disregarding the fact that the complaint was not made under oath as required by the Omnibus Rules Implementing Book V of E.O. 292. In the said case, the Court concurred with the findings of the CA that it was the formal charge issued by the LAS-CHED which constituted the complaint, and because the same was initiated by the appropriate disciplining authority, it need not be subscribed and sworn to and CHED acquired jurisdiction over the case. The Court further affirmed the authority of the heads of agencies to investigate and decide matters involving disciplinary action against their officers and employees. It bears stressing, at this point, that there is nothing in the case that remotely implies that this Court meant to place upon the Board of Regent exclusive jurisdiction over administrative cases filed against their employees. In fact, following the ruling in Gaoiran, it can be argued that it was CSC Resolution No. 060521 which formally charged respondents that constituted the complaint, and since the complaint was initiated by the CSC itself as the disciplining authority, the CSC properly acquired jurisdiction over the case. R.A. No. 8292 is not in conflict with E.O. No. 292. In addition, the respondents argue that R.A. No. 8292, which granted to the board of regents or board of trustees disciplinary authority over school employees and officials of chartered state colleges and universities, should prevail over the provisions of 39 E.O. No. 292. They anchor their assertion that the Board of Regents has exclusive jurisdiction over administrative cases on 40 Section 4 of R.A. No. 8292, to wit: Section 4. Powers and duties of Governing Boards. The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68 otherwise known as the Corporation Code of the Philippines; xxxx (h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the revised compensation and classification system and other pertinent budget and compensation laws governing hours of service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provisions of existing law to the contrary not with standing; and to remove them for cause in accordance with the requirements of due process of law. [Emphasis supplied] The respondents are mistaken. Basic is the principle in statutory construction that interpreting and harmonizing laws is the best method of interpretation in order to form a uniform, complete, coherent, and intelligible system of jurisprudence, in accordance with the legal maxim

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interpretare et concordare leges legibus est optimus 41 interpretandi modus. Simply because a later statute relates to a similar subject matter as that of an earlier statute does not 42 result in an implied repeal of the latter. A perusal of the abovequoted provision clearly reveals that the same does not indicate any intention to remove employees and officials of state universities and colleges from the ambit of the CSC. What it merely states is that the governing board of a school has the authority to discipline and remove faculty members and administrative officials and employees for cause. It neither supersedes nor conflicts with E.O. No. 292 which allows the CSC to hear and decide administrative cases filed directly with it or on appeal. In addition to the previously cited case of Alfonso, the case of 43 The Civil Service Commission v. Sojor is likewise instructive. In the said case, this Court ruled that the CSC validly took cognizance of the administrative complaints directly filed with it concerning violations of civil service rules committed by a university president. This Court acknowledged that the board of regents of a state university has the sole power of administration over a university, in accordance with its charter and R.A. No. 8292. With regard to the disciplining and removal of its employees and officials, however, such authority is not exclusive to it because all members of the civil service fall under the jurisdiction of the CSC: Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the matter of disciplining and removing its employees and officials. Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter. All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non-career, a civil service official or employee is 44 within the jurisdiction of the CSC. [Emphases and underscoring supplied] It has been pointed out that the case of Sojor is not applicable to the case at bar because the distinction between a complaint filed by a private citizen and one filed by a government 45 employee was not taken into consideration in the said case. The dissent fails to consider that Sojor is cited in the ponencia to support the ruling that R.A. No. 8292 is not in conflict with E.O. No. 292 and to counter respondents flawed argument that the passage of R.A. No. 8292 granted the Board of Regents exclusive jurisdiction over administrative cases against school employees and officials of chartered state colleges and universities. Also noteworthy is the fact that the complainants before the CSC in Sojor were faculty members of a state university and were, thus, government employees. Nevertheless, despite this, the Court allowed the CSC to assert jurisdiction over the administrative case, proclaiming that the power of the Board of Regents to discipline its officials and employees is not exclusive but is concurrent with the CSC.
47 46

The case of University of the Philippines v. Regino was also cited to bolster the claim that original jurisdiction over disciplinary cases against government officials is vested upon the department secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities, whereas 48 the CSC only enjoys appellate jurisdiction over such cases. The interpretation therein of the Administrative Code supposedly renders effectual the provisions of R.A. No. 8292 and does not "deprive the governing body of the power to discipline its own officials and employees and render inutile the legal provisions on disciplinary measures which may be taken 49 by it." The Court respectfully disagrees. Regino is obviously inapplicable to this case because there, the school employee had already been found guilty and dismissed by the Board of Regents of the University of the Philippines. Therefore, the issue put forth before this Court was whether the CSC had appellate jurisdiction over cases against university employees, considering the university charter which gives it academic freedom allegedly encompassing institutional autonomy. In contrast, no administrative case was filed before the Board of Regents of PUP because the case was filed directly with the CSC and so, the question here is whether the CSC has original concurrent jurisdiction over disciplinary cases. Rationally, the quoted portions in Regino find no application to the case at bench because those statements were made to uphold the CSCs appellate jurisdiction which was being contested by petitioner therein. At the risk of being repetitive, it is hereby stressed that the authority of the CSC to hear cases on appeal has already been established in this case. What is in question here is its original jurisdiction over administrative cases. A different interpretation of the Administrative Code was suggested in order to harmonize the provisions of R.A. No. 8292 and E.O. 292. By allowing only a private citizen to file a complaint directly with the CSC, the CSC maintains its power to review on appeal decisions of the Board of Regents while at the same time the governing board is not deprived of its power to 50 discipline its officials and employees. To begin with, there is no incongruity between R.A. No. 8292 and E.O. No. 292, as previously explained in Sojor. Moreover, the Court fails to see how a complaint filed by a private citizen is any different from one filed by a government employee. If the grant to the CSC of concurrent original jurisdiction over administrative cases filed by private citizens against public officials would not deprive the governing bodies of the power to discipline their own officials and employees and would not be violative of R.A. No. 8292, it is inconceivable that a similar case filed by a government employee would do so. Such a distinction between cases filed by private citizens and those by civil servants is simply illogical and unreasonable. To accede to such a mistaken interpretation of the Administrative Code would be a great disservice to our developing jurisprudence. 1wphi1 It is therefore apparent that despite the enactment of R.A. No. 8292 giving the board of regents or board of trustees of a state school the authority to discipline its employees, the CSC still retains jurisdiction over the school and its employees and has concurrent original jurisdiction, together with the board of regents of a state university, over administrative cases against state university officials and employees.

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Finally, with regard to the concern that the CSC may be overwhelmed by the increase in number of cases filed before it 51 which would result from our ruling, it behooves us to allay such worries by highlighting two important facts. Firstly, it should be emphasized that the CSC has original concurrent jurisdiction shared with the governing body in question, in this case, the Board of Regents of PUP. This means that if the Board of Regents first takes cognizance of the complaint, then it 52 shall exercise jurisdiction to the exclusion of the CSC. Thus, not all administrative cases will fall directly under the CSC. Secondly, Section 47, Chapter 7, Subtitle A, Title I, Book V of the Administrative Code affords the CSC the option of whether to decide the case or to deputize some other department, agency or official to conduct an investigation into the matter, thereby considerably easing the burden placed upon the CSC. Having thus concluded, the Court sees no need to discuss the other issues raised in the petitions. WHEREFORE, the petitions are GRANTED. The December 29, 2006 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Resolution Nos. 060521 and 061141 dated March 24, 2006 and June 30, 2006, respectively, of the Civil Service Commission are REINSTATED. SO ORDERED. JOSE CATRAL MENDOZA Associate Justice ___________________________ MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF MALACAANG LEGAL AFFAIRS, Respondents. DECISION PERLAS-BERNABE, J.: The Case These two petitions have been consolidated not because they stem from the same factual milieu but because they raise a common thread of issues relating to the President's exercise of the power to remove from office herein petitioners who claim the protective cloak of independence of the constitutionallycreated office to which they belong - the Office of the Ombudsman. The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance of temporary restraining order or status quo order) which assails on jurisdictional 1 grounds the Decision dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-460 dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition primarily seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy Ombudsman of the Office of the Ombudsman. The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with application for issuance of a temporary restraining order or status quo order) seeking to 2 annul, reverse and set aside (1) the undated Order requiring petitioner Wendell Barreras-Sulit to submit a written explanation with respect to alleged acts or omissions constituting serious/grave offenses in relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F. Garcia; and (2) the April 7, 2011 Notice of Preliminary 3 Investigation, both issued by the Office of the President in OPDC-Case No. 11-B-003, the administrative case initiated against petitioner as a Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special Prosecutor of the Office of the Ombudsman. The facts from which these two cases separately took root are neither complicated nor unfamiliar. In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial news accounts were fragmented it was not difficult to piece together the story on the hostage-taker, Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer attempting to secure his reinstatement in the police force and to restore the benefits of a life-long, and erstwhile bemedaled, service. The following day, broadsheets and tabloids were replete with stories not just of the deceased hostage-taker but also of the hostage victims, eight of whom

5.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 196231 September 4, 2012

EMILIO A. GONZALES III, Petitioner, vs. OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deputy Executive Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGANSANCHEZ, and ATTY. CARLITOD. CATAYONG, Respondents. x-----------------------x G.R. No. 196232 WENDELL BARRERAS-SULIT, Petitioner, vs. ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN

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died during the bungled police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign relation proportions. One newspaper headline ran the story in detail, as follows: MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national television until last night. Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m. Mendoza hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police force. The hostage drama dragged on even after the driver of the bus managed to escape and told police that all the remaining passengers had been killed. Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of the bus to immobilize it. Police used hammers to smash windows, door and wind-shield but were met with intermittent fire from the hos-tage taker. Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive. When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza was killed by a sniper. Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders scampering for safety. It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from inside the bus. Mendoza hijacked the tourist bus in the morning and took the tourists hostage. Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of the hostages during the drama that began at 10 a.m. and played out live on national television. Live television footage showed Mendoza asking for food for those remaining in the bus, which was delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades. Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3 p.m. today." Another sign stuck to another window said "3 p.m. today deadlock." Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake to correct a big wrong decision." A larger piece of paper on the front windshield was headed, "Release final decision," apparently referring to the case that led to his dismissal from the police force. Negotiations dragged on even after Mendoza's self-imposed deadline. Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the police force. "His problem was he was unjustly removed from service. There was no due process, no hearing, no com-plaint," Gregorio said. Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front of national television. This triggered the crisis that eventually forced Mendoza to carry out his threat and kill the remaining hostages. Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos, including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow communications with Mendoza in-side the bus, which was parked in front ofthe Quirino Grandstand. Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered near the scene. Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the deployment of crack police teams and snipers near the scene. A crisis man-agement committee had been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD. Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter to Mendoza. MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-Internal Affairs Service and the Manila Regional Trial Court had already dismissed crim-inal cases against him. The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken hostage. "Having worn his (police) uniform, of course there is no doubt that he already planned the hostage taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage, The Philippine Star, 4 Updated August 24, 2010 12:00 AM, Val Rodri-guez. In a completely separate incident much earlier in time, more particularly in December of 2003, 28-year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States smuggling $100,000 from Manila by concealing the cash in their luggage and making false statements to US

34
Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the rest of the charges against them and for being sentenced to time served. Inevitably, however, an investigation into the source of the smuggled currency conducted by US Federal Agents and the Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys' father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed Forces, had accumulated more than P 300 Million during his active military service. Plunder and AntiMoney Laundering cases were eventually filed against Major General Garcia, his wife and their two sons before the Sandiganbayan. G.R. No. 196231 Sometime in 2008, a formal charge for Grave Misconduct (robbery, grave threats, robbery extortion and physical injuries) was filed before the Philippine National Police-National Capital Region (PNP-NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others, namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the private complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed as I.S. No. 08E-09512. On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III, all relevant documents and evidence in relation to said case to the Office of the Deputy Ombudsman for 6 appropriate administrative adjudication. Subsequently, Case No. OMB-P-A-08-0670-H for Grave Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers, who filed their respective verified position papers as directed. Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was 7 dismissed upon a finding that the material allegations made by the complainant had not been substantiated "by any evidence at all to warrant the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the PNP 8 issued a Resolution dated October 17, 2008 recommending the dismissal without prejudice of the administrative case against the same police officers, for failure of the complainant to appear in three (3) consecutive hearings despite due notice. However, on February 16, 2009, upon the recommendation of 9 petitioner Emilio Gonzales III, a Decision in Case No. OMB-PA-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of said Decision reads: WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen. Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1 NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEA of Manila Police District, Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil Service, with the accessory penalties of
5

forfeiture of retirement benefits and perpetual disqualification from reemployment in the government service pursuant to Section 58, Rule IV of the same Uniform Rules of Administrative Cases in the Civil Service, for having committed GRAVE MISCONDUCT. On November 5, 2009, they filed a Motion for Reconsideration of the foregoing Decision, followed by a Supplement to the 11 Motion for Reconsideration on November 19, 2009. On December 14, 2009, the pleadings mentioned and the records of the case were assigned for review and recommendation to Graft Investigation and Prosecutor Officer Dennis L. Garcia, 12 who released a draft Order on April 5, 2010 for appropriate action by his immediate superior, Director Eulogio S. Cecilio, who, in turn, signed and forwarded said Order to petitioner Gonzalez's office on April 27, 2010. Not more than ten (10) days after, more particularly on May 6, 2010, petitioner endorsed the Order, together with the case records, for final approval by Ombudsman Merceditas N. Gutierrez, in whose office it remained pending for final review and action when P/S Insp. Mendoza hijacked a bus-load of foreign tourists on that fateful day of August 23, 2010 in a desperate attempt to have himself reinstated in the police service.
10

In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public outcry against the blundering of government officials prompted the creation of the Incident Investigation and 13 Review Committee (IIRC), chaired by Justice Secretary Leila de Lima and vice-chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to determine accountability for the incident through the conduct of public hearings and executive sessions. However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC proceedings on the assertion that the Office of the Ombudsman is an independent constitutional body. Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner Gonzales to be among those in 14 whom culpability must lie. In its Report, the IIRC made the following findings: Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction precipitated the desperate resort to hostage-taking. More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not without legal and compelling bases considering the following: (a) PSI Mendoza and four policemen were investigated by the Ombudsman involving a case for alleged robbery (extortion), grave threats and physical injuries amounting to grave misconduct allegedly committed against a certain Christian Kalaw. The same case, however, was previously dismissed by the Manila City Prosecutors Office for lack of probable cause and by the PNP-NCR Internal Affairs Service for failure of the complainant (Christian Kalaw) to submit evidence and

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prosecute the case. On the other hand, the case which was filed much ahead by Mendoza et al. against Christian Kalaw involving the same incident, was given due course by the City Prosecutors Office. (b) The Ombudsman exercised jurisdiction over the case based on a letter issued motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR - without citing any reason - to endorse the case against Mendoza and the arresting policemen to his office for administrative adjudication, thereby showing undue interest on the case. He also caused the docketing of the case and named Atty. Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the nominal complainant, in lieu of Christian Kalaw. During the proceedings, Christian Kalaw did not also affirm his complaintaffidavit with the Ombudsman or submit any position paper as required. (c) Subsequently, Mendoza, after serving preventive suspension, was adjudged liable for grave misconduct by Deputy Ombudsman Gonzales (duly approved on May 21, 2009) based on the sole and uncorroborated complaint-affidavit of Christian Kalaw, which was not previously sustained by the City Prosecutor's Office and the PNP Internal Affairs Service. From the said Resolution, Mendoza interposed a timely motion for reconsideration (dated and filed November 5, 2009) as well as a supplement thereto. No opposition or comment was filed thereto. (d) Despite the pending and unresolved motion for reconsideration, the judgment of dismissal was enforced, thereby abruptly ending Mendoza's 30 years of service in the PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief by sending several hand-written letterrequests to the Ombudsman for immediate resolution of his motion for reconsideration. But his requests fell on deaf ears. xxxx By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without any justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete and wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of Procedure). The inaction is gross, there being no opposition to the motion for reconsideration. Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily enforced the judgment of dismissal and ignored the intervening requests for immediate resolution, thereby rendering the inaction even more inexcusable and unjust as to amount to gross negligence and grave misconduct. SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard of due process, manifest injustice and oppression in failing to provisionally suspend the further implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved motion for reconsideration. By enforcing the judgment of dismissal without resolving the motion for reconsideration for over nine months, the two Ombudsman officials acted with arbitrariness and without regard to due process and the constitutional right of an accused to the speedy disposition of his case. As long as his motion for reconsideration remained pending and unresolved, Mendoza was also effectively deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of dismissal before the higher courts and seek a temporary restraining order to prevent the further execution thereof. As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should have provisionally suspended the further enforcement of the judgment of dismissal without prejudice to its re-implementation if the reconsideration is eventually denied. Otherwise, the Ombudsman will benefit from its own inaction. Besides, the litigant is entitled to a stay of the execution pending resolution of his motion for reconsideration. Until the motion for reconsideration is denied, the adjudication process before the Ombudsman cannot be considered as completely finished and, hence, the judgment is not yet ripe for execution. xxxx When the two Ombudsman officials received Mendoza's demand for the release of the final order resolving his motion for reconsideration, they should have performed their duty by resolving the reconsideration that same day since it was already pending for nine months and the prescribed period for its resolution is only five days. Or if they cannot resolve it that same day, then they should have acted decisively by issuing an order provisionally suspending the further enforcement of the judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may have ended peacefully, without necessarily compromising the integrity of the institution. After all, as relayed to the negotiators, Mendoza did express willingness to take full responsibility for the hostage-taking if his demand for release of the final decision or reinstatement was met. But instead of acting decisively, the two Ombudsman officials merely offered to review a pending motion for review of the case, thereby prolonging their inaction and aggravating the situation. As expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding Php150,000 in exchange for favorably resolving the motion for reconsideration - rejected and branded as trash ("basura") the Ombudsman [sic] letter promising review, triggering the collapse of the negotiations. To prevent the situation from getting out of hand, the negotiators sought the alternative option of securing before the PNP-NCRPO an order for Mendoza's provisional reinstatement pending resolution of the motion for reconsideration. Unfortunately, it was already too late. But had the Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may have ended differently. The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the Office of the President (OP) for further determination of possible administrative offenses and for the initiation of the proper administrative proceedings. On October 15, 2010, the OP instituted a Formal Charge against petitioner Gonzales for Gross Neglect of Duty and/or
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Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft and Corrupt Practices 16 17 Act. Petitioner filed his Answer thereto in due time. Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law" under Section 3(b) of the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of gifts under 18 Section 7(d) of the Code of Conduct and Ethical Standards. In 19 a Joint Resolution dated February 17, 2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was dismissed, as follows: WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A. Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the complaint is hereby be [sic] DISMISSED. Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the same is likewise DISMISSED. Meanwhile, the OP notified petitioner that a Preliminary Clarificatory Conference relative to the administrative charge against him was to be conducted at the Office of the Deputy Executive Secretary for Legal Affairs (ODESLA) on February 8, 21 2011. Petitioner Gonzales alleged, however, that on February 4, 2011, he heard the news that the OP had announced his suspension for one year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence, believing that the OP had already prejudged his case and that any proceeding before it would simply be a charade, petitioner no longer attended the scheduled clarificatory conference. 22 Instead, he filed an Objection to Proceedings on February 7, 2011. Despite petitioner's absence, however, the OP pushed through with the proceedings and, on March 31, 2011, rendered 23 the assailed Decision, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and hereby meted out the penalty of DISMISSAL from service. SO ORDERED. Hence, the petition. G.R. No. 196232 In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo Garcia and Timothy Mark Garcia and several
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unknown persons with Plunder (Criminal Case No. 28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan. On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010, however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit ("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the PLEBARA compliant with jurisprudential guidelines. Outraged by the backroom deal that could allow Major General Garcia to get off the hook with nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his culpability for serious public offenses, the House of Representatives' Committee on Justice conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the Committee on Justice passed and adopted 24 Committee Resolution No. 3, recommending to the President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate charges against her Deputies and Assistants before the appropriate government office for having committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and grounds for removal from office under the Ombudsman Act. The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of the OP with respect to the administrative disciplinary proceeding against her. The OP, however, still proceeded with the case, setting it for preliminary investigation on April 15, 2011. Hence, the petition. The Issues In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit: (A) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN. (B) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.

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(C) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF MENDOZA'S MOTION FOR RECONSIDERATION. (D) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S CASE. (E) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS. (F) RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT PETITIONER 25 DEMANDED A BRIBE FROM MENDOZA. On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND 26 JUSTIFIABLE? Re-stated, the primordial question in these two petitions is whether the Office of the President has jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special Prosecutor who belong to the constitutionallycreated Office of the Ombudsman. The Court's Ruling Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate that the President has no disciplinary jurisdiction over them considering that the Office of the Ombudsman to which they belong is clothed with constitutional independence and that they, as Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of said office. The Court is not convinced. The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special Prose-cutor is not exclusive. It is true that the authority of the Office of the Ombudsman to conduct administrative investigations proceeds from its constitutional mandate to be an effective protector of the people 27 against inept and corrupt government officers and employees, and is subsumed under the broad powers "explicitly conferred" 28 upon it by the 1987 Constitution and R.A. No. 6770. The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term, which literally means "agent" or "representative," communicates the concept that has been carried on into the creation of the modern-day ombudsman, that is, someone who acts as a neutral representative of ordinary citizens against government 29 abuses. This idea of a people's protector was first institutionalized in the Philippines under the 1973 Constitution with the creation of the Tanodbayan, which wielded the twin powers of investigation and prosecution. Section 6, Article XIII of the 1973 Constitution provided thus: Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court or body. The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with authority to "act in a quick, inexpensive and effective manner on complaints against administrative officials", and to function purely with the "prestige and persuasive powers of his office" in correcting improprieties, inefficiencies and corruption in government freed from the 30 hampering effects of prosecutorial duties. Accordingly, Section 13, Article XI of the 1987 Constitution enumerates the following powers, functions, and duties of the Office of the Ombudsman, viz: (1) 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. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any governmentowned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions

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entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided 31 by law. Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of 1989, to shore up the Ombudsman's institutional strength by granting it "full administrative disciplinary power over public officials and 32 employees," as follows: 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) In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was explicitly conferred the statutory power to conduct administrative investigations under Section 19 of the same law, thus: 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 agency's 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. While the Ombudsman's authority to discipline administratively is extensive and covers all government officials, whether appointive or elective, with the exception only of those officials removable by impeachment, the members of congress and the judiciary, such authority is by no means exclusive. Petitioners cannot insist that they should be solely and directly subject to the disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's disciplinary authority over all government officials, Section 8(2), on the other hand, grants the President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus: Section 8. Removal; Filling of Vacancy.xxxx (2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the grounds provided for the removal of the Ombudsman, and after due process. It is a basic canon of statutory construction that in interpreting a statute, care should be taken that every part thereof be given effect, on the theory that it was enacted as an integrated measure and not as a hodge-podge of conflicting provisions. A construction that would render a provision inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled whenever possible as parts of a coordinated and 33 harmonious whole. Otherwise stated, the law must not be read in truncated parts. Every part thereof must be considered together with the other parts, and kept subservient to the 34 general intent of the whole enactment. A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter are quite insightful, viz: x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy Tanodbayan may only be removed for cause and after due process. He added that the President alone has the power to remove the Deputy Tanodbayan. Reacting thereto, Senator Guingona observed that this might impair the independence of the Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he can be removed not by the President but by the Ombudsman. However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman may try to protect one another. The Chair suggested the substitution of the phrase "after due process" with the words after due notice and hearing with the President as the ultimate authority. Senator Guingona contended, however, that the Constitution provides for an independent Office of the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan Deputies would be an encroachment on the independence of the Tanodbayan.

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Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however, considering the Chair's observation that vesting such authority upon the Tanodbayan itself could result in mutual protection, it is necessary that an outside official should be vested with such authority to effect a 35 check and balance. Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section 21 - in the same Organic Act was to provide for an external authority, through the person of the President, that would exercise the power of administrative discipline over the Deputy Ombudsman and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the Ombudsman over all government officials and employees. Such legislative design is simply a measure of "check and balance" intended to address the lawmakers' real and valid concern that the Ombudsman and his Deputy may try to protect one another from administrative liabilities. This would not be the first instance that the Office of the President has locked horns with the Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in 36 favor of shared authority in Hagad v. Gozo Dadole. In said case, the Mayor and Vice-Mayor of Mandaue City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his authority to conduct administrative investigations over said local elective officials by virtue of the subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent provision of which states: Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local elective official shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President. The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No. 7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the Ombudsman Act was inferred therefrom. Thus said the Court: 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 strike down the other. Well settled is the rule that repeals of laws by implication are not favored, and that courts must generally assume their congruent application. The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to 37 harmonize and give effect to all laws on the subject. While Hagad v. Gozo Dadole upheld the plenary power of the Office of the Ombudsman to discipline elective officials over the same disciplinary authority of the President under R.A. No. 7160, the more recent case of the Office of the Ombudsman v. 39 Delijero tempered the exercise by the Ombudsman of such 40 plenary power invoking Section 23(2) of R.A. No. 6770, which gives the Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees." The Court underscored therein the clear legislative intent of imposing "a standard and a separate set of procedural requirements in connection with administrative proceedings 41 involving public school teachers" with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for Public School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary authority over a public school teacher is concurrent with the proper investigating committee of the Department of Education, it would have been more prudent under the circumstances for the Ombudsman to have referred to the DECS the complaint against the public school teacher. Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete out administrative sanctions upon them, including the extreme penalty of dismissal from the service. However, it is equally without question that the President has concurrent authority with respect to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified conditions. Considering the principles attending concurrence of jurisdiction where the Office of the President was the first to initiate a case against petitioner Gonzales, prudence should have prompted the Ombudsman to desist from proceeding separately against petitioner through its Internal Affairs Board, and to defer instead to the President's assumption of authority, especially when the administrative charge involved "demanding and soliciting a sum of money" which constitutes either graft and corruption or bribery, both of which are grounds reserved for the President's exercise of his authority to remove a Deputy Ombudsman. In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge of graft and corruption against petitioner could not have the effect of preventing the Office of the President from proceeding against petitioner upon the same ground of graft and corruption. After all, the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of 42 43 administrative powers. In Montemayor v. Bundalian, the Court sustained the President's dismissal from service of a Regional Director of the Department of Public Works and Highways (DPWH) who was found liable for unexplained wealth upon investigation by the now defunct Philippine Commission Against Graft and Corruption (PCAGC). The Court categorically ruled therein that the prior dismissal by the Ombudsman of similar charges against said official did not operate as res judicata in the PCAGC case. By granting express statutory power to the President to remove a Deputy Ombudsman and a Special Prosecutor,
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Congress merely filled an obvious gap in the law. Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the Ombudsman and his Deputies, viz: Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur. While the removal of the Ombudsman himself is also expressly provided for in the Constitution, which is by impeachment under Section 244 of the same Article, there is, however, no constitutional provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in the law without running afoul of any provision in the Constitution or existing statutes. In fact, the Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to impeachment. That the Deputies of the Ombudsman were intentionally excluded from the enumeration of impeachable officials is clear 45 from the following deliberations of the Constitutional Commission, thus: MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform his duties because he is something like a guardian of the government. This recalls the statement of Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies", who will guard the guardians? I understand here that the Ombudsman who has the rank of a chairman of a constitutional commission is also removable only by impeachment. MR. ROMULO. That is the intention, Madam President. MR. REGALADO. Only the Ombudsman? MR. MONSOD. Only the Ombudsman. MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of". We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and read our discussions into the Record for purposes of the Commission 46 and the Committee. xxx THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the Ombudsman among those officials who have to be removed from office only onimpeachment. Is that right? MR. DAVIDE. Yes, Madam President. MR. RODRIGO. Before we vote on the amendment, may I ask a question? THE PRESIDENT. Commissioner Rodrigo is recognized. MR. RODRIGO. The Ombudsman, is this only one man? MR. DAVIDE. Only one man. MR. RODRIGO. Not including his deputies. MR. MONSOD. No.
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(Emphasis supplied)

The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is Implied from his Power to Appoint. Under the doctrine of implication, the power to appoint carries 48 with it the power to remove. As a general rule, therefore, all officers appointed by the President are also removable by 49 him. The exception to this is when the law expressly provides otherwise - that is, when the power to remove is expressly vested in an office or authority other than the appointing power. In some cases, the Constitution expressly separates the power to remove from the President's power to appoint. Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of lower courts shall be appointed by the President. However, Members of the Supreme Court may be removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges of lower courts may be removed only by the Supreme Court by virtue of its administrative supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall likewise be appointed by the President, but they may be removed only by impeachment (Section 2, Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9, Article XI) but may also be removed only by impeachment (Section 2, Article XI). In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor, Congress simply laid down in express terms an authority that is already implied from the President's constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman. The Office of the Ombudsman is charged with monumental tasks that have been generally categorized into investigatory power, prosecutorial power, public assistance, authority to inquire and obtain information and the function to adopt, 50 institute and implement preventive measures. In order to ensure the effectiveness of his constitutional role, the Ombudsman was provided with an over-all deputy as well as a deputy each for Luzon, Visayas and Mindanao. However, well into the deliberations of the Constitutional Commission, a provision for the appointment of a separate deputy for the military establishment was necessitated by Commissioner Ople's lament against the rise within the armed forces of "fraternal associations outside the chain of command" which have become the common soldiers' "informal grievance

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machinery" against injustice, corruption and neglect in the 51 uniformed service, thus: In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association outside the chain of command proposing reformist objectives. They constitute, in fact, an informal grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El Diablo and other organizations dominated by enlisted men function, more or less, as grievance collectors and as mutual aid societies. This proposed amendment merely seeks to extend the office of the Ombudsman to the military establishment, just as it champions the common people against bureaucratic indifference. The Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance to higher authorities. This deputy will, of course work in close cooperation with the Minister of National Defense because of the necessity to maintain the integrity of the chain of command. Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may not have to fall back on their own informal devices to obtain redress for their grievances. The Ombudsman will help raise troop morale in accordance with a major professed goal of the President and the military authorities themselves. x x x The add-on now forms part of Section 5, Article XI which reads as follows: Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise be appointed. (Emphasis supplied) The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog looking into abuses and irregularities that affect the general morale and professionalism in the military is certainly of primordial importance in relation to the President's own role asCommander-in-Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the President concurrent disciplinary authority over the Deputy Ombudsman for the military and other law enforcement offices. Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the Independence of the Office of the Ombudsman. The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with was intended to free it from political considerations in pursuing its constitutional mandate to be a protector of the people. What the Constitution secures for the Office of the Ombudsman is, essentially, political independence. This means nothing more than that "the terms of office, the salary, the appointments and discipline of all persons under the office" are 52 "reasonably insulated from the whims of politicians." And so it was that Section 5, Article XI of the 1987 Constitution had declared the creation of the independent Office of the Ombudsman, composed of the Ombudsman and his Deputies, who are described as "protectors of the people" and constitutionally mandated to act promptly on complaints filed in any form or manner against public officials or employees of the Government Section 12, Article XI. Pertinent provisions under Article XI prescribes a term of office of seven years without reappointment Section 11, prohibits a decrease in salaries during the term of office Section 10, provides strict qualifications for the office Section 8, grants fiscal autonomy Section 14 and ensures the exercise of constitutional functions Section 12 and 13. The cloak of independence is meant to build up the Office of the Ombudsman's institutional strength to effectively function as 53 official critic, mobilizer of government, constitutional watchdog and protector of the people. It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its officials to escape administrative discipline. Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political influences and the discretionary acts of the executive, Congress laid down two restrictions on the President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that the removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust." Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman, or a Special Prosecutor for that matter, would diminish or compromise the constitutional independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the independence of the Ombudsman's Deputies and Special Prosecutor in the discharge of their duties that their removal can only be had on grounds provided by law. In Espinosa v. Office of the Ombudsman, the Court elucidated on the nature of the Ombudsman's independence in this wise The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman. To insulate the Office from outside pressure and improper influence, the Constitution as well as RA 6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from legislative, executive or judicial intervention. This Court consistently refrains from interfering with the exercise of its powers, and respects the initiative and independence inherent in the Ombudsman who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of public service. Petitioner Gonzales may not be removed from office where the questioned acts, falling short of constitutional standards, do not constitute betrayal of public trust. Having now settled the question concerning the validity of the President's power to remove the Deputy Ombudsman and
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Special Prosecutor, we now go to the substance of the administrative findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy Ombudsman Emilio A. Gonzales, III. At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP proceeded with the administrative case against him despite his non-attendance thereat. Petitioner was admittedly able to file an Answer in which he had interposed his defenses to the formal charge against him. Due process is satisfied when a person is notified of the charge against him and given an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so charged to answer the accusations against him constitute the 55 minimum requirements of due process. Due process is simply having the opportunity to explain one's side, or an opportunity to 56 seek a reconsideration of the action or ruling complained of. The essence of due process is that a party is afforded reasonable opportunity to be heard and to submit any evidence 57 he may have in support of his defense. Mere opportunity to be heard is sufficient. As long as petitioner was given the opportunity to explain his side and present evidence, the requirements of due process are satisfactorily complied with because what the law abhors is an absolute lack of opportunity 58 to be heard. Besides, petitioner only has himself to blame for limiting his defense through the filing of an Answer. He had squandered a subsequent opportunity to elucidate upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory Conference despite notice. The OP recounted as follows It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities to explain his side and answer the Formal Charge against him. In the first instance, respondent was given the opportunity to submit his answer together with his documentary evidence, which opportunity respondent actually availed of. In the second instance, this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman refused to appear for said conference, interposing an objection based on the unfounded notion that this Office has prejudged the instant case. Respondent having been given actual and reasonable opportunity to explain or defend himself in due course, the requirement of due process 59 has been satisfied. In administrative proceedings, the quantum of proof necessary 60 for a finding of guilt is substantial evidence, which is more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a 61 conclusion. The fact, therefore, that petitioner later refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability based on substantial evidence, which only requires that a decision must "have something upon which 62 it is based." Factual findings of administrative bodies are controlling when 63 supported by substantial evidence. The OP's pronouncement of administrative accountability against petitioner and the imposition upon him of the corresponding penalty of removal from office was based on the finding of gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust, which is a constitutional ground for the removal by impeachment of the Ombudsman (Section 2, Article XI, 1987 Constitution), and a statutory ground for the President to remove from office a Deputy Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act. The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained action in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his failure to verify the basis for requesting the Ombudsman to take over the case; his pronouncement of administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp. Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency of the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of available remedies against the immediate implementation of the Decision dismissing him from the service. Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1) petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S Insp. Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by effectively depriving the latter of the right to challenge the dismissal before the courts and prevent its immediate execution, and (2) petitioner showed undue interest by having P/S Insp. Mendoza's case endorsed to the Office of the Ombudsman and resolving the same against P/S Insp. Mendoza on the basis of the unverified complaint-affidavit of the alleged victim Christian Kalaw. The invariable rule is that administrative decisions in matters within the executive jurisdiction can only be set aside on proof 64 of gross abuse of discretion, fraud, or error of law. In the instant case, while the evidence may show some amount of wrongdoing on the part of petitioner, the Court seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that petitioner's offenses, as they factually appear, weigh heavily enough to constitute betrayal of public trust would be to ignore the significance of the legislature's intent in prescribing the removal of the Deputy Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for the most serious violations that justify the removal by impeachment of the highest officials of the land. Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties constitute betrayal of public trust warranting immediate removal from office? The question calls for a deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman and a Special Prosecutor vis-a-vis common administrative offenses. Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and other high crimes. While it was deemed broad 65 enough to cover any violation of the oath of office, the

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impreciseness of its definition also created apprehension that "such an overarching standard may be too broad and may be 66 subject to abuse and arbitrary exercise by the legislature." Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not punishable by statutes as penal offenses but, 67 nonetheless, render the officer unfit to continue in office" could be easily utilized for every conceivable misconduct or negligence in office. However, deliberating on some workable standard by which the ground could be reasonably interpreted, the Constitutional Commission recognized that human error and good faith precluded an adverse conclusion. MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I am not a lawyer so I can anticipate the difficulties that a layman may encounter in understanding this provision and also the possible abuses that the legislature can commit in interpreting this phrase. It is to be noted that this ground was also suggested in the 1971 Constitutional Convention. A review of the Journals of that Convention will show that it was not included; it was construed as encompassing acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers. I understand from the earlier discussions that these constitute violations of the oath of office, and also I heard the Honorable Davide say that even the criminal acts that were enumerated in the earlier 1973 provision on this matter constitute betrayal of public trust as well. In order to avoid confusion, would it not be clearer to stick to the wording of Section 2 which reads: "may be removed from office on impeachment for and conviction of, culpable violation of the Constitution, treason, bribery, and other high crimes, graft and corruption or VIOLATION OF HIS OATH OF OFFICE", because if betrayal of public trust encompasses the earlier acts that were enumerated, then it would behoove us to be equally clear about this last provision or phrase. MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words "betrayal of public trust" in the 1986 Constitution. But I would like him to know that we are amenable to any possible amendment. Besides, I think plain error of judgment, where circumstances may indicate that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will allay the fears of difficulty in interpreting the 68 term." (Emphasis supplied) The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of public trust to refer to "acts which are just short of being criminal but constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross exercise 69 of discretionary powers." In other words, acts that should constitute betrayal of public trust as to warrant removal from office may be less than criminal but must be attended by bad faith and of such gravity and seriousness as the other grounds for impeachment. A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by providing for their removal from office on the same grounds as removal by impeachment, the legislature could not have intended to redefine constitutional standards of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment, this should remain true even for purposes of removing a Deputy Ombudsman and Special Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could not suddenly "overreach" to cover acts that are not vicious or malevolent on the same level as the other grounds for impeachment. The tragic hostage-taking incident was the result of a confluence of several unfortunate events including system failure of government response. It cannot be solely attributed then to what petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official acts in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution of his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records show that petitioner took considerably less time to act upon the draft resolution after the same was submitted for his appropriate action compared to the length of time that said draft remained pending and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and denied P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release of any final order on the case was no longer in his hands. Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the same cannot be considered a vicious and malevolent act warranting his removal for betrayal of public trust. More so because the neglect imputed upon petitioner appears to be an isolated case. Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking cognizance of cases upon the request of concerned agencies or private parties is part and parcel of the constitutional mandate of the Office of the Ombudsman to be the "champion of the people." The factual circumstances that the case was turned over to the Office of the Ombudsman upon petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even without the private complainant verifying the truth of his statements; that the decision was immediately implemented; or that the motion for reconsideration thereof remained pending for more than nine months cannot be simply taken as evidence of petitioner's undue interest in the case considering the lack of evidence of any personal grudge, social ties or business affiliation with any of the parties to the case that could have impelled him to act as he did. There was likewise no evidence at all of any bribery that took place, or of any corrupt intention or questionable motivation. Accordingly, the OP's pronouncement of administrative

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accountability against petitioner and the imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust. Hence, the President, while he may be vested with authority, cannot order the removal of petitioner as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind amounting to a betrayal of public trust. This is not to say, however, that petitioner is relieved of all liability for his acts showing less than diligent performance of official duties. Although the administrative acts imputed to petitioner fall short of the constitutional standard of betrayal of public trust, considering the OP's factual findings of negligence and misconduct against petitioner, the Court deems it appropriate to refer the case to the Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and the imposition of the corresponding administrative sanctions, if any. Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled to reinstatement to his former position as Deputy Ombudsman and to the payment of backwages and benefits corresponding to the period of his suspension. The Office of the President is vested with statutory authority to proceed administratively against petitioner Barreras-Sulit to determine the existence of any of the grounds for her removal from office as provided for under the Constitution and the Ombudsman Act. Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove her from office upon the averment that without the Sandiganbayan's final approval and judgment on the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions "tantamount to culpable violations of the Constitution and betrayal of public trust," which are grounds for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989; and which also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) causing undue injury to the Government or giving any private party any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent, petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take administrative disciplinary proceeding against her must depend on the final disposition by the Sandiganbayan of the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA, there would no longer be any cause of complaint against her; if not, then the situation becomes ripe for the determination of her failings. The argument will not hold water. The incidents that have taken place subsequent to the submission in court of the PLEBARA shows that the PLEBARA has been practically approved, and that the only thing which remains to be done by the Sandiganbayan is to promulgate a judgment imposing the proper sentence on the accused Major General Garcia based on his new pleas to lesser offenses. On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea under the PLEBARA was warranted and that it complied with jurisprudential guidelines. The Sandiganbayan, thereafter, directed the accused Major General Garcia to immediately convey in favor of the State all the properties, both real and personal, enumerated therein. On August 11, 2010, the Sandiganbayan issued a resolution, which, in order to put into effect the reversion of Major General Garcia's ill-gotten properties, ordered the corresponding government agencies to cause the transfer of ownership of said properties to the Republic of the Philippines. In the meantime, the Office of the Special Prosecutor (OSP) informed the Sandiganbayan that an 70 Order had been issued by the Regional Trial Court of Manila, Branch 21 on November 5, 2010 allowing the transfer of the accused's frozen accounts to the Republic of the Philippines pursuant to the terms of the PLEBARA as approved by the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its May 4, 2010 Resolution had been 71 substantially complied with, Major General Garcia manifested to the Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the criminal information against his wife and two sons. Major General Garcia's Motion to 72 Dismiss, dated December 16, 2010 and filed with the Sandiganbayan, reads: 1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining Agreement executed by the Principal Accused, the charges against the CoAccused should likewise be dismissed since the charges against them are anchored on the same charges against the Principal Accused. On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended. Upon Major General Garcia's motion, and with the express conformity of the OSP, the Sandiganbayan allowed him to post bail in both cases, each at a measly amount of P 30,000.00. The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an administrative finding of liability against petitioner Barreras-Sulit. While the court's determination of the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the disciplinary authority's determination of the prosecutor's administrative liability is based on whether the plea bargain is consistent with the conscientious consideration of the government's best interest and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes against the State. Consequently, the disciplining authority's finding of ineptitude, neglect or willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an agreement which the government finds "grossly disadvantageous," could result in administrative liability, notwithstanding court approval of the plea bargaining agreement entered into. Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a mutually satisfactory 73 disposition of the case subject to court approval. The essence of a plea bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that charged against

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him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the procedure therefor, to wit: SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98) Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the guilt of the accused of 74 the crime charged. However, if the basis for the allowance of a plea bargain in this case is the evidence on record, then it is 75 significant to state that in its earlier Resolution promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented by the prosecution is viewed by the Court to be of strong character that militates against the grant of bail." Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard of judicial probable cause which is 76 sufficient to initiate a criminal case." Hence, in light of the apparently strong case against accused Major General Garcia, the disciplining authority would be hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case. The Court need not touch further upon the substantial matters that are the subject of the pending administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to the complete and effective resolution of the administrative case before the Office of the President. The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the law of the land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the Ombudsman Act; and (b) the validity of the administrative action of removal taken against petitioner Gonzales. While the Court voted unanimously to reverse the decision of the OP removing petitioner Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed statutory provision in its two deliberations held on April 17, 2012 and September 4, 2012. There being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of the Internal Rules of the Court. Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the Members of the Court actually taking part in the deliberation to sustain any challenge to the constitutionality or validity of a statute or any of its provisions. WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of backwages corresponding to the period of suspension effective immediately, even as the Office of the Ombudsman is directed to proceed with the investigation in connection with the above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of the Ombudsman Act of 1989. The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED. SO ORDERED. ESTELA M. PERLAS-BERNABE Associate Justice ____________________________

6.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 202242 July 17, 2012

FRANCISCO I. CHAVEZ, Petitioner, vs. JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR., Respondents. DECISION MENDOZA, J.: The issue at hand has been in hibernation until the unexpected departure of Chief Justice Renato C. Corona on May 29, 2012, and the nomination of former Solicitor General Francisco I. Chavez (petitioner), as his potential successor, triggered the filing of this case. The issue has constantly been nagging legal minds, yet remained dormant for lack of constitutional challenge. As the matter is of extreme urgency considering the constitutional deadline in the process of selecting the nominees for the vacant seat of the Chief Justice, the Court cannot delay the resolution of the issue a day longer. Relegating it in the meantime to the back burner is not an option. Does the first paragraph of Section 8, Article VIII of the 1987 Constitution allow more than one (1) member of Congress to sit in the JBC? Is the practice of having two (2) representatives from each house of Congress with one (1) vote each sanctioned by the Constitution? These are the pivotal questions to be resolved in this original action for prohibition and injunction. Long before the naissance of the present Constitution, the annals of history bear witness to the fact that the exercise of

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appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government. Like their progenitor of American origins, 1 2 both the Malolos Constitution and the 1935 Constitution had vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on Appointments. It was during these times that the country became witness to the deplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate 3 themselves with the members of the legislative body. Then, with the fusion of executive and legislative power under 4 the 1973 Constitution, the appointment of judges and justices was no longer subject to the scrutiny of another body. It was absolute, except that the appointees must have all the qualifications and none of the disqualifications. Prompted by the clamor to rid the process of appointments to 5 the Judiciary from political pressure and partisan activities, the members of the Constitutional Commission saw the need to create a separate, competent and independent body to recommend nominees to the President. Thus, it conceived of a body representative of all the stakeholders in the judicial appointment process and called it the Judicial and Bar Council (JBC). Its composition, term and functions are provided under Section 8, Article VIII of the Constitution, viz: Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. (2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year. (3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings. (4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council. (5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. In compliance therewith, Congress, from the moment of the creation of the JBC, designated one representative to sit in the 6 JBC to act as one of the ex officio members. Perhaps in order to give equal opportunity to both houses to sit in the exclusive body, the House of Representatives and the Senate would send alternate representatives to the JBC. In other words, Congress had only one (1) representative. In 1994, the composition of the JBC was substantially altered. Instead of having only seven (7) members, an eighth (8th) member was added to the JBC as two (2) representatives from Congress began sitting in the JBC - one from the House of Representatives and one from the Senate, with each having 7 one-half (1/2) of a vote. Then, curiously, the JBC En Banc, in separate meetings held in 2000 and 2001, decided to allow the representatives from the Senate and the House of 8 Representatives one full vote each. At present, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents) simultaneously sit in the JBC as representatives of the legislature. It is this practice that petitioner has questioned in this petition, setting forth the following GROUNDS FOR ALLOWANCE OF THE PETITION I Article VIII, Section 8, Paragraph 1 is clear, definite and needs no interpretation in that the JBC shall have only one representative from Congress. II The framers of the Constitution clearly envisioned, contemplated and decided on a JBC composed of only seven (7) members. III Had the framers of the Constitution intended that the JBC composed of the one member from the Senate and one member from the House of Representatives, they could have easily said so as they did in the other provisions of the Constitution. IV The composition of the JBC providing for three ex-officio members is purposely designed for a balanced representation of each of the three branches of the government. V One of the two (2) members of the JBC from Congress has no right (not even right) to sit in the said constitutional body and perform the duties and functions of a member thereof. VI The JBC cannot conduct valid proceedings as its composition is 10 illegal and unconstitutional. On July 9, 2012, the JBC filed its Comment. It, however, abstained from recommending on how this constitutional issue should be disposed in gracious deference to the wisdom of the Court. Nonetheless, the JBC was more than generous enough to offer the insights of various personalities previously 12 connected with it.
11 9

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Through the Office of the Solicitor General (OSG), respondents defended their position as members of the JBC in their 13 Comment filed on July 12, 2012. According to them, the crux of the controversy is the phrase "a representative of 14 Congress." Reverting to the basics, they cite Section 1, Article 15 VI of the Constitution to determine the meaning of the term "Congress." It is their theory that the two houses, the Senate and the House of Representatives, are permanent and mandatory components of "Congress," such that the absence of either divests the term of its substantive meaning as expressed under the Constitution. In simplistic terms, the House of Representatives, without the Senate and vice-versa, is not 16 Congress. Bicameralism, as the system of choice by the Framers, requires that both houses exercise their respective powers in the performance of its mandated duty which is to legislate. Thus, when Section 8(1), Article VIII of the Constitution speaks of "a representative from Congress," it should mean one representative each from both Houses which 17 comprise the entire Congress. Tracing the subject provisions history, the respondents claim that when the JBC was established, the Framers originally envisioned a unicameral legislative body, thereby allocating "a representative of the National Assembly" to the JBC. The phrase, however, was not modified to aptly jive with the change to bicameralism, the legislative system finally adopted by the Constitutional Commission on July 21, 1986. According to respondents, if the Commissioners were made aware of the consequence of having a bicameral legislature instead of a unicameral one, they would have made the corresponding adjustment in the representation of Congress 18 in the JBC. The ambiguity having resulted from a plain case of inadvertence, the respondents urge the Court to look beyond the letter of the disputed provision because the literal adherence to its language would produce absurdity and 19 incongruity to the bicameral nature of Congress. In other words, placing either of the respondents in the JBC will effectively deprive a house of Congress of its representation. In the same vein, the electorate represented by Members of Congress will lose their only opportunity to participate in the nomination process for the members of the Judiciary, effectively 20 diminishing the republican nature of the government. The respondents further argue that the allowance of two (2) representatives of Congress to be members of the JBC does not render the latters purpose nugatory. While they admit that the purpose in creating the JBC was to insulate appointments to the Judiciary from political influence, they likewise cautioned the Court that this constitutional vision did not intend to entirely preclude political factor in said appointments. Therefore, no evil should be perceived in the current set-up of the JBC because two (2) members coming from Congress, whose membership to certain political parties is irrelevant, does not necessarily amplify political partisanship in the JBC. In fact, the presence of two (2) members from Congress will most likely provide balance as against the other six (6) members who are undeniably 21 presidential appointees. The Issues In resolving the procedural and substantive issues arising from the petition, as well as the myriad of counter-arguments proffered by the respondents, the Court synthesized them into two: (1) Whether or not the conditions sine qua non for the exercise of the power of judicial review have been met in this case; and (2) Whether or not the current practice of the JBC to perform its functions with eight (8) members, two (2) of whom are members of Congress, runs counter to the letter and spirit of the 1987 Constitution. The Power of Judicial Review In its Comment, the JBC submits that petitioner is clothed with locus standi to file the petition, as a citizen and taxpayer, who 22 has been nominated to the position of Chief Justice. For the respondents, however, petitioner has no "real interest" in questioning the constitutionality of the JBCs current 23 composition. As outlined in jurisprudence, it is well-settled that for locus standi to lie, petitioner must exhibit that he has been denied, or is about to be denied, of a personal right or privilege to which he is entitled. Here, petitioner failed to manifest his acceptance of his recommendation to the position of Chief Justice, thereby divesting him of a substantial interest in the controversy. Without his name in the official list of applicants for the post, the respondents claim that there is no personal stake on the part of petitioner that would justify his outcry of unconstitutionality. Moreover, the mere allegation that this case is of transcendental importance does not excuse the waiver of the rule on locus standi, because, in the first place, the case lacks the requisites therefor. The respondents also question 24 petitioners belated filing of the petition. Being aware that the current composition of the JBC has been in practice since 1994, petitioners silence for eighteen (18) years show that the constitutional issue being raised before the Court does not comply with the "earliest possible opportunity" requirement. Before addressing the above issues in seriatim, the Court deems it proper to first ascertain the nature of the petition. Pursuant to the rule that the nature of an action is determined by the allegations therein and the character of the relief sought, the Court views the petition as essentially an action for declaratory relief under Rule 63 of the 1997 Rules of Civil 25 Procedure. The Constitution as the subject matter, and the validity and construction of Section 8 (1), Article VIII as the issue raised, the petition should properly be considered as that which would result in the adjudication of rights sans the execution process because the only relief to be granted is the very declaration of the rights under the document sought to be construed. It being so, the original jurisdiction over the petition lies with the appropriate Regional Trial Court (RTC). Notwithstanding the fact that only questions of law are raised in the petition, an action for declaratory relief is not among those within the original jurisdiction of this Court as provided in Section 5, Article 26 VIII of the Constitution. At any rate, due to its serious implications, not only to government processes involved but also to the sanctity of the Constitution, the Court deems it more prudent to take cognizance of it. After all, the petition is also for prohibition

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under Rule 65 seeking to enjoin Congress from sending two (2) representatives with one (1) full vote each to the JBC. The Courts power of judicial review, like almost all other powers conferred by the Constitution, is subject to several limitations, namely: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case, such that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the 27 issue of constitutionality must be the very lis mota of the case. Generally, a party will be allowed to litigate only when these conditions sine qua non are present, especially when the constitutionality of an act by a co-equal branch of government is put in issue. Anent locus standi, the question to be answered is this: does the party possess a personal stake in the outcome of the controversy as to assure that there is real, concrete and legal conflict of rights and duties from the issues presented before 28 the Court? In David v. Macapagal-Arroyo, the Court summarized the rules on locus standi as culled from jurisprudence. There, it was held that taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (1) cases involve constitutional issues; (2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (3) for voters, there must be a showing of obvious interest in the validity of the election law in question; (4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. In public suits, the plaintiff, representing the general public, asserts a "public right" in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from any other person, and can be suing as a "stranger," or as a "citizen" or "taxpayer." Thus, taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental 29 law by the enforcement of an invalid statute. In this case, petitioner seeks judicial intervention as a taxpayer, a concerned citizen and a nominee to the position of Chief Justice of the Supreme Court. As a taxpayer, petitioner invokes his right to demand that the taxes he and the rest of the citizenry have been paying to the government are spent for lawful purposes. According to petitioner, "since the JBC derives financial support for its functions, operation and proceedings from taxes paid, petitioner possesses as taxpayer both right and legal standing to demand that the JBCs proceedings are not tainted with illegality and that its composition and actions do not 30 violate the Constitution." Notably, petitioner takes pains in enumerating past actions that he had brought before the Court where his legal standing was sustained. Although this inventory is unnecessary to establish locus standi because obviously, not every case before the Court exhibits similar issues and facts, the Court recognizes the petitioners right to sue in this case. Clearly, petitioner has the legal standing to bring the present action because he has a personal stake in the outcome of this controversy. The Court disagrees with the respondents contention that petitioner lost his standing to sue because he is not an official nominee for the post of Chief Justice. While it is true that a "personal stake" on the case is imperative to have locus standi, this is not to say that only official nominees for the post of Chief Justice can come to the Court and question the JBC composition for being unconstitutional. The JBC likewise screens and nominates other members of the Judiciary. Albeit heavily publicized in this regard, the JBCs duty is not at all limited to the nominations for the highest magistrate in the land. A vast number of aspirants to judicial posts all over the country may be affected by the Courts ruling. More importantly, the legality of the very process of nominations to the positions in the Judiciary is the nucleus of the controversy. The Court considers this a constitutional issue that must be passed upon, lest a constitutional process be plagued by misgivings, doubts and worse, mistrust. Hence, a citizen has a right to bring this question to the Court, clothed with legal standing and at the same time, armed with issues of transcendental importance to society. The claim that the composition of the JBC is illegal and unconstitutional is an object of concern, not just for a nominee to a judicial post, but for all citizens who have the right to seek judicial intervention for rectification of legal blunders. With respect to the question of transcendental importance, it is not difficult to perceive from the opposing arguments of the parties that the determinants established in jurisprudence are attendant in this case: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific 31 interest in the questions being raised. The allegations of constitutional violations in this case are not empty attacks on the wisdom of the other branches of the government. The allegations are substantiated by facts and, therefore, deserve an evaluation from the Court. The Court need not elaborate on the legal and societal ramifications of the issues raised. It cannot be gainsaid that the JBC is a constitutional innovation crucial in the selection of the magistrates in our judicial system. The Composition of the JBC Central to the resolution of the foregoing petition is an understanding of the composition of the JBC as stated in the first paragraph of Section 8, Article VIII of the Constitution. It reads: Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. From a simple reading of the above-quoted provision, it can readily be discerned that the provision is clear and unambiguous. The first paragraph calls for the creation of a JBC

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and places the same under the supervision of the Court. Then it goes to its composition where the regular members are enumerated: a representative of the Integrated Bar, a professor of law, a retired member of the Court and a representative from the private sector. On the second part lies the crux of the present controversy. It enumerates the ex officio or special members of the JBC composed of the Chief Justice, who shall be its Chairman, the Secretary of Justice and "a representative of Congress." As petitioner correctly posits, the use of the singular letter "a" preceding "representative of Congress" is unequivocal and leaves no room for any other construction. It is indicative of what the members of the Constitutional Commission had in mind, that is, Congress may designate only one (1) representative to the JBC. Had it been the intention that more than one (1) representative from the legislature would sit in the JBC, the Framers could have, in no uncertain terms, so provided. One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied 32 without attempted interpretation. It is a well-settled principle of constitutional construction that the language employed in the Constitution must be given their ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitution should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the 33 framers and the people mean what they say. Verba legis non est recedendum from the words of a statute there should be 34 no departure. The raison d tre for the rule is essentially two-fold: First, because it is assumed that the words in which constitutional provisions are couched express the objective sought to be 35 attained; and second, because the Constitution is not primarily a lawyers document but essentially that of the people, in whose consciousness it should ever be present as an important 36 condition for the rule of law to prevail. Moreover, under the maxim noscitur a sociis, where a particular word or phrase is ambiguous in itself or is equally susceptible of various meanings, its correct construction may be made clear and specific by considering the company of words in which it is 37 founded or with which it is associated. This is because a word or phrase in a statute is always used in association with other words or phrases, and its meaning may, thus, be modified or 38 restricted by the latter. The particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. A statute must be so construed as to harmonize and give effect to all its provisions 39 whenever possible. In short, every meaning to be given to each word or phrase must be ascertained from the context of the body of the statute since a word or phrase in a statute is always used in association with other words or phrases and its meaning may be modified or restricted by the latter. Applying the foregoing principle to this case, it becomes apparent that the word "Congress" used in Article VIII, Section 8(1) of the Constitution is used in its generic sense. No particular allusion whatsoever is made on whether the Senate or the House of Representatives is being referred to, but that, in either case, only a singular representative may be allowed to sit in the JBC. The foregoing declaration is but sensible, since, as pointed out by an esteemed former member of the Court and 40 consultant of the JBC in his memorandum, "from the enumeration of the membership of the JBC, it is patent that each category of members pertained to a single individual 41 only." Indeed, the spirit and reason of the statute may be passed upon where a literal meaning would lead to absurdity, contradiction, 42 injustice, or defeat the clear purpose of the lawmakers. Not any of these instances, however, is present in the case at bench. Considering that the language of the subject constitutional provision is plain and unambiguous, there is no need to resort extrinsic aids such as records of the Constitutional Commission. Nevertheless, even if the Court should proceed to look into the minds of the members of the Constitutional Commission, it is undeniable from the records thereof that it was intended that the JBC be composed of seven (7) members only. Thus: MR. RODRIGO: Let me go to another point then. On page 2, Section 5, there is a novel provision about the appointments of members of the Supreme Court and judges of the lower courts. At present it is the President who appoints them. If there is a Commission on Appointments, then it is the President with the confirmation of the Commission on Appointment. In this proposal, we would like to establish a new office, a sort of a board composed of seven members called the Judicial and Bar Council. And while the President will still appoint the member of the judiciary, he will be limited to the recommendees of this Council. xxx xxx xxx

MR. RODRIGO. Of the seven members of the Judicial and Bar Council, the President appoints four of them who are regular members. xxx xxx xxx

MR. CONCEPCION. The only purpose of the Committee is to 43 eliminate partisan politics. xxx xxx xxx

MR. RODRIGO. If my amendment is approved, then the provision will be exactly the same as the provision in the 1935 Constitution, Article VIII, Section 5. xxx xxx xxx

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this will be a diminution of the appointing power of the highest magistrate of the land, of the President of the Philippines elected by all the Filipino people. The appointing power will be limited by a group of seven people who are not elected by the people but only appointed.

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Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional provisions on appointments. The members of the Judiciary will be segregated from the rest of the government. Even a municipal judge cannot be appointed by the President except upon recommendation or nomination of the three names by this Committee of seven people, commissioners of the Commission on Elections, the COA and the Commission on Civil Serviceeven ambassadors, generals of the Army will not come under this restriction. Why are we going to segregate the Judiciary from the rest of our government in the appointment of high-ranking officials? Another reason is that this Council will be ineffective. It will just besmirch the honor of our President without being effective at all because this Council will be under the influence of the President. Four out of seven are appointees of the President and they can be reappointed when their term ends. Therefore, they would be kowtow the President. A fifth member is the Minister of Justice, an alter ego of the President. Another member represents the Legislature. In all probability, the controlling part in the legislature belongs to the President and, therefore, this representative form the National Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that event the Chief Justice of the Supreme Court is an appointee of the President. So it is futile he will be 44 influence anyway by the President. [Emphases supplied] At this juncture, it is worthy to note that the seven-member composition of the JBC serves a practical purpose, that is, to provide a solution should there be a stalemate in voting. This underlying reason leads the Court to conclude that a single vote may not be divided into half (1/2), between two representatives of Congress, or among any of the sitting members of the JBC for that matter. This unsanctioned practice can possibly cause disorder and eventually muddle the JBCs voting process, especially in the event a tie is reached. The aforesaid purpose would then be rendered illusory, defeating the precise mechanism which the Constitution itself created. While it would be unreasonable to expect that the Framers provide for every possible scenario, it is sensible to presume that they knew that an odd composition is the best means to break a voting deadlock. The respondents insist that owing to the bicameral nature of Congress, the word "Congress" in Section 8(1), Article VIII of the Constitution should be read as including both the Senate and the House of Representatives. They theorize that it was so worded because at the time the said provision was being drafted, the Framers initially intended a unicameral form of Congress. Then, when the Constitutional Commission eventually adopted a bicameral form of Congress, the Framers, through oversight, 45 failed to amend Article VIII, Section 8 of the Constitution. On this score, the Court cites the insightful analysis of another member of the Court and JBC consultant, retired Justice 46 Consuelo Ynares-Santiago. Thus: A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the Commissions desire "to have in the Council a representation for the major elements of the community." xxx The ex-officio members of the Council consist of representatives from the three main branches of government while the regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch of government. xxx Thus, the JBC was designed to have seven voting members with the three ex-officio members having equal say in the choice of judicial nominees. xxx xxx xxx

No parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of its legislative powers under Article VI and constituent powers under Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of government, is constitutionally treated as another co-equal branch of in the matter of its representative in the JBC. On the other hand, the exercise of legislative and constituent powers requires the Senate and House of Representatives to coordinate and act as distinct bodies in furtherance of Congress role under our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the two houses of Congress as they relate inter se, no such dichotomy need be made when Congress interacts with the other two coequal branches of government. It is more in keeping with the co-equal nature of the three governmental branches to assign the same weight to considerations that any of its representatives may have regarding aspiring nominees to the judiciary. The representatives of the Senate and the House of Representatives act as such for one branch and should not have any more quantitative influence as the other branches in the exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality among the three branches support this conclusion. [Emphases and underscoring supplied] More than the reasoning provided in the above discussed rules of constitutional construction, the Court finds the above thesis as the paramount justification of the Courts conclusion that "Congress," in the context of JBC representation, should be considered as one body. It is evident that the definition of "Congress" as a bicameral body refers to its primary function in 47 government - to legislate. In the passage of laws, the Constitution is explicit in the distinction of the role of each house in the process. The same holds true in Congress non legislative powers such as, inter alia, the power of 48 appropriation, the declaration of an existence of a state of 49 war, canvassing of electoral returns for the President and 50 51 Vice-President, and impeachment. In the exercise of these powers, the Constitution employs precise language in laying down the roles which a particular house plays, regardless of whether the two houses consummate an official act by voting jointly or separately. An inter-play between the two houses is necessary in the realization of these powers causing a vivid dichotomy that the Court cannot simply discount. Verily, each house is constitutionally granted with powers and functions peculiar to its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and balances, to the other branches of government. This, however, cannot be said in the case of JBC representation because no liaison between the two houses exists in the workings of the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and

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nomination of judicial officers. Hence, the term "Congress" must be taken to mean the entire legislative department. A fortiori, a pretext of oversight cannot prevail over the more pragmatic scheme which the Constitution laid with firmness, that is, that the JBC has a seat for a single representative of Congress, as one of the co-equal branches of government. Doubtless, the Framers of our Constitution intended to create a JBC as an innovative solution in response to the public clamor in favor of eliminating politics in the appointment of members of 52 the Judiciary. To ensure judicial independence, they adopted a holistic approach and hoped that, in creating a JBC, the private sector and the three branches of government would have an active role and equal voice in the selection of the members of the Judiciary. Therefore, to allow the Legislature to have more quantitative influence in the JBC by having more than one voice speak, whether with one full vote or one-half (1/2) a vote each, would, as one former congressman and member of the JBC put it, "negate the principle of equality among the three branches of 53 government which is enshrined in the Constitution." To quote one former Secretary of Justice: The present imbalance in voting power between the Legislative and the other sectors represented in the JBC must be corrected especially when considered vis--vis the avowed purpose for its creation, i.e., to insulate the appointments in the Judiciary against political influence. By allowing both houses of Congress to have a representative in the JBC and by giving each representative one (1) vote in the Council, Congress, as compared to the other members of the JBC, is accorded greater 54 and unwarranted influence in the appointment of judges. [Emphasis supplied] It is clear, therefore, that the Constitution mandates that the JBC be composed of seven (7) members only. Thus, any inclusion of another member, whether with one whole vote or half (1/2) of it, goes against that mandate. Section 8(1), Article VIII of the Constitution, providing Congress with an equal voice with other members of the JBC in recommending appointees to the Judiciary is explicit. Any circumvention of the constitutional mandate should not be countenanced for the Constitution is the supreme law of the land. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of the government and the 55 people who run it. Hence, any act of the government or of a public official or employee which is contrary to the Constitution is illegal, null and void. As to the effect of the Courts finding that the current composition of the JBC is unconstitutional, it bears mentioning that as a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at 56 all. This rule, however, is not absolute. In the interest of fair play under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally recognized. They are not nullified. In Planters Products, Inc. v. Fertiphil 57 Corporation, the Court explained: The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. 1wphi1 It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it. Considering the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless valid. At this point, the Court takes the initiative to clarify that it is not in a position to determine as to who should remain as the sole representative of Congress in the JBC. This is a matter beyond the province of the Court and is best left to the determination of Congress. Finally, while the Court finds wisdom in respondents' contention that both the Senate and the House of Representatives should be equally represented in the JBC, the Court is not in a position to stamp its imprimatur on such a construction at the risk of expanding the meaning of the Constitution as currently worded. Needless to state, the remedy lies in the amendment of this constitutional provision. The courts merely give effect to the lawgiver's intent. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct, by reading into the law what is not written therein. WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council IS declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only one ( 1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8( 1 ), Article VIII of the 1987 Constitution. This disposition is immediately executory. SO ORDERED. JOSE CATRAL MENDOZA Associate Justice _____________________