ARTICLE VII

Section 18. The President shall be the Commanderin-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion
or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial
law. Within forty-eight hours from the proclamation
of martial law or the suspension of the privilege of
the writ of habeas corpus, the President shall submit
a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special
session, may revoke such proclamation or
suspension, which revocation shall not be set aside
by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such
proclamation or suspension for a period to be
determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twentyfour hours following such proclamation or
suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate
its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation
of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts
are able to function, nor automatically suspend the
privilege of the writ of habeas corpus.
The suspension of the privilege of the writ
of habeas corpus shall apply only to persons
judicially charged for rebellion or offenses
inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ

of habeas corpus, any person thus arrested or
detained shall be judicially charged within three
days, otherwise he shall be released.

PROCLAMATION NO. 55
DECLARING A STATE OF NATIONAL
EMERGENCY
ON ACCOUNT OF LAWLESS VIOLENCE IN
MINDANAO
WHEREAS, Mindanao has had a long and complex
history of lawless violence perpetrated by private
armies and local warlords, bandits and criminal
syndicates, terrorist groups, and religious extremists;
WHEREAS, in recent months, there has been a spate
of violent and lawless acts across many parts of
Mindanao, including abductions, hostage-takings and
murder of innocent civilians, bombing of power
transmission facilities, highway robberies and
extortions,
attacks
on
military
outposts,
assassinations of media people and mass jailbreaks;
WHEREAS, the valiant efforts of our police and
armed forced to quell this armed lawlessness have
been met with stiff resistance, resulting in several
casualties on the part of government forces, the most
recent of which was the death of 15 soldiers in a
skirmish with the Abu Sayyaf Group in Patikul,
Sulu on 29 August 2016;
WHEREAS, on the night of 2 September 2016, at
least 14 people were killed and 67 others were
seriously injured in a bombing incident in a night
market in Davao City, perpetrated by still
unidentified lawless elements;
WHEREAS, the foregoing acts of violence exhibit
the audacity and propensity of these armed
lawless groups to defy the rule of law, sow anarchy,
and
sabotage
the
governments
economic
development and peace efforts;
WHEREAS, based on government intelligence
reports, there exist credible threats of further terror
attacks and other similar acts of violence by lawless

elements in other parts of the country, including the

metropolitan areas;
WHEREAS, under Section 18, Article VII of the
Constitution, the President, as the Commander-inChief of all armed forces of the Philippines, may call
out such armed forces whenever it becomes necessary
to prevent or suppress lawless violence.
NOW
THEREFORE, I, RODRIGO
ROA
DUTERTE, President of the Republic of the
Philippines, by virtue of the powers vested upon me
by Section 18, Article VII of the Philippine
Constitution, do hereby proclaim a state of national
emergency on account of lawless violence, and
hereby command the Armed Forces of the
Philippines and the Philippine National Police to
undertake such measures as may be permitted by the
Constitution and existing laws to suppress any and
all forms of lawless violence in Mindanao and to
prevent such lawless violence from spreading and
escalating elsewhere in the Philippines, with due
regard to the fundamental civil and political rights
of our citizens.
This proclamation of a state of national emergency on
account of lawless violence shall remain in force and
effect until lifted or withdrawn by the President.

LIM V COMELEC
FACTS:
On September 12, 2007, the Sandiganbayan
convicted former President Estrada, a former
President of the Republic of the Philippines, for the
crime of plunder.On the other hand, for failure of the
prosecution to prove and establish their guilt beyond
reasonable doubt, the Court finds the accused Jose
"Jinggoy" Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder, and accordingly, the
Court hereby orders their ACQUITTAL.
The penalty imposable for the crime of plunder under
Republic Act No. 7080, as amended by Republic Act
No. 7659, is Reclusion Perpetua to Death. There
being no aggravating or mitigating circumstances,
however, the lesser penalty shall be applied in
accordance with Article 63 of the Revised Penal
Code. Accordingly, the accused Former President
Joseph Ejercito Estrada is hereby sentenced to
suffer the penalty of Reclusion Perpetua and the
accessory penalties of civil interdiction during the
period of sentence and perpetual absolute
disqualification.

4 September 2016.
The period within which accused Former President
Joseph Ejercito Estrada has been under detention
shall be credited to him in full as long as he agrees
voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners.

(Sgd.) President Rodrigo Roa Duterte

By the President:
(Sgd.) SALVADOR
Executive Secretary

C.

MEDIALDEA

Are members of Abu Sayaf Group considered rebels?

Moreover, in accordance with Section 2 of Republic

Act No. 7080, as amended by Republic Act No. 7659,
the Court hereby declares the forfeiture in favor of
the government of the following:
(1) The total amount of (P545,291,000.00), with
interest and income earned, inclusive of the amount
of Two Hundred Million Pesos (P200,000,000.00),
deposited in the name and account of the Erap
Muslim Youth Foundation.
(2) The amount of (P189,000,000.00), inclusive of
interests and income earned, deposited in the Jose
Velarde account.

(3) The real property consisting of a house and lot

dubbed as "Boracay Mansion" located at #100 11th
Street, New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy"
Estrada and Atty. Edward S. Serapio are hereby
ordered cancelled and released to the said accused
or their duly authorized representatives upon
presentation of the original receipt evidencing
payment thereof and subject to the usual
accounting and auditing procedures. Likewise, the
hold-departure orders issued against the said accused
are hereby recalled and declared functus oficio.
On October 25, 2007, however, former President
Arroyo) extended executive clemency, by way of
pardon, to former President Estrada.
On November 30, 2009, former President Estrada
filed a Certificate of Candidacy 7 for the position of
President. During that time, his candidacy earned
three oppositions in the COMELEC: (1) SPA No. 09024 (DC), a "Petition to Deny Due Course and
Cancel Certificate of Candidacy" filed by Rev. Elly
Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028
(DC), a petition for "Disqualification as Presidential
Candidate" filed by Evilio C. Pormento (Pormento);
and (3) SPA No. 09-104 (DC), a "Petition to
Disqualify Estrada Ejercito, Joseph M.from Running
as President due to Constitutional Disqualification
and Creating Confusion to the Prejudice of Estrada,
Mary Lou B" filed by Mary Lou Estrada. In separate
Resolutions8 dated January 20, 2010 by the
COMELEC, Second Division, however, all three
petitions were effectively dismissed on the uniform
grounds that (i) the Constitutional proscription on
reelection applies to a sitting president; and (ii) the
pardon granted to former President Estrada by former
President Arroyo restored the formers right to vote
and be voted for a public office. The subsequent
motions for reconsideration thereto were denied by
the COMELEC En banc.

Joseph ERAP Ejercito Estrada and Commission on

Elections." But in a Resolution9 dated August 31,
2010, the Court dismissed the aforementioned
petition on the ground of mootness considering
that former President Estrada lost his presidential
bid.
On October 2, 2012, former President Estrada once
more ventured into the political arena, and filed a
Certificate of Candidacy,10 this time vying for a
local elective post, that ofthe Mayor of the City of
Manila.
On January 24, 2013, Risos-Vidal, the petitioner in
this case, filed a Petition for Disqualification against
former President Estrada before the COMELEC. The
petition was docketed as SPA No. 13-211 (DC). Risos
Vidal anchored her petition on the theory that
"[Former President Estrada] is Disqualified to
Run for Public Office because of his Conviction
for Plunder by the Sandiganbayan. She relied on
Section 40 of the Local Government Code (LGC), in
relation to Section 12 of the Omnibus Election Code
(OEC), which state respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following
persons are disqualified from running for any elective
local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by one (1) year or more of
imprisonment, within two (2) years after serving
sentence;
(b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for violating
the oath of allegiance to the Republic;

After the conduct of the May 10, 2010 synchronized

elections, however, former President Estrada only
managed to garner the second highest number of
votes.

(d) Those with dual citizenship;

Of the three petitioners above-mentioned, only

Pormento sought recourse to this Court and filed a
petition for certiorari, which was docketed as G.R.
No. 191988, entitled "Atty. Evilio C. Pormento v.

(f) Permanent residents in a foreign country or those

who have acquired the right to reside abroad and

(e) Fugitives from justice in criminal or nonpolitical

cases here or abroad;

continue to avail of the same right after the effectivity

of this Code; and
(g) The insane or feeble minded. (Emphasis
supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has
been declared by competent authority insane or
incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion,
or for any offense for which he has been sentenced
to a penalty of more than eighteen months or for a
crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any public
office, unless he has been given plenary pardon or
granted amnesty. (Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC,
Second Division, dismissed the petition for
disqualification, the fallo of which reads:
WHEREFORE, premises considered, the instant
petition is hereby DISMISSED for utter lack of merit.
Moreso, [Risos-Vidal] failed to present cogent
proof sufficient to reverse the standing
pronouncement of this Commission declaring
categorically that [former President Estradas]
right to seek public office has been effectively
restored by the pardon vested upon him by former
President Gloria M. Arroyo. Since this Commission
has already spoken, it will no longer engage in
disquisitions of a settled matter lest indulged in
wastage of government resources."13
On May 13, 2013, the elections were conducted as
scheduled and former President Estrada was voted
into office with 349,770 votes cast in his favor. The
next day, the local board of canvassers proclaimed
him as the duly elected Mayor of the City of Manila.
Lim subscribed to Risos-Vidals theory that
former President Estrada is disqualified to run for
and hold public office as the pardon granted to the
latter failed to expressly remit his perpetual
disqualification. Further, given that former President
Estrada is disqualified to run for and hold public
office, all the votes obtained by the latter should be
declared stray, and, being the second placer with

313,764 votes to his name, he (Lim) should be

declared the rightful winning candidate for the
position of Mayor of the City of Manila.
The Issue
Whether or not the COMELEC committed grave
abuse of discretion amounting to lack or excess of
jurisdiction in ruling that former President Estrada is
qualified to vote and be voted for in public office as a
result of the pardon granted to him by former
President Arroyo.
In her petition, Risos-Vidal starts her discussion
by pointing out that the pardon granted to former
President Estrada was conditional as evidenced by
the latters express acceptance thereof. The
"acceptance," she claims, is an indication of the
conditional nature of the pardon, with the condition
being embodied in the third Whereas Clause of the
pardon, i.e., "WHEREAS, Joseph Ejercito Estrada
has publicly committed to no longer seek any elective
position or office." She explains that the
aforementioned commitment was what impelled
former President Arroyo to pardon former President
Estrada, without it, the clemency would not have
been extended. And any breach thereof, that is, when
former President Estrada filed his Certificate of
Candidacy for President and Mayor of the City of
Manila, he breached the condition of the pardon;
hence, "he ought to be recommitted to prison to serve
the unexpired portion of his sentence x x x and
disqualifies him as a candidate for the mayoralty
[position] of Manila."16
Nonetheless, Risos-Vidal clarifies that the
fundamental basis upon which former President
Estrada mustbe disqualified from running for and
holding public elective office is actually the
proscription found in Section 40 of the LGC, in
relation to Section 12 ofthe OEC. She argues that the
crime of plunder is both an offense punishable by
imprisonment of one year or more and involving
moral turpitude; such that former President Estrada
must be disqualified to run for and hold public
elective office.
Even with the pardon granted to former President
Estrada, however, Risos-Vidal insists that the same
did not operate to make available to former President
Estrada the exception provided under Section 12 of
the OEC, the pardon being merely conditional and

not absolute or plenary. Moreover, Risos-Vidal puts a

premium on the ostensible requirements provided
under Articles 36 and 41 of the Revised Penal Code,
to wit:
ART. 36. Pardon; its effects. A pardon shall not
work the restoration of the right to hold publicoffice,
or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by
the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal
Their accessory penalties. The penalties of
reclusion perpetua and reclusion temporal shall carry
with them that of civil interdiction for life or during
the period of the sentence as the case may be, and
that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the
principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases
supplied.)
She avers that in view of the foregoing provisions of
law, it is not enough that a pardon makes a general
statement that such pardon carries with it the
restoration of civil and political rights. By virtue of
Articles 36 and 41, a pardon restoring civil and
political rights without categorically making mention
what specific civil and political rights are restored
"shall not work to restore the right to hold public
office, or the right of suffrage; nor shall it remit the
accessory penalties of civil interdiction and perpetual
absolute disqualification for the principal penalties of
reclusion perpetua and reclusion temporal."17 In other
words, she considers the above constraints as
mandatory requirements that shun a general or
implied restoration of civil and political rights in
pardons.
Risos-Vidal cites the concurring opinions of
Associate Justices Teodoro R. Padilla and Florentino
P. Feliciano in Monsanto v. Factoran, Jr.18 to endorse
her position that "[t]he restoration of the right to hold
public office to one who has lost such right by reason
of conviction in a criminal case, but subsequently
pardoned, cannot be left to inference, no matter how

intensely arguable, but must be statedin express,

explicit, positive and specific language."
Applying Monsantoto former President Estradas
case, Risos-Vidal reckons that "such express
restoration is further demanded by the existence of
the condition in the [third] [W]hereas [C]lause of the
pardon x x x indubitably indicating that the privilege
to hold public office was not restored to him."19
On the other hand, the Office ofthe Solicitor General
(OSG) for public respondent COMELEC, maintains
that "the issue of whether or not the pardon extended
to [former President Estrada] restored his right to run
for public office had already been passed upon by
public respondent COMELEC way back in 2010 via
its rulings in SPA Nos. 09-024, 09-028 and 09-104,
there is no cogent reason for it to reverse its standing
pronouncement and declare [former President
Estrada] disqualified to run and be voted as mayor of
the City of Manila in the absence of any new
argument that would warrant its reversal. To be sure,
public respondent COMELEC correctly exercised its
discretion in taking judicial cognizance of the
aforesaid rulings which are known toit and which can
be verified from its own records, in accordance with
Section 2, Rule 129 of the Rules of Court on the
courts discretionary power to take judicial notice of
matters which are of public knowledge, orare capable
of unquestionable demonstration, or ought to be
known to them because of their judicial functions."20
Further, the OSG contends that "[w]hile at first
glance, it is apparent that [former President Estradas]
conviction for plunder disqualifies him from running
as mayor of Manila under Section 40 of the [LGC],
the subsequent grant of pardon to him, however,
effectively restored his right to run for any public
office."21 The restoration of his right to run for any
public office is the exception to the prohibition under
Section 40 of the LGC, as provided under Section 12
of the OEC. As to the seeming requirement of
Articles 36 and 41 of the Revised Penal Code, i.e.,
the express restoration/remission of a particular right
to be stated in the pardon, the OSG asserts that "an
airtight and rigid interpretation of Article 36 and
Article 41 of the [RPC] x x x would be stretching too
much the clear and plain meaning of the aforesaid
provisions."22 Lastly, taking into consideration the
third Whereas Clause of the pardon granted to former
President Estrada, the OSG supports the position that

it "is not an integral part of the decree of the pardon

and cannot therefore serve to restrict its effectivity."23

disenfranchisement of the hundreds of thousands of

Manileos who voted for him.26

Thus, the OSG concludes that the "COMELEC did

not commit grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the assailed
Resolutions."24

The Court's Ruling

For his part, former President Estrada presents the

following significant arguments to defend his stay in
office: that "the factual findings of public respondent
COMELEC, the Constitutional body mandated to
administer and enforce all laws relative to the
conduct of the elections, [relative to the absoluteness
of the pardon, the effects thereof, and the eligibility
of former President Estrada to seek public elective
office] are binding [and conclusive] on this
Honorable Supreme Court;" that he "was granted an
absolute pardon and thereby restored to his full civil
and political rights, including the right to seek public
elective office such as the mayoral (sic) position in
the City of Manila;" that "the majority decision in the
case of Salvacion A. Monsanto v. Fulgencio S.
Factoran, Jr.,which was erroneously cited by both
Vidal and Lim as authority for their respective claims,
x x x reveal that there was no discussion whatsoever
in the ratio decidendi of the Monsanto case as to the
alleged necessity for an expressed restoration of the
right to hold public office in the pardon as a legal
prerequisite to remove the subject perpetual special
disqualification;" that moreover, the "principal
question raised in this Monsanto case is whether or
not a public officer, who has been granted an absolute
pardon by the Chief Executive, is entitled to
reinstatement toher former position without need of a
new appointment;" that his "expressed acceptance [of
the pardon] is not proof that the pardon extended to
[him] is conditional and not absolute;" that this case
is a mere rehash of the casesfiled against him during
his candidacy for President back in 2009-2010; that
Articles 36 and 41 of the Revised Penal Code "cannot
abridge or diminish the pardoning power of the
President expressly granted by the Constitution;" that
the text of the pardon granted to him substantially, if
not fully, complied with the requirement posed by
Article 36 of the Revised Penal Code as it was
categorically stated in the said document that he was
"restored to his civil and political rights;" that since
pardon is an act of grace, it must be construed
favorably in favor of the grantee;25 and that his
disqualification
will
result
in
massive

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute
pardon that fully restored allhis civil and political
rights, which naturally includes the right to seek
public elective office, the focal point of this
controversy. The wording of the pardon extended to
former President Estrada is complete, unambiguous,
and unqualified. It is likewise unfettered by Articles
36 and 41 of the Revised Penal Code. The only
reasonable,
objective,
and
constitutional
interpretation of the language of the pardon is that the
same in fact conforms to Articles 36 and 41 of the
Revised Penal Code. Recall that the petition for
disqualification filed by Risos-Vidal against former
President Estrada, docketed as SPA No. 13-211 (DC),
was anchored on Section 40 of the LGC, in relation
to Section 12 of the OEC, that is, having been
convicted of a crime punishable by imprisonment of
one year or more, and involving moral turpitude,
former President Estrada must be disqualified to run
for and hold public elective office notwithstanding
the fact that he is a grantee of a pardon that includes a
statement expressing "[h]e is hereby restored to his
civil and political rights." Risos-Vidal theorizes that
former President Estrada is disqualified from running
for Mayor of Manila inthe May 13, 2013 Elections,
and remains disqualified to hold any local elective
post despite the presidential pardon extended to him
in 2007 by former President Arroyo for the reason
that it (pardon) did not expressly provide for the
remission of the penalty of perpetual absolute
disqualification, particularly the restoration of his
(former President Estrada) right to vote and bevoted
upon for public office. She invokes Articles 36 and
41 of the Revised Penal Code as the foundations of
her theory.
It is insisted that, since a textual examination of the
pardon given to and accepted by former President
Estrada does not actually specify which political right
is restored, it could be inferred that former President
Arroyo did not deliberately intend to restore former
President Estradas rights of suffrage and to hold
public office, orto otherwise remit the penalty of
perpetual absolute disqualification. Even if her

intention was the contrary, the same cannot be upheld

based on the pardons text.
The pardoning power of the President cannot be
limited by legislative action.
The 1987 Constitution, specifically Section 19 of
Article VII and Section 5 of Article IX-C, provides
that the President of the Philippines possesses the
power to grant pardons, along with other acts of
executive clemency, to wit:
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the President
may grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty with
the concurrence of a majority of all the Members of
the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension
of sentence for violation of election laws, rules, and
regulations shall be granted by the President without
the favorable recommendation of the Commission.
It is apparent from the foregoing constitutional
provisions that the only instances in which the
President may not extend pardon remain to be in: (1)
impeachment cases; (2) cases that have not yet
resulted in a final conviction; and (3) cases involving
violations of election laws, rules and regulations in
which there was no favorable recommendation
coming from the COMELEC. Therefore, it can be
argued that any act of Congress by way of statute
cannot operate to delimit the pardoning power of the
President.
In Cristobal v. Labrador27 and Pelobello v.
Palatino,28 which were decided under the 1935
Constitution,wherein
the
provision
granting
pardoning power to the President shared similar
phraseology with what is found in the present 1987
Constitution, the Court then unequivocally declared
that "subject to the limitations imposed by the
Constitution, the pardoning power cannot be
restricted or controlled by legislative action." The
Court reiterated this pronouncement in Monsanto v.

Factoran, Jr.29 thereby establishing that, under the

present Constitution, "a pardon, being a presidential
prerogative, should not be circumscribed by
legislative action." Thus, it is unmistakably the longstanding position of this Court that the exercise of the
pardoning power is discretionary in the President and
may not be interfered with by Congress or the Court,
except only when it exceeds the limits provided for
by the Constitution.
This doctrine of non-diminution or non-impairment
of the Presidents power of pardon by acts of
Congress, specifically through legislation, was
strongly adhered to by an overwhelming majority of
the framers of the 1987 Constitution when they flatly
rejected a proposal to carve out an exception from the
pardoning power of the President in the form of
"offenses involving graft and corruption" that would
be enumerated and defined by Congress through the
enactment of a law. The following is the pertinent
portion lifted from the Record of the Commission
(Vol. II):
MR. ROMULO. I ask that Commissioner Tan be
recognized to introduce an amendment on the same
section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for
violations of corrupt practices laws may be limited by
legislation.
I suggest that this be deletedon the grounds that, first,
violations of corrupt practices may include a very
little offense like stealing P10; second, which I think
is more important, I get the impression, rightly or
wrongly, that subconsciously we are drafting a
constitution on the premise that all our future
Presidents will bebad and dishonest and,
consequently, their acts will be lacking in wisdom.
Therefore, this Article seems to contribute towards
the creation of an anti-President Constitution or a
President with vast responsibilities but no
corresponding power except to declare martial law.
Therefore, I request that these lines be deleted.
MR. REGALADO. Madam
Committee react to that?

President,may

the

THE PRESIDENT. Yes, please.

MR. RODRIGO. May I speak in favor of the

proposed amendment?

MR. REGALADO. This was inserted here on the

resolution of Commissioner Davide because of the
fact that similar to the provisions on the Commission
on Elections, the recommendation of that
Commission is required before executive clemency
isgranted because violations of the election laws go
into the very political life of the country.
With respect to violations of our Corrupt Practices
Law, we felt that it is also necessary to have that
subjected to the same condition because violation of
our Corrupt Practices Law may be of such magnitude
as to affect the very economic systemof the country.
Nevertheless, as a compromise, we provided here that
it will be the Congress that will provide for the
classification as to which convictions will still require
prior recommendation; after all, the Congress could
take into account whether or not the violation of the
Corrupt Practices Law is of such magnitude as to
affect the economic life of the country, if it is in the
millions or billions of dollars. But I assume the
Congress in its collective wisdom will exclude those
petty crimes of corruption as not to require any
further stricture on the exercise of executive
clemency because, of course, there is a whale of a
difference if we consider a lowly clerk committing
malversation of government property or funds
involving one hundred pesos. But then, we also
anticipate the possibility that the corrupt practice of a
public officer is of such magnitude as to have
virtually drained a substantial portion of the treasury,
and then he goes through all the judicial processes
and later on, a President who may have close
connections with him or out of improvident
compassion may grant clemency under such
conditions. That is why we left it to Congress to
provide and make a classification based on
substantial distinctions between a minor act of
corruption or an act of substantial proportions. SR.
TAN. So, why do we not just insert the word GROSS
or GRAVE before the word "violations"?
MR. REGALADO. We feel that Congress can make a
better distinction because "GRAVE" or "GROSS" can
be misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT.
recognized.

Commissioner

Rodrigo

is

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive
clemency is essentially an executive power, and that
is precisely why it is called executive clemency. In
this sentence, which the amendment seeks to delete,
an exception is being made. Congress, which is the
legislative arm, is allowed to intrude into this
prerogative of the executive. Then it limits the power
of Congress to subtract from this prerogative of the
President to grant executive clemency by limiting the
power of Congress to only corrupt practices laws.
There are many other crimes more serious than these.
Under this amendment, Congress cannot limit the
power of executive clemency in cases of drug
addiction and drug pushing which are very, very
serious crimes that can endanger the State; also, rape
with murder, kidnapping and treason. Aside from the
fact that it is a derogation of the power of the
President to grant executive clemency, it is also
defective in that it singles out just one kind of crime.
There are far more serious crimes which are not
included.
MR. REGALADO. I will just make one observation
on that. We admit that the pardoning power is
anexecutive power. But even in the provisions on the
COMELEC, one will notice that constitutionally, it is
required that there be a favorable recommendation by
the Commission on Elections for any violation of
election laws.
At any rate, Commissioner Davide, as the principal
proponent of that and as a member of the Committee,
has explained in the committee meetings we had why
he sought the inclusion of this particular provision.
May we call on Commissioner Davide to state his
position.
MR. DAVIDE. Madam President.
THE PRESIDENT.
recognized.

Commissioner

Davide

is

MR. DAVIDE. I am constrained to rise to object to

the proposal. We have just approved the Article on
Accountability of Public Officers. Under it, it is
mandated that a public office is a public trust, and all

government officers are under obligation to observe

the utmost of responsibility, integrity, loyalty and
efficiency, to lead modest lives and to act with
patriotism and justice.
In all cases, therefore, which would go into the
verycore of the concept that a public office is a public
trust, the violation is itself a violation not only of the
economy but the moral fabric of public officials. And
that is the reason we now want that if there is any
conviction for the violation of the Anti-Graft and
Corrupt Practices Act, which, in effect, is a violation
of the public trust character of the public office, no
pardon shall be extended to the offender, unless some
limitations are imposed.
Originally, my limitation was, it should be with the
concurrence of the convicting court, but the
Committee left it entirely to the legislature to
formulate the mechanics at trying, probably, to
distinguish between grave and less grave or serious
cases of violation of the Anti-Graft and Corrupt
Practices Act. Perhaps this is now the best time, since
we have strengthened the Article on Accountability of
Public Officers, to accompany it with a mandate that
the Presidents right to grant executive clemency for
offenders or violators of laws relating to the concept
of a public office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is
recognized.
MR. SARMIENTO. May I briefly speak in favor of
the amendment by deletion.
Madam President, over and over again, we have been
saying and arguing before this Constitutional
Commission that we are emasculating the powers of
the presidency, and this provision to me is another
clear example of that. So, I speak against this
provision. Even the 1935 and the 1973 Constitutions
do not provide for this kind of provision.
I am supporting the amendment by deletion of
Commissioner Tan.
MR. ROMULO. Commissioner Tingson would like
to be recognized.

THE PRESIDENT.
recognized.

Commissioner

Tingson

is

MR. TINGSON. Madam President, I am also in favor

of the amendment by deletion because I am in
sympathy with the stand of Commissioner Francisco
"Soc" Rodrigo. I do believe and we should remember
that above all the elected or appointed officers of our
Republic, the leader is the President. I believe that the
country will be as the President is, and if we
systematically emasculate the power of this
presidency, the time may come whenhe will be also
handcuffed that he will no longer be able to act like
he should be acting.
So, Madam President, I am in favor of the deletion of
this particular line.
MR. ROMULO. Commissioner Colayco would like
to be recognized.
THE PRESIDENT.
recognized.

Commissioner

Colayco

is

MR. COLAYCO. Thank you very much, Madam

President.
I seldom rise here to object to or to commend or to
recommend the approval of proposals, but now I find
that the proposal of Commissioner Tan is worthy of
approval of this body.
Why are we singling out this particular offense?
There are other crimes which cast a bigger blot on the
moral character of the public officials.
Finally, this body should not be the first one to limit
the almost absolute power of our Chief Executive in
deciding whether to pardon, to reprieve or to
commute the sentence rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to
be recognized, and after him will be Commissioner
Natividad.
THE PRESIDENT.
recognized.

Commissioner

Padilla

is

MR. PADILLA. Only one sentence, Madam

President. The Sandiganbayan has been called the
Anti-Graft Court, so if this is allowed to stay, it
would mean that the Presidents power togrant
pardon or reprieve will be limited to the cases
decided by the Anti-Graft Court, when as already
stated, there are many provisions inthe Revised Penal
Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction
and the case merits the consideration of the exercise
of executive clemency, usually under Article V of the
Revised Penal Code the judge will recommend such
exercise of clemency. And so, I am in favor of the
amendment proposed by Commissioner Tan for the
deletion of this last sentence in Section 17.

Commissioner Davide. So we feel that

Commissioners should vote on this question.

the

VOTING
THE PRESIDENT. As many as are in favor of the
proposed amendment of Commissioner Tan to delete
the last sentence of Section 17 appearing on lines 7, 8
and 9, please raise their hand. (Several Members
raised their hand.)
As many as are against, please raise their hand. (Few
Members raised their hand.)
The results show 34 votes in favor and 4 votes
against; the amendment is approved.30 (Emphases
supplied.)

THE PRESIDENT. Are we ready to vote now, Mr.

Floor Leader?

The proper interpretation of Articles

MR. NATIVIDAD. Just one more.

36 and 41 of the Revised Penal Code.

THE PRESIDENT. Commissioner Natividad is

recognized.

The foregoing pronouncements solidify the thesis

that Articles 36 and 41 of the Revised Penal Code
cannot, in any way, serve to abridge or diminish the
exclusive power and prerogative of the President to
pardon persons convicted of violating penal statutes.

MR. NATIVIDAD. I am also against this provision

which will again chip more powers from the
President. In case of other criminals convicted in our
society, we extend probation to them while in this
case, they have already been convicted and we offer
mercy. The only way we can offer mercy to them is
through this executive clemency extended to them by
the President. If we still close this avenue to them,
they would be prejudiced even worse than the
murderers and the more vicious killers in our society.
I do not think they deserve this opprobrium and
punishment under the new Constitution.
I am in favor of the proposed amendment of
Commissioner Tan.
MR. ROMULO. We are ready tovote, Madam
President.
THE PRESIDENT. Is
Committee?

this

accepted

by

the

MR. REGALADO. The Committee, Madam

President, prefers to submit this to the floor and also
because of the objection of the main proponent,

The Court cannot subscribe to Risos-Vidals

interpretation that the said Articles contain specific
textual commands which must be strictly followed in
order to free the beneficiary of presidential grace
from the disqualifications specifically prescribed by
them.
Again, Articles 36 and 41 of the Revised Penal Code
provides:
ART. 36. Pardon; its effects. A pardon shall not
work the restoration of the right to hold publicoffice,
or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by
the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal
Their accessory penalties. The penalties of

reclusion perpetua and reclusion temporal shall carry

with them that of civil interdiction for life or during
the period of the sentence as the case may be, and
that of perpetual absolute disqualification which the
offender shall suffer even though pardoned as to the
principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases
supplied.)

office, or the remission of the accessory penalty of

perpetual absolute disqualification,he or she should
do so expressly. Articles 36 and 41 only ask that the
President state his or her intentions clearly, directly,
firmly, precisely, and unmistakably. To belabor the
point, the President retains the power to make such
restoration or remission, subject to a prescription on
the manner by which he or she is to state it.32

A rigid and inflexible reading of the above provisions

of law, as proposed by Risos-Vidal, is unwarranted,
especially so if it will defeat or unduly restrict the
power of the President to grant executive clemency.

With due respect, I disagree with the overbroad

statement that Congress may dictate as to how the
President may exercise his/her power of executive
clemency. The form or manner by which the
President, or Congress for that matter, should
exercise their respective Constitutional powers or
prerogatives cannot be interfered with unless it is so
provided in the Constitution. This is the essence of
the principle of separation of powers deeply
ingrained in our system of government which
"ordains that each of the three great branches of
government has exclusive cognizance of and is
supreme in matters falling within its own
constitutionally allocated sphere."33Moreso, this
fundamental principle must be observed if
noncompliance with the form imposed by one branch
on a co-equal and coordinate branch will result into
the diminution of an exclusive Constitutional
prerogative.

It is well-entrenched in this jurisdiction that where

the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and
applied without attempted interpretation. Verba legis
non est recedendum. From the words of a statute
there should be no departure.31 It is this Courts firm
view that the phrase in the presidential pardon at
issue which declares that former President Estrada "is
hereby restored to his civil and political rights"
substantially complies with the requirement of
express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed
with Risos Vidal that there was no express remission
and/or restoration of the rights of suffrage and/or to
hold public office in the pardon granted to former
President Estrada, as required by Articles 36 and 41
of the Revised Penal Code.
Justice Leonen posits in his Dissent that the
aforementioned codal provisions must be followed by
the President, as they do not abridge or diminish the
Presidents power to extend clemency. He opines that
they do not reduce the coverage of the Presidents
pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of
convention or form. They only provide a procedural
prescription. They are not concerned with areas
where or the instances when the President may grant
pardon; they are only concerned with how he or she
is to exercise such power so that no other
governmental instrumentality needs to intervene to
give it full effect.
All that Articles 36 and 41 do is prescribe that, if the
President wishes to include in the pardon the
restoration of the rights of suffrage and to hold public

For this reason, Articles 36 and 41 of the Revised

Penal Code should be construed in a way that will
give full effect to the executive clemency granted by
the President, instead of indulging in an overly strict
interpretation that may serve to impair or diminish
the import of the pardon which emanated from the
Office of the President and duly signed by the Chief
Executive himself/herself. The said codal provisions
must be construed to harmonize the power of
Congress to define crimes and prescribe the penalties
for such crimes and the power of the President to
grant executive clemency. All that the said provisions
impart is that the pardon of the principal penalty does
notcarry with it the remission of the accessory
penalties unless the President expressly includes said
accessory penalties in the pardon. It still recognizes
the Presidential prerogative to grant executive
clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory
penalties or to pardon both. Thus, Articles 36 and 41
only clarify the effect of the pardon so decided upon
by the President on the penalties imposedin
accordance with law.

A close scrutiny of the text of the pardon extended to

former President Estrada shows that both the
principal penalty of reclusion perpetua and its
accessory penalties are included in the pardon. The
first sentence refers to the executive clemency
extended to former President Estrada who was
convicted by the Sandiganbayan of plunder and
imposed a penalty of reclusion perpetua. The latter is
the principal penalty pardoned which relieved him of
imprisonment. The sentence that followed, which
states that "(h)e is hereby restored to his civil and
political rights," expressly remitted the accessory
penalties that attached to the principal penalty of
reclusion perpetua. Hence, even if we apply Articles
36 and 41 of the Revised Penal Code, it is indubitable
from the textof the pardon that the accessory
penalties of civil interdiction and perpetual absolute
disqualification were expressly remitted together with
the principal penalty of reclusion perpetua.

Provided, That they renounce their oath of allegiance

to the country where they took that oath; (4) Those
intending to practice their profession in the
Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) are candidates for or are occupying any public
office in the country of which theyare naturalized
citizens; and/or
(b) are in active service as commissioned or non
commissioned officers in the armed forces of the
country which they are naturalized citizens.
(Emphases supplied.)

In this jurisdiction, the right toseek public elective

office is recognized by law as falling under the whole
gamut of civil and political rights.

No less than the International Covenant on Civil and

Political Rights, to which the Philippines is a
signatory, acknowledges the existence of said right.
Article 25(b) of the Convention states: Article 25

Section 5 of Republic Act No. 9225,34 otherwise

known as the "Citizenship Retention and
Reacquisition Act of 2003," reads as follows:

Every citizen shall have the right and the opportunity,

without any of the distinctions mentioned in Article 2
and without unreasonable restrictions:

Section 5. Civil and Political Rights and Liabilities.

Those who retain or reacquire Philippine citizenship
under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines
and the following conditions: (1) Those intending to
exercise their right of suffrage must meet the
requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise
known as "The Overseas Absentee Voting Act of
2003" and other existing laws;

xxxx

(2) Those seeking elective public office in the

Philippines shall meet the qualifications for holding
such public office as required by the Constitution and
existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before
any public officer authorized to administer an oath;
(3) Those appointed to any public office shall
subscribe and swear an oath of allegiance to the
Republic of the Philippines and its duly constituted
authorities prior to their assumption of office:

(b) To vote and to be electedat genuine periodic

elections which shall be by universal and equal
suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the
electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on
Elections,35 the Court unequivocally referred to the
right to seek public elective office as a political right,
to wit:
Stated differently, it is an additional qualification for
elective office specific only to Filipino citizens who
re-acquire their citizenship under Section 3 of R.A.
No. 9225. It is the operative act that restores their
right to run for public office. The petitioners failure
to comply there with in accordance with the exact
tenor of the law, rendered ineffectual the Declaration
of Renunciation of Australian Citizenship she
executed on September 18, 2006. As such, she is yet
to regain her political right to seek elective office.

Unless she executes a sworn renunciation of her

Australian citizenship, she is ineligible to run for and
hold any elective office in the Philippines. (Emphasis
supplied.)

The disqualification of former President Estrada

under Section 40 of the LGC in relation to Section 12
of the OEC was removed by his acceptance of the
absolute pardon granted to him.

Thus, from both law and jurisprudence, the right to

seek public elective office is unequivocally
considered as a political right. Hence, the Court
reiterates its earlier statement that the pardon granted
to former President Estrada admits no other
interpretation other than to mean that, upon
acceptance of the pardon granted tohim, he regained
his FULL civil and political rights including the
right to seek elective office.

Section 40 of the LGC identifies who are disqualified

from running for any elective local position. RisosVidal argues that former President Estrada is
disqualified under item (a), to wit:

On the other hand, the theory of Risos-Vidal goes

beyond the plain meaning of said penal provisions;
and prescribes a formal requirement that is not only
unnecessary but, if insisted upon, could be in
derogation of the constitutional prohibition relative to
the principle that the exercise of presidential pardon
cannot be affected by legislative action.
Risos-Vidal relied heavily on the separate concurring
opinions in Monsanto v. Factoran, Jr.36 to justify her
argument that an absolute pardon must expressly state
that the right to hold public office has been restored,
and that the penalty of perpetual absolute
disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced.
Although the learned views of Justices Teodoro R.
Padilla and Florentino P. Feliciano are to be
respected, they do not form partof the controlling
doctrine nor to be considered part of the law of the
land. On the contrary, a careful reading of the
majority opinion in Monsanto, penned by no less than
Chief Justice Marcelo B. Fernan, reveals no
statement that denotes adherence to a stringent and
overly nuanced application of Articles 36 and 41 of
the Revised Penal Code that will in effect require the
President to use a statutorily prescribed language in
extending executive clemency, even if the intent of
the President can otherwise be deduced from the text
or words used in the pardon. Furthermore, as
explained above, the pardon here is consistent with,
and not contrary to, the provisions of Articles 36 and
41.

(a) Those sentenced by final judgment for an offense

involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment,
within two (2) years after serving sentence[.]
(Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar
prohibitions, but it provides for an exception, to wit:
Section 12. Disqualifications. x x x unless he has
been given plenary pardon or granted amnesty.
(Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former
President Estradas conviction for plunder
disqualifies him from running for the elective local
position of Mayor of the City of Manila under
Section 40(a) of the LGC. However, the subsequent
absolute pardon granted to former President Estrada
effectively restored his right to seek public elective
office. This is made possible by reading Section 40(a)
of the LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in
Section 40(a) of the LGC is worded in absolute
terms, Section 12 of the OEC provides a legal escape
from the prohibition a plenary pardon or amnesty.
In other words, the latter provision allows any person
who has been granted plenary pardon or amnesty
after conviction by final judgment of an offense
involving moral turpitude, inter alia, to run for and
hold any public office, whether local or national
position.
Take notice that the applicability of Section 12 of the
OEC to candidates running for local elective
positions is not unprecedented. In Jalosjos, Jr. v.
Commission on Elections,37 the Court acknowledged
the aforementioned provision as one of the legal
remedies that may be availed of to disqualify a
candidate in a local election filed any day after the

last day for filing of certificates of candidacy, but not

later than the date of proclamation.38 The pertinent
ruling in the Jalosjos case is quoted as follows:

in SPA No. 13-211 (DC), which captured the essence

of the legal effect of preambular paragraphs/whereas
clauses, viz:

What is indisputably clear is that false material

representation of Jalosjos is a ground for a petition
under Section 78. However, since the false material
representation arises from a crime penalized by
prision mayor, a petition under Section 12 ofthe
Omnibus Election Code or Section 40 of the Local
Government Code can also be properly filed. The
petitioner has a choice whether to anchor his petition
on Section 12 or Section 78 of the Omnibus Election
Code, or on Section 40 of the Local Government
Code. The law expressly provides multiple remedies
and the choice of which remedy to adopt belongs to
petitioner.39 (Emphasis supplied.)

The present dispute does not raise anything which the

20 January 2010 Resolution did not conclude upon.
Here, Petitioner Risos-Vidal raised the same
argument with respect to the 3rd "whereas clause" or
preambular paragraph of the decree of pardon. It
states that "Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or
office." On this contention, the undersigned reiterates
the ruling of the Commission that the 3rd preambular
paragraph does not have any legal or binding effect
on the absolute nature of the pardon extended by
former President Arroyo to herein Respondent. This
ruling is consistent with the traditional and customary
usage of preambular paragraphs. In the case of
Echegaray v. Secretary of Justice, the Supreme Court
ruled on the legal effect of preambular paragraphs or
whereas clauses on statutes. The Court stated, viz.:

The third preambular clause of the pardon did not

operate to make the pardon conditional.
Contrary to Risos-Vidals declaration, the third
preambular clause of the pardon, i.e., "[w]hereas,
Joseph Ejercito Estrada has publicly committed to no
longer seek any elective position or office," neither
makes the pardon conditional, nor militate against the
conclusion that former President Estradas rights to
suffrage and to seek public elective office have been
restored.
This is especially true as the pardon itself does not
explicitly impose a condition or limitation,
considering the unqualified use of the term "civil and
political rights"as being restored. Jurisprudence
educates that a preamble is not an essential part of an
act as it is an introductory or preparatory clause that
explains the reasons for the enactment, usually
introduced by the word "whereas."40 Whereas clauses
do not form part of a statute because, strictly
speaking, they are not part of the operative language
of the statute.41 In this case, the whereas clause at
issue is not an integral part of the decree of the
pardon, and therefore, does not by itself alone operate
to make the pardon conditional or to make its
effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of
the pardon.
On this matter, the Court quotes with approval a
relevant excerpt of COMELEC Commissioner Maria
Gracia Padacas separate concurring opinion in the
assailed April 1, 2013 Resolution of the COMELEC

Besides, a preamble is really not an integral part of a

law. It is merely an introduction to show its intent or
purposes. It cannot be the origin of rights and
obligations. Where the meaning of a statute is clear
and unambiguous, the preamble can neither expand
nor restrict its operation much less prevail over its
text.
If former President Arroyo intended for the pardon to
be conditional on Respondents promise never to seek
a public office again, the former ought to have
explicitly stated the same in the text of the pardon
itself. Since former President Arroyo did not make
this an integral part of the decree of pardon, the
Commission is constrained to rule that the 3rd
preambular clause cannot be interpreted as a
condition to the pardon extended to former President
Estrada.42 (Emphasis supplied.)
Absent any contrary evidence, former President
Arroyos silence on former President Estradas
decision torun for President in the May 2010
elections against, among others, the candidate of the
political party of former President Arroyo, after the
latters receipt and acceptance of the pardon speaks
volume of her intention to restore him to his rights to
suffrage and to hold public office.
Where the scope and import of the executive
clemency extended by the President is in issue, the

Court must turn to the only evidence available to it,

and that is the pardon itself. From a detailed review
ofthe four corners of said document, nothing therein
gives an iota of intimation that the third Whereas
Clause is actually a limitation, proviso, stipulation or
condition on the grant of the pardon, such that the
breach of the mentioned commitment not to seek
public office will result ina revocation or cancellation
of said pardon. To the Court, what it is simply is a
statement of fact or the prevailing situation at the
time the executive clemency was granted. It was not
used as a condition to the efficacy orto delimit the
scope of the pardon.
Even if the Court were to subscribe to the view that
the third Whereas Clausewas one of the reasons to
grant the pardon, the pardon itself does not provide
for the attendant consequence of the breach thereof.
This Court will be hard put to discern the resultant
effect of an eventual infringement. Just like it will be
hard put to determine which civil or political rights
were restored if the Court were to take the road
suggested by Risos-Vidal that the statement "[h]e is
hereby restored to his civil and political rights"
excludes the restoration of former President Estradas
rights to suffrage and to hold public office. The
aforequoted text ofthe executive clemency granted
does not provide the Court with any guide asto how
and where to draw the line between the included and
excluded political rights.
Justice Leonen emphasizes the point that the ultimate
issue for resolution is not whether the pardon is
contingent on the condition that former President
Estrada will not seek janother elective public office,
but it actually concerns the coverage of the pardon
whether the pardon granted to former President
Estrada was so expansive as to have restored all his
political rights, inclusive of the rights of suffrage and
to hold public office. Justice Leonen is of the view
that the pardon in question is not absolute nor plenary
in scope despite the statement that former President
Estrada is "hereby restored to his civil and political
rights," that is, the foregoing statement restored to
former President Estrada all his civil and political
rights except the rights denied to him by the
unremitted
penalty
of
perpetual
absolute
disqualification made up of, among others, the rights
of suffrage and to hold public office. He adds that had
the President chosen to be so expansive as to include
the rights of suffrage and to hold public office, she
should have been more clear on her intentions.

However, the statement "[h]e is hereby restored to his

civil and political rights," to the mind of the Court,
iscrystal clear the pardon granted to former
President Estrada was absolute, meaning, it was not
only unconditional, it was unrestricted in scope,
complete and plenary in character, as the term
"political rights"adverted to has a settled meaning in
law and jurisprudence.
With due respect, I disagree too with Justice Leonen
that the omission of the qualifying word "full" can be
construed as excluding the restoration of the rights of
suffrage and to hold public office. There appears to
be no distinction as to the coverage of the term "full
political rights" and the term "political rights" used
alone without any qualification. How to ascribe to the
latter term the meaning that it is "partial" and not
"full" defies ones understanding. More so, it will be
extremely difficult to identify which of the political
rights are restored by the pardon, when the text of the
latter is silent on this matter. Exceptions to the grant
of pardon cannot be presumed from the absence of
the qualifying word "full" when the pardon restored
the "political rights" of former President Estrada
without any exclusion or reservation.
Therefore, there can be no other conclusion but to say
that the pardon granted to former President Estrada
was absolute in the absence of a clear, unequivocal
and concrete factual basis upon which to anchor or
support the Presidential intent to grant a limited
pardon.
To reiterate, insofar as its coverageis concerned, the
text of the pardon can withstand close scrutiny even
under the provisions of Articles 36 and 41 of the
Revised Penal Code.
The COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction
in issuing the assailed Resolutions.
In light of the foregoing, contrary to the assertions of
Risos-Vidal, the COMELEC did not commit grave
abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed Resolutions.
The Court has consistently held that a petition for
certiorariagainst actions of the COMELEC is
confined only to instances of grave abuse of
discretion amounting to patentand substantial denial
of due process, because the COMELEC is presumed

to be most competent in matters falling within its

domain.43

TURINGAN-SANCHEZ, AND ATTY. CARLITO

D. CATAYONG, Respondents.

As settled in jurisprudence, grave abuse of discretion

is the arbitrary exercise of power due to passion,
prejudice or personal hostility; or the whimsical,
arbitrary, or capricious exercise of power that
amounts to an evasion or refusal to perform a positive
duty enjoined by law or to act at all in contemplation
of law. For an act to be condemned as having been
done with grave abuse of discretion, such an abuse
must be patent and gross.44

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

The arguments forwarded by Risos-Vidal fail to

adequately demonstrate any factual or legal bases to
prove that the assailed COMELEC Resolutions were
issued in a "whimsical, arbitrary or capricious
exercise of power that amounts to an evasion
orrefusal to perform a positive duty enjoined by law"
or were so "patent and gross" as to constitute grave
abuse of discretion.
On the foregoing premises and conclusions, this
Court finds it unnecessary to separately discuss Lim's
petition-in-intervention,
which
substantially
presented the same arguments as Risos-Vidal's
petition.
WHEREFORE, the petition for certiorari and
petition-inintervention are DISMISSED. The
Resolution dated April 1, 2013 of the Commission on
Elections, Second Division, and the Resolution dated
April 23, 2013 of the Commission on Elections, En
bane, both in SPA No. 13-211 (DC), are AFFIRMED.
SO ORDERED.
G.R. No. 196231

January 28, 2014

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

G.R. No. 196232

WENDELL
BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP
A CITY AS EXECUTIVE SECRETARY, OFFICE
OF THE PRESIDENT, ATTY. DENNIS F.
ORTIZ, ATTY. CARLO D. SULAY AND ATTY.
FROILAN D. MONTALBAN, JR., IN THEIR
CAPACITIES AS CHAIRMAN AND MEMBERS
OF OFFICE OF MALACANANG LEGAL
AFFAIRS,Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's)
motion for reconsideration of our September 4, 2012
Decision1which ruled on the petitions filed by Deputy
Ombudsman Emilio Gonzales III and Special
Prosecutor Wendell Barreras-Sulit. Their petitions
challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2
In the challenged Decision, the Court upheld the
constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction
over a Deputy Ombudsman and a Special Prosecutor.
The Court, however, reversed the OP ruling that: (i)
found Gonzales guilty of Gross Neglect of Duty and
Grave Misconduct constituting betrayal of public
trust; and (ii) imposed on him the penalty of
dismissal.
Sulit, who had not then been dismissed and who
simply sought to restrain the disciplinary proceedings
against her, solely questioned the jurisdiction of the
OP to subject her to disciplinary proceedings. The
Court affirmed the continuation of the proceedings
against her after upholding the constitutionality of
Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:

WHEREFORE, in G.R. No. 196231, the decision of

the Office of the President in OP Case No. 1 O-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. ll-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 1989.3
In view of the Courts ruling, the OP filed the present
motion for reconsideration through the Office of the
Solicitor General (OSG).
We briefly narrate the facts that preceded the filing of
the petitions and the present motion for
reconsideration.
I. ANTECEDENTS
A. Gonzales petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate
charges with the Philippine National Police Internal
Affairs Service (PNP-IAS) and with the Manila City
Prosecutors Office against Manila Police District
Senior Inspector Rolando Mendoza and four others
(Mendoza, et al.) for robbery, grave threat, robbery
extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty.
Clarence Guinto filed an administrative charge for
grave misconduct with the National Police
Commission (NAPOLCOM) PNP-NCRPO against
Mendoza, et al. based on the same allegations made
by Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for
Military and Other Law Enforcement Officers
(MOLEO), directed the NAPOLCOM to turn over
the records of Mendozas case to his office. The
Office of the Regional Director of the NAPOLCOM
duly complied on July 24, 2008.6 Mendoza, et al.

filed their position papers with Gonzales, in

compliance with his Order.7
Pending Gonzales action on Mendoza, et al.s case
(on August 26, 2008), the Office of the City
Prosecutor of Manila City dismissed Kalaws
complaint against Mendoza, et al. for his failure to
substantiate his allegations.8 Similarly, on October
17, 2008, the PNP-IAS recommended the dismissal
without prejudice of the administrative case against
Mendoza, et al. for Kalaws failure to prosecute.9
On February 16, 2009, after preparing a draft
decision on Mendoza, et al.s case, Gonzales
forwarded the entire records to the Office of then
Ombudsman Merceditas Gutierrez for her review.10In
his draft decision, Gonzales found Mendoza, et al.
guilty of grave misconduct and imposed on them the
penalty of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsmans
decision that approved Gonzales recommendation on
October 30, 2009. Mendoza, et al. filed a motion for
reconsideration12 on November 5, 2009, followed by
a Supplement to the Motion for Reconsideration.13
On December 10, 2009, the MOLEO-Records
Section forwarded Mendoza, et al.s case records to
the Criminal Investigation, Prosecution and
Administrative Bureau-MOLEO. On December 14,
2009, the case was assigned to Graft Investigation
and Prosecution Officer (GIPO) Dennis Garcia for
review and recommendation.14
GIPO Garcia released a draft order15 to his immediate
superior, Director Eulogio S. Cecilio, for appropriate
action on April 5, 2010. Dir. Cecilio signed and
forwarded the draft order to Gonzales office on April
27, 2010. Gonzales reviewed the draft and endorsed
the order, together with the case records, on May 6,
2010 for the final approval by the Ombudsman.16
On August 23, 2010, pending final action by the
Ombudsman on Mendoza, et al.s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists
and the four Filipino tour assistants on board as
hostages. While the government exerted earnest
attempts to peacefully resolve the hostage-taking, it
ended tragically, resulting in the deaths of Mendoza
and several others on board the hijacked bus.

In the aftermath, President Benigno C. Aquino III

directed the Department of Justice and the
Department of Interior and Local Government to
conduct a joint thorough investigation of the incident.
The two departments issued Joint Department Order
No. 01-2010, creating an Incident Investigation and
Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC
found the Ombudsman and Gonzales accountable for
their "gross negligence and grave misconduct in
handling the case against Mendoza."17 The IIRC
stated that the Ombudsman and Gonzales failure to
promptly
resolve
Mendozas
motion
for
reconsideration, "without justification and despite
repeated pleas" xxx "precipitated the desperate resort
to hostage-taking."18 The IIRC recommended the
referral of its findings to the OP for further
determination of possible administrative offenses and
for the initiation of the proper administrative
proceedings.19
Accordingly, on October 15, 2010, Gonzales was
formally charged before the OP for Gross Neglect of
Duty and/or Inefficiency in the Performance of
Official Duty and for Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as
charged
and
dismissed
him
from
the
service.21According to the OP, "the inordinate and
unjustified delay in the resolution of [Mendozas]
Motion for Reconsideration [that spanned for nine
(9) long months] xxx amounted to gross neglect of
duty" and "constituted a flagrant disregard of the
Office of the Ombudsmans own Rules of
Procedure."22
c. The Petition
Gonzales posited in his petition that the OP has no
administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is
the Ombudsman who exercises administrative
disciplinary
jurisdiction
over
the
Deputy
Ombudsman.
On the merits, Gonzales argued that his office
received the draft order from GIPO Garcia on April
27, 2010. On May 6, 2010, he completed his review

of the draft, approved it, and transmitted it to the

Office of the Ombudsman for final approval. Since
the draft order on Mendozas motion for
reconsideration had to undergo different levels of
preparation, review and approval, the period it took to
resolve the motion could not be unjustified, since he
himself acted on the draft order only within nine (9)
calendars days from his receipt of the order.23
B. Sulits petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged
Major General Carlos F. Garcia and several others,
before the Sandiganbayan, with plunder and money
laundering. On May 7, 2007, Garcia filed an Urgent
Petition for Bail which the prosecution opposed. The
Sandiganbayan denied Garcia's urgent petition for
bail on January 7, 2010, in view of the strength of the
prosecutions evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman,
through Sulit and her prosecutorial staff, entered into
a plea bargaining agreement (Agreement) with
Garcia.24 Garcia thereby agreed to: (i) withdraw his
plea of not guilty to the charge of plunder and enter a
plea of guilty to the lesser offense of indirect bribery;
and (ii) withdraw his plea of not guilty to the charge
of money laundering and enter a guilty plea to the
lesser offense of facilitating money laundering. In
exchange, he would convey to the government his
ownership, rights and other interests over the real and
personal properties enumerated in the Agreement and
the bank deposits alleged in the information.25
The Sandiganbayan approved the Agreement on May
4, 201026 based on the parties submitted Joint Motion
for Approval.27
The apparent one-sidedness of the Agreement drew
public outrage and prompted the Committee on
Justice of the House of Representatives to conduct an
investigation. After public hearings, the Committee
found that Sulit, her deputies and assistants
committed culpable violations of the Constitution and
betrayal of public trust grounds for removal under
Section 8(2) of RA No. 6770.28The Committee
recommended to the President the dismissal from the
service of Sulit and the filing of appropriate charges
against her deputies and assistants before the
appropriate government office.

Accordingly, the OP initiated an administrative

disciplinary proceeding against Sulit.29 On March 24,
2011, Sulit filed her Written Explanation, questioning
the OPs jurisdiction.30 The question of jurisdiction
notwithstanding, the OP set the case for preliminary
investigation on April 15, 2011, prompting Sulit to
seek relief from this Court.
II. COURTS RULING
On motion for reconsideration and further reflection,
the Court votes to grant Gonzales petition and to
declare Section 8(2) of RA No. 6770 unconstitutional
with respect to the Office of the Ombudsman. (As the
full explanation of the Courts vote describes below,
this conclusion does not apply to Sulit as the grant of
independence is solely with respect to the Office of
the Ombudsman which does not include the Office of
the Special Prosecutor under the Constitution. The
prevailing ruling on this latter point is embodied in
the Concurring and Dissenting Opinion of J. Marvic
Mario Victor Leonen).

b. The justiciability of the constitutional

issue raised in the petitions
We clarify, too, that the issue of whether a Deputy
Ombudsman may be subjected to the administrative
disciplinary
jurisdiction
of
the
President
(concurrently with that of the Ombudsman) is a
justiciable not a political question. A justiciable
question is one which is inherently susceptible of
being decided on grounds recognized by law,31 as
where the court finds that there are constitutionallyimposed limits on the exercise of the powers
conferred on a political branch of the government.32
In resolving the petitions, we do not inquire into the
wisdom of the Congress choice to grant concurrent
disciplinary authority to the President. Our inquiry is
limited to whether such statutory grant violates the
Constitution, particularly whether Section 8(2) of RA
No. 6770 violates the core constitutional principle of
the independence of the Office of the Ombudsman as
expressed in Section 5, Art. XI of the Constitution.

A. Preliminary considerations:
a. Absence of motion for reconsideration on the part
of the petitioners
At the outset, the Court notes that Gonzales and Sulit
did not file a motion for reconsideration of the
Courts September 4, 2012 Decision; only the OP,
through the OSG, moved for the reconsideration of
our ruling reinstating Gonzales.
This omission, however, poses no obstacle for the
Courts review of its ruling on the whole case since a
serious constitutional question has been raised and is
one of the underlying bases for the validity or
invalidity of the presidential action. If the President
does not have any constitutional authority to
discipline a Deputy Ombudsman and/or a Special
Prosecutor in the first place, then any ruling on the
legal correctness of the OPs decision on the merits
will be an empty one.
In other words, since the validity of the OPs decision
on the merits of the dismissal is inextricably anchored
on the final and correct ruling on the constitutional
issue, the whole case including the constitutional
issue remains alive for the Courts consideration on
motion for reconsideration.

To be sure, neither the Executive nor the Legislative

can create the power that Section 8(2) of RA No.
6770 grants where the Constitution confers none.
When exercised authority is drawn from a vacuum,
more so when the authority runs counter to a core
constitutional principle and constitutional intents, the
Court is duty-bound to intervene under the powers
and duties granted and imposed on it by Article VIII
of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents
established several Ombudsman-like agencies to
serve as the people's medium for airing grievances
and for direct redress against abuses and misconduct
in the government. Ultimately, however, these
agencies failed to fully realize their objective for lack
of the political independence necessary for the
effective performance of their function as
government critic.33
It was under the 1973 Constitution that the Office of
the Ombudsman became a constitutionally-mandated
office to give it political independence and adequate

powers to enforce its mandate. Pursuant to the 1973

Constitution, President Ferdinand Marcos enacted
Presidential Decree (PD) No. 1487, as amended by
PD No. 1607 and PD No. 1630, creating the Office of
the Ombudsman to be known as Tanodbayan. It was
tasked principally to investigate, on complaint or
motu proprio, any administrative act of any
administrative agency, including any governmentowned or controlled corporation. When the Office of
the Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were
transferred to the Tanodbayan himself. He was given
the exclusive authority to conduct preliminary
investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information,
and control the prosecution of these cases.34
With the advent of the 1987 Constitution, a new
Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution,
its independence was expressly and constitutionally
guaranteed. Its objectives are to enforce the state
policy in Section 27, Article II35 and the standard of
accountability in public service under Section 1,
Article XI of the 1987 Constitution. These provisions
read:
Section 27. The State shall maintain honesty and
integrity in the public service and take positive and
effective measures against graft and corruption.
Section 1. Public office is a public trust. Public
officers and employees must, at all times, be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.
Under Section 12, Article XI of the 1987
Constitution, the Office of the Ombudsman is
envisioned to be the "protector of the people" against
the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action
bureau.36 This constitutional vision of a Philippine
Ombudsman practically intends to make the
Ombudsman an authority to directly check and guard
against the ills, abuses and excesses of the
bureaucracy. Pursuant to Section 13(8), Article XI of
the 1987 Constitution, Congress enacted RA No.
6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:

Section 21. Official Subject to Disciplinary

Authority; Exceptions. The Office of the
Ombudsman shall have disciplinary authority over all
elective and appointive officials of the Government
and its subdivisions, instrumentalities and agencies,
including Members of the Cabinet, local government,
government-owned or controlled corporations and
their subsidiaries, except over officials who may be
removed only by impeachment or over Members of
Congress, and the Judiciary. [emphasis ours, italics
supplied]
As the Ombudsman is expected to be an "activist
watchman,"37 the Court has upheld its actions,
although not squarely falling under the broad powers
granted it by the Constitution and by RA No. 6770, if
these actions are reasonably in line with its official
function and consistent with the law and the
Constitution.38
The Ombudsmans broad investigative and
disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials,
including Members of the Cabinet and key Executive
officers, during their tenure. To support these broad
powers, the Constitution saw it fit to insulate the
Office of the Ombudsman from the pressures and
influence of officialdom and partisan politics and
from fear of external reprisal by making it an
"independent" office. Section 5,
Article XI of the Constitution expressed this intent, as
follows:
Section 5. There is hereby created the independent
Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall
Deputy and at least one Deputy each for Luzon,
Visayas, and Mindanao. A separate Deputy for the
military establishment may likewise be appointed.
[emphasis ours]
Given the scope of its disciplinary authority, the
Office of the Ombudsman is a very powerful
government constitutional agency that is considered
"a notch above other grievance-handling investigative
bodies."39 It has powers, both constitutional and
statutory, that are commensurate with its daunting
task of enforcing accountability of public officers.40
b. "Independence" of constitutional bodies vis-a-vis
the Ombudsmans independence

Under the Constitution, several constitutional bodies

have been expressly labeled as "independent."41The
extent of the independence enjoyed by these
constitutional bodies however varies and is to be
interpreted with two significant considerations in
mind: first, the functions performed or the powers
involved in a given case; and second, consistency of
any allowable interference to these powers and
functions, with the principle of checks and balances.
Notably, the independence enjoyed by the Office of
the Ombudsman and by the Constitutional
Commissions shares certain characteristics they do
not owe their existence to any act of Congress, but
are created by the Constitution itself; additionally,
they all enjoy fiscal autonomy. In general terms, the
framers of the Constitution intended that these
"independent" bodies be insulated from political
pressure to the extent that the absence of
"independence" would result in the impairment of
their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy
of the Judiciary, we ruled against the interference that
the President may bring and maintained that the
independence and the flexibility of the Judiciary, the
Constitutional Commissions and the Office of the
Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and
the Ombudsman must have the independence and
flexibility needed in the discharge of their
constitutional duties. The imposition of restrictions
and constraints on the manner the independent
constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal
autonomy and violative not only the express mandate
of the Constitution but especially as regards the
Supreme Court, of the independence and separation
of powers upon which the entire fabric of our
constitutional system is based.
The constitutional deliberations explain the
Constitutional Commissions need for independence.
In the deliberations of the 1973 Constitution, the
delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service
Commission, instead of one created by law, on the
premise that the effectivity of this body is dependent
on its freedom from the tentacles of politics. 43 In a
similar manner, the deliberations of the 1987
Constitution on the Commission on Audit highlighted

the developments in the past Constitutions geared

towards insulating the Commission on Audit from
political pressure.44
Notably, the Constitution also created an
"independent" Commission on Human Rights,
although it enjoys a lesser degree of independence
since it is not granted fiscal autonomy in the manner
fiscal autonomy is granted to the constitutional
commissions. The lack of fiscal autonomy
notwithstanding, the framers of the 1987 Constitution
clearly expressed their desire to keep the Commission
independent from the executive branch and other
political leaders:
MR. MONSOD. We see the merits of the arguments
of Commissioner Rodrigo. If we explain to him our
concept, he can advise us on how to reconcile his
position with ours. The position of the committee is
that we need a body that would be able to work and
cooperate with the executive because the
Commissioner is right. Many of the services needed
by this commission would need not only the
cooperation of the executive branch of the
government but also of the judicial branch of
government. This is going to be a permanent
constitutional commission over time. We also want a
commission to function even under the worst
circumstance when the executive may not be very
cooperative. However, the question in our mind is:
Can it still function during that time? Hence, we are
willing to accept suggestions from Commissioner
Rodrigo on how to reconcile this. We realize the need
for coordination and cooperation. We also would like
to build in some safeguards that it will not be
rendered useless by an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international
commissions or organizations on human rights go to
a country, the most credible organizations are
independent human rights bodies. Very often these
are private organizations, many of which are
prosecuted, such as those we find in many countries
in Latin America. In fact, what we are proposing is an
independent body on human rights, which would
provide governments with credibility precisely
because it is independent of the present
administration. Whatever it says on the human rights
situation will be credible because it is not subject to

pressure or control from the present political

leadership.

Commission on Human Rights has to be declared

unconstitutional.

Secondly, we all know how political fortunes come

and go. Those who are in power yesterday are in
opposition today and those who are in power today
may be in the opposition tomorrow. Therefore, if we
have a Commission on Human Rights that would
investigate and make sure that the rights of each one
is protected, then we shall have a body that could
stand up to any power, to defend the rights of
individuals against arrest, unfair trial, and so on.45

Again, in Atty. Macalintal v. Comelec,49 the Court

considered even the mere review of the rules of the
Commission on Elections by Congress a "trampling"
of the constitutional mandate of independence of this
body. Obviously, the mere review of rules places
considerably less pressure on a constitutional body
than the Executives power to discipline and remove
key officials of the Office of the Ombudsman, yet the
Court struck down the law as unconstitutional.

These deliberative considerations abundantly show

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

The kind of independence enjoyed by the Office of

the Ombudsman certainly cannot be inferior but is
similar in degree and kind to the independence
similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill
the political interstices of a republican democracy
that are crucial to its existence and proper
functioning.50

In Brillantes, Jr. v. Yorac,46 we emphasized that the

Constitutional Commissions, which have been
characterized
under
the
Constitution
as
"independent," are not under the control of the
President, even if they discharge functions that are
executive in nature. The Court declared as
unconstitutional the Presidents act of temporarily
appointing the respondent in that case as Acting
Chairman of the Comelec "however wellmeaning"47 it might have been.

c. Section 8(2) of RA No. 6770

vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional

In Bautista v. Senator Salonga,48 the Court

categorically stated that the tenure of the
commissioners of the independent Commission on
Human Rights could not be placed under the
discretionary power of the President:
Indeed, the Court finds it extremely difficult to
conceptualize how an office conceived and created by
the Constitution to be independent as the
Commission on Human Rights and vested with the
delicate and vital functions of investigating violations
of human rights, pinpointing responsibility and
recommending sanctions as well as remedial
measures therefor, can truly function with
independence and effectiveness, when the tenure in
office of its Chairman and Members is made
dependent on the pleasure of the President. Executive
Order No. 163-A, being antithetical to the
constitutional mandate of independence for the

Our discussions, particularly the Courts expressed

caution against presidential interference with the
constitutional commissions, on one hand, and those
expressed by the framers of the 1987 Constitution, on
the other, in protecting the independence of the
Constitutional Commissions, speak for themselves as
overwhelming reasons to invalidate Section 8(2) of
RA No. 6770 for violating the independence of the
Office of the Ombudsman.
In more concrete terms, we rule that subjecting the
Deputy Ombudsman to discipline and removal by the
President, whose own alter egos and officials in the
Executive Department are subject to the
Ombudsmans disciplinary authority, cannot but
seriously place at risk the independence of the Office
of the Ombudsman itself. The Office of the
Ombudsman, by express constitutional mandate,
includes its key officials, all of them tasked to
support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionallygranted independence is what Section 8(2) of RA No.

6770 exactly did. By so doing, the law directly

collided not only with the independence that the
Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of
checks and balances that the creation of an
Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of
the Ombudsman in the performance of their duties.
The Ombudsman can hardly be expected to place her
complete trust in her subordinate officials who are
not as independent as she is, if only because they are
subject to pressures and controls external to her
Office. This need for complete trust is true in an ideal
setting and truer still in a young democracy like the
Philippines where graft and corruption is still a major
problem for the government. For these reasons,
Section 8(2) of RA No. 6770 (providing that the
President may remove a Deputy Ombudsman) should
be declared void.
The deliberations of the Constitutional Commission
on the independence of the Ombudsman fully support
this position. Commissioner Florenz Regalado of the
Constitutional
Commission
expressed
his
apprehension that any form of presidential control
over the Office of the Ombudsman would diminish
its independence.51 The following exchanges between
Commissioners Blas Ople and Christian Monsod
further reveal the constitutional intent to keep the
Office of the Ombudsman independent from the
President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill
the Committee consider later an amendment xxx, by
way of designating the office of the Ombudsman as a
constitutional arm for good government, efficiency of
the public service and the integrity of the President of
the Philippines, instead of creating another agency in
a kind of administrative limbo which would be
accountable to no one on the pretext that it is a
constitutional body?
MR. MONSOD. The Committee discussed that
during our committee deliberations and when we
prepared the report, it was the opinion of the
Committee and I believe it still is that it may
not contribute to the effectiveness of this office of the
Ombudsman precisely because many of the culprits

in inefficiency, injustice and impropriety are in the

executive department. Therefore, as we saw the
wrong implementation of the Tanodbayan which was
under the tremendous influence of the President, it
was an ineffectual body and was reduced to the
function of a special fiscal. The whole purpose of our
proposal is precisely to separate those functions and
to produce a vehicle that will give true meaning to the
concept of Ombudsman. Therefore, we regret that we
cannot accept the proposition.52
The statements made by Commissioner Monsod
emphasized a very logical principle: the Executive
power to remove and discipline key officials of the
Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation
wherein the Office of the Ombudsman is given the
duty to adjudicate on the integrity and competence of
the very persons who can remove or suspend its
members. Equally relevant is the impression that
would be given to the public if the rule were
otherwise. A complainant with a grievance against a
high-ranking official of the Executive, who appears
to enjoy the Presidents favor, would be discouraged
from approaching the Ombudsman with his
complaint; the complainants impression (even if
misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided.
To be sure, such an impression would erode the
constitutional intent of creating an Office of the
Ombudsman as champion of the people against
corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
In crafting Section 8(2) of RA No. 6770, Congress
apparently addressed the concern that a lack of an
external check against the Deputy Ombudsman
would result in mutual protection between the
Ombudsman and her Deputies.
While the preceding discussion already suffices to
address this concern, it should be added that this
concern stands on shaky grounds since it ignores the
existing checks and balances already in place. On the
one hand, the Ombudsmans Deputies cannot protect
the Ombudsman because she is subject to the
impeachment power of Congress. On the other hand,
the Ombudsmans attempt to cover up the misdeeds
of her Deputies can be questioned before the Court

on appeal or certiorari. The same attempt can

likewise subject her to impeachment.

extension of this removal mechanism beyond those

mentioned in the Constitution.

The judicial recourse available is only consistent with

the nature of the Supreme Court as a non-political
independent body mandated by the Constitution to
settle judicial and quasi-judicial disputes, whose
judges and employees are not subject to the
disciplinary authority of the Ombudsman and whose
neutrality would be less questionable. The Members
of the Court themselves may be subjected to the
impeachment power of Congress.

On the practical side, our nation has witnessed the

complications and problems an impeachment
proceeding entails, thus justifying its limited
application only to the officials occupying the highest
echelons of responsibility in our government. To
name a few, some of the negative practical effects of
impeachment are: it stalls legislative work; it is an
expensive process in terms of the cost of prosecution
alone; and, more importantly, it is inherently divisive
of the nation.61 Thus, in a cost-benefit analysis of
adopting impeachment as a mechanism, limiting
Congress power to otherwise legislate on the matter
is far more advantageous to the country.

In these lights, the appeal, if any, of the mutual

protection argument becomes distinctly implausible.
At the same time, the Court remains consistent with
its established rulings - that the independence granted
to the Constitutional Commissions bars any undue
interference from either the Executive or Congress
and is in full accord with constitutional intent.
e. Congress power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987
Constitution,53 Congress is empowered to determine
the modes of removal from office of all public
officers and employees except the President, the
Vice-President, the Members of the Supreme Court,
the Members of the Constitutional Commissions, and
the Ombudsman, who are all impeachable officials.
The intent of the framers of the Constitution in
providing that "[a]ll other public officers and
employees may be removed from office as provided
by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent
Congress from extending the more stringent rule of
"removal only by impeachment" to favored public
officers.54 Understandably so, impeachment is the
most difficult and cumbersome mode of removing a
public officer from office. It is, by its nature, a sui
generis politico-legal process55 that signals the need
for a judicious and careful handling as shown by the
process required to initiate the proceeding;56 the oneyear limitation or bar for its initiation; 57 the limited
grounds
for
impeachment;58 the
defined
instrumentality given the power to try impeachment
cases;59 and the number of votes required for a
finding of guilt.60 All these argue against the

It is in these lights that the second sentence in Section

2, Article XI of the 1987 Constitution should be read.
Contrary to the implied view of the minority, in no
way can this provision be regarded as blanket
authority for Congress to provide for any ground of
removal it deems fit. While the manner and cause of
removal are left to congressional determination, this
must still be consistent with constitutional guarantees
and principles, namely: the right to procedural and
substantive due process; the constitutional guarantee
of security of tenure; the principle of separation of
powers; and the principle of checks and balances.62
In short, the authority granted by the Constitution to
Congress to provide for the manner and cause of
removal of all other public officers and employees
does not mean that Congress can ignore the basic
principles and precepts established by the
Constitution.
In the same manner, the congressional determination
of the identity of the disciplinary authority is not a
blanket authority for Congress to repose it on
whomsoever Congress chooses without running afoul
of the independence enjoyed by the Office of the
Ombudsman and without disrupting the delicate
check and balance mechanism under the Constitution.
Properly viewed from this perspective, the core
constitutional principle of independence is observed
and any possible absurdity resulting from a contrary
interpretation is avoided. In other words, while the
Constitution itself vested Congress with the power to
determine the manner and cause of removal of all
non-impeachable officials, this power must be
interpreted consistent with the core constitutional

principle of independence of the Office of the

Ombudsman. Our observation in Macalintal v.
Comelec63 is apt:
The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional
provisions. One such provision is Section 1 of Article
IX-A of the 1987 Constitution ordaining that
constitutional commissions such as the COMELEC
shall be "independent."
While one may argue that the grounds for
impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy
Ombudsman and Special Prosecutor since these
grounds are not intended to cover all kinds of official
wrongdoing and plain errors of judgment - this
argument seriously overlooks the erosion of the
independence of the Office of the Ombudsman that it
creates. The mere fact that a statutorily-created sword
of Damocles hangs over the Deputy Ombudsmans
head, by itself, opens up all the channels for external
pressures and influence of officialdom and partisan
politics. The fear of external reprisal from the very
office he is to check for excesses and abuses defeats
the very purpose of granting independence to the
Office of the Ombudsman.

of public trust is patently erroneous. The OPs

decision perfectly illustrates why the requirement of
impeachment-grounds in Section 8(2) of RA No.
6770 cannot be considered, even at a minimum, a
measure of protection of the independence of the
Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the Presidents
finding of gross negligence
has no legal and factual leg to
stand on
The OPs decision found Gonzales guilty of Gross
Neglect of Duty and of Grave Misconduct. The
assailed Decision of the OP reads:
Upon consideration of the First Report, the evidence
and allegations of respondent Deputy Ombudsman
himself, and other documentary evidence gathered,
this Office finds that the inordinate and unjustified
delay in the resolution of Captain Mendozas Motion
for Reconsideration timely filed on 5 November 2009
xxx amounted to gross neglect of duty and/or
inefficiency in the performance of official duty.64
b. No gross neglect of duty or inefficiency

That a judicial remedy is available (to set aside

dismissals that do not conform to the high standard
required in determining whether a Deputy
Ombudsman committed an impeachable offense) and
that the Presidents power of removal is limited to
specified grounds are dismally inadequate when
balanced with the constitutional principle of
independence. The mere filing of an administrative
case against the Deputy Ombudsman and the Special
Prosecutor before the OP can already result in their
suspension and can interrupt the performance of their
functions, in violation of Section 12, Article XI of the
Constitution. With only one term allowed under
Section 11, a Deputy Ombudsman or Special
Prosecutor, if removable by the President, can be
reduced to the very same ineffective Office of the
Ombudsman that the framers had foreseen and
carefully tried to avoid by making these offices
independent constitutional bodies.
At any rate, even assuming that the OP has
disciplinary authority over the Deputy Ombudsman,
its decision finding Gonzales guilty of Gross Neglect
of Duty and Grave Misconduct constituting betrayal

Let us again briefly recall the facts.

1. November 5, 2009 - Mendoza filed a Motion for
Reconsideration
of
the
decision
of
the
65
Ombudsman, which was followed by a Supplement
to the Motion for Reconsideration;66
2. December 14, 200967 - GIPO Garcia, who was
assigned to review these motions and make his
recommendation for the appropriate action, received
the records of the case;
3. April 5, 2010 GIPO Garcia released a draft order
to be reviewed by his immediate superior, Dir.
Cecilio;68
4. April 27, 2010 Dir. Cecilio signed and forwarded
to Gonzales this draft order;69
5. May 6, 2010 (or nine days after the records were
forwarded to Gonzales) Gonzales endorsed the

draft order for

Ombudsman.70

the

final

approval

of

the

Clearly, when Mendoza hijacked the tourist bus on

August 23, 2010, the records of the case were already
pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized
by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to
act, not inadvertently but willfully and intentionally,
with a conscious indifference to consequences insofar
as other persons may be affected. In the case of
public officials, there is gross negligence when a
breach of duty is flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty
and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding
Gonzales guilty, the OP72 relied on Section 8, Rule III
of Administrative Order No. 7 (or the Rules of
Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should
have acted on Mendozas Motion for Reconsideration
within five days:

Section 6 of Administrative Order No. 7 on the

resolution of the case and submission of the proposed
decision, the period for resolving the case does not
cover the period within which it should be reviewed:
Section 6. Rendition of decision. Not later than
thirty (30) days after the case is declared submitted
for resolution, the Hearing Officer shall submit a
proposed decision containing his findings and
recommendation for the approval of the Ombudsman.
Said proposed decision shall be reviewed by the
Directors, Assistant Ombudsmen and Deputy
Ombudsmen concerned. With respect to low ranking
public officials, the Deputy Ombudsman concerned
shall be the approving authority. Upon approval,
copies thereof shall be served upon the parties and
the head of the office or agency of which the
respondent is an official or employee for his
information and compliance with the appropriate
directive contained therein. [italics and emphases
supplied]
Thus, the OPs ruling that Gonzales had been grossly
negligent for taking nine days, instead of five days, to
review a case was totally baseless.

Section 8. Motion for reconsideration or

reinvestigation: Grounds Whenever allowable, a
motion for reconsideration or reinvestigation may
only be entertained if filed within ten (10) days from
receipt of the decision or order by the party on the
basis of any of the following grounds:

c. No actionable failure to supervise subordinates

a) New evidence had been discovered which

materially affects the order, directive or decision;

The Office of the Ombudsman is not a corner office

in our bureaucracy. It handles numerous cases that
involve the potential loss of employment of many
other public employees. We cannot conclusively
state, as the OP appears to suggest, that Mendozas
case should have been prioritized over other similar
cases.

b) Grave errors of facts or laws or serious

irregularities have been committed prejudicial to the
interest of the movant.
Only one motion for reconsideration or
reinvestigation shall be allowed, and the Hearing
Officer shall resolve the same within five (5) days
from the date of submission for resolution. [emphasis
and underscore ours]
Even if we consider this provision to be mandatory,
the period it requires cannot apply to Gonzales since
he is a Deputy Ombudsman whose obligation is to
review the case; he is not simply a Hearing Officer
tasked with the initial resolution of the motion. In

The OPs claims that Gonzales could have supervised

his subordinates to promptly act on Mendozas
motion and apprised the Tanodbayan of the urgency
of resolving the same are similarly groundless.

The Court has already taken judicial notice of the

steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates
against the OSGs observation that there was "a
grossly inordinate and inexcusable delay"74 on the
part of Gonzales.
Equally important, the constitutional guarantee of
"speedy disposition of cases" before, among others,
quasi-judicial bodies,75 like the Office of the

Ombudsman, is itself a relative concept.76 Thus, the

delay, if any, must be measured in this objective
constitutional sense. Unfortunately, because of the
very statutory grounds relied upon by the OP in
dismissing Gonzales, the political and, perhaps,
"practical" considerations got the better of what is
legal and constitutional.
The facts do not show that Gonzales subordinates
had in any way been grossly negligent in their work.
While GIPO Garcia reviewed the case and drafted the
order for more than three months, it is noteworthy
that he had not drafted the initial decision and,
therefore, had to review the case for the first
time.77 Even the Ombudsman herself could not be
faulted for acting on a case within four months, given
the amount of cases that her office handles.
The point is that these are not inordinately long
periods for the work involved: examination of the
records, research on the pertinent laws and
jurisprudence, and exercise of legal judgment and
discretion. If this Court rules that these periods per se
constitute gross neglect of duty, the Ombudsmans
constitutional mandate to prosecute all the erring
officials of this country would be subjected to an
unreasonable and overwhelming constraint. Similarly,
if the Court rules that these periods per se constitute
gross neglect of duty, then we must be prepared to
reconcile this with the established concept of the right
of speedy disposition of cases something the Court
may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue
interest in Mendozas case by having the case
endorsed to the Office of the Ombudsman and by
resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim,
Kalaw.
The fact that Gonzales had Mendozas case endorsed
to his office lies within his mandate, even if it were
based merely on the request of the alleged victims
father. The Constitution empowers the Ombudsman
and her Deputies to act promptly on complaints filed
in any form or manner against any public official or
employee of the government.78 This provision is
echoed by Section 13 of RA No. 6770,79 and by
Section 3, Rule III of Administrative Order No. 7,
series of 1990, as amended.80

Moreover, Gonzales and his subordinates did not

resolve the complaint only on the basis of the
unverified affidavit of Kalaw. Based on the
prosecution officers recommendations, the finding of
guilt on the part of Mendoza, et al. was based on their
admissions as well. Mendoza, et al. admitted that
they had arrested Kalaw based on two traffic
violations and allowed him to stay the whole night
until the following morning in the police precinct.
The next morning, Kalaw was allowed to leave the
precinct despite his failure to show a valid license
and based merely on his promise to return with the
proper documents.81 These admissions led Gonzales
and his staff to conclude that Mendoza, et al.
irregularly acted in apprehending Kalaw, since the
proper procedure for the apprehension of traffic
violators would be to give them a ticket and to file a
case, when appropriate.82
Lastly, we cannot deduce undue interest simply
because Gonzales decision differs from the decision
of the PNP-IAS (which dismissed the complaint
against Mendoza). To be sure, we cannot tie the
hands of any judicial or quasi-judicial body by ruling
that it should always concur with the decisions of
other judicial or quasi-judicial bodies which may
have also taken cognizance of the case. To do so in
the case of a Deputy Ombudsman would be
repugnant to the independence that our Constitution
has specifically granted to this office and would
nullify the very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against
Gonzales, the penalty of removal imposed by the OP
necessarily suffers grave infirmity. Basic strictures of
fair play dictate that we can only be held liable for
our own misdeeds; we can be made to account only
for lapses in our responsibilities. It is notable that of
all the officers, it was Gonzales who took the least
time nine days followed by Cecilio, who took
21 days; Garcia the writer of the draft took less
than four months, and the Ombudsman, less than four
months until the kidnapping incident rendered
Mendozas motion moot.
In these lights, the decision of the OP is clearly and
patently wrong. This conclusion, however, does not
preclude the Ombudsman from looking into any other

possible administrative liability of Gonzales under

existing Civil Service laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent
Office of the Ombudsman. The existing Tanodbayan
at the time83 became the Office of the Special
Prosecutor under the 1987 Constitution. While the
composition of the independent Office of the
Ombudsman under the 1987 Constitution does not
textually include the Special Prosecutor, the weight of
the foregoing discussions on the unconstitutionality
of Section 8(2) of RA No. 6770 should equally apply
to the
Special Prosecutor on the basis of the legislative
history of the Office of the Ombudsman as
expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was
mandated to create the Office of the Ombudsman,
known as the Tanodbayan, with investigative and
prosecutorial powers. Accordingly, on June 11, 1978,
President Ferdinand Marcos enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special
Prosecutor" (CSP) was given the "exclusive
authority" to conduct preliminary investigation and to
prosecute cases that are within the jurisdiction of the
Sandiganbayan.87 PD No. 1486 expressly gave the
Secretary of Justice the power of control and
supervision over the Special Prosecutor.88 Consistent
with this grant of power, the law also authorized the
Secretary of Justice to appoint or detail to the Office
of the CSP "any officer or employee of Department
of Justice or any Bureau or Office under the
executive supervision thereof" to assist the Office of
the CSP.
89

In December 1978, PD No. 1607 practically gave

back to the Tanodbayan the powers taken away from
it by the Office of the CSP. The law "created in the
Office of the Tanodbayan an Office of the Chief
Special Prosecutor" under the Tanodbayans
control,90 with the exclusive authority to conduct
preliminary investigation and prosecute all cases
cognizable by the Sandiganbayan. Unlike the earlier
decree, the law also empowered the Tanodbayan to
appoint Special Investigators and subordinate
personnel and/or to detail to the Office of the CSP
any public officer or employees who "shall be under

the supervision and control of the Chief Special

Prosecutor."91 In 1979, PD No. 1630 further amended
the earlier decrees by transferring the powers
previously vested in the Special Prosecutor directly to
the Tanodbayan himself.92
This was the state of the law at the time the 1987
Constitution was ratified. Under the 1987
Constitution, an "independent Office of the
Ombudsman" is created.93 The existing Tanodbayan
is made the Office of the Special Prosecutor, "who
shall continue to function and exercise its powers as
now94 or hereafter may be provided by law."95
Other than the Ombudsmans Deputies, the
Ombudsman shall appoint all other officials and
employees
of
the
Office
of
the
Ombudsman.96 Section 13(8), Article XI of the 1987
Constitution provides that the Ombudsman may
exercise "such other powers or perform such
functions or duties as may be provided by law."
Pursuant to this constitutional command, Congress
enacted RA No. 6770 to provide for the functional
and structural organization of the Office of the
Ombudsman and the extent of its disciplinary
authority.
In terms of composition, Section 3 of RA No. 6770
defines the composition of the Office of the
Ombudsman, including in this Office not only the
offices of the several Deputy Ombudsmen but the
Office of the Special Prosecutor as well. In terms of
appointment, the law gave the President the authority
to appoint the Ombudsman, his Deputies and the
Special Prosecutor, from a list of nominees prepared
by the Judicial and Bar Council. In case of vacancy in
these positions, the law requires that the vacancy be
filled within three (3) months from occurrence.97
The law also imposes on the Special Prosecutor the
same qualifications it imposes on the Ombudsman
himself/herself and his/her deputies.98 Their terms of
office,99 prohibitions and qualifications,100 rank and
salary are likewise the same.101 The requirement on
disclosure102 is imposed on the Ombudsman, the
Deputies and the Special Prosecutor as well. In case
of vacancy in the Office of the Ombudsman, the
Overall Deputy cannot assume the role of Acting
Ombudsman; the President may designate any of the
Deputies or the Special Prosecutor as Acting
Ombudsman.103The power of the Ombudsman and his
or her deputies to require other government agencies

to render assistance to the Office of the Ombudsman

is likewise enjoyed by the Special Prosecutor.104
Given this legislative history, the present overall legal
structure of the Office of the Ombudsman, both under
the 1987 Constitution and RA No. 6770, militates
against an interpretation that would insulate the
Deputy Ombudsman from the disciplinary authority
of the OP and yet expose the Special Prosecutor to
the same ills that a grant of independence to the
Office of the Ombudsman was designed for.
Congress recognized the importance of the Special
Prosecutor as a necessary adjunct of the Ombudsman,
aside from his or her deputies, by making the Office
of the Special Prosecutor an organic component of
the Office of the Ombudsman and by granting the
Ombudsman control and supervision over that
office.105 This power of control and supervision
includes vesting the Office of the Ombudsman with
the power to assign duties to the Special Prosecutor
as he/she may deem fit.1wphi1Thus, by
constitutional design, the Special Prosecutor is by no
means an ordinary subordinate but one who
effectively and directly aids the Ombudsman in the
exercise of his/her duties, which include investigation
and prosecution of officials in the Executive
Department.
Under Section 11(4) of RA No. 6770, the Special
Prosecutor handles the prosecution of criminal cases
within the jurisdiction of the Sandiganbayan and this
prosecutorial authority includes high-ranking
executive officials. For emphasis, subjecting the
Special Prosecutor to disciplinary and removal
powers of the President, whose own alter egos and
officials in the Executive Department are subject to
the prosecutorial authority of the Special Prosecutor,
would seriously place the independence of the Office
of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is
not expressly made part of the composition of the
Office of the Ombudsman, the role it performs as an
organic component of that Office militates against a
differential treatment between the Ombudsmans
Deputies, on one hand, and the Special Prosecutor
himself, on the other. What is true for the
Ombudsman must be equally true, not only for her
Deputies but, also for other lesser officials of that
Office who act directly as agents of the Ombudsman
herself in the performance of her duties.

In Acop v. Office of the Ombudsman, 106 the Court

was confronted with an argument that, at bottom, the
Office of the Special Prosecutor is not a subordinate
agency of the Office of the Ombudsman and is, in
fact, separate and distinct from the latter. In
debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner
Romulo's statement as authority to advocate that the
intent of the framers of the 1987 Constitution was to
place the Office of the Special Prosecutor under the
Office of the President. Xxx
In the second place, Section 7 of Article XI expressly
provides that the then existing Tanodbayan, to be
henceforth known as the Office of the Special
Prosecutor, "shall continue to function and exercise
its powers as now or hereafter may be provided by
law, except those conferred on the Office of the
Ombudsman created under this Constitution." The
underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or
subsequent amendatory legislation. It follows then
that Congress may remove any of the
Tanodbayan's/Special Prosecutor's powers under P.D.
N0. 1630 or grant it other powers, except those
powers conferred by the Constitution on the Office of
the Ombudsman.
Pursuing the present line of reasoning, when one
considers that by express mandate of paragraph 8,
Section 13, Article XI of the Constitution, the
Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by
law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor
under the Office of the Ombudsman.107
Thus, under the present Constitution, there is every
reason to treat the Special Prosecutor to be at par with
the Ombudsman's deputies, at least insofar as an
extraneous disciplinary authority is concerned, and
must also enjoy the same grant of independence
under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of
8-7,108 the Court resolved to reverse its September 4,
2012 Decision insofar as petitioner Gonzales is
concerned (G.R. No. 196231). We declared Section
8(2) of RA No. 6770 unconstitutional by granting

disciplinary jurisdiction to the President over a

Deputy Ombudsman, in violation of the
independence of the Office of the Ombudsman.
However, by another vote of 8-7,109 the Court
resolved to maintain the validity of Section 8(2) of
RA No. 6770 insofar as Sulit is concerned. The Court
did not consider the Office of the Special Prosecutor
to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the
independence the latter enjoys under the Constitution.
WHEREFORE, premises considered, the Court
resolves
to
declare
Section
8(2)
UNCONSTITUTIONAL. This ruling renders any
further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is
without prejudice to the power of the Ombudsman to
conduct an administrative investigation, if warranted,
into the possible administrative liability of Deputy
Ombudsman Emilio Gonzales III under pertinent
Civil Service laws, rules and regulations.
SO ORDERED.
A.M. No. P-12-3069

January 20, 2014

ATTY. VIRGILIO P. ALCONERA, Complainant,

vs.
ALFREDO T. PALLANAN, Respondent.
DECISION
VELASCO, JR., J.:
Before Us is an administrative complaint for Grave
Misconduct and Making Untruthful Statements filed
by Atty. Virgilio P. Alconera against Alfredo Pallanan,
Sheriff IV, assigned at the Regional Trial Court
(RTC), Branch 36 in General Santos City.
The antecedent facts are as follows:
Complainant was the counsel for Morito Rafols, the
defendant in Civil Case No. 5967-2, an unlawful
detainer case entitled Cua Beng a.k.a. Manuel Sy and
Ka Kieng v. Morita Rafols, et al., filed before the
Municipal Trial Court in Cities (MTCC), Branch 2 in
General Santos City, South Cotabato. After trial, the
MTCC ruled against Rafols and his co-defendants in

a Judgment1dated March 12, 2009, disposing as

follows:
WHEREFORE, judgment is hereby rendered in favor
of the plaintiffs and against the defendant MORITO
RAFOLS, his privies, assigns, heirs, transferee,
sublessee. co-Jessee or agents if any to vacate from
the subject lots and deliver possession thereof to the
plaintiffs and for defendant to pay back rentals
of P5,000.00 per month from June 2008 and every
succeeding months thereafter until he vacate the
premises and to jointly and severally, together with
all other defendants, pay attorney's fees in the amount
of P20,000.00 with the other defendants and costs of
litigation.
SO ORDERED.
Therefrom, Rafols, through complainant Alconera,
appealed the case to the RTC, Branch 36, docketed as
Civil Case No. 675. Pending appeal, the court issued
an Order dated February 18, 2011 granting Cua
Bengs motion for execution she filed in Civil Case
No. 5967-2, the unlawful detainer case. Alconera
sought reconsideration but the motion was denied
through another Order2 dated March 14, 2011.
On March 17, 2011, a troubled Evelyn Rafols,
Rafols daughter-in-law, called up Alconera, who at
that time was in Manila, to report that the sheriff,
respondent Pallanan, was about to implement the
adverted writ of execution. Evelyn Rafols informed
Alconera that respondent sheriff arrived along with
the lawyer of the opposing party and 30 other men to
enforce the writ. Respondent sheriff then allegedly
demanded payment of PhP 720,000 to settle Rafols
obligation to which the latter protested on the ground
that the amount is too exorbitant when they have
been religiously depositing monthly rentals in court
to satisfy the judgment.
After explaining the matter to Alconera, Evelyn
Rafols passed her phone to respondent sheriff. Over
the phone, a verbal disagreement between the two
ensued. Alconera claims that he has a pending motion
for reconsideration on the issuance of the writ of
execution, but the respondent said that the motion has
already been denied. And since no Temporary
Restraining Order (TRO) has been issued enjoining
the implementation, respondent claimed that he is
legally mandated to perform his ministerial duty of
enforcing the writ. Complainant countered that he has

not yet received a copy of the denial of the motion,

rendering the execution premature and, at the same
time, preventing him from securing a TRO from the
higher courts. Nevertheless, respondent still pushed
through with the execution of the judgment.
On March 18, 2011, complainant returned to General
Santos City and, at his law office, found a copy of the
Order denying his Motion for Reconsideration, which
was only served that very same day. The RTC ruled
that there was no pending Motion to Approve
Supersedeas Bond filed with it. Instead, what was
filed not with the RTC but with the MTCC was a
"NOTICE OF APPEAL and MOTION TO
APPROVE PROPERTY SUPERSEDEAS BOND,"
which was not granted.
That afternoon, Alconera went to RTC Br. 36 with his
daughter to confront respondent sheriff. The face-off
escalated into a heated argument caught on video. It
was complainants daughter, Shyla Mae Zapanta, who
is coincidentally his office clerk, who filmed the
incident and transcribed the dialogue during the
altercation. As hereunder translated in English, the
exchanges went:
ATTY. ALCONERA: Pag hatod nimo didto sa
demolition order, kabalo ka na wala pa ko kadawat ug
denial? (When you served the demolition order, you
know that I did not yet receive a copy of the denial
order?)
SHERIFF PALLANAN: Denial sa unsa, motion?
(Denial of what, motion?)
ATTY. ALCONERA: Oo. (Yes.)
SHERIFF PALLANAN: Attorney, ang motion inyoha
nang kuan diri sa korte, and akoa sa writ ko. As long
as the sheriff did not receive a TRO or any order from
the court restraining him to implement the writ, I
have to go. So in case, just in case, na may resolution
si judge na ireconsider and iyang order after they
declare, ideliver na sa area kung asa gi-execute so the
sheriff will move out. (Attorney, the motion, that is
your what do you call this, here in court. Mine is
the writ. As long as the sheriff did not receive a TRO
or any order from the court restraining him to
implement the writ, I have to go. So in case, just in
case, the judge reconsiders his order, they will
declare, deliver it to the area where the writ if
executed so the sheriff will move out.)

ATTY. ALCONERA: Mo execute diay ka? Dili diay

ka mangutana kung duna pa bay motion for recon
ani? (So you will execute? You will not inquire
whether a motion for reconsideration has been filed?)
SHERIFF PALLANAN: Bisag may motion for recon
na, Attorney, I have to go gyud. (Even if there is a
motion for reconsideration, I really have to go.)
ATTY. ALCONERA: Uy, di man na ingon ana, uy!
Ana imong natun-an as sheriff?
SHERIFF PALLANAN: Oo mao na sya. Mao na sya
sa akoa ha, mao na sya. (Yes, that is it. That is it
to me ha, that is it.)
ATTY. ALCONERA: Kita ra ta sa Supreme Court
ani. (Let us see each other in the Supreme Court.)
SHERIFF PALLANAN: (unintelligible) Ang
imoha anaimong motion ana and imong motion
ana, delaying tactic. (Your motion is a delaying
tactic.)
ATTY. ALCONERA: Ah, sige lang, atubang lang ta
sa Supreme Court. (Ok, lets just see each other in the
Supreme Court.)
SHERIFF PALLANAN: Oo, atubangon nako ko na
siya, pero mag-review pud ka.
ATTY. ALCONERA: Unsay mag-review? (What
review?)
SHERIFF PALLANAN: Motion nang imoha, Dong.
(Yours is motion, Dong.) ("Dong" is equivalent to the
Filipino term "Totoy"; if used by one to address
someone older than him, it is an insult.)
ATTY. ALCONERA: Naunsa man ka, Dong. (What
happened to you, Dong?)
SHERIFF PALLANAN: Motion na imoha Dapat
diri ka mag file, dili ka didto mag-file. Ayaw ko
awaya. (Yours is motion. You should file it here, you
do not file it there. Dont quarrel with me.)
ATTY. ALCONERA: Lahi imong tono sa akoa sa
telepono Dong ba. (You were rude in the telephone,
Dong.)

SHERIFF PALLANAN: Oo, kay lain man pud ka

mag sulti. Ang imong venue kay diri, dili sa area.
(Yes, because you also talked bad, your venue is here
in court, not in the area.)
ATTY. ALCONERA: Ingon nako sa imo nakadawat
ka ba.. nakadawat ba ug (I was just asking you
whether you received)
SHERIFF PALLANAN: Dili nako na concern. (That
is not my concern.)
ATTY. ALCONERA: O, ngano nag ingon man ka nga
"Ayaw ko diktahe, Attorney?" (Why did you say,
"Dont dictate on me, Attorney?")
SHERIFF PALLANAN: Yes, do not dictate me. Kay
abogado ka, sheriff ko. Lahi tag venue. Trabaho akoa,
magtrabaho pud ka. (Yes, do not dictate me. Because
you are a lawyer, and I am a sheriff. I do my job, you
do yours.)
ATTY. ALCONERA: Bastos kaayo ka manulti ba.
(You are very rude!)

ATTY. ALCONERA: Nabuang, ka Dong? (What is

going on with you, Dong?)
SHERIFF PALLANAN: Ka dugay na nimo nga
abogado, wala ka kabalo! (You have been a lawyer
for a long time now, yet you do not know!)
ATTY. ALCONERA: Dugay na bitaw. Ikaw bago ka
lang na sheriff. (Yes, I have been a lawyer for a long
time now, you, you are new in your job as sheriff).
SHERIFF PALLANAN: Pero kabalo ko. (But I
know.)
ATTY. ALCONERA: Susmaryosep!
SHERIFF PALLANAN: O, di ba? Wala sa
padugayay. Naa sa kahibalo. (Isnt that true? It is not
the length of time one has spent on his job. It is the
knowledge that one possesses.)
ATTY. ALCONERA: Tanawa imong pagka sheriff,
Dong. (Know you job as a sheriff, Dong.)

ATTY. ALCONERA: Magkita ta sa Supreme Court.

(I will see you in the Supreme Court.)

SHERIFF PALLANAN: Tanawa pud imong pagka

abogado kung sakto. Pilde! Sige mo pangulekta didto
ibayad sa imo! (Know your job also as a lawyer, see
if you are correct. Loser! You [and the Rafols] are
always collecting [from the other defendants] so your
fees can be paid!)

SHERIFF PALLANAN: Magkita ta, eh! Ikaw lang

akong hadlukan nga wala man ka sa area. (As you
wish, I am not afraid of you, you were not in the
area.)

ATTY. ALCONERA: Ngano wala man lagi nimo

kuhaa ang mga butang didto, Dong? (Why did you
not bring with you the things that you had gathered,
Dong.)

ATTY. ALCONERA: Unsa nang inyong style diri,

Kempeta? (What is your style here, Kempetai?)

SHERIFF PALLANAN: Oo, kay hulaton ta ka pag

demotion. (Yes, because I will wait for you on
demotion day.)

SHERIFF PALLANAN: Ikaw ang bastos! (You are

the one who is rude!)

SHERIFF PALLANAN: Dili man! Na may order.

Why cant you accept? (No! There is an order. Why
cant you accept?)
ATTY. ALCONERA: Naay proseso, Dong. Mao ning
proseso: ang MR, proseso ang MR. (There is a
process, Dong. This is the process: MR.)
SHERIFF PALLANAN: Oo, proseso pud na ang
akong pagimplement. Naay writ. (Yes, my
implementing the writ is also a process. There is a
writ.)

ATTY. ALCONERA: Nahadlok ka, Dong. (You were

afraid, Dong.)
SHERIFF PALLANAN: Wala ko nahadlok, Doy. Sa
demotion adto didto, Attorney. Sulayi ko! Sulayan
nato imong pagkaabogado! (Im not afraid of you,
Doy. On demotion day, you go there, Attorney. You
try me! Let us see how good a lawyer you are.)
("Doy" is the same as "Dong.")

ATTY. ALCONERA: March 22 pa ang hearing sa

imong abogado, Dong. (The hearing of the motion of
your lawyer, is on March 22 yet, Dong.)
SHERIFF PALLANAN: Asus, Pinobre na imong
style, Attorney. Bulok! (Your style is that of an
impoverished lawyer, Attorney. Dullard!)
It is against the foregoing backdrop of events that
Alconera filed a Complaint-Affidavit3 against the
respondent sheriff for grave misconduct before this
Court on April 6, 2011. The case was referred to the
Office of the Court Administrator (OCA) and was
docketed as AM No. 11-3634-P. As directed by the
OCA, respondent filed his comment.4 In it, he averred
that the duty of a court sheriff in enforcing a writ of
execution is ministerial, and without a TRO enjoining
it, a sheriff is duty bound to implement it.
On July 14, 2011, respondent filed his own Affidavit
of Complaint5 against herein complainant for Grave
Misconduct and for violating the Code of Ethics.
Respondent alleged that during the enforcement of
the writ, a second phone conversation took place.
Complainant allegedly called up Evelyn Rafols who
put him on loudspeaker for the respondent to hear his
words. Alconera then allegedly made a threat that
there will be bloodshed if respondents party pushes
through with the implementation of the writ.
Respondent likewise claimed that complainant
berated him at his office on March 18, 2011 and that
the incident was orchestrated by the complainant. His
(respondent sheriffs) complaint affidavit avers:
6. GRAVE MISCONDUCT OF ATTY. VIRGILIO
ALCONERA The planned attack happened in our
office on March 18, 2011 in the afternoon, after
lunch, in the presence of his lady companion
(believed to [be] his daughter), who is so delighted in
taking videos. He is so angry and at rage as if he is
the boss in our office, yelling and nagging at me with
NO RESPECT as a nomad. THE ONLY PERSON
AROUND WAS ME, THE GIRL HE BROUGHT
THERE (who is taking videos), AND THE
NAGGING ATTY. VIRGILIO ALCONERA (JUST
THREE OF US), while pointing his finger into his
MOTION for Reconsideration that he is holding [sic]
almost an inch to my face. Saying "KITA NIMO NI,
KITA NIMO NI?" NA INSULTO KO NIMO
NGANO WALA KA NI PATOO NAKO PAYLAN
TAKA UG KASO HULATA SA SUPREME
COURT! (DO YOU SEE THIS? DO YOU SEE

THIS? YOU INSULTED ME WHY DID YOU NOT

FOLLOW MY ORDER I WILL FILE CHARGES
AGAINST YOU WAIT FOR IT IN THE SUPREME
COURT!) HE wants me to shiver in scare and expect
me to beg. No, GO I said. I ALWAYS REPEATED
THE WORDS "WHERE IS YOUR T.R.O. Just
present it." Because he is too loud, Mrs. Nenita
Paredes, our stenographer, ARRIVED and middle on
us our arguments. On the mid part of the arguments,
he recorded the events; he and his companion, cohort
in designing the plan of the attack, orchestrated it.
ITS AN ASSAULT TO THE OFFICER OF THE
LAW. He told me SHERIFF KA LANG WALA
KAY NABAL AN. NGANON NADAWAT MAN KA
DIRI BOGO KA. (YOU ARE JUST A SHERIFF.
WHAT DO YOU KNOW? WHY ARE YOU
ADMITTED HERE YOU DUMB, WHO TAUGHT
YOU THAT?) Ana mo diri IPINATAY! KINSA NAG
TUDLO SA IMOHA ANA. While he almost struck
his motion papers into my face, I was caught
unaware.
In view of respondents counter-charge, Alconera
supplemented his affidavit-complaint6 to include a
charge against the former for False Testimony.
Complainant belied the claims of respondent sheriff,
and showed that the respondents allegations can
nowhere be seen in the transcript of the altercation.
On March 2, 2012, this Court, upon the OCAs
recommendation, resolved to re-docket Alconeras
complaint as a regular administrative case with
docket No. A.M. No. P-12-3069 and referred the
same to the Executive Judge of the Regional Trial
Court, General Santos City, South Cotabato, for
investigation, report, and recommendation.
After due proceedings, the investigating judge
submitted a report, styled as Order 7 dated August 6,
2013, with the following recommendation:
Based on the findings and evaluation, the herein
Executive Judge hereby recommends the respondent
Sheriff be ADMONISHED. The respondent must be
reminded that as a Court Employee, he must exercise
utmost patience and humility in the performance of
his duties amidst all the pressures and personal
attacks against his person because he carried with
him the image of the entire judiciary.
SO ORDERED.

The Executive Judge adopted the transcript of the

altercation as appearing in the affidavit of Shyla Mae
Zapanta and based his recommendation mainly
thereon.
The Issues
The main issue in this case is whether or not
respondent can be held administratively liable for
grave misconduct and false testimony. In fine, the
controversy stems from the propriety of the
implementation of the writ of execution, and the
altercation between complainant and respondent.
While
the
investigating
judge
made
a
recommendation based on how respondent conducted
himself as an officer of the court in the afternoon of
March 18, 2013, there was no discussion regarding
the propriety of the implementation of the writ, which
is the main issue in the case for grave misconduct. It
then behooves this Court to sift through the
arguments and records to rule on this point.
The Courts Ruling
Grave Misconduct
Misconduct has been defined as "a transgression of
some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by
a public officer." The misconduct is grave if it
involves any of the additional elements of corruption,
willful intent to violate the law, or to disregard
established rules, all of which must be established by
substantial evidence, and must necessarily be
manifest in a charge of grave misconduct.8In this
case, complainant imputes grave misconduct on the
respondent for the following acts:
1. For enforcing the writ despite the fact that
complainant has yet to receive the copy of the order
denying his motion for reconsideration on the
issuance of the writ of execution;
2. For allegedly leaking to the opposing counsel the
issuance of the order denying the motion for
reconsideration;
3. For allegedly demanding P720,000 from Rafols for
a P165,000.00 obligation; and
4. For allegedly being arrogant and disrespectful.

Complainant admits that there is no TRO enjoining

the enforcement of the writ, nor allegation in his
pleadings that a motion to quash the writ of execution
was ever filed. However, complainant asserts that
respondent committed grave misconduct when the
latter implemented the writ prior to serving the
complainant a copy of the order denying the motion
for reconsideration. According to complainant, said
motion stayed the execution, and the writ could not
have been validly executed without first informing
the parties concerned of the motions denial.
We rule against complainant on this point.
It must be borne in mind that the case at bar traces its
roots to an unlawful detainer case wherein the MTCC
ruled against Rafols, complainants client. In
ejectment cases, the rulings of the courts are
immediately executory and can only be stayed via
compliance with Section 19, Rule 70 of the Rules of
Court, to wit:
Section 19. Immediate execution of judgment; how to
stay same. If judgment is rendered against the
defendant, execution shall issue immediately upon
motion, unless an appeal has been perfected and the
defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal Trial
Court and executed in favor of the plaintiff to pay the
rents, damages, and costs accruing down to the time
of the judgment appealed from, and unless, during
the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time to
time under the contract, if any, as determined by the
judgment of the Municipal Trial Court. In the absence
of a contract, he shall deposit with the Regional Trial
Court the reasonable value of the use and occupation
of the premises for the preceding month or period at
the rate determined by the judgment of the lower
court on or before the tenth day of each succeeding
month or period. The supersedeas bond shall be
transmitted by the Municipal Trial Court, with the
other papers, to the clerk of the Regional Trial Court
to which the action is appealed.
Clearly then under said Sec. 19, Rule 70, a judgment
on a forcible entry and detainer action is made
immediately executory to avoid further injustice to a
lawful possessor. The defendant in such a case may
have such judgment stayed only by (a) perfecting an
appeal; (b) filing a supersedeas bond; and (c) making
a periodic deposit of the rental or reasonable

compensation for the use and occupancy of the

property during the pendency of the appeal.9The
failure of the defendant to comply with any of these
conditions is a ground for the outright execution of
the judgment, the duty of the court in this respect
being ministerial and imperative. Hence, if the
defendant-appellant has perfected the appeal but
failed to file a supersedeas bond, the immediate
execution of the judgment would automatically
follow. Conversely, the filing of a supersedeas bond
will not stay the execution of the judgment if the
appeal is not perfected. Necessarily then, the
supersedeas bond should be filed within the period
for the perfection of the appeal.10
In the case at bar, complainant lost his clients case
and appealed to the RTC. His client has also been
periodically depositing rental with the court for the
use of the property pending appeal. However, as ruled
by the RTC, the bond filed did not meet the legal
requirements because first and foremost, the bond
posted was a property bond, not cash nor surety.
Furthermore, Rafols did not own the property he
posted as bond and besides, it was also not issued in
favour of the plaintiff in the ejectment case. Because
of the non-compliance with the requirements under
the above-quoted rule, the execution of the judgment
was not effectively stayed. The only exceptions to
non-compliance are the existence of fraud, accident,
mistake or excusable negligence which prevented the
defendant from posting the supersedeas bond or
making the monthly deposit, or the occurrence of
supervening events which brought about a material
change in the situation of the parties and which
would make the execution inequitable.11 But whether
or not these obtain in the case at bar is an issue best
left to the court that issued the writ of execution.
Given the above circumstances, there was no legal
impediment preventing respondent sheriff from
performing his responsibility of enforcing the writ of
execution. Since Rafols failed to comply with the
requirements under the Rules, Cua Beng who
prevailed in the unlawful detainer case is entitled as a
matter of right to the immediate execution of the
courts judgment both as to the restoration of
possession and the payment of the accrued rentals or
compensation for the use and occupation of the
premises.12
Well-settled is that the sheriffs duty in the execution
of a writ is purely ministerial; he is to execute the

order of the court strictly to the letter. He has no

discretion whether to execute the judgment or not.
When the writ is placed in his hands, it is his duty, in
the absence of any instructions to the contrary, to
proceed with reasonable celerity and promptness to
implement it in accordance with its mandate. It is
only by doing so could he ensure that the order is
executed without undue delay.13 This holds especially
true herein where the nature of the case requires
immediate execution. Absent a TRO, an order of
quashal, or compliance with Sec. 19, Rule 70 of the
Rules of Court, respondent sheriff has no alternative
but to enforce the writ.
Immediacy of the execution, however, does not mean
instant execution. The sheriff must comply with the
Rules of Court in executing a writ. Any act deviating
from the procedure laid down in the Rules of Court is
a misconduct and warrants disciplinary action. In this
case, Sec. 10(c), Rule 39 of the Rules prescribes the
procedure in the implementation of the writ. It
provides:
Section 10. Execution of judgments for specific act.

xxxx
(c) Delivery or restitution of real property. The
officer shall demand of the person against whom the
judgment for the delivery or restitution of real
property is rendered and all persons claiming rights
under him to peaceably vacate the property within
three (3) working days, and restore possession
thereof to the judgment obligee, otherwise, the officer
shall oust all such persons therefrom with the
assistance, if necessary, of appropriate peace officers,
and employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such property. Any
costs, damages, rents or profits awarded by the
judgment shall be satisfied in the same manner as a
judgment for money.
Based on this provision, enforcement in ejectment
cases requires the sheriff to give notice of such writ
and to demand from defendant to vacate the property
within three days. Only after such period can the
sheriff enforce the writ by the bodily removal of the
defendant in the ejectment case and his personal
belongings.14 Even in cases wherein decisions are
immediately executory, the required three-day notice

cannot be dispensed with. A sheriff who enforces the

writ without the required notice or before the expiry
of the three-day period is running afoul with the
Rules.15
In the present controversy, the Order denying the
motion for reconsideration was allegedly served,
according to the respondent, on the same day the writ
was executed on March 17, 2011. Complainant,
however, avers that his office was only able to
receive the denial the day after the execution or on
March 18, 2011. At first blush, one might hastily
conclude that the three-day notice rule was apparently
not observed. This Court, however, is not prepared to
make such a finding. We are mindful of the
possibility that a demand to vacate has already been
given when complainant and Rafols were first served
the Order granting the issuance of a writ of execution,
before the motion for reconsideration was filed. More
importantly, complainant failed to allege concompliance with Sec. 10(c) of Rule 39.
Thus far, no deviation from the Rules has been
properly ascribed to respondent.1wphi1 As an
officer of the court, he is accorded the presumption of
regularity in the performance of his duties. The
burden was on complainant to adduce evidence that
would prove the respondents culpability, if any.
Without evidence of any departure from well
established rules, any unlawful behaviour, or any
gross negligence on his part, the presumption remains
applicable and respondent cannot be held
administratively liable for the offense of grave
misconduct.
Discourtesy in the Performance of Official Duties
The foregoing notwithstanding, the Court adopts in
part the recommendation of the investigating judge
that respondent should nonetheless be penalized for
discourtesy in the performance of his official duties.
As a public officer and a trustee for the public, it is
the ever existing responsibility of respondent to
demonstrate courtesy and civility in his official
actuations with the public.16 In Court Personnel of the
Office of the Clerk of Court of the Regional Trial
Court San Carlos City v. Llamas, 17 this Court has
held that:
Public service requires integrity and discipline. For
this reason, public servants must exhibit at all times

the highest sense of honesty and dedication to duty.

By the very nature of their duties and responsibilities,
they must faithfully adhere to, hold sacred and render
inviolate the constitutional principle that a public
office is a public trust; that all public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility,
integrity, loyalty and efficiency.
xxxx
At all times, employees of the judiciary are expected
to accord respect to the person and the rights of
another, even a co-employee. Their every act and
word should be characterized by prudence, restraint,
courtesy and dignity. Government service is peopleoriented; high-strung and belligerent behavior has no
place therein.
Rude and hostile behavior often translates a personal
conflict into a potent pollutant of an otherwise
peaceful work environment; ultimately, it affects the
quality of service that the office renders to the public.
Letting personal hatred affect public performance is a
violation of the principle enshrined in the Code of
Conduct and Ethical Standards for Public Officials
and Employees, a principle that demands that public
interest be upheld over personal ones.
Improper behavior especially during office hours
exhibits not only a paucity of professionalism at the
workplace, but also great disrespect for the court
itself. Such demeanor is a failure of circumspection
demanded of every public official and employee.
Thus, the Court looks "with great disfavor upon any
display of animosity by any court employee" and
exhorts every court personnel to act with strict
propriety and proper decorum to earn public trust for
the judiciary. Colleagues in the judiciary, including
those occupying the lowliest position, are entitled to
basic courtesy and respect.
In discharging its constitutional duty of supervising
lower courts and their personnel, this Court cannot
ignore the fact that the judiciary is composed
essentially of human beings who have differing
personalities, outlooks and attitudes; and who are
naturally vulnerable to human weaknesses.
Nevertheless, the Code of Judicial Ethics mandates
that court personnel must not only be, but also be
perceived to be, free from any impropriety -- with

respect not only to their duties in the judicial branch,

but also to their behavior anywhere else.
Based on the transcript of the altercation, it is readily
apparent that respondent has indeed been remiss in
this duty of observing courtesy in serving the public.
He should have exercised restraint in dealing with the
complainant instead of allowing the quarrel to
escalate into a hostile encounter. The balm of a clean
conscience should have been sufficient to relieve any
hurt or harm respondent felt from complainant's
criticisms in the performance of his duties. On the
contrary, respondent's demeanour tarnished the image
not only of his office but that of the judiciary as a
whole, exposing him to disciplinary measure.
Making Untruthful Statements
Lastly, the charge of making untruthful statements
must also fail. While the statements mentioned in
respondent's complaint-affidavit were not reflected in
the transcript submitted by the complainant, this
actuality is not conclusive evidence that such event
did not take place. As claimed by respondent,
complainant's clerk was only able to record a part of
the argument. We cannot then discount the
probability that there is more to the argument than
what was caught on video and there remains the
possibility that what respondent narrated and what
complainant recorded both actually transpired.
WHEREFORE, respondent Alfredo T. Pallanan is
ADMONISHED and WARNED to be always
courteous in dealing with the public in the
performance of official duties. A repetition of the
same or similar acts will be dealt with more severely.
SO ORDERED.