felisilda digests

GR No. 135805

April 29, 1999

Civil Service Commission, petitioner

Vs.

Pedro O. Dacoycoy, respondent

Pardo, J.

FACTS

November 29, 1995, George P. Suan, a Citizens Crime Watch Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service Commission Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism.

After the fact-finding investigation, the  Civil Service Regional Office No. 8, Tacloban City, found a prima facie case against respondent, and, on March 5, 1996, issued the corresponding formal charge against him. Civil Service Commission conducted a formal investigation, and, on January 28, 1997 it promulgated its resolution finding no substantial evidence to support the charge of habitual drunkenness and misconduct.

However, the CSC found respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service.

February 25, 1997, respondent Dacoycoy filed a motion for reconsideration; however, on May 20, 1997, the CSC denied the motion.

On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals a special civil action forcertiorari with preliminary injunction to set aside CSC’s resolutions.

July 29, 1998, the Court of Appeals promulgated its decision reversing and setting aside the decision of the CSC ruling that respondent did not appoint or recommend his two sons Rito and Ped, and, hence, was not guilty of nepotism. The Court further held that it is "the person who recommends or appoints who should be sanctioned, as it is he who performs the prohibited act."

Hence, this appeal.

ISSUE/S

Whether or not respondent is guilty of nepotism?

RULING

We agree with the CSC that respondent Pedro O. Dacoycoy was guilty of nepotism and correctly meted out the penalty of dismissal from the service.

"Sec. 59. Nepotism. - (1) All appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.
        As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or of affinity.

Mr. Daclag appointed Ped Dacoycoy casual utility worker. However, it was respondent Dacoycoy who certified that "funds are available for the proposed appointment of Rito Dacoycoy" and even rated his performance as "very satisfactory". On the other hand, his son Ped stated in his position description form that his father was "his next higher supervisor". The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondent's two sons and placed them under respondent's immediate supervision serving as driver and utility worker of the school.

Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism.

The Court of Appeals' reliance on Debulgado vs. CSC to support its ruling is misplaced.

WHEREFORE, the Court hereby GRANTS the petition and REVERSES the decision of the Court of Appeals in CA-G.R. SP No. 44711.
      ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the Civil Service Commisson dated January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.

G.R. NO. 96298,

MAY 14, 1991

Renato M. Lapinid, petitioner

Vs.

Civil Service Commission, Philippine Ports Authority and Juanito Junsay, respondents

Cruz, J.

FACTS

Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal on October 1, 1988. This appointment was protested on December 15, 1988, by private respondent Juanito Junsay, who reiterated his earlier representations with the Appeals Board of the PPA on May 9, 1988, for a review of the decision of the Placement Committee dated May 3, 1988. He contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right thereto.

On June 26, 1989, complaining that the PPA had not acted on his protest, Junsay went to the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. In a resolution dated February 14, 1990, the Commission disposed as follows:

After a careful review of the records of the case, the Commission finds the appeal meritorious.

Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively who may be considered for appointment to any position commensurate and suitable to their qualifications, and that the Commission be notified within ten (10) days of the implementation hereof.

Upon learning of the said resolution, Lapinid, who claimed he had not been informed of the appeal and had not been heard thereon, filed a motion for reconsideration on March 19, 1990. This was denied on May 25, 1990. The Philippine Ports Authority also filed its own motion for reconsideration on June 19, 1990, which was denied on August 17, 1990. A second motion for reconsideration filed on September 14, 1990, based on the re-appreciation of Lapinid's rating from 75% to 84%, was also denied on October 19, 1990.

When the petitioner came to this Court on December 13, 1990, we resolved to require Comments from the respondents and in the meantime issued a temporary restraining order. The Solicitor General took a stand against the CSC, which, at his suggestion, was allowed to file its own Comment. The petitioner filed a Reply. The private respondent's Comment was dispensed with when it was not filed within the prescribed period.

ISSUE/S

Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?

RULING

In Luego v.CSC this court declared appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.

The CSC acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor.

Only recently, in Gaspar v. Court of Appeals, this Court said: The only function of the CSC  in cases of this nature, according toLuego, is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. Luego finally points out that the recognition by the Commission that both the appointee and the protestant are qualified for the position in controversy renders it functus officio in the case and prevents it from acting further thereon except to affirm the validity of the former's appointment; it has no authority to revoke the appointment simply because it considers another employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing authority.

The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the CSC.

The CSC cannot substitute its judgment for that of the Head of Office in this regard.

WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil Service Commission dated February 14, 1990, May 25, 1990, August 17, 1990, and October 19, 1990, are REVERSED and SET ASIDE. The temporary restraining order dated December 13, 1990, is made PERMANENT.

G.R. NO. 189767,

JULY 03, 2012

Philippine Economic Zone Authority (PEZA), petitioner

VS.

Commission on Audit and Reynaldo A. Villar, Chairman, respondents

Villarama, Jr., J. 

FACTS

On September 13, 2007, the PEZA Auditor Corazon V. Españo issued Notice of Disallowance Nos. 2006-001-101 (02-06) to 2006-021-101 (01-03) on payments of per diems to ex officiomembers of the PEZA Board for the period 2001-2006.

The disallowance was based on this Court’s April 4, 2006 En Banc Resolution dismissing the petition for certiorari in Cyril del Callar, et al., Members of the Board of Directors, Philippine Economic Zone Authority v. COA and Guillermo N. Carague, Chairman, COA which assailed COA Decision No. 2006-009 dated January 31, 2006 affirming the March 29, 2002 decision of the Director, then Corporate Audit Office II, disallowing the payment of per diems of ex officio members of the PEZA Board of Directors. Said disallowance was based on COA Memorandum No. 97-038 dated September 19, 1997 implementing Senate Committee Report No. 509 and this Court’s ruling in Civil Liberties Union v. Executive Secretary.

On October 31, 2007, the Deputy Director General for Finance and Administration of PEZA moved to reconsider the subject Notices of Disallowance (NDs) and prayed that the concerned ex officiomembers be allowed to retain the per diems already received as they received them in good faith. It was contended that the payment of the per diems covered the period when the April 4, 2006 Supreme Court Resolution was not yet final and thus, PEZA honestly believed that the grant of the same was moral and legal. In the same vein, the ex officio members received them in good faith. The motion cited the cases of Home Development Mutual Fund v. COA and De Jesus v. COA as bases.

In a letter dated November 16, 2007, PEZA Auditor Españo denied the motion for reconsideration. She stated that the PEZA Management continued paying the per diems even after they were duly notified through said NDs that such was in violation of the Constitution as explained in the Civil Liberties Union case.

By letter dated January 4, 2008, PEZA Director General Lilia B. De Lima appealed the denial of their motion for reconsideration to the Office of the Cluster Director, COA.

In a 2^nd Indorsement dated March 17, 2008, the COA Cluster Director, Ma. Cristina Dizon-Dimagiba, denied PEZA’s appeal. She ruled that PEZA’s claim of good faith cannot be given merit because in several other instances previous payments of per diems have been disallowed.

On April 30, 2008, PEZA filed a petition for review before the COA to assail the denial of its appeal by the Office of the Cluster Director. PEZA reiterated the same arguments it raised in its appeal.

On September 15, 2009, the COA rendered the assailed decision denying PEZA’s petition for review.

ISSUE/S

Does the PEZA have legal basis in granting per diems to the ex officio members of its Board? And if there is no legal basis, was there good faith in PEZA’s grant and the ex officio members’ receipt of the per diems?

RULING

The Court finds the petition devoid of merit.

The lack of legal basis to grant per diems to ex officio members of the PEZA Board, including their representatives, has already been settled by no less than the Court En Banc in the case of Bitonio, Jr.where we held that the amendatory law, R.A. No. 8748, purposely deleted the last paragraph of Section 11 of R.A. No. 7916 that authorized the grant of per diems to PEZA Board members as it was in conflict with the proscription laid down in the 1987 Constitution.

The framers of R.A. No. 7916 must have realized the flaw in the law which is the reason why the law was later amended by R.A. No. 8748 to cure such defect. In particular, Section 11 of R.A. No. 7916 was amended to read:

SECTION 11. The Philippine Economic Zone Authority (PEZA) Board. – There is hereby created a body corporate to be known as the Philippine Economic Zone Authority (PEZA) attached to the Department of Trade and Industry. The Board shall have a director general with the rank of department undersecretary who shall be appointed by the President. The director general shall be at least forty (40) years of age, of proven probity and integrity, and a degree holder in any of the following fields: economics, business, public administration, law, management or their equivalent, and with at least ten (10) years relevant working experience preferably in the field of management or public administration.

The members of the Board of Directors was increased from 8 to 13, specifying therein that it is the undersecretaries of the different Departments who should sit as board members of the PEZA. The last paragraph as to the payment of per diems to the members of the Board of Directors was also deleted, considering that such stipulation was clearly in conflict with the proscription set by the Constitution.

PEZA’s insistence that there is legal basis in its grant of per diems to the ex officio members of its Board does not hold water. It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution,such additional duties or functions must be required by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office.

It would have been more prudent for PEZA, if it honestly believed that there is a clear legal basis for the per diems and there was a chance that this Court might rule in their favor while the Bitonio case was pending,. PEZA’s actual knowledge that the disbursements are being questioned by virtue of the notices of disallowance issued to them by the COA and knowledge of the pronouncements of the Court in the Civil Liberties Union case and in other cases where ex officio members in several government agencies were prohibited from receiving additional compensation, militate against its claim of good faith.

WHEREFORE, in light of the foregoing, the present petition is DISMISSED. The assailed COA Decision No. 2009-081 dated September 15, 2009 is AFFIRMED and UPHELD.

G.R. No. 169004

September 15, 2010

People of the Philippines, petitioner

Vs.

Sandiganbayan (Third Division) and Rolando Plaza, respondents

Peralta, J.

FACTS

Respondent Rolando Plaza, a member of the Sangguniang Panlungsod of Toledo City, Cebu, at the time relevant to this case, with salary grade 25, had been charged in the Sandiganbayan with violation of Section 89 of Presidential Decree (P.D.) No. 1445, or The Auditing Code of the Philippines for his failure to liquidate the cash advances he received on December 19, 1995 in the amount of Thirty-Three Thousand Pesos (P33,000.00). The Information reads:

That on or about December 19, 1995, and for sometime prior or subsequent thereto at Toledo City, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused ROLANDO PLAZA, a high-ranking public officer, being a member of the Sangguniang Panlungsod of Toledo City, and committing the offense, in relation to office, having obtained cash advances from the City Government of Toledo in the total amount of THIRTY THREE THOUSAND PESOS (P33,000.00), Philippine Currency, which he received by reason of his office, for which he is duty bound to liquidate the same within the period required by law, with deliberate intent and intent to gain, did then and there, willfully, unlawfully and criminally fail to liquidate said cash advances ofP33,000.00, Philippine Currency, despite demands to the damage and prejudice of the government in the aforesaid amount.

Thereafter, respondent Plaza filed a Motion to Dismiss dated April 7, 2005 with the Sandiganbayan, to which the latter issued an Order dated April 12, 2005 directing petitioner to submit its comment. Petitioner filed its Opposition to the Motion to Dismiss on April 19, 2005. Eventually, the Sandiganbayan promulgated its Resolution on July 20, 2005 dismissing the case for lack of jurisdiction, without prejudice to its filing before the proper court. The dispositive portion of the said Resolution provides:

WHEREFORE, premises considered, the instant case is hereby ordered dismissed for lack of jurisdiction without prejudice to its filing in the proper court.

SO ORDERED.

Thus, the present petition.

ISSUE/S

Whether or not the Sandiganbayan has jurisdiction over a member of the Sangguniang Panlungsod whose salary grade is below 27 and charged with violation of The Auditing Code of the Philippines.

RULING

This Court cited the case of Serana v. Sandiganbayan, et al. as a background on the conferment of jurisdiction of the Sandiganbayan, thus:

The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.

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

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

Section 4 of P.D. 1606, as amended by Section 2 of R.A. 7975 which took effect on May 16, 1995, which was again amended on February 5, 1997 by R.A. 8249, is the law that should be applied in the present case, the offense having been allegedly committed on or about December 19, 1995 and the Information having been filed on March 25, 2004.

The jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense. The exception contained in R. A. 7975,  as well as R. A. 8249, where it expressly provides that to determine the jurisdiction of the Sandiganbayan in cases involving violations of R. A. No. 3019, as amended, R. A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code is not applicable in the present case as the offense involved herein is a violation of The Auditing Code of the Philippines. The last clause of the opening sentence of paragraph (a) of the said two provisions states:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code.

          The present case definitely falls under Section 4 (b) where other offenses and felonies committed by public officials or employees in relation to their office are involved where the said provision, contains no exception. 

Those that are classified as Grade 26 and below may still fall within the jurisdiction of the Sandiganbayan provided that they hold the positions thus enumerated by the same law.

In connection therewith, Section 4 (b) of the same law provides that other offenses or felonies committed by public officials and employees mentioned in subsection (a) in relation to their office also fall under the jurisdiction of the Sandiganbayan.

WHEREFORE, the Petition dated September 2, 2005 is hereby GRANTED and the Resolution of the Sandiganbayan (Third Division) dated July 20, 2005 is hereby NULLIFIED and SET ASIDE. Let the case be REMANDED to the Sandiganbayan for further proceedings.

G.R. NO. 125129,

MARCH 29, 1999

Joseph H. Reyes, petitioner

Vs.

Commission on Audit, respondent

Pardo, J.

FACTS

By Resolution No. 89-003, the TLRC Executive Committee created a Provident Fund the primary purpose of which was to augment the retirement benefits of the officers and employees of TLRC. The Provident Fund also provided additional benefits to its members, in accordance with the policies and guidelines approved by the Board of Trustees. The Fund's sources of capital were from contributions of each member consisting of 2% of his gross monthly salary and TLRC's or the government's counterpart share equivalent to 10% of the member's gross monthly salary, earnings of funds and others.

On June 3, 1993, Corporate Auditor Adelaida S. Flores suspended the transfer of funds from TLRC to the Provident Fund for the years 1990-1991, amounting to P11,065,715.84, per Notice of Suspension No. 93-006. Auditor Flores held that under Par. 5.4 of Corporate Compensation Circular No. 10, Rules and Regulations issued under R.A. 6758, fringe benefits were allowed provided that statutory authority covered such grant of benefits. In this case, there is no law authorizing the grant of fringe benefits to TLRC officers and employees. Furthermore, all Provident Funds are covered by R.A. 4537, to which TLRC may not qualify.

On September 14, 1993, the TLRC Provident Fund Board of Trustees issued Resolution No. 93-2-21, discontinuing the collection of contributions for the Fund from both the TLRC and the members. It also ordered the members' personal contributions collected from March 1, 1993 until September 15, 1993, refunded to them immediately. On September 21, 1993, the Board issued Resolution 93-2-22 dissolving the Provident Fund and ordering the distribution of the personal and corporate shares to the members thereof, on or before October 31, 1993.

On December 2, 1993, Corporate Auditor Flores issued Notice of Disallowance No. 93-003, disallowing in audit the amount of P11,065,715.84, representing the government's share paid to the TLRC Provident Fund refunded to members, covering the period 1990 to 1991, including all amounts that may have been transferred to the Fund after 1991.

Petitioner, a member of the TLRC Board of Trustees, appealed the disallowance to the COA. On October 12, 1995, the COA denied the appeal per Decision No. 95-571. The Commission ruled that the government's share in the Provident Fund must be reverted to the TLRC and not be given to the employees. It held that since the primary purpose of the Provident Fund was not realized or attained due to its discontinuance and dissolution, then the employees were not entitled to the government's share in the Fund.

On December 7, 1995, petitioner wrote the COA seeking a reversal of COA Decision No. 95-571. On May 2, 1996, the COA denied the motion for reconsideration per Decision No. 96-236.

Hence, this petition to review the decision of the COA.

ISSUE/S

Do the judgments and final orders of the COA are reviewable by ordinary writ of error or appeal via certiorari to this Court.

Whether or not the COA committed a grave abuse of discretion in disallowing the distribution of the government share in the aborted TLRC Provident Fund to its members

RULING

We are not impressed. We deny the petition.

Article IX-A, Section 7 of the Constitution provides that decision, orders of rulings of the COA may be brought to the Supreme Court on certiorari by the aggrieved party. The judgments and final orders of the COA are not reviewable by ordinary writ of error or appeal via certiorari to this Court. Only when the COA acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, may this Court entertain a petition for certiorari under Rule 65.

Setting aside the procedural error pro hac vice, and treating the petition as one for certiorari under Rule 65, we find that the COA did not commit a grave abuse of discretion in disallowing the distribution of the government share in the aborted TLRC Provident Fund to its members.

There is no merit to petitioner's claim that the members of the Provident Fund acquired a vested right over the government contributions. "A vested right is one which is absolute, complete and unconditional, to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency,"

What is more, the Provident Fund was dissolved due to lack of statutory basis. Thus, contributions made were unauthorized, if not unlawful.

WHEREFORE, the Court hereby DENIES the petition and AFFIRMS the decision of the Commission on Audit.

AUGUSTO S. SANCHEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

G.R. No. 79146 August 12,1987

JUAN PONCE ENRILE, petitioner,
vs.
COMMISSION ON ELECTIONS AND SANTANINA RASUL, respondents.

G.R. No. 79212 August 12,1987

JUAN PONCE ENRILE, petitioner,
vs.
COMMISSION ON ELECTIONS AND AUGUSTO S. SANCHEZ, respondents.

PER CURIAM:

FACTS

After the first senatorial elections under the 1987 Constitution, Sanchez, a candidate therein, filed before the COMELEC to conduct a recount of the votes. Allegedly, votes intended for him, which were merely written as “Sanchez”, were considered as stray votes because of the sameness of his last name to that of Gil Sanchez – another candidate who was later disqualified. Sanchez was then running as the 25^th in ranking among the candidates (Sanchez vs COMELEC). He filed an urgent petition to re-count or re-appreciate those votes in favor of him. Meanwhile, Rasul and Enrile, ranked 23^rd and 24^th respectively intervened and filed before the COMELEC requesting the latter to proclaim them as the duly elected senators elect completing the 24 senators-elect.

They moved to dismiss Sanchez’ petition. Rasul’s lead over Enrile is just about 1,910 and there were just 3 municipalities left to be counted (31,000 votes). Enrile’s lead over Sanchez was 73,034 votes. COMELEC then denied Sanchez’ petition. Subsequently, COMELEC declared Rasul as the 23^rd senator-elect but there was still a mathematical possibility that Enrile can overtake Rasul. Enrile opposed Rasul’s proclamation as the 23^rd senator-elect and he averred that COMELEC should complete the canvassing first before declaring who placed 23rd and 24^th respectively (Enrile vs COMELEC and Razul).

COMELEC justified Rasul’s proclamation on the ground that since the remaining 3 municipalities is in Muslim Mindanao, and that Rasul is a Muslim, there is a logical presumption that majority of the votes therefrom would be for Rasul. While this was foregoing, COMELEC, by a vote of 5 to 2 reversed its earlier decision in denying Sanchez’ petition and it granted Sanchez’ request for recount and re-appreciation. Enrile then filed a petition against COMELEC and Sanchez (Enrile vs COMELEC and Sanchez). Enrile alleged that the COMELEC exceeded its jurisdiction in granting Sanchez’ petition for recount and abused its discretion in refusing to proclaim him (Enrile) on the ground that Sanchez’ petition for recount is not a pre-proclamation controversy which involves issues affecting extrinsic validity, and not intrinsic validity, of the said election returns and that Rasul’s lead over him was only 1,916 votes while his lead over Sanchez was 73,034 votes, with only 31,000 votes remaining to be canvassed in 3 towns, could not offset his lead over Sanchez.

ISSUE/S

 Whether Sanchez’ petition for recount and/or re-appreciation of ballots filed with the Comelec may be considered a summary pre-proclamation controversy falling within the Comelec’s exclusive jurisdiction (Sec. 242, Omnibus Election Code) or properly pertains to the realm of election protest falling within the exclusive jurisdiction of the Senate Electoral Tribunal as “the sole judge of all contests relating to the election, returns and qualification of the members.” (Art. VI, Sec. 17, Constitution).

RULING

 Sanchez’ petition must fail. There is no clear showing that the said stray votes constitute “omission in the election returns of the name of any candidate and/or his corresponding votes” (incomplete election returns). The election returns are in fact complete as the total number of votes that were counted and appreciated as votes in his favor by the boards of inspectors. The scope of pre-proclamation controversy is limited to the issues enumerated under sec. 243 of the Omnibus Election Code.

The enumeration therein of the issues that may be raised in pre-proclamation controversy, is restrictive and exclusive. In the absence of any clear showing or proof that the election returns canvassed are incomplete or contain material defects (sec. 234), appear to have been tampered with, falsified or prepared under duress (sec. 235) and/or contain discrepancies in the votes credited to any candidate, the difference of which affects the result of the election (sec. 236), which are the only instances where a pre-proclamation recount maybe resorted to, granted the preservation of the integrity of the ballot box and its contents, Sanchez’ petition must fail. The complete election returns whose authenticity is not in question, must be prima facie considered valid for the purpose of canvassing the same and proclamation of the winning candidates.

The ground for recount relied upon by Sanchez is clearly not among the issues that may be raised in a pre-proclamation controversy. His allegation of invalidation of “Sanchez” votes intended for him bear no relation to the correctness and authenticity of the election returns canvassed. Neither the Constitution nor statute has granted the COMELEC or the board of canvassers the power in the canvass of election returns to look beyond the face thereof, once satisfied of their authenticity.

‘Canvass proceedings are administrative and summary in nature, and a strong prima facie case backed up by a specific offer of evidence and indication of its nature and importance has to be made out to warrant the reception of evidence aliunde and the presentation of witnesses and the delays necessarily entailed thereby. Otherwise, the paralyzation of canvassing and proclamation proceedings leading to a vacuum in so important and sensitive an office as that of Senator of the Republic could easily be brought about this time involving the eight place and next time involving perhaps all the eight places, when it is considered that the position of senator is voted for, nationwide by all the voters of the 66 provinces and 57 cities comprising the Philippines.’

            ACCORDINGLY, the Petition in G.R. No. 79212 (Juan Ponce Enrile v. Commission on Election and Augusto Sanchez) is hereby GRANTED and the decision of respondent Commission on Elections promulgated on July 30, 1987 granting Sanchez’ petition for recount is hereby SET ASIDE. The respondent Comelec is hereby ordered to proclaim petitioner Juan Ponce Enrile as a duly elected senator in the May 11, 1987 elections. The petitions in G.R. No. 78461 (Augusto S. Sanchez v. Commission on Election) and G.R. No. 79146 (Juan Ponce Enrile v. Commission on Elections and Santanina T. Rasul) are both DISMISSED. This decision shall be IMMEDIATELY EXECUTORY upon its promulgation.

G.R. NO. 115103,

APRIL 11, 2002

Bureau of Internal Revenue, Represented by Commissioner of Internal Revenue, petitioner

Vs.

Office of the Ombudsman, respondents

De Leon, Jr., J.

FACTS

Graft Investigation Officer II Christopher S. Soquilon of the Office of the Ombudsman  received information from an “informer-for-reward” regarding allegedly anomalous grant of tax refunds to Distillera Limtuaco & Co., Inc. (Limtuaco, for brevity) and La Tondeña Distilleries, Inc. Upon receipt of the information, Soquilon recommended to then Ombudsman Conrado M. Vasquez that the “case” be docketed and subsequently assigned to him for investigation.

On November 29, 1993, the Ombudsman issued a subpoena duces tecum addressed to Atty. Millard Mansequiao of the Legal Department of the Bureau of Internal Revenue (BIR) ordering him to appear before the Ombudsman and to bring the complete original case dockets of the refunds granted to Limtuaco and La Tondeña.

The BIR, through Assistant Commissioner for Legal Service Jaime M. Maza, asked that it be excused from complying with the subpoena duces tecum because (a) the Limtuaco case was pending investigation by Graft Investigation Officer II Napoleon S. Baldrias; and (b) the investigation thereof and that of La Tondeña was mooted when the Sandiganbayan ruled in People v. Larin that “the legal issue was no longer in question since the BIR had ruled that the ad valorem taxes were erroneously paid and could therefore be the proper subject of a claim for tax credit.”

Without resolving the issues raised by the BIR, the Ombudsman issued another subpoena duces tecum, dated December 9, 1993, addressed to BIR Commissioner Liwayway Vinzons-Chato ordering her to appear before the Ombudsman and to bring the complete original case dockets of the refunds granted to Limtuaco and La Tondeña.

The BIR moved to vacate the subpoena duces tecum.

The Ombudsman denied the Motion to Vacate the Subpoena Duces Tecum.

The BIR moved to reconsider the respondent’s Order dated February 15, 1994.

The Ombudsman denied the motion for reconsideration and reiterated its directive to the BIR to produce the documents. Instead of complying, the BIR manifested its intention to elevate the case on certiorari to this Court. The Ombudsman thus ordered Asst. Comm. Maza to show cause why he should not be cited for contempt for contumacious refusal to comply with the subpoena duces tecum.

However, before the expiration of the period within which Asst. Comm. Maza was required to file a reply to the show cause order of the Ombudsman, the BIR filed before this Court the instant Petition for Certiorari, Prohibition and Preliminary Injunction and Temporary Restraining Order.

ISSUE/S

I. Whether or not a pending action is a prerequisite before the Ombudsman could wield its investigative power.

II. Whether or not the determination of granting tax refunds falls within BIR’s exclusive expertise and jurisdiction and that its findings could no longer be disturbed by the Ombudsman purportedly through its investigative power.

III. Does the respondent violate the due process in commencing its investigation?

RULING

I. This Court is not persuaded. No less than the 1987 Constitution enjoins that the “Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate case, notify the complainants of the action taken and the result thereof.”

Clearly, there is no requirement of a pending action before the Ombudsman could wield its investigative power. It could resort to its investigative prerogative on its own or upon a complaint filed in any form or manner, even when the complaint is verbal or written, unsigned or unverified. There can be no objection to this procedure in the Office of the Ombudsman where anonymous letters suffice to start an investigation because it is provided in the Constitution itself.

The term “in an appropriate case” has already been clarified by this Court in Almonte v. Vasquez, thus, rather than referring to the form of complaints, therefore, the phrase “in an appropriate case” in Art. XI, §12 means any case concerning official act or omission which is alleged to be “illegal, unjust, improper, or inefficient”.

II. This contention of the BIR is baseless.

Concededly, the determination of whether to grant a tax refund falls within the exclusive expertise of the BIR. Nonetheless, when there is a suspicion of even just a tinge of impropriety in the grant of the same, the Ombudsman could rightfully ascertain whether the determination was done in accordance with law and identify the persons who may be held responsible thereto. In that sense, the Ombudsman could not be accused of unlawfully intruding into and intervening with the BIR’s exercise of discretion.

III. It is our view and we hold that the procedure taken by the respondent did not comply with the safeguards enumerated in Sec. 26, (2) of RA 6770 or the Ombudsman Act of 1989, which clearly provides that: (2) . . . If it finds a reasonable, ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt hereof. . .

The respondent likewise contravened the Rules of Procedure of the Office of the Ombudsman.  Sec. 4, Rule 11 of which provides that: (a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complaint or supporting witnesses to execute affidavits to substantiate the complaints.

In the instant case, the BIR officials concerned were never furnished by the respondent with a summary of the complaint and were not given the opportunity to submit their counter-affidavits and controverting evidence.

WHEREFORE, the petition is GRANTED. The respondent Office of the Ombudsman is prohibited and ordered to desist from proceeding with Case No. OMB-0-93-3248; and its Orders dated November 29, 1993, December 9, 1993 and February 15, 1994 are hereby ANNULLED and SET ASIDE.

G.R. NO. 75025,

SEPTEMBER 14, 1993

Vicente Garcia, petitioner

Vs.

The Honorable Chairman, Commission on Audit, The Honorable Miniser, Land Transportation and Communications, The Regional Director, Telecomregional Office No. IV, respondents

Bellosillo, J.

FACTS

Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and Communications in Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision.

Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the offense charged.

Consequently, petitioner sought reinstatement to his former position in view of his acquittal in the criminal case. In an endorsement dated 7 April 1980, petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for executive clemency.

On 26 August 1981, acting on the favorable endorsements of the then Ministry of Transportation and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to petitioner.

Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th Endorsement dated 12 October 1982 on the ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has not been reinstated in the service.

It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether petitioner's reinstatement was to the same position of Supervising Lineman.

Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Endorsement dated 23 July 1985, respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim.

Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint," holding that this Court is the proper forum to take cognizance of the appeal on certiorari from the decision of the COA, citing Art. XII-(D),Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution).

Hence, petitioner filed the instant petition

ISSUE/S

Whether or not petitioner is entitled to the payment of backwages after having been reinstated pursuant to the grant of executive clemency.

RULING

The petition is meritorious.

Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with mercy.

Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto v. Factoran, we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness. It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages.

Petitioner's automatic reinstatement to the government service entitles him to back wages. This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to backwages is afforded to those who have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages

WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is REVERSED and SET ASIDE and a new one entered ordering public respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale.

G.R. NO. 116801,

APRIL 06, 1995

Gloria G. Lastimosa, First Assistant Provincial Prosecutor of Cebu, petitioner

Vs.

Honorable Conrado Vasquez, Honorable Arturo C. Mojica, Deputy Ombudsman for the Visayas, and Honorable Franklin Drilon, Secretary of Justice, and Undersecretary of Justice Ramon J. Liwag, respondents

Mendoza, J.

FACTS

On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed a criminal complaint for frustrated rape and an administrative complaint for immoral acts, abuse of authority and grave misconduct against the Municipal Mayor of Santa Fe, Rogelio Ilustrisimo. The cases were filed with the Office of the Ombudsman -Visayas where they were docketed as OMB-VIS-(CRIM)-93-0140 and OMB-VIS-(ADM)-93-0036, respectively.

The complaint was assigned to a graft investigation officer who, after an investigation, found no prima facie evidence and accordingly recommended the dismissal of the complaint.

After reviewing the matter, however, the Ombudsman, Hon. Conrado Vasquez, disapproved the recommendation and instead directed that Mayor Ilustrisimo be charged with attempted rape in the Regional Trial Court.

Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas, respondent Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E. Kintanar for the "filing of appropriate information with the Regional Trial Court of Danao City, ” The case was eventually assigned to herein petitioner, First Assistant Provincial Prosecutor Gloria G. Lastimosa.

It appears that petitioner conducted a preliminary investigation on the basis of which she found that only acts of lasciviousness had been committed. With the approval of Provincial Prosecutor Kintanar, she filed on July 4, 1994 an information for acts of lasciviousness against Mayor Ilustrisimo with the Municipal Circuit Trial Court of Santa Fe.

In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22, 1994, Deputy Ombudsman Mojica inquired as to any action taken on the previous referral of the case, more specifically the directive of the Ombudsman to charge Mayor Ilustrisimo with attempted rape.

As no case for attempted rape had been filed by the Prosecutor's Office, Deputy Ombudsman Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and petitioner Lastimosa to show cause why they should not be punished for contempt for "refusing and failing to obey the lawful directives" of the Office of the Ombudsman.

For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial Prosecutor were given until August 3, 1994 within which to submit their answer. An answer was timely filed by them and hearings were thereupon conducted.

It appears that earlier, on July 22, 1994, two cases had been filed against the two prosecutors with the Office of the Ombudsman for Visayas by Julian Menchavez, a resident of Santa Fe, Cebu. One was an administrative complaint for violation of Republic Act No. 6713 and P.D. No. 807 (the Civil Service Law) and another one was a criminal complaint for violation of §3(e) of Republic Act No. 3019 and Art. 208 of the Revised Penal Code. The complaints were based on the alleged refusal of petitionerand Kintanar to obey the orders of the Ombudsman to charge Mayor Ilustrisimo with attempted rape.

In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for Visayas Mojica issued an order on August 15, 1994, placing petitioner Gloria G. Lastimosa and Provincial Prosecutor Oliveros E. Kintanar under preventive suspension for a period of six (6) months, pursuant to Rule III, §9 of the Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 7), in relation to §24 of R.A. No. 6770. The order was approved by Ombudsman Conrado M. Vasquez on August 16, 1994 and on August 18, 1994 Acting Secretary of Justice Ramon J. Liwag designated Eduardo Concepcion of Region VII as Acting Provincial Prosecutor of Cebu.

On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued orders in the two cases, directing petitioner and Provincial Prosecutor Kintanar to submit their counter affidavits and controverting evidence.

On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition for certiorari.

ISSUE/S

I. Whether or not the petitioner’s suspension is invalid.

II. Nor is there merit in petitioner's claim that the contempt charge should first be resolved before any action in the administrative complaint case can be taken because the contempt case involves a prejudicial question.

RULING

I. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the charges against him are heard and be given an opportunity to prove his innocence.

Petitioner questions her preventive suspension for six (6) months without pay and contends that it should only be for ninety (90) days on the basis of cases decided by this Court. Petitioner is in error. She is referring to cases where the law is either silent or expressly limits the period of suspension to ninety (90) days. With respect to the first situation, we ruled in the case of Gonzaga v. Sandiganbayan that –

To the extent that there may be cases of indefinite suspension imposed either under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance of all concerned that this Court set forth the rules on the period of preventive suspension under the aforementioned laws, as follows:

1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a maximum period of ninety (90) days, from issuances thereof, and this applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act.

2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or employees whose positions are embraced in the Civil Service, as provided under Sections 3 and 4 of said Pres. Decree 807, and shall be limited to a maximum period of ninety (90) days from issuance, except where there is delay in the disposition of the case, which is due to the fault, negligence or petition of the respondent, in which case the period of delay shall both be counted in computing the period of suspension herein stated; provided that if the person suspended is a presidential appointee, the continuance of his suspension shall be for a reasonable time as the circumstances of the case may warrant.

II. There is simply no basis for this contention. The two cases arose out of the same act or omission and may proceed hand in hand, or one can be heard before the other. Whatever order is followed will not really matter.

WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive Suspension is DENIED.

G.R. No. 124680-81,

February 28, 2000

IMELDA R. MARCOS, petitioner,
vs.
THE SANDIGANBAYAN (First Division) and THE PEOPLE OF THE PHILIPPINES, respondents.

PARDO, J.

:

FACTS

Imelda was charged together with Jose Dans for Graft & Corruption for a dubious transaction done in 1984 while they were officers transacting business with the Light Railway Transit. The case was raffled to the 1^st Division of the Sandiganbayan. The division was headed by Justice Garchitorena with J Balajadia and J Atienza as associate justices. No decision was reached by the division by reason of Atienza’s dissent in favor of Imelda’s innocence. Garchitorena then summoned a special division of the SB to include JJ Amores and Cipriano as additional members. Amores then asked Garchitorena to be given 15 days to send in his manifestation.

On the date of Amores’ request, Garchitorena received manifestation from J Balajadia stating that he agrees with J Rosario who further agrees with J Atienza. Garchitorena then issued a special order to immediately dissolve the special division and have the issue be raised to the SB en banc for it would already be pointless to wait for Amores’ manifestation granted that a majority has already decided on Imelda’s favor. The SB en banc ruled against Imelda.

ISSUE/S

Whether or not due process has been observed.

RULING

 The SC ruled that the ruling of the SB is bereft of merit as there was no strong showing of Imelda’s guilt. The SC further emphasized that Imelda was deprived of due process by reason of Garchitorena not waiting for Amores’ manifestation. Such procedural flaws committed by respondent Sandiganbayan are fatal to the validity of its ”decision” convicting petitioner. Garchitorena had already created the Special Division of five (5) justices in view of the lack of unanimity of the three (3) justices in the First Division.  At that stage, petitioner had a vested right to be heard by the five (5) justices, especially the new justices in the persons of Justices Amores and del Rosario who may have a different view of the cases against her. 

At that point, Presiding Justice Garchitorena and Justice Balajadia may change their mind and agree with the original opinion of Justice Atienza but the turnaround cannot deprive petitioner of her vested right to the opinion of Justices Amores and del Rosario.  It may be true that Justice del Rosario had already expressed his opinion during an informal, unscheduled meeting in the unnamed restaurant but as aforestated, that opinion is not the opinion contemplated by law.  But what is more, petitioner was denied the opinion of Justice Amores for before it could be given, Presiding Justice Garchitorena dissolved the Special Division.

IN VIEW WHEREOF, the Court hereby DISMISSES the petition for certiorari and prohibition. However, the Court directs the Sandiganbayan to forthwith proceed with further proceedings and final disposition of Criminal Case Nos. 20345-20346, in accordance with the mandates of Republic Act No. 8493, with all deliberate dispatch.

We order the Sandiganbayan to inform this Court of the proceedings in the cases below within ten (10) days of the action thereon