G.R. No. 135805 April 29, 1999
VS
PEDRO O. DACOYCOY, RESPONDENT.
Facts
Ø 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 respondent, for habitual drunkenness, misconduct and
nepotism.
Ø 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.
Ø Accordingly,
the CSC conducted a formal investigation, and, on January 28, 1997, the Civil
Service Commission 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.
Ø Respondent is the Vocational School
Administrator, Balicuatro College of Arts and Trades, Allen, Northern Samar. It
is true that he did not appoint or recommend his two sons to the positions of
driver and utility worker in the Balicuatro College of Arts and Trades. In
fact, it was Mr. Jaime Daclag, Head of the Vocational Department of the BCAT,
who recommended the appointment of Rito. Mr. Daclag's authority to recommend the
appointment of first level positions such as watchmen, security guards,
drivers, utility workers, and casuals and emergency laborers for short
durations of three to six months was recommended by respondent Dacoycoy and
approved by DECS Regional Director Eladio C. Dioko, with the provision that
such positions shall be under Mr. Daclag's immediate supervision.
Ø July 1, 1992, Atty.
Victorino B. Tirol II, Director III, DECS Regional Office VIII, Palo, Leyte,
appointed RitoDacoycoy driver of the school. On January 3, 1993, Mr. Daclag
also appointed PedDacoycoy casual utility worker. However, it was respondent
Dacoycoy who certified that "funds are available for the proposed
appointment of RitoDacoycoy" 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. Both
positions are career positions
Ø February
25, 1997, respondent Dacoycoy filed a motion for reconsideration; however, on
May 20, 1997, the Civil Service Commission denied the motion.
Ø July 18,
1997, respondent Dacoycoy filed with the Court of Appeals a special civil
action for certiorari with
preliminary injunction to set aside the Civil Service Commission's resolutions.
Ø 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."
Ø November 17, 1998, court required respondent to comment on
the petition within ten (10) days from notice and on December 11, 1998,
respondent filed his comment.
Issue
Whether or not there was nepotism.
Ruling
This
court agrees with
the Civil Service Commission that respondent Pedro O. Dacoycoy was guilty of
nepotism and correctly meted out the penalty of dismissal from the service.
The law defines nepotismas follows:
The law defines nepotismas follows:
"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.
(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential capacity,
(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential capacity,
(b)
teachers, (c) physicians, and (d) members of the Armed Forces of the
Philippines: provided, however, that in each particular instance full report of such
appointment shall be made to the Commission."
Under the definition of nepotism, one is
guilty of nepotism if an appointment is issued in favor of a relative within
the third civil
degree of consanguinity or affinity of any of the following:
a)
appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising immediate supervision over the appointee.
Clearly, there are four situations
covered. In the last two mentioned situations, it is immaterial who the
appointing or recommending authority is. To constitute a violation of the law,
it suffices that an appointment is extended or issued in favor of a relative
within the third civil
degree of consanguinity or affinity of the chief of the bureau or
office, or the person exercising immediate supervision over the appointee.
To the court', the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him.He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service.
Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system.
To the court', the unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the question of the party adversely affected who may take an appeal from an adverse decision of the appellate court in an administrative civil service disciplinary case. There is no question that respondent Dacoycoy may appeal to the Court of Appeals from the decision of the Civil Service Commission adverse to him.He was the respondent official meted out the penalty of dismissal from the service. On appeal to the Court of Appeals, the court required the petitioner therein, here respondent Dacoycoy, to implead the Civil Service Commission as public respondent as the government agency tasked with the duty to enforce the constitutional and statutory provisions on the civil service.
Subsequently, the Court of Appeals reversed the decision of the Civil Service Commission and held respondent not guilty of nepotism. Who now may appeal the decision of the Court of Appeals to the Supreme Court? Certainly not the respondent, who was declared not guilty of the charge. Nor the complainant George P. Suan, who was merely a witness for the government. Consequently, the Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system.
The decision of the Court of Appeals to
the Supreme Court .By this ruling, expressly abandon and overrule extant
jurisprudence that "the phrase `party adversely affected by the decision'
refers to the government employee against whom the administrative case is filed
for the purpose of disciplinary action which may take the form of suspension,
demotion in rank or salary, transfer, removal or dismissal from office"
and not included are "cases where the penalty imposed is suspension for
not more than thirty (30) days or fine in an amount not exceeding thirty days
salary" or "when the respondent is exonerated of the charges, there is no
occasion for appeal." In other words, we overrule prior decisions holding
that the Civil Service Law "does not
contemplate a review of decisions exonerating officers or employees from
administrative
charges" enunciated in Paredes v. Civil Service
Commission; Mendez v. Civil Service
Commission; Magpale v. Civil Service
Commission; Navarro v. Civil Service
Commission and Export Processing Zone Authority and more
recently Del Castillo v. Civil Service Commission
The Court of Appeals' reliance on Debulgado vs. Civil Service Commission, to support its ruling is misplaced. The issues in Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a rlative. Precisely, in Debulgado, the Court emphasized that Section 59 "means exactly what it says in plain and ordinary language: The public policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there."
Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado, we stressed that "the basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one. The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive." If not within the exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head. As we said in an earlier case "what we need now is not only to punish the wrongdoers or reward the `outstanding' civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the law.
The Court of Appeals' reliance on Debulgado vs. Civil Service Commission, to support its ruling is misplaced. The issues in Debulgado are whether a promotional appointment is covered by the prohibition against nepotism or the prohibition applies only to original appointments to the civil service, and whether the Commission had gravely abused its discretion in recalling and disapproving the promotional appointment given to petitioner after the Commission had earlier approved that appointment. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a rlative. Precisely, in Debulgado, the Court emphasized that Section 59 "means exactly what it says in plain and ordinary language: The public policy embodied in Section 59 is clearly fundamental in importance, and the Court had neither authority nor inclination to dilute that important public policy by introducing a qualification here or a distinction there."
Nepotism is one pernicious evil impeding the civil service and the efficiency of its personnel. In Debulgado, we stressed that "the basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one. The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive." If not within the exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head. As we said in an earlier case "what we need now is not only to punish the wrongdoers or reward the `outstanding' civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with existing legal procedures in order to abate any occasion for graft or circumvention of the law.
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 Commission dated January 28, 1998 and September 30, 1998, dismissing respondent Pedro O. Dacoycoy from the service.
G.R. No. 111471September 26, 1994
CITY MAYOR ROGELIO R. DEBULGADO
and VICTORIA T. DEBULGADO, PETITIONERS
VS.
CIVIL SERVICE COMMISSION,
RESPONDENT
Facts
Ø
Petitioner
Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros
Occidental. On 1 October 1992, petitioner Mayor appointed his wife, petitioner
Victoria T. Debulgado, as General Services Officer, that is, as head of the
Office of General Services of the City Government of San Carlos.
Ø
Petitioner Victoria was one of three
(3) employees of the City Government who were considered for the position of
General Services Officer. Before her promotion in 1992, she had been in the
service of the City Government for about thirty-two (32) years. She joined the
City Government on 3 January 1961 as Assistant License Clerk. Through the
years, she rose from the ranks, successively occupying the following positions:
(a) Assistant Chief of the License & Fees Division, from
1 July 1965 to 30 June 1973;
(b)
Chief of the License and Fees Division, from 1 July 1973 to 1 January 1981;
(c) Cashier, from 2 January 1981 to 30 June 1989; and
(d) Cashier IV, from 1 July 1989 to 30 September 1992.
Ø October 1, 1992,
petitioner Victoria assumed the new post, and commenced discharging the
functions, of General Services Officer of San Carlos City and receiving the
regular salary attached to that position.
Ø December 16, 1992,
public respondent Civil Service Commission (“Commission”) received a letter from
Congressman Tranquilino B. Carmona of the First District of Negros Occidental,
calling attention to the promotional appointment issued by petitioner Mayor in
favor of his wife. The Commission directed its Regional Office No. 6-Iloilo
City to submit a report on the appointment of petitioner Victoria.
Ø From the report
submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the
Commission found that petitioner Mayor was the lawful husband of the appointee,
petitioner Victoria, the two (2) having been married sometime in 1964. Director
Caberoy also reported that the appointment papers prepared by the Office of the
City Mayor of San Carlos were submitted to the Bacolod City CSC-Field Office on
28 October 1992, and that the appointment was thereafter approved by Director
Purita H. Escobia of that CSC-Field Office, on 18 November 1992.
Ø Acting on the report
of Director Caberoy, the Commission, in its Resolution No. 93-1427 dated 13
April 1993, recalled the approval issued by Director Escobia and disapproved
the promotion of petitioner Victoria to the position of General Services
Officer of San Carlos City upon the ground that that promotion violated the
statutory prohibition against nepotic appointments.
Ø June 14, 1993,
petitioner Mayor and petitioner Victoria received a copy of Resolution No.
93-1427 of the Commission. Petitioners moved for reconsideration, contending
that the statutory prohibition against nepotism was not applicable to the
appointment of Victoria as General Services Officer. Petitioners also asserted
that the Commission had deprived petitioner Victoria of her right to due
process by unilaterally revoking her appointment. The motion for
reconsideration was denied by the Commission on 21 July 1993.
Issue
Whether a promotional appointment
is covered by the prohibition against nepotism?
ruling
In
this Petition for Certiorari,
petitioner Mayor and petitioner Victoria contend that the Commission had
gravely abused its discretion in withdrawing and disapproving petitioner Victoria’s
promotional appointment.
Petitioners assert that Victoria can no longer be removed from the
position of General Services Officer without giving her an opportunity to be
heard and to answer the charge of nepotism.
Petitioner Mayor denies that he had been
motivated by personal reasons when he appointed his wife to the new post. He
states that his wife was the most qualified among the candidates for
appointment to that position, she having worked for the City Government for
thirty-two (32) years and being highly recommended by the OIC-Treasurer of San
Carlos City. It is also claimed by petitioner Mayor that his choice of his wife
for the position was concurred in by the Sangguniang Panglungsod. He
further avers that he had consulted the Field and Regional Officers of the
Commission in Bacolod City, and raised the question of applicability of the
prohibition against
nepotism to the then proposed promotion of his wife in one of the
seminars conducted by the Commission’s Regional Office held in San Carlos City
on 21 and 22 September 1992. According to petitioner Mayor, one Gregorio C.
Agdon, a supervising personnel specialist in the Commission’s Bacolod Office,
informed him that the promotional appointment was not covered by the
prohibition.
The basic contention of petitioners is
that the prohibition against nepotic appointments is applicable only to
original appointments and not to promotional appointments. They believe that
because petitioner Victoria was already in the service of the City Government
before she married petitioner Mayor, the reason behind the prohibition no
longer applied to her promotional appointment. Petitioners also affirm that
petitioner Victoria deserves to be promoted to General Services Officer,
considering her long and faithful service to the City Government.
The task before this Court is,
accordingly, two-fold:
(1)
to determine whether a promotional appointment is covered by the legal
prohibition against nepotism,
or whether that prohibition applies only to original appointments to the Civil
Service; and (2) to determine whether the Commission had gravely abused its
discretion in recalling and disapproving the promotional appointment given to
petitioner Victoria after the Commission, through Director Escobia, had earlier
approved that same appointment, without giving an opportunity to petitioner
Victoria to explain her side on the matter.
The prohibitory norm against nepotism in
the public service is set out in Section 59, Book V of the Revised
Administrative Code of 1987 (also known as E.O. No. 292). Section 59 reads as
follows: “Sec. 59.Nepotism
--- (1) All appointments in 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.
(2)
The following are exempted
from the operation of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed
Forces of the Philippines: Provided, however, That in each particular instance
full report of such appointment shall be made to the Commission.
The restriction mentioned in subsection
(1) shall not be applicable to the case of a member of any family who, after
his or her appointment to any position in an office or bureau, contracts
marriage with someone in the same office or bureau, in which event the
employment or retention therein of both husband and wife may be allowed.
(3)
In order to give immediate effect to these provisions, cases of previous
appointment which are in contravention hereof shall be corrected by transfer
and pending such transfer, no promotion or salary increase shall be allowed in
favor of the relative or relatives who were appointed in violation of these
provisions.”
Section 6 of Rule XVIII, of the “Omnibus
Rules Implementing Book V of Executive Order No. 292 and other Pertinent Civil
Service Laws,” issued on 27 December 1991, implementing, among other things,
the abovequoted Section 59, provides as follows:
“Sec. 6. No appointments in the national,
provincial, city and municipal government or in any branch or instrumentality
thereof, including government-owned or controlled corporations with original
charters shall be 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 the appointee.
The following are exempted from the
operation of the rules on nepotism: (a) persons employed in a confidential
capacity; (b) teachers; (c) physicians; (d) members of the Armed Forces of the
Philippines. Provided, however, That in each particular instance full report of
such appointment shall be made to the Commission.
The
restriction mentioned in the first paragraph of this Section shall not be
applicable to the case of a member of any family who after his or her
appointment to any position in an office or bureau, contracts marriage with
someone in the same office or bureau, in which event the employment or
retention therein of both husband and wife may be allowed.
Cases of previous appointment which are in
contravention hereof shall be corrected by transfer, and pending such transfer,
no promotion or salary increase shall be allowed in favor of the relative or
relatives who were appointed in violation of these provisions.”
It will be noted that the above quoted
Section 6 of Implementing Rule XVIII essentially tracks the provisions of
Section 59, Book V of E.O. No. 292.
Therefore,
to an analysis of Section 59, Book V of E.O. No. 292, quoted above. The
noteworthy fact may be pointed out, at the outset, that Section 59 as it exists
today has been in our statute books in substantially identical form and
language for at least thirty (30) years.
A textual examination of Section 59 at once
reveals that the prohibition was cast in comprehensive and unqualified terms.
Firstly, it explicitly covers “all appointments”, without seeking to make any
distinction between differing kinds or types of appointments. Secondly, Section
59 covers all appointments to the national, provincial, city and municipal
governments, as well as any branch or instrumentality thereof and all
government owned or controlled corporations. Thirdly, there is a list of
exceptions set out in Section 59 itself, but it is a short list: (a) persons employed in a confidential
capacity;(b) teachers;(c) physicians; and (d)
members of the Armed Forces of the Philippines.
The list has not been added to or
subtracted from for the past thirty (30) years. The list does not contain words
like “and other similar positions.” Thus, the list appears to us to be a closed
one, at least closed until lengthened or shortened by Congress.
Section 59 of Book V, E.O. No. 292 should,
of course, be read in connection with the Omnibus Implementing Rules.
Additional light is shed on the issue we here address by some provisions of
these Rules. Section 1, Rule V of the Omnibus Implementing Rules reads as
follows:
“Section 1. All appointments in the career service shall be made only
according to merit and fitness to be determined as far as practicable by
competitive examinations.
As used in these Rules, any action
denoting movement or progress of personnel in the civil service shall be known
as personnel action. Such action shall include promotion, transfer,
reinstatement, reemployment, detail, secondment, reassignment, demotion and
separation. All original appointments and personnel actions shall be in accordance
with these Rules and with other regulations and standards that may be
promulgated by the Commission.”
“Section 1. The following constitute
personnel actions: original appointment, appointment through certification,
promotion, transfer, reinstatement, reemployment, detail, secondment, demotion
and separation.”
Under the above quoted provisions of the
Implementing Rules, both an original appointment and a promotion are particular
species of personnel action. The original appointment of a civil service
employee and all subsequent personnel actions undertaken by or in respect of
that employee such as promotion, transfer, reinstatement, re-employment, etc., must comply with
the Implementing Rules including, of course, the prohibition against nepotism
in Rule XVIII. To the extent that all personnel actions occurring after an
original appointment, require the issuance of a new appointment to
another position (or to the original position in case of reinstatement), we
believe that such appointment must comply with all applicable rules and
prohibitions, including the statutory and regulatory prohibition against
nepotism. To limit the thrust of the prohibition against nepotism to the
appointment issued at the time of initial entry into the government service,
and to insulate from that prohibition appointments subsequently issued when
personnel actions are thereafter taken in respect of the same employee, would
be basically to render that prohibition, in the words of Laurel V, etc. v.
Civil Service Commission, “meaningless and
toothless.”
Inquiry into the basic purpose or
objective of the prohibition against nepotism also strongly indicates that that prohibition was
intended to be a comprehensive one. Section 1, Book V, E.O. No. 292 sets out
the basic policy which pervades all the provisions of our Civil Service law,
including Section 59 thereof:
“Sec. 1. Declaration of Policy. -- The
State shall insure and promote the Constitutional mandate that appointments in
the Civil Service shall be made only according to merit and fitness;
Put succinctly, that purpose is to ensure
that all appointments and other personnel actions in the civil service should
be based on merit and fitness and should never depend on how close or intimate
an appointee is to the appointing power.
Laurel
V, etc. v. Civil Service Commissionsupra, is instructive in this
connection. In that case, petitioner Governor of Batangas Province appointed or
designated his brother, Benjamin Laurel, who had been holding a promotional
appointment as Civil Security Officer, a position classified as “primarily
confidential” by the Civil Service, to the position of Provincial
Administrator, a position in the Career Civil Service. This Court held that the
appointment or designation as Acting Provincial Administrator was violative of the
prohibition against nepotism, then embodied in Section 49, P.D. No. 807. The
Court emphatically agreed with the Civil Service Commission that “although what
was extended to Benjamin was merely a designation and not an appointment, the
prohibitive mantle on nepotism would include designation, because what
cannot be done directly, cannot be done indirectly:”
“We cannot accept petitioner’s view. His
specious and tenuous distinction between appointment and designation is nothing
more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or
a last-ditch maneuver to cushion the impact of its violation. The rule admits
of no distinction between appointment and designation. Designation is also
defined as ‘an appointment or assignment to a particular office’; and ‘to
designate’ means ‘to indicate, select, appoint or set apart for a purpose of
duty.
It seems clear to Us that Section 49 of
P.D. No. 807 does not suggest that designation should be differentiated from
appointment. Reading this section with Section 25 of said decree, career
service positions may be filled up only by appointment, either permanent or
temporary; hence a designation of a person to fill it up because it is vacant,
is necessarily included in the term appointment, for it precisely accomplishes
the same purpose. Moreover, if a designation is not to be deemed included in
the term appointment under Section 49 of P.D. No. 807, then the prohibition on nepotism would
be meaningless and toothless. Any appointing authority may circumvent it by
merely designating, and not appointing, a relative within the prohibited degree
to a vacant position in the career service. Indeed, as correctly stated by
public respondent, ‘what cannot be done directly cannot be done indirectly.
Thus, the Court was unwilling to restrict
and limit the scope of the prohibition which is textually very broad and
comprehensive.
One of the contentions of petitioner in
the case at bar is that the ratio of the prohibition against nepotism is
not applicable here because petitioner Victoria was already in the government
service at the time petitioners were married in 1964. It is not disputed that
the original 1961 appointment of petitioner Victoria as an Assistant License
Clerk was not a nepotic appointment. Indeed, Section 59 itself states, in the
4th paragraph thereof, that the prohibition against nepotism is notapplicable to
the case of a member of any family who, after his or her appointment to any
position in any office or bureau, contracts marriage with someone in the same
office or bureau, in which event the employment or retention therein of both
husband and wife may be allowed.
The subsequent marriage of one to the
other of petitioners did not retroactively convert the original appointment of
petitioner Victoria into a prohibited nepotic one. It is the promotional
appointment issued by petitioner Mayor to petitioner Victoria in 1 October 1982
that is at stake.
Here, the basic argument of petitioners is
that to read the prohibition in Section 59, Book V of E.O. No. 292 as
applicable both to original and promotional or subsequent appointments, would
be to deprive the government of the services of loyal and faithful employees
who would thereby be penalized simply because the appointing or recommending
official happens to be related to the employee within the third degree of
consanguinity or affinity.
A major difficulty with petitioners’
argument is that it tends to prove too much. For the appointee, whether in an
original or a promotional appointment, may in fact be quite loyal and efficient
and hard-working; yet that circumstance will not prevent the application of the
prohibition certainly in respect of the original appointment. The Court is not
unaware of the difficulties that the comprehensive prohibition against nepotism
would impose upon petitioner Victoria and others who maybe in the same
position. It is essential to stress, however, that the prohibition applies
quite without regard to the actual merits of the proposed appointee and to the
good intentions of the appointing or recommending authority, and that the
prohibition against nepotism
in appointments whether original or promotional, is not intended by the
legislative authority to penalize faithful service.
The purpose of Section 59 which shines
through the comprehensive and unqualified language in which it was cast and has
remained for decades, is precisely to take out of the discretion of the
appointing and recommending authority the matter of appointing or recommending
for appointment a relative. In other words, Section 59 insures the objectivity
of the appointing or recommending official by preventing that objectivity from
being in fact tested. The importance of this statutory objective is difficult
to overstress in the culture in which we live and work in the Philippines,
where family bonds remain, in general, compelling and cohesive.
The conclusion we reach is that Section
59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary
language: it refers to “all appointments” whether original or promotional in
nature. The public policy embodied in Section 59 is clearly fundamental in
importance, and the Court has neither authority nor inclination to dilute that
important public policy by introducing a qualification here or a distinction
there.
It follows that the promotional
appointment of petitioner Victoria by her husband, petitioner Mayor, falls
within the prohibited class of appointments: the prohibited relationship
between the appointing authority (petitioner Mayor) and the appointee (wife
Victoria) existed at the time the promotional appointment was issued. It is
scarcely necessary to add that the reasons which may have moved petitioner
Mayor to issue the prohibited appointment are, as a matter of law, not relevant
in this copy.
This argument misconceives the nature of
the action taken by the respondent Commission. That action was not the
imposition of an administrative disciplinary measure upon petitioner Victoria,
nor upon petitioner Mayor. There were no administrative charges in respect of
which petitioner Victoria would have been entitled to notice and hearing. The
Commission, in approving or disapproving an appointment, only examines the
conformity of the appointment with applicable provisions of law and whether the
appointee possesses all the minimum qualifications and none of the
disqualifications. At all events, as the Solicitor General has noted,
petitioner Victoria was afforded an opportunity to be heard when she filed a
motion for reconsideration with the Commission and there challenged the
disapproval by the Commission.
The action of the Commission was, in other
words, taken in implementation of Section 59, Book V, E.O. No. 292 and the
relevant Implementing Regulations. Because the promotional appointment in favor
of petitioner Victoria was a violation of Section 59, it was null and void as
being contra legem. Section 9 of Rule V of the Omnibus Implementing Regulations
sets out the principal legal consequence of an appointment issued in disregard
of the statutory prohibition:
“Sec. 9. An appointment accepted by the
appointee cannot be withdrawn or revoked by the appointing authority and shall
remain in force and effect until disapproved by the Commission. However, an
appointment may be void from the beginning due to fraud on the part of the
appointee or because it was issued in violation of law.
A void appointment cannot give rise to
security of tenure on the part of the holder of such appointment.
The Commission is empowered to take
appropriate action on all appointments and other personnel actions, e.g.,
promotions.Such power includes the authority to recall an appointment initially
approved in disregard of applicable provisions of Civil Service law and
regulations. Section 20 of Rule VI of the Omnibus Implementing Rules makes this
clear:
“Sec. 20. Notwithstanding the initial
approval of an appointment, the same may be recalled on any of the following
grounds:
(a) Non-compliance with the
procedures/criteria provided in the agency’s Merit Promotion Plan;
(b) Failure to pass through the agency’s
Selection/Promotion Board;
(c) Violation of the existing collective
agreement between management and employees relative to promotion; or
(d) Violation of other existing civil
service law, rules and regulations.” (Underscoring supplied).
The recall or withdrawal by the Commission
of the approval which had been issued by one of its Field Officers, Director
Escobia, was accordingly lawful and appropriate, the promotional appointment of
petitioner Victoria being void “from the beginning.” The approval issued by
Director Escobia did not, as it could not, cure the intrinsic vice of that
appointment.
in respect of the second issue, that
petitioners have not shown any grave abuse of discretion, amounting to lack or
excess of jurisdiction on the part of respondent Commission.
Petitioners have also complained that the
letter of Congressman Carmona which had precipitated action on the part of
respondent Commission, was not a verified letter. They contend that the
Commission could not or should not have acted upon the charges raised in that
letter.
We are not aware of any law or regulation
requiring the letter written by the Congressman to be subscribed under oath
before the Commission could act thereon. Under its own rules and regulations,
the Commission may review motuproprio personnel actions involving the
position of a Division Chief or above, such as the position of General Services
Officer. We hold that the
respondent Commission had authority, indeed the duty, to recall on its own
initiative the erroneous initial approval of the promotional appointment
extended to petitioner Victoria, and to review the same de novo.
WHEREFORE, for all the
foregoing, the Petition for Certiorari
must be DISMISSED for lack of merit.
G.R.
No. 96298,
May
14, 1991
RENATO M. LAPINID, PETITIONER,
VS.
CIVIL SERVICE COMMISSION
PHILIPPINE PORTS AUTHORITY AND JUANITO JUNSAY, RESPONDENTS.
Facts
Ø 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 JuanitoJunsay, 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 in
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 the appeal
meritorious. In the comparative evaluation sheets, the were evaluated according
to the following criteria, namely: eligibility; parties education; work
experience; productivity/performance/attendance; integrity;
initiative/leadership; and physical characteristics/personality traits. The
results of the evaluation are as follows:
|
JUNSAY,
Juanito
|
-
79.5
|
||
|
VILLEGAS,
Benjamin
|
-
79
|
||
|
LAPINID,
Renato
|
-
75
|
||
|
DULFO,
Antonio
|
-
78
|
||
|
MARIANO,
Eleuterio
|
-
79
|
||
|
FLORES,
Nestor
|
-
80
|
||
|
DE
GUZMAN, Alfonso
|
-
80
|
||
|
VER,
Cesar
|
-
80
|
It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of protestees Lapinid (75) and Dulfo (78).
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.
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 Civil Service Commission, 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.
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 Civil Service Commission, 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.
Lapinid was appointed by the Philippine Ports Authority to the position
of Terminal Supervisor. This appointment was protested by Junsay, who contended
that he should be designated terminal supervisor, or to another comparable
position, in view of his preferential right thereto. 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, the Commission held that Junsay had a
preferential right to the position and ordered that he be appointed thereto
Issue
WON 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 byte latter.
Ruling
In Luegov. Civil Service Commission, this Court declared:
The issue is starkly simple: Is the
CivilServiceCommission 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?
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.
Significantly, the Commission on Civil
Service 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.
The same ruling has been affirmed, in
practically the same language as Luego, in Central Bank v. Civil Service Commission, 171 SCRA 744; Santiago v. CSC, 178 SCRA 733; Pintorv. Tan, G.R. No. 84022 and G.R. No.
85804, March 9, 1989, En Banc, Minute Resolution; Galurav.CSC , G.R. No. 85812, June 1, 1989, En Banc, Minute
Resolution; Zuluetav.Mamangun,
G.R. No. 85941, June 15, 1989, En Banc, Minute Resolution; Remigiov. Chairman, CSC, G.R. No. 86324,
July 6, 1989, En Banc, Minute Resolution; Aurora Macacuav.CSC, G.R. No. 91520, July 31, 1990, En Banc, Minute
Resolution; Abdulwahab A. Bayaov.CSC,
G.R. No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbosv.CSC, G.R. No. 92561, September 12,
1990; Alicia D. Tagarov. The
Hon. et al., G.R. No. 90477, September
13, 1990,CSC En Banc; Minute Resolution; Elenito Lim v.CSC, et al., G.R. No. 87145, October 11, 1990, En Banc, Minute
Resolution; Teologov.CSC, G.R.
No. 92103, November 8, 1990; Simpaov.CSC,
G.R. No. 85976, November 15, 1990.
Only recently, in Gaspar v. Court of Appeals, this Court said:
Only recently, in Gaspar v. Court of Appeals, this Court said:
The
only function of the CSC in cases of
this nature, according to Luego,
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. Every particular job in an office calls for both formal and informal
qualifications. Formal qualifications such as age, number of academic units in
a certain course, seminars attended, etc., may be valuable but so are such
intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty,
ambition, prospects for the future, and best interests of the service. Given the
demands of a certain job, who can do it best should be left to the Head of the
Office concerned provided the legal requirements for the office are satisfied.
The CSC cannot substitute its judgment for that of the Head of Office in this
regard.
It is therefore incomprehensible to the
Court why, despite these definitive pronouncements, the CSC has seen fit to ignore, if not defy, the
clear mandate of the Court.
the court declare once again, and let us hope for the last time, that the CSC has no power of appointment except over its own personnel.
the court declare once again, and let us hope for the last time, that the CSC has no power of appointment except over its own personnel.
Neither does it have the authority to
review the appointments made by other offices except only to ascertain if the
appointee possesses the required qualifications. The determination of who among
aspirants with the minimum statutory qualifications should be preferred belongs
to the appointing authority and not the CSC. It cannot disallow an appointment
because it believes another person is better qualified and much less can it
direct the appointment of its own choice.
Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee - taking into account the totality of his qualifications, including those abstract qualities that define his personality - is the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the CSC has no power to review under the Constitution and the applicable laws.
Commenting on the limits of the powers of the public respondent, Luego declared:
Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee - taking into account the totality of his qualifications, including those abstract qualities that define his personality - is the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the CSC has no power to review under the Constitution and the applicable laws.
Commenting on the limits of the powers of the public respondent, Luego declared:
It
is understandable if one is likely to be misled by the language of Section 9(h)
of Article V of the Civil Service Decree because it says the Commission has the
power to "approve" and "disapprove" appointments. Thus, it
is provided therein that the Commission shall have inter alia the power to:
"9(h)
Approve all appointments, whether
original or promotional, to positions in the civil service, except those
presidential appointees, members of the Armed Forces of the Philippines, police
forces, firemen, and jailguards, and disapprove
those where the appointees do not possess of appropriate eligibility or
required qualifications."
However, a full reading of the provision,
especially of the underscored parts, will make it clear that all the Commission
is actually allowed to do is check whether or not the appointee possesses the
appropriate civil service eligibility or the required qualifications.
If he does, his appointment is approved;
if not, it is disapproved. No other criterion is permitted by law to be
employed by the Commission when it acts on - or as the Decree says,
"approves" or "disapproves" - an appointment made by the
proper authorities.
The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the CSC not to understand them. The bench does; the bar does; and we see no reason why the CSC does not. If it will not, then that is an entirely different matter and shall be treated accordingly.
The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the CSC not to understand them. The bench does; the bar does; and we see no reason why the CSC does not. If it will not, then that is an entirely different matter and shall be treated accordingly.
We
note with stern disapproval that the CSC has once again directed the appointment of its own
choice in the case at bar. We must therefore make the following injunctions
which the Commission must note well and follow strictly.
the reasons for its conduct, the Whatever CSC is ORDERED to desist from disregarding the doctrine announced in Luegov. CSC and the subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the CSC after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of the status of the contemner.
While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department and office in the Republic must know its place in the scheme of the Constitution. The CSC should recognize that its acts are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them.
The Commission on CivilService has been duly warned. Henceforth, it disobeys at its peril.
WHEREFORE, the petition is GRANTED. The Resolutions of the respondent CSC 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.
the reasons for its conduct, the Whatever CSC is ORDERED to desist from disregarding the doctrine announced in Luegov. CSC and the subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the CSC after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of the status of the contemner.
While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department and office in the Republic must know its place in the scheme of the Constitution. The CSC should recognize that its acts are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them.
The Commission on CivilService has been duly warned. Henceforth, it disobeys at its peril.
WHEREFORE, the petition is GRANTED. The Resolutions of the respondent CSC 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. 71562, October 28, 1991
JOSE C. LAUREL V, IN HIS OFFICIAL
CAPACITY AS PROVINCIAL GOVERNOR OF BATANGAS, PETITIONER, VS.CIVIL SERVICE
COMMISSION AND LORENZO SANGALANG, RESPONDENTS.
Facts
Jose C. Laurel V is the Provincial
Governor of Batangas, and he appointed his brother Benjamin Laurel as Senior
Executive Assistant in theOffice of the Governor, a non-career service position
which belongs to thepersonal and confidential staff of an elective
official. The position of Provincial Administrator became vacant due to
the resignationof Mr. Felimon C. Salcedo III, and Governor Laurel designated
his brother asActing Provincial Administrator, to continue until the
appointment of a regularProvincial Administrator, since allegedly there was
none qualified at that time.He issued his brother a promotional appointment as
Civil Security Officer, a “primarily confidential” position. Sangalang, a
private citizen wrote to CSC to bring to its attention the“appointment” of
Benjamin Laurel by his Governor brother.Acting Provincial Attorney of Batangas,
Jose A. Oliveros answered that the Governor did not violate the prohibition on
nepotism because the positionsthe brother was appointed were “confidential in
nature” and with respect tothe position of “Provincial Administrator” the
brother was merely“designated”.He also answered that there was no violation of
the Anti-Graft and CorruptPractices Act because the representation allowance of
an “ActingProvincial Administrator” is “strictly on reimbursement basis. “SC in
Resolution 83-358 revoked the designation of Benjamin Laurel as Acting
Provincial Administrator, on the ground of nepotism, “what cannot be done
directly cannot be done indirectly.” RA 2260, Section 24, (f) no person
appointed to a position in the non-competitive service (now noon-career) shall
perform duties properly belonging to any position in the competitive service
(now career service). The position of Provincial Administrator is a career
position under RA 5185Section 4
Issue
1. Is the position of Provincial
Administrator primarily confidential?
2.Does the rule on nepotism apply
to “designation”?3.May a private citizen who does not claim any better right to
the position file a verified complaint with the CSC to denounce a violation by
the appointing authority of the Civil Service Law and Rules?
ruling
1. No, it is a Career Service
position embraced under Section 4 of PD 807. The Manual of Position
Descriptions also require high qualifications and definition of duties. It is
characterized by:(a)Entrance based on merit and fitness to be determined as
much as practicable by competitive examinations or based on highly technical
qualifications(b)Opportunity for advancement to higher career
positions(c)Security of tenure It is an open career position, for appointment
to it requires prior qualification in an appropriate examination. It falls
within the 2nd major level of positions in the career service.
PD 807SECTION 7. Classes of
Positions in the Career Service. –
(a) Classes of positions in the
career service appointment to which requires examinations shall be grouped into
3 major levels as follows: xxx (2.) the 2nd level shall include
professional, technical and scientific positions which involve professional,
technical or scientific work in a non-supervisory or supervisory capacity
requiring at least 4 years of college work up to Division Chief level; xxx. In
Pinero, et. al. V. Hechanova, et. al. “since the enactment of RA 2260:the 1959
Civil Service Act, it is the
Nature of the position which
finally determines whether a position is: a.)primarilyconfidential, b.)policy
determining or c.)highlytechnical. Plus Governor is bound by estoppels, he
himself admitted it was a career position. NCC Article 1431through estoppels an
admission or representation is rendered conclusive upon the person making it,
and cannot be denied or disproved as against the person relying thereon. Not
being a confidential position it is subject to the rule on nepotism.
2.Yes. The rule on nepotism
does not distinguish between appointment and designation, if it does it would
be toothless. The manner of filling up the vacancy is only either by
a.)Permanent appointment orb.)Temporary appointment, The designation in
this case is done to fill up the position temporarily. Designation is also
defined as “an appointment or assignment to a particular office” (Citing:
Borromeo V. Mariano, Binamira V. Garuccho)3.Yes, CSC - role as the central
personnel agency to set standards and to enforce the laws and rules governing
the selection, utilization, training and discipline of civil servants, with the
power and function to administer and enforce the constitutional & statutory
provisions on the merit system. PD 807Section 37 expressly allows a private
citizen to directly file with the CSC a complaint against a government official
or employee This gives teeth to the constitutional exhortation that a
public office is a public trust and public off/ees must at all times be
accountable to the people. The vigilance of the citizenry is vital in a
democracy
G.R. No. 81467, October 27, 1989 ]
NARCISO Y. SANTIAGO, JR.,
PETITIONER, VS. CIVIL SERVICE COMMISSION AND LEONARDO A. JOSE, RESPONDENTS.
Facts
CSC revoked the promotional
appointment of petitioner from Collector of Customs I to Collector of Customs
III and directing instead the appointment of private respondent to the same
position. When petitioner was promoted, respondent filed a protest with the
MSPB.MSPB upheld petitioner’s promotional appointment on the grounds, among others,
that: (1) the next-in-rank rule is no longer mandatory; (2) the protestee is
competent and qualified for the position and such fact was not questioned by
the protestant; and (3) existing law and jurisprudence give wide latitude of
discretion to the appointing authority provided there is no clear showing of
grave abuse of discretion or fraud. Respondent appealed to the Board then
overturned its earlier decision. The Commission ruled that although both
SANTIAGO and JOSE are qualified for the position of Customs Collector III, JOSE
has far better qualifications interms of educational attainment, civil service
eligibilities, relevant seminarsand training courses taken, and holding as he
does by permanentappointment a position which is higher in rank and salary
range
Issue
Whether the revocation of
petitioner’s appointment was valid
ruling
No. There is "no mandatory
nor peremptory requirement in the (Civil Service Law) that persons next-in-rank
are entitled to preference in appointment. What it does provide is that they
would be among the first to be considered for the vacancy, if qualified, and if
the vacancy is not filled by promotion, the same shall be filled by transfer or
other modes of appointment."
One who is next-in-rank is
entitled to preferential consideration for promotion to the higher vacancy but
it does not necessarily follow that he and no one else can be appointed. The
rule neither grants a vested right to the holder nor imposes a ministerial duty
on the appointing authority to promote such person to the next higher
position. The power to appoint is a matter of discretion. The appointing
power has a wide latitude of choice as to who is best qualified for the
position. To applythe next-in-rank rule peremptorily would impose a rigid
formula on theappointing power contrary to the policy of the law that among
those qualifiedand eligible, the appointing authority is granted discretion and
prerogative of choice of the one he deems fit for appointment
[ G. R. NO. 146824, November 21, 2007 ]
ENCARNACION E. SANTIAGO, PETITIONER,
VS. COMMISSION ON AUDIT AND THE DIRECTOR OF THE COMMISSION ON AUDIT, REGIONAL OFFICE NO. V, RESPONDENTS.
Facts
On
September 13, 2007, petitioner filed a motion for clarification of the
dispositive portion of the Decision in this case which was promulgated on June
15, 2006. The dispositive portion reads:
WHEREFORE, the petition is PARTLY
GRANTED in that respondent COA is authorized merely to withhold
petitioner’s salary but not to apply it to the alleged shortage for which her
liability is still being litigated. No costs.
Petitioner
informed the Court that upon the directive of the Bureau of Local Government
Finance Executive Director Ma. Presentacion R. Montesa, she is back to her
regular station and formally assumed office as the Municipal Treasurer of Goa,
Camarines Sur, on February 26, 2007.
In a letter dated August 13, 2007, petitioner requested respondents and the Municipal Mayor of Goa, Camarines Sur, to pay her representation allowance, additional compensation allowance, productivity bonus, year-end bonus, clothing allowance and other benefits, excluding her salary, from October 1998 up to the present based on the dispositive portion of the Decision.
In a letter dated August 22, 2007, respondent Commission on Audit (COA), through the Regional Cluster Director, replied that the items requested cannot be paid to petitioner because this Court has already clarified the issue when it stated in the body of the Decision that “. . . COA can direct the proper officer to withhold petitioner’s salary and other emoluments. . . .” According to COA, “emoluments” necessarily include all allowances and any money due petitioner.
Petitioner prays that the dispositive portion of the Decision be clarified as to whether the emoluments due her as Municipal Treasurer are excluded from the item that respondents can withhold, so that in the event that the said emoluments are excluded, the same can be paid to her.
The Philippine Law Dictionary, third edition, by Federico B. Moreno, defines “emolument” as:
In a letter dated August 13, 2007, petitioner requested respondents and the Municipal Mayor of Goa, Camarines Sur, to pay her representation allowance, additional compensation allowance, productivity bonus, year-end bonus, clothing allowance and other benefits, excluding her salary, from October 1998 up to the present based on the dispositive portion of the Decision.
In a letter dated August 22, 2007, respondent Commission on Audit (COA), through the Regional Cluster Director, replied that the items requested cannot be paid to petitioner because this Court has already clarified the issue when it stated in the body of the Decision that “. . . COA can direct the proper officer to withhold petitioner’s salary and other emoluments. . . .” According to COA, “emoluments” necessarily include all allowances and any money due petitioner.
Petitioner prays that the dispositive portion of the Decision be clarified as to whether the emoluments due her as Municipal Treasurer are excluded from the item that respondents can withhold, so that in the event that the said emoluments are excluded, the same can be paid to her.
The Philippine Law Dictionary, third edition, by Federico B. Moreno, defines “emolument” as:
Fees,
fixed salary, and compensation which the incumbent of an office is by law
entitled to receive because he holds such office or performed some service
required of the occupant thereof.
The term “emolument” includes salary, fees, compensation, perquisites, pensions and retirement benefits. — Philippine Constitutional Association Inc. v. Gimenez, 122 Phil. 904.
The term “emolument” includes salary, fees, compensation, perquisites, pensions and retirement benefits. — Philippine Constitutional Association Inc. v. Gimenez, 122 Phil. 904.
In
petitioner’s special civil action for certiorari,
she prayed that judgment be issued setting aside the Director’s First
Endorsement dated January 25, 2000, the Commission’s Letters
dated December 8, 2000 and January 22, 2001, the Second Endorsement dated
December 8, 2000; and that the
respondents, including the Municipal Mayor of Goa, Camarines Sur, be ordered to
immediately pay her salary in the accumulated amount of P124,606.21, and the
salary accruing after the month of July 1999 to which she may be entitled.
ISSUE
Can the salary of a government employee
be ordered withheld, retained and applied to the payment of public funds [in
the amount of P3,580,378.80] allegedly embezzled under the employee’s care on
the basis of an audit report and the filing of an
administrative case and a criminal case for malversation of public funds?
Stated otherwise, may State Auditor del Rosario direct that the salary and other emoluments of petitioner be withheld and applied to her cash shortage determined merely in an audit examination?
Stated otherwise, may State Auditor del Rosario direct that the salary and other emoluments of petitioner be withheld and applied to her cash shortage determined merely in an audit examination?
ruling
Regarding
the propriety of withholding the petitioner’s salary, the Court holds that
COA can direct the proper officer to withhold petitioner’s salary and other
emoluments under Section 21, Chapter 4, Subtitle B, Book V of the
Administrative Code of 1987, which is substantially the same as Section 37 of
PD No. 1445, the legal basis of COA. .
It is noted that the directive of State Auditor Del Rosario to the Municipal Mayor of Goa, Camarines Sur to withhold the salary of petitioner is in accordance with the COA Guidelines to the Examiner/Auditor in case of a cash shortage contained in Chapter 3 of the COA Handbook on Cash Examination . . . .
The State Auditors’ finding of cash shortage against petitioner municipal treasurer, which has not been satisfactorily disputed, is prima facie evidence against her. The prima facie evidence suffices for the withholding of petitioner’s salary, in order to safeguard the interest of the Government.
However, it must be stated that although State Auditor del Rosario properly directed the Municipal Mayor of Goa, Camarines Sur to withhold petitioner’s salary and other emoluments, she incorrectly directed that the same be applied or set off against petitioner’s cash shortage. As ruled in Villanueva, before set-off can take place under Section 624 of the Revised Administrative Code of 1919, as amended, now Section 21 of the Administrative Code of 1987, a person’s indebtedness to the government must be one that is admitted by him or pronounced by final judgment of a competent court. In this case, the indebtedness was not admitted by petitioner and a competent court has not yet pronounced final judgment thereon.
As a result, the amount of petitioner’s salary remitted to the local government treasurer as payment of petitioner’s cash shortage should be considered merely withheld until final resolution on her indebtedness. In the event that petitioner is found not liable for the cash shortage, the withheld salary and other emoluments will be released to her; otherwise, it will be applied in payment of her indebtedness.
WHEREFORE, the petition is PARTLY GRANTED in that respondent COA is authorized merely to withhold petitioner’s salary but not to apply it to the alleged shortage for which her liability is still being litigated..
[ G.R. No. 125129, March 29, 1999 ]
JOSEPH H. REYES, PETITIONER, VS.
COMMISSION ON AUDIT, RESPONDENT.
Facts
Petitioner Joseph H. Reyes, a member of
the TLRCProvident Fund Board of Trustees, filed this petition with the Supreme
Court on June 17, 1996, as an appeal by certiorari under Rule 44 of the Revised
Rules of Court, assailing the decision of the Commission on Audit (COA)
disallowing the refund of the government share in the fund to the
employee-members, and the denial of the motion for reconsideration of the said
decision.
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 Joseph H. Reyes, a member of the TLRC Board of Trustees, appealed the disallowance to the Commission on Audit. On October 12, 1995, the Commission on Audit 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 Commission on Audit seeking a reversal of COA Decision No. 95-571. On May 2, 1996, the Commission on Audit denied the motion for reconsideration per Decision No. 96-236.
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 Joseph H. Reyes, a member of the TLRC Board of Trustees, appealed the disallowance to the Commission on Audit. On October 12, 1995, the Commission on Audit 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 Commission on Audit seeking a reversal of COA Decision No. 95-571. On May 2, 1996, the Commission on Audit denied the motion for reconsideration per Decision No. 96-236.
Issue
Petitioner contends that the
dissolution of the Provident Fund does not render illegal the \distribution of
government's share to the members. He avers that when TLRC made its
contributions to the Provident Fund, it had divested itself of the ownership of
whatever contributions it gave. Furthermore, the money contributed to the fund
became a trust fund for the benefit of the members. Upon the dissolution of the
Fund, the legal and equitable titles were merged in the members, as
beneficiaries. He asserts that the members have a vested right, not only on
their own contributions, but to the government share as well. He claims that
since the Fund's pretermination or dissolution was not due to the members'
fault, then it would be unfair and greatly prejudicial to deprive them of the
government share to which they are entitled.
ruling
To begin
with, Article IX-A, Section 7 of the Constitution provides that decision,
orders of rulings of the Commission on Audit may be brought to the Supreme Court on certiorari by the
aggrieved party. Under Rule 64, Section 2, 1997 Rules of Civil Procedure,
judgment or final order of the Commission on
Audit may be brought by an aggrieved party to this Court on
certiorari under Rule 65. However, the petition in this case was filed on June
17, 1996, prior to the effectivity of the 1997 Rules of Civil Procedure.
Nevertheless, the mode of elevating cases decided by the Commission
on Audit to this Court was only by petition
for certiorari under Rule 65, as provided by the 1987 Constitution. The
judgments and final orders of the Commission on
Audit are not reviewable by ordinary writ of error or appeal via certiorari to this Court. Only
when the Commission on Audit
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. Hence, a petition for review on
certiorari or appeal by certiorari to the Supreme Court under Rule 44 or 45 of
the 1964 Revised Rules of Court is not allowed from any order, ruling or
decision of the Commission on Audit.
However, setting aside the procedural error pro hac vice, and treating the petition as one for certiorari under Rule 65, we find that the Commission on Audit 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. As correctly pointed out by the COA in its decision, the government contributions were made on the condition that the same would be used to augment the retirement and other benefits of the TLRC employees. Since the purpose was not attained due to the question on the validity of the Fund, then the employees are not entitled to claim the government share disbursed as its counterpart contribution to the Fund. Otherwise, it would be tantamount to the use of public funds outside the specific purpose for which the funds were appropriated.
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," As previously stated, the government contributions were subject to the condition that the funds would be used to augment the retirement and other fringe benefits of TLRC employees.
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.
However, setting aside the procedural error pro hac vice, and treating the petition as one for certiorari under Rule 65, we find that the Commission on Audit 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. As correctly pointed out by the COA in its decision, the government contributions were made on the condition that the same would be used to augment the retirement and other benefits of the TLRC employees. Since the purpose was not attained due to the question on the validity of the Fund, then the employees are not entitled to claim the government share disbursed as its counterpart contribution to the Fund. Otherwise, it would be tantamount to the use of public funds outside the specific purpose for which the funds were appropriated.
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," As previously stated, the government contributions were subject to the condition that the funds would be used to augment the retirement and other fringe benefits of TLRC employees.
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.
G.R. No. 164679, July 27, 2011]
OFFICE OF THE OMBUDSMAN, PETITIONER, VS. ULDARICO
P. ANDUTAN, JR., RESPONDENT.
Facts
Andutan
was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty
Drawback Center of the Department of Finance (DOF). On June 30, 1998, then Executive Secretary Ronaldo
Zamora issued a Memorandum directing all non-career officials or those occupying
political positions to vacate their positions effective July 1, 1998. On
July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF.
On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P. Malonzo, Tax Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and Chief Operating Officer, Steel Asia; and Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of Public Documents, and violations of Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. As government employees, Andutan, Belicena and Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.
The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates (TCCs) to Steel Asia, among others.
During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-Two Million, Four Hundred Thirty-Three Thousand, Five Hundred Thirty-Four Pesos (P242,433,534.00). The FFIB concluded that Belicena, Malonzo and Andutan - in their respective capacities - irregularly approved the "issuance of the TCCs to several garment/textile companies and allowing their subsequent illegal transfer" to Steel Asia.
On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on March 13, 2000.
Upon the respondents' failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case submitted for resolution.
On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. Having been separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of the government, including government owned and controlled agencies or corporations.
After failing to obtain a reconsideration of the decision, Andutan filed a petition for review on certiorari before the CA.
On July 28, 2004, the CA annulled and set aside the decision of the Ombudsman, ruling that the latter "should not have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the Ombudsman "may not conduct the necessary investigation of any administrative act or omission complained of if it believes that the complaint was filed after one year from the occurrence of the act or omission complained of"; and second, the administrative case was filed after Andutan's forced resignation.
On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P. Malonzo, Tax Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and Chief Operating Officer, Steel Asia; and Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact Finding and Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of Public Documents, and violations of Section 3(a), (e) and (j) of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. As government employees, Andutan, Belicena and Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service.
The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates (TCCs) to Steel Asia, among others.
During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-Two Million, Four Hundred Thirty-Three Thousand, Five Hundred Thirty-Four Pesos (P242,433,534.00). The FFIB concluded that Belicena, Malonzo and Andutan - in their respective capacities - irregularly approved the "issuance of the TCCs to several garment/textile companies and allowing their subsequent illegal transfer" to Steel Asia.
On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on March 13, 2000.
Upon the respondents' failure to appear at the March 20, 2000 hearing, the Ombudsman deemed the case submitted for resolution.
On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. Having been separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of the government, including government owned and controlled agencies or corporations.
After failing to obtain a reconsideration of the decision, Andutan filed a petition for review on certiorari before the CA.
On July 28, 2004, the CA annulled and set aside the decision of the Ombudsman, ruling that the latter "should not have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the Ombudsman "may not conduct the necessary investigation of any administrative act or omission complained of if it believes that the complaint was filed after one year from the occurrence of the act or omission complained of"; and second, the administrative case was filed after Andutan's forced resignation.
Issue
Does Section 20(5) of R.A. 6770
prohibit the Ombudsman from conducting an administrative investigation a year
after the act was committed?
Does Andutan's resignation render moot
the administrative case filed against him?
Assuming that the administrative case
is not moot, are the Ombudsman's findings supported by substantial evidence?
ruling
it is therefore the
petition is denied The provisions of Section 20(5) are merely directory;
the Ombudsman is not prohibited from conducting an investigation a year after the supposed
act was committed.
The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by jurisprudence. In Office of v. De Sahagun, the Court, speaking through Justice Austria-Martinez, held:
the Ombudsman is not prohibited from conducting an investigation a year after the supposed
act was committed.
The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by jurisprudence. In Office of v. De Sahagun, the Court, speaking through Justice Austria-Martinez, held:
Well-entrenched is
the rule that administrative offenses do not prescribe [Concerned Taxpayer v. Doblada, Jr., A.M. No. P-99-1342,
September 20, 2005, 470 SCRA 218;Melchor
v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476;Heck v. Judge Santos, 467 Phil. 798,
824 (2004);Floria v. Sunga,420
Phil. 637, 648-649 (2001)]. Administrative offenses by their very nature
pertain to the character of public officers and employees. In disciplining
public officers and employees, the object sought is not the punishment of the
officer or employee but the improvement of the public service and the
preservation of the public's faith and confidence in our government [Melchor v. Gironella, G.R. No.
151138, February 16, 2005, 451 SCRA 476, 481;Remolona v. Civil Service Commission,414 Phil. 590, 601 (2001)].
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
SEC. 20.Exceptions. - The Office of the Ombudsmanmaynot conduct
the necessary investigation of any administrative act or omission complained of
if it believes that:
(5) The complaint was filed after one year from the occurrence of the act or omission complained of. (Emphasis supplied)
(5) The complaint was filed after one year from the occurrence of the act or omission complained of. (Emphasis supplied)
proscribes the investigation of any administrative act or omission if the complaint was filed after one year from the occurrence of the complained act or omission.
InMelchor v. Gironella[G.R. No. 151138, February 16, 2005, 451 SCRA 476], the Court held that the period stated in Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given to theOmbudsmanon whether it would investigate a particular administrative offense. The use of the word "may" in the provision is construed as permissive and operating to confer discretion [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481;Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the words of a statute are clear, plain and free from ambiguity, they must be given their literal meaning and applied without attempted interpretation [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481;National Federation of Labor v. National Labor Relations Commission, 383 Phil. 910, 918 (2000)].
In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50],the Court interpreted Section 20 (5) of R.A. No. 6770 Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's complaint is barred by prescription considering that it was filed more than one year after the alleged commission of the acts complained of.
Petitioner's argument is without merit.
The use of the word "may" clearly shows that it is directory in nature and not mandatory as petitioner contends. When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20(5), therefore, it is discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not barred by prescription. (Emphasis supplied)
The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not," becomes prohibitory and therefore becomes mandatory in character, is not plausible. It is not supported by jurisprudence on statutory construction. [emphases and underscoring supplied]
Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within its discretion to conduct the administrative investigation.
However, the crux of the present controversy is not on the issue of prescription, but on the issue of the Ombudsman's authority to institute an administrative complaint against a government employee who had already resigned. On this issue, we rule in Andutan's favor.
Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public servant at the time the case was filed.
The Ombudsman argued - in both the present petition and in the petition it filed with the CA - that Andutan's retirement from office does not render moot any administrative case, as long as he is charged with an offense he committed while in office. It is irrelevant, according to the Ombudsman thatAndutan had already resigned prior to the filing of the administrative case since the operative fact that determines its jurisdiction is the commission of an offense while in the public service.
The Ombudsman relies on Section VI(1) of Civil Service Commission Memorandum Circular No. 38 for this proposition, viz.:
Section VI.
1An officer or employee under administrative investigation may be allowed to resign pending decision of his case but it shall be without prejudice to the continuation of the proceeding against him. It shall also be without prejudice to the filing of any administrative, criminal case against him for any act committed while still in the service. (emphasis and underscoring supplied)
1An officer or employee under administrative investigation may be allowed to resign pending decision of his case but it shall be without prejudice to the continuation of the proceeding against him. It shall also be without prejudice to the filing of any administrative, criminal case against him for any act committed while still in the service. (emphasis and underscoring supplied)
The CA refused to give credence to this argument, holding that the provision "refers to cases where the officers or employees were already charged before they were allowed to resign or were separated from service." In this case, the CA noted that "the administrative cases were filed only after Andutan was retired, hence the Ombudsman was already divested of jurisdiction and could no longer prosecute the cases."
Challenging the CA's interpretation, the Ombudsman argues that the CA "limited the scope of the cited Civil Service Memorandum Circular to the first sentence." Further, according to the Ombudsman, "the court a quo ignored the second statement in the said circular that contemplates a situation where previous to the institution of the administrative investigation or charge, the public official or employee subject of the investigation has resigned."
To recall, we have held in the past that a public official's resignation does not render moot an administrative case that was filed prior to the official's resignation. In Pagano v. Nazarro, Jr., we held that:
In Office of the Court Administrator v. Juan [A.M. No. P-03-1726,22
July 2004, 434 SCRA 654, 658], this Court categorically ruled that the
precipitate resignation of a government employee charged with an offense
punishable by dismissal from the servicedoesnotrender
moot the administrative case against him.Resignation is not a way out to evade administrative liability when
facing administrative sanction.The
resignation of a public servant does not preclude the finding of any
administrative liability to which he or she shall still be answerable[Baquerfov. Sanchez, A.M. No.
P-05-1974,6 April 2005, 455 SCRA 13, 19-20].
Likewise, in Baquerfo v. Sanchez, we held:
Likewise, in Baquerfo v. Sanchez, we held:
Cessation from office of respondent by
resignation [Reyes v. Cristi,
A.M. No. P-04-1801, 2 April 2004, 427 SCRA 8] or retirement [Re: Complaint Filed by Atty. Francis Allan
A. Rubio on the Alleged Falsification of Public Documents and Malversation of
Public Funds, A.M. No. 2004-17-SC, 27 September 2004;Caja v. Nanquil, A.M. No. P-04-1885,
13 September 2004] neither warrants the
dismissal of the administrative complaint filed against him while he was still
in the service [Tuliao v. Ramos,
A.M. No. MTJ-95-1065, 348 Phil. 404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11 June 1975, 64 SCRA 302; Secretary of Justice v. Marcos, A.C.
No. 207-J, 22 April 1977, 76 SCRA 301] nor does it render said administrative
case moot and academic [Sy Bang v.
Mendez, 350 Phil. 524, 533 (1998)]. The jurisdiction that was this
Court's at the time of the filing of the administrative complaint was not lost
by the mere fact that the respondent public official had ceased in office
during the pendency of his case [Flores
v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondent's resignation does not preclude the finding of any
administrative liability to which he shall still be answerable [OCA v. Fernandez, A.M. No.
MTJ-03-1511, 20 August 2004]. [emphases and underscoring supplied)
However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the Court found that the public officials - subject of the administrative cases - resigned, either to prevent the continuation of a case already filed or to pre-empt the imminent filing of one. Here, neither situation obtains.
The Ombudsman's general assertion that Andutan pre-empted the filing of a case against him by resigning, since he "knew for certain that the investigative and disciplinary arms of the State would eventually reach him" is unfounded. First, Andutan's resignation was neither his choice nor of his own doing; he was forced to resign. Second, Andutan resigned from his DOF post on July 1, 1998, while the administrative case was filed on September 1, 1999, exactly one (1) year and two (2) months after his resignation. The Court struggles to find reason in the Ombudsman's sweeping assertions in light of these facts.
What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed the administrative case against him. Additionally, even if we were to accept the Ombudsman's position that Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to prevent the filing of the administrative case.
Having established the inapplicability of prevailing jurisprudence, we turn our attention to the provisions of Section VI of CSC Memorandum Circular No. 38. We disagree with the Ombudsman's interpretation that "[a]s long as the breach of conduct was committed while the public official or employee was still in the service a public servant's resignation is not a bar to his administrative investigation, prosecution and adjudication." If we agree with this interpretation, any official - even if he has been separated from the service for a long time - may still be subject to the disciplinary authority of his superiors, ad infinitum. We believe that this interpretation is inconsistent with the principal motivation of the law - which is to improve public service and to preserve the public's faith and confidence in the government, and not the punishment of the public official concerned. Likewise, if the act committed by the public official is indeed inimical to the interests of the State, other legal mechanisms are available to redress the same.
The Ombudsman suggests that although the issue of Andutan's removal from the service is moot, there is an "irresistible justification" to "determine whether or not there remains penalties capable of imposition, like bar from re-entering the public service and forfeiture of benefits." Otherwise stated, since accessory penalties may still be imposed against Andutan, the administrative case itself is not moot and may proceed despite the inapplicability of the principal penalty of removal from office.
We find several reasons that militate against this position.
First, although we have held that the resignation of an official does not render an administrative case moot and academic because accessory penalties may still be imposed, this holding must be read in its proper context. In Pagano v. Nazarro, Jr., indeed, we held:
A case becomes moot and academic only
when there is no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits of the case [Tantoy, Sr. v.Abrogar, G.R. No.
156128,9 May 2005, 458 SCRA 301, 305]. The instant case is not moot and
academic, despite the petitioner's separation from government service.Even if
the most severe of administrative sanctions - that of separation from service -
may no longer be imposed on the petitioner, there are other penalties which may be imposed on her if she is later found guilty
of administrative offenses charged against her, namely, the disqualification to
hold any government office and the forfeiture of benefits.
Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of accessory penalties justifies the continuation of an administrative case. This is a misplaced reading of the case and its ruling.
Esther S. Pagano - who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet - filed her certificate of candidacy for councilor four days after the Provincial Treasurer directed her to explain why no administrative case should be filed against her. The directive arose from allegations that her accountabilities included a cash shortage of P1,424,289.99. She filed her certificate of candidacy under the pretext that since she was deemed ipso facto resigned from office, she was no longer under the administrative jurisdiction of her superiors. Thus, according to Pagano, the administrative complaint had become moot.
We rejected Pagano's position on the principal ground "that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the servicedoes notrender moot the administrative case against him. Resignation is not a way out to evade administrative liability when facing administrative sanction." Our position that accessory penalties are still imposable - thereby negating the mootness of the administrative complaint - merely flows from the fact that Pagano pre-empted the filing of the administrative case against her. It was neither intended to be a stand-alone argument nor would it have justified the continuation of the administrative complaint if Pagano's filing of candidacy/resignation did not reek of irregularities. Our factual findings in Pagano confirm this, viz.:
Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of accessory penalties justifies the continuation of an administrative case. This is a misplaced reading of the case and its ruling.
Esther S. Pagano - who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet - filed her certificate of candidacy for councilor four days after the Provincial Treasurer directed her to explain why no administrative case should be filed against her. The directive arose from allegations that her accountabilities included a cash shortage of P1,424,289.99. She filed her certificate of candidacy under the pretext that since she was deemed ipso facto resigned from office, she was no longer under the administrative jurisdiction of her superiors. Thus, according to Pagano, the administrative complaint had become moot.
We rejected Pagano's position on the principal ground "that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the servicedoes notrender moot the administrative case against him. Resignation is not a way out to evade administrative liability when facing administrative sanction." Our position that accessory penalties are still imposable - thereby negating the mootness of the administrative complaint - merely flows from the fact that Pagano pre-empted the filing of the administrative case against her. It was neither intended to be a stand-alone argument nor would it have justified the continuation of the administrative complaint if Pagano's filing of candidacy/resignation did not reek of irregularities. Our factual findings in Pagano confirm this, viz.:
At the time petitioner filed her
certificate of candidacy, petitioner was already notified by the Provincial
Treasurer that she needed to explain why no administrative charge should be
filed against her, after it discovered the cash shortage ofP1,424,289.99 in her
accountabilities.Moreover, she had already filed her answer.To all intents and
purposes, the administrative
proceedings had already been commenced at the time she was considered separated
from service through her precipitate filing of her certificate of
candidacy.Petitioner's bad faith was manifest when she filed it, fully knowing
that administrative proceedings were being instituted against her as part of
the procedural due process in laying the foundation for an administrative case.
Plainly, our justification for the continuation of the administrative case - notwithstanding Pagano's resignation - was her "bad faith" in filing the certificate of candidacy, and not the availability of accessory penalties.
Second, we agree with the Ombudsman that "fitness to serve in public office is a question of transcendental [importance] and that "preserving the inviolability of public office" compels the state to prevent the "re-entry [to] public service of persons who have demonstrated their absolute lack of fitness to hold public office." However, the State must perform this task within the limits set by law, particularly, the limits of jurisdiction. As earlier stated, under the Ombudsman's theory, the administrative authorities may exercise administrative jurisdiction over subordinates ad infinitum; thus, a public official who has validly severed his ties with the civil service may still be the subject of an administrative complaint up to his deathbed. This is contrary to the law and the public policy behind it.
Lastly, the State is not without remedy against Andutan or any public official who committed violations while in office, but had already resigned or retired therefrom. Under the "threefold liability rule," the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. [53] Even if the Ombudsman may no longer file an administrative case against a public official who has already resigned or retired, the Ombudsman may still file criminal and civil cases to vindicate Andutan's alleged transgressions. In fact, here, the Ombudsman - through the FFIB - filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not only be meted out the penalty of imprisonment, but also the penalties of perpetual disqualification from office, and confiscation or forfeiture of any prohibited interest.
Conclusion
Public office is a public trust. No precept of administrative law is more basic than this statement of what assumption of public office involves. The stability of our public institutions relies on the ability of our civil servants to serve their constituencies well.
While we commend the Ombudsman's resolve in pursuing the present case for violations allegedly committed by Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the Ombudsman's factual findings.
WHEREFORE, we DENY the Office of the Ombudsman's petition for review on certiorari, and AFFIRM the decision of the Court of Appeals in CA-G.R. SP No. 68893, promulgated on July 28, 2004, which annulled and set aside the July 30, 2001 decision of the Office of the Ombudsman, finding Uldarico P. Andutan, Jr. guilty of Gross Neglect of Duty.
LEYNES V. COA (2003)
EN BANC
[ G.R. No. 143596, December 11, 2003 ]
JUDGE TOMAS C. LEYNES, PETITIONER, VS. THE COMMISSION ON AUDIT (COA), HON. GREGORIA S. ONG, DIRECTOR, COMMISSION ON AUDIT AND HON. SALVACION DALISAY, PROVINCIAL AUDITOR, RESPONDENTS.
Facts
Petitioner Judge Tomas C. Leynes who,
at present, is the presiding judge of the Regional Trial Court of Calapan City,
Oriental Mindoro, Branch 40 was formerly assigned to the Municipality of
Naujan, Oriental Mindoro as the sole presiding judge of the Municipal Trial
Court thereof. As such, his salary and representation and transportation
allowance (RATA) were drawn from the budget of the Supreme Court. In addition,
petitioner received a monthly allowance of P944 from the local funds of the Municipality of Naujan starting
1984.
On March 15, 1993, the Sangguniang Bayan of Naujan, through Resolution No. 057, sought the opinion of the Provincial Auditor and the Provincial Budget Officer regarding any budgetary limitation on the grant of a monthly allowance by the municipality to petitioner judge. On May 7, 1993, the Sangguniang Bayan unanimously approved Resolution No. 101 increasing petitioner judge's monthly allowance from P944 to P1,600 (an increase of P656) starting May 1993.By virtue of said resolution, the municipal government (the Municipal Mayor and the Sangguniang Bayan) approved a supplemental budget which was likewise approved by the SangguniangPanlalawiganand the Office of Provincial Budget and Management of Oriental Mindoro. In 1994, the Municipal Government of Naujan again provided for petitioner judge's P1,600 monthly allowance in its annual budget which was again approved by the SangguniangPanlalawiganand the Office of Provincial Budget and Management of Oriental Mindoro.
On February 17, 1994, Provincial Auditor Salvacion M. Dalisay sent a letter to the Municipal Mayor and the Sangguniang Bayan of Naujan directing them to stop the payment of the P1,600 monthly allowance or RATA to petitioner judge and to require the immediate refund of the amounts previously paid to the latter. She opined that the Municipality of Naujan could not grant RATA to petitioner judge in addition to the RATA the latter was already receiving from the Supreme Court. Her directive was based on the following:
On March 15, 1993, the Sangguniang Bayan of Naujan, through Resolution No. 057, sought the opinion of the Provincial Auditor and the Provincial Budget Officer regarding any budgetary limitation on the grant of a monthly allowance by the municipality to petitioner judge. On May 7, 1993, the Sangguniang Bayan unanimously approved Resolution No. 101 increasing petitioner judge's monthly allowance from P944 to P1,600 (an increase of P656) starting May 1993.By virtue of said resolution, the municipal government (the Municipal Mayor and the Sangguniang Bayan) approved a supplemental budget which was likewise approved by the SangguniangPanlalawiganand the Office of Provincial Budget and Management of Oriental Mindoro. In 1994, the Municipal Government of Naujan again provided for petitioner judge's P1,600 monthly allowance in its annual budget which was again approved by the SangguniangPanlalawiganand the Office of Provincial Budget and Management of Oriental Mindoro.
On February 17, 1994, Provincial Auditor Salvacion M. Dalisay sent a letter to the Municipal Mayor and the Sangguniang Bayan of Naujan directing them to stop the payment of the P1,600 monthly allowance or RATA to petitioner judge and to require the immediate refund of the amounts previously paid to the latter. She opined that the Municipality of Naujan could not grant RATA to petitioner judge in addition to the RATA the latter was already receiving from the Supreme Court. Her directive was based on the following:
Section 36, RA No.
7645, General Appropriations Act of 1993
Representation and Transportation Allowances. The following officials and those of equivalent rank as may be determined by the Department of Budget and Management (DBM) while in the actual performance of their respective functions are hereby granted monthly commutable representation and transportation allowances payable from the programmed appropriations provided for their respective offices, not exceeding the rates indicated below . . .
National Compensation Circular No. 67 dated January 1, 1992, of the Department of Budget and Management
Subject: Representation and Transportation Allowances of National Government Officials and Employees
Representation and Transportation Allowances. The following officials and those of equivalent rank as may be determined by the Department of Budget and Management (DBM) while in the actual performance of their respective functions are hereby granted monthly commutable representation and transportation allowances payable from the programmed appropriations provided for their respective offices, not exceeding the rates indicated below . . .
National Compensation Circular No. 67 dated January 1, 1992, of the Department of Budget and Management
Subject: Representation and Transportation Allowances of National Government Officials and Employees
- Funding Source: In all cases, commutable and reimbursable RATA shall be paid from the amount appropriated for the purpose and other personal services savings of the agency or project from where the officials and employees covered under this Circular draw their salaries. No one shall be allowed to collect RATA from more than one source.
Petitioner judge appealed to COA
Regional Director Gregoria S. Ong who, however, upheld the opinion of
Provincial Auditor Dalisay and who added that Resolution No. 101, Series of
1993 of the Sangguniang Bayan of
Naujan failed to comply with Section 3 of Local Budget Circular No. 53 dated
September 1, 1993 outlining the conditions for the grant of allowances to
judges and other national officials or employees by the local government units
(LGUs). Section 3 of the said budget circular provides that:
Sec. 3 Allowances. — LGUs may grant
allowances/additional compensation to the national government
officials/employees assigned to their locality at rates authorized by law,
rules and regulations and subject to the following preconditions:
- That the annual income or finances of the municipality, city or province as certified by the Accountant concerned will allow the grant of the allowances/additional compensation without exceeding the general limitations for personal services under Section 325 of RA 7160;
- That the budgetary requirements under Section 324 of RA 7160 including the full requirement of RA 6758 have been satisfied and provided fully in the budget as certified by the Budget Officer and COA representative in the LGU concerned;
- That the LGU has fully implemented the devolution of personnel/functions in accordance with the provisions of RA 7160;
- That the LGU has already created mandatory positions prescribed in RA 7160; and
- That similar allowances/additional compensation are not granted by the national government to the officials/employees assigned to the LGU.
Petitioner judge appealed the
unfavorable resolution of the Regional Director to the Commission on Audit. In the
meantime, a disallowance of the payment of the P1,600 monthly allowance to
petitioner was issued. Thus he received his P1,600 monthly allowance from the
Municipality of Naujan only for the period May 1993 to January 1994.
On September 14, 1999, the COA issued its decision affirming the resolution of Regional Director Gregoria S. Ong:
On September 14, 1999, the COA issued its decision affirming the resolution of Regional Director Gregoria S. Ong:
The main issue . . . is whether or not
the Municipality of Naujan, Oriental Mindoro can validly provide RATA to its
Municipal Judge, in addition to that provided by the Supreme Court.
Generally, the grant of (RATA) [sic] to qualified national government officials and employees pursuant to Section 36 of R.A. 7645 [General Appropriations Act of 1993] and NCC No. 67 dated 01 January 1992 is subject to the following conditions to wit:
Generally, the grant of (RATA) [sic] to qualified national government officials and employees pursuant to Section 36 of R.A. 7645 [General Appropriations Act of 1993] and NCC No. 67 dated 01 January 1992 is subject to the following conditions to wit:
- Payable from the programmed /appropriated amount and others from personal services savings of the respective offices where the officials or employees draw their salaries;
- Not exceeding the rates prescribed by the Annual General Appropriations Act;
- Officials /employees on detail with other offices or assigned to serve other offices or agencies shall be paid from their parent agencies;
- No one shall be allowed to collect RATA from more than one source.
On the other hand, the municipal
government may provide additional allowances and other benefits to judges and
other national government officials or employees assigned or stationed in the
municipality, provided, that the finances of the municipality allow the grant
thereof pursuant to Section 447, Par. 1 (xi), R.A. 7160, and provided further,
that similar allowance/additional compensation are not granted by the national
government to the official/employee assigned to the local government unit as
provided under Section 3(e) of Local Budget Circular No. 53, dated 01 September
1993.
The conflicting provisions of Section 447, Par. (1) (xi) of the Local Government Code of 1991 and Section 36 of the General Appropriations Act of 1993 [RA 7645] have been harmonized by the Local Budget Circular No. 53 dated 01 September 1993, issued by the Department of Budget and Management pursuant to its powers under Section 25 and Section 327 of the Local Government Code. The said circular must be adhered to by the local government units particularly Section 3 thereof which provides the implementing guidelines of Section 447, Par. (1) (xi) of the Local Government Code of 1991 in the grant of allowances to national government officials/employees assigned or stationed in their respective local government units.
Consequently, the subject SB Resolution No. 101 dated 11 May 1993 of the Sangguniang Bayan of Naujan, Oriental Mindoro, having failed to comply with the inherent precondition as defined in Section 3 (e). . . is null and void. Furthermore, the Honorable Judge Tomas C. Leynes, being a national government official is prohibited to receive additional RATA from the local government fund pursuant to Section 36 of the General Appropriations Act (R.A. 7645 for 1993) and National Compensation Circular No. 67 dated 1 January 1992.
The conflicting provisions of Section 447, Par. (1) (xi) of the Local Government Code of 1991 and Section 36 of the General Appropriations Act of 1993 [RA 7645] have been harmonized by the Local Budget Circular No. 53 dated 01 September 1993, issued by the Department of Budget and Management pursuant to its powers under Section 25 and Section 327 of the Local Government Code. The said circular must be adhered to by the local government units particularly Section 3 thereof which provides the implementing guidelines of Section 447, Par. (1) (xi) of the Local Government Code of 1991 in the grant of allowances to national government officials/employees assigned or stationed in their respective local government units.
Consequently, the subject SB Resolution No. 101 dated 11 May 1993 of the Sangguniang Bayan of Naujan, Oriental Mindoro, having failed to comply with the inherent precondition as defined in Section 3 (e). . . is null and void. Furthermore, the Honorable Judge Tomas C. Leynes, being a national government official is prohibited to receive additional RATA from the local government fund pursuant to Section 36 of the General Appropriations Act (R.A. 7645 for 1993) and National Compensation Circular No. 67 dated 1 January 1992.
IssueI
WHETHER OR NOT RESOLUTION NO. 1O1, SERIES OF 1993 OF NAUJAN, ORIENTAL MINDORO, WHICH GRANTED ADDITIONAL ALLOWANCE TO THE MUNICIPAL TRIAL JUDGE OF NAUJAN, ORIENTAL MINDORO AND INCREASING HIS CURRENT REPRESENTATION AND TRAVELLING ALLOWANCE (RATA) TO AN AMOUNT EQUIVALENT TO THAT RECEIVED MONTHLY BY SANGGUNIANG MEMBERS IN PESOS: ONE THOUSAND SIX HUNDRED (P1,600.00) EFFECTIVE 1993, IS VALID.
WHETHER OR NOT THE POWER OF MUNICIPAL GOVERNMENTS TO GRANT ADDITIONAL ALLOWANCES AND OTHER BENEFITS TO NATIONAL GOVERNMENT EMPLOYEES STATIONED IN THEIR MUNICIPALITY IS VERY EXPLICIT AND UNEQUIVOCAL UNDER THE LOCAL GOVERNMENT CODE OF 1991 PARTICULARLY SECTION 447 IN RELATION TO SECTIONS 17 AND 22 THEREOF.
WHETHER OR NOT THE DEPARTMENT OF BUDGET AND MANAGEMENT (DBM) CAN, BY THE ISSUANCE OF BUDGET CIRCULARS, RESTRICT A MUNICIPAL GOVERNMENT FROM EXERCISING ITS GIVEN LEGISLATIVE POWERS OF PROVIDING ADDITIONAL ALLOWANCES AND OTHER BENEFITS TO NATIONAL EMPLOYEES STATIONED OR ASSIGNED TO THEIR MUNICIPALITY FOR AS LONG AS THEIR FINANCES SO ALLOW.
WHETHER OR NOT THE LOCAL GOVERNMENT CODE OF 1991 PARTICULARLY SECTION 447 (a) (1) (xi) WAS EXPRESSLY OR IMPLIEDLY REPEALED OR MODIFIED BY REPUBLIC ACT 7645 AND THE GENERAL APPROPRIATIONS ACT OF 1993.
WHETHER OR NOT PETITIONER WAS ENTITLED TO RECEIVE THE ADDITIONAL ALLOWANCES GRANTED TO HIM BY THE MUNICIPALITY OF NAUJAN, ORIENTAL MINDORO BY VIRTUE OF ITS RESOLUTION NO. 101, SERIES OF 1993.
Ruling
The court rule in favor of petitioner
judge. Respondent COA erred in opposing the grant of the P1,600 monthly
allowance by the Municipality of Naujan to petitioner Judge Leynes.
DISCUSSION OF OUR RULING
Section 447(a)(1)(xi) of RA 7160, the Local Government Code of 1991, provides:
DISCUSSION OF OUR RULING
Section 447(a)(1)(xi) of RA 7160, the Local Government Code of 1991, provides:
(a) The
sangguniangbayan, as the legislative body of the municipality, shall enact
ordinances, approve resolutions and appropriate funds for the general welfare
of the municipality and its inhabitants . . ., and shall:
|
Approve
ordinances and pass resolutions necessary for an efficient and effective
municipal government, and in this connection shall:
|
||
|
x xxxxxxxx
|
||
|
(xi)
When the finances of the municipal
government allow, provide for additional allowances and other benefits
to judges, prosecutors, public elementary and high school teachers, and other
national government officials stationed in or assigned to the municipality;
(emphasis ours)
|
||
Respondent COA, however, contends that
the above section has been repealed, modified or amended by NCC No. 67 dated
January 1, 1992, RA 7645 (the General Appropriations Act of 1993) and LBC No.
53 dated September 1, 1993.[16]
It is elementary in statutory construction that an administrative circular cannot supersede, abrogate, modify or nullify a statute. A statute is superior to an administrative circular, thus the latter cannot repeal or amend it. In the present case, NCC No. 67, being a mere administrative circular, cannot repeal a substantive law like RA 7160.
It is also an elementary principle in statutory construction that repeal of statutes by implication is not favored, unless it is manifest that the legislature so intended. The legislature is assumed to know the existing laws on the subject and cannot be presumed to have enacted inconsistent or conflicting statutes.Respondent COA alleges that Section 36 of RA 7645 (the GAA of 1993) repealed Section 447(a)(l)(xi) of RA 7160 (the LGC of 1991). A review of the two laws, however, shows that this was not so. Section 36 of RA 7645 merely provided for the different rates of RATA payable to national government officials or employees, depending on their position, and stated that these amounts were payable from the programmed appropriations of the parent agencies to which the concerned national officials or employees belonged. Furthermore, there was no other provision in RA 7645 from which a repeal of Section 447(a) (l)(xi) of RA 7160 could be implied. In the absence, therefore, of any clear repeal of Section 447(a)(l)(xi) of RA 7160, we cannot presume such intention on the part of the legislature.
Moreover, the presumption against implied repeal becomes stronger when, as in this case, one law is special and the other is general. The principle is expressed in the maxim generaliaspecialibus non derogant, a general law does not nullify a specific or special law. The reason for this is that the legislature, in passing a law of special character, considers and makes special provisions for the particular circumstances dealt with by the special law. This being so, the legislature, by adopting a general law containing provisions repugnant to those of the special law and without making any mention of its intention to amend or modify such special law, cannot be deemed to have intended an amendment, repeal or modification of the latter.
In this case, RA 7160 (the LGC of 1991) is a special law which exclusively deals with local government units (LGUs), outlining their powers and functions in consonance with the constitutionally mandated policy of local autonomy. RA 7645 (the GAA of 1993), on the other hand, was a general law which outlined the share in the national fund of all branches of the national government. RA 7645 therefore, being a general law, could not have, by mere implication, repealed RA 7160. Rather, RA 7160 should be taken as the exception to RA 7645 in the absence of circumstances warranting a contrary conclusion.
The controversy actually centers on the seemingly sweeping provision in NCC No. 67 which states that "no one shall be allowed to collect RATA from more than one source." Does this mean that judges cannot receive allowances from LGUs in addition to the RATA from the Supreme Court? For reasons that will hereinafter be discussed, we answer in the negative.
The pertinent provisions of NCC No. 67 read:
It is elementary in statutory construction that an administrative circular cannot supersede, abrogate, modify or nullify a statute. A statute is superior to an administrative circular, thus the latter cannot repeal or amend it. In the present case, NCC No. 67, being a mere administrative circular, cannot repeal a substantive law like RA 7160.
It is also an elementary principle in statutory construction that repeal of statutes by implication is not favored, unless it is manifest that the legislature so intended. The legislature is assumed to know the existing laws on the subject and cannot be presumed to have enacted inconsistent or conflicting statutes.Respondent COA alleges that Section 36 of RA 7645 (the GAA of 1993) repealed Section 447(a)(l)(xi) of RA 7160 (the LGC of 1991). A review of the two laws, however, shows that this was not so. Section 36 of RA 7645 merely provided for the different rates of RATA payable to national government officials or employees, depending on their position, and stated that these amounts were payable from the programmed appropriations of the parent agencies to which the concerned national officials or employees belonged. Furthermore, there was no other provision in RA 7645 from which a repeal of Section 447(a) (l)(xi) of RA 7160 could be implied. In the absence, therefore, of any clear repeal of Section 447(a)(l)(xi) of RA 7160, we cannot presume such intention on the part of the legislature.
Moreover, the presumption against implied repeal becomes stronger when, as in this case, one law is special and the other is general. The principle is expressed in the maxim generaliaspecialibus non derogant, a general law does not nullify a specific or special law. The reason for this is that the legislature, in passing a law of special character, considers and makes special provisions for the particular circumstances dealt with by the special law. This being so, the legislature, by adopting a general law containing provisions repugnant to those of the special law and without making any mention of its intention to amend or modify such special law, cannot be deemed to have intended an amendment, repeal or modification of the latter.
In this case, RA 7160 (the LGC of 1991) is a special law which exclusively deals with local government units (LGUs), outlining their powers and functions in consonance with the constitutionally mandated policy of local autonomy. RA 7645 (the GAA of 1993), on the other hand, was a general law which outlined the share in the national fund of all branches of the national government. RA 7645 therefore, being a general law, could not have, by mere implication, repealed RA 7160. Rather, RA 7160 should be taken as the exception to RA 7645 in the absence of circumstances warranting a contrary conclusion.
The controversy actually centers on the seemingly sweeping provision in NCC No. 67 which states that "no one shall be allowed to collect RATA from more than one source." Does this mean that judges cannot receive allowances from LGUs in addition to the RATA from the Supreme Court? For reasons that will hereinafter be discussed, we answer in the negative.
The pertinent provisions of NCC No. 67 read:
|
3.1.
|
Payment of RATA,
whether commutable or reimbursable, shall be in accordance with the rates
prescribed for each of the following officials and employees and those of
equivalent ranks, and the conditions enumerated under the pertinent sections
of the General Provisions of the annual General Appropriations Act (GAA):
|
|
|
|
|
|
- Rules and Regulations:
- Funding Source:
In all cases, commutable and reimbursable RATA shall be paid from the amount appropriated for the purpose and other personal services savings of the agency or project from where the officials and employees covered under this Circular draw their salaries. No one shall be allowed to collect RATA from more than one source. (emphasis ours)
In construing NCC No. 67, we apply the
principle in statutory construction that force and effect should not be
narrowly given to isolated and disjoined clauses of the law but to its spirit,
broadly taking all its provisions together in one rational view. Because a
statute is enacted as a whole and not in parts or sections, that is, one part
is as important as the others, the statute should be construed and given effect
as a whole. A provision or section which is unclear by itself may be clarified
by reading and construing it in relation to the whole statute.
Taking NCC No. 67 as a whole then, what it seeks to prevent is the dual collection of RATA by a national official from the budgets of "more than one national agency." We emphasize that the other source referred to in the prohibition is another national agency. This can be gleaned from the fact that the sentence "no one shall be allowed to collect RATA from more than one source" (the controversial prohibition) immediately follows the sentence that RATA shall be paid from the budget of the national agency where the concerned national officials and employees draw their salaries. The fact that the other source is another national agency is supported by RA 7645 (the GAA of 1993) invoked by respondent COA itself and, in fact, by all subsequent GAAs for that matter, because the GAAs all essentially provide that (1) the RATA of national officials shall be payable from the budgets of their respective national agencies and (2) those officials on detail with other national agencies shall be paid their RATA only from the budget of their parent national agency:
Taking NCC No. 67 as a whole then, what it seeks to prevent is the dual collection of RATA by a national official from the budgets of "more than one national agency." We emphasize that the other source referred to in the prohibition is another national agency. This can be gleaned from the fact that the sentence "no one shall be allowed to collect RATA from more than one source" (the controversial prohibition) immediately follows the sentence that RATA shall be paid from the budget of the national agency where the concerned national officials and employees draw their salaries. The fact that the other source is another national agency is supported by RA 7645 (the GAA of 1993) invoked by respondent COA itself and, in fact, by all subsequent GAAs for that matter, because the GAAs all essentially provide that (1) the RATA of national officials shall be payable from the budgets of their respective national agencies and (2) those officials on detail with other national agencies shall be paid their RATA only from the budget of their parent national agency:
Section 36, RA 7645,
General Appropriations Act of 1993:
Representation and Transportation Allowances. The following officials and those of equivalent rank as may be determined by the Department of Budget and Management (DBM) while in the actual performance of their respective functions are hereby granted monthly commutable representation and transportation allowances payable from the programmed appropriations provided for their respective offices, not exceeding the rates indicated below, which shall apply to each type of allowance:
Officials on detail with other offices, including officials of the Commission of Audit assigned to serve other offices or agencies, shall be paid the allowance herein authorized from the appropriations of their parent agencies. (emphasis ours)
Representation and Transportation Allowances. The following officials and those of equivalent rank as may be determined by the Department of Budget and Management (DBM) while in the actual performance of their respective functions are hereby granted monthly commutable representation and transportation allowances payable from the programmed appropriations provided for their respective offices, not exceeding the rates indicated below, which shall apply to each type of allowance:
Officials on detail with other offices, including officials of the Commission of Audit assigned to serve other offices or agencies, shall be paid the allowance herein authorized from the appropriations of their parent agencies. (emphasis ours)
Clearly
therefore, the prohibition in NCC No. 67 is only against the dual or multiple
collection of RATA by a national official from the budgets of two or more
national agencies. Stated otherwise, when a national official is on detail with
another national agency, he should get his RATA only from his parent national
agency and not from the other national agency he is detailed to.
Since the other source referred in the controversial prohibition is another national agency, said prohibition clearly does not apply to LGUs like the Municipality of Naujan. National agency of course refers to the different offices, bureaus and departments comprising the national government. The budgets of these departments or offices are fixed annually by Congress in the General Appropriations Act. An LGU is obviously not a national agency. Its annual budget is fixed by its own legislative council (Sangguniang Bayan, Panlungsodor Panlalawigan), not by Congress. Without doubt, NCC No. 67 does not apply to LGUs.
The prohibition in NCC No. 67 is in fact an administrative tool of the DBM to prevent the much-abused practice of multiple allowances, thus standardizing the grant of RATA by national agencies. Thus, the purpose clause of NCC No. 67 reads:
Since the other source referred in the controversial prohibition is another national agency, said prohibition clearly does not apply to LGUs like the Municipality of Naujan. National agency of course refers to the different offices, bureaus and departments comprising the national government. The budgets of these departments or offices are fixed annually by Congress in the General Appropriations Act. An LGU is obviously not a national agency. Its annual budget is fixed by its own legislative council (Sangguniang Bayan, Panlungsodor Panlalawigan), not by Congress. Without doubt, NCC No. 67 does not apply to LGUs.
The prohibition in NCC No. 67 is in fact an administrative tool of the DBM to prevent the much-abused practice of multiple allowances, thus standardizing the grant of RATA by national agencies. Thus, the purpose clause of NCC No. 67 reads:
This Circular is being issued to ensure
uniformity and consistency of actions on claims for representation and
transportation allowance (RATA) which is primarily granted by law to national
government officials and employees to cover expenses incurred in the discharge
or performance of their duties and responsibilities.
By no stretch of the imagination can
NCC No. 67 be construed as nullifying the power of LGUs to grant allowances to
judges under the Local Government Code of 1991. It was issued primarily to make
the grant of RATA to national officials under the national budget uniform. In
other words, it applies only to the national funds administered by the DBM, not
the local funds of LGUs.
To rule against the power of LGUs to grant allowances to judges as what respondent COA would like us to do will subvert the principle of local autonomy zealously guaranteed by the Constitution. The Local Government Code of 1991 was specially promulgated by Congress to ensure the autonomy of local governments as mandated by the Constitution. By upholding, in the present case, the power of LGUs to grant allowances to judges and leaving to their discretion the amount of allowances they may want to grant, depending on the availability of local funds, we ensure the genuine and meaningful local autonomy of LGUs.
We now discuss the next contention of respondent COA: that the resolution of the Sangguniang Bayan of Naujan granting the P1,600 monthly allowance to petitioner judge was null and void because it failed to comply with LBC No. 53 dated September 1, 1993:
To rule against the power of LGUs to grant allowances to judges as what respondent COA would like us to do will subvert the principle of local autonomy zealously guaranteed by the Constitution. The Local Government Code of 1991 was specially promulgated by Congress to ensure the autonomy of local governments as mandated by the Constitution. By upholding, in the present case, the power of LGUs to grant allowances to judges and leaving to their discretion the amount of allowances they may want to grant, depending on the availability of local funds, we ensure the genuine and meaningful local autonomy of LGUs.
We now discuss the next contention of respondent COA: that the resolution of the Sangguniang Bayan of Naujan granting the P1,600 monthly allowance to petitioner judge was null and void because it failed to comply with LBC No. 53 dated September 1, 1993:
Sec. 3 Allowances. — LGUs may grant
allowances/additional compensation to the national government
officials/employees assigned to their locality at rates authorized by law,
rules and regulations and subject to the following preconditions:
- That the annual income or finances of the municipality, city or province as certified by the Accountant concerned will allow the grant of the allowances/additional compensation without exceeding the general limitations for personal services under Section 325 of RA 7160;
- That the budgetary requirements under Section 324 of RA 7160 including the full requirement of RA 6758 have been satisfied and provided fully in the budget as certified by the Budget Officer and COA representative in the LGU concerned;
- That the LGU has fully implemented the devolution of personnel/functions in accordance with the provisions of RA 7160;
- That the LGU has already created mandatory positions prescribed in RA 7160.
- That similar allowances/additional compensation are not granted by the national government to the officials/employees assigned to the LGU.
Though LBC No. 53 of the DBM may be
considered within the ambit of the President's power of general supervision
over LGUs, we rule that Section 3, paragraph (e) thereof is invalid. RA 7160,
the Local Government Code of 1991, clearly provides that provincial, city and
municipal governments may grant allowances to judges as long as their finances
allow. Section 3, paragraph (e) of LBC No. 53, by outrightly prohibiting LGUs
from granting allowances to judges whenever such allowances are (1) also
granted by the national government or (2) similar to the allowances granted by
the national government, violates Section 447(a)(l)(xi) of the Local Government
Code of 1991.As already stated, a circular must conform to the law it seeks to
implement and should not modify or amend it.
Moreover, by prohibiting LGUs from granting allowances similar to the allowances granted by the national government, Section 3 (e) of LBC No. 53 practically prohibits LGUs from granting allowances to judges and, in effect, totally nullifies their statutory power to do so. Being unduly restrictive therefore of the statutory power of LGUs to grant allowances to judges and being violative of their autonomy guaranteed by the Constitution, Section 3, paragraph (e) of LBC No. 53 is hereby declared null and void.
Paragraphs (a) to (d) of said circular, however, are valid as they are in accordance with Sections 324and 325 of the Local Government Code of 1991; these respectively provide for the budgetary requirements and general limitations on the use of provincial, city and municipal funds. Paragraphs (a) to (d) are proper guidelines for the condition provided in Sections 447, 458 and 468 of the Local Government Code of 1991 that LGUs may grant allowances to judges if their funds allow.
Respondent COA also argues that Resolution No. 101 of the Sangguniang Bayan of Naujan failed to comply with paragraphs (a) to (d) of LBC No. 53, thus it was null and void.
Guidelines (a) to (d) were met when the Sangguniang Panlalawiganof Oriental Mindoro approved Resolution No. 101 of the Sangguniang Bayan of Naujan granting the P1,600 monthly allowance to petitioner judge as well as the corresponding budgets of the municipality providing for the said monthly allowance to petitioner judge. Under Section 327 of the Local Government Code of 1991, the Sangguniang Panlalawigan was specifically tasked to review the appropriation ordinances of its component municipalities to ensure compliance with Sections 324 and 325 of the Code. Considering said duty of the Sangguniang Panlalawigan, we will assume, in the absence of proof to the contrary, that the Sangguniang Panlalawiganof Oriental Mindoro performed what the law required it to do, that is, review the resolution and the corresponding budgets of the Municipality of Naujan to make sure that they complied with Sections 324 and 325 of the Code.We presume the regularity of the SangguniangPanlalawigan's official act.
Moreover, it is well-settled that an ordinance must be presumed valid in the absence of evidence showing that it is not in accordance with the law. Respondent COA had the burden of proving that Resolution No. 101 of the Sangguniang Bayan of Naujan did not comply with the condition provided in Section 447 of the Code, the budgetary requirements and general limitations on the use of municipal funds provided in Sections 324 and 325 of the Code and the implementing guidelines issued by the DBM, i.e., paragraphs (a) to (d), Section 3 of LBC No. 53. Respondent COA also had the burden of showing that the SangguniangPanlalawigan of Oriental Mindoro erroneously approved said resolution despite its non-compliance with the requirements of the law. It failed to discharge such burden. On the contrary, we find that the resolution of the Municipality of Naujan granting the P1,600 monthly allowance to petitioner judge fully complied with the law. Thus, we uphold its validity.
In sum, we hereby affirm the power of the Municipality of Naujan to grant the questioned allowance to petitioner Judge Leynes in accordance with the constitutionally mandated policy of local autonomy and the provisions of the Local Government Code of 1991. We also sustain the validity of Resolution No. 101, Series of 1993, of the Sangguniang Bayan of Naujan for being in accordance with the law.
WHEREFORE, the petition is hereby GRANTED. The assailed decision dated September 14, 1999 of the Commission of Audit is hereby SET ASIDE and Section 3, paragraph (e) of LBC No. 53 is hereby declared NULL and VOID.
Moreover, by prohibiting LGUs from granting allowances similar to the allowances granted by the national government, Section 3 (e) of LBC No. 53 practically prohibits LGUs from granting allowances to judges and, in effect, totally nullifies their statutory power to do so. Being unduly restrictive therefore of the statutory power of LGUs to grant allowances to judges and being violative of their autonomy guaranteed by the Constitution, Section 3, paragraph (e) of LBC No. 53 is hereby declared null and void.
Paragraphs (a) to (d) of said circular, however, are valid as they are in accordance with Sections 324and 325 of the Local Government Code of 1991; these respectively provide for the budgetary requirements and general limitations on the use of provincial, city and municipal funds. Paragraphs (a) to (d) are proper guidelines for the condition provided in Sections 447, 458 and 468 of the Local Government Code of 1991 that LGUs may grant allowances to judges if their funds allow.
Respondent COA also argues that Resolution No. 101 of the Sangguniang Bayan of Naujan failed to comply with paragraphs (a) to (d) of LBC No. 53, thus it was null and void.
Guidelines (a) to (d) were met when the Sangguniang Panlalawiganof Oriental Mindoro approved Resolution No. 101 of the Sangguniang Bayan of Naujan granting the P1,600 monthly allowance to petitioner judge as well as the corresponding budgets of the municipality providing for the said monthly allowance to petitioner judge. Under Section 327 of the Local Government Code of 1991, the Sangguniang Panlalawigan was specifically tasked to review the appropriation ordinances of its component municipalities to ensure compliance with Sections 324 and 325 of the Code. Considering said duty of the Sangguniang Panlalawigan, we will assume, in the absence of proof to the contrary, that the Sangguniang Panlalawiganof Oriental Mindoro performed what the law required it to do, that is, review the resolution and the corresponding budgets of the Municipality of Naujan to make sure that they complied with Sections 324 and 325 of the Code.We presume the regularity of the SangguniangPanlalawigan's official act.
Moreover, it is well-settled that an ordinance must be presumed valid in the absence of evidence showing that it is not in accordance with the law. Respondent COA had the burden of proving that Resolution No. 101 of the Sangguniang Bayan of Naujan did not comply with the condition provided in Section 447 of the Code, the budgetary requirements and general limitations on the use of municipal funds provided in Sections 324 and 325 of the Code and the implementing guidelines issued by the DBM, i.e., paragraphs (a) to (d), Section 3 of LBC No. 53. Respondent COA also had the burden of showing that the SangguniangPanlalawigan of Oriental Mindoro erroneously approved said resolution despite its non-compliance with the requirements of the law. It failed to discharge such burden. On the contrary, we find that the resolution of the Municipality of Naujan granting the P1,600 monthly allowance to petitioner judge fully complied with the law. Thus, we uphold its validity.
In sum, we hereby affirm the power of the Municipality of Naujan to grant the questioned allowance to petitioner Judge Leynes in accordance with the constitutionally mandated policy of local autonomy and the provisions of the Local Government Code of 1991. We also sustain the validity of Resolution No. 101, Series of 1993, of the Sangguniang Bayan of Naujan for being in accordance with the law.
WHEREFORE, the petition is hereby GRANTED. The assailed decision dated September 14, 1999 of the Commission of Audit is hereby SET ASIDE and Section 3, paragraph (e) of LBC No. 53 is hereby declared NULL and VOID.
G.R. No. 191084, March 25, 2010
JOSELITO R. MENDOZA, PETITIONER, VS. COMMISSION ON ELECTIONS AND ROBERTO M. PAGDANGANAN, RESPONDENTS.
Facts
Petitioner Joselito
R. Mendoza was proclaimed the winner of the 2007 gubernatorial election for the
province of Bulacan, besting respondent Roberto M. Pagdanganan by a margin of
15,732 votes. On 1 June 2007, respondent filed the Election Protest which, anchored on the massive electoral
fraud allegedly perpetrated by petitioner, was raffled to the Second Division of the
Commission on Elections (COMELEC) as EPC No. 2007-44. With petitioner's filing
of his Answer with Counter-Protest
on 18 June 2007, the COMELEC proceeded to conduct the preliminary conference
and to order a revision of the ballots from the contested precincts indicated
in said pleadings.
Upon the evidence adduced and the memoranda subsequently filed by the parties, the COMELEC Second Division went on to render the 1 December 2009 Resolution, which annulled and set aside petitioner's proclamation as governor of Bulacan and proclaimed respondent duly elected to said position by a winning margin of 4,321 votes. Coupled with a directive to the Department of Interior and Local Government to implement the same, the resolution ordered petitioner to immediately vacate said office, to cease and desist from discharging the functions pertaining thereto and to cause a peaceful turn-over thereof to respondent.
Dissatisfied, petitioner filed a Motion for Reconsideration of the foregoing resolution with the COMELEC En Banc. Against respondent's Motion for Execution of Judgment Pending Motion for Reconsideration, petitioner also filed an Opposition to the Motion for Execution before the COMELEC Second Division. On 8 February 2010, however, the COMELEC En Banc issued a Resolution, effectively disposing of the foregoing motions/incidents in this wise:
Upon the evidence adduced and the memoranda subsequently filed by the parties, the COMELEC Second Division went on to render the 1 December 2009 Resolution, which annulled and set aside petitioner's proclamation as governor of Bulacan and proclaimed respondent duly elected to said position by a winning margin of 4,321 votes. Coupled with a directive to the Department of Interior and Local Government to implement the same, the resolution ordered petitioner to immediately vacate said office, to cease and desist from discharging the functions pertaining thereto and to cause a peaceful turn-over thereof to respondent.
Dissatisfied, petitioner filed a Motion for Reconsideration of the foregoing resolution with the COMELEC En Banc. Against respondent's Motion for Execution of Judgment Pending Motion for Reconsideration, petitioner also filed an Opposition to the Motion for Execution before the COMELEC Second Division. On 8 February 2010, however, the COMELEC En Banc issued a Resolution, effectively disposing of the foregoing motions/incidents in this wise:
WHEREFORE,
in view of the foregoing, the Commission En
BancDENIES the Motion for Reconsideration for lack of merit. The
Resolution of the Commission (Second Division) promulgated on December 1, 2009 ANNULLING
the proclamation of JOSELITO R. MENDOZA as the duly elected Governor of
Bulacan and DECLARING ROBERTO M. PAGDANGANAN as duly elected to said
Office is AFFIRMED with modification.
ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF EXECUTION directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer to implement the Resolution of the Commission (Second Division) dated December 1, 2009 and this Resolution of the Commission En Banc by ordering JOSELITO R. MENDOZA to CEASE and DESIST from performing the functions of Governor of the Province of Bulacan and to VACATE said office in favor of ROBERTO M. PAGDANGANAN.
ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF EXECUTION directing the Provincial Election Supervisor of Bulacan, in coordination with the DILG Provincial Operations Officer to implement the Resolution of the Commission (Second Division) dated December 1, 2009 and this Resolution of the Commission En Banc by ordering JOSELITO R. MENDOZA to CEASE and DESIST from performing the functions of Governor of the Province of Bulacan and to VACATE said office in favor of ROBERTO M. PAGDANGANAN.
Let a copy of this Resolution be furnished the Secretary of the Department of Interior and Local Government, the Provincial Election Supervisor of Bulacan, and the DILG Provincial Operations Officer of the Province of Bulacan. (Underscoring supplied)
On 11 February 2010, petitioner filed before the COMELEC an Urgent Motion to Recall the Resolution Promulgated on February 8, 2010 on the following grounds: (a) lack of concurrence of the majority of the members of the Commission pursuant to Section 5, Rule 3 of the COMELEC Rules of Procedure; (b) lack of re-hearing pursuant to Section 6, Rule 18 of the Rules; and (c) lack of notice for the promulgation of the resolution pursuant to Section 5, Rule 18 of said Rules. Invoking Section 13, Rule 18 of the same Rules, petitioner additionally argued that the resolution pertained to an ordinary action and, as such, can only become final and executory after 30 days from its promulgation.
On 12 February 2010, petitioner filed the instant Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Order and Writ of Preliminary Injunction. Directed against the 8 February 2010 Resolution of the COMELEC En Banc, the petition is noticeably anchored on the same grounds raised in petitioner's urgent motion to recall the same resolution before the COMELEC. In addition, the petitioner disputes the appreciation and result of the revision of the contested ballots.
In the meantime, it appears that the COMELECEn Banc issued a 10 February 2010 Order, scheduling the case for re-hearing on 15 February 2010, on the ground that "there was no majority vote of the members obtained in the Resolution of the Commission En Banc promulgated on February 8, 2010." At said scheduled re-hearing, it further appears that the parties agreed to submit the matter for resolution by the COMELEC En Banc upon submission of their respective memoranda, without further argument. As it turned out, the deliberations which ensued again failed to muster the required majority vote since, with three (3) Commissioners not taking part in the voting, and only one dissent therefrom, the assailed 1 December 2009 Resolution of the COMELEC Second Division only garnered three concurrences.
In their respective Comments thereto, both respondent and the Office of the Solicitor General argue that, in addition to its premature filing, the petition at bench violated the rule against forum shopping. Claiming that he received the 10 February 2010 Order of the COMELEC En Banc late in the morning of 12 February 2010 or when the filing of the petition was already underway, petitioner argued that: (a) he apprised the Court of the pendency of his Urgent Motion to Recall the Resolution Promulgated on 8 February 2010; and, (b) that the writ of execution ensconced in said resolution compelled him to resort to the petition for certiorari before us.
On 4 March 2010, the COMELEC En Banc issued an Order for the issuance of a Writ of Execution directing the implementation of the 1 December 2009 Resolution of the COMELEC Second Division. While the COMELEC Electoral Contests Adjudication Department (ECAD) issued the corresponding Writ of Execution on 5 March 2010, the record shows that COMELEC En Banc issued an Order on the same date, directing the ECAD to deliver said 4 March 2010 Order and 5 March 2010 Writ of Execution by personal service to the parties. Aggrieved, petitioner filed the following motions with the COMELEC En Banc on 5 March 2010, viz.: (a) Urgent Motion to Declare Null and Void and Recall Latest En Banc Resolution Dated March 4, 2010; and, (b) Urgent Motion to Set Aside 4 March 2010 En Banc Resolution Granting Protestant's Motion for Execution Pending Motion for Reconsideration.
On 8 March 2010, petitioner filed before us a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a Temporary Restraining Order or a Status Quo Order. Contending that respondent's protest should have been dismissed when no majority vote was obtained after the re-hearing in the case, petitioner argues that: (a) the 4 March 2010 Order and 5 March 2010 Writ of Execution are null and void; (b) no valid decision can be rendered by the COMELEC En Banc without the appreciation of the original ballots; (c) the COMELEC ignored the Court's ruling in the recent case of Corral v. Commission on Elections;and (d) the foregoing circumstances are indicative of the irregularities which attended the adjudication of the case before the Division and En Banc levels of the COMELEC.
Despite receipt of respondent'sMost Respectful Urgent Manifestation which once again called attention to petitioner's supposed forum shopping, the Court issued a Resolution dated 9 March 2010 granting the Status Quo Ante Order sought in the petition. With respondent's filing of a Manifestation and Comment to said supplemental pleading on 10 March 2010, petitioner filed a Manifestation with Motion to Appreciate Ballots Invalidated as Written by One Person and Marked Ballot on 12 March 2010.
Issue
More than
the justifications petitioner proffers for the filing of the petition at bench,
the public interest involved in the case militates against the dismissal of the
pleading on technical grounds like forum shopping. On the other hand, to rule
that petitioner should have filed a new petition to challenge the 4 March 2010 Order of
the COMELEC En Banc is
to disregard the liberality traditionally accorded amended and
supplemental pleadings and the very purpose for which supplemental pleadings
are allowed under Section 6, Rule 10 of the 1997 Rules of Civil Procedure.[3] More importantly, such a course of action
would clearly be violative of the injunction against multiplicity of suits
enunciated in a long catena of
decisions handed down by this Court.
ruling
Acting on
petitioner's motion for reconsideration of the 1 December 2009 Resolution issued by the
COMELEC Second Division, the COMELEC En
Banc, as stated, initially issued the Resolution dated 8 February
2010, denying the motion for lack of merit and declaring the same resolution
immediately executory. However, even before petitioner's filing of his Urgent Motion to Recall the Resolution
Promulgated on 8 February 2010 and the instant Petition for Certiorari with an Urgent
Prayer for the Issuance of a Temporary Restraining Order and/or a Status Quo Order and Writ of
Preliminary Injunction, the record shows that the COMELEC En Banc issued the 10 February 2010
Resolution, ordering the re-hearing of the case on the ground that
"there was no majority vote of
the members obtained in the Resolution of the Commission En Banc promulgated on
February 8, 2010." Having conceded one of the grounds
subsequently raised
in petitioner's Urgent Motion to
Recall the Resolution Promulgated on February 8, 2010, the COMELEC En Banc significantly failed to
obtain the votes required under Section 5(a), Rule 3 of its own Rules of
Procedure[4] for a second time.
The failure of the COMELEC En Banc to muster the required majority vote even after the 15 February 2010 re-hearing should have caused the dismissal of respondent's Election Protest. Promulgated on 15 February 1993 pursuant to Section 6, Article IX-A and Section 3, Article IX-C of the Constitution, the COMELEC Rules of Procedure is clear on this matter. Without any trace of ambiguity, Section 6, Rule 18 of said Rule categorically provides as follows:
The failure of the COMELEC En Banc to muster the required majority vote even after the 15 February 2010 re-hearing should have caused the dismissal of respondent's Election Protest. Promulgated on 15 February 1993 pursuant to Section 6, Article IX-A and Section 3, Article IX-C of the Constitution, the COMELEC Rules of Procedure is clear on this matter. Without any trace of ambiguity, Section 6, Rule 18 of said Rule categorically provides as follows:
Sec. 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in
opinion, or the necessary majority cannot be had, the case shall be reheard,
and if on rehearing no decision is reached, the action or proceeding shall
be dismissed if originally commenced in the Commission; in appealed cases,
the judgment or order appealed from shall stand affirmed; and in all incidental
matters, the petition or motion shall be denied.
The propriety of applying the foregoing provision according to its literal tenor cannot be gainsaid. As one pertaining to the election of the provincial governor of Bulacan, respondent's Election Protest was originally commenced in the COMELEC, pursuant to its exclusive original jurisdiction over the case. Although initially raffled to the COMELEC Second Division, the elevation of said election protest on motion for reconsideration before the Commission En Banc cannot, by any stretch of the imagination, be considered an appeal. Tersely put, there is no appeal within the COMELEC itself. As aptly observed in the lone dissent penned by COMELEC Commissioner Rene V. Sarmiento, respondent's Election Protest was filed with the Commission "at the first instance" and should be, accordingly, considered an action or proceeding "originally commenced in the Commission."
The dissent reads Section 6 of COMELEC Rule 18 to mean exactly the opposite of what it expressly states. Thus was made the conclusion to the effect that since no decision was reached by the COMELEC En Banc, then the decision of the Second Division should stand, which is squarely in the face of the Rule that when the Commission En Banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be re-heard, and if on re-hearing, no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission. The reliance is on Section 3, Article IX(C) of the Constitution which provides:
Section 3. The Commission on Elections
may sit En Banc or in two
divisions, and shall promulgate its rules of procedure in order to expedite
disposition of election cases, including pre-proclamation controversies. All
such election cases shall be heard and decided in division, provided that
motions for reconsideration of decisions shall be decided by the Commission En Banc.
The dissent reasons that it would be absurd that for a lack of the necessary majority in the motion for reconsideration before the COMELEC En Banc, the original protest action should be dismissed as this would render nugatory the constitutional mandate to authorize and empower a division of the COMELEC to decide election cases.
We cannot, in this case, get out of the square cover of Section 6, Rule 18 of the COMELEC Rules. The provision is not violative of the Constitution.
The Rule, in fact, was promulgated obviously pursuant to the Constitutional mandate in the first sentence of Section 3 of Article IX(C). Clearly too, the Rule was issued "in order to expedite disposition of election cases" such that even the absence of a majority in a Commission En Banc opinion on a case under reconsideration does not result in a non-decision. Either the judgment or order appealed from "shall stand affirmed" or the action originally commenced in the Commission "shall be dismissed."
It is easily evident in the second sentence of Section 3 of Article IX(C) that all election cases before the COMELEC are passed upon in one integrated procedure that consists of a hearing and a decision "in division" and when necessitated by a motion for reconsideration, a decision "by the Commission En Banc."
What is included in the phrase "all such election cases" may be seen in Section 2(2) of Article IX(C) of the Constitution which states:
Section 2. The Commission on Elections
shall exercise the following powers and functions:
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal of officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal of officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.
Section 2(2) read in relation to Section 3 shows that however the jurisdiction of the COMELEC is involved, either in the exercise of "exclusive original jurisdiction" or an "appellate jurisdiction," the COMELEC will act on the case in one whole and single process: to repeat, in division, and if impelled by a motion for reconsideration, en banc.
There is a difference in the result of the exercise of jurisdiction by the COMELEC over election contests. The difference inheres in the kind of jurisdiction invoked, which in turn, is determined by the case brought before the COMELEC. When a decision of a trial court is brought before the COMELEC for it to exercise appellate jurisdiction, the division decides the appeal but, if there is a motion for reconsideration, the appeal proceeds to the banc where a majority is needed for a decision. If the process ends without the required majority at the banc, the appealed decision stands affirmed. Upon the other hand, and this is what happened in the instant case, if what is brought before the COMELEC is an original protest invoking the original jurisdiction of the Commission, the protest, as one whole process, is first decided by the division, which process is continued in the banc if there is a motion for reconsideration of the division ruling. If no majority decision is reached in the banc, the protest, which is an original action, shall be dismissed. There is no first instance decision that can be deemed affirmed.
It is easy to understand the reason for the difference in the result of the two protests, one as original action and the other as an appeal, if and when the protest process reaches the COMELEC En Banc. In a protest originally brought before the COMELEC, no completed process comes to the banc. It is the banc which will complete the process. If, at that completion, no conclusive result in the form of a majority vote is reached, the COMELEC has no other choice except to dismiss the protest. In a protest placed before the Commission as an appeal, there has been a completed proceeding that has resulted in a decision. So that when the COMELEC, as an appellate body, and after the appellate process is completed, reaches an inconclusive result, the appeal is in effect dismissed and resultingly, the decision appealed from is affirmed.
To repeat, Rule 18, Section 6 of the COMELEC Rules of Procedure follows, is in conformity with, and is in implementation of Section 3 of Article IX(C) of the Constitution.
Indeed, the grave abuse of discretion of the COMELEC is patent in the fact that despite the existence in its books of the clearly worded Section 6 of Rule 18, which incidentally has been acknowledged by this Court in the recent case of Marcoleta v. COMELEC]it completely ignored and disregarded its very own decree and proceeded with the questioned Resolution of 8 February 2010 and Order of 4 March 2010, in all, annulling the proclamation of petitioner Joselito R. Mendoza as the duly elected governor of Bulacan, declaring respondent Roberto M. Pagdanganan as the duly elected governor, and ordering petitioner Joselito R. Mendoza to cease and desist from performing the functions of the Governor of Bulacan and to vacate said office in favor of respondent Roberto M. Pagdanganan.
The grave abuse of discretion of the COMELEC is underscored by the fact that the protest that petitioner Pagdanganan filed on 1 June 2007 overstayed with the COMELEC until the present election year when the end of the term of the contested office is at hand and there was hardly enough time for the re-hearing that was conducted only on 15 February 2010. As the hearing time at the division had run out, and the re-hearing time at the banc was fast running out, the unwanted result came about: incomplete appreciation of ballots; invalidation of ballots on general and unspecific grounds; unrebutted presumption of validity of ballots.
WHEREFORE, the petition is GRANTED. The questioned Resolution of the COMELEC promulgated on 8 February 2010 in EPC No. 2007-44 entitled "Roberto M. Pagdanganan v.Joselito R. Mendoza," the Order issued on 4 March 2010, and the consequent Writ of Execution dated 5 March 2010 are NULLIFIED and SET ASIDE. The election protest of respondent Roberto M. Pagdanganan is hereby DISMISSED.
No comments:
Post a Comment