gumalal

 

 

 

[ G.R. No. 147904, October 04, 2002 ]

NESTOR B. MAGNO, PETITIONER, VS. COMMISSION ON ELECTIONS AND CARLOS C. MONTES, RESPONDENTS.

CORONA, J.:

Facts :

Before this Court is a petition for certiorari under Rule 65 which seeks to annul and set aside the resolution dated May 7, 2001 of the Commission on Elections as well as the resolution dated May 12, 2001 denying petitioner’s motion for reconsideration.

This petition originated from a case filed by private respondent on March 21, 2001 for the disqualification of petitioner Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery penalized under Article 210 of the Revised Penal Code.
On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision granting the petition of private respondent and declaring that petitioner was disqualified from running for the position of mayor in the May 14, 2001 elections. On May 10, 2001, petitioner filed a motion for reconsideration but the same was denied by the COMELEC in its resolution dated May 12, 2001.
Petitioner insists that he had already served his sentence as of March 5, 1998 when he was discharged from probation. Such being the case, the two-year disqualification period imposed by Section 40 of the Local Government Code expired on March 5, 2000. Thus, petitioner was qualified to run in the 2001 elections. Sonia Lorenzo was proclaimed by the COMELEC as the duly elected mayor of San Isidro, Nueva Ecija. Thus, on June 19, 2001, petitioner filed a supplemental petition which this Court merely noted in its resolution dated June 26, 2001. In his supplemental petition, petitioner assailed the proclamation of Sonia Lorenzo on the ground that the propriety of his disqualification was still under review by this Court. Petitioner likewise asked this Court to declare him as the duly elected municipal mayor instead of Sonia Lorenzo.
Issue :
WON petitioner was disqualified to run for mayor in the 2001 elections. In resolving this, two sub-issues need to be threshed out, namely: (1) whether the crime of direct bribery involves moral turpitude and (2) whether it is the Omnibus Election Code or the Local Government Code that should apply in this situation.


Ruling :
Regarding the first sub-issue, the Court has consistently adopted the definition in Black’s Law Dictionary of ‘moral turpitude’ as:
“x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.”
Not every criminal act, however, involves moral turpitude. It frequently depends on the circumstances surrounding the violation of the law.
In this case, we need not review the facts and circumstances relating to the commission of the crime considering that petitioner did not assail his conviction. By applying for probation, petitioner in effect admitted all the elements of the crime of direct bribery:

1. the offender is a public officer;
2. the offender accepts an offer or promise or receives a gift or present by himself or through another;
3. such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and
4. the act which the offender agrees to perform or which he executes is connected with the performance of his official duties.

It is the second sub-issue which is problematical. There appears to be a glaring incompatibility between the five-year disqualification period provided in Section 12 of the Omnibus Election Code and the two-year disqualification period in Section 40 of the Local Government Code.
It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will.^[4] Legis posteriores priores contrarias abrogant.
In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around. When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed.
Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioner’s disqualification ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections.
Unfortunately, however, neither this Court nor this case is the proper forum to rule on (1) the validity of Sonia Lorenzo’s proclamation and (2) the declaration of petitioner as the rightful winner. Inasmuch as Sonia Lorenzo had already been proclaimed as the winning candidate, the legal remedy of petitioner would have been a timely election protest.
WHEREFORE, the instant petition is hereby PARTIALLY GRANTED. The challenged resolutions of the Commission on Elections dated May 7, 2001 and May 12, 2001 are hereby REVERSED and SET ASIDE.

G.R. NO. 96298,

MAY 14, 1991

Renato M. Lapinid, petitioner

Vs.

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

Cruz, J.

Facts:

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

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

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

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

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

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

Issue :

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

Ruling:

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

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

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

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

G.R. NO. 189767,

JULY 03, 2012

Philippine Economic Zone Authority , petitioner

VS.

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

Villarama, Jr., J. 

Facts:

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

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

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

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

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

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

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

Issue:

Does the PEZA have legal basis in granting per diems to the ex officio members of its Board? Was there good faith in PEZA’s grant and the ex officio members’ receipt of the per diems?

Ruling:

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

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

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

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

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

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

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

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

G.R NO. 154898 – FEBRUARY 16,2005

CIVIL SERVICE COMMISSION,

PETITIONER,

VS.

PASTOR B. TINAYA, RESPONDENT.

Facts:

November 16, 1993- Pastor B. Tinaya, respondent, was issued a permanent appointment as municipal assessor of the Municipality of Tabontabon, Leyte by Municipal Mayor Priscilla R. Justimbaste.

December 1, 1993-  the CSC Regional Office No. VIII approved the appointment but only as temporary, effective for one (1) year from December 1, 1993 to November 30, 1994. The appointment was made temporary due to respondent’s non-submission of his service record with respect to his three (3)-year work related experience prior to his employment as municipal assessor, as required by the CSC Revised Qualification Standards.

December 16, 199- or fifteen (15) days after the approval of his appointment, respondent married Caridad R. Justimbaste, daughter of Mayor Priscilla Justimbaste.

December 1, 1994- after the expiration of respondent’s temporary appointment, Acting Mayor Luban appointed him anew as municipal assessor effective that day. The appointment was permanent.

The CSC Regional Office No. VIII initially disapproved respondent’s new appointment. But upon appeal by Mayor Priscilla Justimbaste, the CSC, in its Resolution dated May 4, 1995, approved respondent’s appointment as permanent. Sometime between 1995 and 1999, then Mayor Priscilla Justimbaste was elected vice-mayor of Tabontabon, while her political opponent, BienvenidoBalderian, was elected mayor.

June 4, 1999- respondent requested Arturo Juanico, Officer-in-Charge of the municipality’s Human Resources Management Office (HRMO), to furnish him a copy of his service record. The request was not immediately acted upon since respondent’s 201 file was still to be retrieved from the Office of Mayor BienvenidoBalderian. This prompted respondent to report the matter to the CSC Regional Office No. VIII with a request to conduct an “on-the-spot physical audit” of the municipal employees’ 201 files. In response, the CSC scheduled an audit on August 3, 1999.

Issue:

Whether or not the respondent Pastor Tinaya is guilty of Nepotism.

Ruling:

In Lazo vs. Civil Service Commission, we held that “under the Constitution, the Civil Service Commission is the central personnel agency of the government charged with the duty of determining questions of qualifications of merit and fitness of those appointed to the civil service.”

The powers and functions of petitioner are defined in Section 9 (h) of the Civil Service Law.

While the appointing authority has the discretion to choose whom to appoint, the choice is subject to the caveat that the appointee possesses the required qualifications.

To make it fully effective, an appointment to a civil service position must comply with all legal requirements. Thus, the law requires the appointment to be submitted to the CSC, which will ascertain, in the main, whether the proposed appointee is qualified to hold the position and whether the rules pertinent to the process of appointment were observed.

The appointing officer and the CSC acting together, though not concurrently but consecutively, make an appointment complete.  In acting on the appointment, the CSC determines whether the appointee possesses the appropriate civil service eligibility or the required qualifications. If the appointee is qualified, the appointment must be approved; if not, it should be disapproved.

Here, respondent’s original permanent appointment as municipal assessor was approved as temporary by petitioner CSC pending his submission of the required service record of his three (3)-year work experience in real property assessment or in any related field prior to his appointment, as required by the CSC Revised Qualification Standards. As found by petitioner, it was only on December 1, 1994, after his temporary appointment expired on that day, that he was able to submit the required paper.Thus, upon its submission, respondent’s new appointment was made permanent.

Significantly, respondent does not dispute such lack of proof of his work related experience when he was extended his original appointment as municipal assessor. In fact, he did not raise any objection to the approval of said original appointment as temporary.

Thus, petitioner merely complied with the Constitutional and statutory mandate to determine whether respondent was qualified. And due to his failure to submit the required service record as proof of his qualification, petitioner did not err in approving his original appointment as temporary.

In Mathay, Jr. vs. Civil Service Commission, we held that the Civil Service Commission is empowered to take appropriate action on all appointments and other personnel actions and that such power “includes the authority to recall an appointment initially approved in disregard of applicable provisions of the Civil Service law and regulations.”

WHEREFORE, the instant petition is GRANTED. The challenged Decision of the Court of Appeals dated March 21, 2002 and its Resolution dated August 21, 2002 in CA-G.R. SP No. 63051 are REVERSED. The Resolution No. 002470 dated October 26, 2000 and Resolution No. 010126 dated January 12, 2001 of petitioner CSC are AFFIRMED.

SO ORDERED.

G.R. NO. 193677,

SEPTEMBER 06, 2011

LUCIANO VELOSO, ABRAHAM CABOCHAN, JOCELYN DAWIS-ASUNCION AND MARLON M. LACSON, PETITIONERS,

VS.

COMMISSION ON AUDIT, RESPONDENT.

Facts:

On December 7, 2000, the City Council of Manila enacted Ordinance No. 8040 entitled An Ordinance Authorizing the Conferment of Exemplary Public Service Award to Elective Local Officials of Manila Who Have Been Elected for Three (3) Consecutive Terms in the Same Position.The ordinance was deemed approved on August 23, 2002.

After evaluation of the AOM, the Director, Legal and Adjudication Office (LAO)-Local of the COA issued ND No. 06-010-100-05 dated May 24, 2006.

On November 9, 2006, former councilors Jocelyn Dawis-Asuncion (Dawis-Asuncion), Luciano M. Veloso (Veloso), Abraham C. Cabochan (Cabochan), Marlon M. Lacson (Lacson), Julio E. Logarta, Jr., and Monina U. Silva, City Accountant Gloria C. Quilantang, City Budget Officer Alicia Moscaya and then Vice Mayor and Presiding Officer Danilo B. Lacuna filed a Motion to Lift the Notice of Disallowance.In its Decision No. 2007-171 dated November 29, 2007, the LAO-Local decided in favor of the movants.

Citing Article 170 of the Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 7160, the LAO-Local held that the monetary reward given to the former councilors can be one of gratuity and, therefore, cannot be considered as additional, double or indirect compensation. Giving importance to the principle of local autonomy, the LAO-local upheld the power of local government units (LGUs) to grant allowances. More importantly, it emphasized that the Department of Budget and Management (DBM) did not disapprove the appropriation for the EPSA of the City which indicate that the same is valid.

Upon review, the COA rendered the assailed Decision No. 2008-088 sustaining ND No. 06-010-100-05. The motion for reconsideration was likewise denied in Decision No. 2010-077. The COA opined that the monetary reward under the EPSA is covered by the term "compensation." Though it recognizes the local autonomy of LGUs, it emphasized the limitations thereof set forth in the Salary Standardization Law (SSL). It explained that the SSL does not authorize the grant of such monetary reward or gratuity. It also stressed the absence of a specific law passed by Congress which ordains the conferment of such monetary reward or gratuity to the former councilors. In Decision No. 2010-077, in response to the question on its jurisdiction to rule on the legality of the disbursement, the COA held that it is vested by the Constitution the power to determine whether government entities comply with laws and regulations in disbursing government funds and to disallow irregular disbursements.

On November 30, 2010, the Court issued a Status Quo Ante Order requiring the parties to maintain the status quo prevailing before the implementation of the assailed COA decisions.

Issue:

WON the COA has the authority to disallow the disbursement of local government funds.

WON the COA committed grave abuse of discretion in its powers.

Ruling:

In the exercise of the above power, the City Council of Manila enacted on December 7, 2000 Ordinance No. 8040, but the same was deemed approved on August 23, 2002. The ordinance authorized the conferment of the EPSA to the former three-term councilors and, as part of the award, the qualified city officials were to be given "retirement and gratuity pay remuneration." We believe that the award is a "gratuity" which is a free gift, a present, or benefit of pecuniary value bestowed without claim or demand, or without consideration.

However, as correctly held by the COA, the above power is not without limitations. These limitations are embodied in Section 81 of RA 7160.

Moreover, the IRR of RA 7160 reproduced the Constitutional provision that "no elective or appointive local official or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emoluments, office, or title of any kind from any foreign government." Section 325 of the law limit the total appropriations for personal services of a local government unit to not more than 45% of its total annual income from regular sources realized in the next preceding fiscal year.

While it may be true that the above appropriation did not exceed the budgetary limitation set by RA 7160, we find that the COA is correct in sustaining ND No. 06-010-100-05.

Verily, the COA's assailed decisions were made in faithful compliance with its mandate and in judicious exercise of its general audit power as conferred on it by the Constitution. The COA adheres to the policy that government funds and property should be fully protected and conserved and that irregular, unnecessary, excessive or extravagant expenditures or uses of such funds and property should be prevented.

However, in line with existing jurisprudence, we need not require the refund of the disallowed amount because all the parties acted in good faith. In this case, the questioned disbursement was made pursuant to an ordinance enacted as early as December 7, 2000 although deemed approved only on August 22, 2002. The city officials disbursed the retirement and gratuity pay remuneration in the honest belief that the amounts given were due to the recipients and the latter accepted the same with gratitude, confident that they richly deserve such reward.

WHEREFORE, the petition is DISMISSED. Decision No. 2008-088 dated September 26, 2008 and Decision No. 2010-077 dated August 23, 2010 of the Commission on Audit, are AFFIRMED WITH MODIFICATION.

Accordingly, the Status Quo Ante Order issued by the Court on November 30, 2010 is hereby RECALLED. In view, however, of this Court's decision not to require the refund of the amounts already received, the Commission on Audit is ORDERED to cease and desist from enforcing the Notice of Finality of Decision dated October 5, 2010.

G.R. No. 161098,September 13, 2007

OFFICE OF THE OMBUDSMAN

VS

CELSO SANTIAGO,

Facts:

 Chairman Celso Santiago received a calamity fund for his barangay in the amount of Php 44,053. All barangay kagawad filed with the Office of the Ombudsman an administrative complaint for technical malversation, violation of the Anti-Graft and Corrupt Practices Act, dishonesty, grave misconduct and condut becoming of a public officer alleging that (a) respondent failed to utilize the calamity fund for the purpose for which it was allocated; (b) he leased a portion of the barangay sidewalk to Amity Food Corporation without the conformity of the barangay kagawad; (c) Amity Food Corporation issued checks payable to respondent, not in the name of the Barangay; (d) he did not open any bank account for and in the name of Barangay 183, Zone 16; and (e) he collected fees for the use of the barangay chapel without remitting any single centavo to the barangay treasurer. Office of the Ombudsman declared the respondent guilty and dismiss him from the service. Respondent filed a motion for reconsideration and an urgent motion to hold in abeyance the implementation of the decision, but both motions were denied by the Office of the Ombudsman. Thus, respondent filed with the Court of Appeals a "Petition for Certiorari, Prohibition and Mandatory Injunction with Prayer for the Issuance of a Temporary Restraining Order." The CA considered this action a petition for review and partially granted the petition. Office of the Ombudsman filed a motion for reconsideration but was denied by the CA.

Issue:

WON the Ombudsman has the power to dismiss erring government officials and employees.

Ruling:

In interpreting a statute, care should be given that every part thereof be given effect. Hence, the use of the word "recommend" must be read in conjunction with the words "ensure compliance therewith" in order not to run counter to the intention of the framers of the Constitution to give the Ombudsman full and complete disciplinary authority, with powers that are not merely persuasive in character. In fact, Section 13(3), Article XI is complemented by Section 15 of Republic Act No. 6770 which reads:

SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; x x x

Considering that the refusal, without just cause, of any officer to comply with an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, it follows that the Ombudsman’s "recommendation" is not merely advisory but is actually mandatory within the bounds of law.

The power of the Ombudsman to directly remove an erring public official has been jurisprudentially settled. In Estarija v. Ranada the SC ruled:

The powers of the Ombudsman are not merely recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary. (Emphasis supplied).

Petition AFFIRMED and the decision of CA REVERSED.

OFFICE OF THE OMBUDSMAN vs. GERTRUDES MADRIAGA and ANA MARIE BERNARDO,G.R. No. 164316 September 27, 2006 (Third Division) J.

CARPIO MORALES

Facts:

Teresa Nuque, president of the San Juan School Club, San Juan Elementary School, San Juan, Metro Manila filed before the Office of the Ombudsman a complaint against respondents in violation of Sec 1 of Rule Iv and Sec 1 of Rule VI of the Code of Conduct and Ethical Standards for Public Officials and Employees. Officer Helen M. Acuña, found the respondent guilty of violation of Sec 5(a) of R.A. No. 6713 and imposed upon them the penalty of reprimand. However, Officer Julita Calderon set aside the said decision finding that respondents were guilty also of conduct grossly prejudicial to the best interest of the service, and accordingly penalizing them with six months suspension. Respondents motion for reconsideration and/or reinvestigation was denied, elevated to the CA and declared that the penalty is merely “recommendatory” to the Department of Education.

Issue:

Whether the Office of the Ombudsman has full disciplinary authority over public officials and employees with the exception of impeachable officials, Members of Congress and the Judiciary, including the power to enforce its duly-issued judgments.

Ruling:

 In the recent case of Ledesma v. Court of Appeals, the SC resolving in the negative the issue of whether the recommendation of the Ombudsman for the suspension of the therein petitioner, who was found administratively liable in connection with the extension of Temporary Resident Visas of two foreign nationals, was merely advisory on the Bureau of Immigration and Deportation where petitioner was the Chairman of the First Division of its Board of Special Inquiry.

In the case of Tapiador,  the SC note that the provisions of RA 6770 Section 15 qualifies the "order" "to remove, suspend, demote, fine, censure, or prosecute" an officer or employee – akin to the questioned issuances in the case at bar. That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsman's "recommendation" is not merely advisory in nature but is actually mandatory within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman "recommends" the action to be taken against an erring officer or employee, the provisions in the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer.

The word "recommend" in Sec. 15(3) must thus be read in conjunction with the phrases "ensure compliance therewith" or "enforce its disciplinary authority as provided in Section 21" of R.A. No. 6770.

Petition AFFIRMED and the decision of CA REVERSED.

G.R. No.81467 October 27, 1989

NARCISO Y. SANTIAGO JR., PETITIONER

VS

CIVIL SERVICE COMMISSION AND LEONARDO A. JOSE, RESPONDENTS

Facts:

Then Customs Commissioner Wigberto E. Tanada extended a permanent promotional appointment, as Customs Collector III, to petitioner SANTIAGO, Jr. That appointment was approved by the Civil Service Commission  (CSC), National Capital Region Office. Prior thereto, SANTIAGO held the position of Customs Collector I. Respondent JOSE, a Customs Collector II, filed a protest with the Merit Systems Promotion Board against SANTIAGO's promotional appointment mainly on the ground that he was next-in-rank to the position of Collector of Customs III. Pursuant to Section 19(6) of Presidential Decree No. 807 (the Civil Service Decree), the Board referred the protest to Commissioner Tanada for appropriate action. Said official upheld SANTIAGO'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 Jose appealed to the Board, which decided to revoke petitioner’s appointment and directed that respondent Jose be appointed in his stead.  Petitioner’s motion for reconsideration was denied for lack of merit. Respondent Commission affirmed the Board Resolutions in its own Resolution.

Issue:

Whether or not the next-in-rank rule is applicable.

Ruling:

As previously ruled in Taduran vs Civil Service Commission, 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 apply the next-in-rank rule peremptorily would impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for appointment.

Resolution of Civil Service Commission is Set Aside and Petitioner’s promotional appointment is UPHELD.

FERDINAND THOMAS M. SOLLER, petitioner, vs. COMMISSION ON ELECTIONS, REGIONAL TRIAL COURT OF PINAMALAYAN, ORIENTAL MINDORO (Branch 42) and ANGEL M. SAULONG, respondents.

Facts:
Petitioner and private respondent were both candidates for mayor of the municipality of Bansud, Oriental Mindoro in the May 11, 1998 elections. On May 14, 1998, the municipal board of canvassers proclaimed petitioner Ferdinand Thomas Soller duly elected mayor.
On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a "petition for annulment of the proclamation/exclusion of election return". On May 25, 1998, private respondent filed with the Regional Trial Court of Pinamalayan, Oriental Mindoro an election protest against petitioner.
On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also moved to dismiss private respondent's protest on the ground of lack of jurisdiction, forum-shopping, and failure to state cause of action.
On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private respondent.
On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner moved for reconsideration but said motion was denied. Petitioner then filed with the COMELEC a petition for certiorari contending that respondent RTC acted without or in excess of jurisdiction or with grave abuse of discretion in not dismissing private respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The election tribunal held that private respondent paid the required filing fee. It also declared that the defect in the verification is a mere technical defect which should not bar the determination of the merits of the case. The election tribunal stated that there was no forum shopping to speak of.


Issue:
WON respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in not ordering the dismissal of private respondent's election protest. WONprivate respondent's protest should have been dismissed outright for failure to pay the amount of P300.00 filing fee required under the COMELEC rules. WON private respondent's petition for annulment of proclamation/exclusion of election returns was a preproclamation case. WON respondent Regional Trial Court erred and committed grave abuse of discretion in failing to dismiss private respondent's election protest against petitioner. Whether or not respondent COMELEC en banc had jurisdiction to affirm the refusal of respondent trial court to dismiss private respondent's election protest.
Ruling:
The COMELEC, sitting en banc, does not have the requisite authority to hear and decide election cases including pre-proclamation controversies in the first instance. This power pertains to the divisions of the Commission. Any decision by the Commission en banc as regards election cases decided by it in the first instance is null and void.
As can be gleaned from the proceedings aforestated, petitioner's petition with the COMELEC was not referred to a division of that Commission but was, instead, submitted directly to the Commission en banc. The petition for certiorari assails the trial court's order denying the motion to dismiss private respondent's election protest. The questioned order of the trial court is interlocutory because it does not end the trial court's task of adjudicating the parties' contentions and determining their rights and liabilities as regards each other. The authority to resolve petition for certiorari involving incidental issues of election protest, like the questioned order of the trial court, falls within the division of the COMELEC and not on the COMELEC en banc. Note that the order denying the motion to dismiss is but an incident of the election protest. If the principal case, once decided on the merits, is cognizable on appeal by a division of the COMELEC, then, there is no reason why petitions for certiorari relating to incidents of election protest should not be referred first to a division of the COMELEC for resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking cognizance of petitioner's petition in the first instance.
Petitioner's contention that private respondent¶s protest should have been dismissed outright for failure to pay the P300.00 filing fee is supported by Section 9, Rule 35 of the COMELEC Rules of Procedure [Filing fee. --- No protest, counter-protest, or protest-in-intervention shall be given due course without the payment of a filing fee in the amount of three hundred pesos (P300.00) for each interest].
Close scrutiny of the receipts will show that private respondent failed to pay the filing fee of P300.00 for his protest as prescribed by the COMELEC rules. A court acquires jurisdiction over any case only upon the payment of the prescribed docket fee. Patently, the trial court did not acquire jurisdiction over private respondent's election protest. Therefore, COMELEC gravely erred in not ordering the dismissal of private respondent's protest case.
Clearly then, errors in the payment of filing fees in election cases is no longer excusable. And the dismissal of the present case for that reason is called for.
Besides, there is another reason to dismiss private respondent's election protest. The verification of aforesaid protest is defective. In the verification, private respondent merely stated that he caused the preparation of his petition and he has read and understood all the allegations therein. Certainly, this is insufficient as private respondent failed to state that the contents of his election protest are true and correct of his personal knowledge.
Further, private respondent did not comply with the required certification against forum shopping. Private respondent successively filed a "petition for annulment of the proclamation/exclusion of election return" and an election protest. Yet, he did not disclose in his election protest that he earlier filed a petition for annulment of proclamation/exclusion of election returns. It could be argued that private respondent's petition for annulment of proclamation/exclusion of election returns was a pre-proclamation case. The issues raised in that petition pertain to the preparation and appreciation of election returns and the proceedings of the municipal board of canvassers. But note that such petition was filed after the proclamation of petitioner as the winning candidate, thus, the petition was no longer viable, for pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidates have been proclaimed. It might even be claimed with some reason that private respondent, by resorting to the wrong remedy, abandoned his pre-proclamation case earlier filed.
Similarly, the fact that private respondent's protest was not based on the same cause of action as his preproclamation case is not a valid excuse for not complying with the required disclosure in the certification against forum shopping. The requirement to file a certificate of non-forum shopping is mandatory. Failure to comply with this requirement cannot be excused by the fact that a party is not guilty of forum shopping. The rule applies to any complaint, petition, application or other initiatory pleading, regardless of whether the party filing it has actually committed forum shopping. Every party filing any initiatory pleading is required to swear under oath that he has not and will not commit forum shopping.
The respondent Regional Trial Court erred and committed grave abuse of discretion in failing to dismiss private respondent's election protest against petitioner. And to reiterate, respondent COMELEC en banc had no jurisdiction to affirm the refusal of respondent trial court to dismiss private respondent's election protest.

G.R. Nos. L-50508-11 October 11, 1985

VICENTE S. ORAP, petitioner,
vs.
HON. SANDIGANBAYAN represented by HON. JUSTICES MANUEL R. PAMARAN BERNARDO P. FERNANDEZ, and ROMEO M. ESCAREAL, et al., respondents.

Benigno M. Gubatan for petitioner.

Facts: 

Three informations were filed before the Sandiganbayan by Tanodbayan Special Prosecutor Rodolfo B. Aquino, charging petitioner Vicente S. Orap Presiding Judge of the Municipal Court of Mangatarem, Pangasinan, with violation of the Anti-Graft and Corrupt Practices Act. The information, duly approved by Hon. Juan A. Sison, then Chief Special Prosecutor of the Tanodbayan, were docketed as Criminal Cases Nos. SB-020, 021 and 022. Likewise charged under Criminal Case No. 020 was Melanio B. Fernandez, petitioner's Clerk of Court. The fourth information, docketed as Criminal Case No. SB-189, was filed against petitioner, also for violation of Section 3(e) of Rep. Act No. 3019. The gravamen of all these charges was to the effect that the accused on different occasions unlawfully and feloniously received and took various sums of money from several persons in connection with Criminal Case No. 2032 of the Municipal Court of Mangatarem entitled, "People vs. Pepito F. Iglesias", for reckless imprudence resulting in multiple homicide, serious physical injuries and damage to property. Before his scheduled arraignment, petitioner filed a motion to quash the informations on the ground that the officer who signed the same had no authority to do so and that, corollarily, the Sandiganbayan did not acquire jurisdiction over the offenses charged. After due hearing, the respondent court denied petitioner's motion to quash. Petitioner verbally moved for the reconsideration of the order but the relief sought was denied.

Issue

WON the Tanodbayan has the authority to conduct a preliminary investigation of a complaint charging a municipal judge and his clerk of court with violation of Section 3(e) of Rep. Act No. 3019 and, upon a finding of prima facie case, proceed to file the corresponding information before the Sandiganbayan and prosecute the same.

Ruling:

The respondent Sandiganbayan ruled that the Tanodbayan has such authority. We affirm.

The Tanodbayan functions not only as an ombudsman, but as prosecutor as well. As ombudsman, his investigatory powers are limited to complaints initiated against officers and personnel of administrative agencies, as defined in Section 9(a) of the law. As prosecutor, however, the authority of the Tanodbayan is primary and without exceptions. His powers are defined in Sections 17 and 19 of P.D. 1607.

Section 17 of the Decree, in unequivocal term, confers upon the Tanodbayan, through the Chief Special Prosecutor and the Special Prosecutors, the exclusive authority to "conduct preliminary investigation of all cases cognizable by the Sandiganbayan, to file informations therefor, and to direct and control the prosecution of said cases therein." If, as petitioner contends, judges, and other court personnel lie outside the investigatory power of the Tanodbayan, then no judge or court employee could ever be brought to justice for crimes and offenses cognizable by the Sandiganbayan, for lack of proper officer or entity authorized to conduct the preliminary investigation on complaints of such nature against them. This absurd situation the law could never have intended, considering that the Office of the Tanodbayan was purposely created to "give effect to the constitutional right of the people to petition the government for redress of grievances and to promote higher standards of integrity and efficiency in the government service."

The informations in question have complied with the substantial and formal requirements of the law. They carry the certification of the investigating prosecutor as to the existence of a prima facie case. They also bear the approval of the Chief Special Prosecutor, as required by Section 11 of
PD 1606.

As petitioner is charged with violations of the Anti-Graft and Corrupt Practices Act, which are within the jurisdiction of the Sandiganbayan as defined under Section 4 of P.D. 1606, the said court validly acquired jurisdiction over the informations in question.

WHEREFORE, petition is hereby DISMISSED, with costs against petitioner.