haifa digest

OFFICE OF THE OMBUDSMAN vs CELSO SANTIAGO, G.R. No. 161098,September 13, 2007

( First Division) J. SANDOVAL-GUTIERREZ

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: Whether or not the Ombudsman has the power to dismiss erring government officials or 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.

NARCISO Y. SANTIAGO JR., vs. CIVIL SERVICE COMMISSION AND LEONARDA A. JOSE,

G.R. NO. 81467, October 27, 1989

(En Banc) J. MELENCIO-HERRERA

Facts: On November 1986, Customs Commissioner Wigberto E. Tanada extended a permanent promotional appointment of petitioner Narciso Y Santiago, Jr., from Collector of Customs I to Collector of Customs III approved by the Civil Service Commission, National Capital Region Office. Respondent Jose filed a protest with the Board against Santiago’s promotional appointment on the ground that he was next-in-rank to the position of Collector of Customs III, but Commissioner Tanada 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. Jose appealed to the Board which decided to revoke Santiago’s appointment and directed that Jose be appointed in his stead. Santiago filed a Motion for Reconsideration but was denied by the Board.

ISSUE: Whether the next-in-rank rule is mandatory in a promoting an officer.

RULING: In Taduran vs. CSC, SC ruled that 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 avested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position, as provided for in Section 4, CSC Resolution No. 83-343:

"Section 4. An employee who holds a next-in-rank position who is deemed the most competent and qualified, possesses an appropriate civil service eligibility, and meets the other conditions for promotion shall be promoted to the higher position when it becomes vacant.

However, the appointing authority may promote an employee who is not next-in-rank but who possesses superior qualifications and competence compared to a next-in-rank employee who merely meets the minimum requirements for the position."

Resolution No. 87-554 of Civil the Service Commission is SET ASIDE and petitioner's promotional appointment as Customs Collector Ill is hereby UPHELD.

CIVIL SERVICE COMMISSION, NATIONAL CAPITAL REGION vs. RANULFO P. ALBAO, G.R.NO.155784, October 13, 2005

(En Banc) J. Azcuna

Facts: On September 1, 1998, the Office of the Vice President of the Republic of the Philippines issued an original and permanent appointment for the position of Executive Assistant IV to respondent Ranulfo P. Albao. It requested the retrieval of the said appointment paper and instead of heeding the request, petitioner disapproved the appointment. On October 5, 1998, petitioner issued an Order holding that it has found that a prima facie case exists against Albao for Dishonesty and Falsification of Official Documents. Respondent filed an “Urgent Motion to Resolve” which was denied as well as his motion for reconsideration by the Civil Service Commission. Respondent filed a petition for review before the CA alleging that the CSC committed grave abuse of discretion in issuing resolutions in relation to the case and granted the said petition. The motion for reconsideration filed by the petitioner was denied by the CA.

ISSUE:  Whether or not the Civil Service Commission has original jurisdiction to institute the instant administrative case against respondent Albao through the CSC-NCR.

RULING: The rule is that jurisdiction is conferred only by the Constitution or the law. Republic v. Court of Appeals also enunciated that only a statute can confer jurisdiction on courts and administrative agencies.

Section 47 (2), Title 1 (A), Book V of EO No. 292 gives the heads of government offices original disciplinary jurisdiction over their own subordinates. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. It is only when the penalty imposed exceeds the aforementioned penalties that an appeal may be brought before the Civil Service Commission which has appellate jurisdiction over the same.

Respondent Albao was a contractual employee in the Office of the Vice President before his appointment to a permanent position, which appointment was, however, requested to be retrieved by the Office of the Vice President and at the same time disapproved by the Civil Service Commission, hence the Vice President of the Philippines, as head of office, is vested to commence disciplinary action against respondent Albao.

Nevertheless, the SC does not agree that petitioner is helpless to act directly and motu proprio, on the alleged acts of dishonesty and falsification of official document committed by respondent in connection with his appointment to a permanent position in the Office of the Vice President.

The present case, partakes of an act by petitioner to protect the integrity of the civil service system, and does not fall under the provision on disciplinary actions under Sec. 47. It falls under the provisions of Sec. 12, par. 11, on administrative cases instituted by it directly. This is an integral part of its duty, authority and power to administer the civil service system and protect its integrity, by removing from its list of eligibles those who falsified their qualifications. This is to be distinguished from ordinary proceedings intended to discipline a bona fide member of the system, for acts or omissions that constitute violations of the law or the rules of the service.

Petition GRANTED. Decision of the CA is REVERSED and SET ASIDE.

RENATO M. LAPINID vs. CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY AND JUANITO JUNSAY, G.R. NO. 96298, May 14, 1991

(En Banc) J. CRUZ

Facts: On October 1, 1988, Renato M. Lapinid was appointed bu the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal. On December 15, 1988 Juanito Junsay protested on the said appointment and contended that he should be designated terminal supervisor, or to any other comparable position. Complaining that the PPA had not acted on his protest, he went to the Civil Service Commission and challenged Lapinid’s appointment on the same grounds he earlier raised. After a comparative evaluation, the Commission finds the appeal meritorious, and 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. Lapinid, and PPA separately filed a motion for reconsideration but was denied. Lifted to the SC, for the mean time 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. Private respondent’s comment was dispensed with it when it was not filed within the prescribed period.

ISSUE: Whether or not the Civil Service Commission is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding order his replacement by the latter.

RULING: In Luego vs. Civil Service Commission, SC declared:

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

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.

Only recently, in Gaspar v. Court of Appeals, SC said:

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 Civil Service Commission. 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 Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard.

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 Civil Service Commission has no power to review under the Constitution and the applicable laws.

Petition is GRANTED. Resolutions of the respondent Civil Service Commission are REVERSED and SET ASIDE.

CIVIL SERVICE COMMISSION  vs. PASTOR B. TINAYA, G.R. NO. 154898, February 16, 2005

(En Banc) J. SANDOVAL-GUTIERREZ

Facts: On November 16, 1993, Pastor B. Tinaya was issued a permanent appointment as municipal assessor of the Municipality of Tabontabon, Leyte by Municipal Mayor Priscilla R. Justimbaste. On December 1, 1993, the CSC Regional Office No. VIII approved the appointment but only as temporary due to respondent’s non-submission of his service record as required by the CSC Revised Qualification Standards, effective for one year. After the expiration of his temporary appointment, Acting Mayor Luban appointed him anew as municipal assessor, permanently,effective that day.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. The CSC found that his appointment as municipal assessor was issued on violation of the law on nepotism and, therefore, should be recalled. Respondent filed a motion for reconsideration for the recall Order issued by the CSC but was denied. Likewise his motion for reconsideration filed on the CSC Central Office was denied. Court of Appeals rendered a decision setting aside the resolutions of the CSC. Petitioner filed a motion for reconsideration but was denied by the CA.

ISSUE: Whether or not the Court of Appeals erred in holding that respondent’s original appointment as municipal assessor on November 16, 1993 is permanent, granting him security of tenure; and in declaring that his subsequent appointment on December 1, 1994 does not violate the rule on nepotism.

RULING: The powers and functions of petitioner are defined in Section 9 (h) of the Civil Service Law, thus:
“SECTION. 9. Powers and Functions of the Commission. –The Commission shall administer the Civil Service and shall have the following powers and functions:

(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. An appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties immediately and shall remain effective until it is disapproved by the Commission if this should take place, without prejudice to the liability of the appointing authority for appointments issued in violation of existing laws or rules: Provided, finally, That the Commission shall keep a record of appointments of all officers and employees in the civil service. All appointments requiring the approval of the Commission as herein provided, shall be submitted to it by the appointing authority within thirty days from issuance, otherwise, the appointment becomes ineffective thirty days thereafter;

Here, respondent’s original permanent appointment as municipal assessor was approved 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.

With respect to petitioner’s recall of respondent’s new permanent appointment dated December 1, 1994 by reason of nepotism, we find the same in order.

Records show that before respondent married Caridad Justimbaste, daughter of then Mayor Priscilla Justimbaste, on December 16, 1993, the latter appointed him municipal assessor. The appointment was permanent. As stated earlier, petitioner approved it as temporary. On December 1, 1994, Acting Mayor Luban extended to respondent (already the son-in-law of Mayor Justimbaste) a permanent appointment after his original temporary appointment expired. This new appointment was initially disapproved by petitioner. But respondent’s mother-in-law, Mayor Justimbaste, appealed to the CSC Regional Office No. VIII. Being then the incumbent mayor, she was the chief of respondent and deemed to have recommended him to Vice-Mayor Luban to be appointed as municipal assessor. Verily, such appointment is in violation of Section 59, Chapter 8 of the Civil Service Law, which provides:

“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.

As used in this Section, the word ‘relative’ and members of the family referred to are those related within the third degree either of consanguinity or of affinity.

Petition is GRANTED. Decision of Court of Appeals and its Resolution are REVERSED.

CITY MAYOR ROGELIO R. DEBULGADO AND VICTORIA T. DEBULGADO vs. CIVIL SERVICE COMMISSION, G.R. NO 111417, September 26, 1994

(En Banc) J. FELICIANO

Facts: Rogelio R. Debulgado, the incumbent Mayor of the City of San Carlos, Negros Occidental appointed his wife Victoria T. Debulgado as General Services Officer of the City Government of San Carlos. 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. The Civil Service Commission received a letter from Congressman Carmona of the First District of Negros Occidental calling attention to the promotional appointment issued by petitioner Mayor in favor of his wife, thus the Commission directed its Regional Office to submit a report on the appointment of Victoria. Acting on the report of Director Caberoy, the Commission, 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. Petitioners filed a motion for reconsideration but was denied by the Commission.

ISSUES: 1) Whether or not  a promotional appointment is covered by the legal prohibition against nepotism or whether that prohibition only to original appointments to the Civil Service;

              

            2) Whether or not 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.

RULING: 1) A textual examination of Section 59, Book V of the Revised Administrative Code of 1987 (also known as E.O. No. 292) 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.

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, 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.

Unless otherwise specifically provided by law, as used in this Section, the word ‘relative’ and the members of the family referred to are those related within the third degree either of consanguinity or of affinity.

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 connection.

II

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.” (Underscoring supplied)

A void appointment cannot give rise to security of tenure on the part of the holder of such appointment.

SC conclude, 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.

Petition is DISMISSED.

JOSEPH H. REYES vs. COMMISSION ON AUDIT, G.R. NO. 125129, March 29, 1999

(En Banc) J. PARDO

Facts: The TLRC Executive Committee created a Provident Fund for the purpose of augmenting 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. Corporate Auditor Adelaida S. Flores suspended the transfer of funds for the years 1990-1991 amounting to Php 11,065,715.84 for the reason that 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. On September 21, 1993, the Board issued dissolved the Provident Fund and ordering the distribution of the personal and corporate shares to the members thereof. On December 2, 1993, Corporate Auditor Flores issued Notice of Disallowance No. 93-003, disallowing in audit the amount of Php 11,065,715.84, 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. Reyes appealed the disallowance to the Commission on Audit but COA denied it. Petitioner filed a motion for reconsideration but is likewise denied.

ISSUE: Whether or not the Commission on Audit commit a grave abuse of discretion in disallowing the distribution of the government share in the aborted TLRC Provident Fund to its members.

RULING:  The SC 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.

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

Petition DENIED. Decision of the Commission on Audit AFFIRMED.

PEOPLE OF THE PHILIPPINES vs. SANDIGANBAYAN (Third Division) and VICTORIA AMANTE, G.R. NO. 167304, August 25, 2009

 (Third Division) J. PERALTA

Facts: Victoria Amante was a member of the Sangguniang Panlungsod of Toledo City, Province of Cebu. On January 14, 1994, she was able to get hold of a cash advance in the amount of P71,095.00 under a disbursement voucher in order to defray seminar expenses of the Committee on Health and Environmental Protection, which she headed. After almost two years since she obtained the said cash advance, and no liquidation was made. On December 22, 1995, Toledo City Auditor Manolo V. Tulibao issued a demand letter to respondent Amante asking the latter to settle her unliquidated cash advance within seventy-two hours from receipt of the same demand letter. The OMB-Visayas, on September 30, 1999, issued a Resolution recommending the filing of an Information for Malversation of Public Funds against respondent Amante which the Office of the Special Prosecutor (OSP), upon review of the OMB-Visayas' Resolution, prepared a memorandum finding probable cause to indict respondent Amante and  filed an information with the Sandiganbayan. Amante filed with the said court a Motion to Defer Arraignment and Motion for Reinvestigation, and the Sandiganbayan dismissed the case for lack of jurisdiction and considered the Motion for Reinvestigation moot and academic.

ISSUE: Whether or not the Sandiganbayan has jurisdiction over a case involving a Sangguniang Panlungsod member where the crime charged is one committed in relation to office, but not for violation of RA 3019, RA 1379 or any of the felonies mentioned in Chapter II, Section 2, Title VII of the Revised Penal Code.

RULING: The applicable law in this case is Section 4 of P.D. No. 1606, as amended by Section 2 of R.A. No. 7975 which took effect on May 16, 1995, which was again amended on February 5, 1997 by R.A. No. 8249. The alleged commission of the offense, as shown in the Information was on or about December 19, 1995 and the filing of the Information was on May 21, 2004. The jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense. The exception contained in R.A. 7975, as well as R.A. 8249, where it expressly provides that to determine the jurisdiction of the Sandiganbayan in cases involving violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code is not applicable in the present case as the offense involved herein is a violation of The Auditing Code of the Philippines. The last clause of the opening sentence of paragraph (a) of the said two provisions states:

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

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

The present case falls under Section 4(b) where other offenses and felonies committed by public officials or employees in relation to their office are involved. Under the said provision, no exception is contained. Thus, the general rule that jurisdiction of a court to try a criminal case is to be determined at the time of the institution of the action, not at the time of the commission of the offense applies in this present case. Since the present case was instituted on May 21, 2004, the provisions of R.A. No. 8249 shall govern. Verily, the pertinent provisions of P.D. No. 1606 as amended by R.A. No. 8249 are the following:

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

A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan and provincial treasurers, assessors, engineers, and other city department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads.

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) PNP chief superintendent and PNP officers of higher rank;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and Special Prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification Act of 1989.

B. Other offenses or felonies, whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A.

By simple analogy, applying the provisions of the pertinent law, respondent Amante, being a member of the Sangguniang Panlungsod at the time of the alleged commission of an offense in relation to her office, falls within the original jurisdiction of the Sandiganbayan.

Petition GRANTED. Resolution of the Sandiganbayan (Third Division) is NULLIFIED and SET ASIDE.

PEOPLE OF THE PHILIPPINES vs. SANDIGANBAYAN (THIRD DIVISION) and ROLANDO PLAZA G.R. NO. 169004, September 15, 2010

(Second Division) J. PERALTA

Facts: Rolando Plaza, a member of the Sangguninang Panlungsod of Toledo City, Cebu, with salary grade 25 had been charged in the Sandiganbayan with the violation of the Auditing Code of the Philippines for his failure to liquidate the cash advances he received on December 19, 1995 in the amount of Php 33,000. Plaza filed a motion to dismiss with the Sandiganbayan and affirmed the motion for lack of jusrisdiction.

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

RULING: This case has the same ruling on People of the Philippines vs. Sandiganbayan and Victoria Amante, falling Section 4 (b) of P.D. 1606, (as amended by Republic Act [R.A.] Nos. 7975 and 8249),

B. Other offenses or felonies, whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection (a) of this section in relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A.

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

Petition GRANTED. Resolution of the Sandiganbayan (Third Division) NULLIFIED and SET ASIDE.

NATIONAL AMNESTY COMMISSION vs. COMMISSION ON AUDIT, JUANITO G. ESPINO, DIRECTOR IV, NCR, COMMISSION ON AUDIT, AND ERNESTP C. EULALIA, RESIDENT AUDITOR, NATIONAL AMNESTY COMMISSION, G.R. NO. 156982, September 8, 2004

(En Banc) J. CORONA

Facts: National Amnesty Commission is a government agency created on March 25, 1994 by President Fidel V. Ramos through Proclamation No. 347. The NAC is tasked to received, process and review amnesty applications. It is composed of seven members: a Chairperson, three regular members appointed by the President, and the Secretaries of Justice, National Defense and Interior and Local Government as ex officio members. Resident auditor Eulalia disallowed on audit the payment of honoraria to representatives amounting to P255,750 for the period December 12, 1994 to June 27, 1997.

on April 28, 1999, the NAC passed Administrative Order No. 2 (the new Implementing Rules and Regulations of Proclamation No. 347), which was approved by then President Joseph Estrada on October 19, 1999. Section 1, Rule II thereof provides:

Section 1, Composition – The NAC shall be composed of seven (7) members:

a) A Chairperson who shall be appointed by the President;

b) Three (3) Commissioners who shall be appointed by the President;

c) Three (3) Ex-officio Members

1. Secretary of Justice
2. Secretary of National Defense
3. Secretary of the Interior and Local Government

The ex officio members may designate their representatives to the Commission. Said Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law. Petitioner invoked Administrative Order No. 2 in assailing before the COA the rulings of the resident auditor and the NGAO disallowing payment of honoraria to the ex officio members’ representatives, to no avail.

ISSUE: Whether or not COA committed grave abuse of discretion in:

(1) implementing COA Memorandum No. 97-038 without the required notice and publication under Article 2 of the Civil Code;

(2) invoking paragraph 2, Section 7, Article IX-B of the 1987 Constitution to sustain the disallowance of honoraria under said Memorandum;

(3) applying the Memorandum to the NAC ex officio members’ representatives who were all appointive officials with ranks below that of an Assistant Secretary;

            (4) interpreting laws and rules outside of its mandate and declaring Section 1, Rule II of Administrative Order No. 2 null and void, and

(5) disallowing the payment of honoraria on the ground of lack of authority of representatives to attend the NAC meetings in behalf of the ex officio members.

RULINGS: 1) COA Memorandum No. 97-038 does not need, for validity and effectivity, the publication required by Article 2 of the Civil Code.

SC clarified this publication requirement in Tañada vs. Tuvera:

[A]ll statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

COA Memorandum No. 97-038 is merely an internal and interpretative regulation or letter of instruction which does not need publication to be effective and valid. It is not an implementing rule or regulation of a statute but a directive issued by the COA to its auditors to enforce the self-executing prohibition imposed by Section 13, Article VII of the Constitution on the President and his official family, their deputies and assistants, or their representatives from holding multiple offices and receiving double compensation.

2) Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."

SC rule in the negative.

But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself.

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.

 3) The NAC ex officio members’ representatives who were all appointive officials with ranks below Assistant Secretary are covered by the two constitutional prohibitions.

First, the NAC ex officio members’ representatives are not exempt from the general prohibition because there is no law or administrative order creating a new office or position and authorizing additional compensation therefor.

Second, the ex officio members’ representatives are also covered by the strict constitutional prohibition imposed on the President and his official family.

4) SC find that, on its face, Section 1, Rule II of Administrative Order No. 2 is valid, as it merely provides that, the ex officio members may designate their representatives to the Commission Said Representatives shall be entitled to per diems, allowances, bonuses and other benefits as may be authorized by law.

5) SC disagree with NAC’s position that the representatives are de facto officers and as such are entitled to allowances, pursuant to our pronouncement in Civil Liberties Union:

“where there is no de jure officer, a de facto officer, who in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensation attached to the office.”

Petition DISMISSED.