ganzon

ANGELES V OMBUDSMAN (2012)

G.R. Nos. 189161 & 189173, March 21, 2012

FACTS:

Petitioner Judge Angeles filed a criminal Complaint against respondent Velasco with the Ombudsman and sought his indictment before the Sandiganbayan for the following acts allegedly committed in his capacity as a prosecutor:(1) Giving an unwarranted benefit, advantage or preference to the accused in a criminal case for smuggling by failing to present a material witness;
(2) Engaging in private practice by insisting on the reopening of child abuse cases against petitioner;(3) Falsifying a public document to make it appear that a clarificatory hearing on the child abuse Complaint was conducted.

The Ombudsman dismissed the charges against respondent Velasco.

Petitioner filed a Motion for Reconsideration of the questioned Joint Order, which was denied by the Ombudsman for lack of merit.

Hence the Petitioner filed a Petition for certiorari under rule 65 of the 1997 rules of court, seeks to set aside the Joint Order of the Ombudsman exonerating respondent Senior State Prosecutor Emmanuel Y. Velasco.

ISSUE:

Whether, the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing the Complaint against respondent Velasco.

RULINGS:

The petition is dismiss. As a general rule, the Court does not interfere with the Ombudsman’s exercise of its investigative and prosecutorial powers without good and compelling reasons. Such reasons are clearly absent in the instant Petition.

The Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. Said exercise of powers is based upon the constitutional mandate and the court will not interfere in its exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicality as well.

The determination by the Ombudsman of probable cause or of whether there exists a reasonable ground to believe that a crime has been committed, and that the accused is probably guilty thereof, is usually done after the conduct of a preliminary investigation. However, a preliminary investigation is by no means mandatory.

The Rules of Procedure of the Office of the Ombudsman specifically Section 2 of Rule II, states:

Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether it may be: a) dismissed outright for want of palpable merit; b) referred to respondent for comment; c) indorsed to the proper government office or agency which has jurisdiction over the case; d) forwarded to the appropriate officer or official for fact-finding investigation; e) referred for administrative adjudication; or f) subjected to a preliminary investigation.

Thus, the Ombudsman need not conduct a preliminary investigation upon receipt of a complaint. That should investigating officers find a complaint utterly devoid of merit, they may recommend its outright dismissal. Moreover, it is also within their discretion to determine whether or not preliminary investigation should be conducted.

In this Petition, The court does not find any grave abuse of discretion that calls for the Court’s exceptional divergence from the general rule.

OMBUDSMAN V. ANDUTAN

G.R. No. 164679, July 27, 2011

Facts:

Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the Department of Finance (DOF). Then Executive Secretary Ronaldo Zamora issued a Memorandum directing all non-career officials or those occupying political positions to vacate their positions effective, pursuant to the Memorandum, Andutan resigned from the DOF.

Andutan together with some respondents was criminally charged by the fact finding and intelligence Bureau (FFIB) of the Ombudsman with estafa and through falsification of public Documents,and violations of section 3(a), (e) and republic act no. 3019, otherwise known as the anti-graft and corrupt practice act. As government employees, Andutan were likewise administratively charged of grave misconduct, dishonesty, falsification of official documents and conduct prejudicial to the best interest of the service.

The Ombudsman found the respondents guilty of Gross Neglect of Duty. Having been separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of the government, including government owned and controlled agencies or corporations.

The CA annulled and set aside the decision of the Ombudsman, ruling that the latter "should not have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the Ombudsman "may not conduct the necessary investigation of any administrative act or omission complained of if it believes that the complaint was filed after one year from the occurrence of the act or omission complained of"and second, the administrative case was filed after Andutan's forced resignation.

ISSUES:

I. Does Section 20(5) of R.A. 6770 prohibits the Ombudsman from conducting an administrative investigation a year after the act was committed?

II. Does Andutan’s resignation render moot the administrative case filed against him?

III. Assuming that the administrative case is not moot, are the Ombudsman's findings supported by substantial evidence?

RULINGS:

The provision of section 20(5) are merely directory; the Ombudsman is not prohibited from conducting an investigation a year after the supposed act was committed. The period stated in Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given to the Ombudsman on whether it would investigate a particular administrative offense. The use of the word "may" in the provision is construed as permissive and operating to confer discretion.
Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within its discretion to conduct the administrative investigation.

 Andutans resignation divest the Ombudsman of its right to institute an administrative complaint against him. Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public servant at the time the case was filed.  What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed the administrative case against him. Additionally, even if we were to accept the Ombudsman's position that Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to prevent the filing of the administrative case.

While we commend the Ombudsman's resolve in pursuing the present case for violations allegedly committed by Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the Ombudsman's factual findings.

OMBUDSMANV. MOJICA

G.R. No. 146486, March 4, 2005

Facts:

Arturo Mojica is a deputy Ombudsman for the Visayas, was have been filed a formal complaint against him by twenty two officials and employees of his office. By committing the following: (1) sexual harassment (2) mulcting money from confidential employees (3) oppression against all employee in not releasing the 7, 200 benefits.

The Ombudsman acting of the formal complaints against mojica, directed his FFIB to conduct a verification and fact finding investigation on the matter. The FFIB found the evidence against mojica strong on the charges of extortion, sexual harassment, and oppression. The Ombudsman constituted COP.

Upon the evaluation of the COP on the evidence of the case, the COP fined sufficient cause to warrant the conduct of preliminary investigation and administrative adjudication. The committee recommended the docketing of the complainst as criminal  and administrative cases.

COP was directed by the Ombudsman to conduct administrative proceedings and to submit a recommendation on the propriety of putting mojica under preventive suspension.

Aggrieved, Mojica filed a petition for certiorari before the court of appeals praying that a TRO be issued to prevent the Ombudsman from further investigation of the complaints. And filed an urgent motion for the immediate issuance of an order enjoining the Ombudsman from taking any further action.

The CA grant the TRO and, The CA rendered a decision in favor of mojica, of being an impeachable official and making all the action of the Ombudsman against mojica null and viod and declared invalid.

Issues:

1.       Whether the CA gravely abused its discretion in erroneously ruling that private respondent is an impeachable official?

2.       Whether the court of appeals has no jurisdiction to order the dismissal of a criminal case against a retired deputy Ombudsman, which is still pending preliminary investigation.

Rulings:

Is the Deputy Ombudsman, then, an impeachable officer? Section 2, Article XI of the 1987 Constitution, states that:

Sec. 2. The President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

To determine whether or not the Ombudsman therein mentioned refers to a person or to an office, reference was made by the appellate court to the Records of the Constitutional Commission, as well as to the opinions of leading commentators in constitutional law. Thus:

. . . It appears that the members of the Constitutional Commission have made reference only to the Ombudsman as impeachable, excluding his deputies.

As to whether or not the private respondent, then Deputy Ombudsman for the Visayas, may be held criminally and/or administratively liable, we likewise resolve the issue in favor of the petitioner.

That the respondent is not an impeachable official, he can not avail on,” The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office”. Hence, the respondent is no longer in office, there can be no bar to his criminal prosecution in the courts.

Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the former’s retirement benefits have been placed on hold in view of the provisions of Sections 12 and 13 of the Anti-Graft and Corrupt Practices Act.

The SC ordered to reversed and set aside the CA rulings and to reinstate the acts of the Ombudsman against the Petitioner.

caboverde

ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA M. ARROYO

FACTS:

Seven days After 2010 Presidential Election, Chief Justice Reynato S. Puno had his compulsory Retirement by May 17, 2010. Even before the event actually happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. But under Section 4 (1), Article III judicial Department of the Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof, “from a "list of at least three nominees prepared by the Judicial and Bar Council for every vacancy." This provision sin in contrast with the provision mentioned above.

The question now arises whether the incumbent president has the right to appoint the next chief Justice upon the retirement of Chief Justice Puno. The JBC has unanimously agreed in their meeting on January 18, 2011, to start the process of the filling the Vacant position of the Retired Chief Justice. Judicial Bar Council has published the said announcement in the Daily inquirer and Philippine Star news papers on January 20, 2010. Despite of the issues JBC has decided to proceed to the next step of the process by announcing the names of the following Associate Justices: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval and inviting the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010, to the Following Candidates. The announcement was printed at Daily Inquirer and Philippine Star on February 13, 2010.

ISSUE:

Whether or not Section 15, Article VII apply to appointments in the Supreme Court or to the Judiciary.

RULING:

            No. Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary the Constitutional Commission confined the prohibition to appointments made in the Executive Department. However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment. The duty of the JBC to submit a list of nominees before the start of the President's mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty.  The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done.

GUDANI V. SENGA (2006)

FACTS:

On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to appear at a public hearing before the Senate Committee on National Defense and Security (Senate Committee) scheduled on 28 September 2005. The hearing was scheduled after topics concerning the conduct of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone conversation between President Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC) widely reputed as then COMELEC Commissioner Virgilio Garcillano. Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were among the several AFP officers who received a letter invitation.  The Office of the Chief of Staff of the AFP issued a Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing, prohibiting the two officers to attend the hearing without Presidential approval. Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority addressed to the PMA Superintendent. Nevertheless Gen. Gudani and Col. Balutan appeared before the Senate, thus Gen. Senga order them subjected to General Court Martial proceedings for wilfully violating an order of a superior officer. In the meantime, President Arroyo issued EO 464, which was subsequently declared unconstitutional.

ISSUE:

    Whether or not the President can prevent military officers from testifying at a legislative inquiry

RULING:

                YES. The President has constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance before it of a military officer against the consent of the President has adequate remedies under law to compel such attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute. Ability of President to prevent military officers from testifying before Congress is based on Commander-in-chief Powers.

The general rule, require military officers to seek presidential approval before appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds significant control over the armed forces in matters such as budget appropriations and the approval of higher-rank promotions, yet it is on the President that the Constitution vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline and the chain of command mandate that the President's ability to control the individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.

However the refusal of the President to allow members of the military to appear before Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature's functions is the conduct of inquiries in aid of legislation. In as much as it is ill-advised for Congress to interfere with the President's power as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congress's right to conduct legislative inquiries.. The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable interplay between the legislative and executive branches, informed by due deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to compel the other to a particular mode of behaviour. The judiciary, the third coordinate branch of government, does not enjoy a similar dynamic with either the legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to originate national policies and legislation, such is balanced by the fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the other branches of government.

DAVID V. ARROYO (2006)

FACTS:

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City.  And the authorities got hold of a document entitled "Oplan Hackle I" which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet members and President Arroyo herself. GMA declared PP 1017 and is to be implemented by GO 5. The said law was aimed to suppress lawlessness and the connivance of extremists to bring down the government.  Pursuant to such PP, GMA cancelled all plans to celebrate EDSA I and at the same time revoked all permits issued for rallies and other public organization/meeting. Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan. Operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), was arrested on the ground of a warrant for his arrest dated 1985. When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police. Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was Attempts were made to arrest Anak pawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the "Batasan 5" decided to stay indefinitely. In March, GMA issued PP 1021 w/c declared that the state of national emergency ceased to exist. David and some opposition Congressmen averred that PP1017 is unconstitutional for it has no factual basis and it cannot be validly declared by the president for such power is reposed in Congress.  Also such declaration is actually a declaration of martial law. Olivares-Cacho also averred that the emergency contemplated in the Constitution are those of natural calamities and that such is an over breadth. Petitioners claim that PP 1017 is an over breadth because it encroaches upon protected and unprotected rights. The Solicitor General argued that the issue has become moot and academic by reason of the lifting of PP 1017 by virtue of the declaration of PP 1021. The Solicitor General averred that PP 1017 is within the president’s calling out power, take care power and take over power.

ISSUE:

Whether  PP 1017 and GO 5 is constitutional

RULING:

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017's extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President - acting as Commander-in-Chief - addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard - that the military and the police should take only the "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFP's authority in carrying out this portion of G.O. No. 5.

It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state. During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our people's liberty.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.

ocamia

SSEA V. COURT OF APPEALS (1989)

THIRD DIVISION

[ G.R. NO. 85279, JULY 28, 1989 ]

SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISIO T. BAYLON, RAMON MODESTO, JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANTE, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, PETITIONERS, VS. THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, RESPONDENTS.

FACTS:

On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and barricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business with the SSS; that the strike was reported to the Public Sector Labor-Management Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered damages as a result of the strike.  The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and that the strikers are ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the strikebe declared illegal.

It appears that the SSSEA went on strikeafter the SSS failed to act on the union's demands, which included:  implementation of the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices.

ISSUE:

Whether or not the Regional Trial Court can enjoin the Social Security System Employees Association (SSSEA) from striking and order the striking employees to return to work.  Collaterally, it is whether or not employees of the Social Security System (SSS) have the right to strike.

RULING:

It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entrusted with proprietary functions:

Section 11.  Prohibition Against Strikes in the Government.  - The terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes or modification in their terms and conditions of employment.  Such employees may belong to any labor organization which does not impose the obligation to strike or to join in strike:  Provided,however, that this section shall apply only to employees employed in governmental functions and not those employed in proprietary functions of the Government including but not limited to governmental corporations.

No similar provision found in the Labor Code, although at one time it recognized the right of employees of government corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that "[t]he terms and conditions of employment of all Government employees, including employees of Government owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276.] understandably, the Labor Code is silent as to whether or not Government employees may strike, for such are excluded from its coverage [Ibid.] But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.

On June 1, 1987, to implement the constitutional guarantee of the right of Government employees to organize, the President issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of Government employees.  In Section 14 thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the Government service shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strike by Government employees . . . enjoins under pain of administrative sanctions, all Government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion.  At present, in the absence of any legislation allowing Government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180.  [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue.]

But are employees of the SSS covered by the prohibition against strikes?

The Court is of the considered view that they are considering that under the 1987 Constitution "[t]he civil service embraces all branches, subdivisions, instrumentality, and agencies of the Government, including Government-owned or controlled corporations with original charters" [Art. IX(B), Sec. 2(1); see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "Government employees"] and that the SSS is one such Government-controlled corporation with an original charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24, 1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes.  This being the case, the strike staged by the employees of the SSS was illegal.

The general rule in the past and up to the present is that "the terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended); since the terms and conditions of Government employment are fixed by law, Government workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers.  

The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis.  Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining.  In Government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of Government which fix the terms and conditions of employment.  And this is affected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements.

Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 Constitutional Convention, and quoted with approval by the Court in Alliance, to wit:

It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the peculiar character of the public service, it must necessarily regard theright to strike given to unions in private industry as not applying to public employees and civil service employees.  It has been stated that the Government, in contrast to the private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interests as are present in private labor relations could not exist in the relations between Government and those whom they employ.

E.O. No. 180, which provides guidelines for the exercise of the right to organize of Government employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law.  

Thus:SECTION 13.  Terms and conditions of employment or improvements thereof, except those that are fixed by law, may be the subject of negotiations between duly recognized employees’ organizations and appropriate Government authorities.

The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restrain it.

It is futile for the petitioners to assert that the the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence, the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike.  The Labor Code itself provides that terms and conditions of employment of Government employees shall be governed by the Civil Service Law, rules and regulations [Art. 276.] More importantly, E.O. No. 180 vests the Public Sector Labor-Management Council with jurisdiction over unresolved labor disputes involving Government employees [Sec. 16.] Clearly, the NLRC has no jurisdiction over the dispute.

This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amended, from assuming jurisdiction over the SSS’s complaint for damages and issuing the injunctive writ prayed for therein.  Unlike the NLRC, the Public Sector Labor-Management Council has not been granted by law authority to issue writs of injunction in labor disputes within its jurisdiction.  Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate.

Neither could the court a quo be accused of imprudence or over-zealousness, for in fact it had proceeded with caution.  Thus, after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their employer-employee relationship to the Public Sector Labor-Management Council for appropriate action.

In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petitioners alleged that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel the SSS to pay them.  In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board.

The matter being extraneous to the issues elevated to this Court, it is our view that petitioners' remedy is not to petition this Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final.

WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED.  Petitioners’ ”Petition/Application for Preliminary and Mandatory Injunction" dated December 13, 1988 is DENIED.

SO ORDERED.