G.R.
NO. 164858, NOVEMBER
16, 2006
HENRY P. LANOT,
SUBSTITUTED BY MARIO S. RAYMUNDO,
PETITIONER,
CHARMIE Q.
BENAVIDES,
PETITIONER-INTERVENOR,
VS.
COMMISSION ON
ELECTIONS AND VICENTE P. EUSEBIO, RESPONDENTS.
FACTS:
FACTS:
On 19 March 2004, Henry P. Lanot
("Lanot"), Vener Obispo ("Obispo"), Roberto Peralta
("Peralta"), Reynaldo dela Paz ("dela Paz"), EdilbertoYamat
("Yamat"), and Ram Alan Cruz ("Cruz") (collectively,
"petitioners"), filed a petition for disqualification under
Sections 68 and 80 of the Omnibus Election Code against Eusebio before
the COMELEC.Lanot, Obispo, and Eusebio were candidates for
Pasig City Mayor, while Peralta, dela Paz, Yamat, and Cruz were candidates for
Pasig City Councilor in the 10 May 2004 elections. The case was docketed as SPA
(NCR-RED) No. C04-008.
Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions outside of the designated campaign period, such as (1) addressing a large group of people during a medical mission sponsored by the Pasig City government; (2) uttering defamatory statements against Lanot; (3) causing the publication of a press release predicting his victory; (4) installing billboards, streamers, posters, and stickers printed with his surname across Pasig City; and (5) distributing shoes to schoolchildren in Pasig public schools to induce their parents to vote for him. Eusebio denied petitioners' allegations and branded the petition as a harassment case. Eusebio further stated that petitioners' evidence are merely fabricated.
Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions outside of the designated campaign period, such as (1) addressing a large group of people during a medical mission sponsored by the Pasig City government; (2) uttering defamatory statements against Lanot; (3) causing the publication of a press release predicting his victory; (4) installing billboards, streamers, posters, and stickers printed with his surname across Pasig City; and (5) distributing shoes to schoolchildren in Pasig public schools to induce their parents to vote for him. Eusebio denied petitioners' allegations and branded the petition as a harassment case. Eusebio further stated that petitioners' evidence are merely fabricated.
The ruling of the regional director on May 2004, recommends that the instant petition be granted, pursuant to section 68 (a)
and (e) of the omnibus election code, the respondent Vicente p. Eusebio is disqualified to run for the
position of mayor, Pasig city for violation of section 80 of the omnibus
election code.
The COMELEC ruled and orders on 5 may 2004, five days before the elections, the disqualification of respondent Vicente p. Eusebio from being a candidate for mayor of Pasig city in the May 10, 2004 elections; the election officers of district i and district ii of Pasig city to delete and cancel the name of respondent Vicente p. Eusebio from the certified list of candidates for the city offices of Pasig city for the May 10, 2004 elections; the board of election inspectors of all the precincts comprising the city of Pasig not to count the votes cast for respondent Vicente Eusebio, the same being cast for a disqualified candidate and therefore must be considered stray; the city board of canvassers of Pasig city not to canvass the votes erroneously cast for the disqualified candidate respondent Vicente p. Eusebio, in the event that such votes were recorded in the election returns; the regional director of NCR, and the election officers of Pasig city to immediately implement the foregoing directives; the law department through its director iv, atty. aliodenDalaig to file the necessary information against Vicente p. Eusebio before the appropriate court.
The COMELEC ruled and orders on 5 may 2004, five days before the elections, the disqualification of respondent Vicente p. Eusebio from being a candidate for mayor of Pasig city in the May 10, 2004 elections; the election officers of district i and district ii of Pasig city to delete and cancel the name of respondent Vicente p. Eusebio from the certified list of candidates for the city offices of Pasig city for the May 10, 2004 elections; the board of election inspectors of all the precincts comprising the city of Pasig not to count the votes cast for respondent Vicente Eusebio, the same being cast for a disqualified candidate and therefore must be considered stray; the city board of canvassers of Pasig city not to canvass the votes erroneously cast for the disqualified candidate respondent Vicente p. Eusebio, in the event that such votes were recorded in the election returns; the regional director of NCR, and the election officers of Pasig city to immediately implement the foregoing directives; the law department through its director iv, atty. aliodenDalaig to file the necessary information against Vicente p. Eusebio before the appropriate court.
ISSUES:
Ø Whether Eusebio actually committed the acts subject of the
petition for disqualification.
Ø What could be the effect if Eusebio will be disqualified
from the election.
There is no basis to disqualify Eusebio.
Director Ladra recommended the disqualification of Eusebio "for violation
of Section 80 of the Omnibus Election Code." The COMELEC First
Division approved Director Ladra's
recommendation and disqualified Eusebio
Acts committed by
Eusebio prior to
his being a "candidate" on 23 March 2004, even if constituting
election campaigning or partisan political activities, are not punishable under
Section 80 of the Omnibus Election Code. Such acts are protected as part of
freedom of expression of a citizen before he becomes a candidate for elective
public office. Acts committed by Eusebio on or after 24 March 2004, or during
the campaign period, are not covered by Section 80 which punishes only
acts outside the campaign
period.
The 14 February
2004 and 17 March 2004 speeches happened before the date Eusebio is deemed to
have filed his certificate of candidacy on 23 March 2004 for purposes other
than the printing ofballots. Eusebio, not being a candidate then, is not liable
for speeches on 14 February 2004 and 17 March 2004 asking the people to vote
for him.
They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine Star dated March 2, 2004 to the effect that the articles in question came from the camp of [Eusebio].
They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila Bulletin dated 10 March 2004 and Mr. Isaac G. Belmonte, Editor-in-Chief of Philippine Star dated March 2, 2004 to the effect that the articles in question came from the camp of [Eusebio].
Eusebio is not
liable for this publication which was made before he became a candidate on 23
March 2004.
Eusebio became a
"candidate," for purposes of Section 80 of the Omnibus Election Code,
only on 23 March 2004, the last day for filing certificates of candidacy.
Applying the facts - as found by Director Ladra and affirmed by the COMELEC First
Division - to Section 11 of RA 8436, Eusebio clearly did not violate Section 80
of the Omnibus Election Code which requires the existence of a
"candidate," one who has filed his certificate of candidacy, during
the commission of the questioned acts.
By definition, the
election offense in Section 80 of the Omnibus Election Code cannot be committed
during the campaign period. On the other hand, under Eusebio's theory, unlawful
acts applicable to a candidate cannot be committed outside of the campaign
period. The net result is to make the election offense in Section 80 physically
impossible to commit at any time. We shall leave this issue for some other case
in the future since the present case can be resolved without applying the
proviso in Section 11 of RA 8436.
As second placer,
Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the
event of Eusebio's disqualification. As third placer, Benavides, on the other
hand, prays that she be proclaimed as the rightful Pasig City Mayor in the
event of Eusebio's disqualification and in view of Lanot's death. Even if we
assume Eusebio's disqualification as fact, we cannot grant either prayer.
The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated because of the disqualification. Votes cast in favor of a candidate who obtained the highest number of votes, against whom a petition for disqualification was filed before the election, are presumed to have been cast in the belief that he was qualified. For this reason, the second placer cannot be declared elected.
The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to occupy the office vacated because of the disqualification. Votes cast in favor of a candidate who obtained the highest number of votes, against whom a petition for disqualification was filed before the election, are presumed to have been cast in the belief that he was qualified. For this reason, the second placer cannot be declared elected.
The exception to this rule rests on two assumptions. First, the one who obtained the highest number of votes is disqualified. Second, the voters are so fully aware in fact and in law of a candidate's disqualification to bring such awareness within the realm of notoriety but nonetheless the voters still cast their votes in favor of the ineligible candidate. Lanot and Benavides failed to prove that the exception applies in the present case. Thus, assuming for the sake of argument that Eusebio is disqualified, the rule on succession provides that the duly elected Vice-Mayor of Pasig City shall succeed in Eusebio's place.
The court dismissed the petition, finding no grave abuse of discretion in the 10 May 2004 Advisory of Chairman Benjamin S. Abalos and in the 21 May 2004 Order of the Commission on Elections En Banc. It has been set aside the 20 August 2004 Resolution of the Commission En Banc since respondent Vicente P. Eusebio did not commit any act which would disqualify him as a candidate in the 10 May 2004 elections.
G.R. NO. 191771, MAY 06,
2010
LIBERAL PARTY, REPRESENTED BY ITS PRESIDENT MANUEL A. ROXAS
II AND SECRETARY GENERAL JOSEPH EMILIO A. ABAYA,
PETITIONER,
VS.
COMMISSION ON ELECTIONS, NACIONALISTA PARTY, REPRESENTED BY
ITS PRESIDENT MANUEL B. VILLAR AND NATIONALIST PEOPLE'S COALITION, ALLEGEDLY
REPRESENTED BY ITS CHAIRMAN FAUSTINO S. DY, JR.,
RESPONDENTS.
FACTS:
On February 12, 2010, the LP filed with the COMELEC its petition for accreditation as dominant minority party. On the same date, the Nacionalista Party (NP) and the Nationalist People's Coalition (NPC) filed a petition for registration as a coalition (NP-NPC) and asked that "it be recognized and accredited as the dominant minority party for purposes of the May 10, 2010 elections." It was docketed as an SPP (DM) case, indicating - pursuant to COMELEC Resolution No. 8752 - that it was an accreditation case
On February 12, 2010, the LP filed with the COMELEC its
petition for accreditation as dominant minority party. On the same date, the
Nacionalista Party (NP) and the Nationalist People's Coalition (NPC)
filed a petition for registration as a coalition (NP-NPC) and asked that
"it be recognized and accredited as the dominant minority party for
purposes of the May 10, 2010 elections." It was docketed as an SPP
(DM) case, indicating - pursuant to COMELEC Resolution No.
8752 - that it was an accreditation case.
ISSUES:
I.
Preliminary Issues:
A. Should the petition be
dismissed outright for procedural and technical infirmities?
B. Is the present petition
premature since its object is to foreclose a ruling on the unsettled NP-NPC
issue?
D. Is the NP-NPC an
"operative fact" that the COMELEC simply
has to note and recognize without need of registration?
II.
Does the en banc have jurisdiction at the
first instance to entertain the petition?
III.
On the merits and assuming that the en banc has
jurisdiction, did it gravely abuse its discretion when it allowed the
registration of the NP-NPC?
A. Was due process observed in
granting the registration?
B. Did the coalition take place as
required by law:
i. in terms of compliance with internal rules of the
NP and the NPC?
ii.in terms of the consent to or support for, and
the lack of objection to, the
coalition?
RULING:
The court see every reason to be liberal in the present case in
view of interests involved which are indisputably important to the coming
electoral exercise now fast approaching. The registration of political parties,
their accreditation as dominant parties, and the benefits these recognitions
provide - particularly, the on-line real time electronic transmission of
election results from the Board of Election Inspectors (BEI) through the
Precinct Count Optical Scan (PCOS) machines; the immediate access to
official election results; the per diems from the government
that watchers of accredited parties enjoy; and the representation at the
printing, storage and distribution of ballots that the dominant-party status
brings - constitute distinct advantages to any party and its candidates, if
only in terms of the ready information enabling them to react faster to
developing situations. The value of these advantages exponentially rises
in an election under an automated system whose effectiveness and reliability,
even at this late stage, are question marks to some. To the public, the proper registration
and the accreditation of dominant parties are evidence of equitable party
representation at the scene of electoral action, and translate in no small
measure to transparency and to the election's credibility, by-passing the technical and procedural questions
raised that do not anyway affect
the integrity of the petition before us or prejudice the parties
involved, and concentrating as well on the issues that would resolve
the case soonest so that the parties involved and the COMELEC can
move on to their assigned time-sensitive roles and tasks in the coming
elections.
The respondents placed in issue defects in the attachments to the petition, their objection is a formal one as they do not deny the existence and basic correctness of these attachments. We see no resulting harm or prejudice therefore if we overrule the objection raised, given the weight of the counterbalancing factors we considered above.
The respondents placed in issue defects in the attachments to the petition, their objection is a formal one as they do not deny the existence and basic correctness of these attachments. We see no resulting harm or prejudice therefore if we overrule the objection raised, given the weight of the counterbalancing factors we considered above.
When a court
exercises its jurisdiction, an error committed while so engaged does not
deprive it of the jurisdiction being exercised when the error is committed. If
it did, every error committed by a court would deprive it of its jurisdiction
and every erroneous judgment would be a void judgment. This cannot be allowed.
The administration of justice would not survive such a rule. Consequently, an
error of judgment that the court may commit in the exercise of its jurisdiction
is not correctable through the original civil action of certiorari."
The root of the present petition is
the NP-NPC petition before the COMELEC for registration
as a coalition and accreditation as the dominant minority party. While
the en banc claimed that it had jurisdiction over the
registration of coalitions and in fact decreed the NP-NPC's registration, it
strangely did not rule on the accreditation aspect of the petition.
The registration of a coalition and the accreditation of a dominant minority party are two separate matters that are substantively distinct from each other. Registration is the act that bestows juridical personality for purposes of our election laws; accreditation, on the other hand, relates to the privileged participation that our election laws grant to qualified registered parties.
Where the registration is flawed for having been attended by grave abuse of discretion, as alleged in the petition, the filing of a petition for prohibition with a prayer for a preliminary injunction can only be expected as a logical remedial move; otherwise, accreditation, unless restrained, will follow. Thus, from the point of view of prohibition, there is absolutely no prematurity as its avowed intent is in fact to forestall an event - the accreditation - that according to the assailed Resolution shall soon take place. From the point of view of the petition for certiorari questioning the registration made, no prematurity issue is involved as the nullification of a past and accomplished act is prayed for. From these perspectives, the OSG objection based on prematurity is shown to be completely groundless.
In fact, no substantial distinction exists among these entities germane to the act of registration that would justify creating distinctions among them in terms of deadlines. Such distinctions in the deadlines for the registration of political organizations and coalitions, if allowed, may even wreak havoc on the procedural orderliness of elections by allowing these registrations to introduce late and confusing signals to the electorate, not to mention their possible adverse effects on election systems and procedures. This, the en banc very well knows, and their lack of unanimity on the disputed point of timeliness shows how unusual the majority's reading has been.
We note in this regard that the registration of parties is the first in a list of election-related activities that peaks in the voting on May 10, 2010. This list takes into account the close step-by-step procedure the COMELEC has to undertake in implementing the automated election system (AES). We note, too, that a closely related activity is the holding of political conventions to select and nominate official party candidates for all election positions, scheduled on October 21, 2009, and November 20, 2009 was the deadline for the filing of the certificates of candidacy for all elective positions - an undertaking that required the candidates' manifestation of their official party affiliation. There is also a host of election activities in which officially registered parties have to participate, principally: the examination and testing of equipment or devices for the AES and the opening of source codes for review; the nomination of official watchers; and the printing, storage and distribution of official ballots wherein accredited political parties may assign watchers. Of course, registered political parties have very significant participation on election day, during the voting and thereafter; the COMELEC needs to receive advance information and make arrangements on which ones are the registered political parties, organizations and coalitions.
All these are related to show that the COMELEC deadline cannot but be mandatory; the whole electoral exercise may fail or at least suffer disruptions, if the deadlines are not observed. For this reason, the COMELEC has in the past in fact rejected applications for registration for having been filed out of time. A case in point is the application of the political party Philippine Guardians Brotherhood, Inc., where the COMELEC denied the plea for registration for having been filed out of time,among other grounds. Philippine Guardians Brotherhood might not have been the only political party whose application for registration was denied at the COMELEC level for late filing. We are sure that all these other organizations would now cry foul - and rightly so - because of the denial of their applications on the ground of late filing, when the NP-NPC has been made an exception without rhyme or reason.
Given the mandatory nature of the deadline, subject only to a systemic change the en banc acted in excess of its jurisdiction when it granted the registration of NP-NPC as a coalition beyond the deadline the COMELEC itself had set; the authority to register political parties under mandatory terms is only up to the deadline. Effectively, the mandatory deadline is a jurisdictional matter that should have been satisfied and was not.
The registration of a coalition and the accreditation of a dominant minority party are two separate matters that are substantively distinct from each other. Registration is the act that bestows juridical personality for purposes of our election laws; accreditation, on the other hand, relates to the privileged participation that our election laws grant to qualified registered parties.
Where the registration is flawed for having been attended by grave abuse of discretion, as alleged in the petition, the filing of a petition for prohibition with a prayer for a preliminary injunction can only be expected as a logical remedial move; otherwise, accreditation, unless restrained, will follow. Thus, from the point of view of prohibition, there is absolutely no prematurity as its avowed intent is in fact to forestall an event - the accreditation - that according to the assailed Resolution shall soon take place. From the point of view of the petition for certiorari questioning the registration made, no prematurity issue is involved as the nullification of a past and accomplished act is prayed for. From these perspectives, the OSG objection based on prematurity is shown to be completely groundless.
In fact, no substantial distinction exists among these entities germane to the act of registration that would justify creating distinctions among them in terms of deadlines. Such distinctions in the deadlines for the registration of political organizations and coalitions, if allowed, may even wreak havoc on the procedural orderliness of elections by allowing these registrations to introduce late and confusing signals to the electorate, not to mention their possible adverse effects on election systems and procedures. This, the en banc very well knows, and their lack of unanimity on the disputed point of timeliness shows how unusual the majority's reading has been.
We note in this regard that the registration of parties is the first in a list of election-related activities that peaks in the voting on May 10, 2010. This list takes into account the close step-by-step procedure the COMELEC has to undertake in implementing the automated election system (AES). We note, too, that a closely related activity is the holding of political conventions to select and nominate official party candidates for all election positions, scheduled on October 21, 2009, and November 20, 2009 was the deadline for the filing of the certificates of candidacy for all elective positions - an undertaking that required the candidates' manifestation of their official party affiliation. There is also a host of election activities in which officially registered parties have to participate, principally: the examination and testing of equipment or devices for the AES and the opening of source codes for review; the nomination of official watchers; and the printing, storage and distribution of official ballots wherein accredited political parties may assign watchers. Of course, registered political parties have very significant participation on election day, during the voting and thereafter; the COMELEC needs to receive advance information and make arrangements on which ones are the registered political parties, organizations and coalitions.
All these are related to show that the COMELEC deadline cannot but be mandatory; the whole electoral exercise may fail or at least suffer disruptions, if the deadlines are not observed. For this reason, the COMELEC has in the past in fact rejected applications for registration for having been filed out of time. A case in point is the application of the political party Philippine Guardians Brotherhood, Inc., where the COMELEC denied the plea for registration for having been filed out of time,among other grounds. Philippine Guardians Brotherhood might not have been the only political party whose application for registration was denied at the COMELEC level for late filing. We are sure that all these other organizations would now cry foul - and rightly so - because of the denial of their applications on the ground of late filing, when the NP-NPC has been made an exception without rhyme or reason.
Given the mandatory nature of the deadline, subject only to a systemic change the en banc acted in excess of its jurisdiction when it granted the registration of NP-NPC as a coalition beyond the deadline the COMELEC itself had set; the authority to register political parties under mandatory terms is only up to the deadline. Effectively, the mandatory deadline is a jurisdictional matter that should have been satisfied and was not.
Political coalitions need to register
in accordance with the established norms and procedures, if they are to be
recognized as such and be given the benefits accorded by law to registered
coalitions. Registered political parties carry a different legal personality
from that of the coalition they may wish to establish with other similarly
registered parties. If they want to coalesce with one another without the
formal registration of their coalition, they can do so on their own in the
exercise of their and their members' democratic freedom of choice, but they
cannot receive official recognition for their coalition. Or they can choose to
secure the registration of their coalition in order to be accorded the
privileges accruing to registered coalitions, including the right to be
accredited as a dominant majority or minority party. There are no ifs and buts
about these constitutional terms.
The court solely rule for now that
the en banc gravely abused its discretion when it disregarded
its own deadline in ruling on the registration of the NP-NPC as a coalition. In
so ruling, we emphasize that the matter of party registration raises critical
election concerns that should be handled with discretion commensurate with the
importance of elections to our democratic system. The COMELEC should
be at its most strict in implementing and complying with the standards and
procedures the Constitution and our laws impose.
the court
grants the petition and nullify and set aside the Resolution of the
Commission on Elections dated April 12, 2010 in the application for
registration of the Nacionalista Party-Nationalist People's Coalition as a
political coalition, docketed as SPP-10-(DM). The Commission on Elections
is DECLARED BARRED from
granting accreditation to the proposed NP-NPC Coalition in the May 10, 2010
elections for lack of the requisite registration as a political
coalition. This Decision is
declared immediately executory.
G.R. NO. 165132, MARCH
07, 2012
PETITIONER,
VS.
NELLIE R. APOLONIO,
RESPONDENT
FACTS:
Dr. Apolonio served as the Executive
Officer of the National Book Development Board (NBDB) from 1996 to August 26,
2002. As NBDB’s executive officer, Dr. Apolonio supervised NBDB’s Secretariat
and managed its day-to-day affairs.
In December 2000,
NBDB’s Governing Board approved the conduct of a Team Building Seminar Workshop
for its officers and employees. The workshop was scheduled to be a two-day
event, to be held on December 20-21, 2000, and budget each participant P900.00
per day. Prior to the conduct of the workshop, some of the
employees/participants approached Dr. Apolonio to ask whether a part of their
allowance, instead of spending the entire amount on the seminar, could be given
to them as cash. Dr. Apolonio consulted Rogelio Montealto, then Finance
and Administrative Chief of NBDB, about the proposal and the possible legal
repercussions of the proposal. Concluding the proposal to be legally sound and
in the spirit of the yuletide season, Dr. Apolonio approved the request.Thus,
after the end of the workshop, SM gift cheques were distributed to the
participants in lieu of a portion of their approved allowance.
Nicasio I. Marte,
an NBDB Consultant, filed a complaint against Dr. Apolonio and Mr. Montealto
before the Ombudsman, alleging that Dr. Apolonio and Mr.
Montealto committed grave misconduct, dishonesty and conduct prejudicial to the
best interest of the service for the unauthorized purchase and disbursement of
the gift cheques. Mr. Marte alleged that the NBDB’s Governing Board never
authorized the disbursement of the funds for the purchase of the gift cheques
and that the purchases were never stated in Dr. Apolonio’s liquidation report.
Based on the investigation of Graft Investigation Officer (GIO) Plaridel Oscar J. Bohol, he found Dr. Apolonio and Mr. Montealto administratively liable for conduct prejudicial to the best interest of the service, but exonerated them from the charges of grave misconduct and dishonesty, and recommended the imposition of suspension for six (6) months and one (1) day without pay.GIO Bohol’s recommendation was not acted favorably by then Acting Ombudsman MargaritoGervacio, Jr. who adopted the recommendation of GIO Julita M. Calderon. GIO Calderon’s recommendation found Dr. Apolonio and Mr. Montealto guilty of gross misconduct and dishonestly, in addition to the charge of conduct grossly prejudicial to the best interest of the service. Consequently, GIO Calderon recommended that Dr. Apolonio and Mr. Montealto be dismissed from the service.This prompted Dr. Apolonio to file a petition for review on certiorari in the CA.
Based on the investigation of Graft Investigation Officer (GIO) Plaridel Oscar J. Bohol, he found Dr. Apolonio and Mr. Montealto administratively liable for conduct prejudicial to the best interest of the service, but exonerated them from the charges of grave misconduct and dishonesty, and recommended the imposition of suspension for six (6) months and one (1) day without pay.GIO Bohol’s recommendation was not acted favorably by then Acting Ombudsman MargaritoGervacio, Jr. who adopted the recommendation of GIO Julita M. Calderon. GIO Calderon’s recommendation found Dr. Apolonio and Mr. Montealto guilty of gross misconduct and dishonestly, in addition to the charge of conduct grossly prejudicial to the best interest of the service. Consequently, GIO Calderon recommended that Dr. Apolonio and Mr. Montealto be dismissed from the service.This prompted Dr. Apolonio to file a petition for review on certiorari in the CA.
ISSUES:
Ø Whether the Ombudsman has power to directly impose the
penalty of removal from office against public officials.
Ø Whether Dr. Apolonio’s act constitute grave misconduct.
RULING:
The Ombudsman has the power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee, in the exercise of its administrative disciplinary authority. The challenge to the Ombudsman’s power to impose these penalties, on the allegation that the Constitution only grants it recommendatory powers, had already been rejected by this Court.
The Office of
the Ombudsman shall
have the following powers, functions, and duties: to investigate on its own, or
on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient; direct the officer concerned to take appropriate
action against a public official or employee at fault, and recommend his
removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.
Contrary to the Ombudsman’s
submissions, however, Dr. Apolonio is guilty of simple misconduct, not grave
misconduct or conduct prejudicial to the best interest of the service the court disagree with both the CA’s and the Ombudsman’s
findings. Instead, the court finds Dr. Apolonio guilty of simple misconduct.
Dr. Apolonio’s actions were not attended by a willful intent to violate the law or to disregard established rules, he merely responded to the employees’ clamor to utilize a portion of the workshop budget as a form of Christmas allowance. To ensure that she was not violating any law, Dr. Apolonio even consulted Mr. Montealto, then Finance and Administrative Chief of the NBDB, on the possible legal repercussions of the proposal. Likewise, aside from receiving the same benefit, there is no evidence in the record that Dr. Apolonio unlawfully appropriated in her favor any amount from the approved workshop budget. Therefore, the court sees no willful intent in Dr. Apolonio’s actions.
the court disagree with the Ombudsman’s insinuations that Dr. Apolonio’s acts may be considered technical malversation and, therefore, constitute a crime. in the absence of a law or ordinance appropriating the public fund allegedly technically malversed for another public purpose, an accused did not commit technical malversation as set out in Article 220 of the Revised Penal Code. When Dr. Apolonio approved the purchase of the gift cheques using a portion of the workshop’s budget, her act did not amount to technical malversation. Moreover, if her acts did, in fact, constitute technical malversation, the Ombudsman ought to have filed a criminal case against her for violation of Article 220 of the Revised Penal Code. it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office.
Dr. Apolonio’s actions were not attended by a willful intent to violate the law or to disregard established rules, he merely responded to the employees’ clamor to utilize a portion of the workshop budget as a form of Christmas allowance. To ensure that she was not violating any law, Dr. Apolonio even consulted Mr. Montealto, then Finance and Administrative Chief of the NBDB, on the possible legal repercussions of the proposal. Likewise, aside from receiving the same benefit, there is no evidence in the record that Dr. Apolonio unlawfully appropriated in her favor any amount from the approved workshop budget. Therefore, the court sees no willful intent in Dr. Apolonio’s actions.
the court disagree with the Ombudsman’s insinuations that Dr. Apolonio’s acts may be considered technical malversation and, therefore, constitute a crime. in the absence of a law or ordinance appropriating the public fund allegedly technically malversed for another public purpose, an accused did not commit technical malversation as set out in Article 220 of the Revised Penal Code. When Dr. Apolonio approved the purchase of the gift cheques using a portion of the workshop’s budget, her act did not amount to technical malversation. Moreover, if her acts did, in fact, constitute technical malversation, the Ombudsman ought to have filed a criminal case against her for violation of Article 220 of the Revised Penal Code. it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office.
Thus, we hold that Dr. Apolonio is guilty of simple misconduct. Although her actions do not amount to technical malversation, she did violate Section 89 of PD 1445 when she approved the cash advance that was not authorized by the NBDB’s Governing Board. Further, since the approval of the cash advance was an act done pursuant to her functions as executive officer, she is not merely guilty of conduct prejudicial to the best interest of the service.
WHEREFORE, the court PARTIALLY GRANT the Office of the Ombudsman’s petition for review on certiorari, and MODIFY the decision of the Court of Appeals in CA-G.R. SP No. 73357. FindsDr. Nellie R. Apolonio GUILTY of SIMPLE MISCONDUCT. In the absence of any showing that this is her second offense for simple misconduct, we impose the penalty of SUSPENSION for SIX MONTHS against Dr. Apolonio,but due to her retirement from the service, order the amount corresponding to her six-month salary to be deducted from her retirement benefits.
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