Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner,

vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of
Manila, Branch 25, and MARK B. JIMENEZ, respondents.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis--vis the vast
and overwhelming powers of government. His only guarantee against
oppression and tyranny are his fundamental liberties under the Bill of Rights
which shield him in times of need. The Court is now called to decide whether
to uphold a citizen's basic due process rights, or the government's ironclad
duties under a treaty. The bugle sounds and this Court must once again act
as the faithful guardian of the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential

Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons
Who Have Committed Crimes in a Foreign Country". The Decree is founded
on: the doctrine of incorporation under the Constitution; the mutual concern
for the suppression of crime both in the state where it was committed and
the state where the criminal may have escaped; the extradition treaty with
the Republic of Indonesia and the intention of the Philippines to enter into
similar treaties with other interested countries; and the need for rules to
guide the executive department and the courts in the proper implementation
of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon,

representing the Government of the Republic of the Philippines, signed in
Manila the "Extradition Treaty Between the Government of the Republic of
the Philippines and the Government of the United States of America"
(hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way
of Resolution No. 11, expressed its concurrence in the ratification of said
treaty. It also expressed its concurrence in the Diplomatic Notes correcting
Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents
accompanying an extradition request upon certification by the principal
diplomatic or consular officer of the requested state resident in the
Requesting State).

On June 18, 1999, the Department of Justice received from the Department
of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the
extradition of private respondent Mark Jimenez to the United States.
Attached to the Note Verbale were the Grand Jury Indictment, the warrant of
arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers submitted,
private respondent appears to be charged in the United States with violation
of the following provisions of the United States Code (USC):

A) 18 USC 371 (Conspiracy to commit offense or to defraud the United

States; two [2] counts; Maximum Penalty 5 years on each count);

B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts;

Maximum Penalty 5 years on each count);

C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;

Maximum Penalty 5 years on each count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum

Penalty 5 years on each count);

E) 2 USC 441f (Election contributions in name of another; thirty-three

[33] counts; Maximum Penalty less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating
and authorizing a panel of attorneys to take charge of and to handle the case
pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the
panel began with the "technical evaluation and assessment" of the
extradition request and the documents in support thereof. The panel found
that the "official English translation of some documents in Spanish were not
attached to the request and that there are some other matters that needed
to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private

respondent, through counsel, wrote a letter dated July 1, 1999 addressed to
petitioner requesting copies of the official extradition request from the U.S.
Government, as well as all documents and papers submitted therewith; and
that he be given ample time to comment on the request after he shall have
received copies of the requested papers. Private respondent also requested
that the proceedings on the matter be held in abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a
copy of, or access to, the request of the United States Government, and after
receiving a copy of the Diplomatic Note, a period of time to amplify on his
request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-

letter dated July 13, 1999 (but received by private respondent only on August
4, 1999), denied the foregoing requests for the following reasons:

1. We find it premature to furnish you with copies of the extradition

request and supporting documents from the United States
Government, pending evaluation by this Department of the sufficiency
of the extradition documents submitted in accordance with the
provisions of the extradition treaty and our extradition law. Article 7 of
the Extradition Treaty between the Philippines and the United States
enumerates the documentary requirements and establishes the
procedures under which the documents submitted shall be received
and admitted as evidence. Evidentiary requirements under our
domestic law are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not

a preliminary investigation nor akin to preliminary investigation of
criminal cases. We merely determine whether the procedures and
requirements under the relevant law and treaty have been complied
with by the Requesting Government. The constitutionally guaranteed
rights of the accused in all criminal prosecutions are therefore not
available.

It is only after the filing of the petition for extradition when the person
sought to be extradited will be furnished by the court with copies of the
petition, request and extradition documents and this Department will
not pose any objection to a request for ample time to evaluate said
documents.

2. The formal request for extradition of the United States contains

grand jury information and documents obtained through grand jury
process covered by strict secrecy rules under United States law. The
United States had to secure orders from the concerned District Courts
authorizing the United States to disclose certain grand jury information
to Philippine government and law enforcement personnel for the
purpose of extradition of Mr. Jimenez. Any further disclosure of the said
information is not authorized by the United States District Courts. In
this particular extradition request the United States Government
requested the Philippine Government to prevent unauthorized
disclosure of the subject information. This Department's denial of your
request is consistent with Article 7 of the RP-US Extradition Treaty
 which provides that the Philippine Government must represent the
interests of the United States in any proceedings arising out of a
request for extradition. The Department of Justice under P.D. No. 1069
is the counsel of the foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings

in connection with an extradition request. Article 26 of the Vienna
Convention on the Law of Treaties, to which we are a party provides
that "[E]very treaty in force is binding upon the parties to it and must
be performed by them in good faith". Extradition is a tool of criminal
law enforcement and to be effective, requests for extradition or
surrender of accused or convicted persons must be processed
expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent
filed with the Regional Trial Court of the National Capital Judicial Region a
petition against the Secretary of Justice, the Secretary of Foreign Affairs, and
the Director of the National Bureau of Investigation, for mandamus (to
compel herein petitioner to furnish private respondent the extradition
documents, to give him access thereto, and to afford him an opportunity to
comment on, or oppose, the extradition request, and thereafter to evaluate
the request impartially, fairly and objectively); certiorari (to set aside herein
petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner
from considering the extradition request and from filing an extradition
petition in court; and to enjoin the Secretary of Foreign Affairs and the
Director of the NBI from performing any act directed to the extradition of
private respondent to the United States), with an application for the issuance
of a temporary restraining order and a writ of preliminary injunction (pp. 104-
105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and
thereafter raffled to Branch 25 of said regional trial court stationed in Manila
which is presided over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999.
Petitioner, who appeared in his own behalf, moved that he be given ample
time to file a memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous
day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the

Secretary of Justice, the Secretary of Foreign Affairs and the Director of
the National Bureau of Investigation, their agents and/or
 representatives to maintain the status quo by refraining from
committing the acts complained of; from conducting further
proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from performing
any act directed to the extradition of the petitioner to the United
States, for a period of twenty (20) days from service on respondents of
this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary
injunction, as agreed upon by the counsels for the parties herein, is set
on August 17, 1999 at 9:00 o'clock in the morning. The respondents
are, likewise, ordered to file their written comment and/or opposition to
the issuance of a Preliminary Injunction on or before said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION

OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING
ORDER BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE

ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE
RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND
DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE
REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE
PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN
EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE
MERITS OF THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING

LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE
EXTRADITION LAW;

III.
 THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON
ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS

PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY
IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his
comment. Also issued, as prayed for, was a temporary restraining order
(TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further

orders from this Court, You, Respondent Judge Ralph C. Lantion, your
agents, representatives or any person or persons acting in your place
or stead are hereby ORDERED to CEASE and DESIST from enforcing the
assailed order dated August 9, 1999 issued by public respondent in
Civil Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme

Court of the Philippines, this 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the
parties, as directed, filed their respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive
issues are patent. However, a review of these issues as well as the extensive
arguments of both parties, compel us to delineate the focal point raised by
the pleadings: During the evaluation stage of the extradition proceedings, is
private respondent entitled to the two basic due process rights of notice and
hearing? An affirmative answer would necessarily render the proceedings at
the trial court, moot and academic (the issues of which are substantially the
same as those before us now), while a negative resolution would call for the
immediate lifting of the TRO issued by this Court dated August 24, 1999,
thus allowing petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily, in the
event that private respondent is adjudged entitled to basic due process
rights at the evaluation stage of the extradition proceedings, would this
entitlement constitute a breach of the legal commitments and obligations of
the Philippine Government under the RP-US Extradition Treaty? And
assuming that the result would indeed be a breach, is there any conflict
between private respondent's basic due process rights and the provisions of
the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go

directly into the substantive merits of the case, brushing aside peripheral
procedural matters which concern the proceedings in Civil Case No. 99-
94684, particularly the propriety of the filing of the petition therein, and of
the issuance of the TRO of August 17, 1999 by the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-
US Extradition Treaty which was executed only on November 13, 1994,
ushered into force the implementing provisions of Presidential Decree No.
1069, also called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on
him under the penal or criminal law of the requesting state or government."
The portions of the Decree relevant to the instant case which involves a
charged and not convicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State,

addressed to the Secretary of Foreign Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the

warrant of arrest issued by the authority of the Requesting State
having jurisdiction over the matter, or some other instruments having
equivalent legal force;

2. A recital of the acts for which extradition is requested, with the

fullest particulars as to the name and identity of the accused, his
whereabouts in the Philippines, if known, the acts or omissions
complained of, and the time and place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said

law, and the designation or description of the offense by the law,
sufficient for evaluation of the request; and

4. Such other documents or information in support of the request.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary
of Foreign Affairs, pertinently provides
 . . . (1) Unless it appears to the Secretary of Foreign Affairs that the
request fails to meet the requirements of this law and the relevant
treaty or convention, he shall forward the request together with the
related documents to the Secretary of Justice, who shall immediately
designate and authorize an attorney in his office to take charge of the
case.

The above provision shows only too clearly that the executive authority given
the task of evaluating the sufficiency of the request and the supporting
documents is the Secretary of Foreign Affairs. What then is the coverage of
this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition

Treaty, the executive authority must ascertain whether or not the request is
supported by:

1. Documents, statements, or other types of information which

describe the identity and probable location of the person sought;

2. A statement of the facts of the offense and the procedural history of

the case;

3. A statement of the provisions of the law describing the essential

elements of the offense for which extradition is requested;

4. A statement of the provisions of law describing the punishment for

the offense;

5. A statement of the provisions of the law describing any time limit on

the prosecution or the execution of punishment for the offense;

6. Documents, statements, or other types of information specified in

paragraph 3 or paragraph 4 of said Article, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State,

would provide probable cause for his arrest and committal for trial if
the offense had been committed there;

8. A copy of the warrant or order of arrest issued by a judge or other

competent authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that
the accompanying documents received in support of the request had been
certified by the principal diplomatic or consular officer of the Requested
State resident in the Requesting State (Embassy Note No. 052 from U. S.
Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition

shall not be granted if the executive authority of the Requested State
determines that the request is politically motivated, or that the offense is a
military offense which is not punishable under non-military penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition
request and its supporting documents are sufficient and complete in form
and substance, he shall deliver the same to the Secretary of Justice, who
shall immediately designate and authorize an attorney in his office to take
charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial
court of the province or city, with a prayer that the court take the extradition
request under consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for
extradition, shall, as soon as practicable, issue an order summoning the
prospective extraditee to appear and to answer the petition on the day and
hour fixed in the order. The judge may issue a warrant of arrest if it appears
that the immediate arrest and temporary detention of the accused will best
serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to
prevent the flight of the prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph
[1], Section 9 thereof provides that in the hearing of the extradition petition,
the provisions of the Rules of Court, insofar as practicable and not
inconsistent with the summary nature of the proceedings, shall apply. During
the hearing, Section 8 of the Decree provides that the attorney having
charge of the case may, upon application by the Requesting State, represent
the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the
extradition and giving the reasons therefor upon a showing of the existence
of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision
is appealable to the Court of Appeals, whose decision shall be final and
immediately executory (Section 12, ibid.). The provisions of the Rules of
Court governing appeal in criminal cases in the Court of Appeals shall apply
in the aforementioned appeal, except for the required 15-day period to file
brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the
petition is extraditable based on the application of the dual criminality rule
and other conditions mentioned in Article 2 of the RP-US Extradition Treaty.
The trial court also determines whether or not the offense for which
extradition is requested is a political one (Paragraph [1], Article 3, RP-US
Extradition Treaty).1wphi1.nt

With the foregoing abstract of the extradition proceedings as backdrop, the

following query presents itself: What is the nature of the role of the
Department of Justice at the evaluation stage of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the request and all
the supporting papers are forwarded to him by the Secretary of Foreign
Affairs. It is the latter official who is authorized to evaluate the extradition
papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the
Treaty, to determine whether or not the request is politically motivated, or
that the offense is a military offense which is not punishable under non-
military penal legislation. Ipso facto, as expressly provided in Paragraph [1],
Section 5 of the Extradition Law, the Secretary of Justice has the ministerial
duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear
that there was failure to abide by the provisions of Presidential Decree No.
1069. For while it is true that the extradition request was delivered to the
Department of Foreign Affairs on June 17, 1999, the following day or less
than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of
thoroughly evaluating the same and its accompanying documents. The
statement of an assistant secretary at the Department of Foreign Affairs that
his Department, in this regard, is merely acting as a post office, for which
reason he simply forwarded the request to the Department of Justice,
indicates the magnitude of the error of the Department of Foreign Affairs in
taking lightly its responsibilities. Thereafter, the Department of Justice took it
upon itself to determine the completeness of the documents and to evaluate
the same to find out whether they comply with the requirements laid down in
the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates
in this connection that although the Department of Justice had no obligation
to evaluate the extradition documents, the Department also had to go over
them so as to be able to prepare an extradition petition (tsn, August 31,
1999, pp. 24-25). Notably, it was also at this stage where private respondent
insisted on the following; (1) the right to be furnished the request and the
supporting papers; (2) the right to be heard which consists in having a
reasonable period of time to oppose the request, and to present evidence in
support of the opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondent's opposition to the
request.

The two Departments seem to have misread the scope of their duties and
authority, one abdicating its powers and the other enlarging its commission.
The Department of Foreign Affairs, moreover, has, through the Solicitor
General, filed a manifestation that it is adopting the instant petition as its
own, indirectly conveying the message that if it were to evaluate the
extradition request, it would not allow private respondent to participate in
the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition request
and supporting documents and that it arrived at a well-founded judgment
that the request and its annexed documents satisfy the requirements of law.
The Secretary of Justice, eminent as he is in the field of law, could not
privately review the papers all by himself. He had to officially constitute a
panel of attorneys. How then could the DFA Secretary or his undersecretary,
in less than one day, make the more authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs
to a class by itself. It is sui generis. It is not a criminal investigation, but it is
also erroneous to say that it is purely an exercise of ministerial functions. At
such stage, the executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition papers;
(b) to outrightly deny the request if on its face and on the face of the
supporting documents the crimes indicated are not extraditable; and (c) to
make a determination whether or not the request is politically motivated, or
that the offense is a military one which is not punishable under non-military
penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph
[3], Article 3, RP-US Extradition Treaty). Hence, said process may be
characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-
judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and

evaluation of evidence; (b) determining facts based upon the evidence
presented; and (c) rendering an order or decision supported by the facts
proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing
Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also
known as examining or investigatory power, is one or the determinative
powers of an administrative body which better enables it to exercise its
quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This
power allows the administrative body to inspect the records and premises,
and investigate the activities, of persons or entities coming under its
jurisdiction (Ibid., p. 27), or to require disclosure of information by means or
accounts, records, reports, testimony of witnesses, production of documents,
or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing

evidence, which is a useful aid or tool in an administrative agency's
performance of its rule-making or quasi-judicial functions. Notably,
investigation is indispensable to prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had
occasion to rule on the functions of an investigatory body with the sole
power of investigation. It does not exercise judicial functions and its power is
limited to investigating the facts and making findings in respect thereto. The
Court laid down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions: Adjudication
signifies the exercise of power and authority to adjudicate upon the rights
and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts
and circumstances presented to it, and if the agency is not authorized to
make a final pronouncement affecting the parties, then there is an absence
of judicial discretion and judgment.

The above description in Ruperto applies to an administrative body

authorized to evaluate extradition documents. The body has no power to
adjudicate in regard to the rights and obligations of both the Requesting
State and the prospective extraditee. Its only power is to determine whether
the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is
thus merely initial and not final. The body has no power to determine
whether or not the extradition should be effected. That is the role of the
court. The body's power is limited to an initial finding of whether or not the
extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the

evaluation procedure is characterized by certain peculiarities. Primarily, it
sets into motion the wheels of the extradition process. Ultimately, it may
result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the
prospective extraditee pending the submission of the request. This is so
because the Treaty provides that in case of urgency, a contracting party may
request the provisional arrest of the person sought pending presentation of
the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall
be automatically discharged after 60 days if no request is submitted
(Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of
20 days after which the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect, the
provisions only mean that once a request is forwarded to the Requested
State, the prospective extraditee may be continuously detained, or if not,
subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty),
for he will only be discharged if no request is submitted. Practically, the
purpose of this detention is to prevent his possible flight from the Requested
State. Second, the temporary arrest of the prospective extraditee during the
pendency of the extradition petition in court (Section 6, Presidential Decree
No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as

early as during the evaluation stage. It is not only an imagined threat to his
liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation

process is akin to an administrative agency conducting an investigative
proceeding, the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective extraditee. As
described by petitioner himself, this is a "tool" for criminal law enforcement
(p. 78, Rollo). In essence, therefore, the evaluation process partakes of the
nature of a criminal investigation. In a number of cases, we had occasion to
make available to a respondent in an administrative case or investigation
certain constitutional rights that are ordinarily available only in criminal
prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral
arguments, there are rights formerly available only at the trial stage that had
been advanced to an earlier stage in the proceedings, such as the right to
counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135;
Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335;
Miranda vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that
the right against self-incrimination under Section 17, Article III of the 1987
Constitution which is ordinarily available only in criminal prosecutions,
extends to administrative proceedings which possess a criminal or penal
aspect, such as an administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of the privilege to
practice medicine if found guilty. The Court, citing the earlier case of Cabal
vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's
license as a medical practitioner, is an even greater deprivation than
forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained

wealth against a respondent which was filed under Republic Act No. 1379, or
the Anti-Graft Law. Again, we therein ruled that since the investigation may
result in forfeiture of property, the administrative proceedings are deemed
criminal or penal, and such forfeiture partakes the nature of a penalty. There
is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where
the Court, citing American jurisprudence, laid down the test to determine
whether a proceeding is civil or criminal: If the proceeding is under a statute
such that if an indictment is presented the forfeiture can be included in the
criminal case, such proceeding is criminal in nature, although it may be civil
in form; and where it must be gathered from the statute that the action is
meant to be criminal in its nature, it cannot be considered as civil. If,
however, the proceeding does not involve the conviction of the wrongdoer
for the offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of

one's property or property right. No less is this true, but even more so in the
case before us, involving as it does the possible deprivation of liberty, which,
based on the hierarchy of constitutionally protected rights, is placed second
only to life itself and enjoys precedence over property, for while forfeited
property can be returned or replaced, the time spent in incarceration is
irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person

to eventual extradition to a foreign country, thus saliently exhibiting the
criminal or penal aspect of the process. In this sense, the evaluation
procedure is akin to a preliminary investigation since both procedures may
have the same result the arrest and imprisonment of the respondent or
the person charged. Similar to the evaluation stage of extradition
proceedings, a preliminary investigation, which may result in the filing of an
information against the respondent, can possibly lead to his arrest, and to
the deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992])
(p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece
of criminal legislation nor a criminal procedural statute is not well-taken.
Wright is not authority for petitioner's conclusion that his preliminary
processing is not akin to a preliminary investigation. The characterization of
a treaty in Wright was in reference to the applicability of the prohibition
against an ex post facto law. It had nothing to do with the denial of the right
to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal
proceeding enforced by public authority, whether sanctioned by age or
custom, or newly devised in the discretion of the legislative power, in
furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due process
requirements cannot be deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the
suppression and punishment of crime in their respective jurisdictions. At the
same time, both States accord common due process protection to their
respective citizens.

The due process clauses in the American and Philippine Constitutions are not
only worded in exactly identical language and terminology, but more
importantly, they are alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are informed and
impressed, the elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern problem, and
their having been designed from earliest time to the present to meet the
exigencies of an undefined and expanding future. The requirements of due
process are interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement. Toward this
effect and in order to avoid the confines of a legal straitjacket, the courts
instead prefer to have the meaning of the due process clause "gradually
ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78).
Capsulized, it refers to "the embodiment of the sporting idea of fair play"
(Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila,
20 SCRA 849 [1967]). It relates to certain immutable principles of justice
which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S.
366).

Due process is comprised of two components substantive due process

which requires the intrinsic validity of the law in interfering with the rights of
the person to his life, liberty, or property, and procedural due process which
consists of the two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent tribunal (Cruz,
Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and
hearing pervade not only in criminal and civil proceedings, but in
administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the position of
the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory

proceeding, Section 3, Rule 112 of the Rules of Court guarantees the
respondent's basic due process rights, granting him the right to be furnished
a copy of the complaint, the affidavits, and other supporting documents, and
the right to submit counter-affidavits and other supporting documents within
ten days from receipt thereof. Moreover, the respondent shall have the right
to examine all other evidence submitted by the complainant.

These twin rights may, however, be considered dispensable in certain

instances, such as:

1. In proceeding where there is an urgent need for immediate action,

like the summary abatement of a nuisance per se (Article 704, Civil
Code), the preventive suspension of a public servant facing
administrative charges (Section 63, Local Government Code, B.P. Blg.
337), the padlocking of filthy restaurants or theaters showing obscene
movies or like establishments which are immediate threats to public
health and decency, and the cancellation of a passport of a person
sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where

the respondent is not precluded from enjoying the right to notice and
hearing at a later time without prejudice to the person affected, such
as the summary distraint and levy of the property of a delinquent
taxpayer, and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to
exercise them had not been claimed.

Applying the above principles to the case at bar, the query may be asked:
Does the evaluation stage of the extradition proceedings fall under any of
the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings

which are quite noteworthy considering that the subject treaty involves the
U.S. Government.

American jurisprudence distinguishes between interstate rendition or

extradition which is based on the Extradition Clause in the U.S. Constitution
(Art. IV, 2 cl 2), and international extradition proceedings. In interstate
rendition or extradition, the governor of the asylum state has the duty to
deliver the fugitive to the demanding state. The Extradition Clause and the
implementing statute are given a liberal construction to carry out their
manifest purpose, which is to effect the return as swiftly as possible of
persons for trial to the state in which they have been charged with crime
(31A Am Jur 2d 754-755). In order to achieve extradition of an alleged
fugitive, the requisition papers or the demand must be in proper form, and
all the elements or jurisdictional facts essential to the extradition must
appear on the face of the papers, such as the allegation that the person
demanded was in the demanding state at the time the offense charged was
committed, and that the person demanded is charged with the commission
of the crime or that prosecution has been begun in the demanding state
before some court or magistrate (35 C.J.S. 406-407). The extradition
documents are then filed with the governor of the asylum state, and must
contain such papers and documents prescribed by statute, which essentially
include a copy of the instrument charging the person demanded with a
crime, such as an indictment or an affidavit made before a magistrate.
Statutory requirements with respect to said charging instrument or papers
are mandatory since said papers are necessary in order to confer jurisdiction
on the government of the asylum state to effect extradition (35 C.J.S. 408-
410). A statutory provision requiring duplicate copies of the indictment,
information, affidavit, or judgment of conviction or sentence and other
instruments accompanying the demand or requisitions be furnished and
delivered to the fugitive or his attorney is directory. However, the right being
such a basic one has been held to be a right mandatory on demand (Ibid., p.
410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte
Tucker, Cr., 324, S.W.2d 853).

In international proceedings, extradition treaties generally provide for the

presentation to the executive authority of the Requested State of a
requisition or demand for the return of the alleged offender, and the
designation of the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached

thereto a letter dated September 13, 1999 from the Criminal Division of the
U.S. Department of Justice, summarizing the U.S. extradition procedures and
principles, which are basically governed by a combination of treaties (with
special reference to the RP-US Extradition Treaty), federal statutes, and
judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic

channel. In urgent cases, requests for the provincial arrest of an
individual may be made directly by the Philippine Department of
Justice to the U.S. Department of Justice, and vice-versa. In the event
of a provisional arrest, a formal request for extradition is transmitted
subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine

extradition request to the Department of Justice. Before doing so, the
Department of State prepares a declaration confirming that a formal
request has been made, that the treaty is in full force and effect, that
under Article 17 thereof the parties provide reciprocal legal
representation in extradition proceedings, that the offenses are
covered as extraditable offenses under Article 2 thereof, and that the
documents have been authenticated in accordance with the federal
 statute that ensures admissibility at any subsequent extradition
hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the

arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or
magistrate is authorized to hold a hearing to consider the evidence
offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person

arrested is extraditable to the foreign country. The court must also
determine that (a) it has jurisdiction over the defendant and
jurisdiction to conduct the hearing; (b) the defendant is being sought
for offenses for which the applicable treaty permits extradition; and (c)
there is probable cause to believe that the defendant is the person
sought and that he committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify

extraditability after having received a "complaint made under oath,
charging any person found within his jurisdiction" with having
committed any of the crimes provided for by the governing treaty in
the country requesting extradition (Ibid.) [In this regard, it is noted that
a long line of American decisions pronounce that international
extradition proceedings partake of the character of a preliminary
examination before a committing magistrate, rather than a trial of the
guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are
present, it incorporates its determinations in factual findings and
conclusions of law and certifies the person's extraditability. The court
then forwards this certification of extraditability to the Department of
State for disposition by the Secretary of State. The ultimate decision
whether to surrender an individual rests with the Secretary of State (18
U.S.C. 3186).

7. The subject of an extradition request may not litigate questions

concerning the motives of the requesting government in seeking his
extradition. However, a person facing extradition may present
whatever information he deems relevant to the Secretary of State, who
makes the final determination whether to surrender an individual to
the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition
begins and ends with one entity the Department of State which has the
power to evaluate the request and the extradition documents in the
beginning, and, in the person of the Secretary of State, the power to act or
not to act on the court's determination of extraditability. In the Philippine
setting, it is the Department of Foreign Affairs which should make the initial
evaluation of the request, and having satisfied itself on the points earlier
mentioned (see pp. 10-12), then forwards the request to the Department of
Justice for the preparation and filing of the petition for extradition. Sadly,
however, the Department of Foreign Affairs, in the instant case, perfunctorily
turned over the request to the Department of Justice which has taken over
the task of evaluating the request as well as thereafter, if so warranted,
preparing, filing, and prosecuting the petition for extradition.

Private respondent asks what prejudice will be caused to the U.S.

Government should the person sought to be extradited be given due process
rights by the Philippines in the evaluation stage. He emphasizes that
petitioner's primary concern is the possible delay in the evaluation process.

We agree with private respondent's citation of an American Supreme Court

ruling:

The establishment of prompt efficacious procedures to achieve

legitimate state ends is a proper state interest worthy of cognizance in
constitutional adjudication. But the Constitution recognizes higher
values than speed and efficiency. Indeed, one might fairly say of the
Bill of Rights in general, and the Due Process Clause, in particular, that
they were designed to protect the fragile values of a vulnerable
citizenry from the overbearing concern for efficiency and efficacy that
may characterize praiseworthy government officials no less, and
perhaps more, than mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine
Government that no right that of liberty secured not only by the Bills of
Rights of the Philippines Constitution but of the United States as well, is
sacrificed at the altar of expediency.

(pp. 40-41, Private Respondent's Memorandum.)

In the Philippine context, this Court's ruling is invoked:

One of the basic principles of the democratic system is that where the
rights of the individual are concerned, the end does not justify the
means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse constitutional shortcuts.
There is no question that not even the strongest moral conviction or
the most urgent public need, subject only to a few notable exceptions,
will excuse the bypassing of an individual's rights. It is no exaggeration
 to say that a person invoking a right guaranteed under Article III of the
Constitution is a majority of one even as against the rest of the nation
who would deny him that right (Association of Small Landowners in the
Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-
376 [1989]).

There can be no dispute over petitioner's argument that extradition is a tool

of criminal law enforcement. To be effective, requests for extradition or the
surrender of accused or convicted persons must be processed expeditiously.
Nevertheless, accelerated or fast-tracked proceedings and adherence to fair
procedures are, however, not always incompatible. They do not always clash
in discord. Summary does not mean precipitous haste. It does not carry a
disregard of the basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage?
At that point, there is no extraditee yet in the strict sense of the word.
Extradition may or may not occur. In interstate extradition, the governor of
the asylum state may not, in the absence of mandatory statute, be
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of
the extradition papers, he may hold that federal and statutory requirements,
which are significantly jurisdictional, have not been met (31 Am Jur 2d 819).
Similarly, under an extradition treaty, the executive authority of the
requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the
Secretary of Foreign Affairs finds that the request fails to meet the
requirements of the law and the treaty, he shall not forward the request to
the Department of Justice for the filing of the extradition petition since non-
compliance with the aforesaid requirements will not vest our government
with jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted

notable efforts in assuring compliance with the requirements of the law and
the treaty since it even informed the U.S. Government of certain problems in
the extradition papers (such as those that are in Spanish and without the
official English translation, and those that are not properly authenticated). In
fact, petitioner even admits that consultation meetings are still supposed to
take place between the lawyers in his Department and those from the U.S.
Justice Department. With the meticulous nature of the evaluation, which
cannot just be completed in an abbreviated period of time due to its
intricacies, how then can we say that it is a proceeding that urgently
necessitates immediate and prompt action where notice and hearing can be
dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of

administrative action. Is private respondent precluded from enjoying the
right to notice and hearing at a later time without prejudice to him? Here lies
the peculiarity and deviant characteristic of the evaluation procedure. On
one hand there is yet no extraditee, but ironically on the other, it results in
an administrative if adverse to the person involved, may cause his
immediate incarceration. The grant of the request shall lead to the filing of
the extradition petition in court. The "accused" (as Section 2[c] of
Presidential Decree No. 1069 calls him), faces the threat of arrest, not only
after the extradition petition is filed in court, but even during the evaluation
proceeding itself by virtue of the provisional arrest allowed under the treaty
and the implementing law. The prejudice to the "accused" is thus blatant and
manifest.

Plainly, the notice and hearing requirements of administrative due process

cannot be dispensed with and shelved aside.

Apart from the due process clause of the Constitution, private respondent
likewise invokes Section 7 of Article III which reads:

Sec. 7. The right of the people to information on matters of public

concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

The above provision guarantees political rights which are available to citizens
of the Philippines, namely: (1) the right to information on matters of public
concern, and (2) the corollary right of access to official records documents.
The general right guaranteed by said provision is the right to information on
matters of public concern. In its implementation, the right of access to
official records is likewise conferred. These cognate or related rights are
"subject to limitations as may be provided by law" (Bernas, The 1987 Phil.
Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise
that ultimately it is an informed and critical public opinion which alone can
protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondent's letter-

request dated July 1, 1999 do not fall under the guarantee of the foregoing
provision since the matters contained in the documents requested are not of
public concern. On the other hand, private respondent argues that the
distinction between matters vested with public interest and matters which
are of purely private interest only becomes material when a third person,
who is not directly affected by the matters requested, invokes the right to
information. However, if the person invoking the right is the one directly
affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly
speaking, every act of a public officer in the conduct of the governmental
process is a matter of public concern (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives or simply because such matters arouse the
interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA
530 [1987]). Hence, the real party in interest is the people and any citizen
has "standing".

When the individual himself is involved in official government action because

said action has a direct bearing on his life, and may either cause him some
kind of deprivation or injury, he actually invokes the basic right to be notified
under Section 1 of the Bill of Rights and not exactly the right to information
on matters of public concern. As to an accused in a criminal proceeding, he
invokes Section 14, particularly the right to be informed of the nature and
cause of the accusation against him.

The right to information is implemented by the right of access to information

within the control of the government (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 337). Such information may be
contained in official records, and in documents and papers pertaining to
official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to

official government action from the U.S. Government. No official action from
our country has yet been taken. Moreover, the papers have some relation to
matters of foreign relations with the U.S. Government. Consequently, if a
third party invokes this constitutional provision, stating that the extradition
papers are matters of public concern since they may result in the extradition
of a Filipino, we are afraid that the balance must be tilted, at such particular
time, in favor of the interests necessary for the proper functioning of the
government. During the evaluation procedure, no official governmental
action of our own government has as yet been done; hence the invocation of
the right is premature. Later, and in contrast, records of the extradition
hearing would already fall under matters of public concern, because our
government by then shall have already made an official decision to grant the
extradition request. The extradition of a fellow Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the
instant controversy: Would private respondent's entitlement to notice and
hearing during the evaluation stage of the proceedings constitute a breach of
the legal duties of the Philippine Government under the RP-Extradition
Treaty? Assuming the answer is in the affirmative, is there really a conflict
between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to
pass upon the constitutionality of the provisions of the RP-US Extradition
Treaty nor the Extradition Law implementing the same. We limit ourselves
only to the effect of the grant of the basic rights of notice and hearing to
private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental
maxims of international law, requires the parties to a treaty to keep their
agreement therein in good faith. The observance of our country's legal duties
under a treaty is also compelled by Section 2, Article II of the Constitution
which provides that "[t]he Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international law
as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with nations." Under the doctrine of
incorporation, rules of international law form part of the law of the and land
no further legislative action is needed to make such rules applicable in the
domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or

local courts) are confronted with situations in which there appears to be a
conflict between a rule of international law and the provisions of the
constitution or statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be presumed that
municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the observance of the
Incorporation Clause in the above-cited constitutional provision (Cruz,
Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal
law should be upheld by the municipal courts (Ichong vs. Hernandez, 101
Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia,
2 SCRA 984 [1961]) for the reason that such courts are organs of municipal
law and are accordingly bound by it in all circumstances (Salonga & Yap, op.
cit., p. 13). The fact that international law has been made part of the law of
the land does not pertain to or imply the primacy of international law over
national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to,
national legislative enactments. Accordingly, the principle lex posterior
derogat priori takes effect a treaty may repeal a statute and a statute may
repeal a treaty. In states where the constitution is the highest law of the land,
such as the Republic of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and
municipal or national law? En contrario, these two components of the law of
the land are not pined against each other. There is no occasion to choose
which of the two should be upheld. Instead, we see a void in the provisions of
the RP-US Extradition Treaty, as implemented by Presidential Decree No.
1069, as regards the basic due process rights of a prospective extraditee at
the evaluation stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during the judicial
determination of the propriety of extradition, the rights of notice and hearing
are clearly granted to the prospective extraditee. However, prior thereto, the
law is silent as to these rights. Reference to the U.S. extradition procedures
also manifests this silence.

Petitioner interprets this silence as unavailability of these rights.

Consequently, he describes the evaluation procedure as an "ex parte
technical assessment" of the sufficiency of the extradition request and the
supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair
play. An application of the basic twin due process rights of notice and hearing
will not go against the treaty or the implementing law. Neither the Treaty nor
the Extradition Law precludes these rights from a prospective extraditee.
Similarly, American jurisprudence and procedures on extradition pose no
proscription. In fact, in interstate extradition proceedings as explained
above, the prospective extraditee may even request for copies of the
extradition documents from the governor of the asylum state, and if he does,
his right to be supplied the same becomes a demandable right (35 C.J.S.
410).

Petitioner contends that the United States requested the Philippine

Government to prevent unauthorized disclosure of confidential information.
Hence, the secrecy surrounding the action of the Department of Justice Panel
of Attorneys. The confidentiality argument is, however, overturned by
petitioner's revelation that everything it refuses to make available at this
stage would be obtainable during trial. The Department of Justice states that
the U.S. District Court concerned has authorized the disclosure of certain
grand jury information. If the information is truly confidential, the veil of
secrecy cannot be lifted at any stage of the extradition proceedings. Not
even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as
well as American jurisprudence and procedures on extradition, for any
prohibition against the conferment of the two basic due process rights of
notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an
application by analogy.

Earlier, we stated that there are similarities between the evaluation process
and a preliminary investigation since both procedures may result in the
arrest of the respondent or the prospective extraditee. In the evaluation
process, a provisional arrest is even allowed by the Treaty and the Extradition
Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No.
1069). Following petitioner's theory, because there is no provision of its
availability, does this imply that for a period of time, the privilege of the writ
of habeas corpus is suspended, despite Section 15, Article III of the
Constitution which states that "[t]he privilege of the writ or habeas corpus
shall not be suspended except in cases of invasion or rebellion when the
public safety requires it"? Petitioner's theory would also infer that bail is not
available during the arrest of the prospective extraditee when the extradition
petition has already been filed in court since Presidential Decree No. 1069
does not provide therefor, notwithstanding Section 13, Article III of the
Constitution which provides that "[a]ll persons, except those charged with
offenses punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. . ." Can petitioner validly argue that since these contraventions
are by virtue of a treaty and hence affecting foreign relations, the
aforestated guarantees in the Bill of Rights could thus be subservient
thereto?

The basic principles of administrative law instruct us that "the essence of

due process in administrative proceeding is an opportunity to explain one's
side or an opportunity to seek reconsideration of the actions or ruling
complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273
SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs.
NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602
[1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due
process refers to the method or manner by which the law is enforced (Corona
vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This
Court will not tolerate the least disregard of constitutional guarantees in the
enforcement of a law or treaty. Petitioner's fears that the Requesting State
may have valid objections to the Requested State's non-performance of its
commitments under the Extradition Treaty are insubstantial and should not
be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit

ourselves to the four corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance
System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National
Police Commission (271 SCRA 447 [1997]) where we ruled that in summary
proceedings under Presidential Decree No. 807 (Providing for the
Organization of the Civil Service Commission in Accordance with Provisions of
the Constitution, Prescribing its Powers and Functions and for Other
Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for
Members of the Integrated National Police who may be charged for Service-
Connected Offenses and Improving the Disciplinary System in the Integrated
National Police, Appropriating Funds Therefor and for other purposes), as
amended by Presidential Decree No. 1707, although summary dismissals
may be effected without the necessity of a formal investigation, the
minimum requirements of due process still operate. As held in GSIS vs. Court
of Appeals:

. . . [I]t is clear to us that what the opening sentence of Section 40 is

saying is that an employee may be removed or dismissed even without
formal investigation, in certain instances. It is equally clear to us that
an employee must be informed of the charges preferred against him,
and that the normal way by which the employee is so informed is by
furnishing him with a copy of the charges against him. This is a basic
procedural requirement that a statute cannot dispense with and still
remain consistent with the constitutional provision on due process. The
second minimum requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable opportunity to
present his side of the matter, that is to say, his defenses against the
charges levelled against him and to present evidence in support of his
defenses. . . .

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we

upheld the due process rights of the respondent.

In the case at bar, private respondent does not only face a clear and present
danger of loss of property or employment, but of liberty itself, which may
eventually lead to his forcible banishment to a foreign land. The convergence
of petitioner's favorable action on the extradition request and the deprivation
of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is
aptly described as "justice outside legality," may be availed of only in the
absence of, and never against, statutory law or judicial pronouncements
(Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-
Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in
the case at bar does not even call for "justice outside legality," since private
respondent's due process rights, although not guaranteed by statute or by
treaty, are protected by constitutional guarantees. We would not be true to
the organic law of the land if we choose strict construction over guarantees
against the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing

currents of liberty and government authority, he must ever hold the oar of
freedom in the stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby

DISMISSED for lack of merit. Petitioner is ordered to furnish private
respondent copies of the extradition request and its supporting papers, and
to grant him a reasonable period within which to file his comment with
supporting evidence. The incidents in Civil Case No. 99-94684 having been
rendered moot and academic by this decision, the same is hereby ordered
dismissed.

SO ORDERED.

Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.

Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-34150 October 16, 1971

ARTURO M. TOLENTINO, petitioner,

vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE
AUDITOR, and THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS,
JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA,
VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the

1971 Constitutional Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent

Disbursing Officer of the 1971 Constitutional Convention.

Intervenors in their own behalf.

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on

Elections "from undertaking to hold a plebiscite on November 8, 1971," at
which the proposed constitutional amendment "reducing the voting age" in
Section 1 of Article V of the Constitution of the Philippines to eighteen years
"shall be, submitted" for ratification by the people pursuant to Organic
Resolution No. 1 of the Constitutional Convention of 1971, and the
subsequent implementing resolutions, by declaring said resolutions to be
without the force and effect of law in so far as they direct the holding of such
plebiscite and by also declaring the acts of the respondent Commission
(COMELEC) performed and to be done by it in obedience to the aforesaid
Convention resolutions to be null and void, for being violative of the
Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the

COMELEC, the Count required that copies thereof be served on the Solicitor
General and the Constitutional Convention, through its President, for such
action as they may deem proper to take. In due time, respondent COMELEC
filed its answer joining issues with petitioner. To further put things in proper
order, and considering that the fiscal officers of the Convention are
indispensable parties in a proceeding of this nature, since the acts sought to
be enjoined involve the expenditure of funds appropriated by law for the
Convention, the Court also ordered that the Disbursing Officer, Chief
Accountant and Auditor of the Convention be made respondents. After the
petition was so amended, the first appeared thru Senator Emmanuel Pelaez
and the last two thru Delegate Ramon Gonzales. All said respondents, thru
counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments
and even possible confusion, and considering that with the principal parties
being duly represented by able counsel, their interests would be adequately
protected already, the Court had to limit the number of intervenors from the
ranks of the delegates to the Convention who, more or less, have legal
interest in the success of the respondents, and so, only Delegates Raul S.
Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo
B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B.
Borra, all distinguished lawyers in their own right, have been allowed to
intervene jointly. The Court feels that with such an array of brilliant and
dedicated counsel, all interests involved should be duly and amply
represented and protected. At any rate, notwithstanding that their
corresponding motions for leave to intervene or to appear as amicus curiae 1
have been denied, the pleadings filed by the other delegates and some
private parties, the latter in representation of their minor children allegedly
to be affected by the result of this case with the records and the Court
acknowledges that they have not been without value as materials in the
extensive study that has been undertaken in this case.

The background facts are beyond dispute. The Constitutional Convention of

1971 came into being by virtue of two resolutions of the Congress of the
Philippines approved in its capacity as a constituent assembly convened for
the purpose of calling a convention to propose amendments to the
Constitution namely, Resolutions 2 and 4 of the joint sessions of Congress
held on March 16, 1967 and June 17, 1969 respectively. The delegates to the
said Convention were all elected under and by virtue of said resolutions and
the implementing legislation thereof, Republic Act 6132. The pertinent
portions of Resolution No 2 read as follows:

SECTION 1. There is hereby called a convention to propose

amendments to the Constitution of the Philippines, to be
composed of two elective Delegates from each representative
district who shall have the same qualifications as those required
of Members of the House of Representatives.

xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall

be valid and considered part of the Constitution when approved
by a majority of the votes cast in an election at which they are
submitted to the people for their ratification pursuant to Article
XV of the Constitution.

Resolution No. 4 merely modified the number of delegates to represent the

different cities and provinces fixed originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the
Convention held its inaugural session on June 1, 1971. Its preliminary labors
of election of officers, organization of committees and other preparatory
works over, as its first formal proposal to amend the Constitution, its session
which began on September 27, 1971, or more accurately, at about 3:30 in
the morning of September 28, 1971, the Convention approved Organic
Resolution No. 1 reading thus: .

CC ORGANIC RESOLUTION NO. 1

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE

CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE
VOTING AGE TO 18

BE IT RESOLVED as it is hereby resolved by the 1971

Constitutional Convention:

Section 1. Section One of Article V of the Constitution of the

Philippines is amended to as follows:

Section 1. Suffrage may be exercised by (male)

citizens of the Philippines not otherwise disqualified
by law, who are (twenty-one) EIGHTEEN years or
over and are able to read and write, and who shall
have resided in the Philippines for one year and in
the municipality wherein they propose to vote for at
least six months preceding the election.

Section 2. This amendment shall be valid as part of the

Constitution of the Philippines when approved by a majority of
the votes cast in a plebiscite to coincide with the local elections
in November 1971.

Section 3. This partial amendment, which refers only to the age

qualification for the exercise of suffrage shall be without
prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of
the amended Section or on other portions of the entire
Constitution.

Section 4. The Convention hereby authorizes the use of the sum

of P75,000.00 from its savings or from its unexpended funds for
the expense of the advanced plebiscite; provided, however that
should there be no savings or unexpended sums, the Delegates
waive P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called
upon respondent Comelec "to help the Convention implement (the above)
resolution." The said letter reads:

September 28, 1971

The Commission on Elections Manila

Thru the Chairman

Gentlemen:

Last night the Constitutional Convention passed Resolution No. 1

quoted as follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132

otherwise known as the Constitutional Convention Act of 1971,
may we call upon you to help the Convention implement this
resolution:

Sincerely,

(Sgd.) DIOSDADO
P. MACAPAGAL
DIOSDADO P.
MACAPAGAL
President

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional

Convention that it will hold the plebiscite on condition that:

(a) The Constitutional Convention will undertake the printing of

separate official ballots, election returns and tally sheets for the
use of said plebiscite at its expense;

(b) The Constitutional Convention will adopt its own security

measures for the printing and shipment of said ballots and
election forms; and

(c) Said official ballots and election forms will be delivered to the
Commission in time so that they could be distributed at the same
 time that the Commission will distribute its official and sample
ballots to be used in the elections on November 8, 1971.

What happened afterwards may best be stated by quoting from intervenors'

Governors' statement of the genesis of the above proposal:

The President of the Convention also issued an order forming an

Ad Hoc Committee to implement the Resolution.

This Committee issued implementing guidelines which were

approved by the President who then transmitted them to the
Commission on Elections.

The Committee on Plebiscite and Ratification filed a report on the

progress of the implementation of the plebiscite in the afternoon
of October 7,1971, enclosing copies of the order, resolution and
letters of transmittal above referred to (Copy of the report is
hereto attached as Annex 8-Memorandum).

RECESS RESOLUTION

In its plenary session in the evening of October 7, 1971, the

Convention approved a resolution authored by Delegate Antonio
Olmedo of Davao Oriental, calling for a recess of the Convention
from November 1, 1971 to November 9, 1971 to permit the
delegates to campaign for the ratification of Organic Resolution
No. 1. (Copies of the resolution and the transcript of debate
thereon are hereto attached as Annexes 9 and 9-A Memorandum,
respectively).

RESOLUTION CONFIRMING IMPLEMENTATION

On October 12, 1971, the Convention passed Resolution No. 24

submitted by Delegate Jose Ozamiz confirming the authority of
the President of the Convention to implement Organic Resolution
No. 1, including the creation of the Ad Hoc Committee ratifying
all acts performed in connection with said implementation.

Upon these facts, the main thrust of the petition is that Organic Resolution
No. 1 and the other implementing resolutions thereof subsequently approved
by the Convention have no force and effect as laws in so far as they provide
for the holding of a plebiscite co-incident with the elections of eight senators
and all city, provincial and municipal officials to be held on November 8,
1971, hence all of Comelec's acts in obedience thereof and tending to carry
out the holding of the plebiscite directed by said resolutions are null and
void, on the ground that the calling and holding of such a plebiscite is, by the
Constitution, a power lodged exclusively in Congress, as a legislative body,
and may not be exercised by the Convention, and that, under Section 1,
Article XV of the Constitution, the proposed amendment in question cannot
be presented to the people for ratification separately from each and all of the
other amendments to be drafted and proposed by the Convention. On the
other hand, respondents and intervenors posit that the power to provide for,
fix the date and lay down the details of the plebiscite for the ratification of
any amendment the Convention may deem proper to propose is within the
authority of the Convention as a necessary consequence and part of its
power to propose amendments and that this power includes that of
submitting such amendments either individually or jointly at such time and
manner as the Convention may direct in discretion. The Court's delicate task
now is to decide which of these two poses is really in accord with the letter
and spirit of the Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of

jurisdiction. They contend that the issue before Us is a political question and
that the Convention being legislative body of the highest order is sovereign,
and as such, its acts impugned by petitioner are beyond the control of the
Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief
Accountant and Auditor of the convention expressly concede the jurisdiction
of this Court in their answer acknowledging that the issue herein is a
justifiable one.

Strangely, intervenors cite in support of this contention portions of the

decision of this Court in the case of Gonzales v. Comelec, 21 SCRA 774,
wherein the members of the Court, despite their being divided in their
opinions as to the other matters therein involved, were precisely unanimous
in upholding its jurisdiction. Obviously, distinguished counsel have either
failed to grasp the full impact of the portions of Our decision they have
quoted or would misapply them by taking them out of context.

There should be no more doubt as to the position of this Court regarding its
jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting
as a constituent assembly, and, for that matter, those of a constitutional
convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of
Our ruling in that very case of Gonzales relied upon by intervenors should
dispel any lingering misgivings as regards that point. Succinctly but
comprehensively, Chief Justice Concepcion held for the Court thus: .

As early as Angara vs. Electoral Commission (63 Phil. 139, 157),

this Court speaking through one of the leading members of
the Constitutional Convention and a respected professor of
Constitutional Law, Dr. Jose P. Laurel declared that "the judicial
department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the
several departments and among the integral or constituent units
thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court

characterizing the issue submitted thereto as a political one
declined to pass upon the question whether or not a given
number of votes cast in Congress in favor of a proposed
amendment to the Constitution which was being submitted to
the people for ratification satisfied the three-fourths vote
requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes v. Chief Accountant of
the Senate (81 Phil. 818), Avelino v. Cuenco, (L-2851, March 4 &
14, 1949), Taada v. Cuenco, (L-10520, Feb. 28, 1957) and
Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In
the first we held that the officers and employees of the Senate
Electoral Tribunal are under its supervision and control, not of
that of the Senate President, as claimed by the latter; in the
second, this Court proceeded to determine the number of
Senators necessary for quorum in the Senate; in the third, we
nullified the election, by Senators belonging to the party having
the largest number of votes in said chamber, purporting to act,
on behalf of the party having the second largest number of votes
therein of two (2) Senators belonging to the first party, as
members, for the second party, of the Senate Electoral Tribunal;
and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representatives districts for
the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according
to the number of inhabitants of each province. Thus we rejected
the theory, advanced in these four (4) cases that the issues
therein raised were political questions the determination of which
is beyond judicial review.

Indeed, the power to amend the Constitution or to propose

amendments thereto is not included in the general grant of
legislative powers to Congress (Section 1, Art. VI, Constitution of
the Philippines). It is part of the inherent powers of the people
as the repository sovereignty in a republican state, such as ours
(Section 1, Art. 11, Constitution of the Philippines) to make,
and, hence, to amend their own Fundamental Law. Congress may
propose amendments to the Constitution merely because the
same explicitly grants such power. (Section 1, Art. XV,
Constitution of the Philippines) Hence, when exercising the same,
it is said that Senators and members of the House of
 Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as
such, the members of Congress derive their authority from the
Constitution, unlike the people, when performing the same
function, (Of amending the Constitution) for their authority does
not emanate from the Constitution they are the very source of
all powers of government including the Constitution itself.

Since, when proposing, as a constituent assembly, amendments

to the Constitution, the members of Congress derive their
authority from the Fundamental Law, it follows, necessarily, that
they do not have the final say on whether or not their acts are
within or beyond constitutional limits. Otherwise, they could
brush aside and set the same at naught, contrary to the basic
tenet that ours is a government of laws, not of men, and to the
rigid nature of our Constitution. Such rigidity is stressed by the
fact that the Constitution expressly confers upon the Supreme
Court, (And, inferentially, to lower courts.) the power to declare a
treaty unconstitutional. (Sec. 2(1), Art. VIII of the Constitution),
despite the eminently political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress

acting as a constituent assembly violates the Constitution is
essentially justiciable not political, and, hence, subject to judicial
review, and, to the extent that this view may be inconsistent with
the stand taken in Mabanag v. Lopez Vito, (supra) the latter
should be deemed modified accordingly. The Members of the
Court are unanimous on this point.

No one can rightly claim that within the domain of its legitimate authority,
the Convention is not supreme. Nowhere in his petition and in his oral
argument and memoranda does petitioner point otherwise. Actually, what
respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same
nature, owes its existence and derives all its authority and power from the
existing Constitution of the Philippines. This Convention has not been called
by the people directly as in the case of a revolutionary convention which
drafts the first Constitution of an entirely new government born of either a
war of liberation from a mother country or of a revolution against an existing
government or of a bloodless seizure of power a la coup d'etat. As to such
kind of conventions, it is absolutely true that the convention is completely
without restrain and omnipotent all wise, and it is as to such conventions
that the remarks of Delegate Manuel Roxas of the Constitutional Convention
of 1934 quoted by Senator Pelaez refer. No amount of rationalization can
belie the fact that the current convention came into being only because it
was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the present
Constitution which provides:

ARTICLE XV AMENDMENTS

SECTION 1. The Congress in joint session assembled, by a vote of

three-fourths of all the Members of the Senate and of the House
of Representatives voting separately, may propose amendments
to this Constitution or call a convention for the purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their
ratification.

True it is that once convened, this Convention became endowed with extra
ordinary powers generally beyond the control of any department of the
existing government, but the compass of such powers can be co-extensive
only with the purpose for which the convention was called and as it may
propose cannot have any effect as part of the Constitution until the same are
duly ratified by the people, it necessarily follows that the acts of convention,
its officers and members are not immune from attack on constitutional
grounds. The present Constitution is in full force and effect in its entirety and
in everyone of its parts the existence of the Convention notwithstanding, and
operates even within the walls of that assembly. While it is indubitable that in
its internal operation and the performance of its task to propose
amendments to the Constitution it is not subject to any degree of restraint or
control by any other authority than itself, it is equally beyond cavil that
neither the Convention nor any of its officers or members can rightfully
deprive any person of life, liberty or property without due process of law,
deny to anyone in this country the equal protection of the laws or the
freedom of speech and of the press in disregard of the Bill of Rights of the
existing Constitution. Nor, for that matter, can such Convention validly pass
any resolution providing for the taking of private property without just
compensation or for the imposition or exacting of any tax, impost or
assessment, or declare war or call the Congress to a special session, suspend
the privilege of the writ of habeas corpus, pardon a convict or render
judgment in a controversy between private individuals or between such
individuals and the state, in violation of the distribution of powers in the
Constitution.

It being manifest that there are powers which the Convention may not and
cannot validly assert, much less exercise, in the light of the existing
Constitution, the simple question arises, should an act of the Convention be
assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a
contention is correct or not? It is of the very essence of the rule of law that
somehow somewhere the Power and duty to resolve such a grave
constitutional question must be lodged on some authority, or we would have
to confess that the integrated system of government established by our
founding fathers contains a wide vacuum no intelligent man could ignore,
which is naturally unworthy of their learning, experience and craftsmanship
in constitution-making.

We need not go far in search for the answer to the query We have posed. The
very decision of Chief Justice Concepcion in Gonzales, so much invoked by
intervenors, reiterates and reinforces the irrefutable logic and wealth of
principle in the opinion written for a unanimous Court by Justice Laurel in
Angara vs. Electoral Commission, 63 Phil., 134, reading:

... (I)n the main, the Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say
where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark of the
Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the
only constitutional organ which can be called upon to determine
the proper allocation of powers between the several departments
and among the integral or constituent units thereof.

As any human production our Constitution is of course lacking

perfection and perfectibility, but as much as it was within the
power of our people, acting through their delegates to so
provide, that instrument which is the expression of their
sovereignty however limited, has established a republican
government intended to operate and function as a harmonious
whole, under a system of check and balances and subject to
specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language
the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would
be mere verbiage, the bill of rights mere expressions of
sentiment and the principles of good government mere political
apothegms. Certainly the limitations and restrictions embodied in
our Constitution are real as they should be in any living
Constitution. In the United States where no express constitutional
grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical
origin and development there, has been set at rest by popular
acquiescence for a period of more than one and half centuries. In
our case, this moderating power is granted, if not expressly, by
clear implication from section 2 of Article VIII of our Constitution.

The Constitution is a definition of the powers or government.

Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the
judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; it does
not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by
the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. Even then, this power of
judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to strike conclusions
unrelated to actualities. Narrowed as its functions is in this
manner the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts accord
the presumption of constitutionality to legislative enactments,
not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination
of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives
in the executive and legislative departments of the government.

But much as we might postulate on the internal checks of power

provided in our Constitution, it ought not the less to be
remembered that, in the language of James Madison, the system
itself is not "the chief palladium of constitutional liberty ... the
people who are authors of this blessing must also be its
guardians ... their eyes must be ever ready to mark, their voices
to pronounce ... aggression on the authority of their
Constitution." In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be
tested in the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No.
8) of December 3, 1935, confirmed the election of the herein
petitioner to the said body. On the other hand, the Electoral
Commission has by resolution adopted on December 9, 1935,
fixed said date as the last day for the filing of protests against
the election, returns and qualifications of members of the
National Assembly; notwithstanding the previous confirmations
made by the National Assembly as aforesaid. If, as contended by
the petitioner, the resolution of the National Assembly has the
effect of cutting off the power of the Electoral Commission to
entertain protests against the election, returns and qualifications
of members of the National Assembly, submitted after December
3, 1935 then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if,
as contended by the respondents, the Electoral Commission has
the sole power of regulating its proceedings to the exclusion of
the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day
for filing protests against the election, returns and qualifications
of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does

a conflict of a grave constitutional nature between the National
Assembly on the one hand and the Electoral Commission on the
other. From the very nature of the republican government
established in our country in the light of American experience
and of our own, upon the judicial department is thrown the
solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries. The Electoral
Commission as we shall have occasion to refer hereafter, is a
constitutional organ, created for a specific purpose, namely, to
determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although
the Electoral Commission may not be interfered with, when and
while acting within the limits of its authority, it does not follow
that it is beyond the reach of the constitutional mechanism
adopted by the people and that it is not subject to constitutional
restriction. The Electoral Commission is not a separate
department of the government, and even if it were, conflicting
claims of authority under the fundamental law between
departmental powers and agencies of the government are
necessarily determined by the judiciary in justiciable and
appropriate cases. Discarding the English type and other
European types of constitutional government, the framers of our
Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial
 department. In some countries which have declined to follow the
American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of
what otherwise would be the rule that in the absence of direct
prohibition, courts are bound to assume what is logically their
function. For instance, the Constitution of Poland of 1921
expressly provides that courts shall have no power to examine
the validity of statutes (art. 81, Chap. IV). The former Austrian
Constitution contained a similar declaration. In countries whose
constitution are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa.
Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
Constitutional Charter of the Czechoslavak, Republic, February
29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the
Republic of 1931) especial constitutional courts are established
to pass upon the validity of ordinary laws. In our case, the nature
of the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority
between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine
the conflict? And if the conflict were left undecided and
undetermined, would not a void be thus created in our
constitutional system which may in the long run prove
destructive of the entire framework? To ask these questions is to
answer them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle, reason,
and authority, we are clearly of the opinion that upon the
admitted facts of the present case, this court has jurisdiction
over the Electoral Commission and the subject matter of the
present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the
Electoral Commission as "the sole judge of all contests relating to
the election, returns and qualifications of the members of the
National Assembly." .

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in
Angara, these postulates just quoted do not apply only to conflicts of
authority between the three existing regular departments of the government
but to all such conflicts between and among these departments, or, between
any of them, on the one hand, and any other constitutionally created
independent body, like the electoral tribunals in Congress, the Comelec and
the Constituent assemblies constituted by the House of Congress, on the
other. We see no reason of logic or principle whatsoever, and none has been
convincingly shown to Us by any of the respondents and intervenors, why
the same ruling should not apply to the present Convention, even if it is an
assembly of delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of
the present Constitution..

Accordingly, We are left with no alternative but to uphold the jurisdiction of

the Court over the present case. It goes without saying that We do this not
because the Court is superior to the Convention or that the Convention is
subject to the control of the Court, but simply because both the Convention
and the Court are subject to the Constitution and the rule of law, and "upon
principle, reason and authority," per Justice Laurel, supra, it is within the
power as it is the solemn duty of the Court, under the existing Constitution to
resolve the issues in which petitioner, respondents and intervenors have
joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is
it within the powers of the Constitutional Convention of 1971 to order, on its
own fiat, the holding of a plebiscite for the ratification of the proposed
amendment reducing to eighteen years the age for the exercise of suffrage
under Section 1 of Article V of the Constitution proposed in the Convention's
Organic Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution of the
Convention?

At the threshold, the environmental circumstances of this case demand the

most accurate and unequivocal statement of the real issue which the Court is
called upon to resolve. Petitioner has very clearly stated that he is not
against the constitutional extension of the right of suffrage to the eighteen-
year-olds, as a matter of fact, he has advocated or sponsored in Congress
such a proposal, and that, in truth, the herein petition is not intended by him
to prevent that the proposed amendment here involved be submitted to the
people for ratification, his only purpose in filing the petition being to comply
with his sworn duty to prevent, Whenever he can, any violation of the
Constitution of the Philippines even if it is committed in the course of or in
connection with the most laudable undertaking. Indeed, as the Court sees it,
the specific question raised in this case is limited solely and only to the point
of whether or not it is within the power of the Convention to call for a
plebiscite for the ratification by the people of the constitutional amendment
proposed in the abovequoted Organic Resolution No. 1, in the manner and
form provided in said resolution as well as in the subject question
implementing actions and resolution of the Convention and its officers, at
this juncture of its proceedings, when as it is a matter of common knowledge
and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the
preliminary stages of considering other reforms or amendments affecting
other parts of the existing Constitution; and, indeed, Organic Resolution No.
1 itself expressly provides, that the amendment therein proposed "shall be
without prejudice to other amendments that will be proposed in the future by
the 1971 Constitutional Convention on other portions of the amended section
or on other portions of the entire Constitution." In other words, nothing that
the Court may say or do, in this case should be understood as reflecting, in
any degree or means the individual or collective stand of the members of the
Court on the fundamental issue of whether or not the eighteen-year-olds
should be allowed to vote, simply because that issue is not before Us now.
There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said
proposed amendment may be presented to the people for their approval or
rejection.

Withal, the Court rests securely in the conviction that the fire and
enthusiasm of the youth have not blinded them to the absolute necessity,
under the fundamental principles of democracy to which the Filipino people
is committed, of adhering always to the rule of law. Surely, their idealism,
sincerity and purity of purpose cannot permit any other line of conduct or
approach in respect of the problem before Us. The Constitutional Convention
of 1971 itself was born, in a great measure, because of the pressure brought
to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and
orderly means of bringing about meaningful changes in the structure and
bases of the existing social and governmental institutions, including the
provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those
concerning the preservation and protection of our natural resources and the
national patrimony, as an alternative to violent and chaotic ways of
achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm
which at times have justifiably or unjustifiably marred the demonstrations in
the streets, plazas and campuses, the youth of the Philippines, in general,
like the rest of the people, do not want confusion and disorder, anarchy and
violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to
change the present order of things in this Republic of ours. It would be tragic
and contrary to the plain compulsion of these perspectives, if the Court were
to allow itself in deciding this case to be carried astray by considerations
other than the imperatives of the rule of law and of the applicable provisions
of the Constitution. Needless to say, in a larger measure than when it binds
other departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning and
vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge
that duty.
During these twice when most anyone feels very strongly the urgent need for
constitutional reforms, to the point of being convinced that meaningful
change is the only alternative to a violent revolution, this Court would be the
last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been
called to supplant the existing Constitution in its entirety, since its enabling
provision, Article XV, from which the Convention itself draws life expressly
speaks only of amendments which shall form part of it, which opinion is not
without persuasive force both in principle and in logic, the seemingly
prevailing view is that only the collective judgment of its members as to
what is warranted by the present condition of things, as they see it, can limit
the extent of the constitutional innovations the Convention may propose,
hence the complete substitution of the existing constitution is not beyond
the ambit of the Convention's authority. Desirable as it may be to resolve,
this grave divergence of views, the Court does not consider this case to be
properly the one in which it should discharge its constitutional duty in such
premises. The issues raised by petitioner, even those among them in which
respondents and intervenors have joined in an apparent wish to have them
squarely passed upon by the Court do not necessarily impose upon Us the
imperative obligation to express Our views thereon. The Court considers it to
be of the utmost importance that the Convention should be untrammelled
and unrestrained in the performance of its constitutionally as signed mission
in the manner and form it may conceive best, and so the Court may step in
to clear up doubts as to the boundaries set down by the Constitution only
when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing
Charter. Withal, it is a very familiar principle of constitutional law that
constitutional questions are to be resolved by the Supreme Court only when
there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other
coordinate departments of the government, and certainly, the Constitutional
Convention stands almost in a unique footing in that regard.

In our discussion of the issue of jurisdiction, We have already made it clear

that the Convention came into being by a call of a joint session of Congress
pursuant to Section I of Article XV of the Constitution, already quoted earlier
in this opinion. We reiterate also that as to matters not related to its internal
operation and the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its officers and
members are all subject to all the provisions of the existing Constitution. Now
We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section I of Article XV. This must
be so, because it is plain to Us that the framers of the Constitution took care
that the process of amending the same should not be undertaken with the
same ease and facility in changing an ordinary legislation. Constitution
making is the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers have chosen
for this nation, and which we of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes, future and
every other conceivable aspect of the lives of all the people within the
country and those subject to its sovereignty, every degree of care is taken in
preparing and drafting it. A constitution worthy of the people for which it is
intended must not be prepared in haste without adequate deliberation and
study. It is obvious that correspondingly, any amendment of the Constitution
is of no less importance than the whole Constitution itself, and perforce must
be conceived and prepared with as much care and deliberation. From the
very nature of things, the drafters of an original constitution, as already
observed earlier, operate without any limitations, restraints or inhibitions
save those that they may impose upon themselves. This is not necessarily
true of subsequent conventions called to amend the original constitution.
Generally, the framers of the latter see to it that their handiwork is not lightly
treated and as easily mutilated or changed, not only for reasons purely
personal but more importantly, because written constitutions are supposed
to be designed so as to last for some time, if not for ages, or for, at least, as
long as they can be adopted to the needs and exigencies of the people,
hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule,
the original constitutions carry with them limitations and conditions, more or
less stringent, made so by the people themselves, in regard to the process of
their amendment. And when such limitations or conditions are so
incorporated in the original constitution, it does not lie in the delegates of
any subsequent convention to claim that they may ignore and disregard such
conditions because they are as powerful and omnipotent as their original
counterparts.

Nothing of what is here said is to be understood as curtailing in any degree

the number and nature and the scope and extent of the amendments the
Convention may deem proper to propose. Nor does the Court propose to
pass on the issue extensively and brilliantly discussed by the parties as to
whether or not the power or duty to call a plebiscite for the ratification of the
amendments to be proposed by the Convention is exclusively legislative and
as such may be exercised only by the Congress or whether the said power
can be exercised concurrently by the Convention with the Congress. In the
view the Court takes of present case, it does not perceive absolute necessity
to resolve that question, grave and important as it may be. Truth to tell, the
lack of unanimity or even of a consensus among the members of the Court in
respect to this issue creates the need for more study and deliberation, and
as time is of the essence in this case, for obvious reasons, November 8,
1971, the date set by the Convention for the plebiscite it is calling, being
nigh, We will refrain from making any pronouncement or expressing Our
views on this question until a more appropriate case comes to Us. After all,
the basis of this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or
condition in Section 1 of Article XV of the Constitution which is violated by
the act of the Convention of calling for a plebiscite on the sole amendment
contained in Organic Resolution No. 1? The Court holds that there is, and it is
the condition and limitation that all the amendments to be proposed by the
same Convention must be submitted to the people in a single "election" or
plebiscite. It being indisputable that the amendment now proposed to be
submitted to a plebiscite is only the first amendment the Convention propose
We hold that the plebiscite being called for the purpose of submitting the
same for ratification of the people on November 8, 1971 is not authorized by
Section 1 of Article XV of the Constitution, hence all acts of the Convention
and the respondent Comelec in that direction are null and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently

clear. lt says distinctly that either Congress sitting as a constituent assembly
or a convention called for the purpose "may propose amendments to this
Constitution," thus placing no limit as to the number of amendments that
Congress or the Convention may propose. The same provision also as
definitely provides that "such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification,"
thus leaving no room for doubt as to how many "elections" or plebiscites
may be held to ratify any amendment or amendments proposed by the same
constituent assembly of Congress or convention, and the provision
unequivocably says "an election" which means only one.

(2) Very little reflection is needed for anyone to realize the wisdom and
appropriateness of this provision. As already stated, amending the
Constitution is as serious and important an undertaking as constitution
making itself. Indeed, any amendment of the Constitution is as important as
the whole of it if only because the Constitution has to be an integrated and
harmonious instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately formidable and
reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations
of the people, on the other. lt is inconceivable how a constitution worthy of
any country or people can have any part which is out of tune with its other
parts..

A constitution is the work of the people thru its drafters assembled by them
for the purpose. Once the original constitution is approved, the part that the
people play in its amendment becomes harder, for when a whole constitution
is submitted to them, more or less they can assumed its harmony as an
integrated whole, and they can either accept or reject it in its entirety. At the
very least, they can examine it before casting their vote and determine for
themselves from a study of the whole document the merits and demerits of
all or any of its parts and of the document as a whole. And so also, when an
amendment is submitted to them that is to form part of the existing
constitution, in like fashion they can study with deliberation the proposed
amendment in relation to the whole existing constitution and or any of its
parts and thereby arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding

already from the fact that under Section 3 of the questioned resolution, it is
evident that no fixed frame of reference is provided the voter, as to what
finally will be concomitant qualifications that will be required by the final
draft of the constitution to be formulated by the Convention of a voter to be
able to enjoy the right of suffrage, there are other considerations which make
it impossible to vote intelligently on the proposed amendment, although it
may already be observed that under Section 3, if a voter would favor the
reduction of the voting age to eighteen under conditions he feels are needed
under the circumstances, and he does not see those conditions in the ballot
nor is there any possible indication whether they will ever be or not, because
Congress has reserved those for future action, what kind of judgment can he
render on the proposal?

But the situation actually before Us is even worse. No one knows what
changes in the fundamental principles of the constitution the Convention will
be minded to approve. To be more specific, we do not have any means of
foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide
for varying types of voters for each level of the political units it may divide
the country into. The root of the difficulty in other words, lies in that the
Convention is precisely on the verge of introducing substantial changes, if
not radical ones, in almost every part and aspect of the existing social and
political order enshrined in the present Constitution. How can a voter in the
proposed plebiscite intelligently determine the effect of the reduction of the
voting age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?

We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole.
In the context of the present state of things, where the Convention has
hardly started considering the merits of hundreds, if not thousands, of
proposals to amend the existing Constitution, to present to the people any
single proposal or a few of them cannot comply with this requirement. We
are of the opinion that the present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election" wherein the people are in the
dark as to frame of reference they can base their judgment on. We reject the
rationalization that the present Constitution is a possible frame of reference,
for the simple reason that intervenors themselves are stating that the sole
purpose of the proposed amendment is to enable the eighteen year olds to
take part in the election for the ratification of the Constitution to be drafted
by the Convention. In brief, under the proposed plebiscite, there can be, in
the language of Justice Sanchez, speaking for the six members of the Court
in Gonzales, supra, "no proper submission".

III

The Court has no desire at all to hamper and hamstring the noble work of the
Constitutional Convention. Much less does the Court want to pass judgment
on the merits of the proposal to allow these eighteen years old to vote. But
like the Convention, the Court has its own duties to the people under the
Constitution which is to decide in appropriate cases with appropriate parties
Whether or not the mandates of the fundamental law are being complied
with. In the best light God has given Us, we are of the conviction that in
providing for the questioned plebiscite before it has finished, and separately
from, the whole draft of the constitution it has been called to formulate, the
Convention's Organic Resolution No. 1 and all subsequent acts of the
Convention implementing the same violate the condition in Section 1, Article
XV that there should only be one "election" or plebiscite for the ratification of
all the amendments the Convention may propose. We are not denying any
right of the people to vote on the proposed amendment; We are only holding
that under Section 1, Article XV of the Constitution, the same should be
submitted to them not separately from but together with all the other
amendments to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic

Resolution No. 1 of the Constitutional Convention of 1971 and the
implementing acts and resolutions of the Convention, insofar as they provide
for the holding of a plebiscite on November 8, 1971, as well as the resolution
of the respondent Comelec complying therewith (RR Resolution No. 695) are
hereby declared null and void. The respondents Comelec, Disbursing Officer,
Chief Accountant and Auditor of the Constitutional Convention are hereby
enjoined from taking any action in compliance with the said organic
resolution. In view of the peculiar circumstances of this case, the Court
declares this decision immediately executory. No costs.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 117565 November 18, 1997

ARSENIO P. LUMIQUED (deceased), Regional Director, DAR CAR,

Represented by his Heirs, Francisca A. Lumiqued, May A. Lumiqued,
Arlene A. Lumiqued and Richard A. Lumiqued, petitioners,
vs.
Honorable APOLONIO G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX
T. CABADING, ALL Members of Investigating Committee, created by
DOJ Order No. 145 on May 30, 1992; HON. FRANKLIN M. DRILON,
SECRETARY OF JUSTICE, HON. ANTONIO T. CARPIO, CHIEF
Presidential Legal Adviser/Counsel; and HON. LEONARDO A.
QUISUMBING, Senior Deputy Executive Secretary of the Office of the
President, and JEANNETTE OBAR-ZAMUDIO, Private Respondent,
respondents.

ROMERO, J.:

Does the due process clause encompass the right to be assisted by counsel
during an administrative inquiry?

Arsenio P. Lumiqued was the Regional Director of the Department of Agrarian

Reform Cordillera Autonomous Region (DAR-CAR) until President Fidel V.
Ramos dismissed him from that position pursuant to Administrative Order
No. 52 dated May 12, 1993. In view of Lumiqued's death on May 19, 1994,
his heirs instituted this petition for certiorari and mandamus, questioning
such order.

The dismissal was the aftermath of three complaints filed by DAR-CAR

Regional Cashier and private respondent Jeannette Obar-Zamudio with the
Board of Discipline of the DAR. The first affidavit-complaint dated November
16, 1989, 1 charged Lumiqued with malversation through falsification of
official documents. From May to September 1989, Lumiqued allegedly
committed at least 93 counts of falsification by padding gasoline receipts. He
even submitted a vulcanizing shop receipt worth P550.00 for gasoline bought
from the shop, and another receipt for P660.00 for a single vulcanizing job.
With the use of falsified receipts, Lumiqued claimed and was reimbursed the
sum of P44,172.46. Private respondent added that Lumiqued seldom made
field trips and preferred to stay in the office, making it impossible for him to
consume the nearly 120 liters of gasoline he claimed everyday.

In her second affidavit-complaint dated November 22, 1989, 2 private

respondent accused Lumiqued with violation of Commission on Audit (COA)
rules and regulations, alleging that during the months of April, May, July,
August, September and October, 1989, he made unliquidated cash advances
in the total amount of P116,000.00. Lumiqued purportedly defrauded the
government "by deliberately concealing his unliquidated cash advances
through the falsification of accounting entries in order not to reflect on 'Cash
advances of other officials' under code 8-70-600 of accounting rules."

The third affidavit-complaint dated December 15, 1989, 3 charged Lumiqued

with oppression and harassment. According to private respondent, her two
previous complaints prompted Lumiqued to retaliate by relieving her from
her post as Regional Cashier without just cause.

The three affidavit-complaints were referred in due course to the Department

of Justice (DOJ) for appropriate action. On May 20, 1992, Acting Justice
Secretary Eduardo G. Montenegro issued Department Order No. 145 creating
a committee to investigate the complaints against Lumiqued. The order
appointed Regional State Prosecutor Apolinario Exevea as committee
chairman with City Prosecutor Erdolfo Balajadia and Provincial Prosecutor
Felix Cabading as members. They were mandated to conduct an
investigation within thirty days from receipt of the order, and to submit their
report and recommendation within fifteen days from its conclusion.

The investigating committee accordingly issued a subpoena directing

Lumiqued to submit his counter-affidavit on or before June 17, 1992.
Lumiqued, however, filed instead an urgent motion to defer submission of his
counter-affidavit pending actual receipt of two of private respondent's
complaints. The committee granted the motion and gave him a five-day
extension.

In his counter-affidavit dated June 23, 1992, 4 Lumiqued alleged, inter alia,
that the cases were filed against him to extort money from innocent public
servants like him, and were initiated by private respondent in connivance
with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He
claimed that the apparent weakness of the charge was bolstered by private
respondent's execution of an affidavit of desistance. 5

Lumiqued admitted that his average daily gasoline consumption was 108.45
liters. He submitted, however, that such consumption was warranted as it
was the aggregate consumption of the five service vehicles issued under his
name and intended for the use of the Office of the Regional Director of the
DAR. He added that the receipts which were issued beyond his region were
made in the course of his travels to Ifugao Province, the DAR Central Office in
Diliman, Quezon City, and Laguna, where he attended a seminar. Because
these receipts were merely turned over to him by drivers for reimbursement,
it was not his obligation but that of auditors and accountants to determine
whether they were falsified. He affixed his signature on the receipts only to
signify that the same were validly issued by the establishments concerned in
order that official transactions of the DAR-CAR could be carried out.

Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said

that he and his companions were cruising along Santa Fe, Nueva Vizcaya on
their way to Ifugao when their service vehicle ran out of gas. Since it was
almost midnight, they sought the help of the owner of a vulcanizing shop
who readily furnished them with the gasoline they needed. The vulcanizing
shop issued its own receipt so that they could reimburse the cost of the
gasoline. Domingo Lucero, the owner of said vulcanizing shop, corroborated
this explanation in an affidavit dated June 25, 1990. 6 With respect to the
accusation that he sought reimbursement in the amount of P660.00 for one
vulcanizing job, Lumiqued submitted that the amount was actually only
P6.60. Any error committed in posting the amount in the books of the
Regional Office was not his personal error or accountability.

To refute private respondent's allegation that he violated COA rules and

regulations in incurring unliquidated cash advances in the amount of
P116,000.00, Lumiqued presented a certification 7 of DAR-CAR Administrative
Officer Deogracias F. Almora that he had no outstanding cash advances on
record as of December 31, 1989.

In disputing the charges of oppression and harassment against him,

Lumiqued contended that private respondent was not terminated from the
service but was merely relieved of her duties due to her prolonged absences.
While admitting that private respondent filed the required applications for
leave of absence, Lumiqued claimed that the exigency of the service
necessitated disapproval of her application for leave of absence. He allegedly
rejected her second application for leave of absence in view of her failure to
file the same immediately with the head office or upon her return to work. He
also asserted that no medical certificate supported her application for leave
of absence.

In the same counter-affidavit, Lumiqued also claimed that private respondent

was corrupt and dishonest because a COA examination revealed that her
cash accountabilities from June 22 to November 23, 1989, were short by
P30,406.87. Although private respondent immediately returned the amount
on January 18, 1990, the day following the completion of the cash
examination, Lumiqued asserted that she should be relieved from her duties
and assigned to jobs that would not require handling of cash and money
matters.

Committee hearings on the complaints were conducted on July 3 and 10,

1992, but Lumiqued was not assisted by counsel. On the second hearing
date, he moved for its resetting to July 17, 1992, to enable him to employ the
services of counsel. The committee granted the motion, but neither
Lumiqued nor his counsel appeared on the date he himself had chosen, so
the committee deemed the case submitted for resolution.

On August 12, 1992, Lumiqued filed an urgent motion for additional hearing,
8
alleging that he suffered a stroke on July 10, 1992. The motion was
forwarded to the Office of the State Prosecutor apparently because
the investigation had already been terminated. In an order dated September
7, 1992, 9 State Prosecutor Zoila C. Montero denied the motion, viz:

The medical certificate given show(s) that respondent was

discharged from the Sacred Heart Hospital on July 17, 1992, the
date of the hearing, which date was upon the request of
respondent (Lumiqued). The records do not disclose that
respondent advised the Investigating committee of his
confinement and inability to attend despite his discharge, either
by himself or thru counsel. The records likewise do not show that
efforts were exerted to notify the Committee of respondent's
condition on any reasonable date after July 17, 1992. It is herein
noted that as early as June 23, 1992, respondent was already
being assisted by counsel.

Moreover an evaluation of the counter-affidavit submitted

reveal(s) the sufficiency, completeness and thoroughness of the
counter-affidavit together with the documentary evidence
annexed thereto, such that a judicious determination of the case
based on the pleadings submitted is already possible.

Moreover, considering that the complaint-affidavit was filed as

far back as November 16, 1989 yet, justice can not be delayed
much longer.

Following the conclusion of the hearings, the investigating committee

rendered a report dated July 31, 1992, 10 finding Lumiqued liable for all the
charges against him. It made the following findings:

After a thorough evaluation of the evidences (sic) submitted by

the parties, this committee finds the evidence submitted by the
complainant sufficient to establish the guilt of the respondent for
Gross Dishonesty and Grave Misconduct.

That most of the gasoline receipts used by the respondent in

claiming for the reimbursement of his gasoline expenses were
falsified is clearly established by the 15 Certified Xerox Copies of
the duplicate receipts (Annexes G-1 to G-15) and the
certifications issued by the different gasoline stations where the
respondent purchased gasoline. Annexes "G-1" to "G-15" show
that the actual average purchase made by the respondent is
about 8.46 liters only at a purchase price of P50.00, in contrast
to the receipts used by the respondent which reflects an average
of 108.45 liters at a purchase price of P550.00. Here, the greed
of the respondent is made manifest by his act of claiming
reimbursements of more than 10 times the value of what he
actually spends. While only 15 of the gasoline receipts were
ascertained to have been falsified, the motive, the pattern and
the scheme employed by the respondent in defrauding the
government has, nevertheless, been established.

That the gasoline receipts have been falsified was not rebutted
by the respondent. In fact, he had in effect admitted that he had
been claiming for the payment of an average consumption of
108.45 liters/day by justifying that this was being used by the 4
vehicles issued to his office. Besides he also admitted having
signed the receipts.

Respondent's act in defrauding the government of a considerable

sum of money by falsifying receipts constitutes not only
Dishonesty of a high degree but also a criminal offense for
Malversation through Falsification of Official Documents.

This committee likewise finds that the respondent have (sic)

unliquidated cash advances in the year 1989 which is in violation
of established office and auditing rules. His cash advances
totaling to about P116,000.00 were properly documented. The
requests for obligation of allotments and the vouchers covering
the amounts were all signed by him. The mere certification
issued by the Administrative Officer of the DAR-CAR cannot
therefore rebut these concrete evidences (sic).

On the third complaint, this committee likewise believes that the

respondent's act in relieving the complainant of her functions as
a Regional Cashier on December 1, 1989 was an act of
harassment. It is noted that this was done barely two weeks after
the complainant filed charges against her (sic). The
recommendation of Jose G. Medina of the Commission on Audit
came only on May 11, 1990 or almost six months after the
respondent's order relieving the complainant was issued. His act
in harassing a subordinate employee in retaliation to a complaint
she filed constitute(s) Gross Misconduct on the part of the
respondent who is a head of office.

The affidavits of Joseph In-uyay and Josefina Guting are of no

help to the respondent. In fact, this only show(s) that he is
 capable of giving bribes if only to have the cases against him
dismissed. He could not have given a certain Benigno Aquino III
the sum of P10,000.00 for any other purpose.

Accordingly, the investigating committee recommended Lumiqued's

dismissal or removal from office, without prejudice to the filing of the
appropriate criminal charges against him.

Acting on the report and recommendation, former Justice Secretary Franklin

M. Drilon adopted the same in his Memorandum to President Fidel V. Ramos
dated October 22, 1992. He added that the filing of the affidavit of
desistance 11 would not prevent the issuance of a resolution on the matter
considering that what was at stake was not only "the violation of
complainant's (herein private respondent's) personal rights" but also "the
competence and fitness of the respondent (Lumiqued) to remain in public
office." He opined that, in fact, the evidence on record could call for "a
punitive action against the respondent on the initiative of the DAR."

On December 17, 1992, Lumiqued filed a motion for reconsideration of "the

findings of the Committee" with the DOJ. 12 Undersecretary Ramon S.
Esguerra indorsed the motion to the investigating committee. 13 In a letter
dated April 1, 1993, the three-member investigating committee informed
Undersecretary Esguerra that the committee "had no more authority to act
on the same (motion for reconsideration) considering that the matter has
already been forwarded to the Office of the President" and that their
authority under Department Order No. 145 ceased when they transmitted
their report to the
DOJ. 14 Concurring with this view, Undersecretary Esguerra informed
Lumiqued that the investigating committee could no longer act on his motion
for reconsideration. He added that the motion was also prematurely filed
because the Office of the President (OP) had yet to act on Secretary Drilon's
recommendation. 15

On May 12, 1993, President Fidel V. Ramos himself issued Administrative

Order No. 52 (A.O. No. 52), 16 finding Lumiqued administratively liable for
dishonesty in the alteration of fifteen gasoline receipts, and dismissing him
from the service, with forfeiture of his retirement and other benefits. Thus:

That the receipts were merely turned over to him by his drivers
and that the auditor and accountant of the DAR-CAR should be
the ones to be held liable is untenable. The receipts in question
were signed by respondent for the purpose of attesting that
those receipts were validly issued by the commercial
establishments and were properly disbursed and used in the
official business for which it was intended.
 This Office is not about to shift the blame for all these to the
drivers employed by the DAR-CAR as respondent would want us
to do.

The OP, however, found that the charges of oppression and harassment, as
well as that of incurring unliquidated cash advances, were not satisfactorily
established.

In a "petition for appeal" 17 addressed to President Ramos, Lumiqued prayed

that A.O. No. 52 be reconsidered and that he be reinstated to his former
position "with all the benefits accorded to him by law and existing rules and
regulations." This petition was basically premised on the affidavit dated May
27, 1993, of a certain Dwight L. Lumiqued, a former driver of the DAR-CAR,
who confessed to having authored the falsification of gasoline receipts and
attested to petitioner Lumiqued's being an "honest man" who had no
"premonition" that the receipts he (Dwight) turned over to him were
"altered." 18

Treating the "petition for appeal" as a motion for reconsideration of A.O. No.
52, the OP, through Senior Deputy Executive Secretary Leonardo A.
Quisumbing, denied the same on August 31, 1993.

Undaunted, Lumiqued filed a second motion for reconsideration, alleging,

among other things, that he was denied the constitutional right to counsel
during the hearing. 19 On May 19, 1994, 20 however, before his motion could
be resolved, Lumiqued died. On September 28, 1994, 21 Secretary
Quisumbing denied the second motion for reconsideration for lack of merit.

Hence, the instant petition for certiorari and mandamus praying for the
reversal of the Report and Recommendation of the Investigating Committee,
the October 22, 1992, Memorandum of then Justice Secretary Drilon, A.O. No.
52 issued by President Ramos, and the orders of Secretary Quisumbing. In a
nutshell, it prays for the "payment of retirement benefits and other benefits
accorded to deceased Arsenio Lumiqued by law, payable to his heirs; and the
backwages from the period he was dismissed from service up to the time of
his death on May 19, 1994." 22

Petitioners fault the investigating committee for its failure to inform

Lumiqued of his right to counsel during the hearing. They maintain that his
right to counsel could not be waived unless the waiver was in writing and in
the presence of counsel. They assert that the committee should have
suspended the hearing and granted Lumiqued a reasonable time within
which to secure a counsel of his own. If suspension was not possible, the
committee should have appointed a counsel de oficio to assist him.
These arguments are untenable and misplaced. The right to counsel, which
cannot be waived unless the waiver is in writing and in the presence of
counsel, is a right afforded a suspect or an accused during custodial
investigation. 23 It is not an absolute right and may, thus, be invoked or
rejected in a criminal proceeding and, with more reason, in an administrative
inquiry. In the case at bar, petitioners invoke the right of an accused in
criminal proceedings to have competent and independent counsel of his own
choice. Lumiqued, however, was not accused of any crime in the proceedings
below. The investigation conducted by the committee created by Department
Order No. 145 was for the purpose of determining if he could be held
administratively liable under the law for the complaints filed against him. The
order issued by Acting Secretary of Justice Montenegro states thus:

In the interest of the public service and pursuant to the

provisions of existing laws, a Committee to conduct the formal
investigation of the administrative complaint for oppression,
dishonesty, disgraceful and immoral conduct, being notoriously
undesirable and conduct prejudicial to the best interest of the
service against Mr. ARSENIO P. LUMIQUED, Regional Director,
Department of Agrarian Reform, Cordillera Autonomous Region,
is hereby created . . . 24

As such, the hearing conducted by the investigating committee was

not part of a criminal prosecution. This was even made more
pronounced when, after finding Lumiqued administratively liable, it
hinted at the filing of a criminal case for malversation through
falsification of public documents in its report and recommendation.

Petitioners' misconception on the nature of the investigation 25 conducted

against Lumiqued appears to have been engendered by the fact that the DOJ
conducted it. While it is true that under the Administrative Code of 1987, the
DOJ shall "administer the criminal justice system in accordance with the
accepted processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional system, 26
conducting criminal investigations is not its sole function. By its power to
"perform such other functions as may be provided by law," 27 prosecutors
may be called upon to conduct administrative investigations. Accordingly,
the investigating committee created by Department Order No. 145 was duty-
bound to conduct the administrative investigation in accordance with the
rules therefor.

While investigations conducted by an administrative body may at times be

akin to a criminal proceeding, the fact remains that under existing laws, a
party in an administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of the respondent's capacity to
represent himself, and no duty rests on such a body to furnish the person
being investigated with counsel. 28 In an administrative proceeding such as
the one that transpired below, a respondent (such as Lumiqued) has the
option of engaging the services of counsel or not. This is clear from the
provisions of Section 32, Article VII of Republic Act No. 2260 29 (otherwise
known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV (on
Discipline) of the Omnibus Rules Implementing Book V of Executive Order No.
292 30 (otherwise known as the Administrative Code of 1987). Excerpts from
the transcript of stenographic notes of the hearings attended by Lumiqued 31
clearly show that he was confident of his capacity and so opted to represent
himself . Thus, the right to counsel is not imperative in administrative
investigations because such inquiries are conducted merely to determine
whether there are facts that merit disciplinary measures against erring public
officers and employees, with the purpose of maintaining the dignity of
government service.

Furthermore, petitioners' reliance on Resolution No. 94-0521 of the Civil

Service Commission on the Uniform Procedure in the Conduct of
Administrative Investigation stating that a respondent in an administrative
complaint must be "informed of his right to the assistance of a counsel of his
choice," 32 is inappropriate. In the first place, this resolution is applicable only
to cases brought before the Civil Service Commission. 33 Secondly, said
resolution, which is dated January 25, 1994, took effect fifteen days following
its publication in a newspaper of general circulation, 34 much later than the
July 1992 hearings of the investigating committee created by Department
Order No. 145. Thirdly, the same committee was not remiss in the matter of
reminding Lumiqued of his right to counsel. Thus, at the July 3, 1992,
hearing, Lumiqued was repeatedly appraised of his option to secure the
services of counsel:

RSP EXEVEA:

This is an administrative case against Director

Lumiqued. Director Lumiqued is present. The
complainant is present, Janet Obar-Zamudio.
Complainant has just been furnished with a copy of
the counter-affidavit of the respondent. Do you have
a counsel, Director?

DIR. LUMIQUED:

I did not bring anybody, Sir, because when I went to

see him, he told me, Sir, that he has already set a
hearing, morning and afternoon today.

RSP EXEVEA:
 So, we will proceed with the hearing even without
your counsel? You are willing to proceed with the
hearing even without your counsel?

DIR. LUMIQUED:

Yes, I am confident. . .

CP BALAJADIA:

You are confident that you will be able to represent

yourself?

DIR. LUMIQUED:
35
That is my concern. (Emphasis supplied)

In the course of private respondent's damaging testimony, the investigating

committee once again reminded Lumiqued of his need for a counsel. Thus:

CP BALAJADIA:

Q. (To Director Lumiqued) You really wish to go

through with this even without your counsel?

DIRECTOR LUMIQUED:

A. I think so, Sir.

CP BALAJADIA:

Let us make it of record that we have been warning

you to proceed with the assistance of counsel but
you said that you can take care of yourself so we
have no other alternative but to proceed. 36
(Emphasis supplied).

Thereafter, the following colloquies transpired:

CP BALAJADIA:

We will suspend in the meantime that we are waiting

for the supplemental affidavit you are going to
present to us. Do you have any request from the
panel of investigators, Director Lumiqued?
DIRECTOR LUMIQUED:

I was not able to bring a lawyer since the lawyer I

requested to assist me and was the one who
prepared my counter-affidavit is already engaged for
a hearing and according to him he is engaged for the
whole month of July.

RSP EXEVEA:

We cannot wait . . .

CP BALAJADIA:

Why don't you engage the services of another

counsel. The charges against you are quite serious.
We are not saying you are guilty already. We are just
apprehensive that you will go through this
investigation without a counsel. We would like you to
be protected legally in the course of this
investigation. Why don't you get the services of
another counsel. There are plenty here in Baguio . . .

DIRECTOR LUMIQUED:

I will try to see, Sir . . .

CP BALAJADIA:

Please select your date now, we are only given one

month to finish the investigation, Director Lumiqued.

RSP EXEVEA:

We will not entertain any postponement. With or

without counsel, we will proceed.

CP BALAJADIA:

Madam Witness, will you please submit the

document which we asked for and Director
Lumiqued, if you have other witnesses, please bring
them but reduce their testimonies in affidavit form so
that we can expedite with the proceedings. 37
At the hearing scheduled for July 10, 1992, Lumiqued still did not avail of the
services of counsel. Pertinent excerpts from said hearing follow:

FISCAL BALAJADIA:

I notice also Mr. Chairman that the respondent is not

being represented by a counsel. The last time he was
asked to invite his lawyer in this investigation. May
we know if he has a lawyer to represent him in this
investigation?

DIR. LUMIQUED:

There is none Sir because when I went to my lawyer,

he told me that he had set a case also at 9:30 in the
other court and he told me if there is a possibility of
having this case postponed anytime next week,
probably Wednesday so we will have good time (sic)
of presenting the affidavit.

FISCAL BALAJADIA:

Are you moving for a postponement Director? May I

throw this to the panel. The charges in this case are
quite serious and he should be given a chance to the
assistance of a counsel/lawyer.

RSP EXEVEA:

And is (sic) appearing that the supplemental-affidavit

has been furnished him only now and this has
several documents attached to it so I think we could
grant him one last postponement considering that he
has already asked for an extension.

DIR. LUMIQUED:

Furthermore Sir, I am now being bothered by my

heart ailment. 38

The hearing was reset to July 17, 1992, the date when Lumiqued was
released from the hospital. Prior to said date, however, Lumiqued did not
inform the committee of his confinement. Consequently because the hearing
could not push through on said date, and Lumiqued had already submitted
his counter-affidavit, the committee decided to wind up the proceedings. This
did not mean, however, that Lumiqued was short-changed in his right to due
process.

Lumiqued, a Regional Director of a major department in the executive branch

of the government, graduated from the University of the Philippines (Los
Baos) with the degree of Bachelor of Science major in Agriculture, was a
recipient of various scholarships and grants, and underwent training
seminars both here and abroad. 39 Hence, he could have defended himself if
need be, without the help of counsel, if truth were on his side. This,
apparently, was the thought he entertained during the hearings he was able
to attend. In his statement, "That is my concern," one could detect that it
had been uttered testily, if not exasperatedly, because of the doubt or
skepticism implicit in the question, "You are confident that you will be able to
represent yourself?" despite his having positively asserted earlier, "Yes, I am
confident." He was obviously convinced that he could ably represent himself.
Beyond repeatedly reminding him that he could avail himself of counsel and
as often receiving the reply that he is confident of his ability to defend
himself, the investigating committee could not do more. One can lead a
horse to water but cannot make him drink.

The right to counsel is not indispensable to due process unless required by

the Constitution or the law. In Nera v. Auditor General, 40 the Court said:

. . . There is nothing in the Constitution that says that a party in a

non-criminal proceeding is entitled to be represented by counsel
and that, without such representation, he shall not be bound by
such proceedings. The assistance of lawyers; while desirable, is
not indispensable. The legal profession was not engrafted in the
due process clause such that without the participation of its
members, the safeguard is deemed ignored or violated. The
ordinary citizen is not that helpless that he cannot validly act at
all except only with a lawyer at his side.

In administrative proceedings, the essence of due process is simply the

opportunity to explain one's side. One may be heard, not solely by verbal
presentation but also, and perhaps even much more creditably as it is more
practicable than oral arguments, through pleadings. 41 An actual hearing is
not always an indispensable aspect of due process. 42 As long as a party was
given the opportunity to defend his interests in due course; he cannot be
said to have been denied due process of law, for this opportunity to be heard
is the very essence of due process. 43 Moreover, this constitutional mandate
is deemed satisfied if a person is granted an opportunity to seek
reconsideration of the action or ruling complained of. 44 Lumiqued's appeal
and his subsequent filing of motions for reconsideration cured whatever
irregularity attended the proceedings conducted by the committee. 45
The constitutional provision on due process safeguards life, liberty and
property. 46 In the early case of Cornejo v. Gabriel and Provincial Board of
Rizal 47 the Court held that a public office is not property within the sense of
the constitutional guarantee of due process of law for it is a public trust or
agency. This jurisprudential pronouncement has been enshrined in the 1987
Constitution under Article XI, Section 1, on accountability of public officers,
as follows:

Sec. 1. Public office is a public trust. Public officers and

employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.

When the dispute concerns one's constitutional right to security of tenure,

however, public office is deemed analogous to property in a limited sense;
hence, the right to due process could rightfully be invoked. Nonetheless, the
right to security of tenure is not absolute. Of equal weight is the
countervailing mandate of the Constitution that all public officers and
employees must serve with responsibility, integrity, loyalty and efficiency. 48
In this case, it has been clearly shown that Lumiqued did not live up to this
constitutional precept.

The committee's findings pinning culpability for the charges of dishonesty

and grave misconduct upon Lumiqued were not, as shown above, fraught
with procedural mischief. Its conclusions were founded on the evidence
presented and evaluated as facts. Well-settled in our jurisdiction is the
doctrine that findings of fact of administrative agencies must be respected
as long as they are supported by substantial evidence, even if such evidence
is not overwhelming or
preponderant. 49 The quantum of proof necessary for a finding of guilt in
administrative cases is only substantial evidence or such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion. 50

Consequently, the adoption by Secretary Drilon and the OP of the

committee's recommendation of dismissal may not in any way be deemed
tainted with arbitrariness amounting to grave abuse of discretion.
Government officials are presumed to perform their functions with regularity.
Strong evidence is not necessary to rebut that presumption, 51 which
petitioners have not successfully disputed in the instant case.

Dishonesty is a grave offense penalized by dismissal under Section 23 of

Rule XIV of the Omnibus Rules Implementing Book V of the Administrative
Code of 1987. Under Section 9 of the same Rule, the penalty of dismissal
carries with it "cancellation of eligibility, forfeiture of leave credits and
retirement benefits, and the disqualification for reemployment in the
government service." The instant petition, which is aimed primarily at the
"payment of retirement benefits and other benefits," plus back wages from
the time of Lumiqued's dismissal until his demise, must, therefore, fail.

WHEREFORE, the instant petition for certiorari and mandamus is hereby

DISMISSED and Administrative Order no. 52 of the Office of the President is
AFFIRMED. Costs against petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-9430 June 29, 1957

EMILIO SUNTAY Y AGUINALDO, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, THE HONORABLE NICASIO YATCO,
as Judge of the Court of First Instance of Rizal, Quezon City Branch
V, and THE HONORABLE CARLOS P. GARCIA, as Secretary for Foreign
Affairs, respondents.

Federico Agrava for petitioner.

Office of the Solicitor, General Ambrosio Padilla, First Assistant Solicitor
General Guillermo E. Torres and Solicitor Florencio Villamor for respondents.
PADILLA, J.:

This is a petition for a writ of certiorari to annul an order of the Court of First
Instance of Quezon City directing

. . . the National Bureau of Investigation and the Department of Foreign

Affairs for them to take proper steps in order that the accused, Emilio
Suntay y Aguinaldo, who is alleged to be in the United States, may be
brought back to the Philippines, so that he may be dealt with in
accordance with law, (Exhibit D)

and of prohibition to enjoin the Secretary for Foreign Affairs from cancelling
the petitioner's passport without previous hearing.

On 26 June 1954, Dr. Antonio Nubla, father of Alicia Nubla, a minor of 16

years, filed a verified complaint against Emilio Suntay in the Office of the City
Attorney of Quezon City, as follows:

On or about June 21, 1954, the accused took Alicia Nubla from St.
Paul's Colleges in Quezon City with lewd design and took her to
somewhere near the U.P. compound in Diliman, Quezon City and was
then able to have carnal knowledge of her. Alicia Nubla is a minor of 16
years.

On 15 December 1954, after an investigation, an Assistant City Attorney

recommended to the City Attorney of Quezon City that the complaint be
dismissed for lack of merit. On 23 December 1954 attorney for the
complainant addressed a letter to the City Attorney of Quezon City wherein
he took exception to the recommendation of the Assistant City Attorney
referred to and urged that a complaint for seduction be filed against the
herein petitioner.

On 10 January 1955 the petitioner applied for and was granted a passport by
the Department of Foreign Affairs (No. 5981 [A39184]). On 20 January 1955
the petitioner left the Philippines for San Francisco, California, U.S.A., where
he is at present enrolled in school. On 31 January 1955 the offended girl
subscribed and swore to a complaint charging the petitioner with seduction
which was filed in the Court of First Instance of Quezon City after preliminary
investigation had been conducted (crim. case No. Q-1596, Exhibit B). On 9
February 1955 the private prosecutor filed a motion praying the Court to
issue an order "directing such government agencies as may be concerned,
particularly the National Bureau of Investigation and the Department of
Foreign Affairs, for the purpose of having the accused brought back to the
Philippines so that he may be dealt with in accordance with law." (Exhibit C.)
On 10 February 1955 the Court granted the motion (Exhibit D). On 7 March
1955 the respondent Secretary cabled the Ambassador to the United States
instructing him to order the Consul General in San Francisco to cancel the
passport issued to the petitioner and to compel him to return to the
Philippines to answer the criminal charges against him. "The Embassy was
likewise directed to make representation with the State Department that
Emilio Suntay's presence outside the Philippines is considered detrimental to
the best interest of this Government, that his passport has been withdrawn,
and that he is not considered under the protection of the Philippines while
abroad." (Exhibit E.) However, this order was not implemented or carried out
in view of the commencement of this proceedings in order that the issues
raised may be judicially resolved. On 5 July 1955 counsel for the petitioner
wrote to the respondent Secretary requesting that the action taken by him
be reconsidered (Exhibit F), and filed in the criminal case a motion praying
that the respondent Court reconsider its order of 10 February 1955 (Exhibit
G). On 7 July 1955 the respondent Secretary denied counsel's request
(Exhibit H) and on 15 July 1955 the Court denied the motion for
reconsideration (Exhibit I). Hence this petition.

The petitioner contends that as the order of the respondent Court directing
the Department of Foreign Affairs "to take proper steps in order that the"
petitioner "may be brought back to the Philippines, so that he may be
brought back to the Philippines, so that he may default with in accordance
with law," may be carried out only "through the cancellation of his passport,"
the said order is illegal because "while a Court may review the action of the
Secretary of Foreign Affairs in cancelling a passport and grant relief when the
Secretary's discretion is abused, the court cannot, in the first instance, take
the discretionary power away from the Secretary and itself order a passport
to be cancelled."

The petitioner contends that as the order of the respondent Court directing
the department of Foreign Affairs "to take proper steps in order that the"
petitioner "may be brought back to the Philippines, so that he may be dealt
with in accordance with law," may be carried out only "through the
cancellation of his passport," the said order is illegal because 'while a Court
may review the action of the Secretary of Foreign Affairs in cancelling a
passport and grant relief when the Secretary's discretion is abused, the court
cannot, in the first instance, take the discretionary power away from the
Secretary and itself order a passport to be cancelled." The petitioner further
contends that while the Secretary for Foreign Affairs has discretion in the
cancellation of passports, "such discretion cannot be exercised until after
hearing," because the right to travel or stay abroad is a personal liberty
within the meaning and protection of the Constitution and hence he cannot
be deprived of such liberty without due process of law.

The petitioner's contention cannot be sustained. The petitioner is charged

with seduction. And the order of the respondent Court directing the
Department of Foreign Affairs "to take proper steps in order that the accused
. . . may be brought back to the Philippines, so that he may be dealt with in
accordance with law," is not beyond or in excess of its jurisdiction.

When by law jurisdiction is conferred on a court or judicial officer, all

auxiliary writs, processes and other means necessary to carry it into
effect may be employed by such court or officer; and if the procedure
to be followed in the exercise of such jurisdiction is not specifically
pointed out by these rules, any suitable process or mode of proceeding
may be adopted which appears most conformable to the spirit of said
rules. (Section 6, Rule 124.)

Moreover, the respondent Court did not specify what step the respondent
Secretary must take to compel the petitioner to return to the Philippines to
answer the criminal charge preferred against him.

Section 25, Executive Order No. 1, series of 1946, 42 Off. Gaz, 1400,
prescribing rules and regulations for the grant and issuance of passports,
provides that

The Secretary of Foreign Affairs as well as ally diplomatic or consular

officer duly authorized by him, is authorized, in his discretion, to refuse
to issue a passport for use only in certain countries, to withdraw or
cancel a passport already issued, and to withdraw a passport for the
purpose its validity or use in certain countries. (Emphasis supplied.)

True, the discretion granted, to the Secretary for Foreign Affairs to withdraw
or cancel a passport already issued may not be exercised at whim. But here
the petitioner was hailed to Court to answer a criminal charge for seduction
and although at first all Assistant City Attorney recommended the dismissal
of the complaint previously subscribed and sworn to by the father of the
offended girl, yet the petitioner knew that no final action had been taken by
the City Attorney of Quezon City as the case was still under study. And as the
Solicitor General puts it, "His suddenly leaving the country in such a
convenient time, can reasonably be interpreted to mean as a deliberate
attemption his part to flee from justice, and, therefore, he cannot now be
heard to complain if the strong arm of the law should join together to bring
him back to justice." In issuing the order in question, the respondent
Secretary was convinced that a miscarriage of justice would result by his
inaction and as he issued it in the exercise of his sound discretion, he cannot
be enjoined from carrying it out.

Counsel for the petitioner insists that his client should have been granted a
"quasi-judicial hearing" by the respondent Secretary before withdrawing or
cancelling the passport issued to him. Hearing would have been proper and
necessary if the reason for the withdrawal or cancellation of the passport
were not clear but doubtful. But where the holder of a passport is facing a
criminal a charge in our courts and left the country to evade criminal
prosecution, the Secretary for Foreign Affairs, in the exercise of his discretion
to revoke a passport already issued, cannot be held to have acted
whimsically or capriciously in withdrawing and cancelling such passport. Due
process does not necessarily mean or require a hearing. When discretion is
exercised by an officer vested with it upon an undisputed fact, such as the
filing of a serious criminal charge against the passport holder, hearing maybe
dispensed with by such officer as a prerequisite to the cancellation of his
passport; lack of such hearing does not violate the due process of law clause
of the Constitution; and the exercise of the discretion vested in him cannot
be deemed whimsical and capricious of because of the absence of such
hearing. If hearing should always be held in order to comply with the due
process of clause of the Constitution, then a writ of preliminary injunction
issued ex parte would be violative of the said clause.

In the cases of Bauer vs. Acheson, 106 F. Supp. 445; Nathan, vs. Dulles, 129
F. Supp. 951; and Schachtman vs. Dulles No. 12406, 23 June 1955, all
decided by the States Court of Appeals for the district of Columbia, cited by
the petitioner, the revocation of a passport already issued or refusal to issue
a passport applied for, was on the vague reason that the continued
possession or the issuance thereof would be contrary to the best interest of
the United States.

The petition is denied, with costs against the petitioner.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador,

Reyes, J.B.L., Endencia and Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT

SECOND DIVISION

G.R. No. 153155 September 30, 2005

MANUEL D. LAXINA, SR., Petitioners,
vs.
OFFICE OF THE OMBUDSMAN, EVANGELINE URSAL, HON. JOSE E.
LINA, JR., in his capacity as Secretary of the Department of Interior
and Local Government (DILG), and HON. FELICIANO BELMONTE, JR.,
in his capacity as City Mayor of Quezon City, Respondent.

DECISION

Tinga, J.:

The instant petition seeks the review of the 24 April 2002 Decision1 of the
Court of Appeals (CA) in CA-G.R. SP No. 66412, affirming the 2 July 2001
Memorandum Order2 and the 1 August 2001 Order3 of the Office of the
Ombudsman in OMB-ADM-00-0350,4 imposing upon petitioner the penalty of
dismissal from office with forfeiture of material benefits pursuant to Sec.
25(2) of Republic Act (R.A.) No. 6770.5

Petitioner Manuel D. Laxina, Sr. was Barangay Chairman of Brgy. Batasan

Hills, Quezon City. On 15 December 1998, Evangeline Ursal ("Ursal"),
Barangay Clerk of Batasan Hills, Quezon City, filed with the National Bureau
of Investigation (NBI) a complaint for attempted rape against petitioner.
Petitioner was subsequently charged with sexual harassment before the
Regional Trial Court of Quezon City.6

On 13 March 2000, Ursal brought before the Department of Interior and Local
Government (DILG) a complaint-affidavit charging petitioner with grave
misconduct for the alleged attempted rape. However, the DILG referred the
complaint to the Quezon City Council ("City Council")for appropriate action.
Said complaint was docketed as Adm. Case No. 00-13 before the City
Council.7

Thereafter, on 30 March 2000, Ursal filed with the Office of the Ombudsman
a similar complaint-affidavit charging petitioner with grave misconduct,
docketed as OMB ADM Case No. 0-00-0350.8 Petitioner filed his counter-
affidavit and attached thereto the affidavits of two witnesses. On 15 August
2000, the Administrative Adjudication Bureau (AAB) of the Office of the
Ombudsman exonerated petitioner from the charge, dismissing the
complaint for lack of substantial evidence.9 However, on 2 July 2001, upon
review, and with the approval of the Ombudsman, petitioner was found guilty
of grave misconduct and meted the penalty of dismissal, with forfeiture of
material benefits, per its Memorandum Order.10

Petitioner sought reconsideration of the adjudication, alleging lack of

jurisdiction on the part of the Ombudsman, but the motion was denied.11
Meanwhile, Ursal asked the City Council to waive its jurisdiction in favor of
the Ombudsman.12 The City Council merely noted Ursals motion.13

On 20 August 2001, the AAB issued an order directing Quezon City Mayor
Feliciano R. Belmonte, Jr. to implement the 2 July 2001 Memorandum Order
and to submit a compliance report.14 Mayor Belmonte issued an
implementing order, notifying petitioner of his dismissal from service and
enjoining him to cease and desist from performing his duties as barangay
captain.15

Petitioner sought the review of the Ombudsmans Memorandum Order before

the CA, arguing that: (i) the Office of the Ombudsman did not have
jurisdiction over the administrative complaint; (ii) Ursals filing of the same
administrative case before the Office of the Ombudsman and the City Council
through the DILG warranted the dismissal of both cases; and (iii) petitioner
was denied due process in the proceedings before the Ombudsman.16

In its Decision promulgated on 24 April 2002, the CA dismissed the petition

for lack of merit. According to the CA, petitioner participated in the
proceedings before the Ombudsman and questioned the Ombudsmans
jurisdiction for the first time only in his motion for reconsideration, or after
the Ombudsman had found him guilty of grave misconduct. Thus, he is
estopped from impugning the jurisdiction of the Ombudsman over the case.17
The CA found the Ombudsmans assumption of jurisdiction justified since it
became aware of the earlier case before the City Council only when
petitioner filed his motion for reconsideration.18 In addition, the CA stated
that the Ombudsman was justified in not dismissing the administrative cases
as a penalty for forum-shopping because petitioner and Ursal are in pari
delicto.19 Neither was petitioner deprived of administrative due process since
he was allowed to present evidence and said evidence were passed upon by
the Ombudsman, the CA added.20

Before this Court, petitioner seeks the dismissal of the administrative charge
against him anchored on the following assignment of errors:

I. THE PUBLIC RESPONDENTS COMMITTED A GRAVE ERROR OF LAW IN

REFUSING TO DISMISS THE CASES AGAINST PETITIONER ON THE GROUND OF
"FORUM SHOPPING" AND MISAPPLYING INSTEAD THE PRINCIPLE OF
ESTOPPEL.

II. THE COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW WHEN IT

REFUSED TO PREVENT PUBLIC RESPONDENTS FROM PREMATURELY
IMPLEMENTING THE MEMORANDUM ORDER DISMISSING PETITIONER A DULY
ELECTED OFFICIAL DESPITE THE FACT THAT THE ORDER IS NOT YET FINAL
AND EXECUTORY CONTRARY TO THE DOCTRINE LAID DOWN BY THE
SUPREME COURT IN "LAPID VS. COURT OF APPEALS", 329 SCRA 771.
III. THE RESPONDENTS AND THE COURT OF APPEALS COMMITTED A GRAVE
ERROR OF LAW IN VIOLATING THE RIGHT OF PETITIONER TO DUE PROCESS IN
DECREEING HIS DISMISSAL OF PETITIONER WITHOUT SUBSTANTIAL
EVIDENCE AND WITHOUT CONSIDERING THE EVIDENCE OF PETITIONER. 21

Petitioner likewise seeks the issuance of a temporary restraining order and/or

writ of preliminary injunction to enjoin public respondents from implementing
the Order of the Ombudsman and to reinstate him to the position of
Barangay Chairman of Brgy. Batasan Hills, Quezon City.

Petitioner claims that estoppel cannot apply to him because he never

invoked the jurisdiction of the Ombudsman, much less sought affirmative
relief therefrom.22 Arguing that he has no obligation to disclose the fact that
there is another identical case pending before another forum since he is not
the one who instituted the identical cases,23 he reiterates the rule that when
two or more courts have concurrent jurisdiction, the first to validly acquire
jurisdiction takes it to the exclusion of the other or the rest.24

On the second assignment of error, petitioner claims that he is entitled to the

injunctive relief as prayed for in his petition before the CA. He asserts that
Adm. Order No. 7, as amended by Adm. Order No. 14-A of the Office of the
Ombudsman, decreeing that all administrative orders, directives and
decisions rendered by the said office are immediately executory
notwithstanding the perfection of an appeal unless a temporary restraining
order shall have first been secured, is contrary to the expressed mandate of
R.A. No. 6770. Moreover, citing the case of Lapid v. Court of Appeals,25
petitioner claims that an appeal if timely filed stays the immediate
implementation of a decision, and that the fact that the Ombudsman Act has
given the parties the right to appeal should carry with it the stay of said
decision pending appeal.26

Lastly, petitioner maintains that he was deprived of administrative due

process when the Ombudsman refused to consider his evidence and
rendered a decision that is not supported by substantial evidence.27
Questioning the findings of fact made by the Ombudsman, claiming that
these were "speculations, surmises, probabilities, half-truths and other
unfounded/unsupported hearsay evidence,"28 petitioner invokes the
principles employed in a prosecution for the crime of rape29 and points out
that the Ombudsman did not adhere to these principles.30

In his Comment,31 Mayor Belmonte substantially reiterates the findings and

reasoning of the CA Decision. He notes that the injunctive reliefs prayed for
by petitioner are improper as he had already issued an implementing order
dismissing petitioner from service, and another person has been sworn into
office as Barangay Chairman of Brgy. Batasan Hills, Quezon City. 32
Meanwhile, the Office of the Ombudsman, through the Office of the Solicitor
General (OSG), while advancing the same reasoning as the appellate courts
additionally argues that the City Councils assumption of jurisdiction over the
case will not deprive the Ombudsman of its constitutional mandate to give
justice to the victims of oppressive acts of public officials and to protect the
citizenry from illegal acts or omissions of any government official. 33 Even
assuming that there was forum-shopping, petitioner is estopped from
questioning the technical defect.34 Besides, technical rules of procedure
should be applied with liberality, and at any rate, in administrative
proceedings, technical rules of procedure and evidence are not strictly
applied, the OSG emphasizes.35

The petition must be denied.

At the onset, it must be stressed that the rule on forum-shopping applies

only to judicial cases or proceedings,36 and not to administrative cases.
Petitioner has not cited any rule or circular on forum-shopping issued by the
Office of the Ombudsman or that of the City Council. In fact, it was only on
15 September 2003 that the Ombudsman, in Administrative Order No.17, S.
2003, required that a Certificate of Non-Forum Shopping be attached to the
written complaint against a public official or employee. Supreme Court
Administrative Circulars Nos. 04-94 and 28-9137 adverted to by petitioner
mention only initiatory pleadings in a court of law when another case is
pending before other tribunals or agencies of the government as the
pleadings to which the rule on forum-shopping applies, thus:

The complaint and other initiatory pleadings referred to and subject of this
Circular are the original civil complaint, counterclaim, cross-claim, third
(fourth, etc.) party complaint, or complaint-in-intervention, petition, or
application wherein a party asserts his claim for relief.

Ursal filed identical complaint-affidavits before the City Council, through the
DILG, and the Office of the Ombudsman. A review of the said complaints-
affidavits shows that far from being the typical initiatory pleadings referred
to in the above-mentioned circulars, they merely contain a recital of the
alleged culpable acts of petitioner. Ursal did not make any claim for relief,
nor pray for any penalty for petitioner.

Petitioner claims that the Ombudsman has no jurisdiction over the case since
the City Council had earlier acquired jurisdiction over the matter. The Court is
not convinced.

The mandate of the Ombudsman to investigate complaints against erring

public officials, derived from both the Constitution 38 and the law39 gives it
jurisdiction over the complaint against petitioner. The Constitution has
named the Ombudsman and his Deputies as the protectors of the people
who shall act promptly on complaints filed in any form or manner against
public officials or employees of the government.40 To fulfill this mandate, R.A.
No. 6770, or the Ombudsman Act of 1989, was enacted, giving the
Ombudsman or his Deputies jurisdiction over complaints on all kinds of
malfeasance, misfeasance and non-feasance41 against officers or employees
of the government, or any subdivision, agency or instrumentality therefor,
including government-owned or controlled corporations, and the disciplinary
authority over all elective and appointive officials, except those who may be
removed only by impeachment or over members of Congress and the
Judiciary.42 On the other hand, under R.A. No. 7160 or the Local Government
Code, the sangguniang panlungsod or sangguniang bayan has disciplinary
authority over any elective barangay official.43 Without a doubt, the Office of
the Ombudsman has concurrent jurisdiction with the Quezon City Council
over administrative cases against elective officials such as petitioner.

The Ombudsman was not aware of the pending case before the Quezon City
Council when the administrative complaint was filed before it. There was no
mention of such complaint either in the complaint-affidavit or in the counter-
affidavit of petitioner. Thus, the Ombudsman, in compliance with its duty to
act on all complaints against officers and employees of the government, took
cognizance of the case, made its investigation, and rendered its decision
accordingly.

As explained quite frequently, a party may be barred from raising questions

of jurisdiction where estoppel by laches has set in. Estoppel by laches is
failure or neglect for an unreasonable and unexplained length of time to do
what, by exercising due diligence, ought to have been done earlier,
warranting a presumption that the party entitled to assert it has either
abandoned it or has acquiesced to the correctness and fairness of its
resolution. This doctrine is based on grounds of public policy which for peace
of society requires the discouragement of stale claims and, unlike the statute
of limitations, is not a mere question of time but is principally an issue of
inequity or unfairness of permitting a right or claim to be enforced or
espoused.44

Petitioner is also estopped from questioning the jurisdiction of the

Ombudsman. A perusal of the records shows that he participated in the
proceedings by filing his counter-affidavit with supporting evidence. Neither
did he inform the Ombudsman of the existence of the other administrative
complaint of which he is presumably aware at the time the proceedings in
the Ombudsman were on-going. It was only when the Ombudsman rendered
an adverse decision that he disclosed the proceedings before the Quezon
City Council and raised the issue of jurisdiction. Thus, it has been held that
participation in the administrative proceedings without raising any objection
thereto bars the parties from raising any jurisdictional infirmity after an
adverse decision is rendered against them.45
Another submission made by petitioner is that he was deprived of his right to
administrative due process when he was dismissed from service without
substantial evidence and without consideration of the evidence he proffered.
He raises as a defense Ursals failure to state the actual date of commission
of the alleged attempted rape, the impossibility of the assault, and the
affidavits of his other subordinates.46 Calling attention to the weakness of
Ursals evidence, he states that such evidence is not sufficient to establish
the crime of rape, in whatever stage.47 Finally, he argues that as testament
to his innocence, his constituents voted him to a third term.48

Again, the Court is not impressed.

Petitioner was accorded the opportunity to be heard. He was required to

answer the formal charge and given a chance to present evidence in his
behalf. He was not denied due process. More importantly, the decision of the
Ombudsman is well supported by substantial evidence.

A finding of guilt in an administrative case would have to be sustained for as

long as it is supported by substantial evidence that respondent has
committed the acts stated in the complaint or formal charge. 49 Substantial
evidence has been defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. This is different from the
degree of proof required in criminal proceedings, which calls for a finding of
guilt beyond reasonable doubt.50 Petitioners reliance on the rules on
prosecution for the crime of rape is therefore misplaced. What is at issue in
the case before the Ombudsman is whether his acts constitute grave
misconduct, and not whether he is guilty of the crime of attempted rape.

There is no basis for believing petitioners claim that the Ombudsman had
refused to consider his evidence. As properly observed by the CA, 51 the
Ombudsman passed upon petitioners evidence which, however, was found
bereft of credibility. In fact, unfortunately for petitioner at that, the
Ombudsman and the CA discovered Ursals allegations more credible,
supported and corroborated as they were by the medical findings, the NBI
reports and the surrounding circumstances.

One final point. The Court notes that the order made by the Ombudsman
requiring Mayor Belmonte to implement the Memorandum Order dated 2 July
2001 dismissing petitioner was made even though the Memorandum Order
had not yet attained finality.52 Under the Ombudsman Act, a motion for
reconsideration may be filed within five (5) days after receipt of the written
notice, while all administrative disciplinary cases, orders, directives, or
decisions of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from receipt of the
order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court. 53
Petitioner received a copy of the Memorandum Order on 23 July 2001, and
filed his motion for reconsideration on 27 July 2001. The motion was denied
in the Order dated 1 August 2001, copy of which was received by petitioner
on 21 August 2001. Petitioner thereafter filed his petition with the CA on 31
August 2001, or within the reglementary period provided by the Rules.54

Thus, it was improper for the Ombudsman to order the implementation of the
Memorandum Order before it could become final and executory. In Lapid v.
Court of Appeals,55 this Court held that the import of Section 27 of the
Ombudsman Act is that all other decisions of the Office of the Ombudsman
which impose penalties that are not enumerated in the said Section 27 are
not final, unappealable and immediately executory. 56 An appeal timely filed,
such as the one filed in the instant case, will therefore stay the immediate
implementation of the decision.57 Thus:

In all these other cases therefore, the judgment imposed therein will become
final after the lapse of the reglementary period of appeal if no appeal is
perfected or, an appeal therefrom having been taken, the judgment in the
appellate tribunal becomes final. It is this final judgment which is then
correctly categorized as a "final and executory judgment" in respect to which
execution shall issue as a matter of right. In other words, the fact that the
Ombudsman Act gives parties the right to appeal from its decisions should
generally carry with it the stay of these decisions pending appeal. Otherwise,
the essential nature of these judgments as being appealable would be
rendered nugatory.58

However, the implementation sought to be enjoined is already fait accompli.

Petitioner had already stepped down and a new barangay chairman for Brgy.
Batasan Hills had already been sworn in. Injunction would not lie anymore, as
the acts sought to be enjoined have already been accomplished or
consummated.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals

dated 24 April 2002 is AFFIRMED. Costs against petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT

THIRD DIVISION

G.R. No. 142261 June 29, 2000

GOVERNOR MANUEL M. LAPID, petitioner,

vs.
HONORABLE COURT OF APPEALS, OFFICE OF THE OMBUDSMAN,
NATIONAL BUREAU OF INVESTIGATION, FACT-FINDING INTELLIGENCE
BUREAU (FFIB) of the Office of the Ombudsman, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, respondents.

RESOLUTION

GONZAGA-REYES, J.:

Before us are the Motion for Reconsideration filed by the National Bureau of
Investigation and the Department of the Interior and Local Government,
represented by the Office of the Solicitor-General, and the Office of the
Ombudsman of our 5 April 2000 Resolution. 1 In this resolution, we ordered
the immediate reinstatement of petitioner Manuel Lapid to the position of
Governor of Pampanga as the respondents failed to establish the existence
of a law mandating the immediate execution of a decision of the Office of the
Ombudsman in an administrative case where the penalty imposed is
suspension for one year.

The factual antecedents are as follows:

On the basis of an unsigned letter dated July 20, 1998, allegedly originating
from the "Mga Mamamayan ng Lalawigan ng Pampanga," addressed to the
National Bureau of Investigation, the latter initiated an "open probe" on the
alleged illegal quarrying in Pampanga & exaction of exorbitant fees
purportedly perpetrated by unscrupulous individuals with the connivance of
high-ranking government officials. The NBI Report was endorsed to the
respondent Ombudsman and was docketed as OMB-1-98-2067.

On Oct. 26, 1998, a complaint was filed charging petitioner Gov. Manuel M.
Lapid, Vice-Governor Clayton Olalia, Provincial Administrator Enrico
Quiambao, Provincial Treasurer Jovito Sabado, Mabalacat Municipal Mayor
Marino Morales and Senior Police Officer 4 Nestor Tadeo with alleged
"Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest
of the Service" for allegedly "having conspired between and among
themselves in demanding and collecting from various quarrying operators in
Pampanga a control fee, control slip, or monitoring fee of P120.00 per
truckload of sand, travel, or other quarry material, without a duly enacted
provincial ordinance authorizing the collection thereof and without issuing
receipts for its collection. They were also accused of giving unwarranted
benefits to Nestor Tadeo, Rodrigo "Rudy" Fernandez & Conrado Pangilinan
who are neither officials/employees of the Provincial Government of
Pampanga nor quarry operators by allowing them to collect the said amount
which was over and above the P40.00 prescribed under the present
provincial ordinance and in allowing Tadeo, Fernandez and Pangilinan to sell
and deliver to various quarry operators booklets of official receipts which
were pre-stamped with "SAND FEE P40.00." 2

The Ombudsman issued an Order dated January 13, 1999 preventively

suspending petitioner Lapid, Olalia, Quiambao, Sabado, Morales and Tadeo
for a period of six (6) months without pay pursuant to Sec. 24 of RA 6770. On
Jan. 19, 1999, the Department of the Interior and Local Government
(hereinafter the "DILG") implemented the suspension of petitioner Lapid3.

On November 22, 1999 the Ombudsman rendered a decision4 in the

administrative case finding the petitioner administratively liable for
misconduct thus:

Wherefore, premises considered, respondent Manuel M. Lapid, Clayton

A. Olalia, Jovito S. Sabado and Nestor C. Tadeo are hereby found guilty
of misconduct for which they are meted out the penalty of one (1) year
suspension without pay pursuant to section 25 (2) of R.A. 6770
(Ombudsman Act of 1989). Respondent Marino P. Morales is hereby
exonerated from the same administrative charge for insufficiency of
evidence. The complaint against respondent Enrico P. Quiambao, who
resigned effective June 30, 1998 was dismissed on March 12, 1999,
without prejudice to the outcome of the criminal case.5

The copy of the said decision was received by counsel for the petitioner on
November 25, 1999 and a motion for reconsideration was filed on November
29, 1999. The Office of the Ombudsman, in an Order6 dated 12 January 2000,
denied the motion for reconsideration.

Petitioner then filed a petition for review with the Court of Appeals on January
18, 2000 praying for the issuance of a temporary restraining order to enjoin
the Ombudsman from enforcing the questioned decision. The temporary
restraining order was issued by the appellate court on January 19, 2000. 7
When the 60-day lifetime of the temporary restraining order lapsed on March
19, 2000 without the Court of Appeals resolving the prayer for the issuance
of a writ of preliminary injunction, a petition 8 for certiorari, prohibition and
mandamus was filed with this Court on March 20, 2000. The petition asked
for the issuance of a temporary restraining order to enjoin the respondents
from enforcing the assailed decision of the Ombudsman and prayed that
"after due proceedings, judgment be rendered reversing and setting aside
the questioned decision (of the Ombudsman) dated November 22, 1999 and
the order January 12, 2000.9

On March 22, 2000 the Third Division of this Court issued a Resolution
requiring the respondents to comment on the petition. That same day, the
Court of Appeals issued a resolution 10 denying the petitioner's prayer for
injunctive relief. The following day, or on March 23, 2000, the DILG
implemented the assailed decision of the Ombudsman and the highest
ranking Provincial Board Member of Pampanga, Edna David, took her oath of
office as O.I.C. Governor of the Province of Pampanga.

On March 24, 2000 a Motion for Leave to File Supplement to the Petition for
Certiorari, Prohibition and Mandamus 11 and the Supplement to the Petition 12
itself were filed in view of the resolution of the Court of Appeals denying the
petitioner's prayer for preliminary injunction. In addition to the arguments
raised in the main petition, the petitioner likewise raised in issue the
apparent pre-judgment of the case on the merits by the Court of Appeals in
its resolution denying the prayer for preliminary injunction. In so doing,
petitioner argued that the respondent court exceeded the bounds of its
jurisdiction. Proceeding from the premise that the decision of the
Ombudsman had not yet become final, the petitioner argued that the writs of
prohibition and mandamus may be issued against the respondent DILG for
prematurely implementing the assailed decision. Finally, the petitioner
prayed for the setting aside of the resolution issued by the Court of Appeals
dated March 22, 2000 and for the issuance of a new one enjoining the
respondents from enforcing the said decision or, if it has already been
implemented, to withdraw any action already taken until the issue of
whether or not the said decision of the Ombudsman is immediately
executory has been settled.

The Solicitor-General and the Office of the Ombudsman filed their respective
comments 1 to the petition praying for the dismissal thereof. Regarding the
issue of the immediate enforcement of the decision of the Ombudsman, the
Solicitor-General maintains that the said decision is governed by Section 12,
Rule 43 of the Rules of Court and is therefore, immediately executory. For its
part, the Office of the Ombudsman maintain that the Ombudsman Law and
its implementing rules are silent as to the execution of decisions rendered by
the Ombudsman considering that the portion of the said law cited by petition
pertains to the finality of the decision but not to its enforcement pending
appeal. The Office of the Ombudsman also stated that it has uniformly
adopted the provisions in the Local Government Code and Administrative
Code that decisions in administrative disciplinary cases are immediately
executory.

The Solicitor-General filed an additional comment 14 alleging that the

petitioner did not question the executory character of the decision of the
Ombudsman and that he is presenting this argument for the first time before
the Supreme Court. The appellate court should be given an opportunity to
review the case from this standpoint before asking the Supreme Court to
review the resolutions of the Court of Appeals. The petitioner filed a
consolidated Reply 15 to the Comments of the respondents.

After oral arguments before the Third Division of this Court on 5 April 2000,
the Resolution 16 subject of the instant Motions for Reconsideration was
issued. The Resolution provides as follows:

From the pleadings filed by the parties and after oral arguments held
on April 5, 2000, the petitioner represented by Atty. Augusto G. Panlilio,
the respondent Ombudsman represented by its Chief Legal Counsel,
and the National Bureau of Investigation and the Department of the
Interior and Local Government represented by the Solicitor General,
and after due deliberation, the Court finds that the respondents failed
to establish the existence of a law mandating the immediate execution
of a decision of the Ombudsman in an administrative case where the
penalty imposed is suspension for one year. The immediate
implementation of the decision of the Ombudsman against petitioner is
thus premature.

WHEREFORE, the respondents are ordered to reinstate effective

immediately the petitioner to the position of Governor of the Province
of Pampanga. This case is hereby remanded to the Court of Appeals for
resolution of the appeal in CA-GR. SP No. 564744 on the merits. Said
court is hereby directed to resolve the same with utmost deliberate
dispatch.

This is without prejudice to the promulgation of an extended decision.

From this 5 April 2000 Resolution, the Offices of the Solicitor-General and the
Ombudsman filed the instant motions for reconsideration.

The sole issue addressed by our 5 April 2000 Resolution is whether or not the
decision of the Office of the Ombudsman finding herein petitioner
administratively liable for misconduct and imposing upon him a penalty of
one (1) year suspension without pay is immediately executory pending
appeal.
Petitioner was administratively charged for misconduct under the provisions
of R.A. 6770, the Ombudsman Act of 1989. Section 27 of the said Act
provides as follows:

Sec. 27. Effectively and Finality of Decisions. All provisionary orders

of the Office of the Ombudsman are immediately effective and
executory.

A motion for reconsideration of any order, directive or decision of the

Office of the Ombudsman must be filed within five (5) days after
receipt of written notice and shall be entertained only on the following
grounds:

xxx xxx xxx

Findings of fact of the Office of the Ombudsman when supported by

substantial evidence are conclusive. Any order, directive or decision
imposing the penalty of public censure or reprimand, suspension of not
more than one month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions

of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from receipt
of the written notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of the Rules of
Court.

The Rules of Produce of the Office of the Ombudsman 17 likewise contain a

similar provision. Section 7, Rule III of the said Rules provides as follows:

Sec. 7. Finality of Decision. where the respondent is absolved of the

charge and in case of conviction where the penalty imposed is public
censure or reprimand, suspension of not more than one month, or a
fine not equivalent to one month salary, the decision shall be final and
unapllealable. In all other cases, the decision shall become final after
the expiration of ten (10) days from receipt thereof by the respondent,
unless a motion for reconsideration or petition for certiorari, shall have
been filed by him as prescribed in Section 27 of R.A. 6770.

It is clear from the above provisions that the punishment imposed upon
petitioner, i.e. suspension without pay for one year, is no among those listed
as final and unappealable, hence, immediately executory. Section 27 states
that all provisionary orders of the Office of the Ombudsman are immediately
effective and executory; and that any order, directive or decision of the said
Office imposing the penalty of censure or reprimand or suspension of not
more than one month's salary is final and unappealable. As such the legal
maxim "inclusion unius est exclusio alterus" finds application. The express
mention of the things included excludes those that are not included. The
clear import of these statements taken together is that all other decisions of
the Office of the Ombudsman which impose penalties that are not
enumerated in the said section 27 are not final, unappealable and
immediately executory. An appeal timely filed, such as the one filed in the
instant case, will stay the immediate implementation of the decision. This
finds support in the Rules of Procedure issued by the Ombudsman itself
which states that "(I)n all other cases, the decision shall become final after
the expiration of ten (10) days from receipt thereof by the respondent, unless
a motion for reconsideration or petition for certiorari (should now be petition
for review under Rules 43) shall have been filed by him as prescribed in
Section 27 of R.A. 6770."

The Office of the Solicitor General insists however that the case of Fabian vs.
Desierto 18 has voided Section 27 of R.A. 6770 and Section 7, Rule III of
Administrative Order No. 07. As such, the review of decision of the
Ombudsman in administrative cases is now governed by Rule 43 of the 1997
Rules of Civil Procedure which mandates, under Section 12 19 thereof, the
immediately executory character of the decision or order appealed from.

The contention of the Solicitor General is not well-taken. Our ruling in the
case of Fabian vs. Desierto invalidated Section 27 of Republic Act No. 6770
and Section 7, Rule III of Administrative Order No. 07 and any other provision
of law implementing the aforesaid Act only insofar as they provide for
appeals in administrative disciplinary cases from the Office of the
Ombudsman to the Supreme Court. The only provision affected by the Fabian
ruling is the designation of the Court of Appeals as the proper forum and of
Rule 43 of the Rules of Court as the proper mode of appeal. All other matters
included in said section 27, including the finality or non-finality of decisions,
are not affected and still stand.

Neither can respondents find support in Section 12, Rule 43 of the 1997
Rules of Civil Procedure which provides as follows:

Sec. 12. Effect of Appeal. The appeal shall not stay the award,
judgment, final order or resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon such terms as it may
deem just.

On this point, respondents contend that considering the silence of the

Ombudsman Act on the matter of execution pending appeal, the above-
quoted provision of the Rules of Court, which allegedly mandates the
immediate execution of all decisions rendered by administrative and quasi-
judicial agencies, should apply suppletorily to the provisions of the
Ombudsman Act. We do not agree.
A judgment becomes "final and executory" by operation of law. 20 Section 27
of the Ombudsman Act provides that any order, directive or decision of the
Office of the Ombudsman imposing a penalty of public censure or reprimand,
or suspension of not more than one month's salary shall be final and
unappealable. In all other cases, the respondent therein has the right to
appeal to the Court of Appeals within ten (10) days from receipt of the
written notice of the order, directive or decision. In all these other cases
therefore, the judgment imposed therein will become final after the lapse of
the reglementary period of appeal in of appeal is perfected 21 or, an appeal
therefrom having been taken, the judgment in the appellate tribunal become
final. It is this final judgment which is then correctly categorized as a "final
and executory judgment" in respect to which execution shall issue as a
matter of right. 22 In other words, the fact that the Ombudsman Act gives
parties the right to appeal from its decisions should generally carry with it
the stay of these decisions pending appeal. Otherwise, the essential nature
of these judgments as being appealable would be rendered nugatory.

The general rule is that judgments by lower courts or tribunals become

executory only after it has become final and executory, 2 execution pending
appeal being an exception to this general rule. It is the contention of
respondents however that with respect to decisions of quasi-judicial agencies
and administrative bodies, the opposite is true. It is argued that the general
rule with respect to quasi-judicial and administrative agencies is that the
decisions of such bodies are immediately executory even pending appeal.

The contention of respondents is misplaced. There is no general legal

principle that mandates that all decisions of quasi-judicial agencies are
immediately executory. Decisions rendered by the Securities and Exchange
Commission 24 and the Civil Aeronautics Board, 25 for example, are not
immediately executory and are stayed when an appeal is filed before the
Court of Appeals. On the other hand, the decisions of the Civil Service
Commission, under the Administrative Code 26, and the Office of the
President under the Local Government Code 27, which respondents cite, are
immediately executory even pending appeal because the pertinent laws
under which the decisions were rendered mandate them to be so. The
provisions of the last two cited laws expressly provide for the execution
pending appeal of their final orders or decisions. The Local Government
Code, under Section 68 thereof provides as follows:

Sec. 68. Execution Pending Appeal. An appeal shall not prevent a

decision from becoming final and executory. The respondent shall be
considered as having been placed under preventive suspension during
the pendency of an appeal in the event he wins such appeal. In the
event the appeal results in an exoneration, he shall be paid his salary
and such other emoluments during the pendency of the appeal.
Similarly, Book V, Title I, Subtitle A, Chapter 6, Section 47, par. (4) of the
Administrative Code of 1987 provides:

(4) An appeal shall not stop the decision from being from being
executory, and in case the penalty is suspension or removal, the
respondent shall be considered as having been under preventive
suspension during the pendency of the appeal in the event he wins an
appeal.

Where the legislature has seen fit to declare that the decision of the quasi-
judicial agency is immediately final and executory pending appeal, the law
expressly so provides.

Sec. 12 of Rule 43 should therefore be interpreted as mandating that the

appeal will not stay the award, judgment, final order or resolution unless the
law directs otherwise.

Petitioner was charged administratively before the Ombudsman and

accordingly the provisions of the Ombudsman Act should apply in his case.
Section 68 of the Local Government Code only applies to administrative
decisions rendered by the Office of the President or the appropriate
Sanggunian against elective local government officials. Similarly, the
provision in the Administrative Code of 1987 mandating execution pending
review applies specifically to administrative decisions of the Civil Service
Commission involving members of the Civil Service.

There is no basis in law for the proposition that the provisions of the
Administrative Code of 1987 and the Local Government Code on execution
pending review should be applied suppletorily to the provisions of the
Ombudsman Act as there is nothing in the Ombudsman Act which provides
for such suppletory application. Courts may not, in the guise of
interpretation, enlarge the scope of a statute and include therein situations
not provided or intended by the lawmakers. An omission at the time of
enactment, whether careless or calculated, cannot be judicially supplied
however later wisdom may recommend the inclusion. 28

And while in one respect, the Ombudsman Law, the Administrative Code of
1987 and the Local Government Code are in pari materia insofar as the three
laws relate or deal with public officers, the similarity ends there. It is a
principle in statutory construction that where there are two statutes that
apply to a particular case, that which was specially designed for the said
case must prevail over the other. 29 In the instant case, the acts attributed to
petitioner could have been the subject of administrative disciplinary
proceedings before the Office of the President under the Local Government
Code or before the Office of the Ombudsman under the Ombudsman Act.
Considering however, that petitioner was charged under the Ombudsman
Act, it is this law alone which should govern his case.

Respondents, through the Office of the Solicitor General, argue that the
ruling against execution pending review of the Ombudsman's decision grants
a one-sided protection to the offender found guilty of misconduct in office
and nothing at all to the government as the aggrieved party. The offender,
according to respondents, can just let the case drag on until the expiration of
his office or his reelection as by then, the case against him shall become
academic and his offense, obliterated. As such, respondents conclude, the
government is left without further remedy and is left helpless in its own fight
against graft and corruption.

We find this argument much too speculative to warrant serious

consideration. If it perceived that the fight against graft and corruption is
hampered by the inadequacy of the provisions of the Ombudsman Act, the
remedy lies not with this Court but by legislative amendment.

As regards the contention of the Office of the Ombudsman that under Sec.
13(8), Article XI of the 1987 Constitution, the Office of the Ombudsman is
empowered to "(p)romulgate its rules of procedure and exercise such other
powers or perform such functions or duties as may be provided by law,"
suffice it to note that the Ombudsman rules of procedure, Administrative
Order No. 07, mandate that decisions of the Office of the Ombudsman where
the penalty imposed is other than public censure or reprimand, suspension of
not more than one month salary or fine equivalent to one month salary are
still appealable and hence, not final and executory. Under these rules, which
were admittedly promulgated by virtue of the rule-making power of the
Office of the Ombudsman, the decision imposing a penalty of one year
suspension without pay on petitioner Lapid is not immediately executory.

WHEREFORE, the Motions for Reconsideration filed by the Office of the

Solicitor General and the Office of the Ombudsman are hereby DENIED for
lack of merit.1wphi1.nt