Administrative Law

Case 1
G.R. No. 130230. April 15, 2005.*
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs. DANTE O. GARIN,
respondent.
Metropolitan Manila Development Authority; Drivers Licenses; Actions; Moot and Academic Questions;
Since the MMDA is not precluded from re-implementing Memorandum Circular No. TT-95-001, or any
other scheme, for that matter, that would entail confiscating drivers licenses, the Supreme Court deems it
appropriate to make certain observations for the proper implementation of MMDAs future programs.On
12 August 2004, the MMDA, through its Chairman Bayani Fernando, implemented Memorandum Circular
No. 04, Series of 2004, outlining the procedures for the use of the Metropolitan Traffic Ticket (MTT)
scheme. Under the circular, erring motorists are issued an MTT, which can be paid at any Metrobank
branch. Traffic enforcers may no longer confiscate drivers licenses as a matter of course in cases of traffic
violations. All motorists with unredeemed TVRs were given seven days from the date of implementation of
the new system to pay their fines and redeem their license or vehicle plates. It would seem, therefore, that
insofar as the absence of a prima facie case to enjoin the petitioner from confiscating drivers licenses is
concerned, recent events have overtaken the Courts need to decide this case, which has been rendered
moot and academic by the implementation of Memorandum Circular No. 04, Series of 2004. The petitioner,
however, is not precluded from re-implementing Memorandum Circular No. TT-95-001, or any other
scheme, for that matter, that would entail confiscating drivers licenses. For the proper implementation,
therefore, of the petitioners future programs, this Court deems it appropriate to make the following
observations: 1. A license to operate a motor vehicle is a privilege that the state may withhold in the
exercise of its police power.
Same; Same; A license to operate a motor vehicle is not a property right, but a privilege granted by the
state, which may be suspended or revoked by the state in the exercise of its police power.The petitioner
correctly points out that a license to operate a motor vehicle is not a property right, but a privilege granted
by the state, which may be suspended or revoked by the state in the exercise of its police power, in the
interest of the public safety and welfare, subject to the procedural due process requirements. This is
consistent with our rulings in Pedro v. Provincial Board of Rizal on the license to operate a cockpit, Tan v.
Director of Forestry and Oposa v. Factoran on timber licensing agreements, and Surigao Electric Co., Inc.
v. Municipality of Surigao on a legislative franchise to operate an electric plant.
Same; R.A. No. 7924 does not grant the MMDA with police power, let alone legislative power, and that all
its functions are administrative in nature.In Metro Manila Development Authority v. Bel-Air Village
Association, Inc., we categorically stated that Rep. Act No. 7924 does not grant the MMDA with police
power, let alone legislative power, and that all its functions are administrative in nature.
Same; Police Power; Municipal Corporations; Local Government Units; Police power is lodged primarily in
the National Legislature and cannot be exercised by any group or body of individuals not possessing
legislative power through the National Legislature may delegate it to the President and administrative
boards as well as the lawmaking bodies of municipal corporations or local government units.We restate
here the doctrine in the said decision as it applies to the case at bar: police power, as an inherent attribute
of sovereignty, is the power vested by the Constitution in the legislature to make, ordain, and establish all
manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not
repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth,
and for the subjects of the same. Having been lodged primarily in the National Legislature, it cannot be
exercised by any group or body of individuals not possessing legislative power. The National Legislature,
Page 1 of 321
Administrative Law
however, may delegate this power to the president and administrative boards as well as the lawmaking
bodies of municipal corporations or local government units (LGUs). Once delegated, the agents can
exercise only such legislative powers as are conferred on them by the national lawmaking body.
Same; Same; Same; Same; Words and Phrases; A local government is a political subdivision of a nation
or state which is constituted by law and has substantial control of local affairs.Our Congress delegated
police power to the LGUs in the Local Government Code of 1991. A local government is a political
subdivision of a nation or state which is constituted by law and has substantial control of local affairs.
Local government units are the provinces, cities, municipalities and barangays, which exercise police
power through their respective legislative bodies. Metropolitan or Metro Manila is a body composed of
several local government units. With the passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was
declared as a special development and administrative region and the administration of metro-wide basic
services affecting the region placed under a development authority referred to as the MMDA.
Same; Same; Same; Same; Drivers Licenses; Only where there is a traffic law or regulation validly
enacted by the legislature or those agencies to whom legislative powers have been delegated that the
MMDA may confiscate and suspend or revoke drivers licenses in the exercise of its mandate of transport
and traffic management, as well as the administration and implementation of all traffic enforcement
operations, traffic engineering services and traffic education programs.Where there is a traffic law or
regulation validly enacted by the legislature or those agencies to whom legislative powers have been
delegated (the City of Manila in this case), the petitioner is not precludedand in fact is duty-boundto
confiscate and suspend or revoke drivers licenses in the exercise of its mandate of transport and traffic
management, as well as the administration and implementation of all traffic enforcement operations, traffic
engineering services and traffic education programs. This is consistent with our ruling in Bel-Air that the
MMDA is a development authority created for the purpose of laying down policies and coordinating with
the various national government agencies, peoples organizations, nongovernmental organizations and the
private sector, which may enforce, but not enact, ordinances.
Same; The laudable intentions regarding the creation of the MMDA are limited by its enabling law which
the Court can but interpretMMDAs efforts must be authorized by a valid law, or ordinance, or regulation
arising from a legitimate source.The MMDA was intended to coordinate services with metro-wide impact
that transcend local political boundaries or would entail huge expenditures if provided by the individual
LGUs, especially with regard to transport and traffic management, and we are aware of the valiant efforts
of the petitioner to untangle the increasingly traffic-snarled roads of Metro Manila. But these laudable
intentions are limited by the MMDAs enabling law, which we can but interpret, and petitioner must be
reminded that its efforts in this respect must be authorized by a valid law, or ordinance, or regulation
arising from a legitimate source.
PETITION for review on certiorari of a decision of the Regional Trial Court of Paraaque City, Br. 260.

The facts are stated in the opinion of the Court.

The Solicitor General for MMDA.
Dante O. Garin for and in his own behalf.
CHICO-NAZARIO, J.:

Page 2 of 321
Administrative Law
At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating the Metropolitan Manila
Development Authority (MMDA), which authorizes it to confiscate and suspend or revoke drivers licenses
in the enforcement of traffic laws and regulations.
The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who was issued a
traffic violation receipt (TVR) and his drivers license confiscated for parking illegally along Gandara Street,
Binondo, Manila, on 05 August 1995. The following statements were printed on the TVR:
YOU ARE HEREBY DIRECTED TO REPORT TO THE MMDA TRAFFIC OPERATIONS CENTER PORT
AREA MANILA AFTER 48 HOURS FROM DATE OF APPREHENSION FOR
DISPOSITION/APPROPRIATE ACTION THEREON. CRIMINAL CASE SHALL BE FILED FOR FAILURE
TO REDEEM LICENSE AFTER 30 DAYS.
VALID AS TEMPORARY DRIVERS LICENSE FOR SEVEN DAYS FROM DATE OF APPREHENSION.1
Shortly before the expiration of the TVRs validity, the respondent addressed a letter2 to then MMDA
Chairman Prospero Oreta requesting the return of his drivers license, and expressing his preference for
his case to be filed in court.
Receiving no immediate reply, Garin filed the original complaint3 with application for preliminary injunction
in Branch 260 of the Regional Trial Court (RTC) of Paraaque, on 12 September 1995, contending that, in
the absence of any implementing rules and regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA
unbridled discretion to deprive erring motorists of their licenses, pre-empting a judicial determination of the
validity of the deprivation, thereby violating the due process clause of the Constitution. The respondent
further contended that the provision violates the constitutional prohibition against undue delegation of
legislative authority, allowing as it does the MMDA to fix and impose unspecifiedand therefore unlimited -
fines and other penalties on erring motorists.
In support of his application for a writ of preliminary injunction, Garin alleged that he suffered and
continues to suffer great and irreparable damage because of the deprivation of his license and that, absent
any implementing rules from the Metro Manila Council, the TVR and the confiscation of his license have no
legal basis.
For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that the powers
granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection and imposition of fines
and penalties for traffic violations, which powers are legislative and executive in nature; the judiciary
retains the right to determine the validity of the penalty imposed. It further argued that the doctrine of
separation of powers does not preclude admixture of the three powers of government in administrative
agencies.4
The MMDA also refuted Garins allegation that the Metro Manila Council, the governing board and policy
making body of the petitioner, has as yet to formulate the implementing rules for Sec. 5(f) of Rep. Act No.
7924 and directed the courts attention to MMDA Memorandum Circular No. TT-95-001 dated 15 April
1995. Respondent Garin, however, questioned the validity of MMDA Memorandum Circular No. TT-95-
001, as he claims that it was passed by the Metro Manila Council in the absence of a quorum.
Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September 1995, extending the
validity of the TVR as a temporary drivers license for twenty more days. A preliminary mandatory
injunction was granted on 23 October 1995, and the MMDA was directed to return the respondents
drivers license.

Page 3 of 321
Administrative Law
On 14 August 1997, the trial court rendered the assailed decision5 in favor of the herein respondent and
held that:
a. There was indeed no quorum in that First Regular Meeting of the MMDA Council held on March 23,
1995, hence MMDA Memorandum Circular No. TT-95-001, authorizing confiscation of drivers licenses
upon issuance of a TVR, is void ab initio.
b. The summary confiscation of a drivers license without first giving the driver an opportunity to be heard;
depriving him of a property right (drivers license) without DUE PROCESS; not filling (sic) in Court the
complaint of supposed traffic infraction, cannot be justified by any legislation (and is) hence
unconstitutional.
WHEREFORE, the temporary writ of preliminary injunction is hereby made permanent; th(e) MMDA is
directed to return to plaintiff his drivers license; th(e) MMDA is likewise ordered to desist from confiscating
drivers license without first giving the driver the opportunity to be heard in an appropriate proceeding.
In filing this petition,6 the MMDA reiterates and reinforces its argument in the court below and contends
that a license to operate a motor vehicle is neither a contract nor a property right, but is a privilege subject
to reasonable regulation under the police power in the interest of the public safety and welfare. The
petitioner further argues that revocation or suspension of this privilege does not constitute a taking without
due process as long as the licensee is given the right to appeal the revocation.
To buttress its argument that a licensee may indeed appeal the taking and the judiciary retains the power
to determine the validity of the confiscation, suspension or revocation of the license, the petitioner points
out that under the terms of the confiscation, the licensee has three options:
1. To voluntarily pay the imposable fine,
2. To protest the apprehension by filing a protest with the MMDA Adjudication Committee, or
3. To request the referral of the TVR to the Public Prosecutors Office.
The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed in the presence
of a quorum, and that the lower courts finding that it had not was based on a misapprehension of facts,
which the petitioner would have us review. Moreover, it asserts that though the circular is the basis for the
issuance of TVRs, the basis for the summary confiscation of licenses is Sec. 5(f) of Rep. Act No. 7924
itself, and that such power is self-executory and does not require the issuance of any implementing
regulation or circular.
Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando, implemented
Memorandum Circular No. 04, Series of 2004, outlining the procedures for the use of the Metropolitan
Traffic Ticket (MTT) scheme. Under the circular, erring motorists are issued an MTT, which can be paid at
any Metrobank branch. Traffic enforcers may no longer confiscate drivers licenses as a matter of course in
cases of traffic violations. All motorists with unredeemed TVRs were given seven days from the date of
implementation of the new system to pay their fines and redeem their license or vehicle plates.7
It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the petitioner from
confiscating drivers licenses is concerned, recent events have overtaken the Courts need to decide this
case, which has been rendered moot and academic by the implementation of Memorandum Circular No.
04, Series of 2004.
The petitioner, however, is not precluded from re-implementing Memorandum Circular No. TT-95-001, or
any other scheme, for that matter, that would entail confiscating drivers licenses. For the proper
Page 4 of 321
Administrative Law
implementation, therefore, of the petitioners future programs, this Court deems it appropriate to make the
following observations:
1. A license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its police
power.
The petitioner correctly points out that a license to operate a motor vehicle is not a property right, but a
privilege granted by the state, which may be suspended or revoked by the state in the exercise of its police
power, in the interest of the public safety and welfare, subject to the procedural due process requirements.
This is consistent with our rulings in Pedro v. Provincial Board of Rizal8 on the license to operate a cockpit,
Tan v. Director of Forestry9 and Oposa v. Factoran10 on timber licensing agreements, and Surigao
Electric Co., Inc. v. Municipality of Surigao11 on a legislative franchise to operate an electric plant.
Petitioner cites a long list of American cases to prove this point, such as State ex. Rel. Sullivan,12 which
states in part that, the legislative power to regulate travel over the highways and thoroughfares of the
state for the general welfare is extensive. It may be exercised in any reasonable manner to conserve the
safety of travelers and pedestrians. Since motor vehicles are instruments of potential danger, their
registration and the licensing of their operators have been required almost from their first appearance. The
right to operate them in public places is not a natural and unrestrained right, but a privilege subject to
reasonable regulation, under the police power, in the interest of the public safety and welfare. The power
to license imports further power to withhold or to revoke such license upon noncompliance with prescribed
conditions.
Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. Funk,13 to the effect
that: Automobiles are vehicles of great speed and power. The use of them constitutes an element of
danger to persons and property upon the highways. Carefully operated, an automobile is still a dangerous
instrumentality, but, when operated by careless or incompetent persons, it becomes an engine of
destruction. The Legislature, in the exercise of the police power of the commonwealth, not only may, but
must, prescribe how and by whom motor vehicles shall be operated on the highways. One of the primary
purposes of a system of general regulation of the subject matter, as here by the Vehicle Code, is to insure
the competency of the operator of motor vehicles. Such a general law is manifestly directed to the
promotion of public safety and is well within the police power.
The common thread running through the cited cases is that it is the legislature, in the exercise of police
power, which has the power and responsibility to regulate how and by whom motor vehicles may be
operated on the state highways.
2.The MMDA is not vested with police power.
In Metro Manila Development Authority v. Bel-Air Village Association, Inc.,14 we categorically stated that
Rep. Act No. 7924 does not grant the MMDA with police power, let alone legislative power, and that all its
functions are administrative in nature.
The said case also involved the herein petitioner MMDA which claimed that it had the authority to open a
subdivision street owned by the Bel-Air Village Association, Inc. to public traffic because it is an agent of
the state endowed with police power in the delivery of basic services in Metro Manila. From this premise,
the MMDA argued that there was no need for the City of Makati to enact an ordinance opening Neptune
Street to the public.
Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that the MMDA is
not a local government unit or a public corporation endowed with legislative power, and, unlike its

Page 5 of 321
Administrative Law
predecessor, the Metro Manila Commission, it has no power to enact ordinances for the welfare of the
community. Thus, in the absence of an ordinance from the City of Makati, its own order to open the street
was invalid.
We restate here the doctrine in the said decision as it applies to the case at bar: police power, as an
inherent attribute of sovereignty, is the power vested by the Constitution in the legislature to make, ordain,
and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with
penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of
the commonwealth, and for the subjects of the same.
Having been lodged primarily in the National Legislature, it cannot be exercised by any group or body of
individuals not possessing legislative power. The National Legislature, however, may delegate this power
to the president and administrative boards as well as the lawmaking bodies of municipal corporations or
local government units (LGUs). Once delegated, the agents can exercise only such legislative powers as
are conferred on them by the national lawmaking body.
Our Congress delegated police power to the LGUs in the Local Government Code of 1991.15 A local
government is a political subdivision of a nation or state which is constituted by law and has substantial
control of local affairs. Local government units are the provinces, cities, municipalities and barangays,
which exercise police power through their respective legislative bodies.
Metropolitan or Metro Manila is a body composed of several local government units. With the passage of
Rep. Act No. 7924 in 1995, Metropolitan Manila was declared as a special development and
administrative region and the administration of metro-wide basic services affecting the region placed
under a development authority referred to as the MMDA. Thus:
. . . [T]he powers of the MMDA are limited to the following acts: formulation, coordination, regulation,
implementation, preparation, management, monitoring, setting of policies, installation of a system and
administration. There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone
legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the
legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the
MMDA or its Council to enact ordinances, approve resolutions and appropriate funds for the general
welfare of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a development
authority. It is an agency created for the purpose of laying down policies and coordinating with the various
national government agencies, peoples organizations, non-governmental organizations and the private
sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its
functions are administrative in nature and these are actually summed up in the charter itself, viz.:
Sec. 2. Creation of the Metropolitan Manila Development Authority.x x x.
The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise
regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without
diminution of the autonomy of the local government units concerning purely local matters.
....
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to
the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the
MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general
welfare of the inhabitants of the metropolis.17 (footnotes omitted, emphasis supplied)

Page 6 of 321
Administrative Law
Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the petitioner
to grant the MMDA the power to confiscate and suspend or revoke drivers licenses without need of any
other legislative enactment, such is an unauthorized exercise of police power.
3. Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations.
Section 5 of Rep. Act No. 7924 enumerates the Functions and Powers of the Metro Manila Development
Authority. The contested clause in Sec. 5(f) states that the petitioner shall install and administer a single
ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and
regulations, whether moving or nonmoving in nature, and confiscate and suspend or revoke drivers
licenses in the enforcement of such traffic laws and regulations, the provisions of Rep. Act No. 413618 and
P.D. No. 160519 to the contrary notwithstanding, and that (f)or this purpose, the Authority shall enforce
all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize
members of the PNP, traffic enforcers of local government units, duly licensed security guards, or
members of non-governmental organizations to whom may be delegated certain authority, subject to such
conditions and requirements as the Authority may impose.
Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom
legislative powers have been delegated (the City of Manila in this case), the petitioner is not precluded
and in fact is duty-boundto confiscate and suspend or revoke drivers licenses in the exercise of its
mandate of transport and traffic management, as well as the administration and implementation of all traffic
enforcement operations, traffic engineering services and traffic education programs.20
This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for the
purpose of laying down policies and coordinating with the various national government agencies, peoples
organizations, nongovernmental organizations and the private sector, which may enforce, but not enact,
ordinances.
This is also consistent with the fundamental rule of statutory construction that a statute is to be read in a
manner that would breathe life into it, rather than defeat it,21 and is supported by the criteria in cases of
this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute.
A last word. The MMDA was intended to coordinate services with metro-wide impact that transcend local
political boundaries or would entail huge expenditures if provided by the individual LGUs, especially with
regard to transport and traffic management,23 and we are aware of the valiant efforts of the petitioner to
untangle the increasingly traffic-snarled roads of Metro Manila. But these laudable intentions are limited by
the MMDAs enabling law, which we can but interpret, and petitioner must be reminded that its efforts in
this respect must be authorized by a valid law, or ordinance, or regulation arising from a legitimate source.
WHEREFORE, the petition is dismissed.
SO ORDERED.
Puno (Chairman), Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.
Petition dismissed.
Notes.Driving exacts a more than usual toll on the senses. (Sanitary Steam Laundry, Inc. vs. Court of
Appeals, 300 SCRA 20 [1998])
The newly delegated powers to the Local Government Units (LGUs) pertain to the franchising and
regulatory powers theretofore exercised by the LTFRB and not to the functions of the LTO relative to the

Page 7 of 321
Administrative Law
registration of motor vehicles and issuance of licenses for the driving thereof. (Land Transportation Office
vs. City of Butuan, 322 SCRA 805 [2000])

o0o

Page 8 of 321
Administrative Law
Case 2
G.R. No. 162372. October 11, 2011.*
GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), HERMOGENES D. CONCEPCION, JR.,
WINSTON F. GARCIA, REYNALDO P. PALMIERY, LEOVIGILDO P. ARRELLANO, ELMER T.
BAUTISTA, LEONORA V. DE JESUS, FULGENCIO S. FACTORAN, FLORINO O. IBAEZ, AIDA C.
NOCETE, AURORA P. MATHAY, ENRIQUETA DISUANCO, AMALIO MALLARI, LOURDES
PATAG, RICHARD M. MARTINEZ, ASUNCION C. SINDAC, GLORIA D. CAEDO, ROMEO C.
QUILATAN, ESPERANZA FALLORINA, LOLITA BACANI, ARNULFO MADRIAGA, LEOCADIA S.
FAJARDO, BENIGNO BULAONG, SHIRLEY D. FLORENTINO, and LEA M. MENDIOLA,
petitioners, vs. COMMISSION ON AUDIT (COA), AMORSONIA B. ESCARDA, MA. CRISTINA D.
DIMAGIBA, and REYNALDO P. VENTURA, respondents.
Government Service Insurance System Act of 1997 (RA 8291); The failure to add a specific repealing
clause in Republic Act No. 8291 indicates that the intent was not to repeal any existing law, unless an
irreconcilable inconsistency and repugnancy exists in the terms of the new and old laws.Since
Republic Act No. 8291 made no express repeal or abrogation of the provisions of Commonwealth Act
No. 186 as amended by the Teves Retirement Law, the reliance of the petitioners on its general
repealing clause is erroneous. The failure to add a specific repealing clause in Republic Act No. 8291
indicates that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and
repugnancy exists in the terms of the new and old laws.
Same; It is true that under Section 41(n) of Republic Act No. 8291, Government Service Insurance
System (GSIS) is expressly granted the power to adopt a retirement plan and/or financial assistance
for its employees, but a closer look at the provision readily shows that this power is not absolute.It is
true that under Section 41(n) of Republic Act No. 8291, GSIS is expressly granted the power to adopt
a retirement plan and/or financial assistance for its employees, but a closer look at the provision
readily shows that this power is not absolute. It is qualified by the words early, incentive, and for
the purpose of retirement. The retirement plan must be an early retirement incentive plan and such
early retirement incentive plan or financial assistance must be for the purpose of retirement.
Same; The fact that Government Service Insurance System (GSIS) changed the name from
Employees Loyalty Incentive Plan to Retirement/Financial Plan does not change its essential
nature.The fact that GSIS changed the name from Employees Loyalty Incentive Plan to
Retirement/Financial Plan does not change its essential nature. A perusal of the plan shows that its
purpose is not to encourage GSISs employees to retire before their retirement age, but to augment
the retirement benefits they would receive under our present laws. Without a doubt, the GSIS RFP is a
supplementary retirement plan, which is prohibited by the Teves Retirement Law.
Same; While the Government Service Insurance System (GSIS) may have been clothed with authority
to adopt an early retirement or financial assistance plan, such authority was limited by the very law it
was seeking to implement.The GSIS RFP was not created because of a valid company
reorganization. Its purpose did not include the granting of benefits for early retirement. Neither did it
provide benefits for either voluntary or involuntary separation from GSIS. It was intended for
employees who were already eligible to retire under existing retirement laws. While the GSIS may
have been clothed with authority to adopt an early retirement or financial assistance plan, such
authority was limited by the very law it was seeking to implement.

Page 9 of 321
Administrative Law
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Alfredo D. Pineda for petitioners.
The Chief Legal Counsel for GSIS.
LEONARDO-DE CASTRO, J.:
This is a petition for review on certiorari under Rule 64 in relation to Rule 65 of the 1997 Rules of Court
to annul and set aside the Commission on Audits Decision Nos. 2003-062 and 2004-004 dated March
18, 2003 and January 27, 2004, respectively, for having been made without or in excess of jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction.
The Government Service Insurance System (GSIS) is joined by its Board of Trustees and officials,
namely: Chairman Hermogenes D. Concepcion, Jr.; Vice-Chairman and President and General
Manager Winston F. Garcia (Garcia); Executive Vice President and Chief Operating Officer Reynaldo
P. Palmiery; Trustees Leovigildo P. Arrellano, Elmer T. Bautista, Leonora V. de Jesus, Fulgencio S.
Factoran, Florino O. Ibaez, and Aida C. Nocete; Senior Vice Presidents Aurora Mathay, Enriqueta
Disuangco, Amalio Mallari, Lourdes Patag, and Asuncion C. Sindac; Vice Presidents Richard Martinez,
Romeo C. Quilatan, and Gloria D. Caedo; and Managers Esperanza Fallorina, Lolita Bacani, Arnulfo
Madriaga, Leocadia S. Fajardo, Benigno Bulaong, Shirley D. Florentino, and Lea M. Mendiola,
together with all other officials and employees held liable by the Commission on Audit (COA) as
petitioners in this case.1
The respondents in this petition are: the COA; its Director of Corporate Audit Office (CAO) I,
Amorsonia B. Escarda (Escarda), who rendered CAO I Decision No. 2002-009 dated May 27, 2002;
the former Corporate Auditor of GSIS, Ma. Cristina D. Dimagiba (Dimagiba), who issued the Notices of
Disallowance subject of CAO I Decision No. 2002-009; and the incumbent GSIS Corporate Auditor
Reynaldo P. Ventura (Ventura). The facts are as follows:
On May 30, 1997, Republic Act No. 8291, otherwise known as The Government Service Insurance
System Act of 1997 (the GSIS Act) was enacted and approved, amending Presidential Decree No.
1146, as amended, expanding and increasing the coverage and benefits of the GSIS, and instituting
reforms therein.
On October 17, 2000, pursuant to the powers granted to it under Section 41(n) of the said law, the
GSIS Board of Trustees, upon the recommendation of the Management-Employee Relations
Committee (MERCOM), approved Board Resolution No. 326 wherein they adopted the GSIS
Employees Loyalty Incentive Plan (ELIP),3to wit:
GSIS EMPLOYEES LOYALTY INCENTIVE PLAN
(Pursuant to Sec. 41(n) of R.A. No. 8291)
I OBJECTIVE: To motivate and reward employees
for meritorious, faithful and
satisfactory service
II COVERAGE: The GSIS Employees Loyalty
Page 10 of 321
Administrative Law
Incentive Plan shall cover all present
permanent employees and members
of the Board and those who may
hereafter be appointed.
III SPECIFIC BENEFIT : LI = TGS* MULTIPLIED BY
HS MINUS 5yLS/BPRCP
Where : LI = loyalty incentive
TGS = total government service
HS = highest monthly salary/benefit received
5yLS = 5 year lump sum under RA 660, RA 910, PD
1146 or RA 8291
BPRCP = retirement benefit previously received plus
cash payment for employees no longer qualified
to 5yLS
*Determined as follows:
**For positions salary grade 1-26 For positions SG 27 up
1 - 20 yrs x 1.5 1 20 yrs x 1.25
21 - 30 yrs x 2.0 21 30 yrs x 1.75
31 yrs above x 2.5 31 yrs above x 2.00
**Subject to review. Applicable only to present salary structure.
IVIMPLEMENTING POLICIES:
1. To be entitled to the plan, the employee must be qualified to retire with 5 year lump sum under RA
660 or RA 8291 or had previously retired under applicable retirement laws
2. The loyalty incentive benefit shall be computed based on both total government service and
highest monthly salary/benefit received from GSIS
3. Employees with pending administrative and/or criminal case may apply but processing and
payment of loyalty incentive shall be held in abeyance until final decision on their cases
4. GSIS loyalty incentive plan can only be availed once and employees who retired under
GERSIP97 are no longer qualified
5. There shall be no refund of retirement premiums in all cases
6. Application is subject to approval by the President and General Manager

Page 11 of 321
Administrative Law
PROCEDURE:
1. Employees availing of the Employee Loyalty Incentive Plan must file his/her application under RA
6604 or RA 8291 for the five (5) year lump sum, with HRS for indorsement to SIG
2. Option 2 under RA 8291 may be allowed but the loyalty incentive shall be computed based on 5
year lump sum
3. The loyalty incentive shall only be paid after deducting the lump sum under RA 660, RA 910,5 PD
11466 or RA 8291 or retirement benefit previously received plus cash payment
4. Government service of previously retired employees shall be considered in computing the loyalty
incentive
5. For expediency, the processing of the plan shall be done by the Social Insurance Group
EFFECTIVITY DATE: The Plan shall take effect August, 2000. (Emphases supplied.)
On November 21, 2000, Board Resolution No. 326 was amended by Board Resolution No. 360,7
which provided for a single rate for all positions, regardless of salary grade, in the computation of
creditable service, viz.:
1-20 years x 1.5
21-30 years x 2.0
31 years above x 2.5
Except as herein amended, Resolution No. 326 dated October 17, 2000 shall remain to have full force
and effect.
Dimagiba, the corporate auditor of GSIS, communicated to the President and General Manager of
GSIS that the GSIS RFP was contrary to law. However, the GSIS Legal Services Group opined that
the GSIS Board was legally authorized to adopt the plan since Section 28(b) of Commonwealth Act
No. 186 as amended by Republic Act No. 4968 has been repealed by Sections 3 and 41(n) of
Republic Act No. 8291.8
On January 16, 2001, Board Resolution No. 69 was approved, wherein ELIP was renamed GSIS
Retirement/Financial Plan (RFP) to conform strictly to the wordings of Section 41(n) of Republic Act
No. 8291.
Upon Garcias assumption of office as President and General Manager, Dimagiba requested to again
review the GSIS RFP. This was denied by Garcia.10 Believing that the GSIS RFP was morally
indefensible,11 Dimagiba sought the assistance of COA in determining the legality and/or morality of
the said Plan in so far as it has adopted the best features of the two retirement schemes, the 5-year
lump sum payment under [Republic Act No.] 1616 and the monthly pension of [Republic Act No.] 660
based on the creditable service computed at 150%. 12
On August 7, 2001, COAs General Counsel Santos M. Alquizalas (Alquizalas) issued a Memorandum
to COA Commissioner Raul C. Flores regarding the GSIS RFP. Alquizalas opined that the GSIS RFP
is a supplementary retirement plan, which is prohibited under Republic Act No. 4968, or the Teves
Retirement Law. He also said that since there is no provision in the new Republic Act No. 8291
expressly repealing the Teves Retirement Law, the two laws must be harmonized absent an
Page 12 of 321
Administrative Law
irreconcilable inconsistency. Alquizalas pronounced that Board Resolution Nos. 360 and 6 are null and
void for being violative of Section 28(b) of Commonwealth Act No. 186 as amended by Republic Act
No. 4968, which bars the creation of a supplemental retirement scheme; and Section 41(n) of Republic
Act No. 8291, which speaks of an early retirement plan or financial assistance.13
On August 14, 2001,14 Commissioner Flores forwarded this Memorandum to Dimagiba, who in turn
forwarded it to Garcia on August 23, 2001. Dimagiba, in her letter attached to Alquizalass
Memorandum, added that for lack of legal basis, her office was disallowing in audit the portion of
retirement benefits granted under the GSIS RFP, or the excess of the benefits due the retirees. She
also said that GSIS could avail of the appeal process provided for under Sections 48 to 50 of
Presidential Decree No. 1445 and Section 37.1 of the Manual on Certificate of Settlement and
Balances.15
On August 27, 2001, Garcia responded16 to Dimagiba, taking exception to the notice of disallowance
for being highly irregular and precipitate as it was based on a mere opinion of COAs counsel who
had no authority to declare the resolution of the GSIS Board of Trustees as null and void. Moreover,
Garcia asseverated that COA had neither power nor authority to declare as null and void certain
resolutions approved by the Board of Government Corporations, as the power to do so was exclusively
lodged before the courts. He also argued that the notice of disallowance was premature, and was
tantamount to a pre-audit activity, as it should refer only to a particular or specific disbursement of
public funds and not against a general activity or transaction. Garcia averred that the GSIS RFP was
part and parcel of the compensation package that GSIS may provide for its personnel, by virtue of the
powers granted to its Board of Trustees under Section 41(m) and (n) of Republic Act No. 8291. Garcia
said that the appeal process would commence only upon GSISs receipt of the particulars of the
disallowances.17 Finally, Garcia requested Dimagiba to withdraw the notices of disallowance in the
interest of industrial peace in the GSIS.18
Without responding to Garcias August 27, 2001 Memorandum, Dimagiba issued the following Notices
of Disallowance on the grounds that:
Pursuant to legal opinion of the General Counsel dated August 7, 2001, Board Resolution No. 360
dated Nov. 21, 2000 as amended by No. 6 dated Jan. 16, 2001 approving the Employees Loyalty
Incentive Plan (ELIP) is null and void for being directly in conflict with Section 28(b) of CA No. 186 as
amended by RA 4968 which bars the creation of supplemental retirement scheme and of Section 41
(n) of RA 8291 which speaks of an early retirement plan or financial assistance.
Notices of Disallowance dated September 19, 200120

Page 13 of 321
Administrative Law

Notice of Payee Amount Persons Liable:Board of Trustees;

Disallowance Disallowed Lourdes Patag (SVP), Gloria Caedo
No./ (VP-SIAMS II), the payee, and the
Period covered: following officers:

2001-01-412/ Marina P6,895,545.84 Richard MartinezLea M. Mendiola

Santamaria

December 2000

2001-02- Rosita N. P2,281,005.52

412/December Lim
2000
2001-03- Manuel G. P1,201,581.29 Daniel MijaresRomeo
412/January 2001 Ojeda QuilatanRichard MartinezBenigno
Bulaong

2001-04- Federico P11,444,957.32 Winston F. GarciaEsperanza

412/March 2001 Pascual FallorinaLea M. Mendiola

2001-05- Juanito P332,035.79 Winston F. GarciaEsperanza

412/March 2001 Gamier, FallorinaLea M. MendiolaShirley
Sr. Florentino

2001-06-412/May Vicente P4,792,260.17 Enriqueta DisuancoAurora P.

2001 Villegas MathayLea M. Mendiola

Page 14 of 321
Administrative Law
Notices of Disallowance dated October 22, 200121
Notice of Payee Amount Persons Liable:Board of Trustees;Gloria
Disallowance Disallowed Caedo (VP-SIAMS II);Asuncion Sindac
No./Period (VP);Richard M. Martinez (VP &
covered:July 24, 2001 Controller);Lea M. Mendiola

(Manager, HRSD);the payee; andthe

following officers:

2001-07- Rustico G. Delos P1,968,516.01 Reynaldo

412 Angeles Palmiery

2001-08- Lourdes Delos P4,320,567.99 Reynaldo

412 Angeles PalmieryAmalio A.
Mallari

2001-09- Gloria L. Anonuevo P1,308,705.75 Lolita B. Bacani

412

2001-10- Elvira J. Agcaoili P2,313,729.41 Reynaldo

412 PalmieryAmalio A.
Mallari

2001-11- Segundina S. P743,877.21 (except Richard Martinez and Lea M.

412 Dionisio Mendiola)

Notices of Disallowance dated October 23, 200122

Page 15 of 321
Administrative Law

Notice of Payee Amount Persons Liable:Board of

Disallowance Disallowed Trustees;Gloria Caedo (VP-SIAMS
No./Period II);Asuncion Sindac (VP);Lea M.
covered:July 24, Mendiola (Manager, HRSD);the payee;
2001 andthe following officers:

2001-12-412 Daniel P7,148,031.17 Reynaldo

N. Palmiery
Mijares

Richard Martinez

2001-13- Melinda A. Flores P1,459,974.12 Reynaldo

412 PalmieryRichard MartinezManuel P. Bausa

2001-14- Democrito M. P532,869.65 Enriqueta

412 Silang DisuancoArnulfo Madriaga

2001-15- Manuel P. Bausa P1,955,561.67 Reynaldo

412 PalmieryRichard MartinezLourdes A. Delos
Angeles

Notices of Disallowance dated November 9, 200123

Notice of Payee Amount Persons Liable:Board of
Disallowance Disallowed Trustees;Winston F. Garcia
No./Period (PGM);Asuncion Sindac
covered: (SVP);Gloria Caedo (VP);the
payee; andthe following officers:
2001-16-412/ Lourdes P7,883,629.28 Enriquita DisuancoLea M.

Page 16 of 321
Administrative Law

June 28, 2001 G. Patag Mendiola

2001-17-412/ Elvira U. P5,648,739.26 Richard Martinez
Geronimo
July 17, 2001

Notices of Disallowance dated November 13, 200124

Notice of Payee Amount Persons Liable:
Disallow- Disallowed
Board of
ance
Trustees;
No./Period
Asuncion Sindac
covered:
(SVP);
Gloria Caedo
(VP);
Lea M. Mendiola
(Manager, HRSD)
the payee; and
the following
officers:
2001-20-412/ Modesto A. De P2,887,056.75 Daniel N. Mijares
Leon
August 28, 2001 Romeo Quilatan
2001-21-412/ Antonio S. De P931,583.11 Reynaldo
Castro
July 20, 2001 Palmiery
Richard
Martinez
2001-22-412/ Teresa O. Loyola P485,184.27 Leocadia S.
August 27, 2001 Fajardo
2001-23-412/ Pablito B. Galvez P93,487.54 Reynaldo
August 27, 2001 Palmiery
Shirley
Florentino

Page 17 of 321
Administrative Law
On January 30, 2002, GSIS, together with some of the petitioners herein, gave notice 25 to the COA
CAO I that it was appealing the 21 Notices of Disallowance it had received from Dimagiba on various
dates. It amended26 this Notice of Appeal the following day, to include all GSIS officials and employees
held liable and accountable under the said disallowances. 27
In their Memorandum of Appeal,28 the petitioners mainly argued that GSIS had the power, under its
charter, to adopt and implement the GSIS RFP. They alleged that their plan was not unique to GSIS as
other government agencies also have their own retirement or financial assistance plans. They claimed
that to then disallow their retirement plan would be tantamount to a violation of their constitutional right
to be equally protected by our laws.29 The petitioners also argued that Republic Act No. 8291 had
modified or repealed all provisions of the Teves Retirement Law that were inconsistent with it and that
GSISs officials could not be held liable or accountable for implementing the GSIS RFP since this was
done in the performance of their duties.30
On May 27, 2002, the COA, through Escarda, in CAO I Decision No. 2002-009,31 affirmed the
disallowances made by Dimagiba. Escarda sustained the COA general counsels opinion and said that
while the GSIS may have the power to adopt an early retirement or a financial assistance plan under
its charter, it cannot supplement a retirement plan already existing under the law. Escarda said that the
purpose of an early retirement plan is generally to streamline the organization by encouraging those
who would not be qualified for compulsory retirement to retire early under the plan. However, Escarda
claimed, the availees of the plan were employees whose supposed monthly pensions under the GSIS
RFP included services they had already earned in other government agencies. Thus, Escarda held
that the GSIS RFP was in reality a supplementary retirement plan for these GSIS employees. Finally,
Escarda disagreed with GSISs assertion that the Teves Retirement Law had been modified or
repealed as the repealing clause in Republic Act No. 8291 is a general repealing clause, which is
frowned upon and is generally not effective to repeal a specific law like the Teves Retirement Law.32
Undaunted, the petitioners filed before the COA a Petition for Review33 of CAO Is decision, raising
the exact same issues it raised in its Memorandum of Appeal dated February 14, 2002, to wit:
I
Whether or not petitioners/appellants GSIS and GSIS Board of Trustees have the power and authority
to design and adopt the questioned GSIS Retirement Financial Plan.
II
Whether or not petitioners/appellant GSIS officials who are merely implementing the GSIS Act of 1997
and duly adopted Board Resolutions must be held responsible and accountable for the implementation
of the GSIS Retirement Financial Plan.
III
Whether or not the adoption of the GSIS Retirement Financial Plan violated Section 28 (b) of CA No.
186 as amended by Republic Act No. 4968, and Section 41(n) of Republic Act No. 8291, otherwise
known as the GSIS Act of 1997.
IV

Page 18 of 321
Administrative Law
Whether or not the COA disallowance of the GSIS Retirement Financial Plan is lawful, and the CAO I
Decision No. 2002-009 and the Notices of Disallowance issued by GSIS Corporate Auditor Dimagiba
are proper.34
On March 18, 2003, COA issued Decision No. 2003-062,35 wherein the issue was narrowed down to
whether or not the GSIS Board can reward themselves with unusually large benefits in the face of an
unusually large actuarial deficit which will result in the denial of benefits of future retirees in other
government agencies for whom the fund is principally intended.36
COA zeroed in on the fact that to be entitled to the GSIS RFP, the employee must be qualified to
retire with 5-year lump sum under R.A. No. 660 or R.A. No. 8291 or [must have] previously retired
under the applicable retirement laws.37 They affirmed Escardas ruling and contended that what the
still valid38 Teves Retirement Law permits is the creation of an early retirement or financial
assistance plan, and the above requirement imposed under the GSIS RFP does not apply to either
plans. COA added:
Unmistakably, the Plan being a supplementary pension/retirement plan, it contravenes the Teves law.
Not even the renaming of [the] Employees Loyalty Incentive Plan (ELIP) to Retirement Financial Plan
(RFP), purportedly to conform with the wording of the law, could conceal its true nature or character as
a supplementary pension/retirement plan which incorporates the best features of R.A. Nos. 660 and
8291, creating in effect a third retirement plan for GSIS personnel only. This is all the more made
manifest by the fact that even Board members who are not qualified at all to retire under any existing
retirement laws could retire under the RFP. Strikingly, by promulgating another regular retirement
scheme, the GSIS Board enlarged the field of its authority and regulation as provided in the statute it is
supposed to administer.39
COA said that the power of GSIS in applying the law must not be abused. COA averred that GSIS was
found to be deficient actuarially by Fifteen Billion Pesos, and for it to reward its employees, who were
already enjoying salaries higher than their counterparts in other government agencies, meant that it
would have to dip into its principal fund to the prejudice of its members, who were the very raison
detre for its establishment.40
Addressing petitioners claim of discrimination, COA said that each of the government agencies that
had adopted its own retirement plans did so pursuant to a valid law and under factual circumstances
that were not present in the case of GSIS. COA also affirmed the liability of the petitioners who were
held accountable under the disallowances as they had failed to exercise the diligence of a good father
of a family in the performance of their functions.41 Finally, COA averred that while its general counsels
opinion boosted its position, such was not the basis of the disallowance. 42
The petitioners sought reconsideration43 of this decision and even asked to be heard in oral
arguments,44 but COA, in its Decision No. 2004-004 dated January 27, 2004,45 denied both motions
and affirmed its Decision No. 2003-062 dated March 18, 2003 with finality.
The petitioners are now before us, asking us to nullify COAs March 18, 2003 and January 27, 2004
decisions, on the ground that they were made with grave abuse of discretion amounting to lack or
excess of jurisdiction.46
The petitioners posit the following arguments to support their cause:

Page 19 of 321
Administrative Law
RESPONDENTS ACTED WITHOUT OR IN EXCESS OF JURISDICTION, OR WITH GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION, WHEN IN THE
FOLLOWING MANNER:
I
Respondents sought to interpret clear provisions of Republic Act No. 8291, otherwise known
as the GSIS Act of 1997, and declare null and void duly adopted resolutions of petitioner GSIS
which has the power and authority to design and adopt the questioned GSIS Retirement
Financial Plan (RFP).
II
Respondents ruled that petitioners GSIS officials who are merely implementing the GSIS Act of
1997 and duly adopted Board Resolutions could be held responsible and accountable for the
implementation of the GSIS Retirement Financial Plan (RFP).
III
Respondents held that the adoption of the GSIS Retirement Financial Plan (RFP) violated
Section 28 (b) of CA No. 186, as amended by Republic Act No. 4968, and Section 41(n)
of Republic Act No. 8291, otherwise known as the GSIS Act of 1997.
IV
Respondent[s] disallowed the GSIS Retirement Financial Plan (RFP), and erroneously affirmed
the Notices of Disallowance issued by then GSIS Corporate Auditor Dimagiba.
V
Respondents touched on new and irrelevant matters which were not raised in the
disallowances and/or pleadings below, and which were never validated. 47
The crux of the present case boils down to the legality of Board Resolution Nos. 360, 326, and 6,
which we shall refer to simply as the GSIS RFP, in light of Republic Act No. 8291 or the GSIS Act of
1997, and Commonwealth Act No. 186 or the Government Service Insurance Act as amended by
Republic Act No. 4968 (the Teves Retirement Law).
Below are the pertinent provisions of the foregoing laws:
Republic Act No. 829
SECTION 41. Powers and Functions of the GSIS.The GSIS shall exercise the following powers
and functions:
xxxx
(n) to design and adopt an Early Retirement Incentive Plan (ERIP) and/or financial assistance for the
purpose of retirement for its own personnel; x x x.
Commonwealth Act No. 186 as amended by the Teves Retirement Law:
SEC. 28. Miscellaneous Provisions.x x x

Page 20 of 321
Administrative Law
(b) Hereafter no insurance or retirement plan for officers or employees shall be created by any
employer. All supplementary retirement or pension plans heretofore in force in any government office,
agency, or instrumentality or corporation owned or controlled by the government, are hereby declared
inoperative or abolished. x x x.48
Republic Act No. 4968 or the
Teves Retirement Law
Is Still Good Law
The petitioners insist that under Section 3 of Republic Act No. 8291, which provides that all laws or
any law or parts of law specifically inconsistent herewith are hereby repealed or modified accordingly,
all provisions of the Teves Retirement Law that are inconsistent with Republic Act No. 8291 are
deemed repealed or modified.49
We do not subscribe to petitioners interpretation of this law. This is because, unless the intention to
revoke is clear and manifest, the abrogation or repeal of a law cannot be assumed. 50 The repealing
clause contained in Republic Act No. 8291 is not an express repealing clause because it fails to
identify or designate the statutes that are intended to be repealed. It is actually a clause, which
predicated the intended repeal upon the condition that a substantial conflict must be found in existing
and prior laws.51
Since Republic Act No. 8291 made no express repeal or abrogation of the provisions of
Commonwealth Act No. 186 as amended by the Teves Retirement Law, the reliance of the petitioners
on its general repealing clause is erroneous. The failure to add a specific repealing clause in Republic
Act No. 8291 indicates that the intent was not to repeal any existing law, unless an irreconcilable
inconsistency and repugnancy exists in the terms of the new and old laws.52
We are likewise not convinced by petitioners claim of repeal by implication. It is a well-settled rule that
to bring about an implied repeal, the two laws must be absolutely incompatible and clearly repugnant
that the later law cannot exist without nullifying the prior law. 53 As this Court held in Recaa, Jr. v.
Court of Appeals:54
Repeal of laws should be made clear and expressed. Repeals by implication are not favored as laws
are presumed to be passed with deliberation and full knowledge of all laws existing on the subject.
Such repeals are not favored for a law cannot be deemed repealed unless it is clearly manifest that the
legislature so intended it. x x x.55
This Court sees no incompatibility between the two laws being discussed here. In reconciling Section
41(n) of Republic Act No. 8291 with the Teves Retirement Law, we are guided by this Courts
pronouncement in Philippine International Trading Corporation v. Commission on Audit56:
In reconciling Section 6 of Executive Order No. 756 with Section 28, Subsection (b) of Commonwealth
Act No. 186, as amended, uppermost in the mind of the Court is the fact that the best method of
interpretation is that which makes laws consistent with other laws which are to be harmonized rather
than having one considered repealed in favor of the other. Time and again, it has been held that every
statute must be so interpreted and brought in accord with other laws as to form a uniform system of
jurisprudenceinterpretere et concordare legibus est optimus interpretendi. Thus, if diverse statutes
relate to the same thing, they ought to be taken into consideration in construing any one of them, as it

Page 21 of 321
Administrative Law
is an established rule of law that all acts in pari materia are to be taken together, as if they were one
law. x x x.57
While Republic Act No. 8291 speaks of an early retirement incentive plan or financial
assistance for the GSIS employees, Commonwealth Act No. 186 as amended by the Teves
Retirement Law talks about insurance or retirement plans other than our existing retirement laws.
In other words, what the Teves Retirement Law contemplates and prohibits are separate retirement or
insurance plans. In fact, the very same provision declared inoperative or abolished all supplementary
retirement or pension plans.
The GSIS Retirement/Financial
Plan is Null and Void
It is true that under Section 41(n) of Republic Act No. 8291, GSIS is expressly granted the power to
adopt a retirement plan and/or financial assistance for its employees, but a closer look at the provision
readily shows that this power is not absolute. It is qualified by the words early, incentive, and for
the purpose of retirement. The retirement plan must be an early retirement incentive plan and such
early retirement incentive plan or financial assistance must be for the purpose of retirement.
According to Websters Third New International Dictionary, early means occurring before the
expected or usual time, while incentive means serving to encourage, rouse, or move to action, or
something that constitutes a motive or spur.58
It is clear from the foregoing that Section 41(n) of Republic Act No. 8291 contemplates a situation
wherein GSIS, due to a reorganization, a streamlining of its organization, or some other circumstance,
which calls for the termination of some of its employees, must design a plan to encourage, induce, or
motivate these employees, who are not yet qualified for either optional or compulsory retirement
under our laws, to instead voluntarily retire. This is the very reason why under the law, the retirement
plan to be adopted is in reality an incentive scheme to encourage the employees to retire before their
retirement age.
The above interpretation applies equally to the phrase financial assistance, which, contrary to the
petitioners assertion, should not be read independently of the purpose of an early retirement incentive
plan. Under the doctrine of noscitur a sociis, the construction of a particular word or phrase, which is in
itself ambiguous, or is equally susceptible of various meanings, may be made clear and specific by
considering the company of words in which it is found or with which it is associated. In other words, the
obscurity or doubt of the word or phrase may be reviewed by reference to associated words. 59 Thus,
the phrase financial assistance, in light of the preceding words with which it is associated, should
also be construed as an incentive scheme to induce employees to retire early or as an assistance plan
to be given to employees retiring earlier than their retirement age.
Such is not the case with the GSIS RFP. Its very objective, [t]o motivate and reward employees for
meritorious, faithful, and satisfactory service,60 contradicts the nature of an early retirement
incentive plan, or a financial assistance plan, which involves a substantial amount that is given to
motivate employees to retire early. Instead, it falls exactly within the purpose of a retirement benefit,
which is a form of reward for an employees loyalty and lengthy service,61 in order to help him or her
enjoy the remaining years of his life.

Page 22 of 321
Administrative Law
Furthermore, to be able to apply for the GSIS RFP, one must be qualified to retire under Republic Act
No. 660 or Republic Act No. 8291, or must have previously retired under our existing retirement laws.
This only means that the employees covered by the GSIS RFP were those who were already eligible
to retire or had already retired. Certainly, this is not included in the scope of an early retirement
incentive plan or financial assistance for the purpose of retirement.
The fact that GSIS changed the name from Employees Loyalty Incentive Plan to
Retirement/Financial Plan does not change its essential nature. A perusal of the plan shows that its
purpose is not to encourage GSISs employees to retire before their retirement age, but to augment
the retirement benefits they would receive under our present laws.62Without a doubt, the GSIS RFP
is a supplementary retirement plan, which is prohibited by the Teves Retirement Law.
Conte v. Commission on Audit63 squarely applies in this case. In that case, the Social Security System
(SSS) issued Resolution No. 56, which provided financial incentive and inducement to SSS employees
who were qualified to retire, to avail of retirement benefits under Republic Act No. 660, as amended
(which GSIS would have to pay), rather than the retirement benefits under Republic Act No. 1616, as
amended (which SSS would have to pay). Under SSS Resolution No. 56, those who retire under
Republic Act No. 660 would be given a financial assistance equivalent in amount to the difference
between what a retiree would have received under Republic Act No. 1616, less what he was entitled to
under Republic Act No. 660. COA disallowed in audit all claims for financial assistance under SSS
Resolution No. 56 for being similar to those separate retirement plans or incentive/separation pay
plans adopted by other government corporate agencies, which resulted in the increase of benefits
beyond what was allowed under existing retirement laws. This Court sustained COAs disallowance
and held that SSS Resolution No. 56 constituted a supplementary retirement plan proscribed by
Section 28(b) of Commonwealth Act No. 186, as amended by Republic Act No. 4968. 64
The petitioners argue that Conte finds no application in this case, since SSS had no authority under its
charter to adopt such a resolution, unlike the GSIS, which was cloaked with authority to issue the
questioned resolutions. Furthermore, petitioners argue that Republic Act No. 8291 became effective in
1997, which was after this Court had already decided the Conte case.
We find no merit in the petitioners arguments. The laws have not changed, and the doctrine
in Conte has not been overturned or abandoned. The fact that Republic Act No. 8291 was approved
and enacted after Conte is of no moment, as what was interpreted in Conte was the provision in the
Teves Retirement Law in issue here. Moreover, we have already discussed above how such provision
has neither been repealed nor modified by Section 41(n) of Republic Act No. 8291. Thus, it is just
fitting that we find guidance in the application and interpretation of Section 28(b) of Commonwealth Act
No. 186, as amended by Republic Act No. 4968, from the Conte case.
As we have held in that case:
Section 28(b) [of C.A. No. 186] as amended by R.A. No. 4968 in no uncertain terms bars the creation
of any insurance or retirement planother than the GSISfor government officers and employees, in
order to prevent the undue and inequitous proliferation of such plans. x x x.65
The petitioners asseverate that many laws such as Republic Act Nos. 8291, 1161, 8282, 6683, and
7641, were validly enacted after the Teves Retirement Law; thus, the evil that it seeks to avoid is the
proliferation of those retirement plans that are not so authorized by law. 66 The petitioners even go so
far as comparing themselves to other government agencies, which have adopted their own retirement
Page 23 of 321
Administrative Law
schemes at one time or another such as the Development Bank of the Philippines, the Securities and
Exchange Commission, the National Power Corporation, the COA, the Court of Appeals, and even this
Court.67
The petitioners themselves admit that those retirement schemes were adopted as a [one-time] grant
[by] reason of reorganization68 pursuant to Republic Act No. 668369 or the Early Retirement Law. As
for the additional benefits extended to retiring justices or commissioners, suffice it to say that they were
also given pursuant to laws passed by Congress. Moreover, those retirement plans enjoy the
presumption of validity and regularity.
In stark contrast, the GSIS RFP was not created because of a valid company reorganization. Its
purpose did not include the granting of benefits for early retirement. Neither did it provide benefits for
either voluntary or involuntary separation from GSIS. It was intended for employees who were already
eligible to retire under existing retirement laws. While the GSIS may have been clothed with authority
to adopt an early retirement or financial assistance plan, such authority was limited by the very law it
was seeking to implement.
Borrowing this Courts words in the Conte case, it is beyond cavil that [the GSIS Retirement/Financial
Plan] contravenes [Section 28(b) of C.A. No. 186 as amended by R.A. No. 4968 or the Teves
Retirement Law], and is therefore invalid, void, and of no effect. To ignore this and rule otherwise
would be tantamount to permitting every other government office or agency to put up its own
supplementary retirement benefit plan under the guise of such financial assistance. 70
Another compelling reason to nullify the GSIS RFP is that it allows, and in fact mandates, the inclusion
of the years in government service of previously retired employees, to wit:
PROCEDURE:
xxxx
4. Government service of previously retired employees shall be considered in computing the loyalty
incentive.71
In Santos v. Court of Appeals,72 we affirmed the Court of Appeals and the Civil Service Commissions
ruling that for the purpose of computing or determining Santos separation pay, his years of service in
his previous government office should be excluded and his separation pay should be solely confined to
his services in his new government position. We gave the rationale for this as follows:
Such would run counter to the policy of this Court against double compensation for exactly the same
services. More important, it would be in violation of the first paragraph of Section 8 of Article IX-B of
the Constitution, which proscribes additional, double, or indirect compensation. Said provision reads:
No elective or appointive public officer or employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law .73
Our ruling therein is likewise applicable in this case. To credit the years of service of GSIS retirees in
their previous government office into the computation of their retirement benefits under the GSIS RFP,
notwithstanding the fact that they had received or had been receiving the retirement benefits under the
applicable retirement law they retired in, would be to countenance double compensation for exactly the
same services.74

Page 24 of 321
Administrative Law
To emphasize COAs distaste75 for the huge retirement benefits of GSISs board members, officers,
and employees, who are already receiving significantly higher salaries than their counterparts in other
government agencies, COA illustrated the glaring discrepancy between what a GSIS employee would
get under the GSIS RFP, and what a mere GSIS member would get under applicable retirement laws:
GSIS EMPLOYEE vs. GSIS MEMBER not covered by [GSIS RFP]
GSIS SALARY GSIS
EMPLOYEE GRADE MEMBER

GSIS Vice- 27 Director III

President
46.36895 Length of Service 46.36895
P110,775.00 Basic Salary P25,223.00
65 years old Age at 65 years old
Retirement
August 21, 2001 Date of August 21,
Retirement 2001
April 8, 1954 First Day in Govt April 8, 1954
Service
April 8, 1954 First Day in April 8, 1954
GSIS/
Other office
BENEFITS UNDER DIFFERENT MODES OF RETIREMENT
[GSIS Employee] [GSIS Member]
[GSIS RFP] RA 1616 RA 660 [GSIS RA 1616 RA 660
RFP]

90.92238 67.7379 46.36895 CGS N/A 67.7379 46.36895

10,071,926.00 7,503,665.87 NONE GA 1,708,553.05 NONE
3,176,380.80 5YLS 1,210,704.00
52,939.68 BMP 20,178.40
NONE with refund NONE RRP with refund NONE
*[GSIS RFP] less 5YLS = FINANCIAL ASSISTANCE plus MP of P52,939.68 after five years
= P6,895,545.20 Financial Assistance +
Monthly Pension after five years
Page 25 of 321
Administrative Law
* CGS - Creditable Government Service
* GA - Gratuity Amount Payable by Employer
* 5YLS - Five (5) Year Lump Sum Payable by GSIS
* BMP - Basic Monthly Pension
* RRP - Refund of Retirement Premiums76
With the above illustration, it can be readily seen and understood why the Teves Retirement Law
prohibits the proliferation of additional retirement plans in our government offices. While it is true that a
better compensation package will not only attract more competent and capable individuals to work in
GSIS, but will also ensure that they remain loyal and faithful therein, this has already been addressed
by the GSIS employees exemption from Republic Act No. 678 or the Salary Standardization Law
(SSL), under Sec. 43(d) of Republic Act No. 8291. As shown in the above tables, the salary of a GSIS
employee is much higher compared to his counterpart in another government agency. This remains to
be true even with the recent increase of the salaries in the SSL.
The petitioners also question COAs authority to nullify the resolutions involved in this case. It must be
remembered that none of the COA decisions nullified the Board Resolutions adopted by GSISs Board
of Trustees. What the COA decisions affirmed were the disallowances made by GSISs own Corporate
Auditor, Dimagiba. It is irrelevant that COA, in its decisions, touched upon issues not brought before it,
or that it referred to its general counsels opinion on the GSIS RFP, as these were done only to
reinforce COAs position. They have no bearing upon the weight of COAs decisions, which are based
upon our existing laws and jurisprudence.
As for Dimagiba, while she may have relied on the opinion of COAs legal counsel to support the
disallowances she had made, it is worthy to note that she had already informed Garcia of the GSIS
RFPs illegality even before she sought COAs opinion on the matter. Moreover, neither Dimagibas nor
COAs confidence in the opinion of COAs general counsel could be faulted, as under Presidential
Decree No. 1445, or the Government Auditing Code of the Philippines, one of the responsibilities of
COAs legal office is to interpret pertinent laws and auditing rules and regulations, to wit:
SECTION 11. The Legal Office.The Legal Office shall be charged with the following
responsibilities:
(1) Perform advisory and consultative functions and render legal services with respect to the
performance of the functions of the Commission and the interpretation of pertinent laws and auditing
rules and regulations; x x x.
In view of the above, we can hardly impute grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of respondents COA, Escarda, and Dimagiba, for disallowing in audit the portion
of retirement benefits in excess of what is allowed under our existing retirement laws. On the contrary,
they acted with caution, diligence, and vigilance in the exercise of their duties, especially since what
was involved were huge amounts of money imbued with public interest, since GSISs funds come from
the contributions of its members. Thus, GSISs business is to keep in trust the money belonging to its
members,77 who are not limited to its own employees.
The Payees are Liable for the
Return of the Disallowed Benefits
Under the GSIS RFP

Page 26 of 321
Administrative Law
The petitioners claim that GSISs Board of Trustees cannot be held liable as they were acting pursuant
to a valid law when they adopted the GSIS RFP. The petitioners also argue that the implementation of
the GSIS RFP was merely ministerial, thus the GSIS officers held accountable under the Notices of
Disallowance should not be held responsible and accountable for the allocation and release of the
benefits under the GSIS RFP.
This Court agrees that only the payees should be held liable for the return of the disallowed amounts
under the GSIS RFP.
Although it is true that as early as December 2000, 78Dimagiba already questioned the legality of the
GSIS RFP, it was only in August 2001 when GSIS received COAs opinion on the matter. Moreover,
COA first decided the issue only in 2002.
While the Board of Trustees believed they had the authority and power to adopt the GSIS RFP, the
officers on the other hand believed that they were implementing a valid resolution. As we said
in Buscaino v. Commission on Audit,79 the resolution of the Board of Trustees was sufficient basis for
the disbursement, and it is beyond these officers competence to pass upon the validity of such board
resolutions.80
On account of the GSIS RFPs doubtful validity, the petitioners should have exercised prudence and
held in abeyance the disbursement of the portion of retirement benefits under the GSIS RFP until the
issue of its legality had been resolved.
However, the Board of Trustees and the officers held accountable under the Notices of Disallowance
should not be held liable as they are entitled to the presumption of having exercised their functions
with regularity and in good faith.
WHEREFORE, the petition is PARTIALLY GRANTED. The assailed Decisions of the Commission on
Audit Nos. 2003-062 and 2004-004 dated March 18, 2003 and January 27, 2004, are AFFIRMED with
the MODIFICATION that only the payees of the disbursements made under the GSIS RFP in the
Notices of Disallowance are liable for such disbursements. Board Resolution Nos. 326, 360, and 6 are
declared ILLEGAL, VOID, and OF NO EFFECT.
SO ORDERED.
Corona (C.J.), Carpio, Velasco, Jr., Brion, Peralta,
Abad, Villarama, Jr., Mendoza, Sereno, Reyes and Perlas-Bernabe, JJ., concur.
Bersamin and Perez, JJ., On Official Leave.
Del Castillo, J., On Leave.
Petition partially granted, decisions affirmed with modification.
Note.Absent an express provision of law to the contrary, separation due to reorganization gives rise
to two possible scenarios: first, when the separated employee is not yet entitled to retirement
benefits, second, when the employee is qualified to retire. (Herrera vs. National Power Corporation,
608 SCRA 475 [2009])

Page 27 of 321
Administrative Law

Page 28 of 321
Administrative Law
o0o
Case 3
G.R. No. 164785. April 29, 2009.*
ELISEO F. SORIANO, petitioner, vs. MA. CONSOLIZA P. LAGUARDIA, in her capacity as
Chairperson of the Movie and Television Review and Classification Board, MOVIE AND
TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA
CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA,
JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, respondents.
G.R. No. 165636. April 29, 2009.*
ELISEO F. SORIANO, petitioner, vs. MOVIE AND TELEVISION REVIEW AND CLASSIFICATION
BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL
BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of
the Hearing and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M.
DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as
complainants before the MTRCB, respondents.
Administrative Law; Movie and Television Review and Classification Board (MTRCB); Powers of an
administrative agency is ascertained from the law itself which is liberally construed. Movie and
Television Review and Classification Board (MTRCB) has the power to issue a preventive suspension
order.Administrative agencies have powers and functions which may be administrative,
investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred
by the Constitution or by statute. They have in fine only such powers or authority as are granted or
delegated, expressly or impliedly, by law. And in determining whether an agency has certain powers,
the inquiry should be from the law itself. But once ascertained as existing, the authority given should
be liberally construed. A perusal of the MTRCBs basic mandate under PD 1986 reveals the
possession by the agency of the authority, albeit impliedly, to issue the challenged order of preventive
suspension. And this authority stems naturally from, and is necessary for the exercise of, its power of
regulation and supervision.
Same; Same; Jurisdiction; Administrative Agencies.But the mere absence of a provision on
preventive suspension in PD 1986, without more, would not work to deprive the MTRCB a basic
disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly empowered by
statute to regulate and supervise television programs to obviate the exhibition or broadcast of, among
others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to prevent
further violations as it investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR
neither amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the
assailed preventive suspension, outrun its authority under the law. Far from it. The preventive
suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCBs
duty of regulating or supervising television programs, pending a determination of whether or not there
has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely
formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.

Page 29 of 321
Administrative Law
Same; Same; Same; Movie and Television Review and Classification Boards (MTRCBs) power to
issue a preventive suspension order includes TV programs.We cannot agree with petitioners
assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion
pictures and publicity materials. The scope of the MTRCBs authority extends beyond motion pictures.
What the acronym MTRCB stands for would suggest as much. And while the law makes specific
reference to the closure of a television network, the suspension of a television program is a far less
punitive measure that can be undertaken, with the purpose of stopping further violations of PD 1986.
Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions
petitioner envisages.
Same; Same; Due Process; Movie and Television Review and Classification Board (MTRCB) issued
the assailed order after a hearing.Just as untenable is petitioners argument on the nullity of the
preventive suspension order on the ground of lack of hearing. As it were, the MTRCB handed out the
assailed order after petitioner, in response to a written notice, appeared before that Board for a hearing
on private respondents complaint. No less than petitioner admitted that the order was issued after the
adjournment of the hearing, proving that he had already appeared before the MTRCB. Under Sec. 3,
Chapter XIII of the IRR of PD 1986, preventive suspension shall issue [a]ny time during the pendency
of the case. In this particular case, it was done after MTRCB duly apprised petitioner of his having
possibly violated PD 1986 and of administrative complaints that had been filed against him for such
violation.
Evidence; Constitutional Law; Petitioner has not been denied the equal protection of the law as the
Iglesia Ni Cristo (INC) ministers he criticized are not facing any administrative charges.Petitioners
position does not persuade. The equal protection clause demands that all persons subject to
legislation should be treated alike, under like circumstances and conditions both in the privileges
conferred and liabilities imposed. It guards against undue favor and individual privilege as well as
hostile discrimination. Surely, petitioner cannot, under the premises, place himself in the same shoes
as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For
another, he offers no proof that the said ministers, in their TV programs, use language similar to that
which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the
preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his
critics, this does not become a deprivation of the equal protection guarantee. The Court need not
belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the
INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply
too different to even consider whether or not there is a prima facie indication of oppressive inequality.
Same; Same; Religious Freedom; Plain and simple insults to another person cannot be elevated to the
status of a religious speech.There is nothing in petitioners statements subject of the complaints
expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact
that he came out with his statements in a televised bible exposition program does not automatically
accord them the character of a religious discourse. Plain and simple insults directed at another person
cannot be elevated to the status of religious speech. Even petitioners attempts to place his words in
context show that he was moved by anger and the need to seek retribution, not by any religious
conviction. His claim, assuming its veracity, that some INC ministers distorted his statements
respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language used in
retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his
reputation and religion, as they constitute no intelligible defense or refutation of the alleged lies being
Page 30 of 321
Administrative Law
spread by a rival religious group. They simply illustrate that petitioner had descended to the level of
name-calling and foul-language discourse. Petitioner could have chosen to contradict and disprove his
detractors, but opted for the low road.
Same; Same; Same; A TV program rated G or for general viewership reaches adults and children
alike. What may not be obscene speech to adults may be considered obscene for children.A cursory
examination of the utterances complained of and the circumstances of the case reveal that to an
average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung
putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of
speech or merely a play on words. In the context they were used, they may not appeal to the prurient
interests of an adult. The problem with the challenged statements is that they were uttered in a TV
program that is rated G or for general viewership, and in a time slot that would likely reach even the
eyes and ears of children.
Same; Same; Same; Words and Phrases.While adults may have understood that the terms thus
used were not to be taken literally, children could hardly be expected to have the same discernment.
Without parental guidance, the unbridled use of such language as that of petitioner in a television
broadcast could corrupt impressionable young minds. The term putang babae means a female
prostitute, a term wholly inappropriate for children, who could look it up in a dictionary and just get the
literal meaning, missing the context within which it was used. Petitioner further used the terms, ang
gumagana lang doon yung ibaba, making reference to the female sexual organ and how a female
prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a
similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner said,
also without placing the phrase in context. They may be inquisitive as to why Sandoval is different from
a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of the words
used, young minds, without the guidance of an adult, may, from their end, view this kind of indecent
speech as obscene, if they take these words literally and use them in their own speech or form their
own ideas on the matter. In this particular case, where children had the opportunity to hear petitioners
words, when speaking of the average person in the test for obscenity, we are speaking of the average
child, not the average adult. The average child may not have the adults grasp of figures of speech,
and may lack the understanding that language may be colorful, and words may convey more than the
literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its
function as such. In this sense, we find petitioners utterances obscene and not entitled to protection
under the umbrella of freedom of speech.
Same; Same; Same; Freedom of Speech; As a standard of limitation on freedom of speech and press,
the clear and present danger test is not a magic incantation.It was originally designed to determine
the latitude which should be given to speech that espouses anti-government action, or to have serious
and substantial deleterious consequences on the security and public order of the community. The clear
and present danger rule has been applied to this jurisdiction. As a standard of limitation on free speech
and press, however, the clear and present danger test is not a magic incantation that wipes out all
problems and does away with analysis and judgment in the testing of the legitimacy of claims to free
speech and which compels a court to release a defendant from liability the moment the doctrine is
invoked, absent proof of imminent catastrophic disaster. As we observed in Eastern Broadcasting
Corporation vs. Dans, Jr., 137 SCRA 628 (1985), the clear and present danger test does not lend
itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.
Page 31 of 321
Administrative Law
Same; Same; Same; Same; The State has a compelling interest to protect minors, against offensive
language in TV programs.The State has a compelling interest in extending social protection to
minors against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It
has a compelling interest in helping parents, through regulatory mechanisms, protect their childrens
minds from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in
fact enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual,
intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of
nation-building. In the same way, the State is mandated to support parents in the rearing of the youth
for civic efficiency and the development of moral character. Petitioners offensive and obscene
language uttered in a television broadcast, without doubt, was easily accessible to the children. His
statements could have exposed children to a language that is unacceptable in everyday use. As such,
the welfare of children and the States mandate to protect and care for them, as parens patriae,
constitute a substantial and compelling government interest in regulating petitioners utterances in TV
broadcast as provided in PD 1986.
Same; Same; Same; The assailed order penalized petitioner for past speech, not future speeches in a
TV program.Neither can petitioners virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its proper
perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected form
of speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or
broadcast permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB
in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech made on prime-time G rated TV program; it
does not bar future speech of petitioner in other television programs; it is a permissible subsequent
administrative sanction; it should not be confused with a prior restraint on speech. While not on all
fours, the Court, in MTRCB, sustained the power of the MTRCB to penalize a broadcast company for
exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD 1986.
Same; Same; Same; Jurisdiction; Presidential Decree No. 1986 is constitutional; The investiture of
supervisory power would be meaningless if it did not carry with it the power to penalize the supervised
as may be proportionate to the offense proved.Complementing this provision is Sec. 3(k) of the
decree authorizing the MTRCB to exercise such powers and functions as may be necessary or
incidental to the attainment of the purpose and objectives of [the law]. As earlier explained, the
investiture of supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it
did not carry with it the power to penalize the supervised or the regulated as may be proportionate to
the offense committed, charged, and proved.
Same; Same; Same; Same; Administrative regulation or subordinate legislation to promote public
interest is a necessity in modern life.The grant of the rule-making power to administrative agencies
is a relaxation of the principle of separation of powers and is an exception to the non-delegation of
legislative powers. Administrative regulations or subordinate legislation calculated to promote the
public interest are necessary because of the growing complexity of modern life, the multiplication of
the subjects of governmental regulations, and the increased difficulty of administering the law.
Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory
disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance,
administrative penalties with due regard for the severity of the offense and attending mitigating or

Page 32 of 321
Administrative Law
aggravating circumstances, as the case may be, would be consistent with its mandate to effectively
and efficiently regulate the movie and television industry.
Same; Same; Same; Same; Movie and Television Review and Classification Board (MTRCB) may
suspend a TV program but not its host.But even as we uphold the power of the MTRCB to review
and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified,
for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of
Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program
host or even to prevent certain people from appearing in television programs. The MTRCB, to be sure,
may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not
suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend
its exercise of regulation beyond what the law provides. Only persons, offenses, and penalties clearly
falling clearly within the letter and spirit of PD 1986 will be considered to be within the decrees penal
or disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of the
person charged with violating the statute and for whom the penalty is sought. Thus, the MTRCBs
decision in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order
issued pursuant to said decision must be modified. The suspension should cover only the television
program on which petitioner appeared and uttered the offensive and obscene language, which
sanction is what the law and the facts obtaining call for.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari and Prohibition.
The facts are stated in the opinion of the Court.
Leonard De Vera for petitioner.
Lazaro, Tuazon, Santos & Associates Law Offices for private respondents.
VELASCO, JR., J.:
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to
nullify and set aside an order and a decision of the Movie and Television Review and Classification
Board (MTRCB) in connection with certain utterances he made in his television show, Ang Dating
Daan.
Facts of the Case
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired
on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana
lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang
babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga
demonyong ito.1 x x x
Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by
Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo
(INC),2 against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval,
who felt directly alluded to in petitioners remark, was then a minister of INC and a regular host of the
Page 33 of 321
Administrative Law
TV program Ang Tamang Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on
August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode
of Ang Dating Daan.4
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004,
preventively suspended the showing of Ang Dating Daanprogram for 20 days, in accordance with
Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter
XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the
MTRCB Rules of Procedure.5 The same order also set the case for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order, praying that
Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse
themselves from hearing the case.6 Two days after, however, petitioner sought to withdraw7 his motion
for reconsideration, followed by the filing with this Court of a petition for certiorari and
prohibition,8 docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano
liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from
his program, Ang Dating Daan.
Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.
SO ORDERED.9
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed
as G.R. No. 165636.
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB]
DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x
IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION
(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE
OF PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.10
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR
IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:
Page 34 of 321
Administrative Law
I
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS
IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE,
AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E.DECISION DATED 27
SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER
THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE
MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER
DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE
CASE AT BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT
STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF
LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR
VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND
OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER
2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS
APPLIED IN THE CASE AT BENCH11
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive
suspension, although its implementability had already been overtaken and veritably been rendered
moot by the equally assailed September 27, 2004 decision.
It is petitioners threshold posture that the preventive suspension imposed against him and the relevant
IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB
to issue preventive suspension.
Petitioners contention is untenable.
Administrative agencies have powers and functions which may be administrative, investigatory,
regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the
Constitution or by statute.12 They have in fine only such powers or authority as are granted or
delegated, expressly or impliedly, by law.13 And in determining whether an agency has certain powers,
the inquiry should be from the law itself. But once ascertained as existing, the authority given should
be liberally construed.14
A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority
stems naturally from, and is necessary for the exercise of, its power of regulation and supervision.
Page 35 of 321
Administrative Law
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions.The BOARD shall have the following functions, powers and
duties:
xxxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x
x x exhibition and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the board applying
contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its
people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime
such as but not limited to:
xxxx
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether
living or dead;
xxxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying,
distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x
produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;
xxxx
k) To exercise such powers and functions as may be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and
functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which
empowers the MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x x
exhibition, and/or television broadcast of all motion pictures, television programs and publicity
materials, to the end that no such pictures, programs and materials as are determined by the BOARD
to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast
by television.
Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and
supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied
from such mandate. Any other construal would render its power to regulate, supervise, or discipline
illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step
in an administrative investigation.15 And the power to discipline and impose penalties, if granted,
carries with it the power to investigate administrative complaints and, during such investigation, to
preventively suspend the person subject of the complaint.16

Page 36 of 321
Administrative Law
To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under
PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive
suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive
suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in
order to prevent or stop further violations or for the interest and welfare of the public, the Chairman of
the Board may issue a Preventive Suspension Order mandating the preventive x x x suspension of the
permit/permits involved, and/or closure of the x x x television network, cable TV station x x x provided
that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days
from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more, would not
work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the
MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate
the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions
for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioners
assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the
law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority
under the law. Far from it. The preventive suspension was actually done in furtherance of the law,
imposed pursuant, to repeat, to the MTRCBs duty of regulating or supervising television programs,
pending a determination of whether or not there has actually been a violation. In the final analysis,
Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit
impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs
assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the
literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile,
when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its
operation. Sec. 3(k), we reiterate, provides, To exercise such powers and functions as may be
necessary or incidental to the attainment of the purposes and objectives of this Act x x x. Indeed, the
power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from
express powers, implied powers are those that can be inferred or are implicit in the wordings or
conferred by necessary or fair implication of the enabling act. 17 As we held in Angara v. Electoral
Commission, when a general grant of power is conferred or a duty enjoined, every particular power
necessary for the exercise of one or the performance of the other is also conferred by necessary
implication.18 Clearly, the power to impose preventive suspension pending investigation is one of the
implied or inherent powers of MTRCB.
We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive
suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCBs
authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as
much. And while the law makes specific reference to the closure of a television network, the
suspension of a television program is a far less punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered
ineffective should it be subject to the restrictions petitioner envisages.

Page 37 of 321
Administrative Law
Just as untenable is petitioners argument on the nullity of the preventive suspension order on the
ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in
response to a written notice, appeared before that Board for a hearing on private respondents
complaint. No less than petitioner admitted that the order was issued after the adjournment of the
hearing,19proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the
IRR of PD 1986, preventive suspension shall issue [a]ny time during the pendency of the case. In this
particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD
198620 and of administrative complaints that had been filed against him for such violation.21
At any event, that preventive suspension can validly be meted out even without a hearing.22
Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing
that, owing to the preventive suspension order, he was unable to answer the criticisms coming from
the INC ministers.
Petitioners position does not persuade. The equal protection clause demands that all persons subject
to legislation should be treated alike, under like circumstances and conditions both in the privileges
conferred and liabilities imposed.23 It guards against undue favor and individual privilege as well as
hostile discrimination.24 Surely, petitioner cannot, under the premises, place himself in the same shoes
as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For
another, he offers no proof that the said ministers, in their TV programs, use language similar to that
which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the
preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his
critics, this does not become a deprivation of the equal protection guarantee. The Court need not
belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the
INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply
too different to even consider whether or not there is a prima facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious
speech, adding that words like putang babae were said in exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioners utterances in question can come within the pale
of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:
No law shall be made respecting the establishment of a religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
There is nothing in petitioners statements subject of the complaints expressing any particular religious
belief, nothing furthering his avowed evangelical mission. The fact that he came out with his
statements in a televised bible exposition program does not automatically accord them the character of
a religious discourse. Plain and simple insults directed at another person cannot be elevated to the
status of religious speech. Even petitioners attempts to place his words in context show that he was
moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming
its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating
Daan owed to a TV station does not convert the foul language used in retaliation as religious speech.

Page 38 of 321
Administrative Law
We cannot accept that petitioner made his statements in defense of his reputation and religion, as they
constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group.
They simply illustrate that petitioner had descended to the level of name-calling and foul-language
discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted for the low
road.
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive
suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and
expression and an impermissible prior restraint. The main issue tendered respecting the adverted
violation and the arguments holding such issue dovetails with those challenging the three-month
suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review under
G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for
three months on the main ground that the decision violates, apart from his religious freedom, his
freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons
articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and
principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion pictures come
within the broad protection of the free speech and expression clause.25 Each method though, because
of its dissimilar presence in the lives of people and accessibility to children, tends to present its own
problems in the area of free speech protection, with broadcast media, of all forms of communication,
enjoying a lesser degree of protection.26 Just as settled is the rule that restrictions, be it in the form of
prior restraint, e.g., judicial injunction against publication or threat of cancellation of license/franchise,
or subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt
proceedings, are anathema to the freedom of expression. Prior restraint means official government
restrictions on the press or other forms of expression in advance of actual publication or
dissemination.27 The freedom of expression, as with the other freedoms encased in the Bill of Rights,
is, however, not absolute. It may be regulated to some extent to serve important public interests, some
forms of speech not being protected. As has been held, the limits of the freedom of expression are
reached when the expression touches upon matters of essentially private concern.28 In the oft-quoted
expression of Justice Holmes, the constitutional guarantee obviously was not intended to give
immunity for every possible use of language.29 From Lucas v. Royo comes this line: [T]he freedom to
express ones sentiments and belief does not grant one the license to vilify in public the honor and
integrity of another. Any sentiments must be expressed within the proper forum and with proper regard
for the rights of others.30
Indeed, as noted in Chaplinsky v. State of New Hampshire,31 there are certain well-defined and
narrowly limited classes of speech that are harmful, the prevention and punishment of which has never

Page 39 of 321
Administrative Law
been thought to raise any Constitutional problems. In net effect, some forms of speech are not
protected by the Constitution, meaning that restrictions on unprotected speech may be decreed
without running afoul of the freedom of speech clause. 32 A speech would fall under the unprotected
type if the utterances involved are no essential part of any exposition of ideas, and are of such slight
social value as a step of truth that any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality.33 Being of little or no value, there is, in dealing with or
regulating them, no imperative call for the application of the clear and present danger rule or the
balancing-of-interest test, they being essentially modes of weighing competing values, 34 or, with like
effect, determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-
value expression refers to libelous statements, obscenity or pornography, false or misleading
advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury or tend
to incite an immediate breach of peace and expression endangering national security.
The Court finds that petitioners statement can be treated as obscene, at least with respect to the
average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the
Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but
nonetheless stated the ensuing observations on the matter:
There is no perfect definition of obscenity but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary
standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work
depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the
unbridled discretion in determining what is patently offensive. x x x What remains clear is that
obscenity is an issue proper for judicial determination and should be treated on a case to case basis
and on the judges sound discretion.35
Following the contextual lessons of the cited case of Miller v. California,36 a patently offensive
utterance would come within the pale of the term obscenity should it appeal to the prurient interest of
an average listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case reveal that
to an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung
putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of
speech or merely a play on words. In the context they were used, they may not appeal to the prurient
interests of an adult. The problem with the challenged statements is that they were uttered in a TV
program that is rated G or for general viewership, and in a time slot that would likely reach even the
eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally, children
could hardly be expected to have the same discernment. Without parental guidance, the unbridled use
of such language as that of petitioner in a television broadcast could corrupt impressionable young
minds. The term putang babae means a female prostitute, a term wholly inappropriate for children,
Page 40 of 321
Administrative Law
who could look it up in a dictionary and just get the literal meaning, missing the context within which it
was used. Petitioner further used the terms, ang gumagana lang doon yung ibaba, making reference
to the female sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval
was worse than that by using his mouth in a similar manner. Children could be motivated by curiosity
and ask the meaning of what petitioner said, also without placing the phrase in context. They may be
inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity.
And upon learning the meanings of the words used, young minds, without the guidance of an adult,
may, from their end, view this kind of indecent speech as obscene, if they take these words literally
and use them in their own speech or form their own ideas on the matter. In this particular case, where
children had the opportunity to hear petitioners words, when speaking of the average person in the
test for obscenity, we are speaking of the average child, not the average adult. The average child may
not have the adults grasp of figures of speech, and may lack the understanding that language may be
colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very
suggestive of a female sexual organ and its function as such. In this sense, we find petitioners
utterances obscene and not entitled to protection under the umbrella of freedom of speech.
Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the
Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said
statements were made in a medium easily accessible to children. With respect to the young minds,
said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential
pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is
veritably one of first impression, it being the first time that indecent speech
communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the
focal point. Federal Communications Commission (FCC) v. Pacifica Foundation,37 a 1978 American
landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr.38 and Chavez v. Gonzales,39 is a
rich source of persuasive lessons. Foremost of these relates to indecent speech without prurient
appeal component coming under the category of protected speech depending on the context within
which it was made, irresistibly suggesting that, within a particular context, such indecent speech may
validly be categorized as unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered filthy words40earlier recorded in a monologue by a satiric
humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the
complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared
the language used as patently offensive and indecent under a prohibiting law, though not
necessarily obscene. FCC added, however, that its declaratory order was issued in a special factual
context, referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the
audience. Acting on the question of whether the FCC could regulate the subject utterance, the US
Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to wit:
(1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court,
however, hastened to add that the monologue would be protected speech in other contexts, albeit it
did not expound and identify a compelling state interest in putting FCCs content-based regulatory
action under scrutiny.
The Court in Chavez41 elucidated on the distinction between regulation or restriction of protected
speech that is content-based and that which is content-neutral. A content-based restraint is aimed at
the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time,
Page 41 of 321
Administrative Law
place, and manner of the expression under well-defined standards tailored to serve a compelling state
interest, without restraint on the message of the expression. Courts subject content-based restraint to
strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this disposition against the backdrop of the following
interplaying factors: First, the indecent speech was made viatelevision, a pervasive medium that, to
borrow from Gonzales v. Kalaw Katigbak,42 easily reaches every home where there is a set [and
where] [c]hildren will likely be among the avid viewers of the programs therein shown; second, the
broadcast was aired at the time of the day when there was a reasonable risk that children might be in
the audience; and third, petitioner uttered his speech on a G or for general patronage rated
program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is
[s]uitable for all ages, meaning that the material for television x x x in the judgment of the BOARD,
does not contain anything unsuitable for children and minors, and may be viewed without adult
guidance or supervision. The words petitioner used were, by any civilized norm, clearly not suitable
for children. Where a language is categorized as indecent, as in petitioners utterances on a general-
patronage rated TV program, it may be readily proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to pornography, 43 false or misleading
advertisement,44advocacy of imminent lawless action, and expression endangering national security.
But this list is not, as some members of the Court would submit, exclusive or carved in stone. Without
going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond
the aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule
against censorship in the past, this particular case constitutes yet another exception, another instance
of unprotected speech, created by the necessity of protecting the welfare of our children. As
unprotected speech, petitioners utterances can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that
his utterances must present a clear and present danger of bringing about a substantive evil the State
has a right and duty to prevent and such danger must be grave and imminent. 45
Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of
speech tests, would not avail him any relief, for the application of said test is uncalled for under the
premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that
the printed or spoken words may not be subject to prior restraint or subsequent punishment unless its
expression creates a clear and present danger of bringing about a substantial evil which the
government has the power to prohibit.46 Under the doctrine, freedom of speech and of press is
susceptible of restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved in the context of
prosecutions for rebellion and other crimes involving the overthrow of government. 47It was originally
designed to determine the latitude which should be given to speech that espouses anti-government
action, or to have serious and substantial deleterious consequences on the security and public order of
the community.48 The clear and present danger rule has been applied to this jurisdiction. 49 As a
standard of limitation on free speech and press, however, the clear and present danger test is not a
magic incantation that wipes out all problems and does away with analysis and judgment in the testing
of the legitimacy of claims to free speech and which compels a court to release a defendant from
liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster. 50 As we

Page 42 of 321
Administrative Law
observed in Eastern Broadcasting Corporation, the clear and present danger test does not lend itself
to a simplistic and all embracing interpretation applicable to all utterances in all forums.51
To be sure, the clear and present danger doctrine is not the only test which has been applied by the
courts. Generally, said doctrine is applied to cases involving the overthrow of the government and
even other evils which do not clearly undermine national security. Since not all evils can be measured
in terms of proximity and degree the Court, however, in several casesAyer Productions v.
Capulong52 and Gonzales v. COMELEC,53 applied the balancing of interests test. Former Chief Justice
Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the
legislation under constitutional attack interferes with the freedom of speech and assembly in a more
generalized way and where the effect of the speech and assembly in terms of the probability of
realization of a specific danger is not susceptible even of impressionistic calculation,54 then the
balancing of interests test can be applied.
The Court explained also in Gonzales v. COMELEC the balancing of interests test:
When particular conduct is regulated in the interest of public order, and the regulation results in an
indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the
two conflicting interests demands the greater protection under the particular circumstances presented.
x x x We must, therefore, undertake the delicate and difficult task x x x to weigh the circumstances
and to appraise the substantiality of the reasons advanced in support of the regulation of the free
enjoyment of rights x x x.
In enunciating standard premised on a judicial balancing of the conflicting social values and individual
interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the
basis for what has been called the balancing-of-interests test which has found application in more
recent decisions of the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take
conscious and detailed consideration of the interplay of interests observable in a given situation or type
of situation.
xxxx
Although the urgency of the public interest sought to be secured by Congressional power restricting
the individuals freedom, and the social importance and value of the freedom so restricted, are to be
judged in the concrete, not on the basis of abstractions, a wide range of factors are necessarily
relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and
importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific
thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons
affected are few; (c) the value and importance of the public interest sought to be secured by the
legislationthe reference here is to the nature and gravity of the evil which Congress seeks to
prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and
necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the
public interest involved may be achieved by some other measure less restrictive of the protected
freedom.55
This balancing of interest test, to borrow from Professor Kauper,56 rests on the theory that it is the
courts function in a case before it when it finds public interests served by legislation, on the one hand,
and the free expression clause affected by it, on the other, to balance one against the other and arrive
at a judgment where the greater weight shall be placed. If, on balance, it appears that the public
Page 43 of 321
Administrative Law
interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom,
then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis
that constitutional freedoms are not absolute, not even those stated in the free speech and expression
clause, and that they may be abridged to some extent to serve appropriate and important
interests.57 To the mind of the Court, the balancing of interest doctrine is the more appropriate test to
follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension
was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his
enjoyment of his freedom of speech is ranged against the duty of the government to protect and
promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in support of his
claim to free speech, the Court rules that the governments interest to protect and promote the
interests and welfare of the children adequately buttresses the reasonable curtailment and valid
restraint on petitioners prayer to continue as program host of Ang Dating Daan during the suspension
period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of
speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive
democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the
youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to
promote and protect. Moreover, the State is also mandated to recognize and support the vital role of
the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to
provide protection to the youth against illegal or improper activities which may prejudice their general
well-being. The Article on youth, approved on second reading by the Constitutional Commission,
explained that the State shall extend social protection to minors against all forms of neglect, cruelty,
exploitation, immorality, and practices which may foster racial, religious or other forms of
discrimination.58
Indisputably, the State has a compelling interest in extending social protection to minors against all
forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling
interest in helping parents, through regulatory mechanisms, protect their childrens minds from
exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact
enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual,
and social well-being of the youth to better prepare them fulfill their role in the field of nation-
building.59 In the same way, the State is mandated to support parents in the rearing of the youth for
civic efficiency and the development of moral character.60
Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was
easily accessible to the children. His statements could have exposed children to a language that is
unacceptable in everyday use. As such, the welfare of children and the States mandate to protect and
care for them, as parens patriae,61 constitute a substantial and compelling government interest in
regulating petitioners utterances in TV broadcast as provided in PD 1986.

Page 44 of 321
Administrative Law
FCC explains the duty of the government to act as parens patriae to protect the children who, because
of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language,
thus:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens
written message, [Fuck the Draft], might have been incomprehensible to a first grader, Pacificas
broadcast could have enlarged a childs vocabulary in an instant. Other forms of offensive expression
may be withheld from the young without restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making indecent material available to children.
We held in Ginsberg v. New York that the governments interest in the well-being of its youth and in
supporting parents claim to authority in their own household justified the regulation of otherwise
protected expression. The ease with which children may obtain access to broadcast material, coupled
with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare
of the young:
x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls
for observance. This is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children then will likely will be among the avid
viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome
Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It
cannot be denied though that the State as parens patriae is called upon to manifest an attitude of
caring for the welfare of the young.62
The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in
the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded
on the following considerations: (1) the use of television with its unique accessibility to children, as a
medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the G rating of
the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with
approval the following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not
involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an
Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify
any sanction. x x x The [FFCs] decision rested entirely on a nuisance rationale under which context is
all important. The concept requires consideration of a host of variables. The time of day was
emphasized by the [FFC]. The content of the program in which the language is used will affect the
composition of the audience x x x. As Mr. Justice Sutherland wrote a nuisance may be merely a right
thing in the wrong place, like a pig in the parlor instead of the barnyard. We simply hold that when the
[FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on
proof that the pig is obscene. (Citation omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time television are
blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes
necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the
State has the inherent prerogative, nay duty, to regulate and prevent should such action served and
further compelling state interests. One who utters indecent, insulting, or offensive words on television
when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the
Page 45 of 321
Administrative Law
parlor. Public interest would be served if the pig is reasonably restrained or even removed from the
parlor.
Ergo, petitioners offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent
punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative
sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies,
television, and radio broadcast censorship in view of its access to numerous people, including the
young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed
creating the Board of Review for Motion Pictures and Television (now MTRCB) and which requires
prior permit or license before showing a motion picture or broadcasting a TV program. The Board can
classify movies and television programs and can cancel permits for exhibition of films or television
broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and television shows,
even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief
Justice Reynato S. Puno, the Court wrote:
We thus reject petitioners postulate that its religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of
internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public
welfare. x x x
x x x x
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional
for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs
and enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup
in Sotto vs. Ruiz, viz.:
The use of the mails by private persons is in the nature of a privilege which can be regulated in order
to avoid its abuse. Persons possess no absolute right to put into the mail anything they please,
regardless of its character.63
Bernas adds:
Under the decree a movie classification board is made the arbiter of what movies and television
programs or parts of either are fit for public consumption. It decides what movies are immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the
Philippines or its people, and what tend to incite subversion, insurrection, rebellion or sedition, or
tend to undermine the faith and confidence of the people in their government and/or duly constituted
authorities, etc. Moreover, its decisions are executory unless stopped by a court. 64
Page 46 of 321
Administrative Law
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,65 it was held that the power of review
and prior approval of MTRCB extends to all television programs and is valid despite the freedom of
speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB
since they are required to get a permit before they air their television programs. Consequently, their
right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice
Dante O. Tinga, government regulations through the MTRCB became a necessary evil with the
government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly
agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as
competing broadcasters will interfere or co-opt each others signals. In this scheme, station owners
and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in
radio and television programs and impliedly agreed that said right may be subject to prior restraint
denial of permit or subsequent punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner to
continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for
such broadcast. Rather, the suspension is in the form of permissible administrative sanction or
subsequent punishment for the offensive and obscene remarks he uttered on the evening of August
10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly
impose under its charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and
the remedies that may be availed of by the aggrieved private party under the provisions on libel or tort,
if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in profane or
indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction
imposed is not per se for petitioners exercise of his freedom of speech via television, but for the
indecent contents of his utterances in a G rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of
speech to regulation under PD 1986 and its IRR as television station owners, program producers, and
hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry.
Neither can petitioners virtual inability to speak in his program during the period of suspension be
plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the
suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is
definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit or
license. In fine, the suspension meted was simply part of the duties of the MTRCB in the enforcement
and administration of the law which it is tasked to implement. Viewed in its proper context, the
suspension sought to penalize past speech made on prime-time G rated TV program; it does not bar
future speech of petitioner in other television programs; it is a permissible subsequent administrative
sanction; it should not be confused with a prior restraint on speech. While not on all fours, the Court,
in MTRCB,66sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing
a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it
to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a
G rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, the freedom
of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to
newspaper and print media. The MTRCB, as a regulatory agency, must have the wherewithal to
enforce its mandate, which would not be effective if its punitive actions would be limited to mere fines.
Page 47 of 321
Administrative Law
Television broadcasts should be subject to some form of regulation, considering the ease with which
they can be accessed, and violations of the regulations must be met with appropriate and proportional
disciplinary action. The suspension of a violating television program would be a sufficient punishment
and serve as a deterrent for those responsible. The prevention of the broadcast of petitioners
television program is justified, and does not constitute prohibited prior restraint. It behooves the Court
to respond to the needs of the changing times, and craft jurisprudence to reflect these times.
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law
creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of
religion. The Court has earlier adequately explained why petitioners undue reliance on the religious
freedom cannot lend justification, let alone an exempting dimension to his licentious utterances in his
program. The Court sees no need to address anew the repetitive arguments on religious freedom. As
earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no way
a religious speech. Parenthetically, petitioners attempt to characterize his speech as a legitimate
defense of his religion fails miserably. He tries to place his words in perspective, arguing evidently as
an afterthought that this was his method of refuting the alleged distortion of his statements by the INC
hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word
simply came out as profane language, without any warning or guidance for undiscerning ears.
As to petitioners other argument about having been denied due process and equal protection of the
law, suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is
no need to further delve into the fact that petitioner was afforded due process when he attended the
hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated
against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does
not provide for the range of imposable penalties that may be applied with respect to violations of the
provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the
following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not
delegate its legislative power to the two other branches of the government, subject to the exception
that local governments may over local affairs participate in its exercise. What cannot be delegated is
the authority under the Constitution to make laws and to alter and repeal them; the test is the
completeness of the statute in all its term and provisions when it leaves the hands of the legislature. To
determine whether or not there is an undue delegation of legislative power, the inquiry must be
directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its
functions when it describes what job must be done, who is to do it, and what is the scope of his
authority. For a complex economy, that may indeed be the only way in which the legislative process
can go forward. A distinction has rightfully been made between delegation of power to make laws
which necessarily involves a discretion as to what it shall be, which constitutionally may not be done,
and delegation of authority or discretion as to its execution to be exercised under and in pursuance of
the law, to which no valid objection can be made. The Constitution is thus not to be regarded as
denying the legislature the necessary resources of flexibility and practicability.

Page 48 of 321
Administrative Law
To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that
the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the
charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks
its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be effected. It is the criterion by which
legislative purpose may be carried out. Thereafter, the executive or administrative office designated
may in pursuance of the above guidelines promulgate supplemental rules and regulations. 67
Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation
about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a
range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the
IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went
beyond the terms of the law.
Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption
being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties
for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment
of power and functions, is charged with supervising and regulating, granting, denying, or canceling
permits for the exhibition and/or television broadcast of all motion pictures, television programs, and
publicity materials to the end that no such objectionable pictures, programs, and materials shall be
exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree
authorizing the MTRCB to exercise such powers and functions as may be necessary or incidental to
the attainment of the purpose and objectives of [the law]. As earlier explained, the investiture of
supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry
with it the power to penalize the supervised or the regulated as may be proportionate to the offense
committed, charged, and proved. As the Court said in Chavez v. National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary
for the exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute
does not specify the particular method to be followed or used by a government agency in the exercise
of the power vested in it by law, said agency has the authority to adopt any reasonable method to carry
out its function.68
Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and
supervise the exhibition of TV programs carries with it or necessarily implies the authority to take
effective punitive action for violation of the law sought to be enforced. And would it not be logical too to
say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast
necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference,
provides that agency with the power [to] promulgate such rules and regulations as are necessary or
proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x
x. And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate
filing of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to
Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing
motion pictures, television programs, and related promotional materials shall be penalized with
suspension or cancellation of permits and/or licenses issued by the Board and/or with the
Page 49 of 321
Administrative Law
imposition of fines and other administrative penalty/penalties. The Board recognizes the existing Table
of Administrative Penalties attached without prejudice to the power of the Board to amend it when the
need arises. In the meantime the existing revised Table of Administrative Penalties shall be enforced.
(Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the aforequoted
provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the
mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative
legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such
means as it can as a guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to
be applied to determine whether there have been statutory breaches. The MTRCB may evaluate
motion pictures, television programs, and publicity materials applying contemporary Filipino cultural
values as standard, and, from there, determine whether these audio and video materials are
objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] x x x and apply
the sanctions it deems proper. The lawmaking body cannot possibly provide for all the details in the
enforcement of a particular statute.69 The grant of the rule-making power to administrative agencies is
a relaxation of the principle of separation of powers and is an exception to the non-delegation of
legislative powers.70Administrative regulations or subordinate legislation calculated to promote the
public interest are necessary because of the growing complexity of modern life, the multiplication of
the subjects of governmental regulations, and the increased difficulty of administering the
law.71 Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its
statutory disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance,
administrative penalties with due regard for the severity of the offense and attending mitigating or
aggravating circumstances, as the case may be, would be consistent with its mandate to effectively
and efficiently regulate the movie and television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD
1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the
power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1,
1999 is the Board empowered to suspend the program host or even to prevent certain people from
appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such
television programs or cancel permits for exhibition, but it may not suspend television personalities, for
such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond
what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter and
spirit of PD 1986 will be considered to be within the decrees penal or disciplinary operation. And when
it exists, the reasonable doubt must be resolved in favor of the person charged with violating the
statute and for whom the penalty is sought. Thus, the MTRCBs decision in Administrative Case No.
01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision must be
modified. The suspension should cover only the television program on which petitioner appeared and
uttered the offensive and obscene language, which sanction is what the law and the facts obtaining
call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on
television without adverse consequences, under the guise of free speech, does not lend itself to
acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute
Page 50 of 321
Administrative Law
freedoms. To say any act that restrains speech should be greeted with furrowed brows is not to say
that any act that restrains or regulates speech or expression is per se invalid. This only recognizes the
importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize
acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is
hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating
Daan. As thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty
of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the
instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are
hereby exonerated for lack of evidence.
Costs against petitioner.
SO ORDERED.
Puno (C.J.), Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Tinga,
Chico-Nazario, Nachura, Leonardo-De Castro, Brion and Peralta, JJ., concur.

o0o

Page 51 of 321
Administrative Law

Page 52 of 321
Administrative Law
Case
G.R. No. 148579. February 5, 2007.*
GMA NETWORK, INC., petitioner, vs. MOVIE AND TELEVISION REVIEW AND CLASSIFICATION
BOARD, respondent.
Mass Media; Freedom of the Press; Movie and Television Review and Classification Board
(MTRCB); The Movie and Television Review and Classification Board (MTRCB) is empowered to
screen, review and examine all motion pictures and television programs including publicity materials.
Section 3 of PD 1986 empowers the MTRCB to screen, review and examine all motion pictures,
television programs including publicity materials. This power of prior review is highlighted in its Rules
and Regulations, particularly Section 7 thereof, which reads: SECTION 7. REQUIREMENT OF PRIOR
REVIEW.No motion picture, television program or related publicity material shall be imported,
exported, produced, copied, distributed, sold, leased, exhibited or broadcasted by television without
prior permit issued by the BOARD after review of the motion picture, television program or publicity
material. The only exemptions from the MTRCBs power of review are those expressly mentioned in
Section 7, such as (1) television programs imprinted or exhibited by the Philippine Government and/or
departments and agencies, and (2) newsreels.
Same; Same; Same; A public affairs programdescribed as a variety of news treatment, a cross
between pure television news andnews-related commentaries, analysis and/or exchange of opinions
is within the Movie and Television Review and Classification Boards (MTRCBs) power of review.On
the other hand, petitioner claims that Muro Ami: The Making was a public affairs program. Even if
that were so, our resolution of this issue would not change. This Court has already ruled that a public
affairs programdescribed as a variety of news treatment; a cross between pure television news and
news-related commentaries, analysis and/or exchange of opinionsis within the MTRCBs power of
review. Clearly, Muro Ami: The Making (which petitioner claims to be a public affairs program) was
well within the purview of MTRCBs power of prior review.
Same; Same; Same; Administrative Law; Right to Information;Administrative issuances which are not
published or filed with the Office of the National Administrative Register (ONAR) of the University of
the Philippines Law Center are ineffective and may not be enforced; Memorandum Circular No. 98-17,
which provides for the penalties for the first, second and third offenses for exhibiting programs without
valid permit to exhibit, has not been registered with the ONAR as of 27 January 2000petitioner TV
company was not bound by said circular and should not have been meted the sanction provided
therein.While MTRCB had jurisdiction over the subject program, Memorandum Circular 98-17, which
was the basis of the suspension order, was not binding on petitioner. The Administrative Code of 1987,
particularly Section 3 thereof, expressly requires each agency to file with the Office of the National
Administrative Register (ONAR) of the University of the Philippines Law Center three certified copies of
every rule adopted by it. Administrative issuances which are not published or filed with the ONAR are
ineffective and may not be enforced. Memorandum Circular No. 98-17, which provides for the
penalties for the first, second and third offenses for exhibiting programs without valid permit to exhibit,
has not been registered with the ONAR as of January 27, 2000. Hence, the same is yet to be effective.
It is thus unenforceable since it has not been filed in the ONAR. Consequently, petitioner was not
bound by said circular and should not have been meted the sanction provided thereunder.
PETITION for review on certiorari of a decision of the Court of Appeals.

Page 53 of 321
Administrative Law
The facts are stated in the opinion of the Court.
Belo, Gozon, Parel, Asuncion and Lucila for petitioner.
The Solicitor General for respondent.
CORONA, J.:
Subject of this petition for review under Rule 45 of the Rules of Court is the June 18, 2001 decision 1 of
the Court of Appeals (CA) affirming the January 7, 2000 order2 of respondent Movie and Television
Review and Classification Board (MTRCB) which read:
In view thereof, the BOARD, by the undersigned, hereby imposes the administrative penalty of
SUSPENSION FROM AIRING/BROADCASTING any program on EMC Channel 27 for a period of
seven (7) days which period shall commence immediately upon receipt of this Order. Your failure to
comply with this ORDER shall be construed by the BOARD as defiance on your part of a lawful order
of the BOARD.
The facts follow.
Petitioner GMA Network, Inc. operates and manages the UHF television station, EMC Channel 27. On
January 7, 2000, respondent MTRCB issued an order of suspension against petitioner for airing Muro
Ami: The Making without first securing a permit from it as provided in Section 7 of PD 1986. 3
The penalty of suspension was based on Memorandum Circular 98-17 dated December 15,
19984 which provided for the penalties for exhibiting a program without a valid permit from the MTRCB.
Petitioner moved for reconsideration of the suspension order and, at the same time, informed MTRCB
that Channel 27 had complied with the suspension order by going off the air since midnight of January
11, 2000. It also filed a letterprotest which was merely noted by the MTRCB thereby, in effect,
denying both the motion for reconsideration and letterprotest.
Petitioner then filed with the CA a petition for certiorari which was dismissed in the now assailed June
18, 2001 decision. The January 7, 2000 suspension order issued by MTRCB was affirmed in toto.
Hence, this recourse.
The pivotal issues for our resolution are:
1. (1)whether the MTRCB has the power or authority to review the show Muro Ami: The Making
prior to its broadcast by television and
2. (2)whether Memorandum Circular No. 98-17 was enforceable and binding on petitioner.
First, Section 3 of PD 19865 empowers the MTRCB to screen, review and examine all motion pictures,
television programs including publicity materials. This power of prior review is highlighted in its Rules
and Regulations, particularly Section 7 thereof, which reads:
SECTION 7. REQUIREMENT OF PRIOR REVIEW.No motion picture, television program or related
publicity material shall be imported, exported, produced, copied, distributed, sold, leased, exhibited or
broadcasted by television without prior permit issued by the BOARD after review of the motion picture,
television program or publicity material.

Page 54 of 321
Administrative Law
The only exemptions from the MTRCBs power of review are those expressly mentioned in Section
7,6 such as (1) television programs imprinted or exhibited by the Philippine Government and/or
departments and agencies, and (2) newsreels.
According to the CA, the subject program was a publicity for the movie, Muro Ami. In adopting this
finding, we hold that Muro Ami: The Making, did not fall under any of the exemptions and was
therefore within the power of review of MTRCB.
On the other hand, petitioner claims that Muro Ami: The Making was a public affairs program.7 Even
if that were so, our resolution of this issue would not change. This Court has already ruled that a public
affairs program -- described as a variety of news treatment; a cross between pure television news and
news-related commentaries, analysis and/or exchange of opinionsis within the MTRCBs power of
review.8 Clearly, Muro Ami: The Making (which petitioner claims to be a public affairs program) was
well within the purview of MTRCBs power of prior review.
However, while MTRCB had jurisdiction over the subject program, Memorandum Circular 98-17, which
was the basis of the suspension order, was not binding on petitioner. The Administrative Code of 1987,
particularly Section 3 thereof, expressly requires each agency to file with the Office of the National
Administrative Register (ONAR) of the University of the Philippines Law Center three certified copies of
every rule adopted by it. Administrative issuances which are not published or filed with the ONAR are
ineffective and may not be enforced.9
Memorandum Circular No. 98-17, which provides for the penalties for the first, second and third
offenses for exhibiting programs without valid permit to exhibit, has not been registered with the ONAR
as of January 27, 2000.10Hence, the same is yet to be effective.11 It is thus unenforceable since it has
not been filed in the ONAR.12Consequently, petitioner was not bound by said circular and should not
have been meted the sanction provided thereunder.
WHEREFORE, the instant petition is PARTIALLY GRANTED. The decision of the Court of Appeals
dated June 18, 2001, insofar as it affirmed the public respondent Movie and Television Review and
Classification Boards jurisdiction over Muro Ami: The Making, is hereby AFFIRMED with the
MODIFICATION that the suspension order issued against petitioner GMA Network, Inc. pursuant to
Memorandum Circular No. 98-17 is hereby declared null and void.
No pronouncement as to costs.
SO ORDERED.
Puno (C.J., Chairperson), Sandoval-Gutierrez,Azcuna and Garcia, JJ., concur.
Petition partially granted, judgment affirmed with modification.
Notes.When confronted with libel cases involving publications which deal with public officials and
the discharge of their official functions, the Supreme Court is not confined within the wordings of the
libel statuterather, the case should likewise be examined under the constitutional precept of freedom
of the press. (Flor vs. People, 454 SCRA 440 [2005])
The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media.
(David vs. Macapagal-Arroyo, 489 SCRA 160 [2006])

Page 55 of 321
Administrative Law

Page 56 of 321
Administrative Law
o0o
Case
G.R. No. 170463. February 2, 2011.*
THE BOARD OF TRUSTEES OF THE GOVERNMENT SERVICE INSURANCE SYSTEM and
WINSTON F. GARCIA, in his capacity as GSIS President and General Manager,
petitioners, vs. ALBERT M. VELASCO and MARIO I. MOLINA, respondents.
Administrative Law; Civil Service; Not all rules and regulations adopted by every government agency
are to be filed with the UP Law Center.Not all rules and regulations adopted by every government
agency are to be filed with the UP Law Center. Only those of general or of permanent character are to
be filed. According to the UP Law Centers guidelines for receiving and publication of rules and
regulations, interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the Administrative agency and not the public, need not be filed with the UP Law Center.
Same; Same; Step Increment; A grant of step increment on the basis of length of service requires that
an employee must have rendered at least three years of continuous and satisfactory service in
thesame position to which he is an incumbent.A grant of step increment on the basis of length of
service requires that an employee must have rendered at least three years of continuous and
satisfactory service in the same position to which he is an incumbent. To determine whether service is
continuous, it is necessary to define what actual service is. Actual service refers to the period of
continuous service since the appointment of the official or employee concerned, including the period or
periods covered by any previously approved leave with pay.
Same; Same; Same; Suspension; If an employee is suspended as a penalty, it effectively interrupts
the continuity of his government service at the commencement of the service of the said suspension.
If an employee is suspended as a penalty, it effectively interrupts the continuity of his government
service at the commencement of the service of the said suspension. This is because a person under
penalty of suspension is not rendering actual service. The suspension will undoubtedly be considered
a gap in the continuity of the service for purposes of the computation of the three year period in the
grant of step increment.
Same; Same; Preventive Suspension; Preventive suspension pending investigation is not a penalty.
Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the
disciplining authority to investigate charges against respondent by preventing the latter from
intimidating or in any way influencing witnesses against him. If the investigation is not finished and a
decision is not rendered within that period, the suspension will be lifted and the respondent will
automatically be reinstated.
Same; Same; Same; Step Increment; The grant of step increment will only be delayed for the same
number of days, which must not exceed 90 days, that an official or employee was serving the
preventive suspension.If an employee is preventively suspended, the employee is not rendering
actual service and this will also effectively interrupt the continuity of his government service.
Consequently, an employee who was preventively suspended will still be entitled to step increment
after serving the time of his preventive suspension even if the pending administrative case against him
has not yet been resolved or dismissed. The grant of step increment will only be delayed for the same

Page 57 of 321
Administrative Law
number of days, which must not exceed 90 days, that an official or employee was serving the
preventive suspension.
PETITION for review on certiorari of the decision and order of the Regional Trial Court of Manila, Br.
19.
The facts are stated in the opinion of the Court.
GSIS Legal Services Group for petitioners.
Barbers, Molina & Molina for respondents.
CARPIO, J.:
The Case
This is a petition for review1 of the 24 September 2004 Decision2 and the 7 October 2005 Order3 of the
Regional Trial Court of Manila, Branch 19 (trial court), in Civil Case No. 03-108389. In its 24
September 2004 Decision, the trial court granted respondents Albert M. Velasco4 and Mario I.
Molinas5 (respondents) petition for prohibition. In its 7 October 2005 Order, the trial court denied
petitioners Board of Trustees of the Government Service Insurance System (GSIS) and Winston F.
Garcias (petitioners) motion for reconsideration.
The Facts
On 23 May 2002, petitioners charged respondents administratively with grave misconduct and placed
them under preventive suspension for 90 days. 6 Respondents were charged for their alleged
participation in the demonstration held by some GSIS employees denouncing the alleged corruption in
the GSIS and calling for the ouster of its president and general manager, petitioner Winston F. Garcia.7
In a letter dated 4 April 2003, respondent Mario I. Molina (respondent Molina) requested GSIS Senior
Vice President Concepcion L. Madarang (SVP Madarang) for the implementation of his step
increment.8 On 22 April 2003, SVP Madarang denied the request citing GSIS Board Resolution No.
372 (Resolution No. 372)9 issued by petitioner Board of Trustees of the GSIS (petitioner GSIS Board)
which approved the new GSIS salary structure, its implementing rules and regulations, and the
adoption of the supplemental guidelines on step increment and promotion. 10The pertinent provision of
Resolution No. 372 provides:
A. Step Increment
xxxx
III. Specific Rules:
xxxx
3. The step increment adjustment of an employee who is on preventive suspension shall be withheld
until such time that a decision on the case has been rendered. x x x x
Respondents also asked that they be allowed to avail of the employee privileges under GSIS Board
Resolution No. 306 (Resolution No. 306) approving Christmas raffle benefits for all GSIS officials and
employees effective year 2002.11 Respondents request was again denied because of their pending
administrative case.
Page 58 of 321
Administrative Law
On 27 August 2003, petitioner GSIS Board issued Board Resolution No. 197 (Resolution No. 197)
approving the following policy recommendations:
B. On the disqualification from promotion of an employee with a pending administrative case
To adopt the policy that an employee with pending administrative case shall be disqualified from the
following during the pendency of the case:
a) Promotion;
b) Step Increment;
c) Performance-Based Bonus; and
d) Other benefits and privileges.
On 14 November 2003, respondents filed before the trial court a petition for prohibition with prayer for
a writ of preliminary injunction.12 Respondents claimed that they were denied the benefits which GSIS
employees were entitled under Resolution No. 306. Respondents also sought to restrain and prohibit
petitioners from implementing Resolution Nos. 197 and 372. Respondents claimed that the denial of
the employee benefits due them on the ground of their pending administrative cases violates their right
to be presumed innocent and that they are being punished without hearing. Respondent Molina also
added that he had already earned his right to the step increment before Resolution No. 372 was
enacted. Respondents also argued that the three resolutions were ineffective because they were not
registered with the University of the Philippines (UP) Law Center pursuant to the Revised
Administrative Code of 1987.13
On 24 November 2003, petitioners filed their comment with motion to dismiss and opposition. 14 On 2
December 2003, respondents filed their opposition to the motion to dismiss.15On 5 December 2003,
petitioners filed their reply.16
On 16 January 2004, the trial court denied petitioners motion to dismiss and granted respondents
prayer for a writ of preliminary injunction.17Petitioners filed a motion for reconsideration.18 In its 26
February 2004 Order, the trial court denied petitioners motion.19
In its 24 September 2004 Decision, the trial court granted respondents petition for prohibition. The
dispositive portion of the 24 September 2004 Decision provides:
WHEREFORE, the petition is GRANTED and respondents Board Resolution No. 197 of August 27,
2003 and No. 372 of November 21, 2000 are hereby declared null and void. The writ of preliminary
injunction issued by this Court is hereby made permanent.
SO ORDERED.20
Petitioners filed a motion for reconsideration. In its 7 October 2005 Order, the trial court denied
petitioners motion.
Hence, this petition.
The Ruling of the Trial Court
On the issue of jurisdiction, the trial court said it can take cognizance of the petition because the
territorial area referred to in Section 4, Rule 65 of the Rules of Court does not necessarily delimit to
Page 59 of 321
Administrative Law
a particular locality but rather to the judicial region where the office or agency is situated so that the
prohibitive writ can be enforced.
On the merits of the case, the trial court ruled that respondents were entitled to all employee benefits
as provided under the law by reason of their employment. According to the trial court, to deny
respondents these employee benefits for the reason alone that they have pending administrative
cases is unjustified since it would deprive them of what is legally due them without due process of law,
inflict punishment on them without hearing, and violate their right to be presumed innocent.
The trial court also found that the assailed resolutions were not registered with the UP Law Center, per
certification of the Office of the National Administrative Register (ONAR). 21 Since they were not
registered, the trial court declared that the assailed resolutions have not become effective citing
Sections 3 and 4, Chapter 2, Book 7 of the Revised Administrative Code of 1987. 22
The Issues
Petitioners raise the following issues:
I
Whether the jurisdiction over the subject matter of Civil Case No. 03-108389 (Velasco, et al. vs. The
Board of Trustees of GSIS, et al., RTC-Manila, Branch 19) lies with the Civil Service Commission
(CSC) and not with the Regional Trial Court of Manila, Branch 19.
II
Whether a Special Civil Action for Prohibition against the GSIS Board or its President and General
Manager exercising quasi-legislative and administrative functions in Pasay City is outside the territorial
jurisdiction of RTC-Manila, Branch 19.
III
Whether internal rules and regulations need not require publication with the Office of the National
[Administrative] Register for their effectivity, contrary to the conclusion of the RTC-Manila, Branch 19.
IV
Whether a regulation, which disqualifies government employees who have pending administrative
cases from the grant of step increment and Christmas raffle benefits is unconstitutional.
V
Whether the nullification of GSIS Board Resolutions is beyond an action for prohibition, and a writ of
preliminary injunction cannot be made permanent without a decision ordering the issuance of a writ of
prohibition.23
The Ruling of the Court
The petition is partly meritorious.
Petitioners argue that the Civil Service Commission (CSC), not the trial court, has jurisdiction over Civil
Case No. 03-108389 because it involves claims of employee benefits. Petitioners point out that the trial
court should have dismissed the case for lack of jurisdiction.

Page 60 of 321
Administrative Law
Sections 2 and 4, Rule 65 of the Rules of Court provide:
Sec. 2. Petition for Prohibition.When the proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs
as law and justice may require.
Sec. 4. Where petition filed.The petition may be filed not later than sixty (60) days from notice of
the judgment, order or resolution sought to be assailed in the Supreme Court or, if it related to acts
or omissions of a lower court or of a corporation, board, officer or person in the Regional Trial
Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may
also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in
the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and
cognizable only by the Court of Appeals. (Emphasis supplied)
Civil Case No. 03-108389 is a petition for prohibition with prayer for the issuance of a writ of
preliminary injunction. Respondents prayed that the trial court declare all acts emanating from
Resolution Nos. 372, 197, and 306 void and to prohibit petitioners from further enforcing the said
resolutions.24 Therefore, the trial court, not the CSC, has jurisdiction over respondents petition for
prohibition.
Petitioners also claim that the petition for prohibition was filed in the wrong territorial jurisdiction
because the acts sought to be prohibited are the acts of petitioners who hold their principal office in
Pasay City, while the petition for prohibition was filed in Manila.
Section 18 of Batas Pambansa Blg. 129 (BP 129)25provides:
SEC. 18. Authority to define territory appurtenant to each branch.The Supreme Court shall
define the territory over which a branch of the Regional Trial Court shall exercise its authority.
The territory thus defined shall be deemed to be the territorial area of the branch concerned for
purposes of determining the venue of all suits, proceedings or actions, whether civil or
criminal, as well as determining the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts over which the said branch may exercise appellate jurisdiction. The power herein
granted shall be exercised with a view to making the courts readily accessible to the people of the
different parts of the region and making attendance of litigants and witnesses as inexpensive as
possible. (Emphasis supplied)
In line with this, the Supreme Court issued Administrative Order No. 3 26 defining the territorial
jurisdiction of the regional trial courts in the National Capital Judicial Region, as follows:
a. Branches I to LXXXII, inclusive, with seats at Manilaover the City of Manila only.
b. Branches LXXXIII to CVII, inclusive, with seats at Quezon Cityover Quezon City only.
c. Branches CVIII to CXIX, inclusive, with seats at Pasay Cityover Pasay City only.

Page 61 of 321
Administrative Law
x x x x
The petition for prohibition filed by respondents is a special civil action which may be filed in the
Supreme Court, the Court of Appeals, the Sandiganbayan or the regional trial court, as the case may
be.27 It is also a personal action because it does not affect the title to, or possession of real property, or
interest therein. Thus, it may be commenced and tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of the principal defendants resides, at the election of
the plaintiff.28 Since respondent Velasco, plaintiff before the trial court, is a resident of the City of
Manila,29 the petition could properly be filed in the City of Manila. 30 The choice of venue is sanctioned
by Section 2, Rule 4 of the Rules of Court.
Moreover, Section 21(1) of BP 129 provides:
Sec. 21. Original jurisdiction in other cases.Regional Trial Courts shall exercise original
jurisdiction:
(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction, which may be enforced in any part of their respective regions; x x x
(Emphasis supplied)
Since the National Capital Judicial Region is comprised of the cities of Manila, Quezon, Pasay,
Caloocan, Malabon, Mandaluyong, Makati, Pasig, Marikina, Paraaque, Las Pias, Muntinlupa, and
Valenzuela and the municipalities of Navotas, San Juan, Pateros, and Taguig, a writ of prohibition
issued by the regional trial court sitting in the City of Manila, is enforceable in Pasay City. Clearly, the
RTC did not err when it took cognizance of respondents petition for prohibition because it had
jurisdiction over the action and the venue was properly laid before it.
Petitioners also argue that Resolution Nos. 372, 197, and 306 need not be filed with the UP Law
Center ONAR since they are, at most, regulations which are merely internal in natureregulating only
the personnel of the GSIS and not the public.
Not all rules and regulations adopted by every government agency are to be filed with the UP Law
Center. Only those of general or of permanent character are to be filed. According to the UP Law
Centers guidelines for receiving and publication of rules and regulations, interpretative regulations
and those merely internal in nature, that is, regulating only the personnel of the Administrative agency
and not the public, need not be filed with the UP Law Center.
Resolution No. 372 was about the new GSIS salary structure, Resolution No. 306 was about the
authority to pay the 2002 Christmas Package, and Resolution No. 197 was about the GSIS merit
selection and promotion plan. Clearly, the assailed resolutions pertained only to internal rules meant to
regulate the personnel of the GSIS. There was no need for the publication or filing of these resolutions
with the UP Law Center.
Petitioners insist that petitioner GSIS Board has the power to issue the assailed resolutions. According
to petitioners, it was within the power of petitioner GSIS Board to disqualify respondents for step
increment and from receiving GSIS benefits from the time formal administrative charges were filed
against them until the cases are resolved.
The Court notes that the trial court only declared Resolution Nos. 197 and 372 void. The trial court
made no ruling on Resolution No. 306 and respondents did not appeal this matter. Therefore, we will

Page 62 of 321
Administrative Law
limit our discussion to Resolution Nos. 197 and 372, particularly to the effects of preventive suspension
on the grant of step increment because this was what respondents raised before the trial court.
First, entitlement to step increment depends on the rules relative to the grant of such benefit. In point
are Section 1(b), Rule II and Section 2, Rule III of Joint Circular No. 1, series of 1990, which provide:
Rule II. Selection Criteria
Section 1. Step increments shall be granted to all deserving officials and employees x x x
(b) Length of ServiceFor those who have rendered continuous satisfactory service in a particular
position for at least three (3) years.
Rule III. Step Increments
xxxx
Section 2. Length of Service.A one (1) step increment shall be granted officials and employees for
every three (3) years of continuous satisfactory service in the position. Years of service in the position
shall include the following:
(a) Those rendered before the position was reclassified to a position title with a lower or the same
salary grade allocation; and
(b) Those rendered before the incumbent was transferred to another position within the same
agency or to another agency without a change in position title and salary grade allocation.
In the initial implementation of step increments in 1990, an incumbent shall be granted step increments
equivalent to one (1) step for every three (3) years of continuous satisfactory service in a given
position occupied as of January 1, 1990.
A grant of step increment on the basis of length of service requires that an employee must have
rendered at least three years of continuous and satisfactory service in the same position to which he is
an incumbent.31 To determine whether service is continuous, it is necessary to define what actual
service is.32 Actual service refers to the period of continuous service since the appointment of the
official or employee concerned, including the period or periods covered by any previously approved
leave with pay.33
Second, while there are no specific rules on the effects of preventive suspension on step increment,
we can refer to the CSC rules and rulings on the effects of the penalty of suspension and approved
vacation leaves without pay on the grant of step increment for guidance.
Section 56(d), Rule IV of the Uniform Rules on Administrative Cases in the Civil Service provides:
Section 56. Duration and effect of administrative penalties.The following rules shall govern in the
imposition of administrative penalties: x x x
(d) The penalty of suspension shall result in the temporary cessation of work for a period not
exceeding one (1) year.
Suspension of one day or more shall be considered a gap in the continuity of service. During the
period of suspension, respondent shall not be entitled to all money benefits including leave credits.

Page 63 of 321
Administrative Law
If an employee is suspended as a penalty, it effectively interrupts the continuity of his government
service at the commencement of the service of the said suspension. This is because a person under
penalty of suspension is not rendering actual service. The suspension will undoubtedly be considered
a gap in the continuity of the service for purposes of the computation of the three year period in the
grant of step increment.34 However, this does not mean that the employee will only be entitled to the
step increment after completing another three years of continuous satisfactory service reckoned from
the time the employee has fully served the penalty of suspension. 35 The CSC has taken this to mean
that the computation of the three year period requirement will only be extended by the number of days
that the employee was under suspension.36 In other words, the grant of step increment will only be
delayed by the same number of days that the employee was under suspension.
This is akin to the status of an employee who incurred vacation leave without pay for purposes of the
grant of step increment.37 Employees who were on approved vacation leave without pay enjoy the
liberal application of the rule on the grant of step increment under Section 60 of CSC Memorandum
Circular No. 41, series of 1998, which provides:
Section 60. Effect of vacation leave without pay on the grant of length of service step increment.
For purposes of computing the length of service for the grant of step increment, approved vacation
leave without pay for an aggregate of fifteen (15) days shall not interrupt the continuity of the three-
year service requirement for the grant of step increment. However, if the total number of authorized
vacation leave without pay included within the three-year period exceeds fifteen (15) days, the grant of
one-step increment will only be delayed for the same number of days that an official or employee
was absent without pay. (Emphasis supplied)
Third, on preventive suspension, Sections 51 and 52, Chapter 7, Subtitle A, Title I, Book V of the
Revised Administrative Code of 1987 provide:
SEC. 51. Preventive Suspension.The proper disciplining authority may preventively suspend any
subordinate officer or employee under his authority pending an investigation, if the charge against
such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the
performance of duty, or if there are reasons to believe that the respondent is guilty of charges which
would warrant his removal from the service.
SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation.When the
administrative caseagainst the officer or employee under preventive suspension is not finally
decided by the disciplining authority within the period of ninety (90) days after the date of
suspension of the respondent who is not a presidential appointee, the respondent shall be
automatically reinstated in the service: Provided, That when the delay in the disposition of the case
is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in
computing the period of suspension herein provided. (Emphasis supplied)
Preventive suspension pending investigation is not a penalty.38 It is a measure intended to enable the
disciplining authority to investigate charges against respondent by preventing the latter from
intimidating or in any way influencing witnesses against him. 39 If the investigation is not finished and a
decision is not rendered within that period, the suspension will be lifted and the respondent will
automatically be reinstated.
Therefore, on the matter of step increment, if an employee who was suspended as a penalty will be
treated like an employee on approved vacation leave without pay, 40 then it is only fair and reasonable
Page 64 of 321
Administrative Law
to apply the same rules to an employee who was preventively suspended, more so considering that
preventive suspension is not a penalty. If an employee is preventively suspended, the employee is not
rendering actual service and this will also effectively interrupt the continuity of his government service.
Consequently, an employee who was preventively suspended will still be entitled to step increment
after serving the time of his preventive suspension even if the pending administrative case against him
has not yet been resolved or dismissed. The grant of step increment will only be delayed for the same
number of days, which must not exceed 90 days, that an official or employee was serving the
preventive suspension.
Fourth, the trial court was correct in declaring that respondents had the right to be presumed innocent
until proven guilty. This means that an employee who has a pending administrative case filed against
him is given the benefit of the doubt and is considered innocent until the contrary is proven. 41
In this case, respondents were placed under preventive suspension for 90 days beginning on 23 May
2002. Their preventive suspension ended on 21 August 2002. Therefore, after serving the period of
their preventive suspension and without the administrative case being finally resolved, respondents
should have been reinstated and, after serving the same number of days of their suspension, entitled
to the grant of step increment.
On a final note, social legislation like the circular on the grant of step increment, being remedial in
character, should be liberally construed and administered in favor of the persons to be benefited. The
liberal approach aims to achieve humanitarian purposes of the law in order that the efficiency, security
and well-being of government employees may be enhanced.42
WHEREFORE, we DENY the petition. We AFFIRM with MODIFICATION the 24 September 2004
Decision and the 7 October 2005 Order of the Regional Trial Court of Manila, Branch 19 in Civil Case
No. 03-108389. We DECLARE the assailed provisions on step increment in GSIS Board Resolution
Nos. 197 and 372 VOID. We MODIFY the 24 September 2004 Decision of the Regional Trial Court of
Manila, Branch 19 and rule that GSIS Board Resolution Nos. 197, 306 and 372 need not be filed with
the University of the Philippines Law Center.
SO ORDERED.
Nachura, Peralta, Abad and Mendoza, JJ., concur.
Petition denied, judgment and order affirmed with modification.
Note.Preventive suspension shall be for a period of ninety (90) days for those charged officials and
employees belonging to national government agencies, including state universities and colleges, and
government-owned or controlled corporations. Appointive officials and employees in the local
government may be preventively suspended for a period not longer than sixty (60) days. [Civil Service
Commission Resolution No. 030502, May 5, 2003, Re: Policy Guidelines on Preventive Suspension]

o0o

Page 65 of 321
Administrative Law

Page 66 of 321
Administrative Law
G.R. No. 157383. August 10, 2010.*
WINSTON F. GARCIA, in his capacity as President and General Manager of GSIS,
petitioner, vs. MARIO I. MOLINA and ALBERT M. VELASCO, respondents.
G.R. No. 174137. August 10, 2010.*
WINSTON F. GARCIA, in his capacity as President and General Manager of the Government
Service Insurance System, petitioner, vs. MARIO I. MOLINA and ALBERT M. VELASCO,
respondents.
Civil Service Law; The civil service encompasses all branches and agencies of the Government,
including government-owned or controlled corporations (GOCCs) with original charters, like the
Government Service Insurance System (GSIS), or those created by special law.The civil service
encompasses all branches and agencies of the Government, including government-owned or
controlled corporations (GOCCs) with original charters, like the GSIS, or those created by special law.
As such, the employees are part of the civil service system and are subject to the law and to the
circulars, rules and regulations issued by the CSC on discipline, attendance and general terms and
conditions of employment. The CSC has jurisdiction to hear and decide disciplinary cases against
erring employees.
Same; The Civil Service Commission (CSC) Rules does not specifically provide that a formal charge
without the requisite preliminary investigation is null and void; Upon receipt of a complaint which is
sufficient in form and substance, the disciplining authority shall require the person complained of to
submit a Counter-Affidavit/Comment under oath within three days from receipt.The CSC Rules does
not specifically provide that a formal charge without the requisite preliminary investigation is null and
void. However, as clearly outlined above, upon receipt of a complaint which is sufficient in form and
substance, the disciplining authority shall require the person complained of to submit a Counter-
Affidavit/Comment under oath within three days from receipt. The use of the word shall quite
obviously indicates that it is mandatory for the disciplining authority to conduct a preliminary
investigation or at least respondent should be given the opportunity to comment and explain his side.
Administrative Law; Due Process; The cardinal precept is that where there is a violation of basic
constitutional rights, courts are ousted from their jurisdiction; Where the denial of the fundamental right
to due process is apparent, a decision rendered in disregard of that right is void for lack of
jurisdiction.The cardinal precept is that where there is a violation of basic constitutional rights, courts
are ousted from their jurisdiction. The violation of a partys right to due process raises a serious
jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the
fundamental right to due process is apparent, a decision rendered in disregard of that right is void for
lack of jurisdiction. This rule is equally true in quasi-judicial and administrative proceedings, for the
constitutional guarantee that no man shall be deprived of life, liberty, or property without due process is
unqualified by the type of proceedings (whether judicial or administrative) where he stands to lose the
same.
Administrative Proceedings; Due Process; Administrative proceedings are not exempt from basic and
fundamental procedural principles, such as the right to due process in investigations and hearings;
What Includes Due Process in Administrative Proceedings.Although administrative procedural rules
are less stringent and often applied more liberally, administrative proceedings are not exempt from
basic and fundamental procedural principles, such as the right to due process in investigations and
Page 67 of 321
Administrative Law
hearings. In particular, due process in administrative proceedings has been recognized to include the
following: (1) the right to actual or constructive notice to the institution of proceedings which may affect
a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of
counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal
vested with competent jurisdiction and so constituted as to afford a person charged administratively a
reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is
supported by substantial evidence submitted for consideration during the hearing or contained in the
records or made known to the parties affected.
Same; Same; It is well-settled that a decision rendered without due process is void ab initio and may
be attacked at anytime directly or collaterally by means of a separate action, or by resisting such
decision in any action or proceeding where it is invoked.It is well-settled that a decision rendered
without due process is void ab initio and may be attacked at anytime directly or collaterally by means
of a separate action, or by resisting such decision in any action or proceeding where it is invoked.
Moreover, while respondents failed to raise before the GSIS the lack of preliminary investigation,
records show that in their Urgent Motion to Resolve (their Motion to Lift Preventive Suspension Order)
filed with the CSC, respondents questioned the validity of their preventive suspension and the formal
charges against them for lack of preliminary investigation. There is, thus, no waiver to speak of.
PETITIONS for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Lutgardo B. Barbo and Alexander M. Rodriguez for petitioner.
Barbers, Molina and Molina for respondents.

NACHURA, J.:

Before the Court are two consolidated petitions filed by Winston F. Garcia (petitioner) in his capacity as
President and General Manager of the Government Service Insurance System, or GSIS, against
respondents Mario I. Molina (Molina) and Albert M. Velasco (Velasco). In G.R. No. 157383, petitioner
assails the Court of Appeals (CA) Decision1 dated January 2, 2003 and Resolution2 dated March 5,
2003 in CA-G.R. SP No. 73170. In G.R. No. 174137, petitioner assails the CA Decision 3 dated
December 7, 2005 and Resolution4 dated August 10, 2006 in CA-G.R. SP No. 75973.
The factual and procedural antecedents of the case are as follows:
Respondents Molina and Velasco, both Attorney V of the GSIS, received two separate
Memoranda5 dated May 23, 2002 from petitioner charging them with grave misconduct. Specifically,
Molina was charged for allegedly committing the following acts: 1) directly and continuously helping
some alleged disgruntled employees to conduct concerted protest actions and/or illegal assemblies
against the management and the GSIS President and General Manager; 2) leading the concerted
protest activities held in the morning of May 22, 2002 during office hours within the GSIS compound;
and 3) continuously performing said activities despite warning from his immediate superiors. 6 In
addition to the charge for grave misconduct for performing the same acts as Molina, Velasco was
accused of performing acts in violation of the Rules on Office Decorum for leaving his office without
Page 68 of 321
Administrative Law
informing his supervisor of his whereabouts; and gross insubordination for persistently disregarding
petitioners instructions that Velasco should report to the petitioners office.7 These acts, according to
petitioner, were committed in open betrayal of the confidential nature of their positions and in outright
defiance of the Rules and Regulations on Public Sector Unionism. In the same Memoranda, petitioner
required respondents to submit their verified answer within seventy two (72) hours. Considering the
gravity of the charges against them, petitioner ordered the preventive suspension of respondents for
ninety (90) days without pay, effective immediately.8 The following day, a committee was constituted to
investigate the charges against respondents.
In their Answer9 dated May 27, 2002, respondents denied the charges against them. Instead, they
averred that petitioner was motivated by vindictiveness and bad faith in charging them falsely. They
likewise opposed their preventive suspension for lack of factual and legal basis. They strongly
expressed their opposition to petitioner acting as complainant, prosecutor and judge.
On May 28, 2002, respondents filed with the Civil Service Commission (CSC) an Urgent Petition to Lift
Preventive Suspension Order.10 They contended that the acts they allegedly committed were arbitrarily
characterized as grave misconduct. Consistent with their stand that petitioner could not act as the
complainant, prosecutor and judge at the same time, respondents filed with the CSC a Petition to
Transfer Investigation to This Commission.11

Meanwhile, the GSIS hearing officer directed petitioners to submit to the jurisdiction of the investigating
committee and required them to appear at the scheduled hearing. 12
Despite their urgent motions, the CSC failed to resolve respondents motions to lift preventive
suspension order and to transfer the case from the GSIS to the CSC.
On October 10, 2002, respondents filed with the CA a special civil action for certiorari and prohibition
with prayer for Temporary Restraining Order (TRO).13 The case was docketed as CA-G.R. SP No.
73170. Respondents sought the annulment and setting aside of petitioners order directing the former
to submit to the jurisdiction of the committee created to hear and investigate the administrative case
filed against them. They likewise prayed that petitioner (and the committee) be prohibited from
conducting the scheduled hearing and from taking any action on the aforesaid administrative case
against respondents.
On January 2, 2003, the CA rendered a decision 14 in favor of respondents, the dispositive portion of
which reads:
ACCORDINGLY, the petition is hereby GRANTED. Public respondents are hereby PERPETUALLY
RESTRAINED from hearing and investigating the administrative case against petitioners, without
prejudice to pursuing the same with the Civil Service Commission or any other agency of government
as may be allowed for (sic) by law.
SO ORDERED.15

The CA treated the petition as one raising an issue of gnawing fear, and thus agreed with respondents
that the investigation be made not by the GSIS but by the CSC to ensure that the hearing is conducted
before an impartial and disinterested tribunal.
Page 69 of 321
Administrative Law
Aggrieved, petitioner comes before the Court in this petition for review on certiorari under Rule 45 of
the Rules of Court, raising the following issues:

I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN FINDING
THAT THE PETITIONERS ABUSED THEIR AUTHORITY AND HAVE BEEN PARTIAL IN REGARD
TO THE ADMINISTRATIVE CASES AGAINST THE RESPONDENTS; AND IN PERPETUALLY
RESTRAINING THE PETITIONERS FROM HEARING AND INVESTIGATING THE ADMINISTRATIVE
CASES FILED AGAINST THE RESPONDENTS SOLELY ON THE BASIS OF THE TOTALLY
UNFOUNDED ALLEGATIONS OF THE RESPONDENTS THAT THE PETITIONERS ARE PARTIAL
AGAINST THEM.

II.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FAILING TO
APPRECIATE AND APPLY THE PRINCIPLE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND THE RULE ON NON FORUM SHOPPING IN PERPETUALLY RESTRAINING THE
PETITIONERS FROM HEARING AND INVESTIGATING THE ADMINISTRATIVE CASES AGAINST
THE RESPONDENTS.

III.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
RENDERING A DECISION WHICH IS CONTRARY TO AND COMPLETELY DISREGARDS
APPLICABLE JURISPRUDENCE AND WHICH, IN VIOLATION OF THE RULES OF COURT, DOES
NOT CLEARLY STATE THE FACTS AND THE LAW ON WHICH IT IS BASED.16
In the meantime, on February 27, 2003, the CSC resolved respondents Petition to Lift Order of
Preventive Suspension and Petition to Transfer Investigation to the Commission through Resolution
No. 03-0278,17 the dispositive portion of which reads:
WHEREFORE, the Commission hereby rules that:
1. The Urgent Petition to Lift the Order of Preventive Suspension is hereby DENIED for having
become moot and academic.
2. The Petition to Transfer Investigation to the Commission is likewise DENIED for lack of merit.
Accordingly, GSIS President and General Manager Winston F. Garcia is directed to continue the
conduct of the formal investigation of the charges against respondents-petitioners Albert Velasco and
Mario I. Molina.18

As to the lifting of the order of preventive suspension, the CSC considered the issue moot and
academic considering that the period had lapsed and respondents had been allowed to resume their
specific functions. This notwithstanding, the CSC opted to discuss the matter by way of obiter dictum.
Page 70 of 321
Administrative Law
Without making a definitive conclusion as to the effect thereof in the case against respondents, the
CSC declared that a preliminary investigation is a pre-requisite condition to the issuance of a formal
charge.19
On the requested transfer of the investigation from the GSIS to the CSC, the latter denied the same for
lack of merit. The Commission concluded that the fact that the GSIS acted as the complainant and
prosecutor and eventually the judge does not mean that impartiality in the resolution of the case will no
longer be served.20

Aggrieved, respondents appealed to the CA through a Petition for Review under Rule 43 of the Rules
of Court.21The case was docketed as CA-G.R. SP NO. 75973.
On December 7, 2005, the CA rendered a Decision 22 in favor of respondents, the dispositive portion of
which reads:
PREMISES CONSIDERED, the petition is hereby GRANTED. The formal charges filed by the
President and General Manager of the GSIS against petitioners, and necessarily, the order of
preventive suspension emanating therefrom, are declared NULL AND VOID. The GSIS is hereby
directed to pay petitioners back salaries pertaining to the period during which they were unlawfully
suspended. No pronouncement as to costs.
SO ORDERED.23

The CA declared null and void respondents formal charges for lack of the requisite preliminary
investigation. In view thereof, the CA disagreed with the CSC that the question on the propriety of the
preventive suspension order had become moot and academic. Rather, it concluded that the same is
likewise void having emanated from the void formal charges. Consequently, the CA found that
respondents were entitled to back salaries during the time of their illegal preventive suspension.
Hence, the present petition raising the following issues:
I.
WHETHER THE RESPONDENTS WERE FULLY ACCORDED THE REQUISITE OPPORTUNITY TO
BE HEARD, WERE IN FACT HEARD AND BEING HEARD, AND WHETHER THE CONDUCT OF
PRELIMINARY INVESTIGATION IN ADMINISTRATIVE PROCEEDINGS IS AN ESSENTIAL
REQUISITE TO THE CONDUCT OF ADJUDICATION.

II.
WHETHER THE RESPONDENTS WAIVED THEIR RIGHT TO PRELIMINARY INVESTIGATION.

III.
WHETHER PRELIMINARY INVESTIGATION IS REQUIRED IN INDICTMENTS IN FLAGRANTI, AS
HERE.
Page 71 of 321
Administrative Law

IV.
WHETHER THE HONORABLE COURT OF APPEALS LACKED JURISDICTION, AS THE ALLEGED
LACK OF PRELIMINARY INVESTIGATION SHOULD HAVE BEEN RAISED BEFORE THE GSIS
AND, THEREAFTER, BEFORE THE CIVIL SERVICE COMMISSION, UNDER THE PRINCIPLE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES; THE GSIS HAVING ACQUIRED JURISDICTION
OVER THE PERSONS OF THE RESPONDENTS, TO THE EXCLUSION OF ALL OTHERS.

V.
WHETHER THE ALLEGED LACK OF PRELIMINARY INVESTIGATION IS A NON-ISSUE.

VI.
WHETHER THE PREVENTIVE SUSPENSION ORDERS ISSUED AGAINST RESPONDENTS
MOLINA AND VELASCO ARE VALID, WELL-FOUNDED AND DULY RECOGNIZED BY LAW.

VII.
WHETHER PREVENTIVE SUSPENSION IS A PENALTY AND, THUS, MAY NOT BE IMPOSED
WITHOUT BEING PRECEDED BY A HEARING.

VIII.
WHETHER THE RESPONDENTS ARE ENTITLED TO PAYMENT OF BACK SALARIES
PERTAINING TO THE PERIOD OF THEIR PREVENTIVE SUSPENSION.

IX.
WHETHER THE INSTITUTION OF THE RESPONDENTS PETITION BEFORE THE CIVIL SERVICE
COMMISSION WAS ENTIRELY PREMATURE.

X.
WHETHER THE MISAPPREHENSIONS OF THE RESPONDENTS AS REGARDS THE PARTIALITY
OF THE GSIS COMMITTEE INVESTIGATING THE CHARGES AGAINST THEM IS BLATANTLY
WITHOUT FACTUAL BASIS.

XI.

Page 72 of 321
Administrative Law
WHETHER RESPONDENTS OBVIOUS ACT OF FORUM SHOPPING SHOULD BE
COUNTENANCED BY THIS HONORABLE COURT.24

The petitions are without merit.

The civil service encompasses all branches and agencies of the Government, including government-
owned or controlled corporations (GOCCs) with original charters, like the GSIS, or those created by
special law. As such, the employees are part of the civil service system and are subject to the law and
to the circulars, rules and regulations issued by the CSC on discipline, attendance and general terms
and conditions of employment.25 The CSC has jurisdiction to hear and decide disciplinary cases
against erring employees. In addition, Section 37 (b) of Presidential Decree No. 807 or the Civil
Service Decree of the Philippines also gives the heads of departments, agencies and instrumentalities,
provinces, cities and municipalities the authority to investigate and decide matters involving disciplinary
action against officers and employees under their jurisdiction. As for the GSIS, Section 45, Republic
Act (R.A.) 8291 otherwise known as the GSIS Act of 1997, specifies its disciplining authority, viz.:
SECTION 45. Powers and Duties of the President and General Manager.The President and
General Manager of the GSIS shall among others, execute and administer the policies and resolutions
approved by the Board and direct and supervise the administration and operations of the GSIS. The
President and General Manager, subject to the approval of the Board, shall appoint the personnel of
the GSIS, remove, suspend or otherwise discipline them for cause, in accordance with existing Civil
Service rules and regulations, and prescribe their duties and qualifications to the end that only
competent persons may be employed.

By this legal provision, petitioner, as President and General Manager of GSIS, is vested the authority
and responsibility to remove, suspend or otherwise discipline GSIS personnel for cause. 26
However, despite the authority conferred on him by law, such power is not without limitations for it
must be exercised in accordance with Civil Service rules. The Uniform Rules on Administrative Cases
in the Civil Service lays down the procedure to be observed in issuing a formal charge against an
erring employee, to wit:
First, the complaint. A complaint against a civil service official or employee shall not be given due
course unless it is in writing and subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need not be under oath.27 Except when
otherwise provided for by law, an administrative complaint may be filed at anytime with the
Commission, proper heads of departments, agencies, provinces, cities, municipalities and other
instrumentalities.28
Second, the Counter-Affidavit/Comment. Upon receipt of a complaint which is sufficient in form and
substance, the disciplining authority shall require the person complained of to submit Counter-
Affidavit/Comment under oath within three days from receipt.29
Third, Preliminary Investigation. A Preliminary investigation involves the ex parte examination of
records and documents submitted by the complainant and the person complained of, as well as
documents readily available from other government offices. During said investigation, the parties are

Page 73 of 321
Administrative Law
given the opportunity to submit affidavits and counter-affidavits. Failure of the person complained of to
submit his counter-affidavit shall be considered as a waiver thereof.30
Fourth, Investigation Report. Within five (5) days from the termination of the preliminary investigation,
the investigating officer shall submit the investigation report and the complete records of the case to
the disciplining authority.31
Fifth, Formal Charge. If a prima facie case is established during the investigation, a formal charge shall
be issued by the disciplining authority. A formal investigation shall follow. In the absence of a prima
facie case, the complaint shall be dismissed.32

It is undisputed that the Memoranda separately issued to respondents were the formal charges against
them. These formal charges contained brief statements of material or relevant facts, a directive to
answer the charges within seventy two (72) hours from receipt thereof, an advice that they had the
right to a formal investigation and a notice that they are entitled to be assisted by a counsel of their
choice.33
It is likewise undisputed that the formal charges were issued without preliminary or fact-finding
investigation. Petitioner explained that no such investigation was conducted because the CSC rules
did not specifically provide that it is a pre-requisite to the issuance of a formal charge. He likewise
claimed that preliminary investigation was not required in indictments in flagranti as in this case.
We disagree.
Indeed, the CSC Rules does not specifically provide that a formal charge without the requisite
preliminary investigation is null and void. However, as clearly outlined above, upon receipt of a
complaint which is sufficient in form and substance, the disciplining authority shall require the person
complained of to submit a Counter-Affidavit/Comment under oath within three days from receipt. The
use of the word shall quite obviously indicates that it is mandatory for the disciplining authority to
conduct a preliminary investigation or at least respondent should be given the opportunity to comment
and explain his side. As can be gleaned from the procedure set forth above, this is done prior to the
issuance of the formal charge and the comment required therein is different from the answer that may
later be filed by respondents. Contrary to petitioners claim, no exception is provided for in the CSC
Rules. Not even an indictment in flagranti as claimed by petitioner.
This is true even if the complainant is the disciplining authority himself, as in the present case. To
comply with such requirement, he could have issued a memorandum requiring respondents to explain
why no disciplinary action should be taken against them instead of immediately issuing formal charges.
With respondents comments, petitioner would have properly evaluated both sides of the controversy
before making a conclusion that there was a prima facie case against respondents, leading to the
issuance of the questioned formal charges. It is noteworthy that the very acts subject of the
administrative cases stemmed from an event that took place the day before the formal charges were
issued. It appears, therefore, that the formal charges were issued after the sole determination by the
petitioner as the disciplining authority that there was a prima facie case against respondents.
To condone this would give the disciplining authority an unrestricted power to judge by himself the
nature of the act complained of as well as the gravity of the charges. We, therefore, conclude that
respondents were denied due process of law. Not even the fact that the charges against them are
Page 74 of 321
Administrative Law
serious and evidence of their guilt isin the opinion of their superiorstrong can compensate for the
procedural shortcut undertaken by petitioner which is evident in the record of this case.34 The filing by
petitioner of formal charges against the respondents without complying with the mandated preliminary
investigation or at least give the respondents the opportunity to comment violated the latters right to
due process. Hence, the formal charges are void ab initio and may be assailed directly or indirectly at
anytime.35
The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted
from their jurisdiction. The violation of a partys right to due process raises a serious jurisdictional issue
which cannot be glossed over or disregarded at will. Where the denial of the fundamental right to due
process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction. This
rule is equally true in quasi-judicial and administrative proceedings, for the constitutional guarantee
that no man shall be deprived of life, liberty, or property without due process is unqualified by the type
of proceedings (whether judicial or administrative) where he stands to lose the same. 36
Although administrative procedural rules are less stringent and often applied more liberally,
administrative proceedings are not exempt from basic and fundamental procedural principles, such as
the right to due process in investigations and hearings. 37 In particular, due process in administrative
proceedings has been recognized to include the following: (1) the right to actual or constructive notice
to the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to
be heard personally or with the assistance of counsel, to present witnesses and evidence in ones
favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as
to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality;
and (4) a finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made known to the parties affected.38
Petitioner contends that respondents waived their right to preliminary investigation as they failed to
raise it before the GSIS.
Again, we do not agree.
It is well-settled that a decision rendered without due process is void ab initio and may be attacked at
anytime directly or collaterally by means of a separate action, or by resisting such decision in any
action or proceeding where it is invoked.39 Moreover, while respondents failed to raise before the GSIS
the lack of preliminary investigation, records show that in their Urgent Motion to Resolve (their Motion
to Lift Preventive Suspension Order) filed with the CSC, respondents questioned the validity of their
preventive suspension and the formal charges against them for lack of preliminary
investigation.40 There is, thus, no waiver to speak of.
In the procedure adopted by petitioner, respondents were preventively suspended in the same formal
charges issued by the former without the latter knowing that there were pending administrative cases
against them. It is true that prior notice and hearing are not required in the issuance of a preventive
suspension order.41 However, considering that respondents were preventively suspended in the same
formal charges that we now declare null and void, then their preventive suspension is likewise null and
void.
Lastly, the CA committed no reversible error in ordering the payment of back salaries during the period
of respondents preventive suspension. As the administrative proceedings involved in this case are
void, no delinquency or misconduct may be imputed to respondents and the preventive suspension
Page 75 of 321
Administrative Law
meted them is baseless. Consequently, respondents should be awarded their salaries during the
period of their unjustified suspension.42 In granting their back salaries, we are simply repairing the
damage that was unduly caused respondents, and unless we can turn back the hands of time, we can
do so only by restoring to them that which is physically feasible to do under the circumstances.43The
principle of no work, no pay does not apply where the employee himself was unlawfully forced out of
job.44
In view of the foregoing disquisition, we find no necessity to discuss the other issues raised by
petitioner.
WHEREFORE, premises considered, the petition in G.R. No. 157383 is DENIED while the petition in
G.R. No. 174137 is DISMISSED, for lack of merit.
SO ORDERED.
Corona (C.J.), Carpio, Carpio-Morales, Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo,
Abad, Villarama, Jr., Perez and Mendoza, JJ., concur.
Velasco, Jr., J., On Official Leave.
Petition in G.R. No. 157383 denied, while petition in G.R. No. 174137 dismissed.
Note.Cardinal Rights of Parties in Administrative Proceedings. (Solid Homes, Inc. vs. Laserna, 550
SCRA 613 [2008])

o0o

Page 76 of 321
Administrative Law

G.R. No. 190795. July 6, 2011.*

NATIONAL ASSOCIATION OF ELECTRICITY CONSUMERS FOR REFORMS, INC. (NASECORE),
represented by PETRONILO ILAGAN; FEDERATION OF VILLAGE ASSOCIATIONS (FOVA),
represented by SIEFRIEDO VELOSO; and FEDERATION OF LAS PIAS VILLAGE
ASSOCIATION (FOLVA), represented by BONIFACIO DAZO, petitioners, vs. ENERGY
REGULATORY COMMISSION (ERC) and MANILA ELECTRIC COMPANY, INC. (MERALCO),
respondents.
Remedial Law; Appeals; Issues not previously ventilated cannot be raised for the first time on appeal,
much less when first proposed in the reply to the comment on the petition for review.We have ruled
that issues not previously ventilated cannot be raised for the first time on appeal, much less when first
proposed in the reply to the comment on the petition for review. To allow petitioners to blindside
Meralco with such newly raised issues violates the latters due process rights. Having been raised for
the first time, this Court cannot rule on the issues regarding the unreasonableness of Meralcos rates
and the validity of the choice of the PBR method. If petitioners wanted to include these issues for
resolution, the proper procedure was for them to ask this Court to allow them to amend their Petition
for the inclusion of the aforementioned issues.
Same; Due Process; Where opportunity to be heard either through oral arguments or through
pleadings is granted, there is no denial of due process.Where opportunity to be heard either through
oral arguments or through pleadings is granted, there is no denial of due process. It must not be
overlooked that prior to the issuance of the assailed Decision, petitioners were given several
opportunities to attend the hearings and to present all their pleadings and evidence in the
MAP2010 case. Petitioners voluntarily failed to appear in most of those hearings.
Same; Same; Any defect in the observance of due process requirements is cured by the filing of a
Motion for Reconsideration (MR).Although it is true that the ERC erred in prematurely issuing its
Decision, its subsequent act of ordering petitioners to file their comments on Mallillins MR cured this
defect. We have held that any defect in the observance of due process requirements is cured by the
filing of a MR. Thus, denial of due process cannot be invoked by a party who has had the opportunity
to be heard on his MR.
Same; Certiorari; The plain and adequate remedy referred to in Rule 65 is a motion for
reconsideration of the assailed decision; The filing of a motion for reconsideration is a condition sine
qua non before the filing of a special civil action for certiorari; Exception.Rule 65 of the Rules of Civil
Procedure provides that a petition for certiorari may be filed when there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law. The plain and adequate remedy
referred to in Rule 65 is a motion for reconsideration of the assailed decision. Thus, it is a well-settled
rule that the filing of a motion for reconsideration is a condition sine qua non before the filing of a
special civil action for certiorari. The purpose of this rule is to give the lower court the opportunity to
correct itself. However, this requirement is not an ironclad rule. The prior filing of a motion for
reconsideration may be dispensed with if petitioners are able to show a concrete, compelling, and valid
reason for doing so. The Court may brush aside the procedural barrier and take cognizance of the
petition if it raises an issue of paramount importance and constitutional significance.

Page 77 of 321
Administrative Law
Same; Temporary Restraining Orders (TROs); The purpose of a Temporary Restraining Order (TRO)
is to prevent a threatened wrong and to protect the property or rights involved from further injury, until
the issues can be determined after a hearing on the merits.The purpose of a TRO is to prevent a
threatened wrong and to protect the property or rights involved from further injury, until the issues can
be determined after a hearing on the merits. Under Section 5, Rule 58 of the 1997 Rules of Civil
Procedure, a TRO may be issued only if it appears from the facts shown by affidavits or by a verified
application that great or irreparable injury would be incurred by an applicant before the writ of
preliminary injunction could be heard.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Leonardo A. Aurelio for petitioners.
Angara, Abello, Concepcion, Regala & Cruz for MERALCO.
Jose Ronald V. Valles co-counsel for MERALCO.
SERENO, J.:
The Energy Regulatory Commission (ERC), created under the Electric Power Industry Reform Act of
2001(EPIRA),1 used to apply the Return on Rate Base (RORB) method to determine the proper
amount a distribution utility (DU) may charge for the services it provides. The RORB scheme had been
the method for computing allowable electricity charges in the Philippines for decades, before the onset
of the EPIRA. Section 43(f) of the EPIRA allows the ERC to shift from the RORB methodology to
alternative forms of internationally accepted rate-setting methodology, subject to multiple
conditions.2 The ERC, through a series of resolutions, adopted the Performance-Based Regulation
(PBR) method to set the allowable rates DUs may charge their customers. 3 Meralco, a DU, applied for
an increase of its distribution rate under the PBR scheme docketed as ERC Case No. 2009-057 RC
(MAP2010 case) on 7 August 2009. Petitioners NASECORE, FOLVA, FOVA, and Engineer Robert F.
Mallillin (Mallillin) all filed their own Petitions for Intervention to oppose the application of Meralco. 4
At the initial hearing, on 6 October 2009, the following entered their appearances: (1) Meralco, (2)
Mallillin, and (3) FOVA. Petitioners NASECORE and FOLVA failed to appear despite due notice. 5
Meralco presented its first witness on 13 November 2009. At the date of hearing, FOLVA failed to
appear despite due notice.6 Likewise, on 19 November 2009, the continuation of Meralcos
presentation of its witness, petitioners NASECORE, FOVA, and FOLVA all failed to appear despite
due notice.7 NASECORE had sent a letter requesting that it be excused from the said hearing, but
reserved its right to cross-examine the witness presented by Meralco. The latter objected to this
request by virtue of the ERCs Rules of Practice and Procedure. ERC ruled that the absence of
NASECORE and FOVA was deemed a waiver of their right to cross-examine Meralcos first witness.8
At the 26 November 2009 hearing, NASECORE and FOLVA again failed to attend the hearing despite
due notice. Upon motion by Meralco, ERC declared that NASECORE had waived its right to cross-
examine the second witness of Meralco for failure to attend the said hearing. ERC then gave Meralco
five (5) days from said date of hearing within which to file its Formal Offer of Evidence. FOVA and all
the other Intervenors were, likewise, given ten (10) days from receipt thereof to file their comments
thereon and fifteen (15) days from said date of hearing to file their position papers or Memoranda. 9

Page 78 of 321
Administrative Law
On 1 December 2009, Meralco filed its Formal Offer of Evidence with compliance. On 7 December
2009, it was directed by ERC to submit additional documents to facilitate the evaluation of its
application.
Petitioner NASECORE claims that it was only on 8 December 2009, that it received Meralcos Formal
Offer of Evidence, together with a copy of the 7 December 2009 ERC Order. Thus, it believes that it
has until 18 December 2009 to file its comment thereon.
On 10 December 2009, Petitioner NASECORE filed with ERC a Manifestation with Motion dated 9
December 2009 requesting that the ERC direct applicant Meralco to furnish intervenor NASECORE all
the items in ERCs directive/Order dated 7 December 2009; to furnish Intervenor NASECORE a copy
of the Records of the Proceedings of the hearings held on 19 and 26 November 2009; and to grant the
same intervenor fifteen (15) days, from receipt of applicants compliance with the ERCs Order dated 7
December 2009, within which to file its comment to applicants Formal Offer of Evidence.
On 14 December 2009,10 Meralcos application in the MAP2010 case was approved by ERC.
Petitioner NASECORE protests this claiming approval as premature, that there were still four days
before the expiration of the period given to it to file its opposition to the formal offer of evidence of
Meralco, and before petitioner NASECORE received its copy of the documents Meralco was required
to additionally submit in the 7 December 2009 ERC Order.
A day after the aforementioned Decision, or on 15 December 2009, petitioner NASECORE allegedly
received the additional documents Meralco submitted in compliance with the ERCs 7 December 2009
Order.
Malillin filed his Motion for Reconsideration (MR) before the ERC. 11 Instead of filing their own motions
for reconsideration, petitioners came directly to this Court via a Petition for Certiorari under Rule 65 of
the Rules of Court with an Urgent Prayer for the Issuance of a Temporary Restraining Order (TRO) or
Status Quo Order.
Allegations in the Instant
Petition; Meralcos and
ERCs Comments
Petitioners main assertion is that the ERC Decision approving the MAP2010 application of Meralco is
null and void for having been issued in violation of their right to due process of law.12 They further ask
this Court to stay the execution of the aforementioned Decision for being void, to wit:
As already shown earlier, the assailed ERC Decision is a patent nullity due to lack of due process of
law. Thus, being a void decision, it can not (sic) be the source of any right on the part of MERALCO to
collect additional charges from their customers. Invariably, the 4.3 million customers of MERALCO has
(sic) no obligation whatsoever to pay additional distribution charges to MERALCO. To implement such
void ERC decision, is plainly oppressive, confiscatory, and unjust.13
On 26 January 2010, Meralco filed its Comment to the instant Petition. Meralco contends that the said
Petition should be denied due course or dismissed for the following reasons:
1. Petitioners have availed of an improper remedy;14
2. Petitioners have failed to observe the proper hierarchy of courts;15

Page 79 of 321
Administrative Law
3. Petitioners were amply afforded the right to participate in the proceedings and have thus been
afforded sufficient opportunity to be heard;16 and
4. Meralco has already voluntarily suspended the implementation of the approved MAP2010 rates
rendering the issues raised in this Petition moot.17
Meralco furthermore opposes petitioners prayer for the issuance of a TRO or Status quo order. It
argues that petitioners failed to present an urgent and paramount necessity for the issuance of the
writ considering that Meralco already voluntarily suspended the implementation of the assailed
Decision pending resolution of Mallillins MR. In fact, on 1 February 2010, ERC issued an Order
suspending the implementation of the 14 December 2009 Decision pending the resolution of Mallillins
MR.
On 27 August 2010, ERC filed its Comment. The ERC argued that a Petition for Certiorari under Rule
65 is not the proper remedy in the case at bar; that there was no denial of petitioners right to
procedural due process; and that its 10 March 2010 order has rendered the instant petition moot. In
this Order, the ERC granted the MR of Mallillin and directed the implementation of the therein reflected
revised distribution rates.
New Allegations in the Reply and
Meralcos Comment Thereon
On 8 April 2010, petitioners filed their Reply to Meralcos Comment. In their Reply, petitioners, for the
first time, put forward the following arguments:
(1) Meralco, from 2003-2008, has been earning more than the 12% rate of recovery considered by
law as just and reasonable.
Petitioners newly argue that the ERC erred in approving Meralcos application for increasing its
charges in spite of the validation by the Commission on Audit (COA), through a report, of a
computation showing Meralcos income as exceeding the 12% mandated by law. Petitioners conclude
thus:
In view of the COA Audit Report (x x x), the position of the herein petitioners were validated, i.e., that
Meralcos rate increase of P0.0865/KWh granted in 2003 was not only unnecessary but also
unreasonable, hence MERALCO should not only be ordered to roll back its rate but also to refund its
excess revenues to consumers.
(2) Questionable rate-setting methodology adopted
by ERC.
According to petitioners, this Court ordered the ERC to consider the 2003 increase it granted to
Meralco as provisional until it has taken action on the COA Audit Report but that ERC disregarded this
order because of its adamant position that the PBR rate fixing methodology is the be-all-and-end-all
of its rate fixing function while sacrificing the interests of millions of consumers.18
They argue that it is not the validity of the rate setting methodology employed but the reasonableness
of the rates to be applied that ought to be the controlling factor in determining the rates that a public
utility should be allowed to implement.19

Page 80 of 321
Administrative Law
Thus, the ERC should not limit itself with the use of the PBR method if it would result in unreasonable
rates. Rather, the ERC should have the authority to employ any method so long as the result was
reasonable to both consumer and investor. In effect, petitioners are asking this court to adopt the end
result doctrine, which was pronounced by the U.S. Supreme Court in National Power Commission v.
Hope Natural Gas Co.20 and cited in the concurring opinion of former Chief Justice Fred Ruiz Castro
in Republic v. Medina.21
Petitioners contend that the use of the PBR method results in disadvantage to the public, viz.:
In fine, MERALCO succeeded in wangling from the ERC through an internationally accepted rate-
setting methodology (i.e., Performance Based Rate [PBR]) a rate that will not only guarantee that its
operations shall remain viable but a rate that will give it astronomical profits at the expense of the
consuming public whom it is obligated to serve.
A table showing that the common stockholders of Meralco, for the last 21 years, had earned 424% on
their actual investment, per year, was also presented by petitioners. Petitioners conclude that these
numbers negate any argument that Meralco needs a rate increase, irrespective of any under rate
methodology applied.22
The Issue of the Validity of the PBR was
not Squarely Raised in this Petition; the
Sole Issue is the Denial of Due Process
We have ruled that issues not previously ventilated cannot be raised for the first time on appeal, much
less when first proposed in the reply to the comment on the petition for review. 23 To allow petitioners
to blindside Meralco with such newly raised issues violates the latters due process rights. Having been
raised for the first time, this Court cannot rule on the issues regarding the unreasonableness of
Meralcos rates and the validity of the choice of the PBR method. If petitioners wanted to include these
issues for resolution, the proper procedure was for them to ask this Court to allow them to amend their
Petition for the inclusion of the aforementioned issues. Thus, we rule that the sole issue for resolution
in this case is whether or not petitioners right to due process of law was violated when the ERC issued
its Order before the expiration of the period granted to petitioners to file their comment.
There Has Been No Denial of Due
Process, at most only an Irregularity in
the Precipitate Issuance of the Assailed
Decision, which Irregularity ERC has Sought to Remedy
In Cooperative Devt. Authority v. Dolefil Agrarian Reform Beneficiaries Coop., Inc. et al., 24 it was held
that the appellate court violated the therein petitioners right to be heard when it rendered judgment
against them without allowing them to file their comment or opposition.
In the case at bar, petitioners were required to file their comment on the formal offer of evidence of
Meralco. However, the ERC rendered its Decision prior to the lapse of the period granted to
petitioners. According to petitioners, ERCs failure to accord them a reasonable opportunity to present
their oppositions or comments on the application of Meralco clearly denied them due process of law.
The ERC committed grave abuse of discretion when it deprived them of their opportunity to be heard.
This prompted Petitioners to file the present Petition on 20 January 2010.

Page 81 of 321
Administrative Law
This Court is of the Opinion that considering the facts in this case, including all the events that
occurred both prior to and subsequent to the issuance of the 14 December 2010 Decision, the ERC
did not deprive petitioners of their right to be heard.
Petitioners claim that that they were not given a chance to submit their evidence or memorandum in
support of their position that Meralco had been charging rates that were beyond the 12% reasonable
rate of return established in jurisprudence.25 The records show, however, that they had been given
notice to attend all the hearings conducted by the ERC, but that they voluntarily failed to appear in or
attend those hearings.
Furthermore, after the issuance of the assailed Order, Mallillin filed an MR before petitioners filed their
Petition in this Court. On 25 January 2010, the ERC issued an Order directing Petitioners
NASECORE, FOLVA, and FOVA to file their respective comments on Mallillins MR. Petitioners were
given a period of ten days from receipt of the order, to file their comments. The ERC also scheduled
the hearing on the said MR on 5 February 2010.
On 26 January 2010, Meralco filed a Manifestation and Motion wherein it expressed its decision to
voluntarily suspend the implementation of the 14 December 2009 Decision pending the ERCs
resolution of Mallillins MR.
Instead of filing their comments, petitioners NASECORE and FOVA, through separate letters
respectively dated 28 January 2010 and 31 January 2010, sought to excuse themselves from
participating in the proceedings before the ERC on the ground that they have already filed the present
Petition.
On 1 February 2010, the ERC issued an Order suspending the implementation of the herein
questioned 14 December 2010 Decision pending the resolution of the MR.
During the 5 February 2010 hearing, only Meralco appeared. Neither petitioners nor Mallillin
participated in the proceedings.
On 10 March 2010, ERC issued an Order granting the MR with modification, the dispositive portion of
which reads:
WHEREFORE, the foregoing premises considered, the Motion for Reconsideration filed by Engr.
Robert F. Mallillin is hereby GRANTED WITH MODIFICATION. Accordingly, MERALCO is hereby
directed to implement the revised distribution rates, excluding all rate distortions, as shown in the
foregoing table. Consequently, the Order dated February 1, 2010 issued by the Commission granting
the deferment of the implementation of the Decision dated December 14, 2009 pending final resolution
of Engr. Mallillins motions is hereby LIFTED.
SO ORDERED.26
Where opportunity to be heard either through oral arguments or through pleadings is granted, there is
no denial of due process. It must not be overlooked that prior to the issuance of the assailed Decision,
petitioners were given several opportunities to attend the hearings and to present all their pleadings
and evidence in the MAP2010 case. Petitioners voluntarily failed to appear in most of those hearings.
Although it is true that the ERC erred in prematurely issuing its Decision, its subsequent act of ordering
petitioners to file their comments on Mallillins MR cured this defect. We have held that any defect in
the observance of due process requirements is cured by the filing of a MR.27Thus, denial of due
Page 82 of 321
Administrative Law
process cannot be invoked by a party who has had the opportunity to be heard on his MR.28 Even
though petitioners never filed a MR, the fact that they were still given notice of Mallillins filing of a MR
and the opportunity to file their comments thereto makes immaterial ERCs failure to admit their
comment in the MAP2010 case. After all, petitioners allegations in their unfiled comment could have
still, easily and just as effectively, been raised in the MAP2010 case by incorporating the arguments in
the comment to be filed in the MR case. It must be remembered that the standard of due process
impressed upon administrative tribunals allows a certain degree of latitude as long as fairness is not
ignored.29
The opportunity granted by the ERC of, technically, allowing petitioners to finally be able to file their
comment in the case, resolves the procedural irregularity previously inflicted upon petitioners.
We find that there has been no denial of due process and that any irregularity in the premature
issuance of the assailed Decision has been remedied by the ERC through its Order which gave
petitioners the right to participate in the hearing of the MR filed by Mallillin.
Petitioners have Chosen the Wrong
Remedy and the Wrong Forum; the
Real Motive for Bringing Petition was
to Obtain an indefinite TRO, this the
Court cannot Countenance
Section 1, Rule 23 of the ERCS Rules of Procedure expressly provides for the remedy of filing a
motion for reconsideration, viz.:
A party adversely affected by a final order, resolution, or decision of the Commission rendered in an
adjudicative proceeding may, within fifteen (15) days from receipt of a copy thereof, file a motion for
reconsideration. In its motion, the movant may also request for reopening of the proceeding for the
purpose of taking additional evidence in accordance with Section 17 of Rule 18. No more than one
motion for reconsideration by each party shall be entertained.
Rule 65 of the Rules of Civil Procedure provides that a petition for certiorari may be filed when there is
no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. The plain and
adequate remedy referred to in Rule 65 is a motion for reconsideration of the assailed
decision.30 Thus, it is a well-settled rule that the filing of a motion for reconsideration is a
condition sine qua nonbefore the filing of a special civil action for certiorari.31 The purpose of this rule
is to give the lower court the opportunity to correct itself. 32 However, this requirement is not an ironclad
rule. The prior filing of a motion for reconsideration may be dispensed with if petitioners are able to
show a concrete, compelling, and valid reason for doing so.33 The Court may brush aside the
procedural barrier and take cognizance of the petition if it raises an issue of paramount importance and
constitutional significance.34 Thus:
True, we had, on certain occasions, entertained direct recourse to this Court as an exception to the
rule on hierarchy of courts. In those exceptional cases, however, we recognized an exception because
it was dictated by public welfare and the advancement of public policy, or demanded by the broader
interest of justice, or the orders complained of were found to be patent nullities, or the appeal was
considered as clearly an inappropriate remedy.35

Page 83 of 321
Administrative Law
Petitioners claim that they did not file any motion for reconsideration with the ERC in order to prevent
the imminent miscarriage of justice, that the issue involves the principles of social justice, that the
Decision sought to be set aside is a patent nullity and that the need for relief therefore is extremely
urgent36; because they believe that the same would be a futile exercise considering that the ERC had
blatantly disregarded the Supreme Court directive to consider the last increase of Meralco as
provisional until ERC has taken action on the COA Audit Report; 37 and because an appeal would be
slow, inadequate, and insufficient.38
They also claim that the direct resort to the Supreme Court resorted to by them is in order to timely
prevent a grave injustice to the 4.3 million customers of Meralco who stand to suffer by reason of a
patently void decision by ERC which would result in additional monthly billing of at least half a billion
pesos;39 because time is of the essence; and because transcendental constitutional issues are
involved in this case.40
Petitioners further argue that their decision to go directly to this Court is justified because of the
number of consumers affected by the said Decision; because the amount involved in the controversy is
so huge (P605.25 million [plus 12% VAT] additional billing per month); because it is violative of the
provisions of EPIRA; because it is contrary to the constitutional provisions on social justice, and
because it is in utter disregard of the COA Audit Report.41
We do not uphold petitioners arguments on this matter.
In Cervantes v. CA,42 this Court ruled:
It must be emphasized that a writ of certiorari is a prerogative writ, never demandable as a matter of
right, never issued except in the exercise of judicial discretion. Hence, he who seeks a writ
of certiorari must apply for it only in the manner and strictly in accordance with the provisions of the law
and the Rules. Petitioner may not arrogate to himself the determination of whether a motion for
reconsideration is necessary or not. To dispense with the requirement of filing a motion for
reconsideration, petitioner must show a concrete, compelling, and valid reason for doing so, which
petitioner failed to do. Thus, the Court of Appeals correctly dismissed the petition.
The general statements used by Petitioner to excuse their direct recourse to this Court are not the
concrete, compelling, and valid reasons required by jurisprudence to justify their failure to comply
with the mandated procedural requirements. In addition to this, the urgency of the resolution of
matters raised by petitioners is negated, by the fact that rates approved by the ERC, in the exercise of
its rate-fixing powers, are in a sense, inherently only provisional.
Furthermore, this Court finds that the real motive behind the filing of the present Petition is to obtain an
indefinite TRO and this, the Court cannot countenance. Section 9, Rule 58 of the Rules of Court
provides the rules for permanent injunctions, to wit:
Sec. 9. When final injunction granted.
If after the trial of the action it appears that the applicant is entitled to have the act or acts complained
of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or
person enjoined from the commission or continuance of the act or acts or confirming the preliminary
mandatory injunction.

Page 84 of 321
Administrative Law
Petitioners assert that this Court should issue a TRO because of the huge amount that would unduly
burden the consumers with the continued application of the MAP2010 rates. According to petitioners,
if not stayed, the present financial hardships of 4.3 million MERALCO customers due to the global
financial meltdown and the recent calamities in the country will surely further worsen. Petitioners also
claim that there is an extreme urgency to secure a TRO, considering that the assailed Decision is
immediately executory.
The purpose of a TRO is to prevent a threatened wrong and to protect the property or rights involved
from further injury, until the issues can be determined after a hearing on the merits.43 Under Section 5,
Rule 58 of the 1997 Rules of Civil Procedure, a TRO may be issued only if it appears from the facts
shown by affidavits or by a verified application that great or irreparable injury would be incurred by an
applicant before the writ of preliminary injunction could be heard.
If such irreparable injury would result from the non-issuance of the requested writ or if the extreme
urgency referred to by petitioners indeed exists, then they should have been more vigilant in
protecting their rights. As they have all been duly notified of the proceedings in the ERC case, they
should have appeared before the ERC and participated in the trials.
We find that petitioners erred in thinking that the non-issuance of the TRO they requested would put
consumers in danger of suffering an irreparable injury. But this asserted injury can be repaired,
because, had petitioners participated in the proceedings before the ERC and the latter had found merit
in their appeal, the undue increase in electric bills shall be refunded to the consumers.
All the other issues raised by petitioners in connection with the MAP2010 case are factual in nature
and should be raised before the ERC not before this Court. Allegations and issues in connection with
the rate increases under ERC Case No. 2008-018- RC and ERC Case No. 2008-004-RC, including the
question of whether Meralco improperly exceeded the 12% maximum rate of return provided by law,
are more properly to be disposed of in another pending case, G.R. No. 191150. 44
Before finally disposing of this case, we deem it proper to warn the ERC that it cannot give a deadline
to parties before it that it will not respect. Even though the ERC, as an administrative agency, is not
bound by the rigidity of certain procedural requirements, it is still bound by law and practice to observe
the fundamental and essential requirements of due process in justiciable cases presented before it.
WHEREFORE, the instant petition is hereby DISMISSED.
SO ORDERED.
Carpio (Chairperson), Leonardo-De Castro,** Brionand Perez, JJ., concur.
Petition dismissed.
Note.Case law teaches that a temporary restraining order will not issue if the act sought to be
enjoined is a fait accompli. (Air Transportation Office vs. Court of Appeals, 569 SCRA 584 [2008])

o0o

Page 85 of 321
Administrative Law

Page 86 of 321
Administrative Law
Case 4
G.R. No. 182967. April 6, 2011.*
PHILIPPINE NATIONAL RAILWAYS, petitioner, vs.KANLAON CONSTRUCTION ENTERPRISES
CO., INC., respondent.
Contracts; Commission on Audit (COA); Requirements before contracts involving the expenditure of
public funds may be entered into; Failure to comply with any of these two requirements renders the
contract void.The Administrative Code of 1987 expressly prohibits the entering into contracts
involving the expenditure of public funds unless two prior requirements are satisfied. First, there must
be an appropriation law authorizing the expenditure required in the contract. Second, there must be
attached to the contract a certification by the proper accounting official and auditor that funds have
been appropriated by law and such funds are available. Failure to comply with any of these two
requirements renders the contract void.
Same; Same; The two requirementsare conditions sine qua non for the execution of government
contracts.In several cases, the Court had the occasion to apply these provisions of the
Administrative Code of 1987 and the Government Auditing Code of the Philippines. In these cases, the
Court clearly ruled that the two requirementsthe existence of appropriation and the attachment of the
certificationare conditions sine qua non for the execution of government contracts.
Same; Same; The clear purpose of these requirements is to insure that government contracts are
never signed unless supported by the corresponding appropriation law and fund availability.The law
expressly declares void a contract that fails to comply with the two requirements, namely, an
appropriation law funding the contract and a certification of appropriation and fund availability. The
clear purpose of these requirements is to insure that government contracts are never signed unless
supported by the corresponding appropriation law and fund availability.
Same; Same; The officer or officers entering into the contract shall be liable to the Government or
other contracting party for any consequent damage to the same extent as if the transaction had been
wholly between private parties.Kanlaon is not left without recourse. The law itself affords it the
remedy. Section 48 of the Administrative Code of 1987 provides that the officer or officers entering
into the contract shall be liable to the Government or other contracting party for any consequent
damage to the same extent as if the transaction had been wholly between private parties. Kanlaon
could go after the officers who signed the contract and hold them personally liable.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Estrada, Marzan for petitioner.
Young, Revilla, Gambol & Magat for respondent.
CARPIO, J.:
The Case
This is a petition for review1 of the 26 February 2008 Decision2 and 26 May 2008 Resolution3 of the
Court of Appeals in CA-G.R. CV No. 70205. In its 26 February 2008 Decision, the Court of Appeals
affirmed the 12 December 2000 Decision,4 as amended by the 22 February 2001 Order, 5 of the
Page 87 of 321
Administrative Law
Regional Trial Court of Quezon City, Branch 221 (trial court), directing petitioner Philippine National
Railways (PNR) to pay respondent Kanlaon Construction Enterprises Co., Inc. (Kanlaon) the remaining
balance of the contracts and to release the retention money. In its 26 May 2008 Resolution, the Court
of Appeals denied PNRs motion for reconsideration.
The Facts
In July 1990, PNR and Kanlaon entered into contracts for the repair of three PNR station buildings and
passenger shelters, namely: 1) College Station for P2,316,568.41; 6 2) Bian Station for
P2,547,978.63;7 and 3) Buendia Station for P1,820,534.40.8 The total cost of the three projects was
P6,685,081.44. By November 1990, Kanlaon alleged that it had already completed the three projects. 9
On 30 June 1994, Kanlaon sent a demand letter to PNR requesting for the release of the retention
money in the amount of P333,894.07.10
In a letter dated 12 July 1994,11 PNR denied Kanlaons demand because of the 24 January 1994
Notices of Suspension12 issued by the Commission on Audit (COA).
On 8 November 1994, Kanlaon filed a complaint for collection of sum of money plus damages against
PNR.13Kanlaon sought to recover from PNR a total of P865,906.79 consisting of the remaining
balance of the three projects in the amount of P531,652.7214 and the retention money in the amount of
P334,254.07. In its amended complaint dated 17 August 1995, Kanlaon impleaded the COA.15
In its answer, PNR admitted the existence of the three contracts but alleged that Kanlaon did not
comply with the conditions of the contract. PNR also alleged that Kanlaon did not complete the
projects and that PNR did not have any unpaid balance. PNR added that it had a valid ground to
refuse the release of the retention money because of the COA orders suspending the release of
payment to Kanlaon.
In its 12 December 2000 Decision, the trial court ruled in favor of Kanlaon. The dispositive portion of
the 12 December 2000 Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff [Kanlaon]
and against the herein defendants [PNR and COA]. Accordingly, defendant PNR is ordered to pay the
plaintiff the following amount[s]:
1. P333,894.07 representing the unreleased retention money plus legal interest at 12% per
annum computed from the date of the first written demand; [and]
2. P531,652.72 representing the unpaid contract price for the completed projects plus legal interest
of 12% per annumcomputed from the date of the first written demand.
Defendant COA is absolved of any liability for actual damages or moral damages.
However, both defendant PNR and defendant COA are solidarily liable for reasonable attorneys fees
in the amount of P50,000.00 and cost of suit.
SO ORDERED.16
On 28 December 2000, COA appealed. On 9 January 2001, PNR filed a motion for reconsideration.
In its 22 February 2001 Order, the trial court modified its 12 December 2000 Decision and fixed the
interest rate from twelve percent to six percent per annum from the date of the first written demand.
Page 88 of 321
Administrative Law
PNR and COA appealed to the Court of Appeals.
In its 26 February 2008 Decision, the Court of Appeals affirmed the trial courts 12 December 2000
Decision, as amended by its 22 February 2001 Order.
PNR filed a motion for reconsideration.
In its 26 May 2008 Resolution, the Court of Appeals denied PNRs motion.
The Ruling of the Trial Court
The trial court found that Kanlaon completed the projects and that it was entitled to payment in full of
the contract price, as well as the release of the retention money. The trial court declared the PNR
ledger, which was the only documentary evidence presented by PNR to show that the projects were
not completed, to be self-serving and unverified. The trial court declared that PNR failed to present any
credible and substantial evidence that Kanlaon failed to complete the projects. Moreover, the trial court
stated that COA suspended payment because PNR failed to comply with certain conditions and not
because Kanlaon did not complete the projects. The trial court also took judicial notice of the fact that
the PNR stations at College, Bian and Buendia are fully operational and have been continuously used
by PNR and the riding public. The trial court absolved COA from actual and moral damages because
there was no contractual relations between COA and Kanlaon and it was not shown that COA acted in
bad faith or with malice or gross negligence when it issued the Notices of Suspension.
The Ruling of the Court of Appeals
The Court of Appeals sustained the trial courts ruling that PNR was liable for the remaining balance of
the contract price and the retention money. The Court of Appeals agreed with the trial court that the
preponderance of evidence leaned in favor of Kanlaons claim against PNR and that there was nothing
on record which supports PNRs allegation that Kanlaon failed to complete the project. The Court of
Appeals said the only reason PNR refused to pay Kanlaon was because of COAs Notices of
Suspension and not Kanlaons non-completion of the projects. However, the Court of Appeals held that
COA is not liable for attorneys fees and costs of the suit for lack of factual and legal bases.
The Issues
PNR raises the following issues:
I. The Court of Appeals erred in finding that the projects were completed.
II. The Court of Appeals erred in affirming the 12 December 2000 Decision of the trial court, as
modified by the Order dated February 22, 2001.
III. The Court of Appeals erred in ruling that interest should be reckoned from the date of
respondents first written demand.17
The Ruling of the Court
The petition is meritorious.
The Court notes that one of the reasons the COA issued the Notices of Suspension was because the
contracts did not contain a Certificate of Availability of Funds as required under Sections 85 and 86 of
Presidential Decree No. 1445.18Kanlaon does not dispute the absence of a Certificate of Availability of
Funds.
Page 89 of 321
Administrative Law
The Administrative Code of 1987, a more recent law, also contains the same provisions. Sections 46,
47, and 48, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987 provide:
SECTION 46. Appropriation Before Entering into Contract.
(1) No contract involving the expenditure of public funds shall be entered into unless there is an
appropriation therefor, the unexpended balance of which, free of other obligations, is sufficient to cover
the proposed expenditure; and
(2) Notwithstanding this provision, contracts for the procurement of supplies and materials to be
carried in stock may be entered into under regulations of the Commission provided that when issued,
the supplies and materials shall be charged to the proper appropriations account.
SECTION 47. Certificate Showing Appropriation to Meet Contract.Except in the case of a contract
for personal service, for supplies for current consumption or to be carried in stock not exceeding the
estimated consumption for three (3) months, or banking transactions of government-owned or
controlled banks, no contract involving the expenditure of public funds by any
government agency shall be entered into or authorized unless the proper accounting official of
the agency concerned shall have certified to the officer entering into the obligation that funds
have been duly appropriated for the purpose and that the amount necessary to cover the
proposed contract for the current calendar year is available for expenditure on account thereof,
subject to verification by the auditor concerned. The certificate signed by the proper accounting official
and the auditor who verified it, shall be attached to and become an integral part of the proposed
contract, and the sum so certified shall not thereafter be available for expenditure for any other
purpose until the obligation of the government agency concerned under the contract is fully
extinguished.
SECTION 48. Void Contract and Liability of Officer.Any contract entered into contrary to the
requirements of the two (2) immediately preceding sections shall be void, and the officer or
officers entering into the contract shall be liable to the Government or other contracting party for any
consequent damage to the same extent as if the transaction had been wholly between private parties.
(Emphasis supplied)
Thus, the Administrative Code of 1987 expressly prohibits the entering into contracts involving the
expenditure of public funds unless two prior requirements are satisfied. First, there must be an
appropriation law authorizing the expenditure required in the contract. Second, there must be attached
to the contract a certification by the proper accounting official and auditor that funds have been
appropriated by law and such funds are available. Failure to comply with any of these two
requirements renders the contract void.
In several cases,19 the Court had the occasion to apply these provisions of the Administrative Code of
1987 and the Government Auditing Code of the Philippines. In these cases, the Court clearly ruled that
the two requirementsthe existence of appropriation and the attachment of the certificationare
conditions sine qua non for the execution of government contracts.
In COMELEC v. Quijano-Padilla,20 we stated:
It is quite evident from the tenor of the language of the law that the existence of appropriations and
the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution

Page 90 of 321
Administrative Law
of government contracts. The obvious intent is to impose such conditions as a priori requisites to the
validity of the proposed contract.21
The law expressly declares void a contract that fails to comply with the two requirements, namely, an
appropriation law funding the contract and a certification of appropriation and fund availability.22 The
clear purpose of these requirements is to insure that government contracts are never signed unless
supported by the corresponding appropriation law and fund availability. 23
The three contracts between PNR and Kanlaon do not comply with the requirement of a certification of
appropriation and fund availability. Even if a certification of appropriation is not applicable to PNR if the
funds used are internally generated, still a certificate of fund availability is required. Thus, the three
contracts between PNR and Kanlaon are void for violation of Sections 46, 47, and 48, Chapter 8,
Subtitle B, Title I, Book V of the Administrative Code of 1987, as well as Sections 85, 86, and 87 of the
Government Auditing Code of the Philippines.
However, Kanlaon is not left without recourse. The law itself affords it the remedy. Section 48 of the
Administrative Code of 1987 provides that the officer or officers entering into the contract shall be
liable to the Government or other contracting party for any consequent damage to the same extent as
if the transaction had been wholly between private parties. 24 Kanlaon could go after the officers who
signed the contract and hold them personally liable.
WHEREFORE, we GRANT the petition. We REVERSE and SET ASIDE the 26 February 2008
Decision and 26 May 2008 Resolution of the Court of Appeals in CA-G.R. CV No. 70205.
SO ORDERED.
Peralta, Abad and Mendoza, JJ., concur.
Sereno, J.,** Please see also Concurring Opinion.
CONCURRING OPINION
SERENO, J.:
I fully agree that contracts of government agencies without the proper appropriation and the
accompanying Certificate of Availability of Funds are void for being contrary to law. In the case of
government corporations, of course, the first requirement is not imposable. However, it must be noted
that this rule notwithstanding, recovery for unpaid services or sale of goods may still be had, as we
enunciated in Vigilar v. Aquino,1 Royal Trust Corporation v. COA,2 Eslao v. COA,3Melchor v.
COA,4 EPG Construction Company v. Vigilar,5and Department of Health v. C.V. Canchela &
Associates, Architects.6 Public interest and equity may dictate that the contractor should be
compensated for services rendered and work done that benefited the government and the public.7 In
the instant case, considering that respondent has already been paid the equivalent of around eighty
seven (87%) percent of the total contract price, the application of equity principles do not seem to be
as imperative as in the cases earlier cited. There is no reason to remand the case for reception of
evidence to determine quantum meruit, which is the default solution when the contract supporting the
services rendered has been declared void. Had payment to respondent been significantly less as to
amount to unjust enrichment on the part of government, I may have had to disagree with the ponencia.
Petition granted, judgment and resolution reversed and set aside.

Page 91 of 321
Administrative Law
Note.The responsible public officials are personally liable for disallowed disbursement by virtue of
their position as such officials accountable for public funds. (Sanchez vs. Commission on Audit, 552
SCRA 471 [2008])

o0o

Page 92 of 321
Administrative Law
Case 5
G.R. No. 173034. October 9, 2007.*
PHARMACEUTICAL and HEALTH CARE ASSOCIATION of the PHILIPPINES,
petitioner, vs. HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDERSECRETARIES
DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR.
JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID
J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.
Judicial Review; Locus Standi; Associations; An organization has standing to assert the concerns of its
constituentsit is but the medium through which its individual members seek to make more effective
the expression of their voices and the redress of their grievances.With regard to the issue of whether
petitioner may prosecute this case as the real party-in-interest, the Court adopts the view enunciated
in Executive Secretary v. Court of Appeals, 429 SCRA 81 (2004), to wit: The modern view is that an
association has standing to complain of injuries to its members. This view fuses the legal identity of an
association with that of its members. An association has standing to file suit for its workers
despite its lack of direct interest if its members are affected by the action. An organization has
standing to assert the concerns of its constituents. x x x x x x x We note that, under its Articles of
Incorporation, the respondent was organized x x x to act as the representative of any individual,
company, entity or association on matters related to the manpower recruitment industry, and to
perform other acts and activities necessary to accomplish the purposes embodied therein.
The respondent is, thus, the appropriate party to assert the rights of its members, because it
and its members are in every practical sense identical. x x x The respondent [association] is but
the medium through which its individual members seek to make more effective the expression
of their voices and the redress of their grievances (Emphasis supplied), which was reasserted
in Purok Bagong Silang Association, Inc. v. Yuipco, 489 SCRA 382 (2006), where the Court ruled that
an association has the legal personality to represent its members because the results of the case will
affect their vital interests.
International Law; Treaties; Doctrine of Incorporation and Doctrine of Transformation; Words and
Phrases; Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation; Treaties become part of the law of the land through
transformation pursuant to Article VII, Section 21 of the Constitution.Under the 1987 Constitution,
international law can become part of the sphere of domestic law either
by transformation or incorporation. The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law. Treaties become part of the law of the land
through transformation pursuant to Article VII, Section 21 of the Constitution which provides that [n]o
treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds
of all the members of the Senate. Thus, treaties or conventional international law must go through a
process prescribed by the Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts.
Same; Same; Same; Milk Code (E.O. No. 51); World Health Assembly (WHA); International Code of
Marketing of Breastmilk Substitutes (ICMBS); Advertisements; While the International Code of
Marketing of Breastmilk Substitutes (ICMBS) and World Health Assembly (WHA) Resolutions are not
Page 93 of 321
Administrative Law
treaties as they have not been concurred in by at least two-thirds of all members of the Senate, the
International Code of Marketing of Breastmilk Substitutes (ICMBS) which was adopted by the World
Health Assembly (WHA) in 1981 had been transformed into domestic law through local legislation,
theMilk Code; The Milk Code is almost a verbatim reproduction of the International Code of Marketing
of Breastmilk Substitutes (ICMBS), but the Code did not adopt the provision in the International Code
of Marketing of Breastmilk Substitutes (ICMBS) absolutely prohibiting advertising or other forms of
promotion to the general public of products within the scope of the International Code of Marketing of
Breastmilk Substitutes (ICMBS).The ICMBS and WHA Resolutions are not treaties as they have not
been concurred in by at least two-thirds of all members of the Senate as required under Section 21,
Article VII of the 1987 Constitution. However, the ICMBS which was adopted by the WHA in 1981 had
been transformed into domestic law through local legislation, the Milk Code. Consequently, it is the
Milk Code that has the force and effect of law in this jurisdiction and not the ICMBS per se. The Milk
Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the
Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of
promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials may be allowed if
such materials are duly authorized and approved by the Inter-Agency Committee (IAC).
Same; Same; Same; Generally Accepted Principles of Law;Section 2, Article II of the 1987
Constitution, whereby the Philippines adopts the generally accepted principles of international law as
part of the law of the land, embodies the incorporation method.Section 2, Article II of the 1987
Constitution, to wit: SECTION 2. The Phil-ippines 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 all
nations (Emphasis supplied), embodies the incorporation method.
Same; Same; Same; Same; Words and Phrases; Generally accepted principles of international law, by
virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do
not derive from treaty obligations; Generally accepted principles of international law refers to norms
of general or customary international law which are binding on all states, i.e., renunciation of war as an
instrument of national policy, the principle of sovereignimmunity, a persons right to life, liberty and due
process, and pacta sunt servanda, among others.In Mijares v. Ranada, 455 SCRA 399 (2005) the
Court held thus: [G]enerally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules accepted
as bindingresult from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinion
juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that
the practice in question is rendered obligatory by the existence of a rule of law requiring it.
(Emphasis supplied) Generally accepted principles of international law refers to norms of general or
customary international law which are binding on all states, i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity, a persons right to life, liberty and due process,
and pacta sunt servanda, among others. The concept of generally accepted principles of law has
also been depicted in this wise: Some legal scholars and judges look upon certain general principles
of law as a primary source of international law because they have the character of jus rationale
and are valid through all kinds of human societies. (Judge Tanaka in his dissenting opinion in
the 1966 South West Africa Case, 1966 I.C.J. 296). OConnell holds that certain priniciples are part of
Page 94 of 321
Administrative Law
international law because they are basic to legal systems generally and hence part of the jus
gentium. These principles, he believes, are established by a process of reasoning based on the
common identity of all legal systems. If there should be doubt or disagreement, one must look to state
practice and determine whether the municipal law principle provides a just and acceptable solution. x x
x (Emphasis supplied)
Same; Same; Same; Same; Same; Customary International Law; Custom or customary international
law means a general and consistent practice of states followed by them from a sense of legal
obligation [opinio juris], which statement contains the two basic elements of custom: the material
factor, that is, how states behave, and, the psychological or subjective factor, that is, why they behave
the way they do; Customary international law is deemed incorporated into our domestic system.Fr.
Joaquin G. Bernas defines customary international law as follows: Custom or customary international
law means a general and consistent practice of states followed by them from a sense of legal
obligation [opinio juris]. (Restatement) This statement contains the two basic elements of custom:
thematerial factor, that is, how states behave, and the psychological or subjective factor, that
is, why they behave the way they do. x x x x The initial factor for determining the existence of
custom is the actual behavior of states. This includes several elements: duration, consistency, and
generality of the practice of states. The required duration can be either short or long. x x x x x x x
Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x x x x x Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they do. Do states behave the way they
do because they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes
practice an international rule. Without it, practice is not law. (Italics and Emphasis supplied) Clearly
customary international law is deemed incorporated into our domestic system.
Same; Same; Same; Same; Milk Code (E.O. No. 51); World Health Assembly (WHA); While
regulations, along with conventions and agreements, duly adopted by the World Health Assembly
(WHA) bind member states, recommendations of the World Health Assembly (WHA) do not come into
force for members, in the same way that conventions or agreements and regulations come into
force.Regulations, along with conventions and agreements, duly adopted by the WHA bind member
statesthus: x x x On the other hand, under Article 23, recommendationsof the WHA do not come
into force for members, in the same way that conventions or agreements under Article 19
and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads: Article
23. The Health Assembly shall have authority to make recommendations to Members with respect
to any matter within the competence of the Organization. (Emphasis supplied) The absence of a
provision in Article 23 of any mechanism by which the recommendation would come into force for
member states is conspicuous.
Same; Same; Same; Same; Same; Same; International Code of Marketing of Breastmilk Substitutes
(ICMBS); Unlike what has been done with the International Code of Marketing of Breastmilk
Substitutes (ICMBS) whereby the legislature enacted most of the provisions into law which is the Milk
Code, the subsequent World Health Assembly (WHA) Resolutions, specifically providing for exclusive
breast-feeding from 0-6 months, continued breastfeeding up to 24 months, and absolutely prohibiting
advertisements and promotions of breast-milk substitutes, have not been adopted as a domestic
law.The WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member
states to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike
Page 95 of 321
Administrative Law
what has been done with the ICMBS whereby the legislature enacted most of the provisions
into law which is the Milk Code, the subsequent WHA Resolutions, specifically providing for
exclusive breastfeeding from 0-6 months, continued breastfeed-ing up to 24 months, and
absolutely prohibiting advertisements and promotions of breastmilk substitutes, have not been
adopted as a domestic law.
Same; Same; Same; Same; Same; Same; Same; Soft Law;Words and Phrases; While soft law does
not fall into any of the categories of international law set forth in Article 38, Chapter III of the 1946
Statute of the International Court of Justice, it is, however, an expression of non-binding norms,
principles, and practices that influence state behavior.It is propounded that WHA Resolutions may
constitute soft law or non-binding norms, principles and practices that influence state behavior. Soft
law does not fall into any of the categories of international law set forth in Article 38, Chapter III of the
1946 Statute of the International Court of Justice. It is, however, an expression of non-binding norms,
principles, and practices that influence state behavior. Certain declarations and resolutions of the UN
General Assembly fall under this category. The most notable is the UN Declaration of Human Rights,
which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia, 521 SCRA 470 (2007); Mejoff v. Director of Prisons, 90 Phil.
70, Mijares v. Raada, 455 SCRA 397 (2005), and Shangri-la International Hotel Management, Ltd. v.
Developers Group of Companies, Inc., 486 SCRA 405 (2006).
Same; Same; Same; Same; Same; Same; Same; Administrative Law; The provisions of the World
Health Assembly (WHA) Resolutions cannot be considered as part of the law of the land that can be
implemented by executive agencies without the need of a law enacted by the legislature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land. Consequently, legislation is
necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of
the WHA Resolutions cannot be considered as part of the law of the land that can be
implemented by executive agencies without the need of a law enacted by the legislature.
Administrative Law; Milk Code; Health; Breastfeeding;Breast-milk
Substitutes; Advertisements; National Health Policy (A.O. No. 2005-0014); The primacy of
breastfeeding for children is emphasized as a national health policy but nowhere in A.O. No. 2005-
0014 is it declared that as part of such health policy, the advertisement or promotion of breastmilk
substitutes should be absolutely prohibited; The national policy of protection, promotion and support of
breast-feeding cannot automatically be equated with a total ban on advertising for breastmilk
substitutes; In view of the enactment of the Milk Code which does not contain a total ban on the
advertising and promotion of breastmilk substitutes, it follows that a total ban policy could be
implemented only pursuant to a law amending the Milk Code passed by the constitutionally authorized
branch of government, the legislatureonly the provisions of the Milk Code, but not those of
subsequent World Health Assembly (WHA) Resolutions, can be validly implemented by the
Department of Health (DOH).Respondents submit that the national policy on infant and young child
feeding is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order
declared the following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeed-ing, exclusive breastfeeding for the first six months, extended breast-feeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start at age six months; (3)
micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding options;
and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for
Page 96 of 321
Administrative Law
children is emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it
declared that as part of such health policy, the advertisement or promotion of breastmilk substitutes
should be absolutely prohibited. The national policy of protection, promotion and support of
breastfeeding cannot automatically be equated with a total ban on advertising for breastmilk
substitutes. In view of the enactment of the Milk Code which does not contain a total ban on the
advertising and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will
regulate said advertising and promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch of
government, the legislature. Thus, only the provisions of the Milk Code, but not those of subsequent
WHA Resolutions, can be validly implemented by the DOH through the subject RIRR.
Same; Same; Same; Same; Same; The coverage of the Milk Code is not dependent on the age of the
child but on the kind of product being marketed to the public.The coverage of the Milk Code is not
dependent on the age of the child but on the kind of product being marketed to the public. The law
treats infant formula, bottle-fed complementary food, and breastmilk substitute as separate and distinct
product categories.
Same; Same; Same; Same; Same; Statutory Construction; The entirety of the Revised Implementing
Rules and Regulations (RIRR), not merely truncated portions thereof, must be considered and
construed togetherthe particular words, clauses and phrases in the Rule should not be studied as
detached and isolated expressions, but the whole and every part thereof must be considered in fixing
the meaning of any of its parts and in order to produce a harmonious whole; The Revised
Implementing Rules and Regulations (RIRR), just like the Milk Code, also recognizes that in certain
cases, the use of breastmilk substitutes may be proper.It is also incorrect for petitioner to say that
the RIRR, unlike the Milk Code, does not recognize that breastmilk substitutes may be a proper and
possible substitute for breastmilk. The entirety of the RIRR, not merely truncated portions thereof, must
be considered and construed together. As held in De Luna v. Pascual, 495 SCRA 42 (2006), [t]he
particular words, clauses and phrases in the Rule should not be studied as detached and isolated
expressions, but the whole and every part thereof must be considered in fixing the meaning of any of
its parts and in order to produce a harmonious whole. Section 7 of the RIRR provides that when
medically indicated and only when necessary, the use of breastmilk substitutes is proper if based
on complete and updated information. Section 8 of the RIRR also states that information and
educational materials should include information on the proper use of infant formula when the use
thereof is needed. Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases,
the use of breastmilk substitutes may be proper.
Same; Same; Same; Same; Same; Advertisements; Police Power; Health is a legitimate subject
matter for regulation by the Department of Health (DOH) (and certain other administrative agencies) in
exercise of police powers delegated to it; Health information, particularly advertising materials on
apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area for
regulation by the Department of Health (DOH).Health is a legitimate subject matter for regulation by
the DOH (and certain other administrative agencies) in exercise of police powers delegated to it. The
sheer span of jurisprudence on that matter precludes the need to further discuss it.However, health
information, particularly advertising materials on apparently non-toxic products like breast-milk
substitutes and supplements, is a relatively new area for regulation by the DOH.
Same; Same; Same; Same; Same; Same; The Department of Healths (DOHs) power under the Milk
Code to control information regarding breastmilk vis--vis breastmilk substitutes is not absolute as the
Page 97 of 321
Administrative Law
power to control does not encompass the power to absolutely prohibit the advertising, marketing, and
promotion of breastmilk substitutes.When it comes to information regarding nutrition of infants and
young children, the Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as
DOH) the power to ensure that there is adequate, consistent and objective information on
breastfeeding and use of breastmilk substitutes, supplements and related products; and the power
to control such information. These are expressly provided for in Sections 12 and 5(a), to wit: x x x
Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis--visbreastmilk substitutes, supplement and related products, in the following manner: x
x x The DOH is also authorized to control the purpose of the information and to whom such information
may be disseminated under Sections 6 through 9 of the Milk Code to ensure that the information that
would reach pregnant women, mothers of infants, and health professionals and workers in the health
care system is restricted to scientific and factual matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It bears emphasis, however, that the DOHs
power under the Milk Code to control information regarding breastmilk vis--vis breastmilk
substitutes is not absolute as the power to control does not encompass the power to absolutely
prohibit the advertising, marketing, and promotion of breastmilk substitutes.
Same; Same; Same; Same; Same; Same; Section 26(c) of the Revised Implementing Rules and
Regulations (RIRR) which requires containers and labels to state that the product offered is not a
substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and
deterring circumvention of the protection and promotion of breastfeeding as embodied in Section 2 of
the Milk Code.It may be argued that Section 8 of the Milk Code refers only to information given to
health workers regarding breastmilk substitutes, not to containers and labels thereof. However, such
restrictive application of Section 8(b) will result in the absurd situation in which milk companies and
distributors are forbidden to claim to health workers that their products are substitutes or equivalents of
breastmilk, and yet be allowed to display on the containers and labels of their products the exact
opposite message. That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof
seeks to avoid by mandating that all information regarding breast-milk vis--vis breastmilk substitutes
be consistent, at the same time giving the government control over planning, provision, design, and
dissemination of information on infant feeding. Thus, Section 26(c) of the RIRR which requires
containers and labels to state that the product offered is not a substitute for breastmilk, is a reasonable
means of enforcing Section 8(b) of the Milk Code and deterring circumvention of the protection and
promotion of breastfeeding as embodied in Section 2 of the Milk Code.
Same; Same; Same; Same; Same; Same; The requirement under Section 26(f) of the Revised
Implementing Rules and Regulations (RIRR) for the label to contain the message regarding health
hazards including the possibility of contamination with pathogenic microorganisms is in accordance
with Section 5(b) of the Milk Code.The label of a product contains information about said product
intended
for the buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of
the RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being present
in infant formula and other related products when these are prepared and used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
contaminations and there is as yet no technology that allows production of powdered infant formula
that eliminates all forms of contamination. Ineluctably, the requirement under Section 26(f) of the RIRR

Page 98 of 321
Administrative Law
for the label to contain the message regarding health hazards including the possibility of contamination
with pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.
Same; Same; Same; Same; Same; Same; The Department of Health (DOH) evidently arrogated to
itself not only the regulatory authority given to the Inter-Agency Committee (IAC) but also imposed
absolute prohibition on advertising, promotion, and marketing.Section 11 of the RIRR, to wit:
SECTION 11. Prohibition.No advertising, promotions, sponsorships, or marketing materials and
activities for breastmilk substitutes intended for infants and young children up to twenty-four (24)
months, shall be allowed, because they tend to convey or give subliminal messages or impressions
that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or
replacements, as well as related products covered within the scope of this Code, prohibits advertising,
promotions, sponsorships or marketing materials and activities for breastmilk substitutes in line with
the RIRRs declaration of principle under Section 4(f), to wit: SECTION 4. Declaration of Principles.x
x x x (f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other
related products are prohibited. The DOH, through its co-respondents, evidently arrogated to itself not
only the regulatory authority given to the IAC but also imposed absolute prohibition on advertising,
promotion, and marketing. Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the
Milk Code in Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Same; Same; Same; Same; Same; Same; Sections 11 and 4(f) of the Revised Implementing Rules
and Regulations (RIRR) are clearly violative of the Milk Code.Sections 11 and 4(f) of the RIRR are
clearly violative of the Milk Code. However, although it is the IAC which is authorized to promulgate
rules and regulations for the approval or rejection of advertising, promotional, or other marketing
materials under Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof
which in turn provides that the rules and regulations must be pursuant to the applicable standards
provided for in this Code. Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code,
which, at the risk of being repetitious, and for easy reference.
Same; Same; Same; Same; Same; Same; The Department of Health (DOH) has the significant
responsibility to translate into operational terms the standards set forth in Sections 5, 8, and 10 of the
Milk Code, by which the Inter-Agency Committee (IAC) shall screen advertising, promotional, or other
marketing materials.Section 12(b) of the Milk Code designates the DOH as the principal
implementing agency for the enforcement of the provisions of the Code. In relation to such
responsibility of the DOH, Section 5(a) of the Milk Code states that: SECTION 5. Information and
Education.(a) The government shall ensure that objective and consistent information is provided
on infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information, and the
control thereof, on infant nutrition. (Emphasis supplied) Thus, the DOH has the significant
responsibility to translate into operational terms the standards set forth in Sections 5, 8, and 10
of the Milk Code, by which the IAC shall screen advertising, promotional, or other marketing
materials.
Same; Same; Same; Same; Same; Same; The total effect standards set out in Section 13 of the
Revised Implementing Rules and Regulations (RIRR) bind the Inter-Agency Committee (IAC) in
formulating its rules and regulations on advertising, promotion, and marketing.It is pursuant to such
responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as follows:
SECTION 13. Total Effect.Promotion of products within the scope of this Code must be objective
Page 99 of 321
Administrative Law
and should not equate or make the product appear to be as good or equal to breastmilk or
breastfeeding in the advertising concept. It must not in any case undermine breast-milk or
breastfeeding. The total effect should not directly or indirectly suggest that buying their product would
produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner
bring better health to the baby or other such exaggerated and unsubstantiated claim. Such standards
bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through
that single provision, the DOH exercises control over the information content of advertising,
promotional and marketing materials on breastmilk vis--vis breastmilk substitutes, supplements and
other related products. It also sets a viable standard against which the IAC may screen such materials
before they are made public.
Same; Same; Same; Same; Same; Same; Correct information as to infant feeding and nutrition is
infused with public interest and welfare.In Equi-Asia Placement, Inc. vs. Department of Foreign
Affairs, 502 SCRA 295 (2006), the Court held: x x x [T]his Court had, in the past, accepted as sufficient
standards the following: public interest, justice and equity, public convenience and welfare, and
simplicity, economy and welfare. In this case, correct information as to infant feeding and nutrition is
infused with public interest and welfare.
Same; Same; Same; Same; Same; Same; Section 22 of the Revised Implementing Rules and
Regulations (RIRR) does not prohibit the giving of information to health professionals on scientific and
factual matterswhat it prohibits is the involvement of the manufacturer and distributor of the products
covered by the Code in activities for the promotion, education and production of Information, Education
and Communication (IEC) materials regarding breastfeeding that are intended for women and
children.Section 22 of the RIRR does not prohibit the giving of information to health
professionals on scientific and factual matters. What it prohibits is the involvement of the
manufacturer and distributor of the products covered by the Code in activities for the promotion,
education and production of Information, Education and Communication (IEC) materials regarding
breastfeeding that are intended for women and children. Said provision cannot be construed to
encompass even the dissemination of information to health professionals, as restricted by the
Milk Code.
Same; Same; Same; Same; Same; It is the Department of Health (DOH) which is principally
responsible for the implementation and enforcement of the provisions of said Codeit is entirely up to
the Department of Health (DOH) to decide which entities to call upon or allow to be part of
policymaking bodies on breastfeeding.Section 4(i) of the RIRR provides that milk companies and
their representatives should not form part of any policymaking body or entity in relation to the
advancement of breastfeeding. The Court finds nothing in said provisions which contravenes the Milk
Code. Note that under Section 12(b) of the Milk Code, it is the DOH which shall be principally
responsiblefor the implementation and enforcement of the provisions of said Code. It is entirely up to
the DOH to decide which entities to call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRRs prohibition on milk companies participation in any policymaking
body in relation to the advancement of breastfeeding is in accord with the Milk Code.
Same; Same; Same; Same; Same; The Milk Code endows the Department of Health (DOH) with the
power to determine how research or educational assistance may be given by milk companies or under
what conditions health workers may accept the assistance, thus, Sections 9 and 10 of the Revised
Implementing Rules and Regulations (RIRR) imposing limitations on the kind of research done or
extent of assistance given by milk companies are completely in accord with the Milk Code.Petitioner
Page 100 of 321
Administrative Law
is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving reasearch
assistance and continuing education to health professionals. Section 22 of the RIRR does not
pertain to research assistance to or the continuing education of health professionals; rather, it
deals with breastfeeding promotion and education for women and children. Nothing in Section 22 of
the RIRR prohibits milk companies from giving assistance for research or continuing education to
health professionals; hence, petitioners argument against this particular provision must be struck
down. It is Sections 9 and 10 of the RIRR which govern research assistance. Said sections of the
RIRR provide that research assistance for health workers and researchers may be allowed upon
approval of an ethics committee, and with certain disclosure requirements imposed on the milk
company and on the recipient of the research award. The Milk Code endows the DOH with the
power to determine how such research or educational assistance may be given by milk companies or
under what conditions health workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR
imposing limitations on the kind of research done or extent of assistance given by milk companies are
completely in accord with the Milk Code.
Same; Same; Same; Same; Same; The law does not proscribe the refusal of donations made by
manufacturers and distributors of breastmilk substitutesthe Milk Code leaves it purely to the
discretion of the Department of Health (DOH) whether to request or accept such donations.As to the
RIRRs prohibition on donations, said provisions are also consistent with the Milk Code. Section 6(f) of
the Milk Code provides that donations may be made by manufacturers and distributors of breastmilk
substitutes upon the request or with the approval of the DOH. The law does not proscribe the refusal of
donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept
such donations. The DOH then appropriately exercised its discretion through Section 51 of the RIRR
which sets forth its policy not to request or approve donations from manufacturers and distributors of
breastmilk substitutes. It was within the discretion of the DOH when it provided in Section 52 of the
RIRR that any donation from milk companies not covered by the Code should be coursed through the
IAC which shall determine whether such donation should be accepted or refused. As reasoned out by
respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no
person or entity can be forced to accept a donation. There is, therefore, no real inconsistency between
the RIRR and the law because the Milk Code does not prohibit the DOH from refusing donations.
Same; Same; Administrative Penalties; Since neither the Milk Code nor the Revised Administrative
Code grants the Department of Health (DOH) the authority to fix or impose administrative fines, then
the Department of Health (DOH) cannot provide for such fines in the Revised Implementing Rules and
Regulations (RIRR).In a more recent case, Perez v. LPG Refillers Association of the Philippines,
Inc., 492 SCRA 638 (2006), the Court upheld the Department of Energy (DOE) Circular No. 2000-06-
10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of
prohibited acts. The Court found that nothing in the circular contravened the law because the DOE was
expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties. In the present
case, neither the Milk Code nor the Revised Administrative Code grants the DOH the authority to fix or
impose administrative fines. Thus, without any express grant of power to fix or impose such fines, the
DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority
by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and
void.
Same; Same; Same; Non-Delegation of Powers; The express grant of rule-making power to an
administrive agency necessarily includes the power to amend, revise, alter, or repeal the same; It is a
Page 101 of 321
Administrative Law
standard provision in administrative rules that prior issuances of administrative agencies that are
inconsistent therewith are declared repealed or modified.Section 57 of the RIRR does not provide for
the repeal of laws but only orders, issuances and rules and regulations. Thus, said provision is valid as
it is within the DOHs rule-making power. An administrative agency like respondent possesses quasi-
legislative or rule-making power or the power to make rules and regulations which results in delegated
legislation that is within the confines of the granting statute and the Constitution, and subject to the
doctrine of non-delegability and separability of powers. Such express grant of rule-making power
necessarily includes the power to amend, revise, alter, or repeal the same. This is to allow
administrative agencies flexibility in formulating and adjusting the details and manner by which they
are to implement the provisions of a law, in order to make it more responsive to the times. Hence, it is
a standard provision in administrative rules that prior issuances of administrative agencies that are
inconsistent therewith are declared repealed or modified.
Same; Same; Regulation of Trade; The framers of the constitution were well aware that trade must be
subjected to some form of regulation for the public goodpublic interest must be upheld over business
interests.The framers of the constitution were well aware that trade must be subjected to some form
of regulation for the public good. Public interest must be upheld over business interests. In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority, 516 SCRA 360 (2007),
it was held thus: x x x Furthermore, as held in Association of Philippine Coconut Desiccators v.
Philippine Coconut Authority, despite the fact that our present Constitution enshrines free
enterprise as a policy, itnonetheless reserves to the government the power to intervene
whenever necessary to promote the general welfare. There can be no question that the
unregulated use or proliferation of pesticides would be hazardous to our environment. Thus, in the
aforecited case, the Court declared that free enterprise does not call for removal of protective
regulations. x x x It must be clearly explained and proven by competent evidence just exactly
how such protective regulation would result in the restraint of trade.[Emphasis and italics
supplied]
Same; Same; Words and Phrases; Since all the regulatory provisions under the Milk Code apply
equally to both manufacturers and distributors, the Court sees no harm in the Revised Implementing
Rules and Regulations (RIRR) providing for just one term to encompass both entitiesthe definition of
milk company in the Revised Implementing Rules and Regulations (RIRR) and the definitions of
distributor and manufacturer provided for under the Milk Code are practically the same.The
definition in the RIRR merely merged together under the term milk company the entities defined
separately under the Milk Code as distributor and manufacturer. The RIRR also enumerated in
Section 5(w) the products manufactured or distributed by an entity that would qualify it as a milk
company, whereas in the Milk Code, what is used is the phrase products within the scope of this
Code. Those are the only differences between the definitions given in the Milk Code and the definition
as restated in the RIRR. Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR providing for just one term to
encompass both entities. The definition of milk company in the RIRR and the definitions of
distributor and manufacturer provided for under the Milk Code are practically the same. The Court is
not convinced that the definition of milk company provided in the RIRR would bring about any change
in the treatment or regulation of distributors and manufacturers of breastmilk substitutes, as defined
under the Milk Code.
PUNO, C.J., Concurring and Separate Opinion:
Page 102 of 321
Administrative Law
Freedom of Expression; Commercial Speech; Breastmilk Substitutes; The advertising and promotion
of breastmilk substitutes properly falls within the ambit of the term commercial speechthat is, speech
that proposes an economic transactiona separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection. I fully concur with the well-written and comprehensive ponencia of
my esteemed colleague, Ms. Justice Ma. Alicia Austria-Martinez. I write to elucidate another reason
why the absolute ban on the advertising and promotion of breastmilk substitutes found under Sections
4(f) and 11 of A.O. No. 2006-0012 (RIRR) should be struck down. The advertising and promotion of
breastmilk substitutes properly falls within the ambit of the term commercial speechthat is, speech
that proproses an economic transaction. This is a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally guaranteed forms of expression
but is nonetheless entitled to protection.
Same; Same; Same; Four-Part Analysis for Evaluating Validity of Regulations of Commercial
Speech.Central Hudsonprovides a four-part analysis for evaluating the validity of regulations of
commercial speech. To begin with, the commercial speech must concern lawful activity and not be
misleading if it is to be protected under the First Amendment. Next, the asserted governmental
interest must be substantial. If both of these requirements are met, it must next be determined
whether the state regulation directly advances the governmental interest asserted, and whether it is
not more extensive than is necessary to serve that interest.
Same; Same; Same; The absolute ban on advertising prescribed under Sections 4(f) and 11 of the
Revised Implementing Rules and Regulations (RIRR) is unduly restrictive and is more than necessary
to further the avowed governmental interest of promoting the health of infants and young children.I
proffer the humble view that the absolute ban on advertising prescribed under Sections 4(f) and 11 of
the RIRR is unduly restrictive and is more than necessary to further the avowed governmental interest
of promoting the health of infants and young children. It ought to be self-evident, for instance, that the
dvertisement of such products which are strictly informative cuts too deep on free speech. The
laudable concern of the respondent for the promotion of the health of infants and young children
cannot justify the absolute, overarching ban.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Felicitas Aquino Arroyo, Ma. Pilar Martinez-Caedo,Sandra Marie Olaso-Coronel and Grace
Veronica C. Reyesfor petitioner.
The Solicitor General for respondents.
Maria Shiela M. Bazar for Arugaan, Inc.
Bernas Law Offices for respondents-in-intervention and Theresia Hontiveros-Baraquel and Loreta
Ann P. Rosales.
Maria Paz Luna for herself and movant/intervenors Pia Denise Ducay, et al.
Marvic M.V.F. Leonen for himself and movant/inter-venors Karol Ruiz Austria, et al.
AUSTRIA-MARTINEZ, J.:

Page 103 of 321

Administrative Law
The Court and all parties involved are in agreement that the best nourishment for an infant is mothers
milk. There is nothing greater than for a mother to nurture her beloved child straight from her bosom.
The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk.
But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations
of Executive Order No. 51, Otherwise Known as The Milk Code, Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Under-secretaries, and Assistant Secretaries of the
Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-
respondent since respondents issued the questioned RIRR in their capacity as officials of said
executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by
virtue of the legislative powers granted to the president under the Freedom Constitution. One of the
preambular clauses of the Milk Code states that the law seeks to give effect to Article 11 2 of the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World
Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the
effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured
that nutrition and health claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of
said instrument provides that State Parties should take appropriate measures to diminish infant and
child mortality, and ensure that all segments of society, specially parents and children, are informed of
the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of breastmilk
substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of a
Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and
in violation of the provisions of the Constitution in promulgating the RIRR. 3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19,
2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1.Whether or not petitioner is a real party-in-interest;

Page 104 of 321

Administrative Law
2.Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1.Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);
2.2.Whether pertinent international agreements1 entered into by the Philippines are part of the
law of the land and may be implemented by the DOH through the RIRR; If in the affirmative,
whether the RIRR is in accord with the international agreements;
2.3.Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause
and are in restraint of trade; and
2.4.Whether Section 13 of the RIRR on Total Effect provides sufficient standards
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioners standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest, the
Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4to wit:The modern view
is that an association has standing to complain of injuries to its members. This view fuses the legal
identity of an association with that of its members. An association has standing to file suit for its
workers despite its lack of direct interest if its members are affected by the action. An
organization has standing to assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x to act as the
representative of any individual, company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the rights of its
members, because it and its members are in every practical sense identical. x x x The
respondent [association] is but the medium through which its individual members seek to
make more effective the expression of their voices and the redress of their
grievances.5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled that
an association has the legal personality to represent its members because the results of the case will
affect their vital interests.7
Herein petitioners Amended Articles of Incorporation contains a similar provision just like in Executive
Secretary, that the association is formed to represent directly or through approved representatives the
pharmaceutical and health care industry before the Philippine Government and any of its agencies, the
medical professions and the general public.8 Thus, as an organization, petitioner definitely has an
interest in fulfilling its avowed purpose of representing members who are part of the pharmaceutical
and health care industry. Petitioner is duly authorized 9 to take the appropriate course of action to bring
to the attention of government agencies and the courts any grievance suffered by its members which
are directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on
Page 105 of 321
Administrative Law
governmental action that would affect any of its industry members, no matter how few or numerous
they are. Hence, petitioner, whose legal identity is deemed fused with its members, should be
considered as a real party-in-interest which stands to be benefited or injured by any judgment in the
present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents are part
of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments 10 regarding infant and
young child nutrition. It is respondents position that said international instruments are deemed part of
the law of the land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The
United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic,
Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that steps must be taken by State Parties to diminish
infant and child mortality and inform society of the advantages of breastfeeding, ensure the health and
well-being of families, and ensure that women are provided with services and nutrition in connection
with pregnancy and lactation. Said instruments do not contain specific provisions regarding the use or
marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the
ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation.11 The transformation method requires that an international law
be transformed into a domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21
of the Constitution which provides that [n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the Senate. Thus, treaties or
conventional international law must go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic conflicts. 13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-
thirds of all members of the Senate as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law
through local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect
of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point
that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other
forms of promotion to thegeneral public of products within the scope of the ICMBS.

Page 106 of 321

Administrative Law
Instead, the Milk Code expressly provides that advertising, promotion, or other marketing
materials may be allowed if such materials are duly authorized and approved by the Inter-
Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The 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 all nations. (Emphasis
supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
The classical formulation in international law sees those customary rules accepted as
binding result from the combination [of] two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as theopinion juris
sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring
it.16 (Emphasis supplied)
Generally accepted principles of international law refers to norms of general or customary
international law which are binding on all states,17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity,18 a persons right to life, liberty and due
process,19and pacta sunt servanda,20 among others. The concept of generally accepted
principles of law has also been depicted in this wise:
Some legal scholars and judges look upon certain general principles of law as a primary
source of international law because they have the character of jus rationale and are valid
through all kinds of human societies. (Judge Tanaka in his dissenting opinion in the 1966
South West Africa Case, 1966 I.C.J. 296). OConnell holds that certain priniciples are part of
international law because they are basic to legal systems generally and hence part of the jus
gentium. These principles, he believes, are established by a process of reasoning based on the
common identity of all legal systems. If there should be doubt or disagreement, one must look
to state practice and determine whether the municipal law principle provides a just and
acceptable solution. x x x21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legalobligation [opinio juris]. (Restatement) This statement
contains the two basic elements of custom: the material factor, that is, how states behave, and
the psychological or subjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.
Page 107 of 321
Administrative Law
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the
belief that a certain form of behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.22 (Italics and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.23
WHA Resolutions have not been embodied in any local legislation. Have they attained the status of
customary law and should they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with the
United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the
1946 WHO Constitution, it is the WHA which determines the policies of the WHO, 26and has the power
to adopt regulations concerning advertising and labeling of biological, pharmaceutical and similar
products moving in international commerce,27 and to make recommendations to members with
respect to any matter within the competence of the Organization. 28 The legal effect of its regulations,
as opposed to recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind
memberstates thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements with respect
to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly
shall be required for the adoption of such conventions or agreements, which shall come into force
for each Member when accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption by the
Health Assembly of a convention or agreement, take action relative to the acceptance of such
convention or agreement. Each Member shall notify the Director-General of the action taken, and if it
does not accept such convention or agreement within the time limit, it will furnish a statement of the
reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to
the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the international
spread of disease; (b) nomenclatures with respect to diseases, causes of death and public health
practices; (c) standards with respect to diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological, pharmaceutical and similar products moving in
international commerce; (e) advertising and labeling of biological, pharmaceutical and similar
products moving in international commerce.

Page 108 of 321

Administrative Law
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all Members
after due notice has been given of their adoption by the Health Assembly except for such
Members as may notify the Director-General of rejection or reservations within the period
stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article 19 and regulations under
Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to Members with
respect to any matter within the competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would come
into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
generally not binding, but they carry moral and political weight, as they constitute the judgment on a
health issue of the collective membership of the highest international body in the field of
health.29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution No.
34.22 states:
The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the present
resolution. (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh session,
considered the fourth draft of the code, endorsed it, and unanimously recommended to the Thirty-
fourth World Health Assembly the text of a resolution by which it would adopt the code in the form
of a recommendation rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO
Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to recommendations
made to it by the Organization, and with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging
member states to implement the ICMBS are merely recommendatory and legally non-binding. Thus,
unlike what has been done with the ICMBS whereby the legislature enacted most of the
provisions into law which is the Milk Code, the subsequent WHA Resolutions,30 specifically
providing for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24
months, and absolutely prohibiting advertisements and promotions of breastmilk substitutes,
have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute soft law or non-binding norms, principles and
practices that influence state behavior.31
Soft law does not fall into any of the categories of international law set forth in Article 38, Chapter III
of the 1946 Statute of the International Court of Justice. 32 It is, however, an expression of non-binding
Page 109 of 321
Administrative Law
norms, principles, and practices that influence state behavior. 33 Certain declarations and resolutions of
the UN General Assembly fall under this category. 34 The most notable is the UN Declaration of Human
Rights, which this Court has enforced in various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada 37 and Shangri-La
International Hotel Management, Ltd. v. Developers Group of Companies, Inc. 38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the
mandate to promote and protect intellectual property worldwide, has resorted to soft law as a rapid
means of norm creation, in order to reflect and respond to the changing needs and demands of its
constituents.39 Other international organizations which have resorted to soft law include the
International Labor Organization and the Food and Agriculture Organization (in the form of the Codex
Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on WHO member
states, it provides an excellent example of the power of soft law in international relations.
International lawyers typically distinguish binding rules of international lawhard lawfrom
non-binding norms, principles, and practices that influence state behaviorsoft law. WHO
has during its existence generated many soft law norms, creating a soft law regime in
international governance for public health.
The soft law SARS and IHR Resolutions represent significant steps in laying the political groundwork
for improved international cooperation on infectious diseases. These resolutions clearly define WHO
member states normative duty to cooperate fully with other countries and with WHO in connection with
infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty is
powerful politically for two reasons. First, the SARS outbreak has taught the lesson that participating
in, and enhancing, international cooperation on infectious disease controls is in a countrys self-interest
x x x if this warning is heeded, the soft law in the SARS and IHR Resolution could inform the
development of general and consistent state practice on infectious disease surveillance and outbreak
response, perhaps crystallizing eventually into customary international law on infectious disease
prevention and control.41
In the Philippines, the executive department implemented certain measures recommended by WHO to
address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26,
2003 and E.O. No. 280 on February 2, 2004, delegating to various departments broad powers to close
down schools/establishments, conduct health surveillance and monitoring, and ban importation of
poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must be
established that such rule is being followed by states because they consider it obligatory to comply
with such rules (opinio juris). Respondents have not presented any evidence to prove that the WHA

Page 110 of 321

Administrative Law
Resolutions, although signed by most of the member states, were in fact enforced or practiced by at
least a majority of the member states; neither have respondents proven that any compliance by
member states with said WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of
the land that can be implemented by executive agencies without the need of a law enacted by
the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in the
absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH
shall define the national health policy and implement a national health plan within the framework of
the governments general policies and plans, and issue orders and regulations concerning the
implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion of
breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national
health policy.
Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No.
2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the following policy
guidelines: (1) ideal breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two years and beyond; (2)
appropriate complementary feeding, which is to start at age six months; (3) micronutrient
supplementation; (4) universal salt iodization; (5) the exercise of other feeding options; and (6) feeding
in exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for children is
emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014 is it declared
that as part of such health policy, the advertisement or promotion of breastmilk substitutes
should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot automatically be
equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising and
promotion of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said
advertising and promotion, it follows that a total ban policy could be implemented only pursuant to a
law amending the Milk Code passed by the constitutionally authorized branch of government, the
legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be
validly implemented by the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of
the Milk Code.

Page 111 of 321

Administrative Law
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:
1. 1.The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its
coverage to young children or those from ages two years old and beyond:
MILK CODE RIRR

WHEREAS, in order to ensure that safe and
adequate nutrition for infants is provided, there
is a need to protect and promote breastfeeding
and to inform the public about the proper use
of breastmilk substitutes and supplements and
related products through adequate, consistent
and objective information and appropriate
regulation of the marketing and distribution of
the said substitutes, supplements and related
products;
Section 2. Purpose.These Revised Rules
and Regulations are hereby promulgated to
ensure the provision of safe and adequate
nutrition for infants and young children by the
promotion, protection and support of
breastfeeding and by ensuring the proper use
of breastmilk substitutes, breastmilk
supplements and related products when these
are medically indicated and only when
necessary, on the basis of adequate
information and through appropriate marketing
and distribution.

SECTION 4(e). Infant means a person falling Section 5(ff). Young Child means a person
within the age bracket of 0-12 months. from the age of more than twelve (12) months
up to the age of three (3) years (36 months).

1. 2.The Milk Code recognizes that infant formula may be a proper and possible substitute for
breastmilk in certain instances; but the RIRR provides exclusive breast feeding for infants from
0-6 months and declares that there is no substitute nor replacement for breastmilk:
MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 4. Declaration of
adequate Principles.The following are
nutrition for infants is provided, there is a need the underlying principles from
to protect which the revised rules and
and promote breastfeeding and to inform the regulations are premised upon:
public about a. Exclusive breastfeeding is for
the proper use of breastmilk substitutes and infants from 0 to six (6) months.
supplements and related products through b. There is no substitute or
adequate, consistent and objective information
Page 112 of 321
Administrative Law
MILK CODE RIRR
and appropriate regulation of the marketing and replacement for breastmilk.
distribution of the said substitutes, supplements
and related products;

3.The Milk Code only regulates and does not impose unreasonable requirements for advertising
and promotion; RIRR imposes an absolute ban on such activities for breastmilk substitutes
intended for infants from 0-24 months old or beyond, and forbids the use of health and
nutritional claims. Section 13 of the RIRR, which provides for a total effect in the promotion of
products within the scope of the Code, is vague:
MILK CODE RIRR
SECTION 6. The General Public and Section 4. Declaration of
Mothers.(a) No advertising, promotion or Principles.The following are the
other marketing materials, whether written, underlying principles from which the
audio or visual, for products within the scope revised rules and regulations are
of this Code shall be printed, published, premised upon: x x x x
distrib

uted, exhibited and broadcast unless f. Advertising, promotions, or sponsor-ships

such materials are duly authorized of infant formula, breastmilk substitutes and
and approved by an inter-agency other related products are prohibited.
committeecreated herein pursuant to
the applicable standards provided
for in this Code.
Section 11. Prohibition.No advertising,
promotions,
sponsorships, or marketing materials and
activities for
breastmilk substitutes intended for infants
Page 113 of 321
Administrative Law
and young
children up to twenty- four (24) months,
shall be allowed,
because they tend to convey or give
subliminal messages
or impressions that undermine breastmilk
and breast-
feeding or otherwise exaggerate breastmilk
substitutes
and/or replacements, as well as related
products covered
within the scope of this Code.
Section 13. Total Effect.Promotion of
products
within the scope of this Code must be
objective and should
not equate or make the product appear to
be as good or
equal to breastmilk or breastfeeding in the
advertising
concept. It must not in any case undermine
breastmilk
or breast-feeding. The total effect should
not directly or indirectly suggest that buying
their product would produce better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any
manner bring better health to the baby or
other such exaggerated and
unsubstantiated claim.

Section
15.Content of
Materials.
The following
shall not be
included in
advertising,
promotional
and marketing
materials:

Page 114 of 321

Administrative Law
Section
15.Content of
Materials.
The following
shall not be
included in
advertising,
promotional
and marketing
materials:
a. Texts, pictures,
illustrations or
information which
discourage or tend to
undermine the
benefits or superiority
of breastfeed- ing or
which idealize the use
of breastmilk
substitutes and milk
supplements. In this
connection, no
pictures of babies and
children together with
their mothers, fathers,
siblings,
grandparents, other
relatives or caregivers
(or yayas) shall be
used in any
advertisements for
infant formula and
breastmilk
supplements;
b. The term
humanized,
maternalized, close
to mothers milk or
similar words in
describing breastmilk
substitutes or milk
supplements;
c. Pictures or texts
that idealize the use
Page 115 of 321
Administrative Law
Section
15.Content of
Materials.
The following
shall not be
included in
advertising,
promotional
and marketing
materials:
of infant and milk
formula.
Section 16. All health
and nutrition claims
for products within the
scope of the Code are
absolutely prohibited.
For this purpose, any
phrase or words that
connotes to increase
emotional, intellectual
abilities of the infant
and young child and
other like phrases
shall not be allow

4.The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE RIRR
SECTION 10. Section 26. Content.
Containers/ Label. Each container/label shall
(a) Containers and/or contain such message, in
labels shall be designed to both Filipino and English
provide the necessary languages, and which
information about the message cannot be
appropriate use of the readily separated
products, and in such a therefrom, relative the
way as not to discourage following points:
breastfeeding. (a) The words or phrase
(b) Each container shall Im-portant Notice or
have a clear, conspicuous Government Warning or
and easily readable and their equivalent;
understandable message (b) A statement of the

Page 116 of 321

Administrative Law
MILK CODE RIRR
in Pilipino or English superiority of
printed on it, or on a label, breastfeeding;
which message can not (c) A statement that there
readily become separated is no substitute for
from it, and which shall breastmilk;
include the follow-ing (d) A statement that the
points: product shall be used only
(i) the words Important on the advice of a health
Notice or their worker as to the need for
equivalent; its use and the proper
(ii) a statement of the methods of use;
superiority of (e) Instructions for
breastfeeding; appropria te preparation,
(iii) a statement that the and a warning against the
product shall be used only health hazards of
onthe advice of a health inappropriate preparation;
worker as to the need for and
its use and the proper (f) The health hazards of
methods of use; and unnecessary or improper
(iv) instructions for use of infant formula and
appropriate preparation, other related products
and a warning against the including information that
health hazards of powdered infant formula
inappropriate preparation. may contain pathogenic
microorganisms and must
be prepared and used
appropriately.

5.The Milk Code allows dissemination of information on infant formula to health professionals;
the RIRR totally prohibits such activity:
MILK CODE RIRR
SECTION 7. Health Care Section 22. No
System. manufacturer, distributor,
(b) No facility of the or representatives of
health care system shall products covered by the
be used for the purpose Code shall be allowed to
of promoting infant conduct or be involved
formula or other products in any activity on
within the scope of this breastfeeding promotion,
Code. This Code does education and production

Page 117 of 321

Administrative Law
MILK CODE RIRR
not, however, preclude of Information, Education
the dissemination of and Communication (IEC)
information to health materials on
professionals as provided breastfeeding, holding of
in Section 8(b). or participating as
SECTION 8. Health speakers in classes or
Workers. seminars for women and
(b) Information provided children activities and to
by manufacturers and avoid the use of these
distributors to health venues to market their
professionals regarding brands or company
products within the scope names.
of this Code shall be SECTION 16. All health
restricted to scientific and and nutrition claims for
factual matters and such products within the scope
information shall not of the Code are absolutely
imply or create a belief prohibited. For this
that bottle-feeding is purpose, any phrase or
equivalent or superior to words that connotes to
breastfeeding. It shall increase emotional,
also include the intellectual abilities of the
information specified in infant and young child and
Section 5(b). other like phrases shall not
be allowed.
6.The Milk Code permits milk manufacturers and distributors to extend assistance in research
and continuing education of health professionals; RIRR absolutely forbids the same.
MILK CODE RIRR

SECTION 8. Health Section 4. Declaration of Principles.

Workers. The following are the underlying
(e) Manufacturers and principles from which the revised rules
distributors of products within and regulations are prem-ised upon:
the scope of this Code may i. Milk companies, and their
assist in the research, representatives, should not form part of
scholarships and continuing any policymaking body or entity in
education, of health relation to the advancement of
professionals, in accordance breasfeeding.
with the rules and regulations SECTION 22. No manufact urer,
promulgated by the Ministry of distributor, or representatives of products
Health. covered by the Code shall be allowed to
conduct or be involved in any activity on
breastfeeding promotion, education and
production of Information, Education and

Page 118 of 321

Administrative Law
MILK CODE RIRR

Communication (IEC) materials on

breast-feeding, holding of or participating
as speakers in classes or seminars for
women and children activities and to
avoid the use of these venues to market
their brands or company names.
SECTION 32. Primary Responsibility
of Health Work-ers.It is the primary
responsibility of the health workers to
promote, protect and support
breastfeeding and appropriate infant and
young child feeding. Part of this
responsibility is to continuously update
their knowledge and skills on
breastfeeding. No assistance, support,
logistics or training from milk companies

shall be permitted.
1. 7.The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE RIRR
SECTION 6. The General Public Section 51. Donations Within the Scope
and Mothers. of This Code.Donations of products,
(f) Nothing herein contained shall materials,
prevent donations from defined and covered under the Milk Code
manufacturers and distributors of and these
products within the scope of this implementing rules and regulations, shall
Code upon request by or with the be strictly
approval of the Ministry of Health. prohibited.
Section 52. Other Donations By Milk
Companies
Not Covered by this Code.Donations of
products,
equipments, and the like, not otherw ise
falling within
the scope of this Code or these Rules,
given by milk companies and their agents,
representatives, whether in kind or in cash,
may only be coursed through the Inter
Agency Committee (IAC), which shall
determine whether such donation be
accepted or otherwise.
Page 119 of 321
Administrative Law
1. 8.The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK CODE RIRR
Section 46. Administrative
Sanctions.The following
administrative sanctions shall be
imposed upon any person, juridical
or natural, found to have violated the

provisions of the Code and its implementing Rules and Regulations:

a) 1st violationWarning;
b) 2nd violationAdminis-trative fine of a minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos, depending on the gravity and extent of the
violation, including the recall of the offending product;
c) 3rd violationAdminis-trative Fine of a minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and
extent of the violation, and in addition thereto, the recall of the offending product, and
suspension of the Certificate of Product Registration (CPR);
d) 4th violationAdmin-istrative Fine of a minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the
gravity and extent of the violation; and in addition thereto, the recall of the product,
revocation of the CPR, suspension of the License to Operate (LTO) for one year;
e) 5th and succeeding repeated violationsAdminis-trative Fine of One Million
(P1,000,000.00) Pesos, the recall of the offending product,

Page 120 of 321

Administrative Law

cancellation of the CPR, revocation of the License to Operate (LTO) of the company
concerned, including the black-listing of the company to be furnished the Department of
Budget and Management (DBM) and the Department of Trade and Industry (DTI);
f) An additional penalty of Two Thousand Five Hundred (P2,500.00) Pesos per day shall
be made for every day the violation continues after having received the order from the
IAC or other such appropriate body, notifying and penalizing the company for the
infraction.
For purposes of determining whether or not there is re-peated violation, each product
violation belonging or owned by a company, including those of their subsidiaries, are
deemed to be violations of the concerned milk company and shall not be based on the
specific violating product alone.

9.The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Codes coverage is limited only to children 0-12
months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code.The Code applies to the marketing, and practices related thereto,
of the following products: breastmilk substitutes, including infant formula; other milk products, foods
and beverages, including bottle-fed complementary foods, when marketed or otherwise represented to
be suitable, with or without modification, for use as a partial or total replacement of breastmilk; feeding
bottles and teats. It also applies to their quality and availability, and to information concerning their
use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant formula, bottle-fed complementary food,
and breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as a breastmilk substitute x x x to satisfy the
normal nutritional requirements of infants up to between four to six months of age, and adapted to
their physiological characteristics; while under Section 4(b), bottle-fed complementary food refers to
any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or infant
formula, when either becomes insufficient to satisfy the nutritional requirements of the infant. An
infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the nourishment
of this group of infants or children aged 0-12 months that is sought to be promoted and protected by
the Milk Code.

Page 121 of 321

Administrative Law
But there is another target group. Breastmilk substitute is defined under Section 4(a) as any food
being marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not
suitable for that purpose. This section conspicuously lacks reference to any particular age-
group of children. Hence, the provision of the Milk Code cannot be considered exclusive for
children aged 0-12 months. In other words, breastmilk substitutes may also be intended for young
children more than 12 months of age. Therefore, by regulating breastmilk substitutes, the Milk Code
also intends to protect and promote the nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in
Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be used by
children aged over 12 months. There is, therefore, nothing objectionable with Sections 2 42and 5(ff)43 of
the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that
breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed
together. As held in De Luna v. Pascual,44 [t]he particular words, clauses and phrases in the Rule
should not be studied as detached and isolated expressions, but the whole and every part thereof
must be considered in fixing the meaning of any of its parts and in order to produce a harmonious
whole.
Section 7 of the RIRR provides that when medically indicated and only when necessary, the use of
breastmilk substitutes is proper if based on complete and updated infor-mation. Section 8 of the
RIRR also states that information and educational materials should include information on the proper
use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of
breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 3 45and 446 together as they are interlinked with
each other.
To resolve the question of whether the labeling requirements and advertising regulations under the
RIRR are valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers
of the DOH, as defined in general under the 1987 Administrative Code,47 and as delegated in
particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter
precludes the need to further discuss it.48 However, health information, particularly advertising
materials on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively
new area for regulation by the DOH.49 As early as the 1917 Revised Administrative Code of the
Philippine Islands,50 health information was already within the ambit of the regulatory powers of the
predecessor of DOH.51 Section 938 thereof charged it with the duty to protect the health of the people,
and vested it with such powers as (g) the dissemination of hygienic information among the people
and especially the inculcation of knowledge as to the proper care of infants and the methods of
preventing and combating dangerous communicable diseases.

Page 122 of 321

Administrative Law
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy
pronounced under Section 15, Article II of the 1987 Constitution, which is to protect and promote the
right to health of the people and instill health consciousness among them.52 To that end, it was
granted under Section 3 of the Administrative Code the power to (6) propagate health information
and educate the population on important health, medical and environmental matters which have
health implications.53
When it comes to information regarding nutrition of infants and young children, however, the Milk Code
specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure
that there is adequate, consistent and objective information on breastfeeding and use of breast-milk
substitutes, supplements and related products; and the power to control such information. These are
expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and enforcement of
the provisions of this Code. For this purpose, the Ministry of Health shall have the following powers
and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the implementation of this
Code and the accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or incidental to the
attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on infant
feeding, for use by families and those involved in the field of infant nutrition. This responsibility shall
cover the planning, provision, design and dissemination of information, and the control thereof, on
infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis--visbreastmilk substitutes, supplement and related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding
of infants and intended to reach pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and superiority of breastfeeding; (2) maternal
nutrition, and the preparation for and maintenance of breastfeeding; (3) the negative effect on breast-
feeding of introducing partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed;
and (5) where needed, the proper use of infant formula, whether manufactured industrially or home-
prepared. When such materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards ofinappropriate
foods or feeding methods; and, in particular, the health hazards of unnecessary or improper

Page 123 of 321

Administrative Law
use of infant formula and other breastmilk substitutes. Such materials shall not use any picture
or text which may idealize the use of breastmilk substitutes.
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters, and such
information shall not imply or create a belief that bot-tlefeeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term humanized, maternalized or similar terms shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to whom such information
may be disseminated under Sections 6 through 9 of the Milk Code 54to ensure that the information that
would reach pregnant women, mothers of infants, and health professionals and workers in the health
care system is restricted to scientific and factual matters and shall not imply or create a belief that
bottlefeed-ing is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOHs power under the Milk Code to control information
regarding breastmilk vis--vis breastmilk substitutes is not absolute as the power to control does not
encompass the power to absolutely prohibit the advertising, marketing, and promotion of breastmilk
substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by the
Code:
a) Section 2 which requires adequate information and appropriate marketing and distribution of
breastmilk substitutes, to wit:
SECTION 2. Aim of the Code.The aim of the Code is to contribute to the provision of safe and
adequate nutrition for infants by the protection and promotion of breastfeeding and by ensuring the
proper use of breastmilk substitutes and breastmilk supplements when these are necessary, on the
basis of adequate information and through appropriate marketing and distribution.
1. b)Section 3 which specifically states that the Code applies to the marketing of and practices
related to breastmilk substitutes, including infant formula, and to information concerning their
use;
2. c)Section 5(a) which provides that the government shall ensure that objective and consistent
information is provided on infant feeding;
3. d)Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk substitutes
Page 124 of 321
Administrative Law
and should include information on the health hazards of unnecessary or improper use of said
product;
4. e)Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and
examine advertising, promotion, and other marketing materials;
5. f)Section 8(b) which states that milk companies may provide information to health professionals
but such information should be restricted to factual and scientific matters and shall not imply or
create a belief that bottlefeeding is equivalent or superior to breastfeeding; and
6. g)Section 10 which provides that containers or labels should not contain information that would
discourage breast-feeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling
and advertising.
Sections 1355 on total effect and 2656 of Rule VII of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a
statement that powdered infant formula may contain pathogenic microorganisms and must be
prepared and used appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims for
products within the scope of the Milk Code, such as claims of increased emotional and intellectual
abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to
wit:
SECTION 8. Health workers
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding products
within the scope of this Code shall be restricted to scientific and factual matters, and such
information shall not imply or create a belief that bottlefeed-ing is equivalent or superior to
breastfeeding. It shall also include the information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms humanized,
maternalized, or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief that
there is any milk product equivalent to breastmilk or which is humanized or maternalized, as such
information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers
regarding breastmilk substitutes, not to containers and labels thereof. However, such restrictive
application of Section 8(b) will result in the absurd situation in which milk companies and distributors
are forbidden to claim to health workers that their products are substitutes or equivalents of breastmilk,
and yet be allowed to display on the containers and labels of their products the exact opposite
message. That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to
avoid by mandating that all information regarding breast-milk vis--vis breastmilk substitutes
be consistent, at the same time giving the government control over planning, provision, design, and
dissemination of information on infant feeding.
Page 125 of 321
Administrative Law
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered
is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and
deterring circumvention of the protection and promotion of breastfeeding as embodied in Section 2 60 of
the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b)
of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the feeding
of infants and intended to reach pregnant women and mothers of infants, shall include clear
information on all the following points: x x x (5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared. When such materials contain information about
the use of infant formula, they shall include the social and financial implications of its use; the health
hazards of inappropriate foods or feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk substitutes. Such materials
shall not use any picture or text which may idealize the use of breastmilk substitutes. (Emphasis
supplied)
The label of a product contains information about said product intended for the buyers thereof. The
buyers of breast-milk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair
warning about the likelihood of pathogenic microorganisms being present in infant formula and other
related products when these are prepared and used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
contaminations and there is as yet no technology that allows production of powdered infant formula
that eliminates all forms of contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic microorganisms is
in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis--vis breastmilk substitutes and
supplements and related products cannot be questioned. It is its intervention into the area of
advertising, promotion, and marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or visual, for
products within the scope of this Code shall be printed, published, distributed, exhibited and broadcast
unless such materials are duly authorized and approved by an inter-agency committee created herein
pursuant to the applicable standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to
an IAC, thus:
SECTION 12. Implementation and Monitoring.
Page 126 of 321
Administrative Law
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the following
members is hereby created:
Minister of Health Chairman
..........................................................
Minister of Trade and Industry Member
.......................................
Minister of Justice Member
..........................................................
Minister of Social Services and Member
Development ..................
The members may designate their duly authorized representative to every meeting of the Committee.
The Committee shall have the following powers and functions:
(1)To review and examine all advertising, promotion or other marketing materials, whether
written, audio or visual, on products within the scope of this Code;
(2)To approve or disapprove, delete objectionable portions from and prohibit the printing,
publication, distribution, exhibition and broadcast of, all advertising promotion or other marketing
materials, whether written, audio or visual, on products within the scope of this Code;

(3)To prescribe the internal and operational procedure for the exercise of its powers and
functions as well as the performance of its duties and responsibilities; and

(4)To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition.No advertising, promotions, sponsorships, or marketing materials and
activities for breastmilk substitutes intended for infants and young children up to twenty-four (24)
months, shall be allowed, because they tend to convey or give subliminal messages or impressions
that undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes and/or
replacements, as well as related products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk
substitutes in line with the RIRRs declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles.
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other
related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority
given to the IAC but also imposed absolute prohibition on advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6
thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to
dissemination.

Page 127 of 321

Administrative Law
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted,
during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually
operational, viz.:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is an
absolute prohibition on advertising making AO 2006-12 unconstitutional. We maintained that what AO
2006-12 provides is not an absolute prohibition because Section 11 while it states and it is entitled
prohibition it states that no advertising, promotion, sponsorship or marketing materials and activities for
breast milk substitutes intended for infants and young children up to 24 months shall be allowed
because this is the standard they tend to convey or give subliminal messages or impression
undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section, Section 12,
provides for the inter agency committee that is empowered to process and evaluate all the advertising
and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates
the advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision on the
InterAgency Committee that processes and evaluates because there may be some information
dissemination that are straight forward information dissemination. What the AO 2006 is trying to
prevent is any material that will undermine the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to promulgate
Rules and Regulations regarding the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the InterAgency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Dont you think that the Department of Health overstepped its rule making authority when it
totally banned advertising and promotion under Section 11 prescribed the total effect rule as well as
the content of materials under Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the
InterAgency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising of
breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of breastmilk
substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:

Page 128 of 321

Administrative Law
Its not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can
evaluate some advertising and promotional materials, subject to the standards that we have stated
earlier, which arethey should not undermine breastfeeding, Your Honor.
xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections,
particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency Committee
has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify theres no absolute ban on advertisement regarding milk
substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we take exceptions
and standards have been set. One of which is that, the InterAgency Committee can allow if the
advertising and promotions will not undermine breastmilk and breastfeed-ing, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the
approval or rejection of advertising, promotional, or other marketing materials under Section 12(a) of
the Milk Code, said provision must be related to Section 6 thereof which in turn provides that the rules
and regulations must be pursuant to the applicable standards provided for in this Code. Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being
repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education.
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with the
feeding of infants and intended
to reach pregnant women and mothers of infants, shall include clear information on all the following
points: (1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the preparation for
and maintenance of breastfeeding; (3) the negative effect on breast-feeding of introducing partial
bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods of feeding methods; and, in particular,
the health hazards of unnecessary or improper use of infant formula and other breastmilk substitutes.
Such materials shall not use any picture or text which may idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters and such
information shall not imply or create a belief that bottle feeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily become
separated from it, and which shall include the following points:
Page 129 of 321
Administrative Law
(i) the words Important Notice or their equivalent;
(ii)a statement of the superiority of breastfeeding;
(iii)a statement that the product shall be used only on the advice of a health worker as to the
need for its use and the proper methods of use; and
(iv)instructions for appropriate preparation, and a warning against the health hazards of
inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of
the Milk Code states that:

SECTION 5. Information and Education.

(a) The government shall ensure that objective and consistentinformation is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR
which reads as follows:

SECTION 13. Total Effect.Promotion of products within the scope of this Code must be objective
and should not equate or make the product appear to be as good or equal to breastmilk or
breastfeeding in the advertising concept. It must not in any case undermine breastmilk or
breastfeeding. The total effect should not directly or indirectly suggest that buying their product would
produce better individuals, or resulting in greater love, intelligence, ability, harmony or in any manner
bring better health to the baby or other such exaggerated and unsubstantiated claim.Such standards
bind the IAC in formulating its rules and regulations on advertising, promotion, and marketing. Through
that single provision, the DOH exercises control over the information content of advertising,
promotional and marketing materials on breastmilk vis--vis breastmilk substisionals on scientific
and factual matters. What it prohibits is the involvement of the manufacturer and distributor of the
products covered by the Code in activities for the promotion, education and production of Information,
Education and Communication (IEC) materials regarding breastfeeding that are intended for women
and children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health professionals,
while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails Section
4(i)69 of the RIRR prohibiting milk manufacturers and distributors participation in any policymaking
body in relation to the advancement of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of
any policymaking body or entity in relation to the advancement of breast-feeding. The Court finds
nothing in said provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk
Code, it is the DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to decide which entities
Page 130 of 321
Administrative Law
to call upon or allow to be part of policymaking bodies on breastfeeding. Therefore, the RIRRs
prohibition on milk companies participation in any policymaking body in relation to the
advancement of breastfeeding is in accord with the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from giving
reasearch assistance and continuing education to health professionals. Section 2270 of the RIRR does
not pertain to research assistance to or the continuing education of healthprofessionals; rather, it deals
with breastfeeding promotion and education for women and children. Nothing in Section 22 of the
RIRR prohibits milk companies from giving assistance for research or continuing education to health
professionals; hence, petitioners argument against this particular provision must be struck down.

It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR
provide that research assistance for health workers and researchers may be allowed upon
approval of an ethics committee, and with certain disclosure requirements imposed on the milk
company and on the recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or educational
assistance may be given by milk companies or under what conditions health workers may accept the
assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or
extent of assistance given by milk companies are completely in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance,
support, logistics or training to health workers. This provision is within the prerogative given to the
DOH under Section 8(e)74of the Milk Code, which provides that manufacturers and distributors of
breastmilk substitutes may assist in researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now
DOH.

6. As to the RIRRs prohibition on donations, said provisions are also consistent with the Milk Code.
Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distributors
of breastmilk substitutes upon the request or with the approval of the DOH. The law does not
proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether
to request or accept such donations. The DOH then appropriately exercised its discretion through
Section 5175 of the RIRR which sets forth its policy not to request or approve donations from
manufacturers and distributors of breastmilk substitutes.

It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation
from milk companies not covered by the Code should be coursed through the IAC which shall
determine whether such donation should be accepted or refused. As reasoned out by respondents, the
DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity can
be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and the
law because the Milk Code does not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the
Milk Code, the Court upholds petitioners objection thereto.

Respondents reliance on Civil Aeronautics Board v. Phil-ippine Air Lines, Inc. 76 is misplaced. The
glaring difference in said case and the present case before the Court is that, in the Civil Aeronautics
Board, the Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776)
the power to impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by
Page 131 of 321
Administrative Law
the same law the power to review on appeal the order or decision of the CAA and to determine
whether to impose, remit, mitigate, increase or compromise such fine and civil penalties. Thus, the
Court upheld the CABs Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court upheld
the Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas
Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of prohibited acts. The
Court found that nothing in the circular contravened the law because the DOE was expressly
authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the
authority to fix or impose administrative fines. Thus, without any express grant of power to fix or
impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again
exceeded its authority by providing for such fines or sanctions in Section 46 of the RIRR. Said
provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the
Milk Code authorizes the DOH to cause the prosecution of the violators of this Code and other
pertinent laws on products covered by this Code. Section 13 of the Milk Code provides for the
penalties to be imposed on violators of the provision of the Milk Code or the rules and regulations
issued pursuant to it, to wit:

SECTION 13. Sanctions.

(a)Any person who violates the provisions of this Code or the rules and regulations issued
pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months to
one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00) nor more
than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed by a
juridical person, the chairman of the Board of Directors, the president, general manager, or the
partners and/or the persons directly responsible therefor, shall be penalized.

(b)Any license, permit or authority issued by any government agency to any health worker,
distributor, manufacturer, or marketing firm or personnel for the practice of their profession or
occupation, or for the pursuit of their business, may, upon recommendation of the Ministry of
Health, be suspended or revoked in the event of repeated violations of this Code, or of the rules
and regulations issued pursuant to this Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is
frivolous.
Section 57 reads:

SECTION 57. Repealing Clause.All orders, issuances, and rules and regulations or parts
thereof inconsistent with these revised rules and implementing regulations are hereby repealed
or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules
and regulations. Thus, said provision is valid as it is within the DOHs rule-making power.An
administrative agency like respondent possesses quasi-legislative or rule-making power or the power
to make rules and regulations which results in delegated legislation that is within the confines of the
granting statute and the Constitution, and subject to the doctrine of non-delegability and separability of
powers.78 Such express grant of rule-making power necessarily includes the power to amend, revise,
alter, or repeal the same.79 This is to allow administrative agencies flexibility in formulating and
adjusting the details and manner by which they are to implement the provisions of a law, 80 in order to
make it more responsive to the times. Hence, it is a standard provision in administrative rules that prior
Page 132 of 321
Administrative Law
issu-ances of administrative agencies that are inconsistent therewith are declared repealed or
modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate
and in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the
RIRR are in consonance with the Milk Code.

Lastly, petitioner makes a catch-all allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and
oppressive, and is offensive to the due process clause of the Constitution, insofar as the same
is in restraint of trade and because a provision therein is inadequate to provide the public with a
comprehensible basis to determine whether or not they have committed a violation. 81(Emphasis
supplied)

Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,8632,8746,88 and 5289 as the provisions that
suppress the trade of milk and, thus, violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests. 90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine Coconut
Authority, despite the fact that our present Constitution enshrines free enterprise as a policy, it
nonetheless reserves to the government the power to intervene whenever necessary to
promote the general welfare. There can be no question that the unregulated use or proliferation of
pesticides would be hazardous to our environment. Thus, in the aforecited case, the Court declared
that free enterprise does not call for removal of protective regulations. x x x It must be
clearly explained and proven by competent evidence just exactly how such protective
regulation would result in the restraint of trade. [Emphasis and italics supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers participation in any
policymaking body (Section 4[i]), classes and seminars for women and children (Section 22); the giving
of assistance, support and logistics or training (Section 32); and the giving of donations (Section 52)
would unreasonably hamper the trade of breastmilk substitutes. Petitioner has not established that the
proscribed activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to
demonstrate that the aforementioned provisions of the RIRR are unreasonable and oppressive for
being in restraint of trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
oppressive. Said section provides for the definition of the term milk company, to wit:
SECTION 5. x x x. (w) Milk Company shall refer to the owner, manufacturer, distributor of infant
formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or by any
other description of such nature, including their representatives who promote or otherwise advance
their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) Distributor means a person, corporation or any other entity in the public or private sector engaged
in the business (whether directly or indirectly) of marketing at the wholesale or retail level a product
within the scope of this Code. A primary distributor is a manufacturers sales agent, representative,
national distributor or broker.
xxxx
Page 133 of 321
Administrative Law
(j) Manufacturer means a corporation or other entity in the public or private sector engaged in the
business or function (whether directly or indirectly or through an agent or and entity controlled by or
under contract with it) of manufacturing a products within the scope of this Code.

Notably, the definition in the RIRR merely merged together under the term milk company the entities
defined separately under the Milk Code as distributor and manufacturer. The RIRR also
enumerated in Section 5(w) the products manufactured or distributed by an entity that would qualify it
as a milk company, whereas in the Milk Code, what is used is the phrase products within the scope
of this Code. Those are the only differences between the definitions given in the Milk Code and the
definition as re-stated in the RIRR.

Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just one term to encompass both
entities.

The definition of milk company in the RIRR and the definitions of distributor and manufacturer
provided for under the Milk Code are practically the same.

The Court is not convinced that the definition of milk company provided in the RIRR would bring
about any change in the treatment or regulation of distributors and manufacturers of breastmilk
substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the
objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry which
affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of
trade nor are they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order
No.
2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The Department of
Health and respondents are PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the
provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.
Puno (C.J.), Quisumbing, Sandoval-Gutierrez,Carpio, Corona, Carpio-Morales, Tinga, Chico-
Nazario,Garcia, Velasco, Jr. and Reyes, JJ., concur.
Ynares-Santiago and Azcuna, JJ., On Official Leave.
Nachura, J., No Part.

CONCURRING AND SEPARATE OPINION

PUNO, C.J.:

I fully concur with the well-written and comprehensive po-nencia of my esteemed colleague, Ms.
Justice Ma. Alicia Austria-Martinez. I write to elucidate another reason why the absolute ban on the
advertising and promotion of breastmilk substitutes found under Sections 4(f) and 11 of A.O. No. 2006-
0012 (RIRR) should be struck down.

Page 134 of 321

Administrative Law
The advertising and promotion of breastmilk substitutes properly falls within the ambit of the
term commercial speechthat is, speech that proproses an economic transaction. This is a separate
category of speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but isnonetheless entitled to protection.
A look at the development of jurisprudence on the subject would show us that initially and for many
years, the United States Supreme Court took the view that commercial speech is not protected by the
First Amendment.1 It fastened itself to the view that the broad powers of government to regulate
commerce reasonably includes the power to regulate speech concerning articles of commerce.

This view started to melt down in the 1970s. In Virginia Pharmacy Board v. Virginia Citizens Consumer
Council,2 the U.S. Supreme Court struck down a law prohibiting the advertising of prices for priscription
drugs. It held that price information was important to consumers, and that the First Amendment
protects the right to receive information as well as the right to speak. It ruled that consumers have a
strong First Amendment interest in the free flow of information about goods and services available in
the marketplace and that any state regulation must support a substantial interest.

Central Hudson Gas & Electric v. Public Service Commission 3 is the watershed case that established
the primary test for evaluating the constitutionality of commercial speech regulations. In this landmark
decision, the U.S. Supreme Court held that the regulation issued by the Public Service Commission of
the State of New York, which reaches all promotional advertising regardless of the impact of the
touted service on overall energy use, is more extensive than necessary to further the states interest
in energy conservation. In addition, it ruled that there must be a showing that a more limited
restriction on the content of promotional advertising would not adequately serve the interest of the
State. In applying the First Amendment, the U.S. Court rejected the highly paternalistic view that
the government has complete power to suppress or regulate commercial speech.

Central Hudson provides a four-part analysis for evaluating the validity of regulations of commercial
speech. To begin with, the commercial speech must concern lawful activity and not be
misleading if it is to be protected under the First Amendment. Next, the asserted governmental
interest must be substantial. If both of these requirements are met, it must next be determined
whether the state regulation directly advances the governmental interest asserted, and whether
it is not more extensive than is necessary to serve that interest.

We now apply this four-part test to the case at bar.

First, it is not claimed that the advertisement at issue is an unlawful activity or is inaccurate. In fact,
both the International Code and the Milk Code recognize and concede that there are instances when
breastmilk substitutes may be necessary.

Second, there is no doubt that the governmental interest in providing safe and adequate nutrition to
infants and young children is substantial. This interest is expressed as a national policy in no less than
the fundamental law of our land and is also embodied in various international agreements where we
are a party. To be sure, the interest of the state in preserving and promoting the health of its citizens is
inextricably linked to its own existence.

Third, there is an undeniable causal relationship between the interest of government and the
advertising ban. Unquestionably, breastfeeding is the tested and proven method of providing optimal
nutrition to infants and young children. The rationale of the absolute ban is to prevent mothers from

Page 135 of 321

Administrative Law
succumbing to suggestive and misleading marketing and propaganda which may be contained in
advertisements of breastmilk substitutes.

Fourth and finally, prescinding from these predicates, we now come to the critical inquiry: whether
the complete suppression of the advertisement and promotion of breast-milk substitutes is no more
than necessary to further the interest of the state in the protection and promotion of the right to health
of infants and young children.

I proffer the humble view that the absolute ban on advertising prescribed under Sections 4(f) and 11
of the RIRR is unduly restrictive and is more than necessary to further the avowed governmental
interest of promoting the health of infants and young children. It ought to be self-evident, for instance,
that the dvertisement of such products which are strictly informative cuts too deep on free speech. The
laudable concern of the respondent for the promotion of the health of infants and young children
cannot justify the absolute, overarching ban.

Petition partially granted, Sections 4(f), 11 and 46 of Administrative Order No. 2006-0012 dated May
12, 2006 declared null and void.

Notes.When the law speaks in clear and categorical language, there is no reason for interpretation
or construction, but only for application. Opinions of the Secretary of Justice are unavailing to supplant
or rectify any mistake or omission in the law. (Republic vs. Court of Appeals, 299 SCRA 199 [1998])

The promotion of public health is a fundamental obligation of the Statethe health of the people is a
primordial governmental concern. In serving the interest of the public, and to give meaning to the
purpose of the law, the Legislature deemed it necessary to phase out commercial blood banksthis
action may seriously affect the owners and operators, as well as the employees, of commercial blood
banks but their interests must give way to serve a higher end for the interest of the public. (Beltran vs.
Secretary of Health, 476 SCRA 168 [2005])

o0o

Page 136 of 321

Administrative Law
Case 6

G.R. No. 170599. September 22, 2010.*

PUBLIC HEARING COMMITTEE OF THE LAGUNA LAKE DEVELOPMENT AUTHORITY and HON.
GENERAL MANAGER CALIXTO CATAQUIZ, petitioners, vs. SM PRIME HOLDINGS, INC. (in its
capacity as operator of SM CITY MANILA), respondent.

Administrative Law; Certiorari; A person, like SM Prime Holdings, Inc., cannot immediately file
certiorari in Court without exhaustion of administrative remedies, where it raises factual issues.As to
the first assigned error, the Court agrees with petitioners that respondent did not exhaust
administrative remedies before filing a petition for certiorari with the CA. Under the doctrine of
exhaustion of administrative remedies, before a party is allowed to seek the intervention of the court,
he or she should have availed himself or herself of all the means of administrative processes afforded
him or her. Hence, if resort to a remedy within the administrative machinery can still be made by giving
the administrative officer concerned every opportunity to decide on a matter that comes within his or
her jurisdiction, then such remedy should be exhausted first before the courts judicial power can be
sought. The premature invocation of the intervention of the court is fatal to ones cause of action. The
doctrine of exhaustion of administrative remedies is based on practical and legal reasons.

Same; Exhaustion of Administrative Remedies.It is true that one of the exceptions to the doctrine of
exhaustion of administrative remedies is when the issues raised are purely legal. However, the Court
is not persuaded by respondents contention that the special civil action for certiorari it filed with the CA
involved only purely legal questions and did not raise factual issues. A perusal of the petition
for certiorari filed by respondent readily shows that factual matters were raised, to wit: (a) whether
respondent has immediately implemented remedial measures to correct the pH level of the effluent
discharges of SM City Manila; and (b) whether the third party monitoring report submitted by
respondent proves that it has complied with the effluent standards for inland water set by the LLDA.

Same; Laguna Lake Development Authority (LLDA); Jurisdiction; Pollution; Acts or omissions of the
Laguna Lake Development Authority (LLDA) may be the subject of certiorari filed with the Court of
Appeals (CA) under Rule 65 of the Rules of Court.Petitioners should have noted, however, that Rule
43 refers to appeals from judgments or orders of quasi-judicial agencies in the exercise of their quasi-
judicial functions. On the other hand, Rule 65 of the Rules of Court specifically governs special civil
actions for certiorari, Section 4 of which provides that if the petition involves acts or omissions of a
quasi-judicial agency, and unless otherwise provided by law or the rules, the petition shall be filed in
and cognizable only by the CA. Thus, it is clear that jurisdiction over acts or omissions of the LLDA
belong to the CA.

Same; Same; Due Process; Estoppel; Where a party actively participated in the hearing of its water
pollution case before the Laguna Lake Development Authority (LLDA) without impugning its power,
said party is estopped from questioning LLDAs power to impose a fine as a penalty.The Court
agrees with petitioners that respondent is already estopped from questioning the power of the LLDA to
impose fines as penalty owing to the fact that respondent actively participated during the hearing of its
water pollution case before the LLDA without impugning such power of the said agency. In fact,
respondent even asked for a reconsideration of the Order of the LLDA which imposed a fine upon it as
evidenced by its letters dated July 2, 2002 and November 29, 2002, wherein respondent, through its
pollution control officer, as well as its counsel, requested for a waiver of the fine(s) imposed by the
LLDA. By asking for a reconsideration of the fine imposed by the LLDA, the Court arrives at no
conclusion other than that respondent has impliedly admitted the authority of the latter to impose such
Page 137 of 321
Administrative Law
penalty. Hence, contrary to respondents claim in its Comment and Memorandum, it is already barred
from assailing the LLDAs authority to impose fines.

Same; Same; Same; Laguna Lake Development Authority (LLDA) has the authority to impose fines to
protect inhabitants of the Laguna Lake Region from effects of pollutants emanating from the discharge
of wastes from surrounding areas.How could the LLDA be expected to effectively perform the
above-mentioned functions if, for every act or violation committed against the law it is supposed to
enforce, it is required to resort to some other authority for the proper remedy or penalty. The
intendment of the law, as gleaned from Section 4(i) of E.O. No. 927, is to clothe the LLDA not only with
the express powers granted to it, but also those which are implied or incidental but, nonetheless, are
necessary or essential for the full and proper implementation of its purposes and functions.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Eduardo L. Torres and Marilou R. Remular for petitioners.
PERALTA, J.:
Assailed in the present petition for review on certiorariare the Decision1 and Resolution2 of the Court of
Appeals (CA) dated June 28, 2004 and November 23, 2005, respectively, in CA-G.R. SP No. 79192.
The CA Decision reversed and set aside the Orders3 dated October 2, 2002, January 10, 2003 and
May 27, 2003 of petitioner Public Hearing Committee of the Laguna Lake Development Authority
(LLDA), in LLDA Case No. PH-02-03-076, while the CA Resolution denied petitioners Motion for
Reconsideration.

The instant petition arose from an inspection conducted on February 4, 2002 by the Pollution Control
Division of the LLDA of the wastewater collected from herein respondents SM City Manila branch. The
results of the laboratory tests showed that the sample collected from the said facility failed to conform
with the effluent standards for inland water imposed in accordance with law. 4

On March 12, 2002, the LLDA informed SM City Manila of its violation, directing the same to perform
corrective measures to abate or control the pollution caused by the said company and ordering the
latter to pay a penalty of One Thousand Pesos (P1,000.00) per day of discharging pollutive
wastewater to be computed from 4 February 2002, the date of inspection, until full cessation of
discharging pollutive wastewater.5

In a letter6 dated March 23, 2002, respondents Pollution Control Officer requested the LLDA to
conduct a re-sampling of their effluent, claiming that they already took measures to enable their
sewage treatment plant to meet the standards set forth by the LLDA.

In an Order to Pay7 dated October 2, 2002, herein petitioner required respondent to pay a fine of Fifty
Thousand Pesos (P50,000.00) which represents the accumulated daily penalty computed from
February 4, 2002 until March 25, 2002.

In two follow-up letters dated July 2, 20028 and November 29, 2002,9 which were treated by the LLDA
as a motion for reconsideration, respondent asked for a waiver of the fine assessed by the LLDA in its
March 12, 2002 Notice of Violation and Order of October 2, 2002 on the ground that they immediately
undertook corrective measures and that the pH levels of its effluent were already controlled even prior
to their request for re-sampling leading to a minimal damage to the environment. Respondent also
contended that it is a responsible operator of malls and department stores and that it was the first time

Page 138 of 321

Administrative Law
that the wastewater discharge of SM City Manila failed to meet the standards of law with respect to
inland water.

On January 10, 2003, the LLDA issued an Order10denying respondents request for a waiver of the fine
imposed on the latter.

On April 21, 2003, respondent submitted another letter 11to the LLDA requesting for reconsideration of
its Order dated January 10, 2003.On May 27, 2003, the LLDA issued another Order to Pay12 denying
respondents request for reconsideration and requiring payment of the fine within ten days from
respondents receipt of a copy of the said Order.

Aggrieved, respondent filed a petition for certiorari with the CA praying for the nullification of the
Orders of the LLDA dated October 2, 2002, January 10, 2003 and May 27, 2003.

On June 28, 2004, the CA rendered its Decision granting the petition of herein respondent and
reversing and setting aside the assailed Orders of the LLDA. Ruling that an administrative agencys
power to impose fines should be expressly granted and may not be implied, the CA found that under
its charter, Republic Act No. 485013 (RA 4850), the LLDA is not expressly granted any power or
authority to impose fines for violations of effluent standards set by law. Thus, the CA held that the
assailed Orders of petitioner, which imposed a fine on respondent, are issued without jurisdiction and
with grave abuse of discretion.

Petitioner filed a Motion for Reconsideration, but the same was denied by the CA via its Resolution
dated November 23, 2005.

Hence, the instant petition based on the following grounds:

5.1. THE COURT OF APPEALS ERRED IN FINDING THAT THE PETITION CANNOT BE
DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, BY WAY OF EXCEPTION
TO THE GENERAL RULE.
5.2. THE COURT OF APPEALS ERRED WHEN IT TOOK COGNIZANCE OF THE PETITION OF
SM PRIME.
5.3. THE COURT OF APPEALS ERRED IN RULING THAT THE LLDA WAS NOT CONFERRED BY
LAW THE POWER TO IMPOSE FINES AND, THEREFORE, CANNOT COLLECT THE SAME FROM
SM PRIME HOLDINGS, INC.14

In their first assigned error, petitioners contend that the petition for certiorari filed by respondent with
the CA is premature. Petitioners argue that respondent did not raise purely legal questions in its
petition, but also brought to the fore factual issues which were properly within the province of the
Department of Environment and Natural Resources (DENR), which is the agency having administrative
supervision over the LLDA.

In the second assignment of error, petitioners aver that a reading of the provisions of Rule 43 of the
Rules of Court would show that the CA has no jurisdiction over the petition for certiorari filed by
respondent. Petitioners also assert that respondent is already barred by estoppel from questioning the
LLDAs power to impose fines, because it (respondent) actively participated in the proceedings
conducted by petitioners without challenging such power.

Lastly, petitioners aver that the LLDA has the power to impose fines and penalties based on the
provisions of RA 4850 and Executive Order (E.O.) No. 927.
Page 139 of 321
Administrative Law

The Court rules for the petitioners.

As to the first assigned error, the Court agrees with petitioners that respondent did not exhaust
administrative remedies before filing a petition for certiorari with the CA.

Under the doctrine of exhaustion of administrative remedies, before a party is allowed to seek the
intervention of the court, he or she should have availed himself or herself of all the means of
administrative processes afforded him or her.15 Hence, if resort to a remedy within the administrative
machinery can still be made by giving the administrative officer concerned every opportunity to decide
on a matter that comes within his or her jurisdiction, then such remedy should be exhausted first
before the courts judicial power can be sought.16 The premature invocation of the intervention of the
court is fatal to ones cause of action.17The doctrine of exhaustion of administrative remedies is based
on practical and legal reasons.18 The availment of administrative remedy entails lesser expenses and
provides for a speedier disposition of controversies. Furthermore, the courts of justice, for reasons of
comity and convenience, will shy away from a dispute until the system of administrative redress has
been completed and complied with, so as to give the administrative agency concerned every
opportunity to correct its error and dispose of the case. 19 While the doctrine of exhaustion of
administrative remedies is subject to several exceptions,20 the Court finds that the instant case does
not fall under any of them.
It is true that one of the exceptions to the doctrine of exhaustion of administrative remedies is when the
issues raised are purely legal. However, the Court is not persuaded by respondents contention that
the special civil action for certiorari it filed with the CA involved only purely legal questions and did not
raise factual issues. A perusal of the petition for certiorari filed by respondent readily shows that factual
matters were raised, to wit: (a) whether respondent has immediately implemented remedial measures
to correct the pH level of the effluent discharges of SM City Manila; and (b) whether the third party
monitoring report submitted by respondent proves that it has complied with the effluent standards for
inland water set by the LLDA. Respondent insists that what has been raised in the petition filed with
the CA was whether the LLDA committed grave abuse of discretion in disregarding the evidence it
presented and in proceeding to impose a penalty despite remedial measures undertaken by the latter.
Logic dictates, however, that a determination of whether or not the LLDA indeed committed grave
abuse of discretion in imposing fine on respondent would necessarily and inevitably touch on the
factual issue of whether or not respondent in fact complied with the effluent standards set under the
law. Since the matters raised by respondent involve factual issues, the questioned Orders of the LLDA
should have been brought first before the DENR which has administrative supervision of the LLDA
pursuant to E.O. No. 149.21

Neither may respondent resort to a petition for certiorarifiled directly with the CA on the ground that the
Orders issued by the LLDA are patently illegal and amount to lack or excess of jurisdiction because, as
will be subsequently discussed, the assailed Orders of the LLDA are not illegal nor were they issued in
excess of jurisdiction or with grave abuse of discretion.

Anent the second assigned error, the Court does not agree with petitioners contention that the CA
does not have jurisdiction to entertain the petition for certiorari filed by respondent questioning the
subject Orders of the LLDA. Petitioners argue that Section 1, 22 Rule 43 of the Rules of Court
enumerate the quasi-judicial agencies whose decisions or orders are directly appealable to the CA and
that the LLDA is not among these agencies. Petitioners should have noted, however, that Rule 43
refers to appeals from judgments or orders of quasi-judicial agencies in the exercise of their quasi-
judicial functions. On the other hand, Rule 65 of the Rules of Court specifically governs special civil
Page 140 of 321
Administrative Law
actions for certiorari, Section 4 of which provides that if the petition involves acts or omissions of a
quasi-judicial agency, and unless otherwise provided by law or the rules, the petition shall be filed in
and cognizable only by the CA. Thus, it is clear that jurisdiction over acts or omissions of the LLDA
belong to the CA.

Nonetheless, the Court agrees with petitioners that respondent is already estopped from questioning
the power of the LLDA to impose fines as penalty owing to the fact that respondent actively
participated during the hearing of its water pollution case before the LLDA without impugning such
power of the said agency. In fact, respondent even asked for a reconsideration of the Order of the
LLDA which imposed a fine upon it as evidenced by its letters dated July 2, 2002 and November 29,
2002, wherein respondent, through its pollution control officer, as well as its counsel, requested for a
waiver of the fine(s) imposed by the LLDA. By asking for a reconsideration of the fine imposed by the
LLDA, the Court arrives at no conclusion other than that respondent has impliedly admitted the
authority of the latter to impose such penalty. Hence, contrary to respondents claim in its Comment
and Memorandum, it is already barred from assailing the LLDAs authority to impose fines.

In any case, this Court has categorically ruled in Pacific Steam Laundry, Inc. v. Laguna Lake
Development Authority,23 that the LLDA has the power to impose fines in the exercise of its function as
a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region. In
expounding on this issue, the Court held that the adjudication of pollution cases generally pertains to
the Pollution Adjudication Board (PAB),24 except where a special law, such as the LLDA Charter,
provides for another forum. The Court further ruled that although the PAB assumed the powers and
functions of the National Pollution Control Commission with respect to adjudication of pollution cases,
this does not preclude the LLDA from assuming jurisdiction of pollution cases within its area of
responsibility and to impose fines as penalty.

In the earlier case of The Alexandra Condominium Corporation v. Laguna Lake Development
Authority,25 this Court affirmed the ruling of the CA which sustained the LLDAs Order requiring the
petitioner therein to pay a fine representing penalty for pollutive wastewater discharge. Although the
petitioner in that case did not challenge the LLDAs authority to impose fine, the Court acknowledged
the power of the LLDA to impose fines holding that under Section 4-A of RA 4850,26 as amended, the
LLDA is entitled to compensation for damages resulting from failure to meet established water and
effluent standards. Section 4-A provides, thus:

Sec. 4-A. Compensation for damages to the water and aquatic resources of Laguna de Bay and its
tributaries resulting from failure to meet established water and effluent quality standards and from such
other wrongful act or omission of a person, private or public, juridical or otherwise, punishable under
the law shall be awarded to the Authority to be earmarked for water quality control management.
In addition, Section 4(d) of E.O. No. 927, which further defines certain functions and powers of the
LLDA, provides that the LLDA has the power to make, alter or modify orders requiring the
discontinuance of pollution specifying the conditions and the time within which such discontinuance
must be accomplished.

Likewise, Section 4(i) of the same E.O. states that the LLDA is given authority to exercise such
powers and perform such other functions as may be necessary to carry out its duties and
responsibilities under this Executive Order. Also, Section 4(c) authorizes the LLDA to issue orders or
decisions to compel compliance with the provisions of this Executive Order and its implementing rules
and regulations only after proper notice and hearing.

Page 141 of 321

Administrative Law
In Laguna Lake Development Authority v. CA,27 this Court had occasion to discuss the functions of the
LLDA, thus:

x x x It must be recognized in this regard that the LLDA, as a specialized administrative agency, is
specifically mandated under Republic Act No. 4850 and its amendatory laws [PD 813 and EO 927], to
carry out and make effective the declared national policy of promoting and accelerating the
development and balanced growth of the Laguna Lake area and the surrounding Provinces of Rizal
and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan with due regard and
adequate provisions for environmental management and control, preservation of the quality of human
life and ecological systems, and the prevention of undue ecological disturbances, deterioration and
pollution.

Under such a broad grant of power and authority, the LLDA, by virtue of its special charter, obviously
has the responsibility to protect the inhabitants of the Laguna Lake Region from the deleterious effects
of pollutants emanating from the discharge of wastes from the surrounding areas. x x x28
Indeed, how could the LLDA be expected to effectively perform the above-mentioned functions if, for
every act or violation committed against the law it is supposed to enforce, it is required to resort to
some other authority for the proper remedy or penalty. The intendment of the law, as gleaned from
Section 4(i) of E.O. No. 927, is to clothe the LLDA not only with the express powers granted to it, but
also those which are implied or incidental but, nonetheless, are necessary or essential for the full and
proper implementation of its purposes and functions.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals, dated June 28, 2004,
and the Resolution dated November 23, 2005, in CA-G.R. SP No. 79192, are REVERSED and SET
ASIDE. The Orders of the Laguna Lake Development Authority, dated October 2, 2002, January 10,
2003 and May 27, 2003, are hereby REINSTATED and AFFIRMED.

SO ORDERED.

Carpio (Chairperson), Velasco, Jr.,** Bersamin*** and Abad, JJ., concur.

Petition granted, judgment and resolution reversed and set aside.

o0o

Page 142 of 321

Administrative Law
Case 7

G.R. No. 170146. June 8, 2011.*

HON. WALDO Q. FLORES, in his capacity as Senior Deputy Executive Secretary in the Office of
the President, HON. ARTHUR P. AUTEA, in his capacity as Deputy Executive Secretary in the
Office of the President, and the PRESIDENTIAL ANTI-GRAFT COMMISSION (PAGC),
petitioners, vs. ATTY. ANTONIO F. MONTEMAYOR, respondent.
Double Jeopardy; Requisites; The dismissal of a case during preliminary investigation does not
constitute double jeopardy, preliminary investigation not being part of the trial.Double jeopardy
attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when
a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case
was dismissed or otherwise terminated without the express consent of the accused. We have held that
none of these requisites applies where the Ombudsman only conducted a preliminary investigation of
the same criminal offense against the respondent public officer. The dismissal of a case during
preliminary investigation does not constitute double jeopardy, preliminary investigation not being part
of the trial.
Same; Public Officers; The same wrongful act committed by the public officer can subject him to civil,
administrative and criminal liabilities; Dismissal of a criminal action does not foreclose institution of an
administrative proceeding against the same respondent, nor carry with it the relief from administrative
liability.The same wrongful act committed by the public officer can subject him to civil, administrative
and criminal liabilities. We held in Tecson v. Sandiganbayan, 318 SCRA 80 (1999): [I]t is a basic
principle of the law on public officers that a public official or employee is under a three-fold
responsibility for violation of duty or for a wrongful act or omission. This simply means that a public
officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such
violation or wrongful act results in damages to an individual, the public officer may be held civillyliable
to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be
punished criminally. Finally, such violation may also lead to suspension, removal from office, or
other administrative sanctions. This administrative liability is separate and distinct from the penal and
civil liabilities. (Italics in the original.) Dismissal of a criminal action does not foreclose institution of an
administrative proceeding against the same respondent, nor carry with it the relief from administrative
liability. Res judicata did not set in because there is no identity of causes of action. Moreover, the
decision of the Ombudsman dismissing the criminal complaint cannot be considered a valid and final
judgment. On the criminal complaint, the Ombudsman only had the power to investigate and file the
appropriate case before the Sandiganbayan.
Public Officers; Ombudsman; Jurisdiction; A presidential appointee is under the disciplinary authority
of the Office of the President (OP); Jurisdiction once acquired is not lost upon the instance of the
parties but continues until the case is terminatedhaving already taken cognizance of the complaint
against the respondent involving non-declaration in his 2001 and 2002 Sworn Statements of Assets
and Liabilities (SSALs), the Presidential Anti-Graft Commission (PAGC) thus retained jurisdiction over
respondents administrative case notwithstanding the subsequent filing of a supplemental complaint
before the Ombudsman charging him with the same violation.Respondent who is a presidential
appointee is under the disciplinary authority of the OP. Executive Order No. 12 dated April 16, 2001
created the PAGC which was granted the authority to investigate presidential and also non-presidential
employees who may have acted in conspiracy or may have been involved with a presidential
Page 143 of 321
Administrative Law
appointee or ranking officer mentioned x x x. On this score, we do not agree with respondent that the
PAGC should have deferred to the Ombudsman instead of proceeding with the administrative
complaint in view of the pendency of his petition for certiorari with the CA challenging the PAGCs
jurisdiction. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the instance of
the parties but continues until the case is terminated. It may be recalled that at the time respondent
was directed to submit his counter-affidavit under the Ombudsmans Order dated March 19, 2004, the
PAGC investigation had long commenced and in fact, the PAGC issued an order directing respondent
to file his counter-affidavit/verified answer as early as May 19, 2003. The rule is that initial acquisition
of jurisdiction by a court of concurrent jurisdiction divests another of its own jurisdiction. Having already
taken cognizance of the complaint against the respondent involving non-declaration in his 2001 and
2002 SSAL, the PAGC thus retained jurisdiction over respondents administrative case notwithstanding
the subsequent filing of a supplemental complaint before the Ombudsman charging him with the same
violation.
Same; Same; Administrative Law; Due Process; The essence of due process in administrative
proceedings is the opportunity to explain ones side or seek a reconsideration of the action or ruling
complained of.The essence of due process in administrative proceedings is the opportunity to
explain ones side or seek a reconsideration of the action or ruling complained of. As long as the
parties are given the opportunity to be heard before judgment is rendered, the demands of due
process are sufficiently met. What is offensive to due process is the denial of the opportunity to be
heard. This Court has repeatedly stressed that parties who choose not to avail themselves of the
opportunity to answer charges against them cannot complain of a denial of due process. Having
persisted in his refusal to file his pleadings and evidence before the PAGC, respondent cannot validly
claim that his right to due process was violated.
Same; Same; Same; Same; Judgments; The rights of parties in an administrative proceedings are not
violated by the brevity of the decision rendered by the Office of the President (OP) incorporating the
findings and conclusions of an administrative body, for as long as the constitutional requirement of due
process has been satisfied.The OP decision, after quoting verbatim the findings and
recommendation of the PAGC, adopted the same with a brief statement preceding the dispositive
portion: After a circumspect study of the case, this Office fully agrees with the recommendation of
PAGC and the legal premises as well as the factual findings that hold it together. Respondent failed to
disclose in his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of the relevant
provisions of RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample opportunity
to explain his failure, but he opted to let the opportunity pass by. The relevant consideration is not the
brevity of the above disquisition adopting fully the findings and recommendation of the PAGC as the
investigating authority. It is rather the fact that the OP is not a court but an administrative body
determining the liability of respondent who was administratively charged, in the exercise of its
disciplinary authority over presidential appointees. In Solid Homes, Inc. v. Laserna, 550 SCRA 613
(2008), this Court ruled that the rights of parties in an administrative proceedings are not violated by
the brevity of the decision rendered by the OP incorporating the findings and conclusions of the
Housing and Land Use Regulatory Board (HLURB), for as long as the constitutional requirement of
due process has been satisfied.
Same; Same; Same; Same; Same; That the Office of the President (OP) denied the motion by
sustaining the Presidential Anti-Graft Commission (PAGC) findings without any separate discussion of
respondents arguments and belatedly submitted evidence only meant that the OP found the same
Page 144 of 321
Administrative Law
lacking in merit and insufficient to overturn its ruling on respondents administrative liability.Since
respondent repeatedly refused to answer the administrative charge against him despite notice and
warning by the PAGC, he submitted his evidence only after an adverse decision was rendered by the
OP, attaching the same to his motion for reconsideration. That the OP denied the motion by sustaining
the PAGCs findings without any separate discussion of respondents arguments and belatedly
submitted evidence only meant that the OP found the same lacking in merit and insufficient to overturn
its ruling on respondents administrative liability.
Same; Same; Same; Termination of Employment; Pursuant to Section 11, paragraph (b) of R.A. No.
6713, any violation of the law proven in a proper administrative proceeding shall be sufficient cause
for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted
against him.On the fourth ground cited by the respondent, we maintain that the penalty of dismissal
from the service is justified as no acceptable explanation was given for the non-declaration of the two
expensive cars in his 2001 and 2002 SSAL. Pursuant to Section 11, paragraph (b) of R.A. No. 6713,
any violation of the law proven in a proper administrative proceeding shall be sufficient cause for
removal or dismissal of a public official or employee, even if no criminal prosecution is instituted
against him. Respondents deliberate attempt to evade the mandatory disclosure of all assets
acquired during the period covered was evident when he first claimed that the vehicles were lumped
under the entry Machineries/Equipment or still mortgaged, and later averred that these were already
sold by the end of the year covered and the proceeds already spent. Under this scheme, respondent
would have acquired as many assets never to be declared at anytime. Such act erodes the function of
requiring accuracy of entries in the SSAL which must be a true and detailed statement. It undermines
the SSAL as the means to achieve the policy of accountability of all public officers and employees in
the government through which the public are able to monitor movement in the fortune of a public
official; [as] a valid check and balance mechanism to verify undisclosed properties and wealth.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
Office of the Solicitor General for petitioners.
Cesar M. Lao for respondent.
RESOLUTION
VILLARAMA, JR., J.:
This resolves the motion for reconsideration of our Decision dated August 25, 2010 setting aside the
October 19, 2005 Decision of the Court of Appeals and reinstating the Decision dated March 23, 2004
of the Office of the President in O.P. Case No. 03-1-581, which found the respondent administratively
liable for failure to declare in his 2001 and 2002 Sworn Statement of Assets and Liabilities (SSAL) two
expensive cars registered in his name, in violation of Section 7, Republic Act (R.A.) No. 3019 in
relation to Section 8 (A) of R.A. No. 6713. The OP adopted the findings and recommendations of the
Presidential Anti-Graft Commission (PAGC), including the imposition of the penalty of dismissal from
service on respondent, with all accessory penalties.
The motion is anchored on the following grounds:

Page 145 of 321

Administrative Law
1. Respondent was subjected to two (2) administrative/criminal Investigations equivalently resulting
in violation of his constitutional right against double jeopardy.
2. Who to follow between conflicting decisions of two (2) government agencies involving the same
facts and issues affecting the rights of the Respondent.
3. Respondents constitutional right to due process was violated.
4. Penalties prescribed by the Honorable Court is too harsh and severe on the alleged offense
committed/omitted.1
On the first ground, the Court finds it bereft of merit. Respondent asserts that since the PAGC charge
involving non-declaration in his 2001 and 2002 SSAL was already the subject of investigation by the
Ombudsman in OMB-C-C-04-0568-LSC, along with the criminal complaint for unexplained wealth, the
former can no longer be pursued without violating the rule on double jeopardy.
Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after
arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or
acquitted, or the case was dismissed or otherwise terminated without the express consent of the
accused.2 We have held that none of these requisites applies where the Ombudsman only conducted
a preliminary investigation of the same criminal offense against the respondent public officer. 3 The
dismissal of a case during preliminary investigation does not constitute double jeopardy, preliminary
investigation not being part of the trial.4
With respect to the second ground, respondent underscores the dismissal by the Ombudsman of the
criminal and administrative complaints against him, including the charge subject of the proceedings
before the PAGC and OP. It is argued that the Office of the Ombudsman as a constitutional body,
pursuant to its mandate under R.A. No. 6770, has primary jurisdiction over cases cognizable by the
Sandiganbayan, as against the PAGC which is not a constitutional body but a mere creation of the OP.
Under said law, it is the Ombudsman who has disciplinary authority over all elective and appointive
officials of the government, such as herein respondent.
The argument is untenable.
The same wrongful act committed by the public officer can subject him to civil, administrative and
criminal liabilities. We held in Tecson v. Sandiganbayan:5
[I]t is a basic principle of the law on public officers that a public official or employee is under a three-
fold responsibility for violation of duty or for a wrongful act or omission. This simply means that a public
officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such
violation or wrongful act results in damages to an individual, the public officer may be held civilly liable
to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be
punished criminally. Finally, such violation may also lead to suspension, removal from office, or
other administrative sanctions. This administrative liability is separate and distinct from the penal and
civil liabilities. (Italics in the original.)
Dismissal of a criminal action does not foreclose institution of an administrative proceeding against the
same respondent, nor carry with it the relief from administrative liability. 6 Res judicata did not set in
because there is no identity of causes of action. Moreover, the decision of the Ombudsman dismissing
the criminal complaint cannot be considered a valid and final judgment. On the criminal complaint, the

Page 146 of 321

Administrative Law
Ombudsman only had the power to investigate and file the appropriate case before the
Sandiganbayan.7
In the analogous case of Montemayor v. Bundalian,8 this Court ruled:
Lastly, we cannot sustain petitioners stance that the dismissal of similar charges against him
before the Ombudsman rendered the administrative case against him before the PCAGC moot
and academic. To be sure, the decision of the Ombudsman does not operate as res judicata in
the PCAGC case subject of this review. The doctrine of res judicataapplies only to judicial or quasi-
judicial proceedings, not to the exercise of administrative powers. Petitioner was investigated by the
Ombudsman for his possible criminal liability for the acquisition of the Burbank property in violation of
the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For the same alleged
misconduct, petitioner, as a presidential appointee, was investigated by the PCAGC by virtue of the
administrative power and control of the President over him. As the PCAGCs investigation of petitioner
was administrative in nature, the doctrine of res judicata finds no application in the case at bar.
(Emphasis supplied.)
Respondent argues that it is the Ombudsman who has primary jurisdiction over the administrative
complaint filed against him. Notwithstanding the consolidation of the administrative offense (non-
declaration in the SSAL) with the criminal complaints for unexplained wealth (Section 8 of R.A. No.
3019) and also for perjury (Article 183, Revised Penal Code, as amended) before the Office of the
Ombudsman, respondents objection on jurisdictional grounds cannot be sustained.
Section 12 of Article XI of the 1987 Constitutionmandated the Ombudsman to act promptly on
complaints filed in any form or manner against public officials or employees of the Government, or any
subdivision, agency, instrumentality thereof, including government-owned or controlled corporations.
Under Section 13, Article XI, the Ombudsman is empowered to conduct investigations on his own or
upon complaint by any person when such act appears to be illegal, unjust, improper, or inefficient. He
is also given broad powers to take the appropriate disciplinary actions against erring public officials
and employees.
The investigative authority of the Ombudsman is defined in Section 15 of R.A. No. 6770:
SEC. 15. Powers, Functions and Duties.The Office of the Ombudsman shall have the following
powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission
of any public officer or employee, office or agency, when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from
any investigatory agency of Government, the investigation of such cases;
x x x x (Emphasis supplied.)
Such jurisdiction over public officers and employees, however, is not exclusive.
This power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized government
agencies, such as the PCGG and judges of municipal trial courts and municipal circuit trial courts. The
power to conduct preliminary investigation on charges against public employees and officials is

Page 147 of 321

Administrative Law
likewise concurrently shared with the Department of Justice. Despite the passage of the Local
Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the
President and the local Sanggunians to investigate complaints against local elective
officials.9 (Emphasis supplied.)
Respondent who is a presidential appointee is under the disciplinary authority of the OP. Executive
Order No. 12 dated April 16, 2001 created the PAGC which was granted the authority
to investigate presidential and also non-presidential employees who may have acted in conspiracy or
may have been involved with a presidential appointee or ranking officer mentioned x x x.10 On this
score, we do not agree with respondent that the PAGC should have deferred to the Ombudsman
instead of proceeding with the administrative complaint in view of the pendency of his petition for
certiorari with the CA challenging the PAGCs jurisdiction. Jurisdiction is a matter of law. Jurisdiction
once acquired is not lost upon the instance of the parties but continues until the case is terminated. 11
It may be recalled that at the time respondent was directed to submit his counter-affidavit under the
Ombudsmans Order dated March 19, 2004, the PAGC investigation had long commenced and in fact,
the PAGC issued an order directing respondent to file his counter-affidavit/verified answer as early as
May 19, 2003. The rule is that initial acquisition of jurisdiction by a court of concurrent jurisdiction
divests another of its own jurisdiction.12 Having already taken cognizance of the complaint against the
respondent involving non-declaration in his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction
over respondents administrative case notwithstanding the subsequent filing of a supplemental
complaint before the Ombudsman charging him with the same violation.
As to the third ground raised by respondent, we find no merit in his reiteration of the alleged gross
violation of his right to due process. Records bear out that he was given several opportunities to
answer the charge against him and present evidence on his defense, which he stubbornly ignored
despite repeated warnings that his failure to submit the required answer/counter-affidavit and position
paper with supporting evidence shall be construed as waiver on his part of the right to do so.
The essence of due process in administrative proceedings is the opportunity to explain ones side or
seek a reconsideration of the action or ruling complained of. As long as the parties are given the
opportunity to be heard before judgment is rendered, the demands of due process are sufficiently
met.13 What is offensive to due process is the denial of the opportunity to be heard. 14 This Court has
repeatedly stressed that parties who choose not to avail themselves of the opportunity to an swer
charges against them cannot complain of a denial of due process.15 Having persisted in his refusal to
file his pleadings and evidence before the PAGC, respondent cannot validly claim that his right to due
process was violated.
In his dissenting opinion, my esteemed colleague, Justice Lucas P. Bersamin, concurred with the CAs
finding that respondents right to due process was violated by the unilateral investigation conducted
by the PAGC which did not furnish the respondent with a copy of the prejudicial PAGC resolution.
The dissent also agreed with the CAs observation that there was a rush on the part of the PAGC to
find the respondent guilty of the charge. This was supposedly manifested in the issuance by the PAGC
of its resolution even without taking into consideration any explanation and refutation of the charges
that he might make, and even before the CA could finally resolve his suit to challenge the PAGCs
jurisdiction to investigate him. On the other hand, the dissent proposed that the non-submission by
respondent of his counter-affidavit or verified answer as directed by the PAGC should not be taken

Page 148 of 321

Administrative Law
against him. Respondents refusal was not motivated by bad faith, considering his firm belief that
PAGC did not have jurisdiction to administratively or disciplinarily investigate him.
We do not share this view adopted by the dissent.
Records reveal that on August 26, 2003, the CA already rendered a decision in CA-G.R. SP No. 77285
dismissing respondents petition challenging the jurisdiction of the PAGC. Respondents motion for
reconsideration was likewise denied by the CA. Upon elevation to this Court viaa petition for review
on certiorari (G.R. No. 160443), the petition suffered the same fate. Under the First Divisions
Resolution dated January 26, 2004, the petition was denied for failure of the petitioner (respondent) to
show that the CA committed any reversible error in the assailed decision and resolution. Said
resolution became final and executory on April 27, 2004.Thus, at the time respondent submitted his
counter-affidavit before the Ombudsman on May 21, 2004, there was already a final resolution of his
petition challenging the PAGCs investigative authority.
On the other hand, the PAGC submitted to the OP its September 1, 2003 resolution finding respondent
guilty as charged and recommending that he be dismissed from the service, after the expiration of the
60-day temporary restraining order issued on June 23, 2003 by the CA in CA-G.R. SP No. 77285. The
OP rendered its Decision adopting the PAGCs findings and recommendation on March 23, 2004. As
thus shown, a period of ten (10) months had elapsed from the time respondent was directed to file his
counter-affidavit or verified answer to the administrative complaint filed against him, up to the rendition
of the OPs decision. It cannot therefore be said that the PAGC and OP proceeded with undue haste in
determining respondents administrative guilt.
Still on respondents repeated claim that he was denied due process, it must be noted that when
respondent received a copy of the OP Decision dated March 23, 2004, his petition for review filed in
this Court assailing the CAs dismissal of CA-G.R. SP No. 77285 was already denied under Resolution
dated January 26, 2004. However, despite the denial of his petition, respondent still refused to
recognize PAGCs jurisdiction and continued to assail the same before the CA in CA-G.R. SP No.
84254, a petition for review under Rule 43 from the OPs March 23, 2004 Decision and May 13, 2004
Resolution.16 In any event, respondent was served with a copy of the OP Decision, was able to seek
reconsideration of the said decision, and appeal the same to the CA.
We also find nothing irregular in considering the investigation terminated and submitting the case for
resolution based on available evidence upon failure of the respondent to file his counter-affidavit or
answer despite giving him ample opportunity to do so. This is allowed by the Rules of Procedure of the
PAGC. The PAGC is also not required to furnish the respondent and complainant copy of its
resolution.
The dissent of Justice Bersamin assails the OPs complete reliance on the PAGCs findings and
recommendation which constituted a gross violation of administrative due process as set forth in Ang
Tibay v. Court of Industrial Relations.17 Among others, it is required that [T]he tribunal or any of its
judges must act on its or his own independent consideration of the facts and the law of the
controversy, and not simply accept the views of a subordinate in arriving at a decision. Justice
Bersamin thus concludes that the OP should have itself reviewed and appreciated the evidence
presented and independentlyconsidered the facts and the law of the controversy. It was also pointed
out that the OPs statement that the respondents arguments in his Motion for Reconsideration With
Motion For Leave To Admit Explanation/Refutation of Complaint were a mere reiteration of matters
previously considered, was a patent untruth.
Page 149 of 321
Administrative Law
We disagree.
The OP decision, after quoting verbatim the findings and recommendation of the PAGC, adopted the
same with a brief statement preceding the dispositive portion:
After a circumspect study of the case, this Office fully agrees with the recommendation of PAGC and
the legal premises as well as the factual findings that hold it together. Respondent failed to disclose in
his 2001 and 2002 SSAL high-priced vehicles in breach of the prescription of the relevant provisions of
RA No. 3019 in relation to RA No. 6713. He was, to be sure, afforded ample opportunity to explain his
failure, but he opted to let the opportunity pass by.18
The relevant consideration is not the brevity of the above disquisition adopting fully the findings and
recommendation of the PAGC as the investigating authority. It is rather the fact that the OP is not a
court but an administrative body determining the liability of respondent who was administratively
charged, in the exercise of its disciplinary authority over presidential appointees.
In Solid Homes, Inc. v. Laserna,19 this Court ruled that the rights of parties in an administrative
proceedings are not violated by the brevity of the decision rendered by the OP incorporating the
findings and conclusions of the Housing and Land Use Regulatory Board (HLURB), for as long as the
constitutional requirement of due process has been satisfied. Thus:
It must be stated that Section 14, Article VIII of the 1987 Constitution need not apply to decisions
rendered in administrative proceedings, as in the case a[t] bar. Said section applies only to
decisions rendered in judicial proceedings. In fact, Article VIII is titled Judiciary, and all of its
provisions have particular concern only with respect to the judicial branch of government. Certainly, it
would be error to hold or even imply that decisions of executive departments or administrative
agencies are oblige[d] to meet the requirements under Section 14, Article VIII.
The rights of parties in administrative proceedings are not violated as long as the
constitutional requirement of due process has been satisfied. In the landmark case of Ang Tibay
v. CIR, we laid down the cardinal rights of parties in administrative proceedings, as follows:
1) The right to a hearing, which includes the right to present ones case and submit evidence in
support thereof.
2) The tribunal must consider the evidence presented.
3) The decision must have something to support itself.
4) The evidence must be substantial.
5) The decision must be rendered on the evidence presented at the hearing, or at least contained in
the record and disclosed to the parties affected.
6) The tribunal or body or any of its judges must act on its or his own independent consideration of
the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a
decision.
7) The board or body should, in all controversial question, render its decision in such a manner that
the parties to the proceeding can know the various issues involved, and the reason for the decision
rendered.

Page 150 of 321

Administrative Law
As can be seen above, among these rights are the decision must be rendered on the evidence
presented at the hearing, or at least contained in the record and disclosed to the parties affected; and
that the decision be rendered in such a manner that the parties to the proceedings can know the
various issues involved, and the reasons for the decisions rendered. Note that there is no requirement
in Ang Tibay that the decision must express clearly and distinctly the facts and the law on which it is
based. For as long as the administrative decision is grounded on evidence, and expressed in a
manner that sufficiently informs the parties of the factual and legal bases of the decision, the
due process requirement is satisfied.
At bar, the Office of the President apparently considered the Decision of HLURB as correct and
sufficient, and said so in its own Decision. The brevity of the assailed Decision was not the
product of willing concealment of its factual and legal bases. Such bases, the assailed Decision
noted, were already contained in the HLURB decision, and the parties adversely affected need only
refer to the HLURB Decision in order to be able to interpose an informed appeal or action
for certiorari under Rule 65.
xxxx
Accordingly, based on close scrutiny of the Decision of the Office of the President, this Court rules that
the said Decision of the Office of the President fully complied with both administrative due process and
Section 14, Article VIII of the 1987 Philippine Constitution.
The Office of the President did not violate petitioners right to due process when it rendered its one-
page Decision. In the case at bar, it is safe to conclude that all the parties, including petitioner, were
well-informed as to how the Decision of the Office of the President was arrived at, as well as the facts,
the laws and the issues involved therein because the Office of the President attached to and made an
integral part of its Decision the Decision of the HLURB Board of Commissioners, which it adopted by
reference. If it were otherwise, the petitioner would not have been able to lodge an appeal before the
Court of Appeals and make a presentation of its arguments before said court without knowing the facts
and the issues involved in its case.20(Emphasis supplied.)
Since respondent repeatedly refused to answer the administrative charge against him despite notice
and warning by the PAGC, he submitted his evidence only after an adverse decision was rendered by
the OP, attaching the same to his motion for reconsideration. That the OP denied the motion by
sustaining the PAGCs findings without any separate discussion of respondents arguments and
belatedly submitted evidence only meant that the OP found the same lacking in merit and insufficient
to overturn its ruling on respondents administrative liability.
On the fourth ground cited by the respondent, we maintain that the penalty of dismissal from the
service is justified as no acceptable explanation was given for the non-declaration of the two expensive
cars in his 2001 and 2002 SSAL.
Pursuant to Section 11, paragraph (b) of R.A. No. 6713, any violation of the law proven in a proper
administrative proceeding shall be sufficient cause for removal or dismissal of a public official or
employee, even if no criminal prosecution is instituted against him. Respondents deliberate attempt to
evade the mandatory disclosure of all assets acquired during the period covered was evident when he
first claimed that the vehicles were lumped under the entry Machineries/Equipment or still mortgaged,
and later averred that these were already sold by the end of the year covered and the proceeds
already spent.
Page 151 of 321
Administrative Law
Under this scheme, respondent would have acquired as many assets never to be declared at anytime.
Such act erodes the function of requiring accuracy of entries in the SSAL which must be a true and
detailed statement. It undermines the SSAL as the means to achieve the policy of accountability of all
public officers and employees in the government through which the public are able to monitor
movement in the fortune of a public official; [as] a valid check and balance mechanism to verify
undisclosed properties and wealth.21
IN VIEW OF THE FOREGOING, the motion for reconsideration is DENIED WITH FINALITY.
Let entry of judgment be made in due course.
SO ORDERED.
Carpio-Morales (Chairperson), Velasco, Jr.,** Del Castillo*** and Sereno, JJ., concur.
Motion for Reconsideration denied with finality.
Notes.The remedy of Certiorari under Rule 65 of the Rules of Court is always available to an
aggrieved public official in case the Ombudsman or his Deputy hastily, arbitrarily, if not oppressively
and/or inhumanly, acts to find a public official administratively liable for an imagined violation of R.A.
6713. (Alba vs. Nitorreda, 254 SCRA 753 [1996])
Non-disclosure of a government officials assets and business interest essentially embraces or
comprehends concealment of unexplained wealth. (Ombudsman vs. Valeroso, 520 SCRA 140 [2007])

o0o

Page 152 of 321

Administrative Law
Case 8

G.R. Nos. 217126-27. November 10, 2015.*

CONCHITA CARPIO-MORALES, in her capacity as the Ombudsman, petitioner, vs. COURT OF
APPEALS (SIXTH DIVISION) and JEJOMAR ERWIN S. BINAY, JR., respondents.
Remedial Law; Special Civil Actions; Certiorari; Prohibition; A common requirement to both a petition
for certiorari and a petition for prohibition taken under Rule 65 of the 1997 Rules of Civil Procedure is
that the petitioner has no other plain, speedy, and adequate remedy in the ordinary course of law.A
common requirement to both a petition for certiorari and a petition for prohibition taken under Rule 65
of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and adequate
remedy in the ordinary course of law.
Same; Same; Same; Motion for Reconsideration; As a general rule, a motion for reconsideration must
first be filed with the lower court prior to resorting to the extraordinary remedy of certiorari or prohibition
since a motion for reconsideration may still be considered as a plain, speedy, and adequate remedy in
the ordinary course of law; Exceptions.As a general rule, a motion for reconsideration must first be
filed with the lower court prior to resorting to the extraordinary remedy of certiorari or prohibition since
a motion for reconsideration may still be considered as a plain, speedy, and adequate remedy in the
ordinary course of law. The rationale for the prerequisite is to grant an opportunity for the lower court
or agency to correct any actual or perceived error attributed to it by the reexamination of the legal and
factual circumstances of the case. Jurisprudence states that [i]t is [the] inadequacy, [and] not the mere
absence of all other legal remedies and the danger of failure of justice without the writ, that must
usually determine the propriety of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate
if it will promptly relieve the petitioner from the injurious effects of the judgment, order, or resolution of
the lower court or agency. x x x. In this light, certain exceptions were crafted to the general rule
requiring a prior motion for reconsideration before the filing of a petition for certiorari, which exceptions
also apply to a petition for prohibition. These are: (a) where the order is a patent nullity, as where the
court a quo has no jurisdiction; (b) where the questions raised in the certiorariproceedings have been
duly raised and passed upon by the lower court, or are the same as those raised and passed upon in
the lower court; (c) where there is an urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the Government or of the petitioner or the subject
matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration
would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for
relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief
by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due
process; (h) where the proceedings were ex parte or in which the petitioner had no opportunity to
object; and (i) where the issue raised is one purely of law or where public interest is involved.
Same; Courts; Jurisdiction; A courts jurisdiction over the subject matter may be raised at any stage of
the proceedings.Albeit raised for the first time by the Ombudsman in her Memorandum, it is
nonetheless proper to resolve the issue on the CAs lack of subject matter jurisdiction over the main
petition for certiorari in C.A.-G.R. S.P. No. 139453, in view of the well-established rule that a courts
jurisdiction over the subject matter may be raised at any stage of the proceedings. The rationale is that
subject matter jurisdiction is conferred by law, and the lack of it affects the very authority of the court to
take cognizance of and to render judgment on the action. Hence, it should be preliminarily determined
Page 153 of 321
Administrative Law
if the CA indeed had subject matter jurisdiction over the main C.A.-G.R. S.P. No. 139453 petition, as
the same determines the validity of all subsequent proceedings relative thereto. It is noteworthy to
point out that Binay, Jr. was given the opportunity by this Court to be heard on this issue, as he, in fact,
duly submitted his opposition through his comment to the Ombudsmans Memorandum. That being
said, the Court perceives no reasonable objection against ruling on this issue.
Ombudsman Act; The first paragraph of Section 14, Republic Act (RA) No. 6770 is a prohibition
against any court (except theSupreme Court [SC]) from issuing a writ of injunction to delay an
investigation being conducted by the Office of the Ombudsman.The first paragraph of Section 14,
RA 6770 is a prohibition against any court (except the Supreme Court) from issuing a writ of injunction
to delay an investigation being conducted by the Office of the Ombudsman. Generally speaking,
[i]njunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from
doing a certain act. It may be the main action or merely a provisional remedy for and as an incident in
the main action. Considering the textual qualifier to delay, which connotes a suspension of an action
while the main case remains pending, the writ of injunction mentioned in this paragraph could only
refer to injunctions of the provisional kind, consistent with the nature of a provisional injunctive relief.
The exception to the no injunction policy is when there is prima facie evidence that the subject matter
of the investigation is outside the offices jurisdiction. The Office of the Ombudsman has disciplinary
authority over all elective and appointive officials of the government and its subdivisions,
instrumentalities, and agencies, with the exception only of impeachable officers, Members of
Congress, and the Judiciary. Nonetheless, the Ombudsman retains the power to investigate any
serious misconduct in office allegedly committed by officials removable by impeachment, for the
purpose of filing a verified complaint for impeachment, if warranted. Note that the Ombudsman has
concurrent jurisdiction over certain administrative cases which are within the jurisdiction of the regular
courts or administrative agencies, but has primary jurisdiction to investigate any act or omission of a
public officer or employee who is under the jurisdiction of the Sandiganbayan.
Same; The second paragraph of Section 14, Republic Act (RA) No. 6770 provides that no appeal or
application for remedy may be heard against the decision or findings of the Ombudsman, with the
exception of the Supreme Court (SC) on pure questions of law.On the other hand, the second
paragraph of Section 14, RA 6770provides that no appeal or application for remedy may be heard
against the decision or findings of the Ombudsman, with the exception of the Supreme Court on pure
questions of law. This paragraph, which the Ombudsman particularly relies on in arguing that the CA
had no jurisdiction over the main C.A.-G.R. S.P. No. 139453 petition, as it is supposedly this Court
which has the sole jurisdiction to conduct a judicial review of its decisions or findings, is vague for two
(2) reasons: (1) it is unclear what the phrase application for remedy or the word findings refers to;
and (2) it does not specify what procedural remedy is solely allowable to this Court, save that the same
be taken only against a pure question of law. The task then, is to apply the relevant principles of
statutory construction to resolve the ambiguity.
Same; Statutory Construction; In case of doubt as to what a provision of a statute means, the meaning
put to the provision during the legislative deliberations may be adopted, albeit not controlling in the
interpretation of the law.As an aid to construction, courts may avail themselves of the actual
proceedings of the legislative body in interpreting a statute of doubtful meaning. In case of doubt as to
what a provision of a statute means, the meaning put to the provision during the legislative
deliberations may be adopted, albeit not controlling in the interpretation of the law.

Page 154 of 321

Administrative Law
Same; Same; As a general rule, the second paragraph of Section 14, Republic Act (RA) No. 6770
bans the whole range of remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal
against any decision or finding of the Ombudsman, and (b) any application of remedy against the
same.As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of
remedies against issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision
or finding of the Ombudsman, and (b) any application of remedy (subject to the exception below)
against the same. To clarify, the phrase application for remedy, being a generally worded provision,
and being separated from the term appeal by the disjunctive or, refers to any remedy (whether
taken mainly or provisionally), except an appeal, following the maxim generalia verba sunt generaliter
intelligenda: general words are to be understood in a general sense. By the same principle, the word
findings, which is also separated from the word decision by the disjunctive or, would therefore
refer to any finding made by the Ombudsman (whether final or provisional), except a decision. The
subject provision, however, crafts an exception to the foregoing general rule. While the specific
procedural vehicle is not explicit from its text, it is fairly deducible that the second paragraph of Section
14, RA 6770 excepts, as the only allowable remedy against the decision or findings of the
Ombudsman, a Rule 45 appeal, for the reason that it is the only remedy taken to the Supreme
Court on pure questions of law,whether under the 1964 Rules of Court or the 1997 Rules of Civil
Procedure.
Doctrine of Non-Interference; Appeals; Petition for Review on Certiorari; Congress cannot interfere
with matters of procedure; hence, it cannot alter the scope of a Rule 45 appeal so as to apply to
interlocutory findings issued by the Ombudsman.Of course, the second paragraph of Section 14,
RA 6770s extremely limited restriction on remedies is inappropriate since a Rule 45 appeal which is
within the sphere of the rules of procedure promulgated by this Court can only be taken against final
decisions or orders of lower courts, and not against findings of quasi-judicial agencies. As will be later
elaborated upon, Congress cannot interfere with matters of procedure; hence, it cannot alter the scope
of a Rule 45 appeal so as to apply to interlocutory findings issued by the Ombudsman. More
significantly, by confining the remedy to a Rule 45 appeal, the provision takes away the remedy
of certiorari, grounded on errors of jurisdiction, in denigration of the judicial power constitutionally
vested in courts. In this light, the second paragraph of Section 14, RA 6770 also increased this Courts
appellate jurisdiction, without a showing, however, that it gave its consent to the same. The provision
is, in fact, very similar to the fourth paragraph of Section 27, RA 6770 (as above cited), which was
invalidated in the case of Fabian v. Desierto, 295 SCRA 470 (1998).
Same; Judicial Power; The concept of Ombudsman independence cannot be invoked as basis to
insulate the Ombudsman from judicial power constitutionally vested unto the courts.The concept of
Ombudsman independence cannot be invoked as basis to insulate the Ombudsman from judicial
power constitutionally vested unto the courts. Courts are apolitical bodies, which are ordained to act as
impartial tribunals and apply even justice to all. Hence, the Ombudsmans notion that it can be exempt
from an incident of judicial power that is, a provisional writ of injunction against a preventive
suspension order clearly strays from the concepts rationale of insulating the office from political
harassment or pressure.
Remedial Law; Courts; Hierarchy of Courts; Certiorari; The Court of Appeals (CAs) certiorari
jurisdiction is not only original but also concurrent with the Regional Trial Courts (RTCs) (under Section
21[1], Chapter II of Batas Pambansa [BP] Blg. 129), and the Supreme Court (SC) (under Section 5,
Article VIII of the 1987 Philippine Constitution). In view of the concurrence of these courts jurisdiction
Page 155 of 321
Administrative Law
over petitions for certiorari, the doctrine of hierarchy of courts should be followed.Note that the
CAs certiorari jurisdiction, as above stated, is not only original but alsoconcurrent with the Regional
Trial Courts (under Section 21[1], Chapter II of BP 129), and the Supreme Court (under Section 5,
Article VIII of the 1987 Philippine Constitution). In view of the concurrence of these courts jurisdiction
over petitions for certiorari, the doctrine of hierarchy of courts should be followed. In People v.
Cuaresma, 172 SCRA 415 (1989), the doctrine was explained as follows: [T]his concurrence of
jurisdiction is not x x x to be taken as according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which application therefor will be directed. There is after
all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also
serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level (inferior) courts should be filed with the Regional Trial Court, and
those against the latter, with the Court of Appeals. When a court has subject matter jurisdiction over
a particular case, as conferred unto it by law, said court may then exercise its jurisdictionacquired
over that case, which is called judicial power.
Judicial Power; Words and Phrases; Judicial power, as vested in the Supreme Court (SC) and all other
courts established by law, has been defined as the totality of powers a court exercises when it
assumes jurisdiction and hears and decides a case.Judicial power, as vested in the Supreme
Court and all other courts established by law, has been defined as the totality of powers a court
exercises when it assumes jurisdiction and hears and decides a case. Under Section 1, Article
VIII of the 1987 Constitution, it includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
Same; While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vestedunto Congress, the power to promulgate rules concerning the protection
and enforcement of constitutional rights, pleading, practice, and procedure in all courts belongs
exclusively to the Supreme Court (SC).Judicial power is never exercised in a vacuum. A
courts exercise of the jurisdiction it has acquired over a particular case conforms to the limits
and parameters ofthe rules of procedure duly promulgated by this Court. In other words,
procedure is the framework within which judicial power is exercised. In Manila Railroad Co. v.
Attorney-General, 20 Phil. 523 (1911), the Court elucidated that [t]he power or authority of the court
over the subject matter existed and was fixed before procedure in a given cause began. Procedure
does not alter or change that power or authority; it simply directs the manner in which it shall
be fully and justly exercised. To be sure, in certain cases, if that power is not exercised in conformity
with the provisions of the procedural law, purely, the court attempting to exercise it loses the power to
exercise it legally. This does not mean that it loses jurisdiction of the subject matter. While the power
to define, prescribe, and apportion the jurisdiction of the various courts is, by constitutional design,
vested unto Congress, the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts belongs
exclusively to this Court.
Remedial Law; Temporary Restraining Order; Preliminary Injunction; It is well-settled that the sole
object of a temporary restraining order (TRO) or a writ of preliminary injunction (WPI), whether
prohibitory or mandatory, is to preserve the status quountil the merits of the case can be heard.A
Page 156 of 321
Administrative Law
temporary restraining order and a writ of preliminary injunction both constitute temporary measures
availed of during the pendency of the action. They are, by nature, ancillary because they are mere
incidents in and are dependent upon the result of the main action. It is well-settled that the sole
object of a temporary restraining order or a writ of preliminary injunction, whether prohibitory
or mandatory, is topreserve the status quo until the merits of the case can be heard. They are
usually granted when it is made to appear that there is a substantial controversy between the parties
and one of them is committing an act or threatening the immediate commission of an act that will
cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had
on the merits of the case. In other words, they are preservative remedies for the protection of
substantive rights or interests, and, hence, not a cause of action in itself, but merely adjunct to a main
suit. In a sense, they are regulatory processes meant to prevent a case from being mooted by the
interim acts of the parties.
Same; Same; Same; The Supreme Court (SC) rules that when Congress passed the first paragraph of
Section 14, Republic Act (RA) No. 6770 and, in so doing, took away from the courts their power to
issue a Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction (WPI) to enjoin an
investigation conducted by the Ombudsman, it encroached upon the Courts constitutional rule-making
authority.With these considerations in mind, the Court rules that when Congress passed the first
paragraph of Section 14, RA 6770 and, in so doing, took away from the courts their power to issue a
TRO and/or WPI to enjoin an investigation conducted by the Ombudsman, it encroached upon this
Courts constitutional rule-making authority. Clearly, these issuances, which are, by nature, provisional
reliefs and auxiliary writs created under the provisions of the Rules of Court, are matters of
procedurewhich belong exclusively within the province of this Court. Rule 58 of the Rules of Court did
not create, define, and regulate a right but merely prescribed the means of implementing an existing
right since it only provided for temporary reliefs to preserve the applicants right inesse which is
threatened to be violated during the course of a pending litigation.
Political Law; Separation of Powers; When Congress creates a court and delimits its jurisdiction, the
procedure for which its jurisdiction is exercised is fixed by the Court through the rules it promulgates.
That Congress has been vested with the authority to define, prescribe, and apportion the jurisdiction of
the various courts under Section 2, Article VIII, supra, as well as to create statutory courts under
Section 1, Article VIII, supra, does not result in an abnegation of the Courts own power to promulgate
rules of pleading, practice, and procedure under Section 5(5), Article VIII, supra. Albeit operatively
interrelated, these powers are nonetheless institutionally separate and distinct, each to be preserved
under its own sphere of authority. When Congress creates a court and delimits its jurisdiction, the
procedure for which its jurisdiction is exercised is fixed by the Court through the rules it
promulgates. The first paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the
Ombudsman misconceives, because it does not define, prescribe, and apportion the subject matter
jurisdiction of courts to act on certiorari cases; the certiorari jurisdiction of courts, particularly the CA,
stands under the relevant sections of BP 129 which were not shown to have been repealed. Instead,
through this provision, Congress interfered with a provisional remedy that was created by this
Court under its duly promulgated rules of procedure, which utility is both integral and inherent
to every courts exercise of judicial power. Without the Courts consent to the proscription, as
may be manifested by an adoption of the same as part of the rules of procedure through an
administrative circular issued therefor, there thus, stands to be a violation of the separation of
powers principle.

Page 157 of 321

Administrative Law
Same; Judicial Power; To give true meaning to the judicial power contemplated by the Framers of our
Constitution, the Courts duly promulgated rules of procedure should therefore remain unabridged, this,
even by statute.It should be pointed out that the breach of Congress in prohibiting provisional
injunctions, such as in the first paragraph of Section 14, RA 6770, does not only undermine the
constitutional allocation of powers; it also practically dilutes a courts ability to carry out its
functions.This is so since a particular case can easily be mooted by supervening events ifno
provisional injunctive relief is extended while the court is hearing the same. Accordingly, the
courts acquired jurisdiction, through which it exercises its judicial power, is rendered nugatory. Indeed,
the force of judicial power, especially under the present Constitution, cannot be enervated due to a
courts inability to regulate what occurs during a proceedings course. As earlier intimated, when
jurisdiction over the subject matter is accorded by law and has been acquired by a court, its exercise
thereof should be unclipped. To give true meaning to the judicial power contemplated by the Framers
of our Constitution, the Courts duly promulgated rules of procedure should therefore remain
unabridged, this, even by statute. Truth be told, the policy against provisional injunctive writs in
whatever variant should only subsist under rules of procedure duly promulgated by the Court given its
sole prerogative over the same.
Administrative Law; Preventive Suspension; A preventive suspension order is not a penalty but only a
preventive measure.By nature, a preventive suspension order is not a penalty but only a
preventive measure. In Quimbo v. Acting Ombudsman Gervacio, 466 SCRA 277 (2005), the Court
explained the distinction, stating that its purpose is to prevent the official to be suspended from
using his position and the powers and prerogatives of his office to influence potential
witnesses or tamper with records which may be vital in the prosecution of the case against
him: Jurisprudential law establishes a clear-cut distinction between suspension as preventive
measure and suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive
suspension is merely a preventive measure, a preliminary step in an administrative
investigation. The purpose of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence potential witnesses or
tamper with records which may be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is found guilty of acts warranting
his suspension or removal, then he is suspended, removed or dismissed. This is the penalty.
Same; Same; The law sets forth two (2) conditions that must be satisfied to justify the issuance of an
order of preventive suspensionpending an investigation.The law sets forth two (2) conditions that
must be satisfied to justify the issuance of an order of preventive suspension pending an investigation,
namely: (1) The evidence of guilt is strong; and (2) Either of the following circumstances coexist with
the first requirement: (a) The charge involves dishonesty, oppression or grave misconduct or neglect in
the performance of duty; (b) The charge would warrant removal from the service; or (c) The
respondents continued stay in office may prejudice the case filed against him.
Same; Condonation; Words and Phrases; Generally speaking, condonation has been defined as [a]
victims express or implied forgiveness of an offense, [especially] by treating the offender as if there
had been no offense.Generally speaking, condonation has been defined as [a] victims express or
implied forgiveness of an offense, [especially] by treating the offender as if there had been no
offense. The condonation doctrine which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon is not based on statutory law. It is a jurisprudential creation
Page 158 of 321
Administrative Law
that originated from the 1959 case of Pascual v. Hon. Provincial Board of Nueva Ecija, 106 Phil.
466 (Pascual), which was therefore decided under the 1935 Constitution.
Same; Condonation Doctrine; The Court, citing Civil Service Commission v. Sojor, 554 SCRA 160
(2008), also clarified that the condonation doctrine would not apply to appointive officials since, as to
them, there is no sovereign will to disenfranchise.The Court, citing Civil Service Commission v.
Sojor, 554 SCRA 160 (2008), also clarified that the condonation doctrine would not apply to
appointive officials since, as to them, there is no sovereign will to disenfranchise.
Civil Service; Public Officers; The 1987 Constitution strengthened and solidified what has been first
proclaimed in the 1973 Constitution by commanding public officers to be accountable to the people at
all times.After the turbulent decades of Martial Law rule, the Filipino People have framed and
adopted the 1987 Constitution, which sets forth in the Declaration of Principles and State Policies in
Article II that [t]he State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption. Learning how unbridled power
could corrupt public servants under the regime of a dictator, the Framers put primacy on the integrity of
the public service by declaring it as a constitutional principle and a State policy. More significantly, the
1987 Constitution strengthened and solidified what has been first proclaimed in the 1973 Constitution
by commanding public officers to be accountable to the people at all times: Section 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 and act with patriotism and
justice, and lead modest lives. In Belgica v. Ochoa, Jr., 710 SCRA 1 (2013), it was explained that:
[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that public
office is a public trust, is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the peoples trust. The notion of a public trust connotes
accountability x x x. (Emphasis supplied) The same mandate is found in the Revised Administrative
Code under the section of the Civil Service Commission, and also, in the Code of Conduct and Ethical
Standards for Public Officials and Employees.
Same; Same; For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove
an elective local official from office are stated in Section 60 of Republic Act (RA) No. 7160,otherwise
known as the Local Government Code of 1991 (LGC), which was approved on October 10 1991, and
took effect on January 1, 1992.For local elective officials like Binay, Jr., the grounds to discipline,
suspend or remove an elective local official from office are stated in Section 60 of Republic Act
No. 7160, otherwise known as the Local Government Code of 1991 (LGC), which was approved on
October 10 1991, and took effect on January 1, 1992: Section 60. Grounds for Disciplinary Action.
An elective local official may be disciplined, suspended, or removed from office on any of the following
grounds: (a) Disloyalty to the Republic of the Philippines; (b) Culpable violation of the Constitution; (c)
Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty; (d) Commission
of any offense involving moral turpitude or an offense punishable by at least prisin mayor; (e) Abuse
of authority; (f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan,
and sangguniangbarangay; (g) Application for, or acquisition of, foreign citizenship or residence or the
status of an immigrant of another country; and (h) Such other grounds as may be provided in this Code
and other laws. An elective local official may be removed from office on the grounds enumerated
above by order of the proper court.
Page 159 of 321
Administrative Law
Same; Same; Section 40(b) of the Local Government Code (LGC) states that those removed from
office as a result of an administrative case shall be disqualified from running for any elective local
position.Related to this provision is Section 40(b) of the LGC which states
that those removed from office as a result of an administrative case shall be disqualified from
running for any elective local position: Section 40. Disqualifications.The following persons are
disqualified from running for any elective local position: x x x x (b) Those removed from office as a
result of an administrative case.
Same; Same; Condonation Doctrine; The doctrine of condonation is actually bereft of legal bases.
Section 52(a) of the RRACCS provides that the penalty of dismissal from service carries the
accessory penalty of perpetual disqualification from holding public office: Section
52. Administrative Disabilities Inherent in Certain Penalties.a. The penalty of dismissal shall carry
with it cancellation of eligibility, forfeiture of retirement benefits, perpetual disqualification from holding
public office, and bar from taking the civil service examinations. In contrast, Section 66(b) of the LGC
states that the penalty of suspension shall not exceed the unexpired term of the elective local official
nor constitute a bar to his candidacy for as long as he meets the qualifications required for the office.
Note, however, that the provision only pertains to the duration of the penalty and its effect on the
officials candidacy. Nothing therein states that the administrative liability therefor is
extinguished by the fact of reelection: Section 66. Form and Notice of Decision.x x x. x x x x (b)
The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6)
months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications required for the office. Reading the
1987 Constitution together with the above cited legal provisions now leads this Court to the conclusion
that the doctrine of condonation is actually bereft of legal bases.
Same; Same; Same; Election is not a mode of condoning an administrative offense, and there is
simply no constitutional or statutory basis in our jurisdiction to support the notion that an official elected
for a different term is fully absolved of any administrative liability arising from an offense done during a
prior term.The concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local officials administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term of
office, or even another elective post. Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion
that an official elected for a different term is fully absolved of any administrative liability arising from an
offense done during a prior term. In this jurisdiction, liabilityarising from administrative offenses
may be condoned by the President in light of Section 19, Article VII of the 1987 Constitution which
was interpreted in Llamas v. Orbos, 202 SCRA 844 (1991), to apply to administrative offenses.
Same; Same; Same; Nothing in Section 66(b) states that the elective local officials administrative
liability is extinguished by the fact of reelection. Thus, at all events, no legal provision actually supports
the theory that the liability is condoned.At best, Section 66(b) of the LGC prohibits the enforcement
of the penalty of suspension beyond the unexpired portion of the elective local officials prior term,
and likewise allows said official to still run for reelection. This treatment is similar to People ex rel.
Bagshaw v. Thompson, (55 Cal. App. 2d 147; 130 P.2d.237 [1942]), and Montgomery v. Nowell, (183
Ark. 1116; 40 S.W.2d 418 [1931]), both cited in Pascual, wherein it was ruled that an officer cannot
be suspended for a misconduct committed during a prior term. However, as previously stated, nothing
Page 160 of 321
Administrative Law
in Section 66(b) states that the elective local officials administrative liability is extinguished by the fact
of reelection. Thus, at all events, no legal provision actually supports the theory that the liability is
condoned.
Same; Same; Same; The Supreme Courts (SCs) abandonment of the condonation doctrine should be
prospective in application for the reason that judicial decisions applying or interpreting the laws orthe
Constitution, until reversed, shall form part of the legal system of the Philippines.This Court simply
finds no legal authority to sustain the condonation doctrine in this jurisdiction. As can be seen from this
discourse, it was a doctrine adopted from one class of US rulings way back in 1959 and thus, out of
touch from and now rendered obsolete by the current legal regime. In consequence, it is high
time for this Court to abandon the condonation doctrine that originated from Pascual, and affirmed in
the cases following the same, such as Aguinaldo v. Santos, 212 SCRA 768 (1992), Salalima v.
Guingona, Jr., 257 SCRA 55 (1996), Mayor Garcia v. Mojica, 314 SCRA 207 (1999),
and Governor Garcia, Jr. v. CA, 586 SCRA 799 (2009), which were all relied upon by the CA. It should,
however, be clarified that this Courts abandonment of the condonation doctrine should
be prospective in application for the reason that judicial decisions applying or interpreting the laws or
the Constitution, until reversed, shall form part of the legal system of the Philippines. Unto this Court
devolves the sole authority to interpret what the Constitution means, and all persons are bound to
follow its interpretation. As explained in De Castro v. Judicial Bar Council, 618 SCRA 639 (2010):
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations,
not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to
them.
Grave Abuse of Discretion; It is well-settled that an act of a court or tribunal can only be considered as
with grave abuse of discretion when such act is done in a capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction.It is well-settled that an act of a court or tribunal can only be
considered as with grave abuse of discretion when such act is done in a capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be so
patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility. It has also been held that grave abuse of
discretion arises when a lower court or tribunal patently violates the Constitution, the law or
existing jurisprudence.
Civil Service; Public Officers; Condonation Doctrine; The Supreme Court (SC) deems it apt to clarify
that the mootness of the issue regarding the validity of the preventive suspension order subject of this
case does not preclude any of its foregoing determinations, particularly, its abandonment of the
condonation doctrine.This Court deems it apt to clarify that the mootness of the issue regarding the
validity of the preventive suspension order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As explained in Belgica v.
Ochoa, Jr., the moot and academic principle is not a magical formula that can automatically dissuade
the Court in resolving a case. The Court will decide cases, otherwise moot, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount
public interest is involved; third, when the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet
evading review.
Page 161 of 321
Administrative Law
Same; Same; Same; It would be a violation of the Supreme Courts (SCs) own duty to uphold and
defend the Constitution if it were not to abandon the condonation doctrine now that its infirmities have
become apparent.It would be a violation of the Courts own duty to uphold and defend the
Constitution if it were not to abandon the condonation doctrine now that its infirmities have become
apparent. As extensively discussed, the continued application of the condonation doctrine is simply
impermissible under the auspices of the present Constitution which explicitly mandates that public
office is a public trust and that public officials shall be accountable to the people at all times.
Same; Same; Same; The condonation doctrine is a peculiar jurisprudential creation that has persisted
as a defense of elective officials to escape administrative liability.The condonation doctrine is a
peculiar jurisprudential creation that has persisted as a defense of elective officials to escape
administrative liability. It is the first time that the legal intricacies of this doctrine have been brought to
light; thus, this is a situation of exceptional character which this Court must ultimately resolve. Further,
since the doctrine has served as a perennial obstacle against exacting public accountability from the
multitude of elective local officials throughout the years, it is indubitable that paramount public interest
is involved.
Same; Same; Same; In any event, the abandonment of a doctrine is wholly within the prerogative of
the Court. As mentioned, it is its own jurisprudential creation and may therefore, pursuant to its
mandate to uphold and defend the Constitution, revoke it notwithstanding supervening events that
render the subject of discussion moot.The defense of condonation has been consistently invoked by
elective local officials against the administrative charges filed against them. To provide a sample size,
the Ombudsman has informed the Court that for the period of July 2013 to December 2014 alone, 85
cases from the Luzon Office and 24 cases from the Central Office were dismissed on the ground of
condonation. Thus, in just one and a half years, over a hundred cases of alleged misconduct
involving infractions such as dishonesty, oppression, gross neglect of duty and grave misconduct
were placed beyond the reach of the Ombudsmans investigatory and prosecutorial powers. Evidently,
this fortifies the finding that the case is capable of repetition and must therefore, not evade review. In
any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As mentioned,
it is its own jurisprudential creation and may therefore, pursuant to its mandate to uphold and defend
the Constitution, revoke it notwithstanding supervening events that render the subject of discussion
moot.
Bersamin, J., Concurring and Dissenting Opinion:
The Ombudsmans Act; View that Section 14 of Republic Act (RA) No. 6770 should be struck down for
authorizing the undue interference with the prerogatives of the courts of law to adopt whatever means
were allowed by law and procedure to exercise their jurisdiction in the cases properly cognizable by
them.I am writing this separate opinion to memorialize my concurrence with the declaration of the
ineffectiveness of the first paragraph of Section 14 of Republic Act No. 6770, and of the
unconstitutionality of the second paragraph thereof. The main opinion has been written well by our
esteemed colleague, Associate Justice Estela M. Perlas-Bernabe, who has exhibited her scholarly
bent once again. But let me assure my colleagues in the Majority that if I submit this concurrence, I do
not mean to diminish in any way or degree the forcefulness and correctness of the justification for the
declaration. I simply want to underscore that Section 14 of Republic Act No. 6770 should be struck
down for authorizing the undue interference with the prerogatives of the courts of law to adopt
whatever means were allowed by law and procedure to exercise their jurisdiction in the cases properly
cognizable by them.
Page 162 of 321
Administrative Law
Ombudsman; Preventive Suspension; Administrative Cases; View that in line with the power to
investigate administrative cases, the Ombudsman is vested with the authority to preventively suspend
respondent public officials and employees pursuant to Section 24 of Republic Act (RA) No. 6770.In
line with the power to investigate administrative cases, the Ombudsman is vested with the authority to
preventively suspend respondent public officials and employees pursuant to Section 24 of Republic
Act No. 6770, which provides: Section 24. Preventive Suspension.The Ombudsman or his Deputy
may preventively suspend any officer or employee under his authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the respondents continued stay in office may prejudice
the case filed against him. The preventive suspension shall continue until the case is terminated by the
Office of the Ombudsman but not more than six (6) months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the
respondent, in which case the period of such delay shall not be counted in computing the period of
suspension herein provided.
Same; Same; View that the Ombudsman has no authority to issue the preventive suspension order in
connection with criminal investigations of government officials or employees because such authority
rests in the courts in which the criminal cases are filed.It is important to note, however, that the
Ombudsman has no authority to issue the preventive suspension order in connection with criminal
investigations of government officials or employees because such authority rests in the courts in which
the criminal cases are filed.
Civil Service; Public Officers; Condonation Doctrine; View that condonation shall apply only in case of
the reelection of a public officer who is sought to be permanently removed from office as a result of his
misconduct, not while such public officer is undergoing investigation.It is clear to me that, based on
the language and the factual milieu of Aguinaldo v. Santos, 212 SCRA 768 (1992), and Salalima v.
Guingona, Jr., 257 SCRA 55 (1996), which both cited Pascual v. Provincial Board of Nueva Ecija, 106
Phil. 466 (1959), and of other akin rulings, condonation shall apply only in case of the reelection of a
public officer who is sought to be permanently removed from office as a result of his misconduct, not
while such public officer is undergoing investigation. Condonation necessarily implies that the
condoned act has already been found to have been committed by the public officer. Hence,
condonation applies to the penalty or punishment imposed after the conduct of an administrative
investigation. Under the circumstances, the pronouncements in Aguinaldo, Salalima and the others
could not be applicable to the preventive suspension order issued to Binay, Jr. pending his
administrative investigation because preventive suspension pending the conduct of an investigation
was not yet a penalty in itself, but a mere measure of precaution to enable the disciplining authority to
investigate the charges by precluding the respondent from influencing the witnesses against him.
Same; Same; Same; Suspension; View that the Supreme Court (SC) notably stated in Garcia, Jr. v.
Court of Appeals, 586 SCRA 799 (2009), and Joson III v. Court of Appeals, 482 SCRA 360 (2006),
that suspension from office of an elective official would deprive the electorate of the services of the
person they voted into office in the context of determining the propriety of the issuance of the
preventive suspension order.As I see it, the CA misconstrued the milieu in Garcia, Jr. v. Court of
Appeals, 586 SCRA 799 (2009), and Joson III v. Court of Appeals, 482 SCRA 360 (2006), as an
application of the doctrine of condonation. The Court notably stated in Garcia, Jr. and Joson III that
suspension from office of an elective official would deprive the electorate of the services of the person
Page 163 of 321
Administrative Law
they voted into office in the context of determining the propriety of the issuance of the preventive
suspension order. In other words, the statement only served to remind the Ombudsman to issue the
preventive suspension orders with utmost caution in view of the gravity of the effects of suspending an
incumbent elective local official. Hence, Garcia, Jr. and Joson III did not apply the doctrine of
condonation.
Remedial Law; Provisional Remedies; Preliminary Injunction; View that a preliminary injunction is an
order granted at any stage of an action prior to the judgment or final order requiring a party or a court,
agency or a person to refrain from a particular act or acts.A preliminary injunction is an order granted
at any stage of an action prior to the judgment or final order requiring a party or a court, agency or a
person to refrain from a particular act or acts. The requirements for the issuance of a writ of preliminary
injunction or temporary restraining order are clearly set forth in Section 3, Rule 58 of the Rules of
Court. The sole objective of the writ of preliminary injunction is to preserve the status quo until the
merits of the case can be heard fully. The writ of preliminary injunction is generally based solely on
initial and incomplete evidence; hence, it should not determine the merits of a case, or decide
controverted facts, for, being a preventive remedy, it only seeks to prevent threatened wrong, further
injury, and irreparable harm or injustice until the rights of the parties can be settled.
Preventive Suspension; View that the preventive suspension order, being an ancillary issuance, was
dissolved upon the Ombudsmans resolution of the administrative charges on the merits.In the
meanwhile, the Ombudsman found Binay, Jr. administratively liable, and dismissed him from the
service. By such dismissal, the questions raised against the CAs issuance of the writ of preliminary
injunction against the Ombudsman were rendered moot and academic. I join the Majority in saying that
the preventive suspension order, being an ancillary issuance, was dissolved upon the Ombudsmans
resolution of the administrative charges on the merits. Thus, to dwell on the preventive suspension of
Binay, Jr. and his co-respondents any further would be superfluous, for, as the Court said in Philippine
Savings Bank v. Senate Impeachment Court, 686 SCRA 35 (2012): It is a rule of universal application
that courts of justice constituted to pass upon substantial rights will not consider questions in which no
actual interests are involved; they decline jurisdiction of moot cases. And where the issue has become
moot and academic, there is no justiciable controversy, so that a declaration thereon would be of no
practical use or value. There is no actual substantial relief to which petitioners would be entitled
and which would be negated by the dismissal of the petition.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Prohibition.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Claro F. Certeza and Maria Patricia L. Alvarez for respondent.
Yorac-Sarmiento, Arroyo, Chua-Coronel and Reyes Law Firm collaborating counsel for private
respondent.
PERLAS-BERNABE, J.:
All government is a trust, every branch of government is a trust, and immemorially acknowledged so
tobe[.]1
Jeremy Bentham

Page 164 of 321

Administrative Law
The Case

Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner
Conchita Carpio-Morales, in her capacity as the Ombudsman (Ombudsman), through the Office of the
Solicitor General (OSG), assailing: (a) the Resolution3 dated March 16, 2015 of public respondent the
Court of Appeals (CA) in C.A.-G.R. S.P. No. 139453, which granted private respondent Jejomar Erwin
S. Binay, Jr.s (Binay, Jr.) prayer for the issuance of a temporary restraining order (TRO) against the
implementation of the Joint Order4 dated March 10, 2015 of the Ombudsman in OMB-C-A-15-0058 to
0063 (preventive suspension order) preventively suspending him and several other public officers and
employees of the City Government of Makati, for six (6) months without pay; and (b) the
Resolution5 dated March 20, 2015 of the CA, ordering the Ombudsman to comment on Binay, Jr.s
petition for contempt6 in C.A.-G.R. S.P. No. 139504.
Pursuant to the Resolution7 dated April 6, 2015, the CA issued a writ of preliminary injunction8 (WPI) in
C.A.-G.R. S.P. No. 139453 which further enjoined the implementation of the preventive suspension
order, prompting the Ombudsman to file a supplemental petition 9 on April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit10 was filed by Atty. Renato L. Bondal and Nicolas Ching
Enciso VI before the Office of the Ombudsman against Binay, Jr. and other public officers and
employees of the City Government of Makati (Binay, Jr., et al.), accusing them of Plunder11 and
violation of Republic Act No. (RA) 3019,12 otherwise known as The Anti-Graft and Corrupt Practices
Act, in connection with the five (5) phases of the procurement and construction of the Makati City Hall
Parking Building (Makati Parking Building).13
On September 9, 2014, the Ombudsman constituted a Special Panel of Investigators 14 to conduct a
fact-finding investigation, submit an investigation report, and file the necessary complaint, if warranted
(1st Special Panel).15Pursuant to the Ombudsmans directive, on March 5, 2015, the 1stSpecial Panel
filed a complaint16 (OMB Complaint) against Binay, Jr., et al., charging them with six (6) administrative
cases17 for Grave Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the
Service, and six (6) criminal cases18 for violation of Section 3(e) of RA 3019, Malversation of Public
Funds, and Falsification of Public Documents (OMB Cases).19
As to Binay, Jr., the OMB Complaint alleged that he was involved in anomalous activities attending the
following procurement and construction phases of the Makati Parking Building project, committed
during his previous and present terms as City Mayor of Makati:
Binay, Jr.s First Term (2010 to 2013)20

(a) On September 21, 2010, Binay, Jr. issued the Notice of Award21 for Phase III of the Makati
Parking Building project to Hilmarcs Construction Corporation (Hilmarcs), and consequently, executed
Page 165 of 321
Administrative Law
the corresponding contract22 on September 28, 2010,23 without the required publication and the lack
of architectural design,24 and approved the release of funds therefor in the following amounts as
follows: (1) P130,518,394.80 on December 15, 2010;25 (2) P134,470,659.64 on January 19,
2011;26 (3) P92,775,202.27 on February 25, 2011;27 (4) P57,148,625.51 on March 28, 2011;28 (5)
P40,908,750.61 on May 3, 2011;29 and (6) P106,672,761.90 on July 7, 2011;30
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award31 for Phase IV of the Makati Parking
Building project to Hilmarcs, and consequently, executed the corresponding contract32 on August 18,
2011,33without the required publication and the lack of architectural design, 34 and approved the release
of funds therefor in the following amounts as follows: (1) P182,325,538.97 on October 4, 2011;35 (2)
P173,132,606.91 on October 28, 2011;36 (3) P80,408,735.20 on December 12, 2011;37 (4)
P62,878,291.81 on February 10, 2012;38 and (5) P59,639,167.90 on October 1, 2012;39
(c) On September 6, 2012, Binay, Jr. issued the Notice of Award40 for Phase V of the Makati
Parking Building project to Hilmarcs, and consequently, executed the corresponding
contract41 on September 13, 2012,42 without the required publication and the lack of architectural
design,43 and approved the release of the funds therefor in the amounts of P32,398,220.0544 and
P30,582,629.3045 on December 20, 2012; and

Binay, Jr.s Second Term (2013 to 2016)46

(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of funds for the remaining
balance of the September 13, 2012 contract with Hilmarcs for Phase V of the Makati Parking Building
project in the amount of P27,443,629.97;47 and
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the design and architectural
services covering the Makati Parking Building project in the amount of P429,011.48. 49
On March 6, 2015, the Ombudsman created another Special Panel of Investigators to conduct a
preliminary investigation and administrative adjudication on the OMB Cases (2nd Special
Panel).50Thereafter, on March 9, 2015, the 2nd Special Panel issued separate orders51 for each of the
OMB Cases, requiring Binay, Jr., et al. to file their respective counter-affidavits.52
Before Binay, Jr., et al.s filing of their counter-affidavits, the Ombudsman, upon the recommendation
of the 2ndSpecial Panel, issued on March 10, 2015, the subject preventive suspension order, placing
Binay, Jr., et al. under preventive suspension for not more than six (6) months without pay, during the
pendency of the OMB Cases.53 The Ombudsman ruled that the requisites for the preventive
suspension of a public officer are present,54 finding that: (a) the evidence of Binay, Jr., et al.s guilt was
strong given that (1) the losing bidders and members of the Bids and Awards Committee of Makati City
had attested to the irregularities attending the Makati Parking Building project; (2) the documents on
record negated the publication of bids; and (3) the disbursement vouchers, checks, and official receipts
showed the release of funds; and (b) (1) Binay, Jr., et al. were administratively charged with Grave
Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service; (2) said
charges, if proven to be true, warrant removal from public service under the Revised Rules on
Administrative Cases in the Civil Service (RRACCS); and (3) Binay, Jr., et al.s respective positions
Page 166 of 321
Administrative Law
give them access to public records and allow them to influence possible witnesses; hence, their
continued stay in office may prejudice the investigation relative to the OMB Cases filed against
them.55 Consequently, the Ombudsman directed the Department of the Interior and Local Government
(DILG), through Secretary Manuel A. Roxas II (Secretary Roxas), to immediately implement the
preventive suspension order against Binay, Jr., et al., upon receipt of the same.56
On March 11, 2015, a copy of the preventive suspension order was sent to the Office of the City
Mayor, and received by Maricon Ausan, a member of Binay, Jr.s staff.57

The Proceedings Before the CA

On even date,58 Binay, Jr. filed a petition for certiorari59before the CA, docketed as C.A.-G.R. S.P. No.
139453, seeking the nullification of the preventive suspension order, and praying for the issuance of a
TRO and/or WPI to enjoin its implementation.60 Primarily, Binay, Jr. argued that he could not be
held administratively liable for any anomalous activity attending any of the five (5) phases of the
Makati Parking Building project since: (a) Phases I and II were undertaken before he was elected
Mayor of Makati in 2010; and (b) Phases III to V transpired during his first term and that his reelection
as City Mayor of Makati for a second term effectively condoned his administrative liability
therefor, if any, thus rendering the administrative cases against him moot and academic. 61 In any
event, Binay, Jr. claimed that the Ombudsmans preventive suspension order failed to show
that the evidence of guilt presented against him is strong, maintaining that he did not participate in
any of the purported irregularities.62 In support of his prayer for injunctive relief, Binay, Jr. argued that
he has a clear and unmistakable right to hold public office, having won by landslide vote in the 2010
and 2013 elections, and that, in view of the condonation doctrine, as well as the lack of evidence to
sustain the charges against him, his suspension from office would undeservedly deprive the electorate
of the services of the person they have conscientiously chosen and voted into office.63
On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the implementation of the
preventive suspension order through the DILG National Capital Region-Regional Director, Renato L.
Brion, CESO III (Director Brion), who posted a copy thereof on the wall of the Makati City Hall after
failing to personally serve the same on Binay, Jr. as the points of entry to the Makati City Hall were
closed. At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C. Evangelista administered the
oath of office on Makati City Vice Mayor Romulo V. Pea, Jr. (Pea, Jr.) who thereupon assumed
office as Acting Mayor.64
At noon of the same day, the CA issued a Resolution65(dated March 16, 2015), granting Binay, Jr.s
prayer for a TRO,66 notwithstanding Pea, Jr.s assumption of duties as Acting Mayor earlier that
day.67 Citing the case of Governor Garcia, Jr. v. CA,68 the CA found that it was more prudent on its
part to issue a TRO in view of the extreme urgency of the matter and seriousness of the issues raised,
considering that if it were established that the acts subject of the administrative cases against Binay,
Jr. were all committed during his prior term, then, applying the condonation doctrine, Binay, Jr.s
reelection meant that he can no longer be administra-

Page 167 of 321

Administrative Law
58 See Binay, Jr.s Comment/Opposition dated April 6, 2005; id., at p. 481. See also Binay, Jr.s
Memorandum dated May 21, 2015; Rollo (Vol. II), p. 806. The Ombudsman, however, claims that the
said petition was filed on March 12, 2015; see Rollo (Vol. II), p. 648.
tively charged.69 The CA then directed the Ombudsman to comment on Binay, Jr.s petition
for certiorari.70
On March 17, 2015, the Ombudsman manifested 71 that the TRO did not state what act was being
restrained and that since the preventive suspension order had already been served and implemented,
there was no longer any act to restrain.72
On the same day, Binay, Jr. filed a petition for contempt, 73 docketed as C.A.-G.R. S.P. No. 139504,
accusing Secretary Roxas, Director Brion, the officials of the Philippine National Police, and Pea, Jr.
of deliberately refusing to obey the CA, thereby allegedly impeding, obstructing, or degrading the
administration of justice.74 The Ombudsman and Department of Justice Secretary Leila M. De Lima
were subsequently impleaded as additional respondents upon Binay, Jr.s filing of the amended and
supplemental petition for contempt75 (petition for contempt) on March 19, 2015.76 Among others,
Binay, Jr. accused the Ombudsman and other respondents therein for willfully and maliciously ignoring
the TRO issued by the CA against the preventive suspension order.77
In a Resolution78 dated March 20, 2015, the CA ordered the consolidation of C.A.-G.R. S.P. No.
139453 and C.A.-G.R. S.P. No. 139504, and, without necessarily giving due course to Binay, Jr.s
petition for contempt, directed the Ombudsman to file her comment thereto. 79 The cases were set for
hearing of oral arguments on March 30 and 31, 2015.80

The Proceedings Before the Court

Prior to the hearing of the oral arguments before the CA, or on March 25, 2015, the Ombudsman filed
the present petition before this Court, assailing the CAs March 16, 2015 Resolution, which granted
Binay, Jr.s prayer for TRO in C.A.-G.R. S.P. No. 139453, and the March 20, 2015 Resolution directing
her to file a comment on Binay, Jr.s petition for contempt in C.A.-G.R. S.P. No. 139504.81 The
Ombudsman claims that: (a) the CA had no jurisdiction to grant Binay, Jr.s prayer for a TRO, citing
Section 14 of RA 6770,82 or The Ombudsman Act of 1989, which states that no injunctive writ could
be issued to delay the Ombudsmans investigation unless there is prima facieevidence that the subject
matter thereof is outside the latters jurisdiction;83 and (b) the CAs directive for the Ombudsman to
comment on Binay, Jr.s petition for contempt is illegal and improper, considering that the Ombudsman
is an impeachable officer, and therefore, cannot be subjected to contempt proceedings. 84
In his comment85 filed on April 6, 2015, Binay, Jr. argues that Section 1, Article VIII of the 1987
Constitution specifically grants the CA judicial power to review acts of any branch or instrumentality of
government, including the Office of the Ombudsman, in case of grave abuse of discretion amounting to
lack or excess of jurisdiction, which he asserts was committed in this case when said office issued the
preventive suspension order against him.86 Binay, Jr. posits that it was incumbent upon the
Ombudsman to have been apprised of the condonation doctrine as this would have weighed heavily in
determining whether there was strong evidence to warrant the issuance of the preventive suspension
order.87 In this relation, Binay, Jr. maintains that the CA correctly enjoined the implementation of the
Page 168 of 321
Administrative Law
preventive suspension order given his clear and unmistakable right to public office, and that it is clear
that he could not be held administratively liable for any of the charges against him since his
subsequent reelection in 2013 operated as a condonation of any administrative offenses he may have
committed during his previous term.88 As regards the CAs order for the Ombudsman to comment on
his petition for contempt, Binay, Jr. submits that while the Ombudsman is indeed an impeachable
officer and, hence, cannot be removed from office except by way of impeachment, an action for
contempt imposes the penalty of fine and imprisonment, without necessarily resulting in removal from
office. Thus, the fact that the Ombudsman is an impeachable officer should not deprive the CA of its
inherent power to punish contempt.89
Meanwhile, the CA issued a Resolution90 dated April 6, 2015, after the oral arguments before it were
held,91 granting Binay, Jr.s prayer for a WPI, which further enjoined the implementation of the
preventive suspension order. In so ruling, the CA found that Binay, Jr. has an ostensible right to the
final relief prayed for, namely, the nullification of the preventive suspension order, in view of the
condonation doctrine, citing Aguinaldo v. Santos.92 Particularly, it found that the Ombudsman can
hardly impose preventive suspension against Binay, Jr. given that his reelection in 2013 as City Mayor
of Makati condoned any administrative liability arising from anomalous activities relative to the Makati
Parking Building project from 2007 to 2013.93 In this regard, the CA added that, although there were
acts which were apparently committed by Binay, Jr. beyond his first term namely, the alleged
payments on July 3, July 4, and July 24, 2013,94 corresponding to the services of Hilmarcs and MANA
still, Binay, Jr. cannot be held administratively liable therefor based on the cases of Salalima v.
Guingona, Jr.,95 and Mayor Garcia v. Mojica,96wherein the condonation doctrine was still applied by
the Court although the payments were made after the officials reelection, reasoning that the payments
were merely effected pursuant to contracts executed before said reelection. 97 To this, the CA added
that there was no concrete evidence of Binay, Jr.s participation for the alleged payments made on July
3, 4, and 24, 2013.98
In view of the CAs supervening issuance of a WPI pursuant to its April 6, 2015 Resolution, the
Ombudsman filed a supplemental petition99 before this Court, arguing that the condonation doctrine is
irrelevant to the determination of whether the evidence of guilt is strong for purposes of issuing
preventive suspension orders. The Ombudsman also maintained that a reliance on the condonation
doctrine is a matter of defense, which should have been raised by Binay, Jr. before it during the
administrative proceedings, and that, at any rate, there is no condonation because Binay, Jr.
committed acts subject of the OMB Complaint after his reelection in 2013.100
On April 14 and 21, 2015,101 the Court conducted hearings for the oral arguments of the parties.
Thereafter, they were required to file their respective memoranda. 102 In compliance thereto, the
Ombudsman filed her Memorandum103 on May 20, 2015, while Binay, Jr. submitted his Memorandum
the following day.104
Pursuant to a Resolution105 dated June 16, 2015, the Court directed the parties to comment on each
others memoranda, and the OSG to comment on the Ombudsmans Memorandum, all within ten (10)
days from receipt of the notice.
On July 15, 2015, both parties filed their respective comments to each others
memoranda.106 Meanwhile, on July 16, 2015, the OSG filed its Manifestation In Lieu of
Comment,107 simply stating that it was mutually agreed upon that the Office of the Ombudsman would
file its Memorandum, consistent with its desire to state its institutional position. 108 In her
Page 169 of 321
Administrative Law
Memorandum and Comment to Binay, Jr.s Memorandum, the Ombudsman pleaded, among others,
that this Court abandon the condonation doctrine. 109 In view of the foregoing, the case was deemed
submitted for resolution.

The Issues Before the Court

Based on the parties respective pleadings, and as raised during the oral arguments conducted before
this Court, the main issues to be resolved in seriatim are as follows:
I. Whether or not the present petition, and not motions for reconsideration of the assailed CA
issuances in C.A.-G.R. S.P. No. 139453 and C.A.-G.R. S.P. No. 139504, is the Ombudsmans plain,
speedy, and adequate remedy;
II. Whether or not the CA has subject matter jurisdiction over the main petition for certiorari in C.A.-
G.R. S.P. No. 139453;
III. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI enjoining the
implementation of a preventive suspension order issued by the Ombudsman;
IV. Whether or not the CA gravely abused its discretion in issuing the TRO and eventually, the WPI in
C.A.-G.R. S.P. No. 139453 enjoining the implementation of the preventive suspension order against
Binay, Jr. based on the condonation doctrine; and
V. Whether or not the CAs directive for the Ombudsman to comment on Binay, Jr.s petition for
contempt in C.A.-G.R. S.P. No. 139504 is improper and illegal.

The Ruling of the Court

The petition is partly meritorious.

I.

A common requirement to both a petition for certiorariand a petition for prohibition taken under Rule 65
of the 1997 Rules of Civil Procedure is that the petitioner has no other plain, speedy, and adequate
remedy in the ordinary course of law. Sections 1 and 2 thereof provide:

Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
Page 170 of 321
Administrative Law
annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
xxxx
Section 2. Petition for prohibition.When the proceedings of any tribunal, corporation, board, officer
or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, or any other plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as
law and justice may require.
x x x x (Emphases supplied)

Hence, as a general rule, a motion for reconsideration must first be filed with the lower court prior to
resorting to the extraordinary remedy of certiorari or prohibition since a motion for reconsideration may
still be considered as a plain, speedy, and adequate remedy in the ordinary course of law. The
rationale for the prerequisite is to grant an opportunity for the lower court or agency to correct any
actual or perceived error attributed to it by the reexamination of the legal and factual circumstances of
the case.110
Jurisprudence states that [i]t is [the] inadequacy, [and] not the mere absence of all other legal
remedies and the danger of failure of justice without the writ, that must usually determine the propriety
of certiorari [or prohibition]. A remedy is plain, speedy[,] and adequate if it will promptly relieve the
petitioner from the injurious effects of the judgment, order, or resolution of the lower court or agency.
x x x.111
In this light, certain exceptions were crafted to the general rule requiring a prior motion for
reconsideration before the filing of a petition for certiorari, which exceptions also apply to a petition for
prohibition.112 These are: (a) where the order is a patent nullity, as where the court a quo has no
jurisdiction; (b) where the questions raised in the certiorariproceedings have been duly raised and
passed upon by the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further
delaywould prejudice the interests of the Government or of the petitioner or the subject matter of
the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be
useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f)
where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the
trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due
process; (h) where the proceedings were ex parte or in which the petitioner had no opportunity to
object; and (i) where the issue raised is one purely of law or where public interest is involved.113
In this case, it is ineluctably clear that the above highlighted exceptions attend since, for the first time,
the question on the authority of the CA and of this Court, for that matter to enjoin the
implementation of a preventive suspension order issued by the Office of the Ombudsman is put to the
fore. This case tests the constitutional and statutory limits of the fundamental powers of key

Page 171 of 321

Administrative Law
government institutions namely, the Office of the Ombudsman, the Legislature, and the Judiciary
and hence, involves an issue of transcendental public importance that demands no less than a careful
but expeditious resolution. Also raised is the equally important issue on the propriety of the continuous
application of the condonation doctrine as invoked by a public officer who desires exculpation from
administrative liability. As such, the Ombudsmans direct resort to certiorari and prohibition before this
Court, notwithstanding her failure to move for the prior reconsideration of the assailed issuances in
C.A.-G.R. S.P. No. 139453 and C.A.-G.R. S.P. No. 139504 before the CA, is justified.

II.

Albeit raised for the first time by the Ombudsman in her Memorandum,114 it is nonetheless proper to
resolve the issue on the CAs lack of subject matter jurisdiction over the main petition for certiorari in
C.A.-G.R. S.P. No. 139453, in view of the well-established rule that a courts jurisdiction over the
subject matter may be raised at any stage of the proceedings. The rationale is that subject matter
jurisdiction is conferred by law, and the lack of it affects the very authority of the court to take
cognizance of and to render judgment on the action.115 Hence, it should be preliminarily determined if
the CA indeed had subject matter jurisdiction over the main C.A.-G.R. S.P. No. 139453 petition, as the
same determines the validity of all subsequent proceedings relative thereto. It is noteworthy to point
out that Binay, Jr. was given the opportunity by this Court to be heard on this issue, 116 as he, in fact,
duly submitted his opposition through his comment to the Ombudsmans Memorandum. 117 That being
said, the Court perceives no reasonable objection against ruling on this issue.
The Ombudsmans argument against the CAs lack of subject matter jurisdiction over the main petition,
and her corollary prayer for its dismissal, is based on her interpretation of Section 14, RA 6770, or the
Ombudsman Act,118 which reads in full:

Section 14. Restrictions.No writ of injunction shall be issued by any court to delay an investigation
being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the
subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.

The subject provision may be dissected into two (2) parts.

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the Supreme
Court)119from issuing a writ of injunction to delay an investigation being conducted by the Office of the
Ombudsman. Generally speaking, [i]njunction is a judicial writ, process or proceeding whereby a party
is ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional
remedy for and as an incident in the main action.120 Considering the textual qualifier to delay, which
connotes a suspension of an action while the main case remains pending, the writ of injunction

Page 172 of 321

Administrative Law
mentioned in this paragraph could only refer to injunctions of the provisional kind, consistent with the
nature of a provisional injunctive relief.
The exception to the no injunction policy is when there is prima facie evidence that the subject matter
of the investigation is outside the offices jurisdiction. The Office of the Ombudsman has disciplinary
authority over all elective and appointive officials of the government and its subdivisions,
instrumentalities, and agencies, with the exception only of impeachable officers, Members of
Congress, and the Judiciary.121 Nonetheless, the Ombudsman retains the power to investigate any
serious misconduct in office allegedly committed by officials removable by impeachment, for the
purpose of filing a verified complaint for impeachment, if warranted. 122 Note that the Ombudsman has
concurrent jurisdiction over certain administrative cases which are within the jurisdiction of the regular
courts or administrative agencies, but has primary jurisdiction to investigate any act or omission of a
public officer or employee who is under the jurisdiction of the Sandiganbayan.123
On the other hand, the second paragraph of Section 14, RA 6770 provides that no appeal or
application for remedy may be heard against the decision or findings of the Ombudsman, with the
exception of the Supreme Court on pure questions of law. This paragraph, which the Ombudsman
particularly relies on in arguing that the CA had no jurisdiction over the main C.A-G.R. S.P. No. 139453
petition, as it is supposedly this Court which has the sole jurisdiction to conduct a judicial review of its
decisions or findings, is vague for two (2) reasons: (1) it is unclear what the phrase application for
remedy or the word findings refers to; and (2) it does not specify what procedural remedy is solely
allowable to this Court, save that the same be taken only against a pure question of law. The task
then, is to apply the relevant principles of statutory construction to resolve the ambiguity.
The underlying principle of all construction is that the intent of the legislature should be sought in the
words employed to express it, and that when found[,] it should be made to govern, x x x. If the words of
the law seem to be of doubtful import, it may then perhaps become necessary to look beyond them in
order to ascertain what was in the legislative mind at the time the law was enacted; what the
circumstances were, under which the action was taken; what evil, if any, was meant to be redressed;
x x x [a]nd where the law has contemporaneously been put into operation, and in doing so a
construction has necessarily been put upon it, this construction, especially if followed for some
considerable period, is entitled to great respect, as being very probably a true expression of the
legislative purpose, and is not lightly to be overruled, although it is not conclusive. 124
As an aid to construction, courts may avail themselves of the actual proceedings of the legislative body
in interpreting a statute of doubtful meaning. In case of doubt as to what a provision of a statute
means, the meaning put to the provision during the legislative deliberations may be adopted,125 albeit
not controlling in the interpretation of the law.126

A. The Senate deliberations cited by

the Ombudsman do not per-
tain to the second paragraph
of Section 14, RA 6770.

Page 173 of 321

Administrative Law
The Ombudsman submits that the legislative intent behind Section 14, RA 6770, particularly on the
matter of judicial review of her offices decisions or findings, is supposedly clear from the following
Senate deliberations:127

Senator [Edgardo J.] Angara.

x x x. On page 15, Mr. President, line 14, after the phrase petition for delete the word review and in
lieu thereof, insert the word CERTIORARI. So that, review or appeal from the decision of the
Ombudsman would only be taken not on a petition for review, but on certiorari.
The President [Jovito R. Salonga].
What is the practical effect of that? Will it be more difficult to reverse the decision under
review?
Senator Angara.
It has two practical effect ways, Mr. President. First is that the findings of facts of the Ombudsman
would be almost conclusive if supported by substantial evidence. Second, we would not
unnecessarily clog the docket of the Supreme Court. So, it in effect will be a very strict appeal
procedure.
xxxx
Senator [Teofisto T.] Guingona, [Jr.].
Does this mean that, for example, if there are exhaustive remedies available to a respondent, the
respondent himself has the right to exhaust the administrative remedies available to him?
Senator Angara.
Yes, Mr. President, that is correct.
Senator Guingona.
And he himself may cut the proceeding short by appealing to the Supreme Court only on
certiorari?
Senator Angara.
On question of law, yes.
Senator Guingona.
And no other remedy is available to him?
Senator Angara.
Going to the Supreme Court, Mr. President?
Senator Guingona.

Page 174 of 321

Administrative Law
Yes. What I mean to say is, at what stage, for example, if he is a presidential appointee who is the
respondent, if there is no certiorari available, is the respondent given the right to exhaust his
administrative remedies first before the Ombudsman can take the appropriate action?
Senator Angara.
Yes, Mr. President, because we do not intend to change the administrative law principle that before
one can go to court, he must exhaust all administrative remedies x x x available to him before he goes
and seeks judicial review.
xxxx
Senator [Neptali A.] Gonzales.
What is the purpose of the Committee in changing the method of appeal from one of a petition
for review to a petition for certiorari?
Senator Angara.
To make it consistent, Mr. President, with the provision here in the bill to the effect that
the finding of facts of the Ombudsman is conclusive if supported by substantial evidence.
Senator Gonzales.
A statement has been made by the Honorable Presiding Officer to which I concur, that in an appeal
by certiorari, the appeal is more difficult.Because in certiorari it is a matter of discretion on the
part of the court, whether to give due course to the petition or dismiss it outright. Is that not
correct, Mr. President?
Senator Angara.
That is absolutely correct, Mr. President.
Senator Gonzales.
And in a petition for certiorari, the issue is limited to whether or not the Ombudsman here has
acted without jurisdiction and has committed a grave abuse of discretion amounting to lack of
jurisdiction. Is that not the consequence, Mr. President.
Senator Angara.
That is correct, Mr. President.
Senator Gonzales.
And it is, therefore, in this sense that the intention of the Committee is to make it harder to have a
judicial review, but should be limited only to cases that I have enumerated.
Senator Angara.
Yes, Mr. President.
Senator Gonzales.

Page 175 of 321

Administrative Law
I think, Mr. President, our Supreme Court has made a distinction between a petition for review and a
petition for certiorari; because before, under the 1935 Constitution appeal from any order, ruling or
decision of the COMELEC shall be by means of review. But under the Constitution it is now
by certiorari and the Supreme Court said that by this change, the court exercising judicial review will
not inquire into the facts, into the evidence, because we will not go deeply by way of review into the
evidence on record but its authority will be limited to a determination of whether the administrative
agency acted without, or in excess of, jurisdiction, or committed a grave abuse of discretion. So, I
assume that that is the purpose of this amendment, Mr. President.
Senator Angara.
The distinguished Gentleman has stated it so well.
Senator Gonzales.
I just want to put that in the Record.
Senator Angara.
It is very well stated, Mr. President.
xxxx
The President.
It is evident that there must be some final authority to render decisions. Should it be the
Ombudsman or should it be the Supreme Court?
Senator Angara.
As I understand it, under our scheme of government, Mr. President, it is and has to be the Supreme
Court to make the final determination.
The President.
Then if that is so, we have to modify Section 17.
Senator Angara.
That is why, Mr. President, some of our Colleagues have made a reservation to introduce an
appropriate change during the period of Individual Amendments.
xxxx
The President.
All right. Is there any objection to the amendment inserting the word CERTIORARI instead of review?
[Silence] Hearing none, the same is approved.128

Upon an assiduous scrutiny of these deliberations, the Court is, however, unconvinced that the
provision debated on was Section 14, RA 6770, as the Ombudsman invokes. Note that the exchange
begins with the suggestion of Senator Angara to delete the word review that comes after the phrase
petition for review and, in its stead, insert the word certiorari so that the review or appeal from the
Page 176 of 321
Administrative Law
decision of the Ombudsman would not only be taken on a petition for review, but on certiorari. The
ensuing exchange between Senators Gonzales and Angara then dwells on the purpose of changing
the method of review from one of a petition for review to a petition for certiorari that is, to make the
appeal x x x more difficult. Ultimately, the amendment to the change in wording, from petition for
review to petition for certiorari was approved.
Noticeably, these references to a petition for review and the proposed petition for certiorari are
nowhere to be found in the text of Section 14, RA 6770. In fact, it was earlier mentioned that this
provision, particularly its second paragraph, does not indicate what specific procedural remedy one
should take in assailing a decision or finding of the Ombudsman; it only reveals that the remedy be
taken to this Court based on pure questions of law. More so, it was even commented upon during the
oral arguments of this case129 that there was no debate or clarification made on the current formulation
of the second paragraph of Section 14, RA 6770 per the available excerpts of the Senate
deliberations. In any case, at least for the above cited deliberations, the Court finds no adequate
support to sustain the Ombudsmans entreaty that the CA had no subject matter jurisdiction over the
main C.A.-G.R. S.P. No. 139453 petition.
On the contrary, it actually makes greater sense to posit that these deliberations refer to another
Ombudsman Act provision, namely Section 27, RA 6770. This is because the latter textually reflects
the approval of Senator Angaras suggested amendment, i.e., that the Ombudsmans decision or
finding may be assailed in a petition for certiorari to this Court (fourth paragraph), and further, his
comment on the conclusive nature of the factual findings of the Ombudsman, if supported by
substantial evidence (third paragraph):
Section 27. Effectivity and Finality of Decisions.(1) 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 any of the
following grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The
motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one
motion for reconsideration shall be entertained.
Findings of fact by 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 (1) months 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 above rules may be amended or modified by the Office of the Ombudsman as the interest of
justice may require. (Emphasis and underscoring supplied)

Page 177 of 321

Administrative Law
At first blush, it appears that Section 27, RA 6770 is equally ambiguous in stating that a petition
for certiorari should be taken in accordance with Rule 45 of the Rules of Court, as it is well-known that
under the present 1997 Rules of Civil Procedure, petitions for certiorari are governed by Rule 65 of the
said Rules. However, it should be discerned that the Ombudsman Act was passed way back in
1989130and, hence, before the advent of the 1997 Rules of Civil Procedure. 131 At that time, the
governing 1964 Rules of Court,132 consistent with Section 27, RA 6770, referred to the appeal taken
thereunder as a petition for certiorari, thus possibly explaining the remedys textual denomination, at
least in the provisions final approved version:

RULE 45
Appeal from Court of Appeals to Supreme Court

SECTION 1. Filing of Petition with Supreme Court.A party may appeal by certiorari, from a
judgment of the Court of Appeals, by filing with the Supreme Court a petition for certiorari, within
fifteen (15) days from notice of judgment or of the denial of his motion for reconsideration filed in due
time, and paying at the same time, to the clerk of said court the corresponding docketing fee. The
petition shall not be acted upon without proof of service of a copy thereof to the Court of Appeals.
(Emphasis supplied)

B. Construing the second paragraph of Section 14, RA 6770.

The Senate deliberations lack of discussion on the second paragraph of Section 14, RA 6770
notwithstanding, the other principles of statutory construction can apply to ascertain the meaning of the
provision.
To recount, the second paragraph of Section 14, RA 6770 states that [n]o court shall hear any
appeal or application for remedy against the decision or findings of the Ombudsman, except
the Supreme Court, on pure question of law.
As a general rule, the second paragraph of Section 14, RA 6770 bans the whole range of remedies
against issuances of the Ombudsman, by prohibiting: (a) an appeal against any decision or finding
of the Ombudsman, and (b) any application of remedy (subject to the exception below) against the
same. To clarify, the phrase application for remedy, being a generally worded provision, and being
separated from the term appeal by the disjunctive or,133 refers to any remedy (whether taken mainly
or provisionally), except an appeal, following the maxim generalia verba sunt generaliter intelligenda:
general words are to be understood in a general sense. 134 By the same principle, the word findings,
which is also separated from the word decision by the disjunctive or, would therefore refer to any
finding made by the Ombudsman (whether final or provisional), except a decision.
The subject provision, however, crafts an exception to the foregoing general rule. While the specific
procedural vehicle is not explicit from its text, it is fairly deducible that the second paragraph of Section
14, RA 6770 excepts, as the only allowable remedy against the decision or findings of the
Ombudsman, a Rule 45 appeal, for the reason that it is the only remedy taken to the Supreme

Page 178 of 321

Administrative Law
Court on pure questions of law, whether under the 1964 Rules of Court or the 1997 Rules of Civil
Procedure:

Rule 45, 1964 Rules of Court

RULE 45
Appeal from Court of Appeals to Supreme Court
xxxx
Section 2. Contents of Petition.The petition shall contain a concise statement of the matters
involved, the assignment of errors made in the court below, and the reasons relied on for the
allowance of the petition, and it should be accompanied with a true copy of the judgment sought to be
reviewed, together with twelve (12) copies of the record on appeal, if any, and of the petitioners brief
as filed in the Court of Appeals. A verified statement of the date when notice of judgment and denial of
the motion for reconsideration, if any, were received shall accompany the petition.
Only questions of law may be raised in the petition and must be distinctly set forth. If no record on
appeal has been filed in the Court of Appeals, the clerk of the Supreme Court, upon admission of the
petition, shall demand from the Court of Appeals the elevation of the whole record of the case.
(Emphasis and underscoring supplied)

Rule 45, 1997 Rules of Civil Procedure

RULE 45
Appeal by Certiorari to the Supreme Court

Section 1. Filing of petition with Supreme Court.A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application for a
writ of preliminary injunction or other provisional remedies and shall raise only questions of law,
which must be distinctly set forth. The petitioner may seek the same provisional remedies by
verified motion filed in the same action or proceeding at any time during its pendency. (Emphasis and
underscoring supplied)
That the remedy excepted in the second paragraph of Section 14, RA 6770 could be a petition
for certiorari under Rule 65 of the 1964 Rules of Court or the 1997 Rules of Procedure is a suggestion
that defies traditional norms of procedure. It is basic procedural law that a Rule 65 petition is based on
errors of jurisdiction, and not errors of judgment to which the classifications of (a) questions of fact, (b)
questions of law, or (c) questions of mixed fact and law, relate to. In fact, there is no procedural rule,
whether in the old or new Rules, which grounds a Rule 65 petition on pure questions of law. Indeed, it
is also a statutory construction principle that the lawmaking body cannot be said to have intended the
establishment of conflicting and hostile systems on the same subject. Such a result would render
Page 179 of 321
Administrative Law
legislation a useless and idle ceremony, and subject the laws to uncertainty and
unintelligibility.135 There should then be no confusion that the second paragraph of Section 14, RA
6770 refers to a Rule 45 appeal to this Court, and no other. In sum, the appropriate construction of this
Ombudsman Act provision is that all remedies against issuances of the Office of the Ombudsman are
prohibited, except the above stated Rule 45 remedy to the Court on pure questions of law.

C. Validity of the second paragraph

of Section 14, RA 6770.
Of course, the second paragraph of Section 14, RA 6770s extremely limited restriction on remedies is
inappropriate since a Rule 45 appeal which is within the sphere of the rules of procedure
promulgated by this Court can only be taken against final decisions or orders of lower courts, 136 and
not against findings of quasi-judicial agencies. As will be later elaborated upon, Congress cannot
interfere with matters of procedure; hence, it cannot alter the scope of a Rule 45 appeal so as to apply
to interlocutory findings issued by the Ombudsman. More significantly, by confining the remedy to
a Rule 45 appeal, the provision takes away the remedy of certiorari, grounded on errors of jurisdiction,
in denigration of the judicial power constitutionally vested in courts. In this light, the second paragraph
of Section 14, RA 6770 also increased this Courts appellate jurisdiction, without a showing, however,
that it gave its consent to the same. The provision is, in fact, very similar to the fourth paragraph of
Section 27, RA 6770 (as above cited), which was invalidated in the case of Fabian v.
Desierto137(Fabian).138
In Fabian, the Court struck down the fourth paragraph of Section 27, RA 6770 as unconstitutional
since it had the effect of increasing the appellate jurisdiction of the Court without its advice and
concurrence in violation of Section 30, Article VI of the 1987 Constitution. 139 Moreover, this provision
was found to be inconsistent with Section 1, Rule 45 of the present 1997 Rules of Procedure which, as
above intimated, applies only to a review of judgments or final orders of the Court of Appeals,
the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court, or other courts authorized by
law; and not of quasi-judicial agencies, such as the Office of the Ombudsman, the remedy now
being a Rule 43 appeal to the Court of Appeals. In Ruivivar v. Office of the Ombudsman,140 the
Courts ratiocinations and ruling in Fabian were recounted:

The case of Fabian v. Desierto arose from the doubt created in the application of Section 27 of R.A.
No. 6770 (The Ombudsmans Act) and Section 7, Rule III of A.O. No. 7 (Rules of Procedure of the
Office of the Ombudsman) on the availability of appeal before the Supreme Court to assail a decision
or order of the Ombudsman in administrative cases. InFabian, we invalidated Section 27 of R.A. No.
6770 (and Section 7, Rule III of A.O. No. 7 and the other rules implementing the Act) insofar as it
provided for appeal by certiorari under Rule 45 from the decisions or orders of the Ombudsman
in administrative cases. We held that Section 27 of R.A. No. 6770 had the effect, not only of
increasing the appellate jurisdiction of this Court without its advice and concurrence in
violation of Section 30, Article VI of the Constitution; it was also inconsistent with Section 1,
Rule 45 of the Rules of Court which provides that a petition for review oncertiorari shall apply
only to a review of judgments or final orders of the Court of Appeals,the Sandiganbayan, the
Court of Tax Appeals, the Regional Trial Court, or other courts authorized by law. We pointedly
said:
Page 180 of 321
Administrative Law
As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down
as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial
agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the
Ombudsman in administrative disciplinary cases should be taken to the CA under the provisions of
Rule 43.141 (Emphasis supplied)
Since the second paragraph of Section 14, RA 6770 limits the remedy against decision or findings of
the Ombudsman to a Rule 45 appeal and thus similar to the fourth paragraph of Section 27, RA
6770142 attempts to effectively increase the Supreme Courts appellate jurisdiction without its advice
and concurrence,143 it is therefore concluded that the former provision is also unconstitutional and
perforce, invalid. Contrary to the Ombudsmans posturing,144 Fabian should squarely apply since the
above stated Ombudsman Act provisions are in pari materia in that they cover the same specific or
particular subject matter,145 that is, the manner of judicial review over issuances of the Ombudsman.
Note that since the second paragraph of Section 14, RA 6770 is clearly determinative of the existence
of the CAs subject matter jurisdiction over the main C.A.-G.R. S.P. No. 139453 petition, including all
subsequent proceedings relative thereto, as the Ombudsman herself has developed, the Court deems
it proper to resolve this issue ex mero motu(on its own motion).146 This procedure, as was similarly
adopted in Fabian, finds its bearings in settled case law:

The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party
to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended for the observance of the judiciary and other departments of the
government and the judges are sworn to support its provisions, the courts are not at liberty to overlook
or disregard its commands or countenance evasions thereof. When it is clear that a statute
transgresses the authority vested in a legislative body, it is the duty of the courts to declare that the
constitution, and not the statute, governs in a case before them for judgment.
Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the
pleadings, the rule has been recognized to admit of certain exceptions. It does not preclude a court
from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter.
If a statute on which a courts jurisdiction in a proceeding depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it
necessarily follows that it may inquire into the constitutionality of the statute.
Constitutional questions, not raised in the regular and orderly procedure in the trial are
ordinarily rejected unless the jurisdiction of the court below or that of the appellate court is
involved in which case it may be raised at any time or on the courts own motion. The Court ex
mero motu may take cognizance of lack of jurisdiction at any point in the case where that fact is
developed. The court has a clearly recognized right to determine its own jurisdiction in any
proceeding.147 (Emphasis supplied)

D. Consequence of invalidity.

Page 181 of 321

Administrative Law
In this case, the Rule 65 petition for certiorari in C.A.-G.R. S.P. No. 139453 was filed by Binay, Jr.
before the CA in order to nullify the preventive suspension order issued by the Ombudsman, an
interlocutory order,148 hence, unappealable.149
In several cases decided after Fabian, the Court has ruled that Rule 65 petitions for certiorari against
unappelable issuances150 of the Ombudsman should be filed before the CA, and not directly before
this Court:
In Office of the Ombudsman v. Capulong151 (March 12, 2014), wherein a preventive suspension order
issued by the Office of the Ombudsman was similar to this case assailed through a Rule 65
petition for certiorari filed by the public officer before the CA, the Court held that [t]here being a finding
of grave abuse of discretion on the part of the Ombudsman, it was certainly imperative for the CA to
grant incidental reliefs, as sanctioned by Section 1 of Rule 65.152
In Dagan v. Office of the Ombudsman153 (November 19, 2013), involving a Rule 65 petition
for certiorari assailing a final and unappealable order of the Office of the Ombudsman in an
administrative case, the Court remarked that petitioner employed the correct mode of review in this
case, i.e., a special civil action for certiorari before the Court of Appeals.154 In this relation, it stated
that while a special civil action for Certiorari is within the concurrent original jurisdiction of the
Supreme Court and the Court of Appeals, such petition should be initially filed with the Court of
Appeals in observance of the doctrine of hierarchy of courts. Further, the Court upheld Barata v.
Abalos, Jr.155(June 6, 2001), wherein it was ruled that the remedy against final and unappealable
orders of the Office of the Ombudsman in an administrative case was a Rule 65 petition to the CA. The
same verdict was reached in Ruivivar156 (September 16, 2008).
Thus, with the unconstitutionality of the second paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes that the CA has subject matter jurisdiction over the
main C.A.-G.R. S.P. No. 139453 petition. That being said, the Court now examines the objections of
the Ombudsman, this time against the CAs authority to issue the assailed TRO and WPI against the
implementation of the preventive suspension order, incidental to that main case.

III.

From the inception of these proceedings, the Ombudsman has been adamant that the CA has no
jurisdiction to issue any provisional injunctive writ against her office to enjoin its preventive suspension
orders. As basis, she invokes the first paragraph of Section 14, RA 6770 in conjunction with her
offices independence under the 1987 Constitution. She advances the idea that [i]n order to further
ensure [her offices] independence, [RA 6770] likewise insulated it from judicial
intervention,157particularly, from injunctive reliefs traditionally obtainable from the courts,158 claiming
that said writs may work just as effectively as direct harassment or political pressure would. 159

A. The concept of Ombudsman independence.

Page 182 of 321

Administrative Law
Section 5, Article XI of the 1987 Constitution guarantees the independence of the Office of the
Ombudsman:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon,
Visayas[,] and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
(Emphasis supplied)

In Gonzales III v. Office of the President160 (Gonzales III), the Court traced the historical underpinnings
of the Office of the Ombudsman:

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve
as the peoples medium for airing grievances and for direct redress against abuses and misconduct in
the government. Ultimately, however, these agencies failed to fully realize their objective for lack of the
political independence necessary for the effective performance of their function as government critic.
It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD) No.
1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to be
known as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any government-owned or -controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously
vested in the Special Prosecutor were transferred to the Tanodbayanhimself. He was given the
exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan,
file the corresponding information, and control the prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II and
the standard of accountability in public service under Section 1, Article XI of the 1987 Constitution.
These provisions read:
Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.
Section 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.161 (Emphasis supplied)

More significantly, Gonzales III explained the broad scope of the offices mandate, and in correlation,
the impetusbehind its independence:

Page 183 of 321

Administrative Law
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be
the protector of the people against the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau. This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to directly check and guard against the ills,
abuses and excesses of the bureaucracy. Pursuant to Section 13(8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority; Exceptions.The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities, and agencies, including Members of the Cabinet, local government,
government-owned or -controlled corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the Judiciary.
As the Ombudsman is expected to be an activist watchman, the Court has upheld its actions,
although not squarely falling under the broad powers granted [to] it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and consistent with the law and the
Constitution.
The Ombudsmans broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit to
insulate the Office of the Ombudsman from the pressures and influence of officialdom and
partisan politics and from fear of external reprisal by making it an independent office. x x x.
xxxx
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered a notch above other grievance-handling
investigative bodies. It has powers, both constitutional and statutory, that are commensurate with its
daunting task of enforcing accountability of public officers.162(Emphasis and underscoring supplied)
Gonzales III is the first case which grappled with the meaning of the Ombudsmans independence vis-
-vis the independence of the other constitutional bodies. Pertinently, the Court observed:
(1) [T]he independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy.
In general terms, the framers of the Constitution intended that these independent bodies be
insulated from political pressure to the extent that the absence of independence would result in
the impairment of their core functions;163
(2) [T]he Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The imposition of
restrictions and constraints on the manner the independent constitutional offices allocate and
utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative
not only [of] the express mandate of the Constitution, but especially as regards the Supreme Court, of
the independence and separation of powers upon which the entire fabric of our constitutional system is
based;164 and

Page 184 of 321

Administrative Law
(3) [T]he constitutional deliberations explain the Constitutional Commissions need for
independence. In the deliberations of the 1973 Constitution, the delegates amended the 1935
Constitution by providing for a constitutionally-created Civil Service Commission, instead of one
created by law, on the premise that the effectivity of this body is dependent on its freedom from
the tentacles of politics. In a similar manner, the deliberations of the 1987 Constitution on the
Commission on Audit highlighted the developments in the past Constitutions geared towards
insulating the Commission on Audit from political pressure.165
At bottom, the decisive ruling in Gonzales III, however, was that the independence of the Office of the
Ombudsman, as well as that of the foregoing independent bodies, meant freedom from control or
supervision of the Executive Department:
[T]he independent constitutional commissions have been consistently intended by the framers to
be independent from executive control or supervision or any form of political influence. At least
insofar as these bodies are concerned, jurisprudence is not scarce on how the independence granted
to these bodies prevents presidential interference.
In Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990, 192 SCRA 358), we emphasized that
the Constitutional Commissions, which have been characterized under the Constitution as
independent, are not under the control of the President, even if they discharge functions that are
executive in nature. The Court declared as unconstitutional the Presidents act of temporarily
appointing the respondent in that case as Acting Chairman of the [Commission on Elections] however
well-meaning it might have been.
In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the Court categorically stated that the
tenure of the commissioners of the independent Commission on Human Rights could not be placed
under the discretionary power of the President.
xxxx
The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior but
is similar in degree and kind to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican democracy
that are crucial to its existence and proper functioning.166(Emphases and underscoring supplied)

Thus, in Gonzales III, the Court declared Section 8(2), RA 6770, which provides that [a] Deputy or the
Special Prosecutor, may be removed from office by the President for any of the grounds provided for
the removal of the Ombudsman, and after due process, partially unconstitutional insofar as it
subjected the Deputy Ombudsman to the disciplinary authority of the President for violating the
principle of independence. Meanwhile, the validity of Section 8(2), RA 6770 was maintained insofar as
the Office of the Special Prosecutor was concerned since said office was not considered to be
constitutionally within the Office of the Ombudsman and is, hence, not entitled to the independence the
latter enjoys under the Constitution.167
As may be deduced from the various discourses in Gonzales III, the concept of Ombudsmans
independence covers three (3) things:

Page 185 of 321

Administrative Law
First: creation by the Constitution, which means that the office cannot be abolished, nor its
constitutionally specified functions and privileges, be removed, altered, or modified by law, unless the
Constitution itself allows, or an amendment thereto is made;
Second: fiscal autonomy, which means that the office may not be obstructed from [its] freedom to
use or dispose of [its] funds for purposes germane to [its] functions; 168hence, its budget cannot be
strategically decreased by officials of the political branches of government so as to impair said
functions; and
Third: insulation from executive supervision and control, which means that those within the ranks
of the office can only be disciplined by an internal authority.
Evidently, all three aspects of independence intend to protect the Office of the Ombudsman
from political harassment and pressure, so as to free it from the insidious tentacles of politics.169
That being the case, the concept of Ombudsman independence cannot be invoked as basis to insulate
the Ombudsman from judicial power constitutionally vested unto the courts. Courts are apolitical
bodies, which are ordained to act as impartial tribunals and apply even justice to all. Hence, the
Ombudsmans notion that it can be exempt from an incident of judicial power that is, a provisional
writ of injunction against a preventive suspension order clearly strays from the concepts rationale of
insulating the office from political harassment or pressure.

B. The first paragraph of Section 14,

RA 6770 in light of the powers of
Congress and the Court under the
1987 Constitution.

The Ombudsmans erroneous abstraction of her offices independence notwithstanding, it remains that
the first paragraph of Section 14, RA 6770 textually prohibits courts from extending provisional
injunctive relief to delay any investigation conducted by her office. Despite the usage of the general
phrase [n]o writ of injunction shall be issued by any court, the Ombudsman herself concedes that the
prohibition does not cover the Supreme Court.170 As support, she cites the following Senate
deliberations:
Senator [Ernesto M.] Maceda.
Mr. President, I do not know if an amendment is necessary. I would just like to inquire for the
record whether below the Supreme Court, it is understood that there is no injunction policy
against the Ombudsman by lower courts. Or, is it necessary to have a special paragraph for
that?
Senator Angara.
Well, there is no provision here, Mr. President, that will prevent an injunction against the Ombudsman
being issued.
Senator Maceda.

Page 186 of 321

Administrative Law
In which case, I think that the intention, this being one of the highest constitutional bodies, is
to subject this only to certiorari to the Supreme Court. I think an injunction from the Supreme
Court is, of course, in order but no lower courts should be allowed to interfere. We had a very
bad experience with even, let us say, the Forestry Code where no injunction is supposed to be issued
against the Department of Natural Resources. Injunctions are issued right and left by RTC judges
all over the country.
The President.
Why do we not make an express provision to that effect?
Senator Angara.
We would welcome that, Mr. President.
The President.
No [writs of injunction] from the trial courts other than the Supreme Court.
Senator Maceda.
I so move, Mr. President, for that amendment.
The President.
Is there any objection? [Silence] Hearing none, the same is approved.171

Further, she acknowledges that by virtue of Sections 1 and 5(1), Article VIII of the 1987 Constitution,
acts of the Ombudsman, including interlocutory orders, are subject to the Supreme Courts power of
judicial review. As a corollary, the Supreme Court may issue ancillary injunctive writs or provisional
remedies in the exercise of its power of judicial review over matters pertaining to ongoing
investigations by the Office of the Ombudsman. Respecting the CA, however, the Ombudsman begs to
differ.172
With these submissions, it is therefore apt to examine the validity of the first paragraph of Section 14,
RA 6770 insofar as it prohibits all courts, except this Court, from issuing provisional writs of injunction
to enjoin an Ombudsman investigation. That the constitutionality of this provision is the lis mota of this
case has not been seriously disputed. In fact, the issue anent its constitutionality was properly raised
and presented during the course of these proceedings. 173 More importantly, its resolution is clearly
necessary to the complete disposition of this case.174
In the enduring words of Justice Laurel in Angara v. TheElectoral Commission (Angara),175 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. 176 The constitutional demarcation of
the three fundamental powers of government is more commonly known as the principle of separation
of powers. In the landmark case of Belgica v. Ochoa, Jr.(Belgica),177 the Court held that there is a
violation of the separation of powers principle when one branch of government unduly encroaches on
the domain of another.178 In particular, there is a violation of the principle when there is impermissible
(a) interference with and/or (b) assumption of another departments functions.179

Page 187 of 321

Administrative Law
Under Section 1, Article VIII of the 1987 Constitution, judicial power is allocated to the Supreme
Court and all such lower courts:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

This Court is the only court established by the Constitution, while all other lower courts may be
established by laws passed by Congress. Thus, through the passage of Batas Pambansa
Bilang (BP) 129,180 known as The Judiciary Reorganization Act of 1980, the Court of Appeals, 181 the
Regional Trial Courts,182 and the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts183 were established. Later, through the passage of RA 1125,184 and Presidential
Decree No. (PD) 1486,185 the Court of Tax Appeals, and the Sandiganbayan were respectively
established.
In addition to the authority to establish lower courts, Section 2, Article VIII of the 1987
Constitution empowers Congress to define, prescribe, and apportion the jurisdiction of all
courts, except that it may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5186 of the same Article:
Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of
the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.
xxxx

Jurisdiction, as hereinabove used, more accurately pertains to jurisdiction over the subject matter of an
action. In The Diocese of Bacolod v. Commission on Elections,187subject matter jurisdiction was
defined as the authority to hear and determine cases of the general class to which the
proceedings in question belong and is conferred by the sovereign authority which organizes
the court and defines its powers.
Among others, Congress defined, prescribed, and apportioned the subject matter jurisdiction of this
Court (subject to the aforementioned constitutional limitations), the Court of Appeals, and the trial
courts, through the passage of BP 129, as amended.
In this case, the basis for the CAs subject matter jurisdiction over Binay, Jr.s main petition
for certiorari in C.A.-G.R. S.P. No. 139453 is Section 9(1), Chapter I of BP 129, as amended:

Section 9. Jurisdiction.The Court of Appeals shall exercise:

Page 188 of 321
Administrative Law
1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo
warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction[.]

Note that the CAs certiorari jurisdiction, as above stated, is not only original but also concurrent with
the Regional Trial Courts (under Section 21[1], Chapter II of BP 129), and the Supreme Court (under
Section 5, Article VIII of the 1987 Philippine Constitution). In view of the concurrence of these courts
jurisdiction over petitions for certiorari, the doctrine of hierarchy of courts should be followed.
In People v. Cuaresma,188 the doctrine was explained as follows:

[T]his concurrence of jurisdiction is not x x x to be taken as according to parties seeking any of the
writs an absolute, unrestrained freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of
appeals, and should also serve as a general determinant of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions
for the issuance of extraordinary writs against first level (inferior) courts should be filed with the
Regional Trial Court, and those against the latter, with the Court of Appeals. 189
When a court has subject matter jurisdiction over a particular case, as conferred unto it by law, said
court may then exercise its jurisdiction acquired over that case, which is called judicial power.
Judicial power, as vested in the Supreme Court and all other courts established by law, has been
defined as the totality of powers a court exercises when it assumes jurisdiction and hears and
decides a case.190 Under Section 1, Article VIII of the 1987 Constitution, it includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
In Oposa v. Factoran, Jr.191 the Court explained the expanded scope of judicial power under the 1987
Constitution:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred by law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their
acts invalid for lack or excess of jurisdiction because they are tainted with grave abuse of discretion.
The catch, of course, is the meaning of grave abuse of discretion, which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary. 192

Page 189 of 321

Administrative Law
Judicial power is never exercised in a vacuum. A courtsexercise of the jurisdiction it has acquired
over a particular case conforms to the limits and parameters ofthe rules of procedure duly
promulgated by this Court. In other words, procedure is the framework within which judicial power is
exercised. In Manila Railroad Co. v. Attorney-General,193 the Court elucidated that [t]he power or
authority of the court over the subject matter existed and was fixed before procedure in a given cause
began. Procedure does not alter or change that power or authority; it simply directs the manner
in which it shall be fully and justly exercised. To be sure, in certain cases, if that power is not
exercised in conformity with the provisions of the procedural law, purely, the court attempting to
exercise it loses the power to exercise it legally. This does not mean that it loses jurisdiction of the
subject matter.194
While the power to define, prescribe, and apportion the jurisdiction of the various courts is, by
constitutional design, vested unto Congress, the power to promulgate rules concerning the
protection and enforcement of constitutional rights, pleading, practice, and procedure in
all courts belongs exclusively to this Court. Section 5(5), Article VIII of the 1987 Constitution reads:

Section 5. The Supreme Court shall have the following powers:

xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, plead-
ing, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar,
and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (Emphases and
underscoring supplied)
In Echegaray v. Secretary of Justice195 (Echegaray), the Court traced the evolution of its rule-making
authority, which, under the 1935196 and 1973 Constitutions,197 had been priorly subjected to a power-
sharing scheme with Congress.198As it now stands, the 1987 Constitution textually altered the old
provisions by deleting the concurrent power of Congress to amend the rules, thus solidifying
in one body the Courts rule-making powers, in line with the Framers vision of institutionalizing a
[s]tronger and more independent judiciary.199
The records of the deliberations of the Constitutional Commission would show 200 that the Framers
debated on whether or not the Courts rule-making powers should be shared with Congress. There
was an initial suggestion to insert the sentence The National Assembly may repeal, alter, or
supplement the said rules with the advice and concurrence of the Supreme Court, right after the
phrase Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal
assistance to the underprivileged[,] in the enumeration of powers of the Supreme Court. Later,
Commissioner Felicitas S. Aquino proposed to delete the former sentence and, instead, after the word
[under]privileged, place a comma (,) to be followed by the phrase with the concurrence of the
National Assembly. Eventually, a compromise formulation was reached wherein (a) the Committee
members agreed to Commissioner Aquinos proposal to delete the phrase the National Assembly
may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court
Page 190 of 321
Administrative Law
and (b) in turn, Commissioner Aquino agreed to withdraw his proposal to add the phrase with the
concurrence of the National Assembly. The changes were approved, thereby leading to the
present lack of textual reference to any form of Congressional participation in Section 5(5),
Article VIII, supra. The prevailing consideration was that both bodies, the Supreme Court and
the Legislature, have their inherent powers.201
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules concerning
pleading, practice, and procedure. As pronounced in Echegaray:

The rule-making power of this Court was expanded. This Court for the first time was given the power to
promulgate rules concerning the protection and enforcement of constitutional rights. The Court was
also granted for the first time the power to disapprove rules of procedure of special courts and quasi-
judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to
repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the
power to promulgate rules of pleading, practice and procedure is no longer shared by this
Court with Congress, more so with the Executive.202 (Emphasis and underscoring supplied)

Under its rule-making authority, the Court has periodically passed various rules of procedure, among
others, the current 1997 Rules of Civil Procedure. Identifying the appropriate procedural remedies
needed for the reasonable exercise of every courts judicial power, the provisional remedies of
temporary restraining orders and writs of preliminary injunction were thus provided.
A temporary restraining order and a writ of preliminary injunction both constitute temporary measures
availed of during the pendency of the action. They are, by nature, ancillary because they are mere
incidents in and are dependent upon the result of the main action. It is well-settled that the sole
object of a temporary restraining order or a writ of preliminary injunction, whether prohibitory
or mandatory, is to preserve the status quo203until the merits of the case can be heard. They are
usually granted when it is made to appear that there is a substantial controversy between the parties
and one of them is committing an act or threatening the immediate commission of an act that will
cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had
on the merits of the case. In other words, they are preservative remedies for the protection of
substantive rights or interests, and, hence, not a cause of action in itself, but merely adjunct to a main
suit.204 In a sense, they are regulatory processes meant to prevent a case from being mooted by the
interim acts of the parties.
Rule 58 of the 1997 Rules of Civil Procedure generally governs the provisional remedies of a TRO and
a WPI. A preliminary injunction is defined under Section 1, 205 Rule 58, while Section 3206 of the same
Rule enumerates the grounds for its issuance. Meanwhile, under Section 5207 thereof, a TRO may be
issued as a precursor to the issuance of a writ of preliminary injunction under certain procedural
parameters.
The power of a court to issue these provisional injunctive reliefs coincides with its inherent power to
issue all auxiliary writs, processes, and other means necessary to carry its acquired
jurisdiction into effect under Section 6, Rule 135 of the Rules of Court which reads:

Page 191 of 321

Administrative Law
Section 6. Means to carry jurisdiction into effect.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 law208 or by these rules, any suitableprocess or mode of
proceeding may be adopted which appears comfortable to the spirit of the said law or rules.
In City of Manila v. Grecia-Cuerdo,209 which is a case involving [t]he supervisory power or jurisdiction
of the [Court of Tax Appeals] to issue a writ of certiorari in aid of its appellate jurisdiction210 over
decisions, orders or resolutions of the RTCs in local tax cases originally decided or resolved by them
in the exercise of their original or appellate jurisdiction,211 the Court ruled that said power should
coexist with, and be a complement to, its appellate jurisdiction to review, by appeal, the final orders
and decisions of the RTC, in order to have complete supervision over the acts of the latter:212

A grant of appellate jurisdiction implies that there is included in it the power necessary to exercise it
effectively, to make all orders that will preserve the subject of the action, and to give effect to
the final determination of the appeal. It carries with it the power to protect that jurisdiction and to
make the decisions of the court thereunder effective. The court, in aid of its appellate jurisdiction, has
authority to control all auxiliary and incidental matters necessary to the efficient and proper exercise of
that jurisdiction. For this purpose, it may, when necessary, prohibit or restrain the performance of any
act which might interfere with the proper exercise of its rightful jurisdiction in cases pending before
it.213 (Emphasis supplied)
In this light, the Court expounded on the inherent powers of a court endowed with subject matter
jurisdiction:

[A] court which is endowed with a particular jurisdiction should have powers which are necessary to
enable it to act effectively within such jurisdiction. These should be regarded as powers which are
inherent in its jurisdiction and the court must possess them in order to enforce its rules of
practice and to suppress any abuses of its process and to defeat any attempted thwarting of
such process.
xxxx
Indeed, courts possess certain inherent powerswhich may be said to be implied from a general
grant of jurisdiction, in addition to those expressly conferred on them. These inherent powers are
such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or are
essential to the existence, dignity and functions of the courts, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable to the execution
of their granted powers; and include the power to maintain the courts jurisdiction and render it
effective in behalf of the litigants.214(Emphases and underscoring supplied)

Broadly speaking, the inherent powers of the courts resonates the long-entrenched constitutional
principle, articulated way back in the 1936 case of Angara, that where a general power is conferred or

Page 192 of 321

Administrative Law
duty enjoined, every particular power necessary for the exercise of the one or the performance of the
other is also conferred.215
In the United States, the inherent powers doctrinerefers to the principle by which the courts deal
with diverse matters over which they are thought to have intrinsic authority like procedural [rule-
making] and general judicial housekeeping. To justify the invocation or exercise of inherent powers, a
court must show that the powers are reasonably necessary to achieve the specific purpose for
which the exercise is sought. Inherent powers enable the judiciary to accomplish its
constitutionally mandated functions.216
In Smothers v. Lewis217 (Smothers), a case involving the constitutionality of a statute which prohibited
courts from enjoining the enforcement of a revocation order of an alcohol beverage license pending
appeal,218 the Supreme Court of Kentucky held:
[T]he Court is x x x vested with certain inherent powers to do that which is reasonably
necessary for the administration of justice within the scope of their jurisdiction. x x x [W]e said
while considering the rule-making power and the judicial power to be one and the same that . . . the
grant of judicial power [rule making power] to the courts by the constitution carries with it, as a
necessary incident, the right to make that power effective in the administration of justice.
(Emphases supplied)

Significantly, Smothers characterized a courts issuance of provisional injunctive relief as an exercise

of the courts inherent power, and to this end, stated that any attempt on the part of Congress to
interfere with the same was constitutionally impermissible:

It is a result of this foregoing line of thinking that we now adopt the language framework of 28 Am. Jur.
2d, Injunctions, Section 15, and once and for all make clear that a court, once having obtained
jurisdiction of a cause of action, has, as an incidental to its constitutional grant of power, inherent
power to do all things reasonably necessary to the administration of justice in the case before it. In the
exercise of this power, a court, when necessary in order to protect or preserve the subject
matter of the litigation, to protect its jurisdiction and to make its judgment effective, may grant
or issue a temporary injunction in aid of or ancillary to the principal action.
The control over this inherent judicial power, in this particular instance the injunction, is
exclusively within the constitutional realm of the courts. As such, it is not within the purview of
the legislature to grant or deny the power nor is it within the purview of the legislature to shape
or fashion circumstances under which this inherently judicial power may be or may not be
granted or denied.
This Court has historically recognized constitutional limitations upon the power of the legislature to
interfere with or to inhibit the performance of constitutionally granted and inherently provided judicial
functions. x x x
xxxx
We reiterate our previously adopted language, a court, once having obtained jurisdiction of a cause
of action, has, as incidental to its general jurisdiction, inherent power to do all things reasonably
Page 193 of 321
Administrative Law
necessary to the administration of justice in the case before it This includes the inherent power
to issue injunctions. (Emphases supplied)

Smothers also pointed out that the legislatures authority to provide a right to appeal in the statute does
not necessarily mean that it could control the appellate judicial proceeding:

However, the fact that the legislature statutorily provided for this appeal does not give it the right to
encroach upon the constitutionally granted powers of the judiciary. Once the administrative action
has ended and the right to appeal arises the legislature is void of any right to control a
subsequent appellate judicial proceeding. The judicial rules have come into play and have
preempted the field.219 (Emphasis supplied)

With these considerations in mind, the Court rules that when Congress passed the first paragraph of
Section 14, RA 6770 and, in so doing, took away from the courts their power to issue a TRO and/or
WPI to enjoin an investigation conducted by the Ombudsman, it encroached upon this Courts
constitutional rule-making authority. Clearly, these issuances, which are, by nature, provisional reliefs
and auxiliary writs created under the provisions of the Rules of Court, are matters of procedure which
belong exclusively within the province of this Court. Rule 58 of the Rules of Court did not create,
define, and regulate a right but merely prescribed the means of implementing an existing right 220since
it only provided for temporary reliefs to preserve the applicants right in esse which is threatened to be
violated during the course of a pending litigation. In the case of Fabian,221 it was stated that:

If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to
appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an
existing right then the rule deals merely with procedure.

Notably, there have been similar attempts on the part of Congress, in the exercise of its legislative
power, to amend the Rules of Court, as in the cases of: (a) In Re: Exemption of The National Power
Corporation from Payment of Filing/Docket Fees;222 (b) Re: Petition for Recognition of the Exemption
of the Government Service Insurance System (GSIS) from Payment of Legal Fees;223 and (c) Baguio
Market Vendors Multi-Purpose Cooperative (BAMARVEMPCO) v. Cabato-Cortes.224 While these
cases involved legislative enactments exempting government-owned and -controlled corporations and
cooperatives from paying filing fees, thus, effectively modifying Rule 141 of the Rules of Court (Rule on
Legal Fees), it was, nonetheless, ruled that the prerogative to amend, repeal or even establish new
rules of procedure225 solely belongs to the Court, to the exclusion of the legislative and
executive are established to administer; as opposed to adjective or remedial law, which prescribes the
method of enforcing rights or obtain redress for their invasions. (Primicias v. Ocampo, 93 Phil. 446,
452 [1953], citing Bustos v. Lucero, [46 Off. Gaz., January Supp., pp. 445, 448], further citing 36 C. J.
27; 52 C. J. S. 1026); see also Fabian v. Desierto, supranote 137.

Page 194 of 321

Administrative Law
branches of government. On this score, the Court described its authority to promulgate rules on
pleading, practice, and procedure as exclusive and [o]ne of the safeguards of [its] institutional
independence.226
That Congress has been vested with the authority to define, prescribe, and apportion the jurisdiction of
the various courts under Section 2, Article VIII, supra, as well as to create statutory courts under
Section 1, Article VIII, supra, does not result in an abnegation of the Courts own power to promulgate
rules of pleading, practice, and procedure under Section 5(5), Article VIII, supra. Albeit operatively
interrelated, these powers are nonetheless institutionally separate and distinct, each to be preserved
under its own sphere of authority. When Congress creates a court and delimits its jurisdiction, the
procedure for which its jurisdiction is exercised is fixed by the Court through the rules it
promulgates. The first paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the
Ombudsman misconceives,227 because it does not define, prescribe, and apportion the subject matter
jurisdiction of courts to act on certiorari cases; the certiorarijurisdiction of courts, particularly the CA,
stands under the relevant sections of BP 129 which were not shown to have been repealed. Instead,
through this provision, Congress interfered with a provisional remedy that was created by this
Court under its duly promulgated rules of procedure, which utility is both integral and inherent
to every courts exercise of judicial power. Without the Courts consent to the proscription, as
may be manifested by an adoption of the same as part of the rules of procedure through an
administrative circular issued therefor, there thus, stands to be a violation of the separation of
powers principle.
In addition, it should be pointed out that the breach of Congress in prohibiting provisional injunctions,
such as in the first paragraph of Section 14, RA 6770, does not only undermine the constitutional
allocation of powers; it also practically dilutes a courts ability to carry out its functions. This is
so since a particular case can easily be mooted by supervening events if no provisional
injunctive relief is extended while the court is hearing the same. Accordingly, the courts acquired
jurisdiction, through which it exercises its judicial power, is rendered nugatory. Indeed, the force of
judicial power, especially under the present Constitution, cannot be enervated due to a courts inability
to regulate what occurs during a proceedings course. As earlier intimated, when jurisdiction over the
subject matter is accorded by law and has been acquired by a court, its exercise thereof should be
unclipped. To give true meaning to the judicial power contemplated by the Framers of our Constitution,
the Courts duly promulgated rules of procedure should therefore remain unabridged, this, even by
statute. Truth be told, the policy against provisional injunctive writs in whatever variant should only
subsist under rules of procedure duly promulgated by the Court given its sole prerogative over the
same.
The following exchange between Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen)
and the Acting Solicitor General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors the foregoing
observations:
JUSTICE LEONEN:
Okay. Now, would you know what rule covers injunction in the Rules of Court?
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor.

Page 195 of 321

Administrative Law
JUSTICE LEONEN:
58, that is under the general rubric if Justice Bersamin will correct me if I will be mistaken under the
rubric of what is called provisional remedies, our resident expert because Justice Peralta is not here so
Justice Bersamin for a while. So provisional remedy you have injunction. x x x.
xxxx
JUSTICE LEONEN:
Okay, Now, we go to the Constitution. Section 5, subparagraph 5 of Article VIII of the Constitution, if
you have a copy of the Constitution, can you please read that provision? Section 5, Article VIII the
Judiciary, subparagraph 5, would you kindly read that provision?
ACTING SOLICTOR GENERAL HILBAY:
Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts
JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning pleading, practice and procedure in all
courts. This is the power, the competence, the jurisdiction of what constitutional organ?
ACTING SOLICITOR GENERAL HILBAY:
The Supreme Court, Your Honor.
JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII, Sections 1 and 2 which weve already been
discussed with you by my other colleagues, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
Okay, so in Section 2, [apportion] jurisdiction that is the power of Congress, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the Court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a separate case or is it part of litigation in an
ordinary case?
Page 196 of 321
Administrative Law
ACTING SOLICITOR GENERAL HILBAY:
It is an ancillary remedy, Your Honor.
JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In order to preserve the power of a court so that at the end of litigation, it will not be rendered
moot and academic, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
JUSTICE LEONEN:
In that view, isnt Section 14, first paragraph, unconstitutional?
ACTING SOLICITOR GENERAL HILBAY:
No, Your Honor.
xxxx
JUSTICE LEONEN:
Can Congress say that a Court cannot prescribe Motions to Dismiss under Rule 16?
ACTING SOLICITOR GENERAL HILBAY:
Your Honor, Congress cannot impair the power of the Court to create remedies. x x x.
JUSTICE LEONEN:
What about bill [of] particulars, can Congress say, no Court shall have the power to issue the
supplemental pleading called the bill of particular[s]? It cannot, because thats part of procedure
ACTING SOLICITOR GENERAL HILBAY:
That is true.
JUSTICE LEONEN:
or for that matter, no Court shall act on a Motion to Quash, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct.
JUSTICE LEONEN:
So whats different with the writ of injunction?
Page 197 of 321
Administrative Law
ACTING SOLICITOR GENERAL HILBAY:
Writ of injunction, Your Honor, requires the existence of jurisdiction on the part of a court that was
created by Congress. In the absence of jurisdiction (interrupted)
JUSTICE LEONEN:
No, writ of injunction does not attach to a court. In other words, when they create a special agrarian
court it has all procedures with it but it does not attach particularly to that particular court, is that not
correct?
ACTING SOLICTOR GENERAL HILBAY:
When Congress, Your Honor, creates a special court
JUSTICE LEONEN:
Again, Counsel, what statute provides for a TRO, created the concept of a TRO? It was a Rule. A rule
of procedure and the Rules of Court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Yes, Your Honor.
JUSTICE LEONEN:
And a TRO and a writ of preliminary injunction does not exist unless it is [an] ancillary to a particular
injunction in a court, is that not correct?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
x x x x228 (Emphasis supplied)
In Biraogo v. The Philippine Truth Commission of 2010,229 the Court instructed that [i]t is through the
Constitution that the fundamental powers of government are established, limited and defined, and by
which these powers are distributed among the several departments. The Constitution is the basic and
paramount law to which all other laws must conform and to which all persons, including the highest
officials of the land, must defer. It would then follow that laws that do not conform to the Constitution
shall be stricken down for being unconstitutional.230
However, despite the ostensible breach of the separation of powers principle, the Court is not oblivious
to the policy considerations behind the first paragraph of Section 14, RA 6770, as well as other
statutory provisions of similar import. Thus, pending deliberation on whether or not to adopt the same,
the Court, under its sole prerogative and authority over all matters of procedure, deems it proper to
declare as ineffective the prohibition against courts other than the Supreme Court from issuing
provisional injunctive writs to enjoin investigations conducted by the Office of the Ombudsman, until it
is adopted as part of the rules of procedure through an administrative circular duly issued therefor.
Hence, with Congress interfering with matters of procedure (through passing the first paragraph of
Section 14, RA 6770) without the Courts consent thereto, it remains that the CA had the authority to
issue the questioned injunctive writs enjoining the implementation of the preventive suspension order
against Binay, Jr. At the risk of belaboring the point, these issuances were merely ancillary to the
Page 198 of 321
Administrative Law
exercise of the CAs certiorari jurisdiction conferred to it under Section 9(1), Chapter I of BP 129, as
amended, and which it had already acquired over the main C.A.-G.R. S.P. No. 139453 case.
IV.

The foregoing notwithstanding, the issue of whether or not the CA gravely abused its jurisdiction in
issuing the TRO and WPI in C.A.-G.R. S.P. No. 139453 against the preventive suspension order is a
persisting objection to the validity of said injunctive writs. For its proper analysis, the Court first
provides the context of the assailed injunctive writs.

A. Subject matter of the CAs injunctive writs is the preventive suspension order.

By nature, a preventive suspension order is not a penalty but only a preventive measure.
In Quimbo v. Acting Ombudsman Gervacio,231 the Court explained the distinction, stating that its
purpose is to prevent the official to be suspended from using his position and the powers and
prerogatives of his office to influence potential witnesses or tamper with records which may be
vital in the prosecution of the case against him:

Jurisprudential law establishes a clear-cut distinction between suspension as preventive

measureand suspension as penalty. The distinction, by considering the purpose aspect of the
suspensions, is readily cognizable as they have different ends sought to be achieved.
Preventive suspension is merely a preventive measure, a preliminary step in an administrative
investigation. The purpose of the suspension order is to prevent the accused from using his
position and the powers and prerogatives of his office to influence potential witnesses or
tamper with records which may be vital in the prosecution of the case against him. If after such
investigation, the charge is established and the person investigated is found guilty of acts warranting
his suspension or removal, then he is suspended, removed or dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of
the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No.
292) and other Pertinent Civil Service Laws.
Section 24. Preventive suspension is not a punishment or penalty for misconduct in office but is
considered to be a preventive measure. (Emphasis supplied)
Not being a penalty, the period within which one is under preventive suspension is not considered part
of the actual penalty of suspension. So Section 25 of the same Rule XIV provides:
Section 25. The period within which a public officer or employee charged is placed under preventive
suspension shall not be considered part of the actual penalty of suspension imposed upon the
employee found guilty.232 (Emphases supplied)

The requisites for issuing a preventive suspension order are explicitly stated in Section 24, RA 6770:
Page 199 of 321
Administrative Law

Section 24. Preventive Suspension.The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondents continued stay in office may
prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman
but not more than six (6) months, without pay, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in computing the period of suspension herein
provided. (Emphasis and underscoring supplied)

In other words, the law sets forth two (2) conditions that must be satisfied to justify the issuance of an
order of preventive suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances coexist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or neglect in the performance of
duty;
(b) The charge would warrant removal from the service; or
(c) The respondents continued stay in office may prejudice the case filed against him. 233

B. The basis of the CAs injunctive writs is the condonation doctrine.

Examining the CAs Resolutions in C.A.-G.R. S.P. No. 139453 would, however, show that the
Ombudsmans noncompliance with the requisites provided in Section 24, RA 6770 was not the basis
for the issuance of the assailed injunctive writs.
The CAs March 16, 2015 Resolution which directed the issuance of the assailed TRO was based on
the case of Governor Garcia, Jr. v. CA234 (Governor Garcia, Jr.), wherein the Court emphasized that
if it were established in the CA that the acts subject of the administrative complaint were indeed
committed during petitioner [Garcias] prior term, then, following settled jurisprudence, he can no
longer be administratively charged.235 Thus, the Court, contemplating the application of the
condonation doctrine, among others, cautioned, in the said case, that it would have been more
prudent for [the appellate court] to have, at the very least, on account of the extreme urgency of the
matter and the seriousness of the issues raised in the certiorari petition, issued a TRO x x x236 during
the pendency of the proceedings.
Similarly, the CAs April 6, 2015 Resolution which directed the issuance of the assailed WPI was
based on the condonation doctrine, citing the case of Aguinaldo v. Santos.237 The CA held that
Page 200 of 321
Administrative Law
Binay, Jr. has an ostensible right to the final relief prayed for, i.e., the nullification of the preventive
suspension order, finding that the Ombudsman can hardly impose preventive suspension against
Binay, Jr. given that his reelection in 2013 as City Mayor of Makati condoned any administrative
liability arising from anomalous activities relative to the Makati Parking Building project from 2007 to
2013.238 Moreover, the CA observed that although there were acts which were apparently committed
by Binay, Jr. beyond his first term, i.e., the alleged payments on July 3, 4, and 24,
2013,239corresponding to the services of Hilmarcs and MANA still, Binay, Jr. cannot be held
administratively liable therefor based on the cases of Salalima v. Guingona, Jr.,240and Mayor Garcia
v. Mojica,241 wherein the condonation doctrine was applied by the Court although the payments were
made after the officials election, reasoning that the payments were merely effected pursuant to
contracts executed before said reelection.242
The Ombudsman contends that it was inappropriate for the CA to have considered the condonation
doctrine since it was a matter of defense which should have been raised and passed upon by her
office during the administrative disciplinary proceedings.243 However, the Court agrees with the CA that
it was not precluded from considering the same given that it was material to the propriety of according
provisional injunctive relief in conformity with the ruling in Governor Garcia, Jr., which was the
subsisting jurisprudence at that time. Thus, since condonation was duly raised by Binay, Jr. in his
petition in C.A.-G.R. S.P. No. 139453,244 the CA did not err in passing upon the same. Note that
although Binay, Jr. secondarily argued that the evidence of guilt against him was not strong in his
petition in C.A.-G.R. S.P. No. 139453,245 it appears that the CA found that the application of the
condonation doctrine was already sufficient to enjoin the implementation of the preventive suspension
order. Again, there is nothing aberrant with this since, as remarked in the same case of Governor
Garcia, Jr., if it was established that the acts subject of the administrative complaint were indeed
committed during Binay, Jr.s prior term, then, following the condonation doctrine, he can no longer be
administratively charged. In other words, with condonation having been invoked by Binay, Jr. as an
exculpatory affirmative defense at the onset, the CA deemed it unnecessary to determine if the
evidence of guilt against him was strong, at least for the purpose of issuing the subject injunctive writs.
With the preliminary objection resolved and the basis of the assailed writs herein laid down, the Court
now proceeds to determine if the CA gravely abused its discretion in applying the condonation
doctrine.

C. The origin of the condonation doctrine.

Generally speaking, condonation has been defined as [a] victims express or implied forgiveness of an
offense, [especially] by treating the offender as if there had been no offense.246
The condonation doctrine which connotes this same sense of complete extinguishment of liability as
will be herein elaborated upon is not based on statutory law. It is a jurisprudential creation that
originated from the 1959 caseof Pascual v. Hon. Provincial Board of Nueva
247
Ecija, (Pascual), which was therefore decided under the 1935 Constitution.
In Pascual, therein petitioner, Arturo Pascual, was elected Mayor of San Jose, Nueva Ecija, sometime
in November 1951, and was later reelected to the same position in 1955. During his second term, or
on October 6, 1956, the Acting Provincial Governor filed administrative charges before the Provincial
Page 201 of 321
Administrative Law
Board of Nueva Ecija against him for grave abuse of authority and usurpation of judicial functions for
acting on a criminal complaint in Criminal Case No. 3556 on December 18 and 20, 1954. In defense,
Arturo Pascual argued that he cannot be made liable for the acts charged against him since they were
committed during his previous term of office, and therefore, invalid grounds for disciplining him during
his second term. The Provincial Board, as well as the Court of First Instance of Nueva Ecija, later
decided against Arturo Pascual, and when the case reached this Court on appeal, it recognized that
the controversy posed a novel issue that is, whether or not an elective official may be disciplined for
a wrongful act committed by him during his immediately preceding term of office.
As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted to
American authorities and found that cases on the matter are conflicting due in part, probably, to
differences in statutes and constitutional provisions, and also, in part, to a divergence of views with
respect to the question of whether the subsequent election or appointment condones the prior
misconduct.248 Without going into the variables of these conflicting views and cases, it
proceeded to state that:

The weight of authorities x x x seems to incline toward the rule denying the right to remove
onefrom office because of misconduct during a prior term, to which we fully
subscribe.249 (Emphasis and underscoring supplied)
The conclusion is at once problematic since this Court has now uncovered that there is really no
established weight of authority in the United States (US) favoring the doctrine of condonation, which, in
the words of Pascual, theorizes that an officials reelection denies the right to remove him from office
due to a misconduct during a prior term. In fact, as pointed out during the oral arguments of this case,
at least seventeen (17) states in the US have abandoned the condonation doctrine.250 The
Ombudsman aptly cites several rulings of various US State courts, as well as literature published on
the matter, to demonstrate the fact that the doctrine is not uniformly applied across all state
jurisdictions. Indeed, the treatment is nuanced:
(1) For one, it has been widely recognized that the propriety of removing a public officer from his
current term or office for misconduct which he allegedly committed in a prior term of office is governed
by the language of the statute or constitutional provision applicable to the facts of a particular case
(see In Re Removal of Member of Council Coppola).251 As an example, a Texas statute, on the one
hand, expressly allows removal only for an act committed during a present term: no officer shall be
prosecuted or removed from office for any act he may have committed prior to his election to office
(see State ex rel. Rawlings v. Loomis).252 On the other hand, the Supreme Court of Oklahoma allows
removal from office for acts of commission, omission, or neglect committed, done or omitted during a
previous or preceding term of office (see State v. Bailey).253 Meanwhile, in some states where the
removal statute is silent or unclear, the cases resolution was contingent upon the interpretation of the
phrase in office. On one end, the Supreme Court of Ohio strictly construed a removal statute
containing the phrase misfeasance of malfeasance in office and thereby declared that, in the
absence of clear legislative language making, the word office must be limited to the single term
during which the offense charged against the public officer occurred (see State ex rel. Stokes
v.Probate Court of Cuyahoga County).254 Similarly, the Common Pleas Court of Allegheny County,
Pennsylvania decided that the phrase in office in its state constitution was a time limitation with
regard to the grounds of removal, so that an officer could not be removed for misbehaviour which
Page 202 of 321
Administrative Law
occurred prior to the taking of the office (see Commonwealth v. Rudman).255 The opposite was
construed in the Supreme Court of Louisiana which took the view that an officers inability to hold an
office resulted from the commission of certain offenses, and at once rendered him unfit to continue in
office, adding the fact that the officer had been reelected did not condone or purge the offense
(see State ex rel. Billon v. Bourgeois).256 Also, in the Supreme Court of New York, Appellate Division,
Fourth Department, the court construed the words in office to refer not to a particular term of office
but to an entire tenure; it stated that the whole purpose of the legislature in enacting the statute in
question could easily be lost sight of, and the intent of the lawmaking body be thwarted, if an unworthy
official could not be removed during one term for misconduct for a previous one (Newman v.
Strobel).257
(2) For another, condonation depended on whether or not the public officer was a successor in the
same office for which he has been administratively charged. The own-successor theory, which is
recognized in numerous States as an exception to condonation doctrine, is premised on the idea that
each term of a reelected incumbent is not taken as separate and distinct, but rather, regarded as one
continuous term of office. Thus, infractions committed in a previous term are grounds for removal
because a reelected incumbent has no prior term to speak of 258 (see Attorney-General
v. Tufts;259 State v. Welsh;260 Hawkins v. Common Council of Grand Rapids;261Territory v.
Sanches;262 and Tibbs v. City of Atlanta).263
(3) Furthermore, some State courts took into consideration the continuing nature of an offense in
cases where the condonation doctrine was invoked. In State ex rel. Douglas v. Megaarden,264 the
public officer charged with malversation of public funds was denied the defense of condonation by the
Supreme Court of Minnesota, observing that the large sums of money illegally collected during the
previous years are still retained by him. In State ex rel. Beck v. Harvey,265 the Supreme Court of
Kansas ruled that there is no necessity of applying the condonation doctrine since the misconduct
continued in the present term of office[;] [thus] there was a duty upon defendant to restore this money
on demand of the county commissioners. Moreover, in State ex rel. Londerholm v. Schroeder,266 the
Supreme Court of Kansas held that insofar as nondelivery and excessive prices are concerned, x x x
there remains a continuing duty on the part of the defendant to make restitution to the country x x x,
this duty extends into the present term, and neglect to discharge it constitutes misconduct.
Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual that there is a
weight of authority in the US on the condonation doctrine. In fact, without any cogent exegesis to
show that Pascual had accounted for the numerous factors relevant to the debate on condonation, an
outright adoption of the doctrine in this jurisdiction would not have been proper.
At any rate, these US cases are only of persuasive value in the process of this Courts decision-
making. [They] are not relied upon as precedents, but as guides of interpretation. 267 Therefore, the
ultimate analysis is on whether or not the condonation doctrine, as espoused in Pascual, and carried
over in numerous cases after, can be held up against prevailing legal norms. Note that the doctrine
of stare decisis does not preclude this Court from revisiting existing doctrine. As adjudged in the case
of Belgica, the stare decisis rule should not operate when there are powerful countervailing
considerations against its application.268 In other words, stare decisis becomes an intractable rule only
when circumstances exist to preclude reversal of standing precedent. 269 As the Ombudsman correctly
points out, jurisprudence, after all, is not a rigid, atemporal abstraction; it is an organic creature that
develops and devolves along with the society within which it thrives. 270 In the words of a recent US
Supreme Court Decision, [w]hat we can decide, we can undecide.271
Page 203 of 321
Administrative Law
In this case, the Court agrees with the Ombudsman that since the time Pascual was decided, the legal
landscape has radically shifted. Again, Pascual was a 1959 case decided under the 1935 Constitution,
which dated provisions do not reflect the experience of the Filipino People under the 1973 and 1987
Constitutions. Therefore, the plain difference in setting, including, of course, the sheer impact of the
condonation doctrine on public accountability, calls for Pascuals judicious reexamination.

D. Testing the Condonation Doctrine.

Pascuals ratio decidendi may be dissected into three (3) parts:

First, the penalty of removal may not be extended beyond the term in which the public officer was
elected for each term is separate and distinct:

Offenses committed, or acts done, during previous term are generally held not to furnish cause
for removal and this is especially true where the constitution provides that the penalty in proceedings
for removal shall not extend beyond the removal from office, and disqualification from holding
office for the term for which the officer was elected or appointed. (67 C.J.S.,
p. 248, citing Rice v. State, 161 S.W. 2d. 401; Montgomery v. Nowell, 40 S.W. 2d. 418; People ex rel.
Bagshaw v. Thompson, 130 P. 2d. 237; Board of Comrs of Kingfisher County v. Shutler, 281 P.
222; State v. Blake, 280 P. 388; In re Fudula, 147 A. 67; State v. Ward, 43 S.W. 2d. 217)
The underlying theory is that each term is separate from other terms x x x.272
Second, an elective officials reelection serves as a condonation of previous misconduct, thereby
cutting the right to remove him therefor; and

[T]hat the reelection to office operates as a condonation of the officers previous misconduct to
the extent of cutting off the right to remove him therefor. (43 Am. Jur., p. 45, citing Atty. Gen. v.
Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. [NS] 553).273 (emphasis supplied)

Third, courts may not deprive the electorate, who are assumed to have known the life and character of
candidates, of their right to elect officers:

As held in Conant v. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS)
553
The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When the people have
elected a man to office, it must be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been guilty
of any. It is not for the court, by reason of such faults or misconduct to practically overrule the will of
the people.274 (Emphases supplied)
Page 204 of 321
Administrative Law
The notable cases on condonation following Pascual are as follows:
(1) Lizares v. Hechanova275 (May 17, 1966) wherein the Court first applied the condonation
doctrine, thereby quoting the above stated passages from Pascual in verbatim.
(2) Ingco v. Sanchez, et al.276 (December 18, 1967) wherein the Court clarified that the
condonation doctrine does not apply to a criminal case. It was explained that a criminal case is
different from an administrative case in that the former involves the People of the Philippines as a
community, and is a public wrong to the State at large; whereas, in the latter, only the populace of the
constituency he serves is affected. In addition, the Court noted that it is only the President who may
pardon a criminal offense.
(3) Aguinaldo v. Santos277 (Aguinaldo; August 21, 1992) a case decided under the 1987
Constitutionwherein the condonation doctrine was applied in favor of then Cagayan Governor
Rodolfo E. Aguinaldo although his reelection merely supervened the pendency of the
proceedings.
(4) Salalima v. Guingona, Jr.278 (Salalima; May 22, 1996) wherein the Court reinforced the
condonation doctrine by stating that the same is justified by sound public policy. According to
the Court, condonation prevented the elective official from being hounded by administrative cases
filed by his political enemies during a new term, for which he has to defend himself to the detriment
of public service. Also, the Court mentioned that the administrative liability condoned by reelection
covered the execution of the contract and the incidents related therewith. 279
(5) Mayor Garcia v. Mojica280 (Mayor Garcia; September 10, 1999) wherein the benefit of the
doctrine was extended to then Cebu City Mayor Alvin B. Garcia who was administratively charged for
his involvement in an anomalous contract for the supply of asphalt for Cebu City, executed only four
(4) days before the upcoming elections. The Court ruled that notwithstanding the timing of the
contracts execution, the electorate is presumed to have known the petitioners background and
character, including his past misconduct; hence, his subsequent reelection was deemed a condonation
of his prior transgressions. More importantly, the Court held that the determinative time element in
applying the condonation doctrine should be the time when the contract was perfected; this meant
that as long as the contract was entered into during a prior term, acts which were done to
implement the same, even if done during a succeeding term, do not negate the application of
the condonation doctrine in favor of the elective official.
(6) Salumbides, Jr. v. Office of the Ombudsman281(Salumbides, Jr.; April 23, 2010) wherein the
Court explained the doctrinal innovations in the Salalima and Mayor Garcia rulings, to wit:
Salalima v. Guingona, Jr. and Mayor Garcia v. Hon. Mojica reinforced the doctrine. The condonation
rule was applied even if the administrative complaint was not filed before the reelection of the
public official, and even if the alleged misconduct occurred four days before the elections,
respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as
long as the alleged misconduct was committed during the prior term, the precise timing or period of
which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public officials
culpability was committed prior to the date of reelection.282 (Emphasis supplied)

Page 205 of 321

Administrative Law
The Court, citing Civil Service Commission v. Sojor,283also clarified that the condonation doctrine
would not apply to appointive officials since, as to them, there is no sovereign will to
disenfranchise.
(7) And finally, the above discussed case of Governor Garcia, Jr. wherein the Court remarked
that it would have been prudent for the appellate court therein to have issued a temporary restraining
order against the implementation of a preventive suspension order issued by the Ombudsman in view
of the condonation doctrine.
A thorough review of the cases post-1987, among others, Aguinaldo, Salalima, Mayor Garcia,
and Governor Garcia, Jr. all cited by the CA to justify its March 16, 2015 and April 6, 2015
Resolutions directing the issuance of the assailed injunctive writs would show that the basis for
condonation under the prevailing constitutional and statutory framework was never accounted for.
What remains apparent from the text of these cases is that the basis for condonation, as jurisprudential
doctrine, was and still remains the above cited postulates of Pascual, which was lifted from
rulings of US courts where condonation was amply supported by their own state laws. With respect to
its applicability to administrative cases, the core premise of condonation that is, an elective officials
reelection cuts off the right to remove him for an administrative offense committed during a prior term
was adopted hook, line, and sinker in our jurisprudence largely because the legality of that doctrine
was never tested against existing legal norms. As in the US, the propriety of condonation is as it
should be dependent on the legal foundation of the adjudicating jurisdiction. Hence, the Court
undertakes an examination of our current laws in order to determine if there is legal basis for the
continued application of the doctrine of condonation.
The foundation of our entire legal system is the Constitution. It is the supreme law of the land;284 thus,
the unbending rule is that every statute should be read in light of the Constitution. 285 Likewise, the
Constitution is a framework of a workable government; hence, its interpretation must take into account
the complexities, realities, and politics attendant to the operation of the political branches of
government.286
As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was decided within the
context of the 1935 Constitution which was silent with respect to public accountability, or of the nature
of public office being a public trust. The provision in the 1935 Constitution that comes closest in
dealing with public office is Section 2, Article II which states that [t]he defense of the State is a prime
duty of government, and in the fulfillment of this duty all citizens may be required by law to render
personal military or civil service.287 Perhaps owing to the 1935 Constitutions silence on public
accountability, and considering the dearth of jurisprudential rulings on the matter, as well as the
variance in the policy considerations, there was no glaring objection confronting the PascualCourt in
adopting the condonation doctrine that originated from select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with public officers underwent a
significant change. The new charter introduced an entire article on accountability of public officers,
found in Article XIII. Section 1 thereof positively recognized, acknowledged, and declared that
[p]ublic office is a public trust. Accordingly, [p]ublic officers and employees shall serve with
the highest degree of responsibility, integrity, loyalty and efficiency, and shall remain
accountable to the people.
After the turbulent decades of Martial Law rule, the Filipino People have framed and adopted the 1987
Constitution, which sets forth in the Declaration of Principles and State Policies in Article II that [t]he
Page 206 of 321
Administrative Law
State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption.288 Learning how unbridled power could corrupt public
servants under the regime of a dictator, the Framers put primacy on the integrity of the public service
by declaring it as a constitutional principle and a State policy. More significantly, the 1987 Constitution
strengthened and solidified what has been first proclaimed in the 1973 Constitution by commanding
public officers to be accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmostresponsibility, integrity, loyalty, and
efficiency and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:

[t]he aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that public
office is a public trust, is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the peoples trust. The notion of a public trust connotes
accountability x x x.289 (Emphasis supplied)

The same mandate is found in the Revised Administrative Code under the section of the Civil Service
Commission,290 and also, in the Code of Conduct and Ethical Standards for Public Officials and
Employees.291
For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove an elective
local official from office are stated in Section 60 of Republic Act No. 7160,292 otherwise known as
the Local Government Code of 1991 (LGC), which was approved on October 10 1991, and
took effect on January 1, 1992:

Section 60. Grounds for Disciplinary Action.An elective local official may be disciplined,
suspended, or removed from office on any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an offense punishable by at
least prisin mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan,sangguniang panlungsod, sangguniang bayan,
and sangguniang barangay;
Page 207 of 321
Administrative Law
(g) Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other laws.
An elective local official may be removed from office on the grounds enumerated above by
order of the proper court.

Related to this provision is Section 40(b) of the LGC which states that those removed from
office as a result of an administrative case shall be disqualified from running for any elective
local position:
Section 40. Disqualifications.The following persons are disqualified from running for any
elective local position:
xxxx
(b) Those removed from office as a result of an administrative case.
x x x x (Emphasis supplied)

In the same sense, Section 52(a) of the RRACCS provides that the penalty of dismissal from
service carries the accessory penalty of perpetual disqualification from holding public office:

Section 52. Administrative Disabilities Inherent in Certain Penalties.

a. The penalty of dismissal shall carry with it cancellation of eligibility, forfeiture of retirement
benefits, perpetual disqualification from holding public office, and bar from taking the civil
service examinations.

In contrast, Section 66(b) of the LGC states that the penalty of suspension shall not exceed the
unexpired term of the elective local official nor constitute a bar to his candidacy for as long as
he meets the qualifications required for the office. Note, however, that the provision only
pertains to the duration of the penalty and its effect on the officials candidacy. Nothing therein
states that the administrative liability therefor is extinguished by the fact of reelection:

Section 66. Form and Notice of Decision.x x x.

xxxx
(b) The penalty of suspension shall not exceed the unexpired term of the respondent or a period of
six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the qualifications required for the office.

Page 208 of 321

Administrative Law
Reading the 1987 Constitution together with the above cited legal provisions now leads this Court to
the conclusion that the doctrine of condonation is actually bereft of legal bases.
To begin with, the concept of public office is a public trust and the corollary requirement of
accountability to the people at all times, as mandated under the 1987 Constitution, is plainly
inconsistent with the idea that an elective local officials administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term of
office, or even another elective post. Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the notion
that an official elected for a different term is fully absolved of any administrative liability arising from an
offense done during a prior term. In this jurisdiction, liability arising from administrative offenses
may be condoned by the President in light of Section 19, Article VII of the 1987 Constitution which
was interpreted in Llamas v. Orbos293 to apply to administrative offenses:

The Constitution does not distinguish between which cases executive clemency may be exercised by
the President, with the sole exclusion of impeachment cases. By the same token, if executive
clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for the
exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution.
Following petitioners proposed interpretation, cases of impeachment are automatically excluded
inasmuch as the same do not necessarily involve criminal offenses.
In the same vein, We do not clearly see any valid and convincing reason why the President cannot
grant executive clemency in administrative cases. It is Our considered view that if the President can
grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with
much more reason can she grant executive clemency in administrative cases, which are clearly less
serious than criminal offenses.

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline enumerated
therein cannot anymore be invoked against an elective local official to hold him administratively liable
once he is reelected to office. In fact, Section 40(b) of the LGC precludes condonation since in the first
place, an elective local official who is meted with the penalty of removal could not be reelected to an
elective local position due to a direct disqualification from running for such post. In similar regard,
Section 52(a) of the RRACCS imposes a penalty of perpetual disqualification from holding public office
as an accessory to the penalty of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US State jurisdictions wherein
the doctrine of condonation of administrative liability was supported by either a constitutional or
statutory provision stating, in effect, that an officer cannot be removed by a misconduct committed
during a previous term,294 or that the disqualification to hold the office does not extend beyond
the term in which the officials delinquency occurred.295 In one case,296 the absence of a provision
against the reelection of an officer removed unlike Section 40(b) of the LGC was the justification
behind condonation. In another case,297 it was deemed that condonation through reelection was a
policy under their constitution which adoption in this jurisdiction runs counter to our present
Constitutions requirements on public accountability. There was even one case where the doctrine of
condonation was not adjudicated upon but only invoked by a party as a ground; 298 while in another
Page 209 of 321
Administrative Law
case, which was not reported in full in the official series, the crux of the disposition was that the
evidence of a prior irregularity in no way pertained to the charge at issue and therefore, was deemed
to be incompetent.299 Hence, owing to either their variance or inapplicability, none of these cases can
be used as basis for the continued adoption of the condonation doctrine under our existing laws.
At best, Section 66(b) of the LGC prohibits the enforcement of the penalty of suspension beyond
the unexpired portion of the elective local officials prior term, and likewise allows said official to still run
for reelection. This treatment is similar to People ex rel. Bagshaw v. Thompson300 and Montgomery v.
Nowell,301 both cited in Pascual, wherein it was ruled that an officer cannot be suspended for a
misconduct committed during a prior term. However, as previously stated, nothing in Section 66(b)
states that the elective local officials administrative liability is extinguished by the fact of reelection.
Thus, at all events, no legal provision actually supports the theory that the liability is condoned.
Relatedly, it should be clarified that there is no truth in Pascuals postulation that the courts would be
depriving the electorate of their right to elect their officers if condonation were not to be sanctioned. In
political law, election pertains to the process by which a particular constituency chooses an individual
to hold a public office. In this jurisdiction, there is, again, no legal basis to conclude that election
automatically implies condonation. Neither is there any legal basis to say that every democratic and
republican state has an inherent regime of condonation. If condonation of an elective officials
administrative liability would perhaps, be allowed in this jurisdiction, then the same should have been
provided by law under our governing legal mechanisms. May it be at the time of Pascual or at present,
by no means has it been shown that such a law, whether in a constitutional or statutory provision,
exists. Therefore, inferring from this manifest absence, it cannot be said that the electorates will has
been abdicated.
Equally infirm is Pascuals proposition that the electorate, when reelecting a local official, are assumed
to have done so with knowledge of his life and character, and that they disregarded or forgave his
faults or misconduct, if he had been guilty of any. Suffice it to state that no such presumption exists
in any statute or procedural rule.302Besides, it is contrary to human experience that the electorate
would have full knowledge of a public officials misdeeds. The Ombudsman correctly points out the
reality that most corrupt acts by public officers are shrouded in secrecy, and concealed from the
public. Misconduct committed by an elective official is easily covered up, and is almost always
unknown to the electorate when they cast their votes.303 At a conceptual level, condonation
presupposes that the condoner has actual knowledge of what is to be condoned. Thus, there could
be no condonation of an act that is unknown. As observed in Walsh v. City Council of
Trenton304 decided by the New Jersey Supreme Court:

Many of the cases holding that reelection of a public official prevents his removal for acts done in a
preceding term of office are reasoned out on the theory of condonation. We cannot subscribe to that
theory because condonation, implying as it does forgiveness, connotes knowledge and in the absence
of knowledge there can be no condonation. One cannot forgive something of which one has no
knowledge.

That being said, this Court simply finds no legal authority to sustain the condonation doctrine in this
jurisdiction. As can be seen from this discourse, it was a doctrine adopted from one class of US rulings
Page 210 of 321
Administrative Law
way back in 1959 and thus, out of touch from and now rendered obsolete by the current legal
regime. In consequence, it is high time for this Court to abandon the condonation doctrine that
originated from Pascual, and affirmed in the cases following the same, such
as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were all relied upon by the CA.
It should, however, be clarified that this Courts abandonment of the condonation doctrine should
be prospective in application for the reason that judicial decisions applying or interpreting the laws or
the Constitution, until reversed, shall form part of the legal system of the Philippines.305 Unto this Court
devolves the sole authority to interpret what the Constitution means, and all persons are bound to
follow its interpretation. As explained in De Castro v. Judicial Bar Council:306
Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria that must control the actuations,
not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to
them.307
Hence, while the future may ultimately uncover a doctrines error, it should be, as a general rule,
recognized as good law prior to its abandonment. Consequently, the peoples reliance thereupon
should be respected. The landmark case on this matter is People v. Jabinal,308 wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be
applied prospectively, and should not apply to parties who had relied on the old doctrine and acted on
the faith thereof.

Later, in Spouses Benzonan v. CA,309 it was further elaborated:

[P]ursuant to Article 8 of the Civil Code judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines. But while our decisions form part
of the law of the land, they are also subject to Article 4 of the Civil Code which provides that laws shall
have no retroactive effect unless the contrary is provided. This is expressed in the familiar legal
maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against
retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have
already become vested or impairs the obligations of contract and hence, is unconstitutional. 310

Indeed, the lessons of history teach us that institutions can greatly benefit from hindsight and rectify its
ensuing course. Thus, while it is truly perplexing to think that a doctrine which is barren of legal
anchorage was able to endure in our jurisprudence for a considerable length of time, this Court, under
a new membership, takes up the cudgels and now abandons the condonation doctrine.
E. Consequence of ruling.

Page 211 of 321

Administrative Law
As for this section of the Decision, the issue to be resolved is whether or not the CA committed
grave abuse of discretion amounting to lack or excess of jurisdictionin issuing the assailed
injunctive writs.
It is well-settled that an act of a court or tribunal can only be considered as with grave abuse of
discretion when such act is done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount
to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all
in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion and hostility.311 It has also been held that grave abuse of discretion arises when
a lower court or tribunal patently violates the Constitution, the law or existing jurisprudence.312
As earlier established, records disclose that the CAs resolutions directing the issuance of the assailed
injunctive writs were all hinged on cases enunciating the condonation doctrine. To recount, the March
16, 2015 Resolution directing the issuance of the subject TRO was based on the case of Governor
Garcia, Jr., while the April 6, 2015 Resolution directing the issuance of the subject WPI was based on
the cases of Aguinaldo, Salalima, Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely
following settled precedents on the condonation doctrine, which at that time, unwittingly remained
good law, it cannot be concluded that the CA committed a grave abuse of discretion based on its
legal attribution above. Accordingly, the WPI against the Ombudsmans preventive suspension order
was correctly issued.
With this, the ensuing course of action should have been for the CA to resolve the main petition
for certiorari in C.A.-G.R. S.P. No. 139453 on the merits. However, considering that the Ombudsman,
on October 9, 2015, had already found Binay, Jr. administratively liable and imposed upon him the
penalty of dismissal, which carries the accessory penalty of perpetual disqualification from holding
public office, for the present administrative charges against him, the said CA petition appears to have
been mooted.313As initially intimated, the preventive suspension order is only an ancillary issuance
that, at its core, serves the purpose of assisting the Office of the Ombudsman in its investigation. It
therefore has no more purpose and perforce, dissolves upon the termination of the offices
process of investigation in the instant administrative case.

F. Exceptions to the mootness principle.

This notwithstanding, this Court deems it apt to clarify that the mootness of the issue regarding the
validity of the preventive suspension order subject of this case does not preclude any of its foregoing
determinations, particularly, its abandonment of the condonation doctrine. As explained in Belgica,
the moot and academic principle is not a magical formula that can automatically dissuade the Court
in resolving a case. The Court will decide cases, otherwise moot, if: first, there is a grave violation of
the Constitution; second, the exceptional character of the situation and the paramount public interest
is involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.314 All of these scenarios obtain in this case:
First, it would be a violation of the Courts own duty to uphold and defend the Constitution if it were not
to abandon the condonation doctrine now that its infirmities have become apparent. As extensively
Page 212 of 321
Administrative Law
discussed, the continued application of the condonation doctrine is simply impermissible under the
auspices of the present Constitution which explicitly mandates that public office is a public trust and
that public officials shall be accountable to the people at all times.
Second, the condonation doctrine is a peculiar jurisprudential creation that has persisted as a defense
of elective officials to escape administrative liability. It is the first time that the legal intricacies of this
doctrine have been brought to light; thus, this is a situation of exceptional character which this Court
must ultimately resolve. Further, since the doctrine has served as a perennial obstacle against
exacting public accountability from the multitude of elective local officials throughout the years, it is
indubitable that paramount public interest is involved.
Third, the issue on the validity of the condonation doctrine clearly requires the formulation of
controlling principles to guide the bench, the bar, and the public. The issue does not only involve an in-
depth exegesis of administrative law principles, but also puts to the forefront of legal discourse the
potency of the accountability provisions of the 1987 Constitution. The Court owes it to the bench, the
bar, and the public to explain how this controversial doctrine came about, and now, its reasons for
abandoning the same in view of its relevance on the parameters of public office.
And fourth, the defense of condonation has been consistently invoked by elective local officials
against the administrative charges filed against them. To provide a sample size, the Ombudsman has
informed the Court that for the period of July 2013 to December 2014 alone, 85 cases from the Luzon
Office and 24 cases from the Central Office were dismissed on the ground of condonation. Thus, in
just one and a half years, over a hundred cases of alleged misconduct involving infractions such as
dishonesty, oppression, gross neglect of duty and grave misconduct were placed beyond the reach
of the Ombudsmans investigatory and prosecutorial powers.315 Evidently, this fortifies the finding that
the case is capable of repetition and must therefore, not evade review.
In any event, the abandonment of a doctrine is wholly within the prerogative of the Court. As
mentioned, it is its own jurisprudential creation and may therefore, pursuant to its mandate to uphold
and defend the Constitution, revoke it notwithstanding supervening events that render the subject of
discussion moot.

V.

With all matters pertaining to C.A.-G.R. S.P. No. 139453 passed upon, the Court now rules on the final
issue on whether or not the CAs Resolution316 dated March 20, 2015 directing the Ombudsman to
comment on Binay, Jr.s petition for contempt in C.A.-G.R. S.P. No. 139504 is improper and illegal.
The sole premise of the Ombudsmans contention is that, as an impeachable officer, she cannot be the
subject of a charge for indirect contempt317 because this action is criminal in nature and the penalty
therefor would result in her effective removal from office. 318 However, a reading of the aforesaid March
20, 2015 Resolution does not show that she has already been subjected to contempt
proceedings. This issuance, in fact, makes it clear that notwithstanding the directive for the
Ombudsman to comment, the CA has not necessarily given due course to Binay, Jr.s contempt
petition:

Page 213 of 321

Administrative Law

Without necessarily giving due course to the Petition for Contempt, respondents [Hon. Conchita
Carpio-Morales, in her capacity as the Ombudsman, and the Department of the Interior and Local
Government] are hereby DIRECTED to file Comment on the Petition/Amended and Supplemental
Petition for Contempt (C.A.-G.R. S.P. No. 139504) within an inextendible period of three (3) days from
receipt hereof.319 (Emphasis and underscoring supplied)

Thus, even if the Ombudsman accedes to the CAs directive by filing a comment, wherein she may
properly raise her objections to the contempt proceedings by virtue of her being an impeachable
officer, the CA, in the exercise of its sound judicial discretion, may still opt not to give due course to
Binay, Jr.s contempt petition and accordingly, dismiss the same. Simply put, absent any indication that
the contempt petition has been given due course by the CA, it would then be premature for this Court
to rule on the issue. The submission of the Ombudsman on this score is perforce denied.
WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the Court
resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is declared UNCONSTITUTIONAL,
while the policy against the issuance of provisional injunctive writs by courts other than the Supreme
Court to enjoin an investigation conducted by the Office of the Ombudsman under the first paragraph
of the said provision is declared INEFFECTIVEuntil the Court adopts the same as part of the rules of
procedure through an administrative circular duly issued therefor;
(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in effect;
(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.s
(Binay, Jr.) petition for certiorari in C.A.-G.R. S.P. No. 139453 in light of the Office of the
Ombudsmans supervening issuance of its Joint Decision dated October 9, 2015 finding Binay, Jr.
administratively liable in the six (6) administrative complaints, docketed as OMB-C-A-15-0058, OMB-
C-A-15-0059 OMB-C-A-15-0060 OMB-C-A-15-0061, OMB-C-A-15-0062 and OMB-C-A-15-0063; and
(d) After the filing of petitioner Ombudsman Conchita Carpio-Moraless comment, the CA
is DIRECTED to resolve Binay, Jr.s petition for contempt in C.A.-G.R. S.P. No. 139504 with utmost
dispatch.
SO ORDERED.
Sereno (CJ.), Carpio, Leonardo-De Castro, Del Castillo, Villarama, Jr., Perez, Reyes and Leonen, JJ.,
concur.
Velasco, Jr., Peralta and Jardeleza, JJ., No part.
Brion, J., No part; On Leave.
Bersamin, J., Please see my Concurring and Dissenting Opinion.
Mendoza, J., On Leave.
CONCURRING AND DISSENTING OPINION
Page 214 of 321
Administrative Law

BERSAMIN, J.:

I am writing this separate opinion to memorialize my concurrence with the declaration of the
ineffectiveness of the first paragraph of Section 14 of Republic Act No. 6770, and of the
unconstitutionality of the second paragraph thereof. The main opinion has been written well by our
esteemed colleague, Associate Justice Estela M. Perlas-Bernabe, who has exhibited her scholarly
bent once again. But let me assure my colleagues in the Majority that if I submit this concurrence, I do
not mean to diminish in any way or degree the forcefulness and correctness of the justification for the
declaration. I simply want to underscore that Section 14 of Republic Act No. 6770 should be struck
down for authorizing the undue interference with the prerogatives of the courts of law to adopt
whatever means were allowed by law and procedure to exercise their jurisdiction in the cases properly
cognizable by them.
My dissent focuses on the main opinions reexamination of the doctrine of condonation. This
controversy does not call for the revisit of the doctrine, and does not warrant its eventual
abandonment. For the Court to persist in the reexamination, as it does now, and to announce its
abandonment of the doctrine despite the lack of the premise of justiciability is to indulge in conjecture
or in unwarranted anticipation of future controversies. We should refrain from the reexamination.
The Ombudsmans supplemental petition raised condonation for the first time but only to support her
insistence that the CA could not validly rely on the doctrine of condonation to justify its issuance of the
injunction. She maintained then that condonation was a matter of defense to be properly raised only in
the appropriate administrative proceeding, viz.:

6. It must be further emphasized that the condonation doctrine is irrelevant in the Ombudsmans
determination of whether the evidence of guilt is strong in is suing preventive suspension orders. Said
doctrine does not go into the heart of subject matter jurisdiction. Neither can it oust the Ombudsman of
her jurisdiction which she has already acquired. Private respondents claim of condonation doctrine is
equally a matter of defense which, like any other defense, could be raised in the proper pleading, could
be rebutted, and could be waived.
As a defense, condonation should be passed upon after a decision on the administrative proceedings,
not this early in the proceeding.
7. The condonation doctrine, however, cannot abate the issuance of a preventive suspension order,
precisely because an order of preventive suspension does not render a respondent administratively
liable. A respondent may be preventively suspended, yet may be exonerated in the end.
8. At all events, there is no condonation because private respondent committed the acts subject of
the complaint after his reelection in 2013, as was argued by petition in public respondent Court of
Appeals.
9. As mentioned earlier, there is no condonation. The assailed act (i.e., payment), by private
respondents own admission during the proceedings before public respondent Court of Appeals, took
place during the period of June and July 2013, which was after his reelection in May 2013. 1
Page 215 of 321
Administrative Law

The Ombudsman again discussed the doctrine of condonation at some length in her Memorandum as
the fourth and last argument presented on the issue of the propriety of the temporary restraining order
and the writ of preliminary injunction.2 She reiterated, however, that the doctrine was only a matter of
defense that was relevant only in imposing an administrative penalty on the respondent public elective
official, to wit:
165. Thus, in deciding that the evidence of respondent Binays guilt is strong, petitioner did not take
into consideration the so-called condonation doctrine the way respondent Court of Appeals did in its
Third Resolution. The condonation doctrine is applicable and relevant only to the imposition of an
administrative penalty, not to the issuance of a preventive suspension, the latter being merely a
preliminary step in an administrative investigation.
166. Since a preventive suspension does not hold a public officer liable, it will not be affected by any
condonation that the electorate may extend to the public officer. Verily, for purposes of aiding an
investigation, a public officer may be preventively suspended even as, ultimately, he or she will be
exonerated from administrative liability due to the condonation doctrine. CONDONATION IS A
MATTER OF DEFENSE to be positively alleged and to be weighed according to the evidence
during the administrative proceedings, and not at the very preliminary stage thereof. 3
I agree with the Ombudsman. The question of grave abuse of discretion on the part of the CA could be
settled not by reexamining and overturning the doctrine of condonation but by reference to Section 24
of the Republic Act No. 6770. It would be plain error for us to determine whether the Court of Appeals
(CA) gravely abused its discretion or not on the basis of the doctrine of condonation.
The general investigatory power of the Ombudsman is decreed by Section 13(1), Article XI of the 1987
Constitution,4
while her statutory mandate to act on administrative complaints is founded on Section 19 of Republic
Act No. 6770, viz.:

Section 19. Administrative complaints.The Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agencys functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers but for an improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.

Page 216 of 321

Administrative Law
In line with the power to investigate administrative cases, the Ombudsman is vested with the authority
to preventively suspend respondent public officials and employees pursuant to Section 24 of Republic
Act No. 6770, which provides:

Section 24. Preventive Suspension.The Ombudsman or his Deputy may preventively suspend any
officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt
is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from
the service; or (c) the respondents continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman
but not more than six (6) months, without pay, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in computing the period of suspension herein
provided.

It is important to note, however, that the Ombudsman has no authority to issue the preventive
suspension order in connection with criminal investigations of government officials or employees
because such authority rests in the courts in which the criminal cases are filed. 5
Under Section 24, supra, two requisites must concur to render the preventive suspension order valid.
The first requisite is unique because it can be satisfied in only one way, which is that the evidence of
guilt is strong in the judgment of the Ombudsman or the Deputy Ombudsman. But the second
requisite may be satisfied in three different ways, namely: (1) that the offense charged involves
dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (2) the charge
would warrant removal from the service; or (3) the respondents continued stay in office may prejudice
the case filed against him or her.6
Respondent Jejomar Erwin S. Binay, Jr., along with other officers and employees of the City of Makati,
were administratively charged in the Office of the Ombudsman with grave misconduct, serious
dishonesty, and conduct prejudicial to the best interest of the service.7 In her joint order dated March
10, 2015, the Ombudsman stated that the requisites for the issuance of the preventive suspension
order against Binay, Jr. and his corespondents were satisfied, specifically:

The first requisite is present in these cases, as shown by the supporting evidence attached as
Annexes to the Complaint. These Annexes include, among other things, sworn statements
of alleged losing bidders and of some members of the Makati City BAC attesting to the irregularities in
the subject procurement; documents negating the purported publication of bids; and disbursement
vouchers, checks, and official receipts showing disbursement of public funds by the city government.
As regard the second requisite, all the circumstances enumerated therein are likewise present. The
Complaint charges respondents with Grave Misconduct, Serious Dishonesty and Conduct Prejudicial
to the Best Interest of the Service. If proven true, they constitute grounds for removal from public

Page 217 of 321

Administrative Law
service under the Revised Rules on Administrative Cases in the Civil Service. Moreover, since the
respondents respective positions give them access to public records and influence on possible
witnesses, respondents continued stay in office may prejudice the cases filed against them. Thus,
their preventive suspension without pay for a period of six (6) months is in order.

When he assailed the preventive suspension order by petition for certiorari in the CA, Binay, Jr.
alleged that the preventive suspension order was illegal and issued with grave abuse of discretion
because: (1) it contravened well-settled jurisprudence applying the doctrine of condonation; and (2)
evidence of his guilt was not strong. He prayed that a temporary restraining order or writ of preliminary
injunction be issued to enjoin the implementation of the preventive suspension order.
The CA heeded Binay, Jr.s prayer for injunctive reliefs chiefly on the basis of the doctrine of
condonation. In the resolution promulgated on March 16, 2015, the CA, citing the pronouncement
in Garcia, Jr. v. Court of Appeals,8granted Binay, Jr.s application for the temporary restraining order,
holding as follows:
In Garcia v. Court of Appeals (G.R. No. 185132, April 24, 2009), the Supreme Court held that
suspension from office of an elective official, whether as a preventive measure or as a penalty will
undeservedly deprive the electorate of the services of the person they have conscientiously chosen
and voted into office.
The Supreme Court in said case likewise found serious and urgent the question, among other matters,
of whether the alleged acts were committed in the previous term of office of petitioner therein. This is
because if it were established that the acts subject of the administrative complaint were indeed
committed during petitioners prior term, then following settled jurisprudence, he can no longer be
administratively charged. It further declared imperative on the part of the appellate court, as soon as it
was apprised of the said considerable grounds, to issue an injunctive writ so as not to render moot,
nugatory and ineffectual the resolution of the issues in the certiorari petition. (Garcia, supra)
The Supreme Court also declared that it would have been more prudent on the part of the CA, on
account of the extreme urgency of the matter and the seriousness of the issues raised in
the certioraripetition, to issue a TRO while it awaits the respective comments of the respondents and
while it judiciously contemplates on whether or not to issue a writ of preliminary injunction. It pointed
out that the basic purpose of a restraining order is to preserve the status quo until the hearing of the
application for preliminary injunction. That, it is a preservative remedy for the protection of substantive
rights and interests. (Garcia,supra)
In view of the seriousness of the issues raised in the Petition for Certiorari and the possible
repercussions on the electorate who will unquestionably be affected by suspension of their elective
official, the Court resolves to grant petitioners prayer for a Temporary Restraining Order for a
period of sixty (60) days from notice hereof, conditioned upon the posting by petitioner of a
bond in the amount of FIVE HUNDRED THOUSAND PESOS (P500,000.00).9

In ultimately granting the writ of preliminary injunction through its April 6, 2015 resolution, the CA,
relying on the doctrine of condonation adopted in Garcia, Jr.; Joson III v. Court of Appeals;10 Aguinaldo

Page 218 of 321

Administrative Law
v. Santos;11 and Salalima v. Guingona, Jr.,12 explained:

Garcia was simply an echo of teachings in Joson v. Court of Appeals (G.R. No. 160652, February 13,
2006) where the High Court declared that suspension from office of an elective official would deprive
the electorate of the services of the person they have voted into office.
Along this line, the concept of condonation, as advocated by petitioner and opposed by public
respondent Ombudsman, will assume resonance.
Premised on Aguinaldo, Salalima and Garcia, petitioner asserted that the public respondent
Ombudsman can hardly impose preventive suspension of petitioner, given his election in 2010 and
reelection in 2013 as Makati City Mayor, relative to his perceived illegal participation in anomalous
activities for the Makati City Hall Building II project from 2007 to 2013.
xxxx
To reiterate, there was no disagreement that petitioner was elected in 2010 and reelected as City
Mayor of Makati in 2013. The acts constitutive of the charges in the Complaint pertained to events
from November 8, 2007, when City Ordinance No. 2007-A-015 appropriated P1,240,000,000.00 as
supplemental budget for 2007. From this budget, P400,000,000.00 was allocated for the parking
building. It was allegedly during this time that a Negotiated Contract for the architectural and
engineering services were negotiated and approved. Disbursements allegedly favored Hilmarc and
MANA amidst irregularities in the bidding process during the term of petitioner as City Mayor of Makati.
Yet, to subscribe to public respondent Ombudsmans submission that condonation can only be
appreciated by the investigating body after it is ventilated as an exculpation by petitioner
and considered solely by public respondent, following the exercise of its investigatory power, will
ignore the Courts constitutional power and duty to evaluate the factual and legal foundations for, nay,
impediments to, a preventive suspension in an administrative case. 13

In my view, however, the CA erroneously banked on the pronouncements in Garcia, Jr., Joson
III, Aguinaldo, andSalalima to espouse the doctrine of condonation as the basis to issue the injunctive
writs under its resolutions promulgated on March 16, 2015 and April 6, 2015. In
both Aguinaldo and Salalima, the Court applied the doctrine of condonation to avoid the imposition of
administrative liability upon reelected public officials. Specifically, the Court held in Aguinaldo that:

Petitioners reelection to the position of Governor of Cagayan has rendered the administrative case
pending before Us moot and academic. It appears that after the canvassing of votes, petitioner
garnered the most number of votes among the candidates for governor of Cagayan province. x x x
xxxx
Clearly then, the rule is that a public official cannot be removed for administrative misconduct
committed during a prior term, since his reelection to office operates as a condonation of the officers
previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule,

Page 219 of 321

Administrative Law
however, finds no application to criminal cases pending against petitioner for acts he may have
committed during the failed coup.14

while in Salalima, the Court maintained that:

x x x [A]ny administrative liability which petitioner Salalima might have incurred in the execution of the
retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on 6
March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in
O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronized
elections. So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan
ng Albay, who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer
contract in question and who were reelected in the 1992 elections. This is, however, without prejudice
to the institution of appropriate civil and criminal cases as may be warranted by the attendant
circumstances. x x x15

It is clear to me that, based on the language and the factual milieu of Aguinaldo and Salalima, which
both cited Pascual v. Provincial Board of Nueva Ecija,16 and of other akin rulings,17 condonation shall
apply only in case of the reelection of a public officer who is sought to be permanently removed from
office as a result of his misconduct, not while such public officer is undergoing investigation.
Condonation necessarily implies that the condoned act has already been found to have been
committed by the public officer. Hence, condonation applies to the penalty or punishment
imposed after the conduct of an administrative investigation. Under the circumstances, the
pronouncements in Aguinaldo,Salalima and the others could not be applicable to the preventive
suspension order issued to Binay, Jr. pending his administrative investigation because preventive
suspension pending the conduct of an investigation was not yet a penalty in itself, but a mere measure
of precaution to enable the disciplining authority to investigate the charges by precluding the
respondent from influencing the witnesses against him.18
It is worth emphasis that preventive suspension is distinct from the penalty of suspension. The former
is imposed on a public official during the investigation while the latter, as a penalty, is served after
the final disposition of the case.19The former is not a punishment or penalty for misconduct in office,
but a merely preventive measure, or a preliminary step in the administrative investigation. 20
As I see it, the CA misconstrued the milieu in Garcia, Jr.and Joson III as an application of the doctrine
of condonation. The Court notably stated in Garcia, Jr. andJoson III that suspension from office of an
elective official would deprive the electorate of the services of the person they voted into office in the
context of determining the propriety of the issuance of the preventive suspension order. In other words,
the statement only served to remind the Ombudsman to issue the preventive suspension orders with
utmost caution in view of the gravity of the effects of suspending an incumbent elective local official.
Hence, Garcia, Jr. and Joson III did not apply the doctrine of condonation.
I further underscore that the CA was then only resolving Binay, Jr.s application for injunctive reliefs
against the preventive suspension order issued by the Ombudsman. At that point, the CAs application
of the doctrine of condonation was irrelevant and unnecessary.
Page 220 of 321
Administrative Law
A preliminary injunction is an order granted at any stage of an action prior to the judgment or final
order requiring a party or a court, agency or a person to refrain from a particular act or acts. 21 The
requirements for the issuance of a writ of preliminary injunction or temporary restraining order are
clearly set forth in Section 3, Rule 58 of the Rules of Court.22 The sole objective of the writ of
preliminary injunction is to preserve the status quo until the merits of the case can be heard fully. The
writ of preliminary injunction is generally based solely on initial and incomplete evidence;23hence, it
should not determine the merits of a case, or decide controverted facts, for, being a preventive
remedy, it only seeks to prevent threatened wrong, further injury, and irreparable harm or injustice until
the rights of the parties can be settled.24 As held in Saulog v. Court of Appeals,25 it is sufficient that:

x x x for the court to act, there must be an existing basis of facts affording a present right which is
directly threatened by an act sought to be enjoined. And while a clear showing of the right claimed is
necessary, its existence need not be conclusively established. In fact, the evidence to be submitted to
justify preliminary injunction at the hearing thereon need not be conclusive or complete but need only
be a sampling intended merely to give the court an idea of the justification for the preliminary injunction
pending the decision of the case on the merits. This should really be so since our concern here
involves only the proprietary of the preliminary injunction and not the merits of the case still pending
with the trial court.
Thus, to be entitled to the writ of preliminary injunction, the private respondent needs only to
show that it has the ostensible right to the final relief prayed for in its complaint x x x. (bold
emphasis supplied)
By relying on the doctrine of condonation, therefore, the CA went beyond the parameters for
determining whether or not to issue the injunctive writ. To recall, Binay, Jr. had filed his petition
for certiorari in the CA primarily to assail the validity of the preventive suspension order. What was
raised for the CA to determine was whether or not the Ombudsman satisfactorily complied with the
requisites imposed by Section 24 of Republic Act No. 6770 to establish that Binay, Jr. and his
corespondents had the ostensible right to the final relief prayed for in their petition, which was the
nullification or lifting of the preventive suspension order. In this regard, the CA plainly exceeded its
jurisdiction.
In the meanwhile, the Ombudsman found Binay, Jr. administratively liable, and dismissed him from the
service. By such dismissal, the questions raised against the CAs issuance of the writ of preliminary
injunction against the Ombudsman were rendered moot and academic. I join the Majority in saying that
the preventive suspension order, being an ancillary issuance, was dissolved upon the Ombudsmans
resolution of the administrative charges on the merits. Thus, to dwell on the preventive suspension of
Binay, Jr. and his corespondents any further would be superfluous, for, as the Court said in Philippine
Savings Bank v. Senate Impeachment Court:26

It is a rule of universal application that courts of justice constituted to pass upon substantial rights will
not consider questions in which no actual interests are involved; they decline jurisdiction of moot
cases. And where the issue has become moot and academic, there is no justiciable controversy, so
that a declaration thereon would be of no practical use or value. There is no actual substantial relief

Page 221 of 321

Administrative Law
to which petitioners would be entitled and which would be negated by the dismissal of the
petition.

In short, the Court should excuse itself from exercising jurisdiction because the main case, the
administrative proceeding against the respondents, has already been decided by the Ombudsman on
the merits.
IN VIEW OF THE FOREGOING, I VOTE to PARTIALLY GRANT the petition for certiorari and
prohibition, and, accordingly, SET ASIDE the Resolution promulgated on April 6, 2015 by the Court of
Appeals.
I further VOTE to DISSOLVE the writ of preliminary injunction issued on April 8, 2015 in C.A.-G.R. S.P.
No. 139453; and to AFFIRM the Resolution promulgated on March 20, 2015 in C.A.-G.R. S.P. No.
139504.
Petition partly granted.
Notes.The long standing policy of the Supreme Court is noninterference in the powers given by no
less than the Constitution to the Office of the Ombudsman. (Eijansantos vs. Special Presidential Task
Force 156, 724 SCRA 414 [2014])
The Supreme Court reiterates its policy of noninterference with the rulings of the Office of the
Ombudsman, except in a clear case of grave abuse of discretion. (Araullo vs. Office of the
Ombudsman, 731 SCRA 346 [2014])

o0o

Page 222 of 321

Administrative Law
Case 9

G.R. No. 208261. December 8, 2014.*

PHILIPPINE AMUSEMENT AND GAMING CORPORATION, petitioner, vs. LORENIA P. DE
GUZMAN, respondent.
Remedial Law; Civil Procedure; Appeals; As a general rule, an appeal is not a matter of right but a
mere statutory privilege, and as such, may only be availed in the manner provided by the law and the
rules; However, as in all cases, there are exceptions to the strict application of the rules in perfecting
an appeal, such as when said appeal is meritorious.As a general rule, an appeal is not a matter of
right but a mere statutory privilege, and as such, may only be availed in the manner provided by the
law and the rules. Thus, a party who seeks to exercise the right to appeal must comply with the
requirements of the rules; otherwise, the privilege is lost.Therefore, an appeal must be perfected within
the reglementary period provided by law; otherwise, the decision becomes final and executory.
However, as in all cases, there are exceptions to the strict application of the rules in perfecting an
appeal, such as when said appeal is meritorious. Verily, strict implementation of the rules on appeals
must give way to the factual and legal reality that is evident from the records of the case. After all, the
primary objective of the laws is to dispense justice and equity, not the contrary.
Administrative Proceedings; Uniform Rules on Administrative Cases in the Civil Service; Section 16 of
the Uniform Rules on Administrative Cases in the Civil Service (URACCS) requires in administrative
disciplinary proceedings that the disciplinary authority furnish the employee concerned a formal charge
specifying the latters acts and/or omissions complained of, and directing him to answer the charges
stated therein.Section 16 of the Uniform Rules on Administrative Cases in the Civil Service
(URACCS) requires in administrative disciplinary proceedings that the disciplinary authority furnish the
employee concerned a formal charge specifying the latters acts and/or omissions complained of, and
directing him to answer the charges stated therein, viz.: Section 16. Formal Charge.After a finding of
a prima facie case, the disciplining authority shall formally charge the person complained of.
The formal charge shall contain a specification of charge(s), a brief statement of material or relevant
facts, accompanied by certified true copies of the documentary evidence, if any, sworn statements
covering the testimony of witnesses, a directive to answer the charge(s) in writing under oath in not
less than seventy-two (72) hours from receipt thereof, an advice for the respondent to indicate in his
answer whether or not he elects a formal investigation of the charge(s), and a notice that he is entitled
to be assisted by a counsel of his choice.
Same; Philippine Amusement and Gaming Corporation; Philippine Amusement and Gaming
Corporation (PAGCOR) is the proper disciplinary authority of PAGCOR employees, and as such,
formal charges against its employees in administrative disciplinary proceedings should emanate from
it, through its Board of Directors.In the case at bar, it is undisputed that PAGCOR was the one that
appointed De Guzman to her position. Adhering to the well-settled principle that the power to remove
or to discipline is lodged in the same authority on which the power to appoint is vested, only PAGCOR
has the power to discipline or remove De Guzman for any transgressions she may have committed. As
a corporate entity, PAGCOR may only act through its Board of Directors as a collective body, which is
vested with the power and responsibility to exercise all corporate powers under the law. Simply put,
PAGCOR is the proper disciplinary authority of PAGCOR employees, and as such, formal charges

Page 223 of 321

Administrative Law
against its employees in administrative disciplinary proceedings should emanate from it, through its
Board of Directors, as in this case.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Rhett Emmanuel C. Serfino for respondent.

PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 filed by petitioner Philippine Amusement and Gaming
Corporation (PAGCOR) are the Decision2 dated March 8, 2013 and the Resolution3 dated July 9, 2013
of the Court of Appeals (CA) in C.A.-G.R. S.P. No. 123506, which affirmed the Decision4 dated
September 21, 2011 and the Resolution5dated February 1, 2012 of the Civil Service Commission
(CSC) dismissing the administrative disciplinary case against respondent Lorenia P. De Guzman (De
Guzman), without prejudice to its refiling.

The Facts

On December 7, 2001, PAGCOR hired De Guzman as an Evaluation Specialist and assigned her to
the Property and Procurement Department.6 At the time of her employment, De Guzman accomplished
a Personal History Statement (PHS),7 which requires an attestation8 from the employee that the
information stated therein are true and correct to the best of her knowledge and belief, and agreed that
any misdeclaration or omission would be sufficient ground for denial of her application, clearance, or
cause for separation. In her PHS, De Guzman indicated that she had no relatives currently employed
with PAGCOR and did not disclose that she has a sister named Adelina P. See (Adelina). 9 In 2008, De
Guzman updated her PHS,10 reiterating her statement that she had no relatives working with
PAGCOR,11 but this time, listed Adelina as one of her siblings.12
It was later found out, however, that De Guzman had a nephew named Gerwin P. See, her sister
Adelinas son, who worked in PAGCOR from July 26, 2001 until his resignation on September 22,
2005.13
Upon discovery of De Guzmans alleged deceit, Atty. Albert R. Sordan (Atty. Sordan) of PAGCORs
Corporate Investigation Unit sent De Guzman a Notice of Charges 14dated August 12, 2010 (Formal
Charge) charging her of Deception or Fraud in Securing Employees Appointment or Promotion and
directed her to show cause why she should not be subjected to any disciplinary action. In her reply-
letter15 dated August 16, 2010, De Guzman, among other things, maintained that she updated her
PHS with all honesty and to the best of her knowledge.
In a Memorandum16 dated November 5, 2010 (Assailed Memorandum) signed by Michael J. Bailey,
Officer-in-Charge of PAGCORs Human Resource and Development Department (HRDD-OIC Bailey),
De Guzman was found administratively liable for the charges filed against her and was, thus,
dismissed.

Page 224 of 321

Administrative Law
De Guzman received a copy of the Assailed Memorandum on November 6, 2010 and appealed her
dismissal before the CSC on December 10, 2010.17PAGCOR opposed the appeal for having been
belatedly filed.18

The CSCs Ruling

In a Decision19 dated September 21, 2011, the CSC ruled in favor of De Guzman and dismissed the
administrative disciplinary case against her, without prejudice to its refiling. 20 Despite its finding that De
Guzman indeed filed her appeal 19 days beyond the expiration of the 15-day reglementary period, the
CSC nevertheless took cognizance of the same, holding that technical rules of procedure are not
strictly applied in administrative proceedings, as in this case.21
The CSC found that the Formal Charge and the Assailed Memorandum were not issued by the proper
disciplinary authority PAGCOR in this case but merely by its employees, namely Atty. Sordan
and HRDD-OIC Bailey, respectively. As such, no Formal Charge was validly filed against De Guzman,
resulting in the violation of her right to due process.22 Consequently, the CSC ordered PAGCOR to
reinstate De Guzman to her position and to pay her back salaries from date of dismissal to actual
reinstatement.23
PAGCOR moved for reconsideration, which was, however, denied in a Resolution 24 dated February 1,
2012. Aggrieved, it appealed25 to the CA.
The CAs Ruling

In a Decision26 dated March 8, 2013, the CA affirmed the CSC ruling. 27 It held that the CSC correctly
relaxed its procedural rules in giving due course to De Guzmans appeal, opining that administrative
bodies exercising quasi-judicial powers, such as the CSC, are unfettered by the rigidity of technical
procedural rules.28 On the merits, the CA agreed with the CSCs findings that De Guzman was
deprived of due process as the Formal Charge and the Assailed Memorandum against her were not
issued by PAGCOR, but merely by its employees without any authorization. Hence, the dismissal of
the case without prejudice.29
Undaunted, PAGCOR moved for reconsideration, which was denied in a Resolution 30 dated July 9,
2013, hence, this petition.

The Issue Before the Court

The primordial issue for the Courts resolution is whether or not the CA correctly affirmed the CSCs
dismissal of the administrative disciplinary case against De Guzman on the ground that she was
deprived of her right to due process.

Ruling of the Court

Page 225 of 321

Administrative Law
The petition is bereft of merit.
As a general rule, an appeal is not a matter of right but a mere statutory privilege, and as such, may
only be availed in the manner provided by the law and the rules. Thus, a party who seeks to exercise
the right to appeal must comply with the requirements of the rules; otherwise, the privilege is
lost.31 Therefore, an appeal must be perfected within the reglementary period provided by law;
otherwise, the decision becomes final and executory. However, as in all cases, there are exceptions to
the strict application of the rules in perfecting an appeal,32 such as when said appeal is
meritorious.33 Verily, strict implementation of the rules on appeals must give way to the factual and
legal reality that is evident from the records of the case. After all, the primary objective of the laws is to
dispense justice and equity, not the contrary.34
In light of the foregoing jurisprudence and after a judicious review of the records, the Court finds no
error on the part of the CA in affirming the CSCs ruling giving due course to De Guzmans appeal
despite its belated filing for being meritorious, as will be discussed hereunder.
Section 16 of the Uniform Rules on Administrative Cases in the Civil Service (URACCS) requires in
administrative disciplinary proceedings that the disciplinary authority furnish the employee concerned a
formal charge specifying the latters acts and/or omissions complained of, and directing him to answer
the charges stated therein, viz.:
Section 16. Formal Charge.After a finding of a prima faciecase, the disciplining authority shall
formally charge the person complained of. The formal charge shall contain a specification of
charge(s), a brief statement of material or relevant facts, accompanied by certified true copies of the
documentary evidence, if any, sworn statements covering the testimony of witnesses, a directive to
answer the charge(s) in writing under oath in not less than seventy-two (72) hours from receipt thereof,
an advice for the respondent to indicate in his answer whether or not he elects a formal investigation of
the charge(s), and a notice that he is entitled to be assisted by a counsel of his choice. (Emphasis and
underscoring supplied)
xxxx

In the case at bar, it is undisputed that PAGCOR was the one that appointed De Guzman to her
position. Adhering to the well-settled principle that the power to remove or to discipline is lodged in the
same authority on which the power to appoint is vested, 35 only PAGCOR has the power to discipline or
remove De Guzman for any transgressions she may have committed. As a corporate
entity,36 PAGCOR may only act through its Board of Directors as a collective body, which is vested
with the power and responsibility to exercise all corporate powers under the law. 37 Simply put,
PAGCOR is the proper disciplinary authority of PAGCOR employees, and as such, formal charges
against its employees in administrative disciplinary proceedings should emanate from it, through its
Board of Directors, as in this case.
However, in this instance, the Formal Charge, as well as the Assailed Memorandum, did not come
from PAGCOR through its Board of Directors, but merely from Atty. Sordan and HRDD-OIC Bailey,
respectively. Records are bereft of any showing that the latter were authorized by the PAGCOR Board
of Directors to issue the aforesaid documents. As such, the Formal Charge and the Assailed
Memorandum are null and void. Consequently, De Guzmans removal from PAGCOR without a valid

Page 226 of 321

Administrative Law
formal charge was done in violation of her right to due process, warranting the dismissal of the instant
administrative disciplinary case against her, without prejudice to its refiling, pursuant to Section 48 of
the URACCS, to wit:
Section 48. When to Remand an Appealed Case to Agency of Origin.If on appeal, the
Commission finds that the disciplining authority violated respondent-appellants right to due
process such as the failure to issue a formal charge, the Commission shall dismiss the
appealed case and order the immediate reinstatement of the respondent with payment of back
salaries and other benefits. However, the dismissal of the case shall be without prejudice on the
part of the disciplining authority to refile it in accordance with law. (Emphases and underscoring
supplied)
xxxx
WHEREFORE, the petition is DENIED. Accordingly, the Decision dated March 8, 2013 and the
Resolution dated July 9, 2013 of the Court of Appeals in C.A.-G.R. S.P. No. 123506 are
hereby AFFIRMED.
SO ORDERED.
Sereno (CJ., Chairperson), Carpio,** Leonardo-De Castro and Reyes,*** JJ., concur.
Petition denied, judgment and resolution affirmed.
Notes.It is the Civil Service Commission, and not the National Labor Relations Commission (NLRC),
that has jurisdiction over the employer-employee problems in Philippine Amusement and Gaming
Corporation (PAGCOR), Philippine Casino Operators Corporation (PCOC) and Philippine Special
Services Corporation (PSSC). (Casino Labor Association vs. Court of Appeals, 554 SCRA 323 [2008])
The provision subjecting Philippine Amusement and Gaming Corporation (PAGCOR) to 10% Value-
Added Tax (VAT) is invalid for being contrary to Republic Act (RA) No. 9337. (Philippine Amusement
and Gaming Corporation [PAGCOR] vs. Bureau of Internal Revenue, 645 SCRA 338 [2011])

o0o

Page 227 of 321

Administrative Law

Page 228 of 321

Administrative Law
Case 10
G.R. No. 191590. April 21, 2014.*
REPUBLIC OF THE PHILIPPINES, petitioner, vs. TRANSUNION CORPORATION, respondent.
Remedial Law; Civil Procedure; Actions; Dismissal of Actions; Interlocutory Orders; An order denying a
motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case as it
leaves something to be done by the court before the case is finally decided on the merits.An order
denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a
case as it leaves something to be done by the court before the case is finally decided on the merits.
Thus, as a general rule, the denial of a motion to dismiss cannot be questioned in a special civil action
for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment.
However, when the denial of the motion to dismiss is tainted with grave abuse of discretion, the grant
of the extraordinary remedy of certiorari may be justified. By grave abuse of discretion is meant such
capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction. The abuse of
discretion must be grave as where the power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility, and must be so patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in contemplation of
law.
Same; Same; Exhaustion of Administrative Remedies; The rule on exhaustion of administrative
remedies provides that if a remedy within the administrative machinery can still be resorted to by giving
the administrative officer concerned every opportunity to decide on a matter that comes within his
jurisdiction, then such remedy should be exhausted first before the courts judicial power can be
sought.To elaborate, the rule on exhaustion of administrative remedies provides that if a remedy
within the administrative machinery can still be resorted to by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy
should be exhausted first before the courts judicial power can be sought. The underlying principle of
the rule rests on the presumption that the administrative agency, if afforded a complete chance to pass
upon the matter will decide the same correctly.
Constitutional Law; Due Process; It is well-established that the touchstone of due process is the
opportunity to be heard.The Court finds that there was no violation of Transunions right to
administrative due process since, as the Republic pointed out, not only did it file an answer, but it also
presented its evidence and formally offered the same. It is well-established that the touchstone of due
process is the opportunity to be heard. This Transunion was unquestionably afforded in this case,
despite having been denied the remedies of reconsideration and appeal which, however, remain
unavailable, either by statute or regulation, against the investigation report and recommendation
assailed herein. At any rate, lack of administrative due process, on the assumption of its truth, is not a
ground for a motion to dismiss; hence, the RTCs ruling was altogether proper.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Office of the Solicitor General for petitioner.
Gonzales, Batiller, David, Leabres and Reyes for respondent.

Page 229 of 321

Administrative Law
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated October 9, 2009 and the
Resolution3 dated March 10, 2010 of the Court of Appeals (CA) in C.A.-G.R. S.P.
No. 106544 which set aside the Order4 dated August 14, 2008 of the Regional Trial Court of Imus,
Cavite, Branch 22 (RTC) denying the motion to dismiss filed by respondent Transunion Corporation
(Transunion) in Civil Case No. 2085-08.

The Facts
On April 30, 1999, Leticia Salamat (Salamat) filed an Application to Purchase Friar Lands, 5 specifically
Lot No. 5741 of the Imus Estate (Lot No. 5741), with the Community Environment and Natural
Resources Office (CENRO) of the Department of Environment and Natural Resources (DENR).6 Her
application was subsequently indorsed to the Land Management Bureau (LMB) for final
action.7 Thereafter, Salamat was informed that Lot No. 5741 was already covered by Transfer
Certificate of Title (TCT) No. T-6167408 in the name of Transunion.9 This prompted Salamat to file, on
June 27, 2000, a Protest10 against Transunion with the LMB, docketed as LMB Case No. 114, alleging
that TCT No. T-616740 was obtained through fraud considering that no deed of conveyance was
issued by the LMB for Lot No. 5741 in the name of any person. 11 In this relation, Salamat averred that
she and her family had been in continuous possession and occupation of the said lot since time
immemorial and had even introduced improvements thereon. She likewise stated that it was only after
the LMB favorably endorsed her application, that it was discovered that Lot No. 5741 was already
covered by TCT No. T-616740.12
On September 13, 2000, LMB OIC-Director Ernesto D. Adobo, Jr. (Director Adobo) issued Special
Order No. 2000-175, designating Atty. Rogelio C. Mandar (Atty. Mandar) and one Carlito Manga, Jr. to
conduct a formal investigation in order to determine the veracity of the allegations contained in
Salamats protest pursuant to Lands Office Circular No. 68 (LC 68).13
On November 8, 2000, Transunion filed with the LMB a motion to dismiss, alleging that Salamat had
no legal personality to attack the validity of Transunions title, and that it is the RTC which has
jurisdiction to try and decide cases involving cancellation of titles. 14 On February 8, 2001, Director
Adobo denied the motion to dismiss and directed Atty. Mandar to proceed with the investigation. 15
After due proceedings, Atty. Mandar issued an investigation report 16 dated July 8, 2003 (investigation
report) addressed to The Director Thru the OIC-Chief Legal Division, Lands Management
Bureau,17recommending that steps be taken before a competent court of justice for the annulment of
TCT No. T-616740 and the reversion of Lot No. 5741 to the government. 18 The recommendation was
adopted by the Legal Division in its memorandum 19 dated November 2003 addressed to the Director,
which was later approved by LMB Director Concordio D. Zuiga (LMB Director). 20 Neither Salamat nor
Transunion were furnished copies of the investigation report or memorandum. 21
On April 20, 2004, the DENR transmitted to the Office of the Solicitor General (OSG) the entire records
of LMB Case No. 114.22 Accordingly, a complaint for cancellation of title and/or reversion, docketed as
Civil Case No. 2085-08 (reversion complaint), was filed by herein petitioner the Republic of the
Philippines (Republic) against Transunion and its predecessors-in-interest, with the RTC.23

Page 230 of 321

Administrative Law
In response, Transunion filed a motion to dismiss24 on the ground that the filing of the reversion
complaint was premature. Specifically, it argued that a condition precedent for the filing of the
complaint had not been complied with that is, the failure of the LMB to notify Transunion of its
recommendation in the investigation report thereby depriving it the opportunity to seek a
reconsideration or an appeal of the same, and ultimately resulting in a failure to exhaust administrative
remedies. Hinged on the foregoing theory, Transunion further claimed that the reversion complaint
stated no cause of action.
The RTCs Ruling
In an Order25 dated August 14, 2008, the RTC denied Transunions motion to dismiss.
It held that the investigation report was merely a recommendation for a possible action that should be
taken by the LMB Director.26 Accordingly, Atty. Mandars actions were not in the exercise of a quasi-
judicial function, hence, not subject to a motion for reconsideration or appeal. It is in this regard that
the RTC concluded there was any failure to comply with a condition precedent. 27
Relatedly, the RTC ruled that the Republics reversion complaint did state a cause of action based on
its examination of the allegations and arguments stated therein. 28
Dissatisfied, Transunion elevated the matter on certiorari.29
The CAs Ruling
In a Decision30 dated October 9, 2009, the CA reversed the RTCs ruling, observing that no decision
was rendered in LMB Case No. 114 and that Transunion was denied the right to be informed of the
DENRs official action as well as the opportunity to contest said action. As such, it pronounced that the
filing of the Republics reversion complaint was premature and that the latters failure to exhaust
administrative remedies was fatal to its cause of action.31
At odds with the CAs Decision, the Republic filed a motion for reconsideration,32 which was, however,
denied by the CA in a Resolution33 dated March 10, 2010, hence, this petition.

The Issue Before the Court

The sole issue for the Courts resolution is whether or not the CA correctly granted Transunions
petition for certiorari against the RTCs order denying the latters motion to dismiss.
The Courts Ruling
The petition is meritorious.
An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally
disposes of a case as it leaves something to be done by the court before the case is finally decided on
the merits. Thus, as a general rule, the denial of a motion to dismiss cannot be questioned in a special
civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of
judgment. However, when the denial of the motion to dismiss is tainted with grave abuse of discretion,
the grant of the extraordinary remedy of certiorari may be justified. By grave abuse of discretion is
meant such capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction. The
abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner
Page 231 of 321
Administrative Law
by reason of passion or personal hostility, and must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in
contemplation of law.34
In the present case, the Court finds that the RTC did not commit any grave abuse of discretion in
denying Transunions motion to dismiss considering that the latters further reconsideration or appeal
of the investigation report was not a condition precedent to the filing of the Republics reversion
complaint. As such, there was no violation of the rule on exhaustion of administrative remedies nor can
it be said that the reversion complaint stated no cause of action.
To elaborate, the rule on exhaustion of administrative remedies provides that if a remedy within the
administrative machinery can still be resorted to by giving the administrative officer concerned every
opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be
exhausted first before the courts judicial power can be sought. The underlying principle of the rule
rests on the presumption that the administrative agency, if afforded a complete chance to pass upon
the matter will decide the same correctly.35
Transunion reiterates that the Republics reversion complaint should be dismissed on the ground that it
was not notified of the investigation report, recommending that steps be taken before a competent
court of justice for the annulment of TCT No. T-616740 and the reversion of Lot No. 5741 to the
government. It argues that it should have been notified of said report and recommendation so that it
would have been able to contest the same on reconsideration or on appeal. Without having been able
to avail of these remedies, Transunion decries a violation of the rule on exhaustion of administrative
remedies and, perforce, prays that the Republics reversion complaint be dismissed.
Transunion is mistaken.
As may be gleaned from the records,36 the LMB proceeding subject of Transunions motion to
dismiss was merely investigative in nature since it was conducted as a fact-
finding/recommendatory procedure, meant only to determine whether or not the LMB Director
should initiate reversion proceedings. This proceeding was taken under LC 68, captioned as
Investigation of Claims and Conflicts.37 Section 15 of LC 68, which states the parameters to be
observed regarding the report and recommendation resulting from the said investigation, is bereft of
any indication that the remedies of reconsideration or a further appeal is available to a party
disagreeing with the same, viz.:
SEC. 15. Report of Investigation.Within 30 days from the date of termination of the investigation,
the hearing officer concerned shall render his report on the case to the Regional Executive
Director. He shall forward together with his report the complete records of the proceedings, evidence
of the parties and such other papers, documents and record relevant thereto.
The report of the investigation should contain the following:
1. Caption and title of the case;
2. Statement as to how the case arose and by virtue of whose authority investigation was conducted;
3. Statement that notices have been sent to parties and how they were notified;
4. Statement as to when and where formal investigation was conducted;

Page 232 of 321

Administrative Law
5. Parties appearing thereat including the counsel representing them, if any, and their addresses;
6. Findings in the ocular inspection including the description of improvements and sketch of the land
showing the portion contested and statement that efforts had been exerted to settle the case amicably
between the parties;
7. Summary of the testimony of the parties and witnesses and enumeration and substance of the
documentary evidence submitted by them;
8. Observation on the case including the demeanor of the persons who testified thereat;
9. Recommendations.
The report must be prepared immediately after the hearing while the matter is still fresh in the
investigators mind. In no case shall such report be a brief in support of one of the parties or
contain a discussion of the law applicable to the case. The investigator shall present only the
facts as he gathered them at the investigation.38 (Emphases supplied)
Transunion confuses the investigation report and the recommendation made therein with an action of
the LMB Regional Executive Director found in Section 3.1 of the Manual on Settlement of Land
Disputes39 (Land Disputes Manual) characterized as follows:
3.1. Matters covered by decisions or orders of the Regional Executive Director.
All actions of the Regional Executive Director in approving, rejecting; reinstating or cancelling a
public land application, or deciding a conflict, dismissing a claim or determining any matters in
relation thereto, shall be published in the form of a judicial decision or order. All parties concerned
or their attorneys or representatives and the Central Office, Lands Management Bureau shall be
furnished copies of the decision or order.40(Emphases and underscoring supplied)
The distinctions between an investigative function such as that taken by the LMB in this case and
an adjudicative function such as that described in Section 3.1 above have been extensively
discussed by the Court in the case of Cario v. Commission on Human Rights,41 to wit:
Investigate, commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of investigate is to observe or study closely; inquire into
systematically: to search or inquire into x x x to subject to an official probe x x x: to conduct an official
inquiry. The purpose of [an] investigation, of course is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of settling, deciding or resolving a
controversy involved in the facts inquired into by application of the law to the facts established
by the inquiry.
The legal meaning of investigate is essentially the same: (t)o follow up step by step by patient
inquiry or observation. To trace or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry; to
inquire; to make an investigation, investigation being in turn described as (a)n administrative
function, the exercise of which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x x
an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a certain matter or
matters.

Page 233 of 321

Administrative Law
Adjudicate, commonly or popularly understood, means to adjudge, arbitrate, judge, decide,
determine, resolve, rule on, settle. The dictionary defines the term as to settle finally (the rights and
duties of parties to a court case) on the merits of issues raised: x x x to pass judgment on:
settle judicially: x x x act as judge. And adjudge means to decide or rule upon as a judge or with
judicial or quasi-judicial powers: x x x to award or grant judicially in a case of controversy x x x.
In the legal sense, adjudicate means: To settle in the exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest sense; and adjudge means: To pass on judicially, to
decide, settle, or decree, or to sentence or condemn. x x x Implies a judicial determination of a fact,
and the entry of a judgment.42 (Emphases supplied)
Based on Section 3.1 of the Land Disputes Manual as above-cited, it is clear that it is the action of the
Regional Executive Director in approving, rejecting; reinstating or cancelling a public land application,
or deciding a conflict, dismissing a claim or determining any matters in relation thereto which is
required to be published in the form of a judicial decision or order, and from which the remedies of
reconsideration and appeal may be taken pursuant to Section 3.2 of the Land Disputes Manual, viz.:
3.2. Appeal from decision or order of the Regional Executive Director.
An appeal from a decision or order of the Regional Executive Director to the Secretary of
Environment and Natural Resources shall be within a period of thirty (30) days to be counted from the
date the interested party received the notice thereof unless a motion for reconsideration is filed
within the said period, in which case, appeal shall be made within thirty (30) days from his receipt of
notice of the order or decision of the Regional Executive Director disposing of the motion [for]
reconsideration. The notice of appeal may be delivered or sent to (1) the Community Environment and
Natural Resources Officer or provincial Environment and Natural Resources Officer, (2) the Regional
Director deciding the case, (3) the Secretary or Undersecretary of Environment and Natural
Resources. On receipt thereof, the Community Environment and Natural Resources Officer or
Provincial Environment and Natural Resources Officer concerned shall note thereon the date when it is
received by him and shall forward the same without delay to the Secretary of Environment and Natural
Resources. In case the appeal is delivered or sent to the Director of Lands, he shall forward the same
together with the official records pertinent to the case to the Secretary of Environment and Natural
Resources. In case the appeal is sent directly to the Secretary of Environment and Natural Resources,
the Regional Executive Director shall be served with a notice of appeal. The time of filing the appeal
with any one of the said officers, as specified in Section 16 thereof, shall be considered as the time
when the appeal is taken.43 (Emphases and underscoring supplied)
Said course of action is that which may be considered as a form of adjudication, resulting as it would
in the settlement of a public land application, or a decision on a public land conflict or claim. Given its
nature, the Land Disputes Manual then requires that it be published in the form of a judicial decision or
order and, concomitantly, be subject to further reconsideration and/or appeal. This action is clearly
different from the LMB proceeding subject of this case which, as earlier stated, is merely investigative
in nature. As further explained by the Republic in its petition, [t]he investigation carried out by the
Director of Lands merely determines the propriety of initiating reversion proceedings and is an internal
procedure within the exclusive discretion of the LMB.44 With this in mind, the latter proceeding and the
recommendation reached thereby cannot then be considered to be governed by Sections 3.1 and 3.2
of the Land Disputes Manual which respectively provide the requirement of notice and the remedies of
reconsideration or appeal. Corollarily, since these administrative remedies were not available to
Page 234 of 321
Administrative Law
Transunion against the investigation report and recommendation, there was thus no violation of the
rule on exhaustion of administrative remedies. As such, Transunions claim that a condition precedent
was left unfulfilled was properly debunked by the RTC.
Further, barring any violation of the doctrine of exhaustion of administrative remedies as above-
discussed, Transunions assertion on the reversion complaints purported failure to state a cause of
action (or properly speaking, the Republics lack of cause of action)45 hinged as it is solely on the
same theory was also properly denied.
Finally, the Court finds that there was no violation of Transunions right to administrative due process
since, as the Republic pointed out, not only did it file an answer, but it also presented its evidence and
formally offered the same.46It is well-established that the touchstone of due process is the opportunity
to be heard.47 This Transunion was unquestionably afforded in this case, despite having been denied
the remedies of reconsideration and appeal which, however, remain unavailable, either by statute or
regulation, against the investigation report and recommendation assailed herein. At any rate, lack of
administrative due process, on the assumption of its truth, is not a ground for a motion to
dismiss;48 hence, the RTCs ruling was altogether proper.
For the reasons above-stated, the Court therefore concludes that the RTC did not gravely abuse its
discretion in denying Transunions motion to dismiss against the Republics reversion complaint. As
such, the CA committed a reversible error in granting Transunions petition for certiorari, warranting the
reversal of its Decision.
WHEREFORE, the petition is GRANTED. The Decision dated October 9, 2009 and the Resolution
dated March 10, 2010 of the Court of Appeals in C.A.-G.R. S.P. No. 106544 are
hereby REVERSED and SET ASIDE.
SO ORDERED.
Carpio (Chairperson), Brion, Del Castillo and Perez, JJ., concur.
Petition granted, judgment and resolution reversed and set aside.
Notes.The nonobservance of the doctrine of exhaustion of administrative remedies results in the
petition having no cause of action, thus, justifying its dismissal. (Sison vs. Tablang, 588 SCRA 727
[2009])
The doctrine of exhaustion of administrative remedies does not apply when the issue has been
rendered moot and academic. (Land Bank of the Philippines vs. Honeycomb Farms Corporation, 685
SCRA 76 [2012])

o0o

Page 235 of 321

Administrative Law

Page 236 of 321

Administrative Law
Case 11
G.R. No. 209331. August 24, 2015.*
DEPARTMENT OF FINANCE, represented by HON. CESAR V. PURISIMA in his official capacity
as SECRETARY, and the BUREAU OF CUSTOMS, represented by HON. ROZZANO RUFINO B.
BIAZON, in his official capacity as Commissioner of Customs, petitioners, vs. HON. MARINO M.
DELA CRUZ, JR., in his capacity as Executive Judge, Regional Trial Court, Manila, HON.
FELICITAS O. LARON-CACANINDIN, in her capacity as Presiding Judge, Regional Trial Court,
Manila, Branch 17, RONNIE C. SILVESTRE, EDWARD P. DELA CUESTA, ROGEL C.
GATCHALIAN, IMELDA D. CRUZ, LILIBETH S. SANDAG, RAYMOND P. VENTURA, MA. LIZA S.
TORRES, ARNEL C. ALCARAZ, MA. LOURDES V. MANGAOANG, FRANCIS AGUSTIN Y. ERPE,
CARLOS T. SO, MARIETTA D. ZAMORANOS, CARMELITA M. TALUSAN,1 AREFILES H.
CARREON,2 and ROMALINO G. VALDEZ, respondents.

Administrative Agencies; Civil Service Commission; Jurisdiction; The Civil Service Commission (CSC)
has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and
agencies, including government-owned or -controlled corporations with original charters.The CSC
has jurisdiction over all employees of government branches, subdivisions, instrumentalities, and
agencies, including government-owned or controlled corporations with original charters. The CSC is
the sole arbiter of controversies relating to the civil service. The rule is that disciplinary cases and
cases involving personnel actions, including appointment through certification, promotion, transfer,
reinstatement, reemployment, detail, reassignment, demotion, and separation, are within the
exclusive jurisdiction of the CSC. This rule is embodied in Section 1, Rule V of the Omnibus Rules
Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws (Omnibus
Rules) which states: SECTION 1. x x x. As used in these Rules, any action denoting movement or
progress of personnel in the civil service shall be known as personnel action. Such action shall include
promotion, transfer, reinstatement, reemployment, detail, secondment, reassignment, demotion and
separation.
Detail; Words and Phrases; Under Section 8, Rule VII of the Omnibus Rules, [a] detail is the
movement of an employee from one department or agency which is temporary in nature, which does
not involve a reduction in rank, status or salary and does not require the issuance of another
appointment.Under Section 8, Rule VII of the Omnibus Rules, [a] detail is the movement of an
employee from one department or agency which is temporary in nature, which does not involve a
reduction in rank, status or salary and does not require the issuance of another appointment. CPO
189-2013 is an order detailing personnel from the BOC to CPRO under the DOF.
Remedial Law; Civil Procedure; Exhaustion of Administrative Remedies; The doctrine of exhaustion of
administrative remedies allows administrative agencies to carry out their functions and discharge their
responsibilities within the specialized areas of their respective competence.The doctrine of
exhaustion of administrative remedies allows administrative agencies to carry out their functions and
discharge their responsibilities within the specialized areas of their respective competence. The
doctrine entails lesser expenses and provides for the speedier resolution of controversies. Therefore,
direct recourse to the trial court, when administrative remedies are available, is a ground for dismissal
of the action. The doctrine, however, is not without exceptions. Among the exceptions are: (1) where
there is estoppel on the part of the party invoking the doctrine; (2) where the challenged administrative
Page 237 of 321
Administrative Law
act is patently illegal, amounting to lack of jurisdiction; (3) where there is unreasonable delay or official
inaction that will irretrievably prejudice the complainant; (4) where the amount involved is relatively so
small as to make the rule impractical and oppressive; (5) where the question involved is purely legal
and will ultimately have to be decided by the courts of justice; (6) where judicial intervention is urgent;
(7) where the application of the doctrine may cause great and irreparable damage; (8) where the
controverted acts violate due process; (9) where the issue of non-exhaustion of administrative
remedies had been rendered moot; (10) where there is no other plain, speedy and adequate remedy;
(11) where strong public interest is involved; and (12) in quo warranto proceedings.
Executive Order No. 140; Section 9 of Executive Order (EO) No. 140 provides that the order shall
take effect immediately upon publication in two (2) newspapers of general circulation. EO No. 140
was published in Manila Bulletin and Philippine Star on 17 September 2013. As such, EO No. 140 took
effect on 17 September 2013.Respondents allege that EO No. 140 took effect only on 2 October
2013, fifteen days after its publication in two newspapers of general circulation. Hence, respondents
argue that when CPO 189-2013 was issued, EO No. 140 was not yet effective. Article 2 of the Civil
Code of the Philippines, as amended by Executive Order No. 200, is clear on this issue. It states: Art.
2. Laws shall take effect after fifteen days following the completion of their publication either in the
Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise
provided. The proviso unless it is otherwise provided refers to an effectivity date other than after
fifteen days following the completion of the laws publication. Thus, it is within the discretion of the
legislature, or the Executive Department in this case, whether to shorten or extend the fifteen-day
period as long as there is compliance with the requirement of publication. Here, Section 9 of EO No.
140 provides that the order shall take effect immediately upon publication in two (2) newspapers of
general circulation. EO No. 140 was published in Manila Bulletin and Philippine Star on 17 September
2013. As such, EO No. 140 took effect on 17 September 2013.
Detail; Under Section 8, Rule VII of the Omnibus Rules, a detail is temporary in nature. In fact, detail of
employees is only allowed for a maximum period for those occupying professional, technical, and
scientific positions.Under Section 8, Rule VII of the Omnibus Rules, a detail is temporary in nature.
In fact, detail of employees is only allowed for a maximum period for those occupying professional,
technical, and scientific positions.
Same; Section 2 of Civil Service Commission (CSC) Resolution No. 021181, dated 13 September
2002, clarified the maximum period of detail of employees; The detail shall be allowed only for a
maximum period of one (1) year. Details beyond one (1) year may be allowed provided it is with the
consent of the detailed employee.Section 2 of CSC Resolution No. 021181, dated 13 September
2002, clarified the maximum period of detail of employees. It states: Section 2. Duration of the detail.
The detail shall be allowed only for a maximum period of one year. Details beyond one year may be
allowed provided it is with the consent of the detailed employee. The extension or renewal of the
period of the detail shall be within the authority of the mother agency. If the employee believes that
there is no justification for the detail, he/she may appeal his/her case to the proper Civil Service
Commission Regional Office. Pending appeal, the detail shall be executory unless otherwise ordered
by said regional office. Decision of said regional office may be further appealed to the Commission En
Banc. In this case, CPO 189-2013 did not provide for the period of respondents detail. It only provided
that the order shall be effective immediately and valid until sooner revoked, making the detail of
respondents indefinite. There was nothing to show that respondents were occupying professional,
technical, and scientific positions that would have allowed their detail for the maximum period provided
Page 238 of 321
Administrative Law
under Section 8, Rule VII of the Omnibus Rules. Further, CSC Resolution No. 021181 did not
distinguish between an ordinary employee and an employee occupying professional, technical, and
scientific position. Hence, it should have been specified that the maximum period of respondents
detail should not exceed one year.

LEONEN, J., Dissenting Opinion:

Administrative Agencies; Civil Service Commission; Jurisdiction; View that the Civil Service
Commission (CSC) has exclusive jurisdiction over questions regarding personnel actions affecting civil
service employees.The Civil Service Commission has exclusive jurisdiction over questions regarding
personnel actions affecting civil service employees. It is the sole arbiter that decides controversies
regarding the civil service at first instance. Courts should not directly assume jurisdiction based on
allegations of unconstitutionality and invalidity of government regulations when the question, in
essence, involves a personnel action.
Administrative Law; Civil Service Commission; Jurisdiction; View that the Constitution confers
jurisdiction over the Civil Service Commission (CSC) for cases involving the civil service.The
Constitution confers jurisdiction over the Civil Service Commission for cases involving the civil service.
Article IX(B), Section 1(1) of the Constitution provides: SECTION 1. (1) The Civil Service shall be
administered by the Civil Service Commissioncomposed of a Chairman and two Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five
years of age, with proven capacity for public administration, and must not have been candidates for
any elective position in the elections immediately preceding their appointment.
Same; Same; Same; View that the Constitution gives the Civil Service Commission (CSC) quasi-
judicial powers through Article IX(A), Sections 6 and 7.The Constitution gives the Civil Service
Commission quasi-judicial powers through Article IX(A), Sections 6 and 7, which provide: SECTION 6.
Each Commission En Bancmay promulgate its own rules concerning pleadings and practice before it
or before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive
rights. SECTION 7. Each Commission shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief,
or memorandum required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
Same; Same; Same; View that as the central personnel agency of the Government with quasi-judicial
powers and as the body tasked to administer the civil service, the Civil Service Commission (CSC) is
the sole arbiter of controversies relating to the civil service.As the central personnel agency of the
Government with quasi-judicial powers and as the body tasked to administer the civil service, the Civil
Service Commission is the sole arbiter of controversies relating to the civil service[,] including
personnel actions, as this court has ruled.
Same; Same; Same; View that cases involving personnel actions are within the exclusive jurisdiction
of the Civil Service Commission (CSC) and not within the trial courts jurisdiction.Cases involving

Page 239 of 321

Administrative Law
personnel actions are within the exclusive jurisdiction of the Civil Service Commission and not within
the trial courts jurisdiction.
Same; Same; Same; Doctrine of Primary Administrative Jurisdiction; View that the doctrine of primary
administrative jurisdiction precludes trial courts from resolving a controversy involving a question that
is within the exclusive jurisdiction of an administrative tribunal.The doctrine of primary administrative
jurisdiction precludes trial courts from resolving a controversy involving a question that is within the
exclusive jurisdiction of an administrative tribunal. The doctrine disallows courts to arrogate unto itself
the authority to resolve a controversy the jurisdiction over which is initially lodged with an
administrative body of special competence.
Same; Same; Same; Same; View that considering the exclusive jurisdiction of the Civil Service
Commission (CSC) to hear and decide administrative cases, including those involving personnel
actions, as granted by the Constitution, the Regional Trial Court (RTC) cannot assume jurisdiction
based on the doctrine of primary administrative jurisdiction.Considering the exclusive jurisdiction of
the Civil Service Commission to hear and decide administrative cases, including those involving
personnel actions, as granted by the Constitution, the Regional Trial Court cannot assume jurisdiction
based on the doctrine of primary administrative jurisdiction.
Same; Same; Same; Same; View that the doctrine of primary administrative jurisdiction presupposes
that the administrative agency has jurisdiction over the subject matter while the court does not.The
doctrine of primary administrative jurisdiction is different from the doctrine of exhaustion of
administrative remedies. Under the doctrine of primary administrative jurisdiction, when an
administrative agency is granted primary jurisdiction over the subject matter, the courts cannot or will
not determine a controversy involving a question which is within the jurisdiction of an administrative
tribunal prior to the decision of that question by the administrative tribunal[.] The doctrine of primary
administrative jurisdiction presupposes that the administrative agency has jurisdiction over the subject
matter while the court does not. The Complaint or Petition, therefore, cannot be filed before the court.
As the issue is jurisdictional, there should be no exception to the doctrine of primary administrative
jurisdiction. When the complaint or petition is filed before a court with no subject matter jurisdiction, the
court has no other option but to dismiss the case.
Same; Same; Same; Doctrine of Exhaustion of Administrative Remedies; Under the doctrine of
exhaustion of administrative remedies, before a party may seek intervention from the court, he or she
should have already exhausted all the remedies in the administrative level; The doctrine of exhaustion
of administrative remedies presupposes that both the courts and the administrative agency have
concurrent jurisdiction.Under the doctrine of exhaustion of administrative remedies, before a party
may seek intervention from the court, he or she should have already exhausted all the remedies in the
administrative level. If there is still a remedy available within the administrative machinery, then such
remedy should be exhausted first before [the] courts judicial power can be sought. The doctrine of
exhaustion of administrative remedies presupposes that both the courts and the administrative agency
have concurrent jurisdiction. This is because nonobservance of the doctrine of exhaustion of
administrative remedies does not affect the courts jurisdiction.
Same; Same; Same; Same; View that while both the court and the administrative agency have
jurisdiction over the subject matter, the general rule is that the courts, because of comity, practicality,
and convenience, will not interfere with the administrative process until the process comes to an
end.The doctrine of exhaustion of administrative remedies presupposes that the court has
Page 240 of 321
Administrative Law
jurisdiction over the subject matter of the complaint or petition. Otherwise, it can never have the power
to take cognizance of the case as contemplated by Soto. While both the court and the administrative
agency have jurisdiction over the subject matter, the general rule is that the courts, because of comity,
practicality, and convenience, will not interfere with the administrative process until the process comes
to an end. This is because availing administrative remedies entails lesser expenses and results in a
speedier resolution of controversies. On the other hand, since the court and the administrative agency
have concurrent jurisdiction, exceptions may be warranted by the circumstances, and the court may
choose to assume jurisdiction over the controversy.
Same; Same; Same; Doctrine of Primary Administrative Jurisdiction; View that considering that the
Civil Service Commission (CSC) is granted exclusive jurisdiction over cases involving personnel
actions, the doctrine of primary administrative jurisdiction, not the doctrine of exhaustion of
administrative remedies, applies.When jurisdiction is exclusively granted to an administrative
agency, the doctrine of exhaustion of administrative remedies does not apply. Here, considering that
the Civil Service Commission is granted exclusive jurisdiction over cases involving personnel actions,
the doctrine of primary administrative jurisdiction, not the doctrine of exhaustion of administrative
remedies, applies.
Same; Same; Same; Exhaustion of Administrative Remedies; View that the exceptions to the doctrine
of exhaustion of administrative remedies likewise do not apply because the Regional Trial Court (RTC)
has no jurisdiction to resolve the dispute in the first place. In order for the exceptions to apply, the court
to which the petition was prematurely filed should have jurisdiction; otherwise, the orders of the court
would be null and void for lack of jurisdiction.The exceptions to the doctrine of exhaustion of
administrative remedies likewise do not apply because the Regional Trial Court has no jurisdiction to
resolve the dispute in the first place. In order for the exceptions to apply, the court to which the petition
was prematurely filed should have jurisdiction; otherwise, the orders of the court would be null and void
for lack of jurisdiction. Decisions or orders rendered by tribunals and agencies that do not have subject
matter jurisdiction are null and void. Hence, the exceptions to the doctrine of exhaustion of
administrative remedies should not be applicable since the Regional Trial Court, the court to which the
Petition for declaratory relief was filed, lacks subject matter jurisdiction, and any order or decision
rendered by it would be null and void.
Detail; Security of Tenure; View that detail of government personnel to other offices does not involve
and violate the employees security of tenure in the absence of any grave abuse of discretion or
improper motive or purpose.In any case, detail of government personnel to other offices does not
involve and violate the employees security of tenure in the absence of any grave abuse of discretion
or improper motive or purpose.
Remedial Law; Special Civil Actions; Declaratory Relief; View that a petition for declaratory relief may
prosper only if there is no breach or violation yet of the assailed government regulation, and adequate
relief is not available through other means or other forms of action or proceeding.A petition for
declaratory relief may prosper only if there is no breach or violation yet of the assailed government
regulation, and adequate relief is not available through other means or other forms of action or
proceeding. Rule 63, Section 1 of the Rules of Court provides: SECTION 1. Who may file petition.
Any person interested under a deed, will, contract or other written instrument, or whose rights are
affected by a statute, executive order or regulation, ordinance, or any other governmental regulation
may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to

Page 241 of 321

Administrative Law
determine any question of construction or validity arising, and for a declaration of his rights or duties,
thereunder.
Same; Same; Same; View that for a petition for declaratory relief to prosper, there should be no other
adequate relief available to petitioners.For a Petition for declaratory relief to prosper, there should be
no other adequate relief available to petitioners. If adequate relief is available through another form of
action or proceeding, the other action must be preferred over an action for declaratory relief.
PETITION for review on certiorari of the order of the Regional Trial Court of Manila, Br. 17.
The facts are stated in the opinion of the Court.
Office of the Solicitor General for petitioners.
Esguerra and Blanco for private respondents.
CARPIO, J.:

The Case

Petitioners assail the Order dated 4 October 2013 3 issued by Judge Felicitas O. Laron-Cacanindin
(Judge Laron-Cacanindin) of the Regional Trial Court of Manila, Branch 17 (RTC Branch 17), in Civil
Case No. 13-130820. The Order extended the 72-hour Temporary Restraining Order (TRO) issued by
Executive Judge Marino M. Dela Cruz, Jr. (Executive Judge Dela Cruz) in favor of respondents
Silvestre, et al.4 to 20 days or until 21 October 2013 without need of posting bond.

The Antecedent Facts

The case stemmed from the issuance of Executive Order No. 140 (EO 140) on 2 September 2013,
which created the Customs Policy Research Office (CPRO) in the Department of Finance (DOF). EO
140 states that the CPRO shall be responsible for reviewing the customs administration policies, rules
and procedures, and thereafter providing sound recommendations for the improvement of the same.
Section 3 of EO 140 provides that CPRO shall be composed of its organic personnel, as approved by
the Department of Budget and Management (DBM) upon recommendation of the DOF Secretary,
augmented and reinforced by DOF and BOC personnel as well as those detailed or seconded from
other agencies, whether attached to the DOF or not. x x x. Section 9 of EO 140 states that it shall
take effect immediately upon publication in two (2) newspapers of general circulation. EO 140 was
published in Manila Bulletin and Philippine Star on 17 September 2013.
On the same day of the publication of EO 140, Bureau of Customs (BOC) Commissioner Rozzano
Rufino B. Biazon (Commissioner Biazon) issued Customs Personnel Order No. B-189-2013 (CPO
189-2013) detailing 27 BOC personnel holding the positions of Collector of Customs V and VI,
including respondents in this case, to CPRO effective immediately and valid until sooner revoked.
CPO 189-2013 was approved by DOF Secretary Cesar V. Purisima (Secretary Purisima).

Page 242 of 321

Administrative Law
On 30 September 2013, respondents filed an action for Declaratory Relief with Application for
Temporary Restraining Order and/or Writ of Preliminary Injunction before the Regional Trial Court
(RTC) of Manila. On 1 October 2013, Executive Judge Dela Cruz issued a TRO for a period of 72
hours enjoining petitioners or any person acting for and in their behalf from implementing CPO 189-
2013. Thereafter, the case was raffled to the sala of Judge Laron-Cacanindin.
In the assailed Order of 4 October 2013, Judge Laron-Cacanindin extended Executive Judge Dela
Cruzs 72-hour TRO for 20 days or until 21 October 2013. She then set the hearing for the issuance of
a preliminary injunction on 18 October 2013.
On 21 October 2013, petitioners filed a Petition for Certiorari and Prohibition before this Court, with
prayer for the issuance of a TRO or a writ of preliminary mandatory injunction. Petitioners alleged that
the case involves personnel action affecting public officers which is under the exclusive jurisdiction of
the Civil Service Commission (CSC). Petitioners also alleged that respondents failed to exhaust all
administrative remedies available to them before filing the petition before the RTC. Petitioners also
alleged that CPO 189-2013 is an internal personnel order with application that is limited to and only
within BOC and as such, it cannot be the subject of an action for declaratory relief.
In their Comment, respondents alleged that the case involves the validity and constitutionality of CPO
189-2013, and thus, it is beyond the jurisdiction of the CSC. Respondents further alleged that EO 140
violated Article 2 of the Civil Code when it became effective immediately after its publication.
In their Reply, petitioners alleged that respondents only assailed the validity of EO 140 to justify their
filing of an action for declaratory relief. As regards its effectivity, petitioners alleged that EO 140 states
that it shall take effect immediately upon publication in two (2) newspapers of general circulation.
In an Order dated 21 October 2013, Judge Laron-Cacanindin denied respondents application for the
issuance of a writ of preliminary injunction.
In an Order dated 5 November 2013, Judge Laron-Cacanindin inhibited herself from further hearing
the case.

The Issues

The issues for determination by this Court are the following:

1. Whether the RTC has jurisdiction over the action for declaratory relief filed by respondents;
2. Whether respondents failed to exhaust administrative remedies in filing the action before the RTC;
3. Whether EO 140 violated Article 2 of the Civil Code when it became effective immediately after its
publication; and
4. Whether CPO 189-2013 was validly issued.
The Ruling of this Court

Jurisdiction over the Petition

Page 243 of 321
Administrative Law
The CSC has jurisdiction over all employees of government branches, subdivisions, instrumentalities,
and agencies, including government-owned or -controlled corporations with original charters.5 The
CSC is the sole arbiter of controversies relating to the civil service.6 The rule is that disciplinary cases
and cases involving personnel actions, including appointment through certification, promotion,
transfer, reinstatement, reemployment, detail, reassignment, demotion, and separation, are within the
exclusive jurisdiction of the CSC.7 This rule is embodied in Section 1, Rule V of the Omnibus Rules
Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws (Omnibus
Rules) which states:
SECTION 1. x x x.
As used in these Rules, any action denoting movement or progress of personnel in the civil service
shall be known as personnel action. Such action shall include promotion, transfer, reinstatement,
reemployment, detail, secondment, reassignment, demotion and separation. x x x.

Under Section 8, Rule VII of the Omnibus Rules, [a] detail is the movement of an employee from one
department or agency which is temporary in nature, which does not involve a reduction in rank, status
or salary and does not require the issuance of another appointment. CPO 189-2013 is an order
detailing personnel from the BOC to CPRO under the DOF.
A reading of the petition filed before the RTC shows that respondents were questioning their mass
detail and reassignment to CPRO. According to respondents, their detail was carried out in bad faith
and was meant to remove them from their permanent positions in the BOC. The action appears to be a
personnel action under the jurisdiction of the CSC.
However, the petition went beyond questioning the detail of respondents. Respondents further
assailed the validity and constitutionality of CPO 189-2013. Respondents alleged that CPO 189-2013
was issued even before EO 140, pursuant to which CPO 189-2013 was issued, became effective.
Respondents alleged that CPO 189-2013 was issued to beat the deadline of the Commission on
Elections ban on personnel movement from 28 September 2013 to 20 October 2013 due to the
scheduled barangay elections. When respondents raised the issue of validity and constitutionality of
CPO 189-2013, the issue took the case beyond the scope of the CSCs jurisdiction because the matter
is no longer limited to personnel action. Thus, the RTC did not abuse its discretion in taking
cognizance of the action.

Failure to Exhaust Administrative Remedies

Petitioners allege that respondents failed to exhaust their administrative remedies before filing the
case with the RTC.
The doctrine of exhaustion of administrative remedies allows administrative agencies to carry out their
functions and discharge their responsibilities within the specialized areas of their respective
competence.8 The doctrine entails lesser expenses and provides for the speedier resolution of
controversies.9 Therefore, direct recourse to the trial court, when administrative remedies are
available, is a ground for dismissal of the action.
Page 244 of 321
Administrative Law
The doctrine, however, is not without exceptions. Among the exceptions are: (1) where there is
estoppel on the part of the party invoking the doctrine; (2) where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction; (3) where there is unreasonable delay or official
inaction that will irretrievably prejudice the complainant; (4) where the amount involved is relatively so
small as to make the rule impractical and oppressive; (5) where the question involved is purely legal
and will ultimately have to be decided by the courts of justice; (6) where judicial intervention is urgent;
(7) where the application of the doctrine may cause great and irreparable damage; (8) where the
controverted acts violate due process; (9) where the issue of non-exhaustion of administrative
remedies had been rendered moot; (10) where there is no other plain, speedy and adequate remedy;
(11) where strong public interest is involved; and (12) in quo warranto proceedings.10
In this case, respondents allege that CPO 189-2013 is contrary to law and unconstitutional.
Respondents assail CPO 189-2013 as patently illegal, arbitrary, and oppressive. This case clearly falls
within the exceptions where exhaustion of administrative remedies need not be resorted to by
respondents.

Effectivity of EO 140

Respondents allege that EO 140 took effect only on 2 October 2013, fifteen days after its publication in
two newspapers of general circulation. Hence, respondents argue that when CPO 189-2013 was
issued, EO 140 was not yet effective.
Article 2 of the Civil Code of the Philippines, as amended by Executive Order No. 200, 11 is clear on this
issue. It states:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in
the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise
provided.
The proviso unless it is otherwise provided refers to an effectivity date other than after fifteen days
following the completion of the laws publication. 12 Thus, it is within the discretion of the legislature, or
the Executive Department in this case, whether to shorten or extend the fifteen-day period13 as long as
there is compliance with the requirement of publication.
Here, Section 9 of EO 140 provides that the order shall take effect immediately upon publication in
two (2) newspapers of general circulation. EO 140 was published in Manila Bulletin and Philippine
Star on 17 September 2013. As such, EO 140 took effect on 17 September 2013.
In addition, the Court already ruled that [i]nterpretative regulations and those merely internal in nature,
that is, regulating only the personnel of the administrative agency and not the public, need not be
published.14 EO 140 is an internal regulation that affects primarily the personnel of the DOF and the
BOC. It remains valid even without publication.

Validity of CPO 189-2013

Page 245 of 321
Administrative Law
Respondents assail the validity of CPO 189-2013. Respondents allege that under EO 140, CPRO shall
be composed of its organic personnel, as approved by the DBM upon recommendation of the DOF
Secretary. The organic personnel was supposed to be augmented and reinforced by DOF and BOC
personnel. Respondents allege that they were detailed to CPRO even before its organic personnel
could be constituted.
We rule for respondents.
Section 3 of EO 140 provides:
SECTION 3. Personnel and Staffing Complement.The CPRO shall be composed of its organic
personnel, as approved by the Department of Budget and Management (DBM) upon recommendation
of the DOF Secretary, augmented and reinforced by DOF and BOC personnel as well as those
detailed or seconded from other agencies, whether attached to the DOF or not. In addition, the CPRO,
upon approval of the DOF Secretary, may hire or engage technical consultants to provide necessary
support in the performance of its mandate.

Respondents were supposed to augment and reinforce the existing organic personnel of CPRO. Yet,
at the time of respondents detail, CPRO had not been formally organized. CPRO had no organic
personnel that had been approved by the DBM upon recommendation of the DOF Secretary. The DOF
Secretary had yet to promulgate rules and regulations and to prescribe procedures and processes to
enable CPRO to effectively exercise its powers and duties, as required by Section 4 of EO 140.
In addition, under Section 8, Rule VII of the Omnibus Rules, a detail is temporary in nature. In fact,
detail of employees is only allowed for a maximum period for those occupying professional, technical,
and scientific positions.15Section 8, Rule VII of the Omnibus Rules provides:
SEC. 8. A detail is the movement of an employee from one department or agency to another which
is temporary in nature, which does not involve a reduction in rank, status or salary and does not
require the issuance of another appointment.
The employee detailed receives his salary only from his mother unit/agency.
Detail shall be allowed only for a maximum period in the case of employees occupying professional,
technical and scientific position. If the employee believes that there is no justification for the detail, he
may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be
executory unless otherwise ordered by the Commission.
Section 2 of CSC Resolution No. 021181, dated 13 September 2002, 16 clarified the maximum period of
detail of employees. It states:
Section 2. Duration of the detail.The detail shall be allowed only for a maximum period of one
year. Details beyond one year may be allowed provided it is with the consent of the detailed employee.
The extension or renewal of the period of the detail shall be within the authority of the mother agency.
If the employee believes that there is no justification for the detail, he/she may appeal his/her case to
the proper Civil Service Commission Regional Office. Pending appeal, the detail shall be executory
unless otherwise ordered by said regional office. Decision of said regional office may be further
appealed to the Commission En Banc.

Page 246 of 321

Administrative Law
In this case, CPO 189-2013 did not provide for the period of respondents detail. It only provided that
the order shall be effective immediately and valid until sooner revoked, making the detail of
respondents indefinite. There was nothing to show that respondents were occupying professional,
technical, and scientific positions that would have allowed their detail for the maximum period provided
under Section 8, Rule VII of the Omnibus Rules. Further, CSC Resolution No. 021181 did not
distinguish between an ordinary employee and an employee occupying professional, technical, and
scientific position. Hence, it should have been specified that the maximum period of respondents
detail should not exceed one year.
Petitioners assert, and we quote:
There is a cancer of corruption we must extinguish. The drive to rid the government of graft and
corruption deserves the support of everyone.
The principle of good governance cannot, should not, be trivialized nor oversimplified by tenuous
whimpering and individualism intended to detract from the urgent need to cleanse the Republic from a
mainstream culture of unabated corruption, perpetuated with impunity and sense of self-entitlement.
The issue at hand is not about who, but what; it is not about individual loss, but about national gain.
Whether from the birth pains of reform, this nation can gain a foothold, nay, a stride into restoring this
nation into its prideful place from the clutches of a kleptocraticmafia that had gained a strangehold
into one of the nations primary sources of revenue.17
Indeed, we commend and support the reforms being undertaken in the different agencies of the
government. However, we cannot allow department heads to take shortcuts that will undermine and
disregard the basic procedures of the law.
WHEREFORE, we PARTIALLY GRANT the petition. We sustain the validity of Executive Order No.
140. We rule that the Regional Trial Court has jurisdiction over the action for declaratory relief filed by
respondents. We further rule that Customs Personnel Order No. B-189-2013 was not validly issued.
SO ORDERED.
Peralta,** Del Castillo and Mendoza, JJ., concur.
Leonen, J., See Separate Dissenting Opinion.
DISSENTING OPINION

LEONEN, J.:

Respectfully, I dissent.
The Civil Service Commission has exclusive jurisdiction over questions regarding personnel actions
affecting civil service employees.1 It is the sole arbiter that decides controversies regarding the civil
service at first instance.2Courts should not directly assume jurisdiction based on allegations of
unconstitutionality and invalidity of government regulations when the question, in essence, involves a
personnel action.

Page 247 of 321

Administrative Law
This is a Petition for certiorari and prohibition with very urgent prayer for the immediate issuance of a
temporary restraining order and/or writ of preliminary mandatory injunction 3 filed by the Department of
Finance and the Bureau of Customs before this court, assailing the Manila Regional Trial Courts
Order4 dated October 1, 2013 issued by Executive Judge Marino M. Dela Cruz, Jr., the Order 5dated
October 4, 2013 issued by Presiding Judge Felicitas O. Laron-Cacanindin, and all other subsequent
Orders preventing the implementation of Customs Personnel Order No. B-189-2013.6 The Department
of Finance and Bureau of Customs also pray for the dismissal of the Petition for declaratory relief filed
by private respondents before the Regional Trial Court of Manila. 7
On September 2, 2013, President Benigno Aquino III issued Executive Order No. 1408 creating the
Customs Policy Research Office in the Department of Finance. 9 The Customs Policy Research Office
shall review the Bureau of Customs administration policies, rules, and procedures, and provide
recommendations for their improvement.10 Section 3 of Executive Order No. 140 provides for the
composition of the Customs Policy Research Office:
SECTION 3. Personnel and Staffing Complement.The [Customs Policy Research Office] shall
be composed of its organic personnel, as approved by the Department of Budget and Management
(DBM) upon recommendation of the [Department of Finance] Secretary, augmented and reinforced by
[Department of Finance] and [Bureau of Customs] personnel as well as those detailed or seconded
from other agencies, whether attached to the [Department of Finance] or not. In addition, the [Customs
Policy Research Office], upon approval of the [Department of Finance] Secretary, may hire or engage
technical consultants to provide necessary support in the performance of its mandate.11

Executive Order No. 140 was published on September 17, 2013 in Manila Bulletin and Philippine
Star.12 Section 9 of Executive Order No. 140 provides:

SECTION 9. Effectivity.This Order shall take effect immediately upon publication in two (2)
newspapers of general circulation.13

On September 17, 2013, or on the same day of publication of Executive Order No. 140, Bureau of
Customs Commissioner Rozzano Rufino B. Biazon issued Customs Personnel Order No. B-189-
2013,14 with the approval of Department of Finance Secretary Cesar V. Purisima.15 Customs
Personnel Order No. B-189-2013 detailed 27 Bureau of Customs personnel to the Customs Policy
Research Office under the Department of Finance.16 Thus:
September 17, 2013
CUSTOMS PERSONNEL ORDER
No. B-189-2013

Under Section 3 of Executive Order No. 140, Series of

2013, the Customs Policy Research Office (the CPRO)
Page 248 of 321
Administrative Law
shall be composed of its organic personnel, augmented and reinforced by personnel from the
Department of Finance and Bureau of Customs as well [as] those detailed or seconded from other
agencies. Pursuant to the foregoing, the following personnel are detailed from the Bureau of Customs
to [Customs Policy Research Office] under the Department of Finance:

All orders, circulars, memoranda, issuances contrary to or inconsistent herewith are hereby revoked
and/or modified, and all concerned shall be guided accordingly.
This Order shall be effective immediately and valid until sooner revoked.

Page 249 of 321

Administrative Law
For strict compliance.
(signed)
ROZZANO RUFINO B. BIAZON
Commissioner of Customs

APPROVED:
(signed)
CESAR V. PURISIMA
Secretary
Department of Finance
Date: ________17

Only 1218 of the affected employees complied with the directive in Customs Personnel Order No. B-
189-2013 and reported to the Customs Policy Research Office after its effectivity on September 17,
2014.19
The other 1520 affected employees refused to comply with the Order21 and instead filed on September
30, 2013 a Petition22 for declaratory relief with an application for a temporary restraining order and/or a
writ of preliminary injunction before the Regional Trial Court of Manila. 23
The 15 employees assailed the validity of Customs Personnel Order No. B-189-2013.24 They argued
that Customs Personnel Order No. B-189-2013 violated (a) Section 70325 of Republic Act No. 1937 or
the Tariff and Customs Code;26(b) their right to security of tenure as career service officers defined
under Book V, Title I, Subtitle A, Chapter 2, Section 7 of Executive Order No. 292;27 and (c) Section 3
of Executive Order No. 140.28 They further argued that Customs Personnel Order No. B-189-2013 was
invalid for having been issued prior to the effectivity of Executive Order No. 140. 29 They relied on
Article 230 of the Civil Code that provides that laws become effective 15 days after complete
publication.31
On October 1, 2013, Executive Judge Marino M. Dela Cruz, Jr. granted a 72-hour temporary
restraining order to stop the implementation of Customs Personnel Order No. B-189-2013.32 The case
was then raffled to Branch 17 presided by Judge Felicitas O. Laron-Cacanindin (Judge Laron-
Cacanindin).33
On October 4, 2013,34 the Department of Finance and the Bureau of Customs filed a Motion to
Dismiss.35 They argued that the Regional Trial Court had no jurisdiction over the employees Petition
for declaratory relief and that the requisites for the filing of a Petition for declaratory relief were
lacking.36

Page 250 of 321

Administrative Law
In the Order dated October 4, 2013, Judge Laron-Cacanindin extended the temporary restraining order
to 20 days after finding that Customs Personnel Order No. B-189-2013 had violate[d] the rules on
detail because it failed to provide the duration of the detail. 37 In the same Order, Judge Laron-
Cacanindin stated that the Order was without prejudice to further findings of the court after trial on the
merits of the main case for declaratory relief.38
In the Order39 dated October 21, 2013, Judge Laron-Cacanindin denied the employees application for
a writ of preliminary injunction.40 The denial of their application for a writ of preliminary injunction
prompted six (6) of the employees who filed the Petition to report to the Customs Policy Research
Office.41 The returning employees reasoned that they reported for work so they would not be charged
with insubordination.42
On October 21, 2013, the Department of Finance and Bureau of Customs filed this Petition
for certiorari and prohibition.43
This court required the 15 employees to file a Comment on the Petition. 44 After filing the
Comment,45 the Department of Finance and Bureau of Customs were ordered to file a Reply. 46
In their Petition for certiorari, the Department of Finance and Bureau of Customs argued that the Civil
Service Commission, not the Regional Trial Court, had jurisdiction over the subject matter of this case
and that the 15 employees failed to exhaust all available administrative remedies before filing their
Petition for declaratory relief.47According to the Department of Finance and Bureau of Customs,
Customs Personnel Order No. B-189-2013 was a personnel action, and questions involving personnel
actions in the civil service should be lodged before the Civil Service Commission. 48
Further, the Department of Finance and Bureau of Customs argued that some of the requirements for
filing a Petition for declaratory relief were absent. 49 First, a declaratory relief is available only when the
government issuance being questioned is a national law or an ordinance of general
application.50 Since Customs Personnel Order No. B-189-2013 was an internal personnel order whose
application was limited within the Bureau of Customs, it cannot be a subject of a Petition for
declaratory relief.51Second, the declaratory relief was no longer available because Customs Personnel
Order No. B-189-2013 had been breached prior to the filing of the Petition.52 The 15 employees
allegedly committed a breach when they failed to report to the Customs Policy Research Office upon
the effectivity of Customs Personnel Order No. B-189-2013 on September 17, 2013.53 Third, a
declaratory relief was not available to the 15 employees because they had an adequate remedy with
the Civil Service Commission.54
Regarding the duration of the detail, the Department of Finance and Bureau of Customs argued that
the detail was not indefinite and that pursuant to Civil Service Commission Resolution No. 021181 55 or
the Policies on Detail, the detail shall only last for at most, one (1) year. 56
In their Comment dated January 8, 2014, the 15 employees countered that the Regional Trial Court
had jurisdiction as the main issue was the validity and constitutionality of Customs Personnel Order
No. B-189-2013.57 The resolution of this issue required the exercise of judicial review, which was
beyond the competence of the Civil Service Commission.58
Since the 15 employees Petition for declaratory relief alleges that Customs Personnel Order No. B-
189-2013 is unconstitutional and invalid, those allegations should suffice for the Regional Trial Court to
assume jurisdiction.59

Page 251 of 321

Administrative Law
According to the 15 employees, Customs Personnel Order No. B-189-2013 is unconstitutional for
violating their right to security of tenure.60 Their detail to the Customs Policy and Research Office
amounts to constructive dismissal61 as they are now mere researchers[.]62
The 15 employees argue that all the requisites for the filing of a Petition for declaratory relief are
present.63 They claim that Customs Personnel Order No. B-189-2013 is a government regulation,
affecting their rights, duties, rank, and status.64 Hence, Customs Personnel Order No. B-189-2013 is a
proper subject of a Petition for declaratory relief.65They also argue that Customs Personnel Order No.
B-189-2013 is void, producing no effect.66 According to them, a void or unconstitutional law or
issuance cannot be a source of an obligation so it cannot be breached.67
This case should consider the following issues:
First, whether the Regional Trial Court has jurisdiction over private respondents Petition for
declaratory relief;
Second, whether all the requisites for the filing of a Petition for declaratory relief are present; and
Finally, whether Customs Personnel Order No. B-189-2013 is void because of its indefinite term.

I.

The Constitution confers jurisdiction over the Civil Service Commission for cases involving the civil
service. Article IX(B), Section 1(1) of the Constitution provides:
SECTION 1. (1) The Civil Service shall be administered by the Civil Service Commission composed
of a Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at the
time of their appointment, at least thirty-five years of age, with proven capacity for public
administration, and must not have been candidates for any elective position in the elections
immediately preceding their appointment. (Emphasis supplied)

As part of the Civil Service Commissions mandate to administer the civil service, Article IX(B), Section
3 of the Constitution provides:
SECTION 3. The Civil Service Commission, as the centralpersonnel agency of the Government,
shall establish a career service and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and
rewards system, integrate all human resources development programs for all levels and ranks, and
institutionalize a management climate conducive to public accountability. It shall submit to the
President and the Congress an annual report on its personnel programs. (Emphasis supplied)

The Constitution gives the Civil Service Commission quasi-judicial powers through Article IX(A),
Sections 6 and 7, which provide:

Page 252 of 321

Administrative Law
SECTION 6. Each Commission En Banc may promulgate its own rules concerning pleadings and
practice before it or before any of its offices. Such rules, however, shall not diminish, increase, or
modify substantive rights.
SECTION 7. Each Commission shall decide by a majority vote of all its Members any case or
matter brought before it within sixty days from the date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief,
or memorandum required by the rules of the Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof. (Emphasis supplied)
As the central personnel agency of the Government,68Book V, Title I, Subtitle A, Chapter 3, Section
12(11) of Executive Order No. 292 or the Administrative Code of 1987 provides:
SECTION 12. Powers and Functions.The [Civil Service] Commission shall have the following
powers and functions:
....
(11) Hear and decide administrative cases instituted by or brought before it directly or on
appeal, including contested appointments, and review decisions and actions of its offices and of the
agencies attached to it. Officials and employees who fail to comply with such decisions, orders, or
rulings shall be liable for contempt of the Commission. Its decisions, orders, or rulings shall be final
and executory. Such decisions, orders, or rulings may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty (30) days from receipt of a copy thereof[.] (Emphasis
supplied)SECTION 5. Jurisdiction of the Civil Service Commission Proper.70The Civil Service
Commission Proper shall have jurisdiction over the following cases:
....
B. Non-Disciplinary
....
3. Protests against the appointment, or other personnel actions, involving third level officials;71 and
....
SECTION 6. Jurisdiction of Civil Service Regional Offices.The Civil Service Commission Regional
Offices shall have jurisdiction over the following cases:
....
B. Non-Disciplinary
....
3. Decisions of national agencies and local government units within their geographical boundaries
relative to personnel actions and non-disciplinary cases brought before it on appeal; and
....

Page 253 of 321

Administrative Law
Further, for the implementation of Book V, Title I, Subtitle A, Chapter 3, Section 12(11) of Executive
Order No. 292,69 Sections 5(B)(3), 6(B)(3), and 7(B)(2) of Civil Service Commission Memorandum
Circular No. 19-99 or the Revised Uniform Rules on Administrative Cases in the Civil Service lay down
the different offices of the civil service where complaints involving personnel actions should be filed.
Hence:
SECTION 7. Jurisdiction of Heads of Agencies.Heads of Departments, agencies, provinces, cities,
municipalities and other instrumentalities shall have original concurrent jurisdiction, with the
Commission,72 over their respective officers and employees.
....
B. Non-Disciplinary
....
2. Complaints on personnel actions and other non-disciplinary actions of their respective personnel.
(Emphasis supplied)

As the central personnel agency of the Government73with quasi-judicial powers74 and as the body
tasked to administer the civil service,75 the Civil Service Commission is the sole arbiter of
controversies relating to the civil service[,]76 including personnel actions, as this court has ruled.77
The material allegations in the Complaint or Petition and the character of the relief sought determine
which court has jurisdiction.78 In private respondents 44 paragraphs in their Petition for declaratory
relief filed before the Regional Trial Court, they alleged:
8. On 17 September 2013, without waiting for [Executive Order] No. 140s effectivity on 2 October
2013, the [Bureau of Customs] issued [Customs Personnel Order] No. B-189-2013, signed by [Bureau
of Customs] Commissioner Rozzano Rufino B. Biazon and approved by [Department of Finance]
Secretary, Cesar V. Purisima on even date. [Customs Personnel Order] No. B-189-2013 states:
Under Section 3 of Executive Order No. 140, Series of 2013, the Customs Policy Research Office (the
CPRO) shall be composed of its organic personnel, augmented and reinforced by personnel from the
Department of Finance and Bureau of Customs as well as those (sic) detailed or seconded from other
agencies. Pursuant to the foregoing, the following personnel are detailed from the Bureau of Customs
to [the Customs Policy Research Office] under the Department of Finance:
....
9. Thus, [private respondents] original and permanent appointments in plantilla positions as
Collectors of Customs VI and V were effectively and constructively revoked even before the effectivity
of [Executive Order] No. 140 creating the [Customs Policy Research Office]. They are all detailed to
the [Customs Policy Research Office] without any appointment papers providing for their specific
functions, status, salary grades, ranks, and designation. By virtue of the assailed issuance, [private
respondents] were all removed from their respective permanent positions as Collectors of Customs to
form a supposed research body.
10. The Department of Budget and Management (DBM), pursuant to [Executive Order] No. 140 has
not even approved the composition of the organic personnel of the [Customs Policy Research Office].
Page 254 of 321
Administrative Law
Neither has the [Department of Finance] appeared to have made the requisite recommendation for that
purpose, as mandated by [Executive Order] No. 140.
11. While they have not been officially notified thereof, [private respondents] were reliably informed
of the issuance of [Customs Personnel Order] No. B-189-2013 and [petitioners] attempt to unlawfully
detail them to the [Customs Policy Research Office].
....
13. While the [Bureau of Customs] Commissioners authority to reorganize is recognized, it is neither
absolute nor unbridled. The exercise thereof should not violate the law and the 1987 Constitution. The
Constitution clearly mandates that no officer or employee of the civil service shall be removed or
suspended except for cause provided by law.
14. Section 703 of [Republic Act] No. 1937, as amended, provides that:
Assignment of Customs Officers and Employees to other duties.The Commissioner of Customs
may, with the approval of the Secretary of Finance, assign any employee of the Bureau of Customs to
any port, service, division or office within the Bureau or assign him duties as the best interest of the
service may require, in accordance with the staffing pattern or organizational setup as may be
prescribed by the Commissioner of Customs with the approval of the Secretary of Finance: Provided,
that such assignment shall not affect the tenure of office of the employees nor result in the change of
status, demotion in rank and/or deduction of salary.
15. Section 2 of [Republic Act] No. 6656 [or An Act to Protect the Security of Tenure of Civil Service
Officers and Employees in the Implementation of Government Reorganization] further provides that
due notice and hearing are required to remove a public officer or employee pursuant to a bona
fide reorganization, viz.:
No officer or employee in the career service shall be removed except for a valid cause and after due
notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a
position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate
positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil
Service Law.
16. Thus, while the necessity and indispensability of reorganization when public interest demands
may be justified, civil service employees, much more career service officers with permanent
appointments like [private respondents], cannot be removed, suspended, or demoted from office
except for cause provided by law.
....
18. In this case, [Customs Personnel Order] No. B-189-2013 allegedly detailed all 15 [private
respondents], together with 12 other Collectors of Customs, to an advisory capacity of a policy
coordinating body (CPRO) under the guise of reorganization, thus effectively rendering vacant the 27
positions of collector of customsthroughout the country.
19. Section 8, Rule VII of Civil Service Commission (CSC) Resolution No. 91-1631, otherwise known
as the Omnibus Civil Service Rules and Regulations, provides that a detail is the movement of an
employee from one department or agency to another which is temporary in nature, which does not
involve a reduction in rank, status or salary and does not require the issuance of another appointment.
Page 255 of 321
Administrative Law
20. The patent nullity of [Customs Personnel Order] No. B-189-2013 is readily apparent since
Section 703 of [the Tariff and Customs Code] merely authorizes the [Bureau of Customs]
Commissioner to assign or move [Bureau of Customs] personnel only within the Bureau. Since the
[Customs Policy Research Office] is a newly created office outside of the [Bureau of Customs], the
[Bureau of Customs] Commissioners issuance of [Customs Personnel Order] No. B-189-2013 which
details [private respondents] to the [Customs Policy Research Office] is clearly an ultra vires act, and
is therefore invalid. In fact, the [Bureau of Customs] Commissioners own admission proves this ultra
vires and invalid issuance, thus:
It is more than a reshuffle because [private respondents] have actually been transferred to the
[Department of Finance], out of the Bureau of Customs, Biazon said in an ANC interview, confirming
news first reported by the Philippine Daily Inquirer. Instead of just reassignment [to] another port,
theyre basically reassigned to another office.
After their transfer out of the [Bureau of Customs], the next-in-rank collectors or division heads
are taking over as officers-in-charge of the different ports, he said.

21. There is no bona fide reorganization that took place. [Private respondents] mass detail to the
[Customs Policy Research Office] was without any clear or definite direction as to their career status
and functions. As a consequence, [private respondents] were intentionally and effectively placed on a
floating status.
22. Furthermore, [Executive Order] No. 140 clearly provides that the [Customs Policy Research
Office] shall be composed of its organic personnel, and that said policy research body after the
organization of its own organic personnel shall merely be augmented and reinforced by Department
of Finance and Bureau of Customs personnel. Despite the absence of any organic personnel, much
less approval from the Department of Budget and Management or even a recommendation from the
[Department of Finance], [private respondents] have, in speed haste, already been ordered to be
detailed by the [Bureau of Customs] to the [Customs Policy Research Office], and thus,
effectively removedfrom their current respective permanent positions.
23. The landmark case of Dario v. Mison, et al., where the Supreme Court voided the personnel
reorganization within the [Bureau of Customs], is highly instructive in this case, thus:
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good
faith. . . .
....
24. By no stretch of the imagination can the issuance of [Customs Personnel Order] No. B-189-2013
be said to have been carried out in good faith. The undue haste in issuing [Customs Personnel Order]
No. B-1892013 clearly shows that respondents are attempting to beat the deadline on the COMELEC
election ban on personnel movement from 28 September 2013 to 28 October 2013 due to the
forthcoming Barangay Elections. It cannot be denied that [Executive Order] No. 140, which was signed
by the President on 2 September 2013, has yet to take effect on 2 October 2013, which is 15 days
after its publication in two (2) newspapers of general circulation. On 17 September 2013, however, the
[Bureau of Customs] already issued [Customs Personnel Order] No. B-189-2013, which is based on
[Executive Order] No. 140, and attempted to serve copies thereof to [respondents] on 26 to 27
Page 256 of 321
Administrative Law
September 2013 supposedly just in time before the COMELEC election ban on personnel movement
takes effect on 28 September 2013.
25. More importantly, [Executive Order] No. 140 mandates that the transfer of [Bureau of Customs]
personnel should merely augment or reinforce the organic personnel of the [Customs Policy Research
Office]. Obviously, without any organic personnel, there is still nothing to augment or reinforce. . . .
Hence, [private respondents] detail to the [Customs Policy Research Office] absent any compliance
with the requirements under [Executive Order] No. 140, was surely carried out in bad faith, and was
meant to illegally remove [private respondents] from their respective permanent positions, in blatant
violation of the law and the Constitution.
26. It should also be stressed that [private respondents] were appointed as Collectors of Customs
with Position Titles VI and V, with specific functions, duties, titles, and ranks clearly provided for in their
respective appointment papers. In contrast, their supposed detail to the [Customs Policy Research
Office] under [Customs Personnel Order] No. B-189-2013 does not even provide for a definite period
of duty, their titles, new functions, or ranks.
27. Moreover, under CSC Memorandum Circular No. 06-05, otherwise known as the Guidelines on
Designation, it is clear that:
....
B. Designees can only be designated to positions within the level they are currently occupying.
However, Division Chiefs may be designated to perform the duties of third level positions
First level personnel cannot be designated to perform the duties of second level positions.
....
29. The basis of [private respondents] reassignment or the exigency necessary to remove them
from their positions is likewise inexistent. Such blanket detail relinquishes [private respondents]
permanent positions as Collectors of Customs without due process and is contrary to their
Constitutional right to security of tenure. Clearly, the disparity between the positions of a Collector of
Customs and a mere researcher is blatant. Therefore, the transfer from the former to the latter
unmistakeably denotes demotion. . . .
....
30. In the case of Pastor v. City of Pasig, the Supreme Court held that a reassignment or even detail
which is indefinite and which results in a reduction of rank and status is effectively a constructive
dismissal from the service. . . .
....
31. The principles on constructive dismissal clearly find analogous application to [private
respondents]. By definition, constructive dismissal is a quitting because continued employment is
rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of
pay. The test of constructive dismissal is whether a reasonable person in the employees position
would have felt compelled to give up his position under the circumstances. It is an act amounting to
dismissal but is made to appear as if it were not. Constructive dismissal is therefore a dismissal in
disguise. The law recognizes and resolves this situation in favor of employees in order to protect their
Page 257 of 321
Administrative Law
rights and interests from the coercive acts of the employer. Thus, the Supreme Court has ruled that the
management prerogative to transfer an employee cannot be used as a subterfuge by the employer to
rid himself of an undesirable worker.
32. Evidently, [private respondents] detail to the [Customs Policy Research Office] operated as a
blanket and forced relinquishment of their permanent positions as Collectors of Customs in violation of
their right to security of tenure. In view thereof, it behooves upon this Honorable Court to correct such
abuse of powers and retain [private respondents] to their rightful ranks.
....
35. . . . in accordance with the Supreme Courts ruling in Taada v. Tuvera, laws and executive
issuances shall take effect after fifteen (15) days following the completion of their publication in the
Official Gazette, or in a newspaper of general circulation.
36. In this case, [Executive Order] No. 140 was published in the 17 September 2013 issue of the
broadsheet newspaper, Manila Bulletin. Thus, following the above legal standards, it is clear that
[Executive Order] No. 140 has yet to take legal effect on 2 October 2013. In other words, the [Bureau
of Customs] issuance of [Customs Personnel Order] No. B-189-2013 on 17 September 2013 simply
has no legal basis, and is therefore premature and patently invalid. To deprive [private respondents] of
their permanent positions as Collectors of Customs and to detail all 15 of them indefinitely as
members of a research body on the basis of an invalid [Bureau of Customs] and [Department of
Finance] order are not only illegal but also unconstitutional for being violative of [private respondents]
right to security of tenure.
37. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no
protection; it creates no office; it is, in legal contemplation, inoperative, as if it had not been passed. . .
. For these reasons, [Customs Personnel Order] No. B-189-2013 should be nullified and set aside, and
its enforcement enjoined.
38. . . . The consequence [of implementing Customs Personnel Order No. B-189-2013] that is also
readily obvious is the chaos entailed in port operations, the collection of much needed Government
revenues and public service as [private respondents] perform functions either as District Collectors of
all the 17 Collection Districts in the country, or as Deputy Collectors for administration, assessment
and operation in those different ports.
....
41. It cannot be overemphasized that the issuance of [Customs Personnel Order] No. B-189-2013 is
illegal, and blatantly violates existing law and the Constitution. As above mentioned, respondents
intend to have [Customs Personnel Order] No. B-189-2013 immediately effective. Thus, there is a
manifest urgency for this Honorable Court to immediately restrain [petitioners] from implementing
[Customs Personnel Order] No. B-189-2013 upon receipt of this petition and before the matter can be
heard on notice. Otherwise, grave injustice and irreparable injury would be suffered by [private
respondents], in that:
(a) [Executive Order] No. 140, on which [Customs Personnel Order] No. B-189-2013 is based, has yet
to take effect upon publication in two (2) newspapers of general circulation. [Executive Order] No. 140
was published in the 17 September 2013 issue of the Manila Bulletin, hence, it will only take effect on

Page 258 of 321

Administrative Law
2 October 2013. [Customs Personnel Order] No. B-189-2013 cannot be given any effectivity as it is
invalid for being blatantly premature and without legal basis;
(b) [Customs Personnel Order] No. B-189-2013 violates [Executive Order] No. 140, as the latter
mandates that the [Department of Finance], with the approval of the [Department of Budget and
Management], has to recommend the composition of the organic personnel of the [Customs Policy
Research Office]. No such recommendation by the [Department of Finance], much less the approval of
the [Department of Budget and Management], has been made. In fact, [Executive Order] No. 140
provides that the transfer of [Bureau of Customs] personnel should merely augment or reinforce the
organic personnel of the [Customs Policy Research Office]. Obviously, without any organic personnel,
there is still nothing to augment or reinforce. The [Customs Policy Research Office] is thus in limbo, as
there is yet no organic personnel in place;
(c) [Customs Personnel Order] No. B-189-2013 is also contrary to Section 703 of [Republic Act] No.
1937, as amended, which provides that (t)he Commissioner of Customs may, with the approval of the
Secretary of Finance, assign any employee of the Bureau of Customs to any port, service, division or
office within the Bureau or assign him duties as the best interest of the service may require. Even
Commissioner Biazon, in an interview with [the ABS-CBN News Channel] admitted that it is more than
a reshuffle because they have actually been transferred to the [Department of Finance], out of the
Bureau of Customs. The Commissioner of Customs thus committed an illegal and ultra vires act in
detailing [private respondents] to the [Customs Policy Research Office], an office admittedly outside
the [Bureau of Customs];
(d) [private respondents] detail to the [Customs Policy Research Office] is [petitioners] scheme to
constructively dismiss and demote [private respondents]. [Customs Personnel Order] No. B-189-2013
operates as a blanket and forced relinquishment of [private respondents] permanent positions as
Collectors of Customs in violation of their constitutional right to security of tenure. [Private
respondents] are all detailed to the [Customs Policy Research Office] without any appointment
papers providing for their specific functions, status, salary grades, ranks, and designation, thereby
intentionally and effectively placing them on floating status; and
(e) [Private respondents] would be unduly displaced from their permanent positions with the
appointment and/or designation by the [Bureau of Customs] of new Collectors of Customs. 79(Emphasis
supplied, citations omitted)

An examination of the text of the Petition for declaratory relief readily shows that private respondents
originally questioned a personnel action. They essentially questioned their detail to the Customs Policy
and Research Office.
Book V, Title I, Subtitle A, Chapter 5, Section 26 of Executive Order No. 292 defines a personnel
action:
SECTION 26. Personnel Actions.. . .
As used in this Title, any action denoting the movement or progress of personnel in the civil service
shall be known as personnel action. Such action shall include appointment through certification,
promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion, and separation.
(Emphasis supplied)
Page 259 of 321
Administrative Law

The assailed Customs Personnel Order No. B-189-2013 is a personnel action because it details 27
employees from the Bureau of Customs to the Customs Policy Research Office. It is a movement of
personnel in the civil service.
Cases involving personnel actions are within the exclusive jurisdiction of the Civil Service Commission
and not within the trial courts jurisdiction.80
The issue is not novel.
In Olanda v. Bugayong,81 respondent Leonardo G. Bugayong (Bugayong), as President of the
Philippine Merchant Marine Academy, relieved petitioner Menelieto A. Olanda (Olanda) from his post
as the Dean of the College of Marine Engineering of the Philippine Merchant Marine Academy 82 and
imposed a three (3)-month suspension83 on the latter for allegedly misusing classified
information.84Olanda filed before the Regional Trial Court of Iba, Zambales a Petition for quo
warranto, mandamus, and prohibition with prayer for the issuance of a writ of preliminary injunction
and damages, claiming that there was no valid cause to deprive him of his position[.]85
This court ruled that the trial court had no jurisdiction.86Hence:
Disciplinary cases and cases involving personnel actions affecting employees in the civil service
including appointment through certification, promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion and separation are within the exclusive jurisdiction of the Civil Service
Commission which is the sole arbiter of controversies relating to the civil service.
....
It was thus error for the trial court, which does not have jurisdiction, to, in the first, [sic] place take
cognizance of the petition of petitioner assailing his relief as Dean and his designation to another
position. This leaves it unnecessary to dwell on the issues herein raised by petitioner.
WHEREFORE, the petition is, upon the ground of lack of jurisdiction of the trial court, hereby DENIED.
SO ORDERED.87 (Emphasis supplied, citation omitted)

In Casimina v. Judge Legaspi,88 petitioner Pablo B. Casimina (Casimina), General Manager of the
Philippine Fisheries Development Authority, issued Special Order No. 82, which reassigned private
respondent Emmanuel T. Illera (Illera), Port Manager of the Iloilo Fishing Port Complex, from Iloilo to
the central office in Quezon City.89 After the denial of his request for reconsideration,90 Illera filed for
injunction with a prayer for temporary restraining order and a writ of preliminary injunction against
Casimina before the Regional Trial Court of Iloilo to restrain [Casimina] from transferring him to the
central office in Quezon City.91
Casimina filed an Omnibus Motion to dismiss the Complaint on the ground of, among others, lack of
jurisdiction.92 This court ruled that the trial court has no jurisdiction over the Petition. 93 [T]his case falls
within the jurisdiction of the Civil Service Commission (CSC) because it involves the movement of
government personnel to promote order and efficiency in public service.94

Page 260 of 321

Administrative Law
In Mantala v. Salvador,95 Dr. Julia P. Regino (Regino) filed a formal protest before the Committee on
Evaluation and Protest of the Department of Health questioning the appointment of Dr. Mariquita J.
Mantala (Dr. Mantala).96The Committee on Evaluation and Protest upheld Dr. Mantalas
appointment.97 Upon appeal and reconsideration, the Civil Service Commission also upheld Dr.
Mantalas appointment.98 The Resolution of the Civil Service Commission became final and
executory.99 Regino then filed an action for quo warranto and mandamus before the Regional Trial
Court in Quezon City.100 The trial court annulled and set aside Dr. Mantalas appointment and directed
the Secretary of Health to withdraw Dr. Mantalas appointment and to issue another for Regino.101 Dr.
Mantala then filed a Petition for Review on certiorari before this court.102 This court granted the Petition
and annulled the Decision of the trial court:103
Disciplinary cases, and cases involving personnel actions affecting employees in the civil service
including appointment through certification, promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion and separation, and, of course, employment status and qualification
standards are within the exclusive jurisdiction of the Civil Service Commission. The Constitution
declares the Commission to be the central personnel agency of the Government, having power and
authority to administer the civil service; to promulgate its own rules concerning pleadings and practice
before it or before any of its offices; and to render decision in any case or matter brought before it
within sixty days from the date of its submission for decision or resolution, which decision, or order or
ruling may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof.
....
It was thus error, because beyond its competence, for the respondent Trial Court to take cognizance of
the quo warranto and mandamus action instituted by Dr. Regino which was in essence a protest
against the appointment of Dr. Mantala.104 (Emphasis supplied, citations omitted)

In all these cases, this court upheld the jurisdiction of the Civil Service Commission over complaints
involving the movement of personnel in the civil service.

II.

The doctrine of primary administrative jurisdiction precludes trial courts from resolving a controversy
involving a question that is within the exclusive jurisdiction of an administrative tribunal.105 The doctrine
disallows courts to arrogate unto itself the authority to resolve a controversy the jurisdiction over which
is initially lodged with an administrative body of special competence.106
In Pambujan Sur United Mine Workers v. Samar Mining Company, Inc.,107 the plaintiff Pambujan Sur
United Mine Workers filed a Complaint before the Court of First Instance (now Regional Trial Court)
against the Samar Mining Company, Inc. (Samar Mining) alleging breach of their closed-shop
agreement.108 Samar Mining filed a Motion to Dismiss arguing that the regular courts had no
jurisdiction over the subject matter of the Complaint. 109 Samar Mining argued that the Court of

Page 261 of 321

Administrative Law
Industrial Relations (now National Labor Relations Commission) had jurisdiction over cases involving
conditions of employment.110 The Court of First Instance granted the Motion to Dismiss.111
Upon appeal, this court applied the exclusion theory,112i.e., where jurisdiction is conferred in express
terms upon one court, and not upon another [and where] it has been held that it is the intention that the
jurisdiction conferred shall be exclusive113 and upheld the exclusive jurisdiction of the Court of
Industrial Relations (now National Labor Relations Commission).114 Hence:

But judicial wisdom in this particular matter would seem to favor adherence to the exclusion theory,
what with the litigants ordinary duty to exhaust administrative remedies and the doctrine of primary
administrative jurisdiction, sense-making and expedient,
That the courts cannot or will not determine a controversy involving a question which is within the
jurisdiction of an administrative tribunal prior to the decision of that question by the administrative
tribunal, where the question demands the exercise of sound administrative discretion requiring the
special knowledge, experience, and services of the administrative tribunal to determine technical and
intricate matters of fact, and a uniformity of ruling is essential to comply with the purposes of the
regulatory statute administered. (42 Am. Jur. 698)115

This court also made a similar ruling in Javier v. Court of Appeals.116 In Javier, Normito Javier
(Normito) was employed by private respondent Jebsens Maritime, Inc. as a boatswain[.] 117 Normito,
however, died at sea.118 Upon learning of her husbands death, Lolita Javier (Lolita) went to the office
of Jebsens Maritime, Inc. and the latter promised to give the corresponding death benefits[.] 119After
Jebsens Maritime, Inc. had failed to pay the promised death benefits, Lolita filed a Complaint before
the Regional Trial Court of Makati for a sum of money for herself and on behalf of her six (6) minor
children against Jebsens Maritime, Inc. and its shipmaster.120
This court ruled that under Section 3(d)121 of Executive Order No. 247 or the Reorganization Act of the
Philippine Overseas Employment Administration, it was the Philippine Overseas Employment
Administration that had original and exclusive jurisdiction over Lolitas Complaint and that the trial court
had no jurisdiction over the subject matter of her Complaint. 122 Hence, under the doctrine of primary
administrative jurisdiction, the trial court cannot resolve the controversy. 123 This court ordered the
Regional Trial Court to dismiss the case for lack of jurisdiction.141
In Catipon, Jr. v. Japson,125 respondent Jerome Japson (Japson), a former Senior Member Services
Representative of [the] [Social Security System], Bangued, filed a letter-complaint [before] the Civil
Service Commission-[Cordillera Administrative Region] Regional Director[.]126He alleged that
petitioner Macario U. Catipon, Jr. (Catipon) made deliberate false entries in his application to take the
Civil Service Professional Examination.127 The Civil Service Commission-Cordillera Administrative
Region Regional Director found Catipon guilty of conduct prejudicial to the best interest of the
service.128
Catipon appealed to the Court of Appeals, which dismissed the appeal. 129 The Court of Appeals held
that instead of filing the appeal before the Court of Appeals, Catipon should have appealed to the Civil
Service Commission, based on Sections 5(A)(1),130 43,131 and 49132 of the Civil Service Commission
Uniform Rules on Administrative Cases.133

Page 262 of 321

Administrative Law
This court affirmed the Decision of the Court of Appeals134 and held:
The [Court of Appeals] is further justified in refusing to take cognizance of the petition for review, as
[t]he doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to
resolve a controversy the jurisdiction over which is initially lodged with an administrative body of
special competence. When petitioners recourse lies in an appeal to the Commission Proper in
accordance with the procedure prescribed in [Revised Uniform Rules on Administrative Cases in the
Civil Service], the [Court of Appeals] may not be faulted for refusing to acknowledge petitioner before
it.135 (Emphasis supplied)

Hence, considering the exclusive jurisdiction of the Civil Service Commission to hear and decide
administrative cases, including those involving personnel actions, as granted by the Constitution, the
Regional Trial Court cannot assume jurisdiction based on the doctrine of primary administrative
jurisdiction.
In sustaining the trial courts assumption of jurisdiction over the Petition for declaratory relief,
the ponencia held that the case falls under an exception to the doctrine of exhaustion of administrative
remedies.136 The ponenciastates:
In this case, respondents allege that [Customs Personnel Order No. B-189-2013] is contrary to law and
unconstitutional. Respondents assail [Customs Personnel Order No. B-189-2013] as patently illegal,
arbitrary, and oppressive. This case clearly falls within the exceptions where exhaustion of
administrative remedies need not be resorted to by respondents.137

Private respondents, citing Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang
Bayan ng Muntinlupa, Inc. (KBMBPM) v. Dominguez,138likewise argue that exceptions to the doctrine
of exhaustion of administrative remedies apply.139 Hence:
Moreover, the doctrine of exhaustion of administrative remedies also yields to other exceptions, such
as when the question involved is purely legal, as in the instant case, or where the questioned act is
patently illegal, arbitrary or oppressive.140
The doctrine of exhaustion of administrative remedies does not apply and, consequently, its
exceptions.
The doctrine of primary administrative jurisdiction is different from the doctrine of exhaustion of
administrative remedies.
Under the doctrine of primary administrative jurisdiction, when an administrative agency is granted
primary jurisdiction over the subject matter, the courts cannot or will not determine a controversy
involving a question which is within the jurisdiction of an administrative tribunal prior to the decision of
that question by the administrative tribunal[.]141 The doctrine of primary administrative jurisdiction
presupposes that the administrative agency has jurisdiction over the subject matter while the court
does not. The Complaint or Petition, therefore, cannot be filed before the court. As the issue is
jurisdictional, there should be no exception to the doctrine of primary administrative jurisdiction. When

Page 263 of 321

Administrative Law
the complaint or petition is filed before a court with no subject matter jurisdiction, the court has no other
option but to dismiss the case.142
On the other hand, under the doctrine of exhaustion of administrative remedies, before a party may
seek intervention from the court, he or she should have already exhausted all the remedies in the
administrative level.143 If there is still a remedy available within the administrative machinery, then
such remedy should be exhausted first before [the] courts judicial power can be sought. 144 The
doctrine of exhaustion of administrative remedies presupposes that both the courts and the
administrative agency have concurrent jurisdiction. This is because nonobservance of the doctrine of
exhaustion of administrative remedies does not affect the courts jurisdiction.145 In Soto v.
Jareno,146 this court ruled:
Failure to observe the doctrine of exhaustion of administrative remedies does not affect the jurisdiction
of the court. We have repeatedly stressed this in a long line of decisions. The only effect of non-
compliance with this rule is that it will deprive the complainant of a cause of action, which is a ground
for a motion to dismiss. If not invoked at the proper time, this ground is deemed waived and the court
can then take cognizance of the case and try it.147 (Emphasis supplied)
Hence, the doctrine of exhaustion of administrative remedies presupposes that the court has
jurisdiction over the subject matter of the complaint or petition. Otherwise, it can never have the power
to take cognizance of the case as contemplated by Soto.
While both the court and the administrative agency have jurisdiction over the subject matter, the
general rule is that the courts, because of comity, practicality, and convenience, will not interfere with
the administrative process until the process comes to an end.148 This is because availing
administrative remedies entails lesser expenses and results in a speedier resolution of
controversies.149 On the other hand, since the court and the administrative agency have concurrent
jurisdiction, exceptions may be warranted by the circumstances,150 and the court may choose to
assume jurisdiction over the controversy.
Hence, when jurisdiction is exclusively granted to an administrative agency, the doctrine of exhaustion
of administrative remedies does not apply. Here, considering that the Civil Service Commission is
granted exclusive jurisdiction over cases involving personnel actions, the doctrine of primary
administrative jurisdiction, not the doctrine of exhaustion of administrative remedies, applies.
The exceptions to the doctrine of exhaustion of administrative remedies likewise do not apply because
the Regional Trial Court has no jurisdiction to resolve the dispute in the first place. In order for the
exceptions to apply, the court to which the petition was prematurely filed should have jurisdiction;
otherwise, the orders of the court would be null and void for lack of jurisdiction. Decisions or orders
rendered by tribunals and agencies that do not have subject matter jurisdiction are null and
void.151 Hence, the exceptions to the doctrine of exhaustion of administrative remedies should not be
applicable since the Regional Trial Court, the court to which the Petition for declaratory relief was filed,
lacks subject matter jurisdiction, and any order or decision rendered by it would be null and void.

Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc.
(KBMBPM)cited by private respondents finds no application here. In KBMBPM, petitioners questioned
the takeover by the Department of Agriculture of the management of petitioner KBMBPM, a service

Page 264 of 321

Administrative Law
cooperative organized by and composed of vendors of the New Muntinlupa Public Market. 152 There is
no personnel action involved in KBMBPM. Hence, private respondents reliance on the case is
misplaced.
The ponencia held that [w]hen respondents raised the issue of validity and constitutionality of
[Customs Personnel Order No. B-189-2013], the issue took the case beyond the scope of the [Civil
Service Commissions] jurisdiction because the matter is no longer limited to personnel action. Thus,
the [Regional Trial Court] did not abuse its discretion in taking cognizance of the action. 153
The constitutional issues alleged in the Petition for declaratory relief do not suffice for the Regional
Trial Court to assume jurisdiction.
The Civil Service Commission cannot be ousted from its jurisdiction by the simple expediency of
appending an allegedly constitutional or legal dimension to an issue 154that clearly involves a
personnel action.155
In Corsiga v. Judge Defensor,156 petitioner Eduardo Corsiga (Corsiga), then Regional Irrigation
Manager of the [National Irrigation Administration], Region VI, issued Regional Office Memorandum
(ROM) No. 52, reassigning private respondent [Romeo Ortizo (Ortizo)] to [the] Aganan-Sta. Barbara
River Irrigation System[.]157 Ortizo filed before the Regional Trial Court of Iloilo City a complaint for
prohibition and injunction, with prayer for issuance of [a] Temporary Restraining Order and/or Writ of
Preliminary Injunction.158 He argued that the transfer or assignment without his consent is a violation
of his constitutional right to security of tenure.159 Corsiga moved to dismiss the Petition for lack of
jurisdiction.160
This court ruled that the Regional Trial Court had no jurisdiction over Ortizos Complaint. 161 Hence:
It is the intent of the Civil Service Law, in requiring the establishment of a grievance procedure in Rule
XII, Section 6 of the same rules, that decisions of lower level officials be appealed to the agency head,
then to the Civil Service Commission. Decisions of the Civil Service Commission, in turn, may be
elevated to the Court of Appeals. Under this set up, the trial court does not have jurisdiction over
personnel actions and, thus, committed an error in taking jurisdiction over Civil Case No. 22462. The
trial court should have dismissed the case on motion of petitioner and let private respondent question
RMO [sic] No. 52 before the NIA Administrator, and then the Civil Service Commission. As held
in Mantala v. Salvador, cases involving personnel actions, reassignment included, affecting civil
service employees, are within the exclusive jurisdiction of the Civil Service Commission.162 (Emphasis
supplied, citations omitted)
Despite allegations of Regional Office Memorandum No. 52s constitutional infirmities, this court still
upheld the exclusive jurisdiction of the Civil Service Commission over cases involving personnel
actions.
In Department of Agrarian Reform v. Trinidad Valley Realty & Development Corporation,163 Trinidad
Valley Realty & Development Corporation and the other respondents (Trinidad Valley Realty &
Development Corporation, et al.) are registered owners of a parcel of land in Negros Oriental.164 The
Department of Agrarian Reform placed a substantial portion of the land under the coverage of the
Comprehensive Agrarian Reform Law of 1988 or Republic Act No. 6657. 165 Administrative Order No.
10, Series of 1989, Administrative Orders No. 12, Series of 1989, No. 9, Series of 1990, and No. 2,
Series of 1996, Administrative Order No. 10, Series of 1990, Joint DAR-LRA Memorandum Circular

Page 265 of 321

Administrative Law
No. 20, Series of 1997, and Executive Order No. 405, among others, (collectively, Orders) were then
issued.166
Private respondents Trinidad Valley Realty & Development Corporation, et al. filed before the Regional
Trial Court a Petition for declaration of unconstitutionality through certiorari, prohibition
and mandamus against the Land Registration Authority, the Department of Agrarian Reform, and the
beneficiaries under the Comprehensive Agrarian Reform Program questioning the Orders. 167 This was
later amended to an ordinary action of annulment of land titles. 168 In its Answer, the Department of
Agrarian Reform asserted that jurisdiction over all agrarian reform matters is exclusively vested in the
[Department of Agrarian Reform,]169 not in the regular courts. This court ruled that the Regional Trial
Court had no jurisdiction.170
The Court likewise ruled in the similar case of [Department of Agrarian Reform] v. Cuenca that [a]ll
controversies on the implementation of the Comprehensive Agrarian Reform Program (CARP) fall
under the jurisdiction of the Department of Agrarian Reform (DAR), even though they raise
questions that are also legal or constitutional in nature. In said case, it was noted that the main
thrust of the allegations in the Complaint was the propriety of the Notice of Coverage and not x x x the
pure question of law spawned by the alleged unconstitutionality of EO 405 but x x x the annulment
of the DARs Notice of Coverage. The Court thus held that:
To be sure, the issuance of the Notice of Coverage constitutes the first necessary step towards the
acquisition of private land under the CARP. Plainly then, the propriety of the Notice relates to the
implementation of the CARP, which is under the quasi-judicial jurisdiction of the DAR. Thus, the DAR
could not be ousted from its authority by the simple expediency of appending an allegedly
constitutional or legal dimension to an issue that is clearly agrarian.
The legal recourse undertaken by Trinidad Valley Realty and Development Corporation, et al. is on all-
fours with the remedy adopted by the private respondents in Cuenca. In this case, Trinidad Valley
Realty and Development Corporation, et al. cloaked the issue as a constitutional question assailing
the constitutionality of administrative issuances promulgated to implement the agrarian reform law
in order to annul the titles issued therein. In Cuenca, private respondents assailed the constitutionality
of EO 45 in order to annul the Notice of Coverage issued therein. The only difference is that
in Cuenca, private respondents directly filed with the RTC their complaint to obtain the aforesaid reliefs
while in this case, Trinidad Valley Realty and Development Corporation, et al. filed their original
petition for certiorari with the RTC after the protest of Trinidad Valley Realty and Development
Corporation against the coverage of its landholding under CARP was dismissed by the DAR Regional
Director and such dismissal was affirmed by DAR OIC Secretary Jose Mari B. Ponce. But in both
cases, it is evident that the constitutional angle was an attempt to exclude the cases from the ambit
of the jurisdictional prescriptions under RA 6657.171 (Emphasis supplied, citations omitted)

Invocations of issues of validity and constitutionality of Customs Personnel Order No. B-189-2013 will
not suffice for the courts to assume jurisdiction, if the order sought to be declared invalid is a personnel
action. Since the questioned order is a personnel action, the exclusive jurisdiction of the Civil Service
Commission as the sole arbiter of controversies relating to the civil service must be upheld.

Page 266 of 321

Administrative Law
In any case, detail of government personnel to other offices does not involve and violate the
employees security of tenure in the absence of any grave abuse of discretion or improper motive or
purpose.172
Hence, the Regional Trial Court has no jurisdiction over private respondents Petition for declaratory
relief.

III.

Private respondents rely on Commissioner of Customs, et al. v. Hypermix Feeds Corporation.173 They
argue that based on Hypermix, [t]he determination of whether a specific rule or set of rules issued by
an administrative agency contravenes the law or the [C]onstitution is within the jurisdiction of the
regular courts.174 They add that the Constitution vests the power of judicial review or the power to
declare a law, treaty, international or executive agreement, presidential decree, or der, instruction,
ordinance, or regulation in the courts, including the regional trial courts. 175
In Hypermix, Hypermix Feeds Corporation filed a Petition for declaratory relief before the Regional
Trial Court, with the Petition challenging the validity and constitutionality of Customs Memorandum
Order (CMO) 27-2003.176 CMO 27-2003 classified wheat according to (1) importer or consignee; (2)
country of origin; and (3) port of discharge, and imposed different tariff rates depending on such
classification.177 This court concluded that a petition for declaratory relief is the right remedy given the
circumstances of the case.178 Hypermix cannot be applied because the circumstances in that case
differ from the circumstances here as Hypermix does not involve a personnel action.

IV.

A petition for declaratory relief may prosper only if there is no breach or violation yet of the assailed
government regulation, and adequate relief is not available through other means or other forms of
action or proceeding.
Rule 63, Section 1 of the Rules of Court provides:
SECTION 1. Who may file petition.Any person interested under a deed, will, contract or other
written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance,
or any other governmental regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction or valid ity arising, and for a
declaration of his rights or duties, thereunder. (Emphasis supplied)

In Republic v. Roque,179 this court enumerated the requisites for a petition for declaratory relief to
prosper:

Page 267 of 321

Administrative Law
Case law states that the following are the requisites for an action for declaratory relief: first, the
subject matter of the controversy must be a deed, will, contract or other written instrument, statute,
executive order or regulation, or ordinance; second, the terms of said documents and the validity
thereof are doubtful and require judicial construction; third, there must have been no breach of the
documents in question; fourth, there must be an actual justiciable controversy or the ripening seeds
of one between persons whose interests are adverse; fifth, the issue must be ripe for judicial
determination; and sixth, adequate relief is not available through other means or other forms of action
or proceeding.180 (Emphasis in the original, citation omitted)

The third and sixth requisites are absent. The Complaint before the lower court did not simply ask for a
declaration of a hypothetical breach. Adequate relief through the Civil Service Commission was also
available.
Executive Order No. 140 was published on September 17, 2013. According to Section 9, Executive
Order No. 140 shall take effect immediately. On September 17, 2013, Bureau of Customs
Commissioner Rozzano Rufino B. Biazon issued Customs Personnel Order No. B-189-2013. On
September 30, 2013, private respondents filed their Petition for declaratory relief. There was no denial
by private respondents that they did not report for work upon Custom Personnel Order No. B-189-
2013s effectivity.181 Private respondents Arnel C. Alcaraz, Ma. Lourdes V. Mangaoang, Romalino G.
Valdez, Lilibeth S. Sandag, Ma. Liza S. Torres, and Raymond P. Ventura only reported for work after
the trial courts denial of their application for a writ of preliminary injunction. 182
By not reporting for work upon the issuance of Customs Personnel Order No. B-189-2013 on
September 17, 2015, private respondents committed a breach of the Order. Since they committed the
breach prior to the filing of their Petition for declaratory relief, the petition is no longer available.
In Martelino, et al. v. National Home Mortgage Finance Corporation, et al.,183 petitioners (Martelino, et
al.) obtained housing loans from respondents National Home Mortgage Finance Corporation and
Home Development Mutual Fund.184 National Home Mortgage Finance Corporation and Home
Development Mutual Fund directly released the proceeds of the housing loans to the subdivision
developer, Shelter Philippines, Inc. (Shelter).185
Shelter did not complete the subdivision pursuant to its subdivision plan. 186 Martelino, et al. then filed a
Petition for declaratory relief to determine whether they can suspend payment to National Home
Mortgage Finance Corporation and Home Development Mutual Fund because of Shelters failure to
complete the subdivision and whether interests and penalties should also be suspended. 187
This court found that at the time of the filing of their Petition for declaratory relief, Martelino, et al.
already suspended payment of their amortizations to National Home Mortgage Finance Corporation
and Home Development Mutual Fund.188 Hence, this court concluded that the Regional Trial Court
cannot assume jurisdiction over the Petition for declaratory relief.189 Hence:

Indeed, under Section 1, Rule 63, a person must file a petition for declaratory relief before breach or
violation of a deed, will, contract, other written instrument, statute, executive order, regulation,
ordinance or any other governmental regulation. In this case, the petitioners had stated in their petition
that respondents assessed them interest and penalties on their outstanding loans, initiated foreclosure
Page 268 of 321
Administrative Law
proceedings against petitioner Rafael Martelino as evidenced by the notice of extrajudicial sale and
threatened to foreclose the mortgages of the other petitioners, all in disregard of their right to suspend
payment to Shelter for its failure to complete the subdivision. Said statements clearly mean one thing:
petitioners had already suspended paying their amortization payments.Unfortunately, their actual
suspension of payments defeated the purpose of the action to secure an authoritative declaration of
their supposed right to suspend payment, for their guidance. Thus, the RTC could no longer assume
jurisdiction over the action for declaratory relief because its subject initially unspecified, now identified
as P.D. No. 957 and relied upon correctly or otherwise by petitioners, and assumed by the RTC
to be Rep. Act No. 8501, was breached before filing the action. As we said inTambunting, Jr. v.
Sumabat:
. . . The purpose of the action [for declaratory relief] is to secure an authoritative statement of the rights
and obligations of the parties under a statute, deed, contract, etc. for their guidance in its enforcement
or compliance and not to settle issues arising from its alleged breach. It may be entertained only
before the breach or violation of the statute, deed, contract, etc. to which it refers. Where the law or
contract has already been contravened prior to the filing of an action for declaratory relief, the court
can no longer assume jurisdiction over the action.... Under such circumstances, inasmuch as a cause
of action has already accrued in favor of one or the other party, there is nothing more for the court to
explain or clarify short of a judgment or final order.190(Emphasis supplied, citations omitted)
In Aquino v. Municipality of Malay, Aklan,191 petitioner Crisostomo B. Aquino (Aquino) is the president
and chief executive officer of Boracay Island West Cove Management Philippines, Inc. (Boracay West
Cove).192 The Office of the Mayor of Malay, Aklan issued Executive Order No. 10, Series of 2011,
ordering the closure and demolition of a hotel owned by Boracay West Cove.193 On June 10, 2011,
Executive Order No. 10 was implemented partially.194
To stop the implementation of Executive Order No. 10, Aquino filed a Petition for certiorari with prayer
for injunctive relief before the Court of Appeals.195 The Court of Appeals dismissed the Petition on the
ground that the correct remedy was for Aquino to file a petition for declaratory relief with the Regional
Trial Court.196
This court disagreed with the Court of Appeals and stated:
An action for declaratory relief presupposes that there has been no actual breach of the instruments
involved or of the rights arising thereunder. Since the purpose of an action for declaratory relief is to
secure an authoritative statement of the rights and obligations of the parties under a statute, deed, or
contract for their guidance in the enforcement thereof, or compliance therewith, and not to settle issues
arising from an alleged breach thereof, it may be entertained before the breach or violation of the
statute, deed or contract to which it refers. A petition for declaratory relief gives a practical remedy for
ending controversies that have not reached the state where another relief is immediately available; and
supplies the need for a form of action that will set controversies at rest before they lead to a
repudiation of obligations, an invasion of rights, and a commission of wrongs.
In the case at bar, the petition for declaratory relief became unavailable by [Executive Order No. 10s]
enforcement and implementation. The closure and demolition of the hotel rendered futile any possible
guidelines that may be issued by the trial court for carrying out the directives in the challenged
[Executive Order No. 10]. Indubitably, the CA erred when it ruled that declaratory relief is the proper
remedy given such a situation.197 (Emphasis supplied, citation omitted)

Page 269 of 321

Administrative Law
In City of Lapu-Lapu v. Philippine Economic Zone Authority,198 the City of Lapu-Lapu and the Province
of Bataan demanded from the Philippine Economic Zone Authority payment of real property
taxes.199 The Philippine Economic Zone Authority filed a Petition for declaratory relief before the
Regional Trial Court, praying that the trial court declare it exempt from payment of real property
taxes.200 This court ruled that the Regional Trial Court had no jurisdiction to decide Philippine
Economic Zone Authoritys Petition for declaratory relief. 201 This court explained:
We rule that the [Philippine Economic Zone Authority] erred in availing itself of a petition for declaratory
relief against the City. The City had already issued demand letters and real property tax assessment
against the [Philippine Economic Zone Authority], in violation of the [Philippine Economic Zone
Authoritys] alleged tax-exempt status under its charter. The Special Economic Zone Act of 1995, the
subject matter of [Philippine Economic Zone Authoritys] petition for declaratory relief, had already
been breached. The trial court, therefore, had no jurisdiction over the petition for declaratory relief.
There are several aspects of jurisdiction. Jurisdiction over the subject matter is the power to hear and
determine cases of the general class to which the proceedings in question belong. It is conferred by
law, which may either be the Constitution or a statute. Jurisdiction over the subject matter means the
nature of the cause of action and the relief sought. Thus, the cause of action and character of the
relief sought as alleged in the complaint are examined to determine whether a court had jurisdiction
over the subject matter. Any decision rendered by a court without jurisdiction over the subject matter of
the action is void.202(Emphasis supplied, citations omitted)
Further, Tambunting, Jr. v. Spouses Sumabat203 declared that when a court assumed jurisdiction over
a Petition for declaratory relief when there was already a breach of the subject instrument or
government regulation, the orders made by that court would be null and void for want of
jurisdiction.204 Hence:
In other words, a court has no more jurisdiction over an action for declaratory relief if its
subject, i.e., the statute, deed, contract, etc., has already been infringed or transgressed before
the institution of the action. Under such circumstances, inasmuch as a cause of action has already
accrued in favor of one or the other party, there is nothing more for the court to explain or clarify short
of a judgment or final order.
Here, an infraction of the mortgage terms had already taken place before the filing of Civil Case No. C-
7496. Thus, the CFI lacked jurisdiction when it took cognizance of the case in 1979. And in the
absence of jurisdiction, its decision was void and without legal effect. As this Court held
in Arevalo v. Benedicto:
Furthermore, the want of jurisdiction by a court over the subject-matter renders its judgment void and a
mere nullity, and considering that a void judgment is in legal effect no judgment, by which no rights are
divested, from which no rights can be obtained, which neither binds nor bars any one, and under which
all acts performed and all claims flowing out of are void, and considering further, that the decision, for
want of jurisdiction of the court, is not a decision in contemplation of law, and, hence, can never
become executory, it follows that such a void judgment cannot constitute a bar to another case by
reason of res judicata.205(Emphasis supplied, citations omitted)\
This was reiterated in Malana, et al. v. Tappa, et al.206where this court declared:

Page 270 of 321

Administrative Law
Where the law or contract has already been contravened prior to the filing of an action for declaratory
relief, the courts can no longer assume jurisdiction over the action. In other words, a court has no more
jurisdiction over an action for declaratory relief if its subject has already been infringed or transgressed
before the institution of the action.207
Private respondents argue that Customs Personnel Order No. B-189-2013 is void, producing no effect.
Hence, there is actually no breach, real or imaginary, to speak of in this case.208
Subscribing to petitioners theory will render ineffective the phrase before breach or violation thereof
found in Section 1 of Rule 63 of the Rules of Court when a petitioner questions the validity of a written
instrument or governmental regulation. By arguing that the instrument or regulation questioned is void
at the onset, a petitioner may file any time a petition for declaratory relief with no regard to whether he
or she violated the void instrument or regulation.
Private respondents belated compliance with Customs Personnel Order No. B-189-2013 cannot cure
the defect of want of jurisdiction. In Gomez v. Palomar, etc., et al.,209 this court declared:
The prime specification of an action for declaratory relief is that it must be brought before breach or
violation of the statute has been committed. Rule 64, Section 1 so provides. Section 6 of the same
rule, which allows the court to treat an action for declaratory relief as an ordinary action, applies only if
the breach or violation occurs after the filing of the action but before the termination thereof.
Hence, if, as the trial court itself admitted, there had been a breach of the statute before the filing of
this action, then indeed the remedy of declaratory relief cannot be availed of, much less can the suit be
converted into an ordinary action.210 (Emphasis supplied, citation omitted)

Considering that there was already a breach of Customs Personnel Order No. B-189-2013 when
private respondents filed their Petition for declaratory relief, the Regional Trial Court can no longer act
on the Petition for want of jurisdiction.
For a Petition for declaratory relief to prosper, there should be no other adequate relief available to
petitioners.211If adequate relief is available through another form of action or proceeding, the other
action must be preferred over an action for declaratory relief.212
In Ferrer, Jr., et al. v. Mayor Roco, Jr., et al.,213 this court affirmed the dismissal of a Petition for
declaratory relief where the doctrine of primary administrative jurisdiction applied because it meant that
there was another adequate remedy available to petitioners.214
Here, private respondents correct remedy was to file a Complaint or Petition before the Civil Service
Commission to assail their detail to the Customs Policy Research Office. Since they have another
adequate remedy available to them, their Petition for declaratory relief must fail.
All told, a Petition for declaratory relief was not an available remedy for private respondents. It was,
therefore, error for the Regional Trial Court to assume jurisdiction over private respondents Petition for
declaratory relief. The Orders of the Regional Trial Court dated October 1, 2013, October 4, 2013, and
October 21, 2013 are declared void for want of jurisdiction. All other Orders of the Regional Trial Court
pursuant to private respondents Petition for declaratory relief are also void for lack of jurisdiction.

Page 271 of 321

Administrative Law
The Regional Trial Court should be directed to dismiss private respondents Petition for declaratory
relief.

V.

Customs Personnel Order No. B-189-2013 provides that it shall be effective immediately and valid
until sooner revoked.215
Civil Service Commission Resolution No. 021181 entitled Policies on Detail and dated September 13,
2002 govern[s] the detail of employees in all agencies of the government.216 Section 2 of Policies on
Detail provides:
Section 2. Duration of the Detail.The detail shall be allowed only for a maximum period of one
year. Details beyond one year may be allowed provided it is with the consent of the detailed employee.
The extension or renewal of the period of the detail shall be within the authority of the mother agency.
If the employee believes that there is no justification for the detail, he/she may appeal his/her case to
the proper Civil Service Commission Regional Office. Pending appeal, the detail shall be executory
unless otherwise ordered by said regional office.Decision of said regional office may be further
appealed to the Commission En Banc.217 (Emphasis supplied)

Customs Personnel Order No. B-189-2013s provision stating that [t]his Order shall be effective
immediately and valid until sooner revoked appears contrary to Section 2 of Resolution No. 02-1181.
Pursuant, however, to Section 2 of Civil Service Commission Resolution No. 02-1181, Customs
Personnel Order No. B-189-2013 should be read as valid only for a period of one (1) year. Consistency
in executive issuances is of utmost importance.218 As much as possible, it is the duty of the courts to
harmonize and reconcile them.219
In Philippine International Trading Corporation v. Presiding Judge Angeles,220 this court ruled:
Thus, there is no real inconsistency between LOI 444 and EO 133. There is, admittedly, a rearranging
of the administrative functions among the administrative bodies affected by the edict, but not an
abolition of executive power. Consistency in statutes as in executive issuances, is of prime importance,
and, in the absence of a showing to the contrary, all laws are presumed to be consistent with each
other. Where it is possible to do so, it is the duty of courts, in the construction of statutes, to harmonize
and reconcile them, and to adopt a construction of a statutory provision which harmonizes and
reconciles it with other statutory provisions. The fact that a later enactment may relate to the same
subject matter as that of an earlier statute is not of itself sufficient to cause an implied repeal of the
latter, since the law may be cumulative or a continuation of the old one. 221 (Emphasis supplied,
citations omitted)

Similarly, this court should also uphold as much as possible the validity of Customs Personnel Order
No. B-189-2013 as a valid exercise of executive power to conform to the Policies on Detail.

Page 272 of 321

Administrative Law
Every inten[t] of the law should lean towards its validity, not its invalidity.222 Hence, the duration of
Customs Personnel Order No. B-189-2013, being independent and severable from the order of detail
itself, should be the only provision declared void.
Since there is no record that private respondents consented to be detailed for more than one (1) year
from September 17, 2013, Customs Personnel Order No. B-189-2013, while effective for the duration
of one (1) year from enactment, already ceased to take effect.
The ponencia ruled that Customs Personnel Order No. B-189-2013 violates Section 3 of Executive
Order No. 140 because at the time of its issuance, the Customs Policy Research Office had no organic
personnel yet.223 The ponencia also ruled that the Department of Finance Secretary had not yet issued
rules and regulations for the Customs Policy Research Office.224
There is nothing in Executive Order No. 140 that requires that the organic personnel of the Customs
Policy Research Office must first be organized and that rules must first be is sued by the Department
of Finance Secretary before the Bureau of Customs can start forming its team that will augment and
reinforce the organic personnel of the Customs Policy Research Office. Courts should avoid as much
as possible any construction invalidating administrative issuances.225 Unless there is a clear violation
of Executive Order No. 140, Customs Personnel Order No. B-189-2013 should remain valid.
ACCORDINGLY, the Petition should be GRANTED.Private respondents Petition for declaratory relief
filed before the Regional Trial Court should be DISMISSED for lack of jurisdiction.
Petition partially granted, validity of Executive Order No. 140 sustained. Regional Trial Court has
jurisdiction over action for declaratory relief filed by respondents.
Notes.A party who seeks the intervention of a court of law upon an administrative concern should
first avail himself of all the remedies afforded by administrative processes. (Special People, Inc.
Foundation vs. Canda, 688 SCRA 403 [2013])
It is true that the doctrine of exhaustion of administrative remedies is not an ironclad rule, but
recognizes exceptions. (Ejera vs. Merto, 714 SCRA 397 [2014])

o0o

Page 273 of 321

Administrative Law

Case 12
G.R. No. 211833. April 7, 2015.*
FERDINAND R. VILLANUEVA, Presiding Judge, MCTC, Compostela-New Bataan, Compostela
Valley Province, petitioner, vs. JUDICIAL AND BAR COUNCIL, respondent.
Remedial Law; Special Civil Actions; Certiorari; Judicial and Bar Council; In the process of selecting
and screening applicants, the Judicial and Bar Council (JBC) neither acted in any judicial or quasi-
judicial capacity nor assumed unto itself any performance of judicial or quasi-judicial prerogative.In
this case, it is clear that the JBC does not fall within the scope of a tribunal, board, or officer exercising
judicial or quasi-judicial functions. In the process of selecting and screening applicants, the JBC
neither acted in any judicial or quasi-judicial capacity nor assumed unto itself any performance of
judicial or quasi-judicial prerogative. However, since the formulation of guidelines and criteria, including
the policy that the petitioner now assails, is necessary and incidental to the exercise of the JBCs
constitutional mandate, a determination must be made on whether the JBC has acted with grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing and enforcing the said policy.
Supreme Court; Jurisdiction; Power of Supervision; The Supreme Court (SC) can appropriately take
cognizance of this case by virtue of the Courts power of supervision over the Judicial and Bar Council
(JBC). Jurisprudence provides that the power of supervision is the power of oversight, or the authority
to see that subordinate officers perform their duties.The Court can appropriately take cognizance of
this case by virtue of the Courts power of supervision over the JBC. Jurisprudence provides that the
power of supervision is the power of oversight, or the authority to see that subordinate officers perform
their duties. It ensures that the laws and the rules governing the conduct of a government entity are
observed and complied with. Supervising officials see to it that rules are followed, but they themselves
do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are
not observed,they may order the work done or redone, but only to conform to such rules. They may not
prescribe their own manner of execution of the act. They have no discretion on this matter except to
see to it that the rules are followed.
Remedial Law; Special Civil Actions; Mandamus; The remedy of mandamus, as an extraordinary writ,
lies only to compel an officer to perform a ministerial duty, not a discretionary one; The function of the
Judicial and Bar Council (JBC) to select and recommend nominees for vacant judicial positions is
discretionary, not ministerial.The remedy of mandamus cannot be availed of by the petitioner in
assailing JBCs policy. The petitioner insisted that mandamus is proper because his right was violated
when he was not included in the list of candidates for the RTC courts he applied for. He said that his
noninclusion in the list of candidates for these stations has caused him direct injury. It is essential to
the issuance of a writ of mandamus that the applicant should have a clear legal right to the thing
demanded and it must be the imperative duty of the respondent to perform the act required. The
petitioner bears the burden to show that there is such a clear legal right to the performance of the act,
and a corresponding compelling duty on the part of the respondent to perform the act. The remedy
of mandamus, as an extraordinary writ, lies only to compel an officer to perform a ministerial duty, not
a discretionary one. Clearly, the use of discretion and the performance of a ministerial act are mutually
exclusive. The writ of mandamus does not issue to control or review the exercise of discretion or to
compel a course of conduct, which, it quickly seems to us, was what the petitioner would have the JBC
do in his favor. The function of the JBC to select and recommend nominees for vacant judicial
Page 274 of 321
Administrative Law
positions is discretionary, not ministerial. More so, the petitioner cannot claim any legal right to be
included in the list of nominees for judicial vacancies. Possession of the constitutional and statutory
qualifications for appointment to the judiciary may not be used to legally demand that ones name be
included in the list of candidates for a judicial vacancy. Ones inclusion in the list of the candidates
depends on the discretion of the JBC.
Same; Same; Declaratory Relief; An action for declaratory relief should be filed by a person interested
under a deed, a will, a contract or other written instrument, and whose rights are affected by a statute,
an executive order, a regulation or an ordinance.An action for declaratory relief should be filed by a
person interested under a deed, a will, a contract or other written instrument, and whose rights are
affected by a statute, an executive order, a regulation or an ordinance. The relief sought under this
remedy includes the interpretation and determination of the validity of the written instrument and the
judicial declaration of the parties rights or duties thereunder. [T]he purpose of the action is to secure
an authoritative statement of the rights and obligations of the parties under a statute, deed,
contract, etc., for their guidance in its enforcement or compliance and not to settle issues arising from
its alleged breach.
Same; Same; Same; Courts; Regional Trial Courts; The special civil action of declaratory relief falls
under the exclusive jurisdiction of the appropriate Regional Trial Court (RTC) pursuant to Section 19 of
Batas Pambansa (BP) Blg. 129, as amended by Republic Act (RA) No. 7691.The instant petition
must necessarily fail because this Court does not have original jurisdiction over a petition for
declaratory relief even if only questions of law are involved. The special civil action of declaratory relief
falls under the exclusive jurisdiction of the appropriate RTC pursuant to Section 19 of Batas Pambansa
Blg. 129, as amended by R.A. No. 7691. Therefore, by virtue of the Courts supervisory duty over the
JBC and in the exercise of its expanded judicial power, the Court assumes jurisdiction over the present
petition. But in any event, even if the Court will set aside procedural infirmities, the instant petition
should still be dismissed.
Judicial and Bar Council; Jurisdiction; As an offspring of the 1987 Constitution, the Judicial and Bar
Council (JBC) is mandated to recommend appointees to the judiciary and only those nominated by the
JBC in a list officially transmitted to the President may be appointed by the latter as justice or judge in
the judiciary.As an offspring of the 1987 Constitution, the JBC is mandated to recommend
appointees to the judiciary and only those nominated by the JBC in a list officially transmitted to the
President may be appointed by the latter as justice or judge in the judiciary. Thus, the JBC is burdened
with a great responsibility that is imbued with public interest as it determines the men and women who
will sit on the judicial bench. While the 1987 Constitution has provided the qualifications of members of
the judiciary, this does not preclude the JBC from having its own set of rules and procedures and
providing policies to effectively ensure its mandate. The functions of searching, screening, and
selecting are necessary and incidental to the JBCs principal function of choosing and recommending
nominees for vacancies in the judiciary for appointment by the President. However, the Constitution
did not lay down in precise terms the process that the JBC shall follow in determining applicants
qualifications. In carrying out its main function, the JBC has the authority to set the standards/criteria in
choosing its nominees for every vacancy in the judiciary, subject only to the minimum qualifications
required by the Constitution and law for every position. The search for these long held qualities
necessarily requires a degree of flexibility in order to determine who is most fit among the applicants.
Thus, the JBC has sufficient but not unbridled license to act in performing its duties.

Page 275 of 321

Administrative Law
Constitutional Law; Equal Protection of the Laws; The equal protection clause does not preclude
classification of individuals who may be accorded different treatment under the law as long as the
classification is reasonable and not arbitrary.The equal protection clause of the Constitution does not
require the universal application of the laws to all persons or things without distinction; what it requires
is simply equality among equals as determined according to a valid classification. Hence, the Court
has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, the
classification stands as long as it bears a rational relationship to some legitimate government end.
The equal protection clause, therefore, does not preclude classification of individuals who may be
accorded different treatment under the law as long as the classification is reasonable and not
arbitrary. The mere fact that the legislative classification may result in actual inequality is not violative
of the right to equal protection, for every classification of persons or things for regulation by law
produces inequality in some degree, but the law is not thereby rendered invalid.
Same; Same; Substantial distinctions do exist between lower court judges with five (5)-year
experience and those with less than five years of experience, like the petitioner, and the classification
enshrined in the assailed policy is reasonable and relevant to its legitimate purpose.Five years of
service as a lower court judge is not the only factor that determines the selection of candidates for
RTC judge to be appointed by the President. Persons with this qualification are neither automatically
selected nor do they automatically become nominees. The applicants are chosen based on an array of
factors and are evaluated based on their individual merits. Thus, it cannot be said that the questioned
policy was arbitrary, capricious, or made without any basis. Clearly, the classification created by the
challenged policy satisfies the rational basis test. The foregoing shows that substantial distinctions do
exist between lower court judges with five-year experience and those with less than five years of
experience, like the petitioner, and the classification enshrined in the assailed policy is reasonable and
relevant to its legitimate purpose. The Court, thus, rules that the questioned policy does not infringe on
the equal protection clause as it is based on reasonable classification intended to gauge the proven
competence of the applicants. Therefore, the said policy is valid and constitutional.
Same; Due Process; Statutes; Publication; As a general rule, publication is indispensable in order that
all statutes, including administrative rules that are intended to enforce or implement existing laws,
attain binding force and effect.The assailed JBC policy requiring five years of service as judges of
first-level courts before they can qualify as applicants to second-level courts should have been
published. As a general rule, publication is indispensable in order that all statutes, including
administrative rules that are intended to enforce or implement existing laws, attain binding force and
effect. There are, however, several exceptions to the requirement of publication, such as interpretative
regulations and those merely internal in nature, which regulate only the personnel of the administrative
agency and not the public. Neither is publication required of the so-called letters of instructions issued
by administrative superiors concerning the rules or guidelines to be followed by their subordinates in
the performance of their duties.
Judicial and Bar Council; Judiciary; The petitioner has no legal right to be included in the list of
nominees for judicial vacancies since the possession of the constitutional and statutory qualifications
for appointment to the Judiciary may not be used to legally demand that ones name be included in the
list of candidates for a judicial vacancy. Ones inclusion in the shortlist is strictly within the discretion of
the Judicial and Bar Council (JBC).The JBCs failure to publish the assailed policy has not
prejudiced the petitioners private interest. At the risk of being repetitive, the petitioner has no legal
right to be included in the list of nominees for judicial vacancies since the possession of the
Page 276 of 321
Administrative Law
constitutional and statutory qualifications for appointment to the Judiciary may not be used to legally
demand that ones name be included in the list of candidates for a judicial vacancy. Ones inclusion in
the shortlist is strictly within the discretion of the JBC.
Same; The Judicial and Bar Council (JBC) has the power to determine who shall be recommended to
the judicial post. To be included in the list of applicants is a privilege as one can only be chosen under
existing criteria imposed by the JBC itself.The petitioner has not established a clear legal right to
justify the issuance of a preliminary injunction. The petitioner has merely filed an application with the
JBC for the position of RTC judge, and he has no clear legal right to be nominated for that office nor to
be selected and included in the list to be submitted to the President which is subject to the discretion of
the JBC. The JBC has the power to determine who shall be recommended to the judicial post. To be
included in the list of applicants is a privilege as one can only be chosen under existing criteria
imposed by the JBC itself. As such, prospective applicants, including the petitioner, cannot claim any
demandable right to take part in it if they fail to meet these criteria. Hence, in the absence of a clear
legal right, the issuance of an injunctive writ is not justified.
Same; The Judicial and Bar Council (JBC) issues various policies setting forth the guidelines to be
observed in the evaluation of applicants, and formulates rules and guidelines in order to ensure that
the rules are updated to respond to existing circumstances.As the constitutional body granted with
the power of searching for, screening, and selecting applicants relative to recommending appointees to
the Judiciary, the JBC has the authority to determine how best to perform such constitutional mandate.
Pursuant to this authority, the JBC issues various policies setting forth the guidelines to be observed in
the evaluation of applicants, and formulates rules and guidelines in order to ensure that the rules are
updated to respond to existing circumstances. Its discretion is freed from legislative, executive or
judicial intervention to ensure that the JBC is shielded from any outside pressure and improper
influence. Limiting qualified applicants in this case to those judges with five years of experience was an
exercise of discretion by the JBC. The potential applicants, however, should have been informed of the
requirements to the judicial positions, so that they could properly prepare for and comply with them.
Hence, unless there are good and compelling reasons to do so, the Court will refrain from interfering
with the exercise of JBCs powers, and will respect the initiative and independence inherent in the
latter.
Brion, J., Separate Concurring Opinion:
Remedial Law; Special Civil Actions; Certiorari; Grave Abuse of Discretion; View that the Judicial and
Bar Councils (JBCs) failure to publish its policy of requiring five (5) years of service to qualify for a
lower court judge position did not rise to the level of a grave abuse of discretion.The present
petition prima facie claimed the commission of grave abuse of discretion by the JBC to sufficiently
trigger the Courts expanded jurisdiction. No grave abuse however or any capricious or whimsical
exercise of judgment, as claimed, was found. But at the same time, the allegations likewise brought
into question the JBCs actions, which actions are within the power of the Court to direct under its
constitutional supervisory power over the JBC. Notably, the Court, in examining whether Villanuevas
right to due process had been violated, ruled that the JBCs failure to publish its policy of requiring five
years of service to qualify for a lower court judge position did not rise to the level of a grave abuse of
discretion. Nevertheless, the majority held that, under the circumstances, these policies should have
been published; it further directed the JBC to publish policies or guidelines that it is or will be
implementing, subject to the approval of the Court.

Page 277 of 321

Administrative Law
Constitutional Law; Judicial Review; View that the power of judicial review is part and parcel of the
Courts judicial power and is a power inherent in all courts.The Courts exercise of its traditional
jurisdiction is rooted in its power of judicial review which gives the Court the authority to strike down
acts of the legislative and/or executive, constitutional bodies or administrative agencies that are
contrary to the Constitution. The power of judicial review is part and parcel of the Courts judicial
power and is a power inherent in all courts.
Same; Same; Grave Abuse of Discretion; View that the prima facie showing of a grave abuse of
discretion takes the place of the actual case or controversy requirement in the traditional concept of
judicial review.The Rules of Court has remained static; its express terms remained confined to the
courts exercise of traditional jurisdiction over judicial or quasi-judicial acts. Yet the Court
unhesitatingly used the remedies of certiorari and prohibition to enforce its power and to undertake
its duty to determine grave abuse of discretion on the part of the government. Thereby, the Court
effectively relaxed the rules on certiorari, notably by allowing its use in the review of acts of
government that are neither judicial nor quasi-judicial. It is in this latter sense that the majority
in Jardelezaand in the present case allowed the use of certiorari to determine whether there had been
grave abuse of discretion on the part of the JBC. As I emphasized in my Concurring and Dissenting
Opinion in Araullo v. Aquino III, 728 SCRA 1 (2014), a prima facie showing of grave abuse of
discretion is both sufficient and necessary to trigger the Courts expanded jurisdiction, in the same way
that an actual case or controversy is necessary to invoke the Courts traditional power of judicial
review. In cases that successfully invoked the Courts expanded jurisdiction, the transcendental
importance of the public issue presented by the petition likewise relaxed the standing requirement
(such that a Filipino citizen, by virtue of his citizenship, possesses the standing to question a
governmental act). The prima facie showing of a grave abuse of discretion, on the other hand,
takes the place of the actual case or controversy requirement in the traditional concept of
judicial review.
Administrative Supervision; View that administrative supervision involves overseeing the operations of
agencies to ensure that they are managed effectively, efficiently and economically, but without
interference with day-to-day activities.Administrative supervision involves overseeing the operations
of agencies to ensure that they are managed effectively, efficiently and economically, but without
interference with day-to-day activities. In contrast, general supervision involves ensuring that the
agency supervised follows their functions, directing them to redo their actions should these be contrary
to law.
Same; View that when a law grants a government agency supervision over another agency, it
automatically includes administrative supervision.Otherwise stated, when a law grants a government
agency supervision over another agency, it automatically includes administrative supervision. Thus, if
an agency merely exercises administrative authority over another, this should be specified in the law
granting it. Additionally, the Court, has, in the past, exercised its general supervision over the JBC.
In In Re: Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta (Valenzuela), 298 SCRA 408 (1998), for instance, the Court En Banc motu proprio decided to
resolve the issue of whether the election ban applies to the Judiciary in lieu of the constitutional
questions raised by the JBCs attempts to continue its deliberations in order to transmit a list of
nominees to the President despite the ban. In a Resolution ordering the interested parties (none of
whom raised a petition before the Court) to submit a comment regarding the matter, the Court En

Page 278 of 321

Administrative Law
Banc instructed the JBC to defer any action over the appointments pending the Courts resolution of
the election ban issue.
LEONEN, J., Concurring Opinion:
Judicial and Bar Council; View that a writ of mandamus, certiorari, or prohibition cannot be issued
against the Judicial and Bar Council (JBC) or can it be the subject of a petition for declaratory relief
absent a clear and convincing case of grave abuse of discretion.A writ of mandamus, certiorari, or
prohibition cannot be issued against the Judicial and Bar Council or can it be the subject of a petition
for declaratory relief absent a clear and convincing case of grave abuse of discretion. Under Rule 65,
Section 3 of the Rules of Civil Procedure, a petition for mandamusmay be availed to compel the
performance of a duty, or to compel the inclusion of a person in the use and enjoyment of a right or
office to which he or she is entitled.
Remedial Law; Special Civil Actions; Mandamus; View that the remedy of mandamus requires the
performance of a ministerial duty.In particular, the remedy of mandamus requires the performance of
a ministerial duty: Generally, the writ of mandamuslies to require the execution of a ministerial duty. A
ministerial duty is one that requires neither the exercise of official discretion nor judgment. It connotes
an act in which nothing is left to the discretion of the person executing it. It is a simple, definite duty
arising under conditions admitted or proved to exist and imposed by law. Mandamus is available to
compel action, when refused, on matters involving discretion, but not to direct the exercise of judgment
or discretion one way or the other.
Same; Same; Same; View that the determination by the Judicial and Bar Council (JBC) of the
qualifications and fitness of applicants for positions in the judiciary is not a ministerial duty.It can be
inferred from his prayer that petitioner seeks to compel the Judicial and Bar Council to include him in
the list of applicants for the vacant positions in the Regional Trial Courts. In my dissenting opinion
in Jardeleza v. Judicial and Bar Council, 733 SCRA 279 (2014): [t]he determination by the Judicial and
Bar Council of the qualifications and fitness of applicants for positions in the judiciary is not a
ministerial duty. It is constitutionally part of its discretion. Mandamus cannot compel the amendment of
any list already transmitted, and it cannot be made available to compel the Council to transmit a name
not in the original list.
Same; Same; Certiorari; Prohibition; View that a writ of certiorari or prohibition cannot also be issued
against the Judicial and Bar Council (JBC) as the remedy of certiorari can only be used against a
tribunal, board, or officer exercising judicial or quasi-judicial functions while the remedy of prohibition
can only be used against any tribunal, corporation, board, officer, or person exercising judicial, quasi-
judicial, or ministerial functions.A writ of certiorari or prohibition cannot also be issued against the
Judicial and Bar Council as the remedy of certiorari can only be used against a tribunal, board, or
officer exercising judicial or quasi-judicial functions while the remedy of prohibition can only be used
against any tribunal, corporation, board, officer, or person exercising judicial, quasi-judicial, or
ministerial functions.
Judicial and Bar Council; View that the functions of the Judicial and Bar Council (JBC) are neither
judicial nor quasi-judicial in nature; The exercise by the JBC of its constitutional duty is also not a
ministerial act by which it may be restrained from performing.The functions of the Judicial and Bar
Council are neither judicial nor quasi-judicial in nature. It does not perform adjudicatory functions such
that its awards, determine the rights of parties, and their decisions have the same effect as judgments

Page 279 of 321

Administrative Law
of a court. The exercise by the Judicial and Bar Council of its constitutional duty is also not a
ministerial act by which it may be restrained from performing.
Remedial Law; Special Civil Actions; Declaratory Relief; View that it is also settled that this court does
not have original jurisdiction over petitions for declaratory relief.It is also settled that this court does
not have original jurisdiction over petitions for declaratory relief. In Chavez v. Judicial and Bar Council,
676 SCRA 579 (2012), this court previously encountered a petition for declaratory relief for this court to
interpret Article VIII, Section 8(1) of the Constitution. This court, in ruling that the Regional Trial Court
has original jurisdiction over a petition for declaratory relief, stated the following: The Constitution as
the subject matter, and the validity and construction of Section 8(1), Article VIII as the issue raised, the
petition should properly be considered as that which would result in the adjudication of rights sans the
execution process because the only relief to be granted is the very declaration of the rights under the
document sought to be construed. It being so, the original jurisdiction over the petition lies with the
appropriate Regional Trial Court (RTC). Notwithstanding the fact that only questions of law are raised
in the petition, an action for declaratory relief is not among those within the original jurisdiction of this
Court as provided in Section 5, Article VIII of the Constitution.
Same; Same; Certiorari; Judicial Review; View that the only exception to the use of Rule 65 is when
this courts power of judicial review due to a constitutional violation is raised.The only exception to
the use of Rule 65 is when this courts power of judicial review due to a constitutional violation is
raised. While expansive, the exercise of this power is subject to limitations: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act
must have standing to challenge; he must have a personal and substantial interest in the case, such
that he has sustained or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality
must be the very lis mota of the case.
Judicial and Bar Council; Judges; View that the five (5)-year requirement imposed by the Judicial and
Bar Council (JBC) for first-level court judges before they can be considered for another tier is
reasonable.The five-year requirement imposed by the Judicial and Bar Council for first-level court
judges before they can be considered for another tier is reasonable. This same requirement cannot be
imposed on applicants from the public service, private practice, or the academe simply because they
are not from a judicial service. This does not mean, however, that there is no requirement or any
consideration made by the Judicial and Bar Council that is equivalent or more stringent. We cannot
assume that a constitutional body tasked to determine the fitness, competence, integrity, and
independence of those that seek to serve in our branch of government will be less dedicated to its task
when screening these applicants.
SPECIAL CIVIL ACTION in the Supreme Court. Prohibition, Mandamus and Certiorari.
The facts are stated in the opinion of the Court.

REYES, J.:

Page 280 of 321

Administrative Law
Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to this Court via a Petition for
Prohibition, Mandamus, and Certiorari, and Declaratory Relief1 under Rules 65 and 63 of the Rules of
Court, respectively, with prayer for the issuance of a temporary restraining order and/or writ of
preliminary injunction, to assail the policy of the Judicial and Bar Council (JBC), requiring five years of
service as judges of first-level courts before they can qualify as applicant to second-level courts, on the
ground that it is unconstitutional, and was issued with grave abuse of discretion.

The Facts

The petitioner was appointed on September 18, 2012 as the Presiding Judge of the Municipal Circuit
Trial Court, Compostela-New Bataan, Poblacion, Compostela Valley Province, Region XI, which is a
first-level court. On September 27, 2013, he applied for the vacant position of Presiding Judge in the
following Regional Trial Courts (RTCs): Branch 31, Tagum City; Branch 13, Davao City; and Branch 6,
Prosperidad, Agusan Del Sur.
In a letter2 dated December 18, 2013, JBCs Office of Recruitment, Selection and Nomination,
informed the petitioner that he was not included in the list of candidates for the said stations. On the
same date, the petitioner sent a letter, through electronic mail, seeking reconsideration of his
noninclusion in the list of considered applicants and protesting the inclusion of applicants who did not
pass the prejudicature examination.
The petitioner was informed by the JBC Executive Officer, through a letter 3 dated February 3, 2014,
that his protest and reconsideration was duly noted by the JBC En Banc. However, its decision not to
include his name in the list of applicants was upheld due to the JBCs long-standing policy of opening
the chance for promotion to second-level courts to, among others, incumbent judges who have served
in their current position for at least five years, and since the petitioner has been a judge only for more
than a year, he was excluded from the list. This caused the petitioner to take recourse to this Court.
In his petition, he argued that: (1) the Constitution already prescribed the qualifications of an RTC
judge, and the JBC could add no more; (2) the JBCs five-year requirement violates the equal
protection and due process clauses of the Constitution; and (3) the JBCs five-year requirement
violates the constitutional provision on Social Justice and Human Rights for Equal Opportunity of
Employment. The petitioner also asserted that the requirement of the Prejudicature Program mandated
by Section 104 of Republic Act (R.A.) No. 85575
should not be merely directory and should be fully implemented. He further alleged that he has all the
qualifications for the position prescribed by the Constitution and by Congress, since he has already
complied with the requirement of 10 years of practice of law.
In compliance with the Courts Resolution6 dated April 22, 2014, the JBC7 and the Office of the
Solicitor General (OSG)8 separately submitted their Comments. Summing up the arguments of the
JBC and the OSG, they essentially stated that the petition is procedurally infirm and that the assailed
policy does not violate the equal protection and due process clauses. They posited that: (1) the writ
of certiorariand prohibition cannot issue to prevent the JBC from performing its principal function under
the Constitution to recommend appointees to the Judiciary because the JBC is not a tribunal
exercising judicial or quasi-judicial function; (2) the remedy of mandamus and declaratory relief will not
Page 281 of 321
Administrative Law
lie because the petitioner has no clear legal right that needs to be protected; (3) the equal protection
clause is not violated because the classification of lower court judges who have served at least five
years and those who have served less than five years is valid as it is performance and experience
based; and (4) there is no violation of due process as the policy is merely internal in nature.

The Issue
The crux of this petition is whether or not the policy of JBC requiring five years of service as judges of
first-level courts before they can qualify as applicant to second-level courts is constitutional.
Ruling of the Court

Procedural Issues
Before resolving the substantive issues, the Court considers it necessary to first determine whether or
not the action for certiorari, prohibition and mandamus, and declaratory relief commenced by the
petitioner was proper.
One. The remedies of certiorari and prohibition are tenable. The present Rules of Court uses two
special civil actions for determining and correcting grave abuse of discretion amounting to lack or
excess of jurisdiction. These are the special civil actions for certiorari and prohibition, and both are
governed by Rule 65.9 As discussed in the case of Maria Carolina P. Araullo, etc., et al. v. Benigno
Simeon C. Aquino III, etc., et al.,10 this Court explained that:
With respect to the Court, however, the remedies of certiorariand prohibition are necessarily broader in
scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction
committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if
the latter does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly
authorized by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and
to review and/or prohibit or nullify the acts of legislative and executive officials.11 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a tribunal, board, or officer
exercising judicial or quasi-judicial functions. In the process of selecting and screening applicants, the
JBC neither acted in any judicial or quasi-judicial capacity nor assumed unto itself any performance of
judicial or quasi-judicial prerogative. However, since the formulation of guidelines and criteria, including
the policy that the petitioner now assails, is necessary and incidental to the exercise of the JBCs
constitutional mandate, a determination must be made on whether the JBC has acted with grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing and enforcing the said policy.
Besides, the Court can appropriately take cognizance of this case by virtue of the Courts power of
supervision over the JBC. Jurisprudence provides that the power of supervision is the power of
oversight, or the authority to see that subordinate officers perform their duties. It ensures that the laws
and the rules governing the conduct of a government entity are observed and complied with.
Page 282 of 321
Administrative Law
Supervising officials see to it that rules are followed, but they themselves do not lay down such rules,
nor do they have the discretion to modify or replace them. If the rules are not observed, they may order
the work done or redone, but only to conform to such rules. They may not prescribe their own manner
of execution of the act. They have no discretion on this matter except to see to it that the rules are
followed.12
Following this definition, the supervisory authority of the Court over the JBC is to see to it that the JBC
complies with its own rules and procedures. Thus, when the policies of the JBC are being attacked,
then the Court, through its supervisory authority over the JBC, has the duty to inquire about the matter
and ensure that the JBC complies with its own rules.
Two. The remedy of mandamus cannot be availed of by the petitioner in assailing JBCs policy. The
petitioner insisted that mandamus is proper because his right was violated when he was not included
in the list of candidates for the RTC courts he applied for. He said that his noninclusion in the list of
candidates for these stations has caused him direct injury.
It is essential to the issuance of a writ of mandamus that the applicant should have a clear legal right to
the thing demanded and it must be the imperative duty of the respondent to perform the act
required.13 The petitioner bears the burden to show that there is such a clear legal right to the
performance of the act, and a corresponding compelling duty on the part of the respondent to perform
the act. The remedy of mandamus, as an extraordinary writ, lies only to compel an officer to perform a
ministerial duty, not a discretionary one.14 Clearly, the use of discretion and the performance of a
ministerial act are mutually exclusive.
The writ of mandamus does not issue to control or review the exercise of discretion or to compel a
course of conduct, which, it quickly seems to us, was what the petitioner would have the JBC do in his
favor. The function of the JBC to select and recommend nominees for vacant judicial positions is
discretionary, not ministerial. More so, the petitioner cannot claim any legal right to be included in the
list of nominees for judicial vacancies. Possession of the constitutional and statutory qualifications for
appointment to the judiciary may not be used to legally demand that ones name be included in the list
of candidates for a judicial vacancy. Ones inclusion in the list of the candidates depends on the
discretion of the JBC, thus:
The fact that an individual possesses the constitutional and statutory qualifications for appointment to
the Judiciary does not create an entitlement or expectation that his or her name be included in the list
of candidates for a judicial vacancy. By submitting an application or accepting a recommendation, one
submits to the authority of the JBC to subject the former to the search, screening, and selection
process, and to use its discretion in deciding whether or not one should be included in the list. Indeed,
assuming that if one has the legal right to be included in the list of candidates simply because he or
she possesses the constitutional and statutory qualifications, then the application process would then
be reduced to a mere mechanical function of the JBC; and the search, screening, and selection
process would not only be unnecessary, but also improper. However, this is clearly not the
constitutional intent. Ones inclusion in the list of candidates is subject to the discretion of the
JBC over the selection of nominees for a particular judicial post. Such candidates inclusion is
not, therefore, a legally demandable right, but simply a privilege the conferment of which is subject to
the JBCs sound discretion.

Page 283 of 321

Administrative Law
Moreover, petitioner is essentially seeking a promotional appointment, that is, a promotion from a first-
level court to a second-level court. There is no law, however, that grants him the right to a
promotion to second-level courts.15 (Emphasis in the original)

Clearly, to be included as an applicant to second-level judge is not properly compellable

by mandamus inasmuch as it involves the exercise of sound discretion by the JBC.
Three. The petition for declaratory relief is improper. An action for declaratory relief should be filed by
a person interested under a deed, a will, a contract or other written instrument, and whose rights are
affected by a statute, an executive order, a regulation or an ordinance. The relief sought under this
remedy includes the interpretation and determination of the validity of the written instrument and the
judicial declaration of the parties rights or duties thereunder.16[T]he purpose of the action is to secure
an authoritative statement of the rights and obligations of the parties under a statute, deed,
contract, etc., for their guidance in its enforcement or compliance and not to settle issues arising from
its alleged breach.17
In this case, the petition for declaratory relief did not involve an unsound policy. Rather, the petition
specifically sought a judicial declaration that the petitioner has the right to be included in the list of
applicants although he failed to meet JBCs five-year requirement policy. Again, the Court reiterates
that no person possesses a legal right under the Constitution to be included in the list of nominees for
vacant judicial positions. The opportunity of appointment to judicial office is a mere privilege, and not a
judicially enforceable right that may be properly claimed by any person. The inclusion in the list of
candidates, which is one of the incidents of such appointment, is not a right either. Thus, the petitioner
cannot claim any right that could have been affected by the assailed policy.
Furthermore, the instant petition must necessarily fail because this Court does not have original
jurisdiction over a petition for declaratory relief even if only questions of law are involved. 18 The special
civil action of declaratory relief falls under the exclusive jurisdiction of the appropriate RTC pursuant to
Section 1919 of Batas Pambansa Blg. 129, as amended by R.A. No. 7691.20
Therefore, by virtue of the Courts supervisory duty over the JBC and in the exercise of its expanded
judicial power, the Court assumes jurisdiction over the present petition. But in any event, even if the
Court will set aside procedural infirmities, the instant petition should still be dismissed.

Substantive Issues

As an offspring of the 1987 Constitution, the JBC is mandated to recommend appointees to the
judiciary and only those nominated by the JBC in a list officially transmitted to the President may be
appointed by the latter as justice or judge in the judiciary. Thus, the JBC is burdened with a great
responsibility that is imbued with public interest as it determines the men and women who will sit on
the judicial bench. While the 1987 Constitution has provided the qualifications of members of the
judiciary, this does not preclude the JBC from having its own set of rules and procedures and providing
policies to effectively ensure its mandate.

Page 284 of 321

Administrative Law
The functions of searching, screening, and selecting are necessary and incidental to the JBCs
principal function of choosing and recommending nominees for vacancies in the judiciary for
appointment by the President. However, the Constitution did not lay down in precise terms the process
that the JBC shall follow in determining applicants qualifications. In carrying out its main function, the
JBC has the authority to set the standards/criteria in choosing its nominees for every vacancy in the
judiciary, subject only to the minimum qualifications required by the Constitution and law for every
position. The search for these long held qualities necessarily requires a degree of flexibility in order to
determine who is most fit among the applicants. Thus, the JBC has sufficient but not unbridled license
to act in performing its duties.
JBCs ultimate goal is to recommend nominees and not simply to fill up judicial vacancies in order to
promote an effective and efficient administration of justice. Given this pragmatic situation, the JBC had
to establish a set of uniform criteria in order to ascertain whether an applicant meets the minimum
constitutional qualifications and possesses the qualities expected of him and his office. Thus, the
adoption of the five-year requirement policy applied by JBC to the petitioners case is necessary and
incidental to the function conferred by the Constitution to the JBC.

Equal Protection

There is no question that JBC employs standards to have a rational basis to screen applicants who
cannot be all accommodated and appointed to a vacancy in the judiciary, to determine who is best
qualified among the applicants, and not to discriminate against any particular individual or class.
The equal protection clause of the Constitution does not require the universal application of the laws to
all persons or things without distinction; what it requires is simply equality among equals as determined
according to a valid classification. Hence, the Court has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, the classification stands as long as it bears a rational
relationship to some legitimate government end.21
The equal protection clause, therefore, does not preclude classification of individuals who may be
accorded different treatment under the law as long as the classification is reasonable and not
arbitrary.22 The mere fact that the legislative classification may result in actual inequality is not
violative of the right to equal protection, for every classification of persons or things for regulation by
law produces inequality in some degree, but the law is not thereby rendered invalid. 23
That is the situation here. In issuing the assailed policy, the JBC merely exercised its discretion in
accordance with the constitutional requirement and its rules that a member of the Judiciary must be of
proven competence, integrity, probity and independence. 24 To ensure the fulfillment of these
standards in every member of the Judiciary, the JBC has been tasked to screen aspiring judges and
justices, among others, making certain that the nominees submitted to the President are all qualified
and suitably best for appointment. In this way, the appointing process itself is shielded from the
possibility of extending judicial appointment to the undeserving and mediocre and, more importantly, to
the ineligible or disqualified.25
Consideration of experience by JBC as one factor in choosing recommended appointees does not
constitute a violation of the equal protection clause. The JBC does not discriminate when it employs
Page 285 of 321
Administrative Law
number of years of service to screen and differentiate applicants from the competition. The number of
years of service provides a relevant basis to determine proven competence which may be measured
by experience, among other factors. The difference in treatment between lower court judges who have
served at least five years and those who have served less than five years, on the other hand, was
rationalized by JBC as follows:
Formulating policies which streamline the selection process falls squarely under the purview of the
JBC. No other constitutional body is bestowed with the mandate and competency to set criteria for
applicants that refer to the more general categories of probity, integrity and independence.
The assailed criterion or consideration for promotion to a second-level court, which is five years
experience as judge of a first-level court, is a direct adherence to the qualities prescribed by the
Constitution. Placing a premium on many years of judicial experience, the JBC is merely applying one
of the stringent constitutional standards requiring that a member of the judiciary be of proven
competence. In determining competence, the JBC considers, among other
qualifications, experience and performance.
Based on the JBCs collective judgment, those who have been judges of first-level courts for five (5)
years are better qualified for promotion to second-level courts. It deems length of experience as a
judge as indicative of conversance with the law and court procedure. Five years is considered as a
sufficient span of time for one to acquire professional skills for the next level court, declog the dockets,
put in place improved procedures and an efficient case management system, adjust to the work
environment, and gain extensive experience in the judicial process.
A five-year stint in the Judiciary can also provide evidence of the integrity, probity,
and independence of judges seeking promotion. To merit JBCs nomination for their promotion, they
must have had a record of, and reputation for, honesty, integrity, incorruptibility, irreproachable
conduct, and fidelity to sound moral and ethical standards. Likewise, their decisions must be reflective
of the soundness of their judgment, courage, rectitude, cold neutrality and strength of character.
Hence, for the purpose of determining whether judges are worthy of promotion to the next level court, it
would be premature or difficult to assess their merit if they have had less than one year of service on
the bench.26 (Citations omitted and emphasis in the original)

At any rate, five years of service as a lower court judge is not the only factor that determines the
selection of candidates for RTC judge to be appointed by the President. Persons with this qualification
are neither automatically selected nor do they automatically become nominees. The applicants are
chosen based on an array of factors and are evaluated based on their individual merits. Thus, it cannot
be said that the questioned policy was arbitrary, capricious, or made without any basis.
Clearly, the classification created by the challenged policy satisfies the rational basis test. The
foregoing shows that substantial distinctions do exist between lower court judges with five-year
experience and those with less than five years of experience, like the petitioner, and the classification
enshrined in the assailed policy is reasonable and relevant to its legitimate purpose. The Court, thus,
rules that the questioned policy does not infringe on the equal protection clause as it is based on
reasonable classification intended to gauge the proven competence of the applicants. Therefore, the
said policy is valid and constitutional.

Page 286 of 321

Administrative Law
Due Process
The petitioner averred that the assailed policy violates procedural due process for lack of publication
and non-submission to the University of the Philippines Law Center Office of the National
Administrative Register (ONAR). The petitioner said that the assailed policy will affect all applying
judges, thus, the said policy should have been published.
Contrary to the petitioners contention, the assailed JBC policy need not be filed in the ONAR because
the publication requirement in the ONAR is confined to issuances of administrative agencies under the
Executive branch of the government.27 Since the JBC is a body under the supervision of the Supreme
Court,28 it is not covered by the publication requirements of the Administrative Code.
Nevertheless, the assailed JBC policy requiring five years of service as judges of first-level courts
before they can qualify as applicants to second-level courts should have been published. As a general
rule, publication is indispensable in order that all statutes, including administrative rules that are
intended to enforce or implement existing laws, attain binding force and effect. There are, however,
several exceptions to the requirement of publication, such as interpretative regulations and those
merely internal in nature, which regulate only the personnel of the administrative agency and not the
public. Neither is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties.29
Here, the assailed JBC policy does not fall within the administrative rules and regulations exempted
from the publication requirement. The assailed policy involves a qualification standard by which the
JBC shall determine proven competence of an applicant. It is not an internal regulation, because if it
were, it would regulate and affect only the members of the JBC and their staff. Notably, the selection
process involves a call to lawyers who meet the qualifications in the Constitution and are willing to
serve in the Judiciary to apply to these vacant positions. Thus, it is but a natural consequence thereof
that potential applicants be informed of the requirements to the judicial positions, so that they would be
able to prepare for and comply with them.
The Court also noted the fact that in JBC-009, otherwise known as the Rules of the Judicial and Bar
Council, the JBC had put its criteria in writing and listed the guidelines in determining competence,
independence, integrity and probity. Section 1, paragraph 1 of Rule 9 expressly provides that
applicants for the Court of Appeals and the Sandiganbayan, should, as a general rule, have at least
five years of experience as an RTC judge, thus:
RULE 9 SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN THE COURT OF
APPEALS AND SANDIGANBAYAN
Section 1. Additional criteria for nomination to the Court of Appeals and the Sandiganbayan.In
addition to the foregoing guidelines the Council should consider the following in evaluating the merits
of applicants for a vacancy in the Court of Appeals and Sandiganbayan:
1. As a general rule, he must have at least five years of experience as a judge of Regional Trial
Court, except when he has in his favor outstanding credentials, as evidenced by, inter alia, impressive
scholastic or educational record and performance in the Bar examinations, excellent reputation for
honesty, integrity, probity and independence of mind; at least very satisfactory performance rating for

Page 287 of 321

Administrative Law
three (3) years preceding the filing of his application for nomination; and excellent potentials for
appellate judgeship.
x x x x (Emphasis ours)

The express declaration of these guidelines in JBC-009, which have been duly published on the
website of the JBC and in a newspaper of general circulation suggests that the JBC is aware that
these are not mere internal rules, but are rules implementing the Constitution that should be published.
Thus, if the JBC were so-minded to add special guidelines for determining competence of applicants
for RTC judges, then it could and should have amended its rules and published the same. This, the
JBC did not do as JBC-009 and its amendatory rule do not have special guidelines for applicants to the
RTC.
Moreover, jurisprudence has held that rules implementing a statute should be published. Thus, by
analogy, publication is also required for the five-year requirement because it seeks to implement a
constitutional provision requiring proven competence from members of the judiciary.
Nonetheless, the JBCs failure to publish the assailed policy has not prejudiced the petitioners private
interest. At the risk of being repetitive, the petitioner has no legal right to be included in the list of
nominees for judicial vacancies since the possession of the constitutional and statutory qualifications
for appointment to the Judiciary may not be used to legally demand that ones name be included in the
list of candidates for a judicial vacancy. Ones inclusion in the shortlist is strictly within the discretion of
the JBC.30
As to the issue that the JBC failed or refused to implement the completion of the prejudicature program
as a requirement for appointment or promotion in the judiciary under R.A. No. 8557, this ground of the
petition, being unsubstantiated, was unfounded. Clearly, it cannot be said that JBC unlawfully neglects
the performance of a duty enjoined by law.
Finally, the petitioner argued but failed to establish that the assailed policy violates the constitutional
provision under social justice and human rights for equal opportunity of employment. The OSG
explained:
[T]he questioned policy does not violate equality of employment opportunities. The constitutional
provision does not call for appointment to the Judiciary of all who might, for any number of reasons,
wish to apply. As with all professions, it is regulated by the State. The office of a judge is no ordinary
office. It is imbued with public interest and is central in the administration of justice x x x. Applicants
who meet the constitutional and legal qualifications must vie and withstand the competition and
rigorous screening and selection process. They must submit themselves to the selection criteria,
processes and discretion of respondent JBC, which has the constitutional mandate of screening and
selecting candidates whose names will be in the list to be submitted to the President. So long as a fair
opportunity is available for all applicants who are evaluated on the basis of their individual merits and
abilities, the questioned policy cannot be struck down as unconstitutional.31 (Citations omitted)

From the foregoing, it is apparent that the petitioner has not established a clear legal right to justify the
issuance of a preliminary injunction. The petitioner has merely filed an application with the JBC for the

Page 288 of 321

Administrative Law
position of RTC judge, and he has no clear legal right to be nominated for that office nor to be selected
and included in the list to be submitted to the President which is subject to the discretion of the JBC.
The JBC has the power to determine who shall be recommended to the judicial post. To be included in
the list of applicants is a privilege as one can only be chosen under existing criteria imposed by the
JBC itself. As such, prospective applicants, including the petitioner, cannot claim any demandable right
to take part in it if they fail to meet these criteria. Hence, in the absence of a clear legal right, the
issuance of an injunctive writ is not justified.
As the constitutional body granted with the power of searching for, screening, and selecting applicants
relative to recommending appointees to the Judiciary, the JBC has the authority to determine how best
to perform such constitutional mandate. Pursuant to this authority, the JBC issues various policies
setting forth the guidelines to be observed in the evaluation of applicants, and formulates rules and
guidelines in order to ensure that the rules are updated to respond to existing circumstances. Its
discretion is freed from legislative, executive or judicial intervention to ensure that the JBC is shielded
from any outside pressure and improper influence. Limiting qualified applicants in this case to those
judges with five years of experience was an exercise of discretion by the JBC. The potential
applicants, however, should have been informed of the requirements to the judicial positions, so that
they could properly prepare for and comply with them. Hence, unless there are good and compelling
reasons to do so, the Court will refrain from interfering with the exercise of JBCs powers, and will
respect the initiative and independence inherent in the latter.
WHEREFORE, premises considered, the petition is DISMISSED. The Court, however, DIRECTS that
the Judicial and Bar Council comply with the publication requirement of (1) the assailed policy requiring
five years of experience as judges of first-level courts before they can qualify as applicant to the
Regional Trial Court, and (2) other special guidelines that the Judicial and Bar Council is or will be
implementing.
SO ORDERED.
Carpio, Velasco, Jr., Bersamin, Del Castillo, Perez andMendoza, JJ., concur.
Sereno, CJ., No part.
Leonardo-De Castro, J., I concur and also join the Concurring Opinion of Justice Brion.
Brion, J., See: Concurring Opinion.
Peralta, J., I join the Opinion of J. Brion.
Villarama, Jr., J., On Official Leave.
Perlas-Bernabe, J., On Leave.
Leonen, J., See Separate Concurring Opinion.
Jardeleza, J., No part.

SEPARATE CONCURRING OPINION

Page 289 of 321

Administrative Law
BRION, J.:

I concur with the majoritys ruling to dismiss the petition and with the directive to the Judicial and Bar
Council (JBC). I am filing this Separate Concurring Opinion, however, to reflect my own views on the
confluence of the Courts exercise of its supervisory jurisdiction over the JBC and its expanded
jurisdiction in determining grave abuse of discretion on the part of governmental entities and agencies.
Before us is Ferdinand Villanuevas (Villanueva or petitioner) petition for certiorari, prohibition
and mandamusassailing the Judicial and Bar Council (JBC or respondent) action of excluding him from
the list of candidates for the vacancies in the following Regional Trial Courts: Branch 31, Tagum City;
Branch 13, Davao City; and Branch 6, Prosperidad, Agusan del Sur.
In taking cognizance of Villanuevas petition, the majority applied the Courts expanded jurisdiction
under Section 1, Article VIII of the Constitution and explained that the remedies of certiorari and
prohibition are both available to correct grave abuse of discretion amounting to lack or excess of
jurisdiction not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions, but also to set right, undo and restrain any act of grave abuse of discretion
amounting to lack or excess or jurisdiction by any branch or instrumentality of the Government
even if the latter does not exercise judicial, quasi-judicial or ministerial functions.1
A very recent case before this Court involving the JBC (which the ponencia cited in its earlier draft)
is Jardeleza v. Sereno,2 where the Court, for the first time since the enactment of the 1987
Constitution, nullified an action by the JBC. In so doing, the Court exercised both its expanded
jurisdiction to review acts of government agencies amounting to grave abuse of discretion, and its
supervisory jurisdiction over the JBC.
In Jardeleza, the JBCs act of selectively applying its own rules, which resulted in the violation of the
petitioner (now Justice) Francis Jardelezas due process rights, both amounted to a grave abuse of
discretion and to a cause that triggered the Courts supervisory jurisdiction over the JBC. The
JBCs grave abuse of discretion necessarily called for the Courts duty to supervise the JBC under
the circumstances of that case to make sure that it would follow its own rules.
Unlike the selective application of the JBCs own rules in Jardeleza, the JBCs assailed actions in the
present case were in accord with the policies it had long laid down. The application of this policy,
according to the Villanueva petition, violated the Constitution as it disregarded the enumeration of
qualifications of members of the judiciary under Article VIII, Section 7; violated as well his due process
and equal protection rights; and are contrary to the socio-economic provisions in Article XIII, Section 3.
A reading of Villanuevas allegations shows that he properly alleged that the JBC committed grave
abuse of discretion, but he ultimately failed to prove his claims. As the majority eventually held, the
JBC acted within its power to prescribe its own policies as part, and in the course, of determining the
constitutional qualifications required of every member of the bench. I agree with the majoritys
approach and thus maintain that it properly took cognizance of the Villanueva petition.
In acting as it did, the Court while acting pursuant to its expanded jurisdiction (by testing for grave
abuse of discretion and finding none) effectively and subsequentlyacted pursuant to its supervisory
jurisdiction over the JBC. That the Court so acted is not improper as the petition in fact also validly

Page 290 of 321

Administrative Law
invoked the Courts supervisory jurisdiction over the JBC under its allegations. Note that the
petition called for the determination of whether the JBCs policy contravened constitutional precepts.
In other words, the present petition prima facie claimed the commission of grave abuse of discretion by
the JBC to sufficiently trigger the Courts expanded jurisdiction. No grave abuse however or any
capricious or whimsical exercise of judgment, as claimed, was found. But at the same time, the
allegations likewise brought into question the JBCs actions, which actions are within the power of the
Court to direct under its constitutional supervisory power over the JBC.
Notably, the Court, in examining whether Villanuevas right to due process had been violated, ruled
that the JBCs failure to publish its policy of requiring five years of service to qualify for a lower court
judge position did not rise to the level of a grave abuse of discretion. Nevertheless, the majority held
that, under the circumstances, these policies should have been published; it further directed the JBC to
publish policies or guidelines that it is or will be implementing, subject to the approval of the Court.
I agree with the majoritys conclusion and directive, and note that the publication of the JBCs policies
is in line with its thrust to to insure transparency in its proceedings and promote stability and uniformity
in its guiding precepts and principles,3 as well as with the Constitutional policy to promote
transparency in government processes.4
Lest the thrust and full import of the Courts present ruling be lost, let me stress that the present case
gives us the opportunity to address important questions left unaddressed by the Courts recent ruling
in Jardeleza:
May the Court exercise its supervisory jurisdiction over the JBC separate from the exercise of
its expanded jurisdiction over acts of grave abuse of discretion of government agencies?
If so, what remedy is available for parties wishing to secure redress under this legal situation
and how can this remedy be availed of?
To fully address these questions, it is crucial to first fully understand the nature of certiorari before and
after the 1987 Constitution and how the Court has been using this remedy.
A. Certiorari under the 1987 Constitution

Our use of the remedy of certiorari has evolved and expanded along with the development of
constitutional litigation under the 1987 Constitution.
The Court in giving due course to (or dismissing) public interest petitions brought before it has
breathed life to the second paragraph of Section 1, Article VIII of the 1987 Constitution, an innovation
that eventually has been labeled as its expanded jurisdiction. At the same time, it continues to
adhere to the practice of judicial review embodied in the first paragraph of Section 1 or what, for clarity,
I refer to as the Courts traditional jurisdiction.
The Courts exercise of its traditional jurisdiction is rooted in its power of judicial review which gives the
Court the authority to strike down acts of the legislative and/or executive, constitutional bodies or
administrative agencies that are contrary to the Constitution. The power of judicial review is part
and parcel of the Courts judicial power and is a power inherent in all courts.5

Page 291 of 321

Administrative Law
To be successfully mounted, the petition before the Court must be embodied in an actual case, and
the following requirements must be complied with: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must have
the standing to question the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement; (3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.6
Remedies used to invoke judicial review under the Courts traditional jurisdiction include declaratory
relief, certiorari and prohibition. These remedies mirror the nature of the traditional concept of judicial
review i.e., that the declaration of the unconstitutionality of a law or act of government must be
within the context of an actual case or controversy brought before the courts. Thus, the requirements
for filing an action for declaratory relief 7 echo the requisites for an actual case or controversy, similarly
with certiorari and prohibition which historically developed as petitions to assail judicial or quasi-judicial
acts and which effectively confine these remedies to errors of jurisdiction involving adjudicatory
functions.
Note, at this point, that the enumeration of the Supreme Courts appellate jurisdiction under Section 5,
paragraph 2 of the 1987 Constitution refers to the exercise of its traditional jurisdiction. The
enumeration of what may be reviewed by the Court all refer to cases, with reference to the traditional
jurisdiction of settling actual cases or controversies under Section 1, Article VIII, viz.:
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in
relation thereto.
c. All cases in which the jurisdiction of any lower court is in issue.
d. All criminal cases in which the penalty imposed is reclusion perpetua or higher.
e. All cases in which only an error or question of law is involved. (emphases supplied)
The modes by which these cases may reach the Supreme Court for review are either through
an appeal of errors involving questions of law or questions of law and facts(via a petition for review
on certiorari), or through a petition for certiorari assailing errors of jurisdiction.
Thus, certiorari under Section 5, paragraph 2 refers to a recourse under the traditional jurisdiction of
the Supreme Court, as provided under the first paragraph of Section 1, Article VIII of the 1987
Constitution.
At the same time, the Court has recognized and acted on the basis of its expanded jurisdiction under
the second paragraph of Section 1, Article VIII of the 1987 Constitution, albeit not explicitly at first.
Thus, we have cases where the Court, recognizing its duty to determine grave abuse of discretion on
the part of governmental agencies or entities, reviewed acts that are neither judicial nor quasi-judicial
in nature. Notably, the procedural media used in invoking the Courts expanded jurisdiction have been
Page 292 of 321
Administrative Law
petitions for certiorari, or prohibition.8 This practice reflects the wording of Section 1, paragraph 2,
which does not limit the determination of grave abuse of discretion to quasi-judicial or judicial acts, but
to any act involving the exercise of discretion on the part of the government.9
A distinctive feature in these developments is the strong correlation between the Courts exercise of its
expanded jurisdiction, and its relaxation of the requirements for actual case or controversies. 10 The
Court relaxes the requirements for judicial review when the petition raises matters of transcendental
importance. That a matter is of transcendental importance tempers the standing requirement for
judicial review, which in turn, indirectly relaxes the presence of an actual case or controversy itself.
Amidst these jurisprudential developments, the Rules of Court has remained static; its express
terms remained confined to the courts exercise of traditional jurisdiction over judicial or quasi-judicial
acts. Yet the Court unhesitatingly used the remedies of certiorari and prohibition to enforce its power
and to undertake its duty to determine grave abuse of discretion on the part of the government.
Thereby, the Court effectively relaxed the rules on certiorari, notably by allowing its use in the review of
acts of government that are neither judicial nor quasi-judicial.11
It is in this latter sense that the majority in Jardeleza and in the present case allowed the use
of certiorari to determine whether there had been grave abuse of discretion on the part of the JBC. As I
emphasized in my Concurring and Dissenting Opinion in Araullo v. Aquino III,12 a prima facieshowing
of grave abuse of discretion is both sufficient and necessary to trigger the Courts expanded
jurisdiction, in the same way that an actual case or controversy is necessary to invoke the Courts
traditional power of judicial review. In cases that successfully invoked the Courts expanded
jurisdiction, the transcendental importance of the public issue presented by the petition likewise
relaxed the standing requirement (such that a Filipino citizen, by virtue of his citizenship, possesses
the standing to question a governmental act). The prima facie showing of a grave abuse of
discretion, on the other hand, takes the place of the actual case or controversy requirement in
the traditional concept of judicial review.
The present petition, as earlier mentioned, successfully alleged the commission of grave abuse of
discretion, but the allegation, on deeper consideration, was not grave nor serious enough to trigger the
Courts expanded jurisdiction. Unlike in Jardeleza where the JBC violated its own rules thereby gravely
abusing its discretion, the JBCs action in the present petition was actually in accordance with its
policy, which policy is within its power to formulate. That this policy later turns out not to be a grave
abuse of discretion translates to the petitioners failure to prove that he is entitled to redress under the
Courts expanded jurisdiction. This legal conclusion, however, does not render the JBC fully
immune to the Court scrutiny as the claimed transgression may also open or trigger a parallel
and separate constitutionally granted Court action the Courts supervisory jurisdiction over
the JBC.

B. Supervisory jurisdiction over the JBC

Article VIII, Section 8(1) and (5) provide that A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court It may exercise such other functions and duties as the Supreme
Court may assign to it.

Page 293 of 321

Administrative Law
Supervision, as a legal concept, has been defined as the power of oversight, or the authority to see
that subordinate officers perform their duties.13 The Constitutions use of the concept of supervision
carries various significations that should not be missed.
First, the JBC is a body subordinate to the Supreme Court although the Chief Justice who is primus
inter pareswithin the Court also heads the JBC as its ex officio Chair.
Second, the Courts power of supervision over the JBC gives the Court the power to ensure that the
law or the rules governing the conduct of the JBC are followed.
And third, the Court as the supervising entity merely sees to it that the rules are followed, but it does
not, by itself, lay down these rules, nor does it have the discretion to modify or replace them. If the
rules are not observed, the Court may only order the work done or redone, but only to conform to
higher applicable rules.14
In more succinct terms, the Courts supervisory authority over the JBC involves ensuring that the
JBCs actions are in accord with the Constitution, as well as with its own rules. Thus, when there are
allegations regarding the JBCs noncompliance with the Constitution or its own rules, especially when
it comes from an applicant who is in the position to know of these infirmities, then the Court, through its
supervisory authority over the JBC, has the duty to inquire about the matter and ensure that the JBC
complies with the laws applicable to it.

B.1 The Courts supervisory jurisdiction over the JBC is general, and not limited to
administration

That the Courts supervisory authority extends beyond mere administrative supervision is beyond
question.
Administrative supervision involves overseeing the operations of agencies to ensure that they are
managed effectively, efficiently and economically, but without interference with day-to-day
activities.15 In contrast, general supervision in volves ensuring that the agency supervised follows their
functions, directing them to redo their actions should these be contrary to law.
Textually, nothing in the 1987 Constitution limits the Court to the exercise of mere administrative
powers over the JBC when called for. Section 8, Article VIII of the 1987 Constitution provides:
A Judicial and Bar Council is hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
The regular members of the Council shall be appointed by the President for a term of four years with
the consent of the Commission on Appointments. Of the Members first appointed, the representative of
the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for
two years, and the representative of the private sector for one year.
The Clerk of the Supreme Court shall be the Secretary ex officioof the Council and shall keep a record
of its proceedings.
Page 294 of 321
Administrative Law
The regular Members of the Council shall receive such emoluments as may be determined by the
Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the
Council.
The Council shall have the principal function of recommending appointees to the judiciary. It may
exercise such other functions and duties as the Supreme Court may assign to it.
Section 8, Article VIII clearly grants to the Supreme Court the power and duty of supervision over the
JBC. It does not specify nor limit the Court to administrative supervision over the JBC, but couches the
grant of power to the Court in general terms, i.e., supervision.
When the Constitution used the general term supervision over the JBC, it meant to grant the Court
general supervision, for had it meant to limit the Court to administrative supervision, or to the JBCs
administration, then it could have used these words to convey this concept. Even the Administrative
Code, which provides definitions of administrative relationships, recognizes the need for a law to
specify its intent to limit the supervising authoritys to administrative supervision, by making the
function of administration a part of supervision, viz.:
(c) Unless a different meaning is explicitly provided in the specific law governing the relationship of
particular agencies, the word supervision shall encompass administrative supervision as defined in
this paragraph.16
Otherwise stated, when a law grants a government agency supervision over another agency, it
automatically includes administrative supervision. Thus, if an agency merely exercises administrative
authority over another, this should be specified in the law granting it.
Additionally, the Court, has, in the past, exercised its general supervision over the JBC. In In Re:
Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta (Valenzuela),17 for instance, the Court En Banc motu proprio decided to resolve the issue of
whether the election ban applies to the Judiciary in lieu of the constitutional questions raised by the
JBCs attempts to continue its deliberations in order to transmit a list of nominees to the President
despite the ban. In a Resolution ordering the interested parties (none of whom raised a petition before
the Court) to submit a comment regarding the matter, the Court En Banc instructed the JBC to defer
any action over the appointments pending the Courts resolution of the election ban issue.
The Courts acts in Valenzuela can hardly be described as administrative supervision. In Valenzuela,
the Court En Bancfound that the JBCs actions could violate the Constitution and thus instructed its
members to defer its deliberations and to desist from transmitting any list of nominees to the President
until the Court En Banc had resolved the constitutional question. The Court En Banc initiated the
determination of the constitutional question without any interested party filing a petition for its
resolution; from this unique perspective, the Courts action was an exercise of its power to ensure that
the JBC performed its functions in accordance with the law, i.e., its power of general supervision over
the JBC.
The Court, after considering the pleadings filed by interested parties in Valenzuela, decided to annul
appointments that violated the constitutional prohibition on the election ban. This Court action no
longer involved an exercise of its supervisory jurisdiction, but had spilled over into its expanded
jurisdiction to annul acts of grave abuse of discretion, which according to Valenzuela, violated the
Constitution. Interestingly, the Court distinguished this ruling from De Castro v. JBC18 with respect to

Page 295 of 321

Administrative Law
appointments to vacancies in the Supreme Court. The fine distinctions raised, however, do not negate
the fact that the Court exercised acts of general supervision over the JBC inValenzuela.
The distinction between the Courts exercises of its power of supervision over the JBC and its
expanded jurisdiction over all government agencies is important, lest we be accused of exceeding our
own jurisdiction and meddling with the exclusive affairs of an independent constitutional body.
To reiterate, the Court, as an aspect of its supervisory power, can direct the JBC to defer or stop its
actions and to redo them, should it be necessary to comply with the Constitution. We have, in the past,
exercised our supervisory jurisdiction when we instructed the JBC in Valenzuela to defer its
proceedings pending the resolution of a constitutional question; directed the JBC to review its rules
in Jardeleza v. Sereno;19 and now, directed the JBC to publish its own rules.
In contrast, the Court, as an aspect of its expanded jurisdiction, has annulled acts that violate the
Constitution: the Court did this when it annulled the appointments made by the President in violation of
the election ban in Valenzuela; and when it annulled the application of the Rule 10, Section 2 of the
JBC Rules to Justice Francis H. Jardeleza in Jardeleza v. Sereno.
Note at this point, that the independent character of a constitutional body does not remove it
from the Courts jurisdiction. The Commission on Elections, Commission on Audit, Commission on
Civil Service and the Office of the Ombudsman are all independent constitutional bodies and none
of them can invoke their independence as a means to avoid judicial review, more so when their
assailed acts involve grave abuse of discretion.
Additionally, the Courts general supervision over the JBC is in line with its constitutionally-bestowed
discretion to assign additional functions and duties to the JBC.
This grant of discretion empowers the Court to direct the JBC to redo its acts that are contrary to law.
To be sure, the Courts power to assign duties to the JBC as an aspect of general supervision over it
does not grant the Court the power to substitute its discretion over the JBC; the Court, in exercising its
supervisory jurisdiction over the JBC, can at most direct it to redo their actions that are contrary to the
law or to the Constitution.
Lastly, that the Court has issued A.M. No. 03-11-16-SC or A Resolution Strengthening The Role and
Capacity of the Judicial and Bar Council and Establishing the Offices Therein, which acknowledges the
Chief Justices administrative authority of the JBC, does not contradict the Courts power of general
supervision over it. First, the Constitution recognizes the Chief Justice as the JBCs ex officio chair,
implying her administrative authority over the JBC. A.M. No. 03-11-16-SC merely affirms this provision
in the Constitution. Second, the Courts administrative authority over the JBC does not rule out its
power to supervise it, and may, as illustrated in the Administrative Code, be construed as an aspect of
general supervision.

B.2 The Courts supervisory jurisdiction as applied in the present case

The current petition questions the JBCs policies for having violated the Constitution but not at the level
where these policies have been issued with grave abuse of discretion. As the majority eventually held,
these policies are in accord with the JBCs powers to determine whether applicants possess the
Page 296 of 321
Administrative Law
requirements for members of the bench. The majority, however, noted that these policies should be
published, and issued a directive to this effect.
To arrive at this conclusion, however, the Court must necessarily wear its supervisory hat to determine
whether the JBCs actions had been in accord with the Constitution and relevant laws.
In this regard, I ask: is the Court, in exercising its supervisory jurisdiction over the JBC, limited
to the examination of acts alleged to have been committed with grave abuse of discretion?
The Court is not and cannot be so limited under the terms of the 1987 Constitution.
Article VIII, Section 8 the provision for the Courts supervision over the JBC is separate and more
specific than the general grave abuse of discretion provision under Section 1, Article VIII of the 1987
Constitution. Thus, this supervisory authority, as a separate and more specific grant of power, may be
invoked and exercised separately from the Courts traditional and expanded jurisdictions.
In the present case, I believe that what we ultimately undertook, based on the conclusion we arrived
at, was an exercise of our supervisory jurisdiction over the JBC, made as a parallel power in the
course of acting pursuant to our expanded jurisdiction. From the prism of a petition for certiorari, we
yet again relaxed our rules when we allowed the use of the petition for another power of the Court; we
allowed the use of certiorari to invoke the Courts supervisory jurisdiction.
In these lights, the Court should neither be hesitant nor timid in exercising its supervisory jurisdiction
over the JBC, without encroaching on their prerogative to determine whether applicants to the judiciary
possess the characteristics that the Constitution requires of each member of the bench.
I believe, too, that this active Court role is necessary in light of the recent cases brought before us and
the issues that they presented. But the Courts approach should be made very clear, particularly when
a certiorari would be the medium used, to avoid confusing the traditional, the expanded, and the
supervisory occasions in invoking the Courts jurisdiction.
To reiterate, the Courts power of supervision over the JBC is a power granted distinctly and separately
from the Courts traditional judicial review and expanded jurisdiction powers.
Thus, the exercise of supervision does not need to be limited to instances where there is a prima
facie showing of grave abuse of discretion (as in petitions invoking the Courts expanded jurisdiction).
Neither should it be exercised only in conjunction with the Courts judicial power to settle actual cases
or controversies.
To forestall confusion in the future, the rules in this regard should be very clear, particularly on when
and howthe Courts supervisory power over the JBC may be invoked. Because the Courts power is
independently granted, recourse to the Court based on its duty to supervise should not be confined to
highly exceptional circumstances of grave abuse of discretion or as an adjunct of adjudication.
Note, too, that we exercised our power of supervision over the JBC when the Courts majority
in Jardelezarecommended that a review of its rules be made in light of the due process rights
violations in that case. This was a review of the JBCs quasi-legislative power and was a distinct act of
supervision separate from the exercise of our expanded jurisdiction to nullify the grave abuse of
discretion the JBC committed when it applied the unanimity rule against Jardeleza.

Page 297 of 321

Administrative Law
As a final point, the recent cases involving the JBC has shown us that its exercise of discretion is not
infallible, and that it can commit errors that violate the Constitution, or even its own rules. These
abuses, no matter how well-intentioned, should not be left unchecked, and the Court, as the body
tasked with supervisory authority over the JBC, should open up and clarify the avenues by which these
JBC errors may be remedied. The power to take part in the Presidents power to appoint judicial
officers is too important to be hindered by mere technicalities and should be closely safeguarded.
CONCURRING OPINION

LEONEN, J.:

I concur in the dismissal of the Petition.

The Petition should be dismissed as it is procedurally infirm and fails to establish petitioners right to be
nominated to a judicial post.

A writ of mandamus, certiorari, or prohibition cannot be issued against the Judicial and Bar Council or
can it be the subject of a petition for declaratory relief absent a clear and convincing case of grave
abuse of discretion.
Under Rule 65, Section 3 of the Rules of Civil Procedure, a petition for mandamus may be availed to
compel the performance of a duty, or to compel the inclusion of a person in the use and enjoyment of a
right or office to which he or she is entitled. The provision states:
SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the respondent, immediately or at
some other time to be specified by the court, to do the act required to be done to protect the rights of
the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.

In particular, the remedy of mandamus requires the performance of a ministerial duty:

Generally, the writ of mandamus lies to require the execution of a ministerial duty. A ministerial duty is
one that requires neither the exercise of official discretion nor judgment. It connotes an act in which
nothing is left to the discretion of the person executing it. It is a simple, definite duty arising under
conditions admitted or proved to exist and imposed by law. Mandamus is available to compel action,

Page 298 of 321

Administrative Law
when refused, on matters involving discretion, but not to direct the exercise of judgment or discretion
one way or the other.1 (Citations omitted)

Although petitioner filed, among others, a petition for mandamus, his prayer does not seek the
performance by the Judicial and Bar Council of a specific ministerial act. In particular, he prays that:
[p]ending resolution of this Petition, a temporary Restraining order, and/or a writ of preliminary
injunction be issued compelling Public Respondents to refrain from disqualifying the Petitioner and all
other Judges similarly situated with the petitioner in their present or future application for second-level
courts (RTC Judges) and to include the petitioner as applicants in the above mentioned RTCs and go
through the process of selection and evaluation[.]2

It can be inferred from his prayer that petitioner seeks to compel the Judicial and Bar Council to
include him in the list of applicants for the vacant positions in the Regional Trial Courts. In my
dissenting opinion in Jardeleza v. Sereno:3
[t]he determination by the Judicial and Bar Council of the qualifications and fitness of applicants for
positions in the judiciary is not a ministerial duty. It is constitutionally part of its discretion. Mandamus
cannot compel the amendment of any list already transmitted, and it cannot be made available to
compel the Council to transmit a name not in the original list.
De Castro v. Judicial and Bar Council clarifies a unique instance when mandamus lies against the
Council. This is with respect only to the constitutional duty to allow the President the mandatory 90
days to make an appointment. Thus:
The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90-day
period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be
submitted to the President lies within the discretion of the JBC. The object of the petitions
for mandamus herein should only refer to the duty to submit to the President the list of nominees for
every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be
an unjustified delay in performing that duty. For mandamus to lie against the JBC, therefore, there
should be an unexplained delay on its part in recommending nominees to the Judiciary, that is, in
submitting the list to the President.4 (Emphasis supplied)

A writ of certiorari or prohibition cannot also be issued against the Judicial and Bar Council as the
remedy of certiorari can only be used against a tribunal, board, or officer exercising judicial or quasi-
judicial functions while the remedy of prohibition can only be used against any tribunal, corporation,
board, officer, or person exercising judicial, quasi-judicial, or ministerial functions.
Rule 65, Section 1 and Section 2 of the Rules of Civil Procedure state:
SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of its or his jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a
Page 299 of 321
Administrative Law
verified petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.
....
SECTION 2. Petition for prohibition.When the proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of its or
his jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered commanding the respondent to desist from
further proceedings in the action or matter specified therein, or otherwise granting such incidental
reliefs as law and justice may require. (Emphasis supplied)

The ponencia correctly stated that [i]n the process of selecting and screening applicants, the [Judicial
and Bar Council] neither acted in any judicial or quasi-judicial capacity nor assumed unto itself any
performance of judicial or quasi-judicial prerogative.5
The functions of the Judicial and Bar Council are neither judicial nor quasi-judicial in nature. It does not
perform adjudicatory functions such that its awards, determine the rights of parties, and their
decisions have the same effect as judgments of a court.6 The exercise by the Judicial and Bar Council
of its constitutional duty is also not a ministerial act by which it may be restrained from performing.
The relief sought by petitioner cannot also be the subject of an action for declaratory relief. Under Rule
63, Section 1 of the Rules of Civil Procedure, a petition for declaratory relief may be filed before the
Regional Trial Court by one whose rights are affected by a statute, executive order or regulation,
ordinance, or any other governmental regulation[.]
The ponencia correctly stated that no person possess[es] a legal right under the Constitution to be
included in the list of nominees for vacant judicial positions. 7 The Constitution does not grant to any
person the right to be nominated when he or she qualifies. The Judicial and Bar Council is given by the
Constitution the full discretion on the selection and qualification of the nominees for judicial office.
There are no rights adjudicated in the Judicial and Bar Councils selection process.
It is also settled that this court does not have original jurisdiction over petitions for declaratory relief.
In Chavez v. Judicial and Bar Council,8 this court previously encountered a petition for declaratory
relief for this court to interpret Article VIII, Section 8(1) of the Constitution. This court, in ruling that the
Regional Trial Court has original jurisdiction over a petition for declaratory relief, stated the following:
The Constitution as the subject matter, and the validity and construction of Section 8(1), Article VIII as
the issue raised, the petition should properly be considered as that which would result in the
adjudication of rights sans the execution process because the only relief to be granted is the very
declaration of the rights under the document sought to be construed. It being so, the original
jurisdiction over the petition lies with the appropriate Regional Trial Court (RTC). Notwithstanding the
fact that only questions of law are raised in the petition, an action for declaratory relief is not among
those within the original jurisdiction of this Court as provided in Section 5, Article VIII of the
Constitution.9 (Emphasis supplied)
Page 300 of 321
Administrative Law

II

The only exception to the use of Rule 65 is when this courts power of judicial review due to a
constitutional violation is raised. While expansive, the exercise of this power is subject to limitations:
(1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have standing to challenge; he must have a personal and substantial
interest in the case, such that he has sustained or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity;
and (4) the issue of constitutionality must be the very lis mota of the case.10
In Prof. David v. President Macapagal-Arroyo:11
[a]n actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of
judicial resolution. It is definite and concrete, touching the legal relations of parties having adverse
legal interest; a real and substantial controversy admitting of specific relief.12

Petitioner has no legally vested right to a nomination in an application before the Judicial and Bar
Council. The relief he requests cannot be granted since there is nothing in the Constitution that gives
this court the power to order the Judicial and Bar Council to nominate him. There is no actual case or
controversy that merits this courts power of review.

III

The zeal that characterizes the vigilance of petitioner to protect his constitutional right against unequal
protection of the laws is commendable but unfortunately misplaced.
The five-year requirement imposed by the Judicial and Bar Council for first-level court judges before
they can be considered for another tier is reasonable. This same requirement cannot be imposed on
applicants from the public service, private practice, or the academe simply because they are not from a
judicial service. This does not mean, however, that there is no requirement or any consideration made
by the Judicial and Bar Council that is equivalent or more stringent. We cannot assume that a
constitutional body tasked to determine the fitness, competence, integrity, and independence of those
that seek to serve in our branch of government will be less dedicated to its task when screening these
applicants.
At the very least, petitioner has not shown clearly and convincingly that the burden that he imagines he
bears has no equivalent to other applicants who are not similarly situated. Certainly, any petitioner who
raises the constitutionality of an act of a constitutional organ tasked to discharge its duties bears the
burden of showing that his claims are fully grounded.
ACCORDINGLY, I vote to DENY the Petition.
Petition dismissed.
Page 301 of 321
Administrative Law
Notes.A requirement under Rule 63 is that the petition for declaratory relief must be filed before any
breach or violation the questioned document may cause; It is familiar and fundamental doctrine that a
writ of prohibition or mandamus may issue when a board unlawfully excludes another from enjoyment
of a right or office to which such other is entitled. (National Electrification Administration vs. Gonzaga,
539 SCRA 388 [2007])
Doubtless, the Framers of our Constitution intended to create a Judicial and Bar Council (JBC) as an
innovative solution in response to the public clamor in favor of eliminating politics in the appointment of
members of the Judiciary. (Chavez vs. Judicial and Bar Council, 676 SCRA579 [2012])

o0o

Page 302 of 321

Administrative Law
Case 14
G.R. No. 199139. September 9, 2014.*
ELSIE S. CAUSING, petitioner, vs. COMMISSION ON ELECTIONS and HERNAN D. BIRON, SR.,
respondents.
Remedial Law; Special Civil Actions; Certiorari; The Rules of Court (1997) contains a separate rule
(Rule 64) on the review of the decisions of the Commission on Elections (COMELEC) and the
Commission on Audit (COA). Rule 64 is generally identical with certiorari under Rule 65, except as to
the period of the filing of the petition for certiorari, that is, in the former, the period is thirty (30) days
from notice of the judgment or final order or resolution sought to be reviewed but, in the latter, not later
than sixty (60) days from notice of the judgment, order or resolution assailed.Section 7, Article IX-A
of the Constitution states that unless otherwise provided by the Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Court on certiorari by the aggrieved party
within 30 days from receipt of a copy thereof. For this reason, the Rules of Court (1997) contains a
separate rule (Rule 64) on the review of the decisions of the COMELEC and the Commission on Audit.
Rule 64 is generally identical with certiorari under Rule 65, except as to the period of the filing of the
petition for certiorari, that is, in the former, the period is 30 days from notice of the judgment or final
order or resolution sought to be reviewed but, in the latter, not later than 60 days from notice of the
judgment, order or resolution assailed.
Same; Same; Same; Motion for Reconsideration; The well-established rule is that the motion for
reconsideration is an indispensable condition before an aggrieved party can resort to the special civil
action for certiorari under Rule 65 of the Rules of Court; Exceptions.The well-established rule is that
the motion for reconsideration is an indispensable condition before an aggrieved party can resort to the
special civil action for certiorariunder Rule 65 of the Rules of Court. The filing of the motion for
reconsideration before the resort to certiorari will lie is intended to afford to the public respondent the
opportunity to correct any actual or fancied error attributed to it by way of reexamination of the legal
and factual aspects of the case. The rule is not absolute, however, considering that jurisprudence has
laid down exceptions to the requirement for the filing of a petition for certiorari without first filing a
motion for reconsideration, namely: (a) where the order is a patent nullity, as where the court a
quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly
raised and passed upon by the lower court, or are the same as those raised and passed upon in the
lower court; (c) where there is an urgent necessity for the resolution of the question, and any further
delay would prejudice the interests of the Government, or of the petitioner, or the subject matter of the
petition is perishable; (d) where, under the circumstances, a motion for reconsideration would be
useless; (e) where the petitioner was deprived of due process, and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent, and the granting of such relief by
the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due
process; (h) where the proceeding was ex parte or in which the petitioner had no opportunity to object;
and (i) where the issue raised is one purely of law or public interest is involved.
Election Law; Prohibited Personnel Movement; Transfers; Detail; The only personnel movements
prohibited by Commission on Elections (COMELEC) Resolution No. 8737 were transfer and detail;
Obviously, the movement involving Causing did not equate to either a transfer or a detail within the
contemplation of the law if Mayor Biron only thereby physically transferred her office area from its old
location to the Office of the Mayor some little steps away.The only personnel movements
Page 303 of 321
Administrative Law
prohibited by COMELEC Resolution No. 8737 were transfer and detail. Transfer is defined in the
Resolution as any personnel movement from one government agency to another or from one
department, division, geographical unit or subdivision of a government agency to another with or
without the issuance of an appointment; while detail as defined in the Administrative Code of 1987 is
the movement of an employee from one agency to another without the issuance of an appointment.
Having acquired technical and legal meanings, transfer and detailmust be construed as such.
Obviously, the movement involving Causing did not equate to either a transfer or a detail within the
contemplation of the law if Mayor Biron only thereby physically transferred her office area from its old
location to the Office of the Mayor some little steps away. We cannot accept the petitioners
argument, therefore, that the phrase any transfer or detail whatsoever encompassed any and all
kinds and manner of personnel movement, including the mere change in office location.
Statutory Construction; It is a basic rule of statutory construction that penal statutes are to be liberally
construed in favor of the accused.Causings too literal understanding of transfer should not hold
sway because the provisions involved here were criminal in nature. Mayor Biron was sought to be
charged with an election offense punishable under Section 264 of the Omnibus Election Code. It is a
basic rule of statutory construction that penal statutes are to be liberally construed in favor of the
accused. Every reasonable doubt must then be resolved in favor of the accused. This means that the
courts must not bring cases within the provision of a law that are not clearly embraced by it. In short,
no act can be pronounced criminal unless it is clearly made so by statute prior to its commission
(nullum crimen, nulla poena, sine lege). So, too, no person who is not clearly within the terms of a
statute can be brought within them.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Macahilig, Causing Law Office for petitioner.
Reynold A. Perez for private respondent.
BERSAMIN, J.:
The issue is whether the relocation of the petitioner by respondent Municipal Mayor during the election
period from her office as the Local Civil Registrar to the Office of the Mayor just a few steps away
constituted a prohibited act under the Omnibus Election Code and the relevant Resolution of the
Commission on Elections.
The Case
Petitioner Elsie Causing (Causing) assails the Resolution of the Commission on Elections En
Banc (COMELEC En Banc) promulgated on September 9, 2011 dismissing her complaint-affidavit
dated June 8, 2010 docketed as E.O. Case No. 10-131 entitled Elsie S. Causing v. Hernan D. Biron,
Sr. charging Municipal Mayor Hernan D. Biron, Sr. (Mayor Biron) of Barotac Nuevo, Iloilo with violating
COMELEC Resolution No. 8737 in relation to Section 261(g), (h), and (x) of the Omnibus Election
Code.1
Antecedents
On January 1, 1993, Causing assumed office as the Municipal Civil Registrar of Barotac Nuevo, Iloilo.
On May 28, 2010, Mayor Biron issued Memorandum No. 12, Series of 2010,2 which reads:
Page 304 of 321
Administrative Law
Office Order No. 12
Series of 2010
MRS. ELSIE S. CAUSING
Municipal Civil Registrar
LGU Barotac Nuevo
Exigencies of service so requiring, you are hereby detailed at the Office of the Municipal Mayor
effective upon receipt of this Order and shall likewise receive direct orders from the undersigned as to
particular functions our office may require from time to time.
For your information and strict compliance.
xxxx
On the same date, Mayor Biron also issued Office Order No. 13 detailing Catalina V. Belonio (Belonio),
another municipal employee, to the office of the Local Civil Registrar of Barotac Nuevo, Iloilo to
assume the functions and duties as Local Civil Registrar-designate effective upon receipt of the order.
Office Order No. 13 reads:
Office Order No. 13
Series of 2010
MS. CATALINA V. BELONIO
Administrative Officer III
Office of the Municipal Mayor
Exigencies of service so requiring, you are hereby detailed at the Office of the Local Civil Registrar and
assume the functions and duties as LCR-Designate effective upon receipt of this Order.
As such, you are hereby authorized to sign and issue documents relative thereto including the claim
for travel allowance and seminar expenses.
For your information and compliance.
x x x x3
On June 1, 2010, Mayor Biron issued to Causing Memorandum No. 17, Series of 2010, and
Memorandum No. 17-A, Series of 2010, respectively reading as follows:
Memorandum No. 17
You are hereby directed to report to the Office of the Mayor effective immediately upon receipt of this
Order and signing of MCR documents shall likewise be done at my office where you will be provided
with a table for this particular function.
For clarity purposes, preparation of such documents relative to civil registration provided for under R.A.
No. 9048 and R.A. No. 9255 shall be done at the office of MCR, after which, the said documents shall
be forwarded to you for your signature.

Page 305 of 321

Administrative Law
Additional duties and functions shall likewise be under my direct supervision.
Office Order No. 12 issued on May 28, 2010 is hereby repealed accordingly.
For your strict compliance.4
Memorandum No. 17-A
You are hereby directed to report to the Office of the Mayor effective immediately upon receipt of this
Order. You have to take action on R.A. No. 9048 and sign MCR documents at my office where you will
be provided with a table for this particular function.
For clarity purposes, preparation of documents relative to civil registration shall be done at the office of
MCR, after which, the said completed documents shall be forwarded to you for your signature.
Additional duties and functions shall likewise be under my direct supervision.
Office Order No. 12 issued on May 28, 2010 is hereby repealed accordingly.
For your strict compliance.5
In view of the foregoing issuances by Mayor Biron, Causing filed the complaint-affidavit dated June 8,
2010 in the Office of the Regional Election Director, Region VI, in Iloilo City, claiming that Office Order
No. 12 dated May 28, 2010 issued by Mayor Biron ordering her detail to the Office of the Municipal
Mayor, being made within the election period and without prior authority from the COMELEC, was
illegal and violative of Section 1, Paragraph A, No. 1, in connection with Section 6(B) of COMELEC
Resolution No. 8737, Series of 2009, to wit:
xxxx
5. The issuance of Office Order No. 12 dated May 28, 2010 by the municipal mayor ordering my
detail at the Office of the Municipal Mayor, made within the election period and without prior written
authority from the COMELEC is illegal and violative of Section 1, Paragraph A, No. 1 in connection
with Section 6(B) of COMELEC Resolution No. 8737 (Series of 2009) otherwise known as In the
Matter of Enforcing the Prohibition against appointment or hiring of new employees, creating or filing of
new positions, giving any salary increase or transferring or detailing any officer or employee in the civil
service and suspension of local elective officials in connection with the May 10, 2010 national and local
elections;
xxxx
8. Further, said transfer of detail does not fall under any of the exceptions to the requirement of prior
authority from the COMELEC, as provided under Section 7 of COMELEC Resolution No. 8737.
x x x x6
In his counter-affidavit,7 Mayor Biron countered that the purpose of transferring the office of Causing
was to closely supervise the performance of her functions after complaints regarding her negative
behavior in dealing with her co-employees and with the public transacting business in her office had
been received;8 that as the local chief executive, he was empowered to take personnel actions and
other management prerogatives for the good of public service; that Causing was not being stripped of
her functions as the Municipal Civil Registrar; that she was not transferred or detailed to another office

Page 306 of 321

Administrative Law
in order to perform a different function; and that she was not demoted to a lower position that
diminished her salary and other benefits.9
On March 1, 2011, Atty. Elizabeth Doronilla, the Provincial Election Supervisor (PES), recommended
the dismissal of the complaint-affidavit for lack of probable cause to charge Mayor Biron with the
violation of Section (h) of the Omnibus Election Code, as implemented by Resolution No. 8737.
On September 9, 2011, the COMELEC En Banc affirmed the findings and recommendation of PES
Doronilla,10observing that Mayor Biron did not transfer or detail Causing but only required her to
physically report to the Mayors office and to perform her functions thereat; and that he did not strip her
of her functions as the Municipal Civil Registrar, and did not deprive her of her supervisory functions
over her staff.11
Hence, this petition for certiorari.
Issues
Causing submits that Office Order 12 and Office Order 13 were gross violations of COMELEC
Resolution No. 8737, Series of 2009, that implemented Section 261(g), (h), and (x) of the Omnibus
Election Code; that the prohibition contained in said provisions covered any movement during the
election period, whether it was by reassignment, appointment, promotion, or demotion, regardless of
rank, level or salary of the affected personnel; that her detail to the Office of the Mayor was a clear
case of personnel movement prohibited by law;12 and that Mayor Biron violated the provisions because
he did not secure from the COMELEC the prior authority to transfer or detail her during the election
period.13
In addition, Causing claims that the COMELEC En Banccommitted grave abuse of discretion in
affirming the findings of PES Doronilla to the effect that there was no probable cause to hold Mayor
Biron liable for violating the Omnibus Election Code; and that the COMELEC En Banctotally
disregarded a crucial piece of evidence the existence of Office Order No. 13 that had ordered the
detail of Belonio as the Local Civil Registrar-designate.14
In his comment,15 Mayor Biron insists that the petition for certiorari should be dismissed because of the
petitioners failure to file a motion for reconsideration in the COMELEC, and because of her failure to
attach copies of equally important documents pertinent to the case. 16 He emphasizes that Office Order
No. 12 was issued by his office for the purpose of closely supervising her in performing her functions
after complaints about her behavior in dealing with her coworkers and with the public transacting
business in her office had been received by his office. 17 He accuses her of willfully suppressing
evidence, specifically the two office orders that clarified that she would still be performing the functions
of her office, albeit in the Office of the Mayor.18
Mayor Biron reiterates his counter-affidavit, namely: (a) that there was no transfer or detail involved,
and any movement of Causing, if at all, was a purely physical transfer, that is, only a few steps from
her office to the Office of the Mayor, without any change in the present work, agency, position, rank
and compensation;19 and (b) that granting without admitting that the movement constituted
reassignment, the same was not covered by the provisions of COMELEC Resolution No. 8737, which
expressly limited the prohibition to either transfer or detail only.20
Mayor Biron posits that Office Order No. 13 purportedly ordering the detail of Belonio as Local Civil
Registrar-designate was a mere piece of paper, which Belonio never received.21 He points out that his
Page 307 of 321
Administrative Law
actions were upheld by the decision dated August 13, 2010 of the Regional Office of the Civil Service
Commission dismissing the appeal by Causing of the assailed office orders.22
Finally, Mayor Biron asserts that Causing did not demonstrate that the COMELEC En Banc committed
grave abuse of discretion in affirming the findings that there was no probable cause to hold him liable
for violation of the Omnibus Election Code.23
On its part, the COMELEC, through the Office of the Solicitor General (OSG),24 defends its questioned
resolution, stating that the words transfer and detail, having already acquired legislative and
jurisprudential meanings, should not be understood in their literal sense; that Causing was neither
transferred nor detailed; that she was not moved to a different office with the same rank, level and
salary, or to another agency;25 and that Mayor Birons act of transferring the office space of Causing
was intra vires, and found legal support in the power of supervision and control accorded to local chief
executives under the Local Government Code.26
Ruling
The petition has no merit.
1.
Procedural Issue:
Causing did not file a motion for reconsideration
before filing the petition for certiorari
Section 7, Article IX-A of the Constitution states that unless otherwise provided by the Constitution or
by law, any decision, order, or ruling of each Commission may be brought to the Court on certiorari by
the aggrieved party within 30 days from receipt of a copy thereof. For this reason, the Rules of
Court (1997) contains a separate rule (Rule 64) on the review of the decisions of the COMELEC and
the Commission on Audit.27 Rule 64 is generally identical with certiorari under Rule 65,28 except as to
the period of the filing of the petition for certiorari, that is, in the former, the period is 30 days from
notice of the judgment or final order or resolution sought to be reviewed but, in the latter, not later than
60 days from notice of the judgment, order or resolution assailed.29
Mayor Biron indicates that Causing did not file a motion for reconsideration before coming to the Court.
Causing submits, however, that she was not required to file the motion for reconsideration because the
only recourse of an aggrieved party from the decision of the COMELEC was the filing of the petition
for certiorari under either Rule 64 or Rule 65.30
The well-established rule is that the motion for reconsideration is an indispensable condition before an
aggrieved party can resort to the special civil action for certiorari under Rule 65 of the Rules of Court.
The filing of the motion for reconsideration before the resort to certiorariwill lie is intended to afford to
the public respondent the opportunity to correct any actual or fancied error attributed to it by way of
reexamination of the legal and factual aspects of the case.31
The rule is not absolute, however, considering that jurisprudence has laid down exceptions to the
requirement for the filing of a petition for certiorari without first filing a motion for reconsideration,
namely: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where
the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent
necessity for the resolution of the question, and any further delay would prejudice the interests of the
Page 308 of 321
Administrative Law
Government, or of the petitioner, or the subject matter of the petition is perishable; (d) where, under
the circumstances, a motion for reconsideration would be useless; (e) where the petitioner was
deprived of due process, and there is extreme urgency for relief; (f) where, in a criminal case, relief
from an order of arrest is urgent, and the granting of such relief by the trial court is improbable; (g)
where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceeding
was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is
one purely of law or public interest is involved.
A perusal of the circumstances of the case shows that none of the foregoing exceptions was
applicable herein. Hence, Causing should have filed the motion for reconsideration, especially
because there was nothing in the COMELEC Rules of Procedure that precluded the filing of the motion
for reconsideration in election offense cases.32
Accordingly, the petition must be dismissed.
2.
Substantive Issues:
Mayor Birons acts did not violate
the Omnibus Election Code
and the COMELEC Resolution
On the merits, the petition should also fail.
E.O. Case No. 10-131 was founded on Mayor Birons alleged violation of COMELEC Resolution No.
8737, Series of 2009, in relation to Section 261(g), (h) and (x) of the Omnibus Election Code, which
respectively provide:
Resolution No. 8737
Section 1. Prohibited Acts
A. During the election period from January 10, 2010 to June 09, 2010, no public official shall, except
upon prior authority of the Commission:
1. Make or cause any transfer or detail whatsoever of any officer or employee in the civil service,
including public school teachers. Transfer as used in this provision shall be construed as any
personnel movement from one government agency to another or from one department, division,
geographical unit or subdivision of a government agency to another with or without the issuance of an
appointment.
xxxx
Section 261(g), (h) and (x)
of the Omnibus Election Code
Sec. 261. Prohibited Acts.The following shall be guilty of an election offense:
xxxx
(g) Appointment of new employees, creation of new position, promotion, or giving salary increases.
During the period of forty-five days before a regular election and thirty days before a special election,
(1) any head, official or appointing officer of a government office, agency or instrumentality, whether
Page 309 of 321
Administrative Law
national or local, including government-owned or -controlled corporations, who appoints or hires any
new employee, whether provisional, temporary or casual, or creates and fills any new position, except
upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it
is satisfied that the position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be appointed in case of urgent
need: Provided, however, That notice of the appointment shall be given to the Commission within three
days from the date of the appointment. Any appointment or hiring in violation of this provision shall be
null and void.
(2) Any government official who promotes, or gives any increase of salary or remuneration or
privilege to any government official or employee, including those in government-owned or -controlled
corporations.
(h) Transfer of officers and employees in the civil service.Any public official who makes or causes
any transfer or detail whatever of any officer or employee in the civil service including public school
teachers, within the election period except upon prior approval of the Commission.
xxxx
(x) Suspension of elective provincial, city, municipal or barangay officer.The provisions of law to
the contrary notwithstanding during the election period, any public official who suspends, without prior
approval of the Commission, any elective provincial, city, municipal or barangay officer, unless said
suspension will be for purposes of applying the Anti-Graft and Corrupt Practices Act in relation to the
suspension and removal of elective officials; in which case the provisions of this section shall be
inapplicable.
The only personnel movements prohibited by COMELEC Resolution No. 8737 were transfer and
detail. Transfer is defined in the Resolution as any personnel movement from one government agency
to another or from one department, division, geographical unit or subdivision of a government agency
to another with or without the issuance of an appointment; while detail as defined in the Administrative
Code of 1987 is the movement of an employee from one agency to another without the issuance of an
appointment.33 Having acquired technical and legal meanings, transfer and detail must be construed
as such. Obviously, the movement involving Causing did not equate to either a transfer or a detail
within the contemplation of the law if Mayor Biron only thereby physically transferred her office area
from its old location to the Office of the Mayor some little steps away. 34 We cannot accept the
petitioners argument, therefore, that the phrase any transfer or detail whatsoever encompassed any
and all kinds and manner of personnel movement,35 including the mere change in office location.
Moreover, Causings too literal understanding of transfershould not hold sway because the provisions
involved here were criminal in nature. Mayor Biron was sought to be charged with an election offense
punishable under Section 264 of the Omnibus Election Code.36 It is a basic rule of statutory
construction that penal statutes are to be liberally construed in favor of the accused. Every reasonable
doubt must then be resolved in favor of the accused. 37 This means that the courts must not bring
cases within the provision of a law that are not clearly embraced by it. In short, no act can be
pronounced criminal unless it is clearly made so by statute prior to its commission (nullum crimen,
nulla poena, sine lege). So, too, no person who is not clearly within the terms of a statute can be
brought within them.
Page 310 of 321
Administrative Law
Equally material is that Mayor Birons act of transferring the office space of Causing was rooted in his
power of supervision and control over the officials and employees serving in his local government unit,
in order to ensure the faithful discharge of their duties and functions. 38 His explanation that he
transferred Causings work station from her original office to his office in order to closely supervise her
after his office received complaints against her could not be justly ignored. Verily, she thereafter
continued to perform her tasks, and uninterruptedly received her salaries as the Municipal Civil
Registrar even after the transfer to the Office of the Mayor.
The issuance of Office Order No. 13 by Mayor Biron detailing Belonio to the Office of the Local Civil
Registrar was not proof of Mayor Birons crystal clear intention to replace and transfer her during the
election period.39 As the COMELEC En Banc found, Belonio did not receive the order, and Causing
remained as the Municipal Civil Registrar, leaving the detailing of Belonio uncompleted. Without the
actual appointment of Belonio as the Municipal Civil Registrar, it would be unwarranted to criminally
charge Mayor Biron of violating Section 261 of the Omnibus Election Code.
It is interesting to note that aside from the present election offense case, Causing initiated an
administrative case in the Civil Service Commission to challenge her reassignment pursuant to the
same office orders. In that administrative case, she referred to the personnel movement not as
a transfer or detail, but as a reassignment that constituted her constructive dismissal.40 On August 13,
2010, the CSC Regional Office No. 6 in Mandurriao, Iloilo City ruled that although Mayor Biron used
the word detail in referring to the personnel movement effected, the personnel action that actually took
place, albeit a reassignment, was a valid reassignment, viz.:
In the instant case, Causing is not stripped of her functions as Municipal Civil Registrar (MCR). She
was merely required to physically report to the Mayors Office and perform her functions as Municipal
Civil Registrar therein. Definitely, she is still the MCR, albeit doing her work physically outside of her
usual work station. She is also not deprived of her supervisory function over the staff as she continues
to review their work and signs documents they prepared. While she may encounter difficulty in
performing her duties as a supervisor as she is not physically near her staff, that by itself, however,
does not mean that she has lost supervision over them. That difficulty, nonetheless, is not tantamount
to constructive dismissal. That Mayor Biron prefers to ensure that Causing faithfully discharging her
duties as MCR is principally an exercise of his sound judgment and discretion. He alone has the
discretion to decide when to resort to the necessity of implementing changes in the workplace as he
occupies the ideal vantage point and is in the best position to determine the needs of his agency and
how to satisfy those needs. Besides, contrary to the allegations of Causing, none of the elements of
constructive dismissal is present.
WHEREFORE, the instant appeal of Elsie B. Causing is DISMISSED. Office Order No. 12, dated May
28, 2010 and Office Orders Nos. 17 and 17-A dated June 01, 2010 of Mayor Hernan D. Biron, Sr. of
Barotac Nuevo, Iloilo are AFFIRMED.41
41 Id., at pp. 116-117.
Considering that reassignment was not prohibited by the Omnibus Election Code, there was no
probable cause to criminally charge Mayor Biron with the violation of the Omnibus Election Code.
WHEREFORE, the Court DISMISSES the petition for certiorari; AFFIRMS the Resolution of the
Commission on Elections promulgated on September 9, 2011 dismissing E.O. Case No. 10-131
entitled Elsie S. Causing v. Hernan D. Biron, Sr.; and ORDERS the petitioner to pay the costs of suit.
Page 311 of 321
Administrative Law
SO ORDERED.
Carpio** (Acting CJ.), Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del Castillo, Villarama, Jr.,
Perez, Reyes, Perlas-Bernabe and Leonen, JJ., concur.
* * In lieu of Chief Justice Maria Lourdes P. A. Sereno, who is on Wellness Leave, per Special Order
No. 1770.
Sereno, CJ., On Wellness Leave.
Mendoza, J., On Leave.
Jardeleza, J., No part.
Petition dismissed, resolution affirmed.
Notes.A detail is the movement of an employee from one agency to another without the issuance of
an appointment and shall be allowed, only for a limited period in the case of employees occupying
professional, technical and scientific positions. (Republic vs. Pacheo, 664 SCRA497 [2012])
A motion for reconsideration is an indispensable condition before an aggrieved party can resort to the
special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended.
(Republic vs. Pantranco North Express, Inc. [PNEI], 666 SCRA 199 [2012])

o0o

Page 312 of 321

Administrative Law
Case 16
G.R. No. 166032. February 28, 2005.*
ELENITA I. BALAJONDA, petitioner, vs. COMMISSION ON ELECTIONS (FIRST DIVISION) and
MARICEL S. FRANCISCO, respondents.
Election Law; Judgments; Execution Pending Appeal; Despite the silence of the COMELEC Rules of
Procedure as to the procedure of the issuance of a writ of execution pending appeal, there is no
reason to dispute the COMELECs authority to do so, considering that the suppletory application of the
Rules of Court is expressly authorized by Section 1, Rule 41 of the COMELEC Rules of Procedure.
Early last year, the Court, through Mr. Justice Antonio T. Carpio in Batul v. Bayron, affirmed a similar
order of the COMELEC First Division directing the immediate execution of its own judgment. Despite
the silence of the COMELEC Rules of Procedure as to the procedure of the issuance of a writ of
execution pending appeal, there is no reason to dispute the COMELECs authority to do so,
considering that the suppletory application of the Rules of Court is expressly authorized by Section 1,
Rule 41 of the COMELEC Rules of Procedure which provides that absent any applicable provisions
therein the pertinent provisions of the Rules of Court shall be applicable by analogy or in a suppletory
character and effect. Batulalso clearly shows that the judgments which may be executed pending
appeal need not be only those rendered by the trial court, but by the COMELEC as well. It stated, thus:
It is true that present election laws are silent on the remedy of execution pending appeal in election
contests. However, neither Ramas nor Santos declared that such remedy is exclusive to election
contests involving elective barangay and municipal officials as argued by Batul. Section 2 allowing
execution pending appeal in the discretion of the court applies in a suppletory manner to election
cases, including those involving city and provincial officials.
Same; Same; Same; The public policy underlying the suppletory application of Sec. 2(a), Rule 39 is to
obviate a hollow victory for the duly elected candidate as determined by either the courts or the
COMELEC; The Court has consistently employed liberal construction of procedural rules in election
cases to the end that the will of the people in the choice of public officers may not be defeated by mere
technical objections.Batul is different from this case in that in Batul the decision subject of the order
of immediate execution was rendered by the poll body in the exercise of its original jurisdiction while
the decision in this case was promulgated in the exercise of its appellate jurisdiction. Still, there is no
reason to dispose of this petition in a manner different from Batul. The public policy underlying the
suppletory application of Sec. 2(a), Rule 39 is to obviate a hollow victory for the duly elected candidate
as determined by either the courts or the COMELEC. Towards that end, we have consistently
employed liberal construction of procedural rules in election cases to the end that the will of the people
in the choice of public officers may not be defeated by mere technical objections. Balajondas
argument is anchored on a simplistic, literalist reading of Sec. 2(a), Rule 39 that barely makes sense,
especially in the light of the COMELECs specialized and expansive role in relation to election cases.
Same; Same; Same; Public interest demands that the winner on the basis of a full and incisive recount
and new appreciation of votes should be installed in office without delay.With respect to the first
reason, it cannot be disputed with success that public interest demands that the winner on the basis of
a full and incisive recount and new appreciation of votes should be installed in office without delay.
Indeed, [I]t is neither fair nor just to keep in office for an uncertain period one whose right is under
suspicion. Balajondas corollary argument that the public interest involved or the will of the electorate
is fully determined only after the election contest becomes final would, if sustained, negate altogether
Page 313 of 321
Administrative Law
the purpose of allowing executions pending appeal in the first place. Indeed, the argument begs the
question.
Same; Barangays; The Court lacks the powers of prognostication to ascertain whether there is such a
consensus and, more so, whether it would actually ripen to reality in the future.At this point, the
Court cannot take judicial notice of what Balajonda calls the consensus to extend the terms of
barangay captains purportedly soon to be enacted into law by Congress. The Court lacks the powers
of prognostication to ascertain whether there is such a consensus and, more so, whether it would
actually ripen to reality in the future.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Angel P. Ramos for petitioner.
Pete Quirino-Quadra for private respondent.
TINGA, J.:
Whether or not the Commission on Elections has power to order the immediate execution of its
judgment or final order involving a disputed barangay chairmanship is at the heart of the
present Petition for Certiorari1 under Rule 65 of the 1997 Rules of Civil Procedure.
On 16 July 2002, petitioner Elenita I. Balajonda (Balajonda) was proclaimed as the duly elected
Barangay Chairman (Punong Barangay), having won the office in the barangay elections held the
previous day.2 Her margin of victory over private respondent Maricel Francisco (Francisco) was four-
hundred twenty (420) votes.3 Francisco duly filed a petition for election protest, within ten (10) days
from the date of proclamation, lodged with the Metropolitan Trial Court (MeTC) of Quezon City, Branch
35.4
In answer to the protest, Balajonda alleged that Franciscos petition stated no cause of action and that
the allegations of electoral fraud and irregularities were baseless, conjectural, flimsy, frivolous,
preposterous and mere figments of the latters wild imagination. She also laid stress on the fact that
although the grounds relied upon by Francisco were violations of election laws, not a single person
had been prosecuted for violation of the same.5
After the issues were joined, the MeTC ordered the revision of ballots in sixty-nine (69) ballot boxes,
and eventually, the ballots in thirty-nine (39) precincts were revised.6 After trial, MeTC dismissed the
protest with its finding that Balajonda still led Francisco by four hundred eighteen (418) votes.7 The
dispositive part of its Decision reads as follows:
WHEREFORE, the Protest filed by Maricel Susano Francisco is hereby DENIED. The proclamation of
Elenita I. Balajonda as the duly proclaimed Barangay Captain of Barangay Sta. Monica, Quezon City
during the 15 July 2002 Barangay Election is hereby upheld.8
Francisco appealed the MeTC Decision to the Commission on Elections (COMELEC). In
a Resolution9 promulgated on 2 February 2004, the COMELEC First Division reversed the MeTC,
finding that Francisco won over Balajonda by one hundred eleven (111) votes. The COMELEC First
Division thus annulled the proclamation of Balajonda, and declared in her stead Francisco as the duly
elected Barangay Chairman. The dispositive portion of the Resolution reads:

Page 314 of 321

Administrative Law
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Appeal.
The decision of the Metropolitan Trial Court of Quezon City, Branch 35 is hereby SET ASIDE. The
proclamation of ELENITA BALAJONDA as Punong Barangay of said Barangay is ANNULLED.
Protestant MARICEL FRANCISCO is hereby declared the duly elected Punong Barangay of Barangay
Sta. Monica, Novaliches City.
ACCORDINGLY, the Commission (FIRST DIVISION) hereby ORDERS:
1. Protestee ELENITA Baby BALAJONDA to VACATE the post of Punong Barangay of Sta. Monica,
Novaliches City in favor of MARICEL SUSANO FRANCISCO and to CEASE and DESIST from
performing the functions attached to said office.
No pronouncement as to costs.
SO ORDERED.10
Balajonda seasonably filed a Motion for Reconsideration11 of the COMELEC First
Divisions Resolution.12 In the meantime, Francisco filed a Motion for Execution13 dated 5 February
2004, praying for a writ of execution in accordance with Section 2(a) of Rule 39 of the Revised Rules
of Court [Sec. 2(a), Rule 39], which allows discretionary execution of judgment upon good reasons to
be stated in the order.14
Balajonda duly opposed15 the Motion for Execution, arguing in the main that under Sec. 2(a), Rule 39,
only the judgment or final order of a trial court may be the subject of discretionary execution pending
appeal. However, in its Order16 dated 26 November 2004, the COMELEC First Division after due
hearing granted the motion and directed the issuance of a Writ of Execution,17 ordering Balajonda to
cease and desist from discharging her functions as Barangay Chairman and relinquish said office to
Francisco. The Orderstates in part:
WHEREFORE, the Motion is hereby GRANTED. In order to implement the Resolution of the
Commission (First Division) in the above entitled case, the Clerk of Commission (Director IV, ECAD) is
hereby DIRECTED to issue a WRIT OF EXECUTION ordering ELENITA I. BALAJONDA to CEASE
and DESIST from discharging the powers and duties of Barangay Captain of Sta. Monica, Novaliches,
Quezon City and to relinquish the same to and in favor of MARICEL S. FRANCISCO who was
declared duly elected to the post in the Resolution pending final disposition of the Motion for
Reconsideration filed by Protestee in the above-entitled case. Protestant however is ordered to post a
bond in the amount of FIFTY THOUSAND PESOS (P50,000.00) which shall answer for whatever
damage protestee will sustain by reason of this execution if the final resolution of the protest would
decide that the protestant is not entitled thereto. This Order is immediately executory.
SO ORDERED.18
This Order is the subject of the present petition.
In support of her thesis that the COMELEC First Division committed grave abuse of discretion in
granting execution pending appeal, Balajonda in essence submits the following grounds, thus: (1) that
the COMELEC may order the immediate execution only of the decision of the trial court but not its own
decision; (2) that the order of execution which the COMELEC First Division issued is not founded on
good reasons as it is a mere pro forma reproduction of the reasons enumerated in Ramas v.
COMELEC;19 and (3) the COMELEC exhibited manifest partiality and bias in favor of Francisco when it

Page 315 of 321

Administrative Law
transgressed its own rule.20 Balajonda invoked only the first ground in her opposition to the Motion For
Execution, but definitely not the second and third. In any event, all the grounds are bereft of merit.
Early last year, the Court, through Mr. Justice Antonio T. Carpio in Batul v. Bayron,21 affirmed a similar
order of the COMELEC First Division directing the immediate execution of its own judgment. Despite
the silence of the COMELEC Rules of Procedure as to the procedure of the issuance of a writ of
execution pending appeal, there is no reason to dispute the COMELECs authority to do so,
considering that the suppletory application of the Rules of Court is expressly authorized by Section 1,
Rule 41 of the COMELEC Rules of Procedure which provides that absent any applicable provisions
therein the pertinent provisions of the Rules of Court shall be applicable by analogy or in a suppletory
character and effect.
Batul also clearly shows that the judgments which may be executed pending appeal need not be only
those rendered by the trial court, but by the COMELEC as well. It stated, thus:
It is true that present election laws are silent on the remedy of execution pending appeal in election
contests. However, neither Ramas nor Santos declared that such remedy is exclusive to election
contests involving elective barangay and municipal officials as argued by Batul. Section 2 allowing
execution pending appeal in the discretion of the court applies in a suppletory manner to election
cases, including those involving city and provincial officials.22
Batul is different from this case in that in Batul the decision subject of the order of immediate execution
was rendered by the poll body in the exercise of its original jurisdiction 23while the decision in this case
was promulgated in the exercise of its appellate jurisdiction. Still, there is no reason to dispose of this
petition in a manner different from Batul. The public policy underlying the suppletory application of Sec.
2(a), Rule 39 is to obviate a hollow victory for the duly elected candidate as determined by either the
courts or the COMELEC.24 Towards that end, we have consistently employed liberal construction of
procedural rules in election cases to the end that the will of the people in the choice of public officers
may not be defeated by mere technical objections.25 Balajondas argument is anchored on a simplistic,
literalist reading of Sec. 2(a), Rule 39 that barely makes sense, especially in the light of the
COMELECs specialized and expansive role in relation to election cases.
Anent the second ground, we find that the COMELEC First Division committed no grave abuse of
discretion in ruling that:
In the instant case, the protestant cited the good reasons enunciated in Ramas v. Comelec (286 SCRA
189), to wit: (1) the public interest involved or the will of the electorate; (2) the shortness of the
remaining period, and (3) the length of time that the election contest has been pending.
After evaluating the case, we rule that the reasons cited are indeed obtaining. Public interest is best
served if the herein Protestant who actually received the highest number of votes should be
immediately be installed. It is likewise true that the remaining period or the unexpired term is too short
that to further prolong the tenure of the protestee is a virtual denial of the right of the protestant, the
duly elected barangay captain, to assume office.
Considering that there are good reasons for the issuance of an Order of Execution, to wit: dictates of
public policy and the shortness of the remaining period, we have to grant the Motion.26
All that Balajonda musters in the main to debunk the poll bodys ruling is that it is just a pro
forma reproduction of the reasons enunciated in pertinent jurisprudence for the grant of execution
Page 316 of 321
Administrative Law
pending appeal.27 The argument suffers from a discernible fallacy. The reasons relied upon by the
COMELEC First Division are either self-evident or borne out by the law.
With respect to the first reason, it cannot be disputed with success that public interest demands that
the winner on the basis of a full and incisive recount and new appreciation of votes should be installed
in office without delay. Indeed, [I]t is neither fair nor just to keep in office for an uncertain period one
whose right is under suspicion.28
Balajondas corollary argument that the public interest involved or the will of the electorate is fully
determined only after the election contest becomes final 29 would, if sustained, negate altogether the
purpose of allowing executions pending appeal in the first place. Indeed, the argument begs the
question. In this regard, Balajondas filing of a Motion for Reconsideration of the decision likewise did
not divest the COMELEC First Division of jurisdiction to rule on the Motion For Execution. Once
more, Batul30 instructs us that the filing of a motion for reconsideration of the COMELEC First
Divisions resolution with the COMELEC en bancdoes not suspend the execution thereof.
As regards the second reason, it is provided in Republic Act No. 9164 31 that barangay officials elected
in the barangay elections of July 2002 shall serve up to November 2005. Thus when the poll bodys
First Division promulgated the challenged Order on 26 November 2004, directing immediate execution
of its Decision pending final disposition of Balajondas motion for reconsideration by the COMELEC en
banc, the expiry of the term of the disputed position was a scant twelve (12) months away.
At this point, the Court cannot take judicial notice of what Balajonda calls the consensus to extend the
terms of barangay captains purportedly soon to be enacted into law by Congress. 32 The Court lacks
the powers of prognostication to ascertain whether there is such a consensus and, more so, whether
it would actually ripen to reality in the future.
In a bid to ascribe partiality and bias in favor of Francisco to the COMELEC itself, Balajonda alleges
that the poll body failed to observe its own Rules of Procedure 33directing the Clerk of Court, within
twenty-four (24) hours following the filing of a motion for reconsideration, to notify the Presiding
Commissioner and therefore to set the motion for hearing, and the Presiding Commissioner in turn
thereafter to certify the case to the Commission en banc.34However, the record does not bear out
Balajondas charge. The case was not forwarded to the COMELEC en banc right away precisely
because of the pendency of Franciscos motion for immediate execution and Balajondas motions.
According to the COMELEC Records, Balajonda filed with the First Division on 03 March 2004
a Manifestation with Motion for Leave to Xerox Contested Ballots,35 and on 03 March 2004
a Manifestation with Motion for Partial Reconsideration.36
It is noteworthy that the COMELEC First Division did not make use of the third reason invoked by
Francisco which refers to the length of time that the election contest has been
pending.37 Consequently, it is pointless to address Balajondas accusation that the delay in the
disposition of the election protest is attributable to Francisco.38
WHEREFORE, the Petition is hereby DISMISSED for failure of petitioner Elenita I. Balajonda to show
that respondent COMELEC acted with grave abuse of discretion in promulgating the
challenged Order dated 24 November 2004. Costs against petitioner.
SO ORDERED.

Page 317 of 321

Administrative Law
Davide, Jr. (C.J.), Puno, Panganiban, Quisumbing,Ynares-Santiago, Sandoval-
Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Azcuna, Chico-
Nazario and Garcia, JJ., concur.
Petition dismissed.
Note.Good reasons that justify execution pending appeal must be superior circumstances
demanding urgency which will outweigh the injury or damage should the losing party secure a reversal
of the judgment. (Provident International Resources Corp. vs. Court of Appeals, 259 SCRA 485 [1996])

o0o

Page 318 of 321

Administrative Law
Case 17
G.R. No. 192793. February 22, 2011.*
FESTO R. GALANG, JR., petitioner, vs. HON. RAMIRO R. GERONIMO, as Presiding Judge of the
Regional Trial Court of Romblon, Branch 81; and NICASIO M. RAMOS, respondents.
Remedial Law; Certiorari; In election cases involving an act or omission of a municipal or a regional
trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate
jurisdiction.Section 4, Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC, which
provides when and where a petition for certiorari should be filed, states thus: SEC. 4. When and
where to file petition.The petition shall be filed not later than sixty (60) days from notice of the
judgment or resolution. In case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the petition shall be filed not later than sixty (60) days counted from the
notice of the denial of the motion. x x x In election cases involving an act or an omission of a
municipal or a regional trial court, the petition shall be filed exclusively with the Commission
on Elections, in aid of its appellate jurisdiction.
Same; Same; Words and Phrases; Interpretation of the phrase in aid of its appellate jurisdiction.
Interpreting the phrase in aid of its appellate jurisdiction, the Court held in J.M. Tuason & Co., Inc. v.
Jaramillo, et al., 9 SCRA 189 (1963), that if a case may be appealed to a particular court or judicial
tribunal or body, then said court or judicial tribunal or body has jurisdiction to issue the extraordinary
writ of certiorari, in aid of its appellate jurisdiction. This was reiterated in De Jesus v. Court of
Appeals, 212 SCRA 823 (1992), where the Court stated that a court may issue a writ of certiorari in
aid of its appellate jurisdiction if said court has jurisdiction to review, by appeal or writ of error, the
final orders or decisions of the lower court.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Vicente Roy L. Kayaban, Jr. for petitioner.
Rico B. Bolongaita for private respondent.
PERALTA, J.:
This resolves the Petition for Certiorari under Rule 65 of the Rules of Court, praying that the Order1 of
the Regional Trial Court (RTC) of Romblon, Branch 81, dated June 24, 2010, denying petitioners
Motion to Admit Answer and the Order2 dated July 22, 2010, denying herein petitioners Omnibus
Motion, be reversed and set aside.
The records reveal the following antecedent facts.
On May 12, 2010, at 12:37 p.m., petitioner was proclaimed winner for the mayoralty race during the
May 10, 2010 Automated Elections for the Municipality of Cajidiocan, Province of Romblon. The
proclamation was based on the Certificate of Canvass (COC), but without the official signed Certificate
of Canvass for Proclamation (COCP). This was done with the approval of the Provincial Board of
Canvassers (PBOC) Chairman.
Subsequently, private respondent Nicasio Ramos, who was also a mayoralty candidate in the same
election, requested the Commission on Elections (COMELEC) to conduct a man

Page 319 of 321

Administrative Law
ual reconciliation of the votes cast. The COMELEC then issued Resolution No. 8923, granting said
request. The manual reconciliation was done on May 20, 2010 at the Sangguniang Bayan Session
Hall, after which proceedings the eight winning Sangguniang Bayan Members were also proclaimed.
The MBOC made erasures and corrections using correction fluid on the COCP for the Sangguniang
Bayan Members to reflect the results of the manual reconciliation. As for the COCP for the previously
proclaimed mayoralty and vice-mayoralty candidates, the total number of votes for each of the
candidates remained the same even after the manual reconciliation; hence, only the date was erased
and changed to read May 20, 2010 to correspond with the date of the manual reconciliation.
On May 27, 2010, private respondent filed an election protest case against petitioner before the RTC.
The following day, the court sheriff went to petitioners residence to serve summons with a copy of the
petition. The Sheriffs Return of Summons3 stated that the sheriff was able to serve Summons on
petitioner by leaving the same and the attached copy of the protest with a certain Gerry Rojas, who
was then at petitioners residence.
On June 8, 2010, petitioner, together with his then counsel of record, Atty. Abner Perez, appeared in
court and requested a copy of the summons with a copy of the election protest. During the hearing on
said date, respondent judge directed petitioner to file the proper pleading and, on June 11, 2010,
petitioner filed a Motion to Admit Answer, to which was attached his Answer with Affirmative Defense
and Counterclaim. One of his affirmative defenses was that the electoral protest was filed out of time,
since it was filed more than ten (10) days after the date of proclamation of the winning candidate.
The trial court then issued the assailed Order dated June 24, 2010, finding the service of Summons on
petitioner on May 28, 2010 as valid, and declaring the Answer filed on June 11, 2010, as filed out of
time. The dispositive portion of said Order reads as follows:
WHEREFORE, in view of the foregoing, the Motion to Admit Answer is DENIED for lack of merit.
The Motion to Admit Answer having been denied, the preliminary conference shall proceed ex parte,
as previously scheduled pursuant to Section 1, Rule 9, A.M. No. 10-4-1-SC.
SO ORDERED.4
On July 12, 2010, petitioner filed an Omnibus Motion to: (1) Restore Protestees Standing in Court; (2)
Motion for Reconsideration of the Order dated June 24, 2010; and (3) Suspend Proceedings Pending
Resolution of Falsification Case Before the Law Department of the COMELEC. However, on July 22,
2010, the trial court issued the second assailed Order denying petitioners Omnibus Motion.
Hence, the present petition for certiorari and prohibition under Rule 65, alleging that respondent judge
acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction in considering as valid, the Sheriffs Service of Summons on May 28, 2010 on a person
not residing in petitioners residence.
On the other hand, respondents pointed out that the petition for certiorari should not be filed with this
Court but with the COMELEC.
The petition must fail.
Section 4, Rule 65 of the Rules of Court, as amended by A.M. No. 07-7-12-SC, which provides when
and where a petition for certiorari should be filed, states thus:
SEC. 4. When and where to file petition.The petition shall be filed not later than sixty (60) days
from notice of the judgment or resolution. In case a motion for reconsideration or new trial is timely
Page 320 of 321
Administrative Law
filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days
counted from the notice of the denial of the motion.
If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an
officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals or with the
Sandiganbayan, whether or not the same is in aid of the courts appellate jurisdiction. If the petition
involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these
rules, the petition shall be filed with and be cognizable only by the Court of Appeals.
In election cases involving an act or an omission of a municipal or a regional trial court,
the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate
jurisdiction.5
The question then is, would taking cognizance of a petition for certiorari questioning an interlocutory
order of the regional trial court in an electoral protest case be considered in aid of the appellate
jurisdiction of the COMELEC? The Court finds in the affirmative.
Interpreting the phrase in aid of its appellate jurisdiction, the Court held in J.M. Tuason & Co., Inc. v.
Jaramillo, et al.6 that if a case may be appealed to a particular court or judicial tribunal or body, then
said court or judicial tribunal or body has jurisdiction to issue the extraordinary writ of certiorari, in aid
of its appellate jurisdiction. This was reiterated in De Jesus v. Court of Appeals,7 where the Court
stated that a court may issue a writ of certiorari in aid of its appellate jurisdiction if said court has
jurisdiction to review, by appeal or writ of error, the final orders or decisions of the lower court.
Note that Section 8, Rule 14 of the 2010 Rules of Procedure in Election Contests Before the Courts
Involving Elective Municipal Officials states that:
Sec. 8. Appeal.An aggrieved party may appeal the decision to the COMELEC within five (5)
days after promulgation, by filing a notice of appeal with the court that rendered the decision, with copy
served on the adverse counsel or on the adverse party who is not represented by counsel.8
Since it is the COMELEC which has jurisdiction to take cognizance of an appeal from the decision of
the regional trial court in election contests involving elective municipal officials, then it is also the
COMELEC which has jurisdiction to issue a writ of certiorari in aid of its appellate jurisdiction. Clearly,
petitioner erred in invoking this Courts power to issue said extraordinary writ.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Corona (C.J.), Carpio, Velasco, Jr., Nachura, Brion,
Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza and Sereno, JJ., concur.
Carpio-Morales and Leonardo-De Castro, JJ., On Official Leave.
Petition dismissed.
Note.The jurisdiction of the Supreme Court is confined to reviews of errors of law ascribed to the
Court of Appeals. (Lunaria vs. People, 570 SCRA 572 [2008])

Page 321 of 321