1
LUCIA BARRAMEDA VDA. DE BALLESTEROS, Petitioner,
vs.
RURAL BANK OF CANAMAN INC., represented by its Liquidator, the
philippine deposit insurance corporation, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Revised
Rules of Civil Procedure assailing the August 15, 2006 Decision1 of the
Court of Appeals (CA) in CA-G.R. No. 82711, modifying the decision of
the Regional Trial Court of Iriga City, Branch 36 (RTC-Iriga), in Civil Case
No. IR-3128, by ordering the consolidation of the said civil case with
Special Proceeding Case No. M-5290 (liquidation case) before the
Regional Trial Court of Makati City, Branch 59 (RTC-Makati).
It appears from the records that on March 17, 2000, petitioner Lucia
Barrameda Vda. De Ballesteros (Lucia) filed a complaint for Annulment of
Deed of Extrajudicial Partition, Deed of Mortgage and Damages with
prayer for Preliminary Injunction against her children, Roy, Rito, Amy,
Arabel, Rico, Abe, Ponce Rex and Adden, all surnamed Ballesteros, and
the Rural Bank of Canaman, Inc., Baao Branch (RBCI) before the RTC-
Iriga. The case was docketed as Civil Case No. IR-3128.
In her complaint, Lucia alleged that her deceased husband, Eugenio, left
two (2) parcels of land located in San Nicolas, Baao, Camarines Sur,
each with an area of 357 square meters; that on March 6, 1995, without
her knowledge and consent, her children executed a deed of extrajudicial
partition and waiver of the estate of her husband wherein all the heirs,
including Lucia, agreed to allot the two parcels to Rico Ballesteros (Rico);
that, still, without her knowledge and consent, Rico mortgaged Parcel B
of the estate in favor of RBCI which mortgage was being foreclosed for
failure to settle the loan secured by the lot; and that Lucia was occupying
Parcel B and had no other place to live. She prayed that the deed of
extrajudicial partition and waiver, and the subsequent mortgage in favor
of RBCI be declared null and void having been executed without her
knowledge and consent. She also prayed for damages.
In its Answer, RBCI claimed that in 1979, Lucia sold one of the two
parcels to Rico which represented her share in the estate of her husband.
The extrajudicial partition, waiver and mortgage were all executed with
the knowledge and consent of Lucia although she was not able to sign
the document. RBCI further claimed that Parcel B had already been
foreclosed way back in 1999 which fact was known to Lucia through the
auctioning notary public. Attorney’s fees were pleaded as counterclaim.
The case was then set for pre-trial conference. During the pre-trial,
RBCI’s counsel filed a motion to withdraw after being informed that
Philippine Deposit Insurance Corporation (PDIC) would handle the case
as RBCI had already been closed and placed under the receivership of
the PDIC. Consequently, on February 4, 2002, the lawyers of PDIC took
over the case of RBCI.
On May 9, 2003, RBCI, through PDIC, filed a motion to dismiss on the
ground that the RTC-Iriga has no jurisdiction over the subject matter of
the action. RBCI stated that pursuant to Section 30, Republic Act No.
7653 (RA No. 7653), otherwise known as the "New Central Bank Act," the
RTC-Makati, already constituted itself, per its Order dated August 10,
2001, as the liquidation court to assist PDIC in undertaking the liquidation
of RBCI. Thus, the subject matter of Civil Case No. IR-3128 fell within the
exclusive jurisdiction of such liquidation court. Lucia opposed the motion.
On July 29, 2003, the RTC-Iriga issued an order2 granting the Motion to
Dismiss, to wit:
This resolves the Motion to Dismiss filed by the defendant Rural Bank of
Canaman, Inc., premised on the ground that this court has no jurisdiction
over the subject matter of the action. This issue of jurisdiction was raised
in view of the pronouncement of the Supreme Court in Ong v. C.A. 253
SCRA 105 and in the case of Hernandez v. Rural Bank of Lucena, Inc.,
G.R. No. L-29791 dated January 10, 1978, wherein it was held that "the
liquidation court shall have jurisdiction to adjudicate all claims against the
bank whether they be against assets of the insolvent bank, for Specific
Performance, Breach of Contract, Damages or whatever."
It is in view of this jurisprudential pronouncement made by no less than
the Supreme Court, that this case is, as far as defendant Rural Bank of
Canaman Inc., is concerned, hereby ordered DISMISSED without
prejudice on the part of the plaintiff to ventilate their claim before the
Liquidation Court now, RTC Branch 59, Makati City.
SO ORDERED.
Not in conformity, Lucia appealed the RTC ruling to the CA on the ground
that the RTC-Iriga erred in dismissing the case because it had jurisdiction
over Civil Case No. IR-3128 under the rule on adherence of jurisdiction.
On August 15, 2006, the CA rendered the questioned decision ordering
the consolidation of Civil Case No. IR-3128 and the liquidation case
pending before RTC-Makati. The appellate court ratiocinated thus:
…The consolidation is desirable in order to prevent confusion, to avoid
multiplicity of suits and to save unnecessary cost and expense. Needless
to add, this procedure is well in accord with the principle that the rules of
procedure shall be liberally construed in order to promote their object and
to assist the parties in obtaining just, speedy and inexpensive
determination of every action and proceeding (Vallacar Transit, Inc. v.
Yap, 126 SCRA 500 [1983]; Suntay v. Aguiluz, 209 SCRA 500 [1992]
citing Ramos v. Ebarle, 182 SCRA 245 [1990]). It would be more in
keeping with the demands of equity if the cases are simply ordered
consolidated. Pursuant to Section 2, Rule 1, Revised Rules of Court, the
rules on consolidation should be liberally construed to achieve the object
of the parties in obtaining just, speedy and inexpensive determination of
their cases (Allied Banking Corporation v. Court of Appeals, 259 SCRA
371 [1996]). …
The dispositive portion of the decision reads:
IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby
MODIFIED, in such a way that the dismissal of this case (Civil Case No.
IR-3128) is set aside and in lieu thereof another one is entered ordering
the consolidation of said case with the liquidation case docketed as
Special Proceeding No. M-5290 before Branch 59 of the Regional Trial
Court of Makati City, entitled "In Re: Assistance in the Judicial Liquidation
of Rural Bank of Canaman, Camarines Sur, Inc., Philippine Deposit
Corporation, Petitioner." No pronouncement as to cost.
SO ORDERED.3
Lucia filed a motion for reconsideration4 but it was denied by the CA in its
Resolution dated December 14, 2006.5
Hence, the present petition for review on certiorari anchored on the
following
GROUNDS
(I)
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
REGIONAL TRIAL COURT OF IRIGA CITY, BRANCH 36 IS VESTED
WITH JURISDICTION TO CONTINUE TRYING AND ULTIMATELY
DECIDE CIVIL CASE NO. IR-3128.
(II)
THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS
DISCRETION IN ORDERING THE CONSOLIDATION OF CIVIL CASE
NO. IR-3128 WITH THE LIQUIDATION CASE DOCKETED AS SPECIAL
PROCEEDINGS NO. M-5290 BEFORE BRANCH 59 OF THE
REGIONAL TRIAL COURT OF MAKATI CITY.6
Given the foregoing arguments, the Court finds that the core issue to be
resolved in this petition involves a determination of whether a liquidation
court can take cognizance of a case wherein the main cause of action is
not a simple money claim against a bank ordered closed, placed under
receivership of the PDIC, and undergoing a liquidation proceeding.
Lucia contends that the RTC-Iriga is vested with jurisdiction over Civil
Case No. 3128, the constitution of the liquidation court notwithstanding.
According to her, the case was filed before the RTC-Iriga on March 17,
2000 at the time RBCI was still doing business or before the defendant
bank was placed under receivership of PDIC in January 2001.
She further argues that the consolidation of the two cases is improper.
Her case, which is for annulment of deed of partition and waiver, deed of
mortgage and damages, cannot be legally brought before the RTC-
Makati with the liquidation case considering that her cause of action
against RBCI is not a simple claim arising out of a creditor-debtor
relationship, but one which involves her rights and interest over a certain
property irregularly acquired by RBCI. Neither is she a creditor of the
bank, as only the creditors of the insolvent bank are allowed to file and
ventilate claims before the liquidator, pursuant to the August 10, 2001
Order of the RTC-Makati which granted the petition for assistance in the
liquidation of RBCI.
In its Comment,7 PDIC, as liquidator of RBCI, counters that the
consolidation of Civil Case No. 3128 with the liquidation proceeding is
proper. It posits that the liquidation court of RBCI, having been
 2
established, shall have exclusive jurisdiction over all claims against the
said bank.
After due consideration, the Court finds the petition devoid of merit.
Lucia’s argument, that the RTC-Iriga is vested with jurisdiction to continue
trying Civil Case No. IR-3128 until its final disposition, evidently falls out
from a strained interpretation of the law and jurisprudence. She contends
that:
Since the RTC-Iriga has already obtained jurisdiction over the case it
should continue exercising such jurisdiction until the final termination of
the case. The jurisdiction of a court once attached cannot be ousted by
subsequent happenings or events, although of a character which would
have prevented jurisdiction from attaching in the first instance, and the
Court retains jurisdiction until it finally disposes of the case (Aruego Jr. v.
Court of Appeals, 254 SCRA 711).
When a court has already obtained and is exercising jurisdiction over a
controversy, its jurisdiction to proceed to final determination of the case is
not affected by a new legislation transferring jurisdiction over such
proceedings to another tribunal. (Alindao v. Joson, 264 SCRA 211). Once
jurisdiction is vested, the same is retained up to the end of the litigation
(Bernate v. Court of Appeals, 263 SCRA 323).8
The afore-quoted cases, cited by Lucia to bolster the plea for the
continuance of her case, find no application in the case at bench.
Indeed, the Court recognizes the doctrine on adherence of jurisdiction.
Lucia, however, must be reminded that such principle is not without
exceptions. It is well to quote the ruling of the CA on this matter, thus:
This Court is not unmindful nor unaware of the doctrine on the adherence
of jurisdiction. However, the rule on adherence of jurisdiction is not
absolute and has exceptions. One of the exceptions is that when the
change in jurisdiction is curative in character (Garcia v. Martinez, 90
SCRA 331 [1979]; Calderon, Sr. v. Court of Appeals, 100 SCRA 459
[1980]; Atlas Fertilizer Corporation v. Navarro, 149 SCRA 432 [1987];
Abad v. RTC of Manila, Br. Lll, 154 SCRA 664 [1987]).
For sure, Section 30, R.A. 7653 is curative in character when it declared
that the liquidation court shall have jurisdiction in the same proceedings
to assist in the adjudication of the disputed claims against the Bank. The
interpretation of this Section (formerly Section 29, R.A. 265) becomes
more obvious in the light of its intent. In Manalo v. Court of Appeals (366
SCRA 752, [2001]), the Supreme Court says:
xxx The requirement that all claims against the bank be pursued in the
liquidation proceedings filed by the Central Bank is intended to prevent
multiplicity of actions against the insolvent bank and designed to
establish due process and orderliness in the liquidation of the bank, to
obviate the proliferation of litigations and to avoid injustice and
arbitrariness (citing Ong v. CA, 253 SCRA 105 [1996]). The lawmaking
body contemplated that for convenience, only one court, if possible,
should pass upon the claims against the insolvent bank and that the
liquidation court should assist the Superintendents of Banks and regulate
his operations (citing Central Bank of the Philippines, et al. v. CA, et al.,
163 SCRA 482 [1988]).9
As regards Lucia’s contention that jurisdiction already attached when Civil
Case No. IR-3128 was filed with, and jurisdiction obtained by, the RTC-
Iriga prior to the filing of the liquidation case before the RTC-Makati, her
stance fails to persuade this Court. In refuting this assertion, respondent
PDIC cited the case of Lipana v. Development Bank of Rizal10 where it
was held that the time of the filing of the complaint is immaterial, viz:
It is the contention of petitioners, however, that the placing under
receivership of Respondent Bank long after the filing of the complaint
removed it from the doctrine in the said Morfe Case.
This contention is untenable. The time of the filing of the complaint is
immaterial. It is the execution that will obviously prejudice the other
depositors and creditors. Moreover, as stated in the said Morfe case, the
effect of the judgment is only to fix the amount of the debt, and not to give
priority over other depositors and creditors.
The cited Morfe case11 held that "after the Monetary Board has declared
that a bank is insolvent and has ordered it to cease operations, the Board
becomes the trustee of its assets for the equal benefit of all the creditors,
including depositors. The assets of the insolvent banking institution are
held in trust for the equal benefit of all creditors, and after its insolvency,
one cannot obtain an advantage or a preference over another by an
attachment, execution or otherwise."
Thus, to allow Lucia’s case to proceed independently of the liquidation
case, a possibility of favorable judgment and execution thereof against
the assets of RBCI would not only prejudice the other creditors and
depositors but would defeat the very purpose for which a liquidation court
was constituted as well.
Anent the second issue, Lucia faults the CA in directing the consolidation
of Civil Case No. IR-3128 with Special Proceedings No. M-5290. The CA
committed no error. Lucia’s complaint involving annulment of deed of
mortgage and damages falls within the purview of a disputed claim in
contemplation of Section 30 of R.A. 7653 (The New Central Bank Act).
The jurisdiction should be lodged with the liquidation court. Section 30
provides:
Sec. 30. Proceedings in Receivership and Liquidation. - Whenever, upon
report of the head of the supervising or examining department, the
Monetary Board finds that a bank or quasi-bank:
(a) is unable to pay its liabilities as they become due in the ordinary
course of business: Provided, That this shall not include inability to pay
caused by extraordinary demands induced by financial panic in the
banking community;
(b) has insufficient realizable assets, as determined by the Bangko
Sentral, to meet its liabilities; or
(c) cannot continue in business without involving probable losses to its
depositors or creditors; or
(d) has wilfully violated a cease and desist order under Section 37 that
has become final, involving acts or transactions which amount to fraud or
a dissipation of the assets of the institution; in which cases, the Monetary
Board may summarily and without need for prior hearing forbid the
institution from doing business in the Philippines and designate the
Philippine Deposit Insurance Corporation as receiver of the banking
institution.
For a quasi-bank, any person of recognized competence in banking or
finance may be designated as receiver.
The receiver shall immediately gather and take charge of all the assets
and liabilities of the institution, administer the same for the benefit of its
creditors, and exercise the general powers of a receiver under the
Revised Rules of Court but shall not, with the exception of administrative
expenditures, pay or commit any act that will involve the transfer or
disposition of any asset of the institution: Provided, That the receiver may
deposit or place the funds of the institution in non-speculative
investments. The receiver shall determine as soon as possible, but not
later than ninety (90) days from take over, whether the institution may be
rehabilitated or otherwise placed in such a condition that it may be
permitted to resume business with safety to its depositors and creditors
and the general public: Provided, That any determination for the
resumption of business of the institution shall be subject to prior approval
of the Monetary Board.
If the receiver determines that the institution cannot be rehabilitated or
permitted to resume business in accordance with the next preceding
paragraph, the Monetary Board shall notify in writing the board of
directors of its findings and direct the receiver to proceed with the
liquidation of the institution. The receiver shall:
(1) file ex parte with the proper regional trial court, and without
requirement of prior notice or any other action, a petition for assistance in
the liquidation of the institution pursuant to a liquidation plan adopted by
the Philippine Deposit Insurance Corporation for general application to all
closed banks. In case of quasi-banks, the liquidation plan shall be
adopted by the Monetary Board. Upon acquiring jurisdiction, the court
shall, upon motion by the receiver after due notice, adjudicate disputed
claims against the institution, assist the enforcement of individual
liabilities of the stockholders, directors and officers, and decide on other
issues as may be material to implement the liquidation plan adopted. The
receiver shall pay the cost of the proceedings from the assets of the
institution.
(2) convert the assets of the institution to money, dispose of the same to
creditors and other parties, for the purpose of paying the debts of such
institution in accordance with the rules on concurrence and preference of
credit under the Civil Code of the Philippines and he may, in the name of
the institution, and with the assistance of counsel as he may retain,
institute such actions as may be necessary to collect and recover
accounts and assets of, or defend any action against, the institution. The
assets of an institution under receivership or liquidation shall be deemed
 3
in custodia legis in the hands of the receiver and shall, from the moment
the institution was placed under such receivership or liquidation, be
exempt from any order of garnishment, levy, attachment, or execution.
[Emphasis supplied]
xxx
"Disputed claims" refers to all claims, whether they be against the assets
of the insolvent bank, for specific performance, breach of contract,
damages, or whatever.12 Lucia’s action being a claim against RBCI can
properly be consolidated with the liquidation proceedings before the RTC-
Makati. A liquidation proceeding has been explained in the case of In Re:
Petition For Assistance in the Liquidation of the Rural Bank of BOKOD
(Benguet), Inc. v. Bureau of Internal Revenue13 as follows:
A liquidation proceeding is a single proceeding which consists of a
number of cases properly classified as "claims." It is basically a two-
phased proceeding. The first phase is concerned with the approval and
disapproval of claims. Upon the approval of the petition seeking the
assistance of the proper court in the liquidation of a closed entity, all
money claims against the bank are required to be filed with the liquidation
court. This phase may end with the declaration by the liquidation court
that the claim is not proper or without basis. On the other hand, it may
also end with the liquidation court allowing the claim. In the latter case,
the claim shall be classified whether it is ordinary or preferred, and
thereafter included Liquidator. In either case, the order allowing or
disallowing a particular claim is final order, and may be appealed by the
party aggrieved thereby.
The second phase involves the approval by the Court of the distribution
plan prepared by the duly appointed liquidator. The distribution plan
specifies in detail the total amount available for distribution to creditors
whose claim were earlier allowed. The Order finally disposes of the issue
of how much property is available for disposal. Moreover, it ushers in the
final phase of the liquidation proceeding - payment of all allowed claims in
accordance with the order of legal priority and the approved distribution
plan.
xxx
A liquidation proceeding is commenced by the filing of a single petition by
the Solicitor General with a court of competent jurisdiction entitled,
"Petition for Assistance in the Liquidation of e.g., Pacific Banking
Corporation." All claims against the insolvent are required to be filed with
the liquidation court. Although the claims are litigated in the same
proceeding, the treatment is individual. Each claim is heard separately.
And the Order issued relative to a particular claim applies only to said
claim, leaving the other claims unaffected, as each claim is considered
separate and distinct from the others. x x x [Emphasis supplied.]
It is clear, therefore, that the liquidation court has jurisdiction over all
claims, including that of Lucia against the insolvent bank. As declared in
Miranda v. Philippine Deposit Insurance Corporation,14 regular courts do
not have jurisdiction over actions filed by claimants against an insolvent
bank, unless there is a clear showing that the action taken by the BSP,
through the Monetary Board, in the closure of financial institutions was in
excess of jurisdiction, or with grave abuse of discretion. The same is not
obtaining in this present case.1avvphi1
The power and authority of the Monetary Board to close banks and
liquidate them thereafter when public interest so requires is an exercise
of the police power of the State. Police power, however, is subject to
judicial inquiry. It may not be exercised arbitrarily or unreasonably and
could be set aside if it is either capricious, discriminatory, whimsical,
arbitrary, unjust, or is tantamount to a denial of due process and equal
protection clauses of the Constitution.15
In sum, this Court holds that the consolidation is proper considering that
the liquidation court has jurisdiction over Lucia’s action. It would be more
in keeping with law and equity if Lucia’s case is consolidated with the
liquidation case in order to expeditiously determine whether she is
entitled to recover the property subject of mortgage from RBCI and, if so,
how much she is entitled to receive from the remaining assets of the
bank.
WHEREFORE, the petition is DENIED.
SO ORDERED.
G.R. No. 198554 July 30, 2012
MAJOR GENERAL CARLOS F. GARCIA, AFP (RET.), Petitioner,
vs.
THE EXECUTIVE SECRETARY, representing the OFFICE OF THE
PRESIDENT; THE SECRETARY OF NATIONAL DEFENSE VOLTAIRE
T. GAZMIN; THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, GEN. EDUARDO SL. OBAN, JR., and LT. GEN.
GAUDENCIO S. PANGILINAN, AFP (RET.), DIRECTOR, BUREAU OF
CORRECTIONS, Respondents.
DECISION
PERALTA, J.:
For resolution of this Court is the Petition for Certiorari dated September
29, 2011 under Rule 65, Section 1 of the Revised Rules of Civil
Procedure which seeks to annul and set aside the Confirmation of
Sentence dated September 9, 2011, promulgated by the Office of the
President.
The facts, as culled from the records, are the following:
On October 13, 2004, the Provost Martial General of the Armed Forces of
the Philippines (AFP), Col. Henry A. Galarpe, by command of Vice-
Admiral De Los Reyes, issued a Restriction to Quarters1 containing the
following:
1. Pursuant to Article of War 70 and the directive of the Acting Chief of
Staff, AFP to the undersigned dtd 12 October 2004, you are hereby
placed under Restriction to Quarters under guard pending investigation of
your case.
2. You are further advised that you are not allowed to leave your quarters
without the expressed permission from the Acting Chief of Staff, AFP.
3. In case you need immediate medical attention or required by the
circumstance to be confined in a hospital, you shall likewise be under
guard.
Thereafter, a Charge Sheet dated October 27, 2004 was filed with the
Special General Court Martial NR 2 presided by Maj. Gen. Emmanuel R.
Teodosio, AFP, (Ret.), enumerating the following violations allegedly
committed by petitioner:
CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR (CONDUCT
UNBECOMING AN OFFICER AND GENTLEMAN).
SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, on or about 16 March 2004, knowingly,
wrongfully and unlawfully fail to disclose/declare all his existing assets in
his Sworn Statement of Assets and Liabilities and Net Worth for the year
2003 as required by Republic Act No. 3019, as amended in relation to
Republic Act 6713, such as the following: cash holdings with the Armed
Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the
amount of six million five hundred [thousand] pesos (P6,500,000.00);
cash dividend received from AFPSLAI from June 2003 to December 2003
in the amount of one million three hundred sixty-five thousand pesos
(P1,365,000.00); dollar peso deposits with Land Bank of the Philippines,
Allied Banking Corporation, Banco de Oro Universal Bank, Bank of
Philippine Islands, United Coconut Planter's Bank and Planter's
Development Bank; motor vehicles registered under his and his wife’s
names such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843,
Toyota Car with Plate Nr. PEV-665, Toyota Previa with Plate Nr.
UDS-195, 1997 Honda Civic Car with Plate Nr. FEC 134, 1997 Mitsubishi
L-300 Van with Plate Nr. FDZ 582 and 2001 Toyota RAV 4 Utility Vehicle
with Plate Nr. FEV-498, conduct unbecoming an officer and gentleman.
SPECIFICATION 2: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, on or about 11 March 2003, knowingly,
wrongfully and unlawfully fail to disclose/declare all his existing assets in
his Sworn Statement of Assets and Liabilities and Net worth for the year
2002 as required by Republic Act No. 3019, as amended in relation to
Republic Act 6713, such as the following: his cash holdings with the
Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in
the amount of six million five hundred [thousand] pesos (P6,500,000.00);
cash dividend received form AFPSLAI in June 2002 and December 2002
in the total amount of one million four hundred thirty-five thousand pesos
(1,435,000.00), dollar and peso deposits with Land Bank of the
Philippines, Allied Banking Corporation, Banco de Oro Universal Bank,
Bank of the Philippine Islands, United Coconut Planter's Bank and
Planter's Development Bank; motor vehicles registered under his and his
 4
wife’s names such as 1998 Toyota Hilux Utility Vehicle with Plate Nr.
WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota Previa with Plate
Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC-134, 1997
Mitsubishi L-300 Van with Plate Nr. FDZ-582, and 2001 Toyota RAV 4
Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an officer and
gentleman.
SPECIFICATION 3: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, while in the active military service of the Armed
Forces of the Philippines, knowingly, wrongfully and unlawfully violate his
solemn oath as a military officer to uphold the Constitution and serve the
people with utmost loyalty by acquiring and holding the status of an
immigrant/permanent residence of the United
States of America in violation of the State policy governing public officers,
thereby causing dishonor and disrespect to the military professional and
seriously compromises his position as an officer and exhibits him as
morally unworthy to remain in the honorable profession of arms.
CHARGE II: VIOLATION OF THE 97TH ARTICLE OF WAR (CONDUCT
PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE).
SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, on or about 16 March 2004, knowingly,
wrongfully and unlawfully make untruthful statements under oath of his
true assets in his Statement of Assets and Liabilities and Net worth for
the year 2003 as required by Republic Act No. 3019, as amended in
relation to Republic Act 6713, conduct prejudicial to good order and
military discipline.
SPECIFICATION NO. 2: In that MAJOR GENERAL CARLOS FLORES
GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person
subject to military law, did, on or about 11 March 2003, knowingly,
wrongfully and unlawfully make untruthful statements under oath of his
true assts in his Statement of Assets and Liabilities and Net worth for the
year 2002 as required by Republic Act No. 3019, as amended in relation
to Republic Act 6713, conduct prejudicial to good order and military
discipline.
Petitioner, upon arraignment on November 16, 2004, pleaded not guilty
on all the charges.
The Office of the Chief of Staff, through a Memorandum2 dated November
18, 2004, directed the transfer of confinement of petitioner from his
quarters at Camp General Emilio Aguinaldo to the ISAFP Detention
Center. On the same day, petitioner, having reached the age of fifty-six
(56), compulsorily retired from military service after availing of the
provisions of Presidential Decree (P.D.) No. 1650,3 amending Sections 3
and 5 of P.D. 1638, which establishes a system of retirement for military
personnel of the Armed Forces of the Philippines.
Pursuant to a Resolution4 dated June 1, 2005 of the Second Division of
the Sandiganbayan, petitioner was transferred from the ISAFP Detention
Center to the Camp Crame Custodial Detention Center.
After trial, at the Special General Court Martial No. 2, on December 2,
2005, the findings or the After-Trial Report5 of the same court was read to
the petitioner. The report contains the following verdict and sentence:
MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in closed
session upon secret written ballot 2/3 of all the members present at the
time the voting was taken concurring the following findings. Finds you:
On Specification 1 of Charge 1 – Guilty except the words dollar deposits
with Land Bank of the Phils, dollar peso deposits with Allied Bank, Banco
de Oro, Universal Bank, Bank of the Philippine Island, United Coconut
Planters Bank and Planters Development Bank.
On Specification 2 of Charge 1 – Guilty except the words dollar deposits
with Land Bank of the Phils, dollar peso deposits with Allied Bank, Banco
de Oro, Universal Bank, Bank of the Philippine Island, United Coconut
Planters Bank and Planters Development Bank.
On Specification 3 of Charge 1 – Guilty
On Specification 1 of Charge 2 – Guilty
On Specification 2 of Charge 2 – Guilty
And again in closed session upon secret written ballot 2/3 all the
members are present at the time the votes was taken concurrently
sentences you to be dishonorably [discharged] from the service, to forfeit
all pay and allowances due and to become due and to be confined at
hard labor at such place the reviewing authority may direct for a period of
two (2) years. So ordered. (Emphases supplied)
Afterwards, in a document6 dated March 27, 2006, the Staff Judge
Advocate stated the following recommended action:
IV. RECOMMENDED ACTION:
The court, after evaluating the evidence, found accused: GUILTY on
Charge 1, GUILTY on Specification 1 on Charge 1 – except the words
dollar deposits with Land Bank of the Philippines, dollar and peso
deposits with Allied Banking Corporation, Banco de Oro Universal Bank,
Bank of the Philippine Islands, United Coconut Planter's Bank and
Planter's Development Bank; GUILTY on Charge 1, Specification 2
except the words dollar deposits with Land Bank of the Philippines, dollar
and peso deposits with Allied Banking Corporation, Banco de Oro
Universal Bank, Bank of the Philippine Islands, United Coconut Planters
Bank and Planter's Development Bank; GUILTY on Specification 3 of
Charge 1; GUILTY on Charge 2 and all its specifications. The sentence
imposed by the Special GCM is to be dishonorably discharged from the
service, to forfeit all pay and allowances due and to become due; and to
be confined at hard labor at such place the reviewing authority may direct
for a period of two (2) years. As it is, the sentence is proper and legal.
Recommend that the sentence be approved. The PNP custodial facility in
Camp Crame, Quezon City, is the appropriate place of confinement. The
period of confinement from 18 October 2004 shall be credited in his favor
and deducted from the two (2) years to which the accused was
sentenced. Thus, confinement will expire on 18 October 2006.
Considering that the period left not served is less than one (1) year,
confinement at the National Penitentiary is no longer appropriate.
4. To carry this recommendation into effect, a draft "ACTION OF THE
REVIEWING AUTHORITY" is hereto attached.
In an undated document, 7 the AFP Board of Military Review
recommended the following action:
8. RECOMMENDED ACTION:
A. Only so much of the sentence as provides for the mandatory penalty of
dismissal from the military service and forfeiture of pay and allowances
due and to become due for the offenses of violation of AW 96 (Conduct
Unbecoming an Officer and a Gentleman) and for violation of AW 97
(Conduct Prejudicial to Good Order and Military Discipline) be imposed
upon the Accused.
B. The records of the instant case should be forwarded to the President
thru the Chief of Staff and the Secretary of National Defense, for final
review pursuant to AW 47, the Accused herein being a General Officer
whose case needs confirmation by the President.
C. To effectuate the foregoing, attached for CSAFP's signature/approval
is a proposed 1st
Indorsement to the President, thru the Secretary of National Defense,
recommending approval of the attached prepared "ACTION OF THE
PRESIDENT."
After six (6) years and two (2) months of preventive confinement, on
December 16, 2010, petitioner was released from the Camp Crame
Detention Center.8
The Office of the President, or the President as Commander-in-Chief of
the AFP and acting as the Confirming Authority under the Articles of War,
confirmed the sentence imposed by the Court Martial against petitioner.
The Confirmation of Sentence,9 reads in part:
NOW, THEREFORE, I, BENIGNO S. AQUINO III, the President as
Commander-in-Chief of the Armed Forces of the Philippines, do hereby
confirm the sentence imposed by the Court Martial in the case of People
of the Philippines versus Major General Carlos Flores Garcia AFP:
a) To be dishonorable discharged from the service;
b) To forfeit all pay and allowances due and to become due; and
c) To be confined for a period of two (2) years in a penitentiary.
FURTHER, pursuant to the 48th and 49th Articles of War, the sentence
on Major General Carlos Flores Garcia AFP shall not be remitted/
mitigated by any previous confinement. Major General Carlos Flores
Garcia AFP shall serve the foregoing sentence effective on this date.
DONE, in the City of Manila, this 9th day of September, in the year of our
Lord, Two Thousand and Eleven.
Consequently, on September 15, 2011, respondent Secretary of National
Defense Voltaire T. Gazmin, issued a Memorandum10 to the Chief of Staff,
AFP for strict implementation, the Confirmation of Sentence in the Court
Martial Case of People of the Philippines Versus Major General Carlos
Flores Garcia AFP.
 5
On September 16, 2011, petitioner was arrested and detained, and
continues to be detained at the National Penitentiary, Maximum Security,
Bureau of Corrections, Muntinlupa City.11
Aggrieved, petitioner filed with this Court the present petition for certiorari
and petition for habeas corpus, alternatively. However, this Court, in its
Resolution12 dated October 10, 2011, denied the petition for habeas
corpus. Petitioner filed a motion for reconsideration13 dated November 15,
2011, but was denied14 by this Court on December 12, 2011.
Petitioner enumerates the following grounds to support his petition:
GROUNDS
A.
THE JURISDICTION OF THE GENERAL COURT MARTIAL CEASED
IPSO FACTO UPON THE RETIREMENT OF PETITIONER, FOR WHICH
REASON THE OFFICE OF THE PRESIDENT ACTED WITHOUT
JURISDICTION IN ISSUING THE CONFIRMATION OF SENTENCE,
AND PETITIONER'S ARREST AND CONFINEMENT PURSUANT
THERETO IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS
CORPUS.
B.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT PETITIONER
REMAINED AMENABLE TO COURT MARTIAL JURISDICTION AFTER
HIS RETIREMENT, THE OFFICE OF THE PRESIDENT ACTED WITH
GRAVE ABUSE OF DISCRETION IN IMPOSING THE SENTENCE OF
TWO (2) YEARS CONFINEMENT WITHOUT ANY LEGAL BASIS, FOR
WHICH REASON PETITIONER'S ARREST AND CONFINEMENT IS
ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS.
C.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE
PENALTY OF TWO (2) YEARS CONFINEMENT MAY BE IMPOSED IN
ADDITION TO THE PENALTIES OF DISMISSAL AND FORFEITURE,
THE SENTENCE HAD BEEN FULLY SERVED IN VIEW OF
PETITIONER'S PREVENTIVE CONFINEMENT WHICH EXCEEDED
THE 2-YEAR SENTENCE, AND THE OFFICE OF THE PRESIDENT
HAS NO AUTHORITY TO REPUDIATE SAID SERVICE OF SENTENCE,
FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT
DESPITE FULL SERVICE OF SENTENCE IS ILLEGAL, THUS
WARRANTING THE WRIT OF HABEAS CORPUS.15
In view of the earlier resolution of this Court denying petitioner's petition
for habeas corpus, the above grounds are rendered moot and academic.
Thus, the only issue in this petition for certiorari under Rule 65 of the
Revised Rules of Civil Procedure, which was properly filed with this
Court, is whether the Office of the President acted with grave abuse of
discretion, amounting to lack or excess of jurisdiction, in issuing the
Confirmation of Sentence dated September 9, 2011.
In its Comment16 dated October 27, 2011, the Office of the Solicitor
General (OSG) lists the following counter-arguments:
I.
PETITIONER'S DIRECT RECOURSE TO THE HONORABLE COURT
VIOLATES THE DOCTRINE OF HIERARCHY OF COURTS; HENCE,
THE PETITION SHOULD BE OUTRIGHTLY DISMISSED.
II.
THE GENERAL COURT MARTIAL RETAINED JURISDICTION OVER
PETITIONER DESPITE HIS RETIREMENT DURING THE PENDENCY
OF THE PROCEEDINGS AGAINST HIM SINCE THE SAID TRIBUNAL'S
JURISDICTION HAD ALREADY FULLY ATTACHED PRIOR TO
PETITIONER'S RETIREMENT.
III.
THE CONFIRMATION ISSUED BY THE OFFICE OF THE PRESIDENT
DIRECTING PETITIONER TO BE CONFINED FOR TWO (2) YEARS IN
A PENITENTIARY IS SANCTIONED BY C. A. NO. 408 AND EXECUTIVE
ORDER NO. 178, PURSUANT TO THE PRESIDENT'S
CONSTITUTIONAL AUTHORITY AS THE COMMANDER-IN-CHIEF OF
THE AFP.
IV.
PETITIONER'S RIGHT TO A SPEEDY DISPOSITION OF HIS CASE
WAS NOT VIOLATED IN THIS CASE.
V.
THE IMPOSITION OF THE PENALTY OF TWO (2) YEARS
CONFINEMENT ON PETITIONER BY THE GCM, AND AS CONFIRMED
BY THE PRESIDENT OF THE PHILIPPINES, IS VALID.
VI.
ACCORDINGLY, PUBLIC RESPONDENTS DID NOT ACT WITH GRAVE
ABUSE OF DISCRETION IN ISSUING AND IMPLEMENTING THE
CONFIRMATION OF SENTENCE.17
Petitioner, in his Reply18 dated January 20, 2012, disagreed with the
arguments raised by the OSG due to the following:
(A)
THE CONFIRMATION OF THE COURT MARTIAL SENTENCE IS AN
ACT BY THE PRESIDENT, AS THE COMMANDER-IN-CHIEF, AND NOT
MERELY AS THE HEAD OF THE EXECUTIVE BRANCH. THEREFORE,
THE HONORABLE COURT IS THE ONLY APPROPRIATE COURT
WHERE HIS ACT MAY BE IMPUGNED, AND NOT IN THE LOWER
COURTS, I.E., REGIONAL TRIAL COURT ("RTC") OR THE COURT OF
APPEALS ("CA"), AS THE OSG ERRONEOUSLY POSTULATES.
(B)
ALTHOUGH THE GENERAL COURT MARTIAL ("GCM") RETAINED
JURISDICTION "OVER THE PERSON" OF PETITIONER EVEN AFTER
HE RETIRED FROM THE ARMED FORCES OF THE PHILIPPINES
('AFP"), HOWEVER, HIS RETIREMENT, CONTRARY TO THE STAND
OF THE OSG, SEVERED HIS "JURAL RELATIONSHIP" WITH THE
MILITARY, THEREBY PLACING HIM BEYOND THE SUBSTANTIVE
REACH OF THE AFP'S COURT MARTIAL JURISDICTION.
(C)
UNDER ART. 29, REVISED PENAL CODE ("RPC"), PETITIONER'S
COURT MARTIAL SENTENCE OF TWO (2) YEARS IN CARCERATION
HAD ALREADY BEEN SERVED IN FULL SINCE HE HAD ALREADY
SUFFERED PREVENTIVE IMPRISONMENT OF AT LEAST SIX (6)
YEARS BEFORE THE SENTENCE COULD BE CONFIRMED, WHICH
MEANS THAT THE PRESIDENT HAD NO MORE JURISDICTION
W H E N H E C O N F I R M E D I T, T H E R E B Y R E N D E R I N G T H E
"CONFIRMATION OF SENTENCE" A PATENT NULLITY, AND,
CONSEQUENTLY, INVALIDATING THE OSG'S POSITION THAT THE
PRESIDENT STILL HAD JURISDICTION WHEN HE CONFIRMED THE
SENTENCE.19
Petitioner raises the issue of the jurisdiction of the General Court Martial
to try his case. According to him, the said jurisdiction ceased ipso facto
upon his compulsory retirement. Thus, he insists that the Office of the
President had acted without jurisdiction in issuing the confirmation of his
sentence.
This Court finds the above argument bereft of merit.
Article 2 of the Articles of War20 circumscribes the jurisdiction of military
law over persons subject thereto, to wit:
Art. 2. Persons Subject to Military Law. - The following persons are
subject to these articles and shall be understood as included in the term
"any person subject to military law" or "persons subject to military law,"
whenever used in these articles:
(a) All officers and soldiers in the active service of the Armed Forces of
the Philippines or of the Philippine Constabulary; all members of the
reserve force, from the dates of their call to active duty and while on such
active duty; all trainees undergoing military instructions; and all other
persons lawfully called, drafted, or ordered into, or to duty or for training
in, the said service, from the dates they are required by the terms of the
call, draft, or order to obey the same;
(b) Cadets, flying cadets, and probationary second lieutenants;
(c) All retainers to the camp and all persons accompanying or serving
with the Armed Forces of the Philippines in the field in time of war or
when martial law is declared though not otherwise subject to these
articles;
(d) All persons under sentence adjudged by courts-martial.
(As amended by Republic Acts 242 and 516).
It is indisputable that petitioner was an officer in the active service of the
AFP in March 2003 and 2004, when the alleged violations were
committed. The charges were filed on October 27, 2004 and he was
arraigned on November 16, 2004. Clearly, from the time the violations
were committed until the time petitioner was arraigned, the General Court
Martial had jurisdiction over the case. Well-settled is the rule that
jurisdiction once acquired is not lost upon the instance of the parties but
continues until the case is terminated.21 Therefore, petitioner's retirement
on November 18, 2004 did not divest the General Court Martial of its
jurisdiction. In B/Gen. (Ret.) Francisco V. Gudani, et al. v. Lt./Gen.
Generoso Senga, et al.,22 this Court ruled that:
 6
This point was settled against Gen. Gudani's position in Abadilla v.
Ramos, where the Court declared that an officer whose name was
dropped from the roll of officers cannot be considered to be outside the
jurisdiction of military authorities when military justice proceedings were
initiated against him before the termination of his service. Once
jurisdiction has been acquired over the officer, it continues until his case
is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel
Abadilla at the time of the alleged offenses. This jurisdiction having been
vested in the military authorities, it is retained up to the end of the
proceedings against Colonel Abadilla. Well-settled is the rule that
jurisdiction once acquired is not lost upon the instance of the parties but
continues until the case is terminated.
Citing Colonel Winthrop's treatise on Military Law, the Court further
stated:
We have gone through the treatise of Colonel Winthrop and We find the
following passage which goes against the contention of the petitioners,
viz. —
3. Offenders in general — Attaching of jurisdiction. It has further been
held, and is now settled law, in regard to military offenders in general, that
if the military jurisdiction has once duly attached to them previous to the
date of the termination of their legal period of service, they may be
brought to trial by court-martial after that date, their discharge being
meanwhile withheld. This principle has mostly been applied to cases
where the offense was committed just prior to the end of the term. In such
cases the interests of discipline clearly forbid that the offender should go
unpunished. It is held therefore that if before the day on which his service
legally terminates and his right to a discharge is complete, proceedings
with a view to trial are commenced against him — as by arrest or the
service of charges, — the military jurisdiction will fully attach and once
attached may be continued by a trial by court-martial ordered and held
after the end of the term of the enlistment of the accused x x x
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as
both the acts complained of and the initiation of the proceedings against
him occurred before he compulsorily retired on 4 October 2005. We see
no reason to unsettle the Abadilla doctrine. The OSG also points out that
under Section 28 of Presidential Decree No. 1638, as amended, "an
officer or enlisted man carried in the retired list of the Armed Forces of the
Philippines shall be subject to the Articles of War x x x" To this citation,
petitioners do not offer any response, and in fact have excluded the
matter of Gen. Gudani's retirement as an issue in their subsequent
memorandum.23
It is also apt to mention that under Executive Order No. 178, or the
Manual for Courts-Martial, AFP, the jurisdiction of courts-martial over
officers, cadets, soldiers, and other military personnel in the event of
discharge or other separation from the service, and the exceptions
thereto, is defined thus:
10. COURT-MARTIAL – Jurisdiction in general – Termination – General
Rules – The general rule is that court-martial jurisdiction over officers,
cadets, soldiers and others in the military service of the Philippines
ceases on discharge or other separation from such service, and that
jurisdiction as to any offense committed during a period of service thus
terminated is not revived by a reentry into the military service.
Exceptions – To this general rule there are, however, some exceptions,
among them the following:
xxxx
In certain case, where the person's discharge or other separation does
not interrupt his status as a person belonging to the general category of
persons subject to military law, court-martial jurisdiction does not
terminate. Thus, where an officer holding a reserve commission is
discharged from said commission by reason of acceptance of a
commission in the Regular Force, there being no interval between
services under the respective commissions, there is no terminating of the
officer's military status, but merely the accomplishment of a change in his
status from that of a reserve to that of a regular officer, and that court-
martial jurisdiction to try him for an offense (striking enlisted men for
example) committed prior to the discharge is not terminated by the
discharge. So also, where a dishonorable discharged general prisoner is
tried for an offense committed while a soldier and prior to his
dishonorable discharge, such discharge does not terminate his
amenability to trial for the offense. (Emphases supplied.)
Petitioner also asserts that the General Court Martial's continuing
jurisdiction over him despite his retirement holds true only if the charge
against him involves fraud, embezzlement or misappropriation of public
funds citing this Court's ruling in De la Paz v. Alcaraz,et al.24 and Martin v.
Ve r.25 However, this is not true. The OSG is correct in stating that in De la
Paz,26 military jurisdiction over the officer who reverted to inactive status
was sustained by this Court because the violation involved
misappropriation of public funds committed while he was still in the active
military service, while in Martin,27 military jurisdiction was affirmed
because the violation pertained to illegal disposal of military property.
Both cited cases centered on the nature of the offenses committed by the
military personnel involved, justifying the exercise of jurisdiction by the
courts-martial. On the other hand, in the present case, the continuing
military jurisdiction is based on prior attachment of jurisdiction on the
military court before petitioner's compulsory retirement. This continuing
jurisdiction is provided under Section 1 of P.D. 1850,28 as amended, thus:
Section 1. Court Martial Jurisdiction over Integrated National Police and
Members of the Armed Forces. - Any provision of law to the contrary
notwithstanding – (a) uniformed members of the Integrated National
Police who commit any crime or offense cognizable by the civil courts
shall henceforth be exclusively tried by courts-martial pursuant to and in
accordance with Commonwealth Act No. 408, as amended, otherwise
known as the Articles of War; (b) all persons subject to military law under
article 2 of the aforecited Articles of War who commit any crime or offense
shall be exclusively tried by courts-martial or their case disposed of under
the said Articles of War; Provided, that, in either of the aforementioned
situations, the case shall be disposed of or tried by the proper civil or
judicial authorities when court-martial jurisdiction over the offense has
prescribed under Article 38 of Commonwealth Act Numbered 408, as
amended, or court-martial jurisdiction over the person of the accused
military or Integrated National Police personnel can no longer be
exercised by virtue of their separation from the active service without
jurisdiction having duly attached beforehand unless otherwise provided
by law: Provided further, that the President may, in the interest of justice,
order or direct, at any time before arraignment, that a particular case be
tried by the appropriate civil court. (Emphasis supplied.)
Having established the jurisdiction of the General Court Martial over the
case and the person of the petitioner, the President, as Commander-in-
Chief, therefore acquired the jurisdiction to confirm petitioner's sentence
as mandated under Article 47 of the Articles of War, which states:
Article 47. Confirmation – When Required. - In addition to the approval
required by article forty-five, confirmation by the President is required in
the following cases before the sentence of a court-martial is carried into
execution, namely:
(a) Any sentence respecting a general officer;
(b) Any sentence extending to the dismissal of an officer except that in
time of war a sentence extending to the dismissal of an officer below the
grade of brigadier general may be carried into execution upon
confirmation by the commanding general of the Army in the field;
(c) Any sentence extending to the suspension or dismissal of a cadet,
probationary second lieutenant; and
(d) Any sentence of death, except in the case of persons convicted in
time of war, of murder, mutiny, desertion, or as spies, and in such
excepted cases of sentence of death may be carried into execution,
subject to the provisions of Article 50, upon confirmation by the
commanding general of the Army in the said field.
When the authority competent to confirm the sentence has already acted
as the approving authority no additional confirmation by him is necessary.
(As amended by Republic Act No. 242). (Emphasis supplied.)
In connection therewith, petitioner argues that the confirmation issued by
the Office of the President directing him to be confined for two (2) years in
the penitentiary had already been fully served in view of his preventive
confinement which had exceeded two (2) years. Therefore, according to
him, the Office of the President no longer has the authority to order his
confinement in a penitentiary. On the other hand, the OSG opines that
petitioner cannot legally demand the deduction of his preventive
confinement in the service of his imposed two-year confinement in a
penitentiary, because unlike our Revised Penal Code29 which specifically
mandates that the period of preventive imprisonment of the accused shall
be deducted from the term of his imprisonment, the Articles of War and/or
the Manual for Courts-Martial do not provide for the same deduction in
 7
the execution of the sentence imposed by the General Court Martial as
confirmed by the President in appropriate cases.
On the above matter, this Court finds the argument raised by the OSG
unmeritorious and finds logic in the assertion of petitioner that Article 29
of the Revised Penal Code can be made applicable in the present case.
The OSG maintains that military commissions or tribunals are not courts
within the Philippine judicial system, citing Olaguer, et al. v. Military
Commission No. 4,30 hence, they are not expected to apply criminal law
concepts in their implementation and execution of decisions involving the
discipline of military personnel. This is misleading. In Olaguer, the courts
referred to were military commissions created under martial law during
the term of former President Ferdinand Marcos and was declared
unconstitutional by this Court, while in the present case, the General
Court Martial which tried it, was created under Commonwealth Act No.
408, as amended, and remains a valid entity.
In Marcos v. Chief of Staff, Armed Forces of the Philippines,31 this Court
ruled that a court-martial case is a criminal case and the General Court
Martial is a "court" akin to any other courts. In the same case, this Court
clarified as to what constitutes the words "any court" used in Section 1732
of the 1935 Constitution prohibiting members of Congress to appear as
counsel in any criminal case in which an officer or employee of the
Government is accused of an offense committed in relation to his office.
This Court held:
We are of the opinion and therefore hold that it is applicable, because the
words "any court" includes the General Court-Martial, and a court-martial
case is a criminal case within the meaning of the above quoted provisions
of our Constitution.
It is obvious that the words "any court," used in prohibiting members of
Congress to appear as counsel "in any criminal case in which an officer
or employee of the Government is accused of an offense committed in
relation to his office," refers, not only to a civil, but also to a military court
or a Court-Martial. Because, in construing a Constitution, "it must be
taken as established that where words are used which have both a
restricted and a general meaning, the general must prevail over the
restricted unless the nature of the subject matter of the context clearly
indicates that the limited sense is intended." (11 American Jurisprudence,
pp. 680-682).
In the case of Ramon Ruffy vs. Chief of Staff of the Philippine Army,* 43
Off. Gaz., 855, we did not hold that the word "court" in general used in
our Constitution does not include a Court-Martial; what we held is that the
words "inferior courts" used in connection with the appellate jurisdiction of
the Supreme Court to "review on appeal certiorari or writ of error, as the
law or rules of court may provide, final judgments of inferior courts in all
criminal cases in which the penalty imposed is death or life
imprisonment," as provided for in section 2, Article VIII, of the
Constitution, do not refer to Courts-Martial or Military Courts.
Winthrop's Military Law and Precedents, quoted by the petitioners and by
this Court in the case of Ramon Ruffy et al vs. Chief of Staff of the
Philippine Army, supra, has to say in this connection the following:
Notwithstanding that the court-martial is only an instrumentality of the
executive power having no relation or connection, in law, with the judicial
establishments of the country, it is yet, so far as it is a court at all, and
within its field of action, as fully a court of law and justice as is any civil
tribunal. As a court of law, it is bound, like any court, by the fundamental
principles of law, and, in the absence of special provision of the subject in
the military code, it observes in general the rules of evidence as adopted
in the common-law courts. As a court of justice, it is required by the terms
of its statutory oath, (art. 84.) to adjudicate between the U.S. and the
accused "without partiality, favor, or affection," and according, not only to
the laws and customs of the service, but to its "conscience," i.e. its sense
of substantial right and justice unaffected by technicalities. In the words of
the Attorney General, court-martial are thus, "in the strictest sense courts
of justice. (Winthrop's Military Law and Precedents, Vol. 1 and 2, 2nd Ed.,
p. 54.)
In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425, with
approval, the court said:
In the language of Attorney General Cushing, a court-martial is a lawful
tribunal existing by the same authority that any other exists by, and the
law military is a branch of law as valid as any other, and it differs from the
general law of the land in authority only in this: that it applies to officers
and soldiers of the army but not to other members of the body politic, and
that it is limited to breaches of military duty.
And in re Davison, 21 F. 618, 620, it was held:
That court-martial are lawful tribunals existing by the same authority as
civil courts of the United States, have the same plenary jurisdiction in
offenses by the law military as the latter courts have in controversies
within their cognizance, and in their special and more limited sphere are
entitled to as untrammelled an exercise of their powers.
And lastly, American Jurisprudence says:
SEC. 99. Representation by Counsel. — It is the general rule that one
accused of the crime has the right to be represented before the court by
counsel, and this is expressly so declared by the statues controlling the
procedure in court-martial. It has been held that a constitutional provision
extending that right to one accused in any trial in any court whatever
applies to a court-martial and gives the accused the undeniable right to
defend by counsel, and that a court-martial has no power to refuse an
attorney the right to appear before it if he is properly licensed to practice
in the courts of the state. (Citing the case of State ex rel Huffaker vs.
Crosby, 24 Nev. 115, 50 Pac. 127; 36 American Jurisprudence 253)
The fact that a judgment of conviction, not of acquittal, rendered by a
court-martial must be approved by the reviewing authority before it can
be executed (Article of War 46), does not change or affect the character
of a court-martial as a court. A judgment of the Court of First Instance
imposing death penalty must also be approved by the Supreme Court
before it can be executed.
That court-martial cases are criminal cases within the meaning of Section
17, Article VI, of the Constitution is also evident, because the crimes and
misdemeanors forbidden or punished by the Articles of War are offenses
against the Republic of the Philippines. According to section 1,
Rule 106, of the Rules of Court, a criminal action or case is one which
involves a wrong or injury done to the Republic, for the punishment of
which the offender is prosecuted in the name of the People of the
Philippines; and pursuant to Article of War 17, "the trial advocate of a
general or special court-martial shall prosecute (the accused) in the name
of the People of the Philippines."
Winthtrop, in his well known work "Military Law and Precedents' says the
following:
In regard to the class of courts to which it belongs, it is lastly to be noted
that the court-martial is strictly a criminal court. It has no civil jurisdiction
whatever; cannot enforce a contract, collect a debt, or award damages in
favor of an individual. . . . Its judgment is a criminal sentence not a civil
verdict; its proper function is to award punishment upon the
ascertainment of guilt. (Winthrop's Military Law and Precedents, Vols. 1 &
2, 2nd Ed., p. 55.)
In N. Y. it was held that the term "criminal case," used in the clause, must
be allowed some meaning, and none can be conceived, other than a
prosecution for a criminal offense. Ex parte Carter. 66 S. W. 540, 544,
166 No. 604, 57 L.R.A. 654, quoting People vs. Kelly, 24 N.Y. 74;
Counselman vs. Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed. 111o.
(Words and Phrases, Vol. 10, p. 485.)
Besides, that a court-martial is a court, and the prosecution of an
accused before it is a criminal and not an administrative case, and
therefore it would be, under certain conditions, a bar to another
prosecution of the defendant for the same offense, because the latter
would place the accused in jeopardy, is shown by the decision of the
Supreme Court of the United States in the case of Grafton vs. United
States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the following
was held:
If a court-martial has jurisdiction to try an officer or soldier for a crime, its
judgment will be accorded the finality and conclusiveness as to the issues
involved which attend the judgments of a civil court in a case of which it
may legally take cognizance; x x x and restricting our decision to the
above question of double jeopardy, we judge that, consistently with the
above act of 1902, and for the reasons stated, the plaintiff in error, a
soldier in the Army, having been acquitted of the crime of homicide,
alleged to have been committed by him in the Philippines, by a military
court of competent jurisdiction, proceeding under the authority of the
United States, could not be subsequently tried for the same offense in a
civil court exercising authority in that territory.33 (Emphasis supplied.)
Hence, as extensively discussed above, the General Court Martial is a
court within the strictest sense of the word and acts as a criminal court.
 8
On that premise, certain provisions of the Revised Penal Code, insofar as
those that are not provided in the Articles of War and the Manual for
Courts-Martial, can be supplementary. Under Article 10 of the Revised
Penal Code:
Art. 10. Offenses not subject to the provisions of this Code. - Offenses
which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary
to such laws, unless the latter should specially provide the contrary.
A special law is defined as a penal law which punishes acts not defined
and penalized by the Revised Penal Code.34 In the present case,
petitioner was charged with and convicted of Conduct Unbecoming an
Officer and Gentleman (96th Article of War) and Violation of the 97th
Article of War, or Conduct Prejudicial to Good Order and Military
Discipline, both of which are not defined and penalized under the Revised
Penal Code. The corresponding penalty imposed by the General Court
Martial, which is two (2) years of confinement at hard labor is penal in
nature. Therefore, absent any provision as to the application of a criminal
concept in the implementation and execution of the General Court
Martial's decision, the provisions of the Revised Penal Code, specifically
Article 29 should be applied. In fact, the deduction of petitioner's period of
confinement to his sentence has been recommended in the Staff Judge
Advocate Review, thus:
x x x Recommend that the sentence be approved. The PNP custodial
facility in Camp Crame, Quezon City, is the appropriate place of
confinement. The period of confinement from 18 October 2004 shall be
credited in his favor and deducted from the two (2) years to which the
accused was sentenced. Thus, confinement will expire on 18 October
2006. Considering that the period left not served is less than one (1) year,
confinement at the National Penitentiary is no longer appropriate.35
(Emphasis supplied.)
The above was reiterated in the Action of the Reviewing Authority, thus:
In the foregoing General Court-Martial case of People of the Philippines
versus MGEN. CARLOS F. GARCIA 0-5820 AFP (now Retired), the
verdict of GUILTY is hereby approved.
The sentence to be dishonorably discharged from the service; to forfeit all
pay and allowances due and to become due; and to be confined at hard
labor at such place as the reviewing authority may direct for a period of
two (2) years is also approved.
Considering that the Accused has been in confinement since 18 October
2004, the entire period of his confinement since 18 October 2004 will be
credited in his favor. Consequently, his two (2) year sentence of
confinement will expire on 18 October 2006.
The proper place of confinement during the remaining unserved portion
of his sentence is an official military detention facility.1âwphi1 However,
the Accused is presently undergoing trial before the Sandiganbayan
which has directed that custody over him be turned over to the civilian
authority and that he be confined in a civilian jail or detention facility
pending the disposition of the case(s) before said Court. For this reason,
the Accused shall remain confined at the PNP's detention facility in Camp
Crame, Quezon City. The Armed Forces of the Philippines defers to the
civilian authority on this matter.
Should the Accused be released from confinement upon lawful orders by
the Sandiganbayan before the expiration of his sentence adjudged by the
military court, the Provost Marshal General shall immediately take
custody over the Accused, who shall be transferred to and serve the
remaining unserved portion thereof at the ISAFP detention facility in
Camp General Emilio Aguinaldo, Quezon City.36 (Emphasis supplied.)
Nevertheless, the application of Article 29 of the Revised Penal Code in
the Articles of War is in accordance with the Equal Protection Clause of
the 1987 Constitution. According to a long line of decisions, equal
protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities
imposed.37 It requires public bodies and institutions to treat similarly
situated individuals in a similar manner.38 The purpose of the equal
protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by
the express terms of a statute or by its improper execution through the
state's duly-constituted authorities.39 In other words, the concept of equal
justice under the law requires the state to govern impartially, and it may
not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective.40 It, however, does not
require the universal application of the laws to all persons or things
without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification, however, to
be valid must pass the test of reasonableness. The test has four
requisites: (1) the classification rests on substantial distinctions; (2) it is
germane to the purpose of the law; (3) it is not limited to existing
conditions only; and (4) it applies equally to all members of the same
class.41 "Superficial differences do not make for a valid classification."42 In
the present case, petitioner belongs to the class of those who have been
convicted by any court, thus, he is entitled to the rights accorded to them.
Clearly, there is no substantial distinction between those who are
convicted of offenses which are criminal in nature under military courts
and the civil courts. Furthermore, following the same reasoning, petitioner
is also entitled to the basic and time-honored principle that penal statutes
are construed strictly against the State and liberally in favor of the
accused.43 It must be remembered that the provisions of the Articles of
War which the petitioner violated are penal in nature.
The OSG is correct when it argued that the power to confirm a sentence
of the President, as Commander-in-Chief, includes the power to approve
or disapprove the entire or any part of the sentence given by the court
martial. As provided in Article 48 of the Articles of War:
Article 48. Power Incident to Power to Confirm. - The power to confirm
the sentence of a court-martial shall be held to include:
(a) The power to confirm or disapprove a finding, and to confirm so much
only of a finding of guilty of a particular offense as involves a finding of
guilty of a lesser included offense when, in the opinion of the authority
having power to confirm, the evidence of record requires a finding of only
the lesser degree of guilt;
(b) The power to confirm or disapprove the whole or any part of the
sentence; and
(c) The power to remand a case for rehearing, under the provisions of
Article 50. (Emphasis supplied.)
In addition, the President also has the power to mitigate or remit a
sentence. Under Article 49 of the Articles of War:
Article 49. Mitigation or Remission of Sentence. - The power to order the
execution of the sentence adjudged by a court-martial shall be held to
include, inter alia, the power to mitigate or remit the whole or any part of
the sentence.
Any unexpected portion of a sentence adjudged by a court-martial may
be mitigated or remitted by the military authority competent to appoint, for
the command, exclusive of penitentiaries and Disciplinary Barracks of the
Armed Forces of the Philippines or Philippine Constabulary, in which the
person under sentence is held, a court of the kind that imposed the
sentence, and the same power may be exercised by superior military
authority; but no sentence approved or confirmed by the President shall
be remitted or mitigated by any other authority, and no approved
sentence of loss of files by an officer shall be remitted or mitigated by any
authority inferior to the President, except as provided in Article 52.
When empowered by the President to do so, the commanding general of
the Army in the field or the area commander may approve or confirm and
commute (but not approve or confirm without commuting), mitigate, or
remit and then order executed as commuted, mitigated, or remitted any
sentence which under those Articles requires the confirmation of the
President before the same may be executed. (As amended by Republic
Act No. 242).
Thus, the power of the President to confirm, mitigate and remit a
sentence of erring military personnel is a clear recognition of the
superiority of civilian authority over the military. However, although the
law (Articles of War) which conferred those powers to the President is
silent as to the deduction of the period of preventive confinement to the
penalty imposed, as discussed earlier, such is also the right of an
accused provided for by Article 29 of the RPC.
As to petitioner's contention that his right to a speedy disposition of his
case was violated, this Court finds the same to be without merit.
No less than our Constitution guarantees the right not just to a speedy
trial but to the speedy disposition of cases.44 However, it needs to be
underscored that speedy disposition is a relative and flexible concept. A
mere mathematical reckoning of the time involved is not sufficient.
Particular regard must be taken of the facts and circumstances peculiar to
each case.45 In determining whether or not the right to the speedy
 9
disposition of cases has been violated, this Court has laid down the passion or personal hostility, and must be so patent and so gross as to
following guidelines: (1) the length of the delay; (2) the reasons for such amount to an evasion of a positive duty or to a virtual refusal to perform
delay; (3) the assertion or failure to assert such right by the accused; and the duty enjoined or to act at all in contemplation of law.50 Thus, applying,
(4) the prejudice caused by the delay.46 the earlier disquisitions, this Court finds that the Office of the President
In this case, there was no allegation, whatsoever of any delay during the did not commit any grave abuse of discretion in issuing the Confirmation
trial. What is being questioned by petitioner is the delay in the of Sentence in question.
confirmation of sentence by the President. Basically, the case has already WHEREFORE, the Petition for Certiorari dated September 29, 2011 of
been decided by the General Court Martial and has also been reviewed Major General Carlos F. Garcia, AFP (Ret.) is hereby DISMISSED.
by the proper reviewing authorities without any delay. The only thing However, applying the provisions of Article 29 of the Revised Penal Code,
missing then was the confirmation of sentence by the President. The the time within which the petitioner was under preventive confinement
records do not show that, in those six (6) years from the time the decision should be credited to the sentence confirmed by the Office of the
of the General Court Martial was promulgated until the sentence was President, subject to the conditions set forth by the same law.
finally confirmed by the President, petitioner took any positive action to SO ORDERED.
assert his right to a speedy disposition of his case. This is akin to what
happened in Guerrero v. Court of Appeals,47 where, in spite of the lapse
of more than ten years of delay, the Court still held that the petitioner
could not rightfully complain of delay violative of his right to speedy trial or
disposition of his case, since he was part of the reason for the failure of
his case to move on towards its ultimate resolution. The Court held, inter
alia:
In the case before us, the petitioner merely sat and waited after the case
was submitted for resolution in 1979. It was only in 1989 when the case
below was reraffled from the RTC of Caloocan City to the RTC of
Navotas-Malabon and only after respondent trial judge of the latter court
ordered on March 14, 1990 the parties to follow-up and complete the
transcript of stenographic notes that matters started to get moving
towards a resolution of the case. More importantly, it was only after the
new trial judge reset the retaking of the testimonies to November 9, 1990
because of petitioner's absence during the original setting on October 24,
1990 that the accused suddenly became zealous of safeguarding his
right to speedy trial and disposition.
xxxx
In the present case, there is no question that petitioner raised the
violation against his own right to speedy disposition only when the
respondent trial judge reset the case for rehearing. It is fair to assume
that he would have just continued to sleep on his right − a situation
amounting to laches − had the respondent judge not taken the initiative of
determining the non-completion of the records and of ordering the
remedy precisely so he could dispose of the case. The matter could have
taken a different dimension if during all those ten years between 1979
when accused filed his memorandum and 1989 when the case was
reraffled, the accused showed signs of asserting his right which was
granted him in 1987 when the new constitution took effect, or at least
made some overt act (like a motion for early disposition or a motion to
compel the stenographer to transcribe stenographic notes) that he was
not waiving it. As it is, his silence would have to be interpreted as a
waiver of such right.
While this Court recognizes the right to speedy disposition quite distinctly
from the right to a speedy trial, and although this Court has always
zealously espoused protection from oppressive and vexatious delays not
attributable to the party involved, at the same time, we hold that a party's
individual rights should not work against and preclude the people's
equally important right to public justice. In the instant case, three people
died as a result of the crash of the airplane that the accused was flying. It
appears to us that the delay in the disposition of the case prejudiced not
just the accused but the people as well. Since the accused has
completely failed to assert his right seasonably and inasmuch as the
respondent judge was not in a position to dispose of the case on the
merits due to the absence of factual basis, we hold it proper and
equitable to give the parties fair opportunity to obtain (and the court to
dispense) substantial justice in the premises.48
Time runs against the slothful and those who neglect their rights.49 In fact,
the delay in the confirmation of his sentence was to his own advantage,
because without the confirmation from the President, his sentence cannot
be served.
Anent petitioner's other arguments, the same are already rendered moot
and academic due to the above discussions.1âwphi1
Grave abuse of discretion means such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough. It must be grave abuse of discretion, as when
the power is exercised in an arbitrary or despotic manner by reason of
 10
LT. COL. LINO A. SANCHEZ and MAJOR VICENTE S. MANAGAY, In his comment, the Special Prosecutor, Office of the Ombudsman,
petitioners, acknowledged the recent enactment of Republic Act No. 7975, approved
vs. on March 30, 1995, under which the Sandiganbayan "lots" its jurisdiction
THE SANDIGANBAYAN, THE OMBUDSMAN and THE PEOPLE OF over the case primarily because the public officials charged, petitioners
THE PHILIPPINES, respondents. herein, were officers of the Philippine Army below the rank of full colonel.
Hence, in the words of the Special Prosecutor, "necessarily the herein
PARDO, J.: criminal case No. 20461 against petitioners should be referred to the
The case before the Court is a special civil action for certiorari with proper court as trial has not begun in the public respondent
preliminary injunction assailing the resolutions of the Sandiganbayan, Sandiganbayan." 5 Regrettably, the Sandiganbayan denied petitioners'
Second Division, 1 that denied petitioners' joint motion to dismiss Criminal motion for reconsideration even when at the time it was resolved
Case No. 20461 against petitioners and Gaudencio Romualdez, on the Republic Act No. 7975 was in effect, and its enactment was precisely to
ground of lack of jurisdiction over the offense charged, as they were declog its docket of "small fry" cases.
previously charged before the court martial with violation of Article 95, Although the Sandiganbayan had jurisdiction at the time the charge was
Com. Act No. 408, as amended (Articles of War) involving the same facts filed on April 18, 1994, it no longer has jurisdiction over the case under
as the charge of violation of R.A. No. 3019, Section 3 (e) before the Republic Act No. 7976, enacted on March 30, 1995, or even under
Sandiganbayan. Republic Act No. 8249, enacted on February 5, 1997.
We grant the petition. In thus denying petitioners' motion for reconsideration seeking to dismiss
The facts may be related as follows: the information against them, the Sandiganbayan acted without
Petitioners are officers of the Philippine Army (PA). Lt. Col. Lino A. jurisdiction.
Sanchez at times material hereto was Commanding Officer, 9th Post WHEREFORE, the Court hereby GRANTS the petition for certiorari and
Engineer Detachment, Headquarters and Headquarters Support Group ANNULS the resolutions of the Sandiganbayan, dated March 14, 1995,
(HHSG), Philippine Army. Major Vicente S. Managay was G-4, HHSG, and April 19, 1995, in Criminal Case No. 20461.
Philippine Army. The Court orders the Sandiganbayan to forthwith refer Criminal Case No.
On February 4, 1993, Col. Celedonio Ancheta, pre-trial investigating 20461 to the proper court and to inform this Court of the action taken
officer, submitted a report to the Commanding General, Philippine Army, hereon within fifteen (15) days from notice.1âwphi1.nêt
stating that there was a prima facie case against petitioners for violation No costs.
of Article 95 of the Articles of War for causing the wrongful release of SO ORDERED.
P599,547.00 for payment of repair/renovation of G-10 Office, Philippine
Army, equivalent to 88.55% completion of the work when in truth and in
fact, only 25% of the work had been completed, to the damage and
prejudice of the government.
On the basis of the report, on June 16, 1993, the Judge Advocate,
Philippine Army, initiated court martial proceedings against petitioners
before the Philippine Army Permanent General Court Martial No. 2. In
addition, he referred the findings to the Provincial Prosecutor of Rizal,
recommending the filing of an information with the Sandiganbayan
against petitioners and Gaudencio Romualdez for violation of R.A. No.
3019.
On December 15, 1993, the Provincial Prosecutor of Rizal endorsed the
records to the Ombudsman.
Meantime, on April 8, 1994, petitioner Sanchez was arraigned before
General Court Martial No. 2, Philippine Army, and on July 1, 1994,
petitioner Managay was arraigned before the same court martial. They
pleaded not guilty.
On April 18, 1994, the Ombudsman filed with the Sandiganbayan an
information against petitioners Lino A. Sanchez and Vicente S. Managay
and Gaudencio Romualdez, for violation of R.A. No. 3019, Section 3 (e). 2
On September 1, 1994, petitioners filed a joint motion to dismiss the case
before the respondent Sandiganbayan on the ground that it has no
jurisdiction over the case.
On September 13, 1994, the Special Prosecutor filed an opposition/
comment to the motion to dismiss.
On March 14, 1995, the Sandiganbayan, Second Division, issued a
resolution denying the motion to dismiss, for lack of merit, ruling that the
offenses charged in the court martial and the information before the
Sandiganbayan are distinct and separate from each other.
On March 15, 1995, petitioners were arraigned before the
Sandiganbayan. They pleaded not guilty.
On March 27, 1995, petitioners filed a motion for reconsideration of the
denial reiterating that the Sandiganbayan had no jurisdiction over the
case as the court martial had acquired original and exclusive jurisdiction
over the case, pursuant to R.A. No. 7055, and that the acts complained of
in the charge sheet in the court martial and the Information before the
Sandiganbayan were the same or identical.
On April 19, 1995, the Sandiganbayan denied the motion for
reconsideration for lack of merit.
Hence, this petition.
On June 5, 1995, the Court resolved to require respondents to comment
on the petition, not to file a motion to dismiss, within ten (10) days from
notice. 3
On July 25, 1995, respondent Ombudsman filed his comment. 4
 11
LEO ECHEGARAY, petitioner, this Court of its power to stay execution was reasonable; (3) the Court did
vs. not lose jurisdiction to address incidental matters involved or arising from
SECRETARY OF JUSTICE, ET AL., respondents. the petition; (4) public respondents are estopped from challenging the
RESOLUTION Court's jurisdiction; and (5) there is no certainty that the law on capital
punishment will not be repealed or modified until Congress convenes and
PUNO, J.: considers all the various resolutions and bills filed before it.
For resolution are public respondents' Urgent Motion for Reconsideration Prefatorily, the Court likes to emphasize that the instant motions concern
of the Resolution of this Court dated January 4, 1990 temporarily matters that are not incidents in G.R. No. 117472, where the death
restraining the execution of petitioner and Supplemental Motion to Urgent penalty was imposed on petitioner on automatic review of his conviction
Motion for Reconsideration. It is the submission of public respondents by this Court. The instant motions were filed in this case, G.R. No.
that: 132601, where the constitutionality of R.A. No. 8177 (Lethal Injection
1 Law) and its implementing rules and regulations was assailed by
2 The Decision in this case having become final and petitioner. For this reason, the Court in its Resolution of January 4, 1999
executory, its execution enters the exclusive ambit of merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray
authority of the executive authority. The issuance of dated January 7, 1999 and Entry of Appearance of her counsel dated
the TRO may be construed as trenching on that January 5, 1999. Clearly, she has no legal standing to intervene in the
sphere of executive authority; case at bar, let alone the fact that the interest of the State is properly
3 
 represented by the Solicitor General.
We shall now resolve the basic issues raised by the public respondents.
4 The issuance of the temporary restraining order . . . I
creates dangerous precedent as there will never be an First. We do not agree with the sweeping submission of the public
end to litigation because there is always a possibility respondents that this Court lost its jurisdiction over the case at bar and
that Congress may repeal a law. hence can no longer restrain the execution of the petitioner. Obviously,
5 
 public respondents are invoking the rule that final judgments can no
longer be altered in accord with the principle that "it is just as important
6 Congress had earlier deliberated extensively on the that there should be a place to end as there should be a place to begin
death penalty bill. To be certain, whatever question litigation." 1 To start with, the Court is not changing even a comma of its
may now be raised on the Death Penalty Law before final Decision. It is appropriate to examine with precision the metes and
the present Congress within the 6-month period given bounds of the Decision of this Court that became final. These metes and
by this Honorable Court had in all probability been fully bounds are clearly spelled out in the Entry of Judgment in this case, viz:
debated upon . . . ENTRY OF JUDGMENT
7 
 This is to certify that on October 12, 1998 a decision rendered in the
above-entitled case was filed in this Office, the dispositive part of which
8 Under the time honored maxim lex futuro, judex reads as follows:
praeterito, the law looks forward while the judge looks WHEREFORE, the petition is DENIED insofar as petitioner seeks to
at the past, . . . the Honorable Court in issuing the declare the assailed statute (Republic Act No. 8177) as unconstitutional;
TRO has transcended its power of judicial review. but GRANTED insofar as Sections 17 and 19 of the Rules and
9 
 Regulations to Implement Republic Act No. 8177 are concerned, which
are hereby declared INVALID because (a) Section 17 contravenes Article
10 At this moment, certain circumstances/supervening 83 of the Revised Penal Code, as amended by Section 25 of Republic
events transpired to the effect that the repeal or Act No. 7659; and (b) Section 19 fails to provide for review and approval
modification of the law imposing death penalty has of the Lethal Injection Manual by the Secretary of Justice, and
become nil, to wit: unjustifiably makes the manual confidential, hence unavailable to
11 interested parties including the accused/convict and counsel.
a Respondents are hereby enjoined from enforcing and implementing
b The public pronouncement of President Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules
Estrada that he will veto any law imposing and Regulations to Implement Republic Act No. 8177 are appropriately
the death penalty involving heinous crimes. amended, revised and/or corrected in accordance with this Decision.
c 
 SO ORDERED.
and that the same has, on November 6, 1988 become final and executory
d The resolution of Congressman Golez, et al., and is hereby recorded in the Book of Entries of Judgment.
that they are against the repeal of the law; Manila, Philippine.
e 
 Clerk of Court
By: (SGD) TERESITA G. DIMAISIP
f The fact that Senator Roco's resolution to Acting Chief
repeal the law only bears his signature and Judicial Records Office
that of Senator Pimentel. The records will show that before the Entry of Judgment, the Secretary of
g Justice, the Honorable Serafin Cuevas, filed with this Court on October
In their Supplemental Motion to Urgent Motion for Reconsideration, public 21, 1998 a Compliance where he submitted the Amended Rules and
respondents attached a copy of House Resolution No. 629 introduced by Regulations implementing R.A. No. 8177 in compliance with our Decision.
Congressman Golez entitled "Resolution expressing the sense of the On October 28, 1998, Secretary Cuevas submitted a Manifestation
House of Representative to reject any move to review Republic Act No. informing the Court that he has caused the publication of the said
7659 which provided for the re-imposition of death penalty, notifying the Amended Rules and Regulations as required by the Administrative Code.
Senate, the Judiciary and the Executive Department of the position of the It is crystalline that the Decision of this Court that became final and
House of Representative on this matter, and urging the President to unalterable mandated: (1) that R.A. No. 8177 is not unconstitutional; (2)
exhaust all means under the law to immediately implement the death that sections 17 and 19 of the Rules and Regulations to Implement R.A.
penalty law." The Resolution was concurred in by one hundred thirteen No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and
(113) congressman. implemented until sections 17 and 19 of the Rules and Regulations to
In their Consolidated Comment, petitioner contends: (1) the stay order. . . Implement R.A. No. 8177 are amended. It is also daylight clear that this
is within the scope of judicial power and duty and does not trench on Decision was not altered a whit by this Court. Contrary to the submission
executive powers nor on congressional prerogatives; (2) the exercise by of the Solicitor General, the rule on finality of judgment cannot divest this
 12
Court of its jurisdiction to execute and enforce the same judgment.
Retired Justice Camilo Quiason synthesized the well established
jurisprudence on this issue as
follows: 2
xxx xxx xxx
the finality of a judgment does not mean that the Court has lost all its
powers nor the case. By the finality of the judgment, what the court loses
is its jurisdiction to amend, modify or alter the same. Even after the
judgment has become final the court retains its jurisdiction to execute and
enforce it. 3 There is a difference between the jurisdiction of the court to
execute its judgment and its jurisdiction to amend, modify or alter the
same. The former continues even after the judgment has become final for
the purpose of enforcement of judgment; the latter terminates when the
judgment becomes final. 4 . . . For after the judgment has become final
facts and circumstances may transpire which can render the execution
unjust or impossible.5
In truth, the arguments of the Solicitor General has long been rejected by
this Court. As aptly pointed out by the petitioner, as early as 1915, this
Court has unequivocably ruled in the case of Director of Prisons v. Judge
of First Instance, 6 viz:
This Supreme Court has repeatedly declared in various decisions, which
constitute jurisprudence on the subject, that in criminal cases, after the
sentence has been pronounced and the period for reopening the same
cannot change or alter its judgment, as its jurisdiction has terminated . . .
When in cases of appeal or review the cause has been returned thereto
for execution, in the event that the judgment has been affirmed, it
performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with
reference to the ending of the cause that the judicial authority terminates
by having then passed completely to the Executive. The particulars of the
execution itself, which are certainly not always included in the judgment
and writ of execution, in any event are absolutely under the control of the
judicial authority, while the executive has no power over the person of the
convict except to provide for carrying out of the penalty and to pardon.
Getting down to the solution of the question in the case at bar, which is
that of execution of a capital sentence, it must be accepted as a
hypothesis that postponement of the date can be requested. There can
be no dispute on this point. It is a well-known principle that
notwithstanding the order of execution and the executory nature thereof
on the date set or at the proper time, the date therefor can be postponed,
even in sentences of death. Under the common law this postponement
can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is
sufficient to state this principle of the common law to render impossible
that assertion in absolute terms that after the convict has once been
placed in jail the trial court can not reopen the case to investigate the
facts that show the need for postponement. If one of the ways is by
direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after
the (court) has performed its ministerial duty of ordering the execution . . .
and its part is ended, if however a circumstance arises that ought to delay
the execution, and there is an imperative duty to investigate the
emergency and to order a postponement. Then the question arises as to
whom the application for postponing the execution ought to be addressed
while the circumstances is under investigation and so to who has
jurisdiction to make the investigation.
The power to control the execution of its decision is an essential aspect
of jurisdiction. It cannot be the subject of substantial subtraction for our
Constitution 7 vests the entirety of judicial power in one Supreme Court
and in such lower courts as may be established by law. To be sure, the
important part of a litigation, whether civil or criminal, is the process of
execution of decisions where supervening events may change the
circumstance of the parties and compel courts to intervene and adjust the
rights of the litigants to prevent unfairness. It is because of these
unforseen, supervening contingencies that courts have been conceded
the inherent and necessary power of control of its processes and orders
to make them conformable to law and justice. 8 For this purpose, Section
6 of Rule 135 provides that "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 law or by these rules, any suitable process
or mode of proceeding may be adopted which appears conformable to
the spirit of said law or rules." It bears repeating that what the Court
restrained temporarily is the execution of its own Decision to give it
reasonable time to check its fairness in light of supervening events in
Congress as alleged by petitioner. The Court, contrary to popular
misimpression, did not restrain the effectivity of a law enacted by
Congress.1âwphi1.nêt
The more disquieting dimension of the submission of the public
respondents that this Court has no jurisdiction to restrain the execution of
petitioner is that it can diminish the independence of the judiciary. Since
the implant of republicanism in our soil, our courts have been conceded
the jurisdiction to enforce their final decisions. In accord with this
unquestioned jurisdiction, this Court promulgated rules concerning
pleading, practice and procedure which, among others, spelled out the
rules on execution of judgments. These rules are all predicated on the
assumption that courts have the inherent, necessary and incidental
power to control and supervise the process of execution of their
decisions. Rule 39 governs execution, satisfaction and effects of
judgments in civil cases. Rule 120 governs judgments in criminal cases. It
should be stressed that the power to promulgate rules of pleading,
practice and procedure was granted by our Constitutions to this Court to
enhance its independence, for in the words of Justice Isagani Cruz
"without independence and integrity, courts will lose that popular trust so
essential to the maintenance of their vigor as champions of justice." 9
Hence, our Constitutions continuously vested this power to this Court for
it enhances its independence. Under the 1935 Constitution, the power of
this Court to promulgate rules concerning pleading, practice and
procedure was granted but it appeared to be co-existent with legislative
power for it was subject to the power of Congress to repeal, alter or
supplement. Thus, its Section 13, Article VIII provides:
Sec.13. The Supreme Court shall have the power to promulgate rules
concerning pleading, practice and procedure in all courts, and the
admission to the practice of law. Said rules shall be uniform for all courts
of the same grade and shall not diminish, increase, or modify substantive
rights. The existing laws on pleading, practice and procedure are hereby
repealed as statutes, and are declared Rules of Court, subject to the
power of the Supreme Court to alter and modify the same. The Congress
have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of
law in the Philippines.
The said power of Congress, however, is not as absolute as it may
appear on its surface. In In re Cunanan 10 Congress in the exercise of its
power to amend rules of the Supreme Court regarding admission to the
practice of law, enacted the Bar Flunkers Act of 1953 11 which considered
as a passing grade, the average of 70% in the bar examinations after
July 4, 1946 up to August 1951 and 71% in the 1952 bar examinations.
This Court struck down the law as unconstitutional. In his ponencia, Mr.
Justice Diokno held that " . . . the disputed law is not a legislation; it is a
judgment — a judgment promulgated by this Court during the aforecited
years affecting the bar candidates concerned; and although this Court
certainly can revoke these judgments even now, for justifiable reasons, it
is no less certain that only this Court, and not the legislative nor executive
department, that may do so. Any attempt on the part of these department
would be a clear usurpation of its function, as is the case with the law in
question." 12 The venerable jurist further ruled: "It is obvious, therefore,
that the ultimate power to grant license for the practice of law belongs
exclusively to this Court, and the law passed by Congress on the matter
is of permissive character, or as other authorities say, merely to fix the
minimum conditions for the license." By its ruling, this Court qualified the
absolutist tone of the power of Congress to "repeal, alter or supplement
the rules concerning pleading, practice and procedure, and the admission
to the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973
Constitution. For the 1973 Constitution reiterated the power of this Court
"to promulgate rules concerning pleading, practice and procedure in all
courts, . . . which, however, may be repealed, altered or supplemented by
the Batasang Pambansa . . . ." More completely, Section 5(2)5 of its
Article X provided:
xxx xxx xxx
Sec.5. The Supreme Court shall have the following powers.
 13
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and procedure in all
courts, the admission to the practice of law, and the integration of the Bar,
which, however, may be repealed, altered, or supplemented by the
Batasang Pambansa. 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.
Well worth noting is that the 1973 Constitution further strengthened the
independence of the judiciary by giving to it the additional power to
promulgate rules governing the integration of the Bar. 13
The 1987 Constitution molded an even stronger and more independent
judiciary. Among others, it enhanced the rule making power of this Court.
Its Section 5(5), Article VIII provides:
xxx xxx xxx
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) 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. 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.
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. If
the manifest intent of the 1987 Constitution is to strengthen the
independence of the judiciary, it is inutile to urge, as public respondents
do, that this Court has no jurisdiction to control the process of execution
of its decisions, a power conceded to it and which it has exercised since
time immemorial.
To be sure, it is too late in the day for public respondents to assail the
jurisdiction of this Court to control and supervise the implementation of its
decision in the case at bar. As aforestated, our Decision became final and
executory on November 6, 1998. The records reveal that after November
6, 1998, or on December 8, 1998, no less than the Secretary of Justice
recognized the jurisdiction of this Court by filing a Manifestation and
Urgent Motion to compel the trial judge, the Honorable Thelma A.
Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true
copy of the Warrant of Execution dated November 17, 1998 bearing the
designated execution day of death convict Leo Echegaray and allow
(him) to reveal or announce the contents thereof, particularly the
execution date fixed by such trial court to the public when requested."
The relevant portions of the Manifestation and Urgent Motion filed by the
Secretary of Justice beseeching this Court "to provide the appropriate
relief" state:
xxx xxx xxx
5. Instead of filing a comment on Judge Ponferrada's Manifestation
however, herein respondent is submitting the instant Manifestation and
Motion (a) to stress, inter alia, that the non-disclosure of the date of
execution deprives herein respondent of vital information necessary for
the exercise of his statutory powers, as well as renders nugatory the
constitutional guarantee that recognizes the people's right to information
of public concern, and (b) to ask this Honorable Court to provide the
appropriate relief.
6. The non-disclosure of the date of execution deprives herein
respondent of vital information necessary for the exercise of his power of
supervision and control over the Bureau of Corrections pursuant to
Section 39, Chapter 8, Book IV of the Administrative Code of 1987, in
relation to Title III, Book IV of such Administrative Code, insofar as the
enforcement of Republic Act No. 8177 and the Amended Rules and
Regulations to Implement Republic Act No. 8177 is concerned and for the
discharge of the mandate of seeing to it that laws and rules relative to the
execution of sentence are faithfully observed.
7. On the other hand, the willful omission to reveal the information about
the precise day of execution limits the exercise by the President of
executive clemency powers pursuant to Section 19, Article VII (Executive
Department) of the 1987 Philippine Constitution and Article 81 of the
Revised Penal Code, as amended, which provides that the death
sentence shall be carried out "without prejudice to the exercise by the
President of his executive powers at all times." (Emphasis supplied) For
instance, the President cannot grant reprieve, i.e., postpone the
execution of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110
[1937]) in the absence of a precise date to reckon with. The exercise of
such clemency power, at this time, might even work to the prejudice of
the convict and defeat the purpose of the Constitution and the applicable
statute as when the date at execution set by the President would be
earlier than that designated by the court.
8. Moreover, the deliberate non-disclosure of information about the date
of execution to herein respondent and the public violates Section 7,
Article III (Bill of Rights) and Section 28, Article II (Declaration of
Principles and State Policies) of the 1987 Philippine Constitution which
read:
Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents and
papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development shall, be
afforded the citizen, subject to such limitations as may be provided by
law.
Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all transactions
involving public interest.
9. The "right to information" provision is self-executing. It supplies "the
rules by means of which the right to information may be enjoyed (Cooley,
A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing
the right and mandating the duty to afford access to sources of
information. Hence, the fundamental right therein recognized may be
asserted by the people upon the ratification of the Constitution without
need for any ancillary act of the Legislature (Id., at p. 165) What may be
provided for by the Legislature are reasonable conditions and limitations
upon the access to be afforded which must, of necessity, be consistent
with the declared State policy of full public disclosure of all transactions
involving public interest (Constitution, Art. II, Sec. 28). However, it cannot
be overemphasized that whatever limitation may be prescribed by the
Legislature, the right and the duty under Art. III, Sec. 7 have become
operative and enforceable by virtue of the adoption of the New
Charter." (Decision of the Supreme Court En Banc in Legaspi v. Civil
Service Commission, 150 SCRA 530, 534-535 [1987].
The same motion to compel Judge Ponferrada to reveal the date of
execution of petitioner Echegaray was filed by his counsel, Atty. Theodore
Te, on December 7, 1998. He invoked his client's right to due process
and the public's right to information. The Solicitor General, as counsel for
public respondents, did not oppose petitioner's motion on the ground that
this Court has no more jurisdiction over the process of execution of
Echegaray. This Court granted the relief prayed for by the Secretary of
Justice and by the counsel of the petitioner in its Resolution of December
15, 1998. There was not a whimper of protest from the public
respondents and they are now estopped from contending that this Court
has lost its jurisdiction to grant said relief. The jurisdiction of this Court
does not depend on the convenience of litigants.
II
Second. We likewise reject the public respondents' contention that the
"decision in this case having become final and executory, its execution
enters the exclusive ambit of authority of the executive department . . ..
By granting the TRO, the Honorable Court has in effect granted reprieve
which is an executive function." 14 Public respondents cite as their
authority for this proposition, Section 19, Article VII of the Constitution
which reads:
Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and
pardons, and remit fines and forfeitures after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a
majority of all the members of the Congress.
 14
The text and tone of this provision will not yield to the interpretation
suggested by the public respondents. The provision is simply the source
of power of the President to grant reprieves, commutations, and pardons
and remit fines and forfeitures after conviction by final judgment. It also
provides the authority for the President to grant amnesty with the
concurrence of a majority of all the members of the Congress. The
provision, however, cannot be interpreted as denying the power of courts
to control the enforcement of their decisions after their finality. In truth, an
accused who has been convicted by final judgment still possesses
collateral rights and these rights can be claimed in the appropriate courts.
For instance, a death convict who become insane after his final
conviction cannot be executed while in a state of insanity. 15 As observed
by Antieau, "today, it is generally assumed that due process of law will
prevent the government from executing the death sentence upon a
person who is insane at the time of execution." 16 The suspension of such
a death sentence is undisputably an exercise of judicial power. It is not a
usurpation of the presidential power of reprieve though its effects is the
same — the temporary suspension of the execution of the death convict.
In the same vein, it cannot be denied that Congress can at any time
amend R.A. No. 7659 by reducing the penalty of death to life
imprisonment. The effect of such an amendment is like that of
commutation of sentence. But by no stretch of the imagination can the
exercise by Congress of its plenary power to amend laws be considered
as a violation of the power of the President to commute final sentences of
conviction. The powers of the Executive, the Legislative and the Judiciary
to save the life of a death convict do not exclude each other for the
simple reason that there is no higher right than the right to life. Indeed, in
various States in the United States, laws have even been enacted
expressly granting courts the power to suspend execution of convicts and
their constitutionality has been upheld over arguments that they infringe
upon the power of the President to grant reprieves. For the public
respondents therefore to contend that only the Executive can protect the
right to life of an accused after his final conviction is to violate the
principle of co-equal and coordinate powers of the three branches of our
government.
III
Third. The Court's resolution temporarily restraining the execution of
petitioner must be put in its proper perspective as it has been grievously
distorted especially by those who make a living by vilifying courts.
Petitioner filed his Very Urgent Motion for Issuance of TRO on December
28, 1998 at about 11:30 p.m. He invoked several grounds, viz: (1) that his
execution has been set on January 4, the first working day of 1999; (b)
that members of Congress had either sought for his executive clemency
and/or review or repeal of the law authorizing capital punishment; (b.1)
that Senator Aquilino Pimentel's resolution asking that clemency be
granted to the petitioner and that capital punishment be reviewed has
been concurred by thirteen (13) other senators; (b.2) Senate President
Marcelo Fernan and Senator Miriam S. Defensor have publicly declared
they would seek a review of the death penalty law; (b.3) Senator Paul
Roco has also sought the repeal of capital punishment, and (b.4)
Congressman Salacrib Baterina, Jr., and thirty five (35) other
congressmen are demanding review of the same law.
When the Very Urgent Motion was filed, the Court was already in its
traditional recess and would only resume session on January 18, 1999.
Even then, Chief Justice Hilario Davide, Jr. called the Court to a Special
Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's
Very Urgent Motion. The Court hardly had five (5) hours to resolve
petitioner's motion as he was due to be executed at 3 p.m. Thus, the
Court had the difficult problem of resolving whether petitioner's
allegations about the moves in Congress to repeal or amend the Death
Penalty Law are mere speculations or not. To the Court's majority, there
were good reasons why the Court should not immediately dismiss
petitioner's allegations as mere speculations and surmises. They noted
that petitioner's allegations were made in a pleading under oath and were
widely publicized in the print and broadcast media. It was also of judicial
notice that the 11th Congress is a new Congress and has no less than
one hundred thirty (130) new members whose views on capital
punishment are still unexpressed. The present Congress is therefore
different from the Congress that enacted the Death Penalty Law (R.A. No.
7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the
Court's minority felt that petitioner's allegations lacked clear factual
bases. There was hardly a time to verify petitioner's allegations as his
execution was set at 3 p.m. And verification from Congress was
impossible as Congress was not in session. Given these constraints, the
Court's majority did not rush to judgment but took an extremely cautious
stance by temporarily restraining the execution of petitioner. The
suspension was temporary — "until June 15, 1999, coeval with the
constitutional duration of the present regular session of Congress, unless
it sooner becomes certain that no repeal or modification of the law is
going to be made." The extreme caution taken by the Court was
compelled, among others, by the fear that any error of the Court in not
stopping the execution of the petitioner will preclude any further relief for
all rights stop at the graveyard. As life was at, stake, the Court refused to
constitutionalize haste and the hysteria of some partisans. The Court's
majority felt it needed the certainty that the legislature will not petitioner
as alleged by his counsel. It was believed that law and equitable
considerations demand no less before allowing the State to take the life
of one its citizens.
The temporary restraining order of this Court has produced its desired
result, i.e., the crystallization of the issue whether Congress is disposed
to review capital punishment. The public respondents, thru the Solicitor
General, cite posterior events that negate beyond doubt the possibility
that Congress will repeal or amend the death penalty law. He names
these supervening events as follows:
xxx xxx xxx
a
b The public pronouncement of President Estrada that
he will veto any law imposing the death penalty
involving heinous crimes.
c 

d The resolution of Congressman Golez, et al., that they
are against the repeal of the law;
e 

f The fact that Senator Roco's resolution to repeal the
law only bears his signature and that of Senator
Pimentel. 18
g
In their Supplemental Motion to Urgent Motion for Reconsideration, the
Solicitor General cited House Resolution No. 629 introduced by
Congressman Golez entitled "Resolution expressing the sense of the
House of Representatives to reject any move to review R.A. No. 7659
which provided for the reimposition of death penalty, notifying the Senate,
the Judiciary and the Executive Department of the position of the House
of Representative on this matter and urging the President to exhaust all
means under the law to immediately implement the death penalty law."
The Golez resolution was signed by 113 congressman as of January 11,
1999. In a marathon session yesterday that extended up 3 o'clock in the
morning, the House of Representative with minor, the House of
Representative with minor amendments formally adopted the Golez
resolution by an overwhelming vote. House Resolution No. 25 expressed
the sentiment that the House ". . . does not desire at this time to review
Republic Act 7659." In addition, the President has stated that he will not
request Congress to ratify the Second Protocol in review of the
prevalence of heinous crimes in the country. In light of these
developments, the Court's TRO should now be lifted as it has served its
legal and humanitarian purpose.
A last note. In 1922, the famous Clarence Darrow predicted that ". . . the
question of capital punishment had been the subject of endless
discussion and will probably never be settled so long as men believe in
punishment." 19 In our clime and time when heinous crimes continue to be
unchecked, the debate on the legal and moral predicates of capital
punishment has been regrettably blurred by emotionalism because of the
unfaltering faith of the pro and anti-death partisans on the right and
righteousness of their postulates. To be sure, any debate, even if it is no
more than an exchange of epithets is healthy in a democracy. But when
the debate deteriorates to discord due to the overuse of words that
wound, when anger threatens to turn the majority rule to tyranny, it is the
especial duty of this Court to assure that the guarantees of the Bill of
Rights to the minority fully hold. As Justice Brennan reminds us ". . . it is
the very purpose of the Constitution — and particularly the Bill of Rights
 15
— to declare certain values transcendent, beyond the reach of temporary
political majorities." 20 Man has yet to invent a better hatchery of justice
than the courts. It is a hatchery where justice will bloom only when we
can prevent the roots of reason to be blown away by the winds of rage.
The flame of the rule of law cannot be ignited by rage, especially the rage
of the mob which is the mother of unfairness. The business of courts in
rendering justice is to be fair and they can pass their litmus test only
when they can be fair to him who is momentarily the most hated by
society. 21
IN VIEW WHEREOF, the Court grants the public respondents' Urgent
Motion for Reconsideration and Supplemental Motion to Urgent Motion
for Reconsideration and lifts the Temporary Restraining Order issued in
its Resolution of January 4, 1999.
The Court also orders respondent trial court judge (Hon. Thelma A.
Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew
the date for execution of the convict/petitioner in accordance with
applicable provisions of law and the Rules of Court, without further delay.
SO ORDERED.
STRONGHOLD INSURANCE COMPANY, INC., Petitioner,
vs.
SPOUSES RUNE and LEA STROEM, Respondents.
DECISION
LEONEN, J.:
For resolution is a Petition for Review1 under Rule 45 of the Rules of
Court assailing the Decision2 dated November 20, 2012 of the Court of
Appeals in CA-G.R. CV No. 96017. The Court of Appeals ;iffirmed the
Decision3 of the Regional Trial Court of Makati, Branch 133 in Civil Case
No. 02-1108 for collection of a sum of money.
This case involves the proper invocation of the Construction Industry
Arbitration Committee's (CIAC) jurisdiction through an arbitration clause
in a construction contract. The main issue here is whether the dispute —
liability of a surety under a performance bond — is connected to a
construction contract and, therefore, falls under the exclusive jurisdiction
of the CIAC.
Spouses Rune and Lea Stroem (Spouses Stroem) entered into an
Owners-Contractor Agreement4 with Asis-Leif & Company, Inc. (Asis-Leif)
for the construction of a two-storey house on the lot owned by Spouses
Stroem. The lot was located at Lot 4A, Block 24, Don Celso Tuason
Street, Valley Golf Subdivision, Barangay Mayamot, Antipolo, Rizal.5
On November 15, 1999, pursuant to the agreement, Asis-Leif secured
Performance Bond No. LP/G(13)83056 in the amount of ₱4,500,000.00
from Stronghold Insurance Company, Inc. (Stronghold).6 Stronghold and
Asis-Leif, through Ms. Ma. Cynthia Asis-Leif, bound themselves jointly
and severally to pay the Spouses Stroem the agreed amount in the event
that the construction project is not completed.7
Asis-Leif failed to finish the projecton time despite repeated demands of
the Spouses Stroem.8
Spouses Stroem subsequently rescinded the agreement.9 They then
hired an independent appraiser to evaluate the progress of the
construction project.10
Appraiser Asian Appraisal Company, Inc.’s evaluation resulted in the
following percentage of completion: 47.53% of the residential building,
65.62% of the garage, and 13.32% of the swimming pool, fence, gate,
and land development.11
On April 5, 2001, Stronghold sent a letter to Asis-Leif requesting that the
company settle its obligations withthe Spouses Stroem. No response was
received from Asis-Leif.12
On September 12, 2002, the Spouses Stroem filed a Complaint (with
Prayer for Preliminary Attachment)13 for breach of contract and for sum of
money with a claim for damages against Asis-Leif, Ms. Cynthia Asis-Leif,
and Stronghold.14 Only Stronghold was served summons. Ms. Cynthia
Asis-Leif allegedly absconded and moved out of the country.15
On July 13, 2010, the Regional Trial Court rendered a judgment in favor
of the Spouses Stroem. The trial court ordered Stronghold to pay the
Spouses Stroem ₱4,500,000.00 with 6% legal interest from the time of
first demand.16 The dispositive portion of the trial court Decision reads:
WHEREFORE, finding plaintiffs’ cause of action to be sufficiently
established being supported by evidence on records, judgement is
hereby rendered in favor of the plaintiff spouses Rune and Lea Stroem
and against the defendant Stronghold Insurance Company Incorporated
ordering the latter topay the plaintiff the sums of:
1) Php4,500,000.00 with six (6%) percent legal interest from the time of
first demand and interest due shall earn legal interest from the time of
judicial demand until fully paid.
2) Php35,000.00 by way of attorney’s fees and other litigation expenses.
Defendant is further ordered topay the costs of this suit.
SO ORDERED.17
Both Stronghold and the Spouses Stroem appealed to the Court of
Appeals.18
The Court of Appeals affirmed with modification the trial court’s Decision.
It increased the amount of attorney’s fees to ₱50,000.00.19
The dispositive portion of the Court of Appeals Decision reads:
WHEREFORE,the appeal of Stronghold Company, Inc[.] is DISMISSED,
while the appeal of spouses Rune and Lea Stroem is PARTLY
GRANTED. The November 27, 2009 Decision of the Regional Trial Court
of Makati City is AFFIRMED with MODIFICATION that the award of
attorney’s fees is increased to ₱50,000.00
SO ORDERED.20
 16
On March 20, 2013, this court required the Spouses Stroem to submit
their Comment on the Petition.21 We noted the Spouses Stroem’s
Comment on July 31, 2013.22 We also required Stronghold to file its
Reply to the Comment,23 which was noted on December 9, 2013.24
Stronghold argues that the trial court did not acquire jurisdiction over the
case and, therefore, the Court of Appeals committed reversible error
when it upheld the Decision of the Regional Trial Court.25 The lower
courts should have dismissed the case in viewof the arbitration clause in
the agreement and considering that "[Republic Act No. 876] explicitly
confines the court’s authority only to pass upon the issue of whether there
is [an] agreement . . . providing for arbitration. In the affirmative, the
statute ordains that the court shall issue an order ‘summarily directing the
parties to proceed with the arbitration in accordance with the terms
thereof.’"26 Moreover, "the stipulations in said Agreement are part and
parcel of the conditions in the bond. Were it not for such stipulations in
said agreement, [Stronghold] would not have agreed to issue a bond in
favor of the Spouses Stroem. The parties tothe bond are ALB/Ms. Asis-
[L]eif, Spouses Stroem and [Stronghold] suchthat ALB/Ms. Asis-[L]eif
never ceased to be a party to the surety agreement."27
In any case, Stronghold’s liability under the performance bond is limited
only to additional costs for the completion of the project.28 In addition, the
Court of Appeals erred inholding that Stronghold changed its theory with
regard to the notice requirement29 and in modifying the trial court’s award
of attorney’s fees.30
On the other hand, the Spouses Stroem argue that Stronghold committed
forum shopping warranting dismissal of the case.31 According to the
Spouses Stroem, Stronghold deliberately committed forum shopping
when it filed the present petition despite the pendency of the Spouses
Stroem’s Motion for Partial Reconsideration of the Court of Appeals
Decision dated November 20, 2012.32
More importantly, the Owners-Contractor Agreement is "separate and
distinct from the Bond. The parties to the Agreement are ALB/Ms. Asis-
Leif and Spouses Stroem, while the parties to the Bond are Spouses
Stroem and Stronghold. The considerations for the two contracts are
likewise distinct. Thus, the arbitration clause in the Agreement is binding
only on the parties thereto, specifically ALB/Ms. Asis-Leif and Spouses
Stroem[.]"33
Contrary to Stronghold’s argument, Spouses Stroem argues that
stronghold is liable for the full amountof the performance bond. The terms
of the bond clearly show that Stronghold is liable as surety.34 Verily, notice
to Stronghold is not required for its liability to attach.35
The issues for consideration are:
(1) Whether the dispute involves a construction contract;
(2) Whether the CIAC has exclusive jurisdiction over the controversy
between the parties;
(3) Whether the Regional Trial Court should have dismissed the petition
outright as required by law and jurisprudence and referred the matter to
the CIAC; and
(4) Whether petitioner Stronghold Insurance Company, Inc. is liable under
Performance Bond No. LP/G(13)83056.
(a) Whether petitioner Stronghold Insurance Company, Inc. is only liable
as to the extent of any additional cost for the completion of the project
due toany increase in prices for labor and materials.
(b) Whether the case involves ordinary suretyship or corporate
suretyship.
After considering the parties’ arguments and the records of this case, this
court resolves to deny the Petition.
On forum-shopping
Respondents argue that petitioner committed forum shopping; hence, the
case should have been dismissed outright.
Records show that petitioner received a copy of the Decision of the Court
of Appeals on December 5, 2012.36 Petitioner did not file a Motion for
Reconsideration of the assailed Decision. It filed before this court a
Motion for Extension of Time To File Petition for Review requesting an
additional period of 30 days from December 20, 2012 or until January 19,
2013 to file the Petition.37
Respondents filed their Motion for Partial Reconsideration of the Court of
Appeals Decision on December 11, 2012.38 They sought the modification
of the Decision as to the amounts of moral damages, exemplary
damages, attorney’s fees, and costs of the suit.39
Respondents alleged in their Comment that as early as January 9, 2013,
petitioner received a copy of the Court of Appeals’ Resolution requiring
Comment on the Motion for Partial Reconsideration.40 Still, petitioner did
not disclose in its Verification and Certification Against Forum Shopping
the pendency of respondents’ Motion for Partial Reconsideration.41
For its part, petitioner claims that it did not commit forum shopping. It fully
disclosed in its Petition that what it sought to be reviewed was the
Decision dated November 20, 2012 of the Court of Appeals. "Petitioner
merely exercised its available remedy with respect to the Decision of the
Court of Appeals by filing [the] Petition."42 What the rules mandate to be
stated in the Certification Against Forum Shopping is the status of "any
other action." This other action involves the same issues and parties but
is an entirely different case.
Indeed, petitioner is guilty of forum shopping.
There is forum shopping when:
as a result of an adverse opinion in one forum, a party seeks a favorable
opinion (other than by appeal or certiorari) in another. The principle
applies not only with respect to suits filed in the courts but also in
connection with litigations commenced in the courts while an
administrative proceeding is pending[.]43 (Citation omitted)
This court has enumerated the elements of forum-shopping: "(a) identity
of parties, or at least such parties as represent the same interests in both
actions; (b) identity of rights asserted and reliefs prayed for, the reliefs
being founded on the same facts; and (c) the identity with respect to the
two preceding particulars in the two cases issuch that any judgment
rendered in the pending cases, regardless of which party is successful,
amount to res judicatain the other case."44 Rule 42, Section 245 in relation
to Rule 45, Section 4 of the Rules of Court mandates petitioner to submit
a Certification Against Forum Shopping and promptly inform this court
about the pendency of any similar action or proceeding before other
courts or tribunals. The rule’s purpose is to deter the unethical practice of
pursuing simultaneous remedies in different forums, which "wreaks havoc
upon orderly judicial procedure."46 Failure to comply with the rule is a
sufficient ground for the dismissal of the petition.47
Records show that petitioner’s duly authorized officer certified the
following on January 21, 2013: 4. I further certify that: (a) I have not
commenced any other action or proceeding involving the same issues in
the Supreme Court, Court of Appeals, or any other tribunal or agency; (b)
to the best of my knowledge, no such action or proceeding is pending in
the Supreme Court, the Court of Appeals or different Divisions thereof, or
any tribunal or agency; (c) if I should thereafter learn that a similar action
or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different Divisions thereof, or any other tribunal or
agency, I undertake to promptly inform the aforesaid courts and such
tribunal or agency of the fact within five (5) days therefrom.48
Petitioner failed to carry out its duty of promptly informing this court of any
pending action or proceeding before this court,the Court of Appeals, or
any other tribunal or agency. This court cannot countenance petitioner’s
disregard of the rules.
This court has held before that:
[u]ltimately, what is truly important to consider in determining whether
forum-shopping exists or not is the vexation caused the courts and
parties-litigant by a party who asks different courts and/or administrative
agencies to rule on the same or related causes and/or to grant the same
or substantially the same reliefs, in the process creating the possibility of
conflicting decisions being rendered by the different fora upon the same
issue.49 (Emphasis supplied)
On this basis, this case should be dismissed.
On arbitration and the CIAC’s jurisdiction
Petitioner changed the theory of its case since its participation in the trial
court proceedings. It raised the issue of lack of jurisdiction in view of an
arbitration agreement for the first time. Generally, parties may not raise
issues for the first time on appeal.50 Such practice is violative of the rules
and due process and is frowned upon by the courts. However, it is also
well-settled that jurisdiction can never be waived or acquired by estoppel.
51 Jurisdiction is conferred by the Constitution or by law.52 "Lack of
jurisdiction of the court over an action or the subject matter of an action
cannot be cured by the silence, by acquiescence, or even by express
consent of the parties."53
Section 4 of Executive Order No. 100854 is clear in defining the exclusive
jurisdiction of the CIAC:
 17
SECTION 4. Jurisdiction – The CIAC shall have original and exclusive
jurisdiction over disputes arising from, or connected with, contracts
entered into by parties involved in construction in the Philippines, whether
the dispute arises before or after the completion of the contract, or after
the abandonment or breach thereof. These disputes may involve
government or private contracts. For the Board to acquire jurisdiction, the
parties to a dispute must agree to submit the same to voluntary
arbitration.
The jurisdiction of the CIAC may include but is not limited to violation of
specifications for materials and workmanship; violation of the terms of
agreement; interpretation and/or application of contractual timeand
delays; maintenance and defects; payment, default of employer or
contractor and changes in contract cost.
Excluded from the coverage of thislaw are disputes arising from
employer-employee relationships which shall continue to be covered by
the Labor Code of the Philippines. (Emphasis supplied)
Similarly, Section 35 of RepublicAct No. 9285 or the Alternative Dispute
Resolution Act of 2004 states:
SEC. 35. Coverage of the Law. - Construction disputes which fall within
the original and exclusive jurisdiction of the Construction Industry
Arbitration Commission (the "Commission") shall include those between
or among parties to, or who are otherwise bound by, an arbitration
agreement, directly or by reference whether such parties are project
owner, contractor, subcontractor, quantity surveyor, bondsman or issuer
of an insurance policy in a construction project.
The Commission shall continue to exercise original and exclusive
jurisdiction over construction disputes although the arbitration is
"commercial" pursuant to Section 21 of this Act. (Emphasis supplied)
In Heunghwa Industry Co., Ltd., v. DJ Builders Corporation,55 this court
held that "there are two acts which may vest the CIAC with jurisdiction
over a construction dispute. One is the presence of an arbitration clause
in a construction contract, and the other is the agreement by the parties
to submit the dispute to the CIAC."56
This court has ruled that when a dispute arises from a construction
contract, the CIAC has exclusive and original jurisdiction.57 Construction
has been defined as referring to "all on-site works on buildings or altering
structures, from land clearance through completion including excavation,
erection and assembly and installation of components and equipment."58
In this case, there is no dispute asto whether the Owners-Contractor
Agreement between Asis-Leif and respondents is a construction contract.
Petitioner and respondents recognize that CIAC has jurisdiction over
disputes arising from the agreement.
What is at issue in this case is the parties’ agreement, or lack thereof, to
submit the case to arbitration. Respondents argue that petitioner is not a
party to the arbitration agreement. Petitioner did not consent to
arbitration. It is only respondent and Asis-Leif thatmay invoke the
arbitration clause in the contract.
This court has previously held that a performance bond, which is meant
"to guarantee the supply of labor,materials, tools, equipment, and
necessary supervision to complete the project[,]"59 is significantly and
substantially connected to the construction contract and, therefore, falls
under the jurisdiction of the CIAC.60
Prudential Guarantee and Assurance Inc. v. Anscor Land, Inc.61 involved
circumstances similar to the present case. In Prudential, property owner
Anscor Land, Inc. (ALI) entered into a contract for the construction of an
eight-unit townhouse located inCapitol Hills, Quezon City with contractor
Kraft Realty and Development Corporation (KRDC).62 KRDC secured the
completion of the construction project through a surety and performance
bond issued by Prudential Guarantee and Assurance Inc. (PGAI).63
The delay in the construction project resulted in ALI’s termination of the
contract and claim against the performance bond.64 "ALI [subsequently]
commenced arbitration proceedings against KRDC and PGAI in the
CIAC."65 PGAI, however, argued that it was not a party to the construction
contract.66
The CIAC ruled that PGAI was not liable under the performance bond.67
Upon review, the Court of Appeals held that PGAI was jointly and
severally liable with KRDC under the performance bond.68
PGAI appealed the Court of Appeals Decision and claimed that CIAC did
not have jurisdiction over the performance bond.69 This court ruled:
A guarantee or a surety contract under Article 2047 of the Civil Code of
the Philippines is an accessory contract because it is dependent for its
existence upon the principal obligation guaranteed by it.
In fact, the primary and only reason behind the acquisition of the
performance bond by KRDC was to guarantee to ALI that the
construction project would proceed in accordance with the contract terms
and conditions. In effect, the performance bond becomes liable for the
completion of the construction project in the event KRDC fails in its
contractual undertaking. Because of the performance bond, the
construction contract between ALI and KRDC is guaranteed to be
performed even if KRDC fails in its obligation. In practice, a performance
bond is usually a condition or a necessary component of construction
contracts. In the case at bar, the performance bond was so connected
with the construction contract that the former was agreed by the parties to
be a condition for the latter to push through and at the same time, the
former is reliant on the latter for its existence as an accessory contract.
Although not the construction contract itself, the performance bond is
deemed as an associate of the main construction contract that it cannot
be separated or severed from its principal. The Performance Bond is
significantly and substantially connected to the construction contract that
there can be no doubt it is the CIAC, under Section 4 of EO No. 1008,
which has jurisdiction over any dispute arising from or connected with it.70
(Emphasis supplied, citations omitted)
At first look, the Owners-Contractor Agreement and the performance
bond reference each other; the performance bond was issued pursuant to
the construction agreement.
A performance bond is a kind of suretyship agreement. A suretyship
agreement is an agreement "whereby a party, called the surety,
guarantees the performance by another party, called the principal or
obligor, of an obligation or undertaking in favor of another party, called the
obligee."71 In the same vein, a performance bond is "designed to afford
the project owner security that the . . . contractor, will faithfully comply
with the requirements of the contract . . . and make good [on the]
damages sustained by the project owner in case of the contractor’s
failure to so perform."72
It is settled that the surety’s solidary obligation for the performance of the
principal debtor’s obligation is indirect and merely secondary.73
Nevertheless, the surety’s liability tothe "creditor or promisee of the
principal is said to be direct, primary and absolute; in other words, he is
directly and equally bound with the principal."74
Verily, "[i]n enforcing a surety contract, the ‘complementary contracts-
construed-together’ doctrine finds application. According to this principle,
an accessory contract must beread in its entirety and together with the
principal agreement."75 Article 1374 of the Civil Code provides:
ART. 1374. The various stipulations of a contract shall be interpreted
together, attributing to the doubtful ones that sense which may result from
all of them taken jointly.
Applying the "complementary-contracts-construed-together" doctrine, this
court in Prudential held that the surety willingly acceded to the terms of
the construction contract despite the silence of the performance bond as
to arbitration:
In the case at bar, the performance bond was silent with regard to
arbitration. On the other hand, the construction contract was clear as to
arbitration in the event of disputes. Applying the said doctrine, we rule
that the silence of the accessory contract in this case could only be
construed as acquiescence to the main contract. The construction
contract breathes life into the performance bond. We are not ready to
assume that the performance bond contains reservations with regard to
some of the terms and conditions in the construction contract where in
fact it is silent. On the other hand, it is more reasonable to assume that
the party who issued the performance bond carefully and meticulously
studied the construction contract that it guaranteed, and if it had
reservations, it would have and should have mentioned them in the
surety contract.76 (Emphasis supplied)
This court, however, cannot apply the ruling in Prudential to the present
case. Several factors militate against petitioner’s claim.
The contractual stipulations in this case and in Prudential are different.
The relevant provisions of the Owners-Contractor Agreement in this case
state:
ARTICLE 5. THE CONTRACT DOCUMENTS
 18
The following documents prepared by the CONTRACTOR shall constitute petitioner to invoke arbitration at this late stage of the proceedings since
an integral part of this contract as fully as if hereto attached or herein to do so would go against the law's goal of prompt resolution of cases in
stated, except asotherwise modified by mutual agreement of parties, and the construction industry.
attached to this agreement. WHEREFORE, the petition is DENIED. The case is DISMISSED.
Attachment 5.1 Working Drawings Petitioner's counsel is STERNLY WARNED that a repetition or similar
Attachment 5.2 Outline Specifications violation of the rule on Certification Against Forum Shopping will be dealt
Attachment 5.3 Bill of Quantities with more severely.
Attachment 5.4 CONTRACTOR Business License SO ORDERED.
....
ARTICLE 7. PERFORMANCE (SURETY) BOND
7.1 Within 30 days of the signing of this agreement, CONTRACTOR shall
provide to OWNERS a performance bond, issued by a duly licensed
authority acceptable to the OWNERS, and equal to the amount of PHP
4,500,000.00 (Four Million and Five Hundred Thousand Philippine
Pesos),with the OWNERS as beneficiary.
7.2 The performance bond will guarantee the satisfactory and faithful
performance by the CONTRACTOR of all provisions stated within this
contract.
ARTICLE 8. ARBITRATION
8.1 Any dispute between the parties hereto which cannot be amicably
settled shall be finally settled by arbitration in accordance with the
provision of Republic Act 876, of The Philippines, as amended by the
Executive Order 1008 dated February 4, 1985.77 (Emphasis in the
original)
In contrast, the provisions of the construction contract in Prudential
provide:
Article 1
CONTRACT DOCUMENTS
1.1 The following shall form part of this Contractand together with this
Contract, are known as the "Contract Documents":
a. Bid Proposal
....
d. Notice to proceed
....
j. Appendices A & B (respectively, Surety Bond for Performance and,
Supply of Materials by the Developer)78 (Emphasis supplied)
This court in Prudential held that the construction contract expressly
incorporated the performance bond into the contract.79 In the present
case, Article 7 of the Owners-Contractor Agreement merely stated that a
performance bond shall be issued in favor of respondents, in which case
petitioner and Asis-Leif Builders and/or Ms. Ma. Cynthia Asis-Leif shall
pay ₱4,500,000.00 in the event that Asis-Leif fails to perform its duty
under the Owners-Contractor Agreement. 80 Consequently, the
performance bond merely referenced the contract entered into by
respondents and Asis-Leif, which pertained to Asis-Leif’s duty toconstruct
a two-storey residence building with attic, pool, and landscaping over
respondents’ property.81
To be clear, it is in the Owners-Contractor Agreement that the arbitration
clause is found.1âwphi1 The construction agreement was signed only by
respondents and the contractor, Asis-Leif, as represented by Ms. Ma.
Cynthia Asis-Leif. It is basic that "[c]ontracts take effect only between the
parties, their assigns and heirs[.]"82 Not being a party to the construction
agreement, petitioner cannot invoke the arbitration clause. Petitioner,
thus, cannot invoke the jurisdiction of the CIAC.
Moreover, petitioner’s invocation of the arbitration clause defeats the
purpose of arbitration in relation to the construction business. The state
has continuously encouraged the use of dispute resolution mechanisms
to promote party autonomy.83 In LICOMCEN, Incorporated v. Foundation
Specialists, Inc.,84 this court upheld the CIAC's jurisdiction in line with the
state's policy to promote arbitration:
The CIAC was created through Executive Order No. 1008 (E. 0. 1008), in
recognition of the need to establish an arbitral machinery that would
expeditiously settle construction industry disputes. The prompt resolution
of problems arising from or connected with the construction industry was
considered of necessary and vital for the fulfillment of national
development goals, as the construction industry provides employment to
a large segment of the national labor force and is a leading contributor to
the gross national product.85 (Citation omitted)
However, where a surety in a. construction contract actively participates
in a collection suit, it is estopped from raising jurisdiction later. Assuming
that petitioner is privy to the construction agreement, we cannot allow
 19
BUREAU OF CUSTOMS, Petitioner,
vs.
T H E H O N O R A B L E A G N E S V S T D E VA N A D E R A , A C T I N G
S E C R E TA RY, D E PA R T M E N T O F J U S T I C E ; H O N O R A B L E
JOVENCITO R. ZUNO, PEDRITO L. RANCES, ARMAN A. DE
ANDRES, PAUL CHI TING CO, KENNETH PUNDANERA, MANUEL T.
CO, SALLY L. CO,, STANLEY L. TAN, ROCHELLE E. VICENCIO, LIZA
R. MAGAWAY, JANICE L. CO, VIVENCIO ABANO, GREG YU, EDWIN
A G U S T I N , V I C TO R D . P I A M O N T E , U N I O I L P E T R O L E U M
PHILIPPINES, INC., and OILINK, INTERNATIONAL, INC.,
Respondents.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court, seeking to reverse and set aside the Court of Appeals
(CA) Resolutions dated March 26, 20101 and August 4, 2010,2 and to
reinstate the petition for certiorari in CA-G.R. SP No. 113069, or in the
alternative, to issue a decision finding probable cause to prosecute the
private respondents for violation of Sections 3601 and 3602, in relation to
Sections 2503 and 2530, paragraphs f and l (3), (4) and (5) of the Tariff
and Customs Code of the Philippines (TCCP), as amended.
The antecedents are as follows:
Private respondent UNIOIL Petroleum Philippines, Inc. is engaged in
marketing, distribution, and sale of petroleum, oil and other products,
while its co-respondent OILINK International, Inc. is engaged in
manufacturing, importing, exporting, buying, selling, or otherwise dealing
in at wholesale and retails of petroleum, oil, gas and of any and all
refinements and byproducts thereof. Except for respondent Victor D.
Piamonte who is a Licensed Customs Broker, the following private
respondents are either officers or directors of UNIOIL or OILINK:
1. Paul Chi Ting Co – Chairman of UNIOIL and OILINK
2. Kenneth Pundanera – President/Director of UNIOIL
3. Manuel T. Co – Officer/Director of UNIOIL
4. Sally L. Co – Officer/Director of UNIOIL
5. Stanley L. Tan – Officer/Director of UNIOIL
6. Rochelle E. Vicencio – Corporate Administrative Supervisor of UNIOIL
7. Liza R. Magaway – President of OILINK
8. Janice L. Co – Director of OILINK
9. Vivencio Abaño – Director of OILINK
10. Greg Yu – Director of OILINK
11. Edwin Agustin – Corporate Secretary of OILINK
On January 30, 2007, Commissioner Napoleon L. Morales of petitioner
Bureau of Customs (BOC) issued Audit Notification Letter (ANL) No.
0701246,3 informing the President of OILINK that the Post Entry Audit
Group (PEAG) of the BOC will be conducting a compliance audit,
including the examination, inspection, verification and/or investigation of
all pertinent records of OILINK's import transactions for the past three (3)-
year period counted from the said date.
On March 2, 2007, a pre-audit conference was held between the BOC
Audit Team4 and the representatives of OILINK.5 During the conference,
the Audit Team explained to OILINK representatives the purpose of the
postentry audit and the manner by which it would be conducted, and
advised it as to the import documents required for such audit.
On March 14, 2007, OILINK submitted to the Audit Team the following
documents: Post-Entry Audit Group General Customs Questionnaire,
General Information Sheet for the year 2006, SEC Registration, Articles
of Incorporation, Company By-laws, and Audited Financial Report for the
year 2005.
On April 20, 2007, the Audit Team requested OILINK to submit the other
documents stated in the List of Initial Requirements for Submission,
namely: 2004 Audited Financial Report, 2004-2006 Quarterly VAT
Returns with the accompanying schedule of importations, Organizational
chart/structure, and List of foreign suppliers with details on the products
imported and the total amount, on a yearly basis.
On May 7, 2007, OILINK expressed its willingness to comply with the
request for the production of the said documents, but claimed that it was
hampered by the resignation of its employees from the Accounting and
Supply Department. OILINK also averred that it would refer the matter to
the Commissioner of Customs in view of the independent investigation
being conducted by the latter.
On June 4, 2007, OILINK sent a letter stating that the documents which
the Audit Team previously requested were available with the Special
Committee of the BOC, and that it could not open in the meantime its
Bureau of Internal Revenue (BIR) – registered books of accounts for
validation and review purposes.
In a letter dated July 11, 2007, the Audit Team informed OILINK of the
adverse effects of its request for the postponement of the exit conference
and its continuous refusal to furnish it the required documents. It advised
OILINK that such acts constitute as waiver on its part to be informed of
the audit findings and an administrative case would be filed against it,
without prejudice to the filing of a criminal action.
On July 24, 2007, Commissioner Morales approved the filing of an
administrative case against OILINK for failure to comply with the
requirements of Customs Administrative Order (CAO) No. 4-2004.6 Such
case was filed on July 30, 2007.
On September 20, 2007, an Order was issued by the Legal Service of the
BOC, submitting the case for resolution in view of OILINK's failure to file
its Answer within the prescribed period.
On December 14, 2007, the Legal Service of the BOC rendered a
Decision finding that OILINK violated Section IV.A.2(c) and (e) of CAO 4-
20047 when it refused to furnish the Audit Team copies of the required
documents, despite repeated demands. The dispositive portion of the
Decision states:
WHEREFORE, in view of the foregoing, this Office finds herein
respondent liable for violating Sections IV.A.2 (c) and (e) of Customs
Administrative Order No. 4-2004, and a DECISION is hereby rendered:
1. Ordering OILINK INTERNATIONAL CORPORATION to pay the
equivalent of twenty percent (20%) ad valorem on the article/s subject of
the Importation for which no records were kept and maintained as
prescribed in Section 2504 of the Customs Code in the amount of Pesos:
Two Billion Seven Hundred Sixty-Four Million Eight Hundred Fifty-
Nine Thousand Three Hundred Four and 80/100 (Php
2,764,859,304.80);
2. Ordering the Bureau of Customs to hold the delivery or release of
subsequent imported articles to answer for the fine, any revised
assessment, and/or as a penalty for failure to keep records.
This is without prejudice to the filing of a criminal case or any appropriate
legal action against the importer in order to protect the interest of the
government and deter other importers from committing the same offense.
SO ORDERED.8
Pursuant to the Decision dated December 14, 2007, Commissioner
Morales, in a letter9 of even date, directed the President of OILINK to pay
the BOC the administrative fine of _2,764,859,304.80 for violation of CAO
No. 4-2004, in relation to Section 2504 of the TCCP. Copy of the said
Decision and letter were served to OILINK through personal service on
December 28, 2007.10
On March 13, 2008, Atty. Noemi B. Alcala, Officer-in-Charge, Collection
Service, Revenue and Monitoring Group, sent a final demand letter for
OILINK to settle the administrative fine, otherwise, the BOC will be
compelled to file the necessary legal action and put in force Section
150811 of the TCCP against its succeeding shipments to protect the
government's interest.12
On April 23, 2008, a Hold Order13 was issued by Horacio P. Suansing, Jr.,
District Collector, Port of Manila, against all shipments of OILINK for
failure to settle its outstanding account with the BOC and to protect the
interest of the government pursuant to Section 1508 of the TCCP.
On May 2, 2008, Rochelle E. Vicencio, Corporate Administrative
Supervisor of UNIOIL, citing the existing Terminalling Agreement dated
January 2, 2008 with OILINK for the Storage of UNIOIL's aromatic
process oil and industrial lubricating oils (collectively, "base oils"),
requested District Collector Suansing Jr. to allow it to withdraw base oils
from OILINK's temporarily closed Terminal.
On May 6, 2008, Commissioner Morales granted the request of UNIOIL
to withdraw its base oils stored at OILINK's terminal/depot based on the
Terminalling Agreement between the two companies, subject to the
following conditions:
1. Only Unioil products shall be withdrawn subject to proper inventory by
the BIR and BOC.
2. Appropriate duties and taxes due on the products to be withdrawn are
fully paid or settled.
 20
3. The company should allow the operation/withdrawal to be closely
monitored and continuously underguarded by assigned Customs
personnel.14
On May 9, 2008, a Warrant of Seizure and Detention (WSD), docketed as
Seizure Identification (S.I.) No. 2008-082, was issued by District Collector
Suansing Jr., directing the BOC officials to seal and padlock the oil tanks/
depots of OILINK located in Bataan.
On May 12, 2008, Kenneth C. Pundanera, Operations Manager of
UNIOIL, requested Zaldy E. Almoradie, District Collector of Mariveles,
Bataan, for permission to release UNIOIL-owned products from OILINK's
storage terminal. Pertinent portion of the request letter reads:
Unioil is a licensed importer of various Petroleum Products by virtue of its
import license LTAD-0-021-2002 issued on March 26, 2002 which was
revised to include all other petroleum products in 2007 through LTAMII
(P) 001-10-07-13639. To pursue its line of business, Unioil has an
existing Terminalling Agreement with Oilink for the storage of various
Unioil products at the Oilink terminal located at Lucanin Pt., Mariveles,
Bataan.
In view of the said temporary closure of Oilink's terminal, Unioil is
currently unable to fully utilize its leased tanks as well as make use of the
products contained therein. We understand that there is still an
unresolved issue between Oilink and the Bureau of Customs. However,
with all due respect, said issue should not affect Unioil because it is not a
party to the same, furthermore there is a legal and binding terminalling
agreement between Oilink and Unioil which should be honored.
Last May 8, 2008, an asphalt importation for Unioil Petroleum Philippines,
Inc. arrived in Mariveles, Bataan. This was issued the corresponding
discharging permit by the Bureau of Customs. All duties, excise taxes and
value added taxes for this product have already been settled. However,
we are still unable to withdraw these products in order to serve our
customers who are using the product to supply major government
infrastructure projects in the country.
In line with the endorsement coming from the Bureau of Customs
Commissioner Napoleon D. Morales issued last May 6, 2008, Unioil has
complied with the conditions stipulated therein which are:
1. Only Unioil products shall be withdrawn subject to proper inventory by
the BIR and BOC.
2. Appropriate duties and taxes due on the products to be withdrawn are
fully paid or settled.
3. The company (Unioil) should allow the operation/withdrawal to be
closely monitored and continuously underguarded by assigned Customs
personnel.
In this regard, may we respectfully request your good office to please
allow Unioil to withdraw from Oilink's terminal its products which are
stored in the following tanks[:]15
TANK PROD CONTENTS (Liters)
2 diesel 2,171,670.00
6 rexo 1,862,846.00
10 asphalt 4,573.14
13 gasoline 809,345.00
14 gasoline 746,629.00
17 diesel 360,097.00
19 sn 500 203,659.00
20 sn 500 643,236.00
In the same request letter, District Collector Almoradie approved the
release of the above petroleum products through a handwritten note
dated May 12, 2008: "All concerned: Pls. allow the release of the Unioil-
owned products from the Oilink Storage Terminal per this request.
Thanks."16
On May 15, 2008, Pundanera wrote a clarificatory letter pursuant to the
verbal instruction of District Collector Almoradie to explain the withdrawal
of products from the Terminal of OILINK, to wit:
As far as Unioil is concerned, we affirm to your good office that the
products withdrawn/loaded at the Terminal are entirely Unioil products.
Unioil owns these products pursuant to its supply and terminalling
agreements with Oilink. (We shall be submitting to you copies of these
documents as soon as they arrive from our office in Manila.) In addition,
due to the issue involving Oilink and the Bureau of Customs, Unioil was
forced to secure its petroleum products from local sources in order to
comply with its valid contractual commitments.
Unioil intended to withdraw these products because it believed in good
faith and based on documents in its possession that it is allowed to do so.
Unioil based its intention pursuant to the Indorsements of the Collector of
the Port of Manila as well as the Office of the Commissioner that allowed
the withdrawal of Unioil products subject to compliance with the three (3)
conditions specified in the abovementioned Indorsements.
This being the precedent, we believe in good faith that, since Unioil owns
the products, and it is considered a stranger to the issue between Oilink
and the Bureau, then Unioil is allowed to withdraw the products it owns
subject to the compliance with the three (3) stated conditions. Besides,
any withdrawal is covered by an appropriate delivery receipt, which would
clearly indicate that Unioil owns the products being withdrawn.17
In a complaint-affidavit dated December 15, 2008, Atty. Balmyrson M.
Valdez, a member of the petitioner BOC's Anti-Oil Smuggling
Coordinating Committee that investigated the illegal withdrawal by
UNIOIL of oil products consigned to OILINK, valued at _181,988,627.00
with corresponding duties and taxes in the amount of _35,507,597.00,
accused the private respondents of violation of Sections 360118 and
3602,19 in relation to Sections 250320 and 2530,21 paragraphs f and l (3),
(4) and (5), of the TCCP.
In a letter22 dated December 15, 2008, Commissioner Morales referred to
the Office of Chief State Prosecutor Jovencito R. Zuño the said
complaintaffidavit, together with its annexes, for preliminary investigation.
During the said investigation, BOC's counsel appeared and all of the
private respondents submitted their respective counter-affidavits.
In a Resolution23 dated May 29, 2009, public respondent Arman A. De
Andres, State Prosecutor of the Department of Justice (DOJ),
recommended the dismissal of the complaint-affidavit for lack of probable
cause. The Resolution was approved by public respondents Assistant
Chief State Prosecutor Pedrito L. Rances and Chief State Prosecutor
Zuño. On automatic review, the Resolution was affirmed by then
Secretary of Justice Raul M. Gonzales.24
Dissatisfied, the BOC filed a motion for reconsideration which was denied
by the public respondent, the Acting Secretary of Justice Agnes VST
Devanadera, in a Resolution25 dated December 28, 2009.
On March 11, 2010, the BOC filed a petition for certiorari with the CA.
In the Resolution dated March 26, 2010, the CA dismissed outright the
petition due to procedural defects:
The instant petition (i) contains no explanation why service thereof was
not done personally (Sec. 11, Rule 13, 1997 Rules of Civil Procedure); (ii)
shows that it has no proper verification and certification against forum
shopping and (iii) the docket and other lawful fees payment is short by
P1,530.00.26
In the Resolution dated August 4, 2010, the CA denied the private
respondents' motion for reconsideration of the March 26, 2010
Resolution, as follows:
We made a cursory examination of the petition filed in this case as well
as the whole rollo of the case. It is our finding that, up to the date hereof,
the petitioner has not duly submitted to this Court another set of petition
with a certification against forum shopping embodied therein or appended
thereto. Thus, the petition really suffers from a fatal defect until now, and
so, the petitioner has to bear the consequence thereof.27
The CA stressed that procedural rules are not to be belittled or dismissed
simply because their non-observance may have resulted in prejudice to a
party's substantive rights. Like all rules, they are required to be followed
except only when, for the most persuasive of reasons, they may be
relaxed to relieve a litigant of an injustice not commensurate with the
 21
degree of thoughtlessness in not complying with the procedure
prescribed. While it is true that litigation is not a game of technicalities,
this does not mean that Rules of Court may be ignored at will and at
random to the prejudice of the orderly presentation and assessment of
the issues and their just resolution.
Aggrieved, the BOC filed the instant petition for review on certiorari,
raising the following issues:
WHETHER THE HONORABLE COURT OF APPEALS SERIOUSLY
ERRED WHEN IT DENIED PETITIONER'S MOTION FOR
RECONSIDERATION SOLELY ON THE GROUND THAT, ALLEGEDLY,
IT DID NOT RECEIVE THE SECOND AND COMPLETE COPY OF THE
PETITION, CONTAINING THE VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING.
WHETHER THE HONORABLE COURT OF APPEALS GRIEVOUSLY
ERRED IN LAW AND JURISPRUDENCE WHEN IT AFFIRMED ITS 26
MARCH 2010 RESOLUTION, DISMISSING THE PETITION ON
ACCOUNT OF MERE TECHNICALITIES.
WHETHER THE HONORABLE COURT OF APPEALS COMMITTED
SERIOUS ERROR WHEN IT DID NOT LOOK INTO THE MERITS OF
THE CASE, WHERE IT WAS CLEARLY ESTABLISHED THAT THERE IS
PROBABLE CAUSE TO INDICT RESPONDENTS FOR TRIAL FOR
VIOLATION OF SECTION 3601 AND 3602 IN RELATION TO SECTION
2530, PARAGRAPHS (E), AND SECTION 3604 (D), (E), (F), AND (H) OF
THE TCCP, AS AMENDED.28
The petition is partly meritorious.
Although the question of jurisdiction over the subject matter was not
raised at bench by either of the parties, the Court will first address such
question before delving into the procedural and substantive issues of the
instant petition. After all, it is the duty of the courts to consider the
question of jurisdiction before they look into other matters involved in the
case, even though such question is not raised by any of the parties.29
Courts are bound to take notice of the limits of their authority and, even if
such question is neither raised by the pleadings nor suggested by
counsel, they may recognize the want of jurisdiction and act accordingly
by staying pleadings, dismissing the action, or otherwise noticing the
defect, at any stage of the proceedings.30 Besides, issues or errors not
raised by the parties may be resolved by the Court where, as in this case,
the issue is one of jurisdiction; it is necessary in arriving at a just decision;
and the resolution of the issues raised by the parties depend upon the
determination of the unassigned issue or error, or is necessary to give
justice to the parties.31
On the issue of whether or not the CA has certiorari jurisdiction over the
resolution of the Acting Secretary of Justice, affirming the dismissal of the
complaint-affidavit for violation of provisions of the TCCP due to lackof
probable cause, the Court rules in negative.
The elementary rule is that the CA has jurisdiction to review the resolution
of the DOJ through a petition for certiorari under Rule 65 of the Rules of
Court on the ground that the Secretary of Justice committed grave abuse
of his discretion amounting to excess or lack of jurisdiction.32 However,
with the enactment33 of Republic Act (R.A.) No. 9282, amending R.A. No.
112534 by expanding the jurisdiction of the CTA, enlarging its membership
and elevating its rank to the level of a collegiate court with special
jurisdiction, it is no longer clear which between the CA and the CTA has
jurisdiction to review through a petition for certiorari the DOJ resolution in
preliminary investigations involving tax and tariff offenses.
Apropos is City of Manila v. Hon. Grecia-Cuerdo35 where the Court en
banc declared that the CTA has appellate jurisdiction over a special civil
action for certiorari assailing an interlocutory order issued by the RTC in a
local tax case, despite the fact that there is no categorical statement to
that effect under R.A. No. 1125, as well as the amendatory R.A. No.
9282. Thus:
x x x Section 5 (1), Article VIII of the 1987 Constitution grants power to
the Supreme Court, in the exercise of its original jurisdiction, to issue
writs of certiorari, prohibition and mandamus. With respect to the Court of
Appeals, Section 9 (1) of Batas Pambansa Blg. 129 (BP 129) gives the
appellate court, also in the exercise of its original jurisdiction, the power
to issue, among others, a writ of certiorari, whether or not in aid of its
appellate jurisdiction. As to Regional Trial Courts, the power to issue a
writ of certiorari, in the exercise of their original jurisdiction, is provided
under Section 21 of BP 129.
The foregoing notwithstanding, while there is no express grant of such
power, with respect to the CTA, Section 1, Article VIII of the 1987
Constitution provides, nonetheless, that judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by
law and that 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.
On the strength of the above constitutional provisions, it can be fairly
interpreted that the power of the CTA includes that of determining
whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the RTC in issuing an
interlocutory order in cases falling within the exclusive appellate
jurisdiction of the tax court. It, thus, follows that the CTA, by constitutional
mandate, is vested with jurisdiction to issue writs of certiorari in these
cases.
Indeed, in order for any appellate court to effectively exercise its appellate
jurisdiction, it must have the authority to issue, among others, a writ of
certiorari. In transferring exclusive jurisdiction over appealed tax cases to
the CTA, it can reasonably be assumed that the law intended to transfer
also such power as is deemed necessary, if not indispensable, in aid of
such appellate jurisdiction. There is no perceivable reason why the
transfer should only be considered as partial, not total.
xxxx
Furthermore, Section 6, Rule 135 of the present Rules of Court provides
that 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.
If this Court were to sustain petitioners' contention that jurisdiction over
their certiorari petition lies with the CA, this Court would be confirming the
exercise by two judicial bodies, the CA and the CTA, of jurisdiction over
basically the same subject matter – precisely the split-jurisdiction situation
which is anathema to the orderly administration of justice. The Court
cannot accept that such was the legislative motive, especially considering
that the law expressly confers on the CTA, the tribunal with the
specialized competence over tax and tariff matters, the role of judicial
review over local tax cases without mention of any other court that may
exercise such power. Thus, the Court agrees with the ruling of the CA that
since appellate jurisdiction over private respondents' complaint for tax
refund is vested in the CTA, it follows that a petition for certiorari seeking
nullification of an interlocutory order issued in the said case should,
likewise, be filed with the same court. To rule otherwise would lead to an
absurd situation where one court decides an appeal in the main case
while another court rules on an incident in the very same case.
Stated differently, it would be somewhat incongruent with the pronounced
judicial abhorrence to split jurisdiction to conclude that the intention of the
law is to divide the authority over a local tax case filed with the RTC by
giving to the CA or this Court jurisdiction to issue a writ of certiorari
against interlocutory orders of the RTC but giving to the CTA the
jurisdiction over the appeal from the decision of the trial court in the same
case. It is more in consonance with logic and legal soundness to
conclude that the grant of appellate jurisdiction to the CTA over tax cases
filed in and decided by the RTC carries with it the power to issue a writ of
certiorari when necessary in aid of such appellate jurisdiction. The
supervisory power or jurisdiction of the CTA to issue a writ of certiorari in
aid of its appellate jurisdiction should co-exist 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.
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.
 22
Lastly, it would not be amiss to point out that 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.
In this regard, Section 1 of RA 9282 states that the CTA shall be of the
same level as the CA and shall possess all the inherent powers of a court
of justice.
Indeed, courts possess certain inherent powers which 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 court's jurisdiction and render it effective in behalf
of the litigants.
Thus, this Court has held that "while a court may be expressly granted
the incidental powers necessary to effectuate its jurisdiction, a grant of
jurisdiction, in the absence of prohibitive legislation, implies the
necessary and usual incidental powers essential to effectuate it, and,
subject to existing laws and constitutional provisions, every regularly
constituted court has power to do all things that are reasonably
necessary for the administration of justice within the scope of its
jurisdiction and for the enforcement of its judgments and mandates."
Hence, demands, matters or questions ancillary or incidental to, or
growing out of, the main action, and coming within the above principles,
may be taken cognizance of by the court and determined, since such
jurisdiction is in aid of its authority over the principal matter, even though
the court may thus be called on to consider and decide matters which, as
original causes of action, would not be within its cognizance.
Based on the foregoing disquisitions, it can be reasonably concluded that
the authority of the CTA to take cognizance of petitions for certiorari
questioning interlocutory orders issued by the RTC in a local tax case is
included in the powers granted by the Constitution as well as inherent in
the exercise of its appellate jurisdiction.36
Since the Court ruled in City of Manila v. Hon. Grecia-Cuerdo37 that the
CTA has jurisdiction over a special civil action for certiorari questioning an
interlocutory order of the RTC in a local tax case via express
constitutional mandate and for being inherent in the exercise of its
appellate jurisdiction, it can also be reasonably concluded based on the
same premise that the CTA has original jurisdiction over a petition for
certiorari assailing the DOJ resolution in a preliminary investigation
involving tax and tariff offenses.
If the Court were to rule that jurisdiction over a petition for certiorari
assailing such DOJ resolution lies with the CA, it would be confirming
theexercise by two judicial bodies, the CA and the CTA, of jurisdiction
over basically the same subject matter – precisely the split-jurisdiction
situation which is anathema to the orderly administration of justice. The
Court cannot accept that such was the legislative intent, especially
considering that R.A. No. 9282 expressly confers on the CTA, the tribunal
with the specialized competence over tax and tariff matters, the role of
judicial review over local tax cases without mention of any other court that
may exercise such power.38
Concededly, there is no clear statement under R.A. No. 1125, the
amendatory R.A. No. 9282, let alone in the Constitution, that the CTA has
original jurisdiction over a petition for certiorari. By virtue of Section 1,
Article VIII of the 1987 Constitution, vesting judicial power in the Supreme
Court and such lower courts as may be established by law, to determine
whether or not there has been a grave abuse of discretion on the part of
any branch or instrumentality of the Government, in relation to Section
5(5), Article VIII thereof, vesting upon it the power to promulgate rules
concerning practice and procedure in all courts, the Court thus declares
that the CA's original jurisdiction39 over a petition for certiorari assailing
the DOJ resolution in a preliminary investigation involving tax and tariff
offenses was necessarily transferred to the CTA pursuant to Section 7 of
R.A. No. 9282,40 and that such petition shall be governed by Rule 65 of
the Rules of Court, as amended. Accordingly, it is the CTA, not the CA,
which has jurisdiction over the petition for certiorari assailing the DOJ
resolution of dismissal of the BOC's complaint-affidavit against private
respondents for violation of the TCCP.
On the procedural issue of whether the CA erred in dismissing the
petition for certiorari on the sole ground of lack of verification and
certification against forum shopping, the Court rules in the affirmative,
despite the above discussion that such petition should have been filed
with the CTA.
In Traveño, et al. v. Bobongon Banana Growers Multi-Purpose
Cooperative, et al.,41 the Court restated the jurisprudence on non-
compliancewith the requirements on, or submission of defective,
verification and certification against forum shopping:
1) A distinction must be made between non-compliance with the
requirement on or submission of defective verification, and
noncompliance with the requirement on or submission of defective
certification against forum shopping.
2) As to verification, non-compliance therewith or a defect therein does
not necessarily render the pleading fatally defective. The court may order
its submission or correction or act on the pleading if the attending
circumstances are such that strict compliance with the Rule may be
dispensed with in order that the ends of justice may be served thereby.
3) Verification is deemed substantially complied with when one who has
ample knowledge to swear to the truth of the allegations in the complaint
or petition signs the verification, and when matters alleged in the petition
have been made in good faith or are true and correct.
4) As to certification against forum shopping, non-compliance therewith or
a defect therein, unlike in verification, is generally not curable by its
subsequent submission or correction thereof, unless there is a need to
relax the Rule on the ground of "substantial compliance" or presence of
"special circumstances or compelling reasons."
5) The certification against forum shopping must be signed by all the
plaintiffs or petitioners in a case; otherwise, those who did not sign will be
dropped as parties to the case. Under reasonable or justifiable
circumstances, however, as when all the plaintiffs or petitioners share a
common interest and invoke a common cause of action or defense, the
signature of only one of them in the certification against forum shopping
substantially complies with the Rule.
6) Finally, the certification against forum shopping must be executed by
the party-pleader, not by his counsel. If, however, for reasonable or
justifiable reasons, the party-pleader is unable to sign, he must execute a
Special Power of Attorney designating his counsel of record to sign on his
behalf.42
While it admittedly filed a petition for certiorari without a certification
against forum shopping on March 11, 2010, the BOC claimed to have
subsequently complied with such requirement by filing through registered
mail a complete set of such petition, the following day which was also the
last day of the reglementary period. The problem arose when the CA
failed to receive such complete set of the petition for certiorari with the
verification and certification against forum shopping. In support of the
motion for reconsideration of the CA's March 26, 2010 resolution which
dismissed outright the petition, the BOC asserted that it filed a complete
set of petition by registered mail. It also submitted an affidavit of the
person who did the mailing as required by Section 12,43 Rule 13 of the
Rules of Court, including the registry receipt numbers, but not the receipts
themselves which were allegedly attached to the original copy mailed to
the CA. Instead of ordering the BOC to secure a certification from the
postmaster to verify if a complete set of the petition was indeed filed by
registered mail, the CA – after examining the whole case rollo and finding
that no other set of petition with a certification against forum shopping
was duly submitted – denied the motion for reconsideration.
Faced with the issue of whether or not there is a need to relax the strict
compliance with procedural rules in order that the ends of justice may be
served thereby and whether "special circumstances or compelling
reasons" are present to warrant a liberal interpretation of such rules, the
Court rules – after a careful review of the merits of the case – in the
affirmative.
Despite the BOC's failed attempt to comply with the requirement of
verification and certification against forum shopping, the Court cannot
simply ignore the CA's perfunctory dismissal of the petition on such sole
procedural ground vis-à-vis the paramount public interest in the subject
matter and the substantial amount involved, i.e., the alleged illegal
withdrawal of oil products worth _181,988,627.00 with corresponding
 23
duties and taxes worth _35,507,597.00. Due to the presence of such
special circumstances and in the interest of justice, the CA should have at
least passed upon the substantive issue raised in the petition, instead of
dismissing it on such procedural ground. Although it does not condone
the failure of BOC to comply with the said basic requirement, the Court is
constrained to exercise the inherent power to suspend its own rules in
order to do justice in this particular case.
Given that the petition for certiorari should have been filed with the CTA,
the mistake committed by the BOC in filing such petition before the CA
may be excused. In this regard, Court takes note that nothing in R.A. No.
1125, as amended by R.A. No. 9282, indicates that a petition for certiorari
under Rule 65 may be filed with the CTA. Despite the enactment of R.A.
No. 9282 on March 30, 2004, it was only about ten (10) years later in the
case of City of Manila v. Hon. Grecia-Cuerdo44 that the Court ruled that
the authority of the CTA to take cognizance of such petitions is included in
the powers granted by the Constitution, as well as inherent in the
exercise of its appellate jurisdiction. While the rule on perfection of
appeals cannot be classified as a difficult question of law,45 mistake in the
construction or application of a doubtful question of law, as in this case,
may be considered as a mistake of fact, excusing the BOC from the
consequences of the erroneous filing of its petition with the CA.
As the CA dismissed the petition for certiorari solely due to a procedural
defect without resolving the issue of whether or not the Acting Secretary
of Justice gravely abused her discretion in affirming the dismissal of the
BOC's complaint-affidavit for lack of probable cause, the Court ought to
reinstate the petition and refer it to the CTA for proper disposition. For
one, as a highly specialized court specifically created for the purpose of
reviewing tax and customs cases,46 the CTA is dedicated exclusively to
the study and consideration of revenue-related problems, and has
necessarily developed an expertise on the subject.47 For another, the
referral of the petition to the CTA is in line with the policy of hierarchy of
courts in order to prevent inordinate demands upon the Court's time and
attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further overcrowding of its docket.48
Be that as it may, the Court stressed in The Diocese of Bacolod v.
Commission on Elections49 that the doctrine of hierarchy of courts is not
an iron-clad rule, and that it has full discretionary power to take
cognizance and assume jurisdiction over special civil actions for certiorari
filed directly with it for exceptionally compelling reasons or if warranted by
the nature of the issues clearly and specifically raised in the petition.
Recognized exceptions to the said doctrine are as follows: (a) when there
are genuine issues of constitutionality that must be addressed at the most
immediate time; (b) when the issues involved are of transcendental
importance; (c) cases of first impression where no jurisprudence yet
exists that will guide the lower courts on the matter; (d) the constitutional
issues raised are better decided by the Court; (e) where exigency in
certain situations necessitate urgency in the resolution of the cases; (f)
the filed petition reviews the act of a constitutional organ; (g) when
petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from
the injurious effects of respondents’ acts in violation of their right to
freedom of expression; and (h) the petition includes questions that are
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.50 Since the present case includes questions
that are dictated by public welfare and the advancement of public policy,
or demanded by the broader interest of justice, as well as to avoid
multiplicity of suits and further delay in its disposition, the Court shall
directly resolve the petition for certiorari, instead of referring it to the CTA.
On the substantive issue of whether the Acting Secretary of Justice
gravely abused her discretion in affirming the dismissal of the BOC's
complaint-affidavit for lack of probable cause, the settled policy of
noninterference in the prosecutor’s exercise of discretion requires the
courts to leave to the prosecutor and to the DOJ the determination of
what constitutes sufficient evidence to establish probable cause. As the
Court explained in Unilever Philippines, Inc. v. Tan:51
The determination of probable cause for purposes of filing of information
in court is essentially an executive function that is lodged, at the first
instance, with the public prosecutor and, ultimately, to the Secretary of
Justice. The prosecutor and the Secretary of Justice have wide latitude of
discretion in the conduct of preliminary investigation; and their findings
with respect to the existence or non-existence of probable cause are
generally not subject to review by the Court.
Consistent with this rule, the settled policy of non-interference in the
prosecutor’s exercise of discretion requires the courts to leave to the
prosecutor and to the DOJ the determination of what constitutes sufficient
evidence to establish probable cause. Courts can neither override their
determination nor substitute their own judgment for that of the latter. They
cannot likewise order the prosecution of the accused when the
prosecutor has not found a prima facie case.
Nevertheless, this policy of non-interference is not without exception. The
Constitution itself allows (and even directs) court action where executive
discretion has been gravely abused. In other words, the court may
intervene in the executive determination of probable cause, review the
findings and conclusions, and ultimately resolve the existence or non-
existence of probable cause by examining the records of the preliminary
investigation when necessary for the orderly administration of justice.52
Probable cause for purposes of filing a criminal information is defined as
such facts as are sufficient to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and
should be held for trial.53 As explained in Sy v. Secretary of Justice,54
citing Villanueva v. Secretary of Justice:55
x x x [Probable cause] is such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to
believe or entertain an honest or strong suspicion that a thing is so. The
term does not mean "actual or positive cause"; nor does it import
absolute certainty. It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or omission complained of constitutes
the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge.56
To find out if there is a reasonable ground to believe that acts or
ommissions complained of constitute the offenses charged, the Court
must first examine whether or not the allegations against private
respondents in the BOC's complaint-affidavit constitute the offenses of
unlawful importation under Section 3601 and various fraudulent practices
against customs revenue under Section 3602 of the TCCP.
In Jardeleza v. People,57 the Court discussed the concepts of unlawful
importation under Section 3601 of the TCCP, and various fraudulent
practices against customs revenue under Section 3602 thereof, thus:
Section 3601 of the TCC was designed to supplement the existing
provisions of the TCC against the means leading up to smuggling, which
might render it beneficial by a substantive and criminal statement
separately providing for the punishment of smuggling. The law was
intended not to merge into one and the same offense all the many acts
which are classified and punished by different penalties, penal or
administrative, but to legislate against the overt act of smuggling itself.
This is manifested by the use of the words "fraudulently" and "contrary to
law" in the law.
Smuggling is committed by any person who: (1) fraudulently imports or
brings into the Philippines any article contrary to law; (2) assists in so
doing any article contrary to law; or (3) receives, conceals, buys, sells or
in any manner facilitate the transportation, concealment or sale of such
goods after importation, knowing the same to have been imported
contrary to law.
The phrase "contrary to law" in Section 3601 qualifies the phrases
"imports or brings into the Philippines" and "assists in so doing," and not
the word "article." The law penalizes the importation of any merchandise
in any manner contrary to law.
The word "law" includes regulations having the force and effect of law,
meaning substantive or legislative type rules as opposed to general
statements of policy or rules of agency, organization, procedures or
positions. An inherent characteristic of a substantive rule is one affecting
individual rights and obligations; the regulation must have been
promulgated pursuant to a congressional grant of quasi-legislative
authority; the regulation must have been promulgated in conformity to
with congressionally-imposed procedural requisites.
xxxx
Section 3602 of the TCC, on the other hand, provides:
 24
Sec. 3602. Various Fraudulent Practices Against Customs Revenue. –
Any person who makes or attempts to make any entry of imported or
exported article by means of any false or fraudulent invoice, declaration,
affidavit, letter, paper or by any means of any false statement, written or
verbal, or by any means of any false or fraudulent practice whatsoever, or
knowingly effects any entry of goods, wares or merchandise, at less than
the true weight or measures thereof or upon a false classification as to
quality or value, or by the payment of less than the amount legally due, or
knowingly and wilfully files any false or fraudulent entry or claim for the
payment of drawback or refund of duties upon the exportation of
merchandise, or makes or files any affidavit, abstract, record, certificate
or other document, with a view to securing the payment to himself or
others of any drawback, allowance or refund of duties on the exportation
of merchandise, greater than that legally due thereon, or who shall be
guilty of any wilful act or omission shall, for each offense, be punished in
accordance with the penalties prescribed in the preceding section.
The provision enumerates the various fraudulent practices against
customs revenue, such as the entry of imported or exported articles by
means of any false or fraudulent invoice, statement or practice; the entry
of goods at less than the true weight or measure; or the filing of any false
or fraudulent entry for the payment of drawback or refund of duties.
The fraud contemplated by law must be intentional fraud, consisting of
deception, willfully and deliberately dared or resorted to in order to give
up some right. The offender must have acted knowingly and with the
specific intent to deceive for the purpose of causing financial loss to
another; even false representations or statements or omissions of
material facts come within fraudulent intent. The fraud envisaged in the
law includes the suppression of a material fact which a party is bound in
good faith to disclose. Fraudulent nondisclosure and fraudulent
concealment are of the same genre.
Fraudulent concealment presupposes a duty to disclose the truth and that
disclosure was not made when opportunity to speak and inform was
present, and that the party to whom the duty of disclosure as to a material
fact was due was thereby induced to act to his injury.1âwphi1 Fraud is not
confined to words or positive assertions; it may consist as well of deeds,
acts or artifice of a nature calculated to mislead another and thus allow
one to obtain an undue advantage.58
In unlawful importation, also known as outright smuggling, goods and
articles of commerce are brought into the country without the required
importation documents, or are disposed of in the local market without
having been cleared by the BOC or other authorized government
agencies, to evade the payment of correct taxes, duties and other
charges. Such goods and articles do not undergo the processing and
clearing procedures at the BOC, and are not declared through
submission of import documents, such as the import entry and internal
revenue declaration.
In various fraudulent practices against customs revenue, also known as
technical smuggling, on the other hand, the goods and articles are
brought into the country through fraudulent, falsified or erroneous
declarations, to substantially reduce, if not totally avoid, the payment of
correct taxes, duties and other charges. Such goods and articles pass
through the BOC, but the processing and clearing procedures are
attended by fraudulent acts in order to evade the payment of correct
taxes, duties, and other charges. Often committed by means of
misclassification of the nature, quality or value of goods and articles,
undervaluation in terms of their price, quality or weight, and
misdeclaration of their kind, such form of smuggling is made possible
through the involvement of the importers, the brokers and even some
customs officials and personnel.
In light of the foregoing discussion, the Court holds that private
respondents cannot be charged with unlawful importation under Section
3601 of the TCCP because there is no allegation in the BOC's complaint-
affidavit to the effect that they committed any of the following acts: (1)
fraudulently imported or brought into the Philippines the subject
petroleum products, contrary to law; (2) assisted in so doing; or (3)
received, concealed, bought, sold or in any manner facilitated the
transportation, concealment or sale of such goods after importation,
knowing the same to have been imported contrary to law.
The said acts constituting unlawful importation under Section 3601 of the
TCCP can hardly be gathered from the following allegations in the BOC's
complaint-affidavit:
19.1 From May 23, 2007 to February 10, 2008, UNIOIL is not an
accredited importer of the BOC;
19.2 From the time UNIOIL was accredited on February 11, 2008 until the
time of its request to withdraw its oil products on 02 May 2008, they did
not import Gasoil (diesel) and Mogas Gasoline;
19.3 The Terminalling Agreement allegedly executed between OILINK
and UNIOIL was obviously for the purpose of circumventing the Warrant
of Seizure and Detention issued against the shipments of OILINK aside
from the fact that it was only executed on 02 January 2008 after the
decision of the Commissioner finding OILINK liable to pay an
administrative fine of Two Billion Seven Hundred Sixty-Four Million Eight
Hundred Fifty-Nine Thousand Three Hundred Four Pesos and 80/100
(Php2,764,859,304.80);
19.4 Only base oil should have been withdrawn by UNIOIL since it is the
only product subject of its request and approved by the Commissioner;
19.5 UNIOIL withdrew Gasoil (Diesel) and Mogas which were not covered
by importations;
19.6 Finally, the illegal release/withdrawal of the oil products deprived the
government of the supposed partial payment on the Php2.7 billion liability
of OILINK in the approximate amount of Php181,988,627 representing
the customs value of the released/withdrawn oil products and estimated
duties and taxes of Php35,507,597 due thereon or the total amount of
Php217,496,224.00.59
xxxx
21.1 When UNIOIL withdrew Gasoil (Diesel) and Mogas without filing the
corresponding Import Entry, the shipment becomes unlawful per se and
thus falls under unlawful importation under Section 3601 of the Tariff and
Customs Code of the Philippines, as amended;
21.2 The fact that UNIOIL and OILINK executed a belated Terminalling
Agreement after the issuance of the Warrant of Seizure and Detention
showed the fraudulent intent of the respondents whereby UNIOIL can still
withdraw the oil products stored at OILINK's depot likewise in clear
violation of section 3601 and 3602 of the Tariff and Customs Code of the
Philippines, as amended;
21.3 The fact that the UNIOIL make [sic] it appear that they are the owner
of Gasoil (Diesel) and Mogas when in truth and in fact they did not import
said products make them liable for [violation of] Section 3602 of the Tariff
and Customs Code of the Philippines, as amended and falsification;60
Since the foregoing allegations do not constitute the crime of unlawful
importation under Section 3601 of the TCCP, the Acting Secretary of
Justice did not commit grave abuse of discretion when she affirmed the
State Prosecutor's dismissal the BOC's complaint-affidavit for lack of
probable cause.
Neither could private respondents be charged with various fraudulent
practices against customs revenue under Section 3602 of the TCCP as
the above allegations do not fall under any of the following acts or
omissions constituting such crime/s: (1) making or attempting to make
any entry of imported or exported article: (a) by means of any false or
fraudulent invoice, declaration, affidavit, letter, paper or by any means of
any false statement, written or verbal; or (b) by any means of any false or
fraudulent practice whatsoever; or (2) knowingly effecting any entry of
goods, wares or merchandise, at less than the true weight or measures
thereof or upon a false classification as to quality or value, or by the
payment of less than the amount legally due; or (3) knowingly and wilfully
filing any false or fraudulent entry or claim for the payment of drawback or
refund of duties upon the exportation of merchandise; or (4) making or
filing any affidavit, abstract, record, certificate or other document, with a
view to securing the payment to himself or others of any drawback,
allowance or refund of duties on the exportation of merchandise, greater
than that legally due thereon.
Related to various fraudulent practices against customs revenue by
means of undervaluation, misclassification and misdeclaration in the
import entry is the following provision of R.A. No. 7651 - An Act to
Revitalize and Strengthen the Bureau of Customs, Amending for the
Purpose Certain Sections of the Tariff and Customs Code of the
Philippines, as amended:61
Sec. 2503. Undervaluation, Misclassification and Misdeclaration in Entry.
– When the dutiable value of the imported articles shall be so declared
and entered that the duties, based on the declaration of the importer on
the face of the entry, would be less by ten percent (10%) than should be
legally collected, or when the imported articles shall be so described and
 25
entered that the duties based on the importer's description on the face of
the entry would be less by ten percent (10%) than should be legally
collected based on the tariff classification, or when the dutiable weight,
measurement or quantity of imported articles is found upon examination
to exceed by ten percent (10%) or more than the entered weight,
measurement or quantity, a surcharge shall be collected from the
importer in an amount of not less than the difference between the full duty
and the estimated duty based upon the declaration of the importer, nor
more than twice of such difference: Provided, that an undervaluation,
misdeclaration in weight, measurement or quantity of more than
thirty percent (30%) between the value, weight, measurement, or
quantity declared in the entry, and the actual value, weight, quantity,
or measurement shall constitute a prima facie evidence of fraud
penalized under Sec. 2530 of this Code: Provided, further, that any
misdeclared or undeclared imported articles/items found upon
examination shall ipso facto be forfeited in favor of the Government to be
disposed of pursuant to the provisions of this Code.
When the undervaluation, misdescription, misclassification or
misdeclaration in the import entry is intentional, the importer shall
be subject to the penal provision under Sec. 3602 of this Code.62
A careful reading of the BOC's complaint-affidavit would show that there
is no allegation to the effect that private respondents committed
undervaluation, misdeclaration in weight, measurement or quantity of
more than thirty percent (30%) between the value, weight, measurement,
or quantity declared in the entry, and the actual value, weight, quantity, or
measurement which constitute prima facie evidence of fraud. Nor is there
an allegation that they intentionally committed undervaluation,
misdescription, misclassification or misdeclaration in the import entry.
Since the allegations in the BOC's complaint-affidavit fall short of the acts
or omissions constituting the various fraudulent acts against customs
revenue under Section 3602 of the TCCP, the Acting Secretary of Justice
correctly ruled that there was no probable cause to believe that they
committed such crime/s.
While it is true that the sole office of the writ of certiorari is the correction
of errors of jurisdiction, including the commission of grave abuse of
discretion amounting to lack of jurisdiction, and does not include a
correction of the public respondents' evaluation of the evidence and
factual findings thereon, it is sometimes necessary to delve into factual
issues in order to resolve the allegations of grave abuse of discretion as a
ground for the special civil action of certiorari.63 In light of this principle,
the Court reviews the following findings of the Acting Secretary of Justice
in affirming the State Prosecutor's dismissal of the BOC's complaint-
affidavit for lack of probable cause:
Respondents are being charged for unlawful importation under Section
3601, and fraudulent practices against customs revenues under Section
3602, of the TCCP, as amended. For these charges to prosper,
complainant must prove, first and foremost, that the subject articles were
imported. On this score alone, complainant has miserably failed.
Indeed, except for complainant's sweeping allegation, no clear and
convincing proof was presented to show that the subject petroleum
products (gasoil and mogas) withdrawn by Unioil from the oil depot/
terminal of Oilink were imported. For, only when the articles are imported
that the importer/consignee is required to file an import entry declaration
and pay the corresponding customs duties and taxes. The fact that
complainant's record fails to show that an import entry was filed for the
subject articles does not altogether make out a case of unlawful
importation under Section 3601, or fraudulent practices against customs
revenue under Section 3602, of the TCCP, without having first determined
whether the subject articles are indeed imported. Thus, in this case,
complainant still bears the burden of proof to show that the subject
petroleum products are imported, by means of documents other than the
import entry declaration, such as but not limited to, the transport
documents consisting of the inward foreign manifest, bill of lading,
commercial invoice and packing list, all indicating that the goods were
bought from a supplier/seller in a foreign country and imported or
transported to the Philippines. Instead[,] complainant merely surmised
that since the subject products were placed under warrant of seizure and
detention[,] they must necessarily be imported. Regrettably, speculation
and surmises do not constitute evidence and should not, therefore, be
taken against the respondents. x x x Taken in this light, we find more
weight and credence in respondent Unioil's claim that the subject
petroleum products were not imported by them, but were locally
purchased, more so since it was able to present local sales invoices
covering the same.
Even assuming gratia argumenti that the subject petroleum products
were imported, it still behooves the complainant to present clear and
convincing proof that the importation was unlawful or that it was carried
out through any fraudulent means, practice or device to prejudice the
government. But again, complainant failed to discharge this burden.
As can be culled from the records, the warrant of seizure and detention
docketed as Seizure Identification No. 2008-082, which covers various
gas tanks already stored at Oilink's depot/terminal located at Lucanin Pt.,
Mariveles, Bataan, was issued pursuant to Section 2536, in relation to
Section 1508, of the TCCP because of Oilink's failure to pay the
administrative fine of P2,764,859,304.80 that was previously meted
against the company for its failure/refusal to submit to a post entry audit.
In fact, the delivery of all shipments consigned to or handled directly or
indirectly by Oilink was put on hold as per order of the Customs
Commissioner dated April 23, 2008 pursuant to Section 1508 of the
TCCP, also for the same reason. There was nothing on record which
shows, or from which it could be inferred, that the warrant of seizure and
detention or hold order were imposed pursuant to Section 2530 of the
same Code which relates, among others, to unlawfully imported articles
or those imported through any fraudulent practice or device to prejudice
the government, much less due to non-payment of the corresponding
customs duties and taxes due on the shipments/articles covered by the
warrant of seizure and detention. Again, what complainant's evidence
clearly shows is that Oilink's failure to pay the administrative fine
precipitated the issuance of the warrant of seizure and detention and hold
order.64
After a careful review of records, the Court affirms the dismissal of the
BOC's complaint-affidavit for lack of probable cause, but partly digresses
from the reasoning of the Acting Secretary of Justice in arriving at such
conclusion. While the Acting Secretary of Justice correctly stated that the
act of fraudulent importation of articles must be first proven in order to be
charged for violation of Section 3601 of the TCCP, the Court disagrees
that proof of such importation is also required for various fraudulent
practices against customs revenue under Section 3602 thereof.
As held in Jardeleza v. People,65 the crime of unlawful importation under
Section 3601 of the TCCP is complete, in the absence of a bona fide
intent to make entry and pay duties when the prohibited article enters
Philippine territory. Importation, which consists of bringing an article into
the country from the outside, is complete when the taxable, dutiable
commodity is brought within the limits of the port of entry.66 Entry through
a customs house is not the essence of the act.67 On the other hand, as
regards Section 3602 of the TCCP which particularly deals with the
making or attempting to make a fraudulent entry of imported or exported
articles, the term "entry" in customs law has a triple meaning, namely: (1)
the documents filed at the customs house; (2) the submission and
acceptance of the documents; and (3) the procedure of passing goods
through the customs house.68 In view thereof, it is only for charges for
unlawful importation under Section 3601 that the BOC must first prove
that the subject articles were imported. For violation of Section 3602, in
contrast, what must be proved is the act of making or attempting to make
such entry of articles.
The Court likewise disagrees with the finding of the Acting Secretary of
Justice that the BOC failed to prove that the products subject of the WSD
were imported. No such proof was necessary because private
respondents themselves presented in support of their counter-affidavits
copies of import entries69 which can be considered as prima facie
evidence that OILINK imported the subject petroleum products. At any
rate, the Acting Secretary of Justice aptly gave credence to their twenty
(20) sales invoices70 covering the dates October 1, 2007 until April 30,
2008 which tend to prove that UNIOIL locally purchased such products
from OILINK even before the BOC rendered the Decision dated
December 14, 2007 imposing a _2,764,859,304.80 administrative fine,
and holding the delivery or release of its subsequently imported articles to
answer for the fine, any revised assessment and/or penalty for failure to
keep records.
The Court also finds as misplaced the BOC's reliance on the Terminalling
Agreement dated January 2, 2008 and the Certification71 that UNIOIL
made no importation of Gasoil (diesel) and Mogas gasoline from January
 26
2007 up to June 2008 in order to prove that it illegally imported the said
products. Such documentary evidence tend to prove only that UNIOIL
was engaged in the importation of petroleum products and that it did not
import the said products during the said period. Such documents,
however, do not negate the evidence on record which tend to show that
OILINK was the one that filed the import entries,72 and that UNIOIL locally
purchased from OILINK such products as indicated in the sales invoices.
73 Not being the importer of such products, UNIOIL, its directors and
officers, are not required to file their corresponding import entries. Hence,
contrary to the BOC's allegation, UNIOIL's withdrawal of the Gasoil
(Diesel) and Mogas gasoline without filing the corresponding import
entries can neither be considered as unlawful importation under Section
3601 of the TCCP nor as a fraudulent practice against customs revenue
under Section 3602 thereof.
Moreover, the fact that private respondent Paul Chi Ting Co is both the
Chairman of UNIOIL and OILINK is not enough to justify the application of
the doctrine of piercing the corporate veil. In fact, mere ownership by a
single stockholder or by another corporation of a substantial block of
shares of a corporation does not, standing alone, provide sufficient
justification for disregarding the separate corporate personality.74 In
Kukan International Corporation v. Hon. Judge Reyes, et al.75 the Court
explained the application of the said doctrine in this wise:
In fine, to justify the piercing of the veil of corporate fiction, it must be
shown by clear and convincing proof that the separate and distinct
personality of the corporation was purposefully employed to evade a
legitimate and binding commitment and perpetuate a fraud or like
wrongdoings. To be sure, the Court has, on numerous occasions, applied
the principle where a corporation is dissolved and its assets are
transferred to another to avoid a financial liability of the first corporation
with the result that the second corporation should be considered a
continuation and successor of the first entity.
In those instances when the Court pierced the veil of corporate fiction of
two corporations, there was a confluence of the following factors:
1. A first corporation is dissolved;
2. The assets of the first corporation is transferred to a second
corporation to avoid a financial liability of the first corporation; and
3. Both corporations are owned and controlled by the same persons such
that the second corporation should be considered as a continuation and
successor of the first corporation.76
Granted that the principle of piercing the veil of corporate entity comes
into play only during the trial of the case for the purpose of determining
liability,77 it is noteworthy that even the BOC itself virtually recognized that
OILINK and UNIOIL are separate and distinct entities when it alleged that
only the base oil products should have been withdrawn by UNIOIL, since
they were the only products subject of its request and approved by the
Customs Commissioner. As discussed above, however, private
respondents were able to present sales invoices which tend to show that
UNIOIL locally purchased Gasoil (diesel) and Mogas gasoline products
from OILINK. Hence, the BOC cannot invoke the doctrine of piercing the
veil of corporate entity in this case.
On a final note, the Court stresses that OILINK, its directors or officers,
and Victor D. Piamonte, the Licensed Customs Broker, may still be held
liable for various fraudulent practices against customs revenue under
Section 3602 of the TCCP, if the final results of the post-entry audit and
examination would show that they committed any of the following acts or
omissions: (1) making or attempting to make any entry of imported or
exported article: (a) by means of any false or fraudulent invoice,
declaration, affidavit, letter, paper or by any means of any false
statement, written or verbal; or (b) by any means of any false or
fraudulent practice; or (2) intentional undervaluation, misdescription,
misclassification or misdeclaration in the import entries; or (3)
undervaluation, misdeclaration in weight, measurement or quantity of
more than thirty percent (30%) between the value, weight, measurement,
or quantity declared in the entries, and the actual value, weight, quantity,
or measurement. This is consistent with Section 230178 (Warrant for
Detention of Property-Cash Bond) of the TCCP which states that nothing
therein shall be construed as relieving the owner or importer from any
criminal liability which may arise from any violation of law committed in
connection with the importation of articles, which in this case were placed
under a WSD for failure of the importer, OILINK, to submit the required
post-entry audit documents under CAO No. 4-2004.
In addition, OILINK and its directors or officers may be held liable under
Section 16 of R.A. No. 9135:79
SEC. 16. A new section to be known as Section 3611 is hereby inserted
in Part 3, Title VII of the Tariff and Customs Code of the Philippines, as
amended, which shall read as follows:
SEC. 3611. Failure to Pay Correct Duties and Taxes on Imported Goods.
- Any person who, after being subjected to post-entry audit and
examination as provided in Section 3515 of Part 2, Title VII hereof, is
found to have incurred deficiencies in duties and taxes paid for
imported goods, shall be penalized according to three (3) degrees of
culpability subject to any mitigating, aggravating or extraordinary
factors that are clearly established by the available evidence:
(a) Negligence - When the deficiency results from an offender’s failure,
through an act or acts of omission or commission, to exercise reasonable
care and competence to ensure that a statement made is correct, it shall
be determined to be negligent and punishable by a fine equivalent to not
less than one-half (1/2) but not more than two (2) times the revenue loss.
(b) Gross Negligence - When a deficiency results from an act or acts of
omission or commission done with actual knowledge or wanton disregard
for the relevant facts and with indifference to or disregard for the
offender’s obligation under the statute, it shall be determined to be
grossly negligent and punishable by a fine equivalent to not less than two
and a half (2 ½) but not more than four (4) times the revenue loss.
(c) Fraud - When the material false statement or act in connection with
the transaction was committed or omitted knowingly, voluntarily and
intentionally, as established by clear and convincing evidence, it shall be
determined to be fraudulent and be punishable by a fine equivalent to not
less than five (5) times but not more than eight (8) times the revenue loss
and imprisonment of not less than two (2) years but not more than eight
(8) years.
The decision of the Commissioner of Customs, upon proper hearing, to
impose penalties as prescribed in this Section may be appealed in
accordance with Section 2402 hereof.80
With respect to the directors or officers of OILINK, they may further be
held liable jointly and severally for all damages suffered by the
government on account of such violation of Sections 3602 and 3611 of
the TCCP, upon clear and convincing proof that they willfully and
knowingly voted for or assented to patently unlawful acts of the
corporation or was guilty of gross negligence or bad faith in directing its
corporate affairs.81
WHEREFORE, the petition is PARTLY GRANTED. The Court of Appeals
Resolutions dated March 26, 2010 and August 4, 2010, in CA-G.R. SP
No. 113069, are REVERSED and SET ASIDE. The Resolution dated
December 28, 2009 of the ·Acting Secretary of Justice Agnes VST
Devanedera, which upheld the State Prosecutor's dismissal of the
complaintaffidavit filed by the Bureau of Customs for lack of probable
cause, is AFFIRMED. This is without prejudice to the filing of the
appropriate criminal and administrative charges under Sections 3602 and
3611 of the Tariff and Customs Code of the Philippines, as amended,
against private respondents OILINK, its officers and directors, and Victor
D. Piamonte, if the final results of the post-entry audit and examination
would show that they violated the said provisions.
SO ORDERED.
 27
ROBERTO DIPAD and SANDRA DIPAD, Petitioners,
vs.
SPOUSES ROLANDO OLIVAN and BRIGIDA OLIVAN, and BRIGIDA
OLIVAN, and RUBIO GUIJON MADRIGALLO, Respondents.
RESOLUTION
SERENO, J.:
Before this Court is a Rule 45 Petition, seeking to review the 6 May 2005
Regional Trial (RTC) Decision in Special Civil Action No. RTC 2005-0032.
In the Decision, the RTC dismissed petitioners’ Rule 65 Petition, which
assailed the directive of Judge Marvel C. Clavecilla requiring Roberto
Dipad to submit the latter’s Income Tax Returns (ITRs) for the years 2001
to 2003.
The pertinent facts are as follows:1
Due to a collision between the car of petitioner spouses Dipad and the
passenger jeep owned by respondents, the former filed a civil action for
damages before the sala of Municipal Trial Court (MTC) Judge Clavecilla.
During trial, Roberto Dipad mentioned in his direct testimony that
because he was not able to make use of his vehicle for his buy-and-sell
business, he suffered damages by way of lost income for three months
amounting to P40,000.2 Then, during cross-examination, the defense
required him to produce his personal copy of his ITRs for the years 2001,
2002 and 2003.3
Dipad vehemently objected on the ground of confidentiality of the ITRs.
He also claimed that the demand therefor was incriminatory and in the
nature of a fishing expedition.
By reason of the opposition, Judge Clavecilla suspended the trial and
required petitioners to show their basis for invoking the confidentiality of
the ITRs. After the parties submitted their respective Comments on the
matter, the MTC in its 3 February 2005 Order required the production of
the ITRs.
Aggrieved, the spouses Dipad filed a Motion for Reconsideration, which
was denied by Judge Clavecilla. Thereafter, they instituted a Rule 65
Petition for Certiorari and Prohibition before the RTC, assailing the 3
February 2005 Order of the MTC for having been issued with grave
abuse of discretion amounting to lack or excess of jurisdiction. In that
Petition, they opposed Judge Clavecilla’s ruling in this wise:4
x x x The respondent Judge stated in his order dated February 3, 2005
(Annex "G") in Civil Case No. 11884 that the cited provision does not
apply, stating that "what is being requested to be produced is plaintiffs’
copy of their tax returns for the years 2001 to 2003 x x x," thereby
ordering the plaintiffs therein, now the petitioners, "to furnish defendants’
counsel within five (5) days from receipt of this order copy of their income
tax returns for the years 2001 to 2003, inclusive."
We beg to differ to such holding, because if a copy of a taxpayer’s return
filed with the Bureau of Internal Revenue can be open to inspection only
upon the order of the President of the Philippines, such provision
presupposes the confidentiality of the document; and with more reason
that the taxpayer cannot be compelled to yield his copy of the said
document. (Emphasis in the original)
xxx xxx xxx
Thus, it is indubitable that compelling the petitioners to produce petitioner
Roberto Dipad’s Income Tax Returns and furnish copies thereof to the
private respondents would be violative of the provisions of the National
Internal Revenue Code on the rule on confidentiality of Income Tax return
as discussed above x x x. (Underscoring supplied)
In its 6 May 2005 Decision,5 the RTC dismissed the Rule 65 Petition for
being an inappropriate remedy. According to the trial court, the errors
committed by Judge Clavecilla were, if at all, mere errors of judgment
correctible not by the extraordinary writ of certiorari, but by ordinary
appeal.
Petitioners moved for reconsideration, but their motion was denied by the
RTC.6
Hence, this appeal.
The issue presented in this case is straightforward. Petitioners insist that
that the RTC committed reversible error in dismissing their Rule 65
Petition as an improper appeal, since grave abuse of discretion
amounting to excess of jurisdiction was committed by MTC Judge
Clavecilla when he required the production of their ITRs.7
In support of their claim and to prove the confidentiality of the ITRs they
cite Section 71 of the National Internal Revenue Code, which reads:8
Section 71. Disposition of Income Tax Returns, Publication of Lists of
Taxpayers and Filers — After the assessment shall have been made, as
provided in this Title, the returns, together with any corrections thereof
which may have been made by the Commissioner, shall be filed in the
Office of the Commissioner and shall constitute public records and be
open to inspection as such upon the order of the President of the
Philippines, under rules and regulations to be prescribed by the Secretary
of Finance, upon recommendation of the Commissioner.
The Commissioner may, in each year, cause to be prepared and
published in any newspaper the lists containing the names and
addresses of persons who have filed income tax returns.
They also quote from National Internal Revenue Code (2001) authored
by Epifanio G. Gonzales and Celestina M. Robledo-Gonzales: 9
The general rule is that despite a court order, copies of the income tax
returns cannot be furnished in view of the prohibition contained in Section
332 (now Section 286) of the Tax Code.
However, under Section 11 of Regulation 33 of the Department of
Finance the Commissioner of Internal Revenue may furnish copies of
income tax returns for use as evidence in court litigation "when the
government of the Philippine Islands is interested in the result."
Thus, in the case of Cu Unjieng vs. Posadas, 58 Phil. 360, which involves
the production of income tax returns in a criminal case, the Supreme
Court held that copies of the returns can be furnished therein because a
criminal case is a sort of a case in which, above all others, the
government, as a corporate representative of all society, is highly and
immediately interested.
But in a civil case where the government is not interested in the results,
no income tax returns or tax census statements may be furnished the
courts even if the production thereof is in obedience to the court order
(see BIR Ruling No. 4, S. 1971).
RULING OF THE COURT
The appeal is lacking in merit.
Upon perusal of the reference, we find that petitioners inaccurately
quoted the commentary.10 The portions they lifted from the annotation
purport to explain Section 270 of the NIRC.11
The provision prohibits employees of the Bureau of Internal Revenue
(BIR) from divulging the trade secrets of taxpayers. Section 270 obviously
does not address the confidentiality of ITRs. Thus, petitioners cannot rely
on the inappropriate provision, the Decisions including the cited Cu
Unjieng v. Posadas,12 the rulings of the BIR, or issuances of the
Department of Finance that apply that provision.
Furthermore, in contrast to the interpretation by petitioners of the
commentary that ITRs cannot be divulged, their very reference
characterizes Section 71 as an exception to the rule on the unlawful
divulgence of trade secrets:13
Exceptions or acts which do not constitute unlawful divulgence of trade
secrets. –
(a) Section 71 of the Tax Code makes income tax returns public records
and opens them to inspection upon order of the President of the
Philippines. x x x.
This Court then reminds the counsels of their duty of candor, fairness and
good faith when they face the court. Canon 10.02 of the Code of
Professional Responsibility instructs that a lawyer shall not knowingly
misquote or misrepresent the contents of a paper; the language or the
argument of opposing counsel, or the text of a decision or authority, or
knowingly cite as law a provision already rendered inoperative by repeal
or amendment; or assert as a fact that which has not been proved.
Nevertheless, we proceed to the contention of petitioners against the
RTC’s dismissal of their Rule 65 Petition. In this regard, we stress that it
is basic in our jurisdiction that a petition for certiorari under Rule 65 is not
a mode of appeal.14 The remedy, which is narrow in scope,15 only corrects
errors of jurisdiction.16 Thus, if the issue involves an error of judgment, the
error is correctible by an appeal via a Rule 45 petition, and not by a writ
of certiorari under Rule 65 of the Rules of Court.17
As defined in jurisprudence, errors of jurisdiction occur when the court
exercises jurisdiction not conferred upon it by law.18 They may also occur
when the court or tribunal, although it has jurisdiction, acts in excess of it
or with grave abuse of discretion amounting to lack of jurisdiction.19
On the contrary, errors of judgment are those that the court may commit
in the exercise of its jurisdiction.1âwphi1 They include errors of procedure
or mistakes in the court’s findings20 based on a mistake of law or of fact.21
 28
Here, it is patently clear that petitioners do not question whether the MTC
has jurisdiction or authority to resolve the issue of confidentiality of ITRs.
Rather, they assail the wisdom of the MTC’s very judgment and
appreciation of the ITR as not confidential. Specifically, they claim that the
ruling violated the provisions of the NIRC on the alleged rule on
confidentiality of ITRs.
Based on the definitions above, we conclude similarly as the RTC that if
there is an error to speak of the error relates only to a mistake in the
application of law, and not to an error of jurisdiction or grave abuse of
discretion amounting to excess of jurisdiction. The only error petitioners
raise refers to Judge Clavecilla’s mistake of not applying Section 71,
which allegedly prohibits the production of ITRs because of
confidentiality. Certainly, as correctly posited by the court a quo, if every
error committed by the trial court is subject to certiorari, trial would never
come to an end, and the docket will be clogged ad infinitum.22
Therefore, given the issues raised by petitioners in their plea for the
extraordinary writ of certiorari, the RTC did not grievously err in
dismissing the Rule 65 Petition as an improper appeal. This ruling is only
in keeping with the proper conduct of (xxx unread text) before the courts
and the prompt administration of justice at every level of the judicial
hierarchy.23
IN VIEW THEREOF, the assailed 6 May 2005 Decision of the Regional
Trial Court in Special Civil Action No. RTC 2005-0032 is AFFIRMED. The
25 July 2005 Petition for Review filed by petitioners is hereby DENIED for
lack of merit.
SO ORDERED.
AMELIA CABRERA, petitioner,
vs.
MANUEL LAPID, FERNANDO BALTAZAR, REYNALDO F. CABRERA
and DIONY VENTURA, respondents.
DECISION
TINGA, J.:
The instant petition for review on certiorari seeks the reversal of the
Resolution1 dated 13 May 1996 and the Order2 dated 21 March 1997,
both issued by the Office of the Ombudsman. The Resolution dismissed
the complaint-affidavit filed by petitioner against respondents and the
Order denied her motion for reconsideration.
The instant petition originated from a Complaint-Affidavit3 filed in
November 1995 by petitioner Amelia M. Cabrera with the Office of the
Ombudsman ("Ombudsman"). Named respondents were Manuel Lapid,
Fernando Baltazar, Reynaldo F. Cabrera and Superintendent Diony
Ventura, respectively, in their capacities as Governor of Pampanga,
Mayor of Sasmuan, Pampanga, Vice-Mayor of Sasmuan, Pampanga and
Superintendent of the Philippine National Police (PNP)-Region 3,
Pampanga. In her three(3)-page affidavit, petitioner accused respondents
of violating Section 3(e) of the Anti-Graft and Corrupt Practices Act and
Article 324 of the Revised Penal Code.
In her Complaint-Affidavit, petitioner stated that she entered into a lease
agreement with the Municipality of Sasmuan over a tract of land for the
purpose of devoting it to fishpond operations. According to petitioner, she
had spent approximately P5,000,000.00 for its construction before the
fishpond operations commenced in August 1995. A month later, petitioner
learned from newspaper reports of the impending demolition of her
fishpond as it was purportedly illegal and blocked the flow of the Pasak
River. Thus, petitioner sent the fishpond administrator to dissuade
respondents from destroying her property.4
Despite pleas from petitioner, respondents ordered the destruction of
petitioner's fishpond. The property was demolished on 10 October 1995
by dynamite blasting. Petitioner alleged that the demolition was purposely
carried out in the presence of media representatives and other
government officials to gain media mileage. Petitioner imputed evident
bad faith on respondents Mayor Baltazar and Vice-Mayor Cabrera in
allowing the destruction of the fishpond despite their prior knowledge of
the existence of the lease agreement. She also charged respondents
Governor Lapid and Senior Superintendent Ventura with gross
inexcusable negligence for ordering the destruction of the fishpond
without first verifying its legality.5
At the preliminary investigation, respondents, except Senior
Superintendent Ventura, submitted counter-affidavits, denying the
accusations against them. In the counter-affidavit jointly filed by Mayor
Baltazar and Vice-Mayor Cabrera, they insisted that contrary to
petitioner's claim, the fishpond was an illegal structure because it was
erected on the seashore, at the mouth of the Pasak River, and sat on an
inalienable land. They claimed that the demolition was done by the Task
Force Bilis Daloy upon the directive of then President Fidel V. Ramos.6
In his Counter-Affidavit,7 Governor Lapid averred that the contract of
lease between petitioner and the Municipality of Sasmuan, represented
by then Mayor Abelardo Panlaqui, was executed two weeks before
respondent Mayor Baltazar took his oath of office in 1995. Governor
Lapid also argued that under the law, the Department of Agriculture (DA)
is the government agency authorized to enter into licensing agreements
for fishpond operations, and as per certification by the DA Regional
Director, petitioner's fishpond operation was not covered by a fishpond
lease agreement or application. Governor Lapid also referred to the
certification by the Municipal Health Officer of Sasmuan issued before the
actual demolition of the fishpond, describing it as a nuisance per se and
recommending its abatement.8
On 13 May 1996, the Ombudsman issued the assailed Resolution,
dismissing petitioner's complaint. The dismissal was based on the
declaration that the fishpond was a nuisance per se and, thus, may be
abated by respondents in the exercise of the police power of the State.9
Petitioner sought reconsideration of the Resolution, arguing that under
Sec. 149 of Republic Act (R.A.) No. 7160, otherwise known as the Local
Government Code of 1991, the exclusive authority to grant fishery
privileges is vested in the municipalities. Petitioner also questioned the
 29
certification by the Municipal Health Officer, alleging that the same was
issued before the ocular inspection of the property which took place only
on the day of the demolition. Petitioner also contended that a judicial
proceeding was necessary to determine whether the property indeed had
caused the flooding.10 Respondents filed separate oppositions to
petitioner's motion for reconsideration.11 Petitioner filed a reply to the
opposition12 and respondent Governor Lapid filed a rejoinder to the reply.
13
In the Order dated 21 March 1997, the Ombudsman affirmed its 13 May
1996 Resolution. It ruled that the repealing clause of R.A. No. 7160
expressly repealed only Sec. 2, 6 and 29 of Presidential Decree (P.D.)
No. 704 so that in harmonizing the remaining provisions of P.D. No. 704
and the provisions of R.A. No. 7160 applicable to the grant of fishery
privileges, the Bureau of Fisheries and Aquatic Resources (BFAR) is the
government agency authorized to grant fishpond license or permit in
areas not identified as municipal waters or not declared as alienable or
disposable by the Department of Environment and Natural Resources
(DENR). Since it appears from DENR records that the subject property
has not been declared disposable or included in areas devoted for
fishpond development, the Ombudsman concluded that the lease
agreement entered into by petitioner was void ab initio. In view of the
illegality of the lease agreement, the Ombudsman ruled that its demolition
was justified. The Ombudsman described the demolition as a valid
exercise of police power and in accordance with the provision of Sec. 28
of P.D. No. 704 directing the removal of any fishpen or fishpond that
obstructed the free navigation of a stream or lake. It also upheld the
authority of the district health officer to determine the abatement of a
nuisance without need of judicial proceedings.14
Petitioner elevated the matter to this Court via a petition for review on
certiorari under Rule 45 of the Rules of Court to assail the 13 May 1996
Resolution and 21 March 1997 Order of the Ombudsman. Petitioner
subsequently filed an amended petition for review on certiorari to implead
the Ombudsman as respondent, although in a petition for review on
certiorari, the tribunal whose issuance is assailed need not be impleaded
as respondent.
The petition imputes the following errors on the Ombudsman:
I.
THE OFFICE OF THE OMBUDSMAN ERRED AND EXCEEDED ITS
AUTHORITY IN RULING THAT THE LEASE CONTRACT BETWEEN
THE MUNICIPALITY OF SASMUAN AND PETITIONER IS NULL AND
VOID.
II.
THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT THE
DEMOLITION OF THE FISHPOND WAS VALIDLY MADE BY VIRTUE
OF THE DECLARATION BY THE HEALTH OFFICER THAT IT WAS A
NUISANCE PER SE.
III.
THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT THE
DEMOLITION IS PART OF THE PROPER EXERCISE OF THE POLICE
POWER OF THE STATE.
IV.
THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT
PETITIONER WAS GIVEN DUE NOTICE AND HEARING BEFORE THE
FISHPOND WAS BLASTED.
V.
THE OFFICE OF THE OMBUDSMAN ERRED IN RULING THAT
PROBABLE CAUSE DOES NOT EXIST TO INDICT RESPONDENTS
FOR VIOLATION OF THE SUBJECT OFFENSES.15
Clearly, this is an appeal from the questioned issuances of the
Ombudsman. However, such direct resort to this Court from a resolution
or order of the Ombudsman is not sanctioned by any rule of procedure.
Neither can petitioner avail of Sec. 2716 of R.A. No. 6770, otherwise
known as The Ombudsman Act of 1989. The provision allowed direct
appeals in administrative disciplinary cases from the Office of the
Ombudsman to the Supreme Court. The right to appeal is granted only in
respect to orders or decisions of the Ombudsman in administrative cases.
17 The provision does not cover resolutions of the Ombudsman in criminal
cases. More importantly, Sec. 27 of R.A. No. 6770 insofar as it allowed a
direct appeal to this Court was declared unconstitutional in Fabian v. Hon.
Desierto.18
However, an aggrieved party in criminal actions is not without any
recourse. Where grave abuse of discretion amounting to lack or excess of
jurisdiction taints the findings of the Ombudsman on the existence of
probable cause, the aggrieved party may file a petition for certiorari under
Rule 65.19 The remedy from resolutions of the Ombudsman in preliminary
investigations of criminal cases is a petition for certiorari under Rule 65,
not a petition for review on certiorari under Rule 45.20
But in this case, petitioner has taken the position that the Ombudsman
has decided questions of substance contrary to law and the applicable
decisions of the Supreme Court. That is a ground under a Rule 45
petition. Indeed, from a reading of the assignment of errors, it is clear that
petitioner does not impute grave abuse of discretion to the Ombudsman
in issuing the assailed Resolution and Order. Rather, she merely
questions his findings and conclusions. As stated earlier, direct appeal to
the Supreme Court via a petition for review on certiorari is not sanctioned
by any rule of procedure. By availing of a wrong remedy, the petition
should be dismissed outright.
Even if the Court treats the instant appeal as a petition for certiorari under
Rule 65, its dismissal is nevertheless warranted because petitioner failed
to present, much more substantiate, any grave abuse of discretion on the
part of the Ombudsman.
A careful reading of the questioned Resolution reveals that the
Ombudsman dismissed petitioner's criminal complaint because
respondents had validly resorted to the police power of the State when
they effected the demolition of the illegal fishpond in question following
the declaration thereof as a nuisance per se. Thus, the Ombudsman was
of the opinion that no violation of Section 3(e)21 of the Anti-Graft and
Corrupt Practices Act or of Article 32422 of the Revised Penal Code was
committed by respondents. In the words of the Ombudsman, "those who
participated in the blasting of the subject fishpond were only impelled by
their desire to serve the best interest of the general public; for the good
and the highest good."23
By grave abuse of discretion is meant capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough. It must be grave abuse of discretion as when
the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and so gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform
the duty enjoined or to act at all in contemplation of law.24
Grave abuse of discretion should be differentiated from an error in
judgment. An error of judgment is one which the court may commit in the
exercise of its jurisdiction, and which error is reversible only by an appeal.
As long as the court acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to nothing more
than mere errors of judgment, correctible by an appeal or a petition for
review under Rule 45 of the Rules of Court. An error of jurisdiction is one
where the act complained of was issued by the court without or in excess
of jurisdiction and which error is correctible only by the extraordinary writ
of certiorari.25
The other errors raised by petitioner pertain to the Ombudsman's opinion
on the lack of probable cause to indict respondents. These are purported
errors in judgment which can be corrected by an appeal, although not via
a direct appeal to this Court. Direct resort to this Court may be had only
through the extraordinary writ of certiorari and upon showing that the
Ombudsman committed grave abuse of discretion, which petitioner failed
to demonstrate.
Absent any grave abuse of discretion tainting it, the courts will not
interfere with the Ombudsman's supervision and control over the
preliminary investigation conducted by him.26 It is beyond the ambit of this
Court to review the exercise of discretion of the Ombudsman in
prosecuting or dismissing a complaint filed before it.27 The rule is based
not only upon respect for the investigatory and prosecutory powers
granted by the Constitution to the Office of the Ombudsman but upon
practicality as well. Otherwise, the functions of the courts will be
grievously hampered by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the Ombudsman
with regard to complaints filed before it, in much the same way that the
courts would be extremely swamped if they would be compelled to review
the exercise of discretion on the part of the fiscals or prosecuting
attorneys each time they decide to file an information in court or dismiss a
complaint by a private complainant.28
 30
WHEREFORE, the instant petition for review on certiorari is DENIED. No
costs.
SO ORDERED.
CIVIL SERVICE COMMISSION, Petitioner,
vs.
LARRY M. ALFONSO, Respondent.
DECISION
NACHURA, J.:
This is a Rule 45 petition assailing the May 21, 2007 Decision1 and
August 23, 2007 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP
No. 97284, which reversed Civil Service Commission (CSC) Resolution
Nos. 0618213 and 0619084 dated October 16, 2006 and November 7,
2006, respectively, as well as its Order5 dated December 11, 2006,
formally charging respondent Larry Alfonso with Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service and preventively
suspending him from his position as Director of the Human Resources
Management Department of the Polytechnic University of the Philippines
(PUP).
The facts, as summarized by the CA, are as follows:
Respondent Larry M. Alfonso is the Director of the Human Resources
Management Department of PUP. On July 6, 2006, Dr. Zenaida Pia,
Professor IV in PUP-Sta. Mesa, and Dindo Emmanuel Bautista, President
of Unyon ng mga Kawani sa PUP, jointly filed an Affidavit-Complaint
against Alfonso for violation of Republic Act (RA) No. 6713, charging the
latter with grave misconduct, conduct prejudicial to the best interest of the
Service, and violation of Civil Service Law, rules and regulations. The
affidavit-complaint was lodged before the Civil Service Commission
(CSC). In their affidavit, Dr. Pia and Bautista alleged, among others, that
respondent repeatedly abused his authority as head of PUP’s personnel
department when the latter prepared and included his name in Special
Order Nos. 0960 and 1004 for overnight services, ostensibly authorizing
him to work for 24 hours straight from May 16 to 20, May 22 to 27 and
May 29 to June 2, 2006. As a result thereof, Alfonso made considerable
earnings for allegedly working in humanly impossible conditions 24 hours
straight daily, for three consecutive weeks.6
In support of their complaint, Dr. Pia and Bautista submitted the following
documentary evidence:
1. Special Order No. 1004, s. 2006;
2. Special Order No. 0960, s. 2006;
3. Daily time records of Saturday and Overnight Services of Alfonso;
4. PUP Perm-OT overnight May 2006 payroll register;
5. Xerox copy of check no. 162833 dated May 31, 2006;
6. Summary of Alfonso’s Saturday, overnight and overtime schedule;
7. Computation of the number of hours, days and weeks that Alfonso
allegedly served; and
8. Explanation of official time, night service, Saturday overtime and
overnight services rendered by Alfonso for the month of May.7
On August 10, 2006, the Office of Legal Affairs (OLA) of the CSC issued
an order directing Alfonso to submit his counter-affidavit/comment within
three (3) days from receipt thereof.
In his Counter-Affidavit8 dated August 30, 2006, respondent averred that
he only rendered overnight work on May 17, 19, 22, 24, 26, 29 and 31,
2006. He explained that his daily time record explicitly indicates that it
covers overnight services pursuant to S.O. No. 1004, series of 2006, and
that an entry such as "Day 17, arrival 8:00 PM; Day 18, departure 8:00
AM" connoted only a day of overnight work and not continuous two (2)
days of rendition of services.9
The CSC, however, found Alfonso’s explanation wanting. On October 25,
2006, it issued Resolution No. 061821 formally charging Alfonso with
grave misconduct and conduct prejudicial to the best interest of the
Service, and imposing a 90-day preventive suspension against him.10
Aggrieved, respondent filed an omnibus motion for reconsideration of the
preventive suspension order and requested a change of venue11 from the
CSC-Central Office to the CSC-National Capital Region (CSC-NCR). In
the motion, he argued that it is the CSC-NCR regional office that has
jurisdiction over the matter pursuant to Section 6 of CSC Resolution No.
99-1936, and that to hold otherwise may deprive him of his right to
appeal.12 The motion was denied.13
Undaunted, Alfonso filed another motion for reconsideration on
November 20, 2006, accompanied by a motion to admit his supplemental
answer.14 This time, however, respondent argued that the CSC had no
jurisdiction to hear and decide the administrative case filed against him.
According to him, it is the PUP Board of Regents that has the exclusive
authority to appoint and remove PUP employees pursuant to the
provisions of R.A. No. 829215 in relation to R.A. No. 4670.16
Without ruling on the motion, Assistant Commissioner Atty. Anicia
Marasigan-de Lima, head of CSC-NCR, issued an Order17 dated
December 11, 2006 directing the Office of the President of PUP to
implement the preventive suspension order against respondent.18
Dissatisfied, respondent sought relief before the CA via a petition for
certiorari and prohibition.
On May 21, 2007, the CA rendered a Decision19 in favor of Alfonso. The
pertinent portion of the decision declares:
Applying the foregoing provisions, it appears that the CSC may take
cognizance of an administrative case in two ways: (1) through a
complaint filed by a private citizen against a government official or
employee; and (2) appealed cases from the decisions rendered by
Secretaries or heads of agencies, instrumentalities, provinces, cities and
municipalities in cases filed against officers and employees under their
jurisdiction.
Indisputably, the persons who filed the affidavit-complaint against
petitioner held positions in and were under the employ of PUP. Hence,
they cannot be considered as private citizens in the contemplation of the
said provision. It is likewise undisputed that the subject CSC resolutions
were not rendered in the exercise of its power to review or its appellate
jurisdiction but was an ordinary administrative case. Hence, the present
case falls short of the requirement that would otherwise have justified the
CSC’s immediate exercise of its jurisdiction over the administrative case
against petitioner.
Even assuming that the CSC may directly entertain the complaints filed
with it, the doctrine of exhaustion [of] administrative remedies still
prevents it from entertaining the present administrative case. If a remedy
within the administrative machinery can still be had by giving the
administrative officer concerned every opportunity to decide on the matter
that comes within his jurisdiction, then such remedy should be priorly
exhausted.
The circumstances in this case do not justify the disregard of the doctrine.
Hence, the administrative complaint should have been lodged with the
PUP board of regents.
xxx
The CA ratiocinated that since Presidential Decree (P.D.) No. 1341, the
law creating PUP, is the special law governing PUP, then it is the Board of
Regents (BOR) that should carry out the duties of the investigating
committee and has the proper authority to discipline PUP personnel
corollary to the BOR’s general powers of administration.20 According to
the CA, the power of the BOR to hire carries with it the corresponding
power to discipline PUP personnel pursuant to Section 7(c) of P.D.1341,
to wit:
Section 7. The Board of Regents shall have the following powers and
duties in addition to his general powers of administration and the exercise
of all the powers of a corporation as provided in Section 13 of Act
Numbered fourteen hundred fifty-nine as amended, otherwise known as
the Philippine Corporation Law:
xxxx
(c) To appoint, on the recommendation of the President of the University,
professors, instructors, lecturers and other members of the faculty, and
other officials and employees of the University; to fix their compensation,
hours of service, and such, other duties and conditions as it may deem
proper, any other provisions of the law to the contrary notwithstanding; to
grant to them in his discretion, leave of absence under such regulations
 31
as it may promulgate, any other conditions of the law to the contrary
notwithstanding, and to remove them for cause after an investigation and
hearing shall have been had;
xxx
This provision in the PUP Charter is substantially in accord with Section
4(h) of R.A. 8292,
Section 4. Powers and Duties of Governing Boards. – The governing
board shall have the following specific powers and duties in addition to its
general powers of administration and the exercise of all the powers
granted to the board of directors of a corporation under Section 36 of
Batas Pambansa Blg. 68, otherwise known as the Corporation Code of
the Philippines:
xxxx
(h) to fix and adjust salaries of faculty members and administrative
officials and employees subject to the provisions of the revised
compensation and classification system and other pertinent budget and
compensation laws governing hours of service, and such other duties and
conditions as it may deem proper; to grant them, at its discretion, leaves
of absence under such regulations as it may promulgate, any provisions
of existing law to the contrary notwithstanding; and to remove them for
cause in accordance with the requirements of due process of law.
Given the foregoing antecedents, the pivotal issue we have to resolve is
whether the CSC has jurisdiction to hear and decide the complaint filed
against Alfonso.
We find in favor of petitioner.
Section 2(1) and Section 3, Article IX-B of our Constitution, are clear, as
they provide that:
Sec. 2. (1) The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters.
Sec. 3. The Civil Service Commission, as the central personnel 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.
As the central personnel agency of the government,21 the CSC has
jurisdiction to supervise the performance of and discipline, if need be, all
government employees, including those employed in government-owned
or controlled corporations with original charters such as PUP. Accordingly,
all PUP officers and employees, whether they be classified as teachers or
professors pursuant to certain provisions of law, are deemed, first and
foremost, civil servants accountable to the people and answerable to the
CSC in cases of complaints lodged by a citizen against them as public
servants. Admittedly, the CSC has appellate jurisdiction over disciplinary
cases decided by government departments, agencies and
instrumentalities. However, a complaint may be filed directly with the
CSC, and the Commission has the authority to hear and decide the case,
although it may opt to deputize a department or an agency to conduct the
investigation. Specifically, Sections 9(j) and 37(a) of P.D. 807, otherwise
known as the Civil Service Law of 1975, provide:
SECTION 9. Powers and Functions of the Commission. – The
Commission shall administer the Civil Service and shall have the
following powers and function:
xxxx
(j) Hear and decide administrative disciplinary cases instituted directly
with it in accordance with Section 37 or brought to it on appeal;
xxxx
Section 37. Disciplinary Jurisdiction. – (a) The Commission shall decide
upon appeal all administrative disciplinary cases involving the imposition
of a penalty of suspension for more than thirty days, or fine in an amount
exceeding thirty days’ salary, demotion in rank or salary or transfer,
removal or dismissal from Office. A complaint may be filed directly with
the Commission by a private citizen against a government official or
employee in which case it may hear and decide the case or it may
deputize any department or agency or official or group of officials to
conduct the investigation. The results of the investigation shall be
submitted to the Commission with recommendation as to the penalty to
be imposed or other action to be taken.22
We are not unmindful of certain special laws that allow the creation of
disciplinary committees and governing bodies in different branches,
subdivisions, agencies and instrumentalities of the government to hear
and decide administrative complaints against their respective officers and
employees. Be that as it may, we cannot interpret the creation of such
bodies nor the passage of laws such as – R.A. Nos. 8292 and 4670
allowing for the creation of such disciplinary bodies – as having divested
the CSC of its inherent power to supervise and discipline government
employees, including those in the academe. To hold otherwise would not
only negate the very purpose for which the CSC was established, i.e. to
instill professionalism, integrity, and accountability in our civil service, but
would also impliedly amend the Constitution itself.
In Office of the Ombudsman v. Masing,23 we explained that it is error to
contend that R.A. No. 4670 conferred exclusive disciplinary authority on
the Department of Education, Culture and Sports (DECS, now
Department of Education or DepEd) over public school teachers and to
have prescribed exclusive procedure in administrative investigations
involving them.24 Hence, it is equally erroneous for respondent to argue
that the PUP Charter and R.A. No. 8292 in relation to R.A. 4670 confer
upon the BOR of PUP exclusive jurisdiction to hear disciplinary cases
against university professors and personnel.
In Civil Service Commission v. Sojor,25 an administrative case was filed
against a state university president. There, we struck down the argument
that the BOR has exclusive jurisdiction to hear and decide an
administrative case filed against the respondent. We said:
In light of the other provisions of R.A. No. 9299, respondent’s argument
that the BOR has exclusive power to remove its university officials must
fail. Section 7 of R.A. No. 9299 states that the power to remove faculty
members, employees, and officials of the university is granted to the BOR
"in addition to its general powers of administration." This provision is
essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292,
demonstrating that the intent of the lawmakers did not change even with
the enactment of the new law. x x x
xxxx
Verily, the BOR of NORSU has the sole power of administration over the
university. But this power is not exclusive in the matter of disciplining and
removing its employee and officials.
Although the BOR of NORSU is given the specific power under R.A. No.
9299 to discipline its employees and officials, there is no showing that
such power is exclusive. When the law bestows upon a government body
the jurisdiction to hear and decide cases involving specific matters, it is to
be presumed that such jurisdiction is exclusive unless it be proved that
another body is likewise vested with the same jurisdiction, in which case,
both bodies have concurrent jurisdiction over the matter.26 (Emphasis
supplied)
But it is not only for this reason that Alfonso’s argument must fail. Equally
significant is the fact that he had already submitted himself to the
jurisdiction of the CSC when he filed his counter-affidavit27 and his motion
for reconsideration and requested for a change of venue, not from the
CSC to the BOR of PUP, but from the CSC-Central Office to the CSC-
NCR.28 It was only when his motion was denied that he suddenly had a
change of heart and raised the question of proper jurisdiction.29 This
cannot be allowed because it would violate the doctrine of res judicata, a
legal principle that is applicable to administrative cases as well.30 At the
very least, respondent’s active participation in the proceedings by seeking
affirmative relief before the CSC already bars him from impugning the
Commission’s authority under the principle of estoppel by laches.31
In this case, the complaint-affidavits were filed by two PUP employees.
These complaints were not lodged before the disciplinary tribunal of PUP,
but were instead filed before the CSC, with averments detailing
respondent’s alleged violation of civil service laws, rules and regulations.
After a fact-finding investigation, the Commission found that a prima facie
case existed against Alfonso, prompting the Commission to file a formal
charge against the latter.32 Verily, since the complaints were filed directly
with the CSC, and the CSC has opted to assume jurisdiction over the
complaint, the CSC’s exercise of jurisdiction shall be to the exclusion of
other tribunals exercising concurrent jurisdiction. To repeat, it may,
however, choose to deputize any department or agency or official or
group of officials such as the BOR of PUP to conduct the investigation, or
to delegate the investigation to the proper regional office.33 But the same
is merely permissive and not mandatory upon the Commission.
 32
We likewise affirm the order of preventive suspension issued by the CSC-
NCR against respondent.
There are two kinds of preventive suspension of government employees
charged with offenses punishable by removal or suspension, viz: (1)
preventive suspension pending investigation; and (2) preventive
suspension pending appeal if the penalty imposed by the disciplining
authority is suspension or dismissal and, after review, the respondent is
exonerated. 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. If after
investigation, respondent is found innocent of the charges and is
exonerated, he should be reinstated.34
The first kind, subject of the CSC Order against the respondent, is
appropriately covered by Sections 51 and 52 of the Revised
Administrative Code of 1987 (Executive Order No. 292) which 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.1avvphi1
SEC. 52. Lifting of Preventive Suspension. Pending Administrative
Investigation. - When the administrative case against 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.1avvphi1
Respondent was charged with grave misconduct and conduct prejudicial
to the best interest of the service. A person charged with grave
misconduct is put on notice that he stands accused of misconduct
coupled with any of the elements of corruption or willful intent to violate
the law or established rules.35 Meanwhile, conduct prejudicial to the best
interest of the service is classified as a grave offense with a
corresponding penalty of suspension for six (6) months and one (1) day
to one (1) year for the first offense, and the penalty of dismissal for the
second offense.36
In addition to the gravity of the charges against Alfonso, and equally
relevant, is the opportunity available to him to use his position as Director
of the Human Resources Management Department of the university to
exert undue influence or pressure on the potential witnesses that the
complainants may produce, or to tamper with the documentary evidence
that may be used against him. Preventive suspension is, therefore,
necessary so that respondent’s delicate yet powerful position in the
university may not be used to compromise the integrity and impartiality of
the entire proceedings.
WHEREFORE, premises considered, the May 21, 2007 Decision37 and
August 23, 2007 Resolution38 of the Court of Appeals in CA-G.R. SP No.
97284 are hereby REVERSED and SET ASIDE. Accordingly, Civil
Service Commission Resolution Nos. 06182139 and 06190840 dated
October 16, 2006 and November 7, 2006, respectively, as well as its
Order41 dated December 11, 2006 placing respondent under preventive
suspension are hereby REINSTATED. The CSC is ordered to proceed
hearing the administrative case against respondent with dispatch.
SO ORDERED.
THE CIVIL SERVICE COMMISSION, petitioner,
vs.
HENRY A. SOJOR, respondent. DECISION REYES, R.T.,
J.:
IS the president of a state university outside the reach of the disciplinary
jurisdiction constitutionally granted to the Civil Service Commission (CSC)
over all civil servants and officials?
Does the assumption by the CSC of jurisdiction over a president of a
state university violate academic freedom?
The twin questions, among others, are posed in this petition for review on
certiorari of the Decision1 of the Court of Appeals (CA) which annulled
two (2) CSC Resolutions2 against respondent Henry A. Sojor. T h e
Facts
The uncontroverted facts that led to the controversy, as found by the CSC
and the CA, are as follows:
On August 1, 1991, respondent Sojor was appointed by then President
Corazon Aquino as president of the Central Visayas Polytechnic College
(CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.) No. 8292,
or the "Higher Education Modernization Act of 1997," was enacted. This
law mandated that a Board of Trustees (BOT) be formed to act as the
governing body in state colleges. The BOT of CVPC appointed
respondent as president, with a four-year term beginning September
1998 up to September 2002.3 Upon the expiration of his first term of office
in 2002, he was appointed president of the institution for a second four-
year term, expiring on September 24, 2006.4
On June 25, 2004, CVPC was converted into the Negros Oriental State
University (NORSU).5 A Board of Regents (BOR) succeeded the BOT as
its governing body.
Meanwhile, three (3) separate administrative cases against respondent
were filed by CVPC faculty members before the CSC Regional Office
(CSC-RO) No. VII in Cebu City, to wit:
1. ADMC DC No. 02-20(A) – Complaint for dishonesty, grave misconduct
and conduct prejudicial to the best interest of the service filed on June 26,
2002 by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that
respondent approved the release of salary differentials despite the
absence of the required Plantilla and Salary Adjustment Form and valid
appointments.6
2. ADM DC No. 02-20 – Complaint for dishonesty, misconduct and
falsification of official documents filed on July 10, 2002 by Jocelyn Juanon
and Carolina Fe Santos. The complaint averred that respondent
maliciously allowed the antedating and falsification of the reclassification
differential payroll, to the prejudice of instructors and professors who
have pending request for adjustment of their academic ranks.7
3. ADM DC No. 02-21 – Complaint for nepotism filed on August 15, 2002
by Rose Marie Palomar, a former part-time instructor of CVPC. It was
alleged that respondent appointed his half-sister, Estrellas Sojor-
Managuilas, as casual clerk, in violation of the provisions against
nepotism under the Administrative Code.8
Before filing his counter-affidavits, respondent moved to dismiss the first
two complaints on grounds of lack of jurisdiction, bar by prior judgment
and forum shopping.
He claimed that the CSC had no jurisdiction over him as a presidential
appointee. Being part of the non-competitive or unclassified service of the
government, he was exclusively under the disciplinary jurisdiction of the
Office of the President (OP). He argued that CSC had no authority to
entertain, investigate and resolve charges against him; that the Civil
Service Law contained no provisions on the investigation, discipline, and
removal of presidential appointees. He also pointed out that the subject
matter of the complaints had already been resolved by the Office of the
Ombudsman.9
Finding no sufficient basis to sustain respondent’s arguments, the CSC-
RO denied his motion to dismiss in its Resolution dated September 4,
2002.10 His motion for reconsideration11 was likewise denied. Thus,
respondent was formally charged with three administrative cases,
namely: (1) Dishonesty, Misconduct, and Falsification of Official
Document; (2) Dishonesty, Grave Misconduct, and Conduct Prejudicial to
the Best Interest of the Service; and (3) Nepotism.12
Respondent appealed the actions of the regional office to the
Commission proper (CSC), raising the same arguments in his motion to
dismiss.13 He argued that since the BOT is headed by the Committee on
Higher Education Chairperson who was under the OP, the BOT was also
 33
under the OP. Since the president of CVPC was appointed by the BOT,
then he was a presidential appointee. On the matter of the jurisdiction
granted to
CSC by virtue of Presidential Decree (P.D.) No. 80714 enacted in October
1975, respondent contended that this was superseded by the provisions
of R.A. No. 8292,15 a later law which granted to the BOT the power to
remove university officials.
CSC Disposition
In a Resolution dated March 30, 2004,16 the CSC dismissed respondent’s
appeal and authorized its regional office to proceed with the investigation.
He was also preventively suspended for 90 days. The fallo of the said
resolution states:
WHEREFORE, the appeal of Henry A. Sojor, President of Central
Visayas Polytechnic College, is hereby DISMISSED. The Civil Service
Commission Regional Office No. VII, Cebu City, is authorized to proceed
with the formal investigation of the cases against Sojor and submit the
investigation reports to the Commission within one hundred five (105)
days from receipt hereof. Finally, Sojor is preventively suspended for
ninety (90) days.17
In decreeing that it had jurisdiction over the disciplinary case against
respondent, the CSC opined that his claim that he was a presidential
appointee had no basis in fact or in law. CSC maintained that it had
concurrent jurisdiction with the BOT of the CVPC. We quote:
His appointment dated September 23, 2002 was signed by then
Commission on Higher Education (CHED) Chairman Ester A. Garcia.
Moreover, the said appointment expressly stated that it was approved
and adopted by the Central Visayas Polytechnic College Board of
Trustees on August 13, 2002 in accordance with Section 6 of Republic
Act No. 8292 (Higher education Modernization Act of 1997), which
explicitly provides that, "He (the president of a state college) shall be
appointed by the Board of Regents/Trustees, upon recommendation of a
duly constituted search committee." Since the President of a state
college is appointed by the Board of Regents/Trustees of the college
concerned, it is crystal clear that he is not a presidential appointee.
Therefore, it is without doubt that Sojor, being the President of a
state college (Central Visayas Polytechnic College), is within the
disciplinary jurisdiction of the Commission.
The allegation of appellant Sojor that the Commission is bereft of
disciplinary jurisdiction over him since the same is exclusively lodged in
the CVPC Board of Trustees, being the appointing authority, cannot be
considered. The Commission and the CVPC Board of Trustees have
concurrent jurisdiction over cases against officials and employees
of the said agency. Since the three (3) complaints against Sojor were
filed with the Commission and not with the CVPC, then the former already
acquired disciplinary jurisdiction over the appellant to the exclusion of the
latter agency.18 (Emphasis supplied)
The CSC categorized respondent as a third level official, as defined
under its rules, who are under the jurisdiction of the Commission proper.
Nevertheless, it adopted the formal charges issued by its regional office
and ordered it to proceed with the investigation:
Pursuant to the Uniform Rules on Administrative Cases in the Civil
Service, Sojor, being a third level official, is within the disciplinary
jurisdiction of the Commission Proper. Thus, strictly speaking, the
Commission has the sole jurisdiction to issue the formal charge against
Sojor. x x x However, since the CSC RO No. VII already issued the formal
charges against him and found merit in the said formal charges, the same
is adopted. The CSC RO No. VII is authorized to proceed with the
formal investigation of the case against Sojor in accordance with
the procedure outlined in the aforestated Uniform Rules.19 (Emphasis
supplied)
No merit was found by the CSC in respondent’s motion for
reconsideration and, accordingly, denied it with finality on July 6, 2004.20
Respondent appealed the CSC resolutions to the CA via a petition for
certiorari and prohibition. He alleged that the CSC acted without or in
excess of its jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction when it issued the assailed resolutions; that
CSC encroached upon the academic freedom of CVPC; and that the
power to remove, suspend, and discipline the president of CVPC was
exclusively lodged in the BOT of CVPC.
CA Disposition
On September 29, 2004, the CA issued a writ of preliminary injunction
directing the CSC to cease and desist from enforcing its Resolution dated
March 30, 2004 and Resolution dated July 6, 2004.21 Thus, the formal
investigation of the administrative charges against Sojor before the CSC-
RO was suspended.
On June 27, 2005, after giving both parties an opportunity to air their
sides, the CA resolved in favor of respondent. It annulled the questioned
CSC resolutions and permanently enjoined the CSC from proceeding
with the administrative investigation. The dispositive part of the CA
decision reads:
WHEREFORE, in view of all the foregoing, and finding that the
respondent Civil Service Commission acted without jurisdiction in issuing
the assailed Resolution Nos. 040321 and 040766 dated March 20, 2004
and July 6, 2004, respectively, the same are hereby ANNULLED and SET
ASIDE. The preliminary injunction issued by this Court on September 29,
2004 is hereby made permanent.
SO ORDERED.22
The CA ruled that the power to appoint carries with it the power to
remove or to discipline. It declared that the enactment of R.A. No. 929923
in 2004, which converted CVPC into NORSU, did not divest the BOT of
the power to discipline and remove its faculty members, administrative
officials, and employees. Respondent was appointed as president of
CVPC by the BOT by virtue of the authority granted to it under Section 6
of R.A. No. 8292.24 The power of the BOT to remove and discipline erring
employees, faculty members, and administrative officials as expressly
provided for under Section 4 of R.A. No. 8292 is also granted to the BOR
of NORSU under Section 7 of R.A. No. 9299. The said provision reads:
Power and Duties of Governing Boards. – The governing board shall
have the following specific powers and duties in addition to its general
powers of administration and exercise of all the powers granted to the
board of directors of a corporation under Section 36 of Batas Pambansa
Blg. 68, otherwise known as the Corporation Code of the Philippines:
xxxx
to fix and adjust salaries of faculty members and administrative officials
and employees x x x; and to remove them for cause in accordance
with the requirements of due process of law. (Emphasis added)
The CA added that Executive Order (E.O.) No. 292,25 which grants
disciplinary jurisdiction to the CSC over all branches, subdivisions,
instrumentalities, and agencies of the government, including government-
owned or controlled corporations with original charters, is a general law.
According to the appellate court, E.O. No. 292 does not prevail over R.A.
No. 9299,26 a special law. Issues
Petitioner CSC comes to Us, seeking to reverse the decision of the CA on
the ground that THE COURT OF APPEALS GRAVELY ERRED IN
HOLDING THAT PETITIONER ACTED WITHOUT JURISDICTION IN
ISSUING RESOLUTION NO. 040321 DATED MARCH 30, 2004 AND
RESOLUTION NO. 04766 DATED JULY 6, 2004.27
Our Ruling
The petition is meritorious. I. Jurisdiction of the CSC
The Constitution grants to the CSC administration over the entire civil
service.28 As defined, the civil service embraces every branch, agency,
subdivision, and instrumentality of the government, including every
government-owned or controlled corporation.29 It is further classified into
career and non-career service positions. Career service positions are
those where: (1) entrance is based on merit and fitness or highly
technical qualifications; (2) there is opportunity for advancement to higher
career positions; and (3) there is security of tenure. These include:
(1) Open Career positions for appointment to which prior qualification in
an appropriate examination is required;
(2) Closed Career positions which are scientific, or highly technical in
nature; these include the faculty and academic staff of state colleges and
universities, and scientific and technical positions in scientific or research
institutions which shall establish and maintain their own merit systems;
(3) Positions in the Career Executive Service; namely, Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department Service and
other officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the President;
(4) Career officers, other than those in the Career Executive Service, who
are appointed by the President, such as the Foreign Service Officers in
the Department of Foreign Affairs;
 34
(5) Commissioned officers and enlisted men of the Armed Forces which
shall maintain a separate merit system;
(6) Personnel of government-owned or controlled corporations, whether
performing governmental or proprietary functions, who do not fall under
the non-career service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.30
Career positions are further grouped into three levels. Entrance to the
first two levels is determined through competitive examinations, while
entrance to the third level is prescribed by the Career Executive Service
Board.31 The positions covered by each level are:
(a) The first level shall include clerical, trades, crafts, and custodial
service positions which involve non-professional or subprofessional work
in a non-supervisory or supervisory capacity requiring less than four
years of collegiate studies;
(b) The second level shall include professional, technical, and scientific
positions which involve professional, technical, or scientific work in a non-
supervisory or supervisory capacity requiring at least four years of college
work up to Division Chief level; and
(c) The third level shall cover positions in the Career Executive Service.32
On the other hand, non-career service positions are characterized by: (1)
entrance not by the usual tests of merit and fitness; and (2) tenure which
is limited to a period specified by law, coterminous with the appointing
authority or subject to his pleasure, or limited to the duration of a
particular project for which purpose employment was made.33 The law
states:
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions
at the pleasure of the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms
of office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government
is in accordance with a special contract to undertake a specific work or
job, requiring special or technical skills not available in the employing
agency, to be accomplished within a specific period, which in no case
shall exceed one year, and performs or accomplishes the specific work or
job, under his own responsibility with a minimum of direction and
supervision from the hiring agency; and
(5) Emergency and seasonal personnel.34
It is evident that CSC has been granted by the Constitution and the
Administrative Code jurisdiction over all civil service positions in the
government service, whether career or non-career. From this grant of
general jurisdiction, the CSC promulgated the Revised Uniform Rules on
Administrative Cases in the Civil Service.35 We find that the specific
jurisdiction, as spelled out in the CSC rules, did not depart from the
general jurisdiction granted to it by law. The jurisdiction of the Regional
Office of the CSC and the Commission central office (Commission
Proper) is specified in the CSC rules as:
Section 4. Jurisdiction of the Civil Service Commission. – The Civil
Service Commission shall hear and decide administrative cases instituted
by, or brought before it, directly or on appeal, including contested
appointments, and shall review decisions and actions of its offices and of
the agencies attached to it. Except as otherwise provided by the
Constitution or by law, the Civil Service Commission shall have the
final authority to pass upon the removal, separation and suspension
of all officers and employees in the civil service and upon all
matters relating to the conduct, discipline and efficiency of such
officers and employees.
Section 5. Jurisdiction of the Civil Service Commission Proper. – The Civil
Service Commission Proper shall have jurisdiction over the following
cases:
A. Disciplinary
1. Decisions of Civil Service Regional Offices brought before it on petition
for review;
2. Decisions of heads of departments, agencies, provinces, cities,
municipalities and other instrumentalities, imposing penalties exceeding
thirty days suspension or fine in an amount exceeding thirty days salary
brought before it on appeal;
3. Complaints brought against Civil Service Commission Proper
personnel;
4. Complaints against third level officials who are not presidential
appointees;
5. Complaints against Civil Service officials and employees which
are not acted upon by the agencies and such other complaints
requiring direct or immediate action, in the interest of justice;
6. Requests for transfer of venue of hearing on cases being heard by
Civil Service Regional Offices;
7. Appeals from the Order of Preventive Suspension; and
8. Such other actions or requests involving issues arising out of or in
connection with the foregoing enumerations.
B. Non-Disciplinary
1. Decisions of Civil Service Commission Regional Offices brought
before it;
2. Requests for favorable recommendation on petition for executive
clemency;
3. Protests against the appointment, or other personnel actions, involving
third level officials; and
4. Such other analogous actions or petitions arising out of or in relation
with the foregoing enumerations.
Section 6. Jurisdiction of Civil Service Regional Offices. – The Civil
Service Commission Regional Offices shall have jurisdiction over the
following cases:
A. Disciplinary
1. Complaints initiated by, or brought before, the Civil Service
Commission Regional Offices provided that the alleged acts or
omissions were committed within the jurisdiction of the Regional
Office, including Civil Service examination anomalies or
irregularities and the persons complained of are employees of
agencies, local or national, within said geographical areas;
2. Complaints involving Civil Service Commission Regional Office
personnel who are appointees of said office; and
3. Petitions to place respondent under Preventive Suspension.
B. Non-Disciplinary
1. Disapproval of appointments brought before it on appeal;
2. Protests against the appointments of first and second level employees
brought before it directly or on appeal. (Emphasis supplied)
Respondent, a state university president with a fixed term of office
appointed by the governing board of trustees of the university, is a non-
career civil service officer. He was appointed by the chairman and
members of the governing board of CVPC. By clear provision of law,
respondent is a non-career civil servant who is under the jurisdiction of
the CSC. II. The power of the BOR to discipline officials and
employees is not exclusive. CSC has concurrent jurisdiction over a
president of a state university.
Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of
1997, under which law respondent was appointed during the time
material to the present case, provides that the school’s governing board
shall have the general powers of administration granted to a corporation.
In addition, Section 4 of the law grants to the board the power to remove
school faculty members, administrative officials, and employees for
cause:
Section 4. Powers and Duties of Governing Boards. – The governing
board shall have the following specific powers and duties in
addition to its general powers of administration and the exercise of
all the powers granted to the board of directors of a corporation
under Section 36 of Batas Pambansa Blg. 68, otherwise known as the
Corporation Code of the Philippines:
xxxx
h) to fix and adjust salaries of faculty members and administrative officials
and employees subject to the provisions of the revised compensation and
classification system and other pertinent budget and compensation laws
governing hours of service, and such other duties and conditions as it
may deem proper; to grant them, at its discretion, leaves of absence
under such regulations as it may promulgate, any provisions of existing
law to the contrary not withstanding; and to remove them for cause in
accordance with the requirements of due process of law. (Emphasis
supplied)
The above section was subsequently reproduced as Section 7(i) of the
succeeding law that converted CVPC into NORSU, R.A. No. 9299.
Notably, and in contrast with the earlier law, R.A. No. 9299 now provides
 35
that the administration of the university and exercise of corporate powers
of the board of the school shall be exclusive:
Sec. 4. Administration. – The University shall have the general powers of
a corporation set forth in Batas Pambansa Blg. 68, as amended,
otherwise known as "The Corporation Code of the Philippines." The
administration of the University and the exercise of its corporate
powers shall be vested exclusively in the Board of Regents and the
president of the University insofar as authorized by the Board.
Measured by the foregoing yardstick, there is no question that
administrative power over the school exclusively belongs to its BOR. But
does this exclusive administrative power extend to the power to remove
its erring employees and officials?
In light of the other provisions of R.A. No. 9299, respondent’s argument
that the BOR has exclusive power to remove its university officials must
fail. Section 7 of R.A. No. 9299 states that the power to remove faculty
members, employees, and officials of the university is granted to the BOR
"in addition to its general powers of administration." This provision is
essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292,
demonstrating that the intent of the lawmakers did not change even with
the enactment of the new law. For clarity, the text of the said section is
reproduced below:
Sec. 7. Powers and Duties of the Board of Regents. – The Board shall
have the following specific powers and duties in addition to its
general powers of administration and the exercise of all the powers
granted to the Board of Directors of a corporation under existing laws:
xxxx
i. To fix and adjust salaries of faculty members and administrative officials
and employees, subject to the provisions of the Revised Compensation
and Position Classification System and other pertinent budget and
compensation laws governing hours of service and such other duties and
conditions as it may deem proper; to grant them, at its discretion, leaves
of absence under such regulations as it may promulgate, any provision of
existing law to the contrary notwithstanding; and to remove them for
cause in accordance with the requirements of due process of law.36
(Emphasis supplied)
Verily, the BOR of NORSU has the sole power of administration over the
university. But this power is not exclusive in the matter of disciplining and
removing its employees and officials.
Although the BOR of NORSU is given the specific power under R.A. No.
9299 to discipline its employees and officials, there is no showing that
such power is exclusive. When the law bestows upon a government body
the jurisdiction to hear and decide cases involving specific matters, it is to
be presumed that such jurisdiction is exclusive unless it be proved that
another body is likewise vested with the same jurisdiction, in which case,
both bodies have concurrent jurisdiction over the matter.37
All members of the civil service are under the jurisdiction of the CSC,
unless otherwise provided by law. Being a non-career civil servant does
not remove respondent from the ambit of the CSC. Career or non-career,
a civil service official or employee is within the jurisdiction of the CSC.
This is not a case of first impression.
In University of the Philippines v. Regino,38 this Court struck down the
claim of exclusive jurisdiction of the UP BOR to discipline its employees.
The Court held then:
The Civil Service Law (PD 807) expressly vests in the Commission
appellate jurisdiction in administrative disciplinary cases involving
members of the Civil Service. Section 9(j) mandates that the Commission
shall have the power to "hear and decide administrative disciplinary
cases instituted directly with it in accordance with Section 37 or brought
to it on appeal." And Section 37(a) provides that, "The Commission shall
decide upon appeal all administrative disciplinary cases involving the
imposition of a penalty of suspension for more than thirty (30) days, or
fine in an amount exceeding thirty days’ salary, demotion in rank or salary
or transfer, removal or dismissal from office." (Emphasis supplied)
Under the 1972 Constitution, all government-owned or controlled
corporations, regardless of the manner of their creation, were considered
part of the Civil Service. Under the 1987 Constitution, only government-
owned or controlled corporations with original charters fall within the
scope of the Civil Service pursuant to Article IX-B, Section 2(1), which
states:
"The Civil Service embraces all branches, subdivisions, instrumentalities,
and agencies of the government, including government-owned or
controlled corporations with original charters."
As a mere government-owned or controlled corporation, UP was clearly a
part of the Civil Service under the 1973 Constitution and now continues to
be so because it was created by a special law and has an original
charter. As a component of the Civil Service, UP is therefore
governed by PD 807 and administrative cases involving the
discipline of its employees come under the appellate jurisdiction of
the Civil Service Commission.39 (Emphasis supplied)
In the more recent case of Camacho v. Gloria,40 this Court lent credence
to the concurrent jurisdiction of the CSC when it affirmed that a case
against a university official may be filed either with the university’s BOR
or directly with the CSC. We quote:
Further, petitioner contends that the creation of the committee by the
respondent Secretary, as Chairman of the USP Board of Regents, was
contrary to the Civil Service Rules. However, he cites no specific
provision of the Civil Service Law which was violated by the respondents
in forming the investigating committee. The Civil Service Rules embodied
in Executive Order 292 recognize the power of the Secretary and the
university, through its governing board, to investigate and decide matters
involving disciplinary action against officers and employees under their
jurisdiction. Of course under EO 292, a complaint against a state
university official may be filed either with the university’s Board of
Regents or directly with the Civil Service Commission, although the
CSC may delegate the investigation of a complaint and for that
purpose, may deputize any department, agency, official or group of
officials to conduct such investigation.41 (Emphasis supplied)
Thus, CSC validly took cognizance of the administrative complaints
directly filed before the regional office, concerning violations of civil
service rules against respondent.
III. Academic freedom may not be invoked when there are alleged
violations of civil service laws and rules.
Certainly, academic institutions and personnel are granted wide latitude
of action under the principle of academic freedom. Academic freedom
encompasses the freedom to determine who may teach, who may be
taught, how it shall be taught, and who may be admitted to study.42
Following that doctrine, this Court has recognized that institutions of
higher learning has the freedom to decide for itself the best methods to
achieve their aims and objectives, free from outside coercion, except
when the welfare of the general public so requires.43 They have the
independence to determine who to accept to study in their school and
they cannot be compelled by mandamus to enroll a student.44
That principle, however, finds no application to the facts of the present
case. Contrary to the matters traditionally held to be justified to be within
the bounds of academic freedom, the administrative complaints filed
against Sojor involve violations of civil service rules. He is facing charges
of nepotism, dishonesty, falsification of official documents, grave
misconduct, and conduct prejudicial to the best interest of the service.
These are classified as grave offenses under civil service rules,
punishable with suspension or even dismissal.45
This Court has held that the guaranteed academic freedom does not give
an institution the unbridled authority to perform acts without any statutory
basis.46 For that reason, a school official, who is a member of the civil
service, may not be permitted to commit violations of civil service rules
under the justification that he was free to do so under the principle of
academic freedom.
Lastly, We do not agree with respondent’s contention that his
appointment to the position of president of NORSU, despite the pending
administrative cases against him, served as a condonation by the BOR of
the alleged acts imputed to him. The doctrine this Court laid down in
Salalima v. Guingona, Jr.47 and Aguinaldo v. Santos48 are inapplicable to
the present circumstances. Respondents in the mentioned cases are
elective officials, unlike respondent here who is an appointed official.
Indeed, election expresses the sovereign will of the people.49 Under the
principle of vox populi est suprema lex, the re-election of a public official
may, indeed, supersede a pending administrative case. The same cannot
be said of a re-appointment to a non-career position. There is no
sovereign will of the people to speak of when the BOR re-appointed
respondent Sojor to the post of university president. WHEREFORE,
the petition is GRANTED. The Decision of the Court of Appeals is
 36
REVERSED and SET ASIDE. The assailed Resolutions of the Civil
Service Commission are REINSTATED.
SO ORDERED.
TEOFILO EVANGELISTA, Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
To be guilty of the crime of illegal possession of firearms and ammunition,
one does not have to be in actual physical possession thereof. The law
does not punish physical possession alone but possession in general,
which includes constructive possession or the subjection of the thing to
the owner’s control.1
This Petition for Review on Certiorari2 assails the October 15, 2003
Decision3 of the Court of Appeals (CA) in CA-G.R. CR No. 21805 which
affirmed the January 23, 1998 Decision4 of the Regional Trial Court (RTC)
of Pasay City, Branch 109 convicting petitioner Teofilo Evangelista for
violation of Section 1, Presidential Decree (PD) No. 1866,5 as amended,
as well as the April 16, 2004 Resolution which denied petitioner’s Motion
for Reconsideration.
Factual Antecedents
In an Information6 dated January 31, 1996, petitioner was charged with
violation of Section 1 of PD 1866 allegedly committed as follows:
That on or about the 30th day of January 1996, at the Ninoy Aquino
International Airport, Pasay City, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, did, then and there,
wilfully, unlawfully and feloniously have in his possession, custody and
control the following items:
1. One (1) Unit 9mm Jericho Pistol, Israel with SN F-36283 with one (1)
magazine;
2. One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864
with two (2) magazines;
3. Nineteen (19) 9mm bullets.
without the corresponding permit or license from competent authority.
CONTRARY TO LAW.
After posting his bail, petitioner filed on February 14, 1996 an Urgent
Motion for (a) Suspension of Proceedings and (b) the Holding of A
Preliminary Investigation.7 The RTC granted the motion and, accordingly,
the State Prosecutor conducted the preliminary investigation.
In a Resolution8 dated March 6, 1996, the State Prosecutor found no
probable cause to indict petitioner and thus recommended the reversal of
the resolution finding probable cause and the dismissal of the complaint.
Thereafter, a Motion to Withdraw Information9 was filed but it was denied
by the trial court in an Order10 dated March 26, 1996, viz:
Acting on the "Motion to Withdraw Information" filed by State Prosecutor
Aida Macapagal on the ground that [there exists] no probable cause to
indict the accused, the Information having been already filed in Court, the
matter should be left to the discretion of the Court to assess the
evidence, hence, for lack of merit, the same is hereby denied. Let the
arraignment of the accused proceed.
When arraigned on March 26, 1996, petitioner pleaded not guilty to the
charge. Thereafter, trial ensued.
Version of the Prosecution
In the morning of January 30, 1996, Maximo Acierto, Jr. (Acierto), a
Customs Police assigned at the Ninoy Aquino International Airport (NAIA)
District Command, was informed by his superior that a certain passenger
of Philippine Airlines (PAL) Flight No. 657 would be arriving from Dubai
bringing with him firearms and ammunitions. Shortly after lunch, Acierto,
together with Agents Cuymo and Fuentabella, proceeded to the tube area
where they were met by a crewmember who introduced to them herein
petitioner. Acierto asked petitioner if he brought firearms with him and the
latter answered in the affirmative adding that the same were bought in
Angola. Thereupon, Acierto was summoned to the cockpit by the pilot,
Capt. Edwin Nadurata (Capt. Nadurata), where the firearms and
ammunitions were turned over to him. Petitioner was then escorted to the
arrival area to get his luggage and thereafter proceeded to the
examination room where the luggage was examined and petitioner was
investigated. In open court, Acierto identified the firearms and
ammunitions.
During the investigation, petitioner admitted before Special Agent
Apolonio Bustos (Bustos) that he bought the subject items in Angola but
the same were confiscated by the Dubai authorities, which turned over
the same to a PAL personnel in Dubai. Upon inquiry, the Firearms and
Explosive Office (FEO) in Camp Crame certified that petitioner is neither
registered with said office11 nor licensed holder of aforesaid firearms and
ammunitions. Bustos likewise verified from the Bureau of Customs, but
his effort yielded no record to show that the firearms were legally
purchased. Among the documents Bustos had gathered during his
investigation were the Arrival Endorsement Form12 and Customs
Declaration Form.13 A referral letter14 was prepared endorsing the matter
to the Department of Justice. Bustos admitted that petitioner was not
assisted by counsel when the latter admitted that he bought the firearms
in Angola.
SPO4 Federico Bondoc, Jr. (SPO4 Bondoc), a member of the Philippine
National Police (PNP) and representative of the FEO, upon verification,
found that petitioner is not a licensed/registered firearm holder. His office
issued a certification15 to that effect which he identified in court as Exhibit
"A".
After the prosecution rested its case, petitioner, with leave of court, filed
his Demurrer to Evidence,16 the resolution of which was deferred pending
submission of petitioner’s evidence.17
Version of the Defense
The defense presented Capt. Nadurata whose brief but candid and
straightforward narration of the event was synthesized by the CA as
follows:
x x x On January 30, 1996, he was approached by the PAL Station
Manager in Dubai, who informed him that a Filipino contract worker from
Angola who is listed as a passenger of PAL flight from Dubai to Manila,
was being detained as he was found in possession of firearms; that if
said passenger will not be able to board the airplane, he would be
imprisoned in Dubai; and that the Arabs will only release the passenger if
the Captain of PAL would accept custody of the passenger [herein
petitioner] and the firearms. Capt. Nadurata agreed to take custody of the
firearms and the passenger, herein appellant, so that the latter could
leave Dubai. The firearms were deposited by the Arabs in the cockpit of
the airplane and allowed the appellant to board the airplane. Upon arrival
in Manila, Capt. Nadurata surrendered the firearms to the airport
authorities.
Meanwhile, in view of the unavailability of the defense’s intended witness,
Nilo Umayaw (Umayaw), the PAL Station Manager in Dubai, the
prosecution and the defense agreed and stipulated on the following
points:
1. That PAL Station Manager Mr. Nilo Umayaw was told by a Dubai Police
that firearms and ammunitions were found in the luggage of a Filipino
passenger coming from Angola going to the Philippines;
2. That he was the one who turned over the subject firearms to Captain
Edwin Nadurata, the Pilot in command of PAL Flight 657;
3. That the subject firearms [were] turned over at Dubai;
4. That the said firearms and ammunitions were confiscated from the
accused Teofilo Evangelista and the same [were] given to the PAL Station
Manager who in turn submitted [them] to the PAL Pilot, Capt. Edwin
Nadurata who has already testified;
5. That [these are] the same firearms involved in this case.18
Ruling of the Regional Trial Court
On February 4, 1997, the RTC rendered its Decision, the dispositive
portion of which reads:
In view of all the foregoing, the Court finds accused TEOFILO E.
EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1,
P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions:
(One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with
two (2) magazines and nineteen (19) 9mm bullets) and hereby sentences
him to imprisonment of Seventeen (17) Years and Four (4) Months to
Twenty (20) Years.
The above-mentioned firearms are hereby ordered forfeited in favor of
the government and is ordered transmitted to the National Bureau of
Investigation, Manila for proper disposition.
SO ORDERED.19
On April 4, 1997, petitioner filed a Motion for New Trial20 which the RTC
granted.21 Forthwith, petitioner took the witness stand narrating his own
version of the incident as follows:
 37
On January 28, 1996, he was at Dubai International Airport waiting for his
flight to the Philippines. He came from Luwanda, Angola where he was
employed as a seaman at Oil International Limited. While at the airport in
Dubai, Arab policemen suddenly accosted him and brought him to their
headquarters where he saw guns on top of a table. The Arabs maltreated
him and forced him to admit ownership of the guns. At this point, PAL
Station Manager Umayaw came and talked to the policemen in Arabian
dialect. Umayaw told him that he will only be released if he admits
ownership of the guns. When he denied ownership of the same, Umayaw
reiterated that he (petitioner) will be released only if he will bring the guns
with him to the Philippines. He declined and insisted that the guns are not
his. Upon the request of Umayaw, petitioner was brought to the Duty Free
area for his flight going to the Philippines. When he was inside the plane,
he saw the Arab policemen handing the guns to the pilot. Upon arrival at
the NAIA, he was arrested by the Customs police and brought to the
arrival area where his passport was stamped and he was made to sign a
Customs Declaration Form without reading its contents. Thereafter, he
was brought to a room at the ground floor of the NAIA where he was
investigated. During the investigation, he was not represented by counsel
and was forced to accept ownership of the guns. He denied ownership of
the guns and the fact that he admitted having bought the same in Angola.
Ruling of the Regional Trial Court
After new trial, the RTC still found petitioner liable for the offense charged
but modified the penalty of imprisonment. The dispositive portion of the
Decision dated January 23, 1998 reads:
In view of all the foregoing, the Court finds accused TEOFILO E.
EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1,
P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions:
One (1) Unit 9mm Jerico Pistol, Israel with SN F-36283 with one (1)
magazine; One (1) Unit Mini-Uzi 9mm Israel submachine gun with
SN-931864 with two (2) magazines and nineteen (19) 9mm bullets and
hereby sentences him to imprisonment of Six (6) Years and One (1) Day
to Eight (8) Years and a fine of ₱30,000.00.
The above-mentioned firearms are hereby ordered forfeited in favor of
the government and [are] ordered transmitted to the National Bureau of
Investigation, Manila for proper disposition.
SO ORDERED.22
Ruling of the Court of Appeals
On appeal, the CA affirmed the findings of the trial court in its Decision
dated October 15, 2003. It ruled that the stipulations during the trial are
binding on petitioner. As regards possession of subject firearms, the
appellate court ruled that Capt. Nadurata’s custody during the flight from
Dubai to Manila was for and on behalf of petitioner. Thus, there was
constructive possession.
Petitioner moved for reconsideration23 but it was denied by the appellate
court in its April 16, 2004 Resolution.
Hence, this petition.
Issues
Petitioner assigns the following errors:
a. The Court of Appeals gravely erred in not acquitting Evangelista from
the charge of Presidential Decree No. 1866, Illegal Possession of
Firearms.
b. The Court of Appeals gravely erred in not holding that Evangelista was
never in possession of any firearm or ammunition within Philippine
jurisdiction and he therefore could not have committed the crime charged
against him.
c. The Court of Appeals gravely erred in holding that Evangelista
committed a continuing crime.
d. The Court of Appeals gravely erred in disregarding the results of the
preliminary investigation.24
We find the appeal devoid of merit.
At the outset, we emphasize that under Rule 45 of the Rules of Court, a
petition for review on certiorari shall only raise questions of law
considering that the findings of fact of the CA are, as a general rule,
conclusive upon and binding on the Supreme Court.25 In this recourse,
petitioner indulges us to calibrate once again the evidence adduced by
the parties and to re-evaluate the credibility of their witnesses. On this
ground alone, the instant petition deserves to be denied outright.
However, as the liberty of petitioner is at stake and following the principle
that an appeal in a criminal case throws the whole case wide open for
review, we are inclined to delve into the merits of the present petition.
In his bid for acquittal, petitioner argues that he could not have committed
the crime imputed against him for he was never in custody and
possession of any firearm or ammunition when he arrived in the
Philippines. Thus, the conclusion of the appellate court that he was in
constructive possession of the subject firearms and ammunitions is
erroneous.
We are not persuaded. As correctly found by the CA:
Appellant’s argument that he was never found in possession of the
subject firearms and ammunitions within Philippine jurisdiction is
specious. It is worthy to note that at the hearing of the case before the
court a quo on October 8, 1996, the defense counsel stipulated that the
subject firearms and ammunitions were confiscated from appellant and
the same were given to PAL Station Manager Nilo Umayaw who, in turn,
turned over the same to Capt. Edwin Nadurata. Such stipulation of fact is
binding on appellant, for the acts of a lawyer in the defense of a case are
the acts of his client. Granting that Nilo Umayaw was merely told by the
Dubai authorities that the firearms and ammunitions were found in the
luggage of appellant and that Umayaw had no personal knowledge
thereof, however, appellant’s signature on the Customs Declaration Form,
which contains the entry "2 PISTOL guns SENT SURRENDER TO
PHILIPPINE AIRLINE," proves that he was the one who brought the guns
to Manila. While appellant claims that he signed the Customs Declaration
Form without reading it because of his excitement, however, he does not
claim that he was coerced or persuaded in affixing his signature thereon.
The preparation of the Customs Declaration Form is a requirement for all
arriving passengers in an international flight. Moreover, it cannot be said
that appellant had already been arrested when he signed the Customs
Declaration Form. He was merely escorted by Special Agent Acierto to
the arrival area of the NAIA. In fact, appellant admitted that it was only
after he signed the Customs Declaration Form that he was brought to the
ground floor of NAIA for investigation. Consequently, appellant was in
constructive possession of the subject firearms. As held in People v. Dela
Rosa, the kind of possession punishable under PD 1866 is one where the
accused possessed a firearm either physically or constructively with
animus possidendi or intention to possess the same. Animus possidendi
is a state of mind. As such, what goes on into the mind of the accused, as
his real intent, could be determined solely based on his prior and
coetaneous acts and the surrounding circumstances explaining how the
subject firearm came to his possession.
Appellant’s witness, Capt. Nadurata, the PAL pilot of Flight No. PR 657
from Dubai to Manila on January 30, 1996, testified that he accepted
custody of the firearms and of appellant in order that the latter, who was
being detained in Dubai for having been found in possession of firearms,
would be released from custody. In other words, Capt. Nadurata’s
possession of the firearm during the flight from Dubai to Manila was for
and on behalf of appellant.26
We find no cogent reason to deviate from the above findings, especially
considering petitioner’s admission during the clarificatory questioning by
the trial court:
Court: So, it is clear now in the mind of the Court, that the firearms and
ammunitions will also be with you on your flight to Manila, is that correct?
A: Yes, your honor.
Court: [You] made mention of that condition, that the Dubai police agreed
to release you provided that you will bring the guns and ammunitions with
you? Is that the condition of the Dubai Police?
A: Yes, your honor.
Court: The condition of his release was that he will have to bring the guns
and ammunitions to the Philippines and this arrangement was made by
the PAL Supervisor at Dubai and it was Mr. Umayaw the PAL Supervisor,
who interceded in his behalf with the Dubai Police for his flight in the
Philippines.27
To us, this constitutes judicial admission of his possession of the subject
firearms and ammunitions. This admission, the veracity of which requires
no further proof, may be controverted only upon a clear showing that it
was made through palpable mistake or that no admission was made.28
No such controversion is extant on record.
Moreover, we cannot ignore the Customs Declaration Form wherein it
appeared that petitioner brought the firearms with him upon his arrival in
the Philippines. While there was no showing that he was forced to sign
the form, petitioner can only come up with the excuse that he was
excited. Hardly can we accept such pretension.
 38
We are likewise not swayed by petitioner’s contention that the lower court
erroneously relied on the Customs Declaration Form since it is not
admissible in evidence because it was accomplished without the benefit
of counsel while he was under police custody.
The accomplishment of the Customs Declaration Form was not elicited
through custodial investigation. It is a customs requirement which
petitioner had a clear obligation to comply. As correctly observed by the
CA, the preparation of the Customs Declaration Form is a requirement for
all arriving passengers in an international flight. Petitioner was among
those passengers. Compliance with the constitutional procedure on
custodial investigation is, therefore, not applicable in this case. Moreover,
it is improbable that the customs police were the ones who filled out the
declaration form. As will be noted, it provides details that only petitioner
could have possibly known or supplied. Even assuming that there was
prior accomplishment of the form which contains incriminating details,
petitioner could have easily taken precautionary measures by not affixing
his signature thereto. Or he could have registered his objection thereto
especially when no life threatening acts were being employed against him
upon his arrival in the country.
Obviously, it was not only the Customs Declaration Form from which the
courts below based their conclusion that petitioner was in constructive
possession of subject firearms and ammunitions. Emphasis was also
given on the stipulations and admissions made during the trial. These
pieces of evidence are enough to show that he was the owner and
possessor of these items.
Petitioner contends that the trial court has no jurisdiction over the case
filed against him. He claims that his alleged possession of the subject
firearms transpired while he was at the Dubai Airport and his possession
thereof has ceased when he left for the Philippines. He insists that since
Dubai is outside the territorial jurisdiction of the Philippines and his
situation is not one of the exceptions provided in Article 2 of the Revised
Penal Code, our criminal laws are not applicable. In short, he had not
committed a crime within the Philippines.1avvphi1
Indeed it is fundamental that the place where the crime was committed
determines not only the venue of the action but is an essential element of
jurisdiction.29 In order for the courts to acquire jurisdiction in criminal
cases, the offense should have been committed or any one of its
essential ingredients should have taken place within the territorial
jurisdiction of the court. If the evidence adduced during the trial shows
that the offense was committed somewhere else, the court should
dismiss the action for want of jurisdiction.30
Contrary to the arguments put forward by petitioner, we entertain no
doubt that the crime of illegal possession of firearms and ammunition for
which he was charged was committed in the Philippines. The
accomplishment by petitioner of the Customs Declaration Form upon his
arrival at the NAIA is very clear evidence that he was already in
possession of the subject firearms in the Philippines.
And more than mere possession, the prosecution was able to ascertain
that he has no license or authority to possess said firearms. It bears to
stress that the essence of the crime penalized under PD 1866, as
amended, is primarily the accused’s lack of license to possess the
firearm. The fact of lack or absence of license constitutes an essential
ingredient of the offense of illegal possession of firearm. Since it has
been shown that petitioner was already in the Philippines when he was
found in possession of the subject firearms and determined to be without
any authority to possess them, an essential ingredient of the offense, it is
beyond reasonable doubt that the crime was perpetrated and completed
in no other place except the Philippines.
Moreover, the jurisdiction of a court over the criminal case is determined
by the allegations in the complaint or information. In this case, the
information specifically and categorically alleged that on or about January
30, 1996 petitioner was in possession, custody and control of the subject
firearms at the Ninoy Aquino International Airport, Pasay City, Philippines,
certainly a territory within the jurisdiction of the trial court.
In contrast, petitioner failed to establish by sufficient and competent
evidence that the present charge happened in Dubai. It may be well to
recall that while in Dubai, petitioner, even in a situation between life and
death, firmly denied possession and ownership of the firearms.
Furthermore, there is no record of any criminal case having been filed
against petitioner in Dubai in connection with the discovered firearms.
Since there is no pending criminal case when he left Dubai, it stands to
reason that there was no crime committed in Dubai. The age-old but
familiar rule that he who alleges must prove his allegation applies.31
Petitioner finally laments the trial court’s denial of the Motion to Withdraw
Information filed by the investigating prosecutor due to the latter’s finding
of lack of probable cause to indict him. He argues that such denial
effectively deprived him of his substantive right to a preliminary
investigation.
Still, petitioner’s argument fails to persuade. There is nothing procedurally
improper on the part of the trial court in disregarding the result of the
preliminary investigation it itself ordered. Judicial action on the motion
rests in the sound exercise of judicial discretion. In denying the motion,
the trial court just followed the jurisprudential rule laid down in Crespo v.
Judge Mogul32 that once a complaint or information is filed in court, any
disposition of the case as to its dismissal or the conviction or acquittal of
the accused rests on the sound discretion of the court. The court is not
dutifully bound by such finding of the investigating prosecutor. In Solar
Team Entertainment, Inc v. Judge How33 we held:
It bears stressing that the court is however not bound to adopt the
resolution of the Secretary of Justice since the court is mandated to
independently evaluate or assess the merits of the case, and may either
agree or disagree with the recommendation of the Secretary of Justice.
Reliance alone on the resolution of the Secretary of Justice would be an
abdication of the trial court’s duty and jurisdiction to determine prima facie
case.
Consequently, petitioner has no valid basis to insist on the trial court to
respect the result of the preliminary investigation it ordered to be
conducted.
In fine, we find no reason not to uphold petitioner’s conviction. The
records substantiate the RTC and CA’s finding that petitioner possessed,
albeit constructively, the subject firearms and ammunition when he
arrived in the Philippines on January 30, 1996. Moreover, no significant
facts and circumstances were shown to have been overlooked or
disregarded which if considered would have altered the outcome of the
case.
In the prosecution for the crime of illegal possession of firearm and
ammunition, the Court has reiterated the essential elements in People v.
Eling34 to wit: (1) the existence of subject firearm; and, (2) the fact that
the accused who possessed or owned the same does not have the
corresponding license for it.
In the instant case, the prosecution proved beyond reasonable doubt the
elements of the crime. The existence of the subject firearms and the
ammunition were established through the testimony of Acierto. Their
existence was likewise admitted by petitioner when he entered into
stipulation and through his subsequent judicial admission. Concerning
petitioner’s lack of authority to possess the firearms, SPO4 Bondoc, Jr.
testified that upon verification, it was ascertained that the name of
petitioner does not appear in the list of registered firearm holders or a
registered owner thereof. As proof, he submitted a certification to that
effect and identified the same in court. The testimony of SPO4 Bondoc,
Jr. or the certification from the FEO would suffice to prove beyond
reasonable doubt the second element.35
A final point. Republic Act (RA) No. 829436 took effect on June 6, 1997 or
after the commission of the crime on January 30, 1996. However, since it
is advantageous to the petitioner, it should be given retrospective
application insofar as the penalty is concerned.
Section 1 of PD 1866, as amended by RA 8294 provides:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended
to be Used in the Manufacture of Firearms or Ammunition. x x x
The penalty of prision mayor in its minimum period and a fine of Thirty
thousand pesos (₱30,000.00) shall be imposed if the firearm is classified
as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .
45 and also lesser calibered firearms but considered powerful such as
caliber .357 and caliber .22 center-fire magnum and other firearms with
firing capability of full automatic and by burst of two or three: Provided,
however, That no other crime was committed by the person arrested.
Prision mayor in its minimum period ranges from six years and one day to
eight years. Hence, the penalty imposed by the RTC as affirmed by the
CA is proper.
 39
WHEREFORE, the petition is DENIED. The assailed Decision of the
Court of Appeals in CA-G.R. CR No. 21805 affirming the January 23,
1998 Decision of the Regional Trial Court of Pasay City, Branch 109
dated January 23, 1998, convicting petitioner Teofilo Evangelista of
violation of Section 1 of Presidential Decree No. 1866, as amended, and
sentencing him to suffer the penalty of imprisonment of six years and one
day to eight years and to pay a fine of ₱30,000.00 is AFFIRMED.
SO ORDERED.
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP.
SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, SR.,
Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It 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.2 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.3 Constitutional
doctrines must remain steadfast no matter what may be the tides of time.
It cannot be simply made to sway and accommodate the call of situations
and much more tailor itself to the whims and caprices of government and
the people who run it.4
For consideration before the Court are two consolidated cases5 both of
which essentially assail the validity and constitutionality of Executive
Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth
Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen
and taxpayer. Biraogo assails Executive Order No. 1 for being violative of
the legislative power of Congress under Section 1, Article VI of the
Constitution6 as it usurps the constitutional authority of the legislature to
create a public office and to appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for certiorari
and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano
Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-
legislators) as incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to
the historic May 2010 elections, when then Senator Benigno Simeon
Aquino III declared his staunch condemnation of graft and corruption with
his slogan, "Kung walang corrupt, walang mahirap." The Filipino people,
convinced of his sincerity and of his ability to carry out this noble
objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a
need for a special body to investigate reported cases of graft and
corruption allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010,
signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a public
trust and mandates that public officers and employees, who are servants
of the people, must at all times be accountable to the latter, serve them
with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of
this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the
political, economic, and social life of a nation; in a very special way it
inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming
levels, and undermined the people’s trust and confidence in the
Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from
committing the evil, restore the people’s faith and confidence in the
Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang mahirap"
expresses a solemn pledge that if elected, he would end corruption and
the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines,
gives the President the continuing authority to reorganize the Office of the
President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any,
during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members
who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is primarily tasked to conduct
a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and
higher, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption
which it will investigate;
b) Collect, receive, review and evaluate evidence related to or regarding
the cases of large scale corruption which it has chosen to investigate,
and to this end require any agency, official or employee of the Executive
Branch, including government-owned or controlled corporations, to
produce documents, books, records and other papers;
 40
c) Upon proper request or representation, obtain information and
documents from the Senate and the House of Representatives records of
investigations conducted by committees thereof relating to matters or
subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the
courts, including the Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to corruption cases
filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that
purpose, administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a
state witness to ensure that the ends of justice be fully served, that such
person who qualifies as a state witness under the Revised Rules of Court
of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the
appropriate prosecutorial authorities, by means of a special or interim
report and recommendation, all evidence on corruption of public officers
and employees and their private sector co-principals, accomplices or
accessories, if any, when in the course of its investigation the
Commission finds that there is reasonable ground to believe that they are
liable for graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such
as the Department of Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such assistance and cooperation
as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource persons, professionals and
other personnel determined by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems
necessary to effectively and efficiently carry out the objectives of this
Executive Order and to ensure the orderly conduct of its investigations,
proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary
in connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x
x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without lawful
excuse, fails to appear upon subpoena issued by the Commission or
who, appearing before the Commission refuses to take oath or
affirmation, give testimony or produce documents for inspection, when
required, shall be subject to administrative disciplinary action. Any private
person who does the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the
President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and perform
its duties and responsibilities as effectively, efficiently, and expeditiously
as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission.
– x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in
the judgment of the President there is a need to expand the mandate of
the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly by
way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is
declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth
Commission (PTC) is a mere ad hoc body formed under the Office of the
President with the primary task to investigate reports of graft and
corruption committed by third-level public officers and employees, their
co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations
to the President, Congress and the Ombudsman. Though it has been
described as an "independent collegial body," it is essentially an entity
within the Office of the President Proper and subject to his control.
Doubtless, it constitutes a public office, as an ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes
between contending parties. All it can do is gather, collect and assess
evidence of graft and corruption and make recommendations. It may
have subpoena powers but it has no power to cite people in contempt,
much less order their arrest. Although it is a fact-finding body, it cannot
determine from such facts if probable cause exists as to warrant the filing
of an information in our courts of law. Needless to state, it cannot impose
criminal, civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which
have been created as official, transitory and non-judicial fact-finding
bodies "to establish the facts and context of serious violations of human
rights or of international humanitarian law in a country’s past."9 They are
usually established by states emerging from periods of internal unrest,
civil strife or authoritarianism to serve as mechanisms for transitional
justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that finish
their work with the submission of a report containing conclusions and
recommendations; and (4) they are officially sanctioned, authorized or
empowered by the State.10 "Commission’s members are usually
empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn more
about past abuses, or formally acknowledge them. They may aim to
prepare the way for prosecutions and recommend institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a retributory
or vindicatory body set up to try and punish those responsible for crimes
against humanity. A form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal function of which
was to heal the wounds of past violence and to prevent future conflict by
providing a cathartic experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed more
emphasis on reconciliation than on judicial retribution, while the marching
order of the PTC is the identification and punishment of perpetrators. As
one writer12 puts it:
The order ruled out reconciliation. It translated the Draconian code
spelled out by Aquino in his inaugural speech: "To those who talk about
reconciliation, if they mean that they would like us to simply forget about
the wrongs that they have committed in the past, we have this to say:
There can be no reconciliation without justice. When we allow crimes to
go unpunished, we give consent to their occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to enjoin the
PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The
petitioners-legislators summarized them in the following manner:
 41
(a) E.O. No. 1 violates the separation of powers as it arrogates the power
of the Congress to create a public office and appropriate funds for its
operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative
Code of 1987 cannot legitimize E.O. No. 1 because the delegated
authority of the President to structurally reorganize the Office of the
President to achieve economy, simplicity and efficiency does not include
the power to create an entirely new public office which was hitherto
inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes
when it vested the "Truth Commission" with quasi-judicial powers
duplicating, if not superseding, those of the Office of the Ombudsman
created under the 1987 Constitution and the Department of Justice
created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets
for investigation and prosecution officials and personnel of the previous
administration as if corruption is their peculiar species even as it excludes
those of the other administrations, past and present, who may be
indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the
consistent and general international practice of four decades wherein
States constitute truth commissions to exclusively investigate human
rights violations, which customary practice forms part of the generally
accepted principles of international law which the Philippines is mandated
to adhere to pursuant to the Declaration of Principles enshrined in the
Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an
adventure in partisan hostility, a launching pad for trial/conviction by
publicity and a mere populist propaganda to mistakenly impress the
people that widespread poverty will altogether vanish if corruption is
eliminated without even addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally
challenged is of no moment because neither laches nor estoppel can bar
an eventual question on the constitutionality and validity of an executive
issuance or even a statute."13
In their Consolidated Comment,14 the respondents, through the Office of
the Solicitor General (OSG), essentially questioned the legal standing of
petitioners and defended the assailed executive order with the following
arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a
public office because the President’s executive power and power of
control necessarily include the inherent power to conduct investigations
to ensure that laws are faithfully executed and that, in any event, the
Constitution, Revised Administrative Code of 1987 (E.O. No. 292), 15
Presidential Decree (P.D.) No. 141616 (as amended by P.D. No. 1772),
R.A. No. 9970,17 and settled jurisprudence that authorize the President to
create or form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds
because there is no appropriation but a mere allocation of funds already
appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions
of the Office of the Ombudsman (Ombudsman) and the Department of
Justice (DOJ), because it is a fact-finding body and not a quasi-judicial
body and its functions do not duplicate, supplant or erode the latter’s
jurisdiction.
4] The Truth Commission does not violate the equal protection clause
because it was validly created for laudable purposes.
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to
justify the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE) by
President Carlos P. Garcia and Presidential Agency on Reform and
Government Operations (PARGO) by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the following
are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their
respective petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of
separation of powers by usurping the powers of Congress to create and
to appropriate funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the
Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection
clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (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.19
Among all these limitations, only the legal standing of the petitioners has
been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file
their petition for failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners have not shown that
they have sustained or are in danger of sustaining any personal injury
attributable to the creation of the PTC. Not claiming to be the subject of
the commission’s investigations, petitioners will not sustain injury in its
creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing of
the petitioners-legislators to assail Executive Order No. 1. Evidently, their
petition primarily invokes usurpation of the power of the Congress as a
body to which they belong as members. This certainly justifies their
resolve to take the cudgels for Congress as an institution and present the
complaints on the usurpation of their power and rights as members of the
legislature before the Court. As held in Philippine Constitution Association
v. Enriquez,21
To the extent the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in the
exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by
a member of Congress. In such a case, any member of Congress can
have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative,
powers and privileges vested by the Constitution in their office remain
inviolate. Thus, they are allowed to question the validity of any official
action which, to their mind, infringes on their prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no
standing to question the creation of the PTC and the budget for its
operations.23 It emphasizes that the funds to be used for the creation and
operation of the commission are to be taken from those funds already
appropriated by Congress. Thus, the allocation and disbursement of
funds for the commission will not entail congressional action but will
simply be an exercise of the President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere in
his petition is an assertion of a clear right that may justify his clamor for
the Court to exercise judicial power and to wield the axe over presidential
issuances in defense of the Constitution. The case of David v. Arroyo24
explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a
given question." In private suits, standing is governed by the "real-parties-
in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of
Civil Procedure, as amended. It provides that "every action must be
prosecuted or defended in the name of the real party in interest."
Accordingly, the "real-party-in interest" is "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit." Succinctly put, the plaintiff’s standing is based on his
own right to the relief sought.
 42
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or
"taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in
Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s suit
is in a different category from the plaintiff in a citizen’s suit. In the former,
the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v. Collins: "In matter of
mere public right, however…the people are the real parties…It is at least
the right, if not the duty, of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the
right of a citizen and a taxpayer to maintain an action in courts to restrain
the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent
"direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People
v. Vera, it held that the person who impugns the validity of a statute must
have "a personal and substantial interest in the case such that he
has sustained, or will sustain direct injury as a result." The Vera
doctrine was upheld in a litany of cases, such as, Custodio v. President of
the Senate, Manila Race Horse Trainers’ Association v. De la Fuente,
Pascual v. Secretary of Public Works and Anti-Chinese League of the
Philippines v. Felix. [Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or of
paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held
that in cases of paramount importance where serious constitutional
questions are involved, the standing requirements may be relaxed and a
suit may be allowed to prosper even where there is no direct injury to the
party claiming the right of judicial review. In the first Emergency Powers
Cases,27 ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders although they had only an
indirect and general interest shared in common with the public.
The OSG claims that the determinants of transcendental importance28
laid down in CREBA v. ERC and Meralco29 are non-existent in this case.
The Court, however, finds reason in Biraogo’s assertion that the petition
covers matters of transcendental importance to justify the exercise of
jurisdiction by the Court. There are constitutional issues in the petition
which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Where the issues are of
transcendental and paramount importance not only to the public but also
to the Bench and the Bar, they should be resolved for the guidance of all.
30 Undoubtedly, the Filipino people are more than interested to know the
status of the President’s first effort to bring about a promised change to
the country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes of the
public, but because the Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with overreaching
significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth
Commission is a public office and not merely an adjunct body of the
Office of the President.31 Thus, in order that the President may create a
public office he must be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner, such power
cannot be presumed32 since there is no provision in the Constitution or
any specific law that authorizes the President to create a truth
commission.33 He adds that Section 31 of the Administrative Code of
1987, granting the President the continuing authority to reorganize his
office, cannot serve as basis for the creation of a truth commission
considering the aforesaid provision merely uses verbs such as
"reorganize," "transfer," "consolidate," "merge," and "abolish."34 Insofar as
it vests in the President the plenary power to reorganize the Office of the
President to the extent of creating a public office, Section 31 is
inconsistent with the principle of separation of powers enshrined in the
Constitution and must be deemed repealed upon the effectivity thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and not
with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31 of the
Revised Administrative Code: 1) does not permit the President to create a
public office, much less a truth commission; 2) is limited to the
reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of the
Office of the President Proper, transfer of functions and transfer of
agencies; and 4) only to achieve simplicity, economy and efficiency.36
Such continuing authority of the President to reorganize his office is
limited, and by issuing Executive Order No. 1, the President overstepped
the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the
creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past presidents, it
argues that the authority of the President to create public offices within
the Office of the President Proper has long been recognized.37 According
to the OSG, the Executive, just like the other two branches of
government, possesses the inherent authority to create fact-finding
committees to assist it in the performance of its constitutionally mandated
functions and in the exercise of its administrative functions.38 This power,
as the OSG explains it, is but an adjunct of the plenary powers wielded
by the President under Section 1 and his power of control under Section
17, both of Article VII of the Constitution.39
It contends that the President is necessarily vested with the power to
conduct fact-finding investigations, pursuant to his duty to ensure that all
laws are enforced by public officials and employees of his department
and in the exercise of his authority to assume directly the functions of the
executive department, bureau and office, or interfere with the discretion of
his officials.40 The power of the President to investigate is not limited to
the exercise of his power of control over his subordinates in the executive
branch, but extends further in the exercise of his other powers, such as
his power to discipline subordinates,41 his power for rule making,
adjudication and licensing purposes42 and in order to be informed on
matters which he is entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it was
held that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally
granted power of control and by virtue of a valid delegation of the
legislative power to reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes
the power to create offices. For the OSG, the President may create the
PTC in order to, among others, put a closure to the reported large scale
graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation of the
PTC fall within the ambit of the power to reorganize as expressed in
Section 31 of the Revised Administrative Code? Section 31 contemplates
"reorganization" as limited by the following functional and structural lines:
(1) restructuring the internal organization of the Office of the President
Proper by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another; (2) transferring any
function under the Office of the President to any other Department/
Agency or vice versa; or (3) transferring any agency under the Office of
the President to any other Department/Agency or vice versa. Clearly, the
 43
provision refers to reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of functions. These
point to situations where a body or an office is already existent but a
modification or alteration thereof has to be effected. The creation of an
office is nowhere mentioned, much less envisioned in said provision.
Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the
plainest meaning attributable to the term "restructure"– an "alteration of
an existing structure." Evidently, the PTC was not part of the structure of
the Office of the President prior to the enactment of Executive Order No.
1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does not
have to end here. We must not lose sight of the very source of the power
– that which constitutes an express grant of power. Under Section 31,
Book III of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject to the policy in the
Executive Office and in order to achieve simplicity, economy and
efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose,
he may transfer the functions of other Departments or Agencies to the
Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)],
we ruled that reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions." It takes place when there is an alteration of the
existing structure of government offices or units therein, including the
lines of control, authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under the Office of
the President. Hence, it is subject to the President’s continuing authority
to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the
President’s power of control. Control is essentially the power to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former
with that of the latter.47 Clearly, the power of control is entirely different
from the power to create public offices. The former is inherent in the
Executive, while the latter finds basis from either a valid delegation from
Congress, or his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress,
empowering the President to create a public office?
According to the OSG, the power to create a truth commission pursuant
to the above provision finds statutory basis under P.D. 1416, as amended
by P.D. No. 1772.48 The said law granted the President the continuing
authority to reorganize the national government, including the power to
group, consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities, transfer
appropriations, and to standardize salaries and materials. This decree, in
relation to Section 20, Title I, Book III of E.O. 292 has been invoked in
several cases such as Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a justification
for the President to create a public office. Said decree is already stale,
anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative
structure of the national government including the power to create offices
and transfer appropriations pursuant to one of the purposes of the
decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government
will necessitate flexibility in the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and
resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First Congress,
as expressly provided in Section 6, Article XVIII of the 1987 Constitution.
In fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was
the last whereas clause of P.D. 1416 says "it was enacted to prepare the
transition from presidential to parliamentary. Now, in a parliamentary form
of government, the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued.
Now would you agree with me that P.D. 1416 should not be considered
effective anymore upon the promulgation, adoption, ratification of the
1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your
Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to
reorganize the entire National Government is deemed repealed, at least,
upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on the
basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the
PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully
executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the
three principal branches of government is a grant of all powers inherent in
them. The President’s power to conduct investigations to aid him in
ensuring the faithful execution of laws – in this case, fundamental laws on
public accountability and transparency – is inherent in the President’s
powers as the Chief Executive. That the authority of the President to
conduct investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not mean that
he is bereft of such authority.51 As explained in the landmark case of
Marcos v. Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential
system of government and restored the separation of legislative,
executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as
head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it.
Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision
of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated in the Constitution.
In other words, executive power is more than the sum of specific powers
so enumerated.
It has been advanced that whatever power inherent in the government
that is neither legislative nor judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are
faithfully executed. As stated above, the powers of the President are not
limited to those specific powers under the Constitution.53 One of the
recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees.
This flows from the obvious need to ascertain facts and determine if laws
have been faithfully executed. Thus, in Department of Health v.
Camposano,54 the authority of the President to issue Administrative Order
No. 298, creating an investigative committee to look into the
administrative charges filed against the employees of the Department of
Health for the anomalous purchase of medicines was upheld. In said
case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally granted full
control of the Executive Department, to which respondents belong, the
President has the obligation to ensure that all executive officials and
employees faithfully comply with the law. With AO 298 as mandate, the
legality of the investigation is sustained. Such validity is not affected by
the fact that the investigating team and the PCAGC had the same
composition, or that the former used the offices and facilities of the latter
in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating
bodies to exist is to allow an inquiry into matters which the President is
entitled to know so that he can be properly advised and guided in the
 44
performance of his duties relative to the execution and enforcement of
the laws of the land. And if history is to be revisited, this was also the
objective of the investigative bodies created in the past like the PCAC,
PCAPE, PARGO, the Feliciano Commission, the Melo Commission and
the Zenarosa Commission. There being no changes in the government
structure, the Court is not inclined to declare such executive power as
non-existent just because the direction of the political winds have
changed.
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office, suffice
it to say that there will be no appropriation but only an allotment or
allocations of existing funds already appropriated. Accordingly, there is no
usurpation on the part of the Executive of the power of Congress to
appropriate funds. Further, there is no need to specify the amount to be
earmarked for the operation of the commission because, in the words of
the Solicitor General, "whatever funds the Congress has provided for the
Office of the President will be the very source of the funds for the
commission."55 Moreover, since the amount that would be allocated to the
PTC shall be subject to existing auditing rules and regulations, there is no
impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are
faithfully executed is well recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section 17 thereof.56 As the
Chief Executive, the president represents the government as a whole and
sees to it that all laws are enforced by the officials and employees of his
department. He has the authority to directly assume the functions of the
executive department.57
Invoking this authority, the President constituted the PTC to primarily
investigate reports of graft and corruption and to recommend the
appropriate action. As previously stated, no quasi-judicial powers have
been vested in the said body as it cannot adjudicate rights of persons
who come before it. It has been said that "Quasi-judicial powers involve
the power to hear and determine questions of fact to which the legislative
policy is to apply and to decide in accordance with the standards laid
down by law itself in enforcing and administering the same law."58 In
simpler terms, judicial discretion is involved in the exercise of these
quasi-judicial power, such that it is exclusively vested in the judiciary and
must be clearly authorized by the legislature in the case of administrative
agencies.
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cariño v. Commission on
Human Rights.59 Thus:
"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 to subject to an official probe x x: to conduct
an official inquiry." The purpose of 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 an inquiry,
judicial or otherwise, for the discovery and collection of facts concerning a
certain matter or matters."
"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 the parties to
a court case) on the merits of issues raised: x x to pass judgment on:
settle judicially: 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 to award or
grant judicially in a case of controversy 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. Implies a judicial
determination of a fact, and the entry of a judgment." [Italics included.
Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office. The
function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function. To be considered as such, the act of
receiving evidence and arriving at factual conclusions in a controversy
must be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of
review as may be provided by law.60 Even respondents themselves admit
that the commission is bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to
prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation."62 The actual prosecution of
suspected offenders, much less adjudication on the merits of the charges
against them,63 is certainly not a function given to the commission. The
phrase, "when in the course of its investigation," under Section 2(g),
highlights this fact and gives credence to a contrary interpretation from
that of the petitioners. The function of determining probable cause for the
filing of the appropriate complaints before the courts remains to be with
the DOJ and the Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770
is not exclusive but is shared with other similarly authorized government
agencies. Thus, in the case of Ombudsman v. Galicia,65 it was written:
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 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. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of R.A.
No. 6770, which states:
(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 its primary jurisdiction, it may take
over, at any stage, from any investigatory agency of government, the
investigation of such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is categorically out
of the PTC’s sphere of functions. Its power to investigate is limited to
obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement of
the laws of the land. In this regard, the PTC commits no act of usurpation
of the Ombudsman’s primordial duties.
The same holds true with respect to the DOJ. Its authority under Section
3 (2), Chapter 1, Title III, Book IV in the Revised Administrative Code is
by no means exclusive and, thus, can be shared with a body likewise
tasked to investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the
findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and
the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the DOJ
have a wider degree of latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not deprived of their
mandated duties but will instead be aided by the reports of the PTC for
possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
 45
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in upholding
the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1,
Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection
of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this
constitutional safeguard. They contend that it does not apply equally to all
members of the same class such that the intent of singling out the
"previous administration" as its sole object makes the PTC an "adventure
in partisan hostility."66 Thus, in order to be accorded with validity, the
commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the reported cases
of graft and corruption must encompass acts committed not only during
the administration of former President Arroyo but also during prior
administrations where the "same magnitude of controversies and
anomalies"68 were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it
does not fall under the recognized exceptions because first, "there is no
substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who
abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to
end corruption."69 In order to attain constitutional permission, the
petitioners advocate that the commission should deal with "graft and
grafters prior and subsequent to the Arroyo administration with the strong
arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the said administration.71
Assuming arguendo that the commission would confine its proceedings to
officials of the previous administration, the petitioners argue that no
offense is committed against the equal protection clause for "the
segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification
based on substantial distinctions and is germane to the evils which the
Executive Order seeks to correct."72 To distinguish the Arroyo
administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale
graft and corruption in the previous administration which have eroded
public confidence in public institutions. There is, therefore, an urgent call
for the determination of the truth regarding certain reports of large scale
graft and corruption in the government and to put a closure to them by
the filing of the appropriate cases against those involved, if warranted,
and to deter others from committing the evil, restore the people’s faith
and confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of
fact-finding is warranted by the reality that unlike with administrations long
gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate
class for investigation lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to recovery of public monies
illegally dissipated, the policy lessons to be learned to ensure that anti-
corruption laws are faithfully executed, are more easily established in the
regime that immediately precede the current administration.
Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due diligence and
good housekeeping by a nascent administration like the Presidential
Commission on Good Government (PCGG), created by the late President
Corazon C. Aquino under Executive Order No. 1 to pursue the recovery
of ill-gotten wealth of her predecessor former President Ferdinand
Marcos and his cronies, and the Saguisag Commission created by former
President Joseph Estrada under Administrative Order No, 53, to form an
ad-hoc and independent citizens’ committee to investigate all the facts
and circumstances surrounding "Philippine Centennial projects" of his
predecessor, former President Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that
of the equality of right which is embodied in Section 1, Article III of the
1987 Constitution. The equal protection of the laws is embraced in the
concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate
clause, however, to provide for a more specific guaranty against any form
of undue favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due process clause. But if
the particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.74
"According to a long line of decisions, equal protection simply requires
that all persons or things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed."75 It "requires public
bodies and institutions to treat similarly situated individuals in a similar
manner."76 "The purpose of the equal protection clause is to secure every
person within a state’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by
its improper execution through the state’s duly constituted authorities."77
"In other words, the concept of equal justice under the law requires the
state to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate
governmental objective."78
The equal protection clause is aimed at all official state actions, not just
those of the legislature.79 Its inhibitions cover all the departments of the
government including the political and executive departments, and extend
to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed,
the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has
four requisites: (1) The classification rests on substantial distinctions; (2)
It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial
differences do not make for a valid classification."82
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class.83 "The
classification will be regarded as invalid if all the members of the class
are not similarly treated, both as to rights conferred and obligations
imposed. It is not necessary that the classification be made with absolute
symmetry, in the sense that the members of the class should possess the
same characteristics in equal degree. Substantial similarity will suffice;
and as long as this is achieved, all those covered by the classification are
to be treated equally. The mere fact that an individual belonging to a class
differs from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of the
law to him."84
The classification must not be based on existing circumstances only, or
so constituted as to preclude addition to the number included in the class.
It must be of such a nature as to embrace all those who may thereafter
be in similar circumstances and conditions. It must not leave out or
"underinclude" those that should otherwise fall into a certain
classification. As elucidated in Victoriano v. Elizalde Rope Workers'
Union85 and reiterated in a long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of equality
in the application of the laws upon all citizens of the state. It is not,
therefore, a requirement, in order to avoid the constitutional prohibition
against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees equality,
not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The
equal protection clause does not forbid discrimination as to things that
 46
are different. It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that
of inequality, so that it goes without saying that the mere fact of inequality
in no manner determines the matter of constitutionality. All that is required
of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the
standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary.
[Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be
struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and find out
the truth "concerning the reported cases of graft and corruption during the
previous administration"87 only. The intent to single out the previous
administration is plain, patent and manifest. Mention of it has been made
in at least three portions of the questioned executive order. Specifically,
these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-
principals, accomplices and accessories from the private sector, if any,
during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987, is primarily tasked to conduct
a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and
higher, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is
but just a member of a class, that is, a class of past administrations. It is
not a class of its own. Not to include past administrations similarly
situated constitutes arbitrariness which the equal protection clause
cannot sanction. Such discriminating differentiation clearly reverberates
to label the commission as a vehicle for vindictiveness and selective
retribution.
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the
"previous administration" only. The reports of widespread corruption in
the Arroyo administration cannot be taken as basis for distinguishing said
administration from earlier administrations which were also blemished by
similar widespread reports of impropriety. They are not inherent in, and
do not inure solely to, the Arroyo administration. As Justice Isagani Cruz
put it, "Superficial differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1 chooses
to limit the scope of the intended investigation to the previous
administration only. The OSG ventures to opine that "to include other past
administrations, at this point, may unnecessarily overburden the
commission and lead it to lose its effectiveness."89 The reason given is
specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it
breeds."90
The probability that there would be difficulty in unearthing evidence or
that the earlier reports involving the earlier administrations were already
inquired into is beside the point. Obviously, deceased presidents and
cases which have already prescribed can no longer be the subjects of
inquiry by the PTC. Neither is the PTC expected to conduct simultaneous
investigations of previous administrations, given the body’s limited time
and resources. "The law does not require the impossible" (Lex non cogit
ad impossibilia).91
Given the foregoing physical and legal impossibility, the Court logically
recognizes the unfeasibility of investigating almost a century’s worth of
graft cases. However, the fact remains that Executive Order No. 1 suffers
from arbitrary classification. The PTC, to be true to its mandate of
searching for the truth, must not exclude the other past administrations.
The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should
not be arbitrary lest it be struck down for being unconstitutional. In the
often quoted language of Yick Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance, yet,
if applied and administered by public authority with an evil eye and an
unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the constitution.
[Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its
scope is limited. The Court, however, is of the considered view that
although its focus is restricted, the constitutional guarantee of equal
protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private
rights determined and all public authority administered.93 Laws that do not
conform to the Constitution should be stricken down for being
unconstitutional.94 While the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of "substantial
distinctions" would only confirm the petitioners’ lament that the subject
executive order is only an "adventure in partisan hostility." In the case of
US v. Cyprian,95 it was written: "A rather limited number of such
classifications have routinely been held or assumed to be arbitrary; those
include: race, national origin, gender, political activity or membership in a
political party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally
belong to the class.96 "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the
number included within a class, but must be of such a nature as to
embrace all those who may thereafter be in similar circumstances and
conditions. Furthermore, all who are in situations and circumstances
which are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be brought
under the influence of the law and treated by it in the same way as are
the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to the
validity of a law under the equal protection clause."98 "Legislation is not
unconstitutional merely because it is not all-embracing and does not
include all the evils within its reach."99 It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational
predicate simply because it happens to be incomplete.100 In several
instances, the under inclusiveness was not considered a valid reason to
strike down a law or regulation where the purpose can be attained in
future legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature does not
run the risk of losing the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional as
can be gleaned from the fact that it was underscored at least three times
 47
in the assailed executive order. It must be noted that Executive Order No. act of government is done in consonance with the authorities and rights
1 does not even mention any particular act, event or report to be focused allocated to it by the Constitution. And, if after said review, the Court finds
on unlike the investigative commissions created in the past. "The equal no constitutional violations of any sort, then, it has no more authority of
protection clause is violated by purposeful and intentional proscribing the actions under review. Otherwise, the Court will not be
discrimination."103 deterred to pronounce said act as void and unconstitutional.
To disprove petitioners’ contention that there is deliberate discrimination, It cannot be denied that most government actions are inspired with noble
the OSG clarifies that the commission does not only confine itself to intentions, all geared towards the betterment of the nation and its people.
cases of large scale graft and corruption committed during the previous But then again, it is important to remember this ethical principle: "The end
administration.104 The OSG points to Section 17 of Executive Order No. does not justify the means." No matter how noble and worthy of
1, which provides: admiration the purpose of an act, but if the means to be employed in
SECTION 17. Special Provision Concerning Mandate. If and when in the accomplishing it is simply irreconcilable with constitutional parameters,
judgment of the President there is a need to expand the mandate of the then it cannot still be allowed.108 The Court cannot just turn a blind eye
Commission as defined in Section 1 hereof to include the investigation of and simply let it pass. It will continue to uphold the Constitution and its
cases and instances of graft and corruption during the prior enshrined principles.
administrations, such mandate may be so extended accordingly by way "The Constitution must ever remain supreme. All must bow to the
of a supplemental Executive Order. mandate of this law. Expediency must not be allowed to sap its strength
The Court is not convinced. Although Section 17 allows the President the nor greed for power debase its rectitude."109
discretion to expand the scope of investigations of the PTC so as to Lest it be misunderstood, this is not the death knell for a truth commission
include the acts of graft and corruption committed in other past as nobly envisioned by the present administration. Perhaps a revision of
administrations, it does not guarantee that they would be covered in the the executive issuance so as to include the earlier past administrations
future. Such expanded mandate of the commission will still depend on would allow it to pass the test of reasonableness and not be an affront to
the whim and caprice of the President. If he would decide not to include the Constitution. Of all the branches of the government, it is the judiciary
them, the section would then be meaningless. This will only fortify the which is the most interested in knowing the truth and so it will not allow
fears of the petitioners that the Executive Order No. 1 was "crafted to itself to be a hindrance or obstacle to its attainment. It must, however, be
tailor-fit the prosecution of officials and personalities of the Arroyo emphasized that the search for the truth must be within constitutional
administration."105 bounds for "ours is still a government of laws and not of men."110
The Court tried to seek guidance from the pronouncement in the case of WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is
Virata v. Sandiganbayan,106 that the "PCGG Charter (composed of hereby declared UNCONSTITUTIONAL insofar as it is violative of the
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection equal protection clause of the Constitution.
clause." The decision, however, was devoid of any discussion on how As also prayed for, the respondents are hereby ordered to cease and
such conclusory statement was arrived at, the principal issue in said case desist from carrying out the provisions of Executive Order No. 1.
being only the sufficiency of a cause of action. SO ORDERED.
A final word
The issue that seems to take center stage at present is - whether or not
the Supreme Court, in the exercise of its constitutionally mandated power
of Judicial Review with respect to recent initiatives of the legislature and
the executive department, is exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of the Constitution, itself
guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court,
but it seems that the present political situation calls for it to once again
explain the legal basis of its action lest it continually be accused of being
a hindrance to the nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the
1987 Constitution, is vested with Judicial Power that "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 of abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial
review which is the power to declare a treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation unconstitutional. This power also includes the
duty to rule on the constitutionality of the application, or operation of
presidential decrees, proclamations, orders, instructions, ordinances, and
other regulations. These provisions, however, have been fertile grounds
of conflict between the Supreme Court, on one hand, and the two co-
equal bodies of government, on the other. Many times the Court has
been accused of asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good
source of enlightenment, to wit: "And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not imposing
its own will upon a co-equal body but rather simply making sure that any