Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC,

CARLITO T. CRUZ and MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for
petitioners.

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227,1 otherwise known as the "Bases Conversion
and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City
was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority
(SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and
temporary restraining order "to prevent useless and unnecessary expenditures of public funds by
way of salaries and other operational expenses attached to the office . . . ."2 Paragraph (d) reads —

(d) Chairman administrator — The President shall appoint a professional manager as

administrator of the Subic Authority with a compensation to be determined by the
Board subject to the approval of the Secretary of Budget, who shall be the ex
oficio chairman of the Board and who shall serve as the chief executive officer of the
Subic Authority: Provided, however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and
officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on
the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in
any capacity to any public officer or position during his tenure,"3 because the City Mayor of Olongapo
City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the
Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint",4since it was Congress through the questioned proviso and not the
President who appointed the Mayor to the subject posts;5 and, (c) Sec. 261, par. (g), of the Omnibus
Election Code, which says:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . .
(g) Appointment of new employees, creation of new position, promotion, or giving
 salary increases. — During the period of forty-five days before a regular election and
thirty days before a special election, (1) any head, official or appointing officer of a
government office, agency or instrumentality, whether national or local, including
government-owned or controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or creates and fills any new
position, except upon prior authority of the Commission. The Commission shall not
grant the authority sought unless it is satisfied that the position to be filled is essential
to the proper functioning of the office or agency concerned, and that the position
shall not be filled in a manner that may influence the election. As an exception to the
foregoing provisions, a new employee may be appointed in case of urgent
need: Provided, however, That notice of the appointment shall be given to the
Commission within three days from the date of the appointment. Any appointment or
hiring in violation of this provision shall be null and void. (2) Any government official
who promotes, or gives any increase of salary or remuneration or privilege to any
government official or employee, including those in government-owned or controlled
corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May
1992 Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states,
"Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor
of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic
Authority," violates the constitutional proscription against appointment or designation of elective
officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to

any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person,
so that a public officer or employee may serve full-time with dedication and thus be efficient in the
delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public
officer or employee, like the head of an executive department described in Civil Liberties Union v.
Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C.
Juico, as Secretary of Agrarian Reform, G.R. No. 83815,6 ". . . . should be allowed to attend to his
duties and responsibilities without the distraction of other governmental duties or employment. He
should be precluded from dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation
where a local elective official will work for his appointment in an executive position in government,
and thus neglect his constituents . . . ."7
In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it
needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art.
IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most
beneficial to the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local
elective official to another post if so allowed by law or by the primary functions of his office.8 But, the
contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13,
par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land.
Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section
sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a
practice otherwise unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or
by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2)
paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary functions of his position, the first
paragraph appears to be more stringent by not providing any exception to the rule against
appointment or designation of an elective official to the government post, except as are particularly
recognized in the Constitution itself, e.g., the President as head of the economic and planning
agency;9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of
Congress who may be designated ex officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental
when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as
shown in their deliberation, thus —

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding
Officer, is that the prohibition is more strict with respect to elective officials, because
in the case of appointive officials, there may be a law that will allow them to hold
other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive
officials, there will be certain situations where the law should allow them to hold
some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph
cannot be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo
City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where
we stated that the prohibition against the holding of any other office or employment by the President,
Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure,
as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and
functions required by the primary functions of the officials concerned, who are to perform them in an
ex officio capacity as provided by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the
subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo
City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent
to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City.
Had it been the legislative intent to make the subject positions ex officio, Congress would have, at
least, avoided the word "appointed" and, instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene
Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy
resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec.
7, first par., had they considered the SBMA posts as ex officio.

Cognizant of the complication that may arise from the way the subject proviso was stated, Senator
Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the
Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator took a view
that the constitutional proscription against appointment of elective officials may have been
sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing
the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it
suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the
argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents
cannot be applied to uphold the constitutionality of the challenged proviso since it is not put in issue
in the present case. In the same vein, the argument that if no elective official may be appointed or
designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double
compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of
the subject proviso. In any case, the Vice-President for example, an elective official who may be
appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the
cabinet position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President.
Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and
the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint
the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons

having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or
designation of a person, by the person or persons having authority therefor, to fill an office or public
function and discharge the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the
authority vested with the power, of an individual who is to exercise the functions of a given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the
essence of his appointment," 21and Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod ng
Maynila v. Intermediate Appellate Court 23 we held:

The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the necessary qualifications and
eligibilities. It is a prerogative of the appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the
appointee. In other words, the choice of the appointee is a fundamental component of the appointing
power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress)
cannot at the same time limit the choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment necessarily carries the discretion of
whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may
not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to
pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met
by one individual, such enactment effectively eliminates the discretion of the appointing power to
choose and constitutes an irregular restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee
for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one
can qualify for the posts in question, the President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of appointment, sans the essential element of
choice, is no power at all and goes against the very nature itself of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the first
year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or
during his incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for appointment. The
deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word
"term" with TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to
resign from his position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say,
incapacity, he may leave the service, but if he is prohibited from being appointed
within the term for which he was elected, we may be depriving the government of the
needed expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment

to another public office.
Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office
nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or designation thereto cannot be
valid in view of his disqualification or lack of eligibility. This provision should not be confused with
Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives
may hold any other office or employment in the Government . . . during his term without forfeiting his
seat . . . ." The difference between the two provisions is significant in the sense that incumbent
national legislators lose their elective posts only after they have been appointed to another
government office, while other incumbent elective officials must first resign their posts before they
can be appointed, thus running the risk of losing the elective post as well as not being appointed to
the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . .
The effect is quite different where it is expressly provided by law that a person holding one office
shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from
accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d
258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or
voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or
statutes declare that persons holding one office shall be ineligible for election or appointment to
another office, either generally or of a certain kind, the prohibition has been held to incapacitate the
incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. —
State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be
considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon
principles of policy and justice, will hold valid so far as they involve the interest of the public and third
persons, where the duties of the office were exercised . . . . under color of a known election or
appointment, void because the officer was not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election,
or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be
such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213;
Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other
emoluments which may have been received by respondent Gordon pursuant to his appointment may
be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the
legality of the questioned proviso as well as the appointment of said respondent made pursuant
thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he
expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated —

. . . . (much) as we would like to have the present Mayor of Olongapo City as the
Chief Executive of this Authority that we are creating; (much) as I, myself, would like
to because I know the capacity, integrity, industry and dedication of Mayor Gordon;
(much) as we would like to give him this terrific, burdensome and heavy
 responsibility, we cannot do it because of the constitutional prohibition which is very
clear. It says: "No elective official shall be appointed or designated to another
position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms
or a rock in the ocean amidst the raging of the waves." 30 One of the characteristics of the
Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by
legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the
people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to
suit political expediency, personal ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however,
That for the first year of its operations from the effectivity of this Act, the Mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is
declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo
City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any,
as such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise
legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby
UPHELD.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo
and Quiason, JJ., concur.

Padilla, J., is on leave.

# Footnotes

1 An Act Accelerating the Conversion of Military Reservations into Other Productive

Uses, Creating the Bases Conversion and Development Authority for this Purpose,
Providing Funds Therefor and for Other Purposes," approved 13 March 1992, to take
effect upon its publication in a newspaper of general circulation.

2 See "Action to Declare Unconstitutional Provisions of R.A. 7227 with Prohibition

and Application for a Writ of Preliminary Injunction," dated 7 April 1992, p. 6; Rollo p.
7.

3 Sec. 7, Art. IX-B, provides: "No elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure.

"Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries."
4 Sec. 16, Art. VII, provides: "The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments are
not vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or in
the heads of departments, agencies, commission, or boards.

"The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress."

5 Petitioners allege that the proviso constitutes a "limitation to the power of

appointment of the President and therefore violates the separation of powers" and
that "Congress cannot create the position and at the same time specify the person to
fill up such position" (Petition, pp. 4-5; Rollo, pp. 5-6).

6 G.R. Nos. 83896 and 83815 were consolidated and decided jointly on 22 February
1991, 194 SCRA 317, 339.

7 Record of the Constitutional Commission, Vol. 1, p. 546.

8 Sec. 94. Appointment of Elective and Appointive Local Officials; Candidates Who
Lost in an Election. — (a) No elective or appointive local official shall be eligible for
appointment or designation in any capacity to any public office or position during his
tenure.

"Unless otherwise allowed by law or by the primary functions of his position, no

elective or appointive local official shall hold any other office or employment in the
government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.

"(b) Except for losing candidates in barangay elections, no candidate who lost in any
election shall, within one (1) year after such election, be appointed to any office in the
government or any government-owned or controlled corporations or in any of their
subsidiaries."

9 Sec. 9, Art. XII, of the Constitution.

10 Sec. 3, second par., Art. VII, of the Constitution.

11 Sec. 8, par. (1), Art. VIII, of the Constitution. This particular provision was
approved in anticipation of a unicameral legislature. However, as it turn out, we
adopted instead a bicameral form of government so that the seat allocated to the
representative of Congress has to be split between a member of the Senate and a
member of the House of Representative. Each being entitled to one-half vote in the
deliberations in the Judicial and Bar Council.
12 Record of the Constitutional Commission, Vol. 5, p. 156.

Section 4 of the Proposed Resolution No. 468, the precursor of the first paragraph of
Sec. 7, read: "Unless otherwise provided by law, no elective official shall be eligible
for appointment or designation in a temporary or acting capacity to any public office
or position during his term" (Record of the Constitutional Commission, Vol. 1, p. 524).

The following were reactions on the floor:

FR. BERNAS. On page 3, Section 4, line 5, the provision begins with the phrase
"Unless otherwiseprovided by law" which does not exist in the 1973 Constitution.
This was inserted in a 1981 amendment. We know the reason why this was put here.
It practically renders the provision useless because the whole matter becomes
discretionary with the legislature. It is one of those instance in the 1973 Constitution,
as amended and constantly reamended, where they threw in the phrase "Unless
otherwise provided by law" precisely to give the President a free hand in his decree-
making power.

xxx xxx xxx

MR. FOZ. As presently worded now, the provision would allow the legislature to
really provide otherwise, meaning, to allow an elective official to be appointed to an
executive office. (Ibid., Vol. 1, p. 539.)

xxx xxx xxx

MR. COLAYCO . . . . The way I understand this is that we are giving the legislature
the power to authorize the appointment or designation in a temporary or acting
capacity of an elective official to any public office or position during his term, Am I
right?

MR. FOZ. If a law is passed regarding this matter, then such law may reverse this
provision as worded, but we have said earlier that we will entertain suggestions from
the floor.

MR. COLAYCO. Personally, I find the policy established in this provision meritorious.
To make it a firm policy, I suggest that we delete the prefatory phrase "Unless
otherwise provided by law.

MR. FOZ. We agree with the Commissioner (Ibid., Vol. 1, p. 549).

As revised, known later as Sec. 4 of Resolution No. 10, and approved on third
reading, the subject section read: "No elective official shall be eligible for
appointment or designation in any capacity to any public office or position during his
tenure" (Ibid., Vol. II, p. 788).

13 Supra, p. 335.

14 . . . . When, in the exigencies of government, it is necessary to create and define

new duties, the legislative department has the discretion to determine whether
additional offices shall be created, or these duties shall be attached to and
become ex officio duties of existing offices. The power extends to the consolidation
of offices resulting in abolishing one and attaching its powers and duties to the other.
It matters not that the name commission or board is given to the body created . . . ."
(Tayloe v. Davis, 212 Ala 282, 102 So. 433, 40 ALR 1052, 1057).

15 Transcripts of Session Proceedings, Senate, 6 February 1992, p. 57.

16 Sec. 8, Art. IX-B, provides: "No elective or appointive public officer or employee
shall receive additional, double, or indirect compensation, unless specifically
authorized by law, nor accept without the consent of the Congress, any present,
emolument, office, or title of any kind from any foreign government.

"Pensions or gratuities shall not be considered as additional, double, or indirect

compensation."

17 Black's Law Dictionary, 4th ed., p. 128 citing In re Nicholson's Estate, 104 Colo,
561, 93 P. 2d 880, 884.

18 Ibid., citing State v. Braman, 173 Wis. 596, 181 N.W. 729, 730.

19 1987 ed., p. 180.

20 Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers (1890), p.
48, citing In Johnston v. Wilson, 2 N.H. 205, 9 Am. Dec. 50.

21 Mechem, ibid., citing Marbury v. Madison, I Cranch (U.S.) 137; Craig v. Norfolk, I
Mod. 122.

22 Concepcion v. Paredes, No. 17539, 23 December 1921; 42 Phil. 599, 603, citing
Keim vs. U.S. (1900), 177 U.S., 290.

23 G.R. No. 65439, 13 November 1985; 140 SCRA 22, 35.

24 While it is inarguable that Congress has plenary authority to prescribe

qualifications to a public office, it "may not however prescribe qualifications such that
the President is entirely stripped of discretion, thus converting appointment to a mere
ministerial act" (Gonzales, Neptali A., Administrative Law, Law on Public Officers and
Election Law, 1966 ed., p. 173, citing Manalang v. Quitoriano, No. L-6898, 30 April
1954; 94 Phil. 903).
 FIRST DIVISION

[G.R. No. 145368. April 12, 2002]

SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in

his capacity as Ombudsman, respondent.

DECISION
KAPUNAN, J.:

On June 13, 1991, President Corazon C. Aquino issued Administrative Order No.
223 constituting a Committee for the preparation of the National Centennial Celebration
in 1998. The Committee was mandated to take charge of the nationwide preparations
for the National Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress. [1]
Subsequently, President Fidel V. Ramos issued Executive Order No. 128,
reconstituting the Committee for the preparation of the National Centennial Celebrations
in 1998. It renamed the Committee as the National Centennial Commission. Appointed
to chair the reconstituted Commission was Vice-President Salvador H.
Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were named
Honorary Chairpersons.[2]
Characterized as an ad-hoc body, the existence of the Commission shall terminate
upon the completion of all activities related to the Centennial Celebrations. [3] Like its
predecessor Committee, the Commission was tasked to take charge of the nationwide
preparations for the National Celebration of the Philippine Centennial of the Declaration
of Philippine Independence and the Inauguration of the Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged with the
responsibility to prepare, for approval of the President, a Comprehensive Plan for the
Centennial Celebrations within six (6) months from the effectivity of the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:

Sec. 3. The Commission shall be provided with technical and administrative staff
support by a Secretariat to be composed of, among others, detailed personnel from the
Presidential Management Staff, the National Commission for Culture and the Arts,
and the National Historical Institute. Said Secretariat shall be headed by a full time
Executive Director who shall be designated by the President.

Sec. 4. The Commission shall be funded with an initial budget to be drawn from the
Department of Tourism and the presidents Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President.Appropriations for
succeeding years shall be incorporated in the budget of the Office of the President.

Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation

(Expocorp) was created.[4] Petitioner was among the nine (9) Expocorp incorporators,
who were also its first nine (9) directors.Petitioner was elected Expocorp Chief
Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech
in the Senate denouncing alleged anomalies in the construction and operation of the
Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of
Senator Franklin Drilon, Senator Cosetengs privilege speech was referred to the
Committee on Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No.
35, creating an ad hoc and independent citizens committee to investigate all the facts
and circumstances surrounding the Philippine centennial projects, including its
component activities. Former Senator Rene A.V. Saguisag was appointed to chair the
Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of
the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the
Committees recommendations was the prosecution by the Ombudsman/DOJ of Dr.
Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to AK (Asia Construction &
Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to
Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating in the
scheme to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation of the anti-graft law.[5]
Later, on November 5, 1999, the Saguisag Committee issued its own report. It
recommended the further investigation by the Ombudsman, and indictment, in proper
cases of, among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of
R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of
the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the Office of the
Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report,
recommending:
1. that a formal complaint be filed and preliminary investigation be conducted before
the Evaluation and Preliminary Investigation Bureau (EPIB), Office of the
Ombudsman against former NCC and EXPOCORP chair Salvador H. Laurel, former
EXPOCORP President Teodoro Q. Pea and AK President Edgardo H. Angeles for
violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation to PD 1594
and COA Rules and Regulations;
 2. That the Fact Finding and Intelligence Bureau of this Office, act as the nominal
complainant.[6]
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation
and Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit
and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to
Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to
dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order
but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued
a resolution finding probable cause to indict respondents SALVADOR H. LAUREL and
TEODORO Q. PEA before the Sandiganbayan for conspiring to violate Section 3(e) of
Republic Act No. 3019, in relation to Republic Act No. 1594. The resolution also
directed that an information for violation of the said law be filed against Laurel and
Pea. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel but
dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary restraining
order, commanding respondents to desist from filing any information before the
Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of the
Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in
oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a
public officer because:
A.

EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL

WHICH UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION
WITH WHICH VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT
PRACTICES WERE ALLEGEDLY COMMITTED, WAS A PRIVATE
CORPORATION, NOT A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION.

B.

THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A

PUBLIC OFFICE.
 C.

PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP

WAS NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT &
CORRUPT PRACTICES ACT.[7]

In addition, petitioner in his reply[8] invokes this Courts decision in Uy vs.

Sandiganbayan,[9] where it was held that the jurisdiction of the Ombudsman was limited
to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and
higher. As petitioners position was purportedly not classified as Grade 27 or higher, the
Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over
him.
This last contention is easily dismissed. In the Courts decision in Uy, we held that it
is the prosecutor, not the Ombudsman, who has the authority to file the corresponding
information/s against petitioner in the regional trial court. The Ombudsman exercises
prosecutorial powers only in cases cognizable by the Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:

The clear import of such pronouncement is to recognize the authority of the State and
regular provincial and city prosecutors under the Department of Justice to have
control over prosecution of cases falling within the jurisdiction of the regular
courts. The investigation and prosecutorial powers of the Ombudsman relate to cases
rightfully falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of
R.A. 6770 (An Act Providing for the Functional and Structural Organization of the
Office of the Ombudsman, and for other purposes) which vests upon the
Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan And
this is further buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the
Office of the Special Prosecutor shall have the power to conduct preliminary
investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan. Thus, repeated references to the Sandiganbayans jurisdiction clearly
serve to limit the Ombudsmans and Special Prosecutors authority to cases cognizable
by the Sandiganbayan. [Emphasis in the original.]

The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification
by the Ombudsman in the same case, the Court set aside the foregoing pronouncement
in its Resolution dated March 20, 2001. The Court explained the rationale for this
reversal:

The power to investigate and to prosecute granted by law to the Ombudsman is

plenary and unqualified. It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the clause
any illegal act or omission of any public official is broad enough to embrace any
crime committed by a public officer or employee.

The reference made by RA 6770 to cases cognizable by the Sandiganbayan,

particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute criminal cases within
the jurisdiction of the Sandiganbayan, should not be construed as confining the scope
of the investigatory and prosecutory power of the Ombudsman to such cases.

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases

cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman to take over, at any stage, from any investigatory agency
of the government, the investigation of such cases. The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of cases involving public officers
and employees by other courts. The exercise by the Ombudsman of his primary
jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the
discharge of his duty to investigate and prosecute other offenses committed by public
officers and employees. Indeed, it must be stressed that the powers granted by the
legislature to the Ombudsman are very broad and encompass all kinds of malfeasance,
misfeasance and non-feasance committed by public officers and employees during
their tenure of office.

Moreover, the jurisdiction of the Office of the Ombudsman should not be equated
with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The
Office of the Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and control and upon authority
of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is
limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly,
the lawmakers did not intend to confine the investigatory and prosecutory power of
the Ombudsman to these types of cases. The Ombudsman is mandated by law to act
on all complaints against officers and employees of the government and to enforce
their administrative, civil and criminal liability in every case where the evidence
warrants. To carry out this duty, the law allows him to utilize the personnel of his
office and/or designate any fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to assist in the investigation and
prosecution of certain cases. Those designated or deputized to assist him work under
his supervision and control.The law likewise allows him to direct the Special
Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance
with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one of the
most important functions of the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to make him a more active
and effective agent of the people in ensuring accountability in public office. A review
of the development of our Ombudsman law reveals this intent. [Emphasis in the
original.]

Having disposed of this contention, we proceed to the principal grounds upon which
petitioner relies. We first address the argument that petitioner, as Chair of the NCC, was
not a public officer.
The Constitution[10] describes the Ombudsman and his Deputies as protectors of the
people, who shall act promptly on complaints filed in any form or manner against public
officials or employees of the government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations. Among the awesome
powers, functions, and duties vested by the Constitution [11] upon the Office of the
Ombudsman is to [i]nvestigate any act or omission of any public official, employee,
office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
The foregoing constitutional provisions are substantially reproduced in R.A. No.
6770, otherwise known as the Ombudsman Act of 1989. Sections 13 and 15(1) of said
law respectively provide:

SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people
shall act promptly on complaints file in any form or manner against officers or
employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants
in order to promote efficient service by the Government to the people.

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases;

x x x.
The coverage of the law appears to be limited only by Section 16, in relation to
Section 13, supra:
SEC 16. Applicability. The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance and non-feasance that have been committed by any officer
or employee as mentioned in Section 13 hereof, during his tenure of office.

In sum, the Ombudsman has the power to investigate any malfeasance,

misfeasance and non-feasance by a public officer or employee of the government, or of
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations.[12]
Neither the Constitution nor the Ombudsman Act of 1989, however, defines who
public officers are. A definition of public officers cited in jurisprudence[13] is that provided
by Mechem, a recognized authority on the subject:

A public office is the right, authority and duty, created and conferred by law, by
which, for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign functions
of the government, to be exercised by him for the benefit of the public. The individual
so invested is a public officer.[14]

The characteristics of a public office, according to Mechem, include the delegation

of sovereign functions, its creation by law and not by contract, an oath, salary,
continuance of the position, scope of duties, and the designation of the position as an
office.[15]
Petitioner submits that some of these characteristics are not present in the position
of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he
purportedly did not receive any compensation; and (3) continuance, the tenure of the
NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign
functions of government as [t]he most important characteristic in determining whether a
position is a public office or not.

The most important characteristic which distinguishes an office from an employment

or contract is that the creation and conferring of an office involves a delegation to the
individual of some of the sovereign functions of government, to be exercised by him
for the benefit of the public; that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be exercised for the
public benefit. Unless the powers conferred are of this nature, the individual is not a
public officer.[16]

Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions that can be
described as legislative or judicial. May the functions of the NCC then be described as
executive?
 We hold that the NCC performs executive functions. The executive power is
generally defined as the power to enforce and administer the laws. It is the power of
carrying the laws into practical operation and enforcing their due observance. [17] The
executive function, therefore, concerns the implementation of the policies as set forth by
law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts,
Culture, and Sports) thereof:

Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nations historical and cultural heritage and
resources, as well as artistic creations.

In its preamble, A.O. No. 223 states the purposes for the creation of the Committee
for the National Centennial Celebrations in 1998:

Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and
the centennial presents an important vehicle for fostering nationhood and a strong
sense of Filipino identity;

Whereas, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;

Whereas, the success of the Centennial Celebrations may be insured only through
long-range planning and continuous developmental programming;

Whereas, the active participation of the private sector in all areas of special expertise
and capability, particularly in communication and information dissemination, is
necessary for long-range planning and continuous developmental programming;

Whereas, there is a need to create a body which shall initiate and undertake the
primary task of harnessing the multisectoral components from the business, cultural,
and business sectors to serve as effective instruments from the launching and
overseeing of this long-term project;

x x x.

E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations
in 1998, cited the need to strengthen the said Committee to ensure a more coordinated
and synchronized celebrations of the Philippine Centennial and wider participation from
the government and non-government or private organizations. It also referred to the
need to rationalize the relevance of historical links with other countries.
 The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was vested with the
following functions:
(a) To undertake the overall study, conceptualization, formulation and implementation
of programs and projects on the utilization of culture, arts, literature and media as
vehicles for history, economic endeavors, and reinvigorating the spirit of national
unity and sense of accomplishment in every Filipino in the context of the Centennial
Celebrations. In this regard, it shall include a Philippine National Exposition 98
within Metro Manila, the original eight provinces, and Clark Air Base as its major
venues;
(b) To act as principal coordinator for all the activities related to awareness and
celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination of all
information about the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the implementation of the
programs and projects;
(e) To prioritize the refurbishment of historical sites and structures nationwide. In this
regard, the Commission shall formulate schemes (e.g. lease-maintained-and-
transfer, build-operate-transfer, and similar arrangements) to ensure the
preservation and maintenance of the historical sites and structures;
(f) To call upon any government agency or instrumentality and corporation, and to
invite private individuals and organizations to assist it in the performance of its
tasks; and,
(g) Submit regular reports to the President on the plans, programs, projects, activities
as well as the status of the preparations for the Celebration.[18]
It bears noting the President, upon whom the executive power is vested,[19] created
the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance
Power), Section 2 describes the nature of executive orders:

SEC. 2. Executive Orders. Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Underscoring ours.]

Furthermore, the NCC was not without a role in the countrys economic
development, especially in Central Luzon. Petitioner himself admitted as much in the
oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, dont you agree that the
task of the centennial commission was also to focus on the long term over all socio
economic development of the zone and Central Luzon by attracting investors in
the area because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
 I am glad Your Honor touched on that because that is something I wanted to touch on
by lack of material time I could not but that is a very important point. When I was
made Chairman I wanted the Expo to be in Batangas because I am a Batangeo
but President Ramos said Mr. Vice President the Central Luzon is suffering,
suffering because of the eruption of Mt. Pinatubo let us try to catalize [sic]
economic recovery in that area by putting this Expo in Clark Field and so it was
done I agreed and Your Honor if I may also mention we wanted to generate
employment aside from attracting business investments and employment. And the
Estrada administration decided to junk this project there 48, 40 thousand people
who lost job, they were employed in Expo. And our target was to provide 75
thousand jobs. It would have really calibrated, accelerated the development of
Central Luzon. Now, I think they are going back to that because they had the
airport and there are plan to revive the Expo site into key park which was the
original plan.
There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy.[20]
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla[21] that the holding by
a municipality of a town fiesta is a proprietary rather than a governmental function.
Petitioner argues that the holding of a nationwide celebration which marked the nations
100th birthday may be likened to a national fiesta which involved only the exercise of the
national governments proprietary function.[22] In Torio, we held:

[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]
simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for
the special benefit of the community and not for the general welfare of the public
performed in pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide entertainment to the
town inhabitants is not a conclusive test. For instance, the maintenance of parks is not
a source of income for the town, nonetheless it is [a] private undertaking as
distinguished from the maintenance of public schools, jails, and the like which are for
public service.

As stated earlier, there can be no hard and fast rule for purposes of determining the
true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. The basic
element, however beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the state is involved in the
celebration of a town fiesta.

Torio, however, did not intend to lay down an all-encompassing doctrine. Note that
the Court cautioned that there can be no hard and fast rule for purposes of determining
the true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. Thus, in
footnote 15 of Torio, the Court, citing an American case, illustrated how the surrounding
circumstances plus the political, social, and cultural backgrounds could produce a
conclusion different from that in Torio:

We came across an interesting case which shows that surrounding circumstances plus
the political, social, and cultural backgrounds may have a decisive bearing on this
question. The case of Pope v. City of New Haven, et al. was an action to recover
damages for personal injuries caused during a Fourth of July fireworks display
resulting in the death of a bystander alleged to have been caused by defendants
negligence. The defendants demurred to the complaint invoking the defense that the
city was engaged in the performance of a public governmental duty from which it
received no pecuniary benefit and for negligence in the performance of which no
statutory liability is imposed. This demurrer was sustained by the Superior Court of
New Haven Country. Plaintiff sought to amend his complaint to allege that the
celebration was for the corporate advantage of the city. This was denied. In affirming
the order, the Supreme Court of Errors of Connecticut held inter alia:

Municipal corporations are exempt from liability for the negligent performance of
purely public governmental duties, unless made liable by statute.

A municipality corporation, which under permissive authority of its charter or of

statute, conducted a public Fourth of July celebration, including a display of
fireworks, and sent up a bomb intended to explode in the air, but which failed to
explode until it reached the ground, and then killed a spectator, was engaged in the
performance of a governmental duty. (99 A.R. 51)

This decision was concurred in by three Judges while two dissented.

At any rate the rationale of the Majority Opinion is evident from [this] excerpt:

July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a similar provision, the
different departments of the government recognize, and have recognized since the
government was established, July 4th as a national holiday. Throughout the country it
has been recognized and celebrated as such. These celebrations, calculated to entertain
and instruct the people generally and to arouse and stimulate patriotic sentiments and
love of country, frequently take the form of literary exercises consisting of patriotic
speeches and the reading of the Constitution, accompanied by a musical program
including patriotic air sometimes preceded by the firing of cannon and followed by
fireworks. That such celebrations are of advantage to the general public and their
promotion a proper subject of legislation can hardly be questioned. x x x

Surely, a town fiesta cannot compare to the National Centennial Celebrations. The
Centennial Celebrations was meant to commemorate the birth of our nation after
centuries of struggle against our former colonial master, to memorialize the liberation of
our people from oppression by a foreign power. 1998 marked 100 years of
independence and sovereignty as one united nation. The Celebrations was an occasion
to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it, it was a
vehicle for fostering nationhood and a strong sense of Filipino identity, an opportunity to
showcase Filipino heritage and thereby strengthen Filipino values. The significance of
the Celebrations could not have been lost on petitioner, who remarked during the
hearing:

Oh, yes, certainly the State is interested in the unity of the people, we wanted to
rekindle the love for freedom, love for country, that is the over-all goal that has to
make everybody feel proud that he is a Filipino, proud of our history, proud of what
our forefather did in their time. x x x.

Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of
little consequence. A salary is a usual but not a necessary criterion for determining the
nature of the position. It is not conclusive. The salary is a mere incident and forms no
part of the office. Where a salary or fees is annexed, the office is provided for it is a
naked or honorary office, and is supposed to be accepted merely for the public
good.[23] Hence, the office of petitioner as NCC Chair may be characterized as an
honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which
salary, compensation or fees are attached.[24] But it is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc
body make said commission less of a public office.

The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an
office. But, says Chief Justice Marshall, if a duty be a continuing one, which is
defined by rules prescribed by the government and not by contract, which an
individual is appointed by government to perform, who enters on the duties pertaining
to his station without any contract defining them, if those duties continue though the
person be changed, -- it seems very difficult to distinguish such a charge or
employment from an office of the person who performs the duties from an officer.

At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present it can make no difference, says Pearson,
C.J., whether there be but one act or a series of acts to be done, -- whether the office expires
as soon as the one act is done, or is to be held for years or during good behavior.[25]

Our conclusion that petitioner is a public officer finds support in In Re

Corliss.[26] There the Supreme Court of Rhode Island ruled that the office of
Commissioner of the United States Centennial Commission is an office of trust as to
disqualify its holder as elector of the United States President and Vice-
President. (Under Article II of the United States Constitution, a person holding an office
of trust or profit under the United States is disqualified from being appointed an elector.)

x x x. We think a Commissioner of the United States Centennial Commission holds an

office of trust under the United States, and that he is therefore disqualified for the
office of elector of President and Vice-President of the United States.

The commission was created under a statute of the United States approved March 3,
1871. That statute provides for the holding of an exhibition of American and foreign
arts, products, and manufactures, under the auspices of the government of the United
States, and for the constitution of a commission, to consist of more than one delegate
from each State and from each Territory of the United States, whose functions shall
continue until close of the exhibition, and whose duty it shall be to prepare and
superintend the execution of the plan for holding the exhibition. Under the statute the
commissioners are appointed by the President of the United States, on the nomination
of the governor of the States and Territories respectively.Various duties were imposed
upon the commission, and under the statute provision was to be made for it to have
exclusive control of the exhibit before the President should announce, by
proclamation, the date and place of opening and holding the exhibition. By an act of
Congress approved June 1st, 1872, the duties and functions of the commission were
further increased and defined. That act created a corporation, called The Centennial
Board of Finance, to cooperate with the commission and to raise and disburse the
funds. It was to be organized under the direction of the commission. The seventh
section of the act provides that the grounds for exhibition shall be prepared and the
buildings erected by the corporation, in accordance with plans which shall have been
adopted by the United States Centennial Commission; and the rules and regulations of
said corporation, governing rates for entrance and admission fees, or otherwise
affecting the rights, privileges, or interests of the exhibitors, or of the public, shall be
fixed and established by the United States Centennial Commission; and no grant
conferring rights or privileges of any description connected with said grounds or
buildings, or relating to said exhibition or celebration, shall be made without the
consent of the United States Centennial Commission, and said commission shall have
power to control, change, or revoke all such grants, and shall appoint all judges and
examiners and award all premiums. The tenth section of the act provides that it shall
be the duty of the United States Centennial Commission to supervise the closing up of
the affairs of said corporation, to audit its accounts, and submit in a report to the
President of the United States the financial results of the centennial exhibition.

It is apparent from this statement, which is but partial, that the duties and functions of
the commission were various, delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of affairs; and that they
were not merely subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons performing such
duties and exercising such functions, in pursuance of statutory direction and authority,
are not to be regarded as mere employees, agents, or committee men, but that they are,
properly speaking, officers, and that the places which they hold are offices. It appears,
moreover, that they were originally regarded as officers by Congress; for the act under
which they were appointed declares, section 7, that no compensation for services shall
be paid to the commissioners or other officers, provided for in this act, from the
treasury of the United States. The only other officers provided for were the alternates
appointed to serve as commissioners when the commissioners were unable to attend.

Having arrived at the conclusion that the NCC performs executive functions and is,
therefore, a public office, we need no longer delve at length on the issue of whether
Expocorp is a private or a public corporation.Even assuming that Expocorp is a private
corporation, petitioners position as Chief Executive Officer (CEO) of Expocorp arose
from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of
Expocorp must be viewed in the light of his powers and functions as NCC Chair. [27]
Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public officer as
defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is,
therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said law,
which reads:

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:

xxx

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.
 A public officer, under R.A. No. 3019, is defined by Section 2 of said law as follows:

SEC. 2. Definition of terms. As used in this Act, the term

xxx

(b) Public officer includes elective and appointive officials and employees, permanent
or temporary, whether in the classified or unclassified or exemption service receiving
compensation, even nominal, from the government as defined in the preceding
paragraph. [Emphasis supplied.]

It is clear from Section 2 (b), above, that the definition of a public officer is expressly
limited to the application of R.A. No. 3019. Said definition does not apply for purposes of
determining the Ombudsmans jurisdiction, as defined by the Constitution and the
Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-Graft
and Corrupt Practices Act involves the appreciation of evidence and interpretation of
law, matters that are best resolved at trial.
To illustrate, the use of the term includes in Section 2 (b) indicates that the definition
is not restrictive.[28] The Anti-Graft and Corrupt Practices Act is just one of several laws
that define public officers. Article 203 of the Revised Penal Code, for example, provides
that a public officer is:

x x x any person who, by direct provision of law, popular election or appointment by

competent authority, takes part in the performance of public functions in the
Government of Philippines, or performs in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of any rank or class.

Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,[29] on

the other hand, states:

Officer as distinguished from clerk or employee, refers to a person whose duties not
being of a clerical or manual nature, involves the exercise of discretion in the
performance of the functions of the government. When used with reference to a
person having authority to do a particular act or perform a particular person in the
exercise of governmental power, officer includes any government employee, agent or
body having authority to do the act or exercise that function.

It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct
and Ethical Standards for Public Officials and Employees), one may be considered a
public official whether or not one receives compensation, thus:
Public Officials include elective and appointive officials and employees, permanent or
temporary, whether in the career or non-career service including military and police
personnel, whether or not they receive compensation, regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
compensation, which is not defined by said law, has many meanings.

Under particular circumstances, compensation has been held to include allowance for
personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling
expenses, payments for services, restitution or a balancing of accounts, salary, and
wages.[30]

How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be
interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that
petitioner did not receive any salary, the records do not reveal if he received any
allowance, fee, honorarium, or some other form of compensation. Notably, under the
by-laws of Expocorp, the CEO is entitled to per diems and compensation.[31] Would such
fact bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest we
preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the
Courts Resolution dated September 24, 2001 is hereby LIFTED.
SO ORDERED.
Puno, and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., (Chairman), no part due to close relation to a party.

[1]
A.O. 223, Section 1. The same section provided for the Committees composition as follows:
x x x. The Committee shall be composed of six (6) representatives from the Presidential
Commission for Culture and the Arts (PCCA), and five (5) representatives from the Philippine
Centennial Foundation, Inc. (PCFI). They shall be appointed by the President upon their
nomination by their respective groups.
The Committee members shall elect among themselves the Chairman and Vice-Chairman,
and such other officers as they may deem necessary.
The Committee was also granted the following duties and powers:
1. To undertake the overall study, formulation and implementation of programs and
projects on the utilization of culture, arts, and media as vehicles for value education in the
context of the Centennial Celebration;
 2. To act as principal coordinator for all the activities related to awareness and celebration
of the centennial;
3. To constitute sub-committees and working groups which shall undertake the
implementation of the program and projects; and
4. To call upon the assistance of any government agency or instrumentality and corporation,
and to invite private individuals and organizations to assist it in the performance of its tasks. (Id.,
at Section 2.)
[2]
Other members of the Commission were the Secretaries of Education, Culture and Sports, National
Defense, Interior and Local Government, Tourism, Trade and Industry, Public Works and
Highways, Transportation and Communications, and Budget and Management, the Press
Secretary, two (2) representatives each from the Senate and the House of Representatives, two
(2) representatives from the Judiciary, the Executive Director of the National Historical Institute,
three (3) representatives from the National Commission for Culture and Arts, three (3)
representatives from the Philippine Centennial Foundation, Inc., and other members from the
government and the private sectors, as may be designated later. (E.O. No. 128, Section 1.)
[3]
Id., at Section 5.
[4]
The purposes of the corporation were set forth in Article 2 of the Articles of Incorporation, thus:
PRIMARY PURPOSE
To set up and establish the Philippine Centennial International Exposition 1998 (EXPO 98),
a project of the National Centennial Commission envisioned and mandated under Executive
Order No. 128, series of 1993, in the Clark Special Economic Zone (CSEZ) within the Provinces
of Pampanga and Tarlac, Philippines as created, defined and delineated under Proclamation
No. 163, series 1993, of the President of the Philippines and furtherance of said purpose;
1. To operate, administer, manage, implement, and develop EXPO 98 conformably to and
in accordance with the Detailed Feasibility study and Master Plan for said Exposition prepared
by DOUGLAS/GALLAGHER, INC. and approved by the President of the Philippines;
2. To exercise oversight functions and overall jurisdiction over the operations of EXPO 98
as well as manage and oversee all plans, programs, and activities related to the implementation
and operation of said Exposition;
3. To regulate the establishment, operation, and maintenance of utilities, services, and
infrastructure works in all the site components of EXPO 98 and its support facilities;
4. To oversee the preparations for the implementation of the participation of countries,
groups, organizations, and entities at EXPO 98;
5. To establish linkages with participating countries and coordinate their programs and
activities relevant to the theme of EXPO 98;
6. To provide and prescribe the guidelines for the design and fabrication of the pavilions of
participating countries that played a significant role in Philippine historical development and of
other participating groups, organizations, and entities which would be reflective of the following
objectives of EXPO 98 --
a) showcase the national vision of the Philippines, highlighted by a rich history
and culture, and its traditional heritage and diverse cultural influences;
b) express eloquently the Filipinism sentiment of the Philippine Centennial;
c) strengthen cultural and historical linkages between Philippines and
participating countries;
 d) create an image of the Philippines as a country with rich trade and tourism
potentials; and
e) project the Filipino character and strengthen the sense of national pride and
patriotism among the Filipino people.
7. To conceive and devise varied promotional strategies towards creating awareness and
appreciation of EXPO 98 as the centerpiece of the national celebrations in 1998 of the
centennial of the declaration of Philippine Independence and beyond that as a permanent site
for the Filipino people to honor their rich heritage;
8. To encourage and invite the active and meaningful participation of the private sector in
managing and overseeing EXPO 98; and
9. To forge strategic partnerships and joint ventures with local and international investors
and developers in the development, maintenance, operation, and management of EXPO 98 on
a turn-key basis.
SECONDARY PURPOSES
(1) To purchase, acquire, own, lease, sell and convey real properties such as lands,
buildings, factories and warehouses and machineries, equipment and other personal properties
as may be necessary or incidental to the conduct of the corporate business, and to pay in cash,
shares of its capital stock, debentures and other evidences of indebtedness, or other securities,
as may be deemed expedient, for any business or property acquired by the corporation.
(2) To borrow or raise money necessary to meet the financial requirements of its business
by the issuance of bonds, promissory notes and other evidences of indebtedness, and to secure
the repayment thereof by mortgage, pledge, deed of trust or lien upon the properties of the
corporation or to issue pursuant to law shares of its capital stock, debentures and other
evidences of indebtedness in payment for properties acquired by the corporation or for money
borrowed in the prosecution of its lawful business;
(3) To invest and deal with the money and properties of the corporation in such manner as
may from time to time be considered wise or expedient for the advancement of its interests and
to sell, dispose of or transfer the business, properties and goodwill of the corporation or any part
thereof for such consideration and under such terms as it shall see fit to accept;
(4) To aid in any manner any corporation, association, or trust estate, domestic or foreign,
or any firm or individual, any shares of stock in which or any bonds, debentures, notes,
securities, evidences of indebtedness, contracts, or obligations of which are held by or for this
corporation, directly or indirectly or through other corporations or otherwise;
(5) To enter into any lawful arrangement for sharing profits, union of interest, unitization or
farmout agreement, reciprocal concession, or cooperation, with any corporation, association,
partnership, syndicate, entity, person or governmental, municipal or public authority, domestic
or foreign, in the carrying on of any business or transaction deemed necessary, convenient or
incidental to carrying out any of the purposes of this corporation;
(6) To acquire or obtain from any government or authority, national, provincial, municipal or
otherwise, or a corporation, company or partnership or person, such charter, contracts,
franchise, privileges, exemption, licenses and concessions as may be conducive to any of the
objects of the corporation;
(7) To establish and operate one or more branch offices of agencies and to carry on any or
all of its operations and business without any restrictions as to place or amount including the
right to hold, purchase or otherwise acquire, lease, mortgage, pledge and convey or otherwise
deal in with real and personal property anywhere within the Philippines;
(8) To conduct and transact any and all lawful business, and to do or cause to be done any one
or more of the acts and things herein set forth as its purposes, within or without the Philippines,
 and in any and all foreign countries, and to do everything necessary, desirable or incidental to the
accomplishment of the purposes or the exercise of any one or more of the powers herein
enumerated, or which shall at any time appear conducive to or expedient for the protection or
benefit of this corporation.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 178454 March 28, 2011

FILIPINA SAMSON, Petitioner,

vs.
JULIA A. RESTRIVERA, Respondent.

DECISION

VILLARAMA, JR., J.:

Petitioner Filipina Samson appeals the Decision1 dated October 31, 2006 of the Court of Appeals
(CA) in CA-G.R. SP No. 83422 and its Resolution2 dated June 8, 2007, denying her motion for
reconsideration. The CA affirmed the Ombudsman in finding petitioner guilty of violating Section
4(b)3 of Republic Act (R.A.) No. 6713, otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees.

The facts are as follows:

Petitioner is a government employee, being a department head of the Population Commission with
office at the Provincial Capitol, Trece Martirez City, Cavite.

Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A. Restrivera, to
have the latter’s land located in Carmona, Cavite, registered under the Torrens System. Petitioner
said that the expenses would reach ₱150,000 and accepted ₱50,000 from respondent to cover the
initial expenses for the titling of respondent’s land. However, petitioner failed to accomplish her task
because it was found out that the land is government property. When petitioner failed to return the
₱50,000, respondent sued her for estafa. Respondent also filed an administrative complaint for
grave misconduct or conduct unbecoming a public officer against petitioner before the Office of the
Ombudsman.

The Ombudsman found petitioner guilty of violating Section 4(b) of R.A. No. 6713 and suspended
her from office for six months without pay. The Ombudsman ruled that petitioner failed to abide by
the standard set in Section 4(b) of R.A. No. 6713 and deprived the government of the benefit of
committed service when she embarked on her private interest to help respondent secure a certificate
of title over the latter’s land.4

Upon motion for reconsideration, the Ombudsman, in an Order5 dated March 15, 2004, reduced the
penalty to three months suspension without pay. According to the Ombudsman, petitioner’s
acceptance of respondent’s payment created a perception that petitioner is a fixer. Her act fell short
of the standard of personal conduct required by Section 4(b) of R.A. No. 6713 that public officials
shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue
patronage. The Ombudsman held:

x x x [petitioner] admitted x x x that she indeed received the amount of ₱50,000.00 from the
[respondent] and even contracted Engr. Liberato Patromo, alleged Licensed Geodetic Engineer to
do the surveys.

While it may be true that [petitioner] did not actually deal with the other government agencies for the
processing of the titles of the subject property, we believe, however, that her mere act in accepting
the money from the [respondent] with the assurance that she would work for the issuance of the title
is already enough to create a perception that she is a fixer. Section 4(b) of [R.A.] No. 6713 mandates
that public officials and employees shall endeavor to discourage wrong perception of their roles
as dispenser or peddler of undue patronage.

xxxx

x x x [petitioner’s] act to x x x restore the amount of [₱50,000] was to avoid possible sanctions.

x x x [d]uring the conciliation proceedings held on 19 October 2002 at the barangay level, it was
agreed upon by both parties that [petitioner] be given until 28 February 2003 within which to pay the
amount of ₱50,000.00 including interest. If it was true that [petitioner] had available money to pay
and had been persistent in returning the amount of [₱50,000.00] to the [respondent], she would have
easily given the same right at that moment (on 19 October 2002) in the presence of the Barangay
Officials.6 x x x. (Stress in the original.)

The CA on appeal affirmed the Ombudsman’s Order dated March 19, 2004. The CA ruled that
contrary to petitioner’s contentions, the Ombudsman has jurisdiction even if the act complained of is
a private matter. The CA also ruled that petitioner violated the norms of conduct required of her as a
public officer when she demanded and received the amount of ₱50,000 on the representation that
she can secure a title to respondent’s property and for failing to return the amount. The CA stressed
that Section 4(b) of R.A. No. 6713 requires petitioner to perform and discharge her duties with the
highest degree of excellence, professionalism, intelligence and skill, and to endeavor to discourage
wrong perceptions of her role as a dispenser and peddler of undue patronage.7

Hence, this petition which raises the following issues:

1. Does the Ombudsman have jurisdiction over a case involving a private dealing by a
government employee or where the act complained of is not related to the performance of
official duty?

2. Did the CA commit grave abuse of discretion in finding petitioner administratively liable
despite the dismissal of the estafa case?

3. Did the CA commit grave abuse of discretion in not imposing a lower penalty in view of
mitigating circumstances?8

Petitioner insists that where the act complained of is not related to the performance of official duty,
the Ombudsman has no jurisdiction. Petitioner also imputes grave abuse of discretion on the part of
the CA for holding her administratively liable. She points out that the estafa case was dismissed
upon a finding that she was not guilty of fraud or deceit, hence misconduct cannot be attributed to
her. And even assuming that she is guilty of misconduct, she is entitled to the benefit of mitigating
circumstances such as the fact that this is the first charge against her in her long years of public
service.9

Respondent counters that the issues raised in the instant petition are the same issues that the CA
correctly resolved.10 She also alleges that petitioner failed to observe the mandate that public office
is a public trust when she meddled in an affair that belongs to another agency and received an
amount for undelivered work.11

We affirm the CA and Ombudsman that petitioner is administratively liable. We hasten to add,
however, that petitioner is guilty of conduct unbecoming a public officer.

On the first issue, we agree with the CA that the Ombudsman has jurisdiction over respondent’s
complaint against petitioner although the act complained of involves a private deal between
them.12 Section 13(1),13 Article XI of the 1987 Constitution states that the Ombudsman can
investigate on its own or on complaint by any person any act or omission of any public official or
employee when such act or omission appears to be illegal, unjust, or improper. Under Section 1614 of
R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, the jurisdiction of the Ombudsman
encompasses all kinds of malfeasance, misfeasance, and nonfeasance committed by any public
officer or employee during his/her tenure. Section 1915 of R.A. No. 6770 also states that the
Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which are unfair
or irregular. Thus, even if the complaint concerns an act of the public official or employee which is
not service-connected, the case is within the jurisdiction of the Ombudsman. The law does not
qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman
may investigate. It does not require that the act or omission be related to or be connected with or
arise from the performance of official duty. Since the law does not distinguish, neither should we.16

On the second issue, it is wrong for petitioner to say that since the estafa case against her was
dismissed, she cannot be found administratively liable. It is settled that administrative cases may
proceed independently of criminal proceedings, and may continue despite the dismissal of the
criminal charges.17

For proper consideration instead is petitioner’s liability under Sec. 4(A)(b) of R.A. No. 6713.

We quote the full text of Section 4 of R.A. No. 6713:

SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and
employee shall observe the following as standards of personal conduct in the discharge and
execution of official duties:

(a) Commitment to public interest. - Public officials and employees shall always
uphold the public interest over and above personal interest. All government
resources and powers of their respective offices must be employed and used
efficiently, effectively, honestly and economically, particularly to avoid wastage in
public funds and revenues.

(b) Professionalism. - Public officials and employees shall perform and discharge
their duties with the highest degree of excellence, professionalism, intelligence and
skill. They shall enter public service with utmost devotion and dedication to duty.
They shall endeavor to discourage wrong perceptions of their roles as dispensers or
peddlers of undue patronage.
 (c) Justness and sincerity. - Public officials and employees shall remain true to the
people at all times. They must act with justness and sincerity and shall not
discriminate against anyone, especially the poor and the underprivileged. They shall
at all times respect the rights of others, and shall refrain from doing acts contrary to
law, good morals, good customs, public policy, public order, public safety and public
interest. They shall not dispense or extend undue favors on account of their office to
their relatives whether by consanguinity or affinity except with respect to
appointments of such relatives to positions considered strictly confidential or as
members of their personal staff whose terms are coterminous with theirs.

(d) Political neutrality. - Public officials and employees shall provide service to
everyone without unfair discrimination and regardless of party affiliation or
preference.

(e) Responsiveness to the public. - Public officials and employees shall extend
prompt, courteous, and adequate service to the public. Unless otherwise provided by
law or when required by the public interest, public officials and employees shall
provide information on their policies and procedures in clear and understandable
language, ensure openness of information, public consultations and hearings
whenever appropriate, encourage suggestions, simplify and systematize policy, rules
and procedures, avoid red tape and develop an understanding and appreciation of
the socioeconomic conditions prevailing in the country, especially in the depressed
rural and urban areas.

(f) Nationalism and patriotism. - Public officials and employees shall at all times be
loyal to the Republic and to the Filipino people, promote the use of locally-produced
goods, resources and technology and encourage appreciation and pride of country
and people. They shall endeavor to maintain and defend Philippine sovereignty
against foreign intrusion.

(g) Commitment to democracy. - Public officials and employees shall commit

themselves to the democratic way of life and values, maintain the principle of public
accountability, and manifest by deed the supremacy of civilian authority over the
military. They shall at all times uphold the Constitution and put loyalty to country
above loyalty to persons or party.

(h) Simple living. - Public officials and employees and their families shall lead modest
lives appropriate to their positions and income. They shall not indulge in extravagant
or ostentatious display of wealth in any form.

(B) The Civil Service Commission shall adopt positive measures to promote (1) observance
of these standards including the dissemination of information programs and workshops
authorizing merit increases beyond regular progression steps, to a limited number of
employees recognized by their office colleagues to be outstanding in their observance of
ethical standards; and (2) continuing research and experimentation on measures which
provide positive motivation to public officials and employees in raising the general level of
observance of these standards.

Both the Ombudsman and CA found the petitioner administratively liable for violating Section 4(A)(b)
on professionalism. "Professionalism" is defined as the conduct, aims, or qualities that characterize
or mark a profession. A professional refers to a person who engages in an activity with great
competence. Indeed, to call a person a professional is to describe him as competent, efficient,
experienced, proficient or polished.18 In the context of Section 4 (A)(b) of R.A. No. 6713, the
observance of professionalism also means upholding the integrity of public office by endeavoring "to
discourage wrong perception of their roles as dispensers or peddlers of undue patronage." Thus, a
public official or employee should avoid any appearance of impropriety affecting the integrity of
government services. However, it should be noted that Section 4(A) enumerates the standards of
personal conduct for public officers with reference to "execution of official duties."

In the case at bar, the Ombudsman concluded that petitioner failed to carry out the standard of
professionalism by devoting herself on her personal interest to the detriment of her solemn public
duty. The Ombudsman said that petitioner’s act deprived the government of her committed service
because the generation of a certificate of title was not within her line of public service. In denying
petitioner’s motion for reconsideration, the Ombudsman said that it would have been sufficient if
petitioner just referred the respondent to the persons/officials incharge of the processing of the
documents for the issuance of a certificate of title. While it may be true that she did not actually deal
with the other government agencies for the processing of the titles of the subject property,
petitioner’s act of accepting the money from respondent with the assurance that she would work for
the issuance of the title is already enough to create a perception that she is a fixer.

On its part, the CA rejected petitioner’s argument that an isolated act is insufficient to create those
"wrong perceptions" or the "impression of influence peddling." It held that the law enjoins public
officers, at all times to respect the rights of others and refrain from doing acts contrary to law, good
customs, public order, public policy, public safety and public interest. Thus, it is not the plurality of
the acts that is being punished but the commission of the act itself.

Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A. No. 6713 as broad enough
to apply even to private transactions that have no connection to the duties of one’s office. We hold,
however, that petitioner may not be penalized for violation of Section 4 (A)(b) of R.A. No. 6713. The
reason though does not lie in the fact that the act complained of is not at all related to petitioner’s
discharge of her duties as department head of the Population Commission.

In addition to its directive under Section 4(B), Congress authorized19 the Civil Service Commission
(CSC) to promulgate the rules and regulations necessary to implement R.A. No. 6713. Accordingly,
the CSC issued the Rules Implementing the Code of Conduct and Ethical Standards for Public
Officials and Employees (hereafter, Implementing Rules). Rule V of the Implementing Rules
provides for an Incentive and Rewards System for public officials and employees who have
demonstrated exemplary service and conduct on the basis of their observance of the norms of
conduct laid down in Section 4 of R.A. No. 6713, to wit:

RULE V. INCENTIVES AND REWARDS SYSTEM

SECTION 1. Incentives and rewards shall be granted officials and employees who have
demonstrated exemplary service and conduct on the basis of their observance of the norms of
conduct laid down in Section 4 of the Code, namely:

(a) Commitment to public interest. - x x x

(b) Professionalism. - x x x

(c) Justness and sincerity. - x x x

(d) Political neutrality. - x x x

 (e) Responsiveness to the public. - x x x

(f) Nationalism and patriotism. - x x x

(g) Commitment to democracy. - x x x

(h) Simple living. - x x x

On the other hand, Rule X of the Implementing Rules enumerates grounds for administrative
disciplinary action, as follows:

RULE X. GROUNDS FOR ADMINISTRATIVE DISCIPLINARY ACTION

SECTION 1. In addition to the grounds for administrative disciplinary action prescribed under
existing laws, the acts and omissions of any official or employee, whether or not he holds office or
employment in a casual, temporary, hold-over, permanent or regular capacity, declared unlawful or
prohibited by the Code, shall constitute grounds for administrative disciplinary action, and without
prejudice to criminal and civil liabilities provided herein, such as:

(a) Directly or indirectly having financial and material interest in any transaction requiring the
approval of his office. x x x.

(b) Owning, controlling, managing or accepting employment as officer, employee, consultant,

counsel, broker, agent, trustee, or nominee in any private enterprise regulated, supervised or
licensed by his office, unless expressly allowed by law;

(c) Engaging in the private practice of his profession unless authorized by the Constitution,
law or regulation, provided that such practice will not conflict or tend to conflict with his
official functions;

(d) Recommending any person to any position in a private enterprise which has a regular or
pending official transaction with his office, unless such recommendation or referral is
mandated by (1) law, or (2) international agreements, commitment and obligation, or as part
of the functions of his office;

xxxx

(e) Disclosing or misusing confidential or classified information officially known to him by

reason of his office and not made available to the public, to further his private interests or
give undue advantage to anyone, or to prejudice the public interest;

(f) Soliciting or accepting, directly or indirectly, any gift, gratuity, favor, entertainment, loan or
anything of monetary value which in the course of his official duties or in connection with any
operation being regulated by, or any transaction which may be affected by the functions of,
his office. x x x.

xxxx

(g) Obtaining or using any statement filed under the Code for any purpose contrary to morals
or public policy or any commercial purpose other than by news and communications media
for dissemination to the general public;
 (h) Unfair discrimination in rendering public service due to party affiliation or preference;

(i) Disloyalty to the Republic of the Philippines and to the Filipino people;

(j) Failure to act promptly on letters and request within fifteen (15) days from receipt, except
as otherwise provided in these Rules;

(k) Failure to process documents and complete action on documents and papers within a
reasonable time from preparation thereof, except as otherwise provided in these Rules;

(l) Failure to attend to anyone who wants to avail himself of the services of the office, or to
act promptly and expeditiously on public personal transactions;

(m) Failure to file sworn statements of assets, liabilities and net worth, and disclosure of
business interests and financial connections; and

(n) Failure to resign from his position in the private business enterprise within thirty (30) days
from assumption of public office when conflict of interest arises, and/or failure to divest
himself of his shareholdings or interests in private business enterprise within sixty (60) days
from such assumption of public office when conflict of interest arises: Provided, however,
that for those who are already in the service and a conflict of interest arises, the official or
employee must either resign or divest himself of said interests within the periods herein-
above provided, reckoned from the date when the conflict of interest had arisen.

In Domingo v. Office of the Ombudsman,20 this Court had the occasion to rule that failure to abide by
the norms of conduct under Section 4(A)(b) of R.A. No. 6713, in relation to its implementing rules, is
not a ground for disciplinary action, to wit:

The charge of violation of Section 4(b) of R.A. No. 6713 deserves further comment. The provision
commands that "public officials and employees shall perform and discharge their duties with the
highest degree of excellence, professionalism, intelligence and skill." Said provision merely
enunciates "professionalism as an ideal norm of conduct to be observed by public servants, in
addition to commitment to public interest, justness and sincerity, political neutrality, responsiveness
to the public, nationalism and patriotism, commitment to democracy and simple living. Following this
perspective, Rule V of the Implementing Rules of R.A. No. 6713 adopted by the Civil Service
Commission mandates the grant of incentives and rewards to officials and employees who
demonstrate exemplary service and conduct based on their observance of the norms of conduct laid
down in Section 4. In other words, under the mandated incentives and rewards system, officials and
employees who comply with the high standard set by law would be rewarded. Those who fail to do
so cannot expect the same favorable treatment. However, the Implementing Rules does not
provide that they will have to be sanctioned for failure to observe these norms of conduct.
Indeed, Rule X of the Implementing Rules affirms as grounds for administrative disciplinary
action only acts "declared unlawful or prohibited by the Code." Rule X specifically mentions
at least twenty three (23) acts or omissions as grounds for administrative disciplinary action.
Failure to abide by the norms of conduct under Section 4(b) of R.A. No. 6713 is not one of
them. (Emphasis supplied.)

Consequently, the Court dismissed the charge of violation of Section 4(A)(b) of R.A. No. 6713 in that
case.

We find no compelling reason to depart from our pronouncement in Domingo. Thus, we reverse the
CA and Ombudsman that petitioner is administratively liable under Section 4(A)(b) of R.A. No. 6713.
In so ruling, we do no less and no more than apply the law and its implementing rules issued by the
CSC under the authority given to it by Congress. Needless to stress, said rules partake the nature of
a statute and are binding as if written in the law itself. They have the force and effect of law and
enjoy the presumption of constitutionality and legality until they are set aside with finality in an
appropriate case by a competent court.21

But is petitioner nonetheless guilty of grave misconduct, which is a ground for disciplinary action
under R.A. No. 6713?

We also rule in the negative.

Misconduct is a transgression of some established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer. The misconduct is grave if it involves any
of the additional elements of corruption, willful intent to violate the law or to disregard established
rules, which must be proved by substantial evidence. Otherwise, the misconduct is only
simple.22 Conversely, one cannot be found guilty of misconduct in the absence of substantial
evidence. In one case, we affirmed a finding of grave misconduct because there was substantial
evidence of voluntary disregard of established rules in the procurement of supplies as well as of
manifest intent to disregard said rules.23 We have also ruled that complicity in the transgression of a
regulation of the Bureau of Internal Revenue constitutes simple misconduct only as there was failure
to establish flagrancy in respondent’s act for her to be held liable of gross misconduct.24 On the other
hand, we have likewise dismissed a complaint for knowingly rendering an unjust order, gross
ignorance of the law, and grave misconduct, since the complainant did not even indicate the
particular acts of the judge which were allegedly violative of the Code of Judicial Conduct.25

In this case, respondent failed to prove (1) petitioner’s violation of an established and definite rule of
action or unlawful behavior or gross negligence, and (2) any of the aggravating elements of
corruption, willful intent to violate a law or to disregard established rules on the part of petitioner. In
fact, respondent could merely point to petitioner’s alleged failure to observe the mandate that public
office is a public trust when petitioner allegedly meddled in an affair that belongs to another agency
and received an amount for undelivered work.

True, public officers and employees must be guided by the principle enshrined in the Constitution
that public office is a public trust. However, respondent’s allegation that petitioner meddled in an
affair that belongs to another agency is a serious but unproven accusation. Respondent did not even
say what acts of interference were done by petitioner. Neither did respondent say in which
government agency petitioner committed interference. And causing the survey of respondent’s land
can hardly be considered as meddling in the affairs of another government agency by petitioner who
is connected with the Population Commission. It does not show that petitioner made an illegal deal
or any deal with any government agency. Even the Ombudsman has recognized this fact. The
survey shows only that petitioner contracted a surveyor. Respondent said nothing on the propriety
1ihpwa1

or legality of what petitioner did. The survey shows that petitioner also started to work on her task
under their agreement. Thus, respondent’s allegation that petitioner received an amount for
undelivered work is not entirely correct. Rather, petitioner failed to fully accomplish her task in view
of the legal obstacle that the land is government property.

However, the foregoing does not mean that petitioner is absolved of any administrative liability.

But first, we need to modify the CA finding that petitioner demanded the amount of ₱50,000 from
respondent because respondent did not even say that petitioner demanded money from her.26 We
find in the allegations and counter-allegations that respondent came to petitioner’s house in Biñan,
Laguna, and asked petitioner if she can help respondent secure a title to her land which she intends
to sell. Petitioner agreed to help. When respondent asked about the cost, petitioner said ₱150,000
and accepted ₱50,000 from respondent to cover the initial expenses.27

We agree with the common finding of the Ombudsman and the CA that, in the aftermath of the
aborted transaction, petitioner still failed to return the amount she accepted. As aptly stated by the
Ombudsman, if petitioner was persistent in returning the amount of ₱50,000 until the preliminary
investigation of the estafa case on September 18, 2003,28 there would have been no need for the
parties’ agreement that petitioner be given until February 28, 2003 to pay said amount including
interest. Indeed, petitioner’s belated attempt to return the amount was intended to avoid possible
sanctions and impelled solely by the filing of the estafa case against her.

For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct unbecoming a
public officer. In Joson v. Macapagal, we have also ruled that the respondents therein were guilty of
conduct unbecoming of government employees when they reneged on their promise to have
pertinent documents notarized and submitted to the Government Service Insurance System after the
complainant’s rights over the subject property were transferred to the sister of one of the
respondents.29 Recently, in Assistant Special Prosecutor III Rohermia J. Jamsani-Rodriguez v.
Justices Gregory S. Ong, et al., we said that unbecoming conduct means improper performance and
applies to a broader range of transgressions of rules not only of social behavior but of ethical
practice or logical procedure or prescribed method.30 1avvphi 1

This Court has too often declared that any act that falls short of the exacting standards for public
office shall not be countenanced.31 The Constitution categorically declares as follows:

SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.32

Petitioner should have complied with her promise to return the amount to respondent after failing to
accomplish the task she had willingly accepted. However, she waited until respondent sued her
for estafa, thus reinforcing the latter’s suspicion that petitioner misappropriated her money. Although
the element of deceit was not proven in the criminal case respondent filed against the petitioner, it is
clear that by her actuations, petitioner violated basic social and ethical norms in her private dealings.
Even if unrelated to her duties as a public officer, petitioner’s transgression could erode the public’s
trust in government employees, moreso because she holds a high position in the service.

As to the penalty, we reprimanded the respondents in Joson and imposed a fine in Jamsani-
Rodriguez. Under the circumstances of this case, a fine of ₱15,000 in lieu of the three months
suspension is proper. In imposing said fine, we have considered as a mitigating circumstance
petitioner’s 37 years of public service and the fact that this is the first charge against her.33 Section
5334 of the Revised Uniform Rules on Administrative Cases in the Civil Service provides that
mitigating circumstances such as length of service shall be considered. And since petitioner has
earlier agreed to return the amount of ₱50,000 including interest, we find it proper to order her to
comply with said agreement. Eventually, the parties may even find time to rekindle their friendship.

WHEREFORE, we SET ASIDE the Decision dated October 31, 2006 of the Court of Appeals and its
Resolution dated June 8, 2007 in CA-G.R. SP No. 83422, as well as the Decision dated January 6,
2004 and Order dated March 15, 2004 of the Ombudsman in OMB-L-A-03-0552-F, and ENTER a
new judgment as follows:
We find petitioner GUILTY of conduct unbecoming a public officer and impose upon her a FINE of
₱15,000.00 to be paid at the Office of the Ombudsman within five (5) days from finality of this
Decision.

We also ORDER petitioner to return to respondent the amount of ₱50,000.00 with interest thereon at
12% per annum from March 2001 until the said amount shall have been fully paid.

With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

ARTURO D. BRION LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO MORALES

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice

Footnotes
 1 Rollo, pp. 126-142. Penned by Presiding Justice Ruben T. Reyes (now a retired Member of
this Court) with the concurrence of Associate Justices Juan Q. Enriquez and Vicente S.E.
Veloso.

2 Id. at 145-146.

3SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and
employee shall observe the following as standards of personal conduct in the discharge and
execution of official duties:

xxxx

(b) Professionalism. - Public officials and employees shall perform and discharge
their duties with the highest degree of excellence, professionalism, intelligence and
skill. They shall enter public service with utmost devotion and dedication to duty.
They shall endeavor to discourage wrong perceptions of their roles as dispensers or
peddlers of undue patronage.

4 Rollo, pp. 37-38.

THIRD DIVISION

G.R. No. 182926, June 22, 2015

ANA LOU B. NAVAJA, Petitioner, v. HON. MANUEL A. DE CASTRO, OR THE

ACTING PRESIDING JUDGE OF MCTC JAGNA-GARCIA-HERNANDEZ, DKT
PHILS., INC., REPRESENTED BY ATTY. EDGAR BORJE, Respondents.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision1dated
August 28, 2007 and the Resolution2 dated May 7, 2008 rendered by the Court of Appeals (CA) in CA-G.R.
SP No. 02353, which affirmed the Order dated September 21, 2006 issued by the Regional Trial Court (RTC)
of Loay, Bohol, Branch 50, in SP Civil Action No. 0356.

The factual antecedents are as follows: ChanRobles Vi rtua lawlib rary

The instant case arose from a Complaint-Affidavit3 filed by private respondent DKT Philippines, Inc.,
represented by Atty. Edgar Borje, against petitioner Ana Lou B. Navaja, alleging that while she was still its
Regional Sales Manager, she falsified a receipt by making it appear that she incurred meal expenses in the
amount of P1,810.00, instead of the actual amount of P810.00, at Garden Cafe, Jagna, Bohol, and claimed
reimbursement for it.

Navaja is charged with the crime of falsification of private document before the Municipal Circuit Trial Court
(MCTC) of Jagna-Garcia-Hernandez, Bohol, docketed as Criminal Case No. 2904. The accusatory portion of
the Information filed against her reads: chanRoble svi rtual Lawli bra ry

That on or about the 2nd day of October 2003, in the municipality of Jagna, province of Bohol, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, with intent to prejudice a
juridical person, did then and there willfully, unlawfully and feloniously falsify a commercial receipt No. 6729
of Garden Cafe, Jagna, Bohol, by making an alteration or intercalation in the said receipt No. 6729 from
EIGHT HUNDRED TEN PESOS (P810.00) to ONE THOUSAND EIGHT HUNDRED TEN PESOS (P1,810.00) and
thereafter accused used the said receipt to claim reimbursement with DKT Philippines, Inc. represented by
Atty. Edgar Borje and accused as a result of which received the amount of P1,810.00 to her own benefit; to
the damage and prejudice of the offended party in the amount to be proved during trial. Acts committed
contrary to the provision of Article 172, No. 2, in relation to Article 171, No. 6 of the Revised Penal Code.

Tagbilaran City, (for Jagna, Bohol) February 10, 2005.4

On August 1, 2005, Navaja filed a Motion to Quash and Defer Arraignment5 on the ground that none of the
essential elements of the crime of falsification of private document occurred in Jagna, Bohol, hence, the
MCTC had no jurisdiction to take cognizance of the case due to improper venue.

In the Order dated November 2, 2005, the MCTC denied the motion to quash and set the case for
arraignment, the decretal portion of the Order reads: chanRo blesvi rtua lLaw lib rary

WHEREFORE, the motion is DENIED, but considering however that accused has already submitted
themselves to the jurisdiction of the court by filing cash bond for their respective temporary liberty, set this
case for ARRAIGNMENT on November 22, 2005, at 10:00 o'clock in the morning at the Session Hall,
10th MCTC, Jagna, Bohol.

The previous Court Order setting these cases for arraignment on November 09, 2005, is hereby set aside.

SO ORDERED.6
Navaja filed a motion for reconsideration of the November 2, 2005 Order, but the MCTC denied it in a
Resolution7 dated January 24, 2006.

Navaja filed a petition for certiorari8 before the RTC, assailing the November 2, 2005 Order and January 24,
2006 Resolution of the MCTC for having been issued with grave abuse of discretion.

On September 21, 2006, the RTC issued an Order denying the petition for certiorari for lack of legal basis or
merit.9 On Navaja's contention that the case for falsification of private document against her was filed with
the MCTC which has no jurisdiction due to wrong venue, hence, the RTC ruled: chanRoblesvi rt ualLaw lib rary

The contention of the petitioner is untenable. As correctly pointed out by the MCTC, the improper venue was
already resolved squarely by the Regional State Prosecutor when he held that “there are sufficient evidences
(sic) indicating that the falsification took place in Jagna”.

This court notes that in that particular resolution, reference was made to the sworn statement of Ms. Cherly
Lavaro who narrated that after she issued the receipt to Ms. Navaja, the latter borrowed her pen and in her
presence wrote something on the said receipt. The Regional State Prosecutor then concluded that Ms.
Lavaro's statement “describes an apparent scheme or pattern of altering receipts right after issuance. The
borrowing of the cashier's pen and the use thereof must have been intended to create an impression that
the receipt was prepared by the cashier herself.”

In the same affidavit, Ms. Lavaro corroborated the affidavit of another witness, which categorically states
that Ms. Navaja was in Jagna when the questioned receipt was issued.

If the court were to follow the logic of the petition, her claim that her request for reimbursement was made
in Cebu City not in Jagna, Bohol, would likewise give no showing or indication that the falsification was done
in Cebu City. In other words, the said contention would necessarily result in a “neither here no there”
situation.10
Navaja elevated the case on appeal with the CA.

In the Decision dated August 28, 2007, the CA dismissed Navaja's appeal and affirmed in toto the
September 21, 2006 RTC Order.

Navaja filed a motion for reconsideration but the CA denied it in the Resolution dated May 7, 2008.
Aggrieved, she filed the instant petition for review on certiorari, raising the following issues: chanRoble svi rtual Lawli bra ry

I. THE MUNICIPAL TRIAL COURT OF JAGNA, BOHOL[,] DOES NOT HAVE JURISDICTION OVER THE INSTANT
CRIMINAL CASE.
i. Not one of the essential elements of the alleged crime of falsification of a private document was committed
in Jagna, Bohol.

ii. Venue in criminal cases is jurisdictional and cannot be presumed or established from the alleged acts of
the petitioner on a totally different and unrelated time and occasion.
iii. The strict rules on venue in criminal cases were established for the protection of the rights of the accused
and to prevent undue harassment and oppression. chanrob lesvi rtua llawlib ra ry

II. HEREIN PETITIONER PROPERLY AVAILED OF THE REMEDY OF FILING A PETITION FOR CERTIORARI IN
QUESTIONING IMPROPER VENUE IN THE INSTANT CASE.

III. SETTLED LAW AND JURISPRUDENCE CLEARLY PERMITS THE FILING OF A PETITION FOR CERTIORARI
TO QUESTION THE DENIAL OF A MOTION TO QUASH.11
The petition lacks merit.

On the substantive issue of whether the MCTC of Jagna, Bohol, has jurisdiction over her case for falsification
of a private document, Navaja argues that not one of the three (3) essential elements12 of such crime was
shown to have been committed in Jagna, Bohol. She insists that there is no showing in the Information, or
even in the complaint-affidavit and the annexes thereto that the crime of falsification of a private document
was committed or consummated in Jagna, Bohol. In particular, the allegation in the complaint-affidavit that
the subject receipt was issued by Garden Cafe in Jagna, Bohol, cannot determine the venue because the
place of issuance of the receipt is not an element of the said crime. It was also impossible for her to have
committed the crime in Jagna, Bohol, because the alleged request for reimbursement under the Weekly
Travel Expense Report for September 29 to October 4, 2003, was prepared and submitted on October 6,
2003 in Cebu City, while the subject receipt was issued on October 2, 2003 by Garden Cafe in Jagna, Bohol.
She further insists that at the time of the issuance of the subject receipt on October 2, 2003, the element of
damage was absent, hence, there is no crime of falsification of private document to speak of. She explains
that any damage that private respondent could have suffered would only occur when it pays the request for
reimbursement in the Travel Expense Report submitted on October 6, 2003, but not before that date, much
less at time of the issuance of the said receipt.

Navaja's arguments are misplaced.

Venue in criminal cases is an essential element of jurisdiction.13 This principle was explained by the Court
in Foz, Jr. v. People,14 thus: chanRoblesvi rtual Lawl ibra ry

It is a fundamental rule that for jurisdiction to be acquired by courts in criminal cases the offense should
have been committed or any one of its essential ingredients took place within the territorial jurisdiction of
the court. Territorial jurisdiction in criminal cases is the territory where the court has jurisdiction to take
cognizance or to try the offense allegedly committed therein by the accused. Thus, it cannot take jurisdiction
over a person charged with an offense allegedly committed outside of that limited territory. Furthermore,
the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or
information. And once it is so shown, the court may validly take cognizance of the case. However, if the
evidence adduced during the trial show that the offense was committed somewhere else, the court should
dismiss the action for want of jurisdiction.15
In determining the venue where the criminal action is to be instituted and the court which has jurisdiction
over it, Section 15(a), Rule 110 of the 2000 Revised Rules of Criminal Procedure provides: cha nRoblesv irt ual Lawlib rary

(a) Subject to existing laws, the criminal action shall be instituted and tried in the court or municipality or
territory where the offense was committed or where any of its essential ingredients occurred. chan roblesv irt uallawl ibra ry

Section 10, Rule 110 of the 2000 Revised Rules of Criminal Procedure pertinently states: chanRoblesvi rt ual Lawlib rary

Place of commission of the offense. – The complaint or information is sufficient if it can be understood from
its allegations that the offense was committed or some of its essential ingredients occurred at some place
within the jurisdiction of the court, unless the particular place where it was committed constitutes an
essential element of the offense charged or is necessary for its identification. c hanro blesvi rt uallawli bra ry

In Union Bank of the Philippines v. People,16 the Court said that both provisions categorically place the
venue and jurisdiction over criminal cases not only in the court where the offense was committed, but also
where any of its essential ingredients took place. In other words, the venue of action and of jurisdiction are
deemed sufficiently alleged where the Information states that the offense was committed or some of its
essential ingredients occurred at a place within the territorial jurisdiction of the court.

In cases of falsification of private documents, the venue is the place where the document is actually falsified,
to the prejudice of or with the intent to prejudice a third person, regardless whether or not the falsified
document is put to the improper or illegal use for which it was intended.17 chan roble slaw

Contrary to Navaja's argument that the MCTC of Jagna, Bohol, has no jurisdiction over the case because not
one of the essential elements of falsification of private document was committed within its jurisdiction, the
allegations in the Information and the complaint-affidavit make out a prima facie case that such crime was
committed in Jagna, Bohol. In particular, the Information clearly alleged that she committed such crime
thereat, to wit:
chanRoblesv irt ual Lawlib rary
That on or about the 2nd day of October 2003, in the municipality of Jagna, province of Bohol,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to
prejudice a juridical person, did then and there willfully, unlawfully and feloniously falsify a
commercial receipt No. 6729 of Garden Cafe, Jagna, Bohol, by making an alteration or intercalation in
the said receipt No. 6729 from EIGHT HUNDRED TEN PESOS (P810.00) to ONE THOUSAND EIGHT HUNDRED
TEN PESOS (P1,810.00) and thereafter accused used the said receipt to claim reimbursement with DKT
Philippines, Inc. represented by Atty. Edgar Borje and accused as a result of which received the amount of
P1,810.00 to her own benefit; to the damage and prejudice of the offended party in the amount to be
proved during trial. xxx18
Likewise, the Complaint-Affidavit dated February 18, 2004 alleged that the she committed the said crime in
Jagna, Bohol, viz:chanRoble svirtual Lawlib ra ry

“4. Among the expenses she reimbursed from DKT is the amount of Php1,810.00 she supposedly
incurred at Garden's Cafe, Jagna branch. Photocopy of the receipt dated 02 October 2003 she sent to
the DKT office in Metro Manila is hereto attached as Annex “C”.

5. However, upon recent field investigation of Navaja's expenses in Bohol, it was found that the actual
amount she incurred at Garden's (sic) Cafe is only Php810.00 Photocopy of the duplicate original official
receipt (pink copy) certified true and correct by the cashier of Garden's Cafe, Jagna is hereto attached as
Annex “D”.

6. Evidently, Navaja falsified the receipt in Bohol upon receiving it with the intent of causing damage
to DKT.”19
Guided by the settled rule that the jurisdiction of the court is determined by the allegations of the complaint
or information and not by the result of proof20, the Court holds that Navaja's case for falsification of private
document falls within the territorial jurisdiction of the MCTC of Jagna, Bohol.

Meanwhile, Navaja's defense that it was impossible for her to have committed the crime in Jagna, Bohol,
cannot be sustained at this point where the prosecution has yet to present evidence to prove the material
allegations of the charge against her, which include the place where the subject receipt was falsified.
However, given that the defense of lack of jurisdiction due to improper venue may be raised at any stage of
the proceeding, the Court stresses that if the evidence adduced during the trial would show that the crime
was indeed committed outside its territorial jurisdiction, the MCTC should dismiss the case based on such
ground.

On Navaja's claim that there is no crime of falsification of private document to speak of because at the time
of the issuance of the subject receipt on October 2, 2003, the element of damage was absent, the Court
sustains the RTC ruling that such damage need not be present, as Article 172 (2)21 of the Revised Penal
Code, as amended, states that mere intent to cause such damage is sufficient.22 chanrob leslaw

Navaja further contends that the CA's reliance on the findings of the Regional State Prosecutor as to the
sworn statement of a certain Cheryl Labarro23 for purposes of determining venue was misplaced, as her
sworn statement pertains to an incident in Miravilla Resort in Tagbilaran City, which was entirely separate
and distinct from the facts material to the case. She adds that the CA's reliance on the said statement in
upholding the venue of the case clearly runs afoul with the provisions of Section 34, Rule 130 of the Rules of
Court.24 She submits that nowhere in the Rules of Court is it allowed that the actions of the accused on a
different occasion maybe used to confer venue in another case, since venue must be determined solely and
exclusively on the facts obtaining in the instant case and cannot be inferred or presumed from other
collateral allegations.

The Court finds no merit in Navaja's foregoing contentions which boil down to the factual issue of whether
the crime of falsification of private document was committed in Jagna, Bohol or in Cebu City.

Section 1, Rule 45 of the Rules of Court states that petitions for review on certiorari "shall raise only
questions of law which must be distinctly set forth." In Pagsibigan v. People, et al.,25 the Court held:chanRoblesv irt ual Lawlib rary

A petition for review under Rule 45 of the Rules of Court should cover only questions of law. Questions of
fact are not reviewable. A question of law exists when the doubt centers on what the law is on a certain set
of facts. A question of fact exists when the doubt centers on the truth or falsity of the alleged facts.

There is a question of law if the issue raised is capable of being resolved without need of reviewing the
probative value of the evidence. The issue to be resolved must be limited to determining what the law is on
a certain set of facts. Once the issue invites a review of the evidence, the question posed is one of fact. chanroblesv irtuallawl ib rary
Whether the crime of falsification of private document was committed in Jagna, Bohol or in Cebu City, is a
question of fact. Indeed, in the exercise of its power of review, the Court is not a trier of facts and, subject
to certain exceptions, it does not normally undertake the re-examination of the evidence presented by the
parties during trial.26 In certain exceptional cases, however, the Court may be urged to probe and resolve
factual issues, viz:
chanRoblesvi rtua lLawl ibra ry

(a) When the findings are grounded entirely on speculation, surmises, or conjectures;

(b) When the inference made is manifestly mistaken, absurd, or impossible;

(c) When there is grave abuse of discretion;

(d) When the judgment is based on a misapprehension of facts;

(e) When the findings of facts are conflicting;

(f) When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;

(g) When the CA’s findings are contrary to those by the trial court;

(h) When the findings are conclusions without citation of specific evidence on which they are based;

(i) When the facts set forth in the petition, as well as in the petitioner’s main and reply briefs, are not
disputed by the respondent;

(j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the
evidence on record; or

(k) When the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.27
Navaja failed to show that any of these circumstances is present.

It also bears emphasis that the factual findings of the appellate court generally are conclusive, and carry
even more weight when said court affirms the findings of the trial court, absent any showing that the
findings are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute
grave abuse of discretion.28 In this case, the CA, the RTC and the MCTC all agree that the issue of improper
venue was already resolved by the Regional State Prosecutor when he held that “there are sufficient
evidences (sic) indicating that the falsification took place in Jagna.”29 The Court perceives no compelling
reason to disturb such factual finding.

Anent Navaja's claim that the MCTC simply made reference to the findings of the Regional State Prosecutor
without specifying the factual and legal bases of its resolution, the Court finds that the RTC had squarely
addressed such issue as follows: chanRoble svirtual Lawlib ra ry

This court notes that in that particular resolution, reference was made to the sworn statement of Ms. Cherly
Lavaro who narrated that after she issued the receipt to Ms. Navaja, the latter borrowed her pen and in her
presence wrote something on the said receipt. The Regional State Prosecutor then concluded that Ms.
Lavaro's statement “describes an apparent scheme or pattern of altering receipts right after issuance. The
borrowing of the cashier's pen and the use thereof must have been intended to create an impression that
the receipt was prepared by the cashier herself.”

In the same affidavit, Ms. Lavaro corroborated the affidavit of another witness, which categorically states
that Ms. Navaja was in Jagna when the questioned receipt was issued.

If the court were to follow the logic of the petition, her claim that her request for reimbursement was made
in Cebu City not in Jagna, Bohol, would likewise give no showing or indication that the falsification was done
in Cebu City. In other words, the said contention would necessarily result in a “neither here no there”
situation.30
On Navaja's argument that the CA's reliance on Labarro's31 aforesaid statement in upholding the venue of
the case violates Section 34, Rule 130 of the Rules of Court,32 the Court holds that such evidentiary rule has
no bearing in determining the place where the crime was committed for purposes of filing a criminal
information which merely requires the existence of probable cause. In Fenequito v. Vergara, Jr.,33 the Court
expounded on the concept of probable cause in this wise: chanRoble svirtual Lawli bra ry
Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime has been committed and that respondent is
probably guilty thereof. The term does not mean "actual and positive cause" nor does it import absolute
certainty. It is merely based on opinion and reasonable belief. 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.

A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has
been committed by the suspects. It need not be based on clear and convincing evidence of guilt, not on
evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute
certainty of guilt. In determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of the rules of evidence of which he has no technical
knowledge. He relies on common sense. What is determined is whether there is sufficient ground to
engender a well-founded belief that a crime has been committed, and that the accused is probably guilty
thereof and should be held for trial. It does not require an inquiry as to whether there is sufficient evidence
to secure a conviction.34
Also, Navaja insists that the rule on venue should have been construed liberally in favor her favor as the
accused, and strictly against private respondent, given its purpose of preventing harassment and
inconvenience by compelling the accused to appear in a different court from that of the province where the
crime was committed. Yet, private respondent willfully chose to prosecute separately the other cases for
falsification of private document against her in different jurisdictions, namely, Cebu City, Bacolod City, Iloilo
City and Tagbilaran, Bohol, to harass and drain her financial resources, when all these criminal cases,
involving minimal amounts of actual damages,35 should have been filed in one (1) criminal jurisdiction to
avoid multiplicity of actions.

The Court overrules Navaja's assertions, and upholds the RTC's sound ruling thereon: chanRoble svirtual Lawlib ra ry

The petitioner's insistence that all the criminal complaints filed against her should be filed in one jurisdiction
would be a blatant violation of the law on jurisdiction as one cannot file a criminal case other than where the
offense was allegedly committed.

In short, if it so happens that several offenses are alleged to have been committed in different venues, then
it is just unfortunate that whatever complaints have to be filed, will have to filed in those different venues.
To do otherwise would be procedurally fatal.36
To stress, in criminal proceedings, improper venue is lack of jurisdiction because venue in criminal cases is
an essential element of jurisdiction.37 Unlike in a civil case where venue may be waived, this could not be
done in a criminal case because it is an element of jurisdiction. Thus, one cannot be held to answer for any
crime committed by him except in the jurisdiction where it was committed. Be that as it may, Section 5 (4),
Article VIII of the 1987 Constitution provides that the Court has the power to order a change of venue or
place of trial to avoid a miscarriage of justice. Consequently, where there are serious and weighty reasons
present, which would prevent the court of original jurisdiction from conducting a fair and impartial trial, the
Court has been mandated to order a change of venue so as to prevent a miscarriage of justice.38 That
private respondent filed several criminal cases for falsification in different jurisdictions, which unduly forced
Navaja to spend scarce resources to defend herself in faraway places can hardly be considered as compelling
reason which would prevent the MCTC from conducting a fair and impartial trial.

Besides, it is erroneous for Navaja to argue that the separate filing of the falsification cases she allegedly
committed in different jurisdictions would result in multiplicity of actions. Such separate filing of cases is
only consistent with the principles that there are as many acts of falsification as there are documents
falsified39 and that the venue of such cases is where the document was actually falsified40.

The Court now resolves the second and third procedural issues.

On the second issue, Navaja states that she did not commit a grave procedural error in filing a petition
for certiorari from the denial of her motion to quash. She posits that venue is an element of the jurisdiction
of the court over the subject matter of a criminal proceeding, and that lack of jurisdiction over the subject
matter may be interposed at any stage of the proceeding. Thus, even if a party fails to file a motion to
quash, the accused may still question the jurisdiction of the court later on, and such objection may be raised
or considered motu propio by the court at any stage of the proceeding or on appeal.

On the third issue, Navaja asserts that the Supreme Court has allowed the filing of a petition for certiorari to
question the denial of a motion to quash in cases where grave abuse of discretion was patently committed,
or when the lower court acted without or in excess of its jurisdiction. She claims that not only did the lower
court commit grave abuse of discretion in denying the motion to quash, but there is likewise the issue of
improper venue that need to be settled with finality and dispatch. In support of her assertion, she cites a
ruling41 that when the court has no jurisdiction at the time of the filing of the complaint, the court should
dismiss the case, instead of ordering its transfer.

Apropos to the second and third procedural issues is Querijero v. Palmes-Limitar42 where the Court
reiterated the fundamental principle that an order denying a motion to quash is interlocutory and, therefore,
not appealable, nor can it be the subject of a petition for certiorari, thus: chanRo blesvi rtua lLawl ib rary

In Zamoranos v. People, this Court emphasized that “a special civil action for certiorari is not the proper
remedy to assail the denial of a motion to quash an information. The established rule is that, when such an
adverse interlocutory order is rendered, the remedy is not to resort forthwith to certiorari, but to continue
with the case in due course and, when an unfavorable verdict is handed down, to take an appeal in the
manner authorized by law.”
On a number of occasions, however, Court had sanctioned a writ of certiorari as an appropriate remedy to
assail an interlocutory order in the following circumstances: chanRob lesvi rtual Lawli bra ry

(1) when the court issued the order without or in excess of jurisdiction or with grave abuse of discretion;

(2) when the interlocutory order is patently erroneous and the remedy of appeal would not afford adequate
and expeditious relief;

(3) in the interest of a more enlightened and substantial justice;

(4) to promote public welfare and public policy; and

(5) when the cases have attracted nationwide attention, making it essential to proceed with dispatch in the
consideration thereof.43

As can be gleaned from the Court's discussion on the substantive issue of the case, Navaja failed to prove
that any of the said special circumstances obtains in this case, let alone the grave abuse of discretion she
imputed against the MCTC. Hence, the CA did not err in affirming the RTC ruling that the MCTC correctly
denied her motion to quash.

Finally, the remaining factual issues raised by the parties need not be discussed further, as they are
properly resolved in due course of the proceedings in the instant case before the MCTC and, when an
unfavorable verdict is handed down, to take an appeal in the manner authorized by law.

WHEREFORE, the instant petition is DENIED. The Court of Appeals Decision dated August 28, 2007 and
the Resolution dated May 7, 2008 in CA G.R. SP No. 02353 are AFFIRMED.

SO ORDERED. cralawlawlibra ry

Velasco, Jr., (Chairperson), Villarama, Jr., Reyes, and Jardeleza, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 198755 June 5, 2013

ALBERTO PAT-OG, SR., Petitioner,

vs.
CIVIL SERVICE COMMISSION, Respondent.

DECISION
MENDOZA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, which
seeks to set aside the April 6, 2011 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
101700, affirming the April 11, 2007 Decision2 of the Civil Service Commission (CSC), which ordered
the dismissal of petitioner Alberto Pat-og, Sr. (Pat-og) from the service for grave misconduct.

The Facts

On September 13, 2003, Robert Bang-on (Bang-on), then a 14-year old second year high school
student of the Antadao National High School in Sagada, Mountain Province, tiled an affidavit-
complaint against Pat-og, a third year high school teacher of the same school, before the Civil
Service Commission-Cordillera Administrative Region (CSC-CAR).

Bang-on alleged that on the morning of August 26, 2003, he attended his class at the basketball
court of the school, where Pat-og and his third year students were also holding a separate class; that
he and some of his classmates joined Pat-og’s third year students who were practicing basketball
shots; that Pat-og later instructed them to form two lines; that thinking that three lines were to be
formed, he stayed in between the two lines; that Pat-og then held his right arm and punched his
stomach without warning for failing to follow instructions; and that as a result, he suffered stomach
pain for several days and was confined in a hospital from September 10-12, 2003, as evidenced by
a medico-legal certificate, which stated that he sustained a contusion hematoma in the hypogastric
area.

Regarding the same incident, Bang-on filed a criminal case against Pat-og for the crime of Less
Serious Physical Injury with the Regional Trial Court (RTC) of Bontoc, Mountain Province.

Taking cognizance of the administrative case, the CSC-CAR directed Pat-og to file his counter-
affidavit. He denied the charges hurled against him and claimed that when he was conducting his
Music, Arts, Physical Education and Health (MAPEH) class, composed of third year students, he
instructed the girls to play volleyball and the boys to play basketball; that he later directed the boys
to form two lines; that after the boys failed to follow his repeated instructions, he scolded them in a
loud voice and wrested the ball from them; that while approaching them, he noticed that there were
male students who were not members of his class who had joined the shooting practice; that one of
those male students was Bang-on, who was supposed to be having his own MAPEH class under
another teacher; that he then glared at them, continued scolding them and dismissed the class for
their failure to follow instructions; and that he offered the sworn statement of other students to prove
that he did not box Bang-on.

On June 1, 2004, the CSC-CAR found the existence of a prima faciecase for misconduct and
formally charged Pat-og.

While the proceedings of the administrative case were ongoing, the RTC rendered its judgment in
the criminal case and found Pat-og guilty of the offense of slight physical injury. He was meted the
penalty of imprisonment from eleven (11) to twenty (20) days. Following his application for probation,
the decision became final and executory and judgment was entered.

Meanwhile, in the administrative case, a pre-hearing conference was conducted after repeated
postponement by Pat-og. With the approval of the CSC-CAR, the prosecution submitted its position
paper in lieu of a formal presentation of evidence and formally offered its evidence, which included
the decision in the criminal case. It offered the affidavits of Raymund Atuban, a classmate of Bang-
on; and James Domanog, a third year high school student, who both witnessed Pat-og hit Bang-on
in the stomach.

For his defense, Pat-og offered the testimonies of his witnesses - Emiliano Dontongan (Dontongan),
a teacher in another school, who alleged that he was a member of the Municipal Council for the
Protection of Children, and that, in such capacity, he investigated the incident and came to the
conclusion that it did not happen at all; and Ernest Kimmot, who testified that he was in the
basketball court at the time but did not see such incident. Pat-og also presented the affidavits of
thirteen other witnesses to prove that he did not punch Bang-on.

Ruling of the CSC-CAR

In its Decision,3 dated September 19, 2006, the CSC-CAR found Pat-og guilty and disposed as
follows:

WHEREFORE, all premises told, respondent Alberto Pat-og, Sr., Teacher Antadao National High
School, is hereby found guilty of Simple Misconduct.

Under the Uniform Rules on Administrative Cases in the Civil Service, the imposable penalty on the
first offense of Simple Misconduct is suspension of one (1) month and one (1) day to six (6) months.

Due to seriousness of the resulting injury to the fragile body of the minor victim, the CSC-CAR
hereby imposed upon respondent the maximum penalty attached to the offense which is six months
suspension without pay.

The CSC-CAR gave greater weight to the version posited by the prosecution, finding that a blow was
indeed inflicted by Pat-og on Bang-on. It found that Pat-og had a motive for doing so - his students’
failure to follow his repeated instructions which angered him. Nevertheless, the CSCCAR ruled that
a motive was not necessary to establish guilt if the perpetrator of the offense was positively
identified. The positive identification of Pat-og was duly proven by the corroborative testimonies of
the prosecution witnesses, who were found to be credible and disinterested. The testimony of
defense witness, Dontongan, was not given credence considering that the students he interviewed
for his investigation claimed that Pat-og was not even angry at the time of the incident, contrary to
the latter’s own admission.

The CSC-CAR held that the actions of Pat-og clearly transgressed the proper norms of conduct
required of a public official, and the gravity of the offense was further magnified by the seriousness
of the injury of Bang-on which required a healing period of more than ten (10) days. It pointed out
that, being his teacher, Pat-og’s substitute parental authority did not give him license to physically
chastise a misbehaving student. The CSC-CAR added that the fact that Pat-og applied for probation
in the criminal case, instead of filing an appeal, further convinced it of his guilt.

The CSC-CAR believed that the act committed by Pat-og was sufficient to find him guilty of Grave
Misconduct. It, however, found the corresponding penalty of dismissal from the service too harsh
under the circumstances. Thus, it adjudged petitioner guilty of Simple Misconduct and imposed the
maximum penalty of suspension for six (6) months.

On December 11, 2006, the motion for reconsideration filed by Pat-og was denied for lack of merit.4

The Ruling of the CSC

In its Resolution,5 dated April 11, 2007, the CSC dismissed Pat-og’s appeal and affirmed with
modification the decision of the CSC-CAR as follows:

WHEREFORE, foregoing premises considered, the instant appeal is hereby DISMISSED. The
decision of the CSC-CAR is affirmed with the modification that Alberto Pat-og, Sr., is adjudged guilty
of grave misconduct, for which he is meted out the penalty of dismissal from the service with all its
accessory penalties of cancellation of eligibilities, perpetual disqualification from reemployment in
the government service, and forfeiture of retirement benefits.6

After evaluating the records, the CSC sustained the CSC-CAR’s conclusion that there existed
substantial evidence to sustain the finding that Pat-og did punch Bang-on in the stomach. It gave
greater weight to the positive statements of Bang-on and his witnesses over the bare denial of
Patog. It also highlighted the fact that Pat-og failed to adduce evidence of any ill motive on the part
of Bang-on in filing the administrative case against him. It likewise gave credence to the medico-
legal certificate showing that Bang-on suffered a hematoma contusion in his hypogastric area.

The CSC ruled that the affidavits of Bang-on’s witnesses were not bereft of evidentiary value even if
Pat-og was not afforded a chance to cross-examine the witnesses of Bang-on. It is of no moment
because the cross- examination of witnesses is not an indispensable requirement of administrative
due process.

The CSC noted that Pat-og did not question but, instead, fully acquiesced in his conviction in the
criminal case for slight physical injury, which was based on the same set of facts and circumstances,
and involved the same parties and issues. It, thus, considered his prior criminal conviction as
evidence against him in the administrative case.

Finding that his act of punching his student displayed a flagrant and wanton disregard of the dignity
of a person, reminiscent of corporal punishment that had since been outlawed for being harsh,
unjust, and cruel, the CSC upgraded Pat-og’s offense from Simple Misconduct to Grave Misconduct
and ordered his dismissal from the service.

Pat-og filed a motion for reconsideration, questioning for the first time the jurisdiction of CSC over
the case. He contended that administrative charges against a public school teacher should have
been initially heard by a committee to be constituted pursuant to the Magna Carta for Public School
Teachers.

On November 5, 2007, the CSC denied his motion for reconsideration.7 It ruled that Pat-og was
estopped from challenging its jurisdiction considering that he actively participated in the
administrative proceedings against him, raising the issue of jurisdiction only after his appeal was
dismissed by the CSC.

Ruling of the Court of Appeals

In its assailed April 6, 2011 Decision,8 the CA affirmed the resolutions of the CSC. It agreed that Pat-
og was estopped from questioning the jurisdiction of the CSC as the records clearly showed that he
actively participated in the proceedings. It was of the view that Pat-og was not denied due process
when he failed to cross-examine Bang-on and his witnesses because he was given the opportunity
to be heard and present his evidence before the CSC-CAR and the CSC.

The CA also held that the CSC committed no error in taking into account the conviction of Pat-og in
the criminal case. It stated that his conviction was not the sole basis of the CSC for his dismissal
from the service because there was substantial evidence proving that Pat-og had indeed hit Bang-
on.

In its assailed Resolution,9 dated September 13, 2011, the CA denied the motion for reconsideration
filed by Pat-og.

Hence, the present petition with the following

Assignment of Errors

WHETHER OR NOT RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF

DISCRETION WHEN IT AFFIRMED THE SUPREME PENALTY OF DISMISSAL FROM SERVICE
WITH FORFEITURE OF RETIREMENT BENEFITS AGAINST THE PETITIONER WITHOUT
CONSIDERING PETITIONER’S LONG YEARS OF GOVERNMENT SERVICE?

WHETHER OR NOT RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE OF

DISCRETION WHEN IT RULED THAT PETITIONER IS ESTOPPED FROM QUESTIONING THE
JURISDICTION OF THE CIVIL SERVICE COMMISSION TO HEAR AND DECIDE THE
ADMINISTRATIVE CASE AGAINST HIM?

WHETHER OR NOT RESPONDENT COURT OF APPEALS SERIOUSLY ERRED AND

COMMITTED GRAVE ABUSE OF DISCRETION IN DISMISSING THE APPEAL DESPITE LACK
OF SUBSTANTIAL EVIDENCE?

On Jurisdiction

Pat-og contends that Section 9 of Republic Act (R.A.) No. 4670, otherwise known as the Magna
Carta for Public School Teachers, provides that administrative charges against a public school
teacher shall be heard initially by a committee constituted under said section. As no committee was
ever formed, the petitioner posits that he was denied due process and that the CSC did not have the
jurisdiction to hear and decide his administrative case. He further argues that notwithstanding the
fact that the issue of jurisdiction was raised for the first time on appeal, the rule remains that
estoppel does not confer jurisdiction on a tribunal that has no jurisdiction over the cause of action or
subject matter of the case.

The Court cannot sustain his position.

The petitioner’s argument that the administrative case against him can only proceed under R.A. No.
4670 is misplaced.

In Puse v. Santos-Puse,10 it was held that the CSC, the Department of Education (DepEd) and the
Board of Professional Teachers-Professional Regulatory Commission (PRC) have concurrent
jurisdiction over administrative cases against public school teachers.

Under Article IX-B of the 1987 Constitution, the CSC is the body charged with the establishment and
administration of a career civil service which embraces all branches and agencies of the
government.11 Executive Order (E.O.) No. 292 (the Administrative Code of 1987)12 and Presidential
Decree (P.D.) No. 807 (the Civil Service Decree of the Philippines)13 expressly provide that the CSC
has the power to hear and decide administrative disciplinary cases instituted with it or brought to it
on appeal. Thus, the CSC, as the central personnel agency of the government, has the inherent
power to supervise and discipline all members of the civil service, including public school teachers.
Indeed, under Section 9 of R.A. No. 4670, the jurisdiction over administrative cases of public school
teachers is lodged with the investigating committee constituted therein.14 Also, under Section 23 of
R.A. No. 7836 (the Philippine Teachers Professionalization Act of 1994), the Board of Professional
Teachers is given the power, after due notice and hearing, to suspend or revoke the certificate of
registration of a professional teacher for causes enumerated therein.15

Concurrent jurisdiction is that which is possessed over the same parties or subject matter at the
same time by two or more separate tribunals. 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.16

Where concurrent jurisdiction exists in several tribunals, the body that first takes cognizance of the
complaint shall exercise jurisdiction to the exclusion of the others. In this case, it was CSC which first
acquired jurisdiction over the case because the complaint was filed before it. Thus, it had the
authority to proceed and decide the case to the exclusion of the DepEd and the Board of
Professional Teachers.17

In CSC v. Alfonso,18 it was held that special laws, such as R.A. No. 4670, do not divest the CSC of
its inherent power to supervise and discipline all members of the civil service, including public school
teachers. Pat-og, as a public school teacher, is first and foremost, a civil servant accountable to the
people and answerable to the CSC for complaints lodged against him as a public servant. To hold
that R.A. No. 4670 divests the CSC of its power to discipline public school teachers would negate
the very purpose for which the CSC was established and would impliedly amend the Constitution
itself.

To further drive home the point, it was ruled in CSC v. Macud19 that R.A. No. 4670, in imposing a
separate set of procedural requirements in connection with administrative proceedings against public
school teachers, should be construed to refer only to the specific procedure to be followed in
administrative investigations conducted by the DepEd. By no means, then, did R.A. No. 4670 confer
an exclusive disciplinary authority over public school teachers on the DepEd.

At any rate, granting that the CSC was without jurisdiction, the petitioner is indeed estopped from
raising the issue. Although the rule states that a jurisdictional question may be raised at any time,
such rule admits of the exception where, as in this case, estoppel has supervened.20 Here, instead of
opposing the CSC’s exercise of jurisdiction, the petitioner invoked the same by actively participating
in the proceedings before the CSC-CAR and by even filing his appeal before the CSC itself; only
raising the issue of jurisdiction later in his motion for reconsideration after the CSC denied his
appeal. This Court has time and again frowned upon the undesirable practice of a party submitting
his case for decision and then accepting the judgment only if favorable, but attacking it for lack of
jurisdiction when adverse.21

On Administrative Due Process

On due process, Pat-og asserts that the affidavits of the complainant and his witnesses are of
questionable veracity having been subscribed in Bontoc, which is nearly 30 kilometers from the
residences of the parties. Furthermore, he claimed that considering that the said affiants never
testified, he was never afforded the opportunity to cross-examine them. Therefore, their affidavits
were mere hearsay and insufficient to prove his guilt.

The petitioner does not persuade.

The essence of due process is simply to be heard, or as applied to administrative proceedings, a fair
and reasonable opportunity to explain one’s side, or an opportunity to seek a reconsideration of the
action or ruling complained of.22 Administrative due process cannot be fully equated with due
process in its strict judicial sense. In administrative proceedings, a formal or trial-type hearing is not
always necessary23 and technical rules of procedure are not strictly applied. Hence, the right to
cross-examine is not an indispensable aspect of administrative due process.24 The petitioner cannot,
therefore, argue that the affidavit of Bang-on and his witnesses are hearsay and insufficient to prove
his guilt.

At any rate, having actively participated in the proceedings before the CSC-CAR, the CSC, and the
CA, the petitioner was apparently afforded every opportunity to explain his side and seek
reconsideration of the ruling against him.1âwphi1

As to the issue of the veracity of the affidavits, such is a question of fact which cannot now be raised
before the Court under Rule 45 of the Rules of Court. The CSC-CAR, the CSC and the CA did not,
therefore, err in giving credence to the affidavits of the complainants and his witnesses, and in
consequently ruling that there was substantial evidence to support the finding of misconduct on the
part of the petitioner.

On the Penalty

Assuming that he did box Bang-on, Pat-og argues that there is no substantial evidence to prove that
he did so with a clear intent to violate the law or in flagrant disregard of the established rule, as
required for a finding of grave misconduct. He insists that he was not motivated by bad faith or ill will
because he acted in the belief that, as a teacher, he was exercising authority over Bang-on in loco
parentis, and was, accordingly, within his rights to discipline his student. Citing his 33 years in the
government service without any adverse record against him and the fact that he is at the edge of
retirement, being already 62 years old, the petitioner prays that, in the name of substantial and
compassionate justice, the CSC-CAR’s finding of simple misconduct and the concomitant penalty of
suspension should be upheld, instead of dismissal.

The Court agrees in part.

Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of

behavior. To constitute an administrative offense, misconduct should relate to or be connected with
the performance of the official functions and duties of a public officer. In grave misconduct, as
distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or
t1agrant disregard of an established rule must be manifest.25

Teachers are duly licensed professionals who must not only be competent in the practice of their
noble profession, but must also possess dignity and a reputation with high moral values. They must
strictly adhere to, observe, and practice the set of ethical and moral principles, standards, and
values laid down in the Code of Ethics of Professional Teachers, which apply to all teachers in
schools in the Philippines, whether public or private, as provided in the preamble of the said
Code.26 Section 8 of Article VIII of the same Code expressly provides that "a teacher shall not inflict
corporal punishment on offending learners."

Clearly then, petitioner cannot argue that in punching Bang-on, he was exercising his right as a
teacher in loco parentis to discipline his student. It is beyond cavil that the petitioner, as a public
school teacher, deliberately violated his Code of Ethics. Such violation is a flagrant disregard for the
established rule contained in the said Code tantamount to grave misconduct.
Under Section 52(A)(2) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service,
the penalty for grave misconduct is dismissal from the service, which carries with it the cancellation
of eligibility, forfeiture of retirement benefits and perpetual disqualification from reemployment in the
government service.27 This penalty must, however, be tempered with compassion as there was
sut1icient provocation on the part of Bang-on. Considering further the mitigating circumstances that
the petitioner has been in the government service for 33 years, that this is his first offense and that
he is at the cusp of retirement, the Court finds the penalty of suspension for six months as
appropriate under the circumstances.

WHEREFORE, the Court PARTIALLY GRANTS the petition and MODIFIES the April 6, 2011
Decision of the Court of Appeals in CA-G.R. SP No. 101700. Accordingly, Alberto Pat-og, Sr. is
found GUlLTY of Grave Misconduct, but the penalty is reduced from dismissal from the service to
SUSPENSION for SIX MONTHS.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
National Liga ng mga Barangay vs. Paredes,
439 SCRA 130
Posted by Pius Morados on November 13, 2011

(Admin Law, DILG-Liga ng mga Barangay, quasi-legislative power)

Facts: DILG, appointed as interim caretaker to administer and manage the affairs of the Liga ng mga
Barangay in giving remedy to alleged violations made by the incumbent officer of the Liga in the conduct
of their elections, issued 2 memorandum circulars which alter, modify, nullify or set aside the actions of
the Liga.

Petitioner contends that DILG’s appointment constitutes undue interference in the internal affairs of
the Liga, since the latter is not subject to DILG control and supervision. Respondent judge contends that
DILG exercises general supervisory jurisdiction over LGUs including the different leagues based on sec. 1
of Admin. Order No. 267 providing for a broad premise of the supervisory power of the DILG.

Issue: WON DILG Secretary as alter-ego of the President has power of control over the Liga ng mga
Barangay.

Held: No. Sec. 4, Art. X of the Constitution provides that the President of the Philippines shall exercise
general supervision over local government, which exclude the power of control. As the entity
exercising supervision over the Liga, the DILG’s authority is limited to seeing to it that the rules are
followed, but it cannot lay down such rules itself nor does it have the discretion to modify or replace the
same.