OFFICE OF THE OMBUDSMAN, Petitioner,
vs.
ANTONIO T. REYES, Respondent.
DECISION
LEONARDO – DE CASTRO, J.:
This Petition for Review on Certiorari1 under Rule 45 of the
Rules of Court seeks the reversal of the Decision2 dated July
4, 2005 and the Resolution3 dated October 27, 2005 of the
Court of Appeals in CA-G.R. SP No. 70571. The judgment of
the appellate court reversed and set aside the Decision4
dated September 24, 2001 and the Joint Order5 dated
February 15, 2002 of the Office of the Ombudsman for
Mindanao in OMB-MIN-ADM-01-170; while the appellate
court’s resolution denied the motion for reconsideration6
assailing its decision.
On January 11, 2001, Jaime B. Acero executed an affidavit
against herein respondent Antonio Reyes and Angelito
Peñaloza, who were the Transportation Regulation Officer
II/Acting Officer-in-Charge and Clerk III, respectively, of the
Land Transportation Office (LTO) District Office in Mambajao,
Camiguin. Acero narrated thus:
That, on January 10, 2001, at about 2:00 o’clock P.M. I went
to the Land Transportation Office, at Mambajao, Camiguin to
apply for a driver’s license;
That, I was made to take an examination for driver’s license
applicants by a certain Tata Peñaloza whose real name is
Angelito, a clerk in said office;
That, after the examination, [Peñaloza] informed me that I
failed in the examination; however if I am willing to pay
additional assessment then they will reconsider my
application and I am referring to [Peñaloza] and [Reyes];
That, I asked how much will that be and [Peñaloza] in the
presence of [Reyes] answered ₱680.00, so I agreed;
That, I then handed ₱1,000.00 to [Peñaloza] and [Peñaloza]
handed it to the cashier;
That, [Peñaloza] in turn handed to me the change of ₱320.00
only and a little later I was given the LTO Official Receipt No.
62927785 (January 10, 2001) but only for ₱180.00 which
O.R. serves as my temporary license for 60 days; and the
balance of ₱500.00 was without O.R. and retained by
Peñaloza;
That, I feel that the actuation of Antonio Reyes and Angelito
Peñaloza are fraudulent in that they failed to issue receipt for
the extra ₱500.00 paid to them; and [Reyes] know that I am
with [the Commission on Audit];
That, I execute this affidavit to file charges against the guilty
parties.7
Attached to Acero’s affidavit was the LTO Official Receipt No.
62927785, showing his payment of ₱180.00.8
The above affidavit was apparently filed with the Office of the
Provincial Prosecutor in Camiguin, but the same was later
referred9 to the Office of the Ombudsman-Mindanao. The
latter office thereafter ordered10 Reyes and Peñaloza to
submit their counter-affidavits within ten days from notice.
On June 19, 2001, Peñaloza filed his Counter-Affidavit.11 He
denied telling Acero that if the latter were willing to pay
additional costs, Reyes and Peñaloza would reconsider his
application. Peñaloza stated that he did administer the
examination to Acero but since he was very busy, he
requested their security guard, Dominador Daypuyat, to
check the answers of Acero using their answer guide. After
Daypuyat checked Acero’s paper, Peñaloza noted the score of
22/40. Peñaloza informed Acero of the failing grade and told
him that it was up to Reyes to decide on the matter. Acero
then went to the office of Reyes and after a few minutes, he
came back and returned his application documents to
Peñaloza. After examining the application form, Peñaloza saw
that the same did not contain Reyes’ signature but a plus sign
(+) and the number 27 beside the score of 22/40. Peñaloza
knew that it was Reyes who wrote the "+ 27" and the same
indicated that Acero had to pay additional costs in order to
pass the examination, as was done in the past.
Thereafter, when Peñaloza allegedly informed Reyes that
Acero was an auditor, the latter was summoned into Reyes’
office. Reyes asked if Acero wanted to retake the examination
or just pay the additional costs. Acero eventually said "yes"
and Peñaloza inferred that the former agreed to pay Reyes
the extra costs. Peñaloza recounted that Reyes instructed him
to prepare the driver’s license of Acero. Peñaloza gave
Acero’s application documents to Lourdes Cimacio, the senior
statistician, who processed the driver’s license. When the
cashier asked for Acero’s payment, the latter gave Peñaloza a
one-thousand-peso bill. The cashier, in turn, handed to
Peñaloza a change of ₱820.00. From the said amount,
Peñaloza gave to Acero ₱320.00, while ₱500.00 was given to
Reyes. Acero soon left the office. Peñaloza said that Acero
called their office not long after, asking for a receipt for the
₱500.00. Peñaloza then asked if Acero had not come to an
understanding with Reyes that a receipt would not be issued
for the additional cost. Acero insisted on a receipt then
hanged up. Peñaloza told Reyes of Acero’s demand and
Reyes told him to cancel the driver’s license. When told that
the same could not be done anymore, Reyes allegedly gave
Peñaloza ₱500.00, instructing the latter to return the money
to Acero under circumstances where nobody could see them.
Peñaloza stated that he waited for Acero to come back to
their office but the latter did not do so anymore.
Peñaloza also submitted in evidence the affidavit12 of Rey P.
Amper. Amper narrated that he started working at the LTO in
Mambajao, Camiguin in September 1988 as a driver-
examiner. In February 1994, Reyes became the acting Head
1
of Office, and eventually the Head of Office, of the LTO in
Mambajao. About four months thereafter, Reyes verbally
instructed Amper to send to him (Reyes) all the applicants for
driver’s licenses who failed the examinations. In case Reyes
was absent, the applicants were to wait for him.
Subsequently, Reyes gave Amper a piece of paper containing
the rates to be charged to the "applicant-flunkers" in addition
to the legal fees. Amper was also told to deliver the additional
payments to Reyes. Amper stated that his office table and
that of Reyes were located in one room. Reyes would
allegedly tell the applicant-flunkers to either re-take the
examinations or pay additional costs. In most cases, Amper
said that the applicant-flunkers would only be too willing to
pay the extra costs. Reyes would then instruct Amper to add
more points to applicant-flunkers’ scores, which meant that
Reyes and the applicants concerned had come to an
agreement for the payment of additional costs. Amper added
that the said practice of Reyes was a "goad to his conscience"
and he talked about it to Peñaloza. They allegedly reported
the matter to their District Representative Pedro Romualdo,
but the latter could only express his regrets for having
recommended Reyes to his position. The practice of Reyes of
claiming additional costs continued up to the time Amper left
the LTO. Amper declared that he knew that it was Reyes
alone who took and benefitted from his illegal exactions. The
employees of the LTO in Mambajao were purportedly aware
of the practice of Reyes but they were afraid to come out
against their Head of Office.
The affidavit13 of Margie B. Abdala was also presented by
Peñaloza. Abdala stated that she accompanied Peñaloza and
the latter’s wife, Ebony, to the house of Acero on January 13,
2001. Ebony urged Acero not to include Peñaloza anymore in
the complaint. Acero assured them that his complaint was
principally directed against Reyes for requiring him (Acero) to
pay additional costs for which he was not issued any official
receipt. Peñaloza brought with him Acero’s application form
for a driver’s license, which had already been approved by
Reyes, and he asked the latter to complete the same.
Peñaloza also tried to return the ₱500.00 from Reyes that
was not covered by a receipt. Acero, however, refused to fill
up the application form and to accept the money. When
Ebony asked why Acero agreed to pay the additional cost
required by Reyes, the latter answered that he did not
understand what was meant by additional cost.
On June 19, 2001, Reyes manifested14 that, for purposes of
the instant case, he was adopting the counter-affidavit he
filed in another Ombudsman case, docketed as OMB-MIN-01-
0090,15 as both cases involved the same parties and the
same incident.
In his counter-affidavit,16 Reyes claimed that Acero’s
complaint was a "blatant distortion of the truth and a mere
fabrication of the complainant."17 Reyes asserted that a
perusal of the affidavit-complaint revealed that the only
imputation against him was that Peñaloza allegedly told Acero
to pay ₱680.00 in his (Reyes’) presence. The affidavit
revealed that it was Peñaloza who processed the application
of Acero; the money was allegedly given to Peñaloza and it
was he who handed the change back to Acero; and he had
no participation and was not present when the money
changed hands. Reyes stated that when he conducted an
informal investigation on the complaint, Peñaloza admitted to
having pocketed the extra ₱500.00. Reyes allegedly
reprimanded Peñaloza and ordered the latter to return the
money to Acero. Based on the receipt submitted by Acero,
the same proved that as far as the LTO and Reyes were
concerned, what was received by the office was only
₱180.00. Reyes contended that he did not ask or receive
money from Acero and it was Peñaloza who pocketed the
₱500.00.
In an Order18 dated June 20, 2001, the Office of the
Ombudsman-Mindanao directed the parties to appear before
its office on July 11, 2001 for a preliminary conference. The
parties were to consider, among others, the need for a formal
investigation or whether the parties were willing to submit
their case for resolution on the basis of the evidence on
record and such other evidence as they will present at the
conference.
On July 6, 2001, Acero sent the Office of the Ombudsman-
Mindanao a telegram,19 stating that he was waiving his right
to avail of the preliminary conference.
On July 11, 2001, the Office of the Ombudsman-Mindanao
issued an Order,20 stating that none of the parties appeared
in the preliminary conference scheduled for that day. In view
of the non-appearance of the respondents therein, they were
considered to have waived their right to a preliminary
conference. The case was then deemed submitted for
decision.
On July 23, 2001, the counsel for Peñaloza informed the
Office of the Ombudsman-Mindanao that his client was
waiving his right to a formal investigation and was willing to
submit the case for resolution on the basis of the evidence on
record. Peñaloza also submitted the additional affidavit of one
of their witnesses, Rickie Valdehueza.
In his affidavit,21 Valdehueza stated that on January 5, 2001,
he applied for a driver’s license with the LTO in Mambajao,
Camiguin. He took an examination on that day, which was
conducted by an employee he later came to know as
Dominador Daypuyat. After the latter checked his test paper,
Valdehueza was told that he got a failing score. His
application was then turned over to Peñaloza, who told him
to see Reyes. Valdehueza said that Reyes advised him not to
retake the examination anymore and just pay ₱1,500.00.
Valdehueza bargained for ₱1,200.00 since he had no money
and Reyes agreed. Reyes then wrote the sign "+ 20" next to
Valdueza’s score of 30, such that what appeared on the test
paper was "30 + 20." Reyes returned the test paper and
instructed Valdehueza to tell Peñaloza to add "20" to his
score. Valdehueza went back to the LTO on January 10, 2001
bringing ₱1,200.00. Before he could go to Reyes’ office, he
was accosted by Daypuyat in the lobby who informed him
2
that his license was already completed. Daypuyat also took
₱700.00 to give to Reyes. Valdehueza gave ₱500.00 to the
cashier as payment for the ₱240.00 license fee. He told the
cashier to just give his change to Reyes.
On September 24, 2001, the Office of the Ombudsman-
Mindanao rendered a Decision in OMB-MIN-ADM-01-170,
adjudging Reyes guilty of grave misconduct and finding
Peñaloza guilty of simple misconduct. The pertinent portion of
the decision reads:
Here, as borne out of the record, there is no denying the fact
that [Acero] failed in the examination given for a driver’s
license, yet ultimately, herein complainant was granted a
temporary driver’s license. It is therefore very logical to
presume that something in between was agreed upon
between the applicant and the person charged with the grant
of license.
Based on the testimony of [Peñaloza] and corroborated by
the testimonies of Rey P. Amper (Record, pp. 31-32) and
Rickie Valdehueza (Record, pp. 44-45), [Reyes] would give
the flunker the option of retaking the examination or to
simply pay an additional cost to have a passing grade without
actually re-taking the same. As testified to by Rey P. Amper,
"xxx in almost all cases, the applicant-flunker would only be
too willing to pay the additional costs, in which case, Mr.
Reyes would instruct him to go back to my table. Then Mr.
Reyes would call me, saying: ‘Ray, just add more to his
score.’, which to me meant that he and the applicant-flunker
had come to an agreement to pay the ‘additional costs’." Mr.
Amper testifies further that this matter of extending a passing
grade to a flunker for a monetary consideration has been a
system within this LTO agency perpetrated by [Reyes] since
he assumed as Head of Office thereat.
Verily, [Reyes] took advantage of his position and office in
exacting the so-called additional cost from those who flunked
the examination. There is nowhere in the record authorizing
the Head of Office of the LTO to adjust a failing grade into a
passing grade. In addition, there is nowhere in the record
that supports the legality of collecting additional costs over
and above the legal fees. This is a pure and simple case of
extortion and certainly, such act is a breach of his oath of
office as well as a deliberate disregard of existing rules and
regulations. Based on the foregoing, this Office finds
respondent [Reyes] guilty of grave misconduct.
As regards [Peñaloza], while he may have helped or
facilitated in the collection of that additional costs, he could
not be as guilty as [Reyes].
Understandably, it is normal for a subordinate to keep mum
while an anomaly is going on specially when the perpetrator
is the Head of Office. There is fear in him and normally, such
subordinate would just "ride along", so to speak. But
nonetheless, [Peñaloza] has to be sanctioned. While the
infraction he had helped accomplished may not have been
voluntary on his part but as a public official, he should have
registered his objection regardless of the consequence that
may occur. Based on the foregoing, this Office finds
respondent [Peñaloza] guilty of simple misconduct.
WHEREFORE, there being substantial evidence, this Office
finds respondent Antonio T. Reyes guilty of grave misconduct
and he is hereby meted the penalty of DISMISSAL from the
service pursuant to Section 23(c) [Grave Offenses], Rule XIV
of the Rules Implementing Book V of Executive Order No.
292. Likewise, this Office finds respondent Angelito G.
Peñaloza guilty of Simple Misconduct and he is hereby meted
the penalty of SUSPENSION from office without pay for a
period of Six (6) months based on Section 23(b) [Less Grave
Offenses] Rule XIV of the Rules Implementing Book V of
Executive Order No. 292. In both instances, the execution of
the penalties imposed shall be made immediately after the
same shall have been final and executory.22
In their bid to challenge the above ruling, Reyes filed a
Motion for Reconsideration cum Motion to Set the Case for
Preliminary Conference,23 while Peñaloza filed a Motion for
Reconsideration.24 On February 15, 2002, the Office of the
Ombudsman-Mindanao issued a Joint Order,25 denying the
aforesaid motions of Reyes and Peñaloza.
Reyes elevated the case to the Court of Appeals via a Petition
for Review26 under Rule 43 of the Rules of Court, which
petition was docketed as CA-G.R. SP No. 70571.
In the assailed Decision dated July 4, 2005, the Court of
Appeals granted the petition of Reyes and reversed the
judgment of the Office of the Ombudsman-Mindanao. The
appellate court reasoned thus:
It must be pointed out that in the complaint-affidavit filed by
Acero, it was only Peñaloza who received the money and the
balance of P 500.00 which was without O.R. was retained by
Peñaloza. Nowhere in the complaint-affidavit could one find
the name of Reyes, herein petitioner, nor is it alleged there
that Reyes was around when Acero handed to Peñaloza the P
1000.00. From the evidence on record, it was, clearly, only
Peñaloza all along. Nowhere in the record is Reyes’ complicity
suggested or even slightly hinted.
xxxx
It does not appear on record that [Reyes] was the one who
ordered and received the "additional assessment". Rather, it
was Peñaloza alone who approached the complainant,
discussed about the "additional assessment", and retained
the balance of P 500 basing on the complaint-affidavit filed
by Acero.
We note with sadness that the counter-affidavit of Peñaloza,
of itself, was considered enough evidence by the
investigation officer in finding [Reyes] guilty of grave
misconduct, and dismissing him from government service.
The testimony of Peñaloza is, however, a self-serving
declaration considering that he is the co-respondent in the
3
Ombudsman case filed by Acero. Such a declaration which
was obviously made principally to save his own neck should
have been received with caution. This vital objection to the
admission of this kind of evidence is its hearsay character and
to permit its unqualified introduction in evidence would open
the door to frauds and perjuries.
It may be true that Reyes failed to attend the scheduled
preliminary conference where he could have refuted all the
hearsay evidence submitted against him. The introduction of
such as evidence does not, however, give them the probative
value which they did not bear in the first place. Hearsay
evidence, whether objected to or not, cannot be given
credence.
The self-serving evidence presented in the form of a counter-
affidavit by Peñaloza should not have been taken hook, line
and sinker, so to speak, for there was no way of ascertaining
the truth of their contents. Moreover, in the Motion for
Reconsideration dated November 13, 2001 [Reyes] claimed
that he was not furnished any copy of Peñaloza’s counter-
affidavit. Thus, admissions made by Peñaloza in his sworn
statement are binding only on him. Res inter alios acta alteri
nocere non debet. The rights of a party cannot be prejudiced
by an act, declaration or omission of another.
The charge of misconduct is a serious charge, a "capital
offense" in a manner of speaking, which may cause the
forfeiture of one’s right to hold a public office. Therefore, said
charge must be proven and substantiated by clear and
convincing evidence. Mere allegation will not suffice. It should
be supported by competent evidence, by substantial
evidence. We find the case against [Reyes] wanting in this
regard.
FOR THESE REASONS, the instant petition is GRANTED. The
decision dated 24 September 2001 and the Joint Order dated
15 February 2002 are REVERSED and SET ASIDE. [Reyes] is
hereby exonerated from the administrative charge for
insufficiency of evidence.27
The Office of the Ombudsman, through the Office of the
Solicitor General, filed a Motion for Reconsideration28 of the
Court of Appeals decision. The same was, however, denied in
the assailed Resolution dated October 27, 2005.
Hence, the Office of the Ombudsman (petitioner) filed the
instant petition, raising the following issues:
WITH DUE RESPECT, THE HONORABLE COURT OF APPEALS,
IN NULLIFYING THE D E C I S I O N OF THE OMBUDSMAN,
DECIDED A QUESTION OF SUBSTANCE CONTRARY TO LAW
AND APPLICABLE JURISPRUDENCE IN THAT:
(i) It re-examined and weighed the evidence submitted in the
administrative proceedings and worse, substituted its
judgment for that of the Ombudsman; and,
(ii) It made a conclusion that substantial evidence does not
exist to warrant a finding of administrative culpability on the
part of respondent Reyes.29
In essence, the fundamental issue in the instant case is
whether the charge of grave misconduct against Reyes was
sufficiently proven by substantial evidence. Petitioner settled
this issue in the affirmative, while the Court of Appeals ruled
otherwise.
In Salazar v. Barriga,30 the Court characterized the
administrative offenses of misconduct and grave misconduct
as follows:
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 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 flagrant disregard of established rule must be
manifest. Corruption as an element of grave misconduct
consists in the act of an official who unlawfully or wrongfully
uses his station or character to procure some benefit for
himself, contrary to the rights of others.31
Here, petitioner adjudged Reyes guilty of grave misconduct
after finding that Reyes, being then the Head of Office of the
LTO in Mambajao, Camiguin, illegally exacted money from
Acero in exchange for the issuance of a driver’s license to the
latter, notwithstanding that Acero did not pass the requisite
written examination therefor.
In assailing the judgment of the Court of Appeals, petitioner
avers that the findings of fact of the Office of the
Ombudsman are entitled to great weight and must be
accorded full respect and credit as long as they are supported
by substantial evidence. Petitioner argues that it is not the
task of the appellate court to weigh once more the evidence
submitted before an administrative body and to substitute its
own judgment for that of the administrative agency with
respect to the sufficiency of evidence.
Indeed, Section 27 of Republic Act No. 6770 mandates that
the findings of fact by the Office of the Ombudsman are
conclusive when supported by substantial evidence.32 In
administrative and quasi-judicial proceedings, only substantial
evidence is necessary to establish the case for or against a
party. Substantial evidence is more than a mere scintilla of
evidence. It is that amount of relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion, even if other minds, equally reasonable, might
conceivably opine otherwise.33
Dadulo v. Court of Appeals34 reiterates that in reviewing
administrative decisions, it is beyond the province of this
Court to weigh the conflicting evidence, determine the
4
credibility of witnesses, or otherwise substitute its judgment
for that of the administrative agency with respect to the
sufficiency of evidence. However, while it is not the function
of the Court to analyze and weigh the parties' evidence all
over again, an exception thereto lies as when there is serious
ground to believe that a possible miscarriage of justice would
thereby result.
After carefully perusing the records of this case, we find that
the above-cited exception, rather than the general rule,
applies herein. Otherwise stated, the Court deems it proper
that a review of the case should be made in order to arrive at
a just resolution.
In the main, the evidence submitted by the parties in OMB-
MIN-ADM-01-170 consisted of their sworn statements, as well
as that of their witnesses. In the affidavit of Acero, he
categorically identified both Reyes and Peñaloza as the
persons who had the prerogative to reconsider his failed
examination, provided that he paid an additional amount on
top of the legal fees. For his part, Peñaloza ostensibly
admitted the charge of Acero in his counter-affidavit but he
incriminated Reyes therein as the mastermind of the illicit
activity complained of. To corroborate this allegation,
Peñaloza submitted the affidavits of Amper and Valdehueza.
Amper was a former LTO employee who allegedly had first-
hand knowledge of the practice of Reyes of imposing and
pocketing additional fees; while Valdehueza declared that he
was an applicant for a driver’s license who was likewise made
to pay the said additional fees to Reyes. Upon the other
hand, Reyes’ counter-affidavit repudiated the allegations of
Acero, insisting that it was Peñaloza who illegally took the
amount of ₱500.00 from Acero.
Reyes faults petitioner for placing too much reliance on the
counter-affidavit of Peñaloza, as well as the affidavits of
Amper and Valdehueza. Reyes claims that he was not
furnished a copy of the said documents before petitioner
rendered its Decision dated September 24, 2001. Reyes, thus,
argues that his right to due process was violated. Petitioner,
on the other hand, counters that Reyes was afforded due
process since he was given all the opportunities to be heard,
as well as the opportunity to file a motion for reconsideration
of petitioner’s adverse decision.
On this point, the Court finds merit in Reyes’ contention.
Ledesma v. Court of Appeals35 elaborates on the well
established doctrine of due process in administrative
proceedings as follows:
Due process, as a constitutional precept, does not always and
in all situations require a trial-type proceeding. Due process is
satisfied when a person is notified of the charge against him
and given an opportunity to explain or defend himself. In
administrative proceedings, the filing of charges and giving
reasonable opportunity for the person so charged to answer
the accusations against him constitute the minimum
requirements of due process. The essence of due process is
simply to be heard, or as applied to administrative
proceedings, an opportunity to explain one’s side, or an
opportunity to seek a reconsideration of the action or ruling
complained of.36
Moreover, Department of Health v. Camposano37 restates
the guidelines laid down in Ang Tibay v. Court of Industrial
Relations38 that due process in administrative proceedings
requires compliance with the following cardinal principles: (1)
the respondents’ right to a hearing, which includes the right
to present one’s case and submit supporting evidence, must
be observed; (2) the tribunal must consider the evidence
presented; (3) the decision must have some basis to support
itself; (4) there must be substantial evidence; (5) the decision
must be rendered on the evidence presented at the hearing,
or at least contained in the record and disclosed to the
parties affected; (6) in arriving at a decision, the tribunal
must have acted on its own consideration of the law and the
facts of the controversy and must not have simply accepted
the views of a subordinate; and (7) the decision must be
rendered in such manner that respondents would know the
reasons for it and the various issues involved.39
In the present case, the fifth requirement stated above was
not complied with.1avvphi1 Reyes was not properly apprised
of the evidence offered against him, which were eventually
made the bases of petitioner’s decision that found him guilty
of grave misconduct.
To recall, after the affidavit of Acero was filed with the Office
of the Ombudsman-Mindanao, the respondents therein, i.e.,
Reyes and Peñaloza, were ordered to submit their counter-
affidavits in order to discuss the charges lodged against
them. While Peñaloza acknowledged in his counter-affidavit
his participation in the illicit transaction complained of, he
pointed to Reyes as the main culprit. Peñaloza thereafter
submitted the affidavits of Amper and Valdehueza as
witnesses who would substantiate his accusations. However,
the records reveal that only the Office of the Ombudsman-
Mindanao and Acero were furnished copies of the said
affidavits.40 Thus, Reyes was able to respond only to the
affidavit of Acero. It would appear that Reyes had no idea
that Peñaloza, a co-respondent in the administrative case,
would point an accusing finger at him and even supply the
inculpatory evidence to prove his guilt. The said affidavits
were made known to Reyes only after the rendition of the
petitioner’s Decision dated September 24, 2001.
The fact that Reyes was able to assail the adverse decision of
the petitioner via a Motion for Reconsideration Cum Motion to
Set the Case for Preliminary Conference did not cure the
violation of his right to due process in this case. Reyes filed
the said motion precisely to raise the issue of the violation of
his right to due process. There is nothing on record to show
that Reyes was furnished with, or had otherwise received, a
copy of the affidavits of Peñaloza, Amper and Valdehueza,
whether before or after the Decision dated September 24,
2001 was issued. Thus, it cannot be said that Reyes had a
5
fair opportunity to squarely and intelligently answer the
accusations therein or to offer any rebuttal evidence thereto.

It is true that, in the past, this Court has held that the right to
due process of a respondent in an administrative case was
not violated if he was able to file a motion for reconsideration
to refute the evidence against him. However, the instant case
should be differentiated from Ruivivar v. Office of the
Ombudsman,41 which likewise involved the issue of
administrative due process. In the said case, Ruivivar was
found administratively liable for discourtesy in the course of
her official functions and was meted the penalty of
reprimand. In her motion for reconsideration, Ruivivar argued
that she was deprived of due process because she was not
furnished copies of the affidavits of complainant’s witnesses.
Thereafter, the Ombudsman ordered that Ruivivar be
furnished with copies of the affidavits of the witnesses, with
the directive for her to file any pleading that she may deem
appropriate. As Ruivivar still opted not to controvert the
affidavits that were belatedly provided to her, the
Ombudsman ruled that her right to due process was not
violated and her administrative liability was upheld. The Court
affirmed the ruling of the Ombudsman, declaring that "the
law can no longer help one who had been who had been
given ample opportunity to be heard but who did not take full
advantage of the proffered chance."42

In the instant case, petitioner plainly disregarded Reyes’

protestations without giving him a similar opportunity, as in
Ruivivar, to be belatedly furnished copies of the affidavits of
Peñaloza, Amper and Valdehueza to enable him to refute the
same. As it were, petitioner rendered its Decision dated
September 24, 2001 on the basis of evidence that were not
disclosed to Reyes. This the Court cannot sanction. A
judgment in an administrative case that imposes the extreme
penalty of dismissal must not only be based on substantial
evidence but also rendered with due regard to the rights of
the parties to due process.

WHEREFORE, the Decision dated July 4, 2005 and the

Resolution dated October 27, 2005 of the Court of Appeals in
CA-G.R. SP No. 70571, as well as the Decision dated
September 24, 2001 and the Joint Order dated February 15,
2002 of the Office of the Ombudsman in OMB-MIN-ADM-01-
170, are hereby REVERSED and SET ASIDE.

The records of OMB-MIN-ADM-01-170 are REMANDED to the

Office of the Ombudsman, which is hereby ordered (a) to
furnish respondent Antonio T. Reyes copies of the affidavits
of Angelito G. Peñaloza, Rey P. Amper and Rickie Valdehueza,
and (b) to conduct further proceedings in OMB-MIN-ADM-01-
170 as may be appropriate.

No pronouncement as to costs.

SO ORDERED.

6
G.R. No. 175201 April 23, 2008
HONORABLE OMBUDSMAN SIMEON V. MARCELO,
petitioner,
vs.
LEOPOLDO F. BUNGUBUNG and HON. COURT OF
APPEALS, respondents.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rule 45 of
the Revised Rules of Court, whereby petitioner Office of the
Ombudsman (Ombudsman) prays for the reversal of the
Decision1 dated 30 June 2006 and Resolution2 dated 26
October 2006 of the Court of Appeals in CA-G.R. SP No.
89689 which, in turn, reversed and set aside the
Ombudsman's Orders dated 11 January 2005 and 28 April
2005 in OMB-ADM-0-01-0502. The Ombudsman found
respondent Leopoldo F. Bungubung (Bungubung)
administratively liable for grave misconduct, dismissing him
from the service and imposing the accessory penalties of
cancellation of eligibility, forfeiture of retirement benefits, and
his perpetual disqualification from reemployment in
government service.
The Hon. Simeon V. Marcelo represented the Ombudsman,
with powers and functions provided under Article XI, Section
13 of the 1987 Constitution and the provisions of Republic Act
No. 6770, otherwise known as the Ombudsman Act of 1989.
Bungubung is the Manager of the Port District Office (PDO) of
Manila, Philippine Ports Authority (PPA), South Harbor, Port
Area, Manila. He is also the Chairman of the Ports District
Security Bids and Awards Committee (PDSBAC) of the PPA.
On 24 September 2001, Roberto C. Doromal (Doromal), the
President of Combat Security & Executive Protection Agency
(CSEPA), a security agency that participated in the bidding for
security services for the PPA, filed a Complaint-Affidavit3
dated 7 September 2001 against Bungubung before PPA
Resident Ombudsman Manolo M. Mabini, alleging as follows:
3. That sometime in June 1995, my aforesaid wife was
instrumental in negotiating and concluding a contract for
Security Services with the Philippine Ports Authority (PPA),
more particularly at the Port District of Manila (PDO-Manila)
for two (2) years starting August 1, 1995;
xxxx
6. That after a service contract was signed by PPA and this
agency on January 28, 1999, the Port District Manager of
PDO-Manila, Mr. Leopoldo Bungubung and other PPA officials
asked for certain amounts from my said wife as "balato" for
winning the award where (sic) the latter obliged herself to
give;
7. That initially, Mr. Leopoldo Bungubung and other PPA
officials demanded amounts ranging from P10,000 a month
down to P2,000 for him (Bungubung) and his subordinates,
respectively; and my wife directed our staff, particularly the
Billing and Collection Clerk and Cashier to include in our
records and books of account these disbursements as
"Representation expense";
8. That when my late wife died on May 3, 2000, the same
arrangement was pursued and carried over through the
period that I was already the one dealing with PPA, and that,
sometime in late April 2000, when the security force was
increased to 184 Security guards at North Harbor-Special
Take-Over Unit (STU), the amount demanded by Mr.
Bungubung was also increased to P40,000 a month and
sometimes P50,000;
xxxx
10. That sometime in late February, 2001, one of office staff
received a telephone call from a certain Capt. Valenzuela of
the Port Police Dept. of PPA and because I was not around,
said Capt. Valenzuela left a message advising me to see Mr.
Leopoldo Bungubung for some important matters;
11. That upon receipt of the advise (sic) from my office staff,
I went to PPA, with my secretary, Ms. Evalyn Cruz, to see Mr.
Leopoldo Bungubung at his office located at old PNR Bldg.,
South Harbor, Port Area, Manila and at the same time
personally delivered a sum of money amounting to P50,000
as earlier requested by him (Bungubung).
12. That during the course of my conversation with Mr.
Leopoldo Bungubung after giving the P50,000, he asked from
me a vehicle, Mitsubishi Pajero (late model) van, to be due
and delivered supposedly to him in the middle part of March
2001 while there is no award of the winning bidder yet; and
that I asked the said Bid Committee Chairman, Mr.
Bungubung to give me a grace period of two (2) months to
produce what he was asking from me. Unfortunately,
however, due to the expensive value of the said Pajero van, I
was not able to deliver. Hence, on March 30, 2001, I was
served a Notice of Award of the winning bidder which is STAR
SPECIAL WATCHMAN & DETECTIVE AGENCY, INC. an agency
comparatively smaller than mine;
13. That taking a cue from the Pajero van being asked, I
instructed my men to conduct an investigation and there,
they found a late model Pajero van with Plate No. WLA-674
parked in from of the residence of Mr. Leopoldo Bungubung
and later verified to have been registered and transferred on
12 March 2001 under the name of Mr. Norman Vincent
Bungubung, son of Chairman Bungubung at #45 Buencamino
St., BF Homes, Paranaque City.4
In support of the allegations in his Complaint-Affidavit,
Doromal submitted an affidavit of his secretary Evalyn Cruz
(Cruz) and an alleged "blue book" of CSEPA. Cruz recounted
in her affidavit another incident wherein she personally
7
handed over the amount of P50,000.00 cash to Bungubung at
his office on 16 January 2001. The CSEPA blue book
purportedly detailed monthly balato or payola paid to PPA
officials from July 2000 to February 2001, recorded therein as
representation expenses. It was allegedly prepared by a
certain Evalyn M. Ebora (Ebora), and approved by Doromal.
Thereafter, PPA Resident Ombudsman Mabini released a
Memorandum/Investigation Report5 dated 25 September
2001, recommending the following:
a. That criminal complaint be filed against Mr. Leopoldo F.
Bungubung for violation of Section 3(b) of R.A. 3019; Section
7(d) of R.A. 6713 and Art. 211 of the RPC for demanding and
receiving "balato" from COMBAT in the total amount of
P320,000 more or less;
b. That likewise, an administrative complaint be filed against
Mr. Leopoldo F. Bungubung for Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service arising
from the above criminal act;
c. That Mr. Leopoldo F. Bungubung be placed under
Preventive Suspension for a period of six (6) months without
pay pursuant to Section 24 of R.A. 6770.
From the foregoing, the following complaints were filed
against Bungubung before the Ombudsman: (1) an
administrative complaint for Grave Misconduct and Conduct
Prejudicial to the Best Interest of the Service, docketed as
OMB-ADM-0-01-0502 (OMB-0-01-0793); and (2) a criminal
complaint for violation of Section 3(b) of the Anti-Graft and
Corrupt Practices Act, docketed as OMB-0-01-0793.
After the parties submitted the required pleadings, a
preliminary conference was held on 21 February 2002 in
OMB-ADM-0-01-0502, the administrative case. Bungubung
manifested therein that he was submitting the case for
resolution. Doromal, however, was still undecided on whether
to opt for the conduct of a formal investigation or to submit
the case for resolution at once. In a Manifestation filed on 25
February 2002, Doromal informed the Ombudsman that he
was opting instead for the conduct of a formal investigation
for purposes of submission of evidence and affidavits of
witnesses.6
Doromal's aforecited manifestation notwithstanding, the
Ombudsman, in an Order dated 6 March 2002, through Graft
Investigation Officer II Joselito P. Fangon, ordered the
submission of the case for resolution.
The parties were then required to submit their respective
Memoranda.
On 28 November 2002, Graft Investigation Officer II Fangon
drafted a Decision7 which recommended the dismissal of the
administrative case against Bungubung, without prejudice to
its re-filing.
However, Ombudsman Marcelo disapproved Graft
Investigation Officer II Fangon's 28 November 2002 Decision,
and issued another Order8 dated 11 January 2005 finding
Bungubung liable for grave misconduct (which absorbed the
lesser offense of conduct prejudicial to the best interest of
the service) and ordering Bungubung's dismissal from service,
together with the accessory penalties of cancellation of
eligibility, forfeiture of retirement benefits, and respondent's
perpetual disqualification from reemployment in government
service. The dispositive part of Ombudsman Marcelo's 11
January 2005 Order reads:
WHEREFORE, the 28 November 2002 Decision prepared by
the former Administrative Adjudication Bureau (AAB), this
Office, recommending the dismissal (without prejudice to its
re-filing) of the administrative complaint against [Bungubung]
is hereby DISAPPROVED.
Respondent LEOPOLDO F. BUNGUBUNG, Port District
Manager, Manila Port District, Philippine Ports Authority, is
hereby found liable for Grave Misconduct and, as such, is
DISMISSED from the service. The penalty of dismissal shall
carry with it the accessory penalties of cancellation of
eligibility, forfeiture of retirement benefits, and
[Bungubung's] perpetual disqualification from reemployment
in the government service.
In the interim, the Ombudsman issued an Order9 dated 10
September 2003 in OMB-0-01-0793, for the filing of the
criminal complaint against Bungubung, after finding that
there was probable cause to indict him for violation of Section
3(b) of the Anti-Graft and Corrupt Practices Act.10
The Ombudsman took into consideration its aforementioned
10 September 2003 Order in OMB-0-01-0793, when it found
in OMB-ADM-0-01-0502 that Bungubung took advantage of
his position as Chairman of the PDSBAC of the PPA, using it
as leverage in soliciting cash and a Mitsubishi Pajero van from
the bidders as consideration for the award of the security
contract. According to the Ombudsman, such actuations
constitute conduct grossly prejudicial to the best interest of
the service. It rejected Bungubung's denial and instead gave
credence to the attestation of Cruz that she personally
delivered the P50,000.00 to Bungubung.
Bungubung filed a Motion for Reconsideration11 of the 11
January 2005 Order of the Ombudsman in OMB-ADM-0-01-
0502, but it was denied by the Ombudsman in another
Order12 dated 28 April 2005, to wit:
WHEREFORE, the Motion for Reconsideration dated 21
January 2005 filed by respondent Leopoldo F. Bungubung is
DENIED. The Order dated 11 January 2005 finding him liable
for Grave Misconduct thereby ordering him dismissed from
the service, together with its accessory penalties, is hereby
AFFIRMED.
Bungubung then sought recourse to the Court of Appeals via
a Petition for Review under Rule 43 of the 1997 Rules of Civil
8
Procedure, docketed as CA-G.R. SP No. 89689. He asserted
therein that the Ombudsman erred in (a) holding that there
was substantial evidence to make him liable for grave
misconduct, resulting in his dismissal from service and
imposition upon him of the accessory penalties; and (b)
ordering him dismissed from the service, when the
Constitution merely empowered said office to make a
recommendation of dismissal. Pending resolution of CA-G.R.
SP No. 89689 by the Court of Appeals, Bungubung filed
therein a Motion for Issuance of a Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction to enjoin
the Ombudsman and the PPA General Manager from
implementing the Order dated 11 January 2005 which
dismissed him from service.13 The Court of Appeals granted
the TRO on 3 June 2005.14
In the meantime, Doromal executed an Ex-Parte
Manifestation and Motion to Withdraw Complaint15 dated 18
August 2005 and an Affidavit of Desistance16 dated 23
August 2005, which he filed before the Ombudsman. In his
Ex-Parte Manifestation and Motion to Withdraw Complaint
and Affidavit of Desistance, Doromal expressed his desire to
withdraw his Complaint-Affidavit against Bungubung and
desist from the continuance of both OMB-ADM-0-01-0502 and
OMB-0-01-0793. Doromal explicitly admitted in said
documents that his allegations in the administrative and
criminal complaints against Bungubung were all fabricated.
He further confessed that Bungubung never demanded or
received any balato from him or his wife in exchange for the
award of the PPA security service contract; nor did
Bungubung ask for a Mitsubishi Pajero van from him.
On 30 June 2006, the Court of Appeals issued a Decision in
CA-G.R. SP No. 89689 ruling in Bungubung's favor, and
reversing and setting aside the Orders dated 11 January 2005
and 28 April 2005 of the Ombudsman. It further absolved
Bungubung from liability for the charge of grave misconduct,
finding no substantial evidence that Bungubung committed
the same.
According to the appellate court:
There is merit in the petition.
Indeed, there is absence of substantial evidence to hold
[Bungubung] liable for grave misconduct.
To begin with, [Doromal] and his witness failed to appear at
the preliminary conference on February 21, 2005 to attest to
the truth of the contents of their affidavits. For such failure,
their affidavits are inadmissible as they are hearsay evidence.
xxxx
By not appearing at the preliminary conference and affirming
their affidavits, We can not readily conclude that the contents
thereof are true. It is highly probable that [Doromal] is only
sour graping for losing the PPA 2001 service contract. As
early as January 18, 2001, the bids for the 2001 service
contract were already opened and authenticated. Thus, it can
not be said that the bids were manipulated or rigged to
favour somebody.
While rules of procedure do not strictly apply to
administrative cases as long as defendant's right to due
process is not violated, its liberal application in administrative
cases does not allow admission of hearsay evidence, i.e.
affidavits not identified by affiants, as this would violate the
constitutional right of petitioner to due process and his
substantive right not to be adjudged guilty on the basis of
hearsay evidence.
xxxx
In the instant case, [Bungubung], in denying the assertion of
Evalyn Cruz in her affidavit that she gave him P50,000.00,
and in describing her claim as a self-serving fabrication, is
positive evidence that what she claimed did not occur. This
holds true with respect to [Bungubung's] positive denial of
[Doromal's] assertion that he gave [Bungubung] another
P50,000.00 in late February 2001 and that he also demanded
a late model Pajero from [Doromal].
[The Ombudsman] accepted as credible [Doromal's] claim
that [Bungubung] asked for a late model Pajero in exchange
for the 2001 security service contract. x x x
The following must, however, be considered:
1. The rule on positive and negative testimonies do not apply
where a person who is in a position to know if a fact occurred
denies that it did. This is positive denial which has the same
weight as a contrary assertion.
2. The finding that the van was acquired after the failed
solicitation and before the award readily assumes as true
private respondent's bare assertion that petitioner asked him
for a van.
Allegedly taking cue from his failure to deliver a Pajero van,
[Doromal] had [Bungubung's] home cased and saw a Pajero
in front of his house. If this is the case, why was this not
mentioned by [Doromal] when he filed a civil case to stop the
award of the security service contract on ground of
irregularities in the bidding? Neither was this matter brought
up during the hearing on the application for a TRO.
[Doromal] only brought up this matter about a Pajero in his
affidavit-complaint of September 7, 2001 after hearing that
[Bungubung's] son has a newly-bought Pajero.
1. [Bungubung] presented proof that on May 4, 2001,
[Doromal] filed a false "hit-and-run" report involving the
Pajero with plate WLA 674 of [Bungubung's] son. This shows
the extent that [Doromal] would go just to spite
[Bungubung].
2. The President of Star Security Agency declared under oath
that he did not give [Bungubung] any Pajero;
9

3. The Pajero was acquired by [Bungubung's] son from a
certain Teresito Uy as evidenced by a notarized deed of sale;
4. It is unfair to assume that [Bungubung's] son could not
afford the price of a used Pajero. He put up a glass and
aluminum business after getting married.
From the foregoing, [the Ombudsman] should have dismissed
the complaint for lack of substantial evidence to support it.
The fallo of the Court of Appeals' 30 June 2006 Decision
reads:
WHEREFORE, the petition for review is GRANTED and GIVEN
DUE COURSE. The Orders17 of the Ombudsman dated
January 11, 200[5] and April 28, 200[5] are reversed and set
aside and a new one issued absolving petitioner from liability
for the charge of grave misconduct.18
The Ombudsman filed a Motion for Reconsideration of the
afore-quoted Decision, which the appellate court denied in its
Resolution dated 26 October 2006 for lack of merit, thus:
Notably, the issues raised in the motion have already been
thoroughly threshed out and passed upon in the assailed
decision. No novel or new matters were introduced therein.
The disquisition made by the Supreme Court in Dela Cruz vs.
Department of Education, Culture and Sports-Cordillera
Administrative Region is most helpful, "We have long held
that affidavits are deemed hearsay evidence because the
adverse party is deprived of the opportunity to cross-examine
the affiants. Hence, affidavits are generally deemed
inadmissible or rejected outright unless the affiants
themselves are placed on the witness stand to testify
thereon.
WHEREFORE, in view of the foregoing, the instant Motion for
Reconsideration is DENIED for lack of merit.19
Consequently, the Ombudsman filed this Petition for Review
on Certiorari under Rule 45 of the Revised Rules of Court
based on the following grounds:
I.
THE RELIANCE BY THE OMBUDSMAN ON THE AFFIDAVITS
OF ROBERTO DOROMAL AND HIS WITNESS IN
DETERMINING [BUNGUBUNG]'S ADMINISTRATIVE LIABILITY
WAS PROPER. IT DID NOT DEPRIVE [BUNGUBUNG] OF DUE
PROCESS;
II.
THE FINDING OF ADMINISTRATIVE OFFENSE FOR GRAVE
MISCONDUCT AGAINST [BUNGUBUNG] IS SUPPORTED BY
SUBSTANTIAL EVIDENCE;
III.
AS CONSEQUENTLY HELD BY THE SUPREME COURT, THE
FINDINGS OF THE OMBUDSMAN DESERVE GREAT WEIGHT,
AND MUST BE ACCORDED FULL RESPECT AND CREDIT.
The Ombudsman prays that this Court render a Decision
nullifying and setting aside the Decision dated 30 June 2006
and Resolution dated 26 October 2006 of the Court of
Appeals in CA-G.R. SP No. 89689, and affirming the
Ombudsman's Orders dated 11 January 2005 and 28 April
2005 in OMB-ADM-0-01-0502 which found Bungubung guilty
of Grave Misconduct and dismissing him from service with all
the accessory penalties incident thereto.
Bungubung counters that the Court of Appeals correctly held
that there was no substantial evidence to hold him liable for
grave misconduct; and that the reliance by the Ombudsman
on the affidavits of Doromal and Cruz in determining his
administrative liability, despite the fact that the contents
thereof were not personally attested to by the affiants before
the Ombudsman, was a clear violation of his right to due
process. He also avers that the Court of Appeals was correct
in giving credence to the Ex-Parte Manifestation and Motion
to Withdraw the Complaint and Affidavit of Desistance, filed
by Doromal with the Ombudsman in August 2005, as proof of
Bungubung's lack of culpability.
The present Petition must fail.
Before proceeding to the merits of the instant Petition, this
Court deems it necessary to first address the allegation of
Bungubung that he was denied due process by the
Ombudsman. The fact that no formal hearing took place is
not sufficient ground to say that due process was not
afforded Bungubung. It is well-settled that in administrative
proceedings, including those before the Ombudsman, cases
may be submitted for resolution on the basis of affidavits and
pleadings. The standard of due process that must be met in
administrative tribunals allows a certain degree of latitude as
long as fairness is not ignored. It is, therefore, not legally
objectionable for being violative of due process for an
administrative agency to resolve a case based solely on
position papers, affidavits or documentary evidence
submitted by the parties as affidavits of witnesses may take
the place of their direct testimonies.20 Undoubtedly, due
process in administrative proceedings is an opportunity to
explain one's side or an opportunity to seek reconsideration
of the action or ruling complained of,21 which requirement
was afforded Bungubung.22
In Manggagawa ng Komunikasyon sa Pilipinas v. National
Labor Relations Commission,23 this Court held that:
[A]ctual adversarial proceeding becomes necessary only for
clarification or when there is a need to propound searching
questions to unclear witnesses. This is a procedural right
which the employee must, however, ask for it is not an
inherent right, and summary proceedings may be conducted.
10
This is to correct the common but mistaken perception that
procedural due process entails lengthy oral arguments.
Hearings in administrative proceedings and before quasi-
judicial agencies are neither oratorical contests nor debating
skirmishes where cross examination skills are displayed. Non-
verbal devices such as written explanations, affidavits,
positions papers or other pleadings can establish just as
clearly and concisely aggrieved parties' predicament or
defense. What is essential is ample opportunity to be heard,
meaning, every kind of assistance that management must
accord the employee to prepare adequately for his defense.
After the filing of the Complaint, Bungubung was allowed by
the Ombudsman to submit the following: (a) a counter-
affidavit refuting the charges against him; (b) a rejoinder-
affidavit; and (c) a Motion for Reconsideration of the 11
January 2005 Order of the Ombudsman. Moreover,
Bungubung had the option to subject the case to a formal
investigation, but his Manifestation dated 21 February 2002
before the Ombudsman was evidence that he did not choose
to do so and, instead, agreed to submit the case for
resolution on the basis of the affidavits on record. These facts
establish that Bungubung was not deprived of his right to due
process, having ample opportunity to present his side before
the Ombudsman. In fact, it was only later on in a
Manifestation filed on 25 February 2002 that Doromal
changed his mind and informed the Ombudsman that he was
opting instead for the conduct of a formal investigation.
That point having been settled, this Court moves on to
determine the merits of the Petition at bar.
The Petition primarily involves questions of fact, pitting
against each other the findings of fact of the Court of Appeals
and those of the Ombudsman, both of which depended on
the probative weight to be given to the affidavits of Doromal,
Cruz, and the alleged CSEPA blue book.
We stress the procedural tenet that a petition for review on
certiorari filed with this Court under Rule 45 of the Revised
Rules of Court shall raise only questions of law.24 A question
of law has been defined as one that does not call for any
examination of the probative value of the evidence presented
by the parties;25 a question of fact arises when the doubt or
difference pertains to the truth or falsehood of alleged facts
or when the query necessarily solicits calibration of the whole
evidence considering mostly the credibility of witnesses,
existence and relevancy of specific surrounding
circumstances, their relation to one another and to the whole
and probabilities of the situation.26 We have consistently
held that in a petition for review on certiorari, this Court does
not sit as an arbiter of facts for it is not the function of the
Supreme Court to analyze or weigh all over again the
evidence already considered in the proceedings below.27
Such factual findings can be questioned only if, among other
exceptions,28 the findings of fact are conflicting and the
findings of the Court of Appeals are contrary to those of the
lower court and/or administrative agency, which exceptional
circumstances are present herein, thus, justifying the review
by this Court of the factual findings of the Ombudsman and
the Court of Appeals.
In Montemayor v. Bundalian,29 this Court laid down the
following guidelines for the judicial review of decisions
rendered by administrative agencies in the exercise of their
quasi-judicial power:
First, the burden is on the complainant to prove by
substantial evidence the allegations in his complaint.
Substantial evidence is more than a mere scintilla of
evidence. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion, even
if other minds equally reasonable might conceivably opine
otherwise. Second, in reviewing administrative decisions of
the executive branch of the government, the findings of facts
made therein are to be respected so long as they are
supported by substantial evidence. Hence, it is not for the
reviewing court to weigh the conflicting evidence, determine
the credibility of witnesses, or otherwise substitute its
judgment for that of the administrative agency with respect
to the sufficiency of evidence. Third, administrative decisions
in matters within the executive jurisdiction can only be set
aside on proof of gross abuse of discretion, fraud, or error of
law. These principles negate the power of the reviewing court
to re-examine the sufficiency of the evidence in an
administrative case as if originally instituted therein, and do
not authorize the court to receive additional evidence that
was not submitted to the administrative agency concerned.
As stated above, the fundamental rule in administrative
proceedings is that the complainant has the burden of
proving, by substantial evidence, the allegations in his
complaint. Section 27 of the Ombudsman Act is unequivocal:
Findings of fact by the Office of the Ombudsman when
supported by substantial evidence are conclusive. Conversely,
therefore, when the findings of fact by the Ombudsman are
not adequately supported by substantial evidence, they shall
not be binding upon the courts. Such is the case in the
present Petition.
Substantial evidence, which is more than a mere scintilla but
is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion, would suffice to hold
one administratively liable.30 The standard of substantial
evidence is satisfied when there is reasonable ground to
believe that respondent is responsible for the misconduct
complained of,31 even if such evidence might not be
overwhelming or even preponderant.32 While substantial
evidence does not necessarily import preponderance of
evidence as is required in an ordinary civil case,33 or
evidence beyond reasonable doubt as is required in criminal
cases,34 it should be enough for a reasonable mind to
support a conclusion. There is none here.
Bungubung is being charged with the administrative offense
of Grave Misconduct, which has been authoritatively defined
in Amosco v. Judge Magro35 as:
11
Misconduct in office has a definite and well-understood legal
meaning. By uniform legal definition, it is a misconduct such
as affects his performance of his duties as an officer and not
such only as affects his character as a private individual. In
such cases, it has been said at all times, it is necessary to
separate the character of the man from the character of the
officer x x x. It is settled that misconduct, misfeasance, or
malfeasance warranting removal from office of an officer,
must have direct relation to and be connected with the
performance of official duties amounting either to
maladministration or willful, intentional neglect and failure to
discharge the duties of the office. x x x.
In In re: Impeachment of Horilleno,36 this Court
authoritatively defined serious misconduct --
"[S]ufficient cause" must exist in the judgment of the
Supreme Court involving "serious misconduct." The adjective
is "serious"; that is, important, weighty, momentous, and not
trifling. The noun is "misconduct"; that is, a transgression of
some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by the
public officer. x x x.
Being guided accordingly by the aforementioned evidentiary
rules and jurisprudence, this Court finds that the evidence on
record in the present case does not constitute substantial
evidence of Bungubung's administrative culpability for grave
misconduct.
Within the field of administrative law, while strict rules of
evidence are not applicable to quasi-judicial proceedings,
nevertheless, in adducing evidence constitutive of substantial
evidence, the basic rule that mere allegation is not evidence
cannot be disregarded.37
In his Affidavit-Complaint, Doromal accused Bungubung of
soliciting and receiving P100,000.00 from him and a
Mitsubishi Pajero van from another bidder in exchange for the
award of the security services contract of the PPA. Doromal
also accused Bungubung and other PPA employees of
demanding and receiving balato in consideration of the award
of the PPA Security Service Contract.
In addition to his Complaint-Affidavit, Doromal submitted a
Reply-Affidavit, as well as the following supporting
documents:
(a) Affidavit of Evalyn Cruz, his secretary;
(b) CSEPA blue book detailing the monthly "balato" or
"payola" paid to PPA officials and employees, referred to
therein as representation expenses.
On the other hand, Bungubung filed his Counter-Affidavit and
Rejoinder-Affidavit. In his defense, Bungubung further
submitted the following evidence:
(a) Affidavit of Celso A. Fernandez, President and Chairman
of Star Special Watchman and Detective Agency, Inc., the
winning bidder, who denied giving any money or a Pajero to
Bungubung;
(b) Affidavit of a certain Rufino Valenzuela, who denied giving
instructions for Doromal to go to Bungubung's office;
(c) A copy of the petition in Civil Case No. 01-100678, entitled
"Roberto C. Doromal, etc. v. Philippine Ports Authority, et
al.," questioning the legality of the case filed by Doromal
against Bungubung before the RTC to show that Doromal
never mentioned therein that Bungubung requested for a
Pajero from him;
(d) A copy of the Deed of Sale of the Pajero executed by
Teresito Uy in favor of Norman Vincent Bungubung, as proof
that the said vehicle was bought and is now owned by
Bungubung's son;
(e) A copy of the "Traffic Incident Report" of the Central
Police Traffic Enforcement Office to evidence the fabricated
"hit and run" charge made by an employee of CSEPA against
the Pajero owned by Bungubung's son; and
(f) PSBAC Resolutions establishing that the award of the PPA
Security Contracts was made by public bidding.
The Ombudsman chose to give more credence to Doromal's
allegations and evidence when it found that Bungubung took
advantage of his position as Chairman of the PSBAC and used
it as leverage in soliciting cash and a Mitsubishi Pajero van
from the bidders as a consideration for the award of the PPA
security service contract. However, Doromal's evidence is
hardly substantive.
First, Doromal's allegation that Bungubung acquired the
Mitsubishi Pajero van from another bidder after failing to
successfully solicit the same from him is highly suspect, since
Doromal only narrated the alleged solicitation in his Affidavit-
Complaint against Bungubung filed with the Ombudsman on
7 September 2001. He failed to mention such a significant
circumstance in Civil Case No. 01100678, Roberto C. Doromal
v. Philippine Ports Authority, before the RTC or in his petition
for TRO in the same case, both of which were filed ahead of
his Affidavit-Complaint before the Ombudsman.
Second, little weight should be given to the CSEPA blue book
allegedly detailing the monthly payola or balato paid to PPA
officials and employees from July 2000 to February 2001,
recorded therein as representation expenses. According to
the CSEPA blue book, the following PPA key officials received
monthly representation allowances:
NAME
POSITION
PERIOD
12
 involved in the preparation of the blue book was Doromal
TOTAL AMOUNT who supposedly approved the entries therein. The blue book
is not audited, nor is it subject to review by an independent
Mr. Cecilio party. The blue book then can easily be manufactured.
Considering the seriousness of the charges which may arise
AGM Operations against the public officers named therein, the entries in the
blue book must not be accepted at face value when the
July 2000-Feb 2001 entries therein are uncorroborated by any other evidence.

P200,000.00 Third, while the Ombudsman gave much weight and credit to
Doromal's evidence, it lightly brushed aside that submitted by
Leopoldo Bungubung Bungubung. Among Bungubung's evidence which the
Ombudsman failed to consider was a copy of the "Traffic
Port District Manager Accident Incident Report" prepared by the Central Police
Traffic Enforcement Office, stating that on 4 May 2001,
July 2000-Feb 2001 Doromal filed a false report of a "hit-and-run" incident which
supposedly occurred on 1 May 2001 involving the Mitsubishi
P300,000.00 Pajero van of Bungubung's son. The report was made by the
police investigator in his official capacity; thus, it enjoys the
Ted Alcalde presumption of regularity and is a prima facie evidence of the
facts therein stated. The filing of the false report establishes
District Manager ill motive on the part of Doromal specifically directed against
Bungubung.
July 2000-Feb 2001
Fourth, the main defense put up by Bungubung is complete
P144,000.00 denial, a defense which is said to be the weakest, seldom
believed or given weight, as it is easy to fabricate.
Capt. Gamis Nonetheless, Bungubung's denial of -- (a) Cruz's allegation in
her affidavit that she personally gave Bungubung P50,000.00
Chief of Port Police – on 16 January 2001; (b) Doromal's assertion in his affidavit
that he gave Bungubung another P50,000.00 in late February
North Harbor 2001; and (c) Doromal's assertion that Bungubung demanded
from him a late model Mitsubishi Pajero van -- is given weight
July 2000-Feb 2001 in this instance.

P144,000.00 In the absence of corroborative evidence, the Court would

not be prepared to accept the usual lame defense of denial
Felix Barcala over the straightforward and positive declaration of a witness
since denials constitute self-serving negative evidence which
Chief of Port Police – cannot be accorded greater evidentiary weight than the
declaration of credible witnesses who testify on affirmative
South Harbor matters. Thus, in the case of contradictory declarations and
statements, greater weight is generally given to positive
July 2000-Feb 2001 testimonies than to mere denials.38

P35,000.00 In this instance, however, Bungubung's denial of the

allegations against him are supported by his own
Alex Cruz controverting evidence. In contrast, Doromal's Complaint-
Affidavit and Cruz's Affidavit support only each other.

Finally, this Court cannot ignore Doromal's Ex-Parte

July 2000- Feb 2001
P144,000.00
The CSEPA blue book, however, is evidently self-serving. The
entries therein were purportedly made by a certain Ebora,
who was never presented to personally identify the entries
she made or confirm the same. The only other person
Manifestation and Motion to Withdraw Complaint dated 18
August 2005 and Affidavit of Desistance dated 23 August
2005, which he filed with the Ombudsman. In both
documents, Doromal expressed his desire to withdraw his
Complaint-Affidavit filed with the Ombudsman and desist
from the continuance of the criminal and administrative
complaints against Bungubung. Doromal explicitly admitted
13
therein that he merely fabricated all his allegations against
Bungubung.

While this Court looks with disfavor on affidavits of

desistance, still, its effect on the instant case cannot be
ignored. Doromal's Affidavit of Desistance includes an explicit
admission that he fabricated the charges against Bungubung.
Therefore, Doromal's Affidavit of Desistance is an express
repudiation of the material points alleged in his Complaint-
Affidavit, and not a mere expression of his lack of interest to
pursue his complaints against Bungubung. Since Doromal
willfully and knowingly executed his Affidavit of Desistance,
there being no showing that he was made to do so
fraudulently or under duress, then it may be admitted and
considered as evidence which considerably puts into question
the probative value of the Affidavit-Complaint he executed
earlier and he now repudiates.

In Gaviola v. Salcedo,39 which involved an administrative

case for suspension or disbarment against a lawyer, this
Court gave probative value to the Affidavit of Desistance of
the complainant, pronouncing that while the filing of an
Affidavit of Desistance by the complainant for lack of interest
does not ipso facto result in the termination of the
administrative case, it was constrained to dismiss the charges
since such charges cannot be proven without the evidence of
the complainant and her witnesses. Such is the case at bar.
Essentially, the administrative case against Bungubung was
based on the allegations made by Doromal in his Affidavit-
Complaint, without which, the case against Bungubung
collapses.

The Court of Appeals therefore took proper notice of

Doromal's Ex-Parte Motion to Withdraw the Affidavit-
Complaint and Affidavit of Desistance since they cast a
different light on the evidence previously considered by the
Ombudsman.

After evaluating the totality of evidence on record, this Court

reaches the inescapable conclusion that complainant Doromal
failed to present substantial evidence that Bungubung is
administratively liable for grave misconduct.

As this Court declared in Ang Tibay v. Court of Industrial

Relations,40 the assurance of a desirable flexibility in
administrative procedure does not go so far as to justify
orders without a basis in evidence having rational probative
force.

WHEREFORE, premises considered, the Petition for Review on

Certiorari is DENIED. The Decision dated 30 June 2006 and
Order dated 26 October 2006 of the Court of Appeals in CA-
G.R. SP No. 89689 are AFFIRMED.

No Costs.

SO ORDERED.

14
PHILIPPINE AMUSEMENT and GAMING
CORPORATION (PAGCOR), Petitioner,
vs.
ARIEL R. MARQUEZ, Respondent.
x-----------------------x
G.R. No. 192287
IRENEO M. VERDILLO, Petitioner,
vs.
PHILIPPINE AMUSEMENT and GAMING
CORPORATION (PAGCOR), Respondent.
DECISION
VILLARAMA, JR., J.:
Before the Court are two consolidated petitions for review on
certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
as amended.
The petition in G.R. No. 191877 seeks to reverse the October
9, 2009 Decision1 of the Court of Appeals (CA) in CA-G.R. SP
No. 106196, which set aside Resolution Nos. 08-07022 and
08-18583 of the Civil Service Commission (CSC) dismissing
respondent Ariel R. Marquez from service for serious
dishonesty, violation of office rules and regulations, and
conduct prejudicial to the best interest of the service.
The petition in G.R. No. 192287 meanwhile, questions the
July 21, 2009 CA Decision4 in CA-G.R. SP No. 106961, which
affirmed CSC Resolution Nos. 08-09315 and 08-2231,
dismissing petitioner Ireneo M. Verdillo from service for
serious dishonesty, violation of office rules and regulations,
and conduct prejudicial to the best interest of the service.
The antecedent facts of the case are as follows:
Ariel R. Marquez and Ireneo M. Vedillo were both employed
as dealers in the game of Craps at the Philippine Amusement
and Gaming Corporation (PAGCOR) at the Casino Filipino
Heritage. The game of Craps is initiated when a player, called
a "shooter," rolls a pair of dice that should pass a
demarcation line set across the table. As a rule, at least one
of the two dice must come in contact with the rubber wall at
the end of the table. When these conditions are met, the
dealer known as a stickman6 considers the throw a "good
dice" and the pay-off dealer pays the winner. Otherwise, the
throw is invalidated, and the stickman must announce "no
dice." The conditions are imposed to prevent manipulation of
the results of the throw.
On November 26, 2006, Marquez and Verdillo alternately
manned Craps Table No. 30, together with Joselito Magahis
and Virgilio Ruanto. At around 2:46 a.m., Mr. Johnny Cheng7
began playing at Craps Table No. 30 with Verdillo as stickman
and Marquez as the pay-off dealer. While doing her rounds,
Acting Pit Supervisor Eulalia Yang noticed that on several
occasions Verdillo made a "good dice" call even though not
one of the dice from the player’s throw hit the table’s rubber
wall. Alarmed by what she saw, Yang reported the matter to
the Casino Management. Thereafter, Mr. Ariston Tangalin,
the Acting Casino Shift Manager, requested to review the
Closed Circuit Television (CCTV) footage of the incident. After
watching the footage, the members of the Casino
Management and the investigators from the Corporate
Investigation Unit were convinced that several void throws
were declared as "good dice" in Table No. 30 while the same
was being manned by Marquez and Verdillo. Senior Branch
Surveillance Officer Wilbur U. Isabelo also submitted a report
to the Surveillance Unit, stating that Based on video footage,
there were [eight (8)] occasions when the dices did not
[touch] the rubber wall. Dealer Stickman Verdillo should have
declared the games void or no dice but instead declared the
games as good dice after which, Dealer Pay-off paid the bets
of the customer, a certain Mr. Johnny Ching. It was noted
that whenever A/PS Eulalia Yang, Dealers Joselito Magahis
and Virgilio Ruanto were monitoring the transactions on said
table, Mr. Ching would throw the dices normally which
touched the rubber wall. It was also observed that Mr. Ching
was positioned near the Stickman.
Hereunder is the chronological fraudulent transactions which
transpired from 0246H – 0314H November 27, 2006 at table
#30 (Craps):
0246H : Customer Mr. Johnny Ching started playing at table
#30.
0258:05H : Game was no dice. Customer’s placed bet of
₱2,000 on point 5 was paid with ₱3,000.
0258:41H : Game was no dice. Customer’s placed bet of
₱1,000 on point 6 was paid with ₱1,100.
0259:23H : Game was no dice. Customer’s placed bet of
₱4,000 on point 5 was paid with ₱5,000.
0259:36H : Game was no dice. Customer’s placed bet of
₱2,000 on point 6 was paid with ₱2,200.
0302:57H : Game was no dice. Customer’s placed bet of
₱4,000 on point 6 was paid with ₱4,400.
0303:23H : Game was no dice. Customer’s placed bet of
₱1,000 on point 8 was paid with ₱1,100.
0303:39H : Game was no dice. Customer’s placed bet of
₱2,000 on point 9 was paid with ₱2,500.
0305:18H : Game was no dice. Customer’s placed bet of
₱4,000 on point 9 was paid with ₱5,000.
0314H : Customer Mr. Ching stopped playing.8
On November 28, 2006, after conducting a fact-finding
investigation, the Internal Security Investigation Section
15
found that a prima facie case exists against Marquez and
Verdillo. Hence, they were administratively charged with
conspiring with Cheng in defrauding PAGCOR of an
undetermined amount of money9 and were required to
submit a written explanation. In his Sinumpaang Salaysay,10
Marquez admitted that he was aware of several erroneous
calls made by Verdillo on the dice throws, but he still paid out
winnings to Cheng. Meanwhile, Verdillo also submitted a
written explanation, denying the accusations against him. On
December 13, 2006, they were invited by the Branch
Management Panel (BMP) to a hearing to explain their side of
the controversy.11
Later, the BMP rendered its decision finding both Marquez
and Verdillo liable for fraudulent transactions and
recommended their dismissal from service, as follows:
Though it was only in November 26, 2006 that the anomaly
was discovered, the information and revelations pronounced
by PM Senatin12 since August 2005 and the proof from the
footages, are strong evidence to prove that there is
something going on with craps.
It was observed and viewed in the CCTV footages that
whenever there are other customers watching his play, Mr.
Cheng throws the dice with force passing through the center
of the table in such a way that it produces a sound to be
heard loudly when it touches the rubber wall. However, when
both Marquez and Verdillo are around, the dice is thrown at
the side of the table barely touching its rubber walling.
Dealer Pay-off may overrule the decision of the stickman.
However, during the game on eight (8) occasions, Dealer
Marquez did not become observant considering that Dealer
Verdillo is not good in craps nor did not insist on calling his
attention for the bad calls.
Foregoing considered, the Panel resolved to dismiss Dealers
Ireneo Verdillo and Ariel Marquez for the offense of
"FRAUDULENT TRANSACTIONS AT CRAPS TO THE
DISADVANTAGE OF THE HOUSE."13 (Emphasis and
underscoring in the original.)
The BMP’s recommendation was adopted by the Adjudication
Committee and its findings were then forwarded to PAGCOR’s
Board of Directors for final approval. Senior Managing Head
of the Human Resource and Development Department,
Visitacion F. Mendoza, later sent a Memorandum to Marquez
and Verdillo informing them that the Board had approved the
Adjudication Committee’s recommendation to dismiss them
from the service due to "Dishonesty, Grave violation of
company rules and regulations, Conduct prejudicial to the
best interest of the company, and Loss of trust and
confidence" for conspiring with a co-dealer and a customer in
defrauding the house on numerous occasions on November
27, 2006.14
Marquez and Verdillo filed their motions for reconsideration,
but both were denied by PAGCOR for lack of merit.15
Aggrieved, they appealed their dismissal from the service to
the CSC.
In Resolution No. 08-0702, the CSC dismissed Marquez’s
appeal for lack of merit. The decretal portion of the
Resolution reads:
WHEREFORE, the appeal of Ariel R. Marquez is hereby
DISMISSED for lack of merit. The decision of the PAGCOR
Board of Directors dated February 1, 2007, finding
respondent-appellant guilty of the administrative offenses of
Dishonesty, Grave Violation of Company Rules and
Regulations, Conduct Prejudicial to the Best Interest of the
Company, Loss of Trust and Confidence and Conspiring with
a co-Dealer and a Customer in Defrauding the House and
imposing upon him the penalty of dismissal from the service
and the decision of the same Board denying his Motion for
Reconsideration is hereby MODIFIED. Accordingly, this
Commission finds that respondent-appellant is guilty of the
administrative offenses of Serious Dishonesty, Violation of
Office Rules and Regulations and Conduct Prejudicial to the
Best Interest of the Service and imposes the penalty of
dismissal from the service with all its accessory penalties of
forfeiture of retirement benefits, perpetual disqualification
from re-employment in government service, bar from taking
civil service examinations in the future and cancellation of
civil service eligibilities.16
Likewise, in Resolution No. 08-0931, the appeal of Verdillo
was dismissed as follows:
WHEREFORE, the appeal of Ireneo M. Verdillo, Dealer,
Philippine Amusement and Gaming Corporation (PAGCOR),
Manila is hereby DISMISSED for lack of merit. The decision of
the PAGCOR Board of Directors dated February 1, 2007,
finding respondent-Appellant guilty of the administrative
offenses of Dishonesty, Grave Violation of Company Rules
and Regulations, Conduct Prejudicial to the Best Interest of
the Company, Loss of Trust and Confidence and Conspiring
with a coDealer and a Customer in Defrauding the House and
imposing upon him the penalty of dismissal from the service
and the decision of the same Board denying his Motion for
Reconsideration is hereby MODIFIED. Accordingly, this
Commission finds that respondent-Appellant is guilty of the
administrative offenses of Serious Dishonesty, Violation of
Office Rules and Regulations and Conduct Prejudicial to the
Best Interest of the Service and imposes the penalty of
dismissal from the service with all its accessory penalties of
forfeiture of retirement benefits, perpetual disqualification
from reemployment in government service and cancellation of
all eligibilities.17
The CSC held that it has reasonable ground to believe that
Marquez and Verdillo were involved in a conspiracy to
manipulate the game of Craps on November 27, 2006. It
found that the statements made by Marquez and Verdillo, the
CCTV footage, the investigation report, and the statements of
the employees, all belie their innocence. The CSC further
16
pointed out that it was incumbent upon Marquez to make
sure that Verdillo’s calls were in order, and it was Verdillo’s
duty to verify that his declarations on the dice throws were
accurate. Hence, it concluded that together with Cheng, they
were one in their goal to manipulate the game of Craps to
the detriment of PAGCOR. The CSC denied their motions for
reconsideration.
Not satisfied, Marquez filed a petition for review with the CA
arguing that he was not accorded his right to due process
and that there was no substantial evidence to support a
finding of his guilt in the administrative charge.
In CA-G.R. SP No. 106196, the CA rendered a decision in his
favor, to wit:
WHEREFORE, premises considered, the assailed resolutions
dated February 1, 2007 and May 12, 2007 are REVERSED and
SET ASIDE. In lieu thereof, another is entered ordering
respondent to reinstate petitioner to his former position and
to pay his backwages and benefits from March 28, 2007
onwards.
SO ORDERED.18
The CA held that there is no administrative charge of
conspiracy under the Uniform Rules of Administrative Cases
in the Civil Service. It found Marquez’s Sinumpaang Salaysay
credible and ruled that there was no dishonesty on his part,
much less a conspiracy with Verdillo and Cheng to defraud
PAGCOR. The CA observed that the fact that as stated in his
sworn statement, Marquez called Verdillo’s attention to his
erroneous call only on the second time that Verdillo made an
erroneous call, cannot be interpreted that he was dishonest
or engaged in a conspiracy. Rather, it shows that he was
negligent in the performance of his duties.
Meanwhile, Verdillo filed with the CA a separate petition for
review which was docketed as CA-G.R. SP No. 106961. He
argued that PAGCOR’s Decision was not supported by the
evidence on record. He also averred that he was denied due
process of law.
The CA, however, denied Verdillo’s petition, as follows:
WHEREFORE, the petition is hereby DENIED and the assailed
Civil Service Commission Resolution Nos. 080931 and 082231
are AFFIRMED.
SO ORDERED.19
In that case, the CA found that Verdillo did not judiciously
perform all the acts expected of him as a dealer-stickman and
all acts necessary to protect PAGCOR’s interest. The CA found
that there exists substantial evidence to support the
conclusion that Verdillo is guilty of the offense of violation of
office rules and regulations and conduct prejudicial to the
best interest of the service. The CA also concluded that the
circumstances present in the case supply more than
reasonable grounds to believe that Verdillo conspired with
Marquez and Cheng to defraud PAGCOR.
Unsatisfied, PAGCOR filed before this Court a petition for
review on certiorari, docketed as G.R. No. 191877, arguing
that the CA erred in finding that the notice of charges against
Marquez was not in accordance with the Uniform Rules on
Administrative Cases. It contends that the designation of the
offense in an administrative case is not controlling and one
may be found guilty of another offense if it is based on the
same facts subject of the original designation. Furthermore,
PAGCOR asserts that the CA erred in simply brushing aside
the evidence considered by the CSC, stressing that the
factual findings of administrative bodies are controlling on the
reviewing authority.
On the other hand, Marquez maintains that there was no
substantial evidence to support the findings of the CSC. He
insists that conspiracy must be proved as sufficiently as the
crime itself through clear and convincing evidence. In this
case, there was no unity of purpose in the execution of the
fraudulent acts since he called Verdillo’s attention whenever
he made bad calls. Marquez claims that the charges against
him are based mainly on suspicions and are not supported by
facts.
For his part, Verdillo also filed before this Court a petition for
review on certiorari docketed as G.R. No. 192287. He argues
that PAGCOR failed to present substantial evidence to justify
his dismissal from service. He contends that his sworn
statement cannot be considered as substantial evidence to
support the offense of violation of office rules and regulations
and conduct prejudicial to the best interest of the service as
there was no admission on his part that he violated house
rules. Finally, he stresses that the existence of conspiracy
was not established. Thus, he prays for his reinstatement to
his former position without loss of seniority rights and other
benefits as well as back wages.
Essentially, the issue in this case is whether Marquez and
Verdillo are guilty of dishonesty, violation of office rules and
regulations and conduct prejudicial to the best interest of the
service to justify their dismissal from service.
It is worthy to state that in petitions for review on certiorari
under Rule 45 of the 1997 Revised Rules of Civil Procedure,
as amended, only questions of law may be raised. It is not
our function to analyze or weigh all over again evidence
already considered in the proceedings below, our jurisdiction
being limited to reviewing only errors of law that may have
been committed by the lower court. The resolution of factual
issues is the function of the lower courts, whose findings on
these matters are received with respect. A question of law
which we may pass upon must not involve an examination of
the probative value of the evidence presented by the
litigants.20
This rule, however, is not ironclad. We have consistently
recognized several exceptional circumstances where we
17
disregarded the aforesaid tenet and proceeded to review the
findings of facts of the lower court such as when the findings
of fact are conflicting or when the CA manifestly overlooked
certain relevant and undisputed facts which, if properly
considered, would justify a different conclusion.21
Considering the conflict in the factual findings of the CSC and
of the CA, we rule on the factual issues as an exception to
the general rule.
Marquez was administratively charged for conspiring with
Verdillo and Cheng to defraud PAGCOR in CA-G.R. SP No.
106196. The CA observed that there was a disparity between
the offense charged and the offenses for which Marquez was
found guilty -- dishonesty, grave violation of company rules
and regulations, conduct prejudicial to the best interest of the
company and loss of trust and confidence. The CA concluded
that PAGCOR failed to comply with the requirement of
administrative due process since Marquez was not duly
apprised of the proper charges which led to his dismissal.
We do not agree.
Section 16, Rule II of the Uniform Rules on Administrative
Cases in the Civil Service provides as follows:
Section 16. Formal Charge. – After a finding of a prima facie
case, the disciplining authority shall formally charge the
person complained of. The formal charge shall contain a
specification of charge(s), a brief statement of material or
relevant facts, accompanied by certified true copies of the
documentary evidence, if any, sworn statements covering the
testimony of witnesses, a directive to answer the charge(s) in
writing under oath in not less than seventy-two (72) hours
from receipt thereof, an advice for the respondent to indicate
in his answer whether or he elects a formal investigation of
the charge(s), and a notice that he is entitled to be assisted
by a counsel of his choice.
xxxx
In Dadubo v. Civil Service Commission,22 the Court
pronounced that the charge against the respondent in an
administrative case need not be drafted with the precision of
an information in a criminal prosecution. It is sufficient that
he is apprised of the substance of the charge against him;
what is controlling is the allegation of the acts complained of,
not the designation of the offense. It must be stressed that
what the law requires is to simply inform the civil servant of
the nature and cause of accusation against him in a clear and
concise manner for the purpose of giving him the right to
confront the allegations against him.
In the present case, the CSC found that a formal charge was
issued identifying the administrative offenses committed by
Marquez. A Memorandum23 dated November 28, 2006 was
issued charging Marquez of conspiring with Verdillo and
Cheng in defrauding PAGCOR during void gaming
transactions at Table No. 30 on several occasions. He was
then required to explain in writing within 72 hours from
receipt of the Memorandum. Records also show that he
participated in the investigation by executing a Sinumpaang
Salaysay. Thereafter, the BMP of Casino Filipino Heritage
conducted a formal investigation and invited him to attend
the meeting on December 13, 2006 to explain his side.
Clearly, Marquez was sufficiently informed of the basis of the
charge against him and was able to defend himself. He was
given every opportunity to present his side of the case.
The failure to designate the offense specifically and with
precision is of no moment in this administrative case. The
essence of due process in administrative proceedings is that a
party be afforded a reasonable opportunity to be heard and
to submit any evidence he may have in support of his
defense. The law simply requires that the civil servant is
informed of the nature and cause of accusation against him
in a clear and concise manner to give the person a chance to
answer the allegations intelligently. Evidently, PAGCOR
substantially complied with the requirements of due process
for administrative cases.
With regard to Verdillo’s contention that he would be in a
better position to defend himself if confronted with the CCTV
footage, we find the same to be without merit. There is more
than substantial evidence which proves that he indeed
declared void transactions as valid on at least eight
occasions. We note that the CCTV footage is not the only
evidence against him. Acting Pit Supervisor Yang actually
witnessed that several clearly void transactions were declared
by Verdillo as good and valid.24 Even Verdillo’s sworn
statement reveals that he did not see the dice hit the rubber
wall. In fact, he mentioned in his statement that he used his
sense of hearing in determining whether or not the dice hit
the rubber wall.
The CSC, as affirmed by the CA in CA-G.R. SP No. 106961,
found sufficient evidence to support a finding of dishonesty,
grave violation of company rules and regulations, conduct
prejudicial to the best interest of the company and loss of
trust and confidence. The circumstances in this case all point
to the conclusion that Verdillo conspired with Marquez and
Cheng. Verdillo declared several dice throws of Cheng as
"good dice" even if they were void. Marquez then paid Cheng
his winnings in huge amounts. Whenever a customer or
employee would pass the Craps table, Cheng would change
his dice throws and would even comment "may multo" (there
is a ghost) when Acting Pit Supervisor Yang would approach
the craps tableThese anomalous transactions were not only
witnessed by Acting Pit Supervisor Yang, but were also
confirmed by the CCTV footage.
Dishonesty is defined as the concealment or distortion of
truth in a matter of fact relevant to one’s office or connected
with the performance of his duty. It implies a disposition to
lie, cheat, deceive, or defraud; untrustworthiness; lack of
integrity; lack of honesty, probity, or integrity in principle;
and lack of fairness and straightforwardness.25 Under the
Civil Service Rules, dishonesty is a grave offense punishable
by dismissal which carries the accessory penalties of
18
cancellation of eligibility, forfeiture of retirement benefits
(except leave credits), and disqualification from
reemployment in the government service.26

As regards Marquez, evidence shows that on eight occasions,

Marquez paid customer Cheng despite the fact that the
latter’s throws were void. He admitted that he knew that on
several occasions the throws made should have been
declared void and that it was incumbent upon him to make
sure that the calls were in order.1âwphi1 This duty could not
have escaped him as he had been a dealer for five years.
Hence, it is our view that the conduct of Marquez amounts to
serious dishonesty, and not merely negligence, since his
dishonest act was committed not just a few times but
repeatedly or eight times over a very short period of seven
minutes, a statistical improbability.

Administrative proceedings are governed by the "substantial

evidence rule." A finding of guilt in an administrative case
would have to be sustained for as long as it is supported by
substantial evidence that the respondent has committed the
acts stated in the complaint or formal charge. As defined,
substantial evidence is such relevant evidence as a
reasonable mind may accept as adequate to support a
conclusion.27 We find that Marquez and Verdillo failed to
present any cogent reason for the Court to deviate from the
rule that factual findings of administrative agencies are
generally held to be binding and final so long as they are
supported by substantial evidence in the record of the case.

All told, we find that there was substantial evidence for the
charges against Marquez and Verdillo, warranting their
dismissal from service.

WHEREFORE, the petition in G.R. No. 191877 is GRANTED.

The October 9, 2009 Decision of the Court of Appeals in CA-
G.R. SP No. 106196 is hereby REVERSED and SET ASIDE.
Consequently, Resolution Nos. 08-0702 and 08-1858 of the
Civil Service Commission dismissing Ariel R. Marquez from
service are REINSTATED and UPHELD.

The petition in G.R. No. 192287 is DENIED. The July 21, 2009
Decision of the Court of Appeals in CA-G.R. SP No. 106961,
which affirmed Civil Service Commission Resolution Nos. 08-
0931 and 08-2231 dismissing Ireneo M. Verdillo from service,
is AFFIRMED.

With costs against the petitioner in G.R. No. 192287.

SO ORDERED.

19
G.R. Nos. 172532 172544-45 November 20, 2013
PRIMO C. MIRO, in his capacity as Deputy
Ombudsman for the Visayas, Petitioner,
vs.
MARILYN MENDOZA VDA. DE EREDEROS, CATALINA
ALINGASA and PORFERIO I. MENDOZA, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari1 assailing the
decision2 dated November 22 2005 and the resolution3 dated
April 21 2006 of the Court of Appeals CA) in CA-G.R. SP Nos.
83149 83150 and 83576.
The CA decision reversed and set aside the joint decision4
dated January 9 2004 of the Deputy Ombudsman for the
Visayas (Deputy Ombudsman), Primo C. Miro in OMB-V-A-02-
0414-H finding respondents Marilyn Mendoza Vda. de
Erederos Catalina Alingasa and Porferio I Mendoza guilty of
the administrative charge of Grave Misconduct. The Deputy
Ombudsman also found Oscar Peque guilty of Simple
Misconduct.
The Factual Antecedents
As culled from the records, the antecedents of the present
case are as follows:
Mendoza, Director of the Regional Office VII of the Land
Transportation Office, Cebu City (LTO Cebu), Erederos,
Mendoza's niece and secretary, Alingasa, LTO clerk, and
Peque, Officer-in-Charge, Operation Division of LTO Cebu,
were administratively charged with Grave Misconduct before
the Deputy Ombudsman by private complainants, namely:
Maricar G Huete (Liaison Officer of GCY Parts), Ernesto R
Cantillas (Liaison Officer of Isuzu Cebu, Inc.), Leonardo
Villaraso (General Manager of TBS Trading), and Romeo C.
Climaco (Corporate Secretary of Penta Star).5 They were
likewise charged with criminal complaints for violation of
Section 3(e) of Republic Act No. 3019, otherwise known as
the Anti Graft and Corrupt Practices Act."
The administrative and criminal charges arose from the
alleged anomalies in the distribution at the LTO Cebu of
confirmation certificates, an indispensable requirement in the
processing of documents for the registration of motor vehicle
with the LTO.
Specifically, the private complainants accused Alingasa of
selling the confirmation certificates, supposed to be issued by
the LTO free of charge. This scheme allegedly existed upon
Mendoza's assumption in office as Regional Director of LTO
Cebu. They observed that:
(1) Confirmation certificates were sold for the amount of
₱2,500.00 per pad without official receipt;
(2) Alingasa would usually remit the collections to Erederos
who would, in turn, remit all the collections to Mendoza;6
(3) The official receipt for the processing of the confirmation
certificates issued to the private complainants acknowledged
only the amount of ₱40.00 which they paid for each engine,
chassis or new vehicle, as MR. (Miscellaneous Receipt-LTO
Form 67);
(4) Said amount was separate and distinct from the
₱2,500.00 required to be paid for each pad;
(5) The official receipt also served as the basis for the
individual stock/sales reports evaluation of Erederos;7 and
(6) The confirmation certificates processed during the
previous administration were no longer honored; thus, the
private complainants were constrained to reprocess the same
by purchasing new ones.
The NBI/Progress report submitted to the LTO Manila also
revealed that the confirmation certificates were given to the
representatives of car dealers, who were authorized to supply
the needed data therein. In the Requisition and Issue
Voucher, it was Roque who received the forms. On August
19, 2002, Cantillas executed an Affidavit of Desi stance on
the ground that he was no longer interested in prosecuting
the case.
On September 25, 2002, the Deputy Ombudsman ordered the
respondents to file their respective counter-affidavits. The
respondents complied with the order and made the required
submission.
On December 12, 2002, the case was called for preliminary
conference. At the conference, the respondents, thru their
counsels, manifested their intention to submit the case for
decision on the basis of the evidence on record after the
submission of their memoranda/position papers.
In the interim, additional administrative and criminal
complaints for the same charges were filed by Rova
Carmelotes (Liaison Officer of ZC Trading Center), Mildred
Regidor (Liaison Officer of Grand Ace Commercial), Estrella
dela Cerna (Liaison Officer of JRK Automotive Supply), and
Vevencia Pedroza (Liaison Officer of Winstar Motor Sales)
against the respondents. These new complaints were
consolidated with the complaints already then pending.
In their complaints, the new complainants commonly alleged
that they had to pay ₱2,500.00 per pad to Alingasa before
they could be issued confirmation certificates by the LTO
Cebu. Alingasa would give her collections to Erederos and to
Mendoza. When they protested, Erederos and Alingasa
pointed to Mendoza as the source of the instructions. They
were also told that the confirmation certificates processed
during the previous administration would no longer be
honored under Mendoza s administration; hence, they had to
20
buy new sets of confirmation certificates to process the
registration of their motor vehicles with the LTO.
In his counter-affidavit, Mendoza vehemently denied the
accusations. He alleged that the confirmation certificates
actual distribution and processing were assigned to Alingasa;
the processing entails the payment of ₱40.00 per
confirmation certificate, as administrative fee; payment is
only made when the confirmation certificates are filled up and
submitted for processing with the LTO, not upon issuance;
and he did not give any instructions to impose additional fees
for their distribution.
He also alleged that the case against him was instigated by
Assistant Secretary Roberto T. Lastimosa of the LTO Head
Office so that a certain Atty. Manuel I way could replace him
as Regional Director of the L TO Cebu.8
Mendoza additionally submitted the affidavits of desistance of
Carmelotes and Dela Cerna. Carmelotes testified that she has
no evidence to support her allegations against Mendoza. Dela
Cerna, on the other hand, stated that she was merely told to
sign a document which turned out to be an affidavit-
complaint against the respondents. Subsequently, however,
Dela Cerna executed a second affidavit, retracting her
previous statements and narrating how she was threatened
by Peque to sign an affidavit of desistance (1st affidavit).
Erederos and Alingasa commonly contended that they did not
collect, demand and receive any money from the
complainants as payment for the confirmation certificates.
Erederos stated that the case against her was initiated by
Huete because she found several discrepancies in the
documents she had processed. According to her, the present
case was Huete s ploy to avoid any liability.
For their part, Alingasa stressed that her act of maintaining a
control book for the releases of the confirmation certificate
pads negates her liability, while Peque denied any
participation in the distribution and sale of the confirmation
certificates.
On January 9, 2004, the Deputy Ombudsman rendered a
joint decision on the administrative aspect of the cases filed
against the respondents, and a joint resolution on the
criminal aspect of the cases.
The Deputy Ombudsman s Ruling
In its joint decision, the Deputy Ombudsman found Mendoza,
Erederos and Alingasa guilty of grave misconduct and
imposed the penalty of dismissal from the service. Peque, on
the other hand, was only found guilty of simple misconduct
and was meted the penalty of reprimand.
The Deputy Ombudsman believed the complainants
allegations that Alingasa collected ₱2,500.00 for the issuance
of confirmation certificates and, thereafter, remitted the
collections to Erederos and to Mendoza. He relied largely on
the affidavits supporting the respondents guilt. He found the
affidavits and the NBI/Progress report strong enough to
establish the respondents guilt. The Deputy Ombudsman also
explained that while the distribution of confirmation
certificates to authorized car dealers is not prohibited, the
demand and the collection of payment during their
distribution are anomalous.
The respondents separately moved for reconsideration, but
the Deputy Ombudsman denied their motions on March 5,
2004.9
The respondents separately appealed to the CA to challenge
the rulings against them.
The CA’s Ruling
On November 22, 2005, the CA granted the respondents
petition and reversed the Deputy Ombudsman s joint decision
in the administrative aspect. The CA ruled that the Deputy
Ombudsman s finding of grave misconduct was not supported
by substantial evidence because the affidavits, on which the
decision was mainly anchored, were not corroborated by any
other documentary evidence. Additionally, the affiants did not
appear during the scheduled hearings. The CA also found
that the affiants failed to categorically specify that the
respondents personally demanded from them the payment of
₱2,500.00 -an allegation that the appellate court deemed
material in establishing their personal knowledge. Without
this allegation of personal knowledge, the CA held that the
statements in the affidavits were hearsay and, thus, should
not be given any evidentiary weight. The dispositive portion
of the decision reads:
WHEREFORE, in light of the foregoing premises, the
consolidated petitions are GRANTED and accordingly the
assailed Joint Decision dated January 9, 2004 (administrative
aspect of the cases filed by the private respondents) is
REVERSED and SET ASIDE.
Consequently, the administrative charges against petitioners
are DISMISSED for lack of merit.
With respect to the assailed Joint Resolution also dated
January 9, 2004 (criminal aspect) issued by the public
respondent, this Court has no jurisdiction to review the
same.10
The Deputy Ombudsman moved for the reconsideration of
the decision, but the CA denied the motion in its resolution of
April 21, 2006. The denial led to the filing of the present
petition.
The Petitioner’s Arguments
The Deputy Ombudsman posits that the evidence adduced by
the complainants satisfied the requisite quantum of proof. He
argues that the complainants personal knowledge can be
21
gleaned from the preface of their narration; hence, their
affidavits could not have been hearsay. Their affidavits read:
3. That in doing my job, I have noticed and witnessed the
following anomalies concerning the processing of vehicle
registration, x x x, as follows:
a. That in order to secure the forms of Confirmation of
Certificates, you have to buy the same at the present price of
₱2,500.00 per pad from Catalina Alingasa, an L TO personnel,
who will remit her collections to a certain Marilyn Mendoza
Vda. de Erederos, a niece and the Secretary of the Regional
Director, Porferio Mendoza;
b. That Confirmation Certificates processed during previous
administration would not be honored and under such
situations, they would require that the same be reprocessed
which means that we have to buy and use the new forms
supplied by the present administration.11
The Deputy Ombudsman also argues that his joint decision
was not solely based on the complainants affidavits since he
also took into account the NBI/Progress report, which
uncovered the alleged anomalies. He posits that these pieces
of evidence, taken together, more than satisfy the required
quantum of proof to hold the respondents administratively
liable for grave misconduct.
The Case for the Respondents
In their respective comments, the respondents separately
argue that the complainants statements in their affidavits lack
material details and particulars, particularly on the time, the
date, and the specific transactions.
They commonly alleged that the affidavits, which contained
general averments, and the NBI/Progress report that was
based on the same affidavits, failed to meet the quantum of
proof required to hold them administratively liable.
For his part, Mendoza argues that since the affidavits failed to
categorically state that the complainants personally witnessed
the transfer of money from Alingasa to Erederos and
eventually to him, his participation in the anomalous scheme
has not been sufficiently shown; hence, he should not have
been found liable.
The Issue
The case presents to us the issue of whether the CA
committed a reversible error in dismissing the administrative
charge against the respondents.
The Court's Ruling
We deny the petition. The CA committed no reversible error
in setting aside the findings and conclusions of the Deputy
Ombudsman on the ground that they were not supported by
substantial evidence.
Doctrine of conclusiveness of administrative findings of fact is
not absolute
It is well settled that findings of fact by the Office of the
Ombudsman are conclusive when supported by substantial
evidence.12 Their factual findings are generally accorded with
great weight and respect, if not finality by the courts, by
reason of their special knowledge and expertise over matters
falling under their jurisdiction.
This rule was reiterated in Cabalit v. Commission on Audit-
Region VII,13 where we held that: When the findings of fact
of the Ombudsman are supported by substantial evidence, it
should be considered as conclusive. This Court recognizes the
expertise and independence of the Ombudsman and will
avoid interfering with its findings absent a finding of grave
abuse of discretion. Hence, being supported by substantial
evidence, we find no reason to disturb the factual findings of
the Ombudsman which are affirmed by the CA.
This rule on conclusiveness of factual findings, however, is
not an absolute one. Despite the respect given to
administrative findings of fact, the CA may resolve factual
issues, review and re-evaluate the evidence on record and
reverse the administrative agency s findings if not supported
by substantial evidence. Thus, when the findings of fact by
the administrative or quasi-judicial agencies (like the Office of
the Ombudsman/Deputy Ombudsman) are not adequately
supported by substantial evidence, they shall not be binding
upon the courts.14
In the present case, the CA found no substantial evidence to
support the conclusion that the respondents are guilty of the
administrative charges against them. Mere allegation and
speculation is not evidence, and is not equivalent to proof.15
Since the Deputy Ombudsman’s findings were found wanting
by the CA of substantial evidence, the same shall not bind
this Court.
Parameters of a judicial review under a Rule 45 petition
a. Rule 45 petition is limited to questions of law
Before proceeding to the merits of the case, this Court deems
it necessary to emphasize that a petition for review under
Rule 45 is limited only to questions of law. Factual questions
are not the proper subject of an appeal by certiorari. This
Court will not review facts, as it is not our function to analyze
or weigh all over again evidence already considered in the
proceedings below. As held in Diokno v. Hon. Cacdac,16 a re-
examination of factual findings is outside the province of a
petition for review on certiorari to wit:
It is aphoristic that a re-examination of factual findings
cannot be done through a petition for review on certiorari
under Rule 45 of the Rules of Court because as earlier stated,
this Court is not a trier of facts. xxx The Supreme Court is not
duty-bound to analyze and weigh again the evidence
22
considered in the proceedings below. This is already outside
the province of the instant Petition for Certiorari.
There is a question of law when the doubt or difference
arises as to what the law is on a certain set of facts; a
question of fact, on the other hand, exists when the doubt or
difference arises as to the truth or falsehood of the alleged
facts.17 Unless the case falls under any of the recognized
exceptions, we are limited solely to the review of legal
questions.18
b. Rule 45 petition is limited to errors of the appellate court
Furthermore, the "errors" which we may review in a petition
for review on certiorari are those of the CA, and not directly
those of the trial court or the quasi-judicial agency, tribunal,
or officer which rendered the decision in the first instance.19
It is imperative that we refrain from conducting further
scrutiny of the findings of fact made by trial courts, lest we
convert this Court into a trier of facts. As held in Reman Recio
v. Heirs of the Spouses Agueda and Maria Altamirano etc. et
al.20 our review is limited only to the errors of law committed
by the appellate court, to wit:
Under Rule 45 of the Rules of Court, jurisdiction is generally
limited to the review of errors of law committed by the
appellate court. The Supreme Court is not obliged to review
all over again the evidence which the parties adduced in the
court a quo. Of course, the general rule admits of exceptions,
such as where the factual findings of the CA and the trial
court are conflicting or contradictory.
In Montemayor v. Bundalian,21 this Court laid down the
guidelines for the judicial review of decisions rendered by
administrative agencies in the exercise of their quasi-judicial
powers, as follows:
First, the burden is on the complainant to prove by
substantial evidence the allegations in his complaint.
Substantial evidence is more than a mere scintilla of
evidence. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion, even
if other minds equally reasonable might conceivably opine
otherwise. Second, in reviewing administrative decisions of
the executive branch of the government, the findings of facts
made therein are to be respected so long as they are
supported by substantial evidence. Hence, it is not for the
reviewing court to weigh the conflicting evidence, determine
the credibility of witnesses, or otherwise substitute its
judgment for that of the administrative agency with respect
to the sufficiency of evidence.
Third, administrative decisions in matters within the executive
jurisdiction can only be set aside on proof of gross abuse of
discretion, fraud, or error of law. These principles negate the
power of the reviewing court to re-examine the sufficiency of
the evidence in an administrative case as if originally
instituted therein, and do not authorize the court to receive
additional evidence that was not submitted to the
administrative agency concerned. [emphases ours]
The present petition directly raises, as issue, the propriety of
the CA s reversal of the Deputy Ombudsman s decision that
found the respondents guilty of grave misconduct. While this
issue may be one of law, its resolution also requires us to
resolve the underlying issue of whether or not substantial
evidence exists to hold the respondents liable for the charge
of grave misconduct. The latter question is one of fact, but a
review is warranted considering the conflicting findings of fact
of the Deputy Ombudsman and of the CA. Accordingly, we
now focus on and assess the findings of fact of the Deputy
Ombudsman and of the CA for their merits.
The Deputy Ombudsman’s appreciation of evidence
The Deputy Ombudsman found the respondents guilty of
grave misconduct based on the affidavits submitted by the
complainants and the NBI/Progress report. In giving credence
to the affidavits, the Deputy Ombudsman ruled that the
complainants have amply established their accusations by
substantial evidence.
The CA’s appreciation of evidence
The CA, on the other hand, reversed the Deputy Ombudsman
s findings and ruled that no substantial evidence exists to
support the latter’s decision as the affidavits upon which said
decision was based are hearsay evidence. It found that the
affidavits lack the important element of personal knowledge
and were not supported by corroborating evidence.
We agree with the CA. The findings of fact of the Deputy
Ombudsman are not supported by substantial evidence on
record.
Substantial evidence, quantum of proof in administrative
cases
Substantial evidence is defined as such amount of relevant
evidence which a reasonable mind might accept as adequate
to support a conclusion. It is more than a mere scintilla of
evidence.22 The standard of substantial evidence is satisfied
when there is reasonable ground to believe, based on the
evidence submitted, that the respondent is responsible for
the misconduct complained of. It need not be overwhelming
or preponderant, as is required in an ordinary civil case,23 or
evidence beyond reasonable doubt, as is required in criminal
cases, but the evidence must be enough for a reasonable
mind to support a conclusion.
Section 27 of The Ombudsman Act of 198924 provides that:
Findings of fact by the Officer of the Ombudsman when
supported by substantial evidence are conclusive. Any order,
directive or decision imposing the penalty of public censure or
reprimand, suspension of not more than one (1) month's
salary shall be final and unappealable. [emphasis ours]
23

The only pieces of evidence presented by the complainants to
establish the respondents' guilt of the act charged are: (1)
their complaint-affidavits and the (2) NBl/Progress report. As
correctly found by the CA, these pieces of evidence do not
meet the quantum of proof required in administrative cases.
The Evidence Against Mendoza, Erederos and Alingasa
i. Private complainants affidavits
The affidavits show that the complainants lack personal
knowledge of the participation of Mendoza and Erederos in
the allegedly anomalous act. These affidavits indicate that the
complainants have commonly noticed and witnessed the
anomalous sale transaction concerning the confirmation
certificates. Without going into details, they uniformly allege
that to secure the confirmation certificates, an amount of
₱2,500.00 would be paid to Alingasa, an L TO personnel,
"who will remit her collections to a certain Marilyn Mendoza
vda. Erederos, a niece and the Secretary of the Regional
Director, Porferio Mendoza."25 While the payment to Alingasa
might be considered based on personal knowledge, the
alleged remittance to Erederos and Mendoza -on its face - is
hearsay.
Any evidence, whether oral or documentary, is hearsay if its
probative value is not based on the personal knowledge of he
witness
It is a basic rule in evidence that a witness can testify only on
the facts that he knows of his own Rersonal knowledge, i.e.
those which are derived from his own perception.26 A
witness may not testify on what he merely learned, read or
heard from others because such testimony is considered
hearsay and may not be received as proof of the truth of
what he has learned, read or heard.27 Hearsay evidence is
evidence, not of what the witness knows himself but, of what
he has heard from others; it is not only limited to oral
testimony or statements but likewise applies to written
statements, such as affidavits.28
The records show that not one of the complainants actually
witnessed the transfer of money from Alingasa to Erederos
and Mendoza. Nowhere in their affidavits did they specifically
allege that they saw Alingasa remit the collections to
Erederos. In fact, there is no specific allegation that they saw
or witnessed Erederos or Mendoza receive money. That the
complainants alleged in the preface of their affidavits that
they "noticed and witnessed" the anomalous act complained
of does not take their statements out of the coverage of the
hearsay evidence rule. Their testimonies are still "evidence
not of what the witness knows himself but of what he has
heard from others."29 Mere uncorroborated hearsay or rumor
does not constitute substantial evidence.30
The affidavits also show that the complainants did not allege
any specific act of the respondents. All that the affidavits
allege is a description of the allegedly anomalous scheme and
the arrangement whereby payments were to be made to
Alingasa. There is no averment relating to any "personal
demand" for the amount of ₱2,500.00.
Based on these considerations, we cannot conclude that the
complainants have personal knowledge of Erederos' and
Mendoza's participation in the anomalous act. At most, their
personal knowledge only extends to the acts of Alingasa who
is the recipient of all payments for the processing of
confirmation certificates. This situation, however, is affected
by the complainants' failure to specify Alingasa's act of
personally demanding ₱2,500.00 -a crucial element in
determining her guilt or innocence of the grave misconduct
charged.
With respect to Pedroza's allegation in her affidavit31 that
Alingasa and Erederos categorically told them that it was
Mendoza who instructed them to collect the ₱2,500.00 for the
confirmation certificates, we once again draw a distinction
between utterances or testimonies that are merely hearsay in
character or "non-hearsay," and those that are considered as
legal hearsay.
Non-hearsay v. legal hearsay, distinction
To the former belongs the fact that utterances or statements
were made; this class of extrajudicial utterances or
statements is offered not s an assertion to prove the truth of
the matter asserted, but only as to the fact of the utterance
made. The latter class, on the other hand, consists of the
truth of the facts asserted in the statement; this kind pertains
to extrajudicial utterances and statements that are offered as
evidence of the truth of the fact asserted.
The difference between these two classes of utterances lies
in the applicability of the rule on exclusion of hearsay
evidence. The first class, i.e. the fact that the statement was
made, is not covered by the hearsay rule, while the second
class, i.e. the truth of the facts asserted in the statement, is
covered by the hearsay rule. Pedroza's allegation belongs to
the first class; hence, it is inadmissible to prove the truth of
the facts asserted in the statement. The following discussion,
made m Patula v. People of the Philippines32 is particularly
instructive:
Moreover, the theory of the hearsay rule is that when a
human utterance is offered as evidence of the truth of the
fact asserted, the credit of the assertor becomes the basis of
inference, and, therefore, the assertion can be received s
evidence only when made on the witness stand, subject to
the test of cross-examination. However, if an extrajudicial
utterance is offered, not as an assertion to prove the matter
asserted but without reference to the truth of the matter
asserted, the hearsay rule does not apply. For example, in a
slander case, if a prosecution witness testifies that he heard
the accused say that the complainant was a thief, this
testimony is admissible not to prove that the complainant was
really a thief, but merely to show that the accused uttered
those words. This kind of utterance is hearsay in character
24
but is not legal hearsay. The distinction is, therefore,
between (a) the fact that the statement was made, to which
the hearsay rule does not apply, and (b) the truth of the facts
asserted in the statement, to which the hearsay rule applies.
[citations omitted]
Failure to identify the affidavits renders them inadmissible
under the hearsay evidence rule
We additionally note that the affidavits were never identified
by the complainants. All the allegations contained therein
were likewise uncorroborated by evidence, other than the
NBI/Progress report.
In Tapiador v. Office of the Ombudsman,33 we had the
occasion to rule on the implications of the affiants' failure to
appear during the preliminary investigation and to identify
their respective sworn statements, to wit:
Notably, the instant administrative complaint was resolved by
the Ombudsman merely on the basis of the evidence extant
in the record of OMB-ADM-0-94-0983. The preliminary
conference required under Republic Act No. 6770 was
dispensed with after the nominal complainant, then BID
Resident Ombudsman Ronaldo P. Ledesma, manifested on
July 29, 1996 that he was submitting the case for resolution
on the basis of the documents on record while the petitioner
agreed to simply file his memorandum. Consequently, the
only basis for the questioned resolution of the Ombudsman
dismissing the petitioner from the government service was
the unverified complaint-affidavit of Walter H. Beck and that
of his alleged witness, Purisima Terencio.
A thorough review of the records, however, showed that the
subject affidavits of Beck and Terencio were not even
identified by the respective affiants during the fact-finding
investigation conducted by the BID Resident Ombudsman at
the BID office in Manila. Neither did they appear during the
preliminary investigation to identify their respective sworn
statements despite prior notice before the investigating
officer who subsequently dismissed the criminal aspect of the
case upon finding that the charge against the petitioner "was
not supported by any evidence." Hence, Beck's affidavit is
hearsay and inadmissible in evidence. On this basis alone, the
Administrative Adjudication Bureau of the Office of the
Ombudsman should have dismissed the administrative
complaint against the petitioner in the first instance.
(emphasis supplied)
For the affiants' failure to identify their sworn statements,
and considering the seriousness of the charges filed, their
affidavits must not be accepted at face value and should be
treated as inadmissible under the hearsay evidence rule.
ii. NBI/Progress report
With regard to the NBI/Progress report submitted by the
complainants as corroborating evidence, the same should not
be given any weight. Contrary to the Ombudsman's
assertions, the report cannot help its case under the
circumstances of this case as it is insufficient to serve as
substantial basis. The pertinent portion of this report reads:
04. P/Sinsp. JESUS KABIGTING and Senior TRO ALFONSO
ALIANZA visited JAGNA District Office at Jagna, Bohol
wherein they were able to conduct interview with MR.
RODOLFO SANTOS, Officer-In-Charge who has assumed his
new post only in February 2002. During the conduct of the
interview, Mr. SANTOS revealed that the anomalous Dos-por-
Dos transactions have been prevented and eliminated when
the previous District Manager in the person of Mr. LEONARDO
G. OLAIVAR, who was transferred to Tagbilaran District Office
allegedly on a floating status and under the direct control and
supervision of its District Manager, Mr. GA VINO PADEN, Mr.
SANTOS allegations of the existence of "Dos-por-Dos"
transactions were supported by the records/documents
gathered of which the signatures of Mr. OLAIVAR affixed
thereof. Copies are hereto attached marked as Annexes D-D-
6.
xxxx
06. Submitted Affidavits of Ms. MARICAR G. HUETE, a
resident of Lahug, Cebu City and liaison Officer of GCY Parts,
Kabancalan Mandaue City and Mr. ERNESTO R. CARTILLAS a
resident of Basak, Mandaue City and liaison Officer of Isuzu
Cebu, Inc. in Jagobiao, Mandaue City stated among others
and both attested that: Annexes "E-E-1."
In order to secure the forms of Confirmation of Certificates,
you have to buy the same at the present cost of ₱2,500.00
per pad from CATALINA ALINGASA, an LTO Personnel, who
will remit her collections to a certain MARILYN MENDOZA V
da De EREDEROS, a niece and secretary of the Regional
Director, PORFERIO MENDOZA.34
This quoted portion shows that it was based on complainant
Huete's and Cantillas' affidavits. It constitutes double hearsay
because the material facts recited were not within the
personal knowledge of the officers who conducted the
investigation. As held in Africa, et al. v. Caltex Phil.) Inc., et
al.,35 reports of investigations made by law enforcement
officers or other public officials are hearsay unless they fall
within the scope of Section 44, Rule 130 of the Rules of
Court, to wit: The first question before Us refers to the
admissibility of certain reports on the fire prepared by the
Manila Police and Fire Departments and by a certain Captain
Tinio of the Armed Forces of the Philippines. xxx.
xxxx
There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer,
or by another person specially enjoined by law to do so; (b)
that it was made by the public officer in the performance of
his duties, or by such other person in the performance of a
duty specially enjoined by law; and (c) that the public officer
or other person had sufficient knowledge of the facts by him
25
stated, which must have been acquired by him personally or
through official information. (Moran, Comments on the Rules
of Court, Vol. 3 [1957] p. 383.)
Of the three requisites just stated, only the last need be
considered here. Obviously the material facts recited in the
reports as to the cause and circumstances of the fire were
not within the personal knowledge of the officers who
conducted the investigation. Was knowledge of such facts,
however, acquired by them through official information? xxx.
gross negligence by a public officer.37 The misconduct is
considered as grave if it involves additional elements such as
corruption or willful intent to violate the law or to disregard
established rules, which must be proven by substantial
evidence; otherwise, the misconduct is only simple.
Corruption, as an element of grave misconduct, consists in
the act of an official or fiduciary person who unlawfully and
wrongfully uses his station or character to procure some
benefit for himself or for another person, contrary to duty
and the rights of others.38

The reports in question do not constitute an exception to the
hearsay rule; the facts stated therein were not acquired by
the reporting officers through official information, not having
been given by the informants pursuant to any duty to do so.
[emphases ours]
The NBI/Progress report, having been submitted by the
officials in the performance of their duties not on the basis of
their own personal observation of the facts reported but
merely on the basis of the complainants affidavits, is hearsay.
Thus, the Deputy Ombudsman cannot rely on it.
Non-applicability of strict technical rules of procedure in
administrative or quasi-judicial bodies is not a license to
disregard certain fundamental evidentiary rules
While administrative or quasi-judicial bodies, such as the
Office of the Ombudsman, are not bound by the technical
rules of procedure, this rule cannot be taken as a license to
disregard fundamental evidentiary rules; the decision of the
administrative agencies and the evidence it relies upon must,
at the very least, be substantial. that:
Based on these rulings, the Deputy Ombudsman failed to
establish the elements of grave misconduct.1âwphi1 To
reiterate, no substantial evidence exists to show that
Erederos and Mendoza received collected payments from
Alingasa Their involvement or complicity in the allegedly
anomalous scheme cannot be justified under the affidavits of
the complainants and the NBI/Progress report, which are
both hearsay.
With respect to Alingasa, in view of the lack of substantial
evidence showing that she personally demanded the payment
of ₱2,500.00 – a crucial factor in the wrongdoing alleged –
we find that the elements of misconduct, simple or grave, to
be wanting and unproven.
WHEREFORE, in view of the foregoing, we hereby AFFIRM
the assailed decision dated November 22, 2005 and the
resolution dated April 21, 2006 of the Court of Appeals in CA-
G.R. SP Nos. 83149, 83150 and 83576.
SO ORDERED.

In Lepanto Consolidated Mining Company v. Dumapis,36 we

ruled that:

While it is true that administrative or quasi-judicial bodies like

the NLRC are not bound by the technical rules of procedure
in the adjudication of cases, this procedural rule should not
be construed as a license to disregard certain fundamental
evidentiary rules. The evidence presented must at least have
a modicum of admissibility for it to have probative value. Not
only must there be some evidence to support a finding or
conclusion, but the evidence must be substantial. Substantial
evidence is more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.

Conclusion

With a portion of the complainants affidavits and the

NBI/Progress report being hearsay evidence, the only
question that remains is whether the respondents conduct,
based on the evidence on record, amounted to grave
misconduct, warranting their dismissal in office.

Misconduct is a transgression of some established and

definite rule of action, more particularly, unlawful behavior or
26
G.R. No. 189171 June 3, 2014
EDILBERTO L. BARCELONA, Petitioner,
vs.
DAN JOEL LIM and RICHARD TAN, Respondents.
DECISION
SERENO, CJ:
This case involves a Petition for Review on Certiorari1 filed
under Rule 45 of the 1997 Rules of Civil Procedure, praying
for the reversal of the Decision2 of the Court of Appeals (CA)
dated 26 September 2008, and its subsequent Resolution3
dated 26 August 2009. Both dismissed the Petition for
Review4 filed by Edilberto L. Barcelona (petitioner) for lack of
merit.
The CA affirmed the Civil Service Commission (CSC)
Resolutions dated 18 December 20065 and 28 August
2007,6which in turn affirmed the Order dated 27September
2000 issued by the Chairperson of the National Labor
Relations Commission (NLRC), Roy V. Señeres (Chairperson
Señeres or simply Chairperson). The Order barred petitioner,
who was then the officer-in-charge of the Public Assistance
Center of the NLRC, from entering its premises a month
before the Efficiency and Integrity Board (Board) could
investigate the administrative case for dishonesty and grave
misconduct filed against him.
The records disclose that on 14 August 2000, respondent
businessman Dan Joel Lim (Lim), the owner of Top Gun
Billiards, filed a Sinumpaang Salaysay (sworn statement) with
the Criminal Intelligence Division of the National Bureau of
Investigation (NBI). Lim claimed as follows: (1) his
employees, Arnel E.Ditan and Pilipino Ubante, were
influenced by petitioner to file a labor complaint against Lim;7
and (2) petitioner, then an NLRC officer, demanded 20,000
for the settlement of the labor case filed against Lim. On the
strength of this sworn statement, the NBI organized an
entrapment operation against petitioner.
On 16 August 2000, Lim informed the NBI that petitioner
would drop by Top Gun Billiards around seven o’clock in the
evening, expecting to receive the 20,000 petitioner was
demanding from him; otherwise, petitioner would order that
Top Gun Billiards be closed. After Lim handed him the
marked bills, petitioner began counting them. The latter was
arrested by the NBI right when he was about to put the
money in his bag.
After being duly informed of his constitutional rights,
petitioner was brought to the NBI office where he was
booked, photographed, and fingerprinted. Thereafter, he
underwent ultraviolet light examination. The Certification
dated 16 August 2000of the NBI-Forensic Chemistry Division
stated that his hands "showed the presence [of] Yellow
Fluorescent Specks and Smudges,"8 and that "[s]imilar
examinations made on the money bills showed the presence
of yellow fluorescent specks and smudges x x x."9
In a letter to the City Prosecutor of Manila, NBI Director
Federico M. Opinion, Jr. recommended the prosecution of
petitioner for robbery under Article 293 of the Revised Penal
Code (RPC) and violation of Republic Act No. (R.A.) 3019 or
the Anti-Graft and Corrupt Practices Act. The NBI filed the
Complaint. Finding probable cause, the City Prosecutor filed
with the Regional Trial Court (RTC) of Manila on 18 August
2000 an Information against petitioner for the crime of
robbery.
It was further discovered that while the inquest papers were
being prepared by the NBI, Richard Tan (Tan), owner of Tai
Hing Glass Supply, had filed a similar extortion Complaint
against petitioner. The latter supposedly asked him to pay
₱15,000 in exchange for the settlement of a fabricated
case.10
Reports of the circumstances leading to the arrest and filing
of the Complaints against petitioner were submitted by Tan
and Lim to Chairperson Señeres. On17 August 2000, copies
of the documentary evidence11 against petitioner were
likewise endorsed to the Chairperson.12
Finding a prima facie case against petitioner, Chairperson
Señeres issued Administrative Order No. 9-02 Series of 2000
on 1 September 2000, formally charging him with dishonesty
and grave misconduct. The Order created a panel (the Board)
to look into the present case; require petitioner to file an
answer to the charges; conduct an investigation; and
thereafter submit its report/recommendation.13 The Order
also placed petitioner under a 90-day preventive suspension
upon receipt thereof.
The Board issued a Summons dated 19 September 2000
directing petitioner to answer the charges against him. Both
the Order and the Summons were served on him, but he
refused to receive them.14 He never filed an Answer.
Lim, Tan, and the NBI agents involved in the entrapment
operations appeared at the preliminary investigation
conducted by the Board on 28 September 2000 in order to
confirm their accusations against petitioner.
On 23 October 2000, the Board conducted a hearing
attended by petitioner with three of his lawyers. He
manifested therein that he was not subjecting himself to its
jurisdiction.15 Thus, he left without receiving copies of the
Order and other documents pertinent to the case.16
The Board resolved the administrative case ex parte. It found
that petitioner had been caught red-handed in the
entrapment operation. His guilt having been substantially
established,17 the Board in its 31 October 2000
Report/Recommendation18 found him guilty of dishonesty
and grave misconduct. Upon approval of this
27
recommendation by NLRC Chairperson Señeres on 14
November 2000, petitioner was dismissed from service.
A copy of the Board’s Decision was received by petitioner on
22 November 2000. On 1 December 2000, he filed a Motion
for Extension of Time Within Which to File the Proper
Responsive Pleading, but it was denied.19
Petitioner appealed to the CSC. In his Appeal
Memorandum,20 he presented his side of the story. He
claimed to have visited Lim’s establishment to play billiards
every now and then. Before going home, he would
supposedly drop by the place, which was a mere 5- to 10-
minute tricycle ride away from where he lived.21 When Lim’s
employees discovered that petitioner worked for the NLRC,
they told him of their employer’s labor law violations.22 Thus,
petitioner assisted them in filing a case against Lim and later
scheduled the case for a conference on 10 August 2000.
Two days before the scheduled conference, petitioner was
informed by one of the employees that Lim wanted to speak
with him. Lim supposedly offered petitioner money to drop
the labor case filed against the former. According to
petitioner, this offer was "flatly rejected."23
The next day, when petitioner went to Lim’s establishment to
play billiards, a billiard hustler by the name of Abel Batirzal
(hustler) informed him that Lim required everyone playing in
the establishment to lay a wager on the games they
played.24 Since he "abhorred" gambling, petitioner decided
to discourage the hustler by raising the amount the latter
proposed.25
Petitioner lost to the hustler. As the former was about to
leave the establishment, he discovered that his cellular phone
and pack of Philip Morris cigarettes were no longer where he
left them. The security guard on duty informed him that a
certain Ian Gumban had stolen the items.26
Petitioner went straight to the Western Police District Station
and filed a Complaint for theft, billiard hustling, syndicated
gambling, swindling, and violation of city ordinances against
Lim and three of the latter’s employees or friends.27
A day after the foregoing incident, or on 10August 2000,
neither Lim nor his employees appeared at the scheduled
conference. On the evening of the same day, petitioner went
to Lim’s establishment to check on the employees. There they
told him to consider their Complaint withdrawn, since Lim had
already decided to settle the case with them. Accordingly, the
case was dropped from the NLRC’s calendar.28
Petitioner claims that on 16 August 2000, the day of the
alleged entrapment, he received a call from Lim. The person
who had stolen petitioner’s cellphone was supposedly willing
to return it at seven that evening at Lim’s billiards hall.29
When petitioner arrived, he saw Lim and one of the latter’s
employees. Lim approached petitioner and informed him that
the thief could no longer return the phone. The thief had
allegedly decided to just pay the value of the phone and
entrust the money to Lim. The latter tried to give the money
to petitioner and urged him to count it, as the former was not
sure how much the thief had given. Petitioner supposedly
refused to receive and count the cash and, instead, insisted
that Lim arrange a meeting with the thief.30
Because petitioner would not take the money, Lim inserted
the wad of cash into the open pocket of the former’s shoulder
bag.31Just when petitioner was about to pull out the money
and throw it back to Lim, the NBI agents appeared and
arrested petitioner who recalls the incident as follows:
x x x [W]hile trying to retrieve the unduly incriminating wad
of money to throw it back to Mr. Lim, aboutfive or seven
burly men accosted petitioner without properly identifying
themselves and with strong-arm tactics, hand-cuffed him
over his vehement protestations. One of the burly men even
pointed his gun at petitioner’s face as he and his companions
wrestled petitioner to a car. x x x.32
With respect to Tan, petitioner claims that the latter never
demanded or received any sum of money from him.
Allegedly, Tan was only displeased with petitioner’s active
assistance to one of Tan’s aggrieved employees.33
Petitioner further claims that even before Chairperson
Señeres formally charged him with dishonesty and grave
misconduct, the former had already filed an urgent request
for an emergency leave of absence because of the alarming
threats being made against him and the members of his
family.34
Petitioner asked the CSC to nullify the 27 September 2000
Order of Chairperson Señeres. The Order barred petitioner
from entering the NLRC premises a month before the hearing
conducted by the Board. He then questioned its impartiality.
As proof of his allegation, he made much of the fact that the
Board denied his Motion for Extension of Time Within Which
to File a Proper Responsive Pleading.35
Six years after petitioner had filed his Appeal Memorandum,
the CSC dismissed it. The dispositive portion of its
Resolution36 dated 18 December 2006 reads:
WHEREFORE, the appeal of Edilberto S. (sic) Barcelona is
hereby DISMISSED. Accordingly, the Decision dated
November 14, 2000 of Roy R. Seneres, [Chairperson,] (NLRC)
finding him guilty of Dishonesty and Grave Misconduct and
imposing upon him the penalty of dismissal from the service
with the accessory penalties of disqualification from re-
entering government service, forfeiture of retirement benefits
and bar from taking any civil service examinations is hereby
AFFIRMED.37
Petitioner filed a Motion for Reconsideration on 15 January
2007.38 He questioned the validity of his dismissal by
asserting that before its implementation, the NLRC had the
28
legal duty of obtaining its confirmation by the Department of
Labor and Employment (Labor) Secretary.39
On 28 August 2007, petitioner’s Motion for Reconsideration
was denied by the CSC through a Resolution.40
Petitioner filed a Petition for Review, but it was dismissed by
the CA in the assailed Decision dated 26 September 2008.41
A Motion for Reconsideration with Motion for Voluntary
Inhibition of Honorable Justice Vicente S.E. Veloso (Justice
Veloso)42 was then filed by petitioner. The latter cited the
following reasons for the prayer for inhibition:
1) Honorable Justice Veloso was a Commissioner of public
respondent NLRC at the time of the subject incident; and
2) The undersigned counsel, eldest son of petitioner, just
recently resigned from the law firm where the daughter of
Justice Veloso is working.43
Justice Veloso, in a Resolution44 dated 27 February 2009,
stated that while the grounds invoked by petitioner did not
constitute valid bases for an inhibition, the former would
voluntarily inhibit "to assuage petitioner in whatever fears he
may have" over the CA’s handling of the Motion for
Reconsideration.
Thereafter, the CA issued the assailed Resolution45 dated 26
August 2009 denying petitioner’s Motion for Reconsideration.
In spite of his voluntary inhibition, Justice Veloso still signed
the herein questioned Resolution to signify his concurrence.
Hence, this Petition praying for the reversal of the Decision
and Resolution of the appellate court and the dismissal of the
administrative Complaint filed against petitioner.46
This Court required respondents Lim and Tan to file their
respective Comments, but neither of them complied. Since
copies of the Resolution ordering them to Comment were
personally served upon them, the Court resolved to consider
them to have waived their right to comment on the
Petition.47
Petitioner comes before this Court raising the following
arguments:
1. The CA decided a question of substance "not in accord
with the applicable law and jurisprudence" when it:
a. Denied petitioner’s Motion for Reconsideration with the
participation of Justice Veloso, who had earlier voluntarily
inhibited himself from the case.
b. Ruled that petitioner was not denied due process of law in
spite of overwhelming proof that the NLRC chairperson failed
to act with impartiality in deciding petitioner’s case.
c. Ruled that petitioner’s appeal to the CSC had not been filed
on time, even though the commission itself did not question
the timeliness of that.1âwphi1
d. Ruled that the findings of the CSC were supported by
evidence.
2. The CA, like the CSC, failed to address all the issues
presented by petitioner when it chose to keep silent on the
following issues:
a. The denial of the right of petitioner to the speedy
disposition of his case; and
b. The failure of the disciplining authority to obtain the
confirmation by the Department head of the former’s decision
to dismiss petitioner from service.48
We reduce the issues to the following:
I
Whether petitioner was denied due process of law;
II
Whether the factual findings of the CSC are supported by
evidence;
III
Whether the CA had the authority to review matters not
assigned by the parties as issues;
IV
Whether the right of petitioner to the speedy disposition of
his case has been violated by the CSC; and
V
Whether the NLRC violated the Civil Service Rules provision,
which allows the execution of a penalty of removal decreed
by a bureau or office head, pending appeal thereof to the
CSC, only when the penalty has been confirmed by the
Secretary of the department concerned.
Petitioner was not denied due
process of law.
Petitioner claims he was denied due process of law due to the
partiality of Chairperson Señeres, the Board, the CSC, and the
CA.
Considering the many complaints of petitioner, we deem it
best to present an exhaustive outline of his entire evidence
therefor. Below are several circumstances he cites to prove
that he was not afforded the right to be heard by an
independent and impartial tribunal.
29

According to petitioner, Chairperson Señeres served not only
as the former’s accuser, but also as judge and executioner.49
The Chairperson’s partiality was supposedly demonstrated by
the following acts:
1. On 10 November 2000, petitioner and his two sons
allegedly approached and asked Chairperson Señeres why he
was persecuting petitioner. The Chairperson supposedly
replied: "Wala akong pakialam. Pasensya kayo. Tapos na ang
tatay ninyo!"50
2. Chairperson Señeres issued defamatory press releases to
the media announcing the preventive suspension of petitioner
and depicting the latter as a corrupt government official. The
Chairperson allegedly took advantage of the situation of
petitioner in support of the former’s then prospective political
career, to wit:
x x x [A]t the expense of petitioner, [he] took advantage of
the opportunity to project himself as a graft buster to further
his sagging political career and burning senatorial ambitions
by immediately issuing press releases and causing the
malicious publication of the petitioner’s preventive suspension
without affording the latter due process of law.51
3. Lim never filed a written complaint against petitioner as
required by Section 8 of the Civil Service Rules and,
consequently, the latter was not given the chance to file a
counter-affidavit or comment on the written Complaint as
mandated by Section 11 of the Civil Service Rules.
4. No preliminary investigation was conducted as required by
Section 12 of the Civil Service Rules.
5. Chairperson Señeres failed to serve the formal charge to
petitioner in accordance with Section 16 of the Uniform Rules
on Administrative Cases in the Civil Service (Civil Service
Rules).52
6. The Order dated 1 September 2000, which immediately
placed petitioner under a 90-day preventive suspension,
supposedly violated the requirement in Section 19 of the Civil
Service Rules that an order of preventive suspension be
issued only upon service of the formal charge.
7. The Board created by Señeres to investigate the case
denied the Motion for Extension of Time filed by petitioner, in
order to ensure that the latter would no longer be able to
return to work.
As for the Board, its "lack of and glaring absence of
impartiality and objectivity" was supposedly shown by the
following:53
1. A substantial portion of the Report/Recommendation of the
Board shows that it delved into petitioner’s expression of
protest against the Chairperson’s unfair treatment, and
thereby reinforced petitioner’s apprehension that the case
would not be resolved on its merits.
2. The denial of petitioner’s Motion for Extension of Time
Within Which to File the Proper Responsive Pleading dated 1
December 2000 was allegedly unjust and groundless.
With respect to the CSC, petitioner claims that it "curiously
amended" Section 43(2) of the Civil Service Rules only three
weeks after he had filed his Motion for Reconsideration of the
Resolution denying his appeal.54
Lastly, petitioner bewails the supposed haphazard manner in
which the CA disposed of his claim that he had been denied
due process of law. He claimed that it simply dismissed the
issue through a one-sentence ruling, which reads:
On the alleged failure of the NLRC to observe impartiality,
suffice it to say that petitioner failed to present proof to
substantiate his self-serving allegations.55
In the eyes of petitioner, it would appear that every agency
of the government that had a hand in this case was, at his
expense, either motivated by personal bias or driven by the
desire to advance its members’ political or professional
careers in the government.
Petitioner’s claims are without merit.
Contrary to the assertions of petitioner, Chairperson Señeres
did not act as the former’s accuser, judge and executioner.56
To be clear, the accusers of petitioner were Lim and Tan,
while his judge was an independent Board formed to
investigate his case. This Court is aware that the Board only
had the power to recommend, and that that latter’s
recommendation was still subject to the approval of the
Chairperson. Still, petitioner cannot claim that he was denied
due process on this basis alone, because the remedy to
appeal to the proper administrative body—the CSC in this
case—was still made available to him.
Petitioner claims that Sections 8,11, 12, 16, and 19 of the
Civil Service Rules were violated by Chairperson Señeres.
Petitioner misses the point that strict compliance with the
rules of procedure in administrative cases is not required by
law. Administrative rules of procedure should be construed
liberally in order to promote their object as well as to assist
the parties in obtaining a just, speedy and inexpensive
determination of their respective claims and defenses.57
This Court finds that both Chairperson Señeres and the Board
essentially complied with the procedure laid down in the Civil
Service Rules. Where due process is present, the
administrative decision is generally sustained.58
The claim of petitioner that he was denied due process is
negated by the circumstances of the case at bar.
30
The Report/Recommendation of the Board shows that both
complainant and respondent were given the opportunity to be
heard by the Board and to adduce their respective sets of
evidence, which were duly considered and taken into account
in its Decision.
Petitioner insists that Lim never filed a written complaint
against him as required by Section 8 of the Civil Service
Rules. Petitioner further complains that he was not given the
chance to file a counter affidavit, a right provided by Section
11 of the Civil Service Rules. The records disclose, however,
that reports leading to his arrest and the filing of the
Complaint against him were submitted by Tan and Lim to the
Chairperson of the NLRC. On the basis of the sworn
statements supporting the criminal Complaint against
petitioner, Chairperson Señeres found a prima facie case
against him and issued the Order formally charging him with
dishonesty and grave misconduct.
Furthermore, the Board gave petitioner the chance to answer
the charges against him when it issued its 19 September
2000 Summons for that very purpose. He does not deny that
he was served a copy of the Summons, but that he refused to
receive it. It was his choice not to file an answer. After he
decided to waive this right, we cannot now allow him to claim
that he has been deprived of the right to air his side through
an answer or a counter-affidavit.
Petitioner further claims that Chairperson Señeres violated
Section 12 of the Civil Service Rules when the latter
dispensed with the requirement of conducting a preliminary
investigation. It is important to note that this preliminary
investigation required by Section 12 of the Civil Service Rules
is not the same as that required in criminal cases. Section 12
defines a preliminary investigation of administrative cases in
the Civil Service as an "ex parte examination of records and
documents submitted by the complainant and the person
complained of, as well as documents readily available from
other government offices." Petitioner presents no evidence to
prove that either Chairperson Señeres or the Board failed to
examine these records. In fact, the records show that, on 28
September 2000, Lim and Tan appeared in the preliminary
investigation conducted by the Board to confirm their sworn
statements and the criminal cases they had filed against
petitioner. That he submitted no documents for consideration
in the preliminary investigation was his choice.
According to petitioner, no formal charge was ever filed
against him as mandated by Section 16 of the Civil Service
Rules. He now claims that Chairperson Señeres had no right
to place him under preventive suspension, because Section
19 of the Civil Service Rules requires that a formal charge be
served on petitioner before an order of preventive suspension
may be issued. The provision reads:
SECTION 19. Preventive Suspension. — Upon petition of the
complainant or motu proprio, the proper disciplining authority
may issue an order of preventive suspension upon service of
the Formal Charge, or immediately thereafter to any
subordinate officer or employee under his authority pending
an investigation, if the charge involves:
a. dishonesty;
b. oppression;
c. grave misconduct;
d. neglect in the performance of duty; or
e. If there are reasons to believe that the respondent is guilty
of charges which would warrant his removal from the service.
An order of preventive suspension may be issued to
temporarily remove the respondent from the scene of his
misfeasance or malfeasance and to preclude the possibility of
exerting undue influence or pressure on the witnesses
against him or tampering of documentary evidence on file
with his Office.
In lieu of preventive suspension, for the same purpose, the
proper disciplining authority or head of office, may reassign
respondent to other units of the agency during the formal
hearings.
In this case, the Order was the formal charge. It was served
on petitioner, but he refused to receive it. He claims that on
27 September 2000, or a month before the hearing
conducted by the Board, Chairperson Señeres barred him
from entering the NLRC premises. Petitioner was thereby
denied access to evidence and witnesses that could support
his case.59 But, as revealed by Section 19, Chairperson
Señeres had the right to issue an Order of preventive
suspension pending investigation by the Board, because
petitioner was being charged with dishonesty and grave
misconduct.
Moreover, the Order of Chairperson Señeres preventing
petitioner from entering the latter’s office was also valid
under Section 19. This Order was meant to preclude
petitioner from possibly exerting undue influence or pressure
on the witnesses against him or to prevent him from
tampering with documentary evidence on file with his office.
This preventive measure is sanctioned by law.
As established by the facts, petitioner was given the
opportunity to be heard and to adduce his evidence. This
opportunity was enough for one to comply with the
requirements of due process in an administrative case. The
formalities usually attendant in court hearings need not be
present in an administrative investigation, as long as the
parties are heard and given the opportunity to adduce their
respective sets of evidence.60
As regards the charge of lack of impartiality, we agree with
the CA’s pronouncement that petitioner failed to substantiate
his self-serving allegations. Mere suspicion of partiality does
not suffice.61
31
Chairperson Señeres released statements to the media
regarding the case of petitioner and allegedly told him and
his children that the Chairperson did not care about their
woes. Assuming this allegation to be true, it did not
necessarily mean that Chairperson Señeres was incapable of
deciding the case without bias. These acts did not
satisfactorily prove the claim that in order to promote and
further his political ambitions, he took advantage of
petitioner’s situation. As the NLRC Chairperson, he had the
duty to answer the questions of the media on the status of
the cases against graft and corrupt practices involving
government officials under his commission. Furthermore, his
statements to petitioner and the latter’s family are not
sufficient for this Court to believe that every one of his acts,
in relation to the case of petitioner, was meant to ensure the
latter’s downfall at whatever cost.
Similarly, the denial of petitioner’s Motion for Extension of
Time, does not prove that the tribunal failed to be impartial.
Petitioner is banking on one incident in which his Motion was
denied. The denial in itself, without any extrinsic evidence to
establish bias, does not prove that he was denied his right to
be judged by an impartial and independent tribunal. While
petitioner had the right to file a Motion for Extension of Time,
he did not have the right to expect that the Motion would be
granted. Absent any proof that the denial of this motion was
made in grave abuse of discretion amounting to lack or
excess of jurisdiction, the Court will not interfere with the
pronouncement of the quasi-judicial body.
Lastly, the CSC has the power and the authority to amend the
Civil Service Rules whenever it deems the amendment
necessary. The insinuation of petitioner that this change was
made for the sole purpose of hurting his appeal is a mere
product of his imagination. The CSC is under no obligation to
review all the cases before it and, on the basis thereof,
decide whether or not to amend its internal rules.
We note, though, that the authority of the CSC to amend the
rules does not give it the authority to apply the new provision
retroactively. The consequence of an illegal retroactive
application of a provision is discussed below.
The finding of the CSC that
petitioner is guilty of dishonesty and
grave misconduct is supported by the
evidence.
With respect to the sufficiency of the evidence supporting the
factual findings of the CSC, the CA ruled as follows:
Finally, it is well-settled that findings of fact of quasi-judicial
agencies such as the Civil Service Commission are generally
accorded respect and even finality by this Court and the
Supreme Court, if supported by substantial evidence, in
recognition of their expertise on the specific matters under
their consideration.62
Petitioner now claims that the CA did not even bother to
discuss his allegation that the findings of the CSC were not
supported by evidence.63 Unimpressed by the CA Resolution,
he is now asking this Court to review the factual findings of
the CSC.
Believing that the CSC found him guilty based on the
Sinumpaang Salaysay executed by Lim before the NBI,
petitioner insists that this piece of evidence is insufficient to
support the CSC’s conclusions.64 He claims that there is no
specific allegation in the sworn statement of Lim whether
petitioner demanded money from the former; "who set the
alleged August 16, 2000 meeting at Mr. Lim’s billiard center;
how it was agreed; and what was the purpose of that
meeting."65
Petitioner casts doubt on the veracity of the statements of
Lim, who supposedly filed a report against him with the NBI a
few days after filing a theft Complaint against him.66
According to petitioner, Lim should not be believed, because
all of the latter’s allegations are fueled only by vengefulness.
After claiming that Lim’s statement should not be trusted
because of "ill-motive,"67 petitioner now questions the
motives of the CSC and the NBI.
Anent the reliance of the CSC on the Sinumpaang Salaysay,
petitioner decries:
To an unprejudiced, reasonable mind, the statement of Mr.
Lim is not sufficient evidence to pin down petitioner for such
a serious offense as Dishonesty and Grave Misconduct. The
NLRC read more into the document and put words into the
mouth of Mr. Lim.
Unfortunately, the CSC blindly affirmed the NLRC’s findings
just to dispose of the case after unreasonably sitting on it for
more than six (6) long years.68
With respect to the NBI agents, petitioner harps on their
eagerness to believe Lim’s Complaint without even bothering
to investigate. Petitioner explains his point:
[T]he NBI agents who conducted the alleged entrapment
operation were motivated by the desire to record an
"accomplishment" and to obtain "commendatory results" due
to the highly competitive police function and law enforcement
activities."69
We affirm the CA’s findings.
First, except for his accusations, petitioner presents no proof
that the CSC "blindly" affirmed the NLRC’s ruling just to get
rid of the case. A reading of the Resolutions of the CSC
reveals otherwise. They thoroughly discussed the factual
circumstances surrounding this case, the evidence, and why
and how the conclusion was reached. In order to overcome
the validity of these Resolutions, petitioner must present
32
evidence to prove that the evidence relied on by the CSC was
unsubstantial.
In attempting to prove that the evidence presented was
insufficient to prove his guilt, petitioner asks this Court to
focus on the inadequacy of Lim’s Sinumpaang Salaysay.
Contrary to these assertions, however, the following pieces of
evidence—in addition to Lim’s sworn statement—were
considered by the CSC in resolving petitioner’s appeal:
1. The sworn statement of Tan, who appeared in the
preliminary investigation conducted by the Board to confirm
that he had filed a similar extortion Complaint against
petitioner;70
2. The Report and the evidence presented by NBI Special
Investigator Marvin E. de Jemil, who appeared before the
Board to confirm the contents of his Report, findings, and
evidence against petitioner in support of the administrative
charges filed against the latter; and
3. The statement of the arresting officers who apprehended
petitioner in the entrapment operation, and who also
appeared in the continuing investigation to affirm the
contents of their Joint Affidavit of Arrest.71
Factual findings of administrative bodies like the CSC are
binding on this Court, unless these findings are not supported
by substantial evidence.72 In this case, we rule that the
findings of fact and conclusions of the CSC have passed the
test of substantiality. It is sufficient that administrative
findings of fact are supported by the evidence on record; or,
stated negatively, it is sufficient that findings of fact are not
shown to be unsupported by evidence.73 The absence of
substantial evidence is not shown by stressing that there is
contrary evidence on record, whether direct or
circumstantial.74
All the pieces of evidence presented before the CSC point to
the guilt of petitioner. Several persons, both private
individuals and law enforcers, came forward to testify and
present evidence to prove the allegations against him. In
fact, each testimony corroborated the testimonies of the
others, effectively allowing the CSC to form a complete
picture of the incidents that led to the ultimate act of
extortion.
As defined in the landmark case Ang Tibay v. Court of
Industrial Relations,75 all that is needed to support an
administrative finding of fact is substantial evidence, which is
defined as "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." The
evidence presented in the present case is more than enough
to support the conclusion reached.
Where the findings of fact of a quasi-judicial body are
supported by substantial evidence, these findings are
conclusive and binding on the appellate court.76 Thus, the
CA did not err in ruling that the CSC had committed no error
in finding that petitioner was guilty of dishonesty and grave
misconduct.
In the case at bar, petitioner accuses the NBI agents of being
driven by "ill-motive." In the absence of credible evidence,
the presumption of regularity in the performance of their
duties prevails over his unsubstantiated and self-serving
assertions, to wit:
Between the naked assertions of accused-appellant and the
story recounted by the NARCOM agents, jurisprudence
dictates that the latter is to be given more weight. Aside from
having in his favor the presumption of regular performance of
duty, we find as the court a quo did that the testimony of Lt.
Cantos is more credible, being fully and convincingly
corroborated, as opposed to that of accused-appellant.
Besides, no improper motive to falsely accuse appellant could
be imputed to him. In the absence of proof of such motive to
falsely impute a serious crime against appellant, the
presumption of regularity in the performance of official duty
as well as the findings of the trial court on the credibility of
witnesses must prevail over the self-serving and
uncorroborated claim of having been "framed up."77
This rule holds true for the present case. Not only do the NBI
agents have in their favor the presumption of regularity in the
performance of their duties; their statements are credible and
corroborated as well. After being caught red-handed,
petitioner needs extrinsic evidence to back up his allegations
to prove that the NBI agents had an ulterior motive to falsely
impute the crime to him.
The appellate court has the authority
to review matters that the parties
have not specifically raised or
assigned as error.
Petitioner questions the propriety of the following
pronouncement of the CA:
We likewise note that petitioner’s appeal to the CSC was
made beyond the reglementary period. Admittedly, petitioner
received the Decision of the NLRC on 22 November 2000.
Petitioner’s motion for extension of time within which to file
the proper responsive pleading filed on 1 December 2000 did
not stop the running of the period for its finality, and the
Notice of Appeal and Appeal Memorandum were filed only on
27 December 2000 or one (1) month and five (5) days from
receipt of the Decision. Petitioner erroneously counted the
period within which to appeal from the date he received the
Order denying his motion for extension to file his responsive
pleading.78
While petitioner does not deny that his appeal to the CSC was
filed beyond the reglementary period, he argues that the
timeliness of his appeal has never been an issue. He thus
claims that only the issues raised by the parties may be
resolved by the Court.
33
Petitioner is mistaken. An appeal throws the entire case open
for review, viz:
[A]n appeal, once accepted by this Court, throws the entire
case open to review, and that this Court has the authority to
review matters not specifically raised or assigned as error by
the parties, if their consideration is necessary in arriving at a
just resolution of the case.79
Petitioner adds that the CA erred in applying technical rules
strictly. According to him, if its strict application of the rules
would tend to frustrate rather than promote justice, it is
within this Court’s power to suspend the rules or except a
particular case from their operation.80
We agree with petitioner’s claim that rules of procedure are
established to secure substantial justice, and that technical
requirements may be dispensed with in meritorious cases.
However, we do not see how the CA, in deciding the case at
bar, could have overlooked this policy. Although it took notice
of the failure of petitioner to file his appeal with the CSC on
time, and perhaps used this failure as a supporting argument,
it did not dismiss the Petition on that sole ground. In fact, a
perusal of the CA Decision now in question will reveal that
the appellate court took cognizance of the case and
adequately discussed the pertinent issues raised by
petitioner.
No violation of the right of petitioner
to the speedy disposition of his case.
Petitioner filed his Notice of Appeal and Appeal Memorandum
with the CSC on 27 December 2000,81 but it only issued its
Resolution on 18 December 2006.
According to petitioner, he sees no justifiable reason for the
six-year delay in the resolution of his appeal before the
CSC.82 He is now asking this Court to "rectify" the wrong
committed against him and his family by absolving him of the
administrative charges.83
Section 16, Rule III of the 1987 Philippine Constitution,
reads:
Sec. 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
The right to a speedy disposition of cases is guaranteed by
the Constitution. The concept of speedy disposition is flexible.
The fact that it took the CSC six years to resolve the appeal
of petitioner does not, by itself, automatically prove that he
was denied his right to the speedy disposition of his case.
After all, a mere mathematical reckoning of the time involved
is not sufficient, as the facts and circumstances peculiar to
the case must also be considered.84
Caballero v. Alfonso, Jr.,85 laid down the guidelines for
determining the applicability of Section 16, Rule III, to wit:
In the determination of whether or not the right to a "speedy
trial" has been violated, certain factors may be considered
and balanced against each other. These are length of delay,
reason for the delay, assertion of the right or failure to assert
it, and prejudice caused by the delay. x x x.
The CSC maintains that "[p]etitioner failed to assert such
right before the proceedings in the CSC and, even assuming
that there was delay in resolution of his appeal before the
CSC, no prejudice was caused to him."86
Petitioner, on the other hand, insists that the fact that he
made several telephone calls to inquire about the status of
his appeal87 and sent to the Commissioner of the CSC a
letter dated 2 March 2001, informing the latter that the case
had been "forwarded to CSC-Main without action of CSC-
NCR,"88 sufficiently proves that he did not fail to assert his
right.
On this particular point, we have to agree with the CSC that
"the alleged telephone calls made by petitioner are self-
serving and lack corroborative evidence."89 Since there is no
way of ascertaining whether or not he actually made these
phone calls, this allegation cannot be given any probative
value.
As to the letter petitioner allegedly sent to CSC Commissioner
Jose Erestain, Jr., it is apparent from the face of the letter
that there is no indication at all that the intended recipient
actually received it.
The right to a speedy trial, as well as other rights conferred
by the Constitution or statute, may be waived except when
otherwise expressly provided by law. One’s right to the
speedy disposition of his case must therefore be asserted.90
Due to the failure of petitioner to assert this right, he is
considered to have waived it.
The NLRC did not violate the rule
against the execution of a penalty of
removal pending appeal to the CSC.
According to petitioner, when he filed his Motion for
Reconsideration with the CSC on 15 January 2007, Section 43
of Rule III of the Civil Service Rules provided that a penalty
of removal from government service could not be executed
pending appeal, unless the Department Secretary concerned
confirmed the imposition of the penalty,91 viz:
SECTION 43. Filing of Appeals. — Decisions of heads of
departments, agencies, provinces, cities, municipalities and
other instrumentalities imposing a penalty exceeding thirty
(30)days suspension or fine in an amount exceeding thirty
days salary, may be appealed to the Commission Proper
within a period of fifteen (15) days from receipt thereof.
In case the decision rendered by a bureau or office head is
appealable to the Commission, the same may be initially
34
appealed to the department head and finally to the
Commission Proper. Pending appeal, the same shall be
executory except where the penalty is removal, in which case
the same shall be executory only after confirmation by the
Secretary concerned.
A notice of appeal including the appeal memorandum shall be
filed with the appellate authority, copy furnished the
disciplining office. The latter shall submit the records of the
case, which shall be systematically and chronologically
arranged, paged and securely bound to prevent loss, with its
comment, within fifteen (15) days, to the appellate authority.
(Emphasis supplied)
However, on 7 February 2007, the CSC issued Resolution No.
07-0244,92 which amended the aforementioned provision of
the Civil Service Rules. The pertinent portion of the CSC
Resolution reads:
Section 43. Filing of Appeals. — Decisions of heads of
department, agencies, provinces, cities, municipalities and
other instrumentalities imposing a penalty exceeding thirty
(30)days suspension or fine in an amount exceeding thirty
days salary, may be appealed to the Commission Proper
within a period of fifteen (15) days from receipt thereof.
In case the decision rendered by a bureau or office head is
appealable to the Commission, the same may be initially
appealed to the department head and finally to the
Commission Proper. Pending appeal, the same shall be
executory except where the penalty is removal, in which case
the same shall be executory only after confirmation by the
Secretary concerned.
Unless otherwise provided by law, the decision of the head of
an attached agency imposing a penalty exceeding thirty (30)
days suspension or fine in an amount exceeding thirty days'
salary, demotion in rank or salary or transfer, removal or
dismissal from office is appealable directly to the Commission
Proper within a period of fifteen (15) days from receipt
thereof. Pending appeal, the penalty imposed shall be
executory, including the penalty of removal from the service
without need for the confirmation by the department
secretary to which the agency is attached.
A notice of appeal including the appeal memorandum shall be
filed with the appellate authority, copy furnished the
disciplining office. The later shall submit the records of the
case, which shall be systematically and chronologically
arranged, paged and securely bound to prevent loss, with its
comment, within fifteen (15) days, to the appellate authority.
(Emphasis in the original)
It appears that Section 43 of the Civil Service Rules is self-
contradicting. While the second paragraph provides that a
penalty of removal "shall be executory only after confirmation
by the Secretary concerned," the third paragraph states:
"Pending appeal, the penalty imposed shall be executory,
including the penalty of removal from the service without
need for the confirmation by the department secretary to
which the agency is attached." The CSC should look into the
implication and/or consequence of its amendment of the rules
and should clarify how the newly enacted paragraph can
operate, without conflict, with the reenacted provisions of the
old Section 43.
In any case, even if we were to assume that the new rules
now declare that a penalty of removal shall be executory
pending appeal, without need for confirmation by the
secretary of the Department to which the agency is attached,
this rule cannot and should not be applied to petitioner’s
case.
Resolution No. 07-0244 became effective 15 days after 21
March 2007, the day it was published, or a few months
before the CSC denied petitioner’s Motion for
Reconsideration. This Court cannot declare that the
amendment of the Civil Service Rules while the case of
petitioner was pending proves the lack of impartiality on the
CSC’s part as petitioner claims. However, it can and does now
declare that the CSC had no right to retroactively apply the
amended provision to petitioner’s case.
Laws shall have no retroactive effect, unless the contrary is
provided.93 When petitioner was dismissed, the old Section
43 of the Civil Service Rules was still in effect. The aforecited
provision clearly states that the penalty of removal is not
executory, pending appeal, unless the penalty is confirmed by
Secretary of the Department where the dismissed employee
works.
Petitioner now claims that because the penalty of dismissal
imposed by Commissioner Señeres was never confirmed by
the Secretary of Labor, it could not have been executed while
his appeal to the CSC was ongoing; thus, he should have
been allowed to continue to work and receive his salary.94
We agree.
After a thorough review of the records of this case, however,
the Court is convinced that petitioner was never actually
barred from returning to work after the 90-day period lapsed.
The records disclose that he made no attempt to return to
work after the expiration of the suspension period. Thus, he
was never prevented from returning to work—he just chose
not to go back.
There is no question that 90-day preventive suspension was
issued in accordance with law. The moment this period
expired, petitioner was automatically reinstated in the
service. This rule is clear in Section 20 of the Civil Service
Rules, which reads thus:
SECTION 20. Duration of Preventive Suspension. — When the
administrative case against an officer or employee under
preventive suspension is not finally decided by the disciplining
authority within the period of ninety (90) days after the date
of his preventive suspension, unless otherwise provided by
35
special law, he shall be automatically reinstated in the
service; provided that, when the delay in the disposition of
the case is due to the fault, negligence or petition of the
respondent, the period of delay should not be included in the
counting of the 90 calendar days period of preventive
suspension. Provided further that should the respondent be
on Maternity/Paternity leave, said preventive suspension shall
be deferred or interrupted until such time that said leave has
been fully enjoyed.
Petitioner refused to receive the Order dated 1 September
2001 implementing his 90-day preventive suspension. He was
allowed to go to work until 27 September 2000—the day he
was supposedly barred from entering the office. Thus, his
actual suspension from work began on the latter date and
expired 90 days thereafter, specifically on 25 December 2000.
By virtue of Section 20 of the Civil Service Rules, petitioner
was automatically reinstated on 26December 2000—the day
after the preventive suspension period expired. Since he
never attempted to resume the performance of his duties
after the expiration of the preventive suspension, he cannot
now claim that the penalty of removal was executed, pending
his appeal to the CSC, without the confirmation of the
Secretary of Labor. Had it been shown that he was prevented
from returning to his post after the expiration of the legally
sanctioned preventive suspension, he would have been
entitled to the payment of his back salaries from the moment
the suspension expired up to the time his dismissal would
have been implemented.
That he has never rendered any service to government that
would authorize him to collect backwages is beyond cavil. He
was never prevented from returning to work after his
suspension, thus he is not entitled to any back salary.
With respect the 90-day suspension period, the Civil Service
Rules do not state whether an employee placed under
preventive suspension is entitled to back salaries for the
period of suspension. However, in Gloria v. Court of
Appeals,95 we ruled that an employee has no right to
compensation for preventive suspension pending
investigation, even if the employee is exonerated from the
charges. Although a statutory provision was used to justify
the ruling therein, we also explained the principle behind the
law, to wit:
The principle governing entitlement to salary during
suspension is cogently stated in Floyd R. Mechem’s A Treatise
on the Law of Public Offices and Officers as follows:
Section 864. Officer not entitled to Salary during Suspension
from Office. — An officer who has been lawfully suspended
from his office is not entitled to compensation for the period
during which he was so suspended, even though it be
subsequently determined that the cause for which he was
suspended was insufficient. The reason given is "that salary
and perquisites are the reward of express or implied services,
and therefore cannot belong to one who could not lawfully
perform such services."
Thus, it is not enough that an employee is exonerated of the
charges against him. In addition, his suspension must be
unjustified. x x x.
The preventive suspension of civil service employees charged
with dishonesty, oppression or grave misconduct, or neglect
of duty is authorized by the Civil Service Law. It cannot,
therefore, be considered "unjustified," even if later the
charges are dismissed so as to justify the payment of salaries
to the employee concerned. It is one of those sacrifices which
holding a public office requires for the public good. For this
reason, it is limited to ninety (90) days unless the delay in the
conclusion of the investigation is due to the employee
concerned. After that period, even if the investigation is not
finished, the law provides that the employee shall be
automatically reinstated.96 (Emphasis in the original)
The same logic applies to the present case.
As regards the participation of Justice Veloso in the CA’s
deliberation on the Motion for Reconsideration after he had
deliberately declared that he would voluntarily inhibit himself
from hearing the case, this Court is of the opinion that the
propriety of his act is best threshed out in an administrative
case held for that purpose—one in which he can file his
comment and explain his side.
Lastly, considering the gravity of the offense committed by
petitioner, the Office of the Ombudsman should be directed
to immediately investigate the matter and, if it thereafter
finds it necessary, to file the appropriate criminal charges
against him.
WHEREFORE, the instant Petition is DENIED. The Court of
Appeals Decision dated 26 September 2008 and its Resolution
dated 26 August 2009 in CA-G.R. SP No. 100595, as well as
the Resolutions of the Civil Service Commission dated 18
December 2006 and 28August 2007 are AFFIRMED.
The Office of the Ombudsman is hereby DIRECTED to
immediately investigate the criminal allegations described in
this Decision, and if it finds appropriate, to file the necessary
criminal charges against the petitioner.
SO ORDERED.
36
G.R. Nos. 212140-41 January 21, 2015
SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION
OFFICE, Office of the Ombudsman, NATIONAL
BUREAU OF INVESTIGATION and ATTY. LEVITO D.
BALIGOD, Respondents.
DECISION
CARPIO, J.:
It is a fundamental principle that the accused in a preliminary
investigation has no right to cross-examine the witnesses
which the complainant may present. Section 3, Rule 112 of
the Rules of Court expressly provides that the respondent
shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant
and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or
crossexamine.
- Paderanga v. Drilon1
This case is a Petition for Certiorari2 with prayer for (1) the
issuance of a temporary restraining order and/or Writ of
Preliminary Injunction enjoining respondents Office of the
Ombudsman (Ombudsman), Field Investigation Office (FIO)
of the Ombudsman, National Bureau of Investigation (NBI),
and Atty. Levito D. Baligod (Atty. Baligod) (collectively,
respondents), from conducting further proceedings in OMB-
CC-13-03013 and OMB-C-C-13-0397 until the present Petition
has been resolved with finality; and (2) this Court’s
declaration that petitioner Senator Jinggoy Ejercito Estrada
(Sen. Estrada)was denied due process of law, and that the
Order of the Ombudsman dated 27 March 2014 and the
proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397
subsequent to and affected by the issuance of the challenged
27 March 2014 Order are void.
OMB-C-C-13-0313,3 entitled National Bureau of Investigation
and Atty. Levito D. Baligod v. Jose "Jinggoy" P. Ejercito
Estrada, et al.,refers to the complaint for Plunder as defined
under Republic Act (RA) No. 7080, while OMB-C-C-13-0397,4
entitled Field Investigation Office, Office of the Ombudsman
v. Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the
complaint for Plunder as defined underRA No. 7080 and for
violation of Section 3(e) of RA No. 3019 (Anti-Graft and
Corrupt Practices Act).
The Facts
On 25 November 2013, the Ombudsman served upon Sen.
Estrada a copy of the complaint in OMB-C-C-13-0313, filed by
the NBI and Atty. Baligod, which prayed, among others, that
criminal proceedings for Plunder as defined in RA No. 7080
be conducted against Sen. Estrada. Sen. Estrada filed his
counter-affidavit inOMB-C-C-13-0313 on 9 January 2014.
On 3 December 2013, the Ombudsman served upon Sen.
Estrada a copy of the complaint in OMB-C-C-13-0397, filed by
the FIO of the Ombudsman, which prayed, among others,
that criminal proceedings for Plunder, as defined in RA No.
7080, and for violation of Section 3(e) of RA No. 3019, be
conducted against Sen. Estrada. Sen. Estrada filed his
counter affidavit in OMB-C-C-13-0397 on 16 January 2014.
Eighteen of Sen. Estrada’s co-respondents in the two
complaints filed their counter-affidavits between 9 December
2013 and 14 March 2014.5
On 20 March 2014, Sen. Estrada filed his Request to be
Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filings
(Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada
asked for copies of the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan
(Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata
(Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos
(Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been
filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all
the other respondents and/or additional witnesses for the
Complainants.6
Sen. Estrada’s request was made "[p]ursuant to the right of a
respondent ‘to examine the evidence submitted by the
complainant which he may not have been furnished’ (Section
3[b], Rule 112 of the Rules of Court) and to ‘have access to
the evidence on record’ (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman)."7
On 27 March 2014, the Ombudsman issued the assailed
Order in OMB-C-C-13-0313. The pertinent portions of the
assailed Order read:
This Office finds however finds [sic] that the foregoing
provisions [pertaining to Section 3[b], Rule 112 of the Rules
of Court and Section 4[c], Rule II of the Rules of Procedure
of the Office of the Ombudsman] do not entitle respondent
[Sen. Estrada]to be furnished all the filings of the
respondents.
Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:
37
(a) The complaintshall state the address of the respondent
and shall be accompanied by the affidavits of the complainant
and his witnesses, as well as other supporting documents to
establish probable cause …
xxx xxx xxx
(c) Within ten (10) days from receipt of the subpoena with
the complaint and supporting affidavits and documents, the
respondent shall submit his counter affidavit and that of his
witnesses and other supporting documents relied upon for his
defense. The counter affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this section,
with copies thereof furnished by him to the complainant.
Further to quote the rule in furnishing copies of affidavits to
parties under the Rules of Procedure of the Office of the
Ombudsman [Section 4 of Rule II of Administrative Order No.
07 issued on April 10, 1990]:
a) If the complaint is not under oath or is based only on
official reports, the investigating officer shall require the
complainant or supporting witnesses to execute affidavits to
substantiate the complaints.
b) After such affidavits have been secured, the investigating
officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt
thereof, his counter-affidavits and controverting evidence
with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days
after service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this
Office is required to furnish [Sen. Estrada] a copy of the
Complaint and its supporting affidavits and documents; and
this Office complied with this requirement when it furnished
[Sen. Estrada] with the foregoing documents attached to the
Orders to File Counter-Affidavit dated 19 November 2013 and
25 November 2013.
It is to be noted that there is noprovision under this Office’s
Rules of Procedure which entitles respondent to be furnished
all the filings by the other parties, e.g. the respondents. Ruby
Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases.
Under the Rules of Court as well as the Rules of Procedure of
the Office of the Ombudsman, the respondents are only
required to furnish their counter-affidavits and controverting
evidence to the complainant, and not to the other
respondents.
To reiterate, the rights of respondent [Sen.] Estrada in the
conduct of the preliminary investigation depend on the rights
granted to him by law and these cannot be based on
whatever rights he believes [that] he is entitled to or those
that may be derived from the phrase "due process of law."
Thus, this Office cannot grant his motion to be furnished with
copies of all the filings by the other parties. Nevertheless, he
should be furnished a copy of the Reply of complainant NBI
as he is entitled thereto under the rules; however, as of this
date, no Reply has been filed by complainant NBI.
WHEREFORE, respondent [Sen.] Estrada’s Request to be
Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filingsis
DENIED. He is nevertheless entitled to be furnished a copy of
the Reply if complainant opts to file such pleading.8
(Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-
0313 and OMB-C-C-13-0397 a Joint Resolution9 which found
probable cause to indict Sen. Estrada and his co-respondents
with one count of plunder and 11 counts of violation of
Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for
Reconsideration (of the Joint Resolution dated 28 March
2014) dated 7 April 2014. Sen. Estrada prayed for the
issuance of a new resolution dismissing the charges against
him. Without filing a Motion for Reconsideration of the
Ombudsman’s 27 March 2014 Order denying his Request,
Sen. Estrada filed the present Petition for Certiorari under
Rule 65 and sought to annul and set aside the 27 March 2014
Order.
THE ARGUMENTS
Sen. Estrada raised the following grounds in his Petition:
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE
CHALLENGED ORDER DATED 27 MARCH 2014, ACTED
WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10 Sen.
Estrada also claimed that under the circumstances, he has
"no appeal or any other plain, speedy, and adequate remedy
in the ordinary course of law, except through this Petition."11
Sen. Estrada applied for the issuance of a temporary
restraining order and/or writ of preliminary injunction to
restrain public respondents from conducting further
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.
Finally, Sen. Estrada asked for a judgment declaring that (a)
he has been denied due process of law, and as a
consequence thereof, (b) the Order dated 27 March 2014, as
well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-
13-0397 subsequent to and affected bythe issuance of the 27
March 2014 Order, are void.12
On the same date, 7 May 2014, the Ombudsman issued in
OMBC-C-13-0313 and OMB-C-C-13-0397 a Joint Order
furnishing Sen. Estrada with the counter-affidavits of Tuason,
Cunanan, Amata, Relampagos, Francisco Figura, Gregoria
Buenaventura, and Alexis Sevidal, and directing him to
comment thereon within a non-extendible period of five days
fromreceipt of the order.
38
On 12 May 2014, Sen. Estrada filed before the Ombudsman a
motion to suspend proceedings in OMB-C-C-13-0313 and
OMB-C-C-13-0397 because the denial of his Request to be
furnished copies of counter-affidavits of his co-respondents
deprived him of his right to procedural due process, and he
has filed the present Petition before thisCourt. The
Ombudsman denied Sen. Estrada’s motion to suspend in an
Order dated 15 May 2014. Sen. Estrada filed a motion for
reconsideration of the Order dated 15 May 2014 but his
motion was denied in an Order dated 3 June 2014.
As of 2 June 2014,the date of filing of the Ombudsman’s
Comment to the present Petition, Sen. Estrada had not filed a
comment on the counter-affidavits furnished to him. On 4
June 2014, the Ombudsman issued a Joint Order in OMB-C-C-
13-0313 and OMB-C-C-13-0397 denying, among other
motions filed by the other respondents, Sen. Estrada’s motion
for reconsideration dated 7 April 2014. The pertinent portion
of the 4 June 2014 Joint Order stated:
While it is true that Senator Estrada’s request for copies of
Tuason, Cunanan, Amata, Relampagos, Figura, Buenaventura
and Sevidal’s affidavits was denied by Order dated 27 March
2014 and before the promulgation of the assailed Joint
Resolution, this Office thereafter reevaluated the request and
granted it byOrder dated 7 May 2014 granting his request.
Copies of the requested counter-affidavits were appended to
the copy of the Order dated 7 May 2014 transmitted to
Senator Estrada through counsel.
This Office, in fact, held in abeyance the disposition of the
motions for reconsideration in this proceeding in light of its
grant to Senator Estrada a period of five days from receipt of
the 7 May 2014 Order to formally respond to the above-
named co-respondents’ claims.
In view of the foregoing, this Office fails to see how Senator
Estrada was deprived of his right to procedural due
process.13 (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI
(collectively, public respondents), through the Officeof the
Solicitor General, filed their Comment to the present Petition.
The public respondents argued that:
I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE
PROCESS OF LAW.
II. THE PETITION FOR CERTIORARI IS PROCEDURALLY
INFIRM.
A. LITIS PENDENTIA EXISTS IN THIS CASE.
B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE
REMEDY IN THE ORDINARY COURSE OF LAW.
III. PETITIONER IS NOTENTITLED TO A WRIT OF
PRELIMINARY INJUNCTION AND/OR TEMPORARY
RESTRAINING ORDER.14
On 6 June 2014, Atty. Baligod filed his Comment to the
present Petition. Atty. Baligod stated that Sen. Estrada’s
resort to a Petition for Certiorari under Rule 65 is improper.
Sen. Estrada should have either filed a motion for
reconsideration of the 27 March 2014 Order or incorporated
the alleged irregularity in his motion for reconsideration of
the 28 March 2014 Joint Resolution. There was also no
violation of Sen. Estrada’s right to due process because there
is no rule which mandates that a respondent such as Sen.
Estrada be furnished with copies of the submissions of his
corespondents.
On 16 June 2014, Sen. Estrada filed his Reply to the public
respondents’ Comment. Sen. Estrada insisted that he was
denied due process. Although Sen. Estrada received copies of
the counter-affidavits of Cunanan, Amata, Relampagos,
Buenaventura, Figura, Sevidal, as well as one of Tuason’s
counter-affidavits, heclaimed that he was not given the
following documents:
a) One other Counter-Affidavit of Ruby Tuason dated 21
February 2014;
b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;
c) Counter-Affidavit of Evelyn Sugcang dated 11 February
2014;
d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06
February 2014;
e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11
December 2013 (to the FIO Complaint);
f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22
January 2014 (to the NBI Complaint);
g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson
both dated 14 March 2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06
March 2014;
i) Counter-affidavit of Maria Ninez P. Guañizo dated 28
January 2014;
j) Two (2) counter-affidavits of Marivic V. Jover both dated 09
December 2013; and
k) Counter-affidavit of Francisco B. Figura dated 08 January
2014. Sen. Estrada argues that the Petition isnot rendered
moot by the subsequent issuance of the 7 May 2014 Joint
Order because there is a recurring violation of his right to due
process. Sen. Estrada also insists that there is no forum
shopping as the present Petition arose from an incident in the
main proceeding, and that he has no other plain, speedy, and
adequate remedy in the ordinary course of law. Finally, Sen.
Estrada reiterates his application for the issuance of a
39
temporary restraining order and/or writ of preliminary
injunction to restrain public respondents from conducting
further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-
0397.
This Court’s Ruling
Considering the facts narrated above, the Ombudsman’s
denial in its 27 March 2014 Order of Sen. Estrada’s Request
did not constitute grave abuse of discretion. Indeed, the
denial did not violate Sen. Estrada’s constitutional right to
due process.
First. There is no law or rule which requires the Ombudsman
to furnish a respondent with copies of the counter-affidavits
of his co-respondents.
We reproduce below Sections 3 and 4, Rule 112 of the
Revised Rules of Criminal Procedure, as well as Rule II of
Administrative Order No. 7, Rules of Procedure of the Office
of the Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112:
Preliminary Investigation
Section 3. Procedure. — The preliminary investigation shall be
conducted in the following manner:
(a) The complaint shall state the address of the respondent
and shall be accompanied by the affidavits of the complainant
and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of
copies as there are respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed and sworn to
before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before
a notary public, each of who must certify thathe personally
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no
ground to continue with the investigation, or issue a
subpoena to the respondent attaching to it a copy of the
complaint and its supporting affidavits and documents. The
respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been
furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify
those which he intends to present against the respondent,
and these shall be made available for examination or copying
by the respondent at his expense.
Objects as evidence need not be furnished a party but shall
be made available for examination, copying, or
photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with
the complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this section,
with copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if
subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve the
complaint based on the evidence presented by the
complainant.
(e) The investigating officer may set a hearing if there are
facts and issues to be clarified from a party ora witness. The
parties can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the
party or witness concerned.
The hearing shall be held within ten (10) days from
submission of the counter-affidavits and other documents or
from the expiration of the period for their submission. It shall
be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the
investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial. Section 4.
Resolution of investigating prosecutor and its review.— If the
investigating prosecutor finds cause to hold the respondent
for trial, he shall prepare the resolution and information. He
shall certify under oath in the information that he, or as
shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he
shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief
state prosecutor, or to the Ombudsman orhis deputy in cases
of offenses cognizable by the Sandiganbayan in the exercise
of its original jurisdiction. They shall act on the resolution
within ten (10) days from their receipt thereof and shall
immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the
dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground
40
that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct any other
assistant prosecutor or state prosecutor to do so without
conducting another preliminary investigation.
If upon petition by a proper party under such rules as the
Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the
corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal
of the complaint or information with notice to the parties. The
same rule shall apply in preliminary investigations conducted
by the officers of the Office of the Ombudsman. From the
Rules of Procedure of the Office of the Ombudsman,
Administrative Order No. 7, Rule II: Procedure in Criminal
Cases
Section 1. Grounds. — A criminal complaint may be brought
for an offense in violation of R.A. 3019,as amended, R.A.
1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2
of the Revised Penal Code, and for such other offenses
committed by public officers and employees in relation to
office.
Sec. 2. Evaluation. — Upon evaluating the complaint, the
investigating officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which
has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-
finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Sec. 3. Preliminary investigation; who may conduct.—
Preliminary investigation may be conducted by any of the
following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct
preliminary investigations; or
5) Lawyers in the government service, so designated by the
Ombudsman.
Sec. 4. Procedure. — The preliminary investigation of cases
falling under the jurisdiction of the Sandiganbayan and
Regional Trial Courts shall be conducted in the manner
prescribed in Section 3, Rule 112 of the Rules of Court,
subject to the following provisions:
a) If the complaint is not under oath or is based only on
official reports, the investigating officer shall require the
complainant or supporting witnesses to execute affidavits to
substantiate the complaints.
b) After such affidavits have been secured, the investigating
officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the
respondent to submit, within ten (10) days from receipt
thereof, his counter-affidavits and controverting evidence
with proof of service thereof on thecomplainant. The
complainant may file reply affidavits within ten (10) days
after service of the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the
investigating officer may consider the comment filed by him,
if any, as his answer to the complaint. In any event, the
respondent shall have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of
jurisdiction. Neither may a motion for a bill of particulars be
entertained. If respondent desires any matter in the
complainant’s affidavit to be clarified, the particularization
thereof may be done at the time of clarificatory questioning
in the manner provided in paragraph (f) of this section.
e) If the respondent cannot be served with the order
mentioned in paragraph 6 hereof, or having been served,
does not comply therewith, the complaint shall be deemed
submitted for resolution on the basis of the evidence on
record.
f) If, after the filing of the requisite affidavits and their
supporting evidences, there are facts material to the case
which the investigating officer may need to be clarified on, he
may conduct a clarificatory hearing during which the parties
shall be afforded the opportunity to be present but without
the right to examine or cross-examine the witness being
questioned. Where the appearance of the parties or
witnesses is impracticable, the clarificatory questioning may
be conducted in writing, whereby the questions desired to be
asked by the investigating officer or a party shall be reduced
into writing and served on the witness concerned who shall
be required to answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the
investigating officer shall forward the records of the case
together with his resolution to the designated authorities for
their appropriate action thereon.
No information may be filed and no complaint may be
dismissed without the written authority or approval of the
Ombudsman in cases falling within the jurisdiction of the
41
Sandiganbayan, or of the proper Deputy Ombudsman in all
other cases.
xxxx
Sec. 6. Notice to parties.— The parties shall be served with a
copy of the resolution as finally approved by the Ombudsman
or by the proper Deputy Ombudsman.
Sec. 7. Motion for reconsideration.— a) Only one (1) motion
for reconsideration or reinvestigation of anapproved order or
resolution shall be allowed, the same to be filed within fifteen
(15) days from notice thereof with the Office of the
Ombudsman, or the proper deputy ombudsman as the case
may be.
xxxx
b) The filing of a motion for reconsideration/reinvestigation
shall not bar the filing of the corresponding Information in
court on the basis of the finding of probable cause in the
resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the
counter affidavits of his co-respondents violates his
constitutional right to due process. Sen. Estrada, however,
fails to specify a law or rule which states that it is a
compulsory requirement of due process in a preliminary
investigation that the Ombudsman furnish a respondent with
the counter-affidavits of his co-respondents. Neither Section
3(b), Rule 112 of the Revised Rules of Criminal Procedure nor
Section 4(c), Rule II of the Rules of Procedure of the Office of
the Ombudsman supports Sen. Estrada’s claim. What the
Rules of Procedure of the Office of the Ombudsman require is
for the Ombudsman to furnish the respondent with a copy of
the complaint and the supporting affidavits and documents at
the time the order to submit the counter-affidavit is issued to
the respondent. This is clear from Section 4(b), Rule II of the
Rules of Procedure of the Office of the Ombudsman when it
states, "[a]fter such affidavits [of the complainant and his
witnesses] have been secured, the investigating officer shall
issue an order, attaching thereto a copy of the affidavits and
other supporting documents, directing the respondent to
submit, within ten (10) days from receipt thereof, his
counter-affidavits x x x." At this point, there is still no
counter-affidavit submitted by any respondent. Clearly, what
Section 4(b) refers to are affidavits of the complainant and
his witnesses, not the affidavits of the co-respondents.
Obviously, the counter-affidavits of the co-respondents are
not part of the supporting affidavits of the complainant. No
grave abuse of discretion can thus be attributed to the
Ombudsman for the issuance of the 27 March 2014 Order
which denied Sen. Estrada’s Request.
Although Section 4(c), Rule II of the Rules of Procedure of
the Office of the Ombudsman provides that a respondent
"shall have access to the evidence on record," this provision
should be construed in relation to Section 4(a) and (b) of the
same Rule, as well as to the Rules of Criminal Procedure.
First, Section 4(a) states that "theinvestigating officer shall
require the complainant or supporting witnesses to execute
affidavits to substantiate the complaint." The "supporting
witnesses" are the witnesses of the complainant, and do not
refer to the co-respondents.
Second, Section 4(b) states that "the investigating officer
shall issue an order attaching thereto a copy of the affidavits
and all other supporting documents, directing the
respondent" tosubmit his counter-affidavit. The affidavits
referred to in Section 4(b) are the affidavits mentioned in
Section
4(a). Clearly, the affidavits to be furnished to the respondent
are the affidavits of the complainant and his supporting
witnesses. The provision in the immediately succeeding
Section 4(c) of the same Rule II that a respondent shall have
"access to the evidence on record" does not stand alone, but
should be read in relation to the provisions of Section 4(a and
b) of the same Rule II requiring the investigating officer to
furnish the respondent with the "affidavits and other
supporting documents" submitted by "the complainant or
supporting witnesses." Thus, a respondent’s "access to
evidence on record" in Section 4(c), Rule II of the
Ombudsman’s Rules of Procedure refers to the affidavits and
supporting documents of "the complainant or supporting
witnesses" in Section 4(a) of the same Rule II.
Third, Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure provides that "[t]he respondent shall have the
right to examine the evidence submitted by the complainant
which he may not have been furnished and to copy them at
his expense." A respondent’s right to examine refers only to
"the evidence submitted by the complainant."
Thus, whether under Rule 112 of the Revised Rules of
Criminal Procedure or under Rule II of the Ombudsman’s
Rules of Procedure, there is no requirement whatsoever that
the affidavits executed by the corespondents should be
furnished to a respondent. Justice Velasco’s dissent relies on
the ruling in Office of the Ombudsman v. Reyes (Reyes
case),15 an administrative case, in which a different set of
rules of procedure and standards apply. Sen. Estrada’s
Petition, in contrast, involves the preliminary investigation
stage in a criminal case. Rule III on the Procedure in
Administrative Cases of the Rules of Procedure of the Office
of the Ombudsman applies in the Reyes case, while Rule II
on the Procedure in Criminal Cases of the Rules of Procedure
of the Office of the Ombudsman applies in Sen. Estrada’s
Petition. In both cases, the Rules of Court apply in a
suppletory character or by analogy.16
In the Reyescase, the complainant Acero executed an
affidavit against Reyes and Peñaloza, who were both
employees of the Land Transportation Office. Peñaloza
submitted his counter-affidavit, as well as those of his two
witnesses. Reyes adopted his counter-affidavit in another
case before the Ombudsman as it involved the same parties
and the same incident. None of the parties appeared during
42
the preliminary conference. Peñaloza waived his right to a
formal investigation and was willing to submit the case for
resolution based on the evidence on record. Peñaloza also
submitted a counter-affidavit of his third witness. The
Ombudsman found Reyes guilty of grave misconduct and
dismissed him from the service. On the other hand, Peñaloza
was found guilty of simple misconduct and penalized with
suspension from office without pay for six months. This Court
agreed with the Court of Appeals’ finding that Reyes’ right to
due process was indeed violated. This Court remanded the
records of the case to the Ombudsman, for two reasons: (1)
Reyes should not have been meted the penalty of dismissal
from the service when the evidence was not substantial, and
(2) there was disregard of Reyes’ right to due process
because he was not furnished a copy of the counter-affidavits
of Peñaloza and of Peñaloza’s three witnesses. In the Reyes
case, failure to furnish a copy of the counter-affidavits
happened in the administrative proceedings on the merits,
which resulted in Reyes’ dismissal from the service. In Sen.
Estrada’s Petition, the denial of his Request happened during
the preliminary investigation where the only issue is the
existence of probable cause for the purpose of determining
whether an information should be filed, and does not prevent
Sen. Estrada from requesting a copy of the counter-affidavits
of his co-respondents during the pre-trial or even during the
trial.
We should remember to consider the differences in
adjudicating cases, particularly an administrative case and a
criminal case:
Any lawyer worth his salt knows that quanta of proof and
adjective rules vary depending on whether the cases to which
they are meant to apply are criminal, civil or administrative in
character. In criminal actions, proof beyond reasonable doubt
is required for conviction;in civil actions and proceedings,
preponderance of evidence, as support for a judgment; and
in administrative cases, substantial evidence, as basis for
adjudication. In criminal and civil actions, application of the
Rules of Court is called for, with more or less strictness. In
administrative proceedings, however, the technical rules of
pleadingand procedure, and of evidence, are not strictly
adhered to; they generally apply only suppletorily; indeed, in
agrarian disputes application of the Rules of Court is actually
prohibited.17
It should be underscored that the conduct of a preliminary
investigation is only for the determination of probable cause,
and "probable cause merely implies probability of guilt and
should be determined in a summary manner. A preliminary
investigation is not a part of the trial and it is only in a trial
where an accused can demand the full exercise of his rights,
such as the right to confront and cross-examine his accusers
to establish his innocence."18 Thus, the rights of a
respondent in a preliminary investigation are limited to those
granted by procedural law.
A preliminary investigation is defined as an inquiry or
proceeding for the purpose of determining whether there is
sufficient ground to engender a well founded belief that a
crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof,
and should be held for trial. The quantum of evidence now
required in preliminary investigation is such evidence
sufficient to "engender a well founded belief" as tothe fact of
the commission of a crime and the respondent's probable
guilt thereof. A preliminary investigation is not the occasion
for the full and exhaustive display of the parties’ evidence; it
is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof.
We are in accord with the state prosecutor’s findings in the
case at bar that there exists prima facie evidence of
petitioner’s involvement in the commission of the crime, it
being sufficiently supported by the evidence presented and
the facts obtaining therein.
Likewise devoid of cogency is petitioner’s argument that the
testimonies of Galarion and Hanopol are inadmissible as to
him since he was not granted the opportunity of cross-
examination.
It is a fundamental principle that the accused in a preliminary
investigation has no right to cross-examine the witnesses
which the complainant may present. Section 3, Rule 112 of
the Rules of Court expressly provides that the respondent
shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant
and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or
cross-examine. Thus, even if petitioner was not given the
opportunity to cross-examine Galarion and Hanopol atthe
time they were presented to testify during the separate trial
of the case against Galarion and Roxas, he cannot assert any
legal right to cross-examine them at the preliminary
investigation precisely because such right was never available
to him. The admissibility or inadmissibility of said testimonies
should be ventilated before the trial court during the trial
proper and not in the preliminary investigation.
Furthermore, the technical rules on evidence are not binding
on the fiscal who has jurisdiction and control over the
conduct of a preliminary investigation. If by its very nature a
preliminary investigation could be waived by the accused, we
find no compelling justification for a strict application of the
evidentiary rules. In addition, considering that under Section
8, Rule 112 of the Rules of Court, the record of the
preliminary investigation does not form part of the record of
the case in the Regional Trial Court, then the testimonies of
Galarion and Hanopol may not be admitted by the trial court
if not presented in evidence by the prosecuting fiscal. And,
even if the prosecution does present such testimonies,
petitioner can always object thereto and the trial court can
rule on the admissibility thereof; or the petitioner can, during
the trial, petition said court to compel the presentation of
Galarion and Hanopol for purposes of cross-examination.19
(Emphasis supplied)
43

Furthermore, in citing the Reyes case, Justice Velasco’s
dissent overlooked a vital portion of the Court of Appeals’
reasoning. This Court quoted from the Court of Appeals’
decision: "x x x [A]dmissions made by Peñaloza in his sworn
statement are binding only on him. Res inter alios act a alteri
nocere non debet. The rights of a party cannot be prejudiced
by an act, declaration or omission of another." In OMB-C-C-
13-0313 and OMB-C-C-13-0397, the admissions of Sen.
Estrada’s co-respondents can in no way prejudice Sen.
Estrada. Even granting Justice Velasco’s argument that the 28
March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-
C-C-13-039720 mentioned the testimonies of Sen. Estrada’s
corespondents like Tuason and Cunanan, their testimonies
were merely corroborative of the testimonies of complainants’
witnesses Benhur Luy, Marina Sula, and Merlina Suñas and
were not mentioned in isolation from the testimonies of
complainants’ witnesses.
Moreover, the sufficiency of the evidence put forward by the
Ombudsman against Sen. Estrada to establish its finding of
probable cause in the 28 March 2014 Joint Resolution in
OMB-C-C-13-0313 and OMB-CC-13-0397 was judicially
confirmed by the Sandiganbayan, when it examined the
evidence, found probable cause, and issued a warrant of
arrest against Sen. Estrada on 23 June 2014.
We likewise take exception to Justice Brion’s assertion that
"the due process standards that at the very least should be
considered in the conduct of a preliminary investigation are
those that this Court first articulated in Ang Tibay v. Court of
Industrial Relations [Ang Tibay]."21 Simply put, the Ang
Tibay guidelines for administrative cases do not apply to
preliminary investigations in criminal cases. An application of
the Ang Tibay guidelines to preliminary investigations will
have absurd and disastrous consequences.
Ang Tibay enumerated the constitutional requirements of due
process, which Ang Tibay described as the "fundamental and
essential requirements of due process in trials and
investigations of an administrative character."22 These
requirements are "fundamental and essential" because
without these, there isno due process as mandated by the
Constitution. These "fundamental and essential requirements"
cannot be taken away by legislation because theyare part of
constitutional due process. These "fundamental and essential
requirements" are:
(1) The first of these rights is the right to a hearing, which
includes the right of the party interested or affected to
present his own case and submit evidence in support thereof.
x x x.
(2) Not only must the party be given an opportunity to
present his case and adduce evidence tending to establish
the rights which he asserts but the tribunal must consider the
evidence presented. x x x.
(3) "While the duty to deliberatedoes not impose the
obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to
support it is a nullity, x x x."
(4) Not only must there be some evidence to support a
finding or conclusion, but the evidence must be "substantial."
"Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." x x x.
(5) The decision must be rendered on the evidence presented
at the hearing, or at least contained in the record and
disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges,
therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a
decision. x x x.
(7) The Court of Industrial Relations should, in all
controversial questions, render its decision in sucha manner
that the parties to the proceeding can know the various
issues involved, and the reasons for the decisions rendered.
The performance of this duty is inseparable from the
authority conferred upon it.23
The guidelines set forth in Ang Tibay are further clarified in
GSIS v. CA24 (GSIS): "what Ang Tibay failed to explicitly
state was, prescinding from the general principles governing
due process, the requirement of an impartial tribunalwhich,
needless to say, dictates that one called upon to resolve a
dispute may not sit as judge and jury simultaneously, neither
may he review his decision on appeal."25 The GSIS
clarification affirms the non applicability of the Ang Tibay
guidelines to preliminary investigations in criminal cases: The
investigating officer, which is the role that the Office of the
Ombudsman plays in the investigation and prosecution of
government personnel, will never be the impartial tribunal
required in Ang Tibay, as amplified in GSIS. The purpose of
the Office of the Ombudsman in conducting a preliminary
investigation, after conducting its own factfinding
investigation, is to determine probable cause for filing an
information, and not to make a final adjudication of the rights
and obligations of the parties under the law, which is the
purpose of the guidelines in Ang Tibay. The investigating
officer investigates, determines probable cause, and
prosecutes the criminal case after filing the corresponding
information.
The purpose in determining probable cause is to make sure
that the courts are not clogged with weak cases that will only
be dismissed, as well as to spare a person from the travails of
a needless prosecution.26 The Ombudsman and the
prosecution service under the control and supervision of the
Secretary of the Department of Justice are inherently the
fact-finder, investigator, hearing officer, judge and jury of the
44
respondent in preliminary investigations. Obviously, this
procedure cannot comply with Ang Tibay, as amplified in
GSIS. However, there is nothing unconstitutional with this
procedure because this is merely an Executive function, a
part of the law enforcement process leading to trial in court
where the requirements mandated in Ang Tibay, as amplified
in GSIS, will apply. This has been the procedure under the
1935, 1973 and 1987 Constitutions. To now rule that Ang
Tibay, as amplified in GSIS, should apply to preliminary
investigations will mean that all past and present preliminary
investigations are in gross violation of constitutional due
process.
Moreover, a person under preliminary investigation, as Sen.
Estrada is in the present case when he filed his Request, is
not yet an accused person, and hence cannot demand the full
exercise of the rights of an accused person:
A finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been
committed and was committed by the suspects. Probable
cause need not be based on clear and convincing evidence of
guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United
States, while probable cause demands more than "bare
suspicion," it requires "less than evidence which would justify
. . . conviction." A finding of probable cause merely binds
over the suspect to stand trial. It is not a pronouncement of
guilt.
Considering the low quantum and quality of evidence needed
to support a finding of probable cause, wealso hold that the
DOJ Panel did not gravely abuse its discretion in refusing to
call the NBI witnesses for clarificatory questions. The decision
to call witnesses for clarificatory questions is addressed to the
sound discretion of the investigator and the investigator
alone. If the evidence on hand already yields a probable
cause, the investigator need not hold a clarificatory hearing.
To repeat, probable cause merely implies probability of guilt
and should be determined in a summary manner. Preliminary
investigation is not a part of trial and it is only in a trial where
an accused can demand the full exercise of his rights, such as
the right to confront and cross-examine his accusers to
establish his innocence. In the case at bar, the DOJ Panel
correctly adjudged that enough evidence had been adduced
to establish probable cause and clarificatory hearing was
unnecessary.27
Justice J.B.L. Reyes, writing for the Court, emphatically
declared in Lozada v. Hernandez,28 that the "rights conferred
upon accused persons to participate in preliminary
investigations concerning themselves depend upon the
provisions of law by which such rights are specifically
secured, rather than upon the phrase ‘due process of law’."
This reiterates Justice Jose P. Laurel’s oft-quoted
pronouncement in Hashim v. Boncan29 that "the right to a
preliminary investigation is statutory, not constitutional." In
short, the rights of a respondent ina preliminary investigation
are merely statutory rights, not constitutional due process
rights. An investigation to determine probable cause for the
filing of an information does not initiate a criminal action so
as to trigger into operation Section 14(2), Article III of the
Constitution.30 It is the filing of a complaint or information in
court that initiates a criminal action.31
The rights to due process in administrative cases as
prescribed in Ang Tibay,as amplified in GSIS, are granted by
the Constitution; hence, these rights cannot be taken away
by merelegislation. On the other hand, as repeatedly
reiterated by this Court, the right to a preliminary
investigation is merely a statutory right,32 not part of the
"fundamental and essential requirements" of due process as
prescribed in Ang Tibay and amplified in GSIS. Thus, a
preliminary investigation can be taken away by legislation.
The constitutional right of an accused to confront the
witnesses against him does not apply in preliminary
investigations; nor will the absence of a preliminary
investigation be an infringement of his right to confront the
witnesses against him.33 A preliminary investigation may be
done away with entirely without infringing the constitutional
right of an accused under the due process clause to a fair
trial.34
The quantum of evidence needed in Ang Tibay, as amplified
in GSIS, is greater than the evidenceneeded in a preliminary
investigation to establish probable cause, or to establish the
existence of a prima facie case that would warrant the
prosecution of a case. Ang Tibay refers to "substantial
evidence," while the establishment of probable cause needs
"only more than ‘bare suspicion,’ or ‘less than evidence which
would justify . . . conviction’." In the United States, from
where we borrowed the concept of probable cause,35 the
prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name
implies, we deal with probabilities.These are not technical;
they are the factual and practical considerations of everyday
life on which reasonable and prudent men, not legal
technicians, act. The standard of proof is accordingly
correlative to what must be proved.
"The substance of all the definitions" of probable cause "is a
reasonable ground for belief of guilt." McCarthy v. De Armit,
99 Pa. St. 63, 69, quoted with approval in the Carroll opinion.
267 U. S. at 161. And this "means less than evidence which
would justify condemnation" or conviction, as Marshall, C. J.,
said for the Court more than a century ago in Locke v. United
States, 7 Cranch 339, 348. Since Marshall’s time, at any rate,
it has come to mean more than bare suspicion: Probable
cause exists where "the facts and circumstances within their
[the officers’] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that" an
offense has been or is being committed. Carroll v. United
States, 267 U. S. 132, 162.
45
These long-prevailing standards seek to safeguard citizens
from rash and unreasonable interferences with privacy and
from unfounded charges of crime. They also seek to give fair
leeway for enforcing the law in the community’s protection.
Because many situations which confront officers in the course
of executing their duties are more or less ambiguous, room
must be allowed for some mistakes on their part. But the
mistakes must be those of reasonable men, acting on facts
leading sensibly to their conclusions of probability. The rule of
probable cause is a practical, non technical conception
affording the best compromise that has been found for
accommodating these often opposing interests. Requiring
more would unduly hamper law enforcement. To allow less
would be to leave law-abiding citizens at the mercy of the
officers’ whim or caprice.36
In the Philippines, there are four instances in the Revised
Rules of Criminal Procedure where probable cause is needed
to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating
officer, to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and
should be held for trial. A preliminary investigation is required
before the filing of a complaint or information for an offense
where the penalty prescribed by law is at least four years,
two months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to
determine whether a warrant of arrest or a commitment
order, if the accused has already been arrested, shall be
issued and that there is a necessity of placing the respondent
under immediate custody in order not to frustrate the ends of
justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a
private person making a warrantless arrest when an offense
has just been committed, and he has probable cause to
believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed
it; and
(4) In Section 4 of Rule 126: By the judge, to determine
whether a search warrant shall be issued, and only upon
probable cause in connection with one specific offense to be
determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere
in the Philippines.
In all these instances, the evidence necessary to establish
probable cause is based only on the likelihood, or probability,
of guilt. Justice Brion, in the recent case of Unilever
Philippines, Inc. v. Tan37 (Unilever), stated:
The determination of probable cause needs only to rest on
evidence showing that more likely than not, a crime has been
committed and there is enough reason to believe that it was
committed by the accused. It need not be based on clear and
convincing evidence of guilt, neither on evidence establishing
absolute certainty of guilt. What is merely required is
"probability of guilt." Its determination, too, does not call for
the application of rules or standards of proof that a judgment
of conviction requires after trial on the merits. Thus, in
concluding that there is probable cause, it suffices that it is
believed that the act or omission complained of constitutes
the very offense charged.
It is also important to stress that the determination of
probable cause does not depend on the validity or merits of a
party’s accusation or defense or on the admissibility or
veracity of testimonies presented. As previously discussed,
these matters are better ventilated during the trial proper of
the case. As held in Metropolitan Bank & Trust Company v.
Gonzales:
Probable cause has been defined as the existence of such
facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the
crime for which he was prosecuted. x x x. The term does not
mean "actual or positive cause" nor does it import absolute
certainty. It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an inquiry
into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or
omission complained of constitutes the offense charged.
Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charge. (Bold facing and
italicization supplied)
Justice Brion’s pronouncement in Unilever that "the
determination of probable cause does not depend on the
validity or merits of a party’s accusation or defense or on the
admissibility or veracity of testimonies presented" correctly
recognizes the doctrine in the United States that the
determination of probable cause can rest partially, or even
entirely, on hearsay evidence, as long as the person making
the hearsay statement is credible. In United States v.
Ventresca,38 the United States Supreme Court held:
While a warrant may issue only upon a finding of "probable
cause," this Court has long held that "the term ‘probable
cause’ . . . means less than evidence which would justify
condemnation," Locke v. United States, 7 Cranch 339, 11
U.S. 348, and that a finding of "probable cause" may rest
upon evidence which is not legally competent in a criminal
trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As
the Court stated in Brinegar v. United States, 338 U.S. 160,
173, "There is a large difference between the two things tobe
proved (guilt and probable cause), as well as between the
tribunals which determine them, and therefore a like
difference in the quanta and modes of proof required to
establish them." Thus, hearsay may be the basis for issuance
of the warrant "so long as there . . . [is] a substantial basis
for crediting the hearsay." Jones v. United States, supra, at
46
362 U.S. 272. And, in Aguilar, we recognized that "an
affidavit may be based on hearsay information and need not
reflect the direct personal observations of the affiant," so
long as the magistrate is "informed of some of the underlying
circumstances" supporting the affiant’s conclusions and his
belief that any informant involved "whose identity need not
be disclosed . . ." was "credible" or his information "reliable."
Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)
Thus, probable cause can be established with hearsay
evidence, as long as there is substantial basis for crediting
the hearsay. Hearsay evidence is admissible in determining
probable cause in a preliminary investigation because such
investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. However, in
administrative cases, where rights and obligations are finally
adjudicated, what is required is "substantial evidence" which
cannot rest entirely or even partially on hearsay evidence.
Substantial basis is not the same as substantial evidence
because substantial evidence excludes hearsay evidence
while substantial basis can include hearsay evidence. To
require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of
evidence required in determining probable cause from
evidence of likelihood or probability of guilt to substantial
evidence of guilt.
It is, moreover, necessary to distinguish between the
constitutionally guaranteed rights of an accused and the right
to a preliminary investigation. To treat them the same will
lead toabsurd and disastrous consequences.
All pending criminal cases in all courts throughout the country
will have to be remanded to the preliminary investigation
level because none of these will satisfy Ang Tibay, as
amplified in GSIS. Preliminary investigations are conducted by
prosecutors, who are the same officials who will determine
probable cause and prosecute the cases in court. The
prosecutor is hardly the impartial tribunal contemplated in
Ang Tibay, as amplified in GSIS. A reinvestigation by an
investigating officer outside of the prosecution service will be
necessary if Ang Tibay, as amplified in GSIS, were to be
applied. This will require a new legislation. In the meantime,
all pending criminal cases in all courts will have to be
remanded for reinvestigation, to proceed only when a new
law is in place. To require Ang Tibay, as amplified in GSIS, to
apply to preliminary investigation will necessarily change the
concept of preliminary investigation as we know it now.
Applying the constitutional due process in Ang Tibay, as
amplified in GSIS, to preliminary investigation will necessarily
require the application of the rights of an accused in Section
14(2), Article III of the 1987 Constitution. This means that
the respondent can demand an actual hearing and the right
to cross-examine the witnesses against him, rights which are
not afforded at present toa respondent in a preliminary
investigation.
The application of Ang Tibay, as amplified in GSIS, is not
limited to those with pending preliminary investigations but
even to those convicted by final judgment and already
serving their sentences. The rule is well-settled that a judicial
decision applies retroactively if it has a beneficial effect on a
person convicted by final judgment even if he is already
serving his sentence, provided that he is not a habitual
criminal.39 This Court retains its control over a case "until the
full satisfaction of the final judgment conformably with
established legal processes."40 Applying Ang Tibay, as
amplified in GSIS, to preliminary investigations will result in
thousands of prisoners, convicted by final judgment, being
set free from prison.
Second. Sen. Estrada’s present Petition for Certiorari is
premature.
Justice Velasco’s dissent prefers thatSen. Estrada not "be
subjected to the rigors of a criminal prosecution incourt"
because there is "a pending question regarding the
Ombudsman’s grave abuse of its discretion preceding the
finding of a probable cause to indict him." Restated bluntly,
Justice Velasco’s dissent would like this Court to conclude
that the mere filing of the present Petition for Certiorari
questioning the Ombudsman’s denial of Sen. Estrada’s
Request should have, by itself, voided all proceedings related
to the present case.
Although it is true that, in its 27 March 2014 Order, the
Ombudsman denied Sen. Estrada’s Request, the Ombudsman
subsequently reconsidered its Order. On 7 May 2014, the
same date that Sen. Estrada filed the present Petition, the
Ombudsman issued a Joint Order in OMB-C-C-13-0313 and
OMB-C-C-13-0397 that furnishedSen. Estrada with the
counter-affidavits of Ruby Tuason, Dennis Cunanan,
Gondelina Amata, Mario Relampagos, Francisco Figura,
Gregoria Buenaventura, and AlexisSevidal, and directed him
to comment within a non-extendible period of five days from
receipt of said Order. Sen. Estrada did not file any comment,
as noted in the 4 June 2014 Joint Order of the Ombudsman.
On 4 June 2014, the Ombudsman issued another Joint Order
and denied Sen. Estrada’s Motion for Reconsideration ofits 28
March 2014 Joint Resolution which found probable cause
toindict Sen. Estrada and his corespondents with one count of
plunder and 11 counts of violation of Section 3(e), Republic
Act No. 3019. In this 4 June 2014 Joint Order, the
Ombudsman stated that "[t]his Office, in fact, held in
abeyance the disposition of motions for reconsideration in
this proceeding in light of its grant to Senator Estrada a
period of five days from receipt of the 7 May 2014 Order to
formally respond to the above-named respondents’ claims."
We underscore Sen. Estrada’s procedural omission. Sen.
Estrada did not file any pleading, much less a motion for
reconsideration, to the 27 March 2014 Order inOMB-C-C-13-
0313. Sen. Estrada immediately proceeded to file this Petition
for Certiorari before this Court. Sen. Estrada’s resort to a
petitionfor certiorari before this Court stands in stark contrast
to his filing of his 7 April 2014 Motion for Reconsideration of
47
the 28 March 2014 Joint Resolution finding probable cause.
The present Petition for Certiorari is premature.
A motion for reconsideration allows the public respondent an
opportunity to correct its factual and legal errors. Sen.
Estrada, however, failed to present a compelling reason that
the present Petition falls under the exceptions41 to the
general rule that the filing of a motion for reconsideration is
required prior to the filing of a petition for certiorari. This
Court has reiterated in numerous decisions that a motion for
reconsideration is mandatory before the filing of a petition for
certiorari.42
Justice Velasco’s dissent faults the majority for their refusal to
apply the Reyes case to the present Petition. Justice Velasco’s
dissent insists that "this Court cannot neglect to emphasize
that, despite the variance in the quanta of evidence required,
a uniform observance of the singular concept of due process
is indispensable in all proceedings."
As we try to follow Justice Velasco’s insistence, we direct
Justice Velasco and those who join him in his dissent to this
Court’s ruling in Ruivivar v. Office of the Ombudsman
(Ruivivar),43 wherein we stated that "[t]he law can no longer
help one who had been given ample opportunity to be heard
but who did not take full advantage of the proffered chance."
The Ruivivar case, like the Reyes44 case, was also an
administrative case before the Ombudsman. The Ombudsman
found petitioner Rachel Beatriz Ruivivar administratively liable
for discourtesy in the course of her official functions and
imposed on her the penalty of reprimand. Petitioner filed a
motion for reconsideration of the decision on the ground that
she was not furnished copies of the affidavits of the private
respondent’s witnesses. The Ombudsman subsequently
ordered that petitioner be furnished with copies of the
counter-affidavits of private respondent’s witnesses, and that
petitioner should "file, within ten (10) days from receipt of
this Order, such pleading which she may deem fit under the
circumstances." Petitioner received copies of the affidavits,
and simply filed a manifestation where she maintained that
her receipt of the affidavits did not alter the deprivation of
her right to due process or cure the irregularity in the
Ombudsman’s decision to penalize her.
In Ruivivar, petitioner received the affidavits of the private
respondent’s witnesses afterthe Ombudsman rendered a
decision against her. We disposed of petitioner’s deprivation
of due process claim in this manner:
The CA Decision dismissed the petition for certiorari on the
ground that the petitioner failed to exhaust all the
administrative remedies available to her before the
Ombudsman. This ruling is legallycorrect as exhaustion of
administrative remedies is a requisite for the filing of a
petition for certiorari. Other than this legal significance,
however, the ruling necessarily carries the direct and
immediate implication that the petitioner has been granted
the opportunity to be heard and has refused to avail of this
opportunity; hence, she cannot claim denial of due process.
In the words of the CA ruling itself: "Petitioner was given the
opportunity by public respondent to rebut the affidavits
submitted by private respondent. . . and had a speedy and
adequate administrative remedy but she failed to avail
thereof for reasons only known to her."
For a fuller appreciation of our above conclusion, we clarify
that although they are separate and distinct concepts,
exhaustion of administrative remedies and due process
embody linked and related principles. The "exhaustion"
principle applies when the ruling court or tribunal is not given
the opportunity tore-examine its findings and conclusions
because of an available opportunity that a party seeking
recourse against the court or the tribunal’s ruling omitted to
take. Under the concept of "due process," on the other hand,
a violation occurs when a court or tribunal rules against a
party without giving him orher the opportunity to be heard.
Thus, the exhaustion principle is based on the perspective of
the ruling court or tribunal, while due process is considered
from the point of view of the litigating party against whom a
ruling was made. The commonality they share is in the
same"opportunity" that underlies both. In the context of the
present case, the available opportunity to consider and
appreciate the petitioner’s counter-statement offacts was
denied the Ombudsman; hence, the petitioner is barred from
seeking recourse at the CA because the ground she would
invoke was not considered at all at the Ombudsman level. At
the same time, the petitioner – who had the same
opportunity to rebut the belatedly-furnished affidavits of the
private respondent’s witnesses – was not denied and cannot
now claim denial of due process because she did not take
advantage of the opportunity opened to her at the
Ombudsman level.
The records show that the petitioner duly filed a motion for
reconsideration on due process grounds (i.e., for the private
respondent’s failure to furnish her copies of the affidavits of
witnesses) and on questions relating to the appreciation of
the evidence on record. The Ombudsman acted on this
motion by issuing its Order of January 17, 2003 belatedly
furnishing her with copies of the private respondent’s
witnesses, together with the "directive to file, within ten (10)
days from receipt of this Order, such pleading which she may
deem fit under the circumstances."
Given this opportunity to act on the belatedly-furnished
affidavits, the petitioner simply chose to file a "Manifestation"
where she took the position that "The order of the
Ombudsman dated 17 January 2003 supplying her with the
affidavits of the complainant does not cure the 04 November
2002 order," and on this basis prayed that the Ombudsman’s
decision "be reconsidered and the complaint dismissed for
lack of merit."
For her part, the private respondent filed a
Comment/Opposition to Motion for Reconsideration dated 27
January 2003 and prayed for the denial of the petitioner’s
motion.
48

In the February 12, 2003 Order, the Ombudsman denied the
petitioner’s motion for reconsideration after finding no basis
to alter or modify its ruling. Significantly, the Ombudsman
fully discussed in this Order the due process significance of
the petitioner’s failure to adequately respond to the belatedly-
furnished affidavits. The Ombudsman said:
"Undoubtedly, the respondent herein has been furnished by
this Office with copies of the affidavits, which she claims she
has not received. Furthermore, the respondent has been
given the opportunity to present her side relative thereto,
however, she chose not to submit countervailing evidence
orargument. The respondent, therefore (sic), cannot claim
denial of due process for purposes of assailing the Decision
issued in the present case. On this score, the Supreme Court
held in the case of People v. Acot, 232 SCRA 406, that "a
party cannot feign denial of due process where he had the
opportunity to present his side". This becomes all the more
important since, as correctly pointed out by the complainant,
the decision issued in the present case is deemed final and
unappealable pursuant to Section 27 of Republic Act 6770,
and Section 7, Rule III of Administrative Order No. 07.
Despite the clear provisions of the law and the rules, the
respondent herein was given the opportunity not normally
accorded, to present her side, but she opted not to do so
which is evidently fatal to her cause." [emphasis supplied].
Under these circumstances, we cannot help but recognize
that the petitioner’s cause is a lost one, not only for her
failure to exhaust her available administrative remedy, but
also on due process grounds. The law can no longer help one
who had been given ample opportunity to be heard but who
did not take full advantage of the proffered chance.45
Ruivivar applies with even greater force to the present
Petition because here the affidavits of Sen. Estrada’s co-
respondents were furnished to him beforethe Ombudsman
rendered her 4 June 2014 Joint Order. In Ruivivar, the
affidavits were furnished after the Ombudsman issued a
decision.
Justice Velasco’s dissent cites the cases of Tatad v.
Sandiganbayan46 (Tatad) and Duterte v. Sandiganbayan47
(Duterte) in an attempt to prop up its stand. A careful
reading of these cases, however, would show that they do
not stand on all fours with the present case. In Tatad, this
Court ruled that "the inordinate delay in terminating the
preliminary investigation and filing the information [by the
Tanodbayan] in the present case is violative of the
constitutionally guaranteed right of the petitioner to due
process and to a speedy disposition of the cases against
him."48 The Tanod bayan took almost three years to
terminate the preliminary investigation, despite Presidential
Decree No. 911’s prescription of a ten-day period for the
prosecutor to resolve a case under preliminary investigation.
We ruled similarly in Duterte, where the petitioners were
merely asked to comment and were not asked to file counter-
affidavits as isthe proper procedure in a preliminary
investigation. Moreover, in Duterte, the Ombudsman took
four years to terminate its preliminary investigation.
As we follow the reasoning in Justice Velasco’s dissent, it
becomes more apparent that Sen. Estrada’s present Petition
for Certiorari is premature for lack of filing of a motion for
reconsideration before the Ombudsman. When the
Ombudsman gave Sen. Estrada copies of the counter-
affidavits and even waited for the lapse of the given period
for the filing of his comment, Sen. Estrada failed to avail of
the opportunity to be heard due to his own fault. Thus, Sen.
Estrada’s failure cannot in any way be construed as violation
of due process by the Ombudsman, much less of grave abuse
of discretion. Sen. Estrada has not filed any comment, and
still chooses not to.
Third. Sen. Estrada’s present Petition for Certiorari constitutes
forum shopping and should be summarily dismissed.
In his verification and certification of non-forum shopping in
the present petition filed on 7 May 2014, Sen. Estrada stated:
3.1 I, however, disclose that I have filed a Motion for
Reconsideration dated 07 April 2014 in OMB-C-C-13-0313 and
OMB-CC-13-0397, raising as sole issuethe finding of probable
cause in the Joint Resolution dated 28 March 2014.
Such Motion for Reconsideration has yet to be resolved by
the Office of the Ombudsman.49 (Emphasis supplied)
Sen. Estrada’s Motion for Reconsideration of the 28 March
2014 Joint Resolution prayed that the Ombudsman reconsider
and issue a new resolution dismissing the charges against
him. However, in this Motion for Reconsideration, Sen.
Estrada assailed the Ombudsman’s 27 March 2014 Joint
Order denying his Request, and that such denial is a violation
of his right to due process.
8. It is respectfully submitted that the Ombudsman violated
the foregoing rule [Rule 112, Section 4 of the Rules of Court]
and principles. A reading of the Joint Resolution will reveal
that various pieces of evidence which Senator Estrada was
not furnished with – hence, depriving him of the opportunity
to controvert the same – were heavily considered by the
Ombudsman in finding probable cause to charge him with
Plunder and with violations of Section 3(e) of R.A. No. 3019.
xxxx
11. Notably, under dated 20 March 2014, Senator Estrada
filed a "Request to be Furnished with Copies of Counter-
Affidavits of the Other Respondents, Affidavits of New
Witnesses and Other Filings," pursuant to the right of a
respondent "to examine the evidence submitted by the
complainant which he may not have been furnished" (Section
3[b], Rule 112 of the Rules of Court), and to "have access to
the evidence on record" (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman).
49
However, notwithstanding the gravity of the offenses leveled
against Senator Estrada and the law’s vigilance in protecting
the rights of an accused, the Special Panel of Investigators, in
an Order dated 27 March 2014, unceremoniously denied the
request on the ground that "there is no provision under this
Office’s Rules of Procedure which entitles respondent to be
furnished all the filings by the other parties x x x x." (Order
dated 27 March 2013, p. 3)
As such, Senator Estrada was not properly apprised of the
evidence offered against him, which were eventually made
the bases of the Ombudsman’s finding of probable cause.50
The Ombudsman denied Sen. Estrada’s Motion for
Reconsideration in its 4 June 2014 Joint Order. Clearly, Sen.
Estrada expressly raised in his Motion for Reconsideration
with the Ombudsman the violation of his right to due process,
the same issue he is raising in this petition. In the verification
and certification of non-forum shopping attached to his
petition docketed as G.R. Nos. 212761-62 filed on 23 June
2014, Sen. Estrada disclosed the pendency of the present
petition, as well as those before the Sandiganbayan for the
determination of the existence of probable cause. In his
petition in G.R. Nos. 212761-62, Sen. Estrada again
mentioned the Ombudsman’s 27 March 2014 Joint Order
denying his Request.
17. Sen. Estrada was shocked not only at the Office of the
Ombudsman’s finding of probable cause, which he maintains
is without legal or factual basis, but also thatsuch finding of
probable cause was premised on evidence not disclosed
tohim, including those subject of his Request to be Furnished
with Copiesof Counter-Affidavits of the Other Respondents,
Affidavits of New Witnesses and Other Filings dated 20 March
2014.
In particular, the Office of the Ombudsman used as basis for
the Joint Resolution the following documents –
i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and
24 February 2014;
ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20
February 2014;
iii. Francisco B. Figura’s Counter-Affidavit dated 08 January
2014;
iv. Ruby Tuason’s Counter-Affidavits both dated 21 February
2014;
v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06
March 2014; and
vi. Philippine Daily Inquirer Online Edition news article
entitled "Benhur Luy upstages Napoles in Senate Hearing" by
Norman Bordadora and TJ Borgonio, published on 06 March
2014, none of which were ever furnished Sen. Estrada prior
to the issuance of the challenged Joint Resolution, despite
written request.
xxxx
II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE
CHALLENGED JOINT RESOLUTION DATED 28 MARCH 2014
AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT
ONLY ACTED WITHOUT OR IN EXCESS OF ITS
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION, BUT
ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT
TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF
THE LAWS.
xxxx
2.17 x x x x
Notably, in its Joint Order dated 07 May 2014, the Office of
the Ombudsman even arbitrarily limited the filing of Sen.
Estrada’s comment to the voluminous documents
comprisingthe documents it furnished Sen. Estrada to a "non-
extendible" period offive (5) days, making it virtually
impossible for Sen. Estrada to adequately study the charges
leveled against him and intelligently respond to them. The
Joint Order also failed to disclose the existence of other
counter-affidavits and failed to furnish Sen. Estrada copies of
such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim
that the finding of probable cause was the "sole issue" he
raised before the Ombudsman in his Motion for
Reconsideration dated 7 April 2014 is obviously false.
Moreover, even though Sen. Estrada acknowledged his
receipt of the Ombudsman’s 4 June 2014 Joint Order which
denied his motion for reconsideration of the 28 March 2014
Joint Resolution, Sen. Estrada did not mention that the 4
June 2014 Joint Order stated that the Ombudsman "held in
abeyance the disposition of the motions for reconsideration in
this proceeding in light of its grant to [Sen. Estrada] a period
of five days from receipt of the 7 May 2014 [Joint] Order to
formally respond to the abovenamed co-respondent’s claims."
Sen. Estrada claims that his rights were violated but he flouts
the rules himself.
The rule against forum shopping is not limited tothe
fulfillment of the requisites of litis pendentia.52 To determine
whether a party violated the rule against forum shopping, the
most important factor to ask is whether the elements of litis
pendentia are present, or whether a final judgment in one
case will amount to res judicatain another.53 Undergirding
the principle of litis pendentia is the theory that a party isnot
allowed to vex another more than once regarding the same
subject matter and for the same cause of action. This theory
50
is founded on the public policy that the same matter should
not be the subject of controversy in court more than once in
order that possible conflicting judgments may be avoided, for
the sake of the stability in the rights and status of persons.54
x x x [D]espite the fact that what the petitioners filed wasa
petition for certiorari, a recourse that – in the usual course
and because of its nature and purpose – is not covered by
the rule on forum shopping. The exception from the forum
shopping rule, however, is true only where a petition for
certiorari is properly or regularly invoked in the usual course;
the exception does not apply when the relief sought, through
a petition for certiorari, is still pending with or has as yet to
be decided by the respondent court, tribunal or body
exercising judicial or quasi-judicial body, e.g., a motion for
reconsideration of the order assailed via a petition for
certiorari under Rule 65, as in the present case. This
conclusion is supported and strengthened by Section 1, Rule
65 of the Revised Rules of Court which provides that the
availability of a remedy in the ordinary course of law
precludes the filing of a petition for certiorari; under this rule,
the petition’s dismissal is the necessary consequence if
recourse to Rule 65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought
could result in possible conflicting rulings, or at the very least,
to complicated situations, between the RTC and the Court of
Appeals. An extreme possible result is for the appellate court
to confirm that the RTC decision is meritorious, yet the RTC
may at the same time reconsider its ruling and recall its order
of dismissal. In this eventuality, the result is the affirmation
of the decision that the court a quo has backtracked on.
Other permutations depending on the rulings of the two
courts and the timing of these rulings are possible. In every
case, our justice system suffers as this kind of sharp practice
opens the system to the possibility of manipulation; to
uncertainties when conflict of rulings arise; and at least to
vexation for complications other than conflict of rulings. Thus,
it matters not that ultimately the Court of Appeals may
completely agree with the RTC; what the rule on forum
shopping addresses are the possibility and the actuality of its
harmful effects on our judicial system.55
Sen. Estrada resorted to simultaneous remedies by filing this
Petition alleging violation of due process by the Ombudsman
even as his Motion for Reconsideration raising the very same
issue remained pending with the Ombudsman. This is plain
and simple forum shopping, warranting outright dismissal of
this Petition.
SUMMARY
The Ombudsman, in furnishing Sen. Estrada a copy of the
complaint and its supporting affidavits and documents, fully
complied with Sections 3 and 4 of Rule 112 of the Revised
Rules of Criminal Procedure, and Section 4, Rule II of the
Rules of Procedure of the Office of the Ombudsman,
Administrative Order No. 7. Both the Revised Rules of
Criminal Procedure and the Rules of Procedure of the Office
of the Ombudsman require the investigating officer to furnish
the respondent with copies of the affidavits of the
complainant and affidavits of his supporting witnesses.
Neither of these Rules require the investigating officer to
furnish the respondent with copies of the affidavits of his co-
respondents. The right of the respondent is only "to examine
the evidence submitted by the complainant," as expressly
stated in Section 3(b), Rule 112 of the Revised Rules of
Criminal Procedure. This Court has unequivocally ruled in
Paderanga that "Section 3, Rule 112 of the Revised Rules of
Criminal Procedure expressly provides that the respondent
shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant
and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or
cross-examine." Moreover, Section 4 (a, b and c) of Rule II of
the Ombudsman’s Rule of Procedure, read together, only
require the investigating officer to furnish the respondent
with copies of the affidavits of the complainant and his
supporting witnesses.1âwphi1 There is no law or rule
requiring the investigating officer to furnish the respondent
with copies of the affidavits of his co-respondents.
In the 7 May 2014 Joint Order, the Ombudsman went beyond
legal duty and even furnished Sen. Estrada with copies of the
counter-affidavits of his co-respondents whom he specifically
named, as well as the counteraffidavits of some of other co-
respondents. In the 4 June 2014 Joint Order, the
Ombudsman even held in abeyancethe disposition of the
motions for reconsideration because the Ombudsman granted
Sen. Estrada five days from receipt of the 7 May 2014 Joint
Order to formally respond to the claims made by his co-
respondents. The Ombudsman faithfully complied with the
existing Rules on preliminary investigation and even
accommodated Sen. Estrada beyond what the Rules required.
Thus, the Ombudsman could not be faulted with grave abuse
of discretion. Since this is a Petition for Certiorari under Rule
65, the Petition fails in the absence of grave abuse of
discretion on the part of the Ombudsman.
The constitutional due process requirements mandated in
Ang Tibay, as amplified in GSIS, are not applicable to
preliminary investigations which are creations of statutory law
giving rise to mere statutory rights. A law can abolish
preliminary investigations without running afoul with the
constitutional requirements of dueprocess as prescribed in
Ang Tibay, as amplified in GSIS. The present procedures for
preliminary investigations do not comply, and were never
intended to comply, with Ang Tibay, as amplified in GSIS.
Preliminary investigations do not adjudicate with finality
rights and obligations of parties, while administrative
investigations governed by Ang Tibay, as amplified in GSIS,
so adjudicate. Ang Tibay,as amplified in GSIS, requires
substantial evidencefor a decision against the respondent in
the administrative case.In preliminary investigations, only
likelihood or probability of guiltis required. To apply Ang
Tibay,as amplified in GSIS,to preliminary investigations will
change the quantum of evidence required to establish
51
probable cause. The respondent in an administrative case
governed by Ang Tibay,as amplified in GSIS,has the right to
an actual hearing and to cross-examine the witnesses against
him. In preliminary investigations, the respondent has no
such rights.

Also, in an administrative case governed by Ang Tibay, as

amplified in GSIS, the hearing officer must be impartial and
cannot be the fact-finder, investigator, and hearing officer
atthe same time. In preliminary investigations, the same
public officer may be the investigator and hearing officer at
the same time, or the fact-finder, investigator and hearing
officer may be under the control and supervisionof the same
public officer, like the Ombudsman or Secretary of Justice.
This explains why Ang Tibay, as amplified in GSIS, does not
apply to preliminary investigations. To now declare that the
guidelines in Ang Tibay, as amplified in GSIS, are
fundamental and essential requirements in preliminary
investigations will render all past and present preliminary
investigations invalid for violation of constitutional due
process. This will mean remanding for reinvestigation all
criminal cases now pending in all courts throughout the
country. No preliminary investigation can proceeduntil a new
law designates a public officer, outside of the prosecution
service, to determine probable cause. Moreover, those
serving sentences by final judgment would have to be
released from prison because their conviction violated
constitutional due process. Sen. Estrada did not file a Motion
for Reconsideration of the 27 March 2014 Order in OMB-C-C-
13-0313 denying his Request, which is the subject of the
present Petition. He should have filed a Motion for R
econsideration, in the same manner that he filed a Motion for
Reconsideration of the 15 May 2014 Order denying his
motion to suspend proceedings. The unquestioned rule in this
jurisdiction is that certiorari will lie only if there is no appeal
or any other plain, speedy and adequate remedy in the
ordinary course of law against the acts of the public
respondent.56 The plain, speedy and adequate remedy
expressly provided by law is a Motion for Reconsideration of
the 27 March 2014 Order of the Ombudsman. Sen. Estrada's
failure to file a Motion for Reconsideration renders this
Petition premature.

Sen. Estrada also raised in this Petition the same issue he

raised in his Motion for Reconsideration of the 28 March 2014
Joint Resolution of the Ombudsman finding probable cause.
While his Motion for Reconsideration of the 28 March 2014
Joint Resolution was pending, Sen. Estrada did not wait for
the resolution of the Ombudsman and instead proceeded to
file the present Petition for Certiorari. The Ombudsman
issued a Joint Order on 4 June 2014 and specifically
addressed the issue that Sen. Estrada is raising in this
Petition. Thus, Sen. Estrada's present Petition for Certiorari is
not only premature, it also constitutes forum shopping.
WHEREFORE, we DISMISS the Petition for Certiorari in G.R.
Nos. 212140-41.

SO ORDERED.

52
IPI No. 15-35-SB-J
RE: VERIFIED COMPLAINT DATED JULY 13, 2015 OF
ALFONSO V. UMALI, JR., Complainant,
vs.
HON. JOSE R. HERNANDEZ, ASSOCIATE JUSTICE,
SANDIGANBAYAN, Respondent.
DECISION
BRION, J.:
Before us is an administrative complaint filed by Alfonso V.
Umali, Jr. against Sandiganbayan Associate Justice Jose R.
Hernandez for grave misconduct and gross ignorance of the
law.
Background Facts
Complainant Alfonso V. Umali, then the Provincial
Administrator of Oriental Mindoro, was one of the accused in
Criminal Case No. 23624 for violation of Sections 3(e) and (g)
of Republic Act No. 3019 (the Anti-Graft and Corrupt
Practices Act) before the Sandiganbayan.
In its decision1 dated September 9, 2008, the Sandiganbayan
(Fourth Division) denied the motion to dismiss by way of a
demurrer to evidence filed by the accused mali, Rodolfo
Valencia, Pedrito Reyes, Jose Enriquez and Jose Leynes, and
convicted them of the crime charged. Accordingly, it
sentenced them to suffer the indeterminate penalty of six (6)
years and one (1) month to ten (10) years, as well as
perpetual disqualification from holding public office.
The Sandiganbayan eventually reconsidered this decision,
and allowed the accused to present evidence.
In its decision dated April 20, 2015, the Sandiganbayan found
Umali and two (2) others2 guilty beyond reasonable doubt of
violating "Section 3(e) in relation to 3(g)"3 of R.A. No. 3019,
and sentenced them to suffer the indeterminate penalt of six
(6) years and one (1) month to ten (10) years.4 This decision
was penned by Justice Hernandez, and concurred in by
Associate Justices Alex Quiroz and Maria Cristina Cornejo.
On May 4, 2015, Umali filed a motion for reconsideration
assailing the Sandiganbayan's April 20, 2015 decision. He also
filed a motion for voluntary inhibition of Justice Hernandez on
May 28, 2015.
On June 2, 2015, Umali filed a motion for leave to admit
supplement to the motion for reconsideration.5
Justice Hernandez denied, among others,6 Umali's motion for
voluntary inhibition in a resolution dated July 16, 2015.
The Complaint-Affidavit
In his Complaint-Affidavit, Umali alleged that before the April
20, 2015 decision of the Sandiganbayan came out, Ruel
Ricafort - who was the cousin of the wife of Justice
Hernandez - approached his "camp." According to Umali, it
was "relayed" to him that he needed to pay P15 million if he
wanted to be acquitted; and that it was a one-time, "take it
or leave it" offer.
Umali also claimed that he caught the ire of Justice
Hernandez when he refused to give in to the request of
Justice Gregory Ong who wanted to seek the President's
intervention in the administrative case he (Justice Ong) was
facing in the Supreme Court. According to Umali, Justice Ong
was Justice Hernandez's good friend, and that the former
exercised ascendancy and influence over the latter.
Umali further alleged that Justice Hernandez showed
manifest partiality in Criminal Case No. 26324 when he:
a. instructed the clerk of court not to allow the filing of a
reply after the prosecution submitted its comment to the
motion for reconsideration;
b. asked numerous loaded questions to the witnesses and
'lawyered' for the prosecution; and
c. declared, "You can always go to the Supreme Court" to
Umali's counsels when they were explaining the motions they
filed with the Sandiganbayan.
Finally, Umali maintained that the Sandiganbayan's judgment
of conviction was an "unjust judgment motivated by ill will,"
and dictated by Justice Hernandez's partiality. Umali argued
that his act of signing a voucher should not have been used
as a basis to rule that he conspired with the other accused.
In the Court's resolution dated August 4, 2015, we required
Justice Hernandez to file a Comment on the complaint.
Justice Hernandez's Comment
In his comment, Justice Hernandez countered that Umali' s
complaint contained "nothing more than bare allegations and
surmises." He added that Umali' s narration of the alleged
extortion was lacking in details, such as the date, time, and
place of the extortion try, as well as the circumstances
surrounding Ricafort's supposed interaction with Umali's
"camp." He additionally pointed out that Umali had no
personal knowledge of the alleged attempted extortion.
Justice Hernandez also pointed out that Umali did not even
attach Ricafort's affidavit in his complaint; he also did npt
name the person/s from his (Umali' s) camp whom Ricafort
allegedly approached.
Justice Hernandez also questioned why Umali did not
immediately report the alleged extortion to the National
Bureau of Investigation (NBI) or to the law enforcement
agencies. He added that Umali waited for three months after
53
the promulgation of his judgment of conviction to file a
complaint.
Finally, Justice Hernandez maintained that the
Sandiganbayan's judgment of conviction was a ruling of a
collegial body. He added that the complaint was a collateral
attack on the correctness of the Anti-Graft Court's decision.
THE COURT'S RULING
We dismiss the administrative complaint against Justice
Hernandez for lack of merit.
We stress at the outset that in administrative proceedings,
complainants have the burden of proving the allegations in
their complaints by substantial evidence. While the Court will
never tolerate or condone any conduct, act, or omission that
would violate the norm of public accountability or diminish
the people's faith in the judiciary,7 the quantum of proof
necessary for a finding of guilt in administrative cases is
substantial evidence or such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.8
As explained below, Umali failed to support by substantial
proof any of the allegations in his complaint.
a. The alleged extortion attempt
Under Section 1, Rule 140 of the Rules of Court, as amended
by A.M. 01-8-10-SC, proceedings for the discipline of Judges
of regular and special courts and Justices of the Court of
Appeals and the Sandiganbayan may be instituted motu
proprio by the Supreme Court or upon a verified complaint,
supported by affidavits of persons who have personal
knowledge of the facts alleged therein or by documents
which may substantiate said allegations, or upon an
anonymous complaint, supported by public records of
indubitable integrity.
The totality of Umali's accusation in his complaint-affidavit
which claimed that Justice Hernandez tried to extort P15
million from him in exchange for his acquittal consisted of the
following allegations:
xxxx
5. Before the Decision dated 20 April 2015 came out
convicting respondents in qriminal Case No. 23624, my camp
was approached by a certain Mr. Ruel Ricafort, a person who
was very close to Justice Hernandez and his wife. Indeed, it
was clearly emphasized to me that Mr. Ricafort is a cousin of
the wife of Justice Hernandez. It was further relayed that if I
wanted to be acquitted, all I needed to do was pay
Php15,000,000.00 to Justice Hernandez.
xxxx
8. As mentioned, the most glaring misconduct of respondent
Justice is his attempt to extort money from me which
occurred sometime before the promulgation of the Decision
dated 20 April 2015. Mr. Ricafort contacted someone from my
camp and named their price of FIFTEEN MILLION PESOS
(P15M) in exchange for my acquittal. He further stated (as it
was relayed to me) that this is a "one·-time offer", and that I
should "take it or leave it." I was completely taken aback and
immediately rejected it. I made sure that this (my rejection)
was relayed to them. Sure enough, I was convicted
thereafter. (Emphasis in the original)
These allegations showed that Umali did not have personal
knowledge of the fact attested to, i.e., extortion
attempt.1âwphi1 As he himself alleged, the information was
merely "relayed" to him. Simply put, Umali was relying in
hearsay evidence to support his complaint. Not surprisingly,
he did not provide any further details on the so-called
extortion attempt in the complaint, such as the time and
place of the incident; the identities of the persons from his
camp who were approached by Ricarte; and the person who
relayed to him the P15 million demand. Significantly, the
complaint did not also include any affidavit from any person
from Umali's 'camp' who witnessed the extortion try.
Clearly, Umali's complaint utterly lacked specifics for the
Court to conclude - based on substantial evidence - that
Justice Hernandez demanded P15 million from Umali in
exchange for the latter's acquittal.
The relaxation of the hearsay rule in disciplinary
administrative proceedings against judges and justices where
bribery proceedings are involved is not a novel thought in this
Court; it has been advocated in the Separate Concurring
Opinion of Justice Arturo D. Brion in the administrative case
of Justice Ong before this Court. The Opinion essentially
maintained that the Court could make a conclusion that
bribery had taken place when the circumstances - including
those derived from hearsay evidence - sufficiently prove its
occurrence. It was emphasized that [t]o satisfy the
substantial evidence requirement for administrative cases,
hearsay evidence should necessarily be supplemented and
corroborated by other evidence that are not hearsay.9
In the present case, however, the hearsay allegations
constituted the totality of Umali's evidence. The records did
not contain any other piece of evidence to supplement the
hearsay evidence. As earlier stated, Umali did not even attach
any affidavit to the complaint relating to or tending to
support the alleged attempted extortion. Umali relied mainly
on surmises and conjectures, and on the mere fact that the
Sandiganbayan rulings penned by Justice Hernandez were
adverse to him.
We additionally point out that the present administrative
complaint was filed on July 13, 2015. Per Umali's allegation,
the extortion attempt was made before April 20, 2015 - the
date of the Sandiganbayan decision convicting him and two
others of violating the provision of the Anti-Graft and Corrupt
54
Practices Act. We are at a loss as to why Umali waited for the
Sandiganbayan's conviction and the denial of his motions for
reconsideration before he reported the attempted extortion;
the time element suggests that Umali' s filing depended on
the outcome of the case. Surprisingly, Umali did not even
mention the extortion attempt in his Motion for Voluntary
Inhibition and Reply (To Opposition to the Motion for
Voluntary Inhibition of the Honorable Presiding Justice) dated
May 28, 2015 and June 8, 2015, respectively. Under these
circumstances on record and in the absence of evidence to
the contrary, the presumption that Justice Hernandez
regularly performed his duties cannot but prevail.
b. No Manifest Partiality
Contrary to what Umali alleged, the records do not show that
Justice Hernandez instructed the division clerk of court (DCC)
not to give Umali a period of time to file a reply to the
prosecution's comment on his (Umali's) motion for
reconsideration. The records reveal that the DCC told Umali' s
lawyer that the court (Sandiganbayan) did not give him
(DCC) instructions to allow the parties to file a reply, and that
the counsel could just file a motion to admit the reply "for the
Court to act." Umali, in fact, filed a reply to the prosecution's
comment/opposition to his motion for reconsideration.
In any event, there was nothing in the Sandiganbayan Rules
that gives Umali the right to file a reply to the prosecution's
comment to his motion for reconsideration. The filing of a
reply in order to comment on a motion for reconsideration is
a matter subject to the Anti-Graft Court's sound discretion; its
denial alone does not amount to bias or partiality.
We also find no sufficient basis to rule that Justice Hernandez
exhibited manifest partiality when he stated, "You can always
go to the Supreme Court," during the hearing of Umali' s
motions.
We point out that the exact utterance made by Justice
Hernandez was, "You still have the Supreme Court." This
remark was made in connection with Umali's motion for
inhibition which was set for hearing on that day, and not on
his motion for reconsideration. Umali' s insinuation that the
remark implied that he should no longer expect "any change
of heart and mind" insofar as the judgment of conviction was
concerned," was therefore misplaced. There was nothing in
this statement indicating that Justice Hernandez had already
prejudged the case against Umali.
Similarly, we find unmeritorious Umali's allegation that Justice
Hernandez lawyered for the prosecution when he "thoroughly
confronted" defense witness Atty. Rafael Infantado, during
cross-examination.
It is settled that [a] judge may properly intervene in the
presentation of evidence to expedite and prevent
unnecessary waste of time and clarify obscure and
incomplete details in the course of the testimony of the
witness or thereafter. Questions designed to clarify points
and to elicit additional relevant evidence are not improper.
Nonetheless, the judge should limit himself to clarificatory
questions and this power should be sparingly and judiciously
used. The rule is that the court should stay out of it as much
as possible, neither interfering nor intervening in the conduct
of the trial.10
In the present case, we initially point out that Umali's
complaint did not faithfully reproduce the exchanges during
the hearing on February 9, 2011, as reflected in the
TSN.1âwphi1 We find it reprehensible that while Umali was
imputing bias on Justice Umali based on what transpired
during the hearings, he did not accurately quote the TSN in
his complaint.
At any rate, piecemeal citations of the exchanges during the
February 9, 2011 Sandiganbayan (Fourth Division) hearing in
Criminal Case No. 23624 are glaringly insufficient to establish·
that Justice Hernandez "lawyered" for the prosecution. On
the contrary, Justice Hernandez's questions were merely
designed to clarify points and elicit additional information,
particularly on whether the request of authority of then
Governor Valencia from the Sangguniang Panlalawigan of
Oriental Mindoro to enter into an agreement was included in
the agenda. Notably, the Division's Chairman also asked
clarificatory questions on this matter.
We also find unmeritorious Umali's insinuation that Justice
Hernandez "blindly followed the orders" of Justice Gregory
Ong because the latter was his good friend. Umali tried to
impress upon the Court that Justice Hernandez - upon orders
of Ong - convicted him of the crime charged because he did
not help Justice Ong to convince President Aquino intervene
in the administrative case he was then facing in this Court.
We point out, however, that aside from his bare claims, Umali
did not present any evidence to support these allegations.
We also find Umali's reference to Jamsani-Rodriguez v.
Ong11 to establish Justice Ong's ascendancy over Justice
Hernandez to be misplaced. In this case, the Court
admonished Justice Hernandez for, among others, violating
the Sandiganbayan's Revised Internal Rules. The Court,
however, ruled out malice of the part of Justices Hernandez,
and held that:
As mere members of the Fourth Division, Justice Hernandez
and Justice Ponferrada had no direction and control of how
the proceedings of the Division were conducted. Direction
and control were vested in Justice Ong, as the Chairman.
Justice Hernandez and Justice Ponferrada simply relied
without malice on the soundness and wisdom of Justice Ong's
discretion as their Chairman, which reliance without malice
lulled them into traveling the path of reluctance to halt
Justice Ong from his irregular leadership. We hold that their
liabilities ought to be much diminished by their lack of
malice.12
Extrinsic evidence is required to establish bias, bad faith,
malice, or corrupt purpose, in addition to the palpable error
that may be inferred from the decision or order itself. Mere
55
suspicion of partiality is not enough. There must be sufficient
evidence to prove the same, as well as a manifest showing of
bias and partiality stemming from an extrajudicial source or
some other basis. A judge's conduct must be clearly
indicative of arbitrariness and prejudice before it can be
stigmatized as biased and partial.13

c. Judicial remedies available

An administrative complaint is not the remedy for every act of

a judge deemed aberrant or irregular where a judicial remedy
exists and is available.14

In the present case, one basis of Umali' s administrative

complaint against Justice Hernandez was the
Sandiganbayan's ruling that he (Umali) had conspired with
the other co-accused. This alleged error - pertaining to the
exercise of Justice Hernandez's adjudicative functions -
cannot be corrected through administrative proceedings, but
through judicial remedies.

At any rate, we find that the charge of gross ignorance of the

law based on what Umali perceived to be an erroneous
conclusion of law has no legal basis. To constitute gross
ignorance of the law, it is not enough that the subject
decision, order, or actuation of a judge in the performance of
his official duties is contrary to existing law and jurisprudence
but, most importantly, he must be moved by bad faith, fraud,
dishonesty, or corruption.15 As earlier discussed, Umali
utterly failed to substantiate his claim that Justice Hernandez
tried to extort P15 million from him in exchange for his
acquittal.

In addition, the Sandiganbayan ruling was a collegial

decision, with Justice Hernandez as the ponente, and
Associate Justices Quiroz and Cornejo as the concurring
magistrates. It bears stressing that in a collegial court, the
members act on the basis of consensus or majority rule.
Umali cannot impute what he perceived to be an erroneous
conclusion of law to one specific Justice only.

We emphasize that this Court will not shirk from its

responsibility of imposing discipline upon erring employees
and members of the bench. At the same time, however, the
Court should not hesitate to shield them from unfounded
suits that only serve to disrupt rather than promote the
orderly administration of justice. This Court will not be the
instrument to destroy the reputation of any member of the
bench or any of its employees by pronouncing guilt on mere
speculation.16

WHEREFORE, premises considered, we DISMISS the

administrative complaint against Sandiganbayan Associate
Justice Jose R. Hernandez for lack of merit.

SO ORDERED.

56
RES JUDICATA IN ADMINISTRATIVE CASES
G.R. No. L-15430 September 30, 1963
IPEKDJIAN MERCHANDISING CO., INC., petitioner,
vs.
COURT OF TAX APPEALS and COMMISSIONER OF
INTERNAL REVENUE, respondents.
Latorre, Blanco, Gadioma, and Josue for petitioner.
Office of the Solicitor General, Special Attorneys P. R.
Gonzales and J.C. Llamas for respondents.
MAKALINTAL, J.:
Petition to review the resolution of the Court of Tax Appeals
dismissing the petition for review in C.T.A. Case No. 374.
On January 11, 1951 respondent Commissioner of Internal
Revenue (then Collector of Internal Revenue) assessed and
demanded from Ipekdjian Merchandising Co., Inc., the
amount of P97,502.25, as compensating tax and surcharge
on gold chains imported by it, which were later melted and
converted into gold bullion and sold as such, plus the amount
of P200.00 as compromise penalty, for violation of Sec. 190
of the Tax Code. In accordance with the provisions of
Executive Order No. 401-A, series of 1951, Petitioner
appealed from the Commissioner's decision to the Board of
Tax Appeals, which after hearing on the merits, rendered
judgment affirming the Commissioner judgment (B.T.A. case
No. 10). Petitioner appealed, but this Court "following the
decision in the case of University of Santo Tomas v. Board of
Tax Appeals, G.R. No. L-570 June 23, 1953 "dismissed the
appeal, without prejudice (L-5772, March 30, 1954). The
dismissal having become final and executory petitioner
sought to reinstate its appeal in this Court but its petition for
reinstatement of appeal was denied on March 21, 1955.
On March 30, 1955 petitioner sought to reopen the case in
the Court of Tax Appeals by filing a "petition for review"
docketed as C.T.A. Case No. 107. On July 26, 195 the Court
of Tax Appeals dismissed the appeal for lack of jurisdiction,
petitioner having failed to maintain the necessary action in
the Court of First Instance of Manila in accordance with
Section 306, Tax Code, or with the Court of Tax Appeals
within 30 days from its creation (on June 16, 1954) pursuant
to Section 11, R.A. 1125. Petitioner's motion for
reconsideration of the dismissal was denied. .
On November 3, 1955 petitioner made a partial payment of
P5,000.00 on its tax liability, but four days later filed with
respondent Commissioner a written claim for refund of the
same, requesting at the same time cancellation of the
balance of the assessment. This was denied by the
Commissioner on the ground that the decision of the Board of
Tax Appeals was already final and executory.
On May 10, 1957 petitioner filed a Petition for review in the
Court of Tax Appeals (C.T.A. Case No. 374) of the decision of
respondent Commissioner denying its request for refund and
cancellation of the balance of the assessment. On June 14,
1957 respondent Commissioner filed his answer to the
petition, raising therein as affirmative defense the fact that
the decision in B.T.A. Case NO. 10 operates as res judicata to
petitioner's appeal.
On February 26, 1958 respondent Commissioner filed a
motion for execution of judgment in B.T.A. Case No. 10,
which was granted by respondent court in its resolution of
July 16, 1958. Reconsideration of that resolution being
unavailing petitioner filed with this Court a petition for
certiorari, L-14791, praying for annulment of the order of
execution of the judgment in B.T.A. case No. 10.
On December 29, 1958 respondent Court dismissed C.T.A.
Case No. 374 on the ground of res judicata. Respondent
court having refunded to reconsider the dismissal, petitioner
now seeks review thereof.
The petition for certiorari in Ipekdjian Merchandising Co., Inc.
v. Court of Tax Appeals, L-14791, was disclosed by this Court
on May 30, 1963.
The question presented by appellant is whether or not the
decision of the Board of Tax Appeals in B.T.A. Case No. 10
operates to bar C.T.A. Case No. 374. Appellant argues that
the doctrine of res judicata, being a doctrine of expediency, is
applicable only to judgments rendered by a court or judge
and does not extend to decisions of administrative agencies,
like the Board of Tax Appeals, which are devoid of judicial
functions.
The essential requisites for the existence of res judicata are:
(1) the former judgment must be final; (2) it must have been
rendered by a court having jurisdiction of the subject matter
and the parties; (3) it must be a judgment on the merits; and
(4) there must be, between the first and second actions (a)
identity of parties (b) identity of subject matter and (e)
identity of cause of action (Navarro v. Director of Lands, L-
18814, July 31, 1962; Aring v. Original, L-18464, Dec. 29,
1962).
To say that the doctrine applies exclusively to decisions
rendered by what are usually understood as courts would be
to unreasonably circumscribe the scope thereof. The more
equitable attitude is to allow extension of the defense to
decisions of bodies upon whom judicial powers have been
conferred.1
Since the Board of Tax Appeals was certainly not a court, the
pertinent question is whether the same had been granted
judicial powers. In Ipekdjian Merchandising Co., Inc. v. Court
of Tax Appeals, supra, wherein we refused to annul
respondent court's resolution granting execution of judgment
in B.T.A. Case No. 10, we ruled:.
57
"It is true that in the case of U.S.T. v. BTA, (supra) an
administrative body and it was held that the BTA was an
administrative body and its proceedings and decisions were
administrative in Character. But the petitioner did not take
into consideration the fact that subsequently on June 16,
1954, all cases heretofore decided by the said Board of Tax
Appeals and thence appealed to the Supreme Court, pursuant
to Executive Order Number Four Hundred One-A, shall be
decided by the Supreme Court on the merits to all intents and
purposes as if said Executive Order had been duly enacted by
Congress' and 'that all cases now pending in said Board of
Tax Appeals, shall be transferred to the Court of Appeals and
shall be heard and decided by the latter to all intents and
purposes as they had been originally filed therein' (section
21, supra). We can thus see, that Rep. Act No. 1125 had
conferred judicial character on the proceedings and decisions
of the BTA. It, therefore, results that the decisions of the
BTA, in cases not subsequently brought before the Court of
First Instance, in accordance with the decision in the case of
U.S.T. v. BTA (supra), or before the CTA, under the
provisions of Rep. Act No. 1125, within the 30-day period
prescribed in section 11 thereof, counted from the creation or
organization of the CTA (Lim Tio, et al. v. CTA, et al., G.R.
No. L-10681, March 29, 1958; Sta. Clara Lumber Co v. CTA,
G.R. No. L-9833, Dee. 21, 1957), received judicial
confirmation under said R.A. No. 1125 and the same should
be considered final and executory and enforceable by
execution, just like any other decision of a court of justice.
(Emphasis supplied).1awphîl.nèt
Thus, under the above pronouncement, while the decisions of
the B.T.A. were administrative in character, those that were
not brought before the Court of First Instance. following
U.S.T. v. B.T.A. supra, or before the Court of Tax Appeals,
pursuant to Section 11, R.A. No. 1125, were considered as
having been judicially confirmed by virtue of R.A. No. 1125.
The decisions covered by the pronouncement assumed the
character of decisions of regular courts. Consequently,
appellant's principal argument falls.
It next maintains that the cause of action in B.T.A. Case No.
10 is different from that in C.T.A. Case No. 374.
From appellant's petition in B.T.A. Case No. 10 and the
decision of the Board it may be gathered that what appellant
sought therein was the review of the decision of the Collector
of Internal Revenue holding it liable for P97,502.25 as
compensating tax, etc., with the purpose in mind of having
the same reversed. In its petition for review in C.T.A. Case
No. 374, after alleging the same facts embodied in the B.T.A.
decision, with the addition of the circumstance of payment, it
prayed that it be held not subject to the aforementioned
compensating tax that the Collector be made to refund the
P5,000.00 it had paid; and that the respondent Collector's
demand or assessment for the balance of the compensating
tax be cancelled. It is clear that the alleged cause of action in
both cases is the same: appellant's claim to non-liability for
compensating taxes. The only appreciable difference is that
while in the B.T.A. case is assailed the Collector's decision
assessing the sum of P97,502.25 as compensating tax, etc.,
and holding him responsible therefore, in the C.T.A. case, he
ostensibly tried a different tack, by assailing the Collector's
denial of the claim for refund and request for cancellation of
the balance of the assessment. Nonetheless, in both cases,
the issue is the same: whether or not appellant is liable for
the compensating tax prescribed in Section 190 of the Tax
Code. Appellant cannot, by merely superficially changing the
form of his action, plead the non-application of the rule of bar
by prior judgment.2
All the requisites for the defense of res judicata being
present, respondent court properly dismissed the petition in
C.T.A. Case No. 374.
The resolution of the Court of Tax Appeals dismissing the
petition is hereby affirmed, with costs against herein
petitioner.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
Concepcion, Barrera, Paredes, Dizon and Regala, JJ., concur.
Reyes, J.B.L., J., took no part. .
Footnotes
1The conclusiveness of judgments being a universal principle
of jurisprudence, it "does not, and from its very nature
cannot, depend upon the particular court whose judicial
action has been invoked, so long as its jurisdiction is
competent and its judgment final. It applies wherever the
parties have so submitted their claims to a final decision by a
court of competent jurisdiction, whether that court be inferior
or superior, of law or of equity, domestic or foreign." But in
order that an adjudication may operate strictly as res judicata
it must, of course, be the act of a judicial tribunal in the
exercise of its lawful power. .. The doctrine of res judicata is
applicable only to adjudications which are in their nature
judgments, or, in other words, to the final determinations of
some body exercising strictly judicial functions. ....
Nevertheless, the principle of the conclusiveness of prior
adjudications is not confined in its operation to the judgments
of what are ordinarily known as courts, but it extends to all
bodies upon whom judicial powers have been conferred.
Whenever any board, tribunal or person is by law vested with
authority to judicially determine a question, such a
determination, when it has become final, is as conclusive as
though the adjudication had been made by a court of general
jurisdiction. 2 Freeman on Judgments 1333-1335.
The general rule is that doctrine of res judicata may not be
predicated upon administrative or legislative action. For the
operation of the doctrine, there must be a judgment rendered
by a body exercising judicial functions. There are, however,
cases in which the doctrine of res judicata has been held
applicable to judicial acts of public executive, or
administrative officers and boards. In this connection, it has
been declared that whenever a final adjudication of persons
invested with power to decide on the property and rights of
58
the citizen is examinable by the Supreme Court, upon a writ
of error or a certiorari, such final adjudication may be
pleaded as res judicata, 30 Am. Jur. 372. .

2It is settled that notwithstanding the difference in the form

of the two actions, the doctrine of res judicata will apply
where it appears that the parties are in effect litigating for
the same thing. A party cannot, by varying the form of his
action, escape the effects of res judicata. Valenzuela v. Court
of Appeals, L-12645, Sept. 15, 1960; Lewin v. Galang, L-
15253, Oct. 31, 1960.

59
G.R. No. 200751, August 17, 2015
MONICO LIGTAS, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
"Bakit niya babawiin ang aking saka?" tanong ni Tata Selo.
"Dinaya ko na ba siya sa partihan? Tinuso ko na ba siya? Siya
ang may-ari ng lupa at kasama lang niya ako. Hindi ba't kaya
maraming nagagalit sa akin ay dahil sa ayaw kong
magpamigay ng kahit isang pinangko kung anihan?"
Hindi pa rin umaalis sa harap ng istaked si Tata Selo.
Nakahawak pa rin siya sa rehas. Nakatingin siya sa labas
ngunit wala siyang sino mang tinitingnan.
"Binabawi po niya ang aking saka," sumbong ni Tata Selo.
"Saan papo ako pupunta kung wala na akong saka?"
Habang nakakapit sa rehas at nakatingin sa labas, sinasabi
niyang lahat ay kinuha na sa kanila, lahat, ay! ang lahat ay
kinuha na sa kanila.
- "TataSelo" (1963) by Rogelio R. Sikat
The uncontested declaration of the Department of Agrarian
Reform Adjudication Board that Monico Ligtas was a tenant
negates a finding of theft beyond reasonable doubt. Tenants
having rights to the harvest cannot be deemed to have taken
their own produce.
This is a Petition for Review on Certiorari 1 under Rule 45 of
the Rules of Court, assailing the Court of Appeals Decision2
dated March 16, 2010 and the Resolution3 dated February 2,
2012.4 The Court of Appeals affirmed the Decision5 of the
Regional Trial Court finding Monico Ligtas (Ligtas) guilty
beyond reasonable doubt of theft.6
Ligtas was charged with the crime of theft under Article 308
of the Revised Penal Code.7 The Information
provides:chanRoblesvirtualLawlibrary
That on or about the 29th day of June 2000 at Sitio Lamak,
Barangay San Juan, Municipality of Sogod, Province of
Southern Leyte, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with intent of
gain, entered into the abaca plantation belonging to one
Anecita Pacate, and once inside the plantation, did then and
there willfully, unlawfully and feloniously harvested 1,000
kilos of abaca fibers, valued at Php29,000.00 at Php29.00 per
kilo, without the consent of said owner, Anecita Pacate, to
her damage and prejudice in the aforestated amount of
Twenty Nine Thousand Pesos (Php29,000.00), Philippine
currency.
CONTRARY TO LAW.8ChanRoblesVirtualawlibrary
Ligtas pleaded not guilty.9
The prosecution presented five (5) witnesses during trial:
Efren Cabero (Cabero), Modesto Cipres (Cipres), Anecita
Pacate, SPO2 Enrique Villaruel, and Ernesto Pacate.10
According to the prosecution witnesses, Anecita Pacate was
the owner of an abaca plantation situated at Sitio Lamak,
Barangay San Juan, Sogod, Southern Leyte. On June 29,
2000, Cabero, the plantation's administrator, and several
men, including Cipres, went to the plantation to harvest
abaca upon Anecita Pacate's instructions. At about 10:00
a.m., Cabero and his men were surprised to find Ligtas
harvesting abaca at the plantation. Ligtas was accompanied
by three (3) unidentified men. Allegedly, Ligtas threatened
that there would be loss of life if they persisted in harvesting
the abaca. Cabero reported the incident to Anecita Pacate
and the police.11
On July 2, 2000, Cabero and Cipres went back to the
plantation and conducted a survey on the condition of the
plantation. They found that 1,000 kilos of abaca, valued at
P28.00 per kilo, were harvested by Ligtas.12
On July 3, 2000, Ligtas and Anecita Pacate confronted each
other before the Sogod Police Station.13 Ligtas admitted to
harvesting the abaca but claimed that he was the plantation
owner.14
The defense presented three (3) witnesses during trial:
Ligtas; Pablo Palo, his neighbor; and Delia Ligtas, his wife.15
According to Ligtas, he had been a tenant of Anecita Pacate
and her late husband, Andres Pacate since 1993.16 Andres
Pacate installed him as tenant of the 1.5 to two hectares of
land involved in the criminal case.17
Ligtas allegedly "made his first harvest in 1997."18 He then
gave Anecita Pacate her share to the harvest.19 However, he
could not remember the exact amount anymore.20
Previously, Ligtas and Pablo Palo were workers in another
land, around 15 hectares, owned by Anecita Pacate and
Andres Pacate.21
Ligtas alleged that on June 28, 2000, Anecita Pacate sent
workers to harvest abaca from the land he cultivated. Ligtas
prevented the men from harvesting the abaca since he was
the rightful tenant of the land.22
Furthermore, Ligtas denied harvesting abaca at the plantation
on June 29, 2000. He claimed that he was with Cabero and
Cipres attending a barangay fiesta at Sitio Hubasan, San
Juan, Sogod, Southern Leyte, when the alleged harvesting
happened.23
Meanwhile, Ligtas filed a Complaint before the Department of
Agrarian Reform Adjudication Board (DARAB) of Sogod,
Southern Leyte for Maintenance of Peaceful Possession on
November 21, 2000.24 On January 22, 2002, the DARAB
rendered the Decision25 ruling that Ligtas was a bona fide
tenant of the land.26
60
While records are bereft as to when the DARAB Decision was
formally offered as evidence before the trial court, records
are clear that the DARAB Decision was considered by both
the trial court27 and Court of Appeals28 and without any
objection on the part of the People of the Philippines.29
In the Decision dated August 16, 2006, the Regional Trial
Court held that "the prosecution was able to prove the
elements of theft[.]"30 Ligtas' "defense of tenancy was not
supported by concrete and substantial evidence nor was his
claim of harvest sharing between him and [Anecita Pacate]
duly corroborated by any witness."31 His "defense of alibi
cannot prevail over the positive identification ... by
prosecution witnesses."32
The dispositive portion of the Decision
reads:chanRoblesvirtualLawlibrary
WHEREFORE, finding the accused Monico Ligtas guilty
beyond reasonable doubt of the crime of Theft, this court
hereby renders judgment, sentencing him:
To suffer the indeterminate penalty of four (4) years, nine (9)
months and ten (10) days as minimum to eight (8) years and
eight (8) months as maximum;cralawlawlibrary
To indemnify the offende[d] party:
The amount of P29,000.00 for the value of the abaca
stole[n];cralawlawlibrary
The amount of P5000.00 as moral damages;cralawlawlibrary
The amount of P10,000.00 as litigation expenses/attorney's
fees;cralawlawlibrary
To pay the costs.
SO ORDERED.33ChanRoblesVirtualawlibrary
ChanRoblesVirtualawlibrary
I Ligtas' attack on the credibility of the witnesses did not
The Court of Appeals affirmed the ruling of the trial court.34
According to it, "the burden to prove the existence of the
tenancy relationship"35 belonged to Ligtas. He was not able
to establish all the essential elements of a tenancy
agreement.36
The Court of Appeals declared that Ligtas' reliance on the
DARAB Decision "declaring him as a bonafide tenant of the . .
. land is irrelevant in the case at bar":37
Jurisprudence is replete with cases declaring that "findings of
or certifications issued by the Secretary of Agrarian Reform,
or his authorized representative, in a given locality concerning
the presence or absence of a tenancy relationship between
the contending parties, are merely preliminary or provisional
and are not binding upon the
courts.["]38ChanRoblesVirtualawlibrary
As to the ownership of the land, the Court of Appeals held
that Ligtas had taken conflicting positions. While he claimed
to be a legitimate tenant, Ligtas also assailed Anecita Pacate's
title over the land. Under Rule 131, Section 2 of the Rules of
Court, a tenant cannot deny the title of his or her landlord at
the time of the commencement of the tenancy relation.39
The Court of Appeals remained unconvinced as to Ligtas'
allegations on ownership. "He claims that the parcel of land
owned by [Anecita Pacate] is different from the subject abaca
land. However, such assertion was based merely on the
testimony of the municipal assessor, not an expert competent
to identify parcels of land."40
More importantly, the Court of Appeals ruled that Ligtas
committed theft by harvesting abaca from Anecita Pacate's
plantation.41 Ligtas had constructive possession of the
subject of the theft without the owner's consent.42 "The
subject of the crime need not be carried away or actually
taken out from the land in order to consummate the crime of
theft."43
Furthermore, Ligtas' argument that the abaca did not
constitute as personal property under the meaning of Article
308 of the Revised Penal Code was erroneous.44 Following
the definition of personal property, the abaca hemp was
"capable of appropriation [and] [could] be sold and carried
away from one place to another."45 The Court of Appeals
affirmed the trial court's finding that about 1,000 kilos of
abaca were already harvested.46 Hence, all the elements of
theft under Article 308 of the Revised Penal Code were
sufficiently established by the prosecution.
The Court of Appeals ruled that Ligtas' defense of alibi could
not excuse him from criminal liability.47 His alibi was
doubtfully established. "[W]here an accused's alibi is
established only by himself, his relatives and friends, his
denial of culpability should be accorded the strictest
scrutiny."48
prosper.49 He failed to show that the case was initiated only
through Anecita Pacate's quest for revenge or to ensure that
Ligtas would be evicted from the land.50
The Court of Appeals dismissed Ligtas' appeal and affirmed
the trial court's Decision finding Ligtas guilty beyond
reasonable doubt of theft under Article 308 of the Revised
Penal Code.51 The dispositive portion of the Decision
reads:chanRoblesvirtualLawlibrary
WHEREFORE, the instant Appeal is DISMISSED. Accordingly,
the assailed Decision dated . . . August 16, 2006 of the
Regional Trial Court of Sogod, Southern Leyte, Branch 39, in
Criminal Case No. R-225, finding accused-appellant Monico
Ligtas guilty beyond reasonable doubt of Theft under Article
308 of the Revised Penal Code, is hereby AFFIRMED in all
respects.
SO ORDERED.52ChanRoblesVirtualawlibrary
Ligtas filed a Motion for Reconsideration,53 which the Court
of Appeals denied on February 2, 2012.54
II
61

On April 4, 2012, Ligtas filed this Petition assailing the Court
of Appeals Decision and Resolution.55 This court required
People of the Philippines to file its Comment on the Petition
within 10 days from notice.56
The issues for consideration of this court are:
First, whether questions of fact may be raised in a petition for
review on certiorari under Rule 45 of the Rules of
Court;cralawlawlibrary
Second, whether the DARAB Decision, finding petitioner
Monico Ligtas as tenant of the land owned by private
complainant Anecita Pacate and located at Sitio Lamak,
Barangay San Juan, Sogod, Southern Leyte is conclusive or
can be taken judicial notice of in a criminal case for theft; and
Third, whether the Court of Appeals committed reversible
error when it upheld the conviction of petitioner Monico
Ligtas for theft under Article 308 of the Revised Penal Code.
The Petition is meritorious.
III
Petitioner argues that the findings of fact of both the trial
court and Court of Appeals must be revisited for being
"conclusions without citation of specific evidence on record
and premised on the supposed absence of evidence on the
claim of petitioner [as] tenant."57
Only questions of law are allowed in a petition for review
under Rule 4558 of the Rules of Court.59 Factual findings of
the Regional Trial Court are conclusive and binding on this
court when affirmed by the Court of Appeals.60 This court
has differentiated between a question of law and question of
fact:chanRoblesvirtualLawlibrary
A question of law exists when the doubt or controversy
concerns the correct application of law or jurisprudence to a
certain set of facts; or when the issue does not call for an
examination of the probative value of the evidence
presented, the truth or falsehood of facts being admitted. A
question of fact exists when the doubt or difference arises as
to the truth or falsehood of facts or when the query invites
calibration of the whole evidence considering mainly the
credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances as well as their relation to
each other and to the whole, and the probability of the
situation.61 (Emphasis supplied)ChanRoblesVirtualawlibrary
Petitioner admits that the Petition raises substantially factual
issues that are beyond the scope of the Rule he seeks redress
from.62 However, there are exceptions to the rule that only
questions of law should be the subject of a petition for review
under Rule 45:chanRoblesvirtualLawlibrary
(1) when the findings are grounded entirely on speculation,
surmises or conjectures, (2) when the inference made is
manifestly mistaken, absurd or impossible, (3) when there is
grave abuse of discretion, (4) when the judgment is based on
misapprehension of facts, (5) when the findings of fact are
conflicting, (6) 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, (7)
when the CA's findings are contrary to those by the trial
court, (8) when the findings are conclusions without citation
of specific evidence on which they are based, (9) when the
acts set forth in the petition as well as in the petitioner's main
and reply briefs are not disputed by the respondent, (10)
when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record, or (11) when the CA manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.63 (Emphasis
supplied, citation omitted)ChanRoblesVirtualawlibrary
This court has held before that a re-examination of the facts
of the case is justified "when certain material facts and
circumstances had been overlooked by the trial court which,
if taken into account, would alter the result of the case in that
they would introduce an element of reasonable doubt which
would entitle the accused to acquittal."64
The issue of tenancy, in that whether a person is an
agricultural tenant or not, is generally a question of fact.65
To be precise, however, the existence of a tenancy
relationship is a legal conclusion based on facts presented
corresponding to the statutory elements of tenancy.66
The Court of Appeals committed reversible error in its
assailed Decision when it held that all the essential elements
of the crime of theft were duly proven by the prosecution
despite petitioner having been pronounced a bona fide tenant
of the land from which he allegedly stole.67 A review of the
records of the case is, thus, proper to arrive at a just and
equitable resolution.
IV
Petitioner claims that private complainant's filing of criminal
charges was motivated by ill will and revenge.68 The charges
were designed to remove petitioner from the land he has
legitimately occupied as tenant.69 Telling is the fact that
petitioner filed his Complaint before the DARAB on November
21, 2000, while the Information for Theft was filed on
December 8, 2000.70
Petitioner argues that he has sufficiently established his
status as private complainant's tenant.71 The DARAB
Decision is entitled to respect, even finality, as the
Department of Agrarian Reform is the administrative agency
vested with primary jurisdiction and has acquired expertise
on matters relating to tenancy relationship.72
The findings of the DARAB were also supported by substantial
evidence.73 To require petitioner to prove tenancy
relationship through evidence other than the DARAB Decision
and the testimonies of the witnesses is absurd and goes
beyond the required quantum of evidence, which is
substantial evidence.74
62

Also, according to petitioner, the DARAB Decision has
attained finality since private complainant did not file an
appeal. The DARAB's finding as to the parties' tenancy
relationship constitutes as res judicata.75
On the other hand, respondent argues that the Court of
Appeals correctly disregarded the DARAB Decision.76 The
trial court could not have taken judicial notice of the DARAB
Decision:chanRoblesvirtualLawlibrary
While the DARAB . . . ruled that petitioner is a bonafide
tenant of Pacate, courts are not authorized to take judicial
notice of the contents of the records of other cases even
when such cases have been tried or are pending in the same
court, and notwithstanding the fact that both cases may have
been heard or are actually pending before the same judge.77
(Citation omitted)ChanRoblesVirtualawlibrary
Moreover, according to respondent, petitioner invokes
conflicting defenses: that there is a legitimate tenancy
relationship between him and private complainant and that
he did not take the abaca hemp.78 Nevertheless, respondent
maintains that petitioner failed to prove all the essential
elements of a tenancy relationship between him and private
complainant.79 Private complainant did not consent to the
alleged tenancy relationship.80 Petitioner also failed to
provide evidence as to any sharing of harvest between the
parties.81
We hold that a DARAB decision on the existence of a tenancy
relationship is conclusive and binding on courts if supported
by substantial evidence.
Generally, decisions in administrative cases are not binding
on criminal proceedings. This court has ruled in a number of
cases that:chanRoblesvirtualLawlibrary
It is indeed a fundamental principle of administrative law that
administrative cases are independent from criminal actions
for the same act or omission. Thus, an absolution from a
criminal charge is not a bar to an administrative prosecution,
or vice versa. One thing is administrative liability; quite
another thing is the criminal liability for the same act.
....
Thus, considering the difference in the quantum of evidence,
as well as the procedure followed and the sanctions imposed
in criminal and administrative proceedings, the findings and
conclusions in one should not necessarily be binding on the
other. Notably, the evidence presented in the administrative
case may not necessarily be the same evidence to be
presented in the criminal cases.82 (Emphasis supplied,
citations omitted)ChanRoblesVirtualawlibrary
However, this case does not involve an administrative charge
stemming from the same set of facts involved in a criminal
proceeding. This is not a case where one act results in both
criminal and administrative liability. DARAB Case No. VIII-
319-SL-2000 involves a determination of whether there exists
a tenancy relationship between petitioner and private
complainant, while Criminal Case No. R-225 involves
determination of whether petitioner committed theft.
However, the tenancy relationship is a factor in determining
whether all the elements of theft were proven by the
prosecution.
In its Decision dated January 22, 2002, the DARAB
found:chanRoblesvirtualLawlibrary
All the necessary requisites in order to establish tenancy
relationship as required in the above-quoted Supreme Court
ruling, has been established by the evidence submitted by
plaintiff; And these evidences were not controverted by any
evidence submitted by the respondent.
In fine, this board found plaintiff a bonafide tenant of the
land in question and as such is entitled to a security of
tenure, in which case he shall not be dispossessed of his
holdings by the landowner except for any of the causes
provided by law and only after the same has been proved
before, and the dispossession is authorized by the Court and
in the judgment that is final and executory[.]83 (Citations
omitted)ChanRoblesVirtualawlibrary
The dispositive portion of the DARAB Decision
provides:chanRoblesvirtualLawlibrary
WHEREFORE, premises being considered, judgment is hereby
rendered, finding Monico Ligtas a bonafide tenant of the land
subject in this case and well described in paragraph three (3)
in the complaint, and ordering as follows, to wit:
The respondent and all other persons acting for and in her
behalf to maintain plaintiff in the peaceful possession of the
land in dispute;cralawlawlibrary
The MARO of Sogod, Southern Leyte, and concurrently the
cluster Manager of Sogod Bay DAR Cluster to call the parties
and assist them in the execution of a leasehold contract
covering the land in dispute, and for the parties to respect
and obey such call of the said MARO in compliance with the
legal mandate.
Ordering the respondent to pay plaintiff the amount of Five
Thousand (P5,000.00) Pesos representing the expenses
incurred by plaintiff in vindicating his right and other actual
expenses incurred in this litigation.
Other relief sought are hereby ordered dismissed for lack of
evidence.
No cost.
SO DECIDED.84ChanRoblesVirtualawlibrary
Private complainant did not appeal the DARAB's findings.
Findings of fact of administrative agencies in the exercise of
their quasi-judicial powers are entitled to respect if supported
by substantial evidence.85 This court is not tasked to weigh
again "the evidence submitted before the administrative body
and to substitute its own judgment [as to] the sufficiency of
evidence."86
V
63
The DARAB is the quasi-judicial tribunal that has the primary
jurisdiction to determine whether there is a tenancy
relationship between adverse parties.87 This court has held
that "judicial determinations [of the a DARAB] have the same
binding effect as judgments and orders of a regular judicial
body."88 Disputes under the jurisdiction of the DARAB
include controversies relating to:chanRoblesvirtualLawlibrary
tenurial arrangements, whether leasehold, tenancy,
stewardship or otherwise, over lands devoted to agriculture,
including disputes concerning farmworkers associations or
representation of persons in negotiating, fixing, maintaining,
changing or seeking to arrange terms or conditions of such
tenurial arrangements.89ChanRoblesVirtualawlibrary
In Salazar v. De Leon,90 this court upheld the Department of
Agrarian Reform's primary jurisdiction over agrarian disputes,
which includes the relationship between landowners and
tenants.91 The DARAB Decision is conclusive and binding on
courts when supported by substantial evidence.92 This court
ruled that administrative res judicata exists in that
case:chanRoblesvirtualLawlibrary
Significantly, respondent did not appeal the Decision dated 17
November 1995 of the DARAB in DARAB Case # II-380-
ISA'94; consequently, the same has attained finality and
constitutes res judicata on the issue of petitioner's status as a
tenant of respondent.
Res judicata is a concept applied in the review of lower court
decisions in accordance with the hierarchy of courts. But
jurisprudence has also recognized the rule of administrative
res judicata: "The rule which forbids the reopening of a
matter once judicially determined by competent authority
applies as well to the judicial and quasi-judicial facts of
public, executive or administrative officers and boards acting
within their jurisdiction as to the judgments of courts having
general judicial powers. It has been declared that whenever
final adjudication of persons invested with power to decide on
the property and rights of the citizen is examinable by the
Supreme Court, upon a writ of error or a certiorari , such final
adjudication may be pleaded as res judicata." To be sure,
early jurisprudence was already mindful that the doctrine of
res judicata cannot be said to apply exclusively to decisions
rendered by what are usually understood as courts without
unreasonably circumscribing the scope thereof; and that the
more equitable attitude is to allow extension of the defense
to decisions of bodies upon whom judicial powers have been
conferred.93 (Emphasis supplied, citations
omitted)ChanRoblesVirtualawlibrary
In Encinas v. Agustin, Jr.,94 this court clarified that res
judicata applies only to decisions rendered by agencies in
judicial or quasi-judicial proceedings and not to purely
administrative proceedings:chanRoblesvirtualLawlibrary
The CA was correct in ruling that the doctrine of res judicata
applies only to judicial or quasi-judicial proceedings, and not
to the exercise of administrative powers. Administrative
powers here refer to those purely administrative in nature, as
opposed to administrative proceedings that take on a quasi-
judicial character.
In administrative law, a quasi-judicial proceeding involves (a)
taking and evaluating evidence; (b) determining facts based
upon the evidence presented; and (c) rendering an order or
decision supported by the facts proved. The exercise of
quasi-judicial functions involves a determination, with respect
to the matter in controversy, of what the law is; what the
legal rights and obligations of the contending parties are; and
based thereon and the facts obtaining, the adjudication of the
respective rights and obligations of the parties.95 (Citations
omitted)ChanRoblesVirtualawlibrary
We find it necessary to clarify the two concepts of res
judicata: bar by prior judgment and conclusiveness of
judgment. In Social Security Commission v. Rizal Poultry and
Livestock Association, Inc., et al.,96 this court discussed and
differentiated the two concepts of res
judicata:chanRoblesvirtualLawlibrary
Res judicata embraces two concepts: (1) bar by prior
judgment as enunciated in Rule 39, Section 47(b) of the
Rules of Civil Procedure; and (2) conclusiveness of judgment
in Rule 39, Section 47(c).
There is "bar by prior judgment" when, as between the first
case where the judgment was rendered and the second case
that is sought to be barred, there is identity of parties,
subject matter, and causes of action. In this instance, the
judgment in the first case constitutes an absolute bar to the
second action.
But where there is identity of parties in the first and second
cases, but no identity of causes of action, the first judgment
is conclusive only as to those matters actually and directly
controverted and determined and not as to matters merely
involved therein. This is the concept of res judicata known as
"conclusiveness of judgment." Stated differently, any right,
fact or matter in issue directly adjudicated or necessarily
involved in the determination of an action before a competent
court in which judgment is rendered on the merits is
conclusively settled by the judgment therein and cannot
again be litigated between the parties and their privies,
whether or not the claim, demand, purpose, or subject
matter of the two actions is the same.
Thus, if a particular point or question is in issue in the second
action, and the judgment will depend on the determination of
that particular point or question, a former judgment between
the same parties or their privies will be final and conclusive in
the second if that same point or question was in issue and
adjudicated in the first suit. Identity of cause of action is not
required but merely identity of issue.
The elements of res judicata are: (1) the judgment sought to
bar the new action must be final; (2) the decision must have
been rendered by a court having jurisdiction over the subject
matter and the parties; (3) the disposition of the case must
be a judgment on the merits; and (4) there must be as
between the first and second action, identity of parties,
subject matter, and causes of action. Should identity of
parties, subject matter, and causes of action be shown in the
two cases, then res judicata in its aspect as a "bar by prior
64
judgment" would apply. If as between the two cases, only
identity of parties can be shown, but not identical causes of
action, then res judicata as "conclusiveness of judgment"
applies.97 (Emphasis supplied, citations
omitted)ChanRoblesVirtualawlibrary
In Martillano v. Court of Appeals,98 the DARAB Decision
finding for the existence of a tenancy relationship between
the parties was declared by this court as conclusive on the
parties.99 As in this case, the DARAB Decision100 in
Martillano attained finality when the landowner did not appeal
the Decision.101 This court ruled that the doctrine of res
judicata applies:chanRoblesvirtualLawlibrary
Under the afore-cited sections of RA 6657, the Department of
Agrarian Reform is empowered, through its adjudicating arm
the regional and provincial adjudication boards, to resolve
agrarian disputes and controversies on all matters pertaining
to the implementation of the agrarian law. Section 51 thereof
provides that the decision of the DARAB attains finality after
the lapse of fifteen (15) days and no appeal was interposed
therefrom by any of the parties.
In the instant case, the determination of the DARAB in
DARAB Case No. 062-Bul '89, there being no appeal
interposed therefrom, attained finality. Accordingly, the
matter regarding the status of Martillano as a tenant farmer
and the validity of the CLT and Emancipation Patents issued
in his favor are settled and no longer open to doubt and
controversy.
....
We recall that DARAB Case 062-Bul '89 was for the
cancellation of petitioner's CLT and Emancipation patents.
The same effect is sought with the institution of DARAB Case
No. 512-Bul '94, which is an action to withdraw and/or cancel
administratively the CLT and Emancipation Patents issued to
petitioner. Considering that DARAB Case 062-Bul '89 has
attained finality prior to the filing of DARAB Case No. 512-Bul
'94, no strenuous legal interpretation is necessary to
understand that the issues raised in the prior case, i.e.,
DARAB Case No. 062-Bul '89, which have been resolved with
finality, may not be litigated anew.
The instant case is complicated by the failure of the
complainant to include Martillano as party-defendant in the
case before the adjudication board and the DARAB, although
he was finally impleaded on appeal before the Court of
Appeals.
The belated inclusion of Martillano as respondent in the
petition will not affect the applicability of the doctrine of bar
by prior judgment. What is decisive is that the issues which
have already been litigated in a final and executory judgment
precludes, by the principle of bar by prior judgment, an
aspect of the doctrine of res judicata, and even under the
doctrine of "law of the case," the re-litigation of the same
issue in another action. It is well established that when a
right or fact has been judicially tried and determined by a
court of competent jurisdiction, so long as it remains
unreversed, it should be conclusive upon the parties and
those in privity with them. The dictum therein laid down
became the law of the case and what was once irrevocably
established as the controlling legal rule or decision, continues
to be binding between the same parties as long as the facts
on which the decision was predicated, continue to be the
facts of the case before the court. Hence, the binding effect
and enforceability of that dictum can no longer be
resurrected anew since said issue had already been resolved
and finally laid to rest, if not by the principle of res judicata,
at least by conclusiveness of judgment.102 (Emphasis
supplied, citations omitted)ChanRoblesVirtualawlibrary
In Co v. People, et al.,103 this court held that "the doctrine of
conclusiveness of judgment also applies in criminal
cases."104 Petitioner in that case was charged with the
violation of Republic Act No. 1161, as amended, for the
alleged non-remittance of Social Security System
contributions.105 This court upheld the findings of the
National Labor Relations Commission in a separate case,
which declared the absence of an employer-employee
relationship and had attained finality.106 This court held
that:chanRoblesvirtualLawlibrary
The reasons for establishing the principle of "collusiveness of
judgment" are founded on sound public policy. ... It is
allowable to reason back from a judgment to the basis on
which it stands, upon the obvious principle that where a
conclusion is indisputable, and could have been drawn only
from certain premises, the premises are equally indisputable
with the conclusion. When a fact has been once determined
in the course of a judicial proceeding, and a final judgment
has been rendered in accordance therewith, it cannot be
again litigated between the same parties without virtually
impeaching the correctness of the former decision, which,
from motives of public policy, the law does not permit to be
done.
Res judicata has two concepts. The first is bar by prior
judgment under Rule 39, Section 47 (b), and the second is
conclusiveness of judgment under Rule 39, Section 47 (c).
Both concepts are founded on the principle of estoppel, and
are based on the salutary public policy against unnecessary
multiplicity of suits. Like the splitting of causes of action, res
judicata is in pursuance of such policy. Matters settled by a
Court's final judgment should not be litigated upon or invoked
again. Relitigation of issues already settled merely burdens
the Courts and the taxpayers, creates uneasiness and
confusion, and wastes valuable time and energy that could be
devoted to worthier cases.107 (Citations
omitted)ChanRoblesVirtualawlibrary
In VHJ Construction and Development Corporation v. Court of
Appeals,108 this court ruled that tenancy relationship must
be duly proven:chanRoblesvirtualLawlibrary
[A] tenancy relationship cannot be presumed. There must be
evidence to prove this allegation. The principal factor in
determining whether a tenancy relationship exists is intent.
Tenancy is not a purely factual relationship dependent on
what the alleged tenant does upon the land. It is also a legal
relationship.109 (Citation omitted)ChanRoblesVirtualawlibrary
65
The DARAB, in DARAB Case No. VIII-319-SL-2000, held that
all the essential elements of a tenancy relationship were
proven by petitioner.110 It found that there was substantial
evidence to support petitioner's claim as tenant of the
land.111 In rendering the Decision, the DARAB examined
pleadings and affidavits of both petitioner and private
complainant.112 It was convinced by petitioner's evidence,
which consisted of sworn statements of petitioner's witnesses
that petitioner was installed as tenant by Andres Pacate
sometime in 1993.113 Petitioner and Andres Pacate had an
agreement to share the produce after harvest.114 However,
Andres Pacate had died before the first harvest.115 Petitioner
then gave the landowner's share to private complainant, and
had done so every harvest until he was disturbed in his
cultivation of the land on June 29, 2000.116
We emphasize that after filing her Answer before the DARAB,
private complainant failed to heed the Notices sent to her and
refused to attend the scheduled hearings.117 The DARAB
even quoted in its Decision the reason offered by private
complainant's counsel in his Motion to Withdraw as
counsel:chanRoblesvirtualLawlibrary
That as early as the preliminary hearings of the case, the
respondent has already shown her intention not to participate
the proceedings of the case for reasons known only to
her;cralawlawlibrary
That despite the advi[c]e of the undersigned, respondent
stood pat with her decision not to participate in the
proceedings of the case;cralawlawlibrary
That in view of this predicament, the undersigned can do
nothing except to withdraw as he is now withdrawing as
counsel for the respondent of the above-entitled
casef.]118ChanRoblesVirtualawlibrary
It is true that trial courts are not mandated to take judicial
notice of decisions of other courts or even records of other
cases that have been tried or are pending in the same court
or before the same judge.119 In declaring that the DARAB's
findings on the tenancy relationship between petitioner and
private complainant are immaterial to the criminal case for
theft, the Court of Appeals120 relied on Rollo, et al. v. Leal
Realty Centrum Co., Inc., et al.121
In Rollo, petitioners, who were farmers of a 21-hectare
agricultural land in Tarlac that was principally devoted to
sugar and rice and who claim the rights of their
predecessors-in-interest, filed separate Complaints before the
Provincial Adjudication Board of Region III in Tarlac, Tarlac.
They claimed that when the registered owner of the land,
Josefina Roxas Omaña, sold the land to respondents,
respondents were aware of the tenancy relationship between
petitioners and Josefina Roxas Omaña.122
Respondents offered a compensation package to petitioners
in exchange for the renunciation of their tenancy rights under
the Comprehensive Agrarian Reform Law. However, they
failed to comply with their obligations under the terms of the
compensation package.123 Petitioners then filed a series of
Complaints before the DARAB. The cases were consolidated
and resolved by the Provincial Adjudicator.124
The Provincial Adjudicator ruled, among other things, that
"there was no tenancy relationship [that] existed between the
parties."125 He found that petitioners and their predecessors-
in-interest were mere hired laborers, not tenants. Tenancy
cannot be presumed from respondents' offer of a
compensation package.126
On appeal, the DARAB reversed the Decision of the Provincial
Adjudicator. It found that there was an implied tenancy
between the parties. Petitioners were deemed tenants of the
land for more than 30 years. They were entitled to security of
tenure.127
The Court of Appeals reversed the DARAB Decision and
reinstated the Provincial Adjudicator's Decision. It held that
there was no substantial evidence to prove that all the
requisites of tenancy relationship existed. However, despite
the lack of tenancy relationship, the compensation package
agreement must be upheld.128
This court affirmed the Court of Appeals Decision.129 It held
that petitioners failed to overcome the burden of proving the
existence of a tenancy
relationship:chanRoblesvirtualLawlibrary
At the outset, the parties do not appear to be the landowner
and the tenants. While it appears that there was personal
cultivation by petitioners and their predecessors-in-interest of
the subject landholding, what was established was that
petitioners' claim of tenancy was founded on the self-serving
testimony of petitioner Rodolfo Rollo that his predecessors-in-
interest had been in possession of the landholding for more
than 30 years and had engaged in a "50-50" sharing scheme
with JOSEFINA and JOSEFINA's grandmother, the previous
owner thereof. Self-serving statements in pleadings are
inadequate; proof must be adduced. Such claims do not
suffice absent concrete evidence to support them. The
burden rests on the shoulders of petitioners to prove their
affirmative allegation of tenancy, which burden they failed to
discharge with substantial evidence. Such a juridical tie must
be aptly shown. Simply put, he who alleges the affirmative of
the issue has the burden of proof, and from the plaintiff in a
civil case, the burden of proof never parts. The same rule
applies to administrative cases. In fact, if the complainant,
upon whom rests the burden of proving his cause of action,
fails to show in a satisfactory manner the facts upon which he
bases his claim, the respondent is under no obligation to
prove his exception or defense....
Neither was it shown to the satisfaction of this Court that
there existed a sharing of harvests in the context of a
tenancy relationship between petitioners and/or their
predecessors-in-interest and JOSEFINA. Jurisprudence is
illuminating to the effect that to prove such sharing of
harvests, a receipt or any other evidence must be presented.
None was shown. No receipts were presented as testaments
to the claimed sharing of harvests. The only evidence
66
submitted to establish the purported sharing of harvests was
the testimony of petitioner Rodolfo Rollo. The sharing
arrangement cannot be deemed to have existed on the basis
alone of petitioner Rodolfo Rollo's claim. It is self-serving and
is without evidentiary value. Self-serving statements are
deemed inadequate; competent proof must be adduced. If at
all, the fact alone of sharing is not sufficient to establish a
tenancy relationship.
We also sustain the conclusion reached by the Provincial
Adjudicator and the Court of Appeals that the testimony of
Araceli Pascua, an employee of the DAR in Victoria, Tarlac,
that the subject landholding was tenanted cannot overcome
substantial evidence to the contrary. To prove the alleged
tenancy no reliance may be made upon the said public
officer's testimony. What cannot be ignored is the precedent
ruling of this Court that the findings of or certifications issued
by the Secretary of Agrarian Reform, or his authorized
representative, in a given locality concerning the presence or
absence of a tenancy relationship between the contending
parties, are merely preliminary or provisional and are not
binding upon the courts. This ruling holds with greater effect
in the instant case in light of the fact that petitioners, as
herein shown, were not able to prove the presence of all the
indispensable elements of tenancy.130 (Emphasis supplied,
citations omitted)ChanRoblesVirtualawlibrary
Thus, in Rollo, this court did not categorically hold that the
DARAB's findings were merely provisional and, thus, not
binding on courts. What was deemed as a preliminary
determination of tenancy was the testimony of the
Department of Agrarian Reform employee stating that the
land involved was tenanted. Further, the tribunals had
conflicting findings on whether petitioners were bona fide
tenants.
In this case, records are bereft as to whether private
complainant appealed the DARAB Decision. Thus, it is
presumed that the Decision has long lapsed into finality.131
It is also established that private complainant participated in
the initial stages of the DARAB proceedings.132 Therefore,
the issue of the existence of a tenancy relationship is final as
between the parties. We cannot collaterally review the
DARAB's findings at this stage. The existence of the final
Decision that tenancy exists creates serious doubts as to the
guilt of the accused.
VI
According to petitioner, the elements of theft under Article
308 of the Revised Penal Code were not established since he
was a bona fide tenant of the land.133 The DARAB's
recognition of petitioner as a legitimate tenant necessarily
"implie[d] that he ha[d] the authority to harvest the abaca
hemp from [private complainant's land]."134 This shows that
petitioner had no criminal intent.
As to the existence of another element of theft—that the
taking was done without the consent of the owner—petitioner
argues that this, too, was negated by his status as private
complainant's tenant:chanRoblesvirtualLawlibrary
The purported lack of consent on the part of the private
complainant as alleged by the prosecution, is misplaced. In
fact, it was even improper for Anecita Pacate to stop or
prevent petitioner from harvesting the produce of the
landholding because as tenant, petitioner is entitled to
security of tenure. This right entitled him to continue working
on his landholding until the leasehold relation is terminated or
until his eviction is authorized by the DARAB in a judgment
that is final and executory.135 (Citation
omitted)ChanRoblesVirtualawlibrary
Petitioner argues that the constitutional presumption of
innocence must be upheld:chanRoblesvirtualLawlibrary
Well-settled is the rule that where "inculpatory facts and
circumstances are capable of two or more explanations, one
of which is consistent with the innocence of the accused and
the other consistent with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to
support a conviction." In acquitting an appellant, we are not
saying that he is lily-white, or pure as driven snow. Rather,
we are declaring his innocence because the prosecution's
evidence failed to show his guilt beyond reasonable doubt.
For that is what the basic law requires. Where the evidence is
insufficient to overcome the presumption of innocence in
favour of the accused, then his "acquittal must follow in
faithful obeisance to the fundamental law."136 (Citations
omitted)ChanRoblesVirtualawlibrary
The Court of Appeals erred when it affirmed the findings of
the trial court finding petitioner guilty beyond reasonable
doubt of theft.
Article 308 of the Revised Penal Code
provides:chanRoblesvirtualLawlibrary
ARTICLE. 308. Who are Liable for Theft. — Theft is
committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force
upon things, shall take personal property of another without
the latter's consent.
Theft is likewise committed by:
Any person who, having found lost property, shall fail to
deliver the same to the local authorities or to its
owner;cralawlawlibrary
Any person who, after having maliciously damaged the
property of another, shall remove or make use of the fruits or
object of the damage caused by him; and
Any person who shall enter an enclosed estate or a field
where trespass is forbidden or which belongs to another and
without the consent of its owner, shall hunt or fish upon the
same or shall gather fruits, cereals, or other forest or farm
products.
The essential elements of theft are: (1) taking of personal
property; (2) the property taken belongs to another; (3) the
taking was done without the owner's consent; (4) there was
intent to gain; and (5) the taking was done without violence
against or intimidation of the person or force upon things.137
67

Tenants have been defined as:chanRoblesvirtualLawlibrary
persons who — in themselves and with the aid available from
within their immediate farm households — cultivate the land
belonging to or possessed by another, with the latter's
consent, for purposes of production, sharing the produce with
the landholder under the share tenancy system, or paying to
the landholder a price certain or ascertainable in produce or
money or both under the leasehold tenancy system.138
(Citation omitted)ChanRoblesVirtualawlibrary
Under this definition, a tenant is entitled to the products of
the land he or she cultivates. The landowner's share in the
produce depends on the agreement between the parties.
Hence, the harvesting done by the tenant is with the
landowner's consent.
WHEREFORE, the Petition is GRANTED. The Court of Appeals
Decision dated March 16, 2010 and the Resolution dated
February 2, 2012 are REVERSED and SET ASIDE. Petitioner
Monico Ligtas is ACQUITTED of the crime of theft under
Article 308 of the Revised Penal Code. If detained, he is
ordered immediately RELEASED, unless he is confined for any
other lawful cause. Any amount paid by way of a bailbond is
ordered RETURNED.
SO ORDERED.chanroblesvirtuallawlibrary

The existence of the DARAB Decision adjudicating the issue

of tenancy between petitioner and private complainant
negates the existence of the element that the taking was
done without the owner's consent. The DARAB Decision
implies that petitioner had legitimate authority to harvest the
abaca. The prosecution, therefore, failed to establish all the
elements of theft.

In Pit-og v. People,139 this court acquitted petitioner of theft

of sugarcane and banana crops on the basis of reasonable
doubt.140 The prosecution failed to prove lack of criminal
intent on petitioner's part.141 It failed to clearly identify "the
person who, as a result of a criminal act, without his
knowledge and consent, was wrongfully deprived of a thing
belonging to him."142 There were doubts as to whether the
plants taken by petitioner were indeed planted on private
complainant's lot when petitioner had planted her own plants
adjacent to it.143 Thus, it was not proven beyond reasonable
doubt that the property belonged to private complainant. This
court found that petitioner "took the sugarcane and bananas
believing them to be her own. That being the case, she could
not have had a criminal intent."144

In this case, petitioner harvested the abaca, believing that he

was entitled to the produce as a legitimate tenant cultivating
the land owned by private complainant. Personal property
may have been taken, but it is with the consent of the owner.

No less than the Constitution provides that the accused shall

be presumed innocent of the crime until proven guilty.145
"[I]t is better to acquit ten guilty individuals than to convict
one innocent person."146 Thus, courts must consider
"[e]very circumstance against guilt and in favor of
innocence[.]"147 Equally settled is that "[w]here the
evidence admits of two interpretations, one of which is
consistent with guilt, and the other with innocence, the
accused must be given the benefit of doubt and should be
acquitted."148

In view of petitioner's acquittal based on reasonable doubt,

we find it unnecessary to discuss further the other errors
raised by petitioner.

68
G.R. No. 206379 November 19, 2014
CECILIA PAGADUAN, Petitioner,
vs.
CIVIL SERVICE COMMISSION* and REMA MARTIN
SALVADOR, Respondents.
DECISION
MENDOZA, J.:
Subject of this disposition is the petition for revievv' on
certiorori filed under Rule 45 of the Rules of Court which
seeks to review, reverse and set aside the August 31, 2012
Amended Decision1 and the February 20, 2013 Resolution2 of
the Court of Appeals (CA) in CA-G.R. SP No. 120208,
involving a complaint for falsification and misrepresentation.
Initially, the Court denied the petition in its July 10, 2013
Resolution3 for failure of the petitioner to show any reversible
error in the challenged amended decision as to warrant the
exercise of the Court's discretionary appellate jurisdiction.
(Rollo, p. 101.)
The petitioner filed a motion for reconsideration, and on
October 23, 2013, the Court granted the said motion and set
aside the July 10, 2013 Resolution. In the same October 23,
2013 resolution, the Court reinstated the petitionand required
the respondents to file their comments thereon. On January
23, 2014, the private respondentfiled her Comment. On
February 7, 2014, the petitioner filed her Reply to Comment.
(Rollo, p. 110)
The Facts:
On May 14, 1992, petitioner Cecilia Pagaduan (Pagaduan)
filed a notarized complaint with the Civil Service Commission-
Regional Office No. 2 (CSC-RO II)in Tuguegarao City,
Cagayan, against respondent Rema Martin Salvador
(Salvador), newly appointed Municipal Budget Officer at that
time, charging her with the administrative offenses of
falsification and misrepresentation. Pagaduan alleged that
Salvador did not actually possess the necessary budgeting
experience required by her position; and that although she
indicated in her Personal Data Sheet (PDS)that she
performed book keeping and accounting functions for
Veteran's Woodworks, Inc. (VWI) from August 1, 1990 to
February 15, 1992,she was never in fact employed by the
said entity.4 Salvador on the other hand, claimed that she
had been employed by Alfonso Tuzon (Tuzon), whom the
Board of Directors of VWI had granted full management,
direct supervision and control of VWI's logging operations.
She explained that her namedid not appear in the employees'
payroll because Tuzon's office was independent from VWI's
original staff.5
Subsequently, on October 19, 1994, Pagaduan filed with the
Municipal Trial Court in Cities, Branch 4, Tuguegarao
City(MTCC), a criminal charge against Salvador for
falsification of public documents under Article 172 in relation
to Article 171(4) of the Revised Penal Code in making false
statements in her PDS, which was docketed as Criminal Case
No. 15482.
On May 22, 2000, a decision6 on the administrative complaint
was rendered by the CSC-RO II, holding Salvador liable only
for Simple Misconduct and imposing the penalty ofone (1)
month suspension, after ruling that her act was a mere error
of judgment.
Unsatisfied, Pagaduan filed a motion for reconsideration
which was, however, denied. She then appealedto the Civil
Service Commission (CSC), which found the appeal to be
without merit, ruling that she had no standing to file the
appeal as she was not the party aggrieved by the CSC-RO II
decision. The CSC also approved Salvador's qualification as
Municipal Budget Officer because her experience in VWI was
a "related field."7
Pagaduan ceased her pursuit and did not move for a
reconsideration or appeal. Thus, on January 21, 2002, the
CSC-RO II issued the order, stating that its May 22, 2000
decision had attained finality. Salvador then served the
penalty of one (1) month suspension.8
Later, on October 22, 2008, the MTCC rendered a decision9
in Criminal Case No. 15842, finding Salvador guilty of
falsification of public documents. Salvador did not appeal and
then applied for probation. Her application was granted and
she was placed under probation for a period of one (1) year.
Thereafter, Pagaduan filed a second administrative complaint
against Salvador, this time for the offense of conviction of a
crime involving moral turpitude. Salvador submitted the
required counter affidavit, raising the defenses of res
judicata, forum shopping, and double jeopardy on account of
the finality of the decision in the first administrative complaint
for falsification. After finding a prima faciecase in the second
administrative complaint, Salvador was formally charged. To
answer the charges against her, she adopted her defenses
inher counter-affidavit and submitted documents to support
her cause.
On January 12, 2010, the CSC-RO II rendered a decision,10
finding Salvador guilty of the administrative offense of
conviction of a crime involving moral turpitude because of her
conviction for falsification before the MTCC, and imposing the
penalty of dismissal from the service with all its accessory
penalties. Thus:
WHEREFORE, premises considered, REMA MARTIN
SALVADOR is hereby declared guilty of CONVICTION OF A
CRIME INVOLVING MORAL TURPITUDE and is meted the
penalty of DISMISSAL FROM THE SERVICE WITH ALL ITS
ACCESSORY PENALTIES.11
Aggrieved, Salvador moved for reconsideration, but the
motion was denied. Salvador appealed to the CSC, which
69
rendered a decision12 on March 1, 2011 reversing and
setting asidethe decision of the CSC-RO II and exonerating
her of the charge. She was sternly warned to be more
cautious and prudent in accomplishing public documents. The
CSC ruled that the criminal offense of falsification of public
document did not per se involve moral turpitude, following
the Court's pronouncement in Dela Torre vs. COMELEC,13
citing Zari vs. Flores.14 The CSC stated that since the liability
of Salvador in the first administrative complaint was lowered
to Simple Misconduct, the crime ascribed to her could not be
said to have been attended with inherent baseness or
vileness or depravity.15 The dispositive portion of the March
1, 2011 CSC Decision reads:
WHEREFORE, the Petition for Review (appeal) filed by Rema
Martin Salvador is hereby GRANTED. Accordingly, the
Decision dated January 12, 2010 issued by Civil Service
Commission Regional Office (CSCRO) No. II finding her guilty
of Conviction of a Crime Involving Moral Turpitude and
meting upon her the penalty of dismissal from the
government service with all its accessory penalties is hereby
REVERSED and SET ASIDE. Thus, appellant Rema Martin
Salvador is EXONERATED of the charge of Conviction of
Crime Involving Moral Turpitude levelled against her. She is
STERNLY WARNED to be more cautious and prudent in
accomplishing public documents.16
Pagaduan moved for reconsideration but the motion was
denied on June 1, 2011. Hence, an appeal was made to the
CA which ruled that following precedents, a conviction for
falsification of public document constituted the offense of
conviction of a crime involving moral turpitude.17 The gravity
of Salvador's falsification was highlighted by her commission
of the same in her PDS, which was no ordinary contract.18
Thus, on February 28, 2012 the CA disposed in this wise:
WHEREFORE, premises considered, the Decision of the
Commission dated 1 March 2011 and its Resolution
promulgated 3 June 2011 affirming the same are hereby
REVERSEDand SET ASIDE. Consequently, the Decision ofthe
Civil Service Commission Regional Office No. 2 of Tuguegarao
City, Cagayan, dated 12 January 2010, is hereby AFFIRMED.
SO ORDERED.19
Salvador then filed a motion for reconsideration of the
February 28, 2012 CA Decision.20 On August 31, 2012, in a
turn-around, the CA granted her motion and issued the
assailed Amended Decision,21 reversingand setting asideits
previous decision and reinstated the March 1, 2011 CSC
decision. It agreed with the findings ofthe CSC that the act of
falsification committed by Salvador did not involve moral
turpitude as it was a mere error of judgment on her part. The
dispositive portion of the Amended Decision reads:
WHEREFORE,premises considered, the instant Motion for
Reconsideration is GRANTED, such that Our Decision dated
28 February 2012 is hereby REVERSED and SET ASIDEand in
view thereof, the Decision and Resolution of public
respondent Civil Service Commission dated 01 March 2011
and 01 June 2011 respectively, are REINSTATED.
SO ORDERED.22
Hence, this petition.
ASSIGNMENT OF ERRORS
I. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED
AND COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION
WHEN IT FINALLY EXONERATED RESPONDENT OF THE
ADMINISTRATIVE CHARGE OF CONVICTION OF A CRIME
INVOLVING MORAL TURPITUDE BY FINDING THE
FALSIFICATION COMMITTED BY RESPONDENT IN HER
PERSONAL DATA SHEET AS ONLY A SIMPLE MISCONDUCT
WHICH DOES NOT AMOUNT TO MORAL TURPITUDE.
II. THE HONORABLE COURT OF APPEALS ERRED AND ACTED
WITH GRAVE ABUSE OF DISCRETION AND AUTHORITY
AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN
NOT APPLYING IN THE INSTANT CASE THE DOCTRINE LAID
DOWN IN THE CASE OF TEVES VS. SANDIGANBAYAN WHICH
SPECIFICALLY CATEGORIZED THE CRIME OF FALSIFICATION
OF PUBLIC DOCUMENT FOR WHICH RESPONDENT WAS
CONVICTED AS A CRIME WHICH INVOLVES MORAL
TURPITUDE.
III. THAT THE HONORABLE COURT OF APPEALS ERRED AND
ACTED IN GRAVE ABUSE OF ITS AUTHORITY AND
DISCRETION IN NOT AFFIRMING THE DECISION OF THE
CSC-ROII WHICH DISMISSED FROM THE GOVERNMENT
SERVICE PRIVATE RESPONDENT OF THE OFFENSE OF
CONVICTION OF A CRIME INVOLVING MORAL
TURPITUDE.23
In this case, the substantive issue for resolution is whether or
not Salvador was convicted of a crime involving moral
turpitude. On the other hand, the procedural issues of res
judicataand forum shopping were raised by the respondent.
The Ruling of the Court
As previously recited, this petition arose from the second
administrative complaint filed by Pagaduan against Salvador.
The first administrative complaint was for the offenses of
falsification and misrepresentation, where the CSC-RO II
found her to be liable for simple misconduct only. The CSC
decision affirming the said CSC-RO II decision became final
and executory, and Salvador served the penalty of one (1)
month suspension.
Meanwhile, the October 22, 2008, MTCC decision24 in the
criminal case filed by Pagaduan against Salvador, finding the
latter guilty of the crime of falsification of public document,
attained finality as Salvador did not appeal. By reason of the
said conviction, Pagaduan filed the second administrative
70
complaint for the offense of conviction of a crime involving
moral turpitude.
Before discussing the substantial aspect of the case, the
issues on the procedural aspect shall first be addressed.
In her Comment,25 Salvador invoked res judicataand forum
shopping in arguing that the second administrative case was
already barred by the prior administrative case against her. It
was her contention that both cases involved the same
parties, the same facts and issues, although with different
causes of action.26
The principle of res judicatais applicable either by way of "bar
by prior judgment" or by "conclusiveness of judgment." Here,
Salvador's defense was res judicataby conclusiveness of
judgment. In Borra v. Court of Appeals,27 the Court stated
that:
Stated differently, conclusiveness of judgment finds
application when a fact or question has been squarely put in
issue, judicially passed upon, and adjudged in a former suit
by a court of competent jurisdiction.The fact or question
settled by final judgment or order binds the parties to that
action (and persons in privity with them or their successors-
in-interest), and continues to bind them while the judgment
or order remains standing and unreversed by proper
authority on a timely motion or petition; the conclusively-
settled fact or question cannot again be litigated in any future
or other action between the same parties or their privies and
successors-in-interest, in the same or in any other court of
concurrent jurisdiction, either for the same or for a different
cause of action. Thus, only the identities of parties and issues
are required for the operation of the principle of
conclusiveness of judgment. [Emphasis supplied]
Contrary to Salvador's contention,however, there appears to
be no identity of issues and facts in the two administrative
cases.1âwphi1 The first case involved facts necessary to
resolve the issue of whether or not Salvador falsified her PDS.
The second one involved facts necessary to resolve the issue
of whether or not Salvador was convicted of a crime involving
moral turpitude. Falsification was the main issue in the first
case, while it was no longer an issue in the second case. The
only fact to consider in the second administrative complaint is
the fact ofconviction of a crime involving moral turpitude. It
must be borne in mind that both administrative complaints
were based on different grounds. The grounds were separate
and distinct from each other and entailed different sets of
facts.
Corollarily, Pagaduan cannot be liable for forum shopping.
The established rule is that for forum shopping to exist, both
actions must involve the same transactions, same essential
facts and circumstances, and must raise identical causes of
actions, subject matter, and issues.28 It exists where the
elements of litis pendentiaare present, namely: (a) there is
identity of parties, or at least such parties representing the
same interests in both actions; (b) there is identity of rights
asserted and relief prayed for, the relief being founded on the
same set of facts; and (c) the identity of the two preceding
particulars is such that any judgment rendered in the pending
case, regardless of which party is successful, would amount
to res judicatain the other.29 Since no res judicata exists, no
forum shopping either exists in this case.
Now on the substantial issue, Pagaduan avers that Salvador
was convicted of a crime involving moral turpitude - a
sufficient ground for dismissal from government service. On
the other hand, Salvador argues that the falsification she
committed did not involve moral turpitude. In resolving the
issue of whether Salvador was convicted of a crime involving
moral turpitude, the existence of only two elements is
necessary: (1) the conviction of a crime, which conviction has
attained finality; and (2) the crime for which the accused was
convicted involves moral turpitude. There is no dispute as to
the first element, leaving Us to determine the presence of the
other.
Moral turpitude has been defined aseverything which is done
contrary to justice, modesty, or good morals; anact of
baseness, vileness or depravity in the private and social
duties which a man owes his fellowmen, or to society in
general,30 contrary to the accepted and customary rule of
right and duty between man and woman, or conduct contrary
to justice, honesty, modesty, or good morals.31 Not every
criminal act, however, involves moral turpitude. It is for this
reason that the Court has to determine as to what crime
involves moral turpitude.32 Salvador was convicted of
falsification of public document. The MTCC found that she
made an untruthful statement in a narration of facts and
perverted the truth with a wrongful intent.33 While Salvador
invoked good faith as a defense, the MTCC was not
convinced, stating that good faith could not be made to
depend solely on the self-serving statement of the accused. It
must be supportedby other independent evidence.34 To the
MTCC, Salvador miserably failed to clearly show the presence
of good faith. More specifically, the trial court stated:
She alleged that she honestlybelieved she was employed with
VWI because Alfonso Tuzon is the operations manager of
VWI. Second, she was responsible in the preparation of the
payroll sheets of VWI.
However, the following circumstances negate the existence of
good faith:
1. Accused was not included in the list of employees of VWI
as shown in Exhibits "G", "G-1", "G-2", "G-3", and "G-4," "J"
and its sub-markings and "K" and its sub-markings;
2. Accused was not in the payroll of VWI as shown in Exhibit
"L";
3. Accused received her salary from Rodolfo Quiambao and
not from VWI;
71
4. Rodolfo Quiambao, who is not a VWI employee, issued
directives to the accused;
5. Accused never went to the VWI office at Magapit, Lallo,
Cagayan;
6. Accused never had any VWI identification card;
7. Accused had no contract of employment with VWI; and
finally,
8. Rodolfo Quiambao worked personally with Alfonso Tuzon
and not with VWI.
These circumstances were known to the accused. Despite
knowledge of these facts, accused stated in her PDS that she
was employed with VWI, thus, she perverted the truth. Said
act constitutes malice on her part negating her claim of good
faith.35 [Emphasis supplied] Granting arguendothat Salvador
had no criminal intent to injure a third person, the same is
immaterial as such intent is not an essential element of the
crime of falsification of public document. It is jurisprudentially
settled that in the falsification of public or official documents,
whether by public officers or private persons, it is not
necessary that there be present the idea of gain or the intent
to injure a third person for the reason that, in
contradistinction to private documents,the principal thing
punished is the violation of the public faithand the destruction
of truth as therein solemnly proclaimed. In falsification of
public documents, therefore, the controlling consideration is
the public character of a document; and the existence of any
prejudice caused to third persons or, at least, the intent to
cause such damage becomes immaterial.36
Salvador did not appeal from the said judgment and, instead,
filed an application for probation which was granted.1âwphi1
It has been held that an application for probation is an
admission of guilt.37 Logically then, when Salvador applied
for probation, she admitted the making of an untruthful
statement in her PDS. In Lumancas v. Intas,38 the Court held
that "the accomplishment of the Personal Data Sheet being a
requirement under the Civil Service Rules and Regulations in
connection with employment in the government, the making
of an untruthful statement therein was, therefore, intimately
connected with such employment."39 The filing of a PDS is
required in connection with the promotion to a higher
position and contenders for promotion have the legal
obligation to disclose the truth. Otherwise, enhancing their
qualifications by means of false statements will prejudice
other qualified aspirants to the same position.40
As early as 1961, in the case of De Jesus-Paras vs.
Vailoces,41 the Court disbarred a lawyer on the ground of
conviction of a crime involving moral turpitude, after having
found that the said lawyer was convicted of the crime of
falsification of public documents. Similarly, in In Re - Attorney
Jose Avanceña,42 the said lawyer was disbarred from the
practice of law due to a conviction by final judgment of a
crime involving moral turpitude after being convicted of the
crime of falsification of public documents. Lastly, in RE: SC
Decision dated May 20, 2008 in G.R. No. 161455 under Rule
139-B of the Rules of Court v. Atty. Rodolfo D. Pactolin,43 the
Court reiterated that the crime of falsification of public
document is contrary to justice, honesty and good morals
and, therefore, involves moral turpitude.44
Following the Court's disposition in the aforecited cases, the
CSC and the CA therefore erred in reaching a conclusion to
the contrary, especially that Salvador's conviction for such
crime already attained finality. Both tribunals were of the
view that Salvador merely committed a mere error of
judgment and, thus, no moral turpitude was involved. Their
position was based on the finding previously made by the
CSC-RO II in the first administrative complaint. That could
not a valid basis because, as earlier pointed out, the second
case was separate and distinct from the first one.
Although the CSC itself recognized that it was for the Court to
determine what crime involved moral turpitude, it ruled that
Salvador's commission of the crime of falsification of public
document did not involve moral turpitude. Both the CSC and
the CA strayed away from the settled jurisprudence on the
matter. It will beabsurd to insist that Salvador committed a
mere error of judgment when the very basis of the second
administrative charge against her was a final judgment of
conviction where the trial court found otherwise.
Considering that the principal act punished in the crime of
falsification of public document is the violation of the public
faithand the destruction of truth as therein solemnly
proclaimed, the elements of the administrative offense of
conviction of a crime involving moral turpitude clearly exist in
this case. The Court does not have to look beyond what is
simply apparent from the surrounding circumstances.
Finally, Salvador argues that her conviction and eventual
discharge from probation presents another administrative
case to be filed against her because to do so would defeat
the purpose of the Probation Law45 which was to erase the
effect of conviction and to restore civil rights that were lost or
suspended. Suffice it to state that probation does not erase
the effects and fact of conviction, but merely suspends the
penalty imposed. While indeed the purpose of the Probation
Law is to save valuable human material, it must not be
forgotten that unlike pardon, probation does not obliterate
the crime for which the person under probation has been
convicted. The reform and rehabilitation of the probationer
cannotjustify his retention in the government service.46
Furthermore, probation only affects the criminal liability of
the accused, and not his administrative liabilities, if any. The
Court once ruled in the case of Samalio vs. Court of
Appeals47 that:
Finally, even if dismissal had been one of the accessory
penalties of the principal penalty imposed upon petitioner in
the criminal case, and even if the administrative case had
been decided earlier than the criminal case, still the
imposition of the penalty of dismissal could not have been
72
suspended by the grant of probation.As petitioner himself
contends, the criminal action is separate and distinct from the
administrative case. And, if only for that reason, so is
administrative liability separate and distinct from penal
liability. Hence, probation affects only the criminal aspect of
the case, not its administrative dimension.48 [Emphases
supplied]

All told, if there is no compelling reason to deviate from what

has already been established, settled principles and
jurisprudence should be respected. To do otherwise would
only create confusion and instability in our jurisprudence.

As a final note, it must be borne in mind that a PDS is a

public Document49 required of a government employee and
official by the CSC. It is the repository of all information about
any government employee or official regarding his personal
background, qualification, and eligibility. Government
employees are tasked under the Civil Service rules to properly
and completely accomplish their PDS,50 in accordance with
the constitutional principle that public office is a public trust,
thereby enjoining all public officers and employees to serve
with the highest degree or responsibility, integrity, loyalty and
efficiency.51 Only those who can live up to such exacting
standard deserve the honor of continuing in public service.52
WHEREFORE, the petition is GRANTED. Accordingly, the
August 31, 2012 Amended Decision53 and the February 20,
2013 Resolution of the Court of Appeals in CA-G.R. SP No.
120208 are hereby REVERSED and SET ASIDE. The February
28, 2012 Decision of the Court of Appeals is UPHELD and
REINSTATED.

SO ORDERED.

73
G.R. No. 196231 September 4, 2012
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES,
acting through and represented by EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY
EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO,
Officer in Charge, Office of the Deputy Executive
Secretary for Legal Affairs, ATTY. RONALDO A.
GERON, DIR. ROWENA TURINGAN-SANCHEZ, and
ATTY. CARLITOD. CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT, Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY.
DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY.
FROILAN MONTALBAN, .JR., in their capacities as CHAIRMAN
and MEMBERS of the OFFICE OF MALACAÑANG LEGAL
AFFAIRS, Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case
These two petitions have been consolidated not because they
stem from the same factual milieu but because they raise a
common thread of issues relating to the President's exercise
of the power to remove from office herein petitioners who
claim the protective cloak of independence of the
constitutionally-created office to which they belong - the
Office of the Ombudsman.
The first case, docketed as G.R. No. 196231, is a Petition for
Certiorari (with application for issuance of temporary
restraining order or status quo order) which assails on
jurisdictional grounds the Decision1 dated March 31, 2011
rendered by the Office of the President in OP Case No. 10-J-
460 dismissing petitioner Emilio A. Gonzales III, Deputy
Ombudsman for the Military and Other Law Enforcement
Offices (MOLEO), upon a finding of guilt on the administrative
charges of Gross Neglect of Duty and Grave Misconduct
constituting a Betrayal of Public Trust. The petition primarily
seeks to declare as unconstitutional Section 8(2) of Republic
Act (R.A.) No. 6770, otherwise known as the Ombudsman Act
of 1989, which gives the President the power to dismiss a
Deputy Ombudsman of the Office of the Ombudsman.
The second case, docketed as G.R. No. 196232, is a Petition
for Certiorari and Prohibition (with application for issuance of
a temporary restraining order or status quo order) seeking to
annul, reverse and set aside (1) the undated Order2 requiring
petitioner Wendell Barreras-Sulit to submit a written
explanation with respect to alleged acts or omissions
constituting serious/grave offenses in relation to the Plea
Bargaining Agreement (PLEBARA) entered into with Major
General Carlos F. Garcia; and (2) the April 7, 2011 Notice of
Preliminary Investigation,3 both issued by the Office of the
President in OP-DC-Case No. 11-B-003, the administrative
case initiated against petitioner as a Special Prosecutor of the
Office of the Ombudsman. The petition likewise seeks to
declare as unconstitutional Section 8(2) of R.A. No. 6770
giving the President the power to dismiss a Special
Prosecutor of the Office of the Ombudsman.
The facts from which these two cases separately took root
are neither complicated nor unfamiliar.
In the morning of August 23, 2010, news media scampered
for a minute-by-minute coverage of a hostage drama that
had slowly unfolded right at the very heart of the City of
Manila. While initial news accounts were fragmented it was
not difficult to piece together the story on the hostage-taker,
Police Senior Inspector Rolando Mendoza. He was a
disgruntled former police officer attempting to secure his
reinstatement in the police force and to restore the benefits
of a life-long, and erstwhile bemedaled, service. The
following day, broadsheets and tabloids were replete with
stories not just of the deceased hostage-taker but also of the
hostage victims, eight of whom died during the bungled
police operation to rescue the hapless innocents. Their tragic
deaths triggered word wars of foreign relation proportions.
One newspaper headline ran the story in detail, as follows:
MANILA, Philippines - A dismissed policeman armed with an
assault rifle hijacked a bus packed with tourists, and killed
most of its passengers in a 10 hour-hostage drama shown
live on national television until last night.
Former police senior inspector Rolando Mendoza was shot
dead by a sniper at past 9 p.m. Mendoza hijacked the bus
and took 21 Chinese tourists hostage, demanding his
reinstatement to the police force.
The hostage drama dragged on even after the driver of the
bus managed to escape and told police that all the remaining
passengers had been killed.
Late into the night assault forces surrounded the bus and
tried to gain entry, but a pair of dead hostages hand-cuffed
to the door made it difficult for them. Police said they fired at
the wheels of the bus to immobilize it.
Police used hammers to smash windows, door and wind-
shield but were met with intermittent fire from the hos-tage
taker.
Police also used tear gas in an effort to confirm if the
remaining hostages were all dead or alive. When the standoff
ended at nearly 9 p.m., some four hostages were rescued
alive while Mendoza was killed by a sniper.
74

Initial reports said some 30 policemen stormed the bus. Shots
also rang out, sending bystanders scampering for safety.
It took the policemen almost two hours to assault the bus
because gunfire reportedly rang out from inside the bus.
Mendoza hijacked the tourist bus in the morning and took the
tourists hostage.
Mendoza, who claimed he was illegally dismissed from the
police service, initially released nine of the hostages during
the drama that began at 10 a.m. and played out live on
national television.
Live television footage showed Mendoza asking for food for
those remaining in the bus, which was delivered, and fuel to
keep the air-conditioning going. The disgruntled former police
officer was reportedly armed with an M-16 rifle, a 9 mm
pistol and two hand grenades.
Mendoza posted a handwritten note on the windows of the
bus, saying "big deal will start after 3 p.m. today." Another
sign stuck to another window said "3 p.m. today deadlock."
Stressing his demand, Mendoza stuck a piece of paper with a
handwritten message: "Big mistake to correct a big wrong
decision." A larger piece of paper on the front windshield was
headed, "Release final decision," apparently referring to the
case that led to his dismissal from the police force.
Negotiations dragged on even after Mendoza's self-imposed
deadline.
Senior Police Officer 2 Gregorio Mendoza said his brother was
upset over his dismissal from the police force. "His problem
was he was unjustly removed from service. There was no due
process, no hearing, no com-plaint," Gregorio said.
Last night, Gregorio was arrested by his colleagues on
suspicions of being an accessory to his brother's action.
Tensions rose as relatives tried to prevent lawmen from
arresting Gregorio in front of national television. This
triggered the crisis that eventually forced Mendoza to carry
out his threat and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief
Inspector Romeo Salvador tried to talk Mendoza into
surrendering and releasing the 21 hostages, mostly children
and three Filipinos, including the driver, the tourist guide and
a photographer. Yebra reportedly lent a cellphone to allow
communications with Mendoza in-side the bus, which was
parked in front ofthe Quirino Grandstand.
Children could be seen peeking from the drawn curtains of
the bus while police negotiators hovered near the scene.
Manila Police District (MPD) director Chief Superinten-dent
Rodolfo Magtibay ordered the deployment of crack police
teams and snipers near the scene. A crisis man-agement
committee had been activated with Manila Vice Mayor Isko
Moreno coordinating the actions with the MPD.
Earlier last night, Ombudsman Merceditas Gutierrez had a
meeting with Moreno to discuss Mendoza's case that led to
his dismissal from the service. Ombudsman spokesman Jose
de Jesus said Gutierrez gave a "sealed letter" to Moreno to be
delivered to Mendoza. De Jesus did not elaborate on the
contents of the letter but said Moreno was tasked to
personally deliver the letter to Mendoza.
MPD spokesman Chief Inspector Edwin Margarejo said
Mendoza was apparently distraught by the slow process of
the Ombudsman in deciding his motion for reconside-ration.
He said the PNP-Internal Affairs Service and the Manila
Regional Trial Court had already dismissed crim-inal cases
against him.
The hostage drama began when Mendoza flagged down the
Hong Thai Travel Tourist bus (TVU-799), pretend-ing to hitch
a ride. Margarejo said the bus had just left Fort Santiago in
Intramuros when Mendoza asked the driver to let him get on
and ride to Quirino Grandstand. Upon reaching the Quirino
Grandstand, Mendoza an-nounced to the passengers that
they would be taken hostage. "Having worn his (police)
uniform, of course there is no doubt that he already planned
the hostage taking," Margarejo said. - Sandy Araneta, Nestor
Etolle, Delon Porcalla, Amanda Fisher, Cecille Suerte Felipe,
Christi-na Mendez, AP Grandstand Carnage, The Philippine
Star, Updated August 24, 2010 12:00 AM, Val Rodri-guez.4
In a completely separate incident much earlier in time, more
particularly in December of 2003, 28-year-old Juan Paolo
Garcia and 23-year-old Ian Carl Garcia were caught in the
United States smuggling $100,000 from Manila by concealing
the cash in their luggage and making false statements to US
Customs Officers. The Garcia brothers pleaded guilty to bulk
cash smuggling and agreed to forfeit the amount in favor of
the US Government in exchange for the dismissal of the rest
of the charges against them and for being sentenced to time
served. Inevitably, however, an investigation into the source
of the smuggled currency conducted by US Federal Agents
and the Philippine Government unraveled a scandal of
military corruption and amassed wealth -- the boys' father,
Retired Major General Carlos F. Garcia, former Chief
Procurement Officer of the Armed Forces, had accumulated
more than ₱ 300 Million during his active military service.
Plunder and Anti-Money Laundering cases were eventually
filed against Major General Garcia, his wife and their two sons
before the Sandiganbayan.
G.R. No. 196231
Sometime in 2008, a formal charge5 for Grave Misconduct
(robbery, grave threats, robbery extortion and physical
injuries) was filed before the Philippine National Police-
National Capital Region (PNP-NCR) against Manila Police
District Senior Inspector (P/S Insp.) Rolando Mendoza, and
75
four others, namely, Police Inspector Nelson Lagasca, Senior
Police Inspector I Nestor David, Police Officer III Wilson
Gavino, and Police Officer II Roderick Lopena. A similar
charge was filed by the private complainant, Christian M.
Kalaw, before the Office of the City Prosecutor, Manila,
docketed as I.S. No. 08E-09512.
On July 24, 2008, while said cases were still pending, the
Office of the Regional Director of the National Police
Commission (NPC) turned over, upon the request of
petitioner Emilio A. Gonzales III, all relevant documents and
evidence in relation to said case to the Office of the Deputy
Ombudsman for appropriate administrative adjudication.6
Subsequently, Case No. OMB-P-A-08-0670-H for Grave
Misconduct was lodged against P/S Insp. Rolando Mendoza
and his fellow police officers, who filed their respective
verified position papers as directed.
Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was
dismissed7 upon a finding that the material allegations made
by the complainant had not been substantiated "by any
evidence at all to warrant the indictment of respondents of
the offenses charged." Similarly, the Internal Affairs Service
of the PNP issued a Resolution8 dated October 17, 2008
recommending the dismissal without prejudice of the
administrative case against the same police officers, for
failure of the complainant to appear in three (3) consecutive
hearings despite due notice.
However, on February 16, 2009, upon the recommendation
of petitioner Emilio Gonzales III, a Decision9 in Case No.
OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and
his fellow police officers guilty of Grave Misconduct was
approved by the Ombudsman. The dispositive portion of said
Decision reads:
WHEREFORE, it is respectfully recommended that
respondents P/S Insp. ROLANDO DEL ROSARIO MENDOZA
and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig.
Gen. Salipada K. Pendatun, Parang, Shariff Kabunsuan;
P/INSP. NELSON URBANO LAGASCA, SPO1 NESTOR REYES
DAVID and PO2 RODERICK SALVA LOPEÑA of Manila Police
District, Headquarters, United Nations Avenue, Manila, be
meted the penalty of DISMISSAL from the Service, pursuant
to Section 52 (A), Rule IV, Uniform Rules on Administrative
Cases in the Civil Service, with the accessory penalties of
forfeiture of retirement benefits and perpetual disqualification
from reemployment in the government service pursuant to
Section 58, Rule IV of the same Uniform Rules of
Administrative Cases in the Civil Service, for having
committed GRAVE MISCONDUCT.
On November 5, 2009, they filed a Motion for
Reconsideration10 of the foregoing Decision, followed by a
Supplement to the Motion for Reconsideration11 on
November 19, 2009. On December 14, 2009, the pleadings
mentioned and the records of the case were assigned for
review and recommendation to Graft Investigation and
Prosecutor Officer Dennis L. Garcia, who released a draft
Order12 on April 5, 2010 for appropriate action by his
immediate superior, Director Eulogio S. Cecilio, who, in turn,
signed and forwarded said Order to petitioner Gonzalez's
office on April 27, 2010. Not more than ten (10) days after,
more particularly on May 6, 2010, petitioner endorsed the
Order, together with the case records, for final approval by
Ombudsman Merceditas N. Gutierrez, in whose office it
remained pending for final review and action when P/S Insp.
Mendoza hijacked a bus-load of foreign tourists on that
fateful day of August 23, 2010 in a desperate attempt to have
himself reinstated in the police service.
In the aftermath of the hostage-taking incident, which ended
in the tragic murder of eight HongKong Chinese nationals,
the injury of seven others and the death of P/S Insp. Rolando
Mendoza, a public outcry against the blundering of
government officials prompted the creation of the Incident
Investigation and Review Committee (IIRC),13 chaired by
Justice Secretary Leila de Lima and vice-chaired by Interior
and Local Government Secretary Jesus Robredo. It was
tasked to determine accountability for the incident through
the conduct of public hearings and executive sessions.
However, petitioner, as well as the Ombudsman herself,
refused to participate in the IIRC proceedings on the
assertion that the Office of the Ombudsman is an
independent constitutional body.
Sifting through testimonial and documentary evidence, the
IIRC eventually identified petitioner Gonzales to be among
those in whom culpability must lie. In its Report,14 the IIRC
made the following findings:
Deputy Ombudsman Gonzales committed serious and
inexcusable negligence and gross violation of their own rules
of procedure by allowing Mendoza's motion for
reconsideration to languish for more than nine (9) months
without any justification, in violation of the Ombudsman
prescribed rules to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from
submission. The inaction is gross, considering there is no
opposition thereto. The prolonged inaction precipitated the
desperate resort to hostage-taking.
More so, Mendoza's demand for immediate resolution of his
motion for reconsideration is not without legal and compelling
bases considering the following:
(a) PSI Mendoza and four policemen were investigated by the
Ombudsman involving a case for alleged robbery (extortion),
grave threats and physical injuries amounting to grave
misconduct allegedly committed against a certain Christian
Kalaw. The same case, however, was previously dismissed by
the Manila City Prosecutors Office for lack of probable cause
and by the PNP-NCR Internal Affairs Service for failure of the
complainant (Christian Kalaw) to submit evidence and
prosecute the case. On the other hand, the case which was
filed much ahead by Mendoza et al. against Christian Kalaw
involving the same incident, was given due course by the City
Prosecutors Office.
76

(b) The Ombudsman exercised jurisdiction over the case
based on a letter issued motu proprio for Deputy
Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR -
without citing any reason - to endorse the case against
Mendoza and the arresting policemen to his office for
administrative adjudication, thereby showing undue interest
on the case. He also caused the docketing of the case and
named Atty. Clarence V. Guinto of the PNP-CIDG-NCR, who
indorsed the case records, as the nominal complainant, in lieu
of Christian Kalaw. During the proceedings, Christian Kalaw
did not also affirm his complaint-affidavit with the
Ombudsman or submit any position paper as required.
(c) Subsequently, Mendoza, after serving preventive
suspension, was adjudged liable for grave misconduct by
Deputy Ombudsman Gonzales (duly approved on May 21,
2009) based on the sole and uncorroborated complaint-
affidavit of Christian Kalaw, which was not previously
sustained by the City Prosecutor's Office and the PNP Internal
Affairs Service. From the said Resolution, Mendoza interposed
a timely motion for reconsideration (dated and filed
November 5, 2009) as well as a supplement thereto. No
opposition or comment was filed thereto.
(d) Despite the pending and unresolved motion for
reconsideration, the judgment of dismissal was enforced,
thereby abruptly ending Mendoza's 30 years of service in the
PNP with forfeiture of all his benefits. As a result, Mendoza
sought urgent relief by sending several hand-written letter-
requests to the Ombudsman for immediate resolution of his
motion for reconsideration. But his requests fell on deaf ears.
xxxx
By allowing Mendoza's motion for reconsideration to languish
for nine long (9) months without any justification,
Ombudsman Gutierrez and Deputy Ombudsman Gonzales
committed complete and wanton violation of the Ombudsman
prescribed rule to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from
submission (Sec. 8, Ombudsman Rules of Procedure). The
inaction is gross, there being no opposition to the motion for
reconsideration.
Besides, the Ombudsman, without first resolving the motion
for reconsideration, arbitrarily enforced the judgment of
dismissal and ignored the intervening requests for immediate
resolution, thereby rendering the inaction even more
inexcusable and unjust as to amount to gross negligence and
grave misconduct.
SECOND, Ombudsman Gutierrez and Deputy Ombudsman
Gonzales committed serious disregard of due process,
manifest injustice and oppression in failing to provisionally
suspend the further implementation of the judgment of
dismissal against Mendoza pending disposition of his
unresolved motion for reconsideration.
By enforcing the judgment of dismissal without resolving the
motion for reconsideration for over nine months, the two
Ombudsman officials acted with arbitrariness and without
regard to due process and the constitutional right of an
accused to the speedy disposition of his case. As long as his
motion for reconsideration remained pending and unresolved,
Mendoza was also effectively deprived of the right to avail of
the ordinary course of appeal or review to challenge the
judgment of dismissal before the higher courts and seek a
temporary restraining order to prevent the further execution
thereof.
As such, if the Ombudsman cannot resolve with dispatch the
motion for reconsideration, it should have provisionally
suspended the further enforcement of the judgment of
dismissal without prejudice to its re-implementation if the
reconsideration is eventually denied. Otherwise, the
Ombudsman will benefit from its own inaction. Besides, the
litigant is entitled to a stay of the execution pending
resolution of his motion for reconsideration. Until the motion
for reconsideration is denied, the adjudication process before
the Ombudsman cannot be considered as completely finished
and, hence, the judgment is not yet ripe for execution.
xxxx
When the two Ombudsman officials received Mendoza's
demand for the release of the final order resolving his motion
for reconsideration, they should have performed their duty by
resolving the reconsideration that same day since it was
already pending for nine months and the prescribed period
for its resolution is only five days. Or if they cannot resolve it
that same day, then they should have acted decisively by
issuing an order provisionally suspending the further
enforcement of the judgment of dismissal subject to
revocation once the reconsideration is denied and without
prejudice to the arrest and prosecution of Mendoza for the
hostage-taking. Had they done so, the crisis may have ended
peacefully, without necessarily compromising the integrity of
the institution. After all, as relayed to the negotiators,
Mendoza did express willingness to take full responsibility for
the hostage-taking if his demand for release of the final
decision or reinstatement was met.
But instead of acting decisively, the two Ombudsman officials
merely offered to review a pending motion for review of the
case, thereby prolonging their inaction and aggravating the
situation. As expected, Mendoza - who previously berated
Deputy Gonzales for allegedly demanding Php150,000 in
exchange for favorably resolving the motion for
reconsideration - rejected and branded as trash ("basura")
the Ombudsman [sic] letter promising review, triggering the
collapse of the negotiations. To prevent the situation from
getting out of hand, the negotiators sought the alternative
option of securing before the PNP-NCRPO an order for
Mendoza's provisional reinstatement pending resolution of the
motion for reconsideration. Unfortunately, it was already too
late. But had the Ombudsman officials performed their duty
77
under the law and acted decisively, the entire crisis may have
ended differently.
The IIRC recommended that its findings with respect to
petitioner Gonzales be referred to the Office of the President
(OP) for further determination of possible administrative
offenses and for the initiation of the proper administrative
proceedings.
On October 15, 2010, the OP instituted a Formal Charge15
against petitioner Gonzales for Gross Neglect of Duty and/or
Inefficiency in the Performance of Official Duty under Rule
XIV, Section 22 of the Omnibus Rules Implementing Book V
of E.O. No. 292 and other pertinent Civil
Service Laws, rules and regulations, and for Misconduct in
Office under Section 3 of the Anti-Graft and Corrupt Practices
Act.16 Petitioner filed his Answer17 thereto in due time.
Shortly after the filing by the OP of the administrative case
against petitioner, a complaint dated October 29, 2010 was
filed by Acting Assistant Ombudsman Joselito P. Fangon
before the Internal Affairs Board of the Office of the
Ombudsman charging petitioner with "directly or indirectly
requesting or receiving any gift, present, share, percentage,
or benefit, for himself or for any other person, in connection
with any contract or transaction between the Government
and any other party, wherein the public officer in his official
capacity has to intervene under the law" under Section 3(b)
of the Anti-Graft and Corrupt Practices Act, and also, with
solicitation or acceptance of gifts under Section 7(d) of the
Code of Conduct and Ethical Standards.18 In a Joint
Resolution19 dated February 17, 2011, which was approved
by Ombudsman Ma. Merceditas N. Gutierrez, the complaint
was dismissed, as follows:
WHEREFORE, premises considered, finding no probable cause
to indict respondent Emilio A. Gonzales III for violations of
Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No.
6713, the complaint is hereby be [sic] DISMISSED.
Further, finding no sufficient evidence to hold respondent
administratively liable for Misconduct, the same is likewise
DISMISSED.
Meanwhile, the OP notified20 petitioner that a Preliminary
Clarificatory Conference relative to the administrative charge
against him was to be conducted at the Office of the Deputy
Executive Secretary for Legal Affairs (ODESLA) on February 8,
2011. Petitioner Gonzales alleged,21 however, that on
February 4, 2011, he heard the news that the OP had
announced his suspension for one year due to his delay in
the disposition of P/S Insp. Mendoza's motion for
reconsideration. Hence, believing that the OP had already
prejudged his case and that any proceeding before it would
simply be a charade, petitioner no longer attended the
scheduled clarificatory conference. Instead, he filed an
Objection to Proceedings22 on February 7, 2011. Despite
petitioner's absence, however, the OP pushed through with
the proceedings and, on March 31, 2011, rendered the
assailed Decision,23 the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, this Office finds
Deputy Ombudsman Emilio A. Gonzales III guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of
public trust, and hereby meted out the penalty of DISMISSAL
from service.
SO ORDERED.
Hence, the petition.
G.R. No. 196232
In April of 2005, the Acting Deputy Special Prosecutor of the
Office of the Ombudsman charged Major General Carlos F.
Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia,
Juan Paulo Garcia and Timothy Mark Garcia and several
unknown persons with Plunder (Criminal Case No. 28107)
and Money Laundering (Criminal Case No. SB09CRM0194)
before the Sandiganbayan.
On January 7, 2010, the Sandiganbayan denied Major
General Garcia's urgent petition for bail holding that strong
prosecution evidence militated against the grant of bail. On
March 16, 2010, however, the government, represented by
petitioner, Special Prosecutor Wendell Barreras-Sulit
("Barreras-Sulit") and her prosecutorial staff sought the
Sandiganbayan's approval of a Plea Bargaining Agreement
(hereinafter referred to as "PLEBARA") entered into with the
accused. On May 4, 2010, the Sandiganbayan issued a
Resolution finding the change of plea warranted and the
PLEBARA compliant with jurisprudential guidelines.
Outraged by the backroom deal that could allow Major
General Garcia to get off the hook with nothing but a slap on
the hand notwithstanding the prosecution's apparently strong
evidence of his culpability for serious public offenses, the
House of Representatives' Committee on Justice conducted
public hearings on the PLEBARA. At the conclusion of these
public hearings, the Committee on Justice passed and
adopted Committee Resolution No. 3,24 recommending to
the President the dismissal of petitioner Barreras-Sulit from
the service and the filing of appropriate charges against her
Deputies and Assistants before the appropriate government
office for having committed acts and/or omissions
tantamount to culpable violations of the Constitution and
betrayal of public trust, which are violations under the Anti-
Graft and Corrupt Practices Act and grounds for removal from
office under the Ombudsman Act.
The Office of the President initiated OP-DC-Case No. 11-B-
003 against petitioner Barreras-Sulit. In her written
explanation, petitioner raised the defenses of prematurity and
the lack of jurisdiction of the OP with respect to the
administrative disciplinary proceeding against her. The OP,
however, still proceeded with the case, setting it for
preliminary investigation on April 15, 2011.
78

Hence, the petition.
The Issues
In G.R. No. 196231, petitioner Gonzales raises the following
grounds, to wit:
(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING
THROUGH THE OTHER INDIVIDUAL RESPONDENTS, HAS NO
CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE
INVESTIGATION AND TO THEREAFTER ORDER HIS
REMOVAL AS DEPUTY OMBUDSMAN.
(B)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING
THROUGH THE OTHER INDIVIDUAL RESPONDENTS,
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT CONDUCTED ITS
INVESTIGATION AND RENDERED ITS DECISION IN
VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.
(C)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING
THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY
ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN FINDING THAT PETITIONER
COMMITTED DELAY IN THE DISPOSITION OF MENDOZA'S
MOTION FOR RECONSIDERATION.
(D)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING
THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY
ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN FINDING THAT PETITIONER TOOK
UNDUE INTEREST IN MENDOZA'S CASE.
(E)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING
THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY
ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN FAULTING PETITIONER FOR NOT
RELEASING THE RESOLUTION ON MENDOZA'S MOTION FOR
RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.
(F)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING
THROUGH THE INDIVIDUAL RESPONDENTS, GRAVELY
ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN FINDING THAT THERE WAS
SUBSTANTIAL EVIDENCE TO SHOW THAT PETITIONER
DEMANDED A BRIBE FROM MENDOZA.25
On the other hand, in G.R. No. 196232, petitioner Barreras-
Sulit poses for the Court the question -
AS OF THIS POINT IN TIME, WOULD TAKING AND
CONTINUING TO TAKE ADMINISTRATIVE DISCIPLINARY
PROCEEDING AGAINST PETITIONER BE LAWFUL AND
JUSTIFIABLE?26
Re-stated, the primordial question in these two petitions is
whether the Office of the President has jurisdiction to
exercise administrative disciplinary power over a Deputy
Ombudsman and a Special Prosecutor who belong to the
constitutionally-created Office of the Ombudsman.
The Court's Ruling
Short of claiming themselves immune from the ordinary
means of removal, petitioners asseverate that the President
has no disciplinary jurisdiction over them considering that the
Office of the Ombudsman to which they belong is clothed
with constitutional independence and that they, as Deputy
Ombudsman and Special Prosecutor therein, necessarily bear
the constitutional attributes of said office.
The Court is not convinced.
The Ombudsman's administrative
disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.
It is true that the authority of the Office of the Ombudsman
to conduct administrative investigations proceeds from its
constitutional mandate to be an effective protector of the
people against inept and corrupt government officers and
employees,27 and is subsumed under the broad powers
"explicitly conferred" upon it by the 1987 Constitution and
R.A. No. 6770.28
The ombudsman traces its origins to the primitive legal order
of Germanic tribes. The Swedish term, which literally means
"agent" or "representative," communicates the concept that
has been carried on into the creation of the modern-day
ombudsman, that is, someone who acts as a neutral
representative of ordinary citizens against government
abuses.29 This idea of a people's protector was first
institutionalized in the Philippines under the 1973 Constitution
with the creation of the Tanodbayan, which wielded the twin
powers of investigation and prosecution. Section 6, Article
XIII of the 1973 Constitution provided thus:
Sec. 6. The Batasang Pambansa shall create an office of the
Ombudsman, to be known as Tanodbayan, which shall
receive and investigate complaints relative to public office,
including those in government-owned or controlled
corporations, make appropriate recommendations, and in
79
case of failure of justice as defined by law, file and prosecute
the corresponding criminal, civil, or administrative case before
the proper court or body.
The framers of the 1987 Constitution later envisioned a more
effective ombudsman vested with authority to "act in a quick,
inexpensive and effective manner on complaints against
administrative officials", and to function purely with the
"prestige and persuasive powers of his office" in correcting
improprieties, inefficiencies and corruption in government
freed from the hampering effects of prosecutorial duties.30
Accordingly, Section 13, Article XI of the 1987 Constitution
enumerates the following powers, functions, and duties of the
Office of the Ombudsman, viz:
(1) Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any
public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as of
any government-owned or controlled corporation with original
charter, to perform and expedite any act or duty required by
law, or to stop, prevent, and correct any abuse or impropriety
in the performance of duties.
(3) Direct the officer concerned to take appropriate action
against a public official or employee at fault, and recommend
his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case,
and subject to such limitations as may be provided by law, to
furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the
disbursement or use of public funds or properties, and report
any irregularity to the Commission on Audit for appropriate
action.
(5) Request any government agency for assistance and
information necessary in the discharge of its responsibilities,
and to examine, if necessary, pertinent records and
documents.
(6) Publicize matters covered by its investigation when
circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the Government
and make recommendations for their elimination and the
observance of high standards of ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such
other powers or perform such functions or duties as may be
provided by law.31
Congress thereafter passed, on November 17, 1989, Republic
Act No. 6770, the Ombudsman Act of 1989, to shore up the
Ombudsman's institutional strength by granting it "full
administrative disciplinary power over public officials and
employees,"32 as follows:
Sec. 21. Officials Subject to Disciplinary Authority;
Exceptions. - The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials
of the Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations
and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress,
and the Judiciary.(Emphasis supplied)
In the exercise of such full administrative disciplinary
authority, the Office of the Ombudsman was explicitly
conferred the statutory power to conduct administrative
investigations under Section 19 of the same law, thus:
Sec. 19. Administrative complaints. - The Ombudsman shall
act on all complaints relating, but not limited, to acts or
omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's
functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary
ascertainment of facts;
5. Are in the exercise of discretionary powers but for an
improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.
While the Ombudsman's authority to discipline
administratively is extensive and covers all government
officials, whether appointive or elective, with the exception
only of those officials removable by impeachment, the
members of congress and the judiciary, such authority is by
no means exclusive. Petitioners cannot insist that they should
be solely and directly subject to the disciplinary authority of
the Ombudsman. For, while Section 21 declares the
Ombudsman's disciplinary authority over all government
officials, Section 8(2), on the other hand, grants the President
express power of removal over a Deputy Ombudsman and a
Special Prosecutor. Thus:
Section 8. Removal; Filling of Vacancy.-
xxxx
80
(2) A Deputy or the Special Prosecutor, may be removed
from office by the President for any of the grounds provided
for the removal of the Ombudsman, and after due process.
It is a basic canon of statutory construction that in
interpreting a statute, care should be taken that every part
thereof be given effect, on the theory that it was enacted as
an integrated measure and not as a hodge-podge of
conflicting provisions. A construction that would render a
provision inoperative should be avoided; instead, apparently
inconsistent provisions should be reconciled whenever
possible as parts of a coordinated and harmonious whole.33
Otherwise stated, the law must not be read in truncated
parts. Every part thereof must be considered together with
the other parts, and kept subservient to the general intent of
the whole enactment.34
A harmonious construction of these two apparently conflicting
provisions in R.A. No. 6770 leads to the inevitable conclusion
that Congress had intended the Ombudsman and the
President to exercise concurrent disciplinary jurisdiction over
petitioners as Deputy Ombudsman and Special
Prosecutor, respectively. This sharing of authority goes into
the wisdom of the legislature, which prerogative falls beyond
the pale of judicial inquiry. The Congressional deliberations
on this matter are quite insightful, viz:
x x x Senator Angara explained that the phrase was added to
highlight the fact that the Deputy Tanodbayan may only be
removed for cause and after due process. He added that the
President alone has the power to remove the Deputy
Tanodbayan.
Reacting thereto, Senator Guingona observed that this might
impair the independence of the Tanodbayan and suggested
that the procedural removal of the Deputy Tanodbayan...;
and that he can be removed not by the President but by the
Ombudsman.
However, the Chair expressed apprehension that the
Ombudsman and the Deputy Ombudsman may try to protect
one another. The Chair suggested the substitution of the
phrase "after due process" with the words after due notice
and hearing with the President as the ultimate authority.
Senator Guingona contended, however, that the Constitution
provides for an independent Office of the Tanodbayan, and to
allow the Executive to have disciplinary powers over the
Tanodbayan Deputies would be an encroachment on the
independence of the Tanodbayan.
Replying thereto, Senator Angara stated that originally, he
was not averse to the proposal, however, considering the
Chair's observation that vesting such authority upon the
Tanodbayan itself could result in mutual protection, it is
necessary that an outside official should be vested with such
authority to effect a check and balance.35
Indubitably, the manifest intent of Congress in enacting both
provisions - Section 8(2) and Section 21 - in the same
Organic Act was to provide for an external authority, through
the person of the President, that would exercise the power of
administrative discipline over the Deputy Ombudsman and
Special Prosecutor without in the least diminishing the
constitutional and plenary authority of the Ombudsman over
all government officials and employees. Such legislative
design is simply a measure of "check and balance" intended
to address the lawmakers' real and valid concern that the
Ombudsman and his Deputy may try to protect one another
from administrative liabilities.
This would not be the first instance that the Office of the
President has locked horns with the Ombudsman on the
matter of disciplinary jurisdiction. An earlier conflict had been
settled in favor of shared authority in Hagad v. Gozo
Dadole.36 In said case, the Mayor and Vice-Mayor of
Mandaue City, and a member of the Sangguniang
Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019,
R.A. No. 6713, and the Revised Penal Code. The pivotal issue
raised therein was whether the Ombudsman had been
divested of his authority to conduct administrative
investigations over said local elective officials by virtue of the
subsequent enactment of the Local Government Code of
1991 (R.A. No. 7160), the pertinent provision of which states:
Sec. 61. Form and Filing of Administrative Complaints.- A
verified complaint against any erring local elective official
shall be prepared as follows:
(a) A complaint against any elective official of a province, a
highly urbanized city, an independent component city or
component city shall be filed before the Office of the
President.
The Court resolved said issue in the negative, upholding the
ratiocination of the Solicitor General that R.A. No. 7160
should be viewed as having conferred on the Office of the
President, but not on an exclusive basis, disciplinary authority
over local elective officials. Despite the fact that R.A. No.
7160 was the more recent expression of legislative will, no
repeal of pertinent provisions in the Ombudsman Act was
inferred therefrom. Thus said the Court:
Indeed, there is nothing in the Local Government Code to
indicate that it has repealed, whether expressly or impliedly,
the pertinent provisions of the Ombudsman Act. The two
statutes on the specific matter in question are not so
inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other. Well settled is the rule
that repeals of laws by implication are not favored, and that
courts must generally assume their congruent application.
The two laws must be absolutely incompatible, and a clear
finding thereof must surface, before the inference of implied
repeal may be drawn. The rule is expressed in the maxim,
interpretare et concordare legibus est optimus interpretendi,
i.e., every statute must be so interpreted and brought into
81
accord with other laws as to form a uniform system of
jurisprudence. The fundament is that the legislature should
be presumed to have known the existing laws on the subject
and not to have enacted conflicting statutes. Hence, all
doubts must be resolved against any implied repeal, and all
efforts should be exerted in order to harmonize and give
effect to all laws on the subject.37
While Hagad v. Gozo Dadole38 upheld the plenary power of
the Office of the Ombudsman to discipline elective officials
over the same disciplinary authority of the President under
R.A. No. 7160, the more recent case of the Office of the
Ombudsman v. Delijero39 tempered the exercise by the
Ombudsman of such plenary power invoking Section 23(2)40
of R.A. No. 6770, which gives the Ombudsman the option to
"refer certain complaints to the proper disciplinary authority
for the institution of appropriate administrative proceedings
against erring public officers or employees." The Court
underscored therein the clear legislative intent of imposing "a
standard and a separate set of procedural requirements in
connection with administrative proceedings involving public
school teachers"41 with the enactment of R.A. No. 4670,
otherwise known as "The Magna Carta for Public School
Teachers." It thus declared that, while the Ombudsman's
administrative disciplinary authority over a public school
teacher is concurrent with the proper investigating committee
of the Department of Education, it would have been more
prudent under the circumstances for the Ombudsman to have
referred to the DECS the complaint against the public school
teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction
to discipline his own people and mete out administrative
sanctions upon them, including the extreme penalty of
dismissal from the service. However, it is equally without
question that the President has concurrent authority with
respect to removal from office of the Deputy Ombudsman
and Special Prosecutor, albeit under specified conditions.
Considering the principles attending concurrence of
jurisdiction where the Office of the President was the first to
initiate a case against petitioner Gonzales, prudence should
have prompted the Ombudsman to desist from proceeding
separately against petitioner through its Internal Affairs
Board, and to defer instead to the President's assumption of
authority, especially when the administrative charge involved
"demanding and soliciting a sum of money" which constitutes
either graft and corruption or bribery, both of which are
grounds reserved for the President's exercise of his authority
to remove a Deputy Ombudsman.
In any case, assuming that the Ombudsman's Internal Affairs
Board properly conducted a subsequent and parallel
administrative action against petitioner, its earlier dismissal of
the charge of graft and corruption against petitioner could
not have the effect of preventing the Office of the President
from proceeding against petitioner upon the same ground of
graft and corruption. After all, the doctrine of res judicata
applies only to judicial or quasi-judicial proceedings, not to
the exercise of administrative powers.42 In Montemayor v.
Bundalian,43 the Court sustained the President's dismissal
from service of a Regional Director of the Department of
Public Works and Highways (DPWH) who was found liable for
unexplained wealth upon investigation by the now defunct
Philippine Commission Against Graft and Corruption (PCAGC).
The Court categorically ruled therein that the prior dismissal
by the Ombudsman of similar charges against said official did
not operate as res judicata in the PCAGC case.
By granting express statutory
power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.
Section 9, Article XI of the 1987 Constitution confers upon
the President the power to appoint the Ombudsman and his
Deputies, viz:
Section 9. The Ombudsman and his Deputies shall be
appointed by the President from a list of at least six nominees
prepared by the Judicial and Bar Council, and from a list of
three nominees for every vacancy thereafter. Such
appointments shall require no confirmation. All vacancies
shall be filled within three months after they occur.
While the removal of the Ombudsman himself is also
expressly provided for in the Constitution, which is by
impeachment under Section 244 of the same Article, there is,
however, no constitutional provision similarly dealing with the
removal from office of a Deputy Ombudsman, or a Special
Prosecutor, for that matter. By enacting Section 8(2) of R.A.
6770, Congress simply filled a gap in the law without running
afoul of any provision in the Constitution or existing statutes.
In fact, the Constitution itself, under Section 2, authorizes
Congress to provide for the removal of all other public
officers, including the Deputy Ombudsman and Special
Prosecutor, who are not subject to impeachment.
That the Deputies of the Ombudsman were intentionally
excluded from the enumeration of impeachable officials is
clear from the following deliberations45 of the Constitutional
Commission, thus:
MR. REGALADO. Yes, thank you. On Section 10, regarding
the Ombudsman, there has been concern aired by
Commissioner Rodrigo about who will see to it that the
Ombudsman will perform his duties because he is something
like a guardian of the government. This recalls the statement
of Juvenal that while the Ombudsman is the guardian of the
people, "Quis custodiet ipsos custodies", who will guard the
guardians? I understand here that the Ombudsman who has
the rank of a chairman of a constitutional commission is also
removable only by impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
82

MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am
concerned with the phrase "have the rank of". We know, for
instance, that the City Fiscal of Manila has the rank of a
justice of the Intermediate Appellate Court, and yet he is not
a part of the judiciary. So I think we should clarify that also
and read our discussions into the Record for purposes of the
Commission and the Committee.46
xxx
THE PRESIDENT. The purpose of the amendment of
Commissioner Davide is not just to include the Ombudsman
among those officials who have to be removed from office
only onimpeachment. Is that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask
a question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.47 (Emphasis supplied)
The Power of the President to
Remove a Deputy Ombudsman
and a Special Prosecutor is
Implied from his Power to
Appoint.
Under the doctrine of implication, the power to appoint
carries with it the power to remove.48 As a general rule,
therefore, all officers appointed by the President are also
removable by him.49 The exception to this is when the law
expressly provides otherwise - that is, when the power to
remove is expressly vested in an office or authority other
than the appointing power. In some cases, the Constitution
expressly separates the power to remove from the President's
power to appoint. Under Section 9, Article VIII of the 1987
Constitution, the Members of the Supreme Court and judges
of lower courts shall be appointed by the President. However,
Members of the Supreme Court may be removed after
impeachment proceedings initiated by Congress (Section 2,
Article XI), while judges of lower courts may be removed only
by the Supreme Court by virtue of its administrative
supervision over all its personnel (Sections 6 and 11, Article
VIII). The Chairpersons and Commissioners of the Civil
Service Commission Section 1(2), Article IX(B), the
Commission on Elections Section 1(2), Article IX(C), and the
Commission on Audit Section 1(2), Article IX(D) shall likewise
be appointed by the President, but they may be removed
only by impeachment (Section 2, Article XI). As priorly stated,
the Ombudsman himself shall be appointed by the President
(Section 9, Article XI) but may also be removed only by
impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy
Ombudsman and Special Prosecutor, Congress simply laid
down in express terms an authority that is already implied
from the President's constitutional authority to appoint the
aforesaid officials in the Office of the Ombudsman.
The Office of the Ombudsman is charged with monumental
tasks that have been generally categorized into investigatory
power, prosecutorial power, public assistance, authority to
inquire and obtain information and the function to adopt,
institute and implement preventive measures.50 In order to
ensure the effectiveness of his constitutional role, the
Ombudsman was provided with an over-all deputy as well as
a deputy each for Luzon, Visayas and Mindanao. However,
well into the deliberations of the Constitutional Commission, a
provision for the appointment of a separate deputy for the
military establishment was necessitated by Commissioner
Ople's lament against the rise within the armed forces of
"fraternal associations outside the chain of command" which
have become the common soldiers' "informal grievance
machinery" against injustice, corruption and neglect in the
uniformed service,51 thus:
In our own Philippine Armed Forces, there has arisen in
recent years a type of fraternal association outside the chain
of command proposing reformist objectives. They constitute,
in fact, an informal grievance machinery against injustices to
the rank and file soldiery and perceive graft in higher rank
and neglect of the needs of troops in combat zones. The
Reform the Armed Forces Movement of RAM has kept
precincts for pushing logistics to the field, the implied
accusation being that most of the resources are used up in
Manila instead of sent to soldiers in the field. The Guardians,
the El Diablo and other organizations dominated by enlisted
men function, more or less, as grievance collectors and as
mutual aid societies.
This proposed amendment merely seeks to extend the office
of the Ombudsman to the military establishment, just as it
champions the common people against bureaucratic
indifference. The Ombudsman can designate a deputy to help
the ordinary foot soldier get through with his grievance to
higher authorities. This deputy will, of course work in close
cooperation with the Minister of National Defense because of
the necessity to maintain the integrity of the chain of
command. Ordinary soldiers, when they know they can turn
to a military Ombudsman for their complaints, may not have
to fall back on their own informal devices to obtain redress
for their grievances. The Ombudsman will help raise troop
morale in accordance with a major professed goal of the
President and the military authorities themselves. x x x
83
The add-on now forms part of Section 5, Article XI which
reads as follows:
Section 5. There is hereby created the independent Office of
the Ombudsman, composed of the Ombudsman to be known
as Tanodbayan, one over-all Deputy and at least one Deputy
each for Luzon, Visayas and Mindanao. A separate deputy for
the military establishment shall likewise be appointed.
(Emphasis supplied)
The integrity and effectiveness of the Deputy Ombudsman for
the MOLEO as a military watchdog looking into abuses and
irregularities that affect the general morale and
professionalism in the military is certainly of primordial
importance in relation to the President's own role
asCommander-in-Chief of the Armed Forces. It would not be
incongruous for Congress, therefore, to grant the President
concurrent disciplinary authority over the Deputy
Ombudsman for the military and other law enforcement
offices.
Granting the President the Power
to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the
President the power to remove a Deputy Ombudsman from
office totally frustrates, if not resultantly negates the
independence of the Office of the Ombudsman is tenuous.
The independence which the Office of the Ombudsman is
vested with was intended to free it from political
considerations in pursuing its constitutional mandate to be a
protector of the people. What the Constitution secures for the
Office of the Ombudsman is, essentially, political
independence. This means nothing more than that "the terms
of office, the salary, the appointments and discipline of all
persons under the office" are "reasonably insulated from the
whims of politicians."52 And so it was that Section 5, Article
XI of the 1987 Constitution had declared the creation of the
independent Office of the Ombudsman, composed of the
Ombudsman and his Deputies, who are described as
"protectors of the people" and constitutionally mandated to
act promptly on complaints filed in any form or manner
against public officials or employees of the Government
Section 12, Article XI. Pertinent provisions under Article XI
prescribes a term of office of seven years without
reappointment Section 11, prohibits a decrease in salaries
during the term of office Section 10, provides strict
qualifications for the office Section 8, grants fiscal autonomy
Section 14 and ensures the exercise of constitutional
functions Section 12 and 13. The cloak of independence is
meant to build up the Office of the Ombudsman's institutional
strength to effectively function as official critic, mobilizer of
government, constitutional watchdog53 and protector of the
people. It certainly cannot be made to extend to wrongdoings
and permit the unbridled acts of its officials to escape
administrative discipline.
Being aware of the constitutional imperative of shielding the
Office of the Ombudsman from political influences and the
discretionary acts of the executive, Congress laid down two
restrictions on the President's exercise of such power of
removal over a Deputy Ombudsman, namely: (1) that the
removal of the Deputy Ombudsman must be for any of the
grounds provided for the removal of the Ombudsman and (2)
that there must be observance of due process. Reiterating
the grounds for impeachment laid down in Section 2, Article
XI of the 1987 Constitution, paragraph 1 of Section 8 of R.A.
No. 6770 states that the Deputy Ombudsman may be
removed from office for the same grounds that the
Ombudsman may be removed through impeachment,
namely, "culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal
of public trust." Thus, it cannot be rightly said that giving the
President the power to remove a Deputy Ombudsman, or a
Special Prosecutor for that matter, would diminish or
compromise the constitutional independence of the Office of
the Ombudsman. It is, precisely, a measure of protection of
the independence of the Ombudsman's Deputies and Special
Prosecutor in the discharge of their duties that their removal
can only be had on grounds provided by law.
In Espinosa v. Office of the Ombudsman,54 the Court
elucidated on the nature of the Ombudsman's independence
in this wise -
The prosecution of offenses committed by public officers is
vested in the Office of the Ombudsman. To insulate the
Office from outside pressure and improper influence, the
Constitution as well as RA 6770 has endowed it with a wide
latitude of investigatory and prosecutory powers virtually free
from legislative, executive or judicial intervention. This Court
consistently refrains from interfering with the exercise of its
powers, and respects the initiative and independence
inherent in the Ombudsman who, 'beholden to no one, acts
as the champion of the people and the preserver of the
integrity of public service.
Petitioner Gonzales may not be
removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.
Having now settled the question concerning the validity of the
President's power to remove the Deputy Ombudsman and
Special Prosecutor, we now go to the substance of the
administrative findings in OP Case No. 10-J-460 which led to
the dismissal of herein petitioner, Deputy Ombudsman Emilio
A. Gonzales, III.
At the outset, the Court finds no cause for petitioner
Gonzales to complain simply because the OP proceeded with
the administrative case against him despite his non-
attendance thereat. Petitioner was admittedly able to file an
Answer in which he had interposed his defenses to the formal
84
charge against him. Due process is satisfied when a person is
notified of the charge against him and given an opportunity
to explain or defend himself. In administrative proceedings,
the filing of charges and giving reasonable opportunity for the
person so charged to answer the accusations against him
constitute the minimum requirements of due process.55 Due
process is simply having the opportunity to explain one's side,
or an opportunity to seek a reconsideration of the action or
ruling complained of.56
The essence of due process is that a party is afforded
reasonable opportunity to be heard and to submit any
evidence he may have in support of his defense.57 Mere
opportunity to be heard is sufficient. As long as petitioner
was given the opportunity to explain his side and present
evidence, the requirements of due process are satisfactorily
complied with because what the law abhors is an absolute
lack of opportunity to be heard.58 Besides, petitioner only
has himself to blame for limiting his defense through the
filing of an Answer. He had squandered a subsequent
opportunity to elucidate upon his pleaded defenses by
adamantly refusing to attend the scheduled Clarificatory
Conference despite notice. The OP recounted as follows -
It bears noting that respondent Deputy Ombudsman
Gonzalez was given two separate opportunities to explain his
side and answer the Formal Charge against him.
In the first instance, respondent was given the opportunity to
submit his answer together with his documentary evidence,
which opportunity respondent actually availed of. In the
second instance, this Office called a Clarificatory Conference
on 8 February 2011 pursuant to respondent's express election
of a formal investigation. Despite due notice, however,
respondent Deputy Ombudsman refused to appear for said
conference, interposing an objection based on the unfounded
notion that this Office has prejudged the instant case.
Respondent having been given actual and reasonable
opportunity to explain or defend himself in due course, the
requirement of due process has been satisfied.59
In administrative proceedings, the quantum of proof
necessary for a finding of guilt is substantial evidence,60
which is more than a mere scintilla and means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.61 The fact, therefore, that petitioner
later refused to participate in the hearings before the OP is
not a hindrance to a finding of his culpability based on
substantial evidence, which only requires that a decision must
"have something upon which it is based."62
Factual findings of administrative bodies are controlling when
supported by substantial evidence.63 The OP's
pronouncement of administrative accountability against
petitioner and the imposition upon him of the corresponding
penalty of removal from office was based on the finding of
gross neglect of duty and grave misconduct in office
amounting to a betrayal of public trust, which is a
constitutional ground for the removal by impeachment of the
Ombudsman (Section 2, Article XI, 1987 Constitution), and a
statutory ground for the President to remove from office a
Deputy Ombudsman and a Special Prosecutor Section 8(2) of
the Ombudsman Act.
The OP held that petitioner's want of care and wrongful
conduct consisted of his unexplained action in directing the
PNP-NCR to elevate P/S Insp. Mendoza's case records to his
office; his failure to verify the basis for requesting the
Ombudsman to take over the case; his pronouncement of
administrative liability and imposition of the extreme penalty
of dismissal on P/S Insp. Mendoza based upon an unverified
complaint-affidavit; his inordinate haste in implementing P/S
Insp. Mendoza's dismissal notwithstanding the latter's non-
receipt of his copy of the Decision and the subsequent filing
of a motion for reconsideration; and his apparent unconcern
that the pendency of the motion for reconsideration for more
than five months had deprived P/S Insp. Mendoza of
available remedies against the immediate implementation of
the Decision dismissing him from the service.
Thus, taking into consideration the factual determinations of
the IIRC, the allegations and evidence of petitioner in his
Answer as well as other documentary evidence, the OP
concluded that: (1) petitioner failed to supervise his
subordinates to act with dispatch on the draft resolution of
P/S Insp. Mendoza's motion for reconsideration and thereby
caused undue prejudice to P/S Insp. Mendoza by effectively
depriving the latter of the right to challenge the dismissal
before the courts and prevent its immediate execution, and
(2) petitioner showed undue interest by having P/S Insp.
Mendoza's case endorsed to the Office of the Ombudsman
and resolving the same against P/S Insp. Mendoza on the
basis of the unverified complaint-affidavit of the alleged
victim Christian Kalaw.
The invariable rule is that administrative decisions in matters
within the executive jurisdiction can only be set aside on
proof of gross abuse of discretion, fraud, or error of law.64 In
the instant case, while the evidence may show some amount
of wrongdoing on the part of petitioner, the Court seriously
doubts the correctness of the OP's conclusion that the
imputed acts amount to gross neglect of duty and grave
misconduct constitutive of betrayal of public trust. To say that
petitioner's offenses, as they factually appear, weigh heavily
enough to constitute betrayal of public trust would be to
ignore the significance of the legislature's intent in prescribing
the removal of the Deputy Ombudsman or the Special
Prosecutor for causes that, theretofore, had been reserved
only for the most serious violations that justify the removal by
impeachment of the highest officials of the land.
Would every negligent act or misconduct in the performance
of a Deputy Ombudsman's duties constitute betrayal of public
trust warranting immediate removal from office? The
question calls for a deeper, circumspective look at the nature
of the grounds for the removal of a Deputy Ombudsman and
a Special Prosecutor vis-a-vis common administrative
offenses.
85

Betrayal of public trust is a new ground for impeachment
under the 1987 Constitution added to the existing grounds of
culpable violation of the Constitution, treason, bribery, graft
and corruption and other high crimes. While it was deemed
broad enough to cover any violation of the oath of office,65
the impreciseness of its definition also created apprehension
that "such an overarching standard may be too broad and
may be subject to abuse and arbitrary exercise by the
legislature."66 Indeed, the catch-all phrase betrayal of public
trust that referred to "all acts not punishable by statutes as
penal offenses but, nonetheless, render the officer unfit to
continue in office"67 could be easily utilized for every
conceivable misconduct or negligence in office. However,
deliberating on some workable standard by which the ground
could be reasonably interpreted, the Constitutional
Commission recognized that human error and good faith
precluded an adverse conclusion.
MR. VILLACORTA: x x x One last matter with respect to the
use of the words "betrayal of public trust" as embodying a
ground for impeachment that has been raised by the
Honorable Regalado. I am not a lawyer so I can anticipate
the difficulties that a layman may encounter in understanding
this provision and also the possible abuses that the legislature
can commit in interpreting this phrase. It is to be noted that
this ground was also suggested in the 1971 Constitutional
Convention. A review of the Journals of that Convention will
show that it was not included; it was construed as
encompassing acts which are just short of being criminal but
constitute gross faithlessness against public trust, tyrannical
abuse of power, inexcusable negligence of duty, favoritism,
and gross exercise of discretionary powers. I understand
from the earlier discussions that these constitute violations of
the oath of office, and also I heard the Honorable Davide say
that even the criminal acts that were enumerated in the
earlier 1973 provision on this matter constitute betrayal of
public trust as well. In order to avoid confusion, would it not
be clearer to stick to the wording of Section 2 which reads:
"may be removed from office on impeachment for and
conviction of, culpable violation of the Constitution, treason,
bribery, and other high crimes, graft and corruption or
VIOLATION OF HIS OATH OF OFFICE", because if betrayal of
public trust encompasses the earlier acts that were
enumerated, then it would behoove us to be equally clear
about this last provision or phrase.
MR. NOLLEDO: x x x I think we will miss a golden opportunity
if we fail to adopt the words "betrayal of public trust" in the
1986 Constitution. But I would like him to know that we are
amenable to any possible amendment. Besides, I think plain
error of judgment, where circumstances may indicate that
there is good faith, to my mind, will not constitute betrayal of
public trust if that statement will allay the fears of difficulty in
interpreting the term."68 (Emphasis supplied)
The Constitutional Commission eventually found it reasonably
acceptable for the phrase betrayal of public trust to refer to
"acts which are just short of being criminal but constitute
gross faithlessness against public trust, tyrannical abuse of
power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers."69 In other words, acts that
should constitute betrayal of public trust as to warrant
removal from office may be less than criminal but must be
attended by bad faith and of such gravity and seriousness as
the other grounds for impeachment.
A Deputy Ombudsman and a Special Prosecutor are not
impeachable officers. However, by providing for their removal
from office on the same grounds as removal by
impeachment, the legislature could not have intended to
redefine constitutional standards of culpable violation of the
Constitution, treason, bribery, graft and corruption, other
high crimes, as well as betrayal of public trust, and apply
them less stringently. Hence, where betrayal of public trust,
for purposes of impeachment, was not intended to cover all
kinds of official wrongdoing and plain errors of judgment, this
should remain true even for purposes of removing a Deputy
Ombudsman and Special Prosecutor from office. Hence, the
fact that the grounds for impeachment have been made
statutory grounds for the removal by the President of a
Deputy Ombudsman and Special Prosecutor cannot diminish
the seriousness of their nature nor the acuity of their scope.
Betrayal of public trust could not suddenly "overreach" to
cover acts that are not vicious or malevolent on the same
level as the other grounds for impeachment.
The tragic hostage-taking incident was the result of a
confluence of several unfortunate events including system
failure of government response. It cannot be solely attributed
then to what petitioner Gonzales may have negligently failed
to do for the quick, fair and complete resolution of the case,
or to his error of judgment in the disposition thereof. Neither
should petitioner's official acts in the resolution of P/S Insp.
Mendoza's case be judged based upon the resulting deaths at
the Quirino Grandstand. The failure to immediately act upon
a party's requests for an early resolution of his case is not, by
itself, gross neglect of duty amounting to betrayal of public
trust. Records show that petitioner took considerably less
time to act upon the draft resolution after the same was
submitted for his appropriate action compared to the length
of time that said draft remained pending and unacted upon in
the Office of Ombudsman Merceditas N. Gutierrez. He
reviewed and denied P/S Insp. Mendoza's motion for
reconsideration within nine (9) calendar days reckoned from
the time the draft resolution was submitted to him on April
27, 2010 until he forwarded his recommendation to the Office
of Ombudsman Gutierrez on May 6, 2010 for the latter's final
action. Clearly, the release of any final order on the case was
no longer in his hands.
Even if there was inordinate delay in the resolution of P/S
Insp. Mendoza's motion and an unexplained failure on
petitioner's part to supervise his subordinates in its prompt
disposition, the same cannot be considered a vicious and
malevolent act warranting his removal for betrayal of public
trust. More so because the neglect imputed upon petitioner
appears to be an isolated case.
86

Similarly, petitioner's act of directing the PNP-IAS to endorse
P/S Insp. Mendoza's case to the Ombudsman without citing
any reason therefor cannot, by itself, be considered a
manifestation of his undue interest in the case that would
amount to wrongful or unlawful conduct. After all, taking
cognizance of cases upon the request of concerned agencies
or private parties is part and parcel of the constitutional
mandate of the Office of the Ombudsman to be the
"champion of the people." The factual circumstances that the
case was turned over to the Office of the Ombudsman upon
petitioner's request; that administrative liability was
pronounced against P/S Insp. Mendoza even without the
private complainant verifying the truth of his statements; that
the decision was immediately implemented; or that the
motion for reconsideration thereof remained pending for
more than nine months cannot be simply taken as evidence
of petitioner's undue interest in the case considering the lack
of evidence of any personal grudge, social ties or business
affiliation with any of the parties to the case that could have
impelled him to act as he did. There was likewise no evidence
at all of any bribery that took place, or of any corrupt
intention or questionable motivation.
Accordingly, the OP's pronouncement of administrative
accountability against petitioner and the imposition upon him
of the corresponding penalty of dismissal must be reversed
and set aside, as the findings of neglect of duty or
misconduct in office do not amount to a betrayal of public
trust. Hence, the President, while he may be vested with
authority, cannot order the removal of petitioner as Deputy
Ombudsman, there being no intentional wrongdoing of the
grave and serious kind amounting to a betrayal of public
trust.
This is not to say, however, that petitioner is relieved of all
liability for his acts showing less than diligent performance of
official duties. Although the administrative acts imputed to
petitioner fall short of the constitutional standard of betrayal
of public trust, considering the OP's factual findings of
negligence and misconduct against petitioner, the Court
deems it appropriate to refer the case to the Office of the
Ombudsman for further investigation of the charges in OP
Case No. 10-J-460 and the imposition of the corresponding
administrative sanctions, if any.
Inasmuch as there is as yet no existing ground justifying his
removal from office, petitioner is entitled to reinstatement to
his former position as Deputy Ombudsman and to the
payment of backwages and benefits corresponding to the
period of his suspension.
The Office of the President is vested
with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.
Petitioner Barreras-Sulit, on the other hand, has been
resisting the President's authority to remove her from office
upon the averment that without the Sandiganbayan's final
approval and judgment on the basis of the PLEBARA, it would
be premature to charge her with acts and/or omissions
"tantamount to culpable violations of the Constitution and
betrayal of public trust," which are grounds for removal from
office under Section 8, paragraph (2) of the Ombudsman Act
of 1989; and which also constitute a violation of Section 3,
paragraph (e) of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act) - causing undue injury to the
Government or giving any private party any unwarranted
benefits, advantage or preference through manifest partiality,
evident bad faith or gross inexcusable negligence. With
reference to the doctrine of prejudicial procedural
antecedent, petitioner Barreras-Sulit asserts that the
propriety of taking and continuing to take administrative
disciplinary proceeding against her must depend on the final
disposition by the Sandiganbayan of the PLEBARA, explaining
that if the Sandiganbayan would uphold the PLEBARA, there
would no longer be any cause of complaint against her; if
not, then the situation becomes ripe for the determination of
her failings.
The argument will not hold water. The incidents that have
taken place subsequent to the submission in court of the
PLEBARA shows that the PLEBARA has been practically
approved, and that the only thing which remains to be done
by the Sandiganbayan is to promulgate a judgment imposing
the proper sentence on the accused Major General Garcia
based on his new pleas to lesser offenses. On May 4, 2010,
the Sandiganbayan issued a resolution declaring that the
change of plea under the PLEBARA was warranted and that it
complied with jurisprudential guidelines. The Sandiganbayan,
thereafter, directed the accused Major General Garcia to
immediately convey in favor of the State all the properties,
both real and personal, enumerated therein. On August 11,
2010, the Sandiganbayan issued a resolution, which, in order
to put into effect the reversion of Major General Garcia's ill-
gotten properties, ordered the corresponding government
agencies to cause the transfer of ownership of said properties
to the Republic of the Philippines. In the meantime, the Office
of the Special Prosecutor (OSP) informed the Sandiganbayan
that an Order70 had been issued by the Regional Trial Court
of Manila, Branch 21 on November 5, 2010 allowing the
transfer of the accused's frozen accounts to the Republic of
the Philippines pursuant to the terms of the PLEBARA as
approved by the Sandiganbayan. Immediately after the OSP
informed the Sandiganbayan that its May 4, 2010 Resolution
had been substantially complied with, Major General Garcia
manifested71 to the Sandiganbayan on November 19, 2010
his readiness for sentencing and for the withdrawal of the
criminal information against his wife and two sons. Major
General Garcia's Motion to Dismiss,72 dated December 16,
2010 and filed with the Sandiganbayan, reads:
87
1.0 The Co-Accused were impleaded under the theory of
conspiracy with the Principal Accused MGen. Carlos F. Garcia
(AFP Ret.), (Principal Accused) with the allegation that the
act of one is the act of the others. Therefore, with the
approval by the Honorable Court of the Plea Bargaining
Agreement executed by the Principal Accused, the charges
against the Co-Accused should likewise be dismissed since
the charges against them are anchored on the same charges
against the Principal Accused.
On December 16, 2010, the Sandiganbayan allowed accused
Major General Garcia to plead guilty to the lesser offenses of
direct bribery and violation of Section 4(b), R.A. No. 9160, as
amended. Upon Major General Garcia's motion, and with the
express conformity of the OSP, the Sandiganbayan allowed
him to post bail in both cases, each at a measly amount of ₱
30,000.00.
The approval or disapproval of the PLEBARA by the
Sandiganbayan is of no consequence to an administrative
finding of liability against petitioner Barreras-Sulit. While the
court's determination of the propriety of a plea bargain is on
the basis of the existing prosecution evidence on record, the
disciplinary authority's determination of the prosecutor's
administrative liability is based on whether the plea bargain is
consistent with the conscientious consideration of the
government's best interest and the diligent and efficient
performance by the prosecution of its public duty to
prosecute crimes against the State. Consequently, the
disciplining authority's finding of ineptitude, neglect or
willfulness on the part of the prosecution, more particularly
petitioner Special Prosecutor Barreras-Sulit, in failing to
pursue or build a strong case for the government or, in this
case, entering into an agreement which the government finds
"grossly disadvantageous," could result in administrative
liability, notwithstanding court approval of the plea bargaining
agreement entered into.
Plea bargaining is a process in criminal cases whereby the
accused and the prosecution work out a mutually satisfactory
disposition of the case subject to court approval.73 The
essence of a plea bargaining agreement is the allowance of
an accused to plead guilty to a lesser offense than that
charged against him. Section 2, Rule 116 of the Revised
Rules of Criminal Procedure provides the procedure therefor,
to wit:
SEC. 2. Plea of guilty to a lesser offense. -- At arraignment,
the accused, with the consent of the offended party and the
prosecutor, may be allowed by the trial court to plead guilty
to a lesser offense which is necessarily included in the
offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty. No
amendment of the complaint or information is necessary.
(Sec. 4, Cir. 38-98)
Plea bargaining is allowable when the prosecution does not
have sufficient evidence to establish the guilt of the accused
of the crime charged.74 However, if the basis for the
allowance of a plea bargain in this case is the evidence on
record, then it is significant to state that in its earlier
Resolution75 promulgated on January 7, 2010, the
Sandiganbayan had evaluated the testimonies of twenty (20)
prosecution witnesses and declared that "the conglomeration
of evidence presented by the prosecution is viewed by the
Court to be of strong character that militates against the
grant of bail."
Notwithstanding this earlier ruling by the Sandiganbayan, the
OSP, unexplainably, chose to plea bargain with the accused
Major General Garcia as if its evidence were suddenly
insufficient to secure a conviction. At this juncture, it is not
amiss to emphasize that the "standard of strong evidence of
guilt which is sufficient to deny bail to an accused is markedly
higher than the standard of judicial probable cause which is
sufficient to initiate a criminal case."76 Hence, in light of the
apparently strong case against accused Major General Garcia,
the disciplining authority would be hard-pressed not to look
into the whys and wherefores of the prosecution's turnabout
in the case.
The Court need not touch further upon the substantial
matters that are the subject of the pending administrative
proceeding against petitioner Barreras-Sulit and are, thus,
better left to the complete and effective resolution of the
administrative case before the Office of the President.
The challenge to the constitutionality of Section 8(2) of the
Ombudsman Act has, nonetheless, failed to obtain the
necessary votes to invalidate the law, thus, keeping said
provision part of the law of the land. To recall, these cases
involve two distinct issues: (a) the constitutionality of Section
8(2) of the Ombudsman Act; and (b) the validity of the
administrative action of removal taken against petitioner
Gonzales. While the Court voted unanimously to reverse the
decision of the OP removing petitioner Gonzales from office,
it was equally divided in its opinion on the constitutionality of
the assailed statutory provision in its two deliberations held
on April 17, 2012 and September 4, 2012. There being no
majority vote to invalidate the law, the Court, therefore,
dismisses the challenge to the constitutionality of Section 8(2)
of the Ombudsman Act in accordance with Section 2(d), Rule
12 of the Internal Rules of the Court.
Indeed, Section 4(2), Article VIII of the 1987 Constitution
requires the vote of the majority of the Members of the Court
actually taking part in the deliberation to sustain any
challenge to the constitutionality or validity of a statute or
any of its provisions.
WHEREFORE, in G.R. No. 196231, the decision of the Office
of the President in OP Case No. 10-J-460 is REVERSED and
SET ASIDE. Petitioner Emilio A. Gonzales III is ordered
REINSTATED with payment of backwages corresponding to
the period of suspension effective immediately, even as the
Office of the Ombudsman is directed to proceed with the
investigation in connection with the above case against
88
petitioner. In G.R. No. 196232, We AFFIRM the continuation
of OP-DC Case No. 11-B-003 against Special Prosecutor
Wendell Barreras-Sulit for alleged acts and omissions
tantamount to culpable violation of the Constitution and a
betrayal of public trust, in accordance with Section 8(2) of
the Ombudsman Act of 1989.

The challenge to the constitutionality of Section 8(2) of the

Ombudsman Act is hereby DENIED.

SO ORDERED.

89
ADMINISTRATIVE APPEAL
G.R. No. 173590 December 9, 2013
PHILIPPINE POSTAL CORPORATION, Petitioner,
vs.
COURT OF APPEALS and CRISANTO G. DE GUZMAN,
Respondents.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated April 4, 2006 July 19, 2006 of the Court of
Appeals (CA) in CA-G.R. SP No. 88891 which reversed and set
aside the Resolutions dated November 23, 20044 and
January 6, 20055 of petitioner Philippine Postal Corporation
(PPC), through its then Postmaster General and Chief
Executive Officer (CEO) Dario C. Rama (PG Rama), finding
that the latter gravely abused its discretion when it revived
the administrative charges against respondent Crisanto G. De
Guzman (De Guzman) despite their previous dismissal.
The Facts
Sometime in 1988, De Guzman, then a Postal Inspector at
the Postal Services Office,6 was investigated by Regional
Postal Inspector Atty. Raul Q. Buensalida (Atty. Buensalida) in
view of an anonymous complaint charging him of dishonesty
and conduct grossly prejudicial to the best interest of the
service.7 As a result thereof, Atty. Buensalid are
commended8 that De Guzman be formally charged with
twelve (12) counts of the same offenses and eventually be
relieved from his post to protect the employees and
witnesses from harassment.
Since the Postal Services Office was then a line-agency of the
Department of Transportation and Communication(DOTC),
Atty. Buensalida’s investigation report was forwarded to the
said department’s Investigation Security and Law
Enforcement Staff (ISLES) for further evaluation and
approval. Contrary to the findings of Atty. Buensalida,
however, the ISLES, through a Memorandum9dated February
26, 1990prepared by Director Antonio V. Reyes (Dir. Reyes),
recommended that De Guzman be exonerated from the
charges against him due to lack of merit. The said
recommendation was later approved by DOTC Assistant
Secretary Tagumpay R. Jardiniano (Asec. Jardiniano) in a
Memorandum10 dated May 15, 1990.
On February 6, 1992, Republic Act No. (RA)7354,11
otherwise known as the ― ”Postal Service Act of 1992,” was
passed. Pursuant to this law, the Postal Services Office under
the DOTC was abolished, and all its powers, duties, and
rights were transferred to the PPC.12 Likewise, officials and
employees of the Postal Services Office were absorbed by the
PPC.13
Subsequently, or on July 16, 1993, De Guzman, who had by
then become Chief Postal Service Officer, was formally
charged14 by the PPC, through Postmaster General Eduardo
P. Pilapil(PG Pilapil), for the same acts of ―dishonesty, gross
violation of regulations, and conduct grossly prejudicial to the
best interest of the service, and the Anti-graft law, committed
as follows”:
Investigation disclosed that while you were designated as
Acting District Postal Inspector with assignment at South
Cotabato District, Postal Region XI, Davao City, you
personally made unauthorized deductions and/or cuttings
from the ten (10%) percent salary differential for the months
of January-March, 1988,when you paid each of the
employees of the post office at Surallah, South Cotabato, on
the last week of April 1988, and you intentionally failed to
give to Postmaster Juanito D. Dimaup, of the said post office
his differential amounting to ₱453.91, Philippine currency;
that you demanded and required Letter Carrier Benjamin
Salero, of the aforestated post office to give fifty (₱50.00)
pesos out of the aforesaid differential; that you personally
demanded, take away and encashed the salary differential
check No. 008695317 in the total amount of ₱1,585.67,
Philippine currency, of Postmaster Benjamin C. Charlon, of
the post office at Lake Cebu, South Cotabato, for your own
personal gain and benefit to the damage and prejudice of the
said postmaster; that you personally demanded, required and
received from Postmaster Peniculita B. Ledesma, of the post
office of Sto. Niño, South Cotabato, the amount of ₱300.00,
₱200.00 and ₱100.00 for hazard pay, COLA differential and
contribution to the affair "Araw ng Kartero and Christmas
Party," respectively; that you personally demanded and
required Letter Carrier Feliciano Bayubay, of the post office at
General Santos City to give money in the amount of
₱1,000.00, Philippine Currency, as a condition precedent for
his employment in this Corporation, and you again demanded
and personally received from the said letter carrier the
amount of ₱300.00 Philippine currency, as gift to the
employees of the Civil Service Commission, Davao City to
facilitate the release of Bayubay’s appointment; that you
demanded and forced Postmaster Felipe Collamar, Jr.,of the
post office at Maitum, South Cotabato to contribute and/or
produce one (1) whole Bariles fish for shesami (sic), and you
also required and received from the aforesaid postmaster the
amount of ₱500.00 Philippine currency; that you demanded
and required Postmaster Diosdado B. Delfin to give imported
wine and/or ₱700.00, Philippine currency, for gift to the
outgoing Regional Director Escalada; and that you failed to
liquidate and return the substantial amount of excess
contributionson April, 1987, June, 1987 and December,
1987,for Postal Convention at MSU, arrival of Postmaster
General Banayo and Araw ng Kartero and Christmas Party,
respectively, for your own personal gain and benefit to the
damage and prejudice of all the employees assigned at the
aforementioned district.
In a Decision15dated August 15, 1994, De Guzman was
found guilty as charged and was dismissed from the service.
90
Pertinently, its dispositive reads that ―”[i]n the interest of
the service, it is directed that this decision be implemented
immediately.”16
It appears, however, that the a fore-stated decision was not
implemented until five (5) years later when Regional Director
Mama S. Lalanto (Dir. Lalanto) issued a Memorandum17
dated August 17, 1999 for this purpose. De Guzman lost no
time in filing a motion for reconsideration,18 claiming that:
(a) the decision sought to be implemented was recalled on
August 29, 1994 by PG Pilapil himself; and (b)since the
decision had been dormant for more than five (5)years, it
may not be revived without filing another formal charge. The
motion was, however, denied in a Resolution19 dated May
14, 2003, pointing out that De Guzman failed to produce a
copy of the alleged recall order even if he had been directed
to do so.
Undaunted, De Guzman filed a second motion for
reconsideration, which was resolved20 on June 2, 2003 in his
favor in that: (a) the Resolution dated May 14, 2003 denying
De Guzman’s first motion for Reconsideration was recalled;
and (b) a formal hearing of the case was ordered to be
conducted as soon as possible. After due hearing, the PPC,
through PG Rama, issued a Resolution21 dated November 23,
2004, finding De Guzman guilty of the charges against him
and consequently dismissing him from the service. It was
emphasized therein that when De Guzman was formally
charged on July 16, 1993, the complainant was the PPC,
which had its own charter and was no longer under the
DOTC. Thus, the ISLES Memorandum dated February 26,
1990 prepared by Dir. Reyes which endorsed the exoneration
of De Guzman and the dismissal of the complaints against
him was merely recommendatory. As such, the filing of the
formal charge on July 16, 1993 was an obvious rejection of
said recommendation.22
De Guzman’s motion for reconsideration was denied initially
in a Resolution23 dated January 6, 2005, but the motion was,
at the same time, considered as an appeal to the PPC Board
of Directors (Board).24 The Board, however, required PG
Rama to rule on the motion. Thus, in a Resolution25 dated
May 10, 2005, PG Rama pointed out that, being the third
motion for reconsideration filed by De Guzman, the same was
in gross violation of the rules of procedure recognized by the
PPC, as well as of the Civil Service Commission (CSC), which
both allowed only one (1) such motion to be entertained.26 It
was further held that res judicata was unavailing as the
decision exonerating De Guzman was ―”only a ruling after a
fact-finding investigation.” Hence, the same could not be
considered as a dismissal on the merits but rather, a
dismissal made by an investigative body which was not
clothed with judicial or quasi-judicial power.27
Meanwhile, before the issuance of the Resolution dated May
10, 2005, De Guzman elevated his case on March 12, 200528
to the CA via a special civil action for certiorari and
mandamus,29 docketed as CA-G.R. SP No. 88891, imputing
grave abuse of discretion amounting to lack or excess of
jurisdiction in that: (a) the case against him was a mere
rehash of the previous complaint already dismissed by the
DOTC, and therefore, a clear violation of the rule on res
judicata; (b) the assailed PPC Resolutions did not consider
the evidences submitted by De Guzman; (c) the
uncorroborated, unsubstantiated and contradictory
statements contained in the affidavits presented became the
bases of the assailed Resolutions; (d) the Resolution dated
November 23, 2004 affirmed a non-existent decision; (e)
Atty. Buensalida was not a credible witness and his testimony
bore no probative value; and(f) the motion for
reconsideration filed by De Guzman of the Resolution dated
November 23, 2004 is not the third motion for
reconsideration filed by him.
On June 10, 2005, De Guzman appealed30 the Resolution
dated May 10, 2005 before the PPC Board, which resolution
was allegedly received by De Guzman on May 26, 2005.
Almost a year later, the Board issued a Resolution31 dated
May 25, 2006,denying the appeal and affirming with finality
the Decision dated August 15, 1994 and the Resolution dated
May 14, 2003. The motion for reconsideration subsequently
filed by De Guzman was likewise denied in aResolution32
dated June 29, 2006. On April 4, 2006, the CA rendered a
Decision33 in CA-G.R. SP No. 88891, reversing the PPC
Resolutions dated November 23, 2004 and January 6, 2005,
respectively. It held that the revival of the case against De
Guzman constituted grave abuse of discretion considering the
clear and unequivocal content of the Memorandum dated
May 15, 1990 duly signed by Asec. Jardiniano that the
complaint against De Guzman was already dismissed.
Aggrieved, PPC moved for reconsideration which was,
however, denied in a Resolution34 dated July 19, 2006,
hence, the instant petition.
Meanwhile, on July 26, 2006, De Guzman filed an appeal of
the PPC Board’s Resolutions dated May 25, 2006 and June
29, 2006 with the CSC35 which was, however, dismissedin
Resolution No. 08081536 dated May 6, 2008. The CSC
equally denied De Guzman’s motion for reconsideration there
from in Resolution No. 09007737 dated January 14, 2009.
The Issues Before the Court
The essential issues for the Court’s resolution are whether:
(a) De Guzman unjustifiably failed to exhaust the
administrative remedies available to him; (b) De Guzman
engaged inforum-shopping; and (c) the investigation
conducted by the DOTC, through the ISLES, bars the filing of
the subsequent charges by PPC.
The Court’s Ruling
The petition is meritorious.
A. Exhaustion of administrative remedies.
91
The thrust of the rule on exhaustion of administrative
remedies is that the courts must allow the administrative
agencies to carry out their functions and discharge their
responsibilities within the specialized areas of their respective
competence. It is presumed that an administrative agency, if
afforded an opportunity to pass upon a matter, will decide
the same correctly, or correct any previous error committed
in its forum. Furthermore, reasons of law, comity and
convenience prevent the courts from entertaining cases
proper for determination by administrative agencies. Hence,
premature resort to the courts necessarily becomes fatal to
the cause of action of the petitioner.38 PPC claims that De
Guzman failed to subscribe to the rule on exhaustion of
administrative remedies since he opted to file a premature
certiorari case before the CA instead of filing an appeal with
the PPC Board, or of an appeal to the CSC, which are
adequate remedies under the law.39
The Court agrees with PPC’s submission.
Under Section 21(d) of RA7354, the removal by the
Postmaster General of PPC officials and employees below the
rank of Assistant Postmaster General may be appealed to the
Board of the PPC, viz.:
Sec.21.Powers and Functions of the Postmaster General. —
as the Chief Executive Officer, the Postmaster General shall
have the following powers and functions:
xxxx
(d) to appoint, promote, assign, reassign, transfer and
remove personnel below the ranks of Assistant Postmaster
General: Provided, That in the case of removal of officials and
employees, the same may be appealed to the Board;
xxxx
This remedy of appeal to the Board is reiterated in Section
2(a), Rule II of the Disciplinary Rules and Procedures of the
PPC, which providesfurther that the decision of the Board is,
in turn, appeal able to the CSC, viz.:
Section2. DISCIPLINARY JURISDICTION. – (a) The Board of
Directors shall decide upon appeal the decision of the
Postmaster General removing officials and employees from
the service. (R.A. 7354, Sec. 21 (d)). The decision of the
Board of Directors is appeal able to the Civil Service
Commission. It is well-established that the CSC has
jurisdiction over all employees of government branches,
subdivisions, instrumentalities, and agencies, including
government-owned or controlled corporations with original
charters, and, as such, is the sole arbiter of controversies
relating to the civil service.40 The PPC, created under
RA7354, is a government-owned and controlled corporation
with an original charter. Thus, being an employee of the PPC,
De Guzman should have, after availing of the remedy of
appeal before the PPC Board, sought further recourse before
the CSC. Records, however, disclose that while De Guzman
filed on June 10, 2005 a notice of appeal41 to the PPC Board
and subsequently appealed the latter’s ruling to the CSC on
July 26, 2006, the sewere all after he challenged the PPC
Resolution dated November 23, 2004 (wherein he was
adjudged guilty of the charges against him and consequently
dismissed from the service) in a petition for certiorari and
mandamus before the CA(docketed as CA-G.R. SP No.
88891). That the subject of De Guzman’s appeal to the Board
was not the Resolution dated November 23, 2004 but the
Resolution dated May 10, 2005 denying the motion for
reconsideration of the first - mentioned resolution is of no
moment. In Alma Jose v. Javellana,42 the Court ruled that an
appeal from an order denying a motion for reconsideration of
a final order or judgment is effectively an appeal from the
final order or judgment itself.43 Thus, finding no cogent
explanation on DeGuzman’s endor any justifiable reason for
his premature resort to a petition for certiorari and
mandamus before the CA, the Court holds that he failed to
adhere to the rule on exhaustion of administrative remedies
which should have warranted the dismissal of said petition.
B. Forum-shopping.
PPC further submits that De Guzman violated the rule on
forum-shopping since he still appealed the order of his
dismissal before the PPC Board, notwithstanding the
pendency of his petition for certiorari before the CA
identically contesting the same.44
The Court also concurs with PPC on this point.
Aside from violating the rule on exhaustion of administrative
remedies, De Guzman was also guilty of forum-shopping by
pursuing two (2) separate remedies –petition for certiorari
and appeal –that have long been held to be mutually
exclusive, and not alternative or cumulative remedies.45
Evidently, the ultimate reliefsought by said remedies whichDe
Guzmanfiled only within a few months from each other46 is
one and the same – the setting aside of the resolution
dismissing him from the service. As illumined in the case of
Sps. Zosa v. Judge Estrella,47 where in several precedents
have been cited on the subject matter:48
The petitions are denied. The present controversy is on all
fours with Young v. Sy, in which we ruled that the successive
filing of a notice of appeal and a petition for certiorari both to
assail the trial court’s dismissal order for non-suit constitutes
forum shopping. Thus,
Forum shopping consists of filing multiple suits involving the
same parties for the same cause of action, either
simultaneously or successively, for the purpose of obtaining a
favorable judgment.
There is forum shopping where there exist: (a) identity of
parties, or at least suchparties as represent the same
interests in both actions; (b) identity of rights asserted and
relief prayed for, the relief being founded on the same facts;
and (c) the identity of the two preceding particulars is such
92
that any judgment rendered in the pending case, regardless
of which party is successful would amount to res judicata.
Ineluctably, the petitioner, by filing an ordinary appeal and a
petition for certiorari with the CA, engaged in forum
shopping. When the petitioner commenced the appeal, only
four months had elapsed prior to her filing with the CA the
Petition for Certiorari under Rule 65 and which eventually
came up to this Court by way of the instant Petition (re: Non-
Suit). The elements of lit is pendentia are present between
the two suits. As the CA, through its Thirteenth Division,
correctly noted, both suits are founded on exactly the same
facts and refer to the same subject matter – the RTC Orders
which dismissed Civil Case No. SP-5703 (2000) for failure to
prosecute. In both cases, the petitioner is seeking the
reversal of the RTC orders. The parties, the rights asserted,
the issues professed, and the reliefs prayed for, are all the
same. It is evident that the judgment of one forum may
amount to res judicata in the other.
xxxx
The remedies of appeal and certiorari under Rule 65 are
mutually exclusive and not alternative or cumulative. This is a
firm judicial policy. The petitioner cannot hedge her case by
wagering two or more appeals, and, in the event that the
ordinary appeal lags significantly behind the others, she
cannot post facto validate this circumstance as a
demonstration that the ordinary appeal had not been speedy
or adequate enough, in order to justify the recourse to Rule
65. This practice, if adopted, would sanction the filing of
multiple suits in multiple fora, where each one, as the
petitioner couches it, becomes a ―precautionary measure”
for the rest, thereby increasing the chances of a favorable
decision. This is the very evil that the proscription on forum
shopping seeks to put right. In Guaranteed Hotels, Inc. v.
Baltao, the Court stated that the grave evil sought to be
avoided by the rule against forum shopping is the rendition
by two competent tribunals of two separate and contradictory
decisions. Unscrupulous party litigants, taking advantage of a
variety of competent tribunals, may repeatedly try their luck
in several different fora until a favorable result is reached. To
avoid the resultant confusion, the Court adheres strictly to
the rules against forum shopping, and any violation of these
rules results in the dismissal of the case.
Thus, the CA correctly dismissed the petition for certiorari
and the petition for review (G.R. No. 157745) filed with this
Court must be denied for lack of merit.
We also made the same ruling in Candido v. Camacho, when
the respondent therein assailed identical court orders through
both an appeal and a petition for an extraordinary writ.
Here, petitioners questioned the June 26, 2000 Order, the
August 21, 2000 Clarificatory Order, and the November 23,
2000 Omnibus Order of the RTC via ordinary appeal (CA-G.R.
CV No. 69892) and through a petition for certiorari(CA-G.R.
SP No. 62915) in different divisions of the same court. The
actions were filed with a month’s interval from each one.
Certainly, petitioners were seeking to obtain the same relief
in two different divisions with the end in view of endorsing
which ever proceeding would yield favorable consequences.
Thus, following settled jurisprudence, both the appeal and
the certiorari petitions should be dismissed.(Emphases
supplied; citations omitted)
Similar thereto, the very evil that the prohibition on forum-
shopping was seeking to prevent – conflicting decisions
rendered by two (2) different tribunals–resulted from De
Guzman’s abuse of the processes. Since De Guzman’s appeal
before the PPC Board was denied in its Resolutions49dated
May 25, 2006 and June 29, 2006, De Guzmans ought the
review of said resolutions before the CSC where he raised yet
again the defense of res judicata. Nonetheless, the CSC, in its
Resolution No. 08081550 dated May 6, 2008, affirmed De
Guzman’s dismissal, affirming "the Resolutions of the PPC
Board of Directors dismissing De Guzman from the service for
Dishonesty, Gross Violation of Regulations, and Conduct
Grossly Prejudicial to the Best Interest of the Service."51
De Guzman’s motion for reconsideration of the aforesaid
Resolution was similarly denied by the CSC in its Resolution
No. 09007752 dated January 14, 2009. On the other hand,
the petition for certiorari, which contained De Guzman’s
prayer for the reversal of Resolutions dated November 23,
2004 and January 6, 2005 dismissing him from the service,
was granted by the CA much earlier on April 4, 2006. It
should be pointed out that De Guzman was bound by his
certification53 with the CA that if he ―should thereafter learn
that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or
any other tribunal or agency,” he ―undertake[s]to report
that fact within five (5) days therefrom to [the]Honorable
Court.”54 Nothing, however, appears on record that De
Guzman had informed the CA of his subsequent filing of a
notice of appeal before the PPC from the Resolution dated
May 10, 2005. By failing to do so, De Guzman committed a
violation of his certification against forum-shopping with the
CA, which has been held to be a ground for dismissal of an
action distinct from forum-shopping itself.55
Moreover, De Guzman’s contention56 that the filing of the
notice of appeal from the said Resolution was only "taken as
a matter of precaution"57 cannot extricate him from the
effects of forum-shopping. He was fully aware when he filed
CA-G.R. SP No. 88891 that PG Ramahad forwarded the
records of the case to the PPC Board for purposes of
appeal.58 Yet, he decided to bypass the administrative
machinery. And this was not the first time he did so. In his
Comment to the instant petition, De Guzman claimed59 that
in response to the Memorandum60 dated August 17, 1999
issued by Dir. Lalanto implementing his dismissal from
service, he not only filed a motion for reconsideration but he
likewise challenged the actions of the PPC before the
Regional Trial Court of Manila through a petition for
mandamus docketed as Case No. 99-95442. Even when CA-
G.R. SP No. 88891 was decided in De Guzman’s favor on April
93
4, 2006, and PPC’s motion for reconsideration was denied on
July 19, 2006, De Guzman nonetheless filed on July 26, 2006
an appeal before the CSC from the denial by the PPC Board
of his Notice of Appeal dated June 7, 2005 as pointed out in
CSC Resolution No. 090077.61 While De Guzman did inform
the CSC that he previously filed a petition for certiorari with
the CA, he failed to disclose the fact that the CA had already
rendered a decision thereon resolving the issue of res
judicata,62 which was the very same issue before the CSC.
Verily, unscrupulous party litigants who, taking advantage of
a variety of competent tribunals, repeatedly try their luck in
several different for a until a favorable result is reached63
cannot be allowed to profit from their wrongdoing. The Court
emphasizes strict adherence to the rules against forum-
shopping, and this case is no exception. Based on the
foregoing, the CA should have then dismissed the petition for
certiorari filed by De Guzman not only for being violative of
the rule on exhaustion of administrative remedies but also
due to forum-shopping.
In addition, it may not be amiss to state that De Guzman’s
petition for certiorari was equally dismissible since one of the
requirements for the availment thereof is precisely that there
should be no appeal. It is well-settled that the remedy to
obtain reversal or modification of the judgment on the merits
is to appeal. This is true even if the error, or one of the
errors, ascribed to the tribunal rendering the judgment is its
lack of jurisdiction over the subject matter, or the exercise of
power in excess thereof, or grave abuse of discretion in the
findings of fact or of law set out in the decision.64 In fact,
under Section 30, Rule III (C) of the Disciplinary Rules and
Procedures of the PPC, among the grounds for appeal to the
PPC Board from an order or decision of dismissal are: (a)
grave abuse of discretion on the part of the Postmaster
General; and (b) errors in the finding of facts or conclusions
of law which, if not corrected, would cause grave and
irreparable damage or injury to the appellant. Clearly,
therefore, with the remedy of appeal to the PPC Board and
thereafter to the CSC available to De Guzman, certiorari to
the CA should not have been permitted.
In this relation, it bears noting that PPC has sufficiently
addressed De Guzman’s argument that an appeal would not
be a speedy and adequate remedy considering that the
resolution dismissing him from service was to be
"implemented immediately."65
To elucidate, on February 24, 2005, before De Guzman filed
the petition for certiorari dated March 12, 2005, the PPC
Board had passed Board Resolution66 No. 2005-14 adopting
a "Corporate Policy that henceforth the decision of the
Postmaster General in administrative cases when the penalty
is removal or dismissal, the same shall not be final and
executory pending appeal to the Office of the Board of
Directors." Shortly thereafter, or on March 8, 2005, PG Rama
issued Philpost Administrative Order67 No. 05-05 pursuant to
the aforementioned Board Resolution, the pertinent portions
of which are quoted hereunder:
1. Decisions of the Postmaster General in administrative
cases where the penalty imposed is removal/dismissal from
the service shall not be final and executory pending appeal to
the Office of the PPC Board of Directors x x x
2. Decisions of the Postmaster General in administrative
cases where the penalty imposed is removal/dismissal from
the service shall be executory pending appeal to the Civil
Service Commission;
3. Respondents who have pending appealed administrative
cases to the PPC Board of Directors are entitled to report
back to office and receive their respective salary and benefits
beginning at the time they reported back to work. No back
wages shall be allowed by virtue of the PPC Board Resolution
No. 2005-14;
4. Following the Civil Service Rules and Regulations, back
wages can only be recovered in case the respondent is
exonerated of the administrative charges on appeal; and
5. PPC Board Resolution No. 2005-14 took effect on 24
February 2005. x x x
PPC further claimed that instead of reporting for work while
his motion for reconsideration and, subsequently, his appeal
were pending, "[De Guzman] voluntarily elected to absent
himself." Much later, however, De Guzman "finally reported
back [to]work and thereby received his salary and benefits in
full for the covered period."68 De Guzman failed to
sufficiently rebut these claims, except to say that he was
never given any copy of the aforementioned board resolution
and administrative order.69 Therefore, considering that his
dismissal was not to be executed by PPC immediately (if he
had appealed the same), De Guzman’s contention that an
appeal would not be a speedy and adequate remedysimilarly
deserves no merit.
C. Res judicata.
De Guzman likewise failed to convince the Court of the
applicability of the doctrine of res judicata for having been
charged of the same set of acts for which he had been
exculpated by the ISLES of the DOTC whose recommendation
for the dismissal of the complaint against De Guzman was
subsequently approved by then DOTC Asec. Jardiniano.
The Court agrees with PPC’s argument that there was no
formal charge filed by the DOTC against De Guzman and, as
such, the dismissal of the complaint against him by Asec.
Jardiniano, upon the recommendation of the ISLES, did not
amount to a dismissal on the merits that would bar the filing
of another case.
While the CA correctly pointed out that it was the DOTC,
through its Department Head, that had disciplinary
jurisdiction over employees of the then Bureau of Posts,
including De Guzman, it however proceeded upon the
94
presumption that De Guzman had been formally charged. But
he was not.
Pertinent is Section 16 of the Uniform Rules on Administrative
Cases in the Civil Service which reads as follows:
Section 16. Formal Charge. – After a finding of a prima facie
case, the disciplining authority shall formally charge the
person complained of. The formal charge shall contain a
specification of charge(s), a brief statement of material or
relevant facts, accompanied by certified true copies of the
documentary evidence, if any, sworn statements covering the
testimony of witnesses, a directive to answer the charge(s) in
writing under oath in not less than seventy-two (72) hours
from receipt thereof, an advice for the respondent to indicate
in his answer whether or not he elects a formal investigation
of the charge(s), and a notice that he is entitled to be
assisted by a counsel of his choice. (Emphasis supplied)
The requisite finding of a prima facie case before the
disciplining authority shall formally charge the person
complained of is reiterated in Section 9, Rule III (B) of the
Disciplinary Rules and Procedures of the PPC, to wit:
Section 9. FORMAL CHARGE. – When the Postmaster General
finds the existence of a prima facie case, the respondent shall
be formally charged. He shall be furnished copies of the
complaint, sworn statements and other documents submitted
by the complainant, unless he had already received the same
during the preliminary investigation. The respondent shall be
given at least seventy-two (72) hours from receipt of said
formal charge to submit his answer under oath, together with
the affidavits of his witnesses and other evidences, and a
statement indicating whether or not he elects a formal
investigation. He shall also be informed of his right to the
assistance of a counsel of his choice. If the respondent
already submitted his comment and counter-affidavits during
the preliminary investigation, he shall be given the
opportunity to submit additional evidence. (Emphasis
supplied)
The investigation conducted by the ISLES, which "provides,
performs, and coordinates security, intelligence, fact-finding,
and investigatory functions for the Secretary, the
Department, and Department-wide official undertakings,"70
was intended precisely for the purpose of determining
whether or not a prima facie case against De Guzman
existed. Due to insufficiency of evidence, however, no formal
charge was filed against De Guzman and the complaint
against him was dismissed by Asst. Secretary Jardiniano.
In order that res judicata may bar the institution of a
subsequent action, the following requisites must concur: (a)
the former judgment must be final; (b) it must have been
rendered by a court having jurisdiction over the subject
matter and the parties; (c) it must be a judgment on the
merits; and (d) there must be between the first and the
second actions (i) identity of parties, (ii) identity of subject
matter, and (iii) identity of cause of action.71
A judgment may be considered as one rendered on the
merits when it determines the rights and liabilities of the
parties based on the disclosed facts, irrespective of formal,
technical or dilatory objections; or when the judgment is
rendered after a determination of which party is right, as
distinguished from a judgment rendered upon some
preliminary or formal or merely technical point.72
In this case, there was no "judgment on the merits" in
contemplation of the above-stated definition.1âwphi1 The
dismissal of the complaint against De Guzman in the
Memorandum73 dated May 15, 1990 of Asec. Jardiniano was
a result of a fact-finding investigation only for purposes of
determining whether a prima facie case exists and a formal
charge for administrative offenses should be filed. This being
the case, no rights and liabilities of the parties were
determined therein with finality. In fact, the CA, conceding
that the ISLES was "a mere fact-finding body," pointed out
that the Memorandum74 dated February 26, 1990 issued by
Dir. Reyes recommending the dismissal of the complaint
against De Guzman "did not make any adjudication regarding
the rights of the parties."75
Hence, for the reasons above-discussed, the Court holds that
PPC did not gravely abuse its discretion when it revived the
case against De Guzman despite the previous dismissal
thereof by Asec. Jardiniano. Since said dismissal was not a
judgment on the merits, the doctrine of res judicata does not
apply.
In fine, due to the errors of the CA as herein detailed, the
Court hereby grants the present petition and accordingly
reverses and sets aside the farmer's dispositions. The
Resolutions dated November 23, 2004 and January 6, 2005 of
the PPC ordering De Guzman's dismissal from the service are
thus reinstated.
WHEREFORE, the petition is GRANTED. The Decision dated
April 4, 2006 and the Resolution dated July 19, 2006 of the
Court of Appeals in CA-G.R. SP No. 88891 are REVERSED and
SET ASIDE, and the Resolutions dated November 23, 2004
and January 6, 2005 of petitioner Philippine Postal
Corporation are hereby REINSTATED.
SO ORDERED.
95
G.R. No. 198583
ARLYN ALMARIO-TEMPLONUEVO, Petitioner
vs.
OFFICE OF THE OMBUDSMAN, THE HONORABLE
SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT and CHITO M. OYARDO, Respondents
DECISION
MENDOZA, J.:
This petition for review on certiorari under Rule 45 of the
Rules of Court seeks the review of the February 17, 2011 1
and the September 8, 2011 2 Resolutions of the Court of
Appeals (CA) in CA-G.R. SP No. 116229. The CA issuances
dismissed the petition for certiorari and prohibition filed by
petitioner Arlyn Almario-Templonuevo (Templonuevo), thus,
affirming the January 6, 2010 Decision3 of Office of the
Deputy Ombudsman for Luzon (Ombudsman) in OMB-L-A-08-
0097-B, finding her administratively liable for simple
misconduct. The complaint against her was filed by
respondent Chito M. Oyardo (Oyardo).
Factual Antecedents
Templonuevo was elected as Sangguniang Bayan Member of
the Municipality of Caramoan, Province of Catanduanes,
during the May 2007 elections. She served from July 1, 2007
to June 30, 2010. In the elections of May 2010, she was
elected as Municipal Vice Mayor of the same municipality.
In a complaint, docketed as OMB-L-A-08-0097-B, Oyardo
administratively charged Templonuevo before the
Ombudsman for violation of Sec. 2, par. I of Republic Act No.
9287.
In its January 6, 2010 Decision, the Deputy Ombudsman for
Luzon found petitioner guilty of simple misconduct and
imposed upon her the penalty of one month suspension
without pay. The dispositive portion of said decision reads:
WHEREFORE, premises considered, it is hereby respectfully
recommended that ARLYN ALMARIO-TEMPLONUEVO be
adjudged guilty of violation of simple misconduct and is
hereby imposed a penalty of one (1) month suspension from
office without pay pursuant to Section 7 Rule III of the
Administrative Order No. 07 as amended by Administrative
Order No. 17 in relation to Republic Act No. 6770.
The Honorable Secretary Ronaldo V. Puno, Department of
Interior and Local Government, is hereby directed to
implement this DECISION immediately upon receipt thereof
pursuant to Section 7, Rule III of Administrative Order No.
07, as amended by Administrative Order No. 17 (Ombudsman
Rules of Procedure) in relation to Memorandum Circular No.
1, Series of 2006 dated 11 April 2006 and to promptly inform
this office of the action taken hereon.
SO DECIDED.4
At the time Templonuevo received her copy of the January 6,
2010 Decision on September 27, 2010, her term as
Sangguniang Bayan Member had expired. She, however, was
elected as Vice Mayor of the same municipality.
Without filing a motion for reconsideration, Templonuevo
directly filed before the CA an original petition for certiorari
and prohibition under Rule 65 of the Rules of Court. She
claimed that the Ombudsman acted with grave abuse of
discretion in ordering her suspension at a time when her term
of office as Sangguniang Bayan Member had already expired
and she had been elected as Vice Mayor in the May 2010
elections.
In its February 17, 2011 Resolution,5 the CA dismissed
outright the petition on the ground of Templonuevo's failure
to file a motion for reconsideration. According to the CA, the
remedy of certiorari will not lie if other plain and speedy
remedies in the ordinary course of law such as a motion for
reconsideration are available, which, in this case, was not
sought after by Templonuevo.
Templonuevo moved for reconsideration, but her motion was
denied by the CA in its September 8, 2011 Resolution.
Aggrieved, Templonuevo elevated the case to this Court via
Rule 45 of the Rules of Court.
Hence, this petition.
Templonuevo asserts that the CA decided questions of
substance contrary to law and the applicable decisions of this
Court when her petition was dismissed outright on the
ground of failure to file a motion for reconsideration. She
claims that there was no need to file for reconsideration
considering that the Ombudsman's decision has become final,
executory and unappealable. She cites, as support, Section 7,
Rule III of Administrative Order No. 07, otherwise known as
the Rules of Procedure of the Ombudsman, as amended by
A.O. No. 17, which provides:
Section 7. Finality and execution of decision. - Where the
respondent is absolved of the charge, and in case of
conviction where the penalty imposed is public censure or
reprimand, suspension of not more than one month, or a fine
equivalent to one month salary, the decision shall be final,
executory and unappealable. In all other cases, the decision
may be appealed to the Court of Appeals in a verified petition
for review under the requirements and conditions set forth in
Rule 43 of the Rules of Court, within fifteen (15) days from
the receipt of the written Notice of the Decision or Order
denying the Motion for Reconsideration.
An appeal shall not stop the decision from being executory.
In case the penalty is suspension or removal and the
respondent wins such appeal, he shall be considered as
having been under preventive suspension and shall be paid
96
the salary and such other emoluments that he did not receive
by reason of the suspension or removal.
A decision of the Office of the Ombudsman in administrative
cases shall be executed as a matter of course. The Office of
the Ombudsman shall ensure that the decision shall be
strictly enforced and properly implemented. The refusal or
failure by any officer without just cause to comply with an
order of the Office of the Ombudsman to remove, suspend,
demote, fine or censure shall be ground for disciplinary action
against said officer.
To Templonuevo, said AO makes a motion for reconsideration
unavailable in cases where a respondent is absolved of the
charge or in cases of conviction where the penalty imposed is
public censure or reprimand, suspension of not more than
one month, or a fine of equivalent to one month salary.
Considering that she was given the penalty of one-month
suspension only, her only remedy then was to file a petition
for certiorari under Rule 65 of the Rules of Court.
In furtherance of her position, Templonuevo cites Office of
the Ombudsman v. Alano,6 wherein the Court ruled that a
resolution or order of the Ombudsman becomes final and
unappealable in the instances mentioned by her. The effect
of such finality, in her view, is simple - that the motion for
reconsideration is not required before resorting to the
extraordinary remedy of certiorari. This was, according to
her, the same conclusion reached by the Court in Reyes, Jr.
v. Belisario.7 There, it was held that the complainant therein
was not entitled to any corrective recourse, whether by
motion for reconsideration, or by appeal to the courts, to
effect a reversal of the exoneration. The Court further held
that despite such a fact, courts are still empowered by the
Constitution to determine whether there has been grave
abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government.
Templonuevo, thus, believes that because the decision of the
Ombudsman in her case was immediately final, executory and
unappealable, the same could no longer be reviewed by the
said office and as such a motion for reconsideration would be
an exercise in futility. The CA should have taken note of that
fact and such a failure amounts to an error, says petitioner.
Templonuevo likewise calls the Court's attention to the fact
that the misconduct for which she was penalized was
committed when she was still a Sangguniang Bayan Member.
As she was elected Vice Mayor of the same municipality in
2010, she claims that such election resulted in the
condonation of her administrative liability on acts committed
during her previous post. She cites the case of Pascual v.
Hon. Provincial Board of Nueva Ecija, 8 where this Court held
that the re-election to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off the
right to remove him therefrom. Consequently, the decision of
the Ombudsman is in her view a patent nullity.
On November 16, 2011, the Court resolved to require the
respondents to comment on the petition and also issued a
Temporary Restraining Order enjoining the respondents from
implementing the Decision of the Office of the Ombudsman.
9
On December 2, 2011, the Office of the Solicitor General
(OSG) filed a Manifestation and Motion (in Lieu of Comment),
10 stating that the arguments raised by it in its Manifestation
and Motion (in Lieu of Comment), dated April 26, 2011 and
filed on April 28, 2011 with the CA, was exhaustive enough to
serve as its comment on the present petition. The OSG in the
pleadings it filed with the CA took the side of Templonuevo.
It, thus, asserts that by virtue of AO No. 7, as amended, a
decision of Ombudsman imposing a penalty of not more than
one (1) month is final, executory and unappealable and, as
such, a motion for reconsideration or appeal is not an
available remedy. It also claimed that the subsequent
reelection of Templonuevo precludes the imposition and
execution of the penalty by virtue of the long standing
doctrine of condonation.
In its Comment on the Petition For Review on Certiorari with
Leave of Court (With Motion to Recall the Temporary
Restraining Order with Opposition to the Issuance of a Writ of
Preliminary Injunction), 11 the Ombudsman submits that
Section 7, Rule III, Administrative Order No. 07, as amended,
allows the filing of motions for reconsideration on its
decisions that impose one month suspension; that a plethora
of jurisprudence reveals that the Condonation Doctrine was
applied by the Supreme Court only in cases where there was
re-election to the same position; and that, the issuance of a
temporary restraining order was erroneous and the error
should not be extended with the issuance of a writ of
preliminary injunction which the law proscribes.
In the meantime, Templonuevo filed a Manifestation in Lieu
of Compliance12 with the January 25, 2012 Resolution which
ordered her to furnish this Court with the current address of
Oyardo. She stated therein that she did not know the present
address of Oyardo, who was not a permanent resident of
Caramoan, and that no forwarding address was left behind.
In its July 18, 2012 Resolution,13 the Court noted the
manifestation and required the Ombudsman to furnish the
address of Oyardo. This was complied with. 14
Oyardo still failed to file his Comment on the petition. As
such, in the Court's September 14, 2015 Resolution, 15
Oyardo's right to file his comment was deemed waived. In
the same Resolution, the Court required Templonuevo to file
her Reply to the manifestation and motion of the OSG, dated
December 1, 2011, and to the Comment on the Petition for
Review on Certiorari with Leave of Court filed by the
Ombudsman.
Until now, no reply has been filed by Templonuevo. She is
deemed to have waived her right to file it.
97
Issues
A reading of the pleadings filed by the parties reveals that the
issues are as follows:
1. Whether the CA committed an error in dismissing outright
the petition filed by Templonuevo on the ground of failure to
file a motion for reconsideration from the decision of the
Ombudsman finding her administratively liable and imposing
upon her a penalty of one month suspension.1âwphi1
2. Whether the CA committed an error in not treating the
election of Templonuevo as Vice Mayor of the same
municipality as an event that precludes the imposition of the
one month suspension penalty following the doctrine of
condonation.
The Ruling of the Court
The Court grants the petition.
A motion for reconsideration is not required where the
penalty imposed by the Ombudsman is one month
suspension before a petition under Rule 65 can be filed.
The settled rule is that a motion for reconsideration is a
condition sine qua non for the filing of a petition for certiorari.
16 Its purpose is to grant an opportunity for the court to
correct any actual or perceived error attributed to it by re-
examination of the legal and factual circumstances of the
case. 17
This rule, however, admits well-defined exceptions, such as
(a) where the order is a patent nullity, as where the court a
quo has no jurisdiction; (b) where the questions raised in the
certiorari proceedings have been duly raised and passed upon
by the lower court, or are the same as those raised and
passed upon in the lower court; (c) where there is an urgent
necessity for the resolution of the question and any further
delay would prejudice the interests of the Government or of
the petitioner or the subject matter of the action is
perishable; (d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was
deprived of due process and there is extreme urgency for
relief; (t) where, in a criminal case, relief from an order of
arrest is urgent and the granting of such relief by the trial
court is improbable; (g) where the proceedings in the lower
court are a nullity for lack of due process; (h) where the
proceeding were ex parte or in which the petitioner had no
opportunity to object; and (i) where the issue raised is one
purely of law or where public interest is involved. 18
Templonuevo contended that her non-filing of a motion for
reconsideration of the assailed Ombudsman decision was
justified because it would be useless. She claims that the
assailed decision was final, executory and unappealable,
hence, beyond the ambit of a motion for reconsideration
following Section 7, Rule III of Administrative Order No. 07.
She also argued that the Ombudsman's decision was a patent
nullity considering that her election as Vice Mayor of the
same municipality precluded the attachment to her of any
administrative liability arising from the acts done while she
was a Sangguniang Bayan Member.
The Court agrees with Templonuevo on her first position.
In Ombudsman v. Alano, 19 the Court stressed that Section
13(8), Article XI of the 1987 Constitution empowers the
Office of the Ombudsman to, among others, "promulgate its
rules of procedure and exercise such other powers or perform
such functions or duties as may be provided by law."
Pursuant to such constitutional authority, Administrative
Order No. 07 (otherwise known as the "Rules of Procedure of
the Office of the Ombudsman"), dated April 10, 1990, was
issued. Section 7, Rule III thereof provides:
SEC. 7. Finality of decision. - Where the respondent is
absolved of the charge, and in case of conviction where the
penalty imposed is public censure or reprimand, suspension
of not more than one month, or a fine equivalent to one
month salary, the decision shall be final and unappealable. In
all other cases, the decision shall become final after the
expiration of ten (10) days from receipt thereof by the
respondent, unless a motion for reconsideration or petition
for certiorari shall have been filed by him as prescribed in
Section 27 of RA 6770.
The Court, in interpreting the above constitutional and
statutory provisions, recognizes only two instances where a
decision of the Ombudsman is considered as final and
unappealable and, thus, immediately executory. The first is
when the respondent is absolved of the charge; and second
is, in case of conviction, where the penalty imposed is public
censure or reprimand, suspension of not more than one
month, or a fine equivalent to one month salary.
In this case, Templonuevo was meted with a penalty of one
month suspension. Accordingly, the decision of the
Ombudsman is final, unappealable and immediately
executory.
Being the case, the Ombudsman's decision was beyond the
reach of an appeal or even of a motion for
reconsideration.1âwphi1 This was the same ruling in Reyes v.
Belisario,20 where the Court explained that a complainant
was not entitled to any corrective recourse by motion for
reconsideration in the Ombudsman, or by appeal to the
courts if the penalty imposed was higher than public censure,
reprimand, one-month suspension or a fine equivalent to a
one month salary. It was further written:
The clear import of Section 7, Rule III of the Ombudsman
Rules is to deny the complainant in an administrative
complaint the right to appeal where the Ombudsman has
exonerated the respondent of the administrative charge. The
complainant, therefore, is not entitled to any corrective
recourse, whether by motion for reconsideration in the Office
of the Ombudsman, or by appeal to the courts, to effect a
98
reversal of the exoneration. Only the respondent is granted
the right to appeal but only in case he is found liable and the
penalty imposed is higher than public censure, reprimand,
one-month suspension or fine equivalent to one month
salary.21
Left without any remedy in the ordinary course of law,
Templonuevo was justified in resorting directly to the CA via
a Rule 65 petition. Indeed, an independent action for
certiorari may be availed of only when there is no appeal or
any plain, speedy and adequate remedy in the ordinary
course of law and certiorari is not a substitute for the lapsed
remedy of appeal. 22 In other words, because petitioner
could not avail a motion for reconsideration or an appeal, her
choice of a Rule 65 petition was proper.
The decision of the Ombudsman was not a patent nullity;
Condonation doctrine applies.
Templonuevo claimed that the decision of the Ombudsman
was null and void as the penalty imposed could no longer be
imposed on account of her election as Vice Mayor of the
same municipality, which to her, operated as forgiveness by
her constituents for the acts done while she was still a
Sangguniang Bayan Member. This "theory of nullity," in a
sense, does not hold water. The Ombudsman decided the
case prior to the May 2010 elections. At that
time,Templonuevo remained an incumbent and no event had
transpired yet which would have had an effect on her liability
for the acts done during her previous term. As the elections
for 2010 did not happen yet, nothing could have substantially
changed the course of action of the Ombudsman.
elective official's re-election serves as a condonation of
previous misconduct, thereby cutting the right to remove him
therefor; and third, courts may not deprive the electorate,
who are assumed to have known the life and character of
candidates, of their right to elect officers. In this case, it is a
given fact that the body politic, who elected him to another
office, was the same. [Emphasis supplied]
In this case, those who elected Templonuevo into office as
Sangguniang Bayan member and Vice Mayor were essentially
the same. Stated otherwise, the electorate for the Vice Mayor
of a municipality embraces wholly those voting for a member
of the Sangguniang Bayan. Logically, the condonation
doctrine is applicable in her case. The Court is, thus,
precluded from imposing the administrative penalties of one
month suspension on account of the same people's decision
to elect her again to office.
WHEREFORE, the petition is GRANTED. The February 17,
2011 and September 8, 2011 Resolutions of the Court of
Appeals in CA-G.R. SP No. 116229 are hereby REVERSED and
SET ASIDE. The act committed by petitioner Arlyn Almario-
Templonuevo is deemed CONDONED.
SO ORDERED.

The election of 2010, however, became material only when

the Ombudsman's decision was on appeal. It is at this stage
that the CA, should have considered Templonuevo's election
as Vice Mayor as rendering the imposition of administrative
sanctions moot and academic on the basis of the condonation
doctrine. Said doctrine, despite its abandonment in Conchita
Carpio-Morales v. Court of Appeals and Jejomar Erwin S.
Binay, Jr., (Carpio-Morales), 23 still applies in this case as the
effect of the abandonment was made prospective in
application.

In Giron v. Ochoa,24 the Court recognized that the doctrine

can be applied to a public officer who was elected to a
different position provided that it is shown that the body
politic electing the person to another office is the same. Thus,
the Court ruled:

On this issue, considering the ratio decidendi behind the

doctrine, the Court agrees with the interpretation of the
administrative tribunals below that the condonation doctrine
applies to a public official elected to another office. The
underlying theory is that each term is separate from other
terms. Thus, in Carpio-Morales, the basic considerations are
the following: first, the penalty of removal may not be
extended beyond the term in which the public officer was
elected for each term is separate and distinct; second, an
99
G.R. No. 180364 December 3, 2014
TZE SUN WONG, Petitioner,
vs.
KENNY WONG, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated May 15, 2007 and the Resolution3 dated
October 23, 2007 of the Court of Appeals (CA) in CA-G.R. SP
No. 92607, affirming the deportation of petitioner Tze Sun
Wong (petitioner).
The Facts
Petitioner is a Chinese citizen who immigrated to the
Philippines in 1975 and subsequently acquired a permanent
resident status in 1982. As the records would show, he
studied, married, and continued to reside in the country, and
even owned a company called Happy Sun Travel and Tours.4
On September 12, 2000, respondent Kenny Wong
(respondent), owner and proprietor of San Andres
Construction Supply, filed a Complaint Affidavit5 against
petitioner before the Bureau of Immigration (BOI), alleging
that the latter had misrepresented, in his driver’s license
application, that he was a Filipino citizen. Respondent also
averred that petitioner and his business partner, Tina Yu,
issued post-dated checks in the amount of 886,922.00 which,
however, bounced to his damage and prejudice. Thus, taking
cue from the foregoing acts, respondent prayed that
petitioner be investigated by the BOI for violation of
immigration laws.6
In his Counter-Affidavit7 dated September 28, 2000,
petitioner denied respondent’s claim of misrepresentation,
stating that when he applied for a driver’s license, it was
another person who filled up the application form for him.
However, said person entered the wrong information,
particularly, on his name, birth year, and nationality.8
Finding probable cause, the Special Prosecutor filed with the
BOI the applicable deportation charges9 against petitioner,
docketed as BSI-D.C. No. ADD-02-280.10 Thereafter, the BOI
Commissioner issued a Mission Order11 to verify petitioner’s
immigration status. The Mission Order was later recalled12
and the Law and Investigation Division endorsed the records
to the Board of Special Inquiry which directed the parties to
submit their respective memoranda.13
The BOI Ruling
In a Judgment14 dated October 2, 2002,the BOI Board of
Commissioners ordered the deportation of petitioner on the
grounds of: (a) illegal use of alias, i.e., Joseph Wong, which
was the name appearing in his driver’s license application;
and (b) misrepresenting himself as a Filipino citizen in the
same application, in violation of Section 37 (a) (7) and (9)15
of Commonwealth Act No. 613,16 otherwise known as "The
Philippine Immigration Act of 1940" (Immigration Act), in
relation to Sections 1, 2, and 317 of Republic Act No. (RA)
6085.18 Aside from pointing out the misrepresentations made
by petitioner, the BOI took judicial notice of the fact that
driver’s license applications require the personal appearance
of the applicant in order to prevent fraud. Thus, by allowing
someone to apply for him, he actively involved himself in the
preparation and issuance of a fraudulent driver’s license. By
the same account, he cannot then aver that he was without
any participation in the entry of his supposed Philippine
citizenship in his driver’s license.19
Petitioner filed a motion for reconsideration20 which was
eventually denied by the BOI in a Resolution21 dated
December 4, 2002. As such, petitioner filed an appeal before
the Secretary of Justice.
The Secretary of Justice Ruling
In a Resolution22 dated March 22, 2004, Acting Secretary of
Justice Ma. Merceditas N. Gutierrez affirmed the ruling of the
BOI, holding that since it undisputedly appears on the faceof
petitioner’s driver’s license that he is a Filipino citizen under
the name of Joseph Wong, he cannot then raise the defense
that it was not his doing but that of a stranger who merely
helped him.23 It was further pointed out that petitioner’s use
of the alias "Joseph Wong" was illegal since said name is
notregistered in the BOI and does not fall under the
recognized exceptions where use of alias may be allowed.24
Petitioner moved for reconsideration25 and raised the
argument that the Judgment of the BOI was null and void
since only two commissioners26 participated in the decision-
making process. Secretary of Justice Raul M. Gonzalez
rendered a Resolution27 dated September 9, 2005, rejecting
petitioner’s argument on the basis of Section 8 of the
Immigration Act which simply requires that "[i]n any case
coming before the [BOI] Board of Commissioners, the
decision of any two members shall prevail[,]" as in this case.
It was added that when petitioner sought to reconsider said
Judgment, all four (4) commissioners28 decided in favor of
his deportation.29
Dissatisfied, petitioner filed a petition for certiorari30 before
the CA.
The CA Ruling
In a Decision31 dated May 15, 2007, the CA denied32 the
certiorari petition. Preliminarily, it found that petitioner chose
the wrong remedy considering that the decisions of the BOI
Board of Commissioners are directly appealable to the CA
under Rule 43 of the Rules of Court.33 The CA also observed
that even on the assumption that the Secretary of Justice was
given the authority to countermand the BOI Judgment under
the Administrative Code, no countermand was made, and
100
hence, the same should have already attained finality.34 On
the substantive aspects, the CA affirmed the ruling of the
Secretary of Justice that petitioner should be deported for
violating the abovementioned rules.35
Petitioner sought reconsideration36 but was denied in a
Resolution37 dated October 23, 2007, hence, this petition.
The Issue Before the Court
The sole issue for the Court’s resolution is whether or not the
CA correctly denied petitioner’s petition for certiorari.
The Court’s Ruling
The petition is without merit.
The Court first discusses the propriety of petitioner’s recourse
before the CA.
Section 1, Rule 43 of the Rules of Court clearly states that
decisions of any quasi-judicial agency in the exercise of its
quasi-judicial functions (except to judgments or final
ordersissued under the Labor Code of the Philippines) shall
be appealed to the CA under this rule.
RULE 43
Appeals From the Court of Tax Appeals and Quasi-Judicial
Agencies to the Court of Appeals Section 1. Scope. — This
Rule shall apply to appeals from judgments or final orders of
the Court of Tax Appeals and from awards, judgments, final
orders or resolutions of or authorized by any quasijudicial
agency in the exercise of its quasi-judicial functions. Among
these agencies are the Civil Service Commission, Central
Board of Assessment Appeals, Securities and Exchange
Commission, Office of the President, Land Registration
Authority, Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and Technology
Transfer, National Electrification Administration, Energy
Regulatory Board, National Telecommunications Commission,
Department of Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
Compensation Commission, Agricultural Inventions Board,
Insurance Commission, Philippine Atomic Energy Commission,
Board of Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law.
(Emphasis supplied)
The statutory basis of the CA’s appellate jurisdiction over
decisions rendered by quasi-judicial agencies (except those
falling within the appellate jurisdiction of the Supreme Court
inaccordance with the Constitution, the Labor Code of the
Philippines under Presidential Decree No. 442) in the
abovementioned respect is Section 9 (3) of Batas Pambansa
Bilang 129,38 as amended:39
Section 9. Jurisdiction. – The Court of Appeals shall exercise:
xxxx
(3) Exclusive appellate jurisdiction over all final judgments,
decisions resolutions, orders or awards of Regional Trial
Courts and quasi-judicial agencies, instrumentalities, boards
or commissions, including the Securities and Exchange
Commission, the Social Security Commission, the Employees
Compensation Commission and the Civil Service Commission,
except those falling withinthe appellate jurisdiction of the
Supreme Court in accordance with the Constitution, the Labor
Code of the Philippines under Presidential Decree No. 442, as
amended, the provisions of this Act, and of subparagraph (1)
of the third paragraph and subparagraph (4) of the fourth
paragraph of Section 17 of the Judiciary Act of 1948.
xxxx
Notably, in Cayao-Lasam v. Spouses Ramolete,40 it was
clarified that the enumeration of the quasi-judicial agencies
under Section 1, Rule 43 is not exclusive:
The Rule expressly provides that it should be applied to
appeals from awards, judgments, final orders or resolutions
of any quasi-judicial agency in the exercise of its quasi-
judicial functions. The phrase "among these agencies"
confirms that the enumeration made in the Rule is not
exclusive to the agencies therein listed.41
Thus, although unmentioned in the enumeration, the Court,
in the case of Dwikarna v. Hon. Domingo42 (Dwikarna), held
that the decisions rendered by the BOI Board of
Commissioners may be appealable to the CA via Rule 43 in
the event that a motion for reconsideration therefrom is
denied:
If petitioner is dissatisfied with the decision of the Board of
Commissioners of the Bureau of Immigration, he can move
for its reconsideration. If his motion is denied, thenhe can
elevate his case by way of a petition for review before the
Court of Appeals, pursuant to Section 1, Rule 43 of the 1997
Rules of Civil Procedure.43 (Emphasis supplied)
It bears elucidation that the availability of a Rule 43 appeal to
the CA from the BOI Board of Commissioners as ruled in
Dwikarna presupposes the presence of any of the exceptions
to the doctrine of exhaustion of administrative remedies,44
considering that the Secretary of Justice may still review the
decisions of the aforesaid body. In Caoile v. Vivo45 (Caoile),
it was held: [S]ince the Commissioners of Immigration are
under the Department of Justice46 and, in this case, they
followed the Secretary’s Order setting aside the individual
actions of the former Commissioners, the aggrieved parties
should have exhausted their administrative remedies by
appealing to the Secretary before seeking judicial
intervention.47
Citing Caoile, the Court, in the more recent case of Kiani v.
The Bureau of Immigration and Deportation,48 expounded on
the procedure:
101

Under Section 8, Chapter 3, TitleI, Book III of Executive
Order No. 292, the power to deport aliens isvested on the
President of the Philippines, subject to the requirements of
due process. The Immigration Commissioner is vested with
authority to deport aliens under Section 37 of the Philippine
Immigration Act of 1940, as amended.49 Thus, a party
aggrieved by a Deportation Order issued by the [Board of
Commissioner (BOC)] is proscribed from assailing said Order
in the RTC even via a petition for a writ of habeas corpus.
Conformably with [the] ruling of the Court in [Commissioner]
Domingo v. Scheer(see 466 Phil. 235, 264-284 [2004]), such
party may file a motion for the reconsideration thereof before
the BOC. The Court ruled therein that "there is no law or rule
which provides that a Summary Deportation Order issued by
the BOC in the exercise of its authority becomes final after
one year from its issuance, or that the aggrieved party is
barred from filing a motion for a reconsideration of any order
or decision of the BOC." The Court, likewise, declared that in
deportation proceedings, the Rules of Court may be applied
in a suppletory manner and that the aggrieved party may file
a motion for reconsideration of a decision or final order under
Rule 37 of said Rules.
In case such motion for reconsideration is denied by the BOC,
the aggrieved party may appeal to the Secretary of Justice
and, if the latter denies the appeal, to the Office of the
President of the Philippines [(OP)]. The party may also
choose to file a petition for certiorariwith the CA under Rule
65 of the Rules of Court, on the ground that the Secretary of
Justice acted with grave abuse of discretion amounting to
excess or lack of jurisdiction in dismissing the appeal, the
remedy of appeal not being adequate and speedy remedy. In
case the Secretary of Justice dismisses the appeal, the
aggrieved party may resort to filing a petition for review
under Rule 43 of the Rules of Court, as amended.50
Thus, to recap, from the denial of the BOI Board of
Commissioners’ motion for reconsideration, the aggrieved
party has three (3) options: (a) he may file an appeal directly
to the CA via Rule 43 provided that he shows that any of the
exceptions to the exhaustion doctrine attend; (b) absent any
of the exceptions, he may exhaust the available
administrative remedies within the executive machinery,
namely, an appeal to the Secretary of Justice and then to the
OP, and thereafter, appeal the OP’s decisions via Rule 43;51
or (c) he may directly resort to certiorari before the CA
strictly on jurisdictional grounds, provided that he explains
why any of the aforementioned remedies cannot be taken as
"adequate and speedy." Anent the last of these options, the
Court, inRigor v. CA,52 had this to say:
For a writ of certiorarito issue, a petitioner must not only
prove that the tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without orin excess of
jurisdiction. He must also show that he has no plain, speedy
and adequate remedy in the ordinary course of law against
whathe perceives to be a legitimate grievance. A recourse
affording prompt relief from the injurious effects of the
judgment or acts of a lower court or tribunal is considered
"plain, speedy and adequate" remedy.53
Case law explains that "[a] remedy isplain, speedy and
adequate if it will promptly relieve the petitioner from the
injurious effects of the judgment, order, or resolution of the
lower court or agency."54 In this relation, it has been
recognized that the extraordinary remedy of certiorari may be
deemed proper "when it is necessary to prevent irreparable
damages and injury to a party, x x x where an appeal would
be slow, inadequate, and insufficient, x x x and x x x in case
of urgency."55
In this case, petitioner instituted anadministrative appeal
before the Secretary of Justice and thereafter sought direct
recourse to the CA via certiorari, thereby leap-frogging other
available remedies, the first being a subsequent
administrative appeal to the OP and, eventually, an appeal of
the OP decision to the CA via Rule 43. While these remedies
remained available to him, the Court deems that they would
not afford him speedy and adequate relief in view of the plain
imminence of his deportation, by virtue of the issuance of a
warrant of deportation.56 The urgency of such circumstance
therefore justified his direct resort to certiorari.
This notwithstanding, the Court nonetheless denies the
petition on substantive grounds.
It must be highlighted that the case under consideration
essentially calls for the Court to determine whether the CA’s
dismissal of petitioner’s certioraripetition before it was
correct.
"In a special civil action for certiorari brought against a court
with jurisdiction over a case, the petitioner carries the burden
to prove that the respondent tribunal committed not merelya
reversible error but a grave abuse of discretion amounting to
lack orexcess of jurisdiction in issuing the impugned order.
Showing mere abuse ofdiscretion is not enough, for the
abuse must be shown to be grave. Grave abuse of discretion
means either that the judicial or quasi-judicial power was
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, or that the respondent judge,
tribunal or board evaded a positive duty, or virtually refused
to perform the duty enjoined or to act in contemplation of
law, such as when such judge, tribunal or board exercising
judicial or quasi-judicial powers acted in a capricious or
whimsical manner as to be equivalent to lack of
jurisdiction."57
Petitioner’s certiorari petition before the CA basically revolves
on his denial of the acts of misrepresentation imputed against
him, claiming that the same do not warrant his deportation.
However, the commission of said acts involves factual
matters that have already been established during the
proceedings before the BOI Board of Commissioners. In this
regard, it is crucial to point out that "[t]he Bureau is the
agency that can best determine whether petitioner violated
certain provisions of the Philippine Immigration Act of 1940,
102
as amended. In this jurisdiction, courts will not interfere in
matters which are addressed to the sound discretion of
government agencies entrusted with the regulation of
activities coming under the special technical knowledge and
training of such agencies. By reason of the special knowledge
and expertise of administrative departments over matters
falling within their jurisdiction, they are in a better position to
pass judgment thereon and their findings of fact in that
regard are generally accorded respect, if not finality, by the
courts."58 As petitioner has not sufficiently demonstrated any
cogent reason to deviate from the BOI Board of
Commissioners’ findings, courts are wont to defer to its
judgment.
Besides, petitioner’s defenses anent what had actually
transpired during the relevant incidents surrounding his
driver’s license application apparently constitute mere self-
serving allegations barren of any independent proof. While he
blamed the unnamed fixer filling up the erroneous details in
his application, his version of the story remained
uncorroborated. The lack of testimony on the part of the fixer
leaves much to be desired from petitioner’s theory.
Moreover, the Court’s review of the present case is via a
petition for review under Rule 45 of the Rules of Court, which
generally bars any question pertaining to the factual
issuesraised. The well-settled rule is that questions of fact are
not reviewable in petitions for review under Rule 45, subject
only to certain exceptions, among them, the lack of sufficient
support in evidence of the trial court’s judgment or the
appellate court’s misapprehension of the adduced facts.59
None of these exceptions was, however, convincingly shown
toattend in this case.
Now, on the matter of the alleged nullity of the BOI Board of
Commissioners’ Judgment due to the fact that it had been
signed only by two (2) commissioners, suffice it to state that
Section 8 of the Immigration Act simply requires that in any
case coming before the BOI Board of Commissioners, the
decision of any two (2) members shall prevail:
BOARD OF COMMISSIONERS
Sec. 8. Decision of the Board. - The board of Commissioners,
hereinafter referred to in this Act, shall be composed of the
Commissioner of Immigration and the two Deputy
Commissioners. In the absence of a member of the Board,
the Department Head shall designate an officer or employee
in the Bureau of Immigration to serve as a member thereof.
In any case coming before the Board of Commissioners, the
decision of any two members shall prevail.
Petitioner argues that the foregoing rule only refers to the
number of votes necessary to constitute the decision of the
Board, insisting that deliberation should still bemade by all
commissioners as a collegial body.60
Petitioner’s argument is correct in theory since deliberation by
all members of the collegial body is evidently what the rule
contemplates, with the votes of only two (2) members being
sufficient for a decision to prevail. Unfortunately, however,
petitioner has not shown any proof that deliberations were
not conducted by all commissioners before the questioned
Judgment was made. The rule is well-settled that he who
alleges a fact has the burden of proving it and a mere
allegation is not evidence.61 Thus, once more, his self-
serving assertion cannot begiven credence. This is especially
so in light of the presumption of regularity, which herein
ought to prevail due to the absence of any clear and
convincing evidence to the contrary. Bustillo v. People62
states:
The presumption of regularity of official acts may be rebutted
by affirmative evidence of irregularity or failure to perform a
duty.1âwphi1 The presumption, however, prevails until itis
overcome by no less than clear and convincing evidence to
the contrary. Thus, unless the presumption is rebutted, it
becomes conclusive. Every reasonable intendment will be
made in support of the presumption and in case of doubt as
to an officer’s act being lawful or unlawful, construction
should be in favor of its lawfulness.63
In particular, the presumption that the Judgment had been
deliberated by the BOI Board of Commissioners as a collegial
body stands. In any event, the lack of any concurrence or
dissension from the two (2) other commissioners missing on
the face of the October 2, 2002 Judgment has already been
placated by their eventualsigning of full concurrence in the
subsequent Resolution dated December 4, 2002 denying
petitioner’s motion for reconsideration. WHEREFORE, the
petition is DENIED. The Decision dated May 15, 2007 and the
Resolution dated October 23, 2007 of the Court of Appeals in
CA-G.R. SP No. 92607 are hereby AFFIRMED.
SO ORDERED.
103
G.R. No. 74687 November 12, 1987
ANTONIO DE LEON, petitioner,
vs.
HEIRS OF GREGORIO REYES, OFFICE OF THE
PRESIDENTIAL ASSISTANT FOR LEGAL AFFAIRS, thru
MANUEL LAZARO, (now OFFICE OF THE EXECUTIVE
SECRETARY), respondents.
CRUZ, J.:
The land in dispute is located in Sta. Quiteria, Caloocan City
and has an area of 13,956 square meters. It is the subject of
two separate applications, one for sale filed by the late
Gregorio Reyes on December 21, 1967, and the other for free
patent filed by petitioner Antonio de Leon on September 23,
1968. Both are based on the claim of actual possession. To
resolve the conflict, the Bureau of Lands conducted an
investigation and after hearing ruled against Gregorio Reyes,
1 who appealed to the Ministry of Natural Resources. The
decision of the Bureau of Lands was there set aside by the
assistant secretary for legal affairs, 2 but he was himself, on
motion for reconsideration, reversed by the Minister.3 The
private respondents * then elevated the case to the Office of
the President, where they were sustained. 4 The subsequent
motion for reconsideration of the petitioner was denied. 5
This petition for certiorari under Rule 65 of the Rules of Court
was originally dismissed, and the first motion for
reconsideration was denied. We held that the issues raised
were mainly factual and there was no showing that the
findings thereon were not supported by substantial evidence.
Upon the filing with leave of a second motion for
reconsideration, the Court decided to take a harder look at
the case, set aside the earlier dismissal of the petition and
gave due course thereto, requiring the parties to file
memoranda. 6
As a matter of law and policy, this Court does not review the
factual findings of administrative bodies as long as there is
substantial evidence to support them. Only in exceptional
cases do we deviate from this discipline, which is based on a
proper respect for the decisions of a coordinate department
and a just recognition of its expertise on matters coming
under its direct jurisdiction. After the thorough study of the
pleadings filed by the parties, and of the antecedent
proceedings, we find that this is one occasion for such
deviation. The Court feels that there is justification to review
the decision here questioned on the challenge that it was
issued with grave abuse of discretion by the public
respondent.
The reversal was made by then Presidential Assistant for
Legal Affairs Manuel M. Lazaro on December 19, 1985. The
petitioner's motion for reconsideration was subsequently
denied on April 29, 1986, on the ground that there was "no
strong and cogent reason to warrant the reversal or
modification of the decision."
The questioned decision was based on the reports made by
Land Investigator Pablo Bautista on November 7, 1967, and
December 21, 1967, as corroborated by Land Surveyor
Medardo Habal after his survey of the disputed land on
November 29, 1967. Bautista found that the private
respondent had been in possession of the land in question
since 1950, had planted it to fruit trees and seasonal crops,
and that no other person was occupying it. 7 Habal, for his
part, said that no one else was claiming the land, nobody had
protested his survey, and that there was no house on the
said property. 8
The public respondent also noted that it was only on
December 3, 1968, that the petitioner had declared the said
land for taxation purposes, retroactive to 1965. This was
deemed an indication that the petitioner was not really in
possession thereof as he claimed and had filed the
declaration only to support his free patent application. 9
To bolster these findings, the private respondents submit that
the land in dispute was part of the lot from the Piedad Estate
which had been sold on July 16, 1931, to the Bartolome
spouses and that this portion had merely been inadvertently
omitted in the technical description of the said lot. Even so, it
was occupied by the Bartolomes (including Gregorio Reyes
and his wife, who was a daughter of the Bartolomes) along
with the rest of the lot since its purchase in the aforesaid
year. 10
Conversely, the petitioner points to the finding of the Bureau
of Lands, is affirmed by the Ministry of Natural Resources,
that his father, Simeon de Leon, had been in possession of
the disputed land since 1925 and until his death in 1950. His
possession was then continued by the petitioner. According to
Land Investigator Jose B. Isidro, who inspected the land on
October 30, 1968, it was planted by the petitioner and his
father to fruit-bearing trees, and there were two nipa huts
thereon, one belonging to the petitioner and the other to his
daughter, Catalina. 11 Another report, filed this time by Land
Investigator Romeo Salvador, found that the petitioner's
possession was discontinued only in 1969 when Gregorio
Reyes forced himself into the land in dispute and with the aid
of armed men bulldozed the trees and plants thereon. The
petitioner complained to the Bureau of Lands, which issued a
status quo order on May 4, 1970. Nevertheless, Reyes
ignored the same and in violation of the order and the Public
Land Act, leased the land to
Hi-Protein Corporation, which introduced its own
improvements on the property. 12
While there is no disputing the authority of administrative
superiors to reverse the findings of their subordinates, this
power must be exercised sparingly and only upon a clear
showing of error. Lacking such flaw, the decision of the lower
administrative officials should be sustained, if only because
they have closer access to the problem sought to be resolved
and have the direct opportunity to question the parties and
their witnesses and to assess the evidence first-hand.
104

The hearing officer of the Bureau of Lands, who made the
initial investigation in the case at bar, had such an
opportunity. It was Jose B. Isidro who conducted the
hearings to resolve the conflicting claims of possession of the
petitioner and Gregorio Reyes, examined them and their
witnesses and inspected the disputed property. His report of
December 5, 1968, was in favor of the petitioners. Notably,
not even the private respondents impugn his integrity and
impartiality and in fact even cite him to support their own
position that de Leon had abandoned the property by selling
it in 1968 and 1969. 13
By contrast, the motives of both Bautista and Habal have
been questioned by the petitioner, and for good reason. The
record shows that it was Bautista who advised Gregorio
Reyes to file his sales application, 14 and by some
happenstance it was also Bautista who was assigned to
investigate the same. It is also not denied that Habal was
retained by Reyes to conduct the survey of the land in
dispute, presumably for a corresponding compensation, 15
Given such circumstances, we find it not unreasonable to
suppose, and even expect, that the reports of these two
individuals would be, as in fact they were, favorable to Reyes.
It is worth noting that in his decision reversing the Ministry of
Natural Resources, the public respondent merely rejected the
report of Isidro and opted in favor of the reports of Bautista
and Habal, but without saying why except to note that
Bautista's report was earlier. No effort was made to explain
away their apparent bias as directly challenged by the
petitioner. The reports were simply and completely accepted
to sustain the private respondents' stand. 'There was also no
mention of land Investigator Salvado, who reported on
August 12, 1983, that Reyes had violated the status quo
order of the Bureau of lands and recommended that he be
held civilly and criminally liable. this report was totally
ignored.
Besides invoking the reports of Isidro and Salvado, the
petitioner presented two witnesses who both testified that he
and his father had been in continuous possession of the land
in dispute, raising fruit-bearing trees there. Pastor
Buenaventura swore he was born In Sta. Quiteria in 1917 and
Ricardo Javier claimed he transferred to the place in 1938,
and both were positive that the de Leon father and son were
occupying the disputed property until it was bulldozed in
1969. 16 Giving credence to this evidence, the Bureau of
lands in its decision declared:
Evidence for the protestant (herein petitioner) bears heavily
upon the facts that he has been in actual and physical control
of the property since 1925 through his predecessor-in-
interest Simeon de Leon. The preliminary investigation report
submitted by Land Investigator Jose Isidro relative to his free
patent application as to the fact of possession confirmed the
testimonies of his witnesses, who are long time residents and
native-born of the barrio where the land is situated. The final
investigation report on the application stated, among others,
that the cultivation and occupation of the land in question by
Antonio de Leon has been continuous, notorious and
exclusive since 1925, and the improvements on the land as
ascertained by the investigator during his ocular inspection on
October 30, 1968 were clearly indicated on the sketch drawn
at the back thereof consisting of ten guava trees, two
guyabano trees, fifty atis trees, two star apple trees, three
tieza trees, several bamboo grooves, patola, camote patch, a
nipa house owned by the applicant's daughter Catalina de
Leon. In a desperate bid to obliterate traces of improvements
by Antonio de Leon, respondent bulldozed and destroyed
them, and in their stead replaced them with his
improvements, to give it a semblance that it was he who is in
actual possession of the land. Forthwith, Antonio de Leon
lodged a complaint before the barrio captain and wrote this
office to inform that on June 30, 1969, Gregorio Reyes, in
company with a number of armed men and with a bulldozer
forcibly entered the land covered by his Free Patent
Application No. (III-1) 4649. Once inside the premises his
Gregorio Reyes men destroyed many of his (Antonio de Leon)
improvements. 17
The private respondents' allegation that the petitioner had
sold the land in question was never established. Their counsel
tried hard enough to draw an admission to this effect but all
he got from the petitioner was a consistent denial. 18 It was
never proved that the alleged deeds of sale were authentic
and had been signed by the petitioner, who said he could
never manage to write his full name, which was the signature
on the instruments. The alleged vendees were never
presented at the hearing, The private respondents also did
not offer the testimony of a handwriting expert to prove the
genuineness of the signature on the challenged deeds of sale.
There was also a supposed affidavit of de Leon's daughter
Catalina affirming that her hut had not been bulldozed by
Gregorio Reyes but had been destroyed during a typhoon,
but this too has no evidentiary value. As the alleged affiant
was never presented and could not be examined on the said
sworn statement, it must be rejected as hearsay.
The Minister also found that the tax declarations made by
Gregorio Reyes referred not to the land in dispute but to the
lot purchased from the Piedad Estate by the Bartolome
spouses, his parents-in-law. 19 The private respondents'
argument that the disputed land was part of the said lot is
weakened by the fact that Reyes filed a sales application
therefor and so impliedly admitted it was public land. Then
there is Reyes' assertion that the Bartolomes had merely
allowed or tolerated de Leon's occupation of the land because
he was their relative. This claim, if true at all, would only
disprove the reports made by Bautista and Habal that no one
but Reyes was at the time of their inspection occupying the
land.
We are satisfied from an examination of the evidence of
record that the petitioner, as his father before him, was in
continuous possession of the disputed land from 1925 and
raised fruit-bearing trees therein. In 1969, Reyes forcibly
ousted de Leon from the said property and destroyed the
105
trees and structures on the said properly. Thereafter, despite It bears emphasis that whereas the petitioner is a humble
tile order of the Bureau of lands requiring the parties o farmer applying for a free patent over the only land he and
maintain the status quo pending the resolution of their his father before him have tilled all these many years, the
dispute, Reyes leased the properly to the Hi-Protein private respondents are subdivision owners who really do not
Corporation, which itself introduced improvements on the need the disputed property as much as the petitioner. We are
land. elated that the facts and the law of this case have tilted in
favor of the party with "less privileges in life" and thus given
While, as previously remarked, the decisions of administration meaning to the constitutional Ideal of a more equitable
officials are subject to review by their superiors. such review, distribution among our people of the bounties of the earth.
to be valid, must not be whimsical or arbitrary or devoid of
substantial basis. There is no question that the public WHEREFORE, the decision of the Presidential Assistant for
respondent, acting on behalf of the President. can re reverse Legal Affairs dated December 19, 1985, and the Order of the
the decisions of a department head although the former is Deputy Executive Secretary dated April 29, 1986, are SET
lower in rank than the Cabinet member. But that is not the ASIDE and the Order of the Minister of Natural Resources
point. The point is that, although the power is conceded, it dated March 8, 1985, is RE INSTATED with costs against the
must be exercised, like all powers, within the limits of the private respondents. It is so ordered.
law, if substantive rights are to be protected and justice is to
be upheld. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera,
Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla and Bidin,
Our finding is that such power was not properly exercised in JJ., concur.
this case, to the prejudice of the petitioner. The basis of the
reversal, to wit, the reports of Bautista and Habal, have been
discredited for partiality and refuted by the private
respondent, themselves when they argued that the
petitioners possession of the land was only tolerated. This
was an implicit admission that the petitioner was actually
occupying the land at the time they said they had no
possession of it. Moreover, public respondent did not consider
the other official reports submitted by Isidro and Salvado and
just, dismissed them out of hand notwithstanding that these
were the very bases used by the Bureau o Lands in deciding
for the petitioner.

The public respondent, in setting aside the decision of the

Bureau of lands, as affirmed by The Ministry of Natural
Resources, disregarded the long line of decisions holding
that, the findings and conclusions of the Director of the
Bureau of Lands and approved by the Secretary of
Agriculture, upon a question of fact are conclusive and not
subject to review, in the absence of showing that such
decision was rendered in consequence of fraud, imposition,
or mistake. 20

The writ of certiorari is available in this case. If all

administrative decisions were conclusive upon us in any
event, there would have been no reason at all to offer this
extraordinary remedy to litigants who otherwise would have
been deprived of this only and last resort to the courts of
justice. This remedy applies to administrative decisions up to
the highest level and includes the decision at bar even if
rendered "by authority of the President." Tile sacramental
phrase does not remove these decisions from the certiorari
jurisdiction of the Court or inhibit us from reversing them
when warranted by a clear showing of a grave abuse of
discretion.

The petition is granted. The writ must issue.

106
FIRST DIVISION
G.R. No. 42782 September 29, 1989
FIGURADO O. PLAZA, petitioner,
vs.
HON. JUAN C. TUVERA, HON. JOSE J. LEIDO JR., HON.
RAMON N. CASANOVA, and ERNESTO C. REYES,
respondents.
G.R. No. 47936 September 29,1989
FIGURADO 0. PLAZA, petitioner,
vs.
ERNESTO C. REYES and HON. COURT OF APPEALS,
respondents.
Froilan R. Montalban, Sr. for petitioner.
Citizens Legal Assistance Office for private
respondent.
GRIÑO-AQUINO, J.:
These two cases involve a 900 sq. m. parcel of public land
which the petitioner had purchased from Luis Peggy on
September 14, 1966 (thinking it belonged to the latter) but
which the actual occupant, respondent Ernesto Reyes, had
applied to purchase from the Government under a
miscellaneous sales application filed by him in the Bureau of
Lands in September, 1966.
On November 18, 1966, Plaza filed an action (Civil Case No.
1128 of the Court of First Instance of Agusan Del Norte in
Butuan City) to recover the land from Reyes. The trial court
rendered judgment on December 5, 1973, ordering Reyes to
vacate the land, to pay Plaza P300 as monthly rental
beginning October 1966 with legal interest, until the property
is actually vacated, plus P5,000 as moral damages, and
P5,000 as attorneys fees.
However, in the administrative proceedings in the Bureau of
Lands, where Plaza opposed Reyes' miscellaneous sales
application ("Ernesto C. Reyes, applicant-appellant vs.
Figurado O. Plaza, claimant-appellee [MSA {VII-a} 171];
DANR Case No. 3546"), the Regional Land Officer of Region
No. VII, the Director of Lands and the Secretary of
Agriculture and Natural Resources unanimously found that
the subject land is public land; and that Reyes was only a
tenant of the petitioner whose preferential right to purchase
said land the aforementioned officials recognized.
However, upon Reyes' appeal to the Office of the President,
the latter reversed on February 11, 1975 (OP Decision No.
1328, s. 1975), the ruling of the Director of Lands and the
Secretary of Agriculture and Natural Resources that Reyes
was a mere tenant of the land.
Plaza filed a petition for certiorari, prohibition and mandamus
in this Court (G.R. No. L-42782) to annul the decision of the
Office of the President for grave abuse of discretion in totally
disregarding the decision of the Court of First Instance of
Agusan Del Norte in Civil Case No. 1128 finding Reyes to be a
mere lessee of the land in question.
On the other hand, Reyes appealed the decision in Civil Case
No. 1128 of the Court of First Instance of Agusan Del Norte
to the Court of Appeals (CA-G.R. No. 56694-R, entitled
Figurado 0. Plaza, plaintiff-appellee versus Ernesto C. Reyes,
defendant-appellant"). The Court of Appeals deferred to the
presidential decision in favor of Reyes in the administrative
case and dismissed Plaza's action. The dispositive part of its
decision dated September 6, 1977 reads as follows:
IN VIEW WHEREOF, this Court is constrained to sustain Error
5, and to declare that by failure of appellee to institute
proceedings to annul the administrative decision in favor of
Reyes, and that administrative decision having acquired the
character of finality binding upon Plaza, his present case must
have to be as it is hereby declared moot and academic, and is
hereby dismissed, no more pronouncement as to costs. (pp.
29-30, Rollo, G.R. No. L- 47936.)
The Court of Appeals made the following observations:
... be it noted that Reyes has annexed to his brief copies of
the decision and the resolution denying reconsideration and
declaring the administrative decision already final:-Now, if
this be the case, yes, the point of Plaza assailing that
administrative decision, page[s] 4041, brief of appellee, — in
the mind of this court, — absent any certiorari which has not
been filed to annul it, admitted the fact that that
administrative decision has become final, must mean that
Plaza is already bound by that result, it was binding against
him, the question of who of the protagonists was entitled to
the sale of the land from the government has been settled, it
was not appellee, Plaza, but appellant Reyes, and the
necessary implication must have to be that Reyes should not
be disturbed in his possession , this being the true situation,
this present case has become academic; if only to add
something more, this Court might as well mention that the
position of Plaza had been that the land he bought was
described in his purchase as Lot 423, a private land, but the
land that he claimed now, and sought to prove was what he
had bought was not Lot 423 but Lot 460, a clearly public
land. (p. 29, Rollo, Ibid.)
In due time, Plaza filed a petition for review in this Court
under Rule 45 of the Rules of Court (G.R. No. L-47936). As
the subject matter, the private parties, and the issues in this
petition for review are the same as those in the certiorari
case (G.R. No. L-42782), the two cases were consolidated.
The legal question presented by this petition for certiorari,
prohibition, and mandamus (G.R. No. L-42782) is whether
the Office of the President may modify, revoke or totally
disregard the decision of the Court of First Instance in the
107
accion publiciana filed by Plaza against Reyes (Civil Case No.
1128) which was already pending appeal in the Court of
Appeals when the Office of the President issued its assailed
decision in favor of Reyes.

Petitioner argues that the Office of the President has no

authority to reverse, set aside, or nullify a decision of a Court
of First Instance on a matter that is within the court's
jurisdiction, or to render moot and academic an appeal
pending in the Court of Appeals.

That contention is not well taken.

The land in question is public land. Its administration,

disposition and alienation is lodged in the Director of Lands
subject to the control of the Secretary of Agriculture and
Natural Resources as alter ego of the President (Secs. 3, 4
and 5, Commonwealth Act 141). The President, through the
Executive Secretary, may review, affirm, reverse, or modify
the orders and decisions of the Secretary of Agriculture and
Natural Resources (Extensive Enterprises Corp. vs. Sarbio &
Co., Inc., et al., 17 SCRA 41).

The disposition of public land is an executive, not a judicial,

function. The decision of the Court of First Instance in the
action for recovery of possession filed by Plaza against Reyes
did not bind nor bar the Office of the President from
exercising its power as the final authority in the disposition of
lands of the public domain. For one thing, the decision of the
Court of First Instance was not yet final when the Office of
the President decided the miscellaneous sales applications of
Reyes and Plaza. Furthermore, the administrative case was
instituted ahead of Civil Case No. 1128. Reyes filed his
Miscellaneous Sales Application No. 460-A on September
28,1966 while Civil Case 1128 as filed by Plaza on November
18, 1966 only. Plaza should have exhausted his
administrative remedies before going to court. Having failed
to do so. his recourse to the courts was premature. The
dismissal of his complaint by the Court of Appeals was proper
(Cruz vs. Del Rosario, 9 SCRA 755; Gonzales vs. Secretary of
Education, 5 SCRA 657).

WHEREFORE, in view of the foregoing, both petitions are

dismissed for lack of merit, with costs against the petitioner
in both instances.

SO ORDERED.

108
G.R. No. L-49711 November 7, 1979
ZAMBALES CHROMITE MINING CO., GONZALO P.
NAVA, VIOLA S. NAVA, FEDERICO S. NAVA, PERLA
NAVA, HONORATO P. NAVA, ALEJANDRO S. NAVA,
PURIFICACION SISON, A. TORDESILLAS, GUIDO
ADVINCULA, PEDRO ANGULO and TOMAS MARAMBA,
petitioners-appellants,
vs.
COURT OF APPEALS, SECRETARY OF AGRICULTURE
AND NATURAL RESOURCES, DIRECTOR OF MINES,
GREGORIO E. MARTINEZ, ALEJANDRO MENDEZ,
NICANOR MARTY, VICENTE MISOLES, GUILLERMO
YABUT, ANDRES R. FIAGOY, MIGUEL A. MANIAGO,
CASIMIRO N. EBIDO, ENRIQUE RIVERA, SEVERINO
MIVA, ELENITO B. MARTINEZ, LUCAS EDURAIN,
FELIMON ENCIO, EMILIO ILOCO, DIOSDADO MISOLA,
ERNESTO VALVERDE, PABLO PABILONA, ARMANDO
MINAS, BARTOLOME MARAVE and CECILIO OOVILLA,
respondents-appellees.
Tordesilla & Advincula for petitioners-appellants.
Mariano M. Lozada for private respondents-appellees.
AQUINO, J.:
This is a mining case. The petitioners appealed from the
second decision of the Court of Appeals, reversing its first
decision and holding that it was improper from Benjamin M.
Gozon, as Secretary of Agriculture and Natural Resources, to
affirm his own decision as Director of Mines.
The Court of Appeals further held that the trial court's
judgment, confirming the Secretary's decision, should be set
aside and that the Minister of Natural Resources should
review anew the decision of the Director of Mines "and,
thereafter, further proceedings will be taken in the trial
court". The antecedental proceedings are as follows:
(1) In Mines Administrative Case No. V-227, Director Gozon
issued an order dated October 5, 1960 wherein he dismissed
the case filed by the petitioners or protestants (Zambales
Chromite Mining Co., Inc. or the group of Gonzalo P. Nava).
In that case, they sought to be declared the rightful and prior
locators and possessors of sixty-nine mining claims located in
Santa Cruz, Zambales.
On the basis of petitioners' evidence (the private respondents
did not present any evidence and they filed a demurrer to the
evidence or motion to dismiss the protest), Director Gozon
found that the petitioners did not discover any mineral nor
staked and located mining claims in accordance with law.
In that same order, Director Gozon ruled that the mining
claims of the groups of Gregorio Martinez and Pablo Pabilona,
now the private respondents-appellees, were duly located
and registered (pp. 224-231, Record on Appeal).
(2) The petitioners appealed from that order to the
Secretary of Agriculture and Natural Resources. While the
appeal was pending, Director Gozon was appointed Secretary
of Agriculture and Natural Resources. Instead of inhibiting
himself, he decided the appeal, DANR Case No. 2151, on
August 16, 1963 as it he was adjudicating the case for the
first time. 'Thus, Secretary Gozon exercised appellate
jurisdiction over a case which he had decided as Director of
Mines. He acted as reviewing authority in the appeal from his
own decision. Or, to use another analogy, he acted as trial
judge and appellate judge in the same case.
He ruled that the petitioners had abandoned the disputed
mining claims, while, on the other hand, the Martinez and
Pabilona groups had validly located the said claims. Hence,
he dismissed the appeal from his own decision (pp. 340-341,
Record on Appeal).
(3) On September 20, 1963, the petitioners filed a
complaint in the Court of First Instance of Zambales, assailing
Secretary Gozon's decision and praying that they be declared
the prior locators and possessors of the sixty-nine mineral
claims in question. Impleaded as defendants in the case were
the Secretary of Agriculture and Natural Resources, the
Director of Mines and the members of the Martinez and
Pabilona groups.
After hearing, the lower court sustained Secretary Gozon's
decision and dismissed the case. It held that the
disqualification petition of a judge to review his own decision
or ruling (Sec. 1, Rule 137, Rules of Court) does not apply to
administrative bodies; that there is no provision in the Mining
Law, disqualifying the Secretary of Agriculture and Natural
Resources from deciding an appeal from a case which he had
decided as Director of Mines; that delicadeza is not a ground
for disqualification; that the petitioners did not seasonably
seek to disqualify Secretary Gozon from deciding their appeal,
and that there was no evidence that the Secretary acted
arbitrarily and with bias, prejudice, animosity or hostility to
the petitioners (pp. 386-9, Record on Appeal).
(4) The petitioners appealed to the Court of Appeals. The
Sixth Division of that Court (Pascual, Agcaoili and Climaco,
JJ.) in its decision dated February 15, 1978 reversed the
judgment of the trial court and declared that the petitioners
were the rightful locators and possessors of the said sixty-
nine mining claims and held as invalid the mining claims
overlapping the same.
That Division found that the petitioners (Nava group) had
discovered minerals and had validly located the said sixty-
nine mining claims and that there was no sufficient basis for
Secretary Gozon's finding that the mining claims of the
Martinez and Pabilona groups were validly located.
(5) The defendants, now the private respondents-
appellees, filed a motion for reconsideration based principally
on the ground that the Court of Appeals should have
109
respected the factual findings of the Director of Mines and
the Secretary of Agriculture and Natural Resources on the
theory that the facts found in administrative decisions cannot
be disturbed on appeal to the courts, citing Republic Act No.
4388 which amended section 61 of the Mining Law effective
June 19, 1965; Pajo vs. Ago, 108 Phil. 905; Palanan Lumber
& Plywood Co., Inc. vs. Arranz 65 O.G. 8473; Timbancaya vs.
Vicente, 119 Phil. 169, Ortua vs. Singson Encarnacion, 59
Phil. 440.
The defendants-movants prayed that the appeal be
dismissed, meaning that the decisions of the lower court and
of Director and Secretary Gozon be affirmed.
The petitioners opposed that motion for reconsideration. In
their opposition, they reiterated the contention in their brief
that Secretary Gozon's decision was void and, therefore, the
factual findings therein are not binding on the courts.
As already stated, the same Sixth Division (composed of
Pascula, Agrava and Maco, JJ.) in its second decision of
October 13, 1978, set aside its first decision and granted the
motion for curiously enough, the first decision was
reconsidered not on the ground advanced by the movants-
defendants, now the private respondents (Martinez and
Pabilona groups), which was that the factual findings of the
administrative officials should be upheld, but on the ground
raised in petitioners' opposition, namely, that Secretary
Gozon's decision was void because he was disqualified to
review his own decision as Director of Mines.
So, as already noted, the Court of Appeals in its second
decision remanded the case to the Minister of Natural
Resources for another review of Director Gozon's decision.
This was the prayer of the petitioners in their brief but in
their opposition to the motion for reconsideration, they
prayed that the first decision of the Court of Appeals in their
favor be maintained.
(6) The second decision did not satisfy the parties. They filed
motions for reconsideration. The petitioners in their motion
reiterated their prayer that the first decision be reinstated.
They abandoned their prayer that the case be returned to the
Minister of Natural Resources. On the other hand, the private
respondents in their motion insisted that the trial court's
decision be affirmed on the basis of the factual findings of the
Director of Mines and the Secretary of Agriculture and Natural
Resources. The Court of Appeals denied both motions in its
resolutions of December 27, 1978 and January 15, 1979.
Only the petitioners appealed from the second decision of the
Court of Appeals. There is an arresting and noteworthy
peculiarity in the present posture of this case now on appeal
to this Court (as arresting and noteworthy as the peculiarity
that Secretary Gozon reviewed his own decision as Director of
Mines),
That twist or peculiarity is that while the petitioners (Nava
group) in their appellants' brief in the Court of Appeals
prayed that Secretary Gozon's decision, alleged to be biased,
be declared void and that the case be returned to the
Secretary of Agriculture and Natural Resources for another
review of Director Gozon's order, in their appellants' brief in
this Court, they changed that relief and they now pray that
the second decision of the Court of Appeals, referring this
case to the Minister of Natural Resources for another review,
be declared void and that its first decision be affirmed.
In contrast, the private respondents, who did not appeal from
the second decision of the Court of Appeals, instead of
sustaining its holding that this case be referred to the
Minister of Natural Resources or instead of defending that
second decision, they being appellees, pray for the
affirmance of the trial court's judgment sustaining the
decisions of Director and Secretary Gozon.
The inconsistent positions of the parties, which were induced
by the contradictory decisions of the Court of Appeals,
constitute the peculiar twist of this case in this Court.
We hold that Secretary Gozon acted with grave abuse of
discretion in reviewing his decision as Director of Mines. The
palpably flagrant anomaly of a Secretary of Agriculture and
Natural Resources reviewing his own decision as Director of
Mines is a mockery of administrative justice. The Mining Law,
Commonwealth Act No. 13-i, provides:
SEC. 61. Conflicts and disputes arising out of mining
locations shall be submitted to the Director of Mines for
decision:
Provided, That the decision or order of the Director of Mines
may be appealed to the Secretary of Agriculture and Natural
Resources within thirty days from the date of its receipt.
In case any one of the parties should disagree from the
decision or order of the Director of Mines or of the Secretary
of Agriculture and Natural Resources, the matter may be
taken to the court of competent jurisdiction within thirty days
from the receipt of such decision or order; otherwise the said
decision or order shag be final and binding upon the parties
concerned. (As amended by Republic Act No. 746 approved
on June 18,1952).*
Undoubtedly, the provision of section 61 that the decision of
the Director of Mines may be appealed to the Secretary of
Agriculture and Natural Resources contemplates that the
Secretary should be a person different from the Director of
Mines.
In order that the review of the decision of a subordinate
officer might not turn out to be a farce the reviewing officer
must perforce be other than the officer whose decision is
under review; otherwise, there could be no different view or
there would be no real review of the case. The decision of
the reviewing officer would be a biased view; inevitably, it
would be the same view since being human, he would not
admit that he was mistaken in his first view of the case.
110
That is the obvious, elementary reason behind the
disqualification of a trial judge, who is promoted to the
appellate court, to sit in any case wherein his decision or
ruling is the subject of review (Sec. 1, Rule 137, Rules of
Court: secs. 9 and 27, Judiciary Law).

A sense of proportion and consideration for the fitness of

things should have deterred Secretary Gozon from reviewing
his own decision as Director of Mines. He should have asked
his undersecretary to undertake the review.

Petitioners-appellants were deprived of due process, meaning

fundamental fairness, when Secretary Gozon reviewed his
own decision as Director of Mines. (See Amos Treat & Co. vs.
Securities and Exchange Commission, 306 F. 2nd 260, 267.)

WHEREFORE, we set aside the order of the Secretary of

Agriculture and Natural Resources dated August 16, 1963 as
affirmed by the trial court as well as the first decision of the
Court of Appeals.

We affirm its second decision, returning the case to the

Minister of Natural Resources, with the directive that
petitioners' appeal to the Minister be resolved de novo with
the least delay as provided for in Presidential Decree No. 309,
"establishing rules and procedures for the speedy disposition
or settlement of conflicting mining claims".

We reverse the second part of that second decision stating

that "thereafter, further proceedings will be taken in the trial
court". That portion is unwarranted because the trial court
does not retain any jurisdiction over the case once it is
remanded to the Minister of Natural Resources. No costs.

SO ORDERED.

111