Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 156686               July 27, 2011

NEW SUN VALLEY HOMEOWNERS' ASSOCIATION, INC., Petitioner, vs.SANGGUNIANG BARANGAY, Barangay Sun Valley, Parañaque City, Roberto Guevarra IN HIS CAPACITY AS Punong Barangay and MEMBERS OF THE SANGGUNIANG BARANGAY, Respondents.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court against the Decision 1 dated October 16, 2002 in CA-G.R. CV No. 65559 and the Resolution2 dated January 17, 2003, both of the Court of Appeals.

The facts are as follows:

The Sangguniang Barangay of Barangay Sun Valley (the "BSV Sangguniang Barangay") issued BSV Resolution No. 98-0963 on October 13, 1998, entitled "Directing the New Sun Valley Homeowners Association to Open Rosemallow and Aster Streets to Vehicular and Pedestrian Traffic," the pertinent portions of which read as follows:

NOW, THEREFORE, be it resolved as it is hereby resolved by the Sangguniang Barangay in session assembled that –

1. Pursuant to its power and authority under the Local Government Code of 1991 (Rep. Act No. 7160), the New Sun Valley Homeowners Association (NSVHA) is hereby directed to open Rosemallow and Aster Sts. to vehicular (private cars only) and pedestrian traffic at all hours daily except from 11 p.m. to 5 a.m. at which time the said streets may be closed for the sake of the security of the residents therein.

2. The Barangay government take steps to address the security concerns of the residents of the area concerned, including the possible assignment of a barangay tanod or traffic enforcer therein, within the limits of the authority and financial capability of the Barangay.

3. This Resolution shall become executory within 72 hours upon receipt hereof by the Association or any of its members.4

The New Sun Valley Homeowners Association, Inc. (NSVHAI), represented by its President, Marita Cortez, filed a Petition5 for a "Writ of Preliminary Injunction/Permanent Injunction with prayer for issuance of TRO" with the Regional Trial Court (RTC) of Parañaque City. This was docketed as Civil Case No. 98-0420. NSVHAI claimed therein that the implementation of BSV Resolution No. 98-096 would "cause grave injustice and irreparable injury" as "[the] affected homeowners acquired their properties for strictly residential purposes";6 that the subdivision is a place that the homeowners envisioned would provide them privacy and "a peaceful neighborhood, free from the hassles of public

places";7 and that the passage of the Resolution would destroy the character of the subdivision. NSVHAI averred that contrary to what was stated in the BSV Resolution, the opening of the gates of the subdivision would not in any manner ease the traffic congestion in the area, and that there were alternative routes available. According to NSVHAI, the opening of the proposed route to all kinds of vehicles would result in contributing to the traffic build-up on Doña Soledad Avenue, and that instead of easing the traffic flow, it would generate a heavier volume of vehicles in an already congested choke point. NSVHAI went on to state that a deterioration of the peace and order condition inside the subdivision would be inevitable; that the maintenance of peace and order in the residential area was one of the reasons why entry and exit to the subdivision was regulated by the Association and why the passing through of vehicles was controlled and limited; and that criminal elements would take advantage of the opening to public use of the roads in question.8

NSVHAI further contested the BSV Resolution by submitting the following arguments to the RTC:

12. The road network inside the subdivision and drainage system is not designed to withstand the entry of a heavy volume of vehicles especially delivery vans and trucks. Thus, destruction of the roads and drainage system will result. The safety, health and well-being of the residents will face continuous danger to their detriment and prejudice;

13. When the residents bought their residential properties, they also paid proportionately for the roads and the park in then subdivision. They have therefore an existing equity on these roads. To open the roads to public use is a violation of the rights and interests to a secure, peaceful and healthful environment;

14. Aside from the availability of a better route to be opened, there are other ways to ease traffic flow. The continuous presence of traffic enforcers on all identified traffic choke points will prevent snarls which impede smooth travel. The strict enforcement of traffic rules and regulations should be done;

15. There are a lot of undisciplined drivers of tricycles, jeepneys, trucks and delivery [vans], which contribute to the traffic congestion. The barangay should require these drivers to observe road courtesy and obedience to traffic rules[.]9

Executive Judge Helen Bautista-Ricafort of the RTC issued a Temporary Restraining Order10 (TRO) in Civil Case No. 98-0420 on October 30, 1998. Said Order provides:

Acting on the Application for Writ of Preliminary Injunction/ Permanent Injunction with Prayer for Issuance of a Temporary Restraining Order, filed by plaintiff and considering that there is extreme urgency, such that unless the same is issued, plaintiff would suffer grave injustice and/or irreparable injury, let a Temporary Restraining Order issue directing the Sangguniang Barangay as represented by Punong Barangay Roberto Guevarra to cease and desist from the implementation of Resolution No. 98-096 or otherwise maintain the status quo until further Orders of this Court.

This Temporary Restraining Order shall be effective for seventy two (72) hours from issuance hereof, unless extended by another Order of this Court.

Let this case be set for special raffle and conference on November 3, 1998 at 10:30 in the morning.

On November 3, 1998, the RTC issued another Order11 stating that, by agreement of the parties, the status quo shall be maintained for seventeen (17) more days, and that the case was set for hearing on the prayer for the issuance of a writ of preliminary injunction on November 20, 1998 at 8:30 a.m.

NSVHAI submitted an Amended Petition12 on November 13, 1998, at about 11:10 a.m., wherein it claimed that the BSV Sangguniang Barangay had no jurisdiction over the opening of Rosemallow and Aster Streets (the "subject roads"). NSVHAI likewise attached to its Amended Petition its Position Paper13 dated July 21, 1998, which set forth its objection to the opening of the subject roads for public use and argued that a Barangay Resolution cannot validly cause the opening of the subject roads because under the law, an ordinance is required to effect such an act.14

The BSV Sangguniang Barangay filed its Motion to Dismiss15 likewise on November 13, 1998. The copy provided by petitioner to the Court indicates the time of receipt by NSVHAI as 11:00 a.m.16

The RTC heard the case on November 20, 1998, as scheduled, and thereafter submitted the matter for decision.17 On the same date, the RTC issued the following Order18:

Acting on the prayer for the issuance of a writ of preliminary injunction filed by petitioner, it appearing that petitioner may suffer grave injustice or irreparable injury, let a writ of preliminary injunction issue prohibiting the Sangguniang Barangay represented by Punong Barangay Roberto Guevarra from implementing Resolution no. 98-096 until further orders from this Court.

Petitioner is directed to file a bond in the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS (sic) to answer for damages to defendants in the event the Court finds petitioner is not entitled to said injunction.

The BSV Sangguniang Barangay filed on December 4, 1998 a Motion for Reconsideration and to Dissolve Preliminary Injunction (with Memorandum of Authorities).19

NSVHAI then filed an Urgent Ex-Parte Motion to Expunge on December 10, 1998, moving to declare the above motion of the BSV Sangguniang Barangay as a mere scrap of paper for being filed out of time and for failure to serve a copy thereof to the counsel of petitioner.

The RTC subsequently dismissed the case in an Order20 dated August 17, 1999, stating as follows:

Defendant Barangay Sun Valley moves to dismiss the instant case on the grounds that the complaint states no cause of action and the court has no jurisdiction over the subject matter. In summary, defendant alleges that the subject streets Aster and Rosemallow inside Sun Valley Subdivision are owned by the local government. Such streets have long been part of the public domain and beyond the commerce of man. In support of this, defendant cited the case of White Plains Association, Inc. vs. Legaspi, 193 SCRA 765 wherein it was held that road lots of subdivisions constitute a part of the mandatory open space reserved for public use; ownership of which is automatically vested in the Republic of the Philippines although it is still registered in the name of the developer/owner, its donation to the government is a mere formality." The power or authority to close or open the said streets is vested in the local government units and not on homeowner’s associations, pursuant to Section 21 of the local Government Code (RA 7160) quoted as follows: "Section 21. Closure and Opening of Roads. (a) A local government unit may, pursuant to an ordinance, permanently or temporarily close or open any local road, alley, park, or square falling within its jurisdiction x x x." In view thereof, Resolution No. 98-096 was passed by the Sangguniang Barangay. Hence there is no right whatsoever on the part of Plaintiff NSVHA entitled to the protection of the law. Further, defendant contends that petitioner failed to exhaust administrative remedies as ordained in Sections 32 and 57 of the Local Government Code giving the city mayor the supervisory power, and the power of review by the Sangguniang Panlungsod, respectively.

No opposition to the motion to dismiss was filed by the Plaintiff.

Same defendant seeks to reconsider the order granting the issuance of the writ of preliminary injunction alleging that there is a pending motion to dismiss and Plaintiff has not been able to establish an actually existing right.

Plaintiff has not filed an opposition thereto, instead it filed an urgent ex-parte motion to expunge the motion for reconsideration on the ground that its counsel has not been furnished with a copy of the motion for reconsideration, but the record shows that Maria Cortez (plaintiff’s representative) has received a copy of said motion.

After considering the arguments of the parties in their respective pleadings, this court hereby resolves as follows:

1. The "Motion for Reconsideration" and the "Urgent Ex-parte Motion to Expunge (motion for reconsideration)" are Denied being devoid of merit; and

2. The "Motion to Dismiss" is hereby Granted for failure of the plaintiff to exhaust the administrative remedies under Sections 32 and 57 of the Local Government Code.

WHEREFORE, let this case be as it is hereby ordered Dismissed. The writ of preliminary injunction is hereby lifted.21

NSVHAI filed a Motion for Reconsideration22 of the above-quoted Order but this was denied by the RTC for lack of merit in an Order23 dated September 21, 1999.

NSVHAI raised the matter to the Court of Appeals and the case was docketed as CA-G.R. CV No. 65559. NSVHAI alleged that "despite the lack of the required hearing" 24 and without any order requiring it to submit its Comment/Opposition to the BSV Sangguniang Barangay’s Motion to Dismiss or that of submitting said Motion for resolution, Judge Bautista-Ricafort issued an Order which, to NSVHAI’s complete surprise, granted the Motion. NSVHAI argued that the RTC gravely erred in taking cognizance of, and thereafter ruling on, said Motion and refusing to exercise jurisdiction over the subject matter of Civil Case No. 98-0420. Petitioner likewise argued that the RTC committed serious errors which, if not corrected, would cause grave or irreparable injury to petitioner and cause a violation of law.25

The BSV Sangguniang Barangay, Roberto Guevarra in his capacity as Punong Barangay, and members of the Sangguniang Barangay (hereinafter, "respondents"), in their Appellees’ Brief, argued as follows:

I

THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANTS-APPELLEES’ MOTION TO DISMISS DUE TO LACK OF CAUSE OF ACTION AND JURISPRUDENCE OVER THE SUBJECT MATTER AND APPELLANT’S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. AS NOTED BY THE COURT, NO OPPOSITION TO THE MOTION TO DISMISS WAS EVER FILED BY APPELLANT.

II

THE TRIAL COURT’S DISMISSAL OF THE ACTION ASSAILING ITS SUBJECT-MATTER, BARANGAY RESOLUTION NO. 98-096, CONSISTING OF A DIRECTIVE OF AN LGU TO A DEFIANT PRIVATE ORGANIZATION WITHIN ITS JURISDICTION, IS JUDICIAL RECOGNITION OF THE SOLE COMPETENCE AND WISE DISCRETION OF THE BARANGAY OVER A LOCAL TRAFFIC PROBLEM.

III

THE TRIAL COURT DID NOT COMMIT ANY SERIOUS ERROR, PROCEDURAL OR SUBSTANTIVE, AS FOUND BY THE COURT A QUO. IT IS APPELLANT THAT HAS COMMITTED THE ERROR OF NOT EXHAUSTING ADMINISTRATIVE REMEDIES. HENCE, NO GRAVE OR IRREPARABLE INJURY CAN BE CAUSED TO APPELLANT FOR IT HAS NO RIGHT TO PROTECT.26

Respondents claimed that Barangay Resolution No. 98-096 was simply a directive to petitioner, "a private aggrupation of some self-seeking homeowners,"27 and was just a measure of internal policy among residents; that the opening of roads for traffic reasons was "within the sole competence of the barangay to determine"; 28

and the Mayor could have chosen, as it was within his power to do so, to cause the demolition of the gates, which were illegally built by petitioner and therefore were obstructions on the road, even without a Barangay resolution. Respondents likewise claimed that the BSV’s action could be considered a political question, which should be essentially withdrawn from judicial cognizance, and constitutional law doctrine provides that the courts would not interfere with political issues unless grave abuse of discretion is shown, of which there was none on the part of the Barangay. Respondents argued that petitioner did not have any actual legal right entitled to the protection of the law.29

Respondents attached to their Appellees’ Brief six documents, labeled as Annexes "2" to "7," all stamped "Certified True Copy" by a certain Roman E. Loreto, Legal Officer II of Legal Department.30 The detailed information contained in each of the documents that comprise respondents’ Annexes "2" to "7" is copied below:

1. 1st Indorsement31 from the Office of the Mayor of Parañaque dated May 20, 1988, signed by Luzviminda A. Concepcion, Administrative Officer II, stating as follows:

Respectfully indorsed to Atty. Antonio G. Cruz, Municipal Attorney, of this municipality the herein attached "Original Copies of Transfer Certificate of Title for Sun Valley Open Space and Road Lots" with TCT Nos. 133552, 119836, and 122443 for your appropriate actions.

2. Letter32 dated December 27, 1990 from Francisco B. Jose, Jr., Municipal Attorney of Parañaque, addressed to the Municipal Council Secretary, which reads:

This has reference to your request dated December 18, 1990 relative to the letter of inquiry of the Barangay Captain of Barangay Sun Valley dated December 13, 1990.

We wish to inform you that based on the available records of our office the open space and road lots of Sun Valley Subdivision is already owned by the Municipal Government of Parañaque as evidenced by TCT NOS. 133552, 119836, and 122443. Copies of which are hereto attached for your ready reference.

Considering that the Municipality of Parañaque is the registered owner of the road lots of Sun Valley Subdivision, we are of the opinion that the roads become public in use and ownership, and therefore, use of the roads by persons other than residents of the Subdivision can no longer be curtailed. However, should the Municipal Government decides to delegate its right to regulate the use of the said roads to the Sun Valley Homeowner’s Association or Sun Valley Barangay Council, such right may be exercise[d] by said association or council.

3. Certification33 dated October 8, 1990 issued by Francisco B. Jose, Jr. under the letterhead of the Office of the Municipal Attorney of Parañaque, which reads:

This is to certify that based on the available records of this Office, the open space and road lots of Sun Valley Subdivision has been donated and now owned by the Municipality of Paranaque, as evidenced by TCT Nos. 133552, 119836, and 122443 copies of which are hereto attached.

This certification is being issued upon the request of Mr. Mario Cortez, President of Sun Valley Homeowners Association.

4. Certification34 dated June 13, 1994, again signed by Francisco B. Jose, Jr., of the Office of the Municipal Attorney, providing as follows:

This is to certify that based on the available records of this Office, the only road lots in Sun Valley Subdivision titled in the name of the Municipality of Parañaque are those covered by Transfer Certificates of Title Nos. 133552 and 122443.

This certification is being issued upon the request of Coun. Manuel T. De Guia.

5. Certification35 dated March 2, 1995 issued by Rodolfo O. Alora, OIC, Asst. Municipal Legal Officer, which reads:

This is to certify that based on the available records of this Office, the open space within Sun Valley Subdivision has already been donated to the Municipality as evidenced by Transfer Certificate of Title No. 119836, copy of which is hereto attached.

This certification is being issued upon the request of Atty. Rex G. Rico.

6. Certification36 dated October 26, 1998 issued by Ma. Riza Pureza Manalese, Legal Researcher, Office of the Municipal Attorney, Parañaque City, which reads:

This is to certify that based on the available records of this Office, road lots of Sun Valley Subdivision have already been donated to the Municipality of Paranaque as evidenced by TCT NO. 133552, 119836, and 122443.

This certification is being issued upon the request of MR. WILLIAM UY.

The Court of Appeals issued a Decision dated October 16, 2002 denying the appeal and affirming the Orders of the RTC dated August 17, 1999 and September 21, 1999. The Court of Appeals likewise denied NSVHAI’s Motion for Partial Reconsideration in its Resolution promulgated on January 17, 2003, stating that after a thorough study of the Motion for Reconsideration, it found no sufficient reason to deviate from its findings and conclusion reached in its decision.

Thus, NSVHAI (hereinafter, "petitioner") went to this Court.

Arguments of Petitioner

Petitioner alleges that the decision of the Court of Appeals was based on "facts that [were] outside of the original Petition and Amended Petition and on supposed findings of facts that are not even evidence offered before the court a quo."37 Petitioner likewise alleges that the facts used by the Court of Appeals in dismissing the case were contrary to the records of Civil Case No. 98-0420.

Petitioner lists the following as its Questions of Law:

A

In sustaining the dismissal of Civil Case No. 98-0420, the Honorable Court of Appeals sanctioned the departure of the Regional Trial Court from the accepted and usual course of judicial proceedings

B

Whether or not the issuance of the Resolution promulgated January 17, 2003 and the Decision promulgated October 16, 2002 by the Former 4th Division and the 4th Division of the Court of Appeals sustaining the validity of dismissal of Civil Case No. 98-0420 is not in accord with law or with the applicable decisions of this Honorable Supreme Court

C

Whether or not the Honorable Court of Appeals, with due respect, departed from the accepted and usual course of judicial proceedings by making findings of fact not supported by evidence of record38

Petitioner avers that the hearing for the respondents’ Motion to Dismiss was set on November 20, 1998, without indication as to time and that during the hearing on such date, counsel for respondents moved that their Motion to Dismiss be heard over the objection of counsel for petitioner, who explained that there was an urgency in ruling on the prayer for the issuance of a writ of preliminary injunction in view of the expiration of the temporary restraining order (TRO).39

Petitioner quotes the transcript of stenographic notes (TSN) from the November 20, 1998 hearing before the RTC in the following manner:

Atty. Herrera:

Then, Your Honor, I files [sic] a motion petitioning to dismiss this instant case, which should be resolved first before hearing this case.

Atty. Nuñez:

Your Honor, please, with due respect to the opposing counsel, the hearing today is supposed to be on the presentation of petitioner’s evidence in support of its prayer for preliminary injunction. In connection with the amended complaint, I guess it is a matter of right to amend its pleading. What happened here, the amended petition was filed before this Honorable Court on November 13 at 11:10 a.m. but I think the motion to dismiss was filed by the respondent on November 13 at 11:20 a.m.. Therefore, it is the right of the petitioner insofar as the case is concerned.

And therefore, this Court should proceed with the hearing on the preliminary injunction instead of entertaining this matter. The temporary restraining order will expire today and we have the right to be heard.

Court:

We will proceed first with the hearing (referring to the scheduled hearing of the prayer for the issuance of the writ of preliminary injunction). (Transcript of Stenographic Notes, November 20, 1998) (Underscoring and explanation petitioner’s.)40

Petitioner claims that the RTC proceeded to hear the prayer for the issuance of a preliminary injunction and no hearing was conducted on the Motion to Dismiss. Petitioner reiterates its earlier claim that it did not receive an order requiring it to submit its Comment/Opposition to the Motion to Dismiss or informing it that said Motion had been submitted for resolution.41

Petitioner alleges that the dismissal of Civil Case No. 98-0420 arose from the grant of respondents’ Motion to Dismiss. Petitioner claims that it filed its Amended Petition on November 13, 1998 at 11:10 a.m., or before

respondents served any responsive pleading, or before they had filed their Motion to Dismiss on the same date at about 11:20 a.m.42 Petitioner avers that the filing of said Amended Petition was a matter of right under Section 2, Rule 10 of the 1997 Rules of Civil Procedure, and had the effect of superseding the original petition dated October 28, 1998. Petitioner concludes that the Motion to Dismiss was therefore directed against a non-existing Petition.43

Petitioner argues that the RTC’s ruling on the Motion to Dismiss is contrary to procedural law because no hearing was conducted on said Motion to Dismiss; that said motion violated Section 5, Rule 10 of the 1997 Rules of Civil Procedure for failing to set the time of hearing thereof; and that instead of being resolved, said motion should have been declared as a mere scrap of worthless paper.44

Petitioner claims that during the proceedings before the RTC on November 20, 1998, both parties manifested that the Motion to Dismiss was never set for hearing, and that when Judge Bautista-Ricafort said, "We will proceed first with the hearing,"45 she was referring to the scheduled hearing of the prayer for the issuance of the writ of preliminary injunction. Petitioner claims that it is crystal clear that it was deprived due process when a ruling was had on the Motion to Dismiss despite the clear absence of a hearing. Petitioner concludes that the Court of Appeals was manifestly mistaken when it ruled that due process was observed in the issuance of the assailed Orders of Judge Bautista-Ricafort, despite the lack of opportunity to submit a comment or opposition to the Motion to Dismiss and the lack of issuance of an order submitting said motion for resolution. Petitioner alleges that the Court of Appeals sanctioned the ruling of the RTC that violated both substantial and procedural law. 46

Moreover, petitioner avers that contrary to the ruling of the Court of Appeals, the RTC had jurisdiction to hear and decide the Amended Petition, and the doctrine of exhaustion of administrative remedies was not applicable. This is because, according to petitioner, such doctrine "requires that were a remedy before an administrative agency is provided, relief must first be sought from the administrative agencies prior to bringing an action before courts of justice."47 Petitioner claims that when it filed Civil Case No. 98-08420, it did not have the luxury of time to elevate the matter to the higher authorities under Sections 32 and 57 of the Local Government Code. Petitioner alleges that the tenor of BSV Resolution No. 98-096 necessitated the immediate filing of the injunction case on October 29, 1998, to forestall the prejudicial effect of said resolution that was to take effect two days later. Thus, petitioner claims that it had no other plain, speedy, and adequate remedy except to file the case.48

Anent the question of whether the Sangguniang Barangay should have passed an ordinance instead of a resolution to open the subject roads, petitioner alleges that the Court of Appeals should not have relied on respondents’ claim of ownership, as this led to the erroneous conclusion that there was no need to pass an ordinance. Petitioner insists that the supposed titles to the subject roads were never submitted to the RTC, and the respondents merely attached certifications that the ownership of the subject roads was already vested in the City Government of Parañaque City as Annexes to their Appellees’ Brief before the Court of Appeals. Those annexes, according to petitioner, were not formally offered as evidence.49

Petitioner avers that the records of Civil Case No. 98-0420 clearly show that there was no proof or evidence on record to support the findings of the Court of Appeals. This is because, allegedly, the dismissal of said case was due to the grant of a motion to dismiss, and the case did not go to trial to receive evidence. 50 Petitioner avers that a motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. 51 In adopting the annexes as basis for its findings of fact, the Court of Appeals allegedly disregarded the rules on Evidence.

Petitioner raises the following grounds for the issuance by this Court of a temporary restraining order and/or writ of preliminary injunction:

Sangguniang Barangay Resolution No. 98-096 is repugnant to the proprietary rights of the affected homeowners who are members of petitioner NSVHAI, such rights undoubtedly protected by the Constitution.

As there is no proof otherwise (except the baseless findings of fact by the Honorable Court of Appeals) that the streets encompassed by the concerned subdivision, Sun Valley Subdivision, are all private properties. As such, the residents of Sun Valley Subdivision have all the right to regulate the roads and open spaces within their territorial jurisdiction.

This Honorable Supreme Court can take judicial knowledge that criminal activities such as robbery and kidnappings are becoming daily fares in Philippine society. Residents have invested their lifetime’s savings in private subdivision since subdivision living afford them privacy, exclusivity and foremost of all, safety. Living in a subdivision has a premium and such premium translates into a comparatively more expensive lot because of the safety, among others, that subdivision lifestyle offers.

But, with the enactment and intended implementation of Sangguniang Barangay Resolution No. 98-096 to open Rosemallow and Aster Streets for public use, it is indubitable that, instead of promoting the safety of resident of Sun Valley Subdivision, respondents are endangering the life and property of the residents of the said subdivision as they will now be exposed to criminal and lawless elements.

It is respectfully submitted that Sangguniang Barangay Resolution No. 98-096 has a place only in an authoritarian government where proprietary rights and privacy are alien concepts. Lest it be forgotten, ours is a democratic society and therefore, it should not be ruled in a manner befitting of a despotic government.

Petitioner NSVHAI, in protection of the rights and interest of the residents of Sun Valley Subdivision and in order to ensure that public officials will not abuse governmental powers and use them in an oppressive and arbitrary manner, invokes the judicial power of this Honorable Supreme Court and pray that a writ of preliminary injunction be issued and, after hearing, be declared permanent. 52

A perusal of the documents attached by petitioner as Annexes revealed to the Court the following, which were not discussed in the body of the petition:

1. A letter53 dated January 25, 2003 signed by Sonia G. Sison, President of NSVHAI, to Mayor Joey P. Marquez, the pertinent portions of which provide:

We admit that we erred in not going to you directly because at that time, the NSVHA received the letter-order of Brgy. Capt. Guevara two days before the effectivity of the order. Aside from this, there was a long holiday (long weekend prior to November 1). Thus, the Board of Governors had no other recourse but to seek a TRO and thereafter a permanent injunction.

We now would like to seek your assistance concerning this urgent problem. For your information there are already two (2) gates in and out of Sun Valley Subdivision.

Under P.D. 957, the Homeowners Association is mandated to protect the interest of the homeowners and residents especially in so far as it affects the security, comfort and the general welfare of the homeowners.

Thank you and because of the urgency of the matter, we anticipate your prompt and favorable action. (Emphasis ours.)

2. A letter54 signed by Parañaque City Mayor Joey Marquez dated January 27, 2003, addressed to Mr. Roberto Guevara, Office of the Barangay Captain, Barangay Sun Valley, which reads in part:

This refers to your intended implementation of Barangay Sun Valley Resolution No. 98-096 entitled, "A RESOLUTION DIRECTING THE NEW SUN VALLEY HOMEOWNERS ASSOCIATION TO OPEN ROSEMALLOW AND ASTER STREETS TO VEHICULAR AND PEDESTRIAN TRAFFIC."

In this regard and pursuant to the provisions of Sec. 32 of the Local Government Code of 1991 which vests upon the city mayor the right to exercise general supervision over component barangays, to ensure that said barangays act within the scope of their prescribed powers and functions, you are hereby directed to defer your implementation of the subject ordinance based on the following grounds:

1. The roads subject of your resolution is a municipal road and not a barangay road;

2. The opening or closure of any local road may be undertaken by a local government unit pursuant to an ordinance and not through a mere resolution as provided under Sec. 21 of the Local Government Code of 1991;

3. There is no more need to order the opening of the aforementioned roads in view of the fact that Gelia and State Ave., have already been opened by the subdivision to the general public to accommodate vehicular and pedestrian traffic in the area;

4. There is a need to conduct public hearings, as in fact we shall be conducting public hearings, on the matter to enable us to arrive at an intelligent resolution of the issues involved.

3. A letter55 dated January 31, 2003 addressed to Mayor Joey Marquez, signed by counsel for respondents, wherein the latter wrote:

We regret to observe that all the reasons that you have cited in your letter as grounds for your order of non-implementation of the Barangay Resolution have been passed upon and decided by the Court of Appeals, which lately denied the NSVHA Motion for Reconsideration x x x.

x x x x

The Decision of the Court of Appeals is now the subject of an appeal taken by the NSVHA to the Supreme Court. In deference to the high Court, you would do well to reconsider your order to the Barangay and not pre-empt the high Court on its decision. x x x.

Arguments of Respondents

Respondents filed their Comment56 on July 17, 2003. They manifest that the petition is substantially a reproduction of petitioner’s brief filed with the Court of Appeals, and consists of almost identical issues which have already been ventilated and decided upon by the said court.

Respondents claim that the hearing held on November 20, 1998, as found by the Court of Appeals, covered both the injunction and dismissal incidents, and that the motion to dismiss on issues of jurisdiction was a prejudicial matter. Respondents confirm that the RTC said it will proceed first with the hearing, but the lower court did not specify if the hearing was going to take up the prayer for the issuance of preliminary injunction or the motion to dismiss. Respondents further claim that by the end of the hearing, after Atty. Florencio R. Herrera’s manifestation on the donated public roads, counsels for both parties were asked by the court if they were submitting, and both of them answered in the affirmative. 57 Respondents aver that petitioner’s reply to its charge of misleading the Court was an admission that counsel had tampered without authority with the TSN, and that the phrase "referring to the scheduled hearing of the prayer for the issuance of the writ of preliminary injunction"58 was said counsel’s own mere footnote.

Respondents allege that the issuance of the titles in favor of Parañaque over all the roads in Sun Valley Subdivision was an official act by the land registration office of the City of Parañaque, and was perfectly within the judicial notice of the Courts, pursuant to Rule 129, Section 1 of the Rules of Court.59 Respondents likewise allege that the gates were earlier built illegally on the roads by the Association, and while petitioner may lend a

helping hand to the barangay, it cannot control the latter’s discretion as to the wisdom of its traffic policies within the barangay. They maintain that petitioner had no business putting up road blocks in the first place; that this matter is purely a local government determination; and that it is even doubtful if courts would encroach upon this autonomous determination for local constituents of the Barangay in deference to the doctrine of separation of powers.

Respondents claim that since the subject matter of the case is a directive of the Barangay to the petitioner, the requirement for an ordinance would not be necessary, as there was no legislative determination in the Barangay resolution regarding what class of roads to open or what to close by way of general policy. 60

Respondents contend that the Barangay Resolution was internal and temporary, passed to solve a traffic problem. They propose a reason why petitioner allegedly wants to control the subject roads, as follows:

The directive of the Barangay is certainly a declaration of an intention expressed by resolution on complaints of residents for a convenient outlet of cars and pedestrians during certain hours of the [day] or night. This need not be the subject of an ordinance. It is addressed to a special group of residents, and not to the general community. It refers to particular roads and at certain hours only, not to all the roads and at all hours.

Hence, the Barangay Resolutions (sic) is but temporary in character, being a solution to a momentary traffic problem then visualized by the Barangay and encouraged by the MMDA. There is no legal question involved that is of any concern to the NSVHA. The prevailing reason why the NSVHA desires to control the roads is the monetary consideration it gains by its unilateral requirement of car stickers and of substantial fees exacted from delivery vans and trucks for bringing in cargo into the subdivision. And yet, the residents who, never gave their consent to this activities (sic), are busy people and have merely tolerated this for a long time now. This tolerance did not of course give legality to the illegal act. x x x.61

As regards petitioner’s argument that the BSV Sangguniang Barangay should have passed an ordinance instead of a resolution, respondents present their counter-argument as follows:

Hence, even assuming for the sake of argument that a legal question exists on whether it be a resolution or ordinance that should contain the Barangay directive, such an issue is of no moment as plaintiff-appellant failed to exhaust the necessary administrative remedies before resorting to court action, as found by the trial court and the Court of Appeals. Section 32, R.A. 7160 (Local Government Code of 1991) provides for a remedy from Barangay actions to the Mayor under the latter’s power of general supervision.62

With regard to the Mayor’s involvement in this case, respondents have this to say:

The Mayor’s act of interfering in Barangay Sun Valley affairs stemmed out of a long-standing political feud of the Mayor with the Punong Barangay. Its general supervision did not extend to pure Barangay matters, which the Barangay would be x x x in a better position to determine.

Furthermore, the general supervision of the Mayor is limited to the overseeing authority that the Barangays act within the scope of their prescribed powers and functions. Sadly, there is nothing in this Mayor’s letter x x x that would as much as show a deviation by the Barangay Sun Valley from any prescribed powers or function. The Mayor’s directive to the Barangay is of doubtful legality.

It was mainly the mounting traffic problem progressively experienced through the years that prompted the Barangay to resolve to open Rosemallow and Aster Streets in accordance with its power under Section 21 of R.A. 7160 to "temporarily open or close any local road falling within its jurisdiction". This Resolution x x x was decided upon after the Barangay Council made the necessary investigation and conducted hearings in consultation with affected residents. In order to maintain some kind of cordial relationship with the NSVHA,

the Barangay by its resolution, opted to give the NSVHA the chance to open the roads, which it earlier closed by means of arbitrarily putting up steel gates without any apparent authority.63

Furthermore, respondents aver that the trial court and the appellate court have ruled that only a local government unit (LGU), in this case the Barangay, can open or close roads, whether they be public or private, in accordance with Section 21 of the Local Government Code. Respondents contend that Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc.,64 wherein the Court discussed the power of LGUs to open and close roads, is substantially in point.65

After the submission of the parties’ respective memoranda,66 this case was submitted for decision.

The issues before us are:

1. Whether or not petitioner has a right to the protection of the law that would entitle it to injunctive relief against the implementation of BSV Resolution No. 98-096; and

2. Whether or not petitioner failed to exhaust administrative remedies.

The Ruling of the Court

The Court of Appeals passed upon petitioner’s claims as to the validity of the dismissal in this wise:

We do not agree. Although the Motion to Dismiss was filed on the same day, but after, the Amended Petition was filed, the same cannot be considered as directed merely against the original petition which Appellant already considers as non-existing. The records will show that Appellant’s Amended Petition contained no material amendments to the original petition. Both allege the same factual circumstances or events that constitute the Appellant’s cause of action anent the Appellee’s alleged violation of Appellant’s propriety rights over the subdivision roads in question. Corollarily, the allegations in Appellees’ Motion to Dismiss, as well as the grounds therefore predicated on lack of cause of action and jurisdiction, could very well be considered as likewise addressed to Appellant’s Amended Petition.

x x x x

It bears stressing that due process simply means giving every contending party the opportunity to be heard and the court to consider every piece of evidence presented in their favor (Batangas Laguna Tayabas Bus Company versus Benjamin Bitanga, G.R. Nos. 137934 & 137936[)]. In the instant case, Appellant cannot be said to have been denied of due process. As borne by the records, while Appellees’ Motion to Dismiss did not set the time for the hearing of the motion, the day set therefore was the same date set for the hearing of Appellant’s prayer for the issuance of a writ of preliminary injunction – that is, November 20, 1998, with the precise purpose of presenting evidence in support of the motion to dismiss on the same said scheduled hearing date and time when Appellant and its counsel would be present. Moreover, Appellant’s predication of lack of due hearing is belied by the fact that the hearing held on November 20, 1999 took up not only the matter of whether or not to grant the injunction, but also tackled the jurisdictional issue raised in Appellees’ Motion to Dismiss, which issues were intertwined in both incidents. 67

We see no reason to depart from these findings by the Court of Appeals. Petitioner’s recourse in questioning BSV Resolution No. 98-096 should have been with the Mayor of Parañaque City, as clearly stated in Section 32 of the Local Government Code, which provides:

Section 32. City and Municipal Supervision over Their Respective Barangays. - The city or municipality, through the city or municipal mayor concerned, shall exercise general supervision over component barangays to ensure that said barangays act within the scope of their prescribed powers and functions.

We do not see how petitioner’s act could qualify as an exception to the doctrine of exhaustion of administrative remedies. We have emphasized the importance of applying this doctrine in a recent case, wherein we held:

The doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. The rationale for this doctrine is obvious. It entails lesser expenses and provides for the speedier resolution of controversies. Comity and convenience also impel courts of justice to shy away from a dispute until the system of administrative redress has been completed.68

It is the Mayor who can best review the Sangguniang Barangay’s actions to see if it acted within the scope of its prescribed powers and functions. Indeed, this is a local problem to be resolved within the local government. Thus, the Court of Appeals correctly found that the trial court committed no reversible error in dismissing the case for petitioner’s failure to exhaust administrative remedies, as the requirement under the Local Government Code that the closure and opening of roads be made pursuant to an ordinance, instead of a resolution, is not applicable in this case because the subject roads belong to the City Government of Parañaque.

Moreover, being the party asking for injunctive relief, the burden of proof was on petitioner to show ownership over the subject roads. This, petitioner failed to do.

In civil cases, it is a basic rule that the party making allegations has the burden of proving them by a preponderance of evidence. Parties must rely on the strength of their own evidence and not upon the weakness of the defense offered by their opponent.69

Petitioner dared to question the barangay’s ownership over the subject roads when it should have been the one to adduce evidence to support its broad claims of exclusivity and privacy. Petitioner did not submit an iota of proof to support its acts of ownership, which, as pointed out by respondents, consisted of closing the subject roads that belonged to the then Municipality of Parañaque and were already being used by the public, limiting their use exclusively to the subdivision’s homeowners, and collecting fees from delivery vans that would pass through the gates that they themselves had built. It is petitioner’s authority to put up the road blocks in the first place that becomes highly questionable absent any proof of ownership.

On the other hand, the local government unit’s power to close and open roads within its jurisdiction is clear under the Local Government Code, Section 21 of which provides:

Section 21. Closure and Opening of Roads. – (a) A local government unit may, pursuant to an ordinance, permanently or temporarily close or open any local road, alley, park, or square falling within its jurisdiction: Provided, however, That in case of permanent closure, such ordinance must be approved by at least two-thirds (2/3) of all the members of the sanggunian, and when necessary, an adequate substitute for the public facility that is subject to closure is provided.

We quote with approval the ruling of the Court of Appeals in this regard, as follows:

Contrary, however, to Appellant’s position, the above-quoted provision, which requires the passage of an ordinance by a local government unit to effect the opening of a local road, can have no applicability to the instant case since the subdivision road lots sought to be opened to decongest traffic in the area - namely Rosemallow and Aster Streets – have already been donated by the Sun Valley Subdivision to, and the titles thereto already issued in the name of, the City Government of Parañaque since the year 1964 (Annexes "2" to "7" of Appellees’ Brief). This fact has not even been denied by the Appellant in the proceedings below nor in the present recourse. Having been already donated or turned over to the City Government of Parañaque, the road lots in question have since then taken the nature of public roads which are withdrawn from the commerce of man, and hence placed beyond the private rights or claims of herein Appellant. Accordingly, the Appellant

was not in the lawful exercise of its predicated rights when it built obstructing structures closing the road lots in question to vehicular traffic for the use of the general Public. Consequently, Appellees’ act of passing the disputed barangay resolution, the implementation of which is sought to be restrained by Appellant, had for its purpose not the opening of a private road but may be considered merely as a directive or reminder to the Appellant to cause the opening of a public road which should rightfully be open for use to the general public.70

Petitioner wants this Court to recognize the rights and interests of the residents of Sun Valley Subdivision but it miserably failed to establish the legal basis, such as its ownership of the subject roads, which entitles petitioner to the remedy prayed for. It even wants this Court to take "judicial knowledge that criminal activities such as robbery and kidnappings are becoming daily fares in Philippine society."71 This is absurd. The Rules of Court provide which matters constitute judicial notice, to wit:

Rule 129WHAT NEED NOT BE PROVED

SECTION 1. Judicial notice, when mandatory.—A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.(1a)1avvphi1

The activities claimed by petitioner to be part of judicial knowledge are not found in the rule quoted above and do not support its petition for injunctive relief in any way.

As petitioner has failed to establish that it has any right entitled to the protection of the law, and it also failed to exhaust administrative remedies by applying for injunctive relief instead of going to the Mayor as provided by the Local Government Code, the petition must be denied.

WHEREFORE, premises considered, the petition is hereby DENIED. The Court of Appeals’ DECISION dated October 16, 2002 and its RESOLUTION dated January 17, 2003 in CA-G.R. CV No. 65559 are both AFFIRMED.

SO ORDERED.

epublic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. 129742 September 16, 1998

TERESITA G. FABIAN, petitioner, vs.HON. ANIANO A. DESIERTO, in his capacity as Ombudsman; HON. JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for Luzon; and NESTOR V. AGUSTIN, respondents.

 

REGALADO, J.:

Petitioner has appealed to us by certiorari under Rule 45 of the Rules of Court from the "Joint Order" issued by public respondents on June 18, 1997 in OMB-Adm. Case No. 0-95-0411 which granted the motion for reconsideration of and absolved private respondent from administrative charges for inter alia grave misconduct committed by him as then Assistant Regional Director, Region IV-A, Department of Public Works and Highways (DPWH).

I

It appears from the statement and counter-statement of facts of the parties that petitioner Teresita G. Fabian was the major stockholder and president of PROMAT Construction Development Corporation (PROMAT) which was engaged in the construction business. Private respondent Nestor V. Agustin was the incumbent District Engineer of the First Metro Manila Engineering District (FMED) when he allegedly committed the offenses for which he was administratively charged in the Office of the Ombudsman.

PROMAT participated in the bidding for government construction projects including those under the FMED, and private respondent, reportedly taking advantage of his official position, inveigled petitioner into an amorous relationship. Their affair lasted for some time, in the course of which private respondent gifted PROMAT with public works contracts and interceded for it in problems concerning the same in his office.

Later, misunderstandings and unpleasant incidents developed between the parties and when petitioner tried to terminate their relationship, private respondent refused and resisted her attempts to do so to the extent of employing acts of harassment, intimidation and threats. She eventually filed the aforementioned administrative case against him in a letter-complaint dated July 24, 1995.

The said complaint sought the dismissal of private respondent for violation of Section 19, Republic Act No. 6770 (Ombudsman Act of 1989) and Section 36 of Presidential Decree No. 807 (Civil Service Decree), with an ancillary prayer for his preventive suspension. For purposes of this case, the charges referred to may be subsumed under the category of oppression, misconduct, and disgraceful or immoral conduct.

On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a resolution finding private respondent guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all benefits under the law. His resolution bore the approval of Director Napoleon Baldrias and Assistant Ombudsman Abelardo Aportadera of their office.

Herein respondent Ombudsman, in an Order dated February 26, 1996, approved the aforesaid resolution with modifications, by finding private respondent guilty of misconduct and meting out the penalty of suspension without pay for one year. After private respondent moved for reconsideration, respondent Ombudsman discovered that the former's new counsel had been his "classmate and close associate" hence he inhibited himself. The case was transferred to respondent Deputy Ombudsman Jesus F. Guerrero who, in the now challenged Joint Order of June 18, 1997, set aside the February 26, 1997 Order of respondent Ombudsman and exonerated private respondent from the administrative charges.

II

In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989) 1 pertinently provides that —

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written

notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court (Emphasis supplied)

However, she points out that under Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), 2 when a respondent is absolved of the charges in an administrative proceeding the decision of the Ombudsman is final and unappealable. She accordingly submits that the Office of the Ombudsman has no authority under the law to restrict, in the manner provided in its aforesaid Rules, the right of appeal allowed by Republic Act No. 6770, nor to limit the power of review of this Court. Because of the aforecited provision in those Rules of Procedure, she claims that she found it "necessary to take an alternative recourse under Rule 65 of the Rules of Court, because of the doubt it creates on the availability of appeal under Rule 45 of the Rules of Court.

Respondents filed their respective comments and rejoined that the Office of the Ombudsman is empowered by the Constitution and the law to promulgate its own rules of procedure. Section 13(8), Article XI of the 1987 Constitution provides, among others, that the Office of the Ombudsman can "(p)romulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law."

Republic Act No. 6770 duly implements the Constitutional mandate with these relevant provisions:

Sec. 14. Restrictions. — . . . No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman except the Supreme Court on pure questions of law.

xxx xxx xxx

Sec. 18. Rules of Procedure. — (1) The Office of the Ombudsman shall promulgate its own rules of procedure for the effective exercise or performance of its powers, functions, and duties.

xxx xxx xxx

Sec. 23. Formal Investigation. — (1) Administrative investigations by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process. . . . .

xxx xxx xxx

Sec. 27. Effectivity and Finality of Decisions. — All previsionary orders at the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:

xxx xxx xxx

Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month salary shall be final and unappealable.

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

The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require.

Respondents consequently contend that, on the foregoing constitutional and statutory authority, petitioner cannot assail the validity of the rules of procedure formulated by the Office of the Ombudsman governing the conduct of proceedings before it, including those rules with respect to the availability or non-availability of appeal in administrative cases, such as Section 7, Rule III of Administrative Order No. 07.

Respondents also question the propriety of petitioner's proposition that, although she definitely prefaced her petition by categorizing the same as "an appeal by certiorari under Rule 45 of the Rules of Court," she makes the aforequoted ambivalent statement which in effect asks that, should the remedy under Rule 45 be unavailable, her petition be treated in the alternative as an original action for certiorari under Rule 65. The parties thereafter engage in a discussion of the differences between a petition for review on certiorari under Rule 45 and a special civil action of certiorari under Rule 65.

Ultimately, they also attempt to review and rationalize the decisions of this Court applying Section 27 of Republic Act. No. 6770 vis-a-vis Section 7, Rule III of Administrative Order No. 07. As correctly pointed out by public respondent, Ocampo IV vs. Ombudsman, et al. 3 and Young vs. Office of the Ombudsman, et al. 4 were original actions for certiorari under Rule 65. Yabut vs. Office of the Ombudsman, et al. 5 was commenced by a petition for review on certiorari under Rule 45. Then came Cruz, Jr. vs. People, et al., 6 Olivas vs. Office of the Ombudsman, et al., 7 Olivarez vs. Sandiganbayan, et al., 8 and Jao, et al. vs. Vasquez, 9 which were for certiorari, prohibition and/or mandamus under Rule 65. Alba vs. Nitorreda, et al. 10 was initiated by a pleading unlikely denominated as an "Appeal/Petition for Certiorari and/or Prohibition," with a prayer for ancillary remedies, and ultimately followed by Constantino vs. Hon. Ombudsman Aniano Desierto, et al. 11 which was a special civil action for certiorari.

Considering, however, the view that this Court now takes of the case at bar and the issues therein which will shortly be explained, it refrains from preemptively resolving the controverted points raised by the parties on the nature and propriety of application of the writ of certiorari when used as a mode of appeal or as the basis of a special original action, and whether or not they may be resorted to concurrently or alternatively, obvious though the answers thereto appear to be. Besides, some seemingly obiter statements in Yabut and Alba could bear reexamination and clarification. Hence, we will merely observe and lay down the rule at this juncture that Section 27 of Republic Act No. 6770 is involved only whenever an appeal by certiorari under Rule 45 is taken from a decision in an administrative disciplinary action. It cannot be taken into account where an original action for certiorari under Rule 65 is resorted to as a remedy for judicial review, such as from an incident in a criminal action.

III

After respondents' separate comments had been filed, the Court was intrigued by the fact, which does not appear to have been seriously considered before, that the administrative liability of a public official could fall under the jurisdiction of both the Civil Service Commission and the Office of the Ombudsman. Thus, the offenses imputed to herein private respondent were based on both Section 19 of Republic Act No. 6770 and Section 36 of Presidential Decree No. 807. Yet, pursuant to the amendment of Section 9, Batas Pambansa Blg. 129 by Republic Act No. 7902, all adjudications by the Civil Service Commission in administrative disciplinary cases were made appealable to the Court of Appeals effective March 18, 1995, while those of the Office of the Ombudsman are appealable to this Court.

It could thus be possible that in the same administrative case involving two respondents, the proceedings against one could eventually have been elevated to the Court of Appeals, while the other may have found its way to the Ombudsman from which it is sought to be brought to this Court. Yet systematic and efficient case management

would dictate the consolidation of those cases in the Court of Appeals, both for expediency and to avoid possible conflicting decisions.

Then there is the consideration that Section 30, Article VI of the 1987 Constitution provides that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and consent," and that Republic Act No. 6770, with its challenged Section 27, took effect on November 17, 1989, obviously in spite of that constitutional prohibition. The conventional rule, however, is that a challenge on constitutional grounds must be raised by a party to the case, neither of whom did so in this case, but that is not an inflexible rule, as we shall explain.

Since the constitution is intended for the observance of the judiciary and other departments of the government and the judges are sworn to support its provisions; the courts are not at liberty to overlook or disregard its commands or countenance evasions thereof. When it is clear that a statute transgresses the authority vested in a legislative body, it is the duty of the courts to declare that the constitution, and not the statute, governs in a case before them forjudgment. 12

Thus, while courts will not ordinarily pass upon constitutional questions which are not raised in the pleadings, 13 the rule has been recognized to admit of certain exceptions. It does not preclude a court from inquiring into its own jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If a statute on which a court's jurisdiction in a proceeding depends is unconstitutional, the court has no jurisdiction in the proceeding, and since it may determine whether or not it has jurisdiction, it necessarily follows that it may inquire into the constitutionality of the statute. 14

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless the jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any time or on the court's own motion. 15 The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where that fact is developed. 16 The court has a clearly recognized right to determine its own jurisdiction in any proceeding. 17

The foregoing authorities notwithstanding, the Court believed that the parties hereto should be further heard on this constitutional question. Correspondingly, the following resolution was issued on May 14, 1998, the material parts stating as follows:

The Court observes that the present petition, from the very allegations thereof, is "an appeal by certiorari under Rule 45 of the Rules of Court from the "Joint Order (Re: Motion for Reconsideration)" issued in OMB-Adm. Case No. 0-95-0411, entitled "Teresita G. Fabian vs. Engr. Nestor V. Agustin, Asst. Regional Director, Region IV-A, EDSA, Quezon City," which absolved the latter from the administrative charges for grave misconduct, among others.

It is further averred therein that the present appeal to this Court is allowed under Section 27 of the Ombudsman Act of 1987 (R.A. No. 6770) and, pursuant thereto, the Office of the Ombudsman issued its Rules of Procedure, Section 7 whereof is assailed by petitioner in this proceeding. It will be recalled that R.A. No. 6770 was enacted on November 17, 1989, with Section 27 thereof pertinently providing that all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to this Court in accordance with Rule 45 of the Rules of Court.

The Court notes, however, that neither the petition nor the two comments thereon took into account or discussed the validity of the aforestated Section 27 of R.A. No. 8770 in light of the provisions of Section 30, Article VI of the 1987 Constitution that "(n)o law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and consent."

The Court also invites the attention of the parties to its relevant ruling in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al. (G.R. No. 110571, October 7, 1994, 237 SCRA 519) and the provisions of its former Circular No. 1-91 and Revised Administrative Circular No. 1-95, as now substantially reproduced in Rule 43 of the 1997 revision of the Rules of Civil Procedure.

In view of the fact that the appellate jurisdiction of the Court is invoked and involved in this case, and the foregoing legal considerations appear to impugn the constitutionality and validity of the grant of said appellate jurisdiction to it, the Court deems it necessary that the parties be heard thereon and the issue be first resolved before conducting further proceedings in this appellate review.

ACCORDINGLY, the Court Resolved to require the parties to SUBMIT their position and arguments on the matter subject of this resolution by filing their corresponding pleadings within ten (10) days from notice hereof.

IV

The records do not show that the Office of the Solicitor General has complied with such requirement, hence the Court dispenses with any submission it should have presented. On the other hand, petitioner espouses the theory that the provision in Section 27 of Republic Act No. 6770 which authorizes an appeal by certiorari to this Court of the aforementioned adjudications of the Office of the Ombudsman is not violative of Section 30, Article VI of the Constitution. She claims that what is proscribed is the passage of a law "increasing" the appellate jurisdiction of this Court "as provided in this Constitution," and such appellate jurisdiction includes "all cases in which only an error or question of law is involved." Since Section 5(2)(e), Article VIII of the Constitution authorizes this Court to review, revise, reverse, modify, or affirm on appeal or certiorari the aforesaid final judgment or orders "as the law or the Rules of Court may provide," said Section 27 does not increase this Court's appellate jurisdiction since, by providing that the mode of appeal shall be by petition for certiorari under Rule 45, then what may be raised therein are only questions of law of which this Court already has jurisdiction.

We are not impressed by this discourse. It overlooks the fact that by jurisprudential developments over the years, this Court has allowed appeals by certiorari under Rule 45 in a substantial number of cases and instances even if questions of fact are directly involved and have to be resolved by the appellate court. 18 Also, the very provision cited by petitioner specifies that the appellate jurisdiction of this Court contemplated therein is to be exercised over "final judgments and orders of lower courts," that is, the courts composing the integrated judicial system. It does not include the quasi-judicial bodies or agencies, hence whenever the legislature intends that the decisions or resolutions of the quasi-judicial agency shall be reviewable by the Supreme Court or the Court of Appeals, a specific provision to that effect is included in the law creating that quasi-judicial agency and, for that matter, any special statutory court. No such provision on appellate procedure is required for the regular courts of the integrated judicial system because they are what are referred to and already provided for, in Section 5, Article VIII of the Constitution.

Apropos to the foregoing, and as correctly observed by private respondent, the revised Rules of Civil Procedure 19 preclude appeals from quasi-judicial agencies to the Supreme Court via a petition for review on certiorari under Rule 45. In the 1997 Rules of Civil Procedure, Section 1 of Rule 45, on "Appeal by Certiorari to the Supreme Court," explicitly states:

Sec. 1. Filing of petition with Supreme Court. — A person desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (Emphasis ours).

This differs from the former Rule 45 of the 1964 Rules of Court which made mention only of the Court of Appeals, and had to be adopted in statutes creating and providing for appeals from certain administrative or quasi-judicial agencies, whenever the purpose was to restrict the scope of the appeal to questions of law. That

intended limitation on appellate review, as we have just discussed, was not fully subserved by recourse to the former Rule 45 but, then, at that time there was no uniform rule on appeals from quasi-judicial agencies.

Under the present Rule 45, appeals may be brought through a petition for review on certiorari but only from judgments and final orders of the courts enumerated in Section 1 thereof. Appeals from judgments and final orders of quasi-judicial agencies 20 are now required to be brought to the Court of Appeals on a verified petition for review, under the requirements and conditions in Rule 43 which was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial agencies. 21

It is suggested, however, that the provisions of Rule 43 should apply only to "ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman which is a "high constitutional body." We see no reason for this distinction for, if hierarchical rank should be a criterion, that proposition thereby disregards the fact that Rule 43 even includes the Office of the President and the Civil Service Commission, although the latter is even an independent constitutional commission, unlike the Office of the Ombudsman which is a constitutionally-mandated but statutorily created body.

Regarding the misgiving that the review of the decision of the Office of the Ombudsman by the Court of Appeals would cover questions of law, of fact or of both, we do not perceive that as an objectionable feature. After all, factual controversies are usually involved in administrative disciplinary actions, just like those coming from the Civil Service Commission, and the Court of Appeals as a trier of fact is better prepared than this Court to resolve the same. On the other hand, we cannot have this situation covered by Rule 45 since it now applies only to appeals from the regular courts. Neither can we place it under Rule 65 since the review therein is limited to jurisdictional questions. *

The submission that because this Court has taken cognizance of cases involving Section 27 of Republic Act No. 6770, that fact may be viewed as "acquiescence" or "acceptance" by it of the appellate jurisdiction contemplated in said Section 27, is unfortunately too tenuous. The jurisdiction of a court is not a question of acquiescence as a matter of fact but an issue of conferment as a matter of law. Besides, we have already discussed the cases referred to, including the inaccuracies of some statements therein, and we have pointed out the instances when Rule 45 is involved, hence covered by Section 27 of Republic Act No. 6770 now under discussion, and when that provision would not apply if it is a judicial review under Rule 65.

Private respondent invokes the rule that courts generally avoid having to decide a constitutional question, especially when the case can be decided on other grounds. As a general proposition that is correct. Here, however, there is an actual case susceptible of judicial determination. Also, the constitutional question, at the instance of this Court, was raised by the proper parties, although there was even no need for that because the Court can rule on the matter sua sponte when its appellate jurisdiction is involved. The constitutional question was timely raised, although it could even be raised any time likewise by reason of the jurisdictional issue confronting the Court. Finally, the resolution of the constitutional issue here is obviously necessary for the resolution of the present case. 22

It is, however, suggested that this case could also be decided on other grounds, short of passing upon the constitutional question. We appreciate the ratiocination of private respondent but regret that we must reject the same. That private respondent could be absolved of the charge because the decision exonerating him is final and unappealable assumes that Section 7, Rule III of Administrative Order No. 07 is valid, but that is precisely one of the issues here. The prevailing rule that the Court should not interfere with the discretion of the Ombudsman in prosecuting or dismissing a complaint is not applicable in this administrative case, as earlier explained. That two decisions rendered by this Court supposedly imply the validity of the aforementioned Section 7 of Rule III is precisely under review here because of some statements therein somewhat at odds with settled rules and the decisions of this Court on the same issues, hence to invoke the same would be to beg the question.

V

Taking all the foregoing circumstances in their true legal roles and effects, therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of the Ombudsman in administrative disciplinary cases. It consequently violates the proscription in Section 30, Article VI of the Constitution against a law which increases the appellate jurisdiction of this Court. No countervailing argument has been cogently presented to justify such disregard of the constitutional prohibition which, as correctly explained in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al. 23 was intended to give this Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court. 24

We perforce have to likewise reject the supposed inconsistency of the ruling in First Lepanto Ceramics and some statements in Yabut and Alba, not only because of the difference in the factual settings, but also because those isolated cryptic statements in Yabut and Alba should best be clarified in the adjudication on the merits of this case. By way of anticipation, that will have to be undertaken by the proper court of competent jurisdiction.

Furthermore, in addition to our preceding discussion on whether Section 27 of Republic Act No. 6770 expanded the jurisdiction of this Court without its advice and consent, private respondent's position paper correctly yields the legislative background of Republic Act No. 6770. On September 26, 1989, the Conference Committee Report on S.B. No. 453 and H.B. No. 13646, setting forth the new version of what would later be Republic Act No. 6770, was approved on second reading by the House of Representatives. 25 The Senate was informed of the approval of the final version of the Act on October 2, 1989 26 and the same was thereafter enacted into law by President Aquino on November 17, 1989.

Submitted with said position paper is an excerpt showing that the Senate, in the deliberations on the procedure for appeal from the Office of the Ombudsman to this Court, was aware of the provisions of Section 30, Article III of the Constitution. It also reveals that Senator Edgardo Angara, as a co-author and the principal sponsor of S.B. No. 543 admitted that the said provision will expand this Court's jurisdiction, and that the Committee on Justice and Human Rights had not consulted this Court on the matter, thus:

INTERPELLATION OF SENATOR SHAHANI

xxx xxx xxx

Thereafter, with reference to Section 22(4) which provides that the decisions of the Office of the Ombudsman may be appealed to the Supreme Court, in reply to Senator Shahani's query whether the Supreme Court would agree to such provision in the light of Section 30, Article VI of the Constitution which requires its advice and concurrence in laws increasing its appellate jurisdiction, Senator Angara informed that the Committee has not yet consulted the Supreme Court regarding the matter. He agreed that the provision will expand the Supreme Court's jurisdiction by allowing appeals through petitions for review, adding that they should be appeals on certiorari. 27

There is no showing that even up to its enactment, Republic Act No. 6770 was ever referred to this Court for its advice and consent. 28

VI

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43.

There is an intimation in the pleadings, however, that said Section 27 refers to appellate jurisdiction which, being substantive in nature, cannot be disregarded by this Court under its rule-making power, especially if it

results in a diminution, increase or modification of substantive rights. Obviously, however, where the law is procedural in essence and purpose, the foregoing consideration would not pose a proscriptive issue against the exercise of the rule-making power of this Court. This brings to fore the question of whether Section 27 of Republic Act No. 6770 is substantive or procedural.

It will be noted that no definitive line can be drawn between those rules or statutes which are procedural, hence within the scope of this Court's rule-making power, and those which are substantive. In fact, a particular rule may be procedural in one context and substantive in another. 29 It is admitted that what is procedural and what is substantive is frequently a question of greatdifficulty. 30 It is not, however, an insurmountable problem if a rational and pragmatic approach is taken within the context of our own procedural and jurisdictional system.

In determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. 31 If the rule takes away a vested right, it is no; procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of implementing an existing right then the rule deals merely with procedure. 32

In the situation under consideration, a transfer by the Supreme Court, in the exercise of its rule-making power, of pending cases involving a review of decisions of the Office of the Ombudsman in administrative disciplinary actions to the Court of Appeals which shall now be vested with exclusive appellate jurisdiction thereover, relates to procedure only. 33 This is so because it is not the right to appeal of an aggrieved party which is affected by the law. That right has been preserved. Only the procedure by which the appeal is to be made or decided has been changed. The rationale for this is that no litigant has a vested right in a particular remedy, which may be changed by substitution without impairing vested rights, hence he can have none in rules of procedure which relate to the remedy. 34

Furthermore, it cannot be said that the transfer of appellate jurisdiction to the Court of Appeals in this case is an act of creating a new right of appeal because such power of the Supreme Court to transfer appeals to subordinate appellate courts is purely a procedural and not a substantive power. Neither can we consider such transfer as impairing a vested right because the parties have still a remedy and still a competent tribunal to administer that remedy. 35

Thus, it has been generally held that rules or statutes involving a transfer of cases from one court to another, are procedural and remedial merely and that, as such, they are applicable to actions pending at the time the statute went into effect 36 or, in the case at bar, when its invalidity was declared. Accordingly, even from the standpoint of jurisdiction ex hypothesi, the validity of the transfer of appeals in said cases to the Court of Appeals can be sustained.

WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman), and any other provision of law or issuance implementing the aforesaid Act and insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to the Supreme Court, are hereby declared INVALID and of no further force and effect.

The instant petition is hereby referred and transferred to the Court of Appeals for final disposition, with said petition to be considered by the Court of Appeals pro hoc vice as a petition for review under Rule 43, without prejudice to its requiring the parties to submit such amended or supplemental pleadings and additional documents or records as it may deem necessary and proper.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.

Footnotes

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 169042               October 5, 2011

ERDITO QUARTO, Petitioner, vs.THE HONORABLE OMBUDSMAN SIMEON MARCELO, CHIEF SPECIAL PROSECUTOR DENNIS VILLA IGNACIO, LUISITO M. TABLAN, RAUL B. BORILLO, and LUIS A. GAYYA, Respondents.

D E C I S I O N

BRION, J.:

Before the Court is a petition for certiorari and mandamus1 filed by Erdito Quarto (petitioner) assailing the Ombudsman’s January 7, 20042 and November 4, 20043 resolutions which granted Luisito M. Tablan, Raul B. Borillo, and Luis A. Gayya (collectively, respondents) immunity from prosecution, resulting in the respondents’ exclusion from the criminal informations filed before the Sandiganbayan. The petitioner seeks to nullify the immunity granted to the respondents, and to compel the Ombudsman to include them as accused in the informations for estafa through falsification of public documents4 and for violation of Section 3(e), Republic Act (RA) No. 3019.5

FACTUAL ANTECEDENTS

The petitioner is the Chief of the Central Equipment and Spare Parts Division (CESPD), 6 Bureau of Equipment (BOE), Department of Public Works and Highways (DPWH), Port Area, Manila. As CESPD Chief, he is also the Head of the Special Inspectorate Team (SIT) of the DPWH.7 The respondents are members of the SIT.8

On January 9, 2002, DPWH Secretary Simeon Datumanong created a committee to investigate alleged anomalous transactions involving the repairs and/or purchase of spare parts of DPWH service vehicles in 2001.9

On January 17, 2002, the committee designated the DPWH Internal Audit Service (IAS) as its Technical Working Group to conduct the actual investigation.10

In the course of its investigation, the DPWH-IAS11 learned that the emergency repairs and/or purchase of spare parts of DPWH service vehicles basically undergo the following documentary process:

I. Determination of repairs and/or spare parts needed

a. The end-user requesting repair brings the service vehicle to the Motorpool Section, CESPD for initial inspection and preparation of Job Order; and

b. Based on the Job Order, the SIT conducts a pre-repair inspection (to determine the necessity of repair and whether the repair is emergency in nature) and prepares a Pre-Repair Inspection Report, with a recommendation for its approval by the CESPD Chief.

II. Preparation and Approval of Requisition for Supplies and/or Equipment with accompanying documents (Job Order and Pre-Inspection Report)

a. The Procurement Section, Administrative Manpower Management Service (AMMS) prepares the Requisition for Supplies and Equipment (RSE), the Canvass Quotation of three Suppliers, the Certificate of Emergency Purchase, and the Certificate of Fair Wear and Tear;

b. The end-user signs the RSE with the recommending approval of the concerned head of office; and

c. The AMMS Director approves the RSE.

III. Repair of Vehicles

a. The end-user selects the repair shop/auto supply from accredited establishments;

b. The selected repair shop/auto supply repairs the service vehicle and issues the corresponding sales invoice and/or official receipt;

c. The end-user accepts the repair and executes a Certificate of Acceptance;

d. The SIT conducts a post-repair inspection (to check if the vehicle was repaired and whether the repair conformed to specifications) and prepares a Post-Repair Inspection Report, with a recommendation for its approval by the CESPD Chief. The Motorpool and the end-user would prepare the Report of Waste Materials also for the signature of the CESPD Chief; and

e. The Assets and Supply Management and Control Division recommends payment of the expense/s incurred.

The processing of the payment of claims for reimbursement follows the above process.

Based on this procedure, the DPWH-IAS discovered that from March to December 2001, several emergency repairs and/or purchase of spare parts of hundreds of DPWH service vehicles, which were approved and paid by the government, did not actually take place, resulting in government losses of approximately P143 million for this ten-month period alone.12

Thus, Atty. Irene D. Ofilada of the DPWH-IAS filed before the Office of the Ombudsman13 a Complaint-Affidavit14 and a Supplemental Complaint-Affidavit15 charging several high-ranking DPWH officials and employees – including the petitioner, the respondents, and other private individuals who purportedly benefited from the anomalous transactions – with Plunder, Money Laundering, Malversation, and violations of RA No. 3019 and the Administrative Code.16

Atty. Ofilada imputed the following acts to the petitioner:

With dishonesty and grave misconduct, [the petitioner] x x x approved four (4) job orders for [the] repairs [and/or] purchase of spare parts of [the vehicle assigned to Atty. Ofilada,] noted the certificate of urgency of said repairs [and/or] purchase[,] concurred with both the pre-repair and post repair inspection reports thereon, participated in the accomplishment of the supporting Requisition for Supplies and Equipment (RSE) x x x[,]

and participated in the approval of the disbursement voucher authorizing payment of said repairs as necessary and lawful [even if said vehicle was never referred to the Motorpool Section, CESPD for repair].

The documents relating to [this vehicle] were filed within a period of one month (between September to October 2001) [and] were used to authorize the payment of said non existent ghost repairs to the damage and prejudice of the [DPWH.]17 (emphases ours)

On the other hand, Atty. Ofilada charged the respondents with the following:

With dishonesty and grave misconduct, [respondents] as members of the [SIT] xxx accomplished and signed Pre-Repair Inspection and Post Repair Inspection Reports in support of the four job orders [and made] it appear that the vehicle was inspected prior and after the alleged repair [although they knew that the vehicle was never turned over for inspection]. The accomplishment of the Pre-Repair and Post-Repair Inspection Report[s] led to the preparation of the Request for Supplies and Equipment which was the basis of the preparation of the disbursement vouchers ultimately authorizing the payment of the said repairs thru reimbursement scheme to the damage and prejudice of the DPWH.

x x x the [P]re-[R]epair and [P]ost-[R]epair [I]nspection [R]eports of the [SIT] xxx are fictitious and falsified as no actual inspection could have transpired[.]18 (emphasis ours)

The petitioner denied the allegations against him, claiming that he merely relied on his subordinates when he signed the job orders and the inspection reports.19 In contrast, the respondents admitted the existence of irregularities in the repairs and/or purchase of spare parts of DPWH service vehicles, and offered to testify and to provide evidence against the DPWH officials and employees involved in the anomaly in exchange for their immunity from prosecution. The respondents submitted:

5.2 x x x since we assumed our duties as members of the SIT xxx, we observed that [the] DPWH vehicles were being sent to the repair shop in violation of the prescribed guidelines governing the emergency repair of a service vehicle. In most instances, service vehicles are immediately brought to a car repair shop of the end-user’s choice without bringing it first to the [Motorpool Section, CESPD, BOE] for the preparation of the required job order by [Gayya] of the Motorpool Section and the pre-repair inspection to be conducted by the SIT. After the purported repairs are done, SIT members are made to sign a post-repair inspection report which already includes a typed-in recommendation for the payment of repairs, and the signature of the Head of the [SIT] indicating his alleged concurrence with the findings of the SIT despite the absence of an actual inspection. The post-repair inspection report is accompanied by the following attachments, to wit: a) a falsified job order signed by the head of the [SIT] and the Chief of the Motorpool Section x x x [and] e) an empty or falsified [p]re-repair inspection report[.]

5.3 Initially[,] we tried to curb the above anomalous practices being perpetrated by suppliers and officials of the DPWH x x x [by making] known [our] objections to the questionable job orders for the proposed repairs of DPWH service vehicles[,] thus:

a. On July, 9, 1999, [Tablan] wrote the Head of the SIT a memorandum x x x stating that the job orders for [several identified vehicles] x x x violated the prohibition against splitting of job orders x x x. [Tablan recommended for public bidding the proposed repairs for the said vehicles].

b. In connection with the job orders involving [several identified vehicles] x x x Tablan and Borillo wrote the Head of the SIT a Memorandum x x x recommending that the whereabouts of the end-user be verified, and the service vehicle be re-inspected and/or disposed of.

c. Since the July 9, 1999 Memorandum was returned to x x x Tablan without any action being undertaken by the SIT Chief, [Tablan and Borillo] reiterated the recommendation for the public bidding of the proposed repairs described therein[.]

6. In our attempts to perform our sworn duties, however, we incurred the displeasure of the suppliers, the head of [SIT] and other officials of the DPWH who threatened various administrative sanctions against us if we should not accede to their wishes. x x x

7. In addition to the foregoing, there are other factors which conspired to prevent us from properly performing our duties. For one, the DPWH processes an average of 3,000 repairs per calendar year. Given the staggering number and extent of repairs, including the volume of paperwork, it was practically impossible for [us] to implement the rules which proved too tedious under the circumstance. As such, a "short-cut" of the rules was necessary to accommodate the demands of the end-user, the suppliers, our superiors, and other executives of the DPWH. x x x

8. The anomalous practices of the DPWH executives and suppliers in the purported repair of DPWH service vehicles were indeed more widespread and rampant in the year 2001. As a precautionary measure, we took the initiative of photocopying these sets of falsified documents as they were presented to us before we affixed our respective signatures thereon. We grouped these documents into Sets A and B[.]

x x x x

11. x x x That the service vehicle x x x has not been actually inspected by [Tablan and Borillo] is attested to by the pre and post repair inspection reports initially bearing the signature of the head of the SIT as concurring official without the required signatures of Borillo and Tablan. More importantly, these DPWH officials did not bother, in a majority of cases, to "cover their tracks" when they prepared and signed the pre and post repair inspection reports on the same dates. Based on proper procedure, a post repair inspection report is to be accomplished only after the preparation and approval of the Job Order, pre-repair inspection report, RSE, Cash Invoice and Acceptance by the end-user. In this case, the RSE, Cash Invoice and Certificate of Acceptance are dated much later than the post-repair inspection report. Since xxx there was no actual pre-repair and post-repair inspection conducted, the foregoing sample instances paved the way for the "ghost repairs" of DPWH service vehicles, to the detriment and prejudice of the government.

12. Because of the anomalous transactions, the joke circulating around the DPWH is that we are actually the directors of the DPWH since we are the "last to sign," so to speak. That the signature[s] of the [respondent] SIT members are merely pro forma is all the more pronounced in a sample set consisting of a number of pre-repair inspection reports for a particular month in 2001. The pre-repair inspection reports of the service vehicles indicated therein are empty of any findings and bear the signature of the head of the SIT as concurring official. All the foregoing documents above detailed negate the convenient excuse proffered by DPWH executives that they sign the documents only after the SIT had inspected the service vehicle and prepared the pre and post repair inspection reports.

x x x x

14.1 xxx the above examples are only a representative sampling of the extent of the anomalous transactions involving DPWH service vehicles which can be considered "ghost repairs." There are more instances wherein [we] are willing to testify to in exchange for immunity from prosecution.20 (emphases ours)

After conducting preliminary investigation, the Ombudsman filed with the Sandiganbayan21 several informations charging a number of DPWH officials and employees with plunder,22 estafa through falsification of official/commercial documents and violation of Section 3(e), RA No. 3019. On the other hand, the Ombudsman granted the respondents’ request for immunity in exchange for their testimonies and cooperation in the prosecution of the cases filed.

The petitioner initially filed a certiorari petition with the Sandiganbayan, questioning the Ombudsman’s grant of immunity in the respondents’ favor. The Sandiganbayan, however, dismissed the petition for lack of jurisdiction and advised the petitioner to instead question the Ombudsman’s actions before this Court.23 Hence, this present petition.

THE PETITION

The petitioner argues that the Ombudsman should have included the respondents in the informations since it was their inspection reports that actually paved the way for the commission of the alleged irregularities.24 The petitioner asserts that the respondents’ criminal complicity clearly appears since "no repair could have started" and "no payment for repairs, ghost or not," could have been made without the respondents’ pre-repair and post-repair inspection reports. By excluding the respondents in the informations, the Ombudsman is engaged in "selective prosecution" which is a clear case of grave abuse of discretion.

The petitioner claims that before the Ombudsman may avail of the respondents as state witnesses, they must be included first in the informations filed with the court. Thereafter, the Ombudsman can ask the court for their discharge so that they can be utilized as state witnesses under the conditions laid down in Section 17, Rule 119 of the Rules of Court since the court has the "sole province" to determine whether these conditions exist.

These conditions require, inter alia, that there should be "absolute necessity" for the testimony of the proposed witness and that he/she should not appear to be the "most guilty." The petitioner claims that the respondents failed to comply with these conditions as the Ombudsman’s "evidence," which became the basis of the informations subsequently filed, shows that the respondents’ testimony is not absolutely necessary; in fact, the manner of the respondents’ participation proves that they are the "most guilty" in the premises.

THE COMMENTS OF THE OMBUDSMAN AND THE RESPONDENTS

The Ombudsman counters that RA No. 6770 (the Ombudsman Act of 1989) expressly grants him the power to grant immunity from prosecution to witnesses. Given this power, the Ombudsman asserts that Section 17, Rule 119 of the Rules of Court, which presupposes that the witness is originally included in the information, is inapplicable to the present case since the decision on whom to prosecute is an executive, not a judicial, prerogative.25

The Ombudsman invokes this Court’s policy of non-interference in the Ombudsman’s exercise of his discretion in matters involving his investigatory and prosecutorial powers.26 The petitioner’s claim that the respondents are the "most guilty" is a matter of defense which the petitioner may raise not in this proceeding, but in the trial proper.27

On the other hand, the respondents submit that the Ombudsman has ample discretion in determining who should be included in the information on the basis of his finding of probable cause. The courts can only interfere in the Ombudsman’s exercise of his discretion in case of a clear showing of grave abuse of discretion, which the petitioner failed to establish.28

THE PETITIONER’S REPLY 29

While conceding that the Ombudsman has the power and the discretion to grant immunity to the respondents, the petitioner asserts that this power must be exercised within the confines of Section 17, Rule 119 of the Rules of Court which requires, inter alia, that the proposed witness must not appear to be the "most guilty." By ignoring this provision and extending immunity to the respondents whose false reports ultimately led to the payment for supposed repairs, and who are, thus, the "real culprits,"30 the Ombudsman gravely abused his discretion – a fatal defect correctible by certiorari.

Amplifying on the respondents’ "guilt," the petitioner cites the DPWH’s decision in an administrative case which the Civil Service Commission affirmed, finding the respondents guilty of dishonesty and grave misconduct involving the same set of facts.31

OUR RULING

We dismiss the petition on two grounds: first, the petitioner did not avail of the remedies available to him before filing this present petition; and, second, within the context of the Court’s policy of non-interference with the Ombudsman’s exercise of his investigatory and prosecutory powers, the petitioner failed to establish that the grant of immunity to the respondents was attended by grave abuse of discretion.

I. The petitioner did not exhaust remedies available in the ordinary course of law

As extraordinary writs, both Sections 1 (certiorari) and 3 (mandamus), Rule 65 of the Rules of Court require, as a pre-condition for these remedies, that there be no other plain, speedy and adequate remedy in the ordinary course of law. In the present case, the petitioner has not shown that he moved for a reconsideration of the assailed resolutions based substantially on the same grounds stated in this present petition.32 Neither did the petitioner file a motion for the inclusion of the respondents in the informations before filing the present petition.33 These are adequate remedies that the petitioner chose to forego; he bypassed these remedies and proceeded to seek recourse through the present petition.34

Similarly, the petitioner has not shown that he filed the present petition with this Court within the sixty-day reglementary period35 from notice of the assailed Ombudsman’s resolutions. He did not do so, of course, since he initially and erroneously filed a certiorari petition with the Sandiganbayan. We remind the petitioner that the remedy from the Ombudsman’s orders or resolutions in criminal cases is to file a petition for certiorari under Rule 6536 with this Court.37

The petition likewise fails even on the merits.

II. The respondents’ exclusion in the informations is grounded on the Ombudsman’s grant of immunity

Mandamus is the proper remedy to compel the performance of a ministerial duty imposed by law upon the respondent.38 In matters involving the exercise of judgment and discretion, mandamus may only be resorted to, to compel the respondent to take action; it cannot be used to direct the manner or the particular way discretion is to be exercised.39

In the exercise of his investigatory and prosecutorial powers, the Ombudsman is generally no different from an ordinary prosecutor in determining who must be charged.40 He also enjoys the same latitude of discretion in determining what constitutes sufficient evidence to support a finding of probable cause (that must be established for the filing of an information in court)41 and the degree of participation of those involved or the lack thereof. His findings and conclusions on these matters are not ordinarily subject to review by the courts except when he gravely abuses his discretion,42 i.e., when his action amounts to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or when he acts outside the contemplation of law.43

If, on the basis of the same evidence, the Ombudsman arbitrarily excludes from an indictment some individuals while impleading all others, the remedy of mandamus lies44 since he is duty-bound, as a rule, to include in the information all persons who appear responsible for the offense involved.45

Citing the cases of Guiao v. Figueroa46 and Castro, Jr., et al. v. Castañeda and Liceralde,47 the petitioner argues for the inclusion of the respondents in the criminal informations, pointing out that the respondents accomplished the inspection reports that allegedly set in motion the documentary process in the repair of the DPWH vehicles; these reports led to the payment by the government and the consequent losses.

In Guiao and Castro, we ruled that mandamus lies to compel a prosecutor who refuses (i) to include in the information certain persons, whose participation in the commission of a crime clearly appears, and (ii) to follow the proper procedure for the discharge of these persons in order that they may be utilized as prosecution witnesses.

These cited cases, however, did not take place in the same setting as the present case as they were actions by the public prosecutor, not by the Ombudsman. In the present case, the Ombudsman granted the respondents immunity from prosecution pursuant to RA No. 6770 which specifically empowers the Ombudsman to grant immunity "in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives." The pertinent provision – Section 17 of this law – provides:

Sec. 17. Immunities. – x x x.

Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. [emphasis ours]

To briefly outline the rationale for this provision, among the most important powers of the State is the power to compel testimony from its residents; this power enables the government to secure vital information necessary to carry out its myriad functions.48 This power though is not absolute. The constitutionally-enshrined right against compulsory self-incrimination is a leading exception. The state’s power to compel testimony and the production of a person’s private books and papers run against a solid constitutional wall when the person under compulsion is himself sought to be penalized. In balancing between state interests and individual rights in this situation, the principles of free government favor the individual to whom the state must yield.491avvphi1

A state response to the constitutional exception to its vast powers, especially in the field of ordinary criminal prosecution and in law enforcement and administration, is the use of an immunity statute.50 Immunity statutes seek a rational accommodation between the imperatives of an individual’s constitutional right against self-incrimination51 (considered the fount from which all statutes granting immunity emanate52) and the legitimate governmental interest in securing testimony.53 By voluntarily offering to give information on the commission of a crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution.54 In this manner, the state interest is satisfied while respecting the individual’s constitutional right against self-incrimination.

III. Nature of the power to grant immunity

The power to grant immunity from prosecution is essentially a legislative prerogative.55 The exclusive power of Congress to define crimes and their nature and to provide for their punishment concomitantly carries the power to immunize certain persons from prosecution to facilitate the attainment of state interests, among them, the solution and prosecution of crimes with high political, social and economic impact.56 In the exercise of this power, Congress possesses broad discretion and can lay down the conditions and the extent of the immunity to be granted.57

Early on, legislations granting immunity from prosecution were few.58 However, their number escalated with the increase of the need to secure vital information in the course and for purposes of prosecution. These statutes59 considered not only the importance of the testimony sought, but also the unique character of some offenses and of some situations where the criminal participants themselves are in the best position to give useful testimony.60 RA No. 6770 or the Ombudsman Act of 1989 was formulated along these lines and reasoning with the vision of making the Ombudsman the protector of the people against inept, abusive and corrupt government officers and employees.61 Congress saw it fit to grant the Ombudsman the power to directly confer immunity to enable his office to effectively carry out its constitutional and statutory mandate of ensuring effective accountability in the public service.62

IV. Considerations in the grant of immunity

While the legislature is the source of the power to grant immunity, the authority to implement is lodged elsewhere. The authority to choose the individual to whom immunity would be granted is a constituent part of the process and is essentially an executive function. Mapa, Jr. v. Sandiganbayan63 is instructive on this point:

The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the law. Whether or not the delicate power should be exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense. [emphasis ours]

RA No. 6770 fully recognizes this prosecutory prerogative by empowering the Ombudsman to grant immunity, subject to "such terms and conditions" as he may determine. The only textual limitation imposed by law on this authority is the need to take "into account the pertinent provisions of the Rules of Court," – i.e., Section 17, Rule 119 of the Rules of Court.64 This provision requires that:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points;

(d) Said accused does not appear to be the most guilty; and

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

This Rule is itself unique as, without detracting from the executive nature of the power to prosecute and the power to grant immunity, it clarifies that in cases already filed with the courts,65 the prosecution merely makes a proposal and initiates the process of granting immunity to an accused-witness in order to utilize him as a witness against his co-accused.66 As we explained in Webb v. De Leon67 in the context of the Witness Protection, Security and Benefit Act:

The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. [emphasis ours]

Thus, it is the trial court that determines whether the prosecution’s preliminary assessment of the accused-witness’ qualifications to be a state witness satisfies the procedural norms.68 This relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the administration of justice,69 largely exercises its prerogative based on the prosecutor’s findings and evaluation. On this point, the Court’s pronouncement in the 1918 case of United States v. Abanzado70 is still very much relevant:

A trial judge cannot be expected or required to inform himself with absolute certainty at the very outset of the trial as to everything which may be developed in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint. If that were practicable or possible there would be little need for the formality of a trial. He must rely in large part upon the suggestions and the information furnished by the prosecuting officer in coming to his conclusions as to the "necessity for the testimony of the accused whose discharge is requested"; as to the availability or nonavailability of other direct or corroborative evidence; as to which of the accused is "most guilty," and the like.

Notably, this cited case also observes that the Rules-provided guidelines are mere express declarations of the conditions which the courts ought to have in mind in exercising their sound discretion in granting the prosecution’s motion for the discharge of an accused.71 In other words, these guidelines are necessarily implied in the discretion granted to the courts.

RA No. 6770 recognizes that these same principles should apply when the Ombudsman directly grants immunity to a witness. The same consideration – to achieve the greater and higher purpose of securing the conviction of the most guilty and the greatest number among the accused72 – is involved whether the grant is secured by the public prosecutor with active court intervention, or by the Ombudsman. If there is any distinction at all between the public prosecutor and the Ombudsman in this endeavor, it is in the specificity of and the higher priority given by law to the Ombudsman’s purpose and objective – to focus on offenses committed by public officers and employees to ensure accountability in the public service. This accounts for the Ombudsman’s unique power to grant immunity by itself and even prior to the filing of information in court, a power that the public prosecutor himself generally does not enjoy.73

V. Extent of judicial review of a bestowed immunity

An immunity statute does not, and cannot, rule out a review by this Court of the Ombudsman’s exercise of discretion. Like all other officials under our constitutional scheme of government, all their acts must adhere to the Constitution.74 The parameters of our review, however, are narrow. In the first place, what we review are executive acts of a constitutionally independent Ombudsman.75 Also, we undertake the review given the underlying reality that this Court is not a trier of facts. Since the determination of the requirements under

Section 17, Rule 119 of the Rules of Court is highly factual in nature, the Court must, thus, generally defer to the judgment of the Ombudsman who is in a better position (than the Sandiganbayan or the defense) to know the relative strength and/or weakness of the evidence presently in his possession and the kind, tenor and source of testimony he needs to enable him to prove his case.76 It should not be forgotten, too, that the grant of immunity effectively but conditionally results in the extinction of the criminal liability the accused-witnesses might have incurred, as defined in the terms of the grant.77 This point is no less important as the grant directly affects the individual and enforces his right against self-incrimination. These dynamics should constantly remind us that we must tread softly, but not any less critically, in our review of the Ombudsman’s grant of immunity.

From the point of view of the Court’s own operations, we are circumscribed by the nature of the review powers granted to us under the Constitution and the Rules of Court. We rule on the basis of a petition for certiorari under Rule 65 and address mainly the Ombudsman’s exercise of discretion. Our room for intervention only occurs when a clear and grave abuse of the exercise of discretion is shown. Necessarily, this limitation similarly reflects on the petitioner who comes to us on the allegation of grave abuse of discretion; the petitioner himself is bound to clearly and convincingly establish that the Ombudsman gravely abused his discretion in granting immunity in order to fully establish his case.78

As a last observation, we note the unique wording of the grant of the power of immunity to the Ombudsman. It is not without significance that the law encompassed (and appears to have pointedly not separated) the consideration of Section 17, Rule 119 of the Rules of Court within the broader context of "such terms and conditions as the Ombudsman may determine." This deliberate statutory wording, to our mind, indicates the intent to define the role of Section 17, Rule 119 in the Ombudsman’s exercise of discretion. It suggests a broad grant of discretion that allows the Ombudsman’s consideration of factors other than those outlined under Section 17, Rule 119; the wording creates the opening for the invocation, when proper, of the constitutional and statutory intents behind the establishment of the Ombudsman.

Based on these considerations, we shall now proceed to determine whether the petitioner has clearly and convincingly shown that the Ombudsman gravely abused his discretion in granting immunity to the respondents.

Va. Absolute necessity for testimony of the respondents

Under the factual and legal situation before us, we find that the petitioner miserably failed to clearly and convincingly establish that the Ombudsman gravely abused his discretion in granting immunity to the respondents. While he claims that both conditions (a) and (d) of Section 17, Rule 119 of the Rules of Court are absent, we observe his utter lack of argument addressing the "absolute necessity" of the respondents’ testimony. In fact, the petitioner simply concluded that the requirement of "absolute necessity" does not exist based on the Ombudsman’s "evidence," without even attempting to explain how he arrived at this conclusion.

We note in this regard that the respondents’ proposed testimony tends to counteract the petitioner’s personal defense of good faith (i.e., that he had no actual participation and merely relied on his subordinates) in approving the job orders and in his concurrence with the inspection reports. In their Joint Counter-Affidavit, the respondents narrated the accused DPWH officials/employees’ flagrant disregard of the proper procedure and the guidelines in the repair of DPWH service vehicles which culminated in losses to the government. Particularly telling is the respondents’ statement that a number of pre-repair inspection reports for a particular month in 2001 bear the petitioner’s signature despite the fact that these reports are not supported by findings from the respondents as SIT members.79 This kind of statement cannot but impact on how the Ombudsman viewed the question of "absolute necessity" of the respondents’ testimony since this testimony meets the defense of good faith head-on to prove the prosecution’s allegations. Under these circumstances, we cannot preempt, foreclose, nor replace with our own the Ombudsman’s position on this point as it is clearly not without basis.

Vb. The respondents do not appear to be the "most guilty"

Similarly, far from concluding that the respondents are the "most guilty," we find that the circumstances surrounding the preparation of the inspection reports can significantly lessen the degree of the respondents’ criminal complicity in defrauding the government. Again, this is a matter that the Ombudsman, in the exercise of his discretion, could not have avoided when he considered the grant of immunity to the respondents.

We note, too, that while the petitioner incessantly harped on the respondents’ role in the preparation of the inspection reports, yet, as head of the SIT, he was eerily silent on the circumstances surrounding this preparation, particularly on the respondents’ explanation that they tried "to curb the anomalous practices"80 in the DPWH. We are aware, of course, that the present petition merely questions the immunity granted to the respondents and their consequent exclusion from the informations; it does not assail the finding of probable cause against the petitioner himself. This current reality may explain the petitioner’s silence on the respondents’ assertions; the respondents’ allegations, too, still have to be proven during the trial. However, these considerations are not sufficient to save the petitioner from the necessity of controverting the respondents’ allegations, even for the limited purpose of the present petition, since his counter-assertion on this basic ground (that the respondents bear the most guilt) is essential and critical to the viability of his petition.

In considering the respondents’ possible degree of guilt, we are keenly aware of their admission that they resorted to a "short-cut"81 in the procedure to be observed in the repairs and/or purchase of emergency parts of DPWH service vehicles. To our mind, however, this admission does not necessarily result in making the respondents the "most guilty" in the premises; not even a semblance of being the "most guilty" can be deduced therefrom.

In sum, the character of the respondents’ involvement vis-à-vis the crimes filed against the DPWH officials/employees, coupled with the substance of the respondents’ disclosures, compels this Court to take a dim view of the position that the Ombudsman gravely abused his discretion in granting immunity to the respondents. The better view is that the Ombudsman simply saw the higher value of utilizing the respondents themselves as witnesses instead of prosecuting them in order to fully establish and strengthen its case against those mainly responsible for the criminal act, as indicated by the available evidence.1avvphi1

VI. The respondents’ administrative liability has no bearing at all on the immunity granted to the respondents

The fact that the respondents had previously been found administratively liable, based on the same set of facts, does not necessarily make them the "most guilty." An administrative case is altogether different from a criminal case, such that the disposition in the former does not necessarily result in the same disposition for the latter, although both may arise from the same set of facts.82 The most that we can read from the finding of liability is that the respondents have been found to be administratively guilty by substantial evidence – the quantum of proof required in an administrative proceeding. The requirement of the Revised Rules of Criminal Procedure (which RA No. 6770 adopted by reference) that the proposed witness should not appear to be the "most guilty" is obviously in line with the character83 and purpose84 of a criminal proceeding, and the much stricter standards85

observed in these cases. They are standards entirely different from those applicable in administrative proceedings.

VII. The policy of non-interference with the Ombudsman’s investigatory and prosecutory powers cautions a stay of judicial hand

The Constitution and RA No. 6770 have endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutory powers, freed, to the extent possible within our governmental system and structure, from legislative, executive, or judicial intervention, and insulated from outside pressure and improper influence.86 Consistent with this purpose and subject to the command of paragraph 2, Section 1, Article VIII of the 1987 Constitution,87 the Court reiterates its policy of non-interference with the Ombudsman’s exercise of his

investigatory and prosecutory powers (among them, the power to grant immunity to witnesses88), 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 the public service."89 Ocampo IV v. Ombudsman90 best explains the reason behind this policy:

The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.

Following this policy, we deem it neither appropriate nor advisable to interfere with the Ombudsman’s grant of immunity to the respondents, particularly in this case, where the petitioner has not clearly and convincingly shown the grave abuse of discretion that would call for our intervention.

WHEREFORE, the petition is hereby DISMISSED. Costs against the petitioner.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. 130866 September 16, 1998

ST. MARTIN FUNERAL HOME, petitioner, vs.NATIONAL LABOR RELATIONS COMMISSION and BIENVENIDO ARICAYOS, respondents.

 

REGALADO, J.:

The present petition for certiorari stemmed from a complaint for illegal dismissal filed by herein private respondent before the National Labor Relations Commission (NLRC), Regional Arbitration Branch No. III, in San Fernando, Pampanga. Private respondent alleges that he started working as Operations Manager of petitioner St. Martin Funeral Home on February 6, 1995. However, there was no contract of employment executed between him and petitioner nor was his name included in the semi-monthly payroll. On January 22, 1996, he was dismissed from his employment for allegedly misappropriating P38,000.00 which was intended for payment by petitioner of its value added tax (VAT) to the Bureau of Internal Revenue (BIR). 1

Petitioner on the other hand claims that private respondent was not its employee but only the uncle of Amelita Malabed, the owner of petitioner St. Martin's Funeral Home. Sometime in 1995, private respondent, who was formerly working as an overseas contract worker, asked for financial assistance from the mother of Amelita.

Since then, as an indication of gratitude, private respondent voluntarily helped the mother of Amelita in overseeing the business.

In January 1996, the mother of Amelita passed away, so the latter then took over the management of the business. She then discovered that there were arrears in the payment of taxes and other government fees, although the records purported to show that the same were already paid. Amelita then made some changes in the business operation and private respondent and his wife were no longer allowed to participate in the management thereof. As a consequence, the latter filed a complaint charging that petitioner had illegally terminated his employment. 2

Based on the position papers of the parties, the labor arbiter rendered a decision in favor of petitioner on October 25, 1996 declaring that no employer-employee relationship existed between the parties and, therefore, his office had no jurisdiction over the case. 3

Not satisfied with the said decision, private respondent appealed to the NLRC contending that the labor arbiter erred (1) in not giving credence to the evidence submitted by him; (2) in holding that he worked as a "volunteer" and not as an employee of St. Martin Funeral Home from February 6, 1995 to January 23, 1996, or a period of about one year; and (3) in ruling that there was no employer-employee relationship between him and petitioner. 4

On June 13, 1997, the NLRC rendered a resolution setting aside the questioned decision and remanding the case to the labor arbiter for immediate appropriate proceedings. 5 Petitioner then filed a motion for reconsideration which was denied by the NLRC in its resolution dated August 18, 1997 for lack of merit, 6 hence the present petition alleging that the NLRC committed grave abuse of discretion. 7

Before proceeding further into the merits of the case at bar, the Court feels that it is now exigent and opportune to reexamine the functional validity and systemic practicability of the mode of judicial review it has long adopted and still follows with respect to decisions of the NLRC. The increasing number of labor disputes that find their way to this Court and the legislative changes introduced over the years into the provisions of Presidential Decree (P.D.) No. 442 (The Labor Code of the Philippines and Batas Pambansa Blg. (B.P. No.) 129 (The Judiciary Reorganization Act of 1980) now stridently call for and warrant a reassessment of that procedural aspect.

We prefatorily delve into the legal history of the NLRC. It was first established in the Department of Labor by P.D. No. 21 on October 14, 1972, and its decisions were expressly declared to be appealable to the Secretary of Labor and, ultimately, to the President of the Philippines.

On May 1, 1974, P.D. No. 442 enacted the Labor Code of the Philippines, the same to take effect six months after its promulgation. 8 Created and regulated therein is the present NLRC which was attached to the Department of Labor and Employment for program and policy coordination only. 9 Initially, Article 302 (now, Article 223) thereof also granted an aggrieved party the remedy of appeal from the decision of the NLRC to the Secretary of Labor, but P.D. No. 1391 subsequently amended said provision and abolished such appeals. No appellate review has since then been provided for.

Thus, to repeat, under the present state of the law, there is no provision for appeals from the decision of the NLRC. 10 The present Section 223, as last amended by Section 12 of R.A. No. 6715, instead merely provides that the Commission shall decide all cases within twenty days from receipt of the answer of the appellee, and that such decision shall be final and executory after ten calendar days from receipt thereof by the parties.

When the issue was raised in an early case on the argument that this Court has no jurisdiction to review the decisions of the NLRC, and formerly of the Secretary of Labor, since there is no legal provision for appellate review thereof, the Court nevertheless rejected that thesis. It held that there is an underlying power of the courts

to scrutinize the acts of such agencies on questions of law and jurisdiction even though no right of review is given by statute; that the purpose of judicial review is to keep the administrative agency within its jurisdiction and protect the substantial rights of the parties; and that it is that part of the checks and balances which restricts the separation of powers and forestalls arbitrary and unjust adjudications. 11

Pursuant to such ruling, and as sanctioned by subsequent decisions of this Court, the remedy of the aggrieved party is to timely file a motion for reconsideration as a precondition for any further or subsequent remedy, 12 and then seasonably avail of the special civil action of certiorari under Rule 65, 13 for which said Rule has now fixed the reglementary period of sixty days from notice of the decision. Curiously, although the 10-day period for finality of the decision of the NLRC may already have lapsed as contemplated in Section 223 of the Labor Code, it has been held that this Court may still take cognizance of the petition for certiorari on jurisdictional and due process considerations if filed within the reglementary period under Rule 65. 14

Turning now to the matter of judicial review of NLRC decisions, B.P. No. 129 originally provided as follows:

Sec. 9. Jurisdiction. — The Intermediate Appellate Court shall exercise:

(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;

(2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and

(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, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, 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.

The Intermediate Appellate Court shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings.

These provisions shall not apply to decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals. 15

Subsequently, and as it presently reads, this provision was amended by R.A. No. 7902 effective March 18, 1995, to wit:

Sec. 9. Jurisdiction. — The Court of Appeals shall exercise:

(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;

(2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and

(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 within the 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.

The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings in the Court of Appeals must be continuous and must be completed within, three (3) months, unless extended by the Chief Justice.

It will readily be observed that, aside from the change in the name of the lower appellate court, 16 the following amendments of the original provisions of Section 9 of B.P. No. 129 were effected by R.A. No. 7902, viz.:

1. The last paragraph which excluded its application to the Labor Code of the Philippines and the Central Board of Assessment Appeals was deleted and replaced by a new paragraph granting the Court of Appeals limited powers to conduct trials and hearings in cases within its jurisdiction.

2. The reference to the Labor Code in that last paragraph was transposed to paragraph (3) of the section, such that the original exclusionary clause therein now provides "except those falling within the 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." (Emphasis supplied).

3. Contrarily, however, specifically added to and included among the quasi-judicial agencies over which the Court of Appeals shall have exclusive appellate jurisdiction are the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission.

This, then, brings us to a somewhat perplexing impassè, both in point of purpose and terminology. As earlier explained, our mode of judicial review over decisions of the NLRC has for some time now been understood to be by a petition for certiorari under Rule 65 of the Rules of Court. This is, of course, a special original action limited to the resolution of jurisdictional issues, that is, lack or excess of jurisdiction and, in almost all cases that have been brought to us, grave abuse of discretion amounting to lack of jurisdiction.

It will, however, be noted that paragraph (3), Section 9 of B.P. No. 129 now grants exclusive appellate jurisdiction to the Court of Appeals over all final adjudications of the Regional Trial Courts and the quasi-judicial agencies generally or specifically referred to therein except, among others, "those falling within the appellate jurisdiction of the Supreme Court in accordance with . . . the Labor Code of the Philippines under Presidential Decree No. 442, as amended, . . . ." This would necessarily contradict what has been ruled and said all along that appeal does not lie from decisions of the NLRC. 17 Yet, under such excepting clause literally construed, the appeal from the NLRC cannot be brought to the Court of Appeals, but to this Court by necessary implication.

The same exceptive clause further confuses the situation by declaring that the Court of Appeals has no appellate jurisdiction over decisions falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of B.P. No. 129, and those specified cases in Section 17 of the Judiciary Act of 1948. These cases can, of course, be properly excluded from the exclusive appellate jurisdiction of the Court of Appeals. However, because of the aforementioned amendment by transposition, also supposedly excluded are cases falling within the appellate jurisdiction of the Supreme Court in accordance with the Labor Code. This is illogical and impracticable, and Congress could not have intended that procedural gaffe, since there are no cases

in the Labor Code the decisions, resolutions, orders or awards wherein are within the appellate jurisdiction of the Supreme Court or of any other court for that matter.

A review of the legislative records on the antecedents of R.A. No. 7902 persuades us that there may have been an oversight in the course of the deliberations on the said Act or an imprecision in the terminology used therein. In fine, Congress did intend to provide for judicial review of the adjudications of the NLRC in labor cases by the Supreme Court, but there was an inaccuracy in the term used for the intended mode of review. This conclusion which we have reluctantly but prudently arrived at has been drawn from the considerations extant in the records of Congress, more particularly on Senate Bill No. 1495 and the Reference Committee Report on S. No. 1495/H. No. 10452. 18

In sponsoring Senate Bill No. 1495, Senator Raul S. Roco delivered his sponsorship speech 19 from which we reproduce the following excerpts:

The Judiciary Reorganization Act, Mr. President, Batas Pambansa Blg. 129, reorganized the Court of Appeals and at the same time expanded its jurisdiction and powers. Among others, its appellate jurisdiction was expanded to cover not only final judgment of Regional Trial Courts, but also all final judgment(s), decisions, resolutions, orders or awards of quasi-judicial agencies, instrumentalities, boards and commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of BP Blg. 129 and of subparagraph 1 of the third paragraph and subparagraph 4 of Section 17 of the Judiciary Act of 1948.

Mr. President, the purpose of the law is to ease the workload of the Supreme Court by the transfer of some of its burden of review of factual issues to the Court of Appeals. However, whatever benefits that can be derived from the expansion of the appellate jurisdiction of the Court of Appeals was cut short by the last paragraph of Section 9 of Batas Pambansa Blg. 129 which excludes from its coverage the "decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals.

Among the highest number of cases that are brought up to the Supreme Court are labor cases. Hence, Senate Bill No. 1495 seeks to eliminate the exceptions enumerated in Section 9 and, additionally, extends the coverage of appellate review of the Court of Appeals in the decision(s) of the Securities and Exchange Commission, the Social Security Commission, and the Employees Compensation Commission to reduce the number of cases elevated to the Supreme Court. (Emphases and corrections ours)

xxx xxx xxx

Senate Bill No. 1495 authored by our distinguished Colleague from Laguna provides the ideal situation of drastically reducing the workload of the Supreme Court without depriving the litigants of the privilege of review by an appellate tribunal.

In closing, allow me to quote the observations of former Chief Justice Teehankee in 1986 in the Annual Report of the Supreme Court:

. . . Amendatory legislation is suggested so as to relieve the Supreme Court of the burden of reviewing these cases which present no important issues involved beyond the particular fact and the parties involved, so that the Supreme Court may wholly devote its time to cases of public interest in the discharge of its mandated task as the guardian of the Constitution and the guarantor of the people's basic rights and additional task expressly vested on it now "to determine whether or not

there has been a grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or instrumentality of the Government.

We used to have 500,000 cases pending all over the land, Mr. President. It has been cut down to 300,000 cases some five years ago. I understand we are now back to 400,000 cases. Unless we distribute the work of the appellate courts, we shall continue to mount and add to the number of cases pending.

In view of the foregoing, Mr. President, and by virtue of all the reasons we have submitted, the Committee on Justice and Human Rights requests the support and collegial approval of our Chamber.

xxx xxx xxx

Surprisingly, however, in a subsequent session, the following Committee Amendment was introduced by the said sponsor and the following proceedings transpired: 20

Senator Roco. On page 2, line 5, after the line "Supreme Court in accordance with the Constitution," add the phrase "THE LABOR CODE OF THE PHILIPPINES UNDER P.D. 442, AS AMENDED." So that it becomes clear, Mr. President, that issues arising from the Labor Code will still be appealable to the Supreme Court.

The President. Is there any objection? (Silence) Hearing none, the amendment is approved.

Senator Roco. On the same page, we move that lines 25 to 30 be deleted. This was also discussed with our Colleagues in the House of Representatives and as we understand it, as approved in the House, this was also deleted, Mr. President.

The President. Is there any objection? (Silence) Hearing none, the amendment is approved.

Senator Roco. There are no further Committee amendments, Mr. President.

Senator Romulo. Mr. President, I move that we close the period of Committee amendments.

The President. Is there any objection? (Silence) Hearing none, the amendment is approved. (Emphasis supplied).

xxx xxx xxx

Thereafter, since there were no individual amendments, Senate Bill No. 1495 was passed on second reading and being a certified bill, its unanimous approval on third reading followed. 21 The Conference Committee Report on Senate Bill No. 1495 and House Bill No. 10452, having theretofore been approved by the House of Representatives, the same was likewise approved by the Senate on February 20, 1995, 22 inclusive of the dubious formulation on appeals to the Supreme Court earlier discussed.

The Court is, therefore, of the considered opinion that ever since appeals from the NLRC to the Supreme Court were eliminated, the legislative intendment was that the special civil action of certiorari was and still is the proper vehicle for judicial review of decisions of the NLRC. The use of the word "appeal" in relation thereto and in the instances we have noted could have been a lapsus plumae because appeals by certiorari and the original action for certiorari are both modes of judicial review addressed to the appellate courts. The important distinction between them, however, and with which the Court is particularly concerned here is that the special

civil action of certiorari is within the concurrent original jurisdiction of this Court and the Court of Appeals; 23 whereas to indulge in the assumption that appeals by certiorari to the Supreme Court are allowed would not subserve, but would subvert, the intention of Congress as expressed in the sponsorship speech on Senate Bill No. 1495.

Incidentally, it was noted by the sponsor therein that some quarters were of the opinion that recourse from the NLRC to the Court of Appeals as an initial step in the process of judicial review would be circuitous and would prolong the proceedings. On the contrary, as he commendably and realistically emphasized, that procedure would be advantageous to the aggrieved party on this reasoning:

On the other hand, Mr. President, to allow these cases to be appealed to the Court of Appeals would give litigants the advantage to have all the evidence on record be reexamined and reweighed after which the findings of facts and conclusions of said bodies are correspondingly affirmed, modified or reversed.

Under such guarantee, the Supreme Court can then apply strictly the axiom that factual findings of the Court of Appeals are final and may not be reversed on appeal to the Supreme Court. A perusal of the records will reveal appeals which are factual in nature and may, therefore, be dismissed outright by minute resolutions. 24

While we do not wish to intrude into the Congressional sphere on the matter of the wisdom of a law, on this score we add the further observations that there is a growing number of labor cases being elevated to this Court which, not being a trier of fact, has at times been constrained to remand the case to the NLRC for resolution of unclear or ambiguous factual findings; that the Court of Appeals is procedurally equipped for that purpose, aside from the increased number of its component divisions; and that there is undeniably an imperative need for expeditious action on labor cases as a major aspect of constitutional protection to labor.

Therefore, all references in the amended Section 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should hence forth be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired.

Apropos to this directive that resort to the higher courts should be made in accordance with their hierarchical order, this pronouncement in Santiago vs. Vasquez, et al. 25 should be taken into account:

One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the precious time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction.

WHEREFORE, under the foregoing premises, the instant petition for certiorari is hereby REMANDED, and all pertinent records thereof ordered to be FORWARDED, to the Court of Appeals for appropriate action and disposition consistent with the views and ruling herein set forth, without pronouncement as to costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 161596               February 20, 2013

ROBERTO BORDOMEO, JAYME SARMIENTO and GREGORIO BARREDO, Petitioners, vs.COURT OF APPEALS, HON. SECRETARY OF LABOR, and INTERNATIONAL PHARMACEUTICALS, INC., Respondents.

D E C I S I O N

BERSAMIN, J.:

As an extraordinary remedy, certiorari cannot replace or supplant an adequate remedy in the ordinary course of law, like an appeal in due course. It is the inadequacy of a remedy in the ordinary course of law that determines whether certiorari can be a proper alternative remedy.

The Case

The petitioners implore the Court to reverse and set aside the Decision1 of the Court of Appeals (CA) promulgated on May 30, 2003 in C.A.-G.R. SP No. 65970 entitled Roberto Bordomeo, Anecito Cupta, Jaime Sarmiento and Virgilio Saragena v. Honorable Secretary of Labor and Employment and International Pharmaceuticals, Inc., dismissing their petition for certiorari by which they had assailed the Order2 issued on July 4, 2001 by Secretary Patricia A. Sto. Tomas of the Department of Labor and Employment (DOLE), to wit:

WHEREFORE, the Order of this Office dated March 27, 1998 STANDS and having become final and having been fully executed, completely CLOSED and TERMINATED this case.

No further motion shall be entertained.

SO ORDERED.3

and the CA’s resolution promulgated on October 30, 2003, denying their motion for reconsideration.

In effect, the Court is being called upon again to review the March 27, 1998 order issued by the DOLE Secretary in response to the petitioners’ demand for the execution in full of the final orders of the DOLE issued on December 26, 1990 and December 5, 1991 arising from the labor dispute in International Pharmaceuticals, Inc. (IPI).

Antecedents

In 1989, the IPI Employees Union-Associated Labor Union (Union), representing the workers, had a bargaining deadlock with the IPI management. This deadlock resulted in the Union staging a strike and IPI ordering a lockout.

On December 26, 1990, after assuming jurisdiction over the dispute, DOLE Secretary Ruben D. Torres rendered the following Decision,4 to wit:

WHEREFORE, PREMISES CONSIDERED, decision is hereby rendered as follows:

1. finding the IPI Employees Union-ALU as the exclusive bargaining agent of all rank and file employees of ALU including sales personnel;

2. dismissing, for lack of merit, the charges of contempt filed by the Union against the IPI officials and reiterating our strict directive for a restoration of the status quo ante the strike as hereinbefore discussed;

3. dismissing the Union’s complaint against the Company for unfair labor practice through refusal to bargain;

4. dismissing the IPI petition to declare the strike of the Union as illegal; and

5. directing the IPI Employees Union-ALU and the International Pharmaceuticals, Inc. to enter into their new CBA, incorporating therein the dispositions hereinbefore stated. All other provisions in the old CBA not otherwise touched upon in these proceedings are, likewise, to be incorporated in the new CBA.

SO ORDERED.5

Resolving the parties’ ensuing respective motions for reconsideration or clarification,6 Secretary Torres rendered on December 5, 1991 another ruling,7 disposing thus:

WHEREFORE, in the light of the forgoing considerations, judgment is hereby rendered:

1. Dismissing the motions for reconsideration filed by the International Pharmaceutical, Inc. and the Workers Trade Alliance Unions (WATU) for lack of merit;

2. Ordering the International Pharmaceutical Inc. to reinstate to their former positions with full backwages reckoned from 8 December 1989 until actually reinstated without loss of seniority rights and other benefits the "affected workers" herein-below listed:

1. Reynaldo C. Menor

2. Geronimo S. Banquirino

3. Rogelio Saberon

4. Estefanio G. Maderazo

5. Herbert G. Veloso

6. Rogelio G. Enricoso

7. Colito Virtudazo

8. Gilbert Encontro

9. Bebiano Pancho

10. Merlina Gomez

11. Lourdes Mergal

12. Anecito Cupta

13. Prescillano O. Naquines

14. Alejandro O. Rodriguez

15. Godofredo Delposo

16. Jovito Jayme

17. Emma L. Lana

18. Koannia M. Tangub

19. Violeta Pancho

20. Roberto Bordomeo

21. Mancera Vevincio

22. Caesar Sigfredo

23. Trazona Roldan

24. Carmelita Ygot

25. Gregorio Barredo

26. Dario Abella

27. Artemio Pepito

28. Anselmo Tareman

29. Merope Lozada

30. Agapito Mayorga

31. Narciso M. Leyson

32. Ananias Dinolan

33. Cristy L. Caybot

34. Johnnelito S. Corilla

35. Noli Silo

36. Danilo Palioto

37. Winnie dela Cruz

38. Edgar Montecillo

39. Pompio Senador

40. Ernesto Palomar

41. Reynante Germininano

42. Pelagio Arnaiz

43. Ireneo Russiana

44. Benjamin Gellangco, Jr.

45. Nestor Ouano (listed in paragraphs 1 & 9 of the IPI Employees Union- ALU’s Supplemental Memorandum dated 6 March 1991)

3. Ordering the International Pharmaceutical Inc. to reinstate to their former positions the following employees, namely:

a. Alexander Aboganda

b. Pacifico Pestano

c. Carlito Torregano

d. Clemencia Pestano

e. Elisea Cabatingan

(listed in paragraph 3 of the IPI Employees Union-ALU’s Supplemental Memorandum dated 6 March 1991).

No further motions of the same nature shall be entertained.8

IPI assailed the issuances of Secretary Torres directly in this Court through a petition for certiorari (G.R. No. 103330), but the Court dismissed its petition on October 14, 1992 on the ground that no grave abuse of discretion had attended the issuance of the assailed decisions.9 Considering that IPI did not seek the reconsideration of the dismissal of its petition, the entry of judgment issued in due course on January 19, 1994.10

With the finality of the December 26, 1990 and December 5, 1991 orders of the DOLE Secretary, the Union, represented by the Seno, Mendoza and Associates Law Office, moved in the National Conciliation and Mediation Board in DOLE, Region VII on June 8, 1994 for their execution.11

On November 21, 1994, one Atty. Audie C. Arnado, who had meanwhile entered his appearance on October 4, 1994 as the counsel of 15 out of the 50 employees named in the December 5, 1991 judgment of Secretary Torres, likewise filed a so-called Urgent Motion for Execution.12

After conducting conferences and requiring the parties to submit their position papers, Regional Director Alan M. Macaraya of DOLE Region VII issued a Notice of Computation/Execution on April 12, 1995, 13 the relevant portion of which stated:

To speed-up the settlement of the issue, the undersigned on 7 February 1995 issued an order directing the parties to submit within ten (10) calendar days from receipt of the Order, their respective Computations. To date, only the computation from complainants including those that were not specifically mentioned in the Supreme Court decision were submitted and received by this office.

Upon verification of the Computation available at hand, management is hereby directed to pay the employees including those that were not specifically mentioned in the decision but are similarly situated, the aggregate amount of FORTY-THREE MILLION SIX HUNDRED FIFTY THOUSAND NINE HUNDRED FIVE AND 87/100 PESOS (P43,650,905.87) involving NINE HUNDRED SIXTY-TWO (962) employees, in the manner shown in the attached Computation forming part of this Order. This is without prejudice to the final Order of the Court to reinstate those covered employees.1âwphi1

This Order is to take effect immediately and failure to comply as instructed will cause the issuance of a WRIT OF EXECUTION.14

In effect, Regional Director Macaraya increased the number of the workers to be benefitted to 962 employees – classified into six groups – and allocated to each group a share in the P43,650,905.87 award,15 as follows:

GROUP NO. OFEMPLOYEES

TOTAL CLAIM

Those represented by Atty. Arnado 15 P4,162,361.50

Salesman 9 P6,241,535.44

For Union Members 179 P6,671,208.86

For Non-Union Members 33 P1,228,321.09

Employees who ratified the CBA 642 P23,982,340.14

Separated Employees 84 P1,365,136.84

TOTAL 962 P43,650,905.87

On May 24, 1995, Assistant Regional Director Jalilo dela Torre of DOLE Region VII issued a writ of execution for the amount of P4,162,361.50 (which covered monetary claims corresponding to the period from January 1, 1989 to March 15, 1995) in favor of the 15 employees represented by Atty. Arnado,16 to be distributed thusly:17

1. Barredo, Gregorio P278,700.10

2. Bordomeo, Roberto P278,700.10

3. Cupta, Anecito P278,700.10

4. Delposo, Godofredo P278,700.10

5. Dinolan, Ananias P278,700.10

6. Jayme, Jovito P278,700.10

7. Lozada, Merope P278,700.10

8. Mayorga, Agapito P278,700.10

9. Mergal, Lourdes P278,700.10

10. Pancho, Bebiano P278,700.10

11. Pancho, Violeta P278,700.10

12. Rodriguez, Alejandro P278,700.10

13. Russiana, Ireneo P263,685.10

14. Tangub, Joannis P278,700.10

15. Trazona, Rolsan P275,575.10

TOTAL P4,162,361.50

On June 5, 1995, Assistant Regional Director dela Torre issued another Writ of Execution for the amount of P1,200,378.92 in favor of the second group of employees. Objecting to the reduced computation for them, however, the second group of employees filed a Motion Declaring the Writ of Execution dated June 5, 1995 null and void.

On July 11, 1995, IPI challenged the May 24, 1995 writ of execution issued in favor of the 15 employees by filing its Appeal and Prohibition with Prayer for Temporary Restraining Order in the Office of then DOLE Undersecretary Cresenciano Trajano.18

On December 22, 1995,19 Acting DOLE Secretary Jose Brillantes, acting on IPI’s appeal, recalled and quashed the May 24, 1995 writ of execution, and declared and considered the case closed and terminated.20

Aggrieved, the 15 employees sought the reconsideration of the December 22, 1995 Order of Acting DOLE Secretary Brillantes.

On August 27, 1996, DOLE Secretary Leonardo A. Quisumbing granted the Motion for Reconsideration,21 and reinstated the May 24, 1995 writ of execution, subject to the deduction of the sum of P745,959.39 already paid pursuant to quitclaims from the award of P4,162,361.50.22 Secretary Quisumbing declared the quitclaims executed by the employees on December 2, 3, and 17, 1993 without the assistance of the proper office of the DOLE unconscionable for having been entered into under circumstances showing vitiation of consent; and ruled that the execution of the quitclaims should not prevent the employees from recovering their monetary claims under the final and executory decisions dated December 26, 1990 and December 5, 1991, less the amounts received under the quitclaims.

Aggrieved by the reinstatement of the May 24, 1995 writ of execution, IPI moved for a reconsideration.23

On September 3, 1996, and pending resolution of IPI’s motion for reconsideration, Regional Director Macaraya issued a writ of execution in favor of the 15 employees represented by Atty. Arnado to recover P3,416,402.10 pursuant to the order dated August 27, 1996 of Secretary Quisumbing.24 Thereafter, the sheriff garnished the amount of P3,416,402.10 out of the funds of IPI with China Banking Corporation, which released the amount.25

Hence, on September 11, 1996, the 15 employees represented by Atty. Arnado executed a Satisfaction of

Judgment and Quitclaim/Release upon receipt of their respective portions of the award, subject to the reservation of their right to claim "unsatisfied amounts of separation pay as well as backwages reckoned from the date after 15 March 1995 and up to the present, or until separation pay is fully paid."26

Notwithstanding the execution of the satisfaction of judgment and quitclaim/release, Atty. Arnado still filed an omnibus motion not only in behalf of the 15 employees but also in behalf of other employees named in the notice of computation/execution, with the exception of the second group, seeking another writ of execution to recover the further sum of P58,546,767.83.27

Atty. Arnado filed a supplemental omnibus motion for the denial of IPI’s Motion for Reconsideration on the ground of mootness.28

In the meanwhile, the employees belonging to the second group reiterated their Motion Declaring the Writ of Execution dated June 5, 1995 null and void, and filed on May 15, 1996 a Motion for Issuance of Writ, praying for another writ of execution based on the computation by Regional Director Macaraya.

On December 24, 1997,29 Secretary Quisumbing, affirming his August 27, 1996 order, denied IPI’s Motion for Reconsideration for being rendered moot and academic by the full satisfaction of the May 24, 1995 writ of execution. He also denied Atty. Arnado’s omnibus motion for lack of merit; and dealt with the issue involving the June 5, 1995 writ of execution issued in favor of the second group of employees, which the Court eventually resolved in the decision promulgated in G.R. No. 164633.30

The employees represented by Atty. Arnado moved for the partial reconsideration of the December 24, 1997 order of Secretary Quisumbing. Resolving this motion on March 27, 1998, Acting DOLE Secretary Jose M. Español, Jr. held as follow:31

WHEREFORE, Our Order dated December 24, 1997, is hereby AFFIRMED.

The Motion for Reconsideration/Amend/Clarificatory and Reiteration of Motion for Issuance of Writ of Execution dated January 12, 1998, filed by six (6) salesmen, namely, Geronimo S. Banquirigo, Reynaldo C. Menor, Rogelio Enricoso, Danilo Palioto, Herbert Veloso and Colito Virtudazo as well as the Motion for Reconsideration and/or Clarification filed by Salesman Noli G. Silo, are hereby DISMISSED, for lack of merit. The June 5, 1995 Writ of Execution is now considered fully executed and satisfied.

The Motion for Partial Reconsideration filed by Roberto Bordomeo and 231 others, is likewise DENIED, for lack of merit

SO ORDERED.32

Records reveal, however, that Virgilio Saragena, et al. brought to this Court a petition for certiorari to assail the December 24, 1997 and March 27, 1998 Orders of the Secretary of Labor (G.R. No. 134118). As stated at the start, the Court dismissed the petition of Saragena, et al. on September 9, 1998 for having been filed out of time and for the petitioners’ failure to comply with the requirements under Rule 13 and Rule 45 of the Rules of Court. 33 The entry of judgment was issued on December 7, 1998.

In the meanwhile, on July 27, 1998, Atty. Arnado filed a Motion for Execution with the DOLE Regional Office,34 demanding the following amounts from IPI, to wit:

For Roberto Bordomeo and 14 others P4,990,401.00

The rest of complainants 33,824,820.41

Total P 38,815,221.41

Again, on September 22, 1998, Atty. Arnado filed a Motion for Execution with the Regional Office.35 This time, no monetary claims were demanded but the rest of the complainants sought to collect from IPI the reduced amount of P6,268,818.47.

Another Motion for Execution was filed by Atty. Arnado on July 6, 1999,36 seeking the execution of the December 26, 1990 order issued by Secretary Torres and of the April 12, 1995 notice of computation/execution issued by Regional Director Macaraya.

Ultimately, on July 4, 2001, DOLE Secretary Patricia Sto. Tomas issued her Order37 affirming the order issued on March 27, 1998, and declaring that the full execution of the order of March 27, 1998 "completely CLOSED and TERMINATED this case."

Only herein petitioners Roberto Bordomeo, Anecito Cupta, Jaime Sarmiento and Virgilio Saragena assailed the July 4, 2001 order of Secretary Sto. Tomas by petition for certiorari in the CA (C.A.-G.R. SP No. 65970).38

On May 30, 2003, the CA rendered its decision in C.A.-G.R. SP No. 65970,39 to wit:

It is worthy to note that all the decisions and incidents concerning the case between petitioners and private respondent IPI have long attained finality. The records show that petitioners have already been granted a writ of execution. In fact, the decision has been executed. Thus, there is nothing for this Court to modify. The granting of the instant petition calls for the amendment of the Court of a decision which has been executed. In this light, it is worthy to note the rule that final and executory decisions, more so with those already executed, may no longer be amended except only to correct errors which are clerical in nature. Amendments or alterations which substantially affect such judgments as well as the entire proceedings held for that purpose are null and void for lack of jurisdiction. (Pio Barreto Realty Development Corporation v. Court of Appeals, 360 SCRA 127).

This Court in the case of CA GR No. 54041 dated February 28, 2001, has ruled that the Orders of the Secretary of Labor and Employment dated December 24, 1997 and March 27, 1998 have become final and executory. It may be noted that the said orders affirmed the earlier orders of the Secretary of Labor and Employment dated December 22, 1995 and August 27, 1996 granting the execution of the decision in the case between petitioners and IPI.

x x x x

WHEREFORE, based on the foregoing, the instant petition is hereby DENIED DUE COURSE and is DISMISSED for lack of merit.

SO ORDERED.40

The petitioners filed a Motion for Reconsideration,41 but the CA denied the motion on October 30, 2003.42

Hence, they commenced this special civil action for certiorari.

The petitioners hereby contend that:

THE COURT OF APPEALS RULED CONTRARY TO SUPREME COURT DECISIONS AND GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT:

A. HELD THAT GRANTING THE PETITION FOR MANDAMUS (WHICH MERELY SEEKS FULL EXECUTION OF DOLE FINAL JUDGMENTS 26 DECEMBER 1990 AND 5 DECEMBER 1991 WOULD AMEND SAID FINAL AND EXECUTORY JUDGMENTS.

B. FAILED TO IMPLEMENT THE SUPREME COURT DOCTRINE SET IN PDCP VS. GENILO, G.R. NO. 106705, THAT SIMILARLY SITUATED EMPLOYEES HAS THE RIGHT TO PROVE THEIR ENTITLEMENT TO THE BENEFITS AWARDED UNDER FINAL JUDGMENTS.

C. HELD THAT THE QUESTIONED JUDGMENTS HAD BEEN EXECUTED WHEN THE RESPONDENTS THEMSELVES ADMIT THE CONTRARY.

D. HELD THAT DOLE SECRETARY DID NOT COMMIT GRAVE ABUSE OF DISCRETION WHEN SHE REFUSED TO FULLY EXECUTE THE 1990 AND 1991 DOLE FINAL JUDGMENTS AND ISSUE CORRESPONDING WRITS OF EXECUTION.

The petitioners submit that of the six groups of employees classified under the April 12, 1995 notice of computation/execution issued by Regional Director Macaraya, only the first two groups, that is, the 15 employees initially represented by Atty. Arnado; and the nine salesmen led by Geronimo S. Banquirigo, had been granted a writ of execution. They further submit that the May 24, 1995 writ of execution issued in favor of the first group of employees, including themselves, had only been partially satisfied because no backwages or separation pay from March 16, 1995 onwards had yet been paid to them; that the reduced award granted to the second group of employees was in violation of the April 12, 1995 notice of computation/execution; that no writ of execution had been issued in favor of the other groups of employees; and that DOLE Secretary Sto. Tomas thus committed grave abuse of discretion in refusing to fully execute the December 26, 1990 and December 5, 1991 orders.

In its comment, IPI counters that the petition for certiorari should be dismissed for being an improper remedy, the more appropriate remedy being a petition for review on certiorari; that a petition for review on certiorari should have been filed within 15 days from receipt of the denial of the motion for reconsideration, as provided in Section 1 and Section 2 of Rule 45; and that the petition must also be outrightly dismissed for being filed out of time.

IPI contends that the finality of the December 24, 1997 and March 27, 1998 orders of the DOLE Secretary rendered them unalterable; that Atty. Arnado had already brought the December 24, 1997 and March 27, 1998 orders to this Court for review (G.R. No. 134118); and that the Court had dismissed the petition for having been filed out of time and for the petitioners’ failure to comply with Rule 13 and Rule 45 of the Rules of Court.

Ruling

We dismiss the petition for certiorari.

Firstly, an appeal by petition for review on certiorari under Rule 45 of the Rules of Court, to be taken to this Court within 15 days from notice of the judgment or final order raising only questions of law, was the proper remedy available to the petitioners. Hence, their filing of the petition for certiorari on January 9, 2004 to assail the CA’s May 30, 2003 decision and October 30, 2003 resolution in C.A.-G.R. SP No. 65970 upon their allegation of grave abuse of discretion committed by the CA was improper. The averment therein that the CA gravely abused its discretion did not warrant the filing of the petition for certiorari, unless the petition further showed how an appeal in due course under Rule 45 was not an adequate remedy for them. By virtue of its being an extraordinary remedy, certiorari cannot replace or substitute an adequate remedy in the ordinary course of law, like an appeal in due course.43

We remind them that an appeal may also avail to review and correct any grave abuse of discretion committed by an inferior court, provided it will be adequate for that purpose.

It is the adequacy of a remedy in the ordinary course of law that determines whether a special civil action for certiorari can be a proper alternative remedy. We reiterate what the Court has discoursed thereon in Heirs of Spouses Teofilo M. Reterta and Elisa Reterta v. Spouses Lorenzo Mores and Virginia Lopez,44 viz:

Specifically, the Court has held that the availability of appeal as a remedy does not constitute sufficient ground to prevent or preclude a party from making use of certiorari if appeal is not an adequate remedy, or an equally beneficial, or speedy remedy. It is inadequacy, not the mere absence of all other legal remedies and the danger of failure of justice without the writ, that must usually determine the propriety of certiorari. A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment, order, or resolution of the lower court or agency. It is understood, then, that a litigant need not mark time by resorting to the less speedy remedy of appeal in order to have an order annulled and set aside for being patently void for failure of the trial court to comply with the Rules of Court.

Nor should the petitioner be denied the recourse despite certiorari not being available as a proper remedy against an assailed order, because it is better on balance to look beyond procedural requirements and to overcome the ordinary disinclination to exercise supervisory powers in order that a void order of a lower court may be controlled to make it conformable to law and justice. Verily, the instances in which certiorari will issue cannot be defined, because to do so is to destroy the comprehensiveness and usefulness of the extraordinary writ. The wide breadth and range of the discretion of the court are such that authority is not wanting to show that certiorari is more discretionary than either prohibition or mandamus, and that in the exercise of superintending control over inferior courts, a superior court is to be guided by all the circumstances of each particular case "as the ends of justice may require." Thus, the writ will be granted whenever necessary to prevent a substantial wrong or to do substantial justice.45 (Emphasis supplied)

Even so, Rule 65 of the Rules of Court still requires the petition for certiorari to comply with the following requisites, namely: (1) the writ of certiorari is directed against a tribunal, a board, or an officer exercising judicial or quasi-judicial functions; (2) such tribunal, board, or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.46

Jurisprudence recognizes certain situations when the extraordinary remedy of certiorari may be deemed proper, such as: (a) when it is necessary to prevent irreparable damages and injury to a party; (b) where the trial judge capriciously and whimsically exercised his judgment; (c) where there may be danger of a failure of justice; (d) where an appeal would be slow, inadequate, and insufficient; (e) where the issue raised is one purely of law; (f) where public interest is involved; and (g) in case of urgency.47 Yet, a reading of the petition for certiorari and its annexes reveals that the petition does not come under any of the situations. Specifically, the petitioners have not shown that the grant of the writ of certiorari will be necessary to prevent a substantial wrong or to do substantial justice to them.

In dismissing the petitioners’ petition for certiorari, the CA in effect upheld the Secretary of Labor’s declaration in her assailed July 4, 2001 decision that the full satisfaction of the writs of execution had completely closed and terminated the labor dispute.

Yet, the petitioners have ascribed grave abuse of discretion to the CA for doing so.

We do not agree. We find no just cause to now issue the writ of certiorari in order to set aside the CA’s assailed May 30, 2003 decision. Indeed, the following well stated justifications for the dismissal of the petition show that the CA was correct, viz:

x x x x

It is worthy to note that all the decisions and incidents concerning the case between petitioners and private respondent IPI have long attained finality. The records show that petitioners have already been granted a writ of execution. In fact, the decision has been executed. Thus, there is nothing for this Court to modify. The granting of the instant petition calls for the amendment of the Court of a decision which has been executed. In this light, it is worthy to note the rule that final and executory decisions, more so with those already executed, may no longer be amended except only to correct errors which are clerical in nature. Amendments or alterations which substantially affect such judgments as well as the entire proceedings held for that purpose are null and void for lack of jurisdiction (Pio Barretto Realty Development Corporation v. Court of Appeals, 360 SCRA 127).

This Court in the case of CA GR No. 54041 dated February 28, 2001, has ruled that the Orders of the Secretary of Labor and Employment dated December 24, 1997 and March 27, 1998 have become final and executory. It may be noted that the said orders affirmed the earlier orders of the Secretary of Labor and Employment dated December 22, 1995 and August 27, 1996 granting the execution of the decision in the case between petitioners and IPI.

There is nothing on the records to support the allegation of petitioners that the Secretary of Labor and Employment abused her discretion. The pertinent portion of the assailed order reads:

"Given that this office had already ruled on all incidents of the case in its March 27, 1998 order and the Writ of Execution dated June 5, 1995 had already attained finality and had in fact been completely satisfied through the deposit with the Regional Office of the amount covered by the Writ, the subsequent Motions filed by Atty. Arnado can no longer be entertained, much less granted by this Office. Thus, at this point, there is nothing more to grant nor to execute."48

x x x x

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 a merely reversible error but a grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the impugned order.49 Showing mere abuse of discretion 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.50 Under the circumstances, the CA committed no abuse of discretion, least of all grave, because its justifications were supported by the history of the dispute and borne out by the applicable laws and jurisprudence.

And, secondly, the records contradict the petitioners’ insistence that the two writs of execution to enforce the December 26, 1990 and December 5, 1991 orders of the DOLE Secretary were only partially satisfied. To recall, the two writs of execution issued were the one for P4,162,361.50, later reduced to P3,416,402.10, in favor of the 15 employees represented by Atty. Arnado, and that for P1,200,378.92 in favor of the second group of employees led by Banquerigo.

There is no question that the 15 employees represented by Atty. Arnado, inclusive of the petitioners, received their portion of the award covered by the September 3, 1996 writ of execution for the amount of P3,416,402.10 through the release of the garnished deposit of IPI at China Banking Corporation. That was why they then executed the satisfaction of judgment and quitclaim/release, the basis for the DOLE Secretary to expressly declare in her July 4, 2001 decision that the full satisfaction of the writ of execution "completely CLOSED and TERMINATED this case."51

Still, the 15 employees demand payment of their separation pay and backwages from March 16, 1995 onwards pursuant to their reservation reflected in the satisfaction of judgment and quitclaim/release they executed on September 11, 1996.

The demand lacked legal basis. Although the decision of the DOLE Secretary dated December 5, 1991 had required IPI to reinstate the affected workers to their former positions with full backwages reckoned from December 8, 1989 until actually reinstated without loss of seniority rights and other benefits, the reinstatement thus decreed was no longer possible. Hence, separation pay was instead paid to them. This alternative was sustained in law and jurisprudence, for "separation pay may avail in lieu of reinstatement if reinstatement is no longer practical or in the best interest of the parties. Separation pay in lieu of reinstatement may likewise be awarded if the employee decides not to be reinstated."52

Under the circumstances, the employment of the 15 employees or the possibility of their reinstatement terminated by March 15, 1995. Thereafter, their claim for separation pay and backwages beyond March 15, 1995 would be unwarranted. The computation of separation pay and backwages due to illegally dismissed employees should not go beyond the date when they were deemed to have been actually separated from their employment, or beyond the date when their reinstatement was rendered impossible. Anent this, the Court has observed in Golden Ace Builders v. Talde:53

The basis for the payment of backwages is different from that for the award of separation pay. Separation pay is granted where reinstatement is no longer advisable because of strained relations between the employee and the employer. Backwages represent compensation that should have been earned but were not collected because of the unjust dismissal. The basis for computing backwages is usually the length of the employee’s service while that for separation pay is the actual period when the employee was unlawfully prevented from working.

As to how both awards should be computed, Macasero v. Southern Industrial Gases Philippines instructs:

[T]he award of separation pay is inconsistent with a finding that there was no illegal dismissal, for under Article 279 of the Labor Code and as held in a catena of cases, an employee who is dismissed without just cause and without due process is entitled to backwages and reinstatement or payment of separation pay in lieu thereof:

Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.

The normal consequences of respondents’ illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages. (emphasis, italics and underscoring supplied)

x x x x

Clearly then, respondent is entitled to backwages and separation pay as his reinstatement has been rendered impossible due to strained relations. As correctly held by the appellate court, the backwages due respondent must be computed from the time he was unjustly dismissed until his actual reinstatement, or from February 1999 until June 30, 2005 when his reinstatement was rendered impossible without fault on his part.

The Court, however, does not find the appellate court's computation of separation pay in order. The appellate court considered respondent to have served petitioner company for only eight years. Petitioner was hired in 1990, however, and he must be considered to have been in the service not only until 1999, when he was unjustly dismissed, but until June 30, 2005, the day he is deemed to have been actually separated (his reinstatement having been rendered impossible) from petitioner company or for a total of 15 years. 54

As for the portions of the award pertaining to the rest of the employees listed in the April 12, 1995 notice of execution/computation (i.e., those allegedly similarly situated as the employees listed in the December 5, 1991 order of the DOLE Secretary) still remaining unsatisfied, the petitioners are definitely not the proper parties to ventilate such concern in this or any other forum. At any rate, the concern has already been addressed and resolved by the Court in G.R. No. 164633.55

WHEREFORE, the Court DISMISSES the petition for certiorari for its lack of merit; AFFIRMS the decision promulgated on May 30, 2003; and ORDERS the petitioners to pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMINAssociate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENOChief Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

BIENVENIDO L. REYESAssociate Justice

C E R T I F I C A T I O N

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

MARIA LOURDES P. A. SERENOChief Justice

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner, vs.COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

 

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the mischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the election." 2 The mischief which this provision — reproduced verbatim from the 1973 Constitution — seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community." 3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following information in item no. 8: 4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: __________ Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification" 5 with the Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In his petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency requirement for candidates for the House of Representatives on the evidence of declarations made by her in Voter Registration Record 94-No. 3349772 6 and in her Certificate of Candidacy. He prayed that "an order be issued declaring (petitioner) disqualified and canceling the certificate of candidacy." 7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven" months to "since childhood" in item no. 8 of the amended certificate. 8 On the same day, the Provincial Election Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that it is filed out of time, the deadline for the filing of the same having already lapsed on March 20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed on or before the March 20, 1995 deadline. 9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in Intramuros, Manila onMarch 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original Certificate of Candidacy was the result of an "honest misinterpretation" 10 which she sought to rectify by adding the words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as her domicile or residence. 11 Impugning respondent's motive in filing the petition seeking her disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed her intended registration by writing a letter stating that "she is not a resident of said city but of

Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of her six month actual residence therein, petitioner filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second District and pursued such a move up to the Supreme Court, his purpose being to remove respondent as petitioner's opponent in the congressional election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking the creation of another legislative district to remove the town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner now filed the instant petition for the same objective, as it is obvious that he is afraid to submit along with respondent for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of Candidacy. 14 Dealing with two primary issues, namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline for filing certificates of candidacy, and petitioner's compliance with the one year residency requirement, the Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months) was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an amendment should subsequently be allowed. She averred that she thought that what was asked was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the First Legislative District, to which she could have responded "since childhood." In an accompanying affidavit, she stated that her domicile is Tacloban City, a component of the First District, to which she always intended to return whenever absent and which she has never abandoned. Furthermore, in her memorandum, she tried to discredit petitioner's theory of disqualification by alleging that she has been a resident of the First Legislative District of Leyte since childhood, although she only became a resident of the Municipality of Tolosa for seven months. She asserts that she has always been a resident of Tacloban City, a component of the First District, before coming to the Municipality of Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announced that she would be registering in Tacloban City so that she can be a candidate for the District. However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban not to allow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this claim and instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite aware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was asked was her actual and physical presence in Tolosa is not easy to believe because there is none in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be elected immediately preceding the election." Thus, the explanation of respondent fails to be persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is devoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the case of Alialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The case only applies to the "inconsequential deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely and orderly conduct of elections." The Supreme Court in that case considered the amendment only as a matter of form. But in the instant case, the amendment cannot be considered as a matter of form or an inconsequential deviation. The change in the number of years of residence in the place where respondent seeks to be elected is a substantial matter which determines her qualification as a candidacy, specially those intended to suppress, accurate material representation in the original certificate which adversely affects the filer. To admit the amended certificate is to condone the evils brought by the shifting minds of manipulating candidate, of the detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her residency in order to prolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed before this Commission. The arithmetical accuracy of the 7 months residency the respondent indicated in her certificate of candidacy can be gleaned from her entry in her Voter's Registration Record accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the said registration (Annex A, Petition). Said accuracy is further buttressed by her letter to the election officer of San Juan, Metro Manila, dated August 24, 1994, requesting for the cancellation of her registration in the Permanent List of Voters thereat so that she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different documents show the respondent's consistent conviction that she has transferred her residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore, cannot be persuaded to believe in the respondent's contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this Commission.

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Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not complied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with "domicile" which imports not only the intention to reside in a fixed place but also personal presence in-that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in 1991, the residence she chose was not Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is pointed to Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District since childhood is nothing more than to give her a color of qualification where she is otherwise constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the respondent in her affidavit. Except for the time that she studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband was

elected Senator, she lived and resided in San Juan, Metro Manila where she was a registered voter. In 1965, she lived in San Miguel, Manila where she was again a registered voter. In 1978, she served as member of the Batasang Pambansa as the representative of the City of Manila and later on served as the Governor of Metro Manila. She could not have served these positions if she had not been a resident of the City of Manila. Furthermore, when she filed her certificate of candidacy for the office of the President in 1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent wrote a letter with the election officer of San Juan, Metro Manila requesting for the cancellation of her registration in the permanent list of voters that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places, including Metro Manila. This debunks her claim that prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leyte since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. She registered as a voter in different places and on several occasions declared that she was a resident of Manila. Although she spent her school days in Tacloban, she is considered to have abandoned such place when she chose to stay and reside in other different places. In the case of Romualdez vs. RTC (226 SCRA 408) the Court explained how one acquires a new domicile by choice. There must concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and (3) intention to abandon the old domicile. In other words there must basically be animus manendi with animus non revertendi. When respondent chose to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering as a voter there and expressly declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City, where she spent her childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of such intention. Respondent's statements to the effect that she has always intended to return to Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice of residence. Respondent has not presented any evidence to show that her conduct, one year prior the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to her residence in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a resident of the First District of Leyte "since childhood."

To further support the assertion that she could have not been a resident of the First District of Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995 respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she resided in the municipality of Tolosa for a period of six months. This may be inconsequential as argued by the respondent since it refers only to her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she had been a resident of the district for six months only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's Motion for Reconsideration 16 of the April 24, 1995 Resolution declaring her not qualified to run for the position of Member of the House of Representatives for the First Legislative District of Leyte. 17 The Resolution tersely stated:

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new substantial matters having been raised therein to warrant re-examination of the resolution granting the petition for disqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the canvass show that she obtained the highest number of votes in the congressional elections in the First District of Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution directing that the proclamation of petitioner be suspended in the event that she obtains the highest number of votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the elections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified into two general areas:

I. The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of one year at the time of the May 9, 1995 elections.

II. The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the question of petitioner's qualifications after the May 8, 1995 elections.

I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with the general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose of determining a candidate's qualifications for election to the House of Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence." In Ong vs. Republic 20 this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." 21 Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. 22 It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, 23 we laid this distinction quite clearly:

There is a difference between domicile and residence. "Residence" is used to indicate a place of abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile.

In Nuval vs. Guray, 24 the Court held that "the term residence. . . is synonymous with domicile which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention." 25 Larena vs. Teves 26 reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, 27 held that the absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of residence. 28 So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile.

The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, "and a resident thereof", that is, in the district for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. 29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical residence. 30

In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court concluded that the framers of the 1987 Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having the same meaning as domicile. 32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry in petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as seven (7) months?

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not and individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in the space provided for the residency qualification requirement. The circumstances leading to her filing the questioned entry obviously resulted in the subsequent confusion which prompted petitioner to write down the period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was "since childhood" in the space provided. These circumstances and events are amply detailed in the COMELEC's Second Division's questioned resolution, albeit with a different interpretation. For instance, when herein petitioner announced that she would be registering in Tacloban City to make her eligible to run in the First District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close look at said certificate would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed immediately by the entry for residence in the constituency where a candidate seeks election thus:

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TOBE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months.

Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 — the first requiring actual residence and the second requiring domicile — coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down an unintended entry for which she could be disqualified. This honest mistake should not, however, be allowed to negate the fact of residence in the First District if such fact were established by means more convincing than a mere entry on a piece of paper.

We now proceed to the matter of petitioner's domicile.

In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila." The Resolution additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be any place where she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election of her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro Manila. "She could not, have served these positions if she had not been a resident of Metro Manila," the COMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places" flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election law purposes. In Larena vs. Teves, 33 supra, we stressed:

[T]his court is of the opinion and so holds that a person who has his own house wherein he lives with his family in a municipality without having ever had the intention of abandoning it, and without having lived either alone or with his family in another municipality, has his residence in the former municipality, notwithstanding his having registered as an elector in the other municipality in question and having been a candidate for various insular and provincial positions, stating every time that he is a resident of the latter municipality.

More significantly, in Faypon vs. Quirino, 34 We explained that:

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to improve his lot, and that, of course includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from his professional or business activities; so there he registers himself as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the

government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing of every person to return to his place of birth. This strong feeling of attachment to the place of one's birth must be overcome by positive proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional commission but also the provisions of the Omnibus Election Code (B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we lift verbatim from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1949 when she graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter. In 1965, when her husband was elected President of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held various residences for different purposes during the last four decades. None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her adulthood there and eventually established residence in different parts of the country for various reasons. Even during her husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other important personal milestones in her home province, instituting well-publicized projects for the benefit of her province and hometown, and establishing a political power base where her siblings and close relatives held positions of power either through the ballot or by appointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are part of the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew: the fact of petitioner's domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she did not live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her

residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely expressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile was not established only when her father brought his family back to Leyte contrary to private respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing a new one; and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same time. 38 In the case at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicile with one of her own choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between the Civil Code concepts of "domicile" and "residence." 39 The presumption that the wife automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a person and a place; but in residence, the relation is one of fact while in domicile it is legal or juridical, independent of the necessity of physical presence. 40

Article 110 of the Civil Code provides:

Art. 110. — The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female spouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of the husband's choice of residence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a pais extranjero.

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "when the husband shall transfer his residence," referring to another positive act of relocating the family to another home or place of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence.

The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live together, thus:

Art. 109. — The husband and wife are obligated to live together, observe mutual respect and fidelity and render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should necessarily be with him in order that they may "live together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation where the wife is left in the domicile while the husband, for professional or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile — Whether the word "residence" as used with reference to particular matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision must be made from a consideration of the purpose and intent with which the word is used. Sometimes they are used synonymously, at other times they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a person in a place. A person can have two or more residences, such as a country residence and a city residence. Residence is acquired by living in place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some otherplace. 41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence, our jurisprudence has recognized certain situations 42 where the spouses could not be compelled to live with each

other such that the wife is either allowed to maintain a residence different from that of her husband or, for obviously practical reasons, revert to her original domicile (apart from being allowed to opt for a new one). In De la Vina vs. Villareal 43 this Court held that "[a] married woman may acquire a residence or domicile separate from that of her husband during the existence of the marriage where the husband has given cause for divorce." 44 Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in such an event. In instances where the wife actually opts, .under the Civil Code, to live separately from her husband either by taking new residence or reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo 45 the Court held that:

Upon examination of the authorities, we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the property rights of one of the pair are invaded, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible (sic) by process of contempt, may be entered to compel the restitution of the purely personal right of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and he experience of those countries where the courts of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it, that court would make a mandatory decree, enforceable by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to make a preemptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property;

and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged — by virtue of Article 110 of the Civil Code — to follow her husband's actual place of residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained upon marriage was actual residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes in the concept of women's rights in the intervening years by making the choice of domicile a product of mutual agreement between the spouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the rights and obligations of husband and wife — the term residence should only be interpreted to mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our homeland." 47 Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from our discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domicile different from her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's claim of legal residence or domicile in the First District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the Omnibus Election Code. 48 Moreover, petitioner contends that it is the House of Representatives Electoral

Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of Representatives in accordance with Article VI Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely directory, 49 "so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended such result it would have clearly indicated it." 50 The difference between a mandatory and a directory provision is often made on grounds of necessity. Adopting the same view held by several American authorities, this court in Marcelino vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on grounds of expediency, the reason being that less injury results to the general public by disregarding than enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of thirty (30) days within which a decree may be entered without the consent of counsel, it was held that "the statutory provisions which may be thus departed from with impunity, without affecting the validity of statutory proceedings, are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the Legislature or some incident of the essential act." Thus, in said case, the statute under examination was construed merely to be directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would then refuse to render judgments merely on the ground of having failed to reach a decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, 52 it is evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. 53 Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a distinction was made on such a ground here. Surely, many established principles of law, even of election laws were flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA ourselves bending established principles of principles of law to deny an individual what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of the First District of Leyte.

SO ORDERED.

Feliciano, J., is on leave.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. 135150 July 28, 1999

ROMEO LONZANIDA, petitioner, vs.THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, respondents.

 

GONZAGA-REYES, J.:

This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales, Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and void.1âwphi1.nêt

Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled:

PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election.

Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant.

Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling P1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term.

In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the

same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanida's assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998.

Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC No. 6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant; wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure.

Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be heard and decided by the COMELEC after the election and proclamation of the said party without distinction as to the alleged ground for disqualification, whether for acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for disqualification were issued within the commission's jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioner's assumption of office in 1995 should be considered as service of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few months before the next mayoral elections.

The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter 1 of the Local Government Code which bar a local government official from serving more than three consecutive terms in the same position speaks of "service of a term" and so the rule should be examined in this light. The public respondent contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted as service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in the application of the three term limit because the prohibition speaks or "service of a term" which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and so the instant petition for disqualification which was filed before the elections may be resolved by the COMELEC thereafter regardless of the imputed basis of disqualification.

The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995 to 1998 although he assumed office as mayor for that period because he was not lawfully elected to the said office. Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his

Reply that the COMELEC ceased to have jurisdiction to hear the election protest after the petitioner's proclamation.

The petition has merit.

Sec. 8, Art. X of the Constitution provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule:

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

The issue before us is whether petitioner Lonzanida's assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local government officials.

The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political dynasty. 1 The drafters however, recognized and took note of the fact that some local government officials run for office before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office. 2

The scope of the constitutional provision barring elective local officials with the exception of barangay officials from serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr.; vs. COMELEC and Jose Capco, Jr. 3 where the issue raised was whether a vice-mayor who succeeds to the office of the mayor by operation of law upon the death of the incumbent mayor and served the remainder of the term should be considered to have served a term in that office for the purpose of computing the three term limit. This court pointed out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the premise that the official's assumption of office is by reason of election. This Court stated: 4

Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from

the concern that the right of the people to choose those whom they wish to govern them be preserved.

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for members of Congress:

MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again?

MR. DAVIDE. That is correct.

MR. GASCON. And the question that we left behind before — if the Gentlemen will remember-was: How long will that period of rest be? Will it be one election which is three years or one term which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter, this particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the Committees' stand.

xxx xxx xxx

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X, section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of "the-term of office of elective local officials" and bars "such officials" from serving for more than three consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full term of office, states that "voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." The term served must therefore be one "for which the official concerned was elected." The purpose of the provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve."

This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated:

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply.

It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated

November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term.

The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all 5 and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. 6 Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. "The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.

In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside.

The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial court's decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election.

The petitioner's contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21,

1998 or before the May 1998 elections and was resolved on May 21, 1998 or after the petitioner's proclamation. It was held in the case of Sunga vs. COMELEC and Trinidad 7 that the proclamation nor the assumption of office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits.

Sec. 6 of RA 6646 specifically mandates that:

Sec. 6. Effects of disqualification Case. — any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed.

The court stated:

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered thereon. The word "shall" signified that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre vs. Duavit in effect disallows what R.A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law.

The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC this Court held —

Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC . . . Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene.

It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation .

Accordingly, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside.1âwphi1.nêt

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 181613               November 25, 2009

ROSALINDA A. PENERA, Petitioner, vs.COMMISSION ON ELECTIONS and EDGAR T. ANDANAR, Respondents.

R E S O L U T I O N

CARPIO, J.:

We grant Rosalinda A. Penera’s (Penera) motion for reconsideration of this Court’s Decision of 11 September 2009 (Decision).

The assailed Decision dismissed Penera’s petition and affirmed the Resolution dated 30 July 2008 of the COMELEC En Banc as well as the Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11 of RA 8436 as amended by Section 13 of RA 9369.

2. The petition for disqualification failed to submit convincing and substantial evidence against Penera for violation of Section 80 of the Omnibus Election Code.

3. Penera never admitted the allegations of the petition for disqualification and has consistently disputed the charge of premature campaigning.

4. The admission that Penera participated in a motorcade is not the same as admitting she engaged in premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a "candidate" as "any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy x x x." The second sentence, third paragraph, Section 15 of RA 8436, as amended by Section 13 of RA 9369, provides that "[a]ny person who files his certificate of candidacy within [the period for filing] shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy." The immediately succeeding proviso in the same third paragraph states that "unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period." These two provisions determine the resolution of this case.

The Decision states that "[w]hen the campaign period starts and [the person who filed his certificate of candidacy] proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified."1

Under the Decision, a candidate may already be liable for premature campaigning after the filing of the certificate of candidacy but even before the start of the campaign period. From the filing of the certificate of candidacy, even long before the start of the campaign period, the Decision considers the partisan political acts of a person so filing a certificate of candidacy "as the promotion of his/her election as a candidate." Thus, such person can be disqualified for premature campaigning for acts done before the start of the campaign period. In short, the Decision considers a person who files a certificate of candidacy already a "candidate" even before the start of the campaign period. lawphil

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,2 which held that a person who files a certificate of candidacy is not a candidate until the start of the campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or candidates; (3) the act is done outside the campaign period.

The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third element requires that the campaign period has not started when the election campaign or partisan political activity is committed.

Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section 80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since Section 80 covers only acts done "outside" the campaign period.

Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day, which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close to the last day.

There is no dispute that Eusebio’s acts of election campaigning or partisan political activities were committed outside of the campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a "candidate" when he committed those acts before the start of the campaign period on 24 March 2004.

Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political activities prior to the start of the campaign period on 24 March 2004?

Section 11 of RA 8436 provides:

SECTION 11. Official Ballot. – The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary.

For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/ manifestation to participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter with a provision of additional four (4) ballots per precinct.

Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee:

SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national officials?

THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.

SENATOR GONZALES. But the moment one files a certificate of candidacy, he’s already a candidate, and there are many prohibited acts on the part of candidate.

THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .

SENATOR GONZALES. And you cannot say that the campaign period has not yet began (sic).

THE CHAIRMAN (REP. TANJUATCO). If we don’t provide that the filing of the certificate will not bring about one’s being a candidate.

SENATOR GONZALES. If that’s a fact, the law cannot change a fact.

THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable ballots.

So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will agree to the 120-day period provided in the Senate version.

THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.

x x x x

SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being a candidate?

THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to print the ballots, this provision does not intend to change the campaign periods as presently, or rather election periods as presently fixed by existing law.

THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.

THE CHAIRMAN (REP. TANJUATCO). That’s right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking about the 120-day period before election as the last day of filing a certificate of candidacy,

election period starts 120 days also. So that is election period already. But he will still not be considered as a candidate.

Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January 2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."3 (Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of candidacy is not a candidate until the start of the campaign period. This ground was based on the deliberations of the legislators who explained the intent of the provisions of RA 8436, which laid the legal framework for an automated election system. There was no express provision in the original RA 8436 stating that one who files a certificate of candidacy is not a candidate until the start of the campaign period.

When Congress amended RA 8436, Congress decided to expressly incorporate the Lanot doctrine into law, realizing that Lanot merely relied on the deliberations of Congress in holding that —

The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436 and that one who files to meet the early deadline "will still not be considered as a candidate."4 (Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy under the early deadline required by the automated election system would be disqualified or penalized for any partisan political act done before the start of the campaign period. Thus, in enacting RA 9369, Congress expressly wrote the Lanot doctrine into the second sentence, third paragraph of the amended Section 15 of RA 8436, thus:

x x x

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy. (Boldfacing and underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it as the second sentence of the third paragraph of the amended Section 15 of RA 8436, which cannot be annulled by this Court except on the sole ground of its unconstitutionality. The Decision cannot reverse Lanot without repealing this second sentence, because to reverse Lanot would mean repealing this second sentence.

The assailed Decision, however, in reversing Lanot does not claim that this second sentence or any portion of Section 15 of RA 8436, as amended by RA 9369, is unconstitutional. In fact, the Decision considers the entire Section 15 good law. Thus, the Decision is self-contradictory — reversing Lanot but maintaining the constitutionality of the second sentence, which embodies the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the clear intent and letter of the second sentence, third paragraph, Section 15 of RA 8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the third paragraph of Section 15 of RA 8436. The original provision in RA 8436 states —

x x x Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word "only" so that the first proviso now reads —

x x x Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period x x x. (Emphasis supplied)

Thus, Congress not only reiterated but also strengthened its mandatory directive that election offenses can be committed by a candidate "only" upon the start of the campaign period. This clearly means that before the start of the campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are read together, these provisions of law do not consider Penera a candidate for purposes other than the printing of ballots, until the start of the campaign period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T. Carpio:

x x x The definition of a "candidate" in Section 79(a) of the Omnibus Election Code should be read together with the amended Section 15 of RA 8436. A "‘candidate’ refers to any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment or coalition of parties." However, it is no longer enough to merely file a certificate of candidacy for a person to be considered a candidate because "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Any person may thus file a certificate of candidacy on any day within the prescribed period for filing a certificate of candidacy yet that person shall be considered a candidate, for purposes of determining one’s possible violations of election laws, only during the campaign period. Indeed, there is no "election campaign" or "partisan political activity" designed to promote the election or defeat of a particular candidate or candidates to public office simply because there is no "candidate" to speak of prior to the start of the campaign period. Therefore, despite the filing of her certificate of candidacy, the law does not consider Penera a candidate at the time of the questioned motorcade which was conducted a day before the start of the campaign period. x x x

The campaign period for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not consider Penera a candidate for purposes other than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the date when she became a "candidate," even if constituting election campaigning or partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are within the realm of a citizen’s protected freedom of expression. Acts committed by Penera within the campaign period are not covered by Section 80 as Section 80 punishes only acts outside the campaign period.5

The assailed Decision gives a specious reason in explaining away the first proviso in the third paragraph, the amended Section 15 of RA 8436 that election offenses applicable to candidates take effect only upon the start of the campaign period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended, which provides that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period," does not mean that the acts constituting premature campaigning can only be committed, for which the offender may be

disqualified, during the campaign period. Contrary to the pronouncement in the dissent, nowhere in said proviso was it stated that campaigning before the start of the campaign period is lawful, such that the offender may freely carry out the same with impunity.

As previously established, a person, after filing his/her COC but prior to his/her becoming a candidate (thus, prior to the start of the campaign period), can already commit the acts described under Section 79(b) of the Omnibus Election Code as election campaign or partisan political activity, However, only after said person officially becomes a candidate, at the beginning of the campaign period, can said acts be given effect as premature campaigning under Section 80 of the Omnibus Election Code. Only after said person officially becomes a candidate, at the start of the campaign period, can his/her disqualification be sought for acts constituting premature campaigning. Obviously, it is only at the start of the campaign period, when the person officially becomes a candidate, that the undue and iniquitous advantages of his/her prior acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to the other candidates who are only about to begin their election campaign, a candidate who had previously engaged in premature campaigning already enjoys an unfair headstart in promoting his/her candidacy.6 (Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly declared unlawful by law. This is specially true to expression or speech, which Congress cannot outlaw except on very narrow grounds involving clear, present and imminent danger to the State. The mere fact that the law does not declare an act unlawful ipso facto means that the act is lawful. Thus, there is no need for Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that political partisan activities before the start of the campaign period are lawful. It is sufficient for Congress to state that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The only inescapable and logical result is that the same acts, if done before the start of the campaign period, are lawful.

In layman’s language, this means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The law is clear as daylight — any election offense that may be committed by a candidate under any election law cannot be committed before the start of the campaign period. In ruling that Penera is liable for premature campaigning for partisan political acts before the start of the campaigning, the assailed Decision ignores the clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature campaigning can be disqualified or prosecuted only after the start of the campaign period. This is not what the law says. What the law says is "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period." The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political acts done by a candidate before the campaign period are unlawful, but may be prosecuted only upon the start of the campaign period. Neither does the law state that partisan political acts done by a candidate before the campaign period are temporarily lawful, but becomes unlawful upon the start of the campaign period. This is clearly not the language of the law. Besides, such a law as envisioned in the Decision, which defines a criminal act and curtails freedom of expression and speech, would be void for vagueness.

Congress has laid down the law — a candidate is liable for election offenses only upon the start of the campaign period. This Court has no power to ignore the clear and express mandate of the law that "any person who files his certificate of candidacy within [the filing] period shall only be considered a candidate at the start of the campaign period for which he filed his certificate of candidacy." Neither can this Court turn a blind eye to the express and clear language of the law that "any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period."

The forum for examining the wisdom of the law, and enacting remedial measures, is not this Court but the Legislature. This Court has no recourse but to apply a law that is as clear, concise and express as the second sentence, and its immediately succeeding proviso, as written in the third paragraph of Section 15 of RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s Motion for Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613 promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and the COMELEC En Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.