470 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

*
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 Lu-zon; and
NESTOR V. AGUSTIN, respondents.

Ombudsman; Administrative Law; Public Officers;

Appeals; Certiorari; Pleadings and Practice; Ombudsman
Act of 1989 (Republic Act No. 6770); 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.—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

_______________
 * EN BANC.

471

VOL. 295, SEPTEMBER 16, 1998 471

Fabian vs. Desierto

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.

Same; Same; Same; Civil Service Commission; The

administrative liability of a public official could fall under
the jurisdiction of both the Civil Service Commission and
the Office of the Ombudsman.—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.

Same; Same; Same; Constitutional Law; Courts;

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

Same; Same; Same; Same; Same; Same; Same;

Jurisdiction; Pleadings and Practice; While courts will not
ordinarily pass upon

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472 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

constitutional questions which are not raised in the

pleadings, it does not preclude a court from inquiring into
its own jurisdiction or compel it to enter a judgment that it
lacks jurisdiction.—While courts will not ordinarily pass
upon constitutional questions which are not raised in the
pleadings, the rule has been recognized to admit of certain
exceptions. It does not preclude a court from inquiring into
its own jurisdiction or compel it to enter a judgment that it
lacks jurisdiction to enter. If a statute on which a 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.

Same; Same; Same; Same; Same; Same; Same; Same;

Same; 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.—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. The Court ex mero motu may take cognizance
of lack of jurisdiction at any point in the case where that
fact is developed. The court has a clearly recognized right
to determine its own jurisdiction in any proceeding.

Same; Same; Same; Same; Same; Same; Same; Same;

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.—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. 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
 473

VOL. 295, SEPTEMBER 16, 1998 473

Fabian vs. Desierto

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.

Same; Same; Same; Same; Same; Same; Same; Same;

Appeals from judgments and final orders of quasi-judicial
agencies 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.—
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 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.

Same; Same; Same; Same; Same; Same; Same; 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.
—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.

Same; Same; Same; Same; Same; Same; Same; The

Supreme Court can rule on a constitutional question sua
sponte when its appellate jurisdiction is involved.—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

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474 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

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.
 Same; Same; Same; Same; Same; Same; Same;
Republic Act 6770; Section 27 of Republic Act No. 6770
cannot validly authorize an appeal to the Supreme 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
the Supreme Court.—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. 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.

Same; Same; Same; Same; Same; Same; Same;

Pleadings and Practice; 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.—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.
 475

VOL. 295, SEPTEMBER 16, 1998 475

Fabian vs. Desierto

Courts; Actions; Procedural Rules; It is admitted that

what is procedural and what is substantive is frequently a
question of great difficulty.—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. It is admitted that
what is procedural and what is substantive is frequently a
question of great difficulty. 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.

Same; Same; Same; Pleadings and Practice; Supreme

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

Same; Same; Same; Same; Ombudsman; 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.—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. This is so
because it is not the right to appeal of an aggrieved party
which is affected by

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476 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

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.

Same; Same; Same; Same; It cannot be said that the

transfer of appellate jurisdiction to the Court of Appeals 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.—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.

PETITION for review on certiorari of a joint order of

the Ombudsman and the Deputy Ombudsman for
Luzon.

The facts are stated in the opinion of the Court.

     Estelito P. Mendoza and Virgilio C. Manguera
for petitioner.
     Benjamin C. Santos & Ofelia Calcetas-Santos
Law Offices for private respondent.
          Amador C. Casino collaborating counsel for
private respondent.

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 Assis-
477

VOL. 295, SEPTEMBER 16, 1998 477

Fabian vs. Desierto

tant 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

478

478 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

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 of1 Republic Act No. 6770 (Ombudsman Act of
1989) 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 2
of
Procedure of the Office of the Ombudsman), 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 un-

_______________

1 Effective November 17, 1989.

2 Effective May 1, 1990.

479

VOL. 295, SEPTEMBER 16, 1998 479

Fabian vs. Desierto

der 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.—x x x 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
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
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. x x x.
xxx
Sec. 27. Effectivity and Finality of Decisions.—All
provisionary 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:

480

480 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

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-à-vis Section
7, Rule III of Administrative Order No. 07. As
correctly pointed out by public respondent, Ocampo
IV

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VOL. 295, SEPTEMBER 16, 1998 481

Fabian vs. Desierto

3
vs. Ombudsman, et al. 4
and Young vs. Office of the
Ombudsman, et al. were original actions for
certiorari under Rule 5
65. Yabut vs. Office of the
Ombudsman, et al. was commenced by a petition for
review on certiorari under 6
Rule 45. Then came Cruz,
Jr. vs. People, et 7 al., Olivas vs. Office of the
Ombudsman,
8
et al., Olivarez vs. Sandiganbayan,
9
et
al., and Jao, et al. vs. Vasquez, which were for
certiorari, prohibition and/or mandamus
10
under Rule
65. Alba vs. Nitorreda, et al. 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 11
vs. Hon. Ombudsman
Aniano Desierto, et al. 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

_______________

3 G.R. Nos. 103446-47, August 30, 1993, 225 SCRA 725.

4 G.R. No. 110736, December 27, 1993, 228 SCRA 718.
5 G.R. No. 111304, June 17, 1994, 233 SCRA 310.
6 G.R. No. 107837, June 27, 1994, 233 SCRA 439.
7 G.R. No. 102420, December 20, 1995, 239 SCRA 283.
8 G.R. No. 118533, October 4, 1995, 248 SCRA 700.
9 G.R. No. 111223, October 6, 1995, 249 SCRA 35, jointly
deciding G.R. No. 104604.
10 G.R. No. 120223, March 13, 1996, 254 SCRA 753.
11 G.R. No. 127457, April 13, 1998.

482

482 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

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.

483

VOL. 295, SEPTEMBER 16, 1998 483

Fabian vs. Desierto

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 trans-gresses
the authority vested in a legislative body, it is the
duty of the courts to declare that the constitution,
and not the12
statute, governs in a case before them for
judgment.
Thus, while courts will not ordinarily pass upon
constitutional
13
questions which are not raised in the
pleadings, the rule has been recognized to admit of
certain exceptions. It does not preclude a court from
inquiring into its own jurisdiction or compel it to
enter a judgment that it lacks jurisdiction to enter. If
a statute on which a 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 14
inquire into the
constitutionality of the statute.
Constitutional questions, not raised in the regular
and orderly procedure in the trial are ordinarily
rejected unless the jurisdiction of the court below or
that of the appellate court is involved in which case
it may 15be raised at any time or on the court’s own
motion. The Court ex mero motu may take
cognizance of lack of jurisdiction at 16
any point in the
case where that fact is developed. The court has a
clearly recognized right to17 determine its own
jurisdiction in any proceeding.
The foregoing authorities notwithstanding, the
Court believed that the parties hereto should be
further heard on this constitutional question.
Correspondingly, the following reso-

_______________

12 See 16 Am Jur 2d, Constitutional Law, §§ 155-156, pp. 531-

537.
13 Op. cit., § 174, p. 184.
14 Mendoza vs. Small Claims Court of Los Angeles J.D., 321 P.
2d 9.
15 State ex rel. Burg vs. City of Albuquerque, et al., 249 P. 242.
 16 State vs. Huber, 40 S.E. 2d 11.
17 In re Thomas, 117 N.E. 2d 740.

484

484 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

lution 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.

485

VOL. 295, SEPTEMBER 16, 1998 485

Fabian vs. Desierto

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
18
and have to be resolved by
the ap-pellate court. 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

_______________

18 See Reyes, et al. vs. Court of Appeals, et al., G.R. No. 110207,
July 11, 1996, 258 SCRA 651, and the cases and instances therein
enumerated.

486
486 SUPREME COURT REPORTS ANNOTATED
Fabian vs. Desierto

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 private19
respondent, the Revised Rules of
Civil Procedure 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:

SECTION 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. (Italics 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

_______________

19 Effective July 1, 1997.

487

VOL. 295, SEPTEMBER 16, 1998 487

Fabian vs. Desierto

20
quasi-judicial agencies 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 rule21
of appellate procedure
for quasi-judicial agencies.
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.

_______________

20 At present, the sole exception which still subsists is a

judgment or final order issued under the Labor Code of the
Philippines (Sec. 2, Rule 43), presently under reexamination.
21 Rule 43 was substantially taken from and reproduces the
appellate procedure provided in Circular No. 1-91 of the Supreme
Court dated February 27, 1991 and its subsequent Revised
Administrative Circular No. 1-95 which took effect on June 1,
1995.
** Petitioner suggests as alternative procedures, the application
of either Rule 65 or Rule 43 (Rollo, 433).

488

488 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

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
22
necessary for
the resolution of the present case.
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

_______________

22 Board of Optometry, etc., et al., vs. Colet, G.R. No. 122241,

July 30, 1996, 260 SCRA 88, and cases therein cited; Philippine
Constitution Association, et al. vs. Enriquez, etc., et al., G.R. No.
113105, August 19, 1994, 235 SCRA 506, and companion cases.

489
 VOL. 295, SEPTEMBER 16, 1998 489
Fabian vs. Desierto

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.

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 23
Ceramics, Inc. vs. The
Court of Appeals, et al. 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 24jurisdiction would unnecessarily burden
the Court.
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 an-

_______________

23 G.R. No. 110571, October 7, 1994, 237 SCRA 519.

24 See Records of the 1986 Constitutional Commission, Vol. II,
pp. 130-132.

490

490 SUPREME COURT REPORTS ANNOTATED

Fabian vs. Desierto

ticipation, 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 approved25
on second reading by the House of Representatives.
The Senate was informed of the approval
26
of the final
version of the Act on October 2, 1989 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 coauthor 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
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

_______________

25 Citing the Journal and Record of the House of Representatives,

Third Regular Session, 1989-90, Vol. II, p. 512.
26 Citing the Journal of the Senate, Third Regular Session, 1989-90,
Vol. I, pp. 618-619.

491

VOL. 295, SEPTEMBER 16, 1998 491

Fabian vs. Desierto

Supreme Court regarding the matter. He agreed that the

provision will expand the Supreme Court’s jurisdiction by
allowing appeals through petitions for
27
review, adding that
they should be appeals on certiorari.

There is no showing that even up to its enactment,

Republic Act No. 6770 was ever 28
referred to this
Court for its advice and consent.
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 pro-

_______________

27 Journal of the Senate, Second Regular Session, 1988-89, Vol.

I, p. 77, August 3, 1988.
28 Ibid., id., id., pp. 111-112, August 9, 1988.

492

492 SUPREME COURT REPORTS ANNOTATED

 Fabian vs. Desierto

29
cedural in one context and substantive in another.
It is admitted that what is procedural and what is
substantive30
is frequently a question of great
difficulty. 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 31
and redress
for a disregard or infraction of them. If the rule
takes away a vested right, it is not procedural. If the
rule creates a right such as the right to appeal, it
may be classified as a substantive matter; but if it
operates as a means of implementing an existing 32
right then the rule deals merely with procedure.
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
33
jurisdiction thereover, relates to procedure
only. 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,

_______________
 29 8 Ninth Decennial Digest 155.
30 People ex rel. Mijares, et al. vs. Kniss, et al., 357 P. 2d 352.
31 32 Am. Jur. 2d, Federal Practice and Procedure, § 505, p.
936.
32 People vs. Smith, 205 P. 2d 444.
33 21 CJS, Courts, § 502, p. 769.

493

VOL. 295, SEPTEMBER 16, 1998 493

Fabian vs. Desierto

hence he can have none34

in rules of procedure which
relate to the remedy.
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 35still a
competent tribunal to administer that remedy.
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
36
pending
at the time the statute went into effect 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 hac 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.

_______________

34 Elm Park Iowa, Inc. vs. Denniston, et al., 280 NW 2d 262.

35 Id., id.
36 21 CJS, Courts, § 502, pp. 769-770, 5 NR 2d 1242.

494

494 SUPREME COURT REPORTS ANNOTATED

St. Martin Funeral Home vs. NLRC

SO ORDERED.

          Narvasa (C.J.), Davide, Jr., Romero,

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Martinez, Quisumbing and Purisima,
JJ., concur.

Acts providing for appeals from administrative

cases from the Ombudsman to the Supreme Court
declared invalid and of no force and effect.

Note.—The Supreme Court has the power to

regulate, by virtue of its constitutional rule-making
powers, procedural aspects such as the court and the
manner an appeal can be brought. (First Lepanto
 Ceramics, Inc. vs. Court of Appeals, 231 SCRA 30
[1994])

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