1

[G.R. No. 99031. October 15, 1991.] (60) days under the Local Government Code. A preventive
suspension may be imposed after the issues have been joined
RODOLFO D. LLAMAS, Petitioner, v. EXECUTIVE SECRETARY and before the termination of the case, when there is
OSCAR ORBOS and MARIANO UN OCAMPO reasonable ground to believe that respondent had committed
III, Respondents. the act complained of and the evidence of culpability is strong,
when the gravity of the offense warrants such preventive
Mauricio Law Office for Petitioner. suspension; or when the continuance in office of the
respondent could influence the witnesses or pose a threat to
Ongkiko, Bucoy, Dizon & Associates for Private the safety and integrity of the records and other evidence. In
Respondent. contrast, the administrative sanction of suspension imposed
after the case has been heard is subject to the limitation that it
must not exceed the unexpired term of the respondent, nor bar
SYLLABUS the respondent from an elective public office for as long as he
meets the qualifications required by law. Considering that
private respondent’s suspension was not a preventive one but
a punitive sanction, the limitation of sixty (60) days does not
1. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE (BP
apply.
337); GRANTS THE PRESIDENT THE POWER OF GENERAL
SUPERVISION ONLY OVER LOCAL GOVERNMENTS. — Under
4. CONSTITUTIONAL LAW; GRANT OF POWER TO THE
the Local Government Code (BP 337), — the law in force at the
PRESIDENT TO ACCORD EXECUTIVE CLEMENCY; DOES NOT
time material to this case, the authority of the President over
EXTEND TO ADMINISTRATIVE CASES; RATIONALE. — It is my
local governments is one of general supervision only, to ensure
opinion that the constitutional grant of power to the President
that local affairs are administered according to law. General
to accord executive clemency, does not extend to
supervision over local governments includes the authority to
administrative sanctions imposed, in an administrative
order an investigation of the conduct of local officials whenever
proceeding. Sec. 19, Art. VII of the 1987 Constitution clearly
necessary. In taking disciplinary action against local elective
provides that — "Section 19. "Except in cases of impeachment,
officials, the President has no inherent power to suspend or
or as otherwise provided in this Constitution, the President may
remove them unless authorized by law and on grounds set
grant reprieves, commutations, and pardons, and remit fines
forth by the latter. Section 60 of the Local Government Code
and forfeitures, after conviction by final judgment . . . The
enumerates the acts for which an elective local official may be
philosophy behind the grant of power to the President to grant
suspended or removed.
executive clemency is founded on the recognition that human
institutions are imperfect and that there are infirmities,
2. ID.; ID.; DOES NOT EXPRESSLY VEST UPON THE PRESIDENT
deficiencies or flaws in the administration of justice. The power
THE POWER TO COMMUTE OR LIFT ADMINISTRATIVE
exists as an instrument or means for correcting these infirmities
SANCTIONS IMPOSED UPON LOCAL OFFICIALS. — The
and also for mitigating whatever harshness might be generated
Secretary of Interior and Local Government is given the
by a too strict an application of the law. This principle applies
authority to try complaints filed against any elective city or
to all criminal offenses committed against the state
provincial official. The decision of removal or suspension by the
Secretary of Interior and Local Government is appealable to the 5. CRIMINAL LAW; EXECUTION OF SENTENCE; PARDON,
Office of the President. The appellate jurisdiction of the AMNESTY AND COMMUTATION, DEFINED. — Pardon is an act
President to review, reverse or modify the decision of the of grace proceeding from the power entrusted with the
Secretary of Interior and Local Government does not carry with execution of the laws, which exempts the individual on whom it
it the power to grant executive clemency. Neither does the is bestowed from the punishment the law inflicts for a crime he
Local Government Code expressly vest upon the President the has committed. It is a voluntary act of the sovereign, granting
power to commute or lift the administrative sanctions imposed outright remission of guilt and declaring of record that a
upon erring, local elective officials after the decision has particular individual is to be relieved of the legal consequences
become final. of a particular crime. Amnesty commonly denotes a general
pardon to rebels for their treason or other high political
3. ID.; ID.; ADMINISTRATIVE SANCTION IMPOSED WAS offenses, or the forgiveness which one sovereign grants to the
PUNITIVE SUSPENSION NOT A PREVENTIVE ONE. — The subjects of another, who have offended by some breach the
suspension meted out to respondent governor is entirely law of nations. A commutation of sentence is the reduction of
distinct and separate from a preventive suspension imposed on penalty imposed, while reprieve is defined as the temporary
local elective officials prior to the final determination of the suspension of the execution of a sentence, especially of a
complaint filed against them, and which is limited to only sixty sentence of death. The object of commutation of sentence is
2

the rehabilitation of the criminal offender. The law of respite or

reprieve appears to apply only to capital sentences.

6. CONSTITUTIONAL LAW; POWER OF THE PRESIDENT TO The case before Us calls for a determination of whether or not
GRANT EXECUTIVE CLEMENCY; INTENTION OF FRAMERS FOR the President of the Philippines has the power to grant
THE GRANT OF SUCH POWER. — From the definitions of the executive clemency in administrative cases. In connection
different forms by which the President may exercise the power therewith, two important questions are also put in issue,
to grant executive clemency, it is plainly evident that the namely, whether or not the grant of executive clemency and
intention of the Constitution is to empower and enable the the reason therefor, are political questions beyond judicial
President to afford relief from enforcement of the criminal law review, and whether or not the questioned act was
which imposes a penalty and which appears unduly harsh. characterized by grave abuse of discretion amounting to lack
However, the President’s pardoning power cannot be used to of jurisdiction.
release or destroy the civil rights or remedies of private
individuals, or to relieve against private obligations, civil Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of
penalties and forfeitures, or an order or judgment in a civil the Province of Tarlac and, on March 1, 1991 he assumed, by
action or proceeding, or an administrative proceeding. virtue of a decision of the Office of the President, the
governorship (p. 1, Petition). Private respondent Mariano Un
7. ID.; ID.; MAY BE EXERCISED IN ADMINISTRATIVE CASES IF Ocampo III is the incumbent Governor of the Province of
EXPRESSLY PROVIDED FOR BY LAW. — In order that the Tarlac and was suspended from office for a period of 90 days.
President may be able to exercise the power to commute or Public respondent Oscar Orbos was the Executive Secretary at
remove administrative penalties or disabilities in an the time of the filing of this petition and is being impleaded
administrative proceeding for violation of the Local herein in that official capacity for having issued, by authority of
Government Code, such power must be expressly provided for the President, the assailed Resolution granting executive
by law. It may not just be inferred from the President’s clemency to respondent governor.
authority to exercise general supervision over local
governments nor from the President’s power of control over Sometime in 1989, Petitioner, together with Tarlac Board
the acts of the Secretary of Interior and Local Government. Members Marcelino Aganon, Jr. and Arnaldo P. Dizon, filed on
June 13, 1989 a verified complaint dated June 7, 1989 against
8. ID.; ID.; NOT APPLICABLE OR EVEN RELEVANT IN CASE AT respondent governor before the then Department of Local
BAR; REASONS THEREFOR. — The administrative sanction of Government (DLG, for short), charging him with alleged
suspension imposed upon private respondent does not affect violation of Sections 203(2) (f), and 203(2) (p), and 208(e),
the criminal complaint also filed against him before the Office 208(f), and 208(w), of Batas Pambansa (B.P.) Blg. 337, otherwise
of the Ombudsman for violation of the Anti-Graft Law (Rep. Act known as the Local Government Code, and other appropriate
3019). The administrative finding of the Secretary of Interior laws, among them, the Anti-Graft and Corrupt Practices Act.
and Local Government, as affirmed by the Office of the Prior to that, petitioner filed with the Office of the
President, that private respondent had committed neglect of Ombudsman a verified complaint dated November 10, 1988
duty and/or abuse of authority while in office, was not by virtue against respondent governor for the latter’s alleged violation of
of a criminal proceeding. Thus, it cannot be said that there was Section 3-G of Republic Act (R.A.) No. 3019, otherwise known
a criminal conviction of the private respondent by final as the Anti-Graft and Corrupt Practices Act.
judgment. Nor can it be said that the disciplinary action
suspending private respondent is an execution and/or The complaint before the DLG, docketed as Administrative
enforcement of the criminal laws of the land. Therefore, the Case 10459, was subsequently tried, where both petitioner and
President’s power to grant executive clemency is not applicable respondent governor presented their respective evidence.
or even relevant in the case at bar.
Petitioner maintains that sometime in August, 1988,
respondent governor, in his official capacity as Provincial
Governor of Tarlac, entered into and executed a Loan
Agreement with the Lingkod Tarlac Foundation, Inc., a
DECISION
non-stock and non-profit organization headed by the
governor himself as chairman and controlled by his
brother-in-law as executive director, trustee, and secretary;
that the said Loan Agreement was never authorized and
PARAS, J.: approved by the Provincial Board, in direct contravention
of the provisions of the Local Government Code; that the
3

said Agreement is wholly one-sided in favor of the Foundation Subsequently, and pursuant to Sec. 66, Chapter 4 of BP. Blg.
and grossly inimical to the interest of the Provincial 337, to the effect that the decision of the Office of the
Government (because it did not provide for interest or for any President in administrative suspension of local officials shall be
type of security and it did not provide for surely ship and immediately executory without prejudice to appeal to
comptrollership or audit to control the safe disbursement of appropriate courts, Petitioner, on March 1, 1991, took his oath
said loans); that a total amount of P20,000,000.00 was of office as acting governor. Under the administrative
disbursed to the aforesaid Foundation; that the transactions suspension order, petitioner had up to May 31, 1991 as
constitute a fraudulent scheme to defraud the Provincial acting governor. On the same date (March 1, 1991),
Government; and that the said Agreement is wholly respondent governor moved for a reconsideration of the
unconstitutional, illegal, and immoral. (Annex "A", Petition) Executive Secretary’s Resolution, to which petitioner filed an
opposition. From the allegations of the petitioner in his
On the other hand, it is the contention of respondent governor petition, respondent governor accepted his suspension and
that "the funds were intended to generate livelihood projects turned over his office to petitioner.
among the residents of Tarlac and the use of the Lingkod
Tarlac Foundation, Inc. was authorized by law and considered To the surprise of petitioner, however, respondent governor on
the best alternative as a matter of judgment." (pp. 12-13, March 19, 1991, issued an "administrative order" dated March
Appeal Memorandum); that he resigned from the said 8, 1991, in which the latter signified his intention to "continue,
Foundation in order to forestall any suspicion that he would as I am bound to exercise my functions as governor and shall
influence it; that it is not true that the Loan Agreement did not hold office at my residence," in the belief that "the pendency of
provide for continuing audit by the Provincial Government my Motion for Reconsideration precludes the coming into
because the Memorandum of Agreement provides otherwise; finality as executory the DG decision." (Annex "E", Petition; p.
and that the Agreement is not manifestly and grossly 10, Comment). And, as categorically stated in the petition, the
disadvantageous to the Provincial Government and respondent reassumption ceremony by respondent governor was held on
governor did not and would not profit thereby because it May 21, 1991 (p. 8, Petition).
provided sufficient safeguards for repayment. (Annex "A",
Petition) Without ruling on respondent governor’s Motion for
Reconsideration, public respondent issued a Resolution dated
After trial, the Secretary of the then Department of Local May 15, 1991, in O.P. Case No. 4480, which reads:
Government rendered a decision dated September 21, 1990, "This refers to the petition of Gov. Mariano Un Ocampo III of
the dispositive portion of which reads: Tarlac for executive clemency, interposed in connection with
the decision of the Secretary of then Department of Local
"WHEREFORE, Governor Mariano Un Ocampo III is, as he is, Government (DLG) dated 21 September 1990, as affirmed in a
hereby found guilty of having violated Section 3(g) of Republic Resolution of this Office dated 26 February 1991, suspending
Act No. 3019, otherwise known as the Anti-Graft and Corrupt petitioner from office for a period of ninety (90) days upon the
Practices Act, which act amounts to serious neglect of duty finality of said decision.
and/or abuse of authority, for which the penalty of
suspension from office for a period of ninety (90) days, As will be recalled, the DLG Secretary imposed the penalty of
effective upon the finality of this Decision, is hereby imposed suspension upon his finding that petitioner was guilty of
upon him." (p. 3, Petition) serious neglect of duty and/or abuse of authority for entering
into a loan contract — with the Lingkod Tarlac Foundation, Inc.
Parenthetically, be it noted that the Resolution imposed not a (LTFI) — grossly/manifestly disadvantageous to Tarlac Province.
preventive suspension but a penalty of suspension. In his letter-petition of 10 May 1991, thereby pleading for a
thirty (30)-day reduction of his suspension, petitioner invited
Respondent governor moved for a reconsideration of the attention to the DLG Secretary’s decision clearing him of
above quoted decision but the same was denied on October having personally benefitted from the questioned
19, 1990. Aggrieved, he appealed the DG decision dated transaction. In the same letter, petitioner manifests serving
September 21, 1990 and the order of denial dated October 19, more than sixty (60) days of the ninety-day suspension.
1990 to the Office of the President (OP. Case No. 4480). Previously, petitioner submitted documents and letters
from his constituents tending to show the relative success
On February 26, 1991, herein public respondent Executive of his livelihood loan program pursued under the aegis of
Secretary issued a Resolution dismissing respondent governor’s the LTFI and/or the Foundation’s credible loan repayment
appeal and affirming the September 21, 1990 DG decision. record. To cite some:
4

1. Certification of the Chairman, Tarlac Integrated Livelihood that his rights to due process were violated because the
Cooperative, Inc., attesting to the full payment of its loan grant of executive clemency was so sudden that he was not
(P15.05 M) plus interest with LTFI; even notified thereof; and that despite a finding by public
respondent of impropriety in the loan transaction entered into
2. Certification of the Manager, Rural Bank of Gerona (Tarlac), by respondent governor, the former failed to justify the
Inc., attesting to the gradual liquidation of the loan granted to reduction of the penalty of suspension on the latter. Petitioner
family-borrowers out of funds provided by LTFI; further alleges that the executive clemency granted by
public respondent was "the product of a hocus-pocus
3. Letter of Jover’s Phil., expressing gratitude for the loan strategy" (p. 1, Manifestation with Motion, etc.) because there
assistance extended for its export activities by LTFI; was allegedly no real petition for the grant of executive
clemency filed by respondent governor.
4. Letter of the Tarlac Provincial Agricultural Officer informing
that the proceeds of the loan from LTFI have been utilized in
Batas Pambansa Blg. 337 provides:
hybrid corn production; and

"Sec. 63. Preventive Suspension.

5. Letter of the President of the Federation of Tobacco Leaf
Producers of Tarlac, Inc., informing of the payment of 76% of
"(1) Preventive suspension may be imposed by the Minister of
the amount (P203,966.00) loaned to the Federation for tobacco
Local Government if the respondent is a provincial or city
production.
official,
Petitioner’s act, vis-a-vis the loan to LTFI, may have been
"(2) Preventive suspension may be imposed at any time after
prompted by an over eagerness to accelerate the delivery of
the issues are joined, when there is reasonable ground to
livelihood services to his provincemates. As the truism goes,
believe that the respondent has committed the act or acts
however, the end does not always justify the means. Be that as
complained of, when the evidence of culpability is strong, when
it may, but without belaboring the impropriety of the loan
the gravity of the offense so warrants, or when the continuance
agreement aforementioned, some measure of leniency may be
in office of the respondent could influence the witnesses or
accorded petitioner as the purpose of his suspension may have
pose a threat to the safety and integrity of the records and
made its mark.
other evidence. In all cases, preventive suspension shall not
extend beyond sixty days after the start of said suspension.
WHEREFORE, Governor Mariano Un Ocampo III is hereby
granted executive clemency in the sense that his ninety-
"(3) At the expiration of sixty days, the suspended official shall
day suspension is hereby reduced to the period already
be deemed reinstated in office without prejudice to the
served.
continuation of the proceedings against him until its
termination. . . ." (Emphasis supplied)
SO ORDERED."

It is admitted by petitioner that since March 1, 1991, he has

(Annex "F", Petition; pp. 25-26, Rollo)
assumed the governorship. A portion of the petition is
hereunder quoted as follows:
By virtue of the aforequoted Resolution, respondent governor
reassumed the governorship of the province, allegedly without
"7. [On February 28, 1991], and in accordance with the
any notification made to the petitioner.
provisions of the Local Government Code (Sec. 66, Chapter 4,
Batas Pambansa Blg. 337), to the effect that the decision of the
Petitioner posits that the issuance by public respondent of the
Office of the President in an administrative suspension of local
May 15, 1991 Resolution was "whimsical, capricious and
officials shall be immediately executory without prejudice to
despotic, and constituted grave abuse of discretion amounting
appeal to appropriate courts, Petitioner Llamas took his oath of
to lack of jurisdiction," (p. 6, petition) basically on the ground
office as acting governor. Under the administrative suspension
that executive clemency could be granted by the President
order, Llamas had up to May 31, [sic 29] 1991 as acting
only in criminal cases as there is nothing in the statute
governor;
books or even in the Constitution which allows the grant
thereof in administrative cases. Petitioner also contends that
"8. A copy of this oath of office is attached and made a part
since respondent governor refused to recognize his suspension
hereof as Annex B;
(having reassumed the governorship in gross defiance of the
suspension order), executive clemency cannot apply to him;
"9. Significantly, this oath of office was sworn to by Petitioner
5

Llamas before Secretary Santos of the newly created

Department of Interior and Local Government, as shown by the (pp. 2-4 & 7, Petition; pp. 3-5 & 8, Rollo)
lower portion of Annex B, and by a picture of the oathtaking
itself, attached and made a part hereof as Annex B-1; It is prayed in the instant petition dated May 21, 1991 that:

"10. Subsequently, Petitioner Llamas and Respondent Ocampo "b. In the meantime that this action is pending, and
met, where Ocampo was shown Llamas’ oath of office. During immediately upon the filing hereof, a temporary restraining
this meeting, held in the presence of all department heads at order be issued stopping the Respondents from enforcing, in
the provincial capitol and in the presence of various local any manner, the aforesaid contested resolution, and
government officials and representatives of the media, Ocampo Respondent Ocampo, from continuing with his reassumption of
agreed to turn over the reigns of the provincial government to the governorship. IN THE ALTERNATIVE, that a cease and desist
Petitioner; order be issued against Respondent Ocampo stopping him
from continuing with his reassumption of the governorship."
"11. In fact, Ocampo had asked the department heads and all
other officials of the provincial government of Tarlac to extend Let us first deal with the issue on jurisdiction. Respondent
their cooperation to Llamas, during the ninety days that the governor avers that since under the Constitution full
latter would assume the governorship; discretionary authority is granted to the President on the
exercise of executive clemency, the same constitutes a
"12. And, as if this was not enough, Ocampo even made political question which is beyond judicial review.
announcements in the media that he was allowing Petitioner
Llamas to perform his functions as acting governor at the Such a rule does not hold true in the case at bar. While it is true
Office of the Governor at the Capitol where he (Ocampo) used that courts cannot inquire into the manner in which the
to hold office (true enough, Ocampo has subsequently allowed President’s discretionary powers are exercised or into the
Llamas to hold office at the Office of the Governor, with wisdom for its exercise, it is also a settled rule that when the
Ocampo even escorting the acting governor therein last March issue involved concerns the validity of such discretionary
4, 1991); powers or whether said powers are within the limits prescribed
by the Constitution, We will not decline to exercise our power
"13. An account of Ocampo’s acceptance of his suspension and of judicial review. And such review does not constitute a
of his having turned over his office to Petitioner Llamas was modification or correction of the act of the President, nor does
even published, front page, in the March 5, 1991 issue of the it constitute interference with the functions of the President. In
Manila Bulletin. A copy of this news account is attached and this connection, the case of Tanada and Macapagal v. Cuenco,
made a part hereof as Annex C); Et Al., 103 Phil. 1051, is very enlightening, and We quote:

"14. Furthermore, various other officials, President Aquino and "Elsewhere in this treatise the well-known and well-established
Rep. Jose Cojuangco included, have extended recognition to principle is considered that it is not within the province of the
Petitioner Llamas’ assumption of the governorship. Llamas met courts to pass judgment upon the policy of legislative or
with President Aquino and Rep. Cojuangco and, during this executive action. Where, therefore, discretionary powers are
meeting, the two highest officials of the land have asked granted by the Constitution or by statute, the manner in which
Llamas to discharge his duties as acting governor; those powers are exercised is not subject to judicial review. The
courts, therefore, concern themselves only with the question as
"15. Secretary Santos, for that matter, has issued a designation to the existence and extent of these discretionary powers.
to Tarlac Senior Board Member Aganon, dated March 18, 1991,
appointing him as acting vice governor of the province, `in view "As distinguished from the judicial, the legislative and executive
of the suspension of Gov. Mariano Un Ocampo III, and the departments are spoken of as the political departments of
assumption of Vice Governor Rodolfo Llamas as acting government because in very many cases their action is
governor.’ A copy of this designation is attached and made a necessarily dictated by considerations of public or political
part hereof as Annex D;chanrobles.com:cralaw:red policy. These considerations of public or political policy of
course will not permit the legislature to violate constitutional
"x       x       x provisions, or the executive to exercise authority not granted
him by the Constitution or by statute, but, within these limits,
"30. . . . [T]he reassumption ceremony by [Governor] Ocampo they do permit the departments, separately or together, to
was held [in the] morning of May 21, 1991 . . ."cralaw virtua1aw recognize that a certain set of facts exists or that a given status
library exists, and these determinations, together with the
6

consequences that flow therefrom, may not be traversed in the

courts." (Willoughby on the Constitution of the United States, In the case at bar, the nature of the question for determination
Vol. 3, p. 1326). is not purely political. Here, we are called upon to decide
whether under the Constitution the President may grant
x              x              x
executive clemency in administrative cases. We must not
overlook the fact that the exercise by the President of her
power of executive clemency is subject to constitutional
"What is generally meant, when it is said that a question is limitations. We will merely check whether the particular
political, and not judicial, is that it is a matter which is to be measure in question has been in accordance with law. In so
exercised by the people in their primary political capacity, or doing, We will not concern ourselves with the reasons or
that it has been specifically delegated to some other motives which actuated the President as such is clearly beyond
department or particular officer of the government, with our power of judicial review.
discretionary power to act. See State v. Cunningham, 81 Wis.
497, 51 L.R.A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 Petitioner’s main argument is that the President may grant
L.R.A. 519; Green v. Mills, 69 Fed. 852, 16, C. C.A. 516, 30 L.R.A. executive clemency only in criminal cases, based on Article
90; Fletcher v. Tuttle, 151 Ill, 41, 37 N.E. 683, 25 L.R.A. 143, 42 VII, Section 19 of the Constitution which reads:
Am. St. Rep. 220. Thus the Legislature may in its discretion
determine whether it will pass a law or submit a proposed "Sec. 19. Except in cases of impeachment, or as otherwise
constitutional amendment to the people. The courts have no provided in this Constitution, the President may grant
judicial control over such matters, not merely because they reprieves, commutations, and pardons, and remit fines and
involve political question, but because they are matters which forfeitures, after conviction by final judgment.
the people have by the Constitution delegated to the
Legislature. The Governor may exercise the powers delegated "He shall also have the power to ,rant amnesty with the
to him, free from judicial control, so long as he observes the concurrence of a majority of all the members of the Congress."
laws and acts within the limits of the power conferred. His (Emphasis supplied)
discretionary acts cannot be controllable, not primarily because
they are of a political nature, but because the Constitution and According to the petitioner, the qualifying phrase "after
laws have placed the particular matter under his control. But conviction by final judgment" applies solely to criminal cases,
every officer under a constitutional government must act and no other law allows the grant of executive clemency or
according to law and subject him to the restraining and pardon to anyone who has been "convicted in an
controlling power of the people, acting through the courts, as administrative case," allegedly because the word "conviction"
well as through the executive or the Legislature. One refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner,
department is just as representative as the other, and the however, describes, in his very own words, respondent
judiciary is the department which is charged with the special governor as one who has been "convicted in an administrative
duty of determining the limitations which the law places upon case" (par. 22-a, petition). Thus, petitioner concedes that the
all official action. The recognition of this principle, unknown word "conviction" may be used either in a criminal case or in an
except in Great Britain and America, is necessary, to ‘the end administrative case. In Layno, Sr. v. Sandiganbayan, 136 SCRA
that the government may be one of laws and not men’ — 536, We ruled:
words which Webster said were the greatest contained in any
written constitutional document." chanrobles law library "For misfeasance or malfeasance . . . any [elective official] could
. . . be proceeded against administratively or . . . criminally. In
Besides, under the 1987 Constitution, the Supreme Court has either . be proceeded against administratively or . . . criminally.
been conferred an "expanded jurisdiction" to review the In either case, his culpability must be established . . ."cralaw
decisions of the other branches and agencies of the virtua1aw library
government to determine whether or not they have acted
within the bounds of the Constitution (See Art. VIII, Sec. 1, It is also important to note that respondent governor’s Motion
Constitution). "Yet, in the exercise thereof, the Court is to for Reconsideration filed on March 1, 1991 was withdrawn in
merely check whether or not the governmental branch or his petition for the grant of executive clemency, which fact
agency has gone beyond the constitutional limits of its rendered the Resolution dated February 26, 1991 affirming the
jurisdiction, not that it erred or has a different view" (Co v. DLG Decision (which found respondent governor guilty of
Electoral Tribunal of the House of Representatives & Ong, G.R. neglect of duty and/or abuse of authority and which
Nos. 92191-92 and Balanquit v. Electoral Tribunal of the House suspended him for ninety (90) days) final.
of Representatives & Ong, G.R. Nos. 92202-03, July 30, 1991).
7

Moreover, applying the doctrine "Ubi lex non distinguit, nec Commission preferred to trust in the discretion of Presidents
nos distinguire debemos," We cannot sustain petitioner’s and refrained from putting additional limitations on his
view. In other words, if the law does not distinguish, so We clemency powers. (II RECORD of the Constitutional
must not distinguish. The Constitution does not distinguish Commission, 392, 418-419, 524-525)chanrobles virtual
between which cases executive clemency may be exercised by lawlibrary
the President, with the sole exclusion of impeachment cases. By
the same token, if executive clemency may be exercised only in It is evident from the intent of the Constitutional Commission,
criminal cases, it would indeed be unnecessary to provide for therefore, that the President’s executive clemency powers
the exclusion of impeachment cases from the coverage of may not be limited in terms of coverage, except as already
Article VII, Section 19 of the Constitution. Following petitioner’s provided in the Constitution, that is, "no pardon, amnesty,
proposed interpretation, cases of impeachment are parole, or suspension of sentence for violation of election laws,
automatically excluded inasmuch as the same do not rules and regulations shall be granted by the President without
necessarily involve criminal offenses. the favorable recommendation of the COMELEC" (Article IX, C,
Section 5, Constitution). If those already adjudged guilty
In the same vein, We do not clearly see any valid and criminally in court may be pardoned, those adjudged guilty
convincing reason why the President cannot grant executive administratively should likewise be extended the same benefit.
clemency in administrative cases. It is Our considered view that
if the President can grant reprieves, commutations and In criminal cases, the quantum of evidence required to convict
pardons, and remit fines and forfeitures in criminal cases, with an individual is proof beyond reasonable doubt, but the
much more reason can she grant executive clemency in Constitution grants to the President the power to pardon the
administrative cases, which are clearly less serious than criminal act done by the proved criminal and in the process exempts
offenses. him from punishment therefor. On the other hand, in
administrative cases, the quantum of evidence required is
A number of laws impliedly or expressly recognize or support mere substantial evidence to support a decision, not to
the exercise of executive clemency in administrative cases. mention that as to the admissibility of evidence, administrative
bodies are not bound by the technical and rigid rules of
Under Sec. 43 of P.D. 807, "In meritorious cases, . . ., the admissibility prescribed in criminal cases. It will therefore be
President may commute or remove administrative unjust and unfair for those found guilty administratively of
penalties or disabilities issued upon officers and some charge if the same effects of pardon or executive
employees, in disciplinary cases, subject to such terms and clemency cannot be extended to them, even in the sense of
conditions as he may impose in the interest of the modifying a decision to subserve the interest of the public. (p.
service."cralaw virtua1aw library 34, Comment of public respondent)

During the deliberations of the Constitutional Commission, Of equal importance are the following provisions of Executive
a subject of deliberations was the proposed amendment to Art. Order No. 292, otherwise known as the Administrative Code of
VII, Sec. 19 which reads as follows: "However, the power to 1987, Section I, Book III of which provides:
grant executive clemency for violation of corrupt practices laws
may be limited by legislation." The Constitutional Commission, "SECTION 1. Power of Control. — The President shall have
however, voted to remove the amendment, since it was in control of all the executive departments, bureaus, and offices.
derogation of the powers of the President. As Mr. Natividad He shall ensure that the laws be faithfully executed."
stated:

"SECTION 38. Definition of Administrative Relationships. —

"I am also against this provision which will again chip more
Unless otherwise expressly stated in the Code or in other laws
powers from the President. In case of other criminals convicted
defining the special relationships of particular agencies,
in our society we extend probation to them while in this case,
administrative relationships shall be categorized and defined as
they have already been convicted and we offer mercy. The only
follows:
way we can offer mercy to them is through this executive
clemency extended to them by the President. If we still close
"(1) Supervision and Control. — Supervision and control shall
this avenue to them, they would be prejudiced even worse than
include authority to act directly whenever a specific function is
the murderers and the more vicious killers in our society. . . ."
entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review,
The proposal was primarily intended to prevent the President approve, reverse or modify acts and decisions of subordinate
from protecting his cronies. Manifestly, however, the officials or units; determine priorities in the execution of plans
8

and programs. Unless a different meaning is explicitly provided was premature and of no effect, We reiterate the doctrine that
in the specific law governing the relationship of particular upon acceptance of a presidential pardon, the grantee is
agencies the word "control" shall encompass supervision and deemed to have waived any appeal which he may have filed.
control as defined in this paragraph. . . ." (Emphasis supplied) Thus, it was held that:

The disciplinary authority to investigate, suspend, and remove "The commutation of the penalty is impressed with legal
provincial or city officials devolves at the first instance on the significance. That is an exercise of executive clemency
Department of Interior and Local Government (Secs. 61 and 65, embraced in the pardoning power. According to the
B.P. Blg. 337) and ultimately on the President (Sec. 66). Implicit Constitution: ‘The President may except in cases of
in this authority, however, is the "supervision and control" impeachment, grant reprieves, commutations and pardons,
power of the President to reduce, if circumstances so remit fines and forfeitures and, with the concurrence of the
warrant, the imposable penalty or to modify the Batasang Pambansa, grant amnesty.’ Once granted, it is
suspension or removal order, even "in the sense" of binding and effective. It serves to put an end to this appeal."
granting executive clemency. "Control," within the meaning (Mansanto v. Factoran, Jr., G.R. No. 78239, 170 SCRA 190, 196).
of the Constitution, is the power to substitute one’s own (See also Peo v. Crisola, 129 SCRA 13).
judgment for that of a subordinate. Under the doctrine of
Qualified Political Agency, the different executive Consequently, respondent governor’s acceptance of the
departments are mere adjuncts of the President. Their acts are presidential pardon "serves to put an end" to the motion for
presumptively the acts of the President until countermanded or reconsideration and renders the subject decision final, that of
reprobated by her (Villena v. Secretary, 67 Phil. 451; Free the period already served.
Telephone Workers Union v. Minister of Labor and
Employment, 108 SCRA 757 [1981]). Relying upon this view, it is Finally, petitioner’s argument that his constitutional rights to
urged by the Solicitor General that in the present case, the due process were violated is unmeritorious. Pardon has been
President, in the exercise of her power of supervision and defined as "the private, though official, act of the executive
control over all executive departments, may substitute her magistrate, delivered to the individual for whose benefit it is
decision for that of her subordinate, most especially where the intended and not communicated officially to the court . . ."
basis therefor would be to serve the greater public interest. It is (Bernas, The Constitution of the Philippines, Vol. II, First Ed.
clearly within the power of the President not only to grant 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]).
"executive clemency" but also to reverse or modify a ruling Thus, assuming that petitioner was not notified of the subject
issued by a subordinate against an erring public official, where pardon, it is only because said notice is unnecessary. Besides,
a reconsideration of the facts alleged would support the same. petitioner’s claim that respondent governor has not begun to
It is in this sense that the alleged executive clemency was serve sentence is belied by his very own factual allegations in
granted, after adducing reasons that subserve the public his petition, more particularly that he served as Acting
interest. — "the relative success of . . . livelihood loan program." Governor of Tarlac effective from the date he took his Oath of
(pp. 39-40, Comment of public respondent) Office on February 28, 1991 up to the time respondent
governor reassumed the governorship of Tarlac on May 21,
We wish to stress however that when we say the President 1991 (par. 30, petition). It is, therefore, error to say that private
can grant executive clemency in administrative cases, We respondent did not serve any portion of the 90-day suspension
refer only to all administrative cases in the Executive meted upon him.
branch, not in the Judicial or Legislative branches of the
government. We fail to see any grave abuse of discretion amounting to lack
or in excess of jurisdiction committed by public Respondent.
Noteworthy is the fact that on March 1, 1991, respondent
governor filed a motion for reconsideration and the same may WHEREFORE, judgment is hereby rendered: (1) DECLARING
be regarded as implicitly resolved, not only because of its that the President did not act arbitrarily or with abuse, much
withdrawal but also because of the executive clemency which less grave abuse of discretion in issuing the May 15, 1991
in effect reduced the penalty, conformably with the power of Resolution granting on the grounds mentioned therein,
"control." executive clemency to respondent governor and that,
accordingly, the same is not unconstitutional (without prejudice
On petitioner’s argument that private respondent’s motion for to criminal proceedings which have been filed or may be filed
reconsideration has abated the running of the reglementary against respondent governor), and (2) DENYING the rest of the
period for finality of judgment in O.P. Case No. 4480 (that is, prayers in the petition for being unmeritorious, moot and
there being no final judgment to speak of, the pardon granted academic. No costs.
9

the Ombudsman (Visayas) to conduct an inquiry into the

SO ORDERED. matter.1

Respondent Jesus Rodrigo T. Tagaan, special prosecution

officer of the Office of the Ombudsman, was assigned to
conduct the inquiry, docketed as INQ-VIS-99-0132. After his
investigation, he recommended that the said inquiry be
upgraded to criminal and administrative  cases against
petitioner and the other city officials involved. Respondent
Arturo C. Mojica, Deputy Ombudsman for the Visayas,
approved this recommendation.

In a memorandum dated June 22, 1999, respondent Allan

Francisco S. Garciano, the graft investigating officer to
whom the case was raffled for investigation, recommended
the preventive suspension of petitioner and the others. Two
days later, or on June 24, 1999, the affidavit-complaint against
petitioner was filed. The following day, on June 25, 1999, the
Office of the Ombudsman issued the questioned preventive
suspension order. On June 29, 1999, petitioner filed a motion
for reconsideration of said order, which motion was denied in
.R. No. 139043 September 10, 1999 an order dated July 5, 1999.

MAYOR ALVIN B. GARCIA, petitioner, Petitioner is now before this Court assailing the validity of
vs. the said order. He pleads for immediate relief through the
HON. ARTURO C. MOJICA, in his capacity as Deputy present petition for certiorari and prohibition with a prayer for
Ombudsman for the Visayas, VIRGINIA PALANCA- temporary restraining order and/or writ of preliminary
SANTIAGO, in his capacity as Director, Office of the injunction. Petitioner contends that:
Ombudsman (Visayas), ALAN FRANCISCO S. GARCIANO, in
I
his capacity as Graft Investigation Officer I, Office of the
Ombudsman (Visayas), and JESUS RODRIGO T. THE RESPONDENTS ACTED WITH GRAVE ABUSE OF
TAGAAN, respondents. DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ASSUMING JURISDICTION OVER OMB-VIS-
 
ADM-99-0452 AND ISSUING THE PREVENTIVE SUSPENSION
QUISUMBING, J.: ORDER, THE OFFICE OF THE OMBUDSMAN BEING WITHOUT
JURISDICTION OVER THE ADMINISTRATIVE CASE,
The present controversy involves the preventive suspension CONSIDERING THAT THE ALLEGED ACT CONSTITUTING THE
order issued June 25, 1999, by the Office of the Ombudsman CHARGE AGAINST PETITIONER HEREIN WAS COMMITTED
(Visayas) in OMB-VIS-ADM-99-0452, against petitioner Cebu DURING HIS PREVIOUS TERM, AND PETITIONER HAVING BEEN
City Mayor Alvin B. Garcia and eight other city officials. REELECTED TO THE SAME POSITION.
Under the said order, petitioner was placed under preventive
suspension without pay for the maximum period of six II
months and told to cease and desist from holding office
ASSUMING, ARGUENDO, THAT THE OFFICE OF THE
immediately.
OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-99-
The factual antecedents are as follows: 0452, THE PREVENTIVE SUSPENSION FOR SIX MONTHS
WAS WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
On May 7, 1998, petitioner, in his capacity as Cebu City LACK OR EXCESS OF JURISDICTION, AND IN GROSS
mayor, signed a contract with F.E. Zuellig for the supply of VIOLATION OF THE PROVISIONS OF SECTION 63 OF THE
asphalt to the city. The contract covers the period 1998-2001, LOCAL GOVERNMENT CODE WHICH MANDATES THAT THE
which period was to commence on September 1998 when the PREVENTIVE SUSPENSION OF LOCAL ELECTIVE OFFICIALS BE
first delivery should have been made by F.E. Zuellig. ORDERED ONLY AFTER THE ISSUES HAVE BEEN JOINED, AND
ONLY FOR A PERIOD NOT IN EXCESS OF SIXTY (60) DAYS.
Sometime in March 1999, news reports came out regarding the
alleged anomalous purchase of asphalt by Cebu City, through III
the contract signed by petitioner. This prompted the Office of
10

ASSUMING, ARGUENDO, THAT THE OFFICE OF THE on restraining orders, a status quo order does not require the
OMBUDSMAN HAS JURISDICTION OVER OMB-VIS-ADM-99- posting of a bond.3
0452, THE PREVENTIVE SUSPENSION WAS ISSUED WITH
On July 28, 1999, we heard the parties' oral arguments on the
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
following issues:
EXCESS OF JURISDICTION, AND IN GROSS VIOLATION OF
SECTION 26(2) OF THE OMBUDSMAN LAW. 1. What is the effect of the reelection of petitioner on the
investigation of acts done before his reelection? Did the
IV
Ombudsman for Visayas gravely abuse his discretion in
ASSUMING, ARGUENDO, THAT THE OFFICE OF THE conducting the investigation of petitioner and ordering his
OMBUDSMAN HAS JURISDICTION, THE RESPONDENTS preventive suspension?
COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO
2. Assuming that the Ombudsman properly took cognizance of
LACK OR EXCESS OF JURISDICTION IN CONCLUDING THAT
the case, what law should apply to the investigation being
THE EVIDENCE AGAINST PETITIONER WAS "STRONG", THE
conducted by him, the Local Government Code (R.A. 7160) or
LITTLE EVIDENCE ON RECORD CONSISTING SOLELY OF A
the Ombudsman Law (R.A. 6770)? Was the procedure in the law
HEARSAY AFFIDAVIT, AND INADMISSIBLE NEWSPAPER
properly observed?
REPORTS.
3. Assuming further that the Ombudsman has jurisdiction, is
On July 19, 1999, we directed the parties to maintain the status
the preventive suspension of petitioner based on "strong
quo  until further orders from this Court. It appears that on the
evidence" as required by law?
same day, petitioner issued a memorandum informing
employees and officials of the Office of the City Mayor that he We will now address these issues together, for the proper
was assuming the post of mayor effective immediately. On July resolution on the merits of the present controversy.
23, 1999, respondents filed a motion seeking clarification of
our status quo  order. Respondents claimed that the status Petitioner contends that, per our ruling in  Aguinaldo
quo referred to in the order should be that where petitioner is v. Santos, 4 his reelection has rendered the administrative
already and vice mayor Renato Osmeña is the acting city case filed against him moot and academic. This is because
mayor. reelection operates as a condonation by the electorate of
the misconduct committed by an elective official during his
Petitioner, in reply, argued that the status quo  refers to "the last previous term. Petitioner further cites the ruling of this Court
actual peaceable uncontested status which preceded the in Pascual v. Hon.  Provincial Board of Nueva Ecija,5 that
pending controversy." 2 Thus, status quo  could not be that
where petitioner is preventively suspended since the . . . When the people have elected a man to office, it must be
suspension did not precede the present controversy; it is the assumed that they did this with knowledge of his life and
controversy. character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the court,
We agree with petitioner in this regard. As explained by Justice by reason of such faults or misconduct to practically overrule
Florenz D. Regalado, an authority on remedial law: the will of the people.
There have been instances when the Supreme Court has issued Respondents, on the other hand, contend that while the
a status quo  order which, as the very term connotes, is contract in question was signed during the previous term of
merely intended to maintain the last, actual, peaceable and petitioner, it was to commence or be effective only on
uncontested state of things which preceded the September 1998 or during his current term. It is the
controversy. This was resorted to when the projected respondents' submission that petitioner "went beyond the
proceedings in the case made the conservation of the status protective confines"6 of jurisprudence when he "agreed to
quo  desirable or essential, but the affected party neither extend his act to his current term of
sought such relief or the allegations in his pleading did not office." 7 Aguinaldo cannot apply, according to respondents,
sufficiently make out a case for a temporary restraining order. because what is involved in this case is a misconduct
The status quo order was thus issued motu proprio on equitable committed during a previous term but to be effective during
considerations. Also, unlike a temporary restraining order or a the current term.
preliminary injunction, a status quo order is more in the nature
of a cease and desist order, since it neither directs the doing or Respondents maintain that,
undoing of acts as in the case of prohibitory or mandatory
. . . petitioner performed two acts with respect to the contract:
injunctive relief. The further distinction is provided by the
he provided for a suspensive period making the supply
present amendment in the sense that, unlike the amended rule
contract commence or be effective during his succeeding or
11

current term and during his current term of office he acceded R.A. 6770, the Ombudsman Law, further grants the Office of the
to the suspensive period making the contract effective during Ombudsman the statutory power to conduct administrative
his current term by causing the implementation of the investigations. Thus, Section 19 of said law provides:
contract. 8
Sec. 19. Administrative Complaints. — The Ombudsman shall
Hence, petitioner cannot take refuge in the fact of his act on all complaints relating, but not limited to acts or
reelection, according to respondents. omissions which:

Further, respondents point out that the contract in question (1) Are contrary to law or regulation;
was signed just four days before the date of the 1998 election
(2) Are unreasonable, unfair, oppressive or discriminatory;
and so it could not be presumed that when the people of Cebu
City voted petitioner to office, they did so with full knowledge (3) Are inconsistent with the general course of an agency's
of petitioner's character. functions, though in accordance with law;
On this point, petitioner responds that knowledge of an (4) Proceed from a mistake of law or an arbitrary ascertainment
official's previous acts is presumed and the court need not of facts;
inquire whether, in reelecting him, the electorate was actually
aware of his prior misdeeds. (5) Are in the exercise of discretionary powers but for an
improper purpose; or
Petitioner cites our ruling in Salalima v. Guingona,9 wherein we
absolved Albay governor Romeo R. Salalima of his (6) Are otherwise irregular, immoral or devoid of justification.
administrative liability as regards a retainer agreement he
Sec. 21 of R.A. 6770 names the officials subject to the
signed in favor of a law firm during his previous term, although
Ombudsman's disciplinary authority:
disbursements of public funds to cover payments under the
agreement were still being done during his subsequent term. Sec. 21. Officials Subject To Disciplinary Authority;  Exceptions. —
Petitioner argues that, following Salalima, the doctrine The Office of the Ombudsman shall have disciplinary authority
in Aguinaldo applies even where the effects of the act over all elective and appointive officials of the Government and
complained of are still evident during the subsequent term of its subdivisions, instrumentalities and agencies, including
the reelected official. The implementation of the contract is a Members of the Cabinet, local government, government-
mere incident of its execution. Besides, according to petitioner, owned or controlled corporations and their subsidiaries, except
the "sole act" for which he has been administratively charged is over officials who may be removed only by impeachment or
the signing of the contract with F.E. Zuellig. The charge, in his over Members of Congress, and the Judiciary. (Emphasis
view, excludes the contract's execution or implementation, or supplied.)
any act subsequent to the perfection of the contract.
Petitioner is an elective local official accused of grave
In Salalima, we recall that the Solicitor General maintained misconduct and dishonesty. 10 That the Office of the
that Aguinaldo did not apply to that case because the Ombudsman may conduct an administrative investigation into
administrative case against Governor Rodolfo Aguinaldo of the acts complained of, appears clear from the foregoing
Cagayan was already pending when he filed his certificate of provisions of R.A. 6770.
candidacy for his reelection bid. Nevertheless, in Salalima, the
Court applied the Aguinaldo doctrine, even if the However, the question of whether or not the Ombudsman
administrative case against Governor Salalima was filed may conduct an investigation over a particular act or
after his reelection. omission, is different from the question of whether or not
petitioner, after investigation, may be held administratively
Worth stressing, to resolve the present controversy, we must liable. This distinction ought here to be kept in mind, even as
recall that the authority of the Ombudsman to conduct we must also take note that the power to investigation is
administrative investigations is mandated by no less than distinct from the power to suspend preventively an erring
the Constitution. Under Article XI, Section 13[1], the public officer.
Ombudsman has the power to:
Likewise worthy of note, the power of the Office of the
investigate on its own, or on complaint by any person, any act Ombudsman to preventively suspend an official subject to its
or omission of any public official, employee, office or agency, administrative investigation is provided by specific provision of
when such act omission appears to be illegal, unjust, improper, law. Under Section 24 of R.A. 6770 —
or inefficient.
Sec. 24. Preventive Suspension. — The Ombudsman or his
Deputy may preventively suspend any officer or employee
12

under his authority pending an investigation, if in his judgment to the fault, negligence or petition of the respondent, in which
the evidence of guilt is strong, and (a) the charge against such case the period of such delay shall not be counted in
officer or employee involves dishonesty, oppression or grave computing the period of suspension herein provided.
misconduct or neglect in the performance of duty; (b) the (Emphasis supplied.)
charges would warrant removal from the service; or (c) the
The determination of whether or not the evidence of guilt is
respondent's continued stay in office may prejudice the case
strong as to warrant preventive suspension rests with the
filed against him.
Ombudsman. 14 The discretion as regards the period of such
The preventive suspension shall continue until the case is suspension also necessarily belongs to the Ombudsman,
terminated by the Office of the Ombudsman but not more than except that he cannot extend the period of suspension beyond
six months, without pay, except when the delay in the that provided by law. 15 But, in our view, both the strength of
disposition of the case by the Office of the Ombudsman is due the evidence to warrant said suspension and the propriety of
to the fault, negligence or petition of the respondent, in which the length or period of suspension imposed on petitioner are
case the period of such delay shall not be counted in properly raised in this petition for certiorari and prohibition.
computing the period of suspension herein provided. These equitable remedies under Rule 65 of the Rules of Court
(Emphasis supplied.) precisely exist to provide prompt relief where an "officer
exercising judicial or quasi-judicial functions has acted . . . with
We have previously interpreted the phrase "under his
grave abuse of discretion amounting to lack or excess of
authority" to mean that the Ombudsman can preventively
jurisdiction, and there is no appeal, or any plain, speedy, and
suspend all officials under investigation by his office, regardless
adequate remedy in the ordinary course of law." (See  Rule 65,
of the branch of government in which they are
Sec. 1).
employed,11 excepting of course those removable by
impeachment, members of Congress and the Judiciary. It is pertinent to note here that the inquiry that preceded the
filing of an administrative case against petitioner was
The power to preventively suspend is available not only to the
prompted by newspaper reports regarding the allegedly
Ombudsman but also to the Deputy Ombudsman. This is the
anomalous contract entered into by petitioner, on behalf of
clear import of Section 24 or R.A. 6770 abovecited.
Cebu City, with F.E. Zuellig. 16 In the memorandum to
There can be no question in this case as to the power and respondent Mojica, 17 respondent Garciano recommended that
authority of respondent Deputy Ombudsman to issue an order petitioner be preventively suspended, based on an initial
of preventive suspension against an official like the petitioner, investigation purportedly showing: (1) the contract for supply
to prevent that official from using his office to intimidate or of asphalt to Cebu City was designed to favor F.E. Zuellig, (2)
influence witnesses 12 or to tamper with records that might be the amount quoted in the contract was too expensive
vital to the prosecution of the case against him. 13 In our view, compared to the amount for which asphalt may be bought
the present controversy simply boils down to this pivotal from local suppliers such as Shell and Petron, particularly
question: Given the purpose of preventive suspension and the considering that the amount was fixed in dollars and was
circumstances of this case, did respondent Deputy payable in pesos, thus exposing the city government to the
Ombudsman commit a grave abuse of discretion when he set risks attendant to a fluctuating exchange rate, and (3) the
the period of preventive suspension at six months? interest of the city under the contract is not protected by
adequate security. These findings were based on the contract
Preventive suspension under Sec. 24, R.A. 6770, to repeat, may itself and on letters from Bitumex and Credit Lyonnais. There
be imposed when, among other factors, the evidence of guilt is were also letters from Shell and Petron that were replies to the
strong. The period for which an official may be preventively Office of the Ombudsman's (Visayas) inquiry on whether or not
suspended must not exceed six months. In this case, petitioner they could supply Cebu City with asphalt and on what terms.
was preventively suspended and ordered to cease and desist
from holding office for the entire period of six months, which is Given these findings, we cannot say now that there is no
the maximum provided by law. evidence sufficiently strong to justify the imposition of
preventive suspension against petitioner. But considering its
Sec. 24. Preventive Suspension. — purpose and the circumstances in the case brought before us,
it does appear to us that the imposition of the maximum
x x x           x x x          x x x
period of six months is unwarranted.
The preventive suspension shall continue until the case is
On behalf of respondents, the Solicitor General stated during
terminated by the Office of the Ombudsman but not more than
his oral argument at the hearing that the documents
six months, without pay, except when the delay in the
mentioned in respondents' comment (such as purchase orders,
disposition of the case by the Office of the Ombudsman is due
purchase requests, and disbursement vouchers), documents
13

that show petitioner's guilt, were obtained after petitioner had more than 90 days in any one year, regardless of the number of
been suspended. Even if an afterthought, he claimed administrative charges that may be filed against a local
they strengthen the evidence of respondents against petitioner. government official. We, in fact, had in mind the case of Mayor
If the purpose of the preventive suspension was to enable the Ganzon of Iloilo where the Secretary of Local Government sort
investigating authority to gather documents without of serialized the filing of charges against him so that he can be
intervention from petitioner, then, from respondents' continuously suspended when one case is filed right after the
submission, we can only conclude that this purpose was other, Mr. President.18
already achieved, during the nearly month-long suspension of
Respondents may be correct in pointing out the reason for the
petitioner from June 25 to July 19, 1999. Granting that now the
shorter period of preventive suspension imposable under the
evidence against petitioner is already strong, even without
Local Government Code. Political color could taint the exercise
conceding that initially it was weak, it is clear to us that the
of the power to suspend local officials by the mayor, governor,
maximum six-month period is excessive and definitely longer
or President's office. In contrast the Ombudsman, considering
than necessary for the Ombudsman to make its legitimate case
the constitutional origin of his Office, always ought to be
against petitioner. We must conclude that the period during
insulated from the vagaries of politics, as respondents would
which petitioner was already preventively suspended, has been
have us believe.
sufficient for the lawful purpose of preventing petitioner from
hiding and destroying needed documents, or harassing and In Hagad v. Gozo-Dagole, 19 on the matter of whether or not
preventing witnesses who wish to appear against him. the Ombudsman has been stripped of his power to investigate
local elective officials by virtue of the Local Government Code,
We reach the foregoing conclusion, however, without
we said:
necessarily subscribing to petitioner's claim that the Local
Government Code, which he averred should apply to this case Indeed, there is nothing in the Local Government Code to
of an elective local official, has been violated. True, under said indicate that it has repealed, whether expressly or impliedly, the
Code, preventive suspension may only be imposed after the pertinent provisions of the Ombudsman Act. The two statutes
issues are joined, and only for a maximum period of sixty days. on the specific matter in question are not so inconsistent, let
Here, petitioner was suspended without having had the chance alone irreconcilable, as to compel us to only uphold one and
to refute first the charges against him, and for the maximum strike down the other.20
period of six months provided by the Ombudsman Law. But as
respondents argue, administrative complaints commenced It was also argued in Hagad, that the six-month preventive
under the Ombudsman Law are distinct from those suspension under the Ombudsman Law is "much too
initiated under the Local Government Code. Respondents repugnant" to the 60-day period that may be imposed under
point out that the shorter period of suspension under the Local the Local Government Code. But per J. Vitug, "the two
Government Code is intended to limit the period of suspension provisions govern differently. 21
that may be imposed by a mayor, a governor, or the President,
However, petitioner now contends that Hagad did not settle
who may be motivated by partisan political considerations. In
the question of whether a local elective official may be
contrast the Ombudsman, who can impose a longer period of
preventively suspended even before the issues could be joined.
preventive suspension, is not likely to be similarly motivated
Indeed it did not, but we have held in other cases that there
because it is a constitutional body. The distinction is valid but
could be preventive suspension even before the charges
not decisive, in our view, of whether there has been grave
against the official are heard, or before the official is given an
abuse of discretion in a specific case of preventive suspension.
opportunity to prove his innocence.22 Preventive suspension is
Respondents base their argument on the deliberations of the merely a preliminary step in an administrative investigation and
Senate on Senate Bill No. 155, which became the Local is not in any way the final determination of the guilt of the
Government Code. Senator Aquilino Pimentel, Jr., commenting official concerned.
on the preservation in the proposed Code of the power of the
Petitioner also avers that the suspension order against him was
Office of the President to suspend local officials, said:
issued in violation of Section 26(2) of the Ombudsman Law,
Senator Pimentel. Now, as far as we are concerned, the Senate which provides:
Committee is ready to adopt a more stringent rule regarding
Sec. 26. Inquiries. — . . .
the power of removal and suspension by the Office of the
President over local government officials, Mr. President. We (2) The Office of the Ombudsman shall receive complaints from
would only wish to point out that in a subsequent section, we any source in whatever form concerning an official act or
have provided for the power of suspension of local omission. It shall act on the complaint immediately and if it
government officials to be limited only to 60 days and not finds the same entirely baseless, it shall dismiss the same and
14

inform the complainant of such dismissal citing the reasons However, in the present case, respondents point out that the
therefor. If it finds a reasonable ground to investigate further, it contract entered into by petitioner with F.E. Zuellig was signed
shall first furnish the respondent public officer or employee just four days before the date of the elections. It was not made
with a summary of the complaint and require him to submit a an issue during the election, and so the electorate could not be
written answer within seventy-two hours from receipt said to have voted for petitioner with knowledge of this
thereof. . . particular aspect of his life and character.

Petitioner argues that before an inquiry may be converted into For his part, petitioner that "the only conclusive
a full-blown administrative investigation, the official concerned determining factor" 25 as regards the people's thinking on
must be given 72 hours to answer the charges against him. In the matter is an election. On this point, we agree with
his case, petitioner says the inquiry was converted into an petitioner. That the people voted for an official with
administrative investigation without him being given the knowledge of his character is presumed, precisely to eliminate
required number of hours to answer. the need to determine, in factual terms, the extent of this
knowledge. Such an undertaking will obviously be impossible.
Indeed, it does not appear that petitioner was given the
Our rulings on the matter do not distinguish the precise timing
requisite 72 hours to submit a written answer to the complaint
or period when the misconduct was committed, reckoned from
against him. This, however, does not make invalid the
the date of the official's reelection, except that it must be prior
preventive suspension order issued against him. As we have
to said date.
earlier stated, a preventive suspension order may be issued
even before the charges against the official concerned is heard. As held in Salalima.

Moreover, respondents state that petitioner was given 10 days The rule adopted in Pascual, qualified in Aguinaldo insofar as
to submit his counter-affidavit to the complaint filed by criminal cases are concerned, is still a good law. Such a rule is
respondent Tagaan. We find this 10-day period is in keeping not only founded on the theory that an official's reelection
with Section 5(a) of the Rules of Procedure of the Office of the expresses the sovereign will of the electorate to forgive or
Ombudsman,23 which provides: condone any act or omission constituting a ground for
administrative discipline which was committed during his
Sec. 5. Administrative adjudication. How conducted. —
previous term. We may add that sound policy dictates it. To rule
(a) If the complaint is not dismissed for any of the causes otherwise would open the floodgates to exacerbating endless
enumerated in Section 20 of Republic Act No. 6770, the partisan contests between the reelected official and his political
respondent shall be furnished with copy of the affidavits and enemies, who may not stop hound the former during his new
other evidences submitted by the complainant, and shall be term with administrative cases for acts alleged to have been
ordered to file his counter-affidavits and other evidences in committed during his previous term. His second term may thus
support of his defense, within ten (10) days from receipt from, be devoted to defending himself in the said cases to the
together with proof of service of the same on the complainant detriment of public service. . . . Emphasis added.26
who may file reply affidavits within ten (10) days from receipt of
The above ruling in Salalima applies to this case. Petitioner
the counter-affidavits of the respondent.
cannot anymore be held administratively liable for an act
We now come to the concluding inquiry. Granting that the done during his previous term, that is, his signing of the
Office of the Ombudsman may investigate, for purposes contract with F.E. Zuellig.
provided for by law, the acts of petitioner committed prior to
The assailed retainer agreement in  Salalima was executed
his present term of office; and that it may preventively suspend
sometime in 1990. Governor Salalima was reelected in 1992
him for a reasonable period, can that office hold
and payments for the retainer continued to be made during his
him administratively liable for said acts?
succeeding term. This situation is no different from the one in
In a number of cases, we have repeatedly held that a the present case, wherein deliveries of the asphalt under the
reelected local official may not be held administratively contract with F.E. Zuellig and the payments therefor were
accountable for misconduct committed during his prior supposed to have commenced on September 1998, during
term of office. 24 The rationale for this holding is that when petitioner's second term.
the electorate put him back into office, it is presumed that
However, respondents argue that the contract, although signed
it did so with full knowledge of his life and character,
on May 7, 1998, during petitioner's prior term, is to be made
including his past misconduct. If, armed with such
effective only during his present term.
knowledge, it still reelects him, then such reelection is
considered a condonation of his past misdeeds. We fail to see any difference to justify a valid distinction in the
result. The agreement between petitioner (representing
15

Cebu City) and F.E. Zuellig was perfected on the date the
contract was signed, during petitioner's prior term. At that
moment, petitioner already acceded to the terms of the
contract, including stipulations now alleged to be
prejudicial to the city government. Thus, any culpability
petitioner may have in signing the contract already became
extent on the day the contract was signed. It hardly matters
that the deliveries under the contract are supposed to have
been made months later.

While petitioner can no longer be held administratively

liable for signing the contract with F.E. Zuellig, however,
this should not prejudice the filing of any case other than
administrative against petitioner. Our ruling, in this case,
may not be taken to mean the total exoneration of petitioner
for whatever wrongdoing, if any, might have been committed
in signing the subject contract. The ruling now is limited to
the question of whether or not he may be
held administratively liable therefor, and it is our
considered view that he may not.

WHEREFORE, the petition is hereby DENIED insofar as it seeks

to declare at respondents committed grave abuse of discretion
in conducting an inquiry on complaints against petitioner, and
ordering their investigation pursuant to respondents' mandate
under the Constitution and the Ombudsman Law. But the
petition is hereby GRANTED insofar as it seeks to declare that
respondents committed grave abuse of discretion concerning
the period of preventive suspension imposed on petitioner,
which is the maximum of six months, it appearing that 24 days
— the number of days from the date petitioner was suspended
on June 25, 1999, to the date of our status quo order on July
19, 1999 — were sufficient for the purpose. Accordingly,
petitioner's preventive suspension, embodied in the order of
respondent Deputy Ombudsman, dated June 25, 1999, should
now be, as it is hereby, LIFTED immediately.

SO ORDERED.
16

Councilor, Legislative Staff Assistant, and Messenger,

respectively, of the Sangguniang Bayan of Malabon. Maricar
and Marian are daughters of Edilberto.

Maricar was appointed as Legislative Staff Assistant on

February 16, 1995, while Marian was appointed as Messenger
on May 24, 1996. At the time of their public employment, they
were both enrolled as full-time regular college students –
Maricar, as a full-time student at the University of Santo Tomas
(UST) and Marian as a dentistry-proper student at the College
of Dentistry of Centro Escolar University. During the period
subject of this case, they were able to collect their respective
salaries by submitting Daily Time Records (DTR) indicating that
they reported for work every working day, from 8:00 a.m. to
5:00 p.m.

After due proceedings held in the Office of the Ombudsman,

Graft Investigation Officer (GIO) Moreno F. Generoso, in the
Decision4 dated November 9, 2001, found Maricar and Marian
administratively guilty of Dishonesty and Falsification of Official
Document and recommended the imposition of the penalty of
dismissal from the service. The charge against Edilberto was
dismissed, having become moot and academic in view of his
re-election on May 14, 2001 in accordance with the ruling
in Aguinaldo v. Santos5 that "a public official cannot be
removed for administrative misconduct committed during a
prior term, since his re-election to office operates as a
condonation of the officer’s previous misconduct to the extent
of cutting off the right to remove him therefor." Upon
recommendation of Deputy Special Prosecutor Robert E. Kallos,
Ombudsman Aniano A. Desierto affirmed the findings of GIO
Generoso but tempered the penalty to one (1) year suspension
from service without pay.
G.R. No. 168309             January 29, 2008
Aggrieved, Maricar and Marian went to the CA via a
OFFICE OF THE OMBUDSMAN, petitioner, petition6 for certiorari under Rule 65 of the Rules of Court.
vs.
In a Decision dated January 6, 2004, the CA granted the
MARIAN D. TORRES and MARICAR D. TORRES, respondents.
petition. While affirming the findings of fact of the Office of the
DECISION Ombudsman, the CA set aside the finding of administrative
guilt against Maricar and Marian ratiocinating in this wise:
NACHURA, J.:
It is undisputed that petitioners are confidential employees of
This is a petition1 for review on certiorari under Rule 45 of the their father. As such, the task they were required to perform, is
Rules of Court filed by petitioner Office of the Ombudsman upon the instance of their father, and the time they were
seeking the reversal of the Decision2 dated January 6, 2004 and required to report may be intermittent. To our mind, the false
the Resolution3 dated May 27, 2005 of the Court of Appeals entries they made in their daily time records on the specific
(CA) in CA-G.R. SP No. 69749. dates contained therein, had been made with no malice or
deliberate intent so as to constitute falsification. The entries
The case arose from an administrative complaint for
made may not be absolutely false, they may even be
Dishonesty, Grave Misconduct, and Falsification of Official
considered as having been made with a color of truth, not a
Document filed before the Office of the Ombudsman
downright and willful falsehood which taken singly constitutes
(docketed as OMB-ADM-0-00-0926) by
falsification of public documents. As Cuello Calon stated: "La
then Barangay Chairman Romancito L. Santos of Concepcion,
mera inexactud no es bastante para integrar este delito." In the
Malabon, against Edilberto Torres (Edilberto), Maricar D. Torres
present case, the daily time records have already served their
(Maricar), and Marian D. Torres (Marian), then Municipal
17

purpose. They have not caused any damage to the government to show their attendance in office to work and to be paid
or third person because under the facts obtaining, petitioners accordingly. Closely adhering to the policy of no work no pay, a
may be said to have rendered service in the interest of the daily time record is primarily, if not solely, intended to prevent
public, with proper permission from their superior. damage or loss to the government as would result in instances
where it pays an employee for no work done. The integrity of
It may be true that a daily time record is an official document. It
the daily time record as an official document, however, remains
is not falsified if it does not pervert its avowed purpose as
untarnished if the damage sought to be prevented has not
when it does not cause damage to the government. It may be
been produced. The obligation to make entries in the daily
different in the case of a public document with continuing
time records of employees in the government service is a
interest affecting the public welfare, which is naturally
matter of administrative procedural convenience in the
damaged if that document is falsified when the truth is
computation of salary for a given period, characteristically, not
necessary for the safeguard and protection of that general
an outright and strict measure of professional discipline,
interest. The keeping and submission of daily time records
efficiency, dedication, honesty and competence. The
within the context of petitioners’ employment, should be taken
insignificant transgression by petitioners, if ever it is one, would
only for the sake of administrative procedural convenience or
not tilt the scales of justice against them, for courts must
as a matter of practice, but not for reason of strict legal
always be, as they are, the repositories of fairness and justice. 7
obligation.
Petitioner moved to reconsider the reversal of its Decision by
Assuming that petitioners are under strict legal obligation to
the CA, but the motion was denied in the CA Resolution dated
keep and submit daily time records, still we are disposed to the
May 27, 2005. Hence, this petition based on the following
view that the alleged false entries do not constitute falsification
grounds:
for having been made with no malice or deliberate intent.
I
The following pronouncement in the case of Lecaroz vs.
Sandiganbayan may serve as a guidepost, to wit: "[I]f what is THE FILLING-UP OF ENTRIES IN THE OFFICIAL DAILY TIME
proven is mere judgmental error on the part of the person RECORDS (DTRs) IS NOT A MATTER OF ADMINISTRATIVE
committing the act, no malice or criminal intent can be PROCEDURAL CONVENIENCE, BUT RATHER REQUIRED BY
rightfully imputed to him. x x x. Ordinarily, evil intent must CIVIL SERVICE LAW TO ENSURE THAT THE PROPER
unite with an unlawful act for a crime to exist. Actus non facit LENGTH OF WORK-TIME IS OBSERVED BY PUBLIC
reum, nisi mens sit rea. There can be no crime when the OFFICIALS AND EMPLOYEES, INCLUDING CONFIDENTIAL
criminal mind is wanting. As a general rule, ignorance or EMPLOYEES LIKE HEREIN PRIVATE RESPONDENTS. THE
mistake as to particular facts, honest and real, will exempt the FALSIFICATION OF DTRs WOULD RENDER THE AUTHORS
doer from felonious responsibility. The exception of course is THEREOF ADMINISTRATIVELY LIABLE FOR DISHONESTY
neglect in the discharge of duty or indifference to AND GRAVE MISCONDUCT FOR THE DAMAGING FALSE
consequences, which is equivalent to criminal intent, for in this NARRATION AND THE COLLECTION OF FULL
instance, the element of malicious intent is supplied by the COMPENSATION FOR INEXISTENT WORK.
element of negligence and imprudence. In the instant case,
II
there are clear manifestations of good faith and lack of criminal
intent on the part of petitioners." THE ELEMENT OF DAMAGE TO THE GOVERNMENT IS NOT
A REQUISITE FOR ONE TO BE HELD ADMINISTRATIVELY
As a final note, there may be some suspicions as to the real
LIABLE FOR DISHONESTY AND MISCONDUCT. ASSUMING
intention of private complainant in instituting the action before
IT IS FOR ARGUMENT’S SAKE, DAMAGE WAS CAUSED THE
public respondent, caution should be taken to prevent the
GOVERNMENT WHEN PRIVATE RESPONDENTS FALSIFIED
development of circumstances that might inevitably impair the
THEIR DAILY TIME RECORDS IN ORDER TO COLLECT THEIR
image of the public office. Private complainant is a government
SALARIES.
official himself, as such he should avoid so far as reasonably
possible, a situation which would normally tend to arouse any III
reasonable suspicion that he is utilizing his official position for
personal gain or advantage to the prejudice of party litigants or THE ELEMENT OF INTENT OR MALICE APPLIES TO
the public in general. For "there may be occasion then where CRIMINAL PROSECUTION, NOT TO AN OFFENSE OF
the needs of the collectivity that is the government may collide DISHONESTY AND MISCONDUCT.8
with his private interest as an individual."
Petitioner’s first submission is that the filling-up of entries in
In closing, it must be borne in mind that the evident purpose of the official DTR is not a matter of administrative procedural
requiring government employees to keep a daily time record is convenience but is a requirement by Civil Service Law to ensure
18

that the proper length of work-time is observed by all public SEC. 7. In the exigency of the service, or when necessary by the
officials and employees, including confidential employees such nature of the work of a particular agency and upon
as respondents. It argues that DTRs, being representations of representations with the Commission by the department heads
the compensable working hours rendered by a public servant, concerned, requests for the rescheduling or shifting of work
ensure that the taxpaying public is not shortchanged. To schedule of a particular agency for a number of working days
bolster this position, petitioner cited Rule XVII on Government less than the required five days may be allowed provided that
Office Hours of the Omnibus Rules Implementing Book V of government officials and employees render a total of forty
Executive Order No. 292 and Other Pertinent Civil Service Laws, hours a week and provided further that the public is assured of
to wit: core working hours of eight in the morning to five in the
afternoon continuously for the duration of the entire
SECTION 1. It shall be the duty of each head of department or
workweek.
agency to require all officers and employees under him to
strictly observe the prescribed office hours. When the head of SEC. 8. Officers and employees who have incurred tardiness
office, in the exercise of discretion allows government officials and undertime regardless of minutes per day exceeding [at
and employees to leave the office during the office hours and least] ten times a month for two (2) consecutive months or for
not for official business, but to attend socials/events/functions 2 months in a semester shall be subject to disciplinary action. 9
and/or wakes/interments, the same shall be reflected in their
Petitioner posits that, by reason of the above provisions,
time cards and charged to their leave credits.
making false entries in the DTRs should not be treated in a
SEC. 2. Each head of department or agency shall require a daily cavalier fashion, but rather with a modicum of sacredness
time record of attendance of all the officers and employees because the DTR mirrors the fundamental maxim of
under him including those serving in the field or on the water, transparency, good governance, public accountability, and
to be kept in the proper form and, whenever possible, integrity in the public service pursuant to the constitutional
registered in the bundy clock. precept that "public office is a public trust." Consequently, the
officer or employee who falsifies time records should incur
Service "in the field" shall refer to service rendered outside the
administrative liability.
office proper and service "on the water" shall refer to service
rendered on board a vessel which is the usual place of work. On its second and third submissions, petitioner assailed the
position of the CA that respondents cannot be held guilty of
SEC. 3. Chiefs and Assistant Chiefs of agencies who are
falsification because they did not cause any damage to the
appointed by the President, officers who rank higher than these
government and there was no intent or malice on their part
chiefs and assistant chiefs in the three branches of government,
when they made the false entries in their respective DTRs
and other presidential appointees need not punch in the bundy
during the questioned period of service. According to
clock, but attendance and all absences of such officers must be
petitioner, respondents were not criminally prosecuted for
recorded.
falsification under the Revised Penal Code, but were being held
SEC. 4. Falsification or irregularities in the keeping of time administratively accountable for dishonesty, grave misconduct,
records will render the guilty officer or employee and falsification of official documents; thus, the elements of
administratively liable without prejudice to criminal prosecution damage and intent or malice are not prerequisites. It further
as the circumstances warrant. claimed that for this purpose, only substantial evidence is
required, and this had been strongly established. Petitioner also
SEC. 5. Officers and employees of all departments and agencies argued that, even if the element of damage is mandatory,
except those covered by special laws shall render not less than respondents had caused damage to the government when they
eight hours of work a day for five days a week or a total of forty received their full salaries for work not actually rendered.
hours a week, exclusive of time for lunch. As a general rule,
such hours shall be from eight o’clock in the morning to twelve In their Comment,10 respondents claimed that the CA correctly
o’clock noon and from one o’clock to five o’clock in the dismissed the administrative charges against them as the
afternoon on all days except Saturdays, Sundays and Holidays. integrity of their DTRs had remained untarnished and that they
acted in good faith in making the entries in their DTRs. They
SEC. 6. Flexible working hours may be allowed subject to the said that the CA clearly elaborated the legal basis for its ruling
discretion of the head of department or agency. In no case in their favor. They even argued that the administrative charges
shall the weekly working hours be reduced in the event the lodged by Romancito Santos were based on mere conjectures
department or agency adopts the flexi-time schedule in and conclusions of fact, such that it was not impossible for
reporting for work. college students to work eight (8) hours a day and attend
classes. They further claimed that petitioner failed to prove that
they actually attended their classes which they were enrolled in.
19

Respondents also argued that petitioner erred in not having It is also worthy to note that the factual finding made by
dismissed outright the administrative charges against them petitioner, i.e., that respondents made false entries in their
because, at the time the complaint was filed, the charges had respective DTRs for the period subject of this case, was
already prescribed under Section 20 (5) of Republic Act No. affirmed by the CA in the assailed Decision dated January 6,
6770 (The Ombudsman Act of 1989), to wit: 2004.20

(5) The complaint was filed after one year from the occurrence On the basis of these established facts, petitioner was correct in
of the act or omission complained of. holding respondents administratively guilty of dishonesty and
falsification of official document. Dishonesty is defined as the
They said that the acts complained of occurred in 1996 to 1997,
"disposition to lie, cheat, deceive, or defraud;
while the case was filed only on February 2000, or after the
untrustworthiness, lack of integrity."  Falsification of an official
21

lapse of more or less three (3) years.

document, as an administrative offense, is knowingly making
Respondent Maricar also asseverated that the doctrine laid false statements in official or public documents. Both are grave
down in Aguinaldo v. Santos11 should also apply to her offenses under the Uniform Rules on Administrative Cases in
considering that she was elected as City Councilor of the Civil Service, which carry with it the penalty of dismissal on
Malabon City in the 2004 elections. She also claimed that the the first offense.22
instant case adversely affected their lives, particularly in her
Falsification of DTRs amounts to dishonesty. 23 The evident
case, for while she graduated from the University of the East
purpose of requiring government employees to keep a time
College of Law in 2004, she was only able to take the bar
record is to show their attendance in office to work and to be
examinations in 2005 due to the pendency of the
paid accordingly. Closely adhering to the policy of no work-no
administrative case against her. She also cited the fact that the
pay, a DTR is primarily, if not solely, intended to prevent
criminal case involving the same set of facts was dismissed,
damage or loss to the government as would result in instances
insinuating that, as a result of this, the administrative case
where it pays an employee for no work done. 24
should have likewise been dismissed.
Respondents’ claim of good faith, which implies a sincere intent
The petition is impressed with merit.
not to do any falsehood or to seek any undue advantage,
At the outset, it must be stressed that this is an administrative cannot be believed. This Court pronounced –
case for dishonesty, grave misconduct, and falsification of
Good faith, here understood, is an intangible and abstract
official document. To sustain a finding of administrative
quality with no technical meaning or statutory definition, and it
culpability only substantial evidence is required, not
encompasses, among other things, an honest belief, the
overwhelming or preponderant, and very much less than proof
absence of malice and the absence of design to defraud or
beyond reasonable doubt as required in criminal
to seek an unconscionable advantage. An individual’s
cases.12 Substantial evidence means such relevant evidence as a
personal good faith is a concept of his own mind and,
reasonable mind might accept as adequate to support a
therefore, may not conclusively be determined by his
conclusion.
protestations alone. It implies honesty of intention, and
The following facts are borne out by the records: (1) Maricar freedom from knowledge of circumstances which ought to put
was appointed as Legislative Staff Assistant in the Office of the holder upon inquiry. The essence of good faith lies in an
then Councilor of Malabon, Edilberto Torres, on February 16, honest belief in the validity of one’s right, ignorance of a
1995;13 (2) Marian was appointed as Messenger in the same superior claim, and absence of intention to overreach another.
office on May 24, 1996;14 (3) at the time of Maricar’s x x x25
appointment to and employment in her position (1995-1997),
In this case, respondents knew fully well that the entries they
she was a full-time regular college student at UST; 15 (4) at the
made in their respective DTRs were false considering that it was
time of Marian’s appointment and employment as messenger
physically impossible for them to have reported for full work
in her father’s office (1996-2000), she was a full-time regular
days when during those times they were actually attending
dentistry-proper student at the College of Dentistry of Centro
their regular classes, which undoubtedly would take up most of
Escolar University;16 (5) during the employment of respondents
the daytime hours of the weekdays. With this knowledge,
in government service, they submitted DTRs indicating that
respondents did not bother to correct the DTR entries to
they religiously reported for work from 8:00 a.m. to 5:00 p.m.
honestly reflect their attendance at their workplace and the
during work days;17 (6) by reason thereof, respondents
actual work they performed. Worse, they repeatedly did this for
collected their full salaries during the entire time of their
a long period of time, consequently allowing them to collect
employment in their respective positions; 18 and, (7) these all
their full salaries for the entire duration of their public
occurred with the full knowledge and consent of their father. 19
employment as staff members of their father.
20

Respondents’ protestations that petitioner failed to prove their On the issue of prescription, we agree with petitioner’s
actual attendance in their regular classes and thus, suggest that contention that the Office of the Ombudsman is given by R.A.
they may not have been attending their classes, is preposterous No. 6770 a wide range of discretion whether or not to proceed
and incredible, simply because this is not in accord with the with an investigation of administrative offenses even beyond
natural course of things. The voluminous documentary the expiration of one (1) year from the commission of the
evidence subpoenaed by petitioner from UST and Centro offense.29
Escolar University showing the schedule of classes of
Likewise, the dismissal of the criminal case involving the same
respondents during the questioned period, along with the
set of facts cannot benefit respondents to cause the dismissal
certificates of matriculation painstakingly perused by GIO
of the administrative charges against them. As we held
Generoso, strongly militates against this claim. It would be the
in Tecson v. Sandiganbayan30 --
height of absurdity on the part of respondents to voluntarily
enroll in their respective courses, pay school fees, and not [I]t is a basic principle of the law on public officers that a public
attend classes but instead report for work. Even if this was official or employee is under a three-fold responsibility for
remotely possible, such a situation would be irreconcilable with violation of a duty or for a wrongful act or omission. This
the respondents having graduated from their respective simply means that a public officer may be held civilly,
courses. criminally, and administratively liable for a wrongful doing.
Thus, if such violation or wrongful act results in damages to an
Without doubt, the scrutiny of the numerous school
individual, the public officer may be held civilly liable to
documents, the DTRs submitted, and the payrolls from the
reimburse the injured party. If the law violated attaches a penal
office of the then Municipal Accountant of Malabon
sanction, the erring officer may be punished criminally. Finally,
overwhelmingly revealed that the classes in which respondents
such violation may also lead to suspension, removal from
enrolled for several school years were in stark conflict with the
office, or other administrative sanctions. This administrative
time entries in the DTRs, and several payroll sheets showed
liability is separate and distinct from the penal and civil
that respondents collected their full salaries corresponding to
liabilities. x x x
the DTR entries. These findings of fact made by petitioner,
being supported by substantial evidence, are conclusive; 26 more Hence, there was no impropriety committed by petitioner when
so that the finding of false entries in the DTRs was affirmed by it conducted the administrative investigation which led to the
the CA. finding of guilt against respondents.
Thus, the CA gravely erred when it exonerated respondents As regards the applicability of Aguinaldo, our
from administrative guilt based on the findings of fact of pronouncement therein is clear that condonation of an
petitioner which it even affirmed. The jurisprudence 27 adopted administrative offense takes place only when the public
by the appellate court in laying the legal basis for its ruling official is re-elected despite the pendency of an
does not apply to the instant case because said cases pertain to administrative case against him. In the case of Maricar,
criminal liability for Falsification of Public Document under the prior to her election as Councilor of now Malabon City, she
Revised Penal Code. The element of damage need not be held an appointive, not an elective, position, i.e., Legislative
proved to hold respondents administratively liable. Staff Assistant, appointed by her very own father, then
Councilor Edilberto Torres.
But it cannot even be said that no damage was suffered by the
government. When respondents collected their salaries on the As mentioned above, falsification of a DTR (an official
basis of falsified DTRs, they caused injury to the government. document) amounts to dishonesty. Thus, respondents should
The falsification of one’s DTR to cover up one’s absences or be held administratively liable. While dismissal was originally
tardiness automatically results in financial losses to the recommended for imposition on respondents, the penalty was
government because it enables the employee concerned to be eventually tempered to suspension of one (1) year without pay.
paid salaries and to earn leave credits for services which were
never rendered. Undeniably, the falsification of a DTR foists a We agree with the imposition of the lower penalty considering
fraud involving government funds.28 that respondents’ public employment with the
then Sangguniang Bayan of Malabon, even while they were
Likewise, the existence of malice or criminal intent is not a regular college students, was of a confidential character, and
prerequisite to declare the respondents administratively the arrangement was with the full knowledge and consent of
culpable. What is merely required is a showing that they made their father who appointed them to their positions.
entries in their respective DTRs knowing fully well that they
were false. This was evident in the many documents viewed While this Court recognizes the relative laxity given to
and reviewed by petitioner through GIO Generoso. confidential employees in terms of adjusted or flexible working
hours, substantial non-attendance at work as blatant and
21

glaring as in the case of respondents cannot be countenanced. PETITIONERS, VS. OFFICE OF THE OMBUDSMAN , RICARDO
Collecting full salaries for work practically not rendered is AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR
simply, downright reprehensible. Inevitably, this leads to the ADUL, AND AGNES FABIAN, RESPONDENTS,
erosion of the public’s faith in and respect for the government.
DECISION
WHEREFORE, the Decision dated January 6, 2004 and the
Resolution dated May 27, 2005 of the Court of Appeals
are REVERSED and SET ASIDE, and the Decision of the Office
CARPIO MORALES, J.:
of the Ombudsman dated November 9, 2001 is REINSTATED.

SO ORDERED.
Petitioners Vicente Salumbides, Jr. (Salumbides) and
Glenda Araña (Glenda) challenge the October 11, 2007
Decision and the December 13, 2007 Resolution of the Court of
Appeals[1] in CA-G.R. SP No. 96889 affirming the Office of the
Ombudsman's decision finding them guilty of Simple
Neglect of Duty.

Salumbides and Glenda were appointed in July 2001 as

Municipal Legal Officer/Administrator and Municipal Budget
Officer, respectively, of Tagkawayan, Quezon.

Towards the end of 2001, Mayor Vicente Salumbides III (the

mayor) saw the urgent need to construct a two-classroom
building with fence (the projects) for the Tagkawayan Municipal
High School[2] (TMHS) since the public school in the poblacion
area would no longer admit high school freshmen starting
school year 2002-2003. On how to solve the classroom
shortage, the mayor consulted Salumbides who suggested
that the construction of the two-classroom building be charged
to the account of the Maintenance and Other Operating
Expenses/ Repair and Maintenance of Facilities (MOOE/RMF)
and implemented "by administration," as had been done in a
previous classroom building project of the former mayor.

Upon consultation, Glenda advised Salumbides in December

2001, that there were no more available funds that could be
taken from the MOOE/RMF, but the savings of the municipal
government were adequate to fund the projects. She added,
however, that the approval by the Sangguniang Bayan of a
proposed supplemental budget must be secured.

The members of the Sangguniang Bayan  having already

gone on recess for the Christmas holidays, Glenda and
Salumbides advised the mayor to source the funds from
the P1,000,000 MOOE/RMF allocation in the approved
Municipal Annual Budget for 2002.[3]

The mayor thus ordered on January 8, 2002 Municipal Engineer

EN BANC
Jose Aquino (Aquino) to proceed with the construction of the
projects based on the program of work and bill of materials he
[G.R. No. 180917 : April 23, 2010]
(Aquino) prepared with a total cost estimate of P222,000.

ATTY. VICENTE E. SALUMBIDES, JR., AND GLENDA ARAÑA,

Upon advice of Municipal Planning and Development Officer
22

Hernan Jason (Jason), the mayor included the projects in the violation of the Commission on Audit (COA) Rules and the
list of local government projects scheduled for bidding on Local Government Code.
January 25, 2002 which, together with the January 31, 2002
public bidding, failed. By Order of June 14, 2002, the Office of the Ombudsman,
denied the prayer to place petitioners et al. under preventive
The mayor was to admit later his expectation or assumption of suspension pending investigation. By Order dated February 1,
risk on reimbursement: 2005, approved on April 11, 2005, it denied the motion for
reconsideration but dropped the mayor and Coleta, both
x x x It was my thinking that even if a bidder emerges and gets
elective officials, as respondents in the administrative case, the
these 2 projects which were at the time on-going (although it
2004 elections having mooted the case. The parties were
was also my thinking then that no bidder would possibly bid
thereupon directed to submit their respective verified position
for these 2 projects as these were cost-estimated very low-
papers to which petitioners, Jason and Aquino complied by
P150,000 for the 2-room school building P72,000 for the
submitting a consolidated position paper on May 19, 2005.
fencing) he (bidder) would be reasonable enough to reimburse
what I had so far spen[t] for the project. I said "I" because up to
Meanwhile, in response to the subpoena duces tecum issued by
the time of the failed 2 biddings I have shouldered the "vale" of
the Office of the Ombudsman on February 18, 2005 requiring
the laborers and I requisitioned some materials on credit on my
the regional officer of the COA to submit the post-audit report
own personal account, and not a single centavo was at the time
on the projects, Celerino Alviar, COA State Auditor II claimed by
disbursed by our municipal treasury until all requirements for
Affidavit of May 23, 2005 that the required documents were
negotiated purchase of the materials for the project had been
among those razed by fire on April 14, 2004 that hit the Office
accomplished. As a matter of fact, payments for the expenses
of the Municipal Accountant where they were temporarily
on these 2 projects have been made only starting 19  March
stored due to lack of space at the Provincial Auditor's Office.
2002. x x x[4] (underscoring supplied)
On October 17, 2005, the Office of the Ombudsman approved
The construction of the projects commenced without any the September 9, 2005 Memorandum absolving Jason and
approved appropriation and ahead of the public bidding. Aquino, and finding petitioners guilty of Simple Neglect of
Salumbides was of the opinion that the projects were regular Duty, for which they were meted the penalty of suspension
and legal, based on an earlier project that was "implemented in from office for a maximum period of six months with a stern
the same manner, using the same source of fund and for the warning against a similar repetition. It also approved on
same reason of urgency" which was allowed "because the November 2, 2006 the March 27, 2006 Order [7] denying the
building was considered merely temporary as the TMHS is set motion for reconsideration.
to be transferred to an 8-hectare lot which the municipal
government is presently negotiating to buy." [5] Their recourse to the appellate court having failed, petitioners
come before this Court via Rule 45 of the Rules of Court.
Meanwhile, Aquino suggested to the Sangguniang Bayan the
adoption of "model guidelines" in the implementation of For non-compliance with the rule on certification against forum
infrastructure projects to be executed "by administration," shopping, the petition merits outright dismissal. The
while Councilor Coleta Sandro (Coleta) sponsored a Resolution verification portion of the petition does not carry a certification
to ratify the projects and to authorize the mayor to enter into a against forum shopping.[8]
negotiated procurement. Both actions did not merit the
approval of the Sangguniang Bayan . The Court has distinguished the effects of non-compliance with
the requirement of verification and that of certification against
On May 13, 2002, herein respondents Ricardo Agon, Ramon forum shopping. A defective verification shall be treated as an
Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all unsigned pleading and thus produces no legal effect, subject
members of the Sangguniang Bayan  of Tagkawayan, filed to the discretion of the court to allow the deficiency to be
with the Office of the Ombudsman a complaint [6] against remedied, while the failure to certify against forum
Salumbides and Glenda (hereafter petitioners), the mayor, shopping shall be cause for dismissal without prejudice, unless
Coleta, Jason and Aquino. otherwise provided, and is not curable by amendment of the
initiatory pleading.[9]
The administrative aspect of the case, docketed as Case No.
OMB-L-A-02-0276-E, charged petitioners et al. with Petitioners' disregard of the rules was not the first. Their
Dishonesty, Grave Misconduct, Gross Neglect of Duty, motion for extension of time to file petition was previously
Conduct Prejudicial to the Best Interest of the Service, and denied by Resolution of January 15, 2008 [10] for non-compliance
23

with the required showing of competent proof of identity in the petitioner "having been duly reelected, is no longer amenable
Affidavit of Service. The Court, by Resolution of March 4, 2008, to administrative sanctions."[21]
[11]
 later granted their motion for reconsideration with motion
to admit appeal (Motion with Appeal) that was filed on Ingco v. Sanchez, et al. [22] clarified that the condonation
February 18, 2008 or the last day of filing within the extended doctrine does not apply to a criminal case.[23] Luciano v. The
period. Provincial Governor, et al., [24] Olivarez v. Judge
Villaluz,   and Aguinaldo v. Santos [26] echoed the qualified rule
[25]

Moreover, in their Manifestation/Motion [12] filed a day later, that reelection of a public official does not bar prosecution for
petitioners prayed only for the admission of nine additional crimes committed by him prior thereto.
copies of the Motion with Appeal "due to honest inadvertence"
in earlier filing an insufficient number of copies. Petitioners Consistently, the Court has reiterated the doctrine in a string of
were less than candid when they surreptitiously submitted a recent jurisprudence including two cases involving a Senator
Motion with Appeal which is different from the first set they and a Member of the House of Representatives. [27]
had submitted. The second set of Appeal includes specific
Assignment of Errors[13] and already contains a certification Salalima v. Guingona, Jr. [28] and Mayor Garcia v. Hon.
against forum shopping[14] embedded in the Verification. The Mojica [29] reinforced the doctrine. The condonation rule was
two different Verifications were notarized by the same notary applied even if the administrative complaint was not filed
public and bear the same date and document number. [15] The before the reelection of the public official, and even if the
rectified verification with certification, however, was filed alleged misconduct occurred four days before the elections,
beyond the reglementary period. respectively. Salalima did not distinguish as to the date of filing
of the administrative complaint, as long as the alleged
Its lapses aside, the petition just the same merits denial. misconduct was committed during the prior term, the precise
timing or period of which Garcia did not further distinguish, as
Petitioners urge this Court to expand the settled doctrine long as the wrongdoing that gave rise to the public official's
of condonation[16] to cover coterminous appointive officials culpability was committed prior to the date of reelection.
who were administratively charged along with the
reelected official/appointing authority with infractions Petitioners' theory is not novel.
allegedly committed during their preceding term.
A parallel question was involved in Civil Service Commission v.
The Court rejects petitioners' thesis. Sojor [30] where the Court found no basis to broaden the scope
of the doctrine of condonation:
More than 60 years ago, the Court in Pascual v. Hon. Provincial
Board of Nueva Ecija [17] issued the landmark ruling that
Lastly, We do not agree with respondent's contention that his
prohibits the disciplining of an elective official for a wrongful
appointment to the position of president of NORSU, despite
act committed during his immediately preceding term of office.
the pending administrative cases against him, served as a
The Court explained that "[t]he underlying theory is that each
condonation by the BOR of the alleged acts imputed to him.
term is separate from other terms, and that the reelection to
The doctrine this Court laid down in Salalima v. Guingona,
office operates as a condonation of the officer's previous
Jr. and Aguinaldo v. Santos are inapplicable to the present
misconduct to the extent of cutting off the right to remove him
circumstances. Respondents in the mentioned cases are
therefor."[18]
elective officials, unlike respondent here who is an appointed
The Court should never remove a public officer for acts done official. Indeed, election expresses the sovereign will of the
prior to his present term of office. To do otherwise would be to people. Under the principle of vox populi est suprema lex,  the
deprive the people of their right to elect their officers. When re-election of a public official may, indeed, supersede a
the people elect[e]d a man to office, it must be assumed that pending administrative case. The same cannot be said of a
they did this with knowledge of his life and character, and that re-appointment to a non-career position . There is no
they disregarded or forgave his faults or misconduct, if he had sovereign will of the people to speak of when the BOR re-
been guilty of any. It is not for the court, by reason of such appointed respondent Sojor to the post of university president.
faults or misconduct[,] to practically overrule the will of the [31]
 (emphasis and underscoring supplied)
people.[19] (underscoring supplied)

Contrary to petitioners' asseveration, the non-application of

Lizares v. Hechanova, et al. [20] replicated the doctrine. The Court the condonation doctrine to appointive officials does not
dismissed the petition in that case for being moot, the therein violate the right to equal protection of the law.
24

will nor disenfranchisement of the electorate to speak of,

In the recent case of Quinto v. Commission on Elections,[32] the in the case of reappointed coterminous employees.
Court applied the four-fold test in an equal protection
challenge[33] against the resign-to-run provision, wherein it It is the will of the populace, not the whim of one person
discussed the material and substantive distinctions between who happens to be the appointing authority, that could
elective and appointive officials that could well apply to the extinguish an administrative liability. Since petitioners hold
doctrine of condonation: appointive positions, they cannot claim the mandate of the
electorate. The people cannot be charged with the
The equal protection of the law clause is against undue favor
presumption of full knowledge of the life and character of
and individual or class privilege, as well as hostile
each and every probable appointee of the elective official
discrimination or the oppression of inequality. It is not
ahead of the latter's actual reelection.
intended to prohibit legislation which is limited either in the
object to which it is directed or by territory within which it is to
Moreover, the unwarranted expansion of the Pascual doctrine
operate. It does not demand absolute equality among
would set a dangerous precedent as it would, as respondents
residents; it merely requires that all persons shall be treated
posit, provide civil servants, particularly local government
alike, under like circumstances and conditions both as to
employees, with blanket immunity from administrative liability
privileges conferred and liabilities enforced. The equal
that would spawn and breed abuse in the bureaucracy.
protection clause is not infringed by legislation which applies
only to those persons falling within a specified class, if it
Asserting want of conspiracy, petitioners implore this Court to
applies alike to all persons within such class, and reasonable
sift through the evidence and re-assess the factual findings.
grounds exist for making a distinction between those who fall
This the Court cannot do, for being improper and immaterial.
within such class and those who do not.
Under Rule 45 of the Rules of Court, only questions of law may
Substantial distinctions clearly exist between elective
be raised, since the Court is not a trier of facts. [34] As a rule, the
officials and appointive officials. The former occupy their
Court is not to review evidence on record and assess the
office by virtue of the mandate of the electorate. They are
probative weight thereof. In the present case, the appellate
elected to an office for a definite term and may be removed
court affirmed the factual findings of the Office of the
therefrom only upon stringent conditions. On the other
Ombudsman, which rendered the factual questions beyond the
hand, appointive officials hold their office by virtue of their
province of the Court.
designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity
Moreover, as correctly observed by respondents, the lack of
and are entitled to security of tenure while others serve at the
conspiracy cannot be appreciated in favor of petitioners who
pleasure of the appointing authority.
were found guilty of simple neglect of duty, for if they
conspired to act negligently, their infraction becomes
x x x x
intentional.[35] There can hardly be conspiracy to commit
negligence.[36]
An election is the embodiment of the popular will, perhaps the
purest expression of the sovereign power of the people. It
Simple neglect of duty is defined as the failure to give proper
involves the choice or selection of candidates to public office
attention to a task expected from an employee resulting from
by popular vote. Considering that elected officials are put in
either carelessness or indifference.[37] In the present case,
office by their constituents for a definite term, x x x complete
petitioners fell short of the reasonable diligence required of
deference is accorded to the will of the electorate that they be
them, for failing to exercise due care and prudence in
served by such officials until the end of the term for which they
ascertaining the legal requirements and fiscal soundness of the
were elected. In contrast, there is no such expectation insofar
projects before stamping their imprimatur and giving their
as appointed officials are concerned. (emphasis and
advice to their superior.
underscoring supplied)
The appellate court correctly ruled that as municipal legal
The electorate's condonation of the previous officer, petitioner Salumbides "failed to uphold the law and
administrative infractions of the reelected official cannot provide a sound legal assistance and support to the mayor in
be extended to that of the reappointed coterminous carrying out the delivery of basic services and provisions of
employees, the underlying basis of the rule being to adequate facilities when he advised [the mayor] to proceed
uphold the will of the people expressed through the ballot. with the construction of the subject projects without prior
In other words, there is neither subversion of the sovereign competitive bidding."[38] As pointed out by the Office of the
25

Solicitor General, to absolve Salumbides is tantamount to

allowing with impunity the giving of erroneous or illegal advice, WHEREFORE, the assailed Decision and Resolution of the
when by law he is precisely tasked to advise the mayor on Court of Appeals in CA-G.R. SP No. 96889
"matters related to upholding the rule of law." [39] Indeed, a legal are AFFIRMED with MODIFICATION, in that petitioners,
officer who renders a legal opinion on a course of action Vicente Salumbides, Jr. and Glenda Araña, are suspended
without any legal basis becomes no different from a lay person from office for three (3) months without pay.
who may approve the same because it appears justified.
SO ORDERED.
As regards petitioner Glenda, the appellate court held that the
improper use of government funds upon the direction of the
mayor and prior advice by the municipal legal officer did not
relieve her of liability for willingly cooperating rather than
registering her written objection[40] as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court,

pointing to the improper itemization of the expense, held that
the funding for the projects should have been taken from the
"capital outlays" that refer to the appropriations for the
purchase of goods and services, the benefits of which extend
beyond the fiscal year and which add to the assets of the local
government unit. It added that current operating expenditures
like MOOE/RMF refer to appropriations for the purchase of
goods and services for the conduct of normal local government
operations within the fiscal year. [41]

In Office of the Ombudsman v. Tongson,[42] the Court reminded

the therein respondents, who were guilty of simple neglect of
duty, that government funds must be disbursed only upon
compliance with the requirements provided by law and
pertinent rules.

Simple neglect of duty is classified as a less grave offense

punishable by suspension without pay for one month and one
day to six months. Finding no alleged or established
circumstance to warrant the imposition of the maximum
penalty of six months, the Court finds the imposition of
suspension without pay for three months justified.

When a public officer takes an oath of office, he or she binds

himself or herself to faithfully perform the duties of the office
and use reasonable skill and diligence, and to act primarily for
the benefit of the public. Thus, in the discharge of duties, a
public officer is to use that prudence, caution, and attention
which careful persons use in the management of their affairs. [43]

Public service requires integrity and discipline. For this reason,

public servants must exhibit at all times the highest sense of
honesty and dedication to duty. By the very nature of their
duties and responsibilities, public officers and employees must
faithfully adhere to hold sacred and render inviolate the
constitutional principle that a public office is a public trust; and
must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency. [44]
26

[ G.R. Nos. 217126-27, November 10, 2015 ]

CONCHITA CARPIO MORALES, IN HER CAPACITY AS THE

OMBUDSMAN, PETITIONER, VS. COURT OF APPEALS
(SIXTH DIVISION) AND JEJOMAR ERWIN S. BINAY, JR.,
RESPONDENTS.

DECISION

PERLAS-BERNABE, J.:

"All government is a trust, every branch of government is a trust,

and immemorially acknowledged so to be[.]"[1]

The Case

Before the Court is a petition for certiorari and

prohibition  filed on March 25, 2015 by petitioner Conchita
[2]

Carpio Morales, in her capacity as the Ombudsman

(Ombudsman), through the Office of the Solicitor General
(OSG), assailing: (a) the Resolution [3] dated March 16, 2015 of
public respondent the Court of Appeals (CA) in CA-G.R. SP No.
139453, which granted private respondent Jejomar Erwin S.
Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the implementation of the Joint
Order[4] dated March 10, 20,15 of the Ombudsman in OMB-C-
A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and
employees of the City Government of Makati, for six (6) months
without pay; and (b) the Resolution [5] dated March 20, 2015 of
the CA, ordering the Ombudsman to comment on Binay, Jr.'s
petition for contempt[6] in CA-G.R. SP No. 139504.

Pursuant to the Resolution[7] dated April 6, 2015, the CA issued

a writ of preliminary injunction [8] (WPI) in CA-G.R. SP No.
139453 which further enjoined the implementation of the
preventive suspension order, prompting the Ombudsman to
file a supplemental petition [9] on April 13, 2015.

The Facts

On July 22, 2014, a complaint/affidavit [10] was filed by Atty.

Renato L. Bondal and Nicolas "Ching" Enciso VI before the
Office of the Ombudsman against Binay, Jr. and other
public officers and employees of the City Government of
Makati (Binay, Jr.,  et al), accusing them of Plunder[11] and
violation of Republic Act No. (RA) 3019, [12] otherwise known as
"The Anti-Graft and Corrupt Practices Act," in connection with
the five (5) phases of the procurement and construction of
the Makati City Hall Parking Building (Makati Parking
Building).[13]
EN BANC
27

On September 9, 2014, the Ombudsman constituted a Special Binay, Jr.'s Second Term (2013 to 2016)[46]
Panel of Investigators [14] to conduct a fact-finding investigation,
submit an investigation report, and file the necessary
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the
complaint, if warranted (1st Special Panel). [15] Pursuant to the
release of funds for the remaining balance of the September
Ombudsman's directive, on March 5, 2015, the 1st Special
13, 2012 contract with Hilmarc's for Phase V of the Makati
Panel filed a complaint [16] (OMB Complaint) against Binay, Jr., et
Parking Building project in the amount of P27,443,629.97;
al, charging them with six (6) administrative cases [17] for Grave [47]
 and
Misconduct, Serious Dishonesty, and Conduct Prejudicial to the
Best Interest of the Service, and six (6) criminal cases [18] for
(e) On July 24, 2013, Binay, Jr. approved the release of funds
violation of Section 3 (e) of RA 3019, Malversation of Public
for the remaining balance of the contract [48] with MANA
Funds, and Falsification of Public Documents (OMB Cases). [19]
Architecture & Interior Design Co. (MANA) for the design and
architectural services covering the Makati Parking Building
As to Binay, Jr., the OMB Complaint alleged that he was
project in the amount of P429,011.48.[49]
involved in anomalous activities attending the following
procurement and construction phases of the Makati
Parking Building project, committed during his previous On March 6, 2015, the Ombudsman created another Special
and present terms as City Mayor of Makati: Panel of Investigators to conduct a preliminary investigation
and administrative adjudication on the OMB Cases (2 nd Special
Binay, Jr.'s First Term (2010 to 2013)[20]
Panel).[50] Thereafter, on March 9, 2015, the 2 nd Special Panel
(a) On September 21, 2010, Binay, Jr. issued the Notice of issued separate orders[51] for each of the OMB Cases, requiring
Award[21] for Phase III of the Makati Parking Building project to Binay, Jr., et al. to file their respective counter-affidavits. [52]
Hilmarc's Construction Corporation (Hilmarc's), and
consequently, executed the corresponding Before Binay, Jr.,  et al.'s  filing of their counter-affidavits, the
contract[22] on September 28, 2010,[23] without the required Ombudsman, upon the recommendation of the 2nd Special
publication and the lack of architectural design, [24] and Panel, issued on March 10, 2015, the subject preventive
approved the release of funds therefor in the following suspension order, placing Binay, Jr.,  et al.  under preventive
amounts as follows: (1) P130,518,394.80 on December 15, suspension for not more than six (6) months without pay,
2010;[25] (2) P134,470,659.64 on January 19, 2011; [26] (3) during the pendency of the OMB Cases. [53] The Ombudsman
P92,775,202.27 on February 25, 2011;[27] (4) P57,148,625.51 ruled that the requisites for the preventive suspension of a
on March 28, 2011;[28] (5) P40,908,750.61 on May 3, 2011; public officer are present, [54] finding that: (a) the evidence of
[29]
 and (6) P106,672,761.90 on July 7, 2011; [30] Binay, Jr.,  et al.'s guilt was strong given that (1) the losing
bidders and members of the Bids and Awards Committee of
(b) On August 11, 2011, Binay, Jr. issued the Notice of Makati City had attested to the irregularities attending the
Award[31] for Phase IV of the Makati Parking Building project to Makati Parking Building project; (2) the documents on record
Hilmarc's, and consequently, executed the corresponding negated the publication of bids; and (3) the disbursement
contract[32] on August 18, 2011,[33] without the required vouchers, checks, and official receipts showed the release of
publication and the lack of architectural design, [34] and funds; and (b) (1) Binay, Jr., et al. were administratively
approved the release of funds therefor in the following charged with Grave Misconduct, Serious Dishonesty, and
amounts as follows: (1) P182,325,538.97 on October 4, 2O11; Conduct Prejudicial to the Best Interest of the Service; (2)
[35]
 (2) P173,132,606.91 on October 28,2011; [36] (3) said charges, if proven to be true, warrant removal from
P80,408,735.20 on December 12, 2011;  (4) P62,878,291.81 on
[37]
public service under the Revised Rules on Administrative
February 10, 2012;[38] and (5) P59,639,167.90 on October 1, Cases in the Civil Service (RRACCS), and (3) Binay, Jr.,  et al.'s
2012;[39] respective positions give them access to public records and
allow them to influence possible witnesses; hence, their
(c) On September 6, 2012, Binay, Jr. issued the Notice of continued stay in office may prejudice the investigation relative
Award[40] for Phase V of the Makati Parking Building project to to the OMB Cases filed against them.[55] Consequently, the
Hilmarc's, and consequently, executed the corresponding Ombudsman directed the Department of Interior and Local
contract[41] on September 13, 2012,[42] without the required Government (DILG), through Secretary Manuel A. Roxas II
publication and the lack of architectural design, [43] and (Secretary Roxas), to immediately implement the preventive
approved the release of the funds therefor in the amounts of suspension order against Binay, Jr., et al., upon receipt of the
P32,398,220.05[44] and P30,582,629.30[45] on December 20, same.[56]
2012;  and
On March 11, 2015, a copy of the preventive suspension order
28

was sent to the Office of the City Mayor, and received by  The CA then directed the Ombudsman to comment on
[69]

Maricon Ausan, a member of Binay, Jr.'s staff. [57] Binay, Jr.'s petition for certiorari. [70]

The Proceedings Before the CA

On March 17, 2015, the Ombudsman manifested [71] that the
TRO did not state what act was being restrained and that since
On even date,[58] Binay, Jr. filed a petition for certiorari[59] before the preventive suspension order had already been served and
the CA, docketed as CA-G.R. SP No. 139453, seeking the implemented, there was no longer any act to restrain. [72]
nullification of the preventive suspension order, and praying for
the issuance of a TRO and/or WPI to enjoin its implementation. On the same day, Binay, Jr. filed a petition for contempt, [73] 
[60]
 Primarily, Binay, Jr. argued that he could not be held docketed as CA-G.R. SP No. 139504, accusing Secretary
administratively liable for any anomalous activity attending Roxas, Director Brion, the officials of the Philippine National
any of the five (5) phases of the Makati Parking Building project Police, and Pena, Jr. of deliberately refusing to obey the CA,
since: (a) Phases I and II were undertaken before he was elected thereby allegedly impeding, obstructing, or degrading the
Mayor of Makati in 2010; and (b) Phases III to V transpired administration of justice.[74] The Ombudsman and Department
during his first term and that his re-election as City Mayor of of Justice Secretary Leila M. De Lima were subsequently
Makati for a second term effectively condoned his impleaded as additional respondents upon Binay, Jr.'s filing of
administrative liability therefor, if any, thus rendering the the amended and supplemental petition for
administrative cases against him moot and academic.[61] In contempt[75] (petition for contempt) on March 19, 2015.
[76]
any event, Binay, Jr. claimed that the Ombudsman's  Among others, Binay, Jr. accused the Ombudsman and other
preventive suspension order failed to show that the respondents therein for willfully and maliciously ignoring the
evidence of guilt presented against him is strong, TRO issued by the CA against the preventive suspension order.
[77]
maintaining that he did not participate in any of the purported
irregularities.[62] In support of his prayer for injunctive relief,
Binay, Jr. argued that he has a clear and unmistakable right to In a Resolution[78] dated March 20, 2015, the CA ordered the
hold public office, having won by landslide vote in the 2010 consolidation of CA-G.R. SP No. 139453 and CA-G.R. SP No.
and 2013 elections, and that, in view of the condonation 139504, and, without necessarily giving due course to Binay,
doctrine, as well as the lack of evidence to sustain the charges Jr.'s petition for contempt, directed the Ombudsman to file
against him, his suspension from office would undeservedly her comment thereto.[79] The cases were set for hearing of oral
deprive the electorate of the services of the person they have arguments on March 30 and 31, 2015.[80]
conscientiously chosen and voted into office. [63]
The Proceedings Before the Court

On March 16, 2015, at around 8:24 a.m., Secretary Roxas

caused the implementation of the preventive suspension order Prior to the hearing of the oral arguments before the CA, or on
through the DILG National Capital Region - Regional Director, March 25, 2015, the Ombudsman filed the present petition
Renato L. Brion, CESO III (Director Brion), who posted a copy before this Court, assailing the CA's March 16, 2015 Resolution,
thereof on the wall of the Makati City Hall after failing to which granted Binay, Jr.'s prayer for TRO in CA-G.R. SP No.
personally serve the same on Binay, Jr. as the points of entry to 139453, and the March 20, 2015 Resolution directing her to file
the Makati City Hall were closed. At around 9:47 a.m., Assistant a comment on Binay, Jr.'s petition for contempt in CA-G.R. SP
City Prosecutor of Makati Billy C. Evangelista administered the No. 139504.[81] The Ombudsman claims that: (a) the CA had no
oath of office on Makati City Vice Mayor Romulo V. Peña, Jr. jurisdiction to grant Binay, Jr.'s prayer for a TRO, citing Section
(Peña, Jr.) who thereupon assumed office as Acting Mayor. [64] 14 of RA 6770,[82] or "The Ombudsman Act of 1989," which
states that no injunctive writ could be issued to delay the
At noon of the same day, the CA issued a Resolution [65] (dated Ombudsman's investigation unless there is prima facie
March 16, 2015), granting Binay, Jr.'s prayer for a TRO, evidence that the subject matter thereof is outside the latter's
[66]
 notwithstanding Pena, Jr.'s assumption of duties as Acting jurisdiction;[83] and (b) the CA's directive for the Ombudsman to
Mayor earlier that day.[67] Citing the case of Governor Garcia, Jr. comment on Binay, Jr.'s petition for contempt is illegal and
v. CA,[68] the CA found that it was more prudent on its part to improper, considering that the Ombudsman is an impeachable
issue a TRO in view of the extreme urgency of the matter and officer, and therefore, cannot be subjected to contempt
seriousness of the issues raised, considering that if it were proceedings.[84]
established that the acts subject of the administrative cases
against Binay, Jr. were all committed during his prior term, In his comment[85] filed on April 6, 2015, Binay, Jr. argues that
then, applying the condonation doctrine, Binay, Jr.'s re-election Section 1, Article VIII of the 1987 Constitution specifically
meant that he can no longer be administratively charged. grants the CA judicial power to review acts of any branch or
29

instrumentality of government, including the Office of the its April 6, 2015 Resolution, the Ombudsman filed a
Ombudsman, in case of grave abuse of discretion amounting supplemental petition[99] before this Court, arguing that the
to lack or excess of jurisdiction, which he asserts was condonation doctrine is irrelevant to the determination of
committed in this case when said office issued the preventive whether the evidence of guilt is strong for purposes of issuing
suspension order against him.[86] Binay, Jr. posits that it was preventive suspension orders. The Ombudsman also
incumbent upon the Ombudsman to1 have been apprised of maintained that a reliance on the condonation doctrine is a
the condonation doctrine as this would have weighed heavily matter of defense, which should have been raised by Binay, Jr.
in determining whether there was strong evidence to warrant before it during the administrative proceedings, and that, at
the issuance of the preventive suspension order. [87] In this any rate, there is no condonation because Binay, Jr. committed
relation, Binay, Jr. maintains that the CA correctly enjoined the acts subject of the OMB Complaint after his re-election in 2013.
implementation of the preventive suspension order given his [100]

clear and unmistakable right to public office, and that it is clear

that he could not be held administratively liable for any of the On April 14 and 21, 2015, [101] the Court conducted hearings for
charges against him since his subsequent re-election in 2013 the oral arguments of the parties. Thereafter, they were
operated as a condonation of any administrative offenses he required to file their respective memoranda. [102] In compliance
may have committed during his previous term. [88] As regards thereto, the Ombudsman filed her Memorandum [103] on May
the CA's order for the Ombudsman to comment on his petition 20, 2015, while Binay, Jr. submitted his Memorandum the
for contempt, Binay, Jr. submits that while the Ombudsman is following day.[104]
indeed an impeachable officer and, hence, cannot be removed
from office except by way of impeachment, an action for Pursuant to a Resolution [105] dated June 16, 2015, the Court
contempt imposes the penalty of fine and imprisonment, directed the parties to comment on each other's memoranda,
without necessarily resulting in removal from office. Thus, the and the OSG to comment on the Ombudsman's Memorandum,
fact that the Ombudsman is an impeachable officer should not all within ten (10) days from receipt of the notice.
deprive the CA of its inherent power to punish contempt. [89]
On July 15, 2015, both parties filed their respective comments
Meanwhile, the CA issued a Resolution[90] dated April 6, 2015, to each other's memoranda.[106] Meanwhile, on July 16, 2015,
after the oral arguments before it were held, [91] granting Binay, the OSG filed its Manifestation In Lieu of Comment, [107] simply
Jr.'s prayer for a WPI, which further enjoined the stating that it was mutually agreed upon that the Office of the
implementation of the preventive suspension order. In so Ombudsman would file its Memorandum, consistent with its
ruling, the CA found that Binay, Jr. has an ostensible right to desire to state its "institutional position." [108] In her
the final relief prayed for, namely, the nullification of the Memorandum and Comment to Binay, Jr.'s Memorandum, the
preventive suspension order, in view of the condonation Ombudsman pleaded, among others, that this Court abandon
doctrine, citing Aguinaldo v. Santos.[92] Particularly, it found the condonation doctrine.[109] In view of the foregoing, the case
that the Ombudsman can hardly impose preventive suspension was deemed submitted for resolution.
against Binay, Jr. given that his re-election in 2013 as City
The Issues Before the Court
Mayor of Makati condoned any administrative liability arising
from anomalous activities relative to the Makati Parking
Building project from 2007 to 2013.[93] In this regard, the CA Based on the parties' respective pleadings, and as raised during
added that, although there were acts which were apparently the oral arguments conducted before this Court, the main
committed by Binay, Jr. beyond his first term — namely, the issues to be resolved in seriatim are as follows:
alleged payments on July 3, July 4, and July 24, 2013,
[94]
 corresponding to the services of Hillmarc's and MANA - still, I. Whether or not the present petition, and not motions
Binay, Jr. cannot be held administratively liable therefor based for reconsideration of the assailed CA issuances in CA-
on the cases of Salalima v. Guingona, Jr.,[95] and Mayor G.R. SP No. 139453 and CA-G.R. SP No. 139504, is the
Garcia v. Mojica[96] wherein the condonation doctrine was still Ombudsman's plain, speedy, and adequate remedy;
applied by the Court although the payments were made after
II. Whether or not the CA has subject matter jurisdiction
the official's re-election, reasoning that the payments were
over the main petition for certiorari in CA-G.R. SP No.
merely effected pursuant to contracts executed before said re-
139453;
election.[97] To this, the CA added that there was no concrete
evidence of Binay, Jr.'s participation for the alleged payments III. Whether or not the CA has subject matter jurisdiction
made on July 3, 4, and 24, 2013. [98] to issue a TRO and/or WPI enjoining the
implementation of a preventive suspension order
In view of the CA's supervening issuance of a WPI pursuant to issued by the Ombudsman;
30

IV. Whether or not the CA gravely abused its discretion in

issuing the TRO and eventually, the WPI in CA-G.R. SP Hence, as a general rule, a motion for reconsideration must first
No. 139453 enjoining the implementation of the be filed with the lower court prior to resorting to the
preventive suspension order against Binay, Jr. based extraordinary remedy of certiorari or prohibition since a motion
on the condonation doctrine; and for reconsideration may still be considered as a plain, speedy,
and adequate remedy in the ordinary course of law. The
V. Whether or not the CA's directive for the Ombudsman
rationale for the pre-requisite is to grant an opportunity for the
to ' comment on Binay, Jr.'s petition for contempt in
lower court or agency to correct any actual or perceived error
CA- G.R. SP No. 139504 is improper and illegal.
attributed to it by the re-examination of the legal and factual
circumstances of the case.[110]

The Ruling of the Court Jurisprudence states that "[i]t is [the] inadequacy, [and] not the
mere absence of all other legal remedies and the danger of
failure of justice without the writ, that must usually determine
The petition is partly meritorious.
the propriety of certiorari [or prohibition]. A remedy is plain,
I. 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, x x x."[111]
A common requirement to both a petition for certiorari  and a
petition for prohibition taken under Rule 65 of the 1997 Rules In this light, certain exceptions were crafted to the general rule
of Civil Procedure is that the petitioner has no other plain, requiring a prior motion for reconsideration before the filing of
speedy, and adequate remedy in the ordinary course of law. a petition for certiorari, which exceptions also apply to a
Sections 1 and 2 thereof provide: petition for prohibition.[112] These are: (a) where the order is a
Section 1. Petition for certiorari. - When any tribunal, board or patent nullity, as where the court a quo has no jurisdiction; (b)
officer exercising judicial or quasi-judicial functions has acted where the questions raised in the certiorari proceedings have
without or in excess of its or his jurisdiction, or with grave been duly raised and passed upon by the lower court, or are
abuse of discretion amounting to lack or excess of jurisdiction, the same as those raised and passed upon in the lower court;
and there is no appeal, nor any plain, speedy, and adequate (c) where there is an urgent necessity for the resolution of the
remedy in the ordinary course of law, a person aggrieved question and any further delay would prejudice the interests of
thereby may file a verified petition in the proper court, alleging the Government or of the petitioner or the subject matter of
the facts with certainty and praying that judgment be rendered the action is perishable; (d) where, under the circumstances, a
annulling or modifying the proceedings of such tribunal, board motion for reconsideration would be useless; (e) where
or officer, and granting such incidental reliefs as law and justice petitioner was deprived of due process and there is extreme
may require. urgency for relief; (f) where, in a criminal case, relief from an
order of arrest is urgent and the granting of such relief by the
x x x x trial court is improbable; (g) where the proceedings in the
lower court are a nullity for lack of due process; (h) where the
Section 2. Petition for prohibition. - When the proceedings of proceedings were  ex parte  or in which the petitioner had no
any tribunal, corporation, board, officer or person, whether opportunity to object; and (i) where the issue raised is one
exercising judicial, quasi-judicial or ministerial functions, are purely of law or where public interest is involved.[113]
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, In this case, it is ineluctably clear that the above-highlighted
and there is no appeal, or any other plain, speedy, and exceptions attend since, for the first time, the question on the
adequate remedy in the ordinary course of law, a person authority of the CA - and of this Court, for that matter - to
aggrieved thereby may file a verified petition in the proper enjoin the implementation of a preventive suspension order
court, alleging the facts r with certainty and praying that issued by the Office of the Ombudsman is put to the fore. This
judgment be rendered commanding the respondent to desist case tests the constitutional and statutory limits of the
from further proceedings in the action or matter specified fundamental powers of key government institutions - namely,
therein, or otherwise granting such incidental reliefs as law and the Office of the Ombudsman, the Legislature, and the
justice may require. Judiciary - and hence, involves an issue of transcendental
public importance that demands no less than a careful but
x x x x (Emphases supplied) expeditious resolution. Also raised is the equally important
issue on the propriety of the continuous application of the
31

condonation doctrine as invoked by a public officer who incident in the main action."[120] Considering the textual qualifier
desires exculpation from administrative liability. As such, the "to delay," which connotes a suspension of an action while the
Ombudsman's direct resort to certiorari  and prohibition before main case remains pending, the "writ of injunction" mentioned
this Court, notwithstanding her failure to move for the prior in this paragraph could only refer to injunctions of the
reconsideration of the assailed issuances in CA-G.R. SP No. provisional kind, consistent with the nature of a provisional
139453 and CA-G.R. SP No. 139504 before the CA, is justified. injunctive relief.

II.
The exception to the no injunction policy is when there
is prima facie evidence that the subject matter of the
Albeit raised for the first time by the Ombudsman in her investigation is outside the office's jurisdiction. The Office of
Memorandum,[114] it is nonetheless proper to resolve the issue the Ombudsman has disciplinary authority over all elective and
on the CA's lack of subject matter jurisdiction over the main appointive officials of the government and its subdivisions,
petition for certiorari in CA-G.R. SP No. 139453, in view of the instrumentalities, and agencies, with the exception only of
well-established rule that a court's jurisdiction over the subject impeachable officers, Members of Congress, and the Judiciary.
[121]
matter may be raised at any stage of the proceedings. The  Nonetheless, the Ombudsman retains the power to
rationale is that subject matter jurisdiction is conferred by law, investigate any serious misconduct in office allegedly
and the lack of it affects the very authority of the court to take committed by officials removable by impeachment, for the
cognizance of and to render judgment on the action. [115] Hence, purpose of filing a verified complaint for impeachment, if
it should be preliminarily determined if the CA indeed had warranted.[122] Note that the Ombudsman has concurrent
subject matter jurisdiction over the main CA-G.R. SP No. jurisdiction over certain administrative cases which are within
139453 petition, as the same determines the validity of all the jurisdiction of the regular courts or administrative agencies,
subsequent proceedings relative thereto. It is noteworthy to but has primary jurisdiction to investigate any act or omission
point out that Binay, Jr. was given the opportunity by this Court of a public officer or employee who is under the jurisdiction of
to be heard on this issue, [116] as he, in fact, duly submitted his the Sandiganbayan.[123]
opposition through his comment to the Ombudsman's
Memorandum.[117] That being said, the Court perceives no On the other hand, the second paragraph of Section 14, RA
reasonable objection against ruling on this issue. 6770 provides that no appeal or application for remedy may be
heard against the decision or findings of the Ombudsman, with
The Ombudsman's argument against the CA's lack of subject the exception of the Supreme Court on pure questions of law.
matter jurisdiction over the main petition, and her corollary This paragraph, which the Ombudsman particularly relies on in
prayer for its dismissal, is based on her interpretation of arguing that the CA had no jurisdiction over the main CA-G.R.
Section 14, RA 6770, or the Ombudsman Act, [118] which reads in SP No. 139453 petition, as it is supposedly this Court which has
full: the sole jurisdiction to conduct a judicial review of its decisions
or findings, is vague for two (2) reasons: (1) it is unclear what
Section 14. Restrictions. - No writ of injunction shall be issued the phrase "application for remedy" or the word "findings"
by any court to delay an investigation being conducted by the refers to; and (2) it does not specify what procedural remedy is
Ombudsman under this Act, unless there is a prima solely allowable to this Court, save that the same be taken only
facie evidence that the subject matter of the investigation is against a pure question of law. The task then, is to apply the
outside the jurisdiction of the Office of the Ombudsman. relevant principles of statutory construction to resolve the
ambiguity.
No court shall hear any appeal or application for remedy
against the decision or findings of the Ombudsman, except the "The underlying principle of all construction is that the intent of
Supreme Court, on pure question of law. the legislature should be sought in the words employed to
express it, and that when found[,] it should be made to govern,
x x x. If the words of the law seem to be of doubtful import, it
The subject provision may be dissected into two (2) parts.
may then perhaps become necessary to look beyond them in
order to ascertain what was in the legislative mind at the time
The first paragraph of Section 14, RA 6770 is a prohibition
the law was enacted; what the circumstances were, under which
against any court (except the Supreme Court [119]) from issuing a
the action was taken; what evil, if any, was meant to be
writ of injunction to delay an investigation being conducted by
redressed; x x x [a]nd where the law has contemporaneously
the Office of the Ombudsman. Generally speaking, "[injunction
been put into operation, and in doing so a construction has
is a judicial writ, process or proceeding whereby a party is
necessarily been put upon it, this construction, especially if
ordered to do or refrain from doing a certain act. It may be the
followed for some considerable period, is entitled to great
main action or merely a provisional remedy for and as an
32

respect, as being very probably a true expression of the Senator Angara. Going to the Supreme Court, Mr.
legislative purpose, and is not lightly to be overruled, although President?
it is not conclusive."[124]
Senator Guingona. Yes. What I mean to say is, at what stage,
As an aid to construction, courts may avail themselves of the for example, if he is a presidential appointee who is the
actual proceedings of the legislative body in interpreting a respondent, if there is f no certiorari  available, is the
statute of doubtful meaning. In case of doubt as to what a respondent given the right to exhaust his administrative
provision of a statute means, the meaning put to the provision remedies first before the Ombudsman can take the appropriate
during the legislative deliberations may be adopted, [125] albeit action?
not controlling in the interpretation of the law. [126]
Senator Angara. Yes, Mr. President, because we do not intend
A. The Senate deliberations cited by the to change the administrative law principle that before one can
Ombudsman do not pertain to the second go to court, he must exhaust all administrative remedies xxx
paragraph of Section 14, RA 6770. available to him before he goes and seeks judicial review.

The Ombudsman submits that the legislative intent behind x x x x

Section 14, RA 6770, particularly on the matter of judicial
review of her office's decisions or findings, is supposedly clear Senator [Neptali A.] Gonzales. What is the purpose of the
from the following Senate deliberations: [127] Committee in changing the method of appeal from one of a
petition for review to a petition for certiorari?
Senator [Edgardo J.] Angara, x x x. On page 15, Mr. President,
line 14, after the phrase "petition for" delete the word "review"
Senator Angara. To make it consistent, Mr. President, with
and in lieu thereof, insert the word CERTIORARI. So that, review
the provision here in the bill to the effect that the  finding
or appeal from the decision of the Ombudsman would only be
of facts of the Ombudsman is conclusive if supported by
taken not on a petition for review, but on certiorari.
substantial evidence.

The President [Jovito R. Salonga]. What is the practical

Senator Gonzales. A statement has been made by the
effect of that? Will it be more difficult to reverse the
Honorable Presiding Officer to which I concur, that in an
decision under review?
appeal by certiorari, the appeal is more difficult. Because
in certiorari it is a matter of discretion on the part of the
Senator Angara. It has two practical effect ways, Mr.
court, whether to give due course to the petition or dismiss
President. First is that the findings of facts of the
it outright. Is that not correct, Mr. President?
Ombudsman would be almost conclusive if supported by
substantial evidence. Second, we would not unnecessarily
Senator Angara. That is absolutely correct, Mr. President
clog the docket of the Supreme Court. So, it in effect will be
a  very strict appeal procedure.
Senator Gonzales. And in a petition for certiorari, the issue
is  limited  to whether or not the Ombudsman here has
x x x x
acted without jurisdiction and has committed a grave
abuse of discretion amounting to lack of jurisdiction. Is that
Senator [Teofisto T.] Guingona, [Jr.]. Does this mean that, for
not the consequence, Mr. President.
example, if there are exhaustive remedies available to a
respondent, the respondent himself has the right to exhaust
Senator Angara. That is correct, Mr. President.
the administrative remedies available to him?
Senator Gonzales. And it is, therefore, in this sense that the
Senator Angara. Yes, Mr. President, that is correct.
intention of the Committee is to make it harder to have a
judicial review, but should be limited only to cases that I have
Senator Guingona. And he himself may cut the proceeding
enumerated.
short by appealing to the Supreme Court only on certiorari?
Senator Angara. Yes, Mr. President.
Senator Angara. On question of law, yes.
Senator Gonzales. I think, Mr. President, our Supreme Court
Senator Guingona. And no other remedy is available to
has made a distinction between a petition for review and a
him?
petition for certiorari; because before, under the 1935
33

Constitution appeal from any order, ruling or decision of the petition for certiorari - that is, to make "the appeal x x x more
COMELEC shall be by means of review. But under the difficult." Ultimately, the amendment to the change in wording,
Constitution it is now by certiorari and the Supreme Court said from "petition for review" to "petition for certiorari" was
that by this change, the court exercising judicial review will not approved.
inquire into the facts, into the evidence, because we will not go
deeply by way of review into the evidence on record but its Noticeably, these references to a "petition for review" and the
authority will be limited to a determination of whether the proposed "petition for certiorari" are nowhere to be found in
administrative agency acted without, or in excess of, the text of Section 14, RA 6770. In fact, it was earlier mentioned
jurisdiction, or committed a grave abuse of discretion. So, I that this provision, particularly its second paragraph, does not
assume that that is the purpose of this amendment, Mr. indicate what specific procedural remedy one should take in
President. assailing a decision or finding of the Ombudsman; it only
reveals that the remedy be taken to this Court based on pure
Senator Angara. The distinguished Gentleman has stated it so questions of law. More so, it was even commented upon during
well. the oral arguments of this case [129] that there was no debate or
clarification made on the current formulation of the second
Senator Gonzales. I just want to put that in the Record. paragraph of Section 14, RA 6770 per the available excerpts of
Senator Angara. It is very well stated, Mr. President. the Senate deliberations. In any case, at least for the above-
cited deliberations, the Court finds no adequate support to
x x x x sustain the Ombudsman's entreaty that the CA had no subject
matter jurisdiction over the main CA-G.R. SP No. 139453
The President.  It is evident that there must be some final petition.
authority to render decisions. Should it be the Ombudsman
or should it be the Supreme Court? On the contrary, it actually makes greater sense to posit that
these deliberations refer to another Ombudsman Act provision,
Senator Angara. As I understand it, under our scheme of namely Section 27, RA 6770. This is because the latter textually
government, Mr. President, it is and has to be the Supreme reflects the approval of Senator Angara's suggested
Court to make the final determination. amendment, i.e., that the Ombudsman's decision or finding
may be assailed in a petition for certiorari to this Court (fourth
The President. Then if that is so, we have to modify Section paragraph), and further, his comment on the conclusive nature
17. of the factual findings of the Ombudsman, if supported by
substantial evidence (third paragraph):
Senator Angara. That is why, Mr. President, some of our
Section 27. Effectivity and Finality of Decisions.— (1) All
Colleagues have made a reservation to introduce an
provisionary orders of the Office of the Ombudsman are
appropriate change during the period of Individual
immediately effective and executory.
Amendments.

A motion for reconsideration of any order, directive or decision

xxxx
of the Office of the Ombudsman must be filed within five (5)
days after receipt of written notice and shall be entertained
The President. All right. Is there any objection to the
only on any of the following grounds:
amendment inserting the word CERTIORARI instead of
"review"? [Silence] Hearing none, the same is approved.[128] (1) New evidence has been discovered which materially affects
the order, directive or decision;
Upon an assiduous scrutiny of these deliberations, the Court is,
(2) Errors of law or irregularities have been committed
however, unconvinced that the provision debated on was
prejudicial to the interest of the movant. The motion for
Section 14, RA 6770, as the Ombudsman invokes. Note that the
reconsideration shall be resolved within three (3) days from
exchange begins with the suggestion of Senator Angara to
filing: Provided, That only one motion for reconsideration shall
delete the word "review" that comes after the phrase "petition
be entertained.
for review" and, in its stead, insert the word "certiorari" so that
the "review or appeal from the decision of the Ombudsman Findings of fact by the Office of the Ombudsman when
would not only be taken on a petition for review, but supported by substantial evidence are conclusive. Any order,
on certiorari" The ensuing exchange between Senators directive or decision imposing the penalty of public censure or
Gonzales and Angara then dwells on the purpose of changing reprimand, suspension of not more than one (1) month's salary
the method of review from one of a petition for review to a
34

shall be final and unappealable. Ombudsman, except the Supreme Court, on pure question
of law."    ;
In all administrative disciplinary cases, orders, directives, or
decisions of the Office of the Ombudsman may be As a general rule, the second paragraph of Section 14, RA
appealed to the Supreme Court by filing a petition 6770 bans the whole range of remedies against issuances of
for certiorari within ten (10) days from receipt of the the Ombudsman, by prohibiting: (a) an appeal against any
written notice of the order, directive or decision or denial decision or finding of the Ombudsman, and (b) "any
of the motion for reconsideration in accordance with Rule application of remedy" (subject to the exception below) against
45 of the Rules of Court. the same. To clarify, the phrase "application for remedy," being
a generally worded provision, and being separated from the
The above rules may be amended or modified by the Office of term "appeal" by the disjunctive "or", [133] refers to any remedy
the ' Ombudsman as the interest of justice may require. (whether taken mainly or provisionally), except an appeal,
(Emphasis and underscoring supplied) following the maxim generalia verba sunt generaliter
intelligenda: general words are to be understood in a general
sense.[134] By the same principle, the word "findings," which is
At first blush, it appears that Section 27, RA 6770 is equally
also separated from the word "decision" by the disjunctive "or",
ambiguous in stating that a "petition for certiorari" should be
would therefore refer to any finding made by the Ombudsman
taken in accordance with Rule 45 of the Rules of Court, as it is
(whether final or provisional), except a decision.
well-known that under the present 1997 Rules of Civil
Procedure, petitions for certiorari are governed by Rule 65 of
The subject provision, however, crafts an exception to the
the said Rules. However, it should be discerned that the
foregoing general rule. While the specific procedural vehicle is
Ombudsman Act was passed way back in 1989 [130] and, hence,
not explicit from its text, it is fairly deducible that the second
before the advent of the 1997 Rules of Civil Procedure. [131] At
paragraph of Section 14, RA 6770 excepts, as the only
that time, the governing 1964 Rules of Court,[132] consistent
allowable remedy against "the decision or findings of the
with Section 27, RA 6770, referred to the appeal taken
Ombudsman," a Rule 45 appeal, for the reason that it is the
thereunder as a petition for certiorari, thus possibly explaining
only remedy taken to the Supreme Court on "pure
the remedy's textual denomination, at least in the provision's
questions of law," whether under the 1964 Rules of Court or
final approved version:
the 1997 Rules of Civil Procedure:
RULE 45
Rule 45, 1964 Rules of Court
Appeal from Court of Appeals to Supreme Court

SECTION 1.  Filing of Petition with Supreme Court. - A party may RULE 45
appeal by certiorari, from a judgment of the Court of Appeals, Appeal from Court of Appeals to Supreme Court
by filing with the Supreme Court a petition for  certiorari,
within fifteen (15) days from notice of judgment or of the
x x x x
denial of his motion for reconsideration filed in due time, and
paying at the same time, to the clerk of said court the
Section 2. Contents of Petition. — The petition shall contain a
corresponding docketing fee. The petition shall not be acted
concise statement of the matters involved, the assignment of
upon without proof of service of a copy thereof to the Court of
errors made in the court below, and the reasons relied on for
Appeals. (Emphasis supplied)
the allowance of the petition, and it should be accompanied
with a true copy of the judgment sought to be reviewed,
B. Construing the second paragraph of together with twelve (12) copies of the record on appeal, if any,
Section 14, RA 6770. and of the petitioner's brief as filed in the Court of Appeals. A
verified statement of the date when notice of judgment and
The Senate deliberations' lack of discussion on the second denial of the motion for reconsideration, if any, were received
paragraph of Section 14, RA 6770 notwithstanding, the other shall accompany the petition.
principles of statutory construction can apply to ascertain the
meaning of the provision. Only questions of law may be raised in the petition and
must be distinctly set forth. If no record on appeal has been
To recount, the second paragraph of Section 14, RA 6770 states filed in the Court of Appeals, the clerk of the Supreme Court,
that "[n]o court shall hear any appeal or application for upon admission of the petition, shall demand from the Court of
remedy against the decision or findings of the
35

Appeals the elevation of the whole record of the case. against final decisions or orders of lower courts, [136] and not
(Emphasis and underscoring supplied) against "findings" of quasi-judicial agencies. As will be later
elaborated upon, Congress cannot interfere with matters of
Rule 45, 1997 Rules of Civil Procedure
procedure; hence, it cannot alter the scope of a Rule 45 appeal
so as to apply to interlocutory "findings" issued by the
Ombudsman. More significantly, by confining the remedy to
RULE 45 a Rule 45 appeal, the provision takes away the remedy
Appeal by Certiorari to the Supreme Court of certiorari, grounded on errors of jurisdiction, in denigration
of the judicial power constitutionally vested in courts. In this
light, the second paragraph of Section 14, RA 6770 also
Section 1. Filing of petition with Supreme Court. - A party
increased this Court's appellate jurisdiction, without a showing,
desiring to appeal by certiorari from a judgment, final order or
however, that it gave its consent to the same. The provision is,
resolution of the Court of Appeals, the Sandiganbayan, the
in fact, very similar to the fourth paragraph of Section 27, RA
Court of Tax Appeals, the Regional Trial Court or other courts,
6770 (as above-cited), which was invalidated in the case
whenever authorized by law, may file with the Supreme Court a
of Fabian v. Desiertoni[137] (Fabian).[138]
verified petition for review on certiorari. The petition may
include an application for a writ of preliminary injunction or
In Fabian, the Court struck down the fourth paragraph of
other provisional remedies and shall raise only questions of
Section 27, RA 6770 as unconstitutional since it had the effect
law, which must be distinctly set forth. The petitioner may
of increasing the appellate jurisdiction of the Court without its
seek the same provisional remedies by verified motion filed in
advice and concurrence in violation of Section 30, Article VI of
the same action or proceeding at any time during its pendency.
the 1987 Constitution.[139] Moreover, this provision was found to
(Emphasis and underscoring supplied)
be inconsistent with Section 1, Rule 45 of the present 1997
Rules of Procedure which, as above-intimated, applies only to a
That the remedy excepted in the second paragraph of Section review of "judgments or final orders of the Court of Appeals,
14, RA 6770 could be a petition for certiorari under Rule 65 of the Sandiganbayan, the Court of Tax Appeals, the Regional Trial
the 1964 Rules of Court or the 1997 Rules of Procedure is a Court, or other courts authorized by law;" and not of quasi-
suggestion that defies traditional norms of procedure. It is judicial agencies, such as the Office of the Ombudsman, the
basic procedural law that a Rule 65 petition is based on errors remedy now being a Rule 43 appeal to the Court of
of jurisdiction, and not errors of judgment to which the Appeals. In Ruivivar v. Office of the Ombudsman,[140] the Court's
classifications of (a) questions of fact, (b) questions of law, or (c) ratiocinations and ruling in Fabian  were recounted:
questions of mixed fact and law, relate to. In fact, there is no
The case of Fabian v. Desierto arose from the doubt created in
procedural rule, whether in the old or new Rules, which
the application of Section 27 of R.A. No. 6770 (The
grounds a Rule 65 petition on pure questions of law. Indeed, it
Ombudsman's Act) and Section 7, Rule III of A.O. No. 7 (Rules
is also a statutory construction principle that the lawmaking
of Procedure of the Office of the Ombudsman) on the
body cannot be said to have intended the establishment of
availability of appeal before the Supreme Court to assail a
conflicting and hostile systems on the same subject. Such a
decision or order of the Ombudsman in administrative
result would render legislation a useless and idle ceremony,
cases. In Fabian, we invalidated Section 27 of R.A. No. 6770
and subject the laws to uncertainty and unintelligibility.
[135] (and Section 7, Rule III of A.O. No. 7 and the other rules
 There should then be no confusion that the second
implementing the Act) insofar as it provided for appeal
paragraph of Section 14, RA 6770 refers to a Rule 45 appeal to
by certiorari under Rule 45 from the decisions or orders of
this Court, and no other. In sum, the appropriate construction
the Ombudsman in administrative cases. We held that
of this Ombudsman Act provision is that all remedies against
Section 27 of R.A. No. 6770 had the effect, not only of
issuances of the Office of the Ombudsman are prohibited,
increasing the appellate jurisdiction of this Court without
except the above-stated Rule 45 remedy to the Court on pure
its advice and concurrence in violation of Section 30,
questions of law.
Article VI of the Constitution; it was also inconsistent with
Section 1, Rule 45 of the Rules of Court which provides that
C. Validity of the second paragraph of
a petition for review on certiorari shall apply only to a
Section 14, RA 6770.
review of "judgments or final orders of the Court of
Appeals, the Sandiganbayan, the Court of Tax Appeals, the
Of course, the second paragraph of Section 14, RA 6770's
Regional Trial Court, or other courts authorized by
extremely limited restriction on remedies is inappropriate since
law." We pointedly said:
a Rule 45 appeal -which is within the sphere of the rules of
procedure promulgated by this Court - can only be taken
36

As a consequence of our ratiocination that Section 27 of jurisdiction, it necessarily follows that it may inquire into the
Republic Act No. 6770 should be struck down as constitutionality of the statute.
unconstitutional, and in line with the regulatory philosophy
adopted in appeals from quasi-judicial agencies in the 1997 Constitutional questions, not raised in the regular and
Revised Rules of Civil Procedure, appeals from decisions of the orderly procedure in the trial are ordinarily rejected unless
Office of the Ombudsman in administrative disciplinary cases the jurisdiction of the court below or that of the appellate
should be taken to the CA under the provisions of Rule 43. court is involved in which case it may be raised at any time
[141]
 (Emphasis supplied) 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
Since the second paragraph of Section 14, RA 6770 limits the
right to determine its own jurisdiction in any proceeding.
remedy against "decision or findings" of the Ombudsman to a [147]
 (Emphasis supplied)
Rule 45 appeal and thus - similar to the fourth paragraph of
Section 27, RA 6770[142] - attempts to effectively increase the
Supreme Court's appellate jurisdiction without its advice and D. Consequence of invalidity.
concurrence,[143] it is therefore concluded that the former
provision is also unconstitutional and perforce, invalid. Contrary In this case, the Rule 65 petition for certiorari  in CA-G.R. SP No.
to the Ombudsman's posturing,[144] Fabian should squarely 139453 was filed by Binay, Jr. before the CA in order to nullify
apply since the above-stated Ombudsman Act provisions are in the preventive suspension order issued by the Ombudsman, an
part materia  in that they "cover the same specific or particular interlocutory order,[148] hence, unappealable.[149]
subject matter,"[145] that is, the manner of judicial review over
issuances of the Ombudsman. In several cases decided after Fabian, the Court has ruled that
Rule 65 petitions for certiorari against unappelable
Note that since the second paragraph of Section 14, RA 6770 is issuances[150] of the Ombudsman should be filed before the CA,
clearly determinative of the existence of the CA's subject and not directly before this Court:
matter jurisdiction over the main CA-G.R. SP No. 139453
petition, including all subsequent proceedings relative thereto, In Office of the Ombudsman v. Capulong [151] (March 12, 2014),
as the Ombudsman herself has developed, the Court deems it wherein a preventive suspension order issued by the Office of
proper to resolve this issue ex mero motu  (on its own the Ombudsman was - similar to this case - assailed through a
motion[146]). This procedure, as was similarly adopted Rule 65 petition for certiorari filed by the public officer before
in  Fabian, finds its bearings in settled case law: the CA, the Court held that "[t]here being a finding of grave
abuse of discretion on the part of the Ombudsman, it was
The conventional rule, however, is that a challenge on
certainly imperative for the CA to grant incidental reliefs, as
constitutional grounds must be raised by a party to the case,
sanctioned by Section 1 of Rule 65." [152]
neither of whom did so in this case, but that is not an inflexible
rule, as we shall explain.
In Dagan v. Office of the Ombudsman [153] (November 19, 2013),
involving a Rule 65 petition for certiorari assailing a final and
Since the constitution is intended for the observance of the
unappealable order of the Office of the Ombudsman in an
judiciary and other departments of the government and the
administrative case, the Court remarked that "petitioner
judges are sworn to support its provisions, the courts are not at
employed the correct mode of review in this case, i.e., a special
liberty to overlook or disregard its commands or countenance
civil action for certiorari before the Court of Appeals."[154] In this
evasions thereof. When it is clear , that a statute transgresses
relation, it stated that while "a special civil action
the authority vested in a legislative body, it is the duty of the
for Certiorari is within the concurrent original jurisdiction of the
courts to declare that the constitution, and not the statute,
Supreme Court and the Court of Appeals, such petition should
governs in a case before them for judgment.
be initially filed with the Court of Appeals in observance of the
doctrine of hierarchy of courts." Further, the Court
Thus, while courts will not ordinarily pass upon constitutional
upheld  Barata v. Abalos, Jr.[155] (June 6, 2001), wherein it was
questions which are not raised in the pleadings, the rule has
ruled that the remedy against final and unappealable orders of
been recognized to admit of certain exceptions. It does not
the Office of the Ombudsman in an administrative case was a
preclude a court from inquiring into its own jurisdiction or
Rule 65 petition to the CA. The same verdict was reached
compel it to enter a judgment that it lacks jurisdiction to enter.
in Ruivivar[156] (September 16, 2008).
If a statute on which a court's jurisdiction in a proceeding
depends is unconstitutional, the court has no jurisdiction in the
Thus, with the unconstitutionality of the second paragraph of
proceeding, and since it may determine whether or not it has
Section 14, RA 6770, the Court, consistent with existing
37

jurisprudence, concludes that the CA has subject matter tasked principally to investigate, on complaint or motu proprio,
jurisdiction over the main CA-G.R. SP No. 139453 petition. That any administrative act of any administrative agency, including
being said, the Court now examines the objections of the any government-owned or controlled corporation. When the
Ombudsman, this time against the CA's authority to issue the Office of the Tanodbayan was reorganized in 1979, the powers
assailed TRO and WPI against the implementation of the previously vested in the Special Prosecutor were transferred to
preventive suspension order, incidental to that main case. the Tanodbayan himself. He was given the exclusive authority
to conduct preliminary investigation of all cases cognizable by
III.
the Sandiganbayan, file the corresponding information, and
control the prosecution of these cases.
From the inception of these proceedings, the Ombudsman has
been adamant that the CA has no jurisdiction to issue any With the advent of the 1987 Constitution, a new Office of the
provisional injunctive writ against her office to enjoin its Ombudsman was created by constitutional fiat. Unlike in the
preventive suspension orders. As basis, she invokes the first 1973 Constitution, its independence was expressly and
paragraph of Section 14, RA 6770 in conjunction with her constitutionally guaranteed. Its objectives are to enforce the
office's independence under the 1987 Constitution. She state policy in Section 27, Article II and the standard of
advances the idea that "[i]n order to further ensure [her accountability in public service under Section 1, Article XI of the
office's] independence, [RA 6770] likewise insulated it from 1987 Constitution. These provisions read:
judicial intervention,"[157] particularly, "from injunctive reliefs
Section 27. The State shall maintain honesty and integrity in the
traditionally obtainable from the courts," [158] claiming that said
public service and take positive and effective measures against
writs may work "just as effectively as direct harassment or
graft and corruption.
political pressure would."[159]
Section 1. Public office is a public trust. Public officers and
A. The concept of Ombudsman independence.
employees must, at all times, be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
Section 5, Article XI of the 1987 Constitution guarantees the
efficiency; act with patriotism and justice, and lead modest
independence of the Office of the Ombudsman:
lives.[161] (Emphasis supplied)
Section 5. There is hereby created the independent Office of
the Ombudsman, composed of the Ombudsman to be known
More significantly, Gonzales III  explained the broad scope of
as Tanodbayan, one overall Deputy and at least one Deputy
the office's mandate, and in correlation, the impetus behind its
each for Luzon, Visayas[,] and Mindanao. A separate Deputy for
independence:
the military establishment may likewise be appointed.
(Emphasis supplied) Under Section 12, Article XI of the 1987 Constitution, the Office
of the Ombudsman is envisioned to be the "protector of the
people" against the inept, abusive, and corrupt in the
In  Gonzales III v. Office of the President [160] (Gonzales III), the
Government, to function essentially as a complaints and action
Court traced the historical underpinnings of the Office of the
bureau. This constitutional vision of a Philippine Ombudsman
Ombudsman:
practically intends to make the Ombudsman an authority to
Prior to the 1973 Constitution, past presidents established directly check and guard against the ills, abuses and excesses ,
several Ombudsman-like agencies to serve as the people's of the bureaucracy. Pursuant to Section 13 (8), Article XI of the
medium for airing grievances and for direct redress against 1987 Constitution, Congress enacted RA No. 6770 to enable it
abuses and misconduct in the government. Ultimately, to further realize the vision of the Constitution. Section 21 of
however, these agencies failed to fully realize their objective for RA No. 6770 provides:
lack of the political independence necessary for the effective
Section 21. Official Subject to Disciplinary Authority; Exceptions.
performance of their function as government critic.
- The Office of the Ombudsman shall have disciplinary
authority over all elective and appointive officials of the
It was under the 1973 Constitution that the Office of the
Government and its subdivisions, instrumentalities, and
Ombudsman became a constitutionally-mandated office to
agencies, including Members of the Cabinet, local government,
give it political independence and adequate powers to enforce
government-owned or controlled corporations and their
its mandate. Pursuant to the ( 1973 Constitution, President
subsidiaries, except over officials who may be removed only by
Ferdinand Marcos enacted Presidential Decree (PD) No. 1487,
impeachment or over Members of Congress, and the Judiciary.
as amended by PD No. 1607 and PD No. 1630, creating the
Office of the Ombudsman to be known as Tanodbayan. It was
38

As the Ombudsman is expected to be an "activist watchman," Commissions' need for independence. In the deliberations of
the < Court has upheld its actions, although not squarely the 1973 Constitution, the delegates amended the 1935
falling under the broad powers granted [to] it by the Constitution by providing for a constitutionally-created Civil
Constitution and by RA No. 6770, if these actions are Service Commission, instead of one created by law, on the
reasonably in line with its official function and consistent with premise that the effectivity of this body is dependent on its
the law and the Constitution. freedom from the tentacles of politics. In a similar manner,
the deliberations of the 1987 Constitution on the Commission
The Ombudsman's broad investigative and disciplinary powers on Audit highlighted the developments in the past
include all acts of malfeasance, misfeasance, and nonfeasance Constitutions geared towards insulating the Commission on
of all public officials, including Members of the Cabinet and key Audit from political pressure."[165]
Executive officers, during their tenure. To support these broad
powers, the Constitution saw it fit to insulate the Office of At bottom, the decisive ruling in Gonzales III, however, was that
the Ombudsman from the pressures and influence of the independence of the Office of the Ombudsman, as well as
officialdom and partisan politics and from fear of external that of the foregoing independent bodies, meant freedom
reprisal by making it an "independent" office, x x x. from control or supervision of the Executive Department:

[T]he independent constitutional commissions have been

x x x x
consistently intended by the framers to be independent from
executive control or supervision or any form of political
Given the scope of its disciplinary authority, the Office of the
influence. At least insofar as these bodies are concerned,
Ombudsman is a very powerful government constitutional
jurisprudence is not scarce on how the "independence" granted
agency that is considered "a notch above other grievance-
to these bodies prevents presidential interference.
handling investigative bodies." It has powers, both
constitutional and statutory, that are commensurate , with its
In  Brillantes, Jr. v. Yorac (G.R. No. 93867, December 18, 1990,
daunting task of enforcing accountability of public officers.
[162] 192 SCRA 358), we emphasized that the Constitutional
 (Emphasis and underscoring supplied)
Commissions, which have been characterized under the
Constitution as "independent," are not under the control of
Gonzales III is the first case which grappled with the meaning of the President, even if they discharge functions that are
the Ombudsman's independence vis-a-vis the independence of executive in nature. The Court declared as unconstitutional the
the other constitutional bodies. Pertinently, the Court observed: President's act of temporarily appointing the respondent in
that case as Acting Chairman of the [Commission on Elections]
(1) "[T]he independence enjoyed by the Office of the "however well-meaning" it might have been.
Ombudsman and by the Constitutional Commissions shares
certain characteristics - they do not owe their existence to In Bautista v. Senator Salonga (254 Phil. 156, 179 [1989]), the
any act of Congress, but are created by the Constitution Court categorically stated that the tenure of the commissioners
itself; additionally, they all enjoy fiscal autonomy. In general of the independent Commission on Human Rights could not
terms, the framers of the Constitution intended that these be placed under the discretionary power of the President.
'independent' bodies be insulated from political
pressure to the extent that the absence of 'independence' x x x x
would result in the impairment of their core functions" [163];
The kind of independence enjoyed by the Office of the
(2) "[T]he Judiciary, the Constitutional Commissions, and the Ombudsman certainly cannot be inferior - but is similar in
Ombudsman must have the independence and flexibility degree and kind - to the independence similarly guaranteed by
needed in the discharge of their constitutional duties. The the Constitution to the Constitutional Commissions since all
imposition of restrictions and constraints on the manner the these offices fill the political interstices of a republican
independent constitutional offices allocate and utilize the democracy that are crucial to its existence and proper
funds appropriated for their operations is anathema to functioning.[166] (Emphases and underscoring supplied)
fiscal autonomy and violative not only [of] the express
mandate of the Constitution, but especially as regards the
Thus, in Gonzales III, the Court declared Section 8 (2), RA 6770,
Supreme Court, of the independence and separation of powers
which provides that "[a] Deputy or the Special Prosecutor, may
upon which the entire fabric of our constitutional system is
be removed from office by the President for any of the grounds
based";[164] and
provided for the removal of the Ombudsman, and after due
process," partially unconstitutional insofar as it subjected the
(3) "[T]he constitutional deliberations explain the Constitutional
39

Deputy Ombudsman to the disciplinary authority of the from extending provisional injunctive relief to delay any
President for violating the principle of independence. investigation conducted by her office. Despite the usage of the
Meanwhile, the validity of Section 8 (2), RA 6770 was general phrase "[n]o writ of injunction shall be issued by any
maintained insofar as the Office of the Special Prosecutor was court," the Ombudsman herself concedes that the prohibition
concerned since said office was not considered to be does not cover the Supreme Court. [170] As support, she cites the
constitutionally within the Office of the Ombudsman and is, following Senate deliberations:
hence, not entitled to the independence the latter enjoys under
Senator [Ernesto M.] Maceda. Mr. President, I do not know if
the Constitution.[167]
an amendment is necessary. I would just like to inquire for
the record whether below the Supreme Court, it is
As may be deduced from the various discourses in Gonzales III,
understood that there is no injunction policy against the
the concept of Ombudsman's independence covers three (3)
Ombudsman by lower courts. Or, is it necessary to have a
things:
special paragraph for that?
First: creation by the Constitution, which means that the
Senator Angara. Well, there is no provision here, Mr. President,
office cannot be abolished, nor its constitutionally specified
that will prevent an injunction against the Ombudsman being
functions and privileges, be removed, altered, or modified by
issued.
law, unless the Constitution itself allows, or an amendment
thereto is made;
Senator Maceda. In which case, I think that the intention,
this being one of the highest constitutional bodies, is to
Second: fiscal autonomy, which means that the office "may
subject this only to certiorari to the Supreme Court. I think
not be obstructed from [its] freedom to use or dispose of [its]
an injunction from the Supreme Court is, of course, in order
funds for purposes germane to [its] functions; [168] hence, its
but no lower courts should be allowed to interfere.  We had
budget cannot be strategically decreased by officials of the
a very bad experience with even, let us say, the Forestry Code
political branches of government so as to impair said functions;
where no injunction is supposed to be issued against the
and
Department of Natural Resources.  Injunctions are issued right
and left by RTC judges all over the country.
Third: insulation from executive supervision and control,
which means that those within the ranks of the office can only
The President. Why do we not make an express provision to
be disciplined by an internal authority.
that effect?
Evidently, all three aspects of independence intend to protect
Senator Angara. We would welcome that, Mr. President.
the Office of the Ombudsman from political harassment and
pressure, so as to free it from the "insidious tentacles of
The President. No [writs of injunction] from the trial courts
politics."[169]
other than the Supreme Court.
That being the case, the concept of Ombudsman independence
Senator Maceda. I so move, Mr. President, for that
cannot be invoked as basis to insulate the Ombudsman from
amendment.
judicial power constitutionally vested unto the courts. Courts
are apolitical bodies, which are ordained to act as impartial
The President. Is there any objection? [Silence] Hearing
tribunals and apply even justice to all. Hence, the
none, the same is approved.[171]
Ombudsman's notion that it can be exempt from an incident of
judicial power - that is, a provisional writ of injunction against a
preventive suspension order - clearly strays from the concept's Further, she acknowledges that by virtue of Sections 1 and 5
rationale of insulating the office from political harassment or (1), Article VIII of the 1987 Constitution, acts of the
pressure. Ombudsman, including interlocutory orders, are subject to the
Supreme Court's power of judicial review As a corollary, the
B. The first paragraph of Section 14, RA Supreme Court may issue ancillary mjunctive writs or
6770 in light of the powers of Congress and the provisional remedies in the exercise of its power of judicial
Court under the 1987 Constitution. review over matters pertaining to ongoing investigations by
the Office of the Ombudsman. Respecting the CA, however, the
The Ombudsman's erroneous abstraction of her office's Ombudsman begs to differ.[172]
independence notwithstanding, it remains that the first
paragraph of Section 14, RA 6770 textually prohibits courts With these submissions, it is therefore apt to examine the
40

validity of the first paragraph of Section 14, RA 6770 insofar as define, prescribe, and apportion the jurisdiction of all
it prohibits all courts, except this Court, from issuing provisional courts, except that it may not deprive the Supreme Court
writs of injunction to enjoin an Ombudsman investigation. That of its jurisdiction over cases enumerated in Section 5 [186] of
the constitutionality of this provision is the lis mota of this case the same Article:
has not been seriously disputed. In fact, the issue anent its
Section 2. The Congress shall have the power to define,
constitutionality was properly raised and presented during the
prescribe, ' and apportion the jurisdiction of the various courts
course of these proceedings. [173] More importantly, its
but may not deprive the Supreme Court of its jurisdiction over
resolution is clearly necessary to the complete disposition of
cases enumerated in Section 5 hereof.
this case.[174]

xxxx
In the enduring words of Justice Laurel in Angara v. The
Electoral Commission (Angara),[175] the "Constitution has
blocked out with deft strokes and in bold lines, allotment of Jurisdiction, as hereinabove used, more accurately pertains to
power to the executive, the legislative[,] and the judicial jurisdiction over the subject matter of an action. In The Diocese
departments of the government."[176] The constitutional of Bacolod v. Commission on Elections,[187] subject matter
demarcation of the three fundamental powers of government jurisdiction was defined as "the authority 'to hear and
is more commonly known as the principle of separation of determine cases of the general class to which the
powers. In the landmark case of Belgica v. Ochoa, Jr. (Belgica), proceedings in question belong and is conferred by the
[177]
 the Court held that "there is a violation of the separation of sovereign authority which organizes the court and defines
powers principle when one branch of government unduly its powers.'"
encroaches on the domain of another." [178] In particular, "there
is a violation of the principle when there is impermissible (a) Among others, Congress defined, prescribed, and apportioned
interference with and/or (b) assumption of another the subject matter jurisdiction of this Court (subject to the
department's functions."[179] aforementioned constitutional limitations), the Court of
Appeals, and the trial courts, through the passage of BP 129, as
Under Section 1, Article VIII of the 1987 Constitution, judicial amended.
power is allocated to the Supreme Court and all such lower
courts: In this case, the basis for the CA's subject matter
jurisdiction over Binay, Jr.'s main petition for certiorari in CA-
Section 1. The judicial power shall be vested in one Supreme
G.R. SP No. 139453 is Section 9(1), Chapter I of BP 129, as
Court and in such lower courts as may be established by law.
amended:
Judicial power includes the duty of the courts of justice to Section 9. Jurisdiction. - The Court of Appeals shall exercise:
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not 1. Original jurisdiction to issue writs of mandamus,
there has been a grave abuse of discretion amounting to lack prohibition, certiorari, habeas corpus, and quo
or excess of jurisdiction on the part of any branch or warranto, and auxiliary writs or processes, whether or
instrumentality of the Government. not in aid of its appellate jurisdiction[.]

This Court is the only court established by the Note that the CA's certiorari jurisdiction, as above-stated, is not
Constitution, while all other lower courts may be established only original but also concurrent with the Regional Trial
by laws passed by Congress.  Thus, through the passage of Courts (under Section 21 (1), Chapter II of BP 129), and the
Batas Pambansa Bilang (BP) 129,[180] known as "The Judiciary Supreme Court (under Section 5, Article VIII of the 1987
Reorganization Act of 1980," the Court of Appeals, [181] the Philippine Constitution). In view of the concurrence of these
Regional Trial Courts,[182] and the Metropolitan Trial Courts, courts' jurisdiction over petitions for certiorari, the doctrine of
Municipal Trial Courts, and Municipal Circuit Trial hierarchy of courts should be followed. In People v. Cuaresma,
[188]
Courts[183] were established. Later, through the passage of RA  the doctrine was explained as follows:
1125,[184] and Presidential Decree No. (PD) 1486,[185] the Court of
[T]his concurrence of jurisdiction is not x x x to be taken as
Tax Appeals, and the Sandiganbayan were respectively
according to parties seeking any of the writs an absolute,
established.
unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all
In addition to the authority to establish lower courts, Section
a hierarchy of courts. That hierarchy is determinative of the
2, Article VIII of the 1987 Constitution empowers Congress to
venue of appeals, and should also serve as a general
41

determinant of the appropriate forum for petitions for the alter or change that power or authority; it simply directs
extraordinary writs. A becoming regard for that judicial the manner in which it shall be fully and justly exercised. 
hierarchy most certainly indicates that petitions for the To be sure, in certain cases, if that power is not exercised in
issuance of extraordinary writs against first level ("inferior") conformity with the provisions of the procedural law, purely,
courts should be filed with the Regional Trial Court, and those the court attempting to exercise it loses the power to exercise
against the latter, with the Court of Appeals. [189] it legally. This does not mean that it loses jurisdiction of the
subject matter."[194]

When a court has subject matter jurisdiction over a particular

While the power to define, prescribe, and apportion the
case, as conferred unto it by law, said court may then exercise
jurisdiction of the various courts is, by constitutional design,
its jurisdiction acquired over that case, which is called judicial
vested unto Congress, the power to promulgate rules
power.
concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in
Judicial power, as vested in the Supreme Court and all other
all courts belongs exclusively to this Court. Section 5 (5),
courts established by law, has been defined as the "totality of
Article VIII of the 1987 Constitution reads:
powers a court exercises when it assumes jurisdiction and
hears and decides a case."[190] Under Section 1, Article VIII of Section 5. The Supreme Court shall have the following
the 1987 Constitution, it includes "the duty of the courts of powers:
justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine x x x x
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of (5) Promulgate rules concerning the protection and
any branch or instrumentality of the Government." enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice of
In Oposa v. Factoran, Jr.[191] the Court explained the expanded law, the Integrated Bar, and legal assistance to the
scope of judicial power under the 1987 Constitution: underprivileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall
The first part of the authority represents the traditional concept
be uniform for all courts of the same grade, and shall not
of judicial power, involving the settlement of conflicting rights
diminish, increase, or modify substantive rights. Rules of
as conferred by law. The second part of the authority
procedure of special courts and quasi-judicial bodies shall
represents a broadening of f judicial power to enable the
remain effective unless disapproved by the Supreme Court.
courts of justice to review what was before forbidden territory,
(Emphases and underscoring supplied)
to wit, the discretion of the political departments of the
government.
In Echegaray v. Secretary of Justice [195] (Echegaray), the Court
As worded, the new provision vests in the judiciary, and traced the evolution of its rule-making authority, which, under
particularly the Supreme Court, the power to rule upon even the 1935[196] and 1973 Constitutions,[197] had been priorly
the wisdom of the decisions of the executive and the subjected to a power-sharing scheme with Congress. [198] As it
legislature and to declare their acts invalid for lack or excess of now stands, the 1987 Constitution textually altered the old
jurisdiction because they are tainted with grave abuse of provisions by deleting the concurrent power of Congress to
discretion. The catch, of course, is the meaning of "grave abuse amend the rules, thus solidifying in one body the Court's
of discretion," which is a very elastic phrase that can expand or rule-making powers, in line with the Framers' vision of
contract according to the disposition of the judiciary. [192] institutionalizing a "[s]tronger and more independent
judiciary."[199]

Judicial power is never exercised in a vacuum. A

The records of the deliberations of the Constitutional
court's exercise of the jurisdiction it has acquired over a
Commission would show[200] that the Framers debated on
particular case conforms to the limits and parameters
whether or not the Court's rule-making powers should be
of the rules of procedure duly promulgated by this Court.
shared with Congress. There was an initial suggestion to insert
In other words, procedure is the framework within which
the sentence "The National Assembly may repeal, alter, or
judicial power is exercised. In Manila Railroad Co. v. Attorney-
supplement the said rules with the advice and concurrence of
General,[193] the Court elucidated that "[t]he power or authority
the Supreme Court", right after the phrase "Promulgate rules
of the court over the subject matter existed and was fixed
concerning the protection and enforcement of constitutional
before procedure in a given cause began. Procedure does not
rights, pleading, practice, and procedure in all courts, the
42

admission to the practice of law, the integrated bar, and legal can be heard. They are usually granted when it is made to
assistance to the underprivileged" in the enumeration of appear that there is a substantial controversy between the
powers of the Supreme Court. Later, Commissioner Felicitas S. parties and one of them is committing an act or threatening
Aquino proposed to delete the former sentence and, instead, the immediate commission of an act that will cause irreparable
after the word "[underprivileged," place a comma (,) to be injury or destroy the status quo of the controversy before a full
followed by "the phrase with the concurrence of the National hearing can be had on the merits of the case. In other words,
Assembly." Eventually, a compromise formulation was reached they are preservative remedies for the protection of substantive
wherein (a) the Committee members agreed to Commissioner rights or interests, and, hence, not a cause of action in itself,
Aquino's proposal to delete the phrase "the National Assembly but merely adjunct to a main suit. [204] In a sense, they are
may repeal, alter, or supplement the said rules with the advice regulatory processes meant to prevent a case from being
and concurrence of the Supreme Court" and (b) in turn, mooted by the interim acts of the parties.
Commissioner Aquino agreed to withdraw his proposal to add
"the phrase with the concurrence of the National Rule 58 of the 1997 Rules of Civil Procedure generally governs
Assembly." The changes were approved, thereby leading to the provisional remedies of a TRO and a WPI. A preliminary
the present lack of textual reference to any form of injunction is defined under Section 1,[205] Rule 58, while Section
Congressional participation in Section 5 (5), Article 3[206] of the same Rule enumerates the grounds for its issuance.
VIII, supra. The prevailing consideration was that "both Meanwhile, under Section 5[207] thereof, a TRO may be issued as
bodies, the Supreme Court and the Legislature, have their a precursor to the issuance of a writ of preliminary injunction
inherent powers."[201] under certain procedural parameters.

Thus, as it now stands, Congress has no authority to repeal, The power of a court to issue these provisional injunctive reliefs
alter, or supplement rules concerning pleading, practice, and coincides with its inherent power to issue all auxiliary writs,
procedure. As pronounced in Echegaray: processes, and other means necessary to carry its acquired
jurisdiction into effect under Section 6, Rule 135 of the
The rule making power of this Court was expanded. This Court
Rules of Court which reads:
for the first time was given the power to promulgate rules
concerning the protection and enforcement of constitutional Section 6. Means to carry jurisdiction into effect. - When by law
rights. The Court was also r granted for the first time the power jurisdiction is conferred on a court or judicial officer, all
to disapprove rules of procedure of special courts and quasi- auxiliary writs, f processes and other means necessary to carry
judicial bodies. But most importantly, the 1987 Constitution it into effect may be employed by such court or officer; and if
took away the power of Congress to repeal, alter, or the procedure to be followed in the exercise of such
supplement rules concerning pleading, practice and jurisdiction is not specifically pointed out by law [208] or by these
procedure. In fine, the power to promulgate rules of rules, any suitable process or mode of proceeding may be
pleading, practice and procedure is no longer shared by adopted which appears comfortable to the spirit of the said law
this Court with Congress, more so with the Executive. or rules.
[202]
 (Emphasis and underscoring supplied)

In City of Manila v. Grecia-Cuerdo, [209] which is a case involving

Under its rule-making authority, the Court has periodically "[t]he supervisory power or jurisdiction of the [Court of Tax
passed various rules of procedure, among others, the current Appeals] to issue a writ of certiorari  in aid of its appellate
1997 Rules of Civil Procedure. Identifying the appropriate jurisdiction"[210] over "decisions, orders or resolutions of the
procedural remedies needed for the reasonable exercise of RTCs in local tax cases originally decided or resolved by them
every court's judicial power, the provisional remedies of in the exercise of their original or appellate jurisdiction," [211] the
temporary restraining orders and writs of preliminary Court ruled that said power "should coexist with, and be a
injunction were thus provided. complement to, its appellate jurisdiction to review, by appeal,
the final orders and decisions of the RTC, in order to have
A temporary restraining order and a writ of preliminary complete supervision over the acts of the latter:" [212]
injunction both constitute temporary measures availed of
A grant of appellate jurisdiction implies that there is included in
during the pendency of the action. They are, by nature,
it the power necessary to exercise it effectively, to make all
ancillary because they are mere incidents in and are dependent
orders that ; will preserve the subject of the action, and to
upon the result of the main action. It is well-settled that
give effect to the final determination of the appeal. It carries
the sole object of a temporary restraining order or a writ of
with it the power to protect that jurisdiction and to make the
preliminary injunction, whether prohibitory or mandatory,
decisions of the court thereunder effective. The court, in aid of
is to preserve the status quo[203] until the merits of the case
43

its appellate jurisdiction, has authority to control all auxiliary beverage license pending appeal, [218] the Supreme Court of
and incidental matters necessary to the efficient and proper Kentucky held:
exercise of that jurisdiction. For this purpose, it may, when
[T]he Court is x x x vested with certain "inherent" powers to
necessary, prohibit or restrain the performance of any act
do that which is reasonably necessary for the
which might interfere with the proper exercise of its rightful
administration of justice within the scope of their
jurisdiction in cases pending before it. [213] (Emphasis supplied)
jurisdiction. x x x [W]e said while considering the rule making
power and the judicial power to be one and the same that
In this light, the Court expounded on the inherent powers of a ". . . the grant of judicial power [rule making power] to the
court endowed with subject matter jurisdiction: courts by the constitution carries with it, as a necessary
incident, the right to make that power effective in the
[A] court which is endowed with a particular jurisdiction should
administration of justice." (Emphases supplied)
have powers which are necessary to enable it to act effectively
within such jurisdiction. These should be regarded as powers
which are inherent in its jurisdiction and the court must Significantly, Smothers characterized a court's issuance of
possess them in order to enforce its rules of practice and to provisional injunctive relief as an exercise of the court's
suppress any abuses of its process and to t defeat any inherent power, and to this end, stated that any attempt on the
attempted thwarting of such process. part of Congress to interfere with the same was constitutionally
impermissible:
x x x x 
It is a result of this foregoing line of thinking that we now
adopt the language framework of 28 Am.Jur.2d, Injunctions,
Indeed, courts possess certain inherent powers which may be
Section 15, and once and for all make clear that a court, once
said to be implied from a general grant of jurisdiction, in
having obtained jurisdiction of a cause of action, has, as an
addition to those expressly conferred on them. These inherent
incidental to its constitutional grant of power, inherent power
powers are such powers as are necessary for the ordinary
to do all things reasonably necessary to the administration of
and efficient exercise of jurisdiction; or are essential to the
justice in the case before it. In the exercise of this power, a
existence, dignity and functions of the courts, as well as to
court, when necessary in order to protect or preserve the
the due administration of justice; or are directly
subject matter of the litigation, to protect its jurisdiction
appropriate, convenient and suitable to the execution of
and to make its judgment effective, may grant or issue a
their granted powers; and include the power to maintain
temporary injunction in aid of or ancillary to the principal
the court's jurisdiction and render it effective in behalf of
action.
the litigants.[214] (Emphases and underscoring supplied)

The control over this inherent judicial power, in this

Broadly speaking, the inherent powers of the courts resonates particular instance the injunction, is exclusively within the
the long-entrenched constitutional principle, articulated way constitutional realm of the courts. As such, it is not within
back in the 1936 case of Angara, that "where a general power is the purview of the legislature to grant or deny the power
conferred or duty enjoined, every particular power necessary nor is it within the purview of the legislature to shape or
for the exercise of the one or the performance of the other is fashion circumstances under which this inherently judicial
also conferred."[215] power may be or may not be granted or denied.

In the United States, the "inherent powers doctrine refers to This Court has historically recognized constitutional limitations
the principle, by which the courts deal with diverse matters upon the power of the legislature to interfere with or to inhibit
over which they are thought to have intrinsic authority like the performance of constitutionally granted and inherently
procedural [rule-making] and general judicial housekeeping. To provided judicial functions, x x x
justify the invocation or exercise of inherent powers, a court
must show that the powers are reasonably necessary to x x x x
achieve the specific purpose for which the exercise is
sought. Inherent powers enable the judiciary to accomplish We reiterate our previously adopted language, ". . . a court,
its constitutionally mandated functions."[216] once having obtained jurisdiction of a cause of action, has, as
incidental to its general jurisdiction, inherent power to do all
In  Smothers v. Lewis[217] (Smothers), a case involving the things reasonably necessary f to the administration of justice in
constitutionality of a statute which prohibited courts from the case before it. . ." This includes the inherent power to
enjoining the enforcement of a revocation order of an alcohol issue injunctions. (Emphases supplied)
44

exclusive and "[o]ne of the safeguards of [its] institutional

Smothers  also pointed out that the legislature's authority to independence."[226]
provide a right to appeal in the statute does not necessarily
mean that it could control the appellate judicial proceeding: That Congress has been vested with the authority to define,
prescribe, and apportion the jurisdiction of the various courts
However, the fact that the legislature statutorily provided for
under Section 2, Article VIII supra, as well as to create statutory
this appeal does not give it the right to encroach upon the
courts under Section 1, Article VIII supra, does not result in an
constitutionally granted powers of the judiciary. Once the
abnegation of the Court's own power to promulgate rules of
administrative action has ended and the right to appeal
pleading, practice, and procedure under Section 5 (5), Article
arises the legislature is void of any right to control a
VIII supra. Albeit operatively interrelated, these powers are
subsequent appellate judicial proceeding. The judicial rules
nonetheless institutionally separate and distinct, each to be
have come into play and have preempted the field.
[219]
preserved under its own sphere of authority. When Congress
 (Emphasis supplied)
creates a court and delimits its jurisdiction, the procedure
for which its jurisdiction is exercised is fixed by the Court
With these considerations in mind, the Court rules that when through the rules it promulgates. The first paragraph of
Congress passed the first paragraph of Section 14, RA 6770 Section 14, RA 6770 is not a jurisdiction-vesting provision, as
and, in so doing, took away from the courts their power to the Ombudsman misconceives,[227] because it does not define,
issue a TRO and/or WPI to enjoin an investigation conducted prescribe, and apportion the subject matter jurisdiction of
by the Ombudsman, it encroached upon this Court's courts to act on certiorari cases; the certiorari jurisdiction of
constitutional rule-making authority. Clearly, these issuances, courts, particularly the CA, stands under the relevant sections
which are, by nature, provisional reliefs and auxiliary writs of BP 129 which were not shown to have been repealed.
created under the provisions of the Rules of Court, are matters Instead, through this provision, Congress interfered with a
of procedure which belong exclusively within the province of provisional remedy that was created by this Court under its
this Court. Rule 58 of the Rules of Court did not create, define, duly promulgated rules of procedure, which utility is both
and regulate a right but merely prescribed the means of integral and inherent to every court's exercise of judicial
implementing an existing right[220] since it only provided for power. Without the Court's consent to the proscription, as
temporary reliefs to preserve the applicant's right in esse which may be manifested by an adoption of the same as part of
is threatened to be violated during the course of a pending the rules of procedure through an administrative circular
litigation. In the case of Fabian,[221] it was stated that: issued therefor, there thus, stands to be a violation of the
separation of powers principle.
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 In addition, it should be pointed out that the breach of
classified as a substantive matter; but if it operates as a means Congress in prohibiting provisional injunctions, such as in the
of implementing an existing right then the rule deals merely first paragraph of Section 14, RA 6770, does not only
with procedure. undermine the constitutional allocation of powers; it also
practically dilutes a court's ability to carry out its
functions. This is so since a particular case can easily be
Notably, there have been similar attempts on the part of
mooted by supervening events if no provisional injunctive
Congress, in the exercise of its legislative power, to amend the
relief is extended while the court is hearing the same.
Rules of Court, as in the cases of: (a) In Re: Exemption of The
Accordingly, the court's acquired jurisdiction, through which it
National Power Corporation from Payment of Filing/ Docket
exercises its judicial power, is rendered nugatory. Indeed, the
Fees;[222] (b) Re: Petition for Recognition of the Exemption of the
force of judicial power, especially under the present
Government Service Insurance System (GSIS) from Payment of
Constitution, cannot be enervated due to a court's inability to
Legal Fees;[223] and (c)  Baguio Market Vendors Multi-Purpose
regulate what occurs during a proceeding's course. As earlier
Cooperative (BAMARVEMPCO) v. Cabato-Cortes [224] While these
intimated, when jurisdiction over the subject matter is accorded
cases involved legislative enactments exempting government
by law and has been acquired by a court, its exercise thereof
owned and controlled corporations and cooperatives from
should be undipped. To give true meaning to the judicial
paying filing fees, thus, effectively modifying Rule 141 of the
power contemplated by the Framers of our Constitution, the
Rules of Court (Rule on Legal Fees), it was, nonetheless, ruled
Court's duly promulgated rules of procedure should therefore
that the prerogative to amend, repeal or even establish new
remain unabridged, this, even by statute. Truth be told, the
rules of procedure[225] solely belongs to the Court, to the
policy against provisional injunctive writs in whatever variant
exclusion of the legislative and executive branches of
should only subsist under rules of procedure duly promulgated
government. On this score, the Court described its authority to
by the Court given its sole prerogative over the same.
promulgate rules on pleading, practice, and procedure as
45

The following exchange between Associate Justice Marvic ACTING SOLICITOR GENERAL HILBAY:
Mario Victor F. Leonen (Justice Leonen) and the Acting Solicitor Correct, Your Honor.
General Florin T. Hilbay (Acting Solicitor General Hilbay) mirrors
the foregoing observations: JUSTICE LEONEN:
On the other hand, the power to promulgate rules is with the
JUSTICE LEONEN:
Court, is that not correct?
Okay. Now, would you know what rule covers injunction in the
Rules of Court?
ACTING SOLICITOR GENERAL HILBAY:
Correct, Your Honor.
ACTING SOLICITOR GENERAL HILBAY:
Rule 58, Your Honor.
JUSTICE LEONEN:
A TRO and a writ of preliminary injunction, would it be a
JUSTICE LEONEN:
separate case or is it part of litigation in an ordinary case?
58, that is under the general rubric if Justice Bersamin will
correct me if I will be mistaken under the rubric of what is
ACTING SOLICITOR GENERAL HILBAY:
called provisional remedies, our resident expert because Justice
It is an ancillary remedy, Your Honor.
Peralta is not here so Justice Bersamin for a while. So
provisional remedy you have injunction, x x x.
JUSTICE LEONEN:
In fact, it originated as an equitable remedy, is that not correct?
x x x x
ACTING SOLICITOR GENERAL HILBAY:
JUSTICE LEONEN:
Correct, Your Honor.
Okay, Now, we go to the Constitution. Section 5, subparagraph
5 of Article VIII of the Constitution, if you have a copy of the
JUSTICE LEONEN:
Constitution, can you please read that provision? Section 5,
In order to preserve the power of a court so that at the end
Article VIII the Judiciary subparagraph 5, would you kindly read
of litigation, it will not be rendered moot and academic, is
that provision?
that not correct?

ACTING SOLICTOR GENERAL HILBAY.

ACTING SOLICITOR GENERAL HILBAY:
"Promulgate rules concerning the protection and enforcement
Correct, Your Honor.
of constitutional rights, pleading, practice and procedure in all
courts..."
JUSTICE LEONEN:
In that view, isn't Section 14, first paragraph, unconstitutional?
JUSTICE LEONEN:
Okay, we can stop with that, promulgate rules concerning
ACTING SOLICITOR GENERAL HILBAY:
pleading, practice and procedure in all courts. This is the
No, Your Honor.
power, the competence, the jurisdiction of what constitutional
organ?
x x x x

ACTING SOLICITOR GENERAL HILBAY:

JUSTICE LEONEN.
The Supreme Court, Your Honor.
Can Congress say that a Court cannot prescribe Motions to
Dismiss under Rule 16?
JUSTICE LEONEN:
The Supreme Court. This is different from Article VIII Sections 1
ACTING SOLICITOR GENERAL HILBAY:
and 2 which we've already been discussed with you by my
Your Honor, Congress cannot impair the power of the Court to
other colleagues, is that not correct?
create remedies, x x x.

ACTING SOLICITOR GENERAL HILBAY:

JUSTICE LEONEN.
Correct, Your Honor.
What about bill [of] particulars, can Congress say, no Court
shall have the power to issue the supplemental pleading called
JUSTICE LEONEN:
the bill of t particular [s]? It cannot, because that's part of
Okay, so in Section 2, [apportion] jurisdiction that is the power
procedure...
of Congress, is that not correct?
46

must defer." It would then follow that laws that do not conform
ACTING SOLICITOR GENERAL HILBAY: to the Constitution shall be stricken down for being
That is true. unconstitutional.[230]

JUSTICE LEONEN However, despite the ostensible breach of the separation of

...or for that matter, no Court shall act on a Motion to Quash, is powers principle, the Court is not oblivious to the policy
that not correct? considerations behind the first paragraph of Section 14, RA
6770, as well as other statutory provisions of similar import.
ACTING SOLICITOR GENERAL HILBAY: Thus, pending deliberation on whether or not to adopt the
Correct. same, the Court, under its sole prerogative and authority over
all matters of procedure, deems it proper to declare as
JUSTICE LEONEN: ineffective the prohibition against courts other than the
So what's different with the writ of injunction? Supreme Court from issuing provisional injunctive writs to
enjoin investigations conducted by the Office of the
ACTING SOLICITOR GENERAL HILBAY: Ombudsman, until it is adopted as part of the rules of
Writ of injunction, Your Honor, requires the existence of procedure through an administrative circular duly issued
jurisdiction on the part of a court that was created by Congress. therefor.
In the absence of jurisdiction... (interrupted)
Hence, with Congress interfering with matters of procedure
JUSTICE LEONEN: (through passing the first paragraph of Section 14, RA 6770)
No, writ of injunction does not attach to a court. In other without the Court's consent thereto, it remains that the CA had
words, when they create a special agrarian court it has all the authority to issue the questioned injunctive writs enjoining
procedures with it but it does not attach particularly to that the implementation of the preventive suspension order against
particular court, is that not correct? Binay, Jr. At the risk of belaboring the point, these issuances
were merely ancillary to the exercise of the
ACTING SOLICTOR GENERAL HILBAY: CA's certiorari jurisdiction conferred to it under Section 9 (1),
When Congress, Your Honor, creates a special court... Chapter I of BP 129, as amended, and which it had already
acquired over the main CA-G.R. SP No. 139453 case.
JUSTICE LEONEN:
IV.
Again, Counsel, what statute provides for a TRO, created the
concept of a TRO? It was a Rule. A rule of procedure and the
Rules of Court, is that not correct? The foregoing notwithstanding, the issue of whether or not the
CA gravely abused its jurisdiction in issuing the TRO and WPI in
ACTING SOLICITOR GENERAL HILBAY: CA-G.R. SP No. 139453 against the preventive suspension order
Yes, Your Honor. is a persisting objection to the validity of said injunctive writs.
For its proper analysis, the Court first provides the context of
JUSTICE LEONEN: the assailed injunctive writs.
And a TRO and a writ of preliminary injunction does not exist
unless it is [an] ancillary to a particular injunction in a court, is A. Subject matter of the CA's iniunctive writs is the
that not correct? preventive suspension order.

ACTING SOLICITOR GENERAL HILBAY: By nature, a preventive suspension order is not a penalty
Correct, Your Honor. but only a preventive measure. In Quimbo v. Acting
Ombudsman Gervacio,[231] the Court explained the distinction,
xxxx[228] (Emphasis supplied) stating that its purpose is to prevent the official to be
suspended from using his position and the powers and
prerogatives of his office to influence potential witnesses
In Biraogo v. The Philippine Truth Commission of 2010, [229] the
or tamper with records which may be vital in the
Court instructed that "[i]t is through the Constitution that the
prosecution of the case against him:
fundamental powers of government are established, limited
and defined, and by which these powers are distributed among Jurisprudential law establishes a clear-cut distinction
the several departments. The Constitution is the basic and between suspension as preventive measure  and suspension as
paramount law to which all other laws must conform and to penalty. The distinction, by considering the purpose aspect of
which all persons, including the highest officials of the land,
47

the suspensions, is readily cognizable as they have different computing the period of suspension herein provided.
ends sought to be achieved. (Emphasis and underscoring supplied)

Preventive suspension is merely a preventive measure, a

In other words, the law sets forth two (2) conditions that must
preliminary step in an administrative investigation. The
be satisfied to justify the issuance of an order of preventive
purpose of the suspension order is to prevent the accused
suspension pending an investigation, namely:
from using his position and the powers and prerogatives of
his office to influence potential witnesses or tamper with (1) The evidence of guilt is strong; and
records which may be vital in the prosecution of the case
against him. If after such investigation, the charge is (2) Either of the following circumstances co-exist with the first
established and the person investigated is found guilty of acts requirement:
warranting his suspension or removal, then he is suspended,
removed or dismissed. This is the penalty. (a) The charge involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty;
That preventive suspension is not a penalty is in fact explicitly
provided by Section 24 of Rule XIV of the Omnibus Rules (b) The charge would warrant removal from the service; or
Implementing Book V of the Administrative Code of 1987
(Executive Order No. 292) and other Pertinent Civil Service (c) The respondent's continued stay in office may prejudice the
Laws. case filed against him.[233]

Section. 24. Preventive suspension is not a punishment or

penalty for misconduct in office but is considered to be a B. The basis of the CA's injunctive writs is the condonation
preventive measure. (Emphasis supplied) doctrine.

Not being a penalty, the period within which one is under Examining the CA's Resolutions in CA-G.R. SP No. 139453
preventive suspension is not considered part of the actual would, however, show that the Ombudsman's non-compliance
penalty of suspension. So Section 25 of the same Rule XIV with the requisites provided in Section 24, RA 6770 was not the
provides: basis for the issuance of the assailed injunctive writs.
Section 25. The period within which a public officer or
The CA's March 16, 2015 Resolution which directed the
employee charged is placed under preventive suspension
issuance of the assailed TRO was based on the case
shall not be considered part of the actual penalty of
of Governor Garcia, Jr. v. CA[234] (Governor Garcia, Jr.), wherein
suspension imposed upon the employee found guilty.
[232] the Court emphasized that "if it were established in the CA that
 (Emphases supplied)
the acts subject of the administrative complaint were indeed
committed during petitioner [Garcia's] prior term, then,
The requisites for issuing a preventive suspension order are following settled jurisprudence, he can no longer be
explicitly stated in Section 24, RA 6770: administratively charged."[235] Thus, the Court, contemplating
the application of the condonation doctrine, among others,
Section 24. Preventive Suspension. - The Ombudsman or his
cautioned, in the said case, that "it would have been more
Deputy may preventively suspend any officer or employee
prudent for [the appellate court] to have, at the very least, on
under his authority pending an investigation, if in his
account of the extreme urgency of the matter and the
judgment the evidence of guilt is strong, and (a) the charge
seriousness of the issues raised in the certiorari petition, issued
against such officer or employee involves dishonesty,
a TRO x x x"[236] during the pendency of the proceedings.
oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant
Similarly, the CA's April 6, 2015 Resolution which directed the
removal from the service; or (c) the respondent's continued
issuance of the assailed WPI was based on the condonation
stay in office may prejudice the case filed against him.
doctrine, citing the case of Aguinaldo v. Santos[237] The CA
held that Binay, Jr. has an ostensible right to the final relief
The preventive suspension shall continue until the case is
prayed for, i.e., the nullification of the preventive suspension
terminated by the Office of the Ombudsman but not more than
order, finding that the Ombudsman can hardly impose
six (6) months, without pay, except when the delay in the
preventive suspension against Binay, Jr. given that his re-
disposition of the case by the Office of the Ombudsman is due
election in 2013 as City Mayor of Makati condoned any
to the fault, negligence or petition of the respondent, in which
administrative liability arising from anomalous activities relative
case the period of such delay shall not be counted in
to the Makati Parking Building project from 2007 to 2013.
48
[238]
 Moreover, the CA observed that although there were acts elaborated upon - is not based on statutory law. It is a
which were apparently committed by Binay, Jr. beyond his first jurisprudential creation that originated from the 1959
term , i.e., the alleged payments on July 3, 4, and 24, 2013, case of Pascual v. Hon. Provincial Board of Nueva Ecija,
[239]
 corresponding to the services of Hillmarc's and MANA - [247]
 (Pascual),  which was therefore decided under the 1935
still, Binay, Jr. cannot be held administratively liable therefor Constitution.
based on the cases of Salalima v. Guingona, Jr.,
[240]
 and  Mayor Garcia v. Mojica,[241] wherein the condonation In Pascual, therein petitioner, Arturo Pascual, was elected
dobtrine was applied by the Court although the payments were Mayor of San Jose, Nueva Ecija, sometime in November 1951,
made after the official's election, reasoning that the payments and was later re-elected to the same position in 1955. During
were merely effected pursuant to contracts executed before his second term, or on October 6, 1956, the Acting Provincial
said re-election.[242] Governor filed administrative charges before the Provincial
Board of Nueva Ecija against him for grave abuse of authority
The Ombudsman contends that it was inappropriate for the CA and usurpation of judicial functions for acting on a criminal
to have considered the condonation doctrine since it was a complaint in Criminal Case No. 3556 on December 18 and 20,
matter of defense which should have been raised and passed 1954. In defense, Arturo Pascual argued that he cannot be
upon by her office during the administrative disciplinary made liable for the acts charged against him since they were
proceedings.[243] However, the Court agrees with the CA that it committed during his previous term of office, and therefore,
was not precluded from considering the same given that it was invalid grounds for disciplining him during his second term.
material to the propriety of according provisional injunctive The Provincial Board, as well as the Court of First Instance of
relief in conformity with the ruling in Governor Garcia, Jr., which Nueva Ecija, later decided against Arturo Pascual, and when the
was the subsisting jurisprudence at that time. Thus, since case reached this Court on appeal, it recognized that the
condonation was duly raised by Binay, Jr. in his petition in CA- controversy posed a novel issue - that is, whether or not an
G.R. SP No. 139453,[244] the CA did not err in passing upon the elective official may be disciplined for a wrongful act
same. Note that although Binay, Jr. secondarily argued that the committed by him during his immediately preceding term of
evidence of guilt against him was not strong in his petition in office.
CA-G.R. SP No. 139453,[245] it appears that the CA found that
the application of the condonation doctrine was already As there was no legal precedent on the issue at that time,
sufficient to enjoin the implementation of the preventive the Court, in Pascual, resorted to American authorities and
suspension order. Again, there is nothing aberrant with this "found that cases on the matter are conflicting due in part,
since, as remarked in the same case of Governor Garcia, Jr., if it probably, to differences in statutes and constitutional
was established that the acts subject of the administrative provisions, and also, in part, to a divergence of views with
complaint were indeed committed during Binay, Jr.'s prior term, respect to the question of whether the subsequent election or
then, following the condonation doctrine, he can no longer be appointment condones the prior misconduct." [248] Without
administratively charged. In other words, with condonation going into the variables of these conflicting views and
having been invoked by Binay, Jr. as an exculpatory affirmative cases, it proceeded to state that:
defense at the onset, the CA deemed it unnecessary to
The weight of authorities x x x seems to incline toward the
determine if the evidence of guilt against him was strong, at
rule denying the right to remove one from office because
least for the purpose of issuing the subject injunctive writs.
of misconduct during a prior term, to which we fully
subscribe.[249] (Emphasis and underscoring supplied)
With the preliminary objection resolved and the basis of the
assailed writs herein laid down, the Court now proceeds to
determine if the CA gravely abused its discretion in applying The conclusion is at once problematic since this Court has now
the condonation doctrine. uncovered that there is really no established weight of
authority in the United States (US) favoring the doctrine of
C. The origin of the condonation doctrine. condonation, which, in the words of Pascual, theorizes that an
official's re-election denies the right to remove him from office
Generally speaking, condonation has been defined as "[a] due to a misconduct during a prior term. In fact, as pointed out
victim's express or implied forgiveness of an offense, during the oral arguments of this case, at least seventeen (17)
[especially] by treating the offender as if there had been no states in the US have abandoned the condonation doctrine.
offense."[246] [250]
 The Ombudsman aptly cites several rulings of various US
State courts, as well as literature published on the matter, to
The condonation doctrine - which connotes this same sense of demonstrate the fact that the doctrine is not uniformly applied
complete extinguishment of liability as will be herein across all state jurisdictions. Indeed, the treatment is nuanced:
49

removal because a re-elected incumbent has no prior term to

(1) For one, it has been widely recognized that the propriety of speak of[258] (see Attorney-General v. Tufts;[259] State v. Welsh;
removing a public officer from his current term or office for [260]
 Hawkins v. Common Council of Grand Rapids; [261] Territory v.
misconduct which he allegedly committed in a prior term of Sanches;[262] and Tibbs v. City of Atlanta).[263]
office is governed by the language of the statute or
constitutional provision applicable to the facts of a particular (3) Furthermore, some State courts took into consideration the
case (see In Re Removal of Member of Council Coppola).[251] As continuing nature of an offense in cases where the
an example, a Texas statute, on the one hand, expressly allows condonation doctrine was invoked. In State ex rel. Douglas v.
removal only for an act committed during a present term: "no Megaarden,[264] the public officer charged with malversation of
officer shall be prosecuted or removed from office for any act public funds was denied the defense of condonation by the
he may have committed prior to his election to office" Supreme Court of Minnesota, observing that "the large sums of
(see State ex rel. Rowlings v. Loomis).[252] On the other hand, the money illegally collected during the previous years are still
Supreme Court of Oklahoma allows removal from office for retained by him." In State ex rel. Beck v. Harvey [265] the Supreme
"acts of commission, omission, or neglect committed, done or Court of Kansas ruled that "there is no necessity" of applying
omitted during a previous or preceding term of office" the condonation doctrine since "the misconduct continued in
(see State v. Bailey)[253] Meanwhile, in some states where the the present term of office[;] [thus] there was a duty upon
removal statute is silent or unclear, the case's resolution was defendant to restore this money on demand of the county
contingent upon the interpretation of the phrase "in office." On commissioners." Moreover, in State ex rel. Londerholm v.
one end, the Supreme Court of Ohio strictly construed a Schroeder,[266] the Supreme Court of Kansas held that "insofar as
removal statute containing the phrase "misfeasance of nondelivery and excessive prices are concerned, x x x there
malfeasance in office" and thereby declared that, in the remains a continuing duty on the part of the defendant to
absence of clear legislative language making, the word "office" make restitution to the country x x x, this duty extends into the
must be limited to the single term during which the offense present term, and neglect to discharge it constitutes
charged against the public officer occurred (see State ex rel. misconduct."
Stokes v. Probate Court of Cuyahoga County)[254] Similarly, the
Common Pleas Court of Allegheny County, Pennsylvania Overall, the foregoing data clearly contravenes the preliminary
decided that the phrase "in office" in its state constitution was conclusion in Pascual  that there is a "weight of authority" in
a time limitation with regard to the grounds of removal, so that the US on the condonation doctrine. In fact, without any
an officer could not be removed for misbehaviour which cogent exegesis to show that Pascual had accounted for the
occurred; prior to the taking of the office (see Commonwealth numerous factors relevant to the debate on condonation, an
v. Rudman)[255] The opposite was construed in the Supreme outright adoption of the doctrine in this jurisdiction would not
Court of Louisiana which took the view that an officer's inability have been proper.
to hold an office resulted from the commission of certain
offenses, and at once rendered him unfit to continue in office, At any rate, these US cases are only of persuasive value in the
adding the fact that the officer had been re-elected did not process of this Court's decision-making. "[They] are not relied
condone or purge the offense (see  State ex rel. Billon v. upon as precedents, but as guides of
Bourgeois).[256] Also, in the Supreme Court of New York, Apellate interpretation."  Therefore, the ultimate analysis is on
[267]

Division, Fourth Department, the court construed the words "in whether or not the condonation doctrine, as espoused
office" to refer not to a particular term of office but to an entire in Pascual, and carried over in numerous cases after, can be
tenure; it stated that the whole purpose of the legislature in held up against prevailing legal norms. Note that the doctrine
enacting the statute in question could easily be lost sight of, of stare decisis does not preclude this Court from revisiting
and the intent of the law-making body be thwarted, if an existing doctrine. As adjudged in the case of Belgica, the stare
unworthy official could not be removed during one term for decisis rule should not operate when there are powerful
misconduct for a previous one (Newman v. Strobel).[257] countervailing considerations against its application. [268] In
other words, stare decisis becomes an intractable rule only
(2) For another, condonation depended on whether or not the when circumstances exist to preclude reversal of standing
public officer was a successor in the same office for which he precedent.[269] As the Ombudsman correctly points out,
has been administratively charged. The "own-successor theory," jurisprudence, after all, is not a rigid, atemporal abstraction; it is
which is recognized in numerous States as an exception to an organic creature that develops and devolves along with the
condonation doctrine, is premised on the idea that each term society within which it thrives. [270] In the words of a recent US
of a re-elected incumbent is not taken as separate and distinct, Supreme Court Decision, "[w]hat we can decide, we can
but rather, regarded as one continuous term of office. Thus, undecide."[271]
infractions committed in a previous term are grounds for
50

In this case, the Court agrees with the Ombudsman that since assumed that they did this with knowledge of his life and
the time Pascual  was decided, the legal landscape has radically character, and that they disregarded or forgave his faults
shifted. Again, Pascual  was a 1959 case decided under the or misconduct, if he had been guilty of any. It is not for the
1935 Constitution, which dated provisions do not reflect the court, by reason of such faults or misconduct to practically
experience of the Filipino People under the 1973 and 1987 overrule the will of the people.[274] (Emphases supplied)
Constitutions. Therefore, the plain difference in setting,
including, of course, the sheer impact of the condonation
The notable cases on condonation following Pascual are as
doctrine on public accountability, calls for Pascual's judicious
follows:
re-examination.

(1) Lizares v. Hechanova[275] (May 17, 1966) - wherein the

D. Testing the Condonation Doctrine.
Court first applied the condonation doctrine, thereby quoting
the above-stated passages from Pascual in verbatim.
Pascual's ratio decidendi may be dissected into three (3) parts:

(2) Insco v. Sanchez, et al.[276] (December 18, 1967) - wherein

First, the penalty of removal may not be extended beyond the
the Court clarified that the condonation doctrine does not
term in which the public officer was elected for each term is
apply to a criminal case. It was explained that a criminal case
separate and distinct:
is different from an administrative case in that the former
Offenses committed, or acts done, during previous term involves the People of the Philippines as a community, and is a
are generally held not to furnish cause for removal and this public wrong to the State at large; whereas, in the latter, only
is especially true where the constitution provides that the the populace of the constituency he serves is affected. In
penalty in proceedings for removal shall not extend beyond addition, the Court noted that it is only the President who may
the removal from office, and disqualification from holding pardon a criminal offense.
office for the term for which the officer was elected or
appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. (3) Aguinaldo v. Santos[277] (Aguinaldo; August 21, 1992) - a
401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex case decided under the 1987 Constitution wherein the
rel. Bagshaw vs. Thompson, 130 P. 2d. 237; Board of Com'rs of condonation doctrine was applied in favor of then Cagayan
Kingfisher County vs. Shutter, 281 P. 222;  State vs. Blake,  280 P. Governor Rodolfo E. Aguinaldo although his re-election
388; In re Fudula,  147 A. 67;  State vs. Ward, 43 S.W. 2d. 217). merely supervened the pendency of, the proceedings.

The underlying theory is that each term is separate from

(4) Salalima v. Guinsona, Jr.[278] (Salalima; May 22, 1996)
other terms x x x.[272]
-wherein the Court reinforced the condonation doctrine by
stating that the same is justified by "sound public policy."
Second, an elective official's re-election serves as a According to the Court, condonation prevented the elective
condonation of previous misconduct, thereby cutting the right official from being "hounded" by administrative cases filed by
to remove him therefor; and his "political enemies" during a new term, for which he has to
defend himself "to the detriment of public service." Also, the
[T]hat the  reelection to office operates as a condonation of the Court mentioned that the administrative liability condoned by
officer's previous misconduct to the extent of cutting off the right re-election covered the execution of the contract and the
to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. incidents related therewith. [279]
Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553. [273] (emphasis
supplied) (5) Mayor Garcia v. Mojica[280] (Mayor Garcia; September 10,
1999) - wherein the benefit of the doctrine was extended to
then Cebu City Mayor Alvin B. Garcia who was administratively
Third, courts may not deprive the electorate, who are assumed
charged for his involvement in an anomalous contract for the
to have known the life and character of candidates, of their
supply of asphalt for Cebu City, executed only four (4) days
right to elect officers:
before the upcoming elections. The Court ruled that
As held in  Conant vs. Grogan (1887) 6 N.Y.S.R. 322, cited in 17 notwithstanding the timing of the contract's execution, the
A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 — electorate is presumed to have known the petitioner's
background and character, including his past misconduct;
The Court should never remove a public officer for acts done hence, his subsequent re-election was deemed a condonation
prior to his present term of office. To do otherwise would be to of his prior transgressions. More importantly, the Court held
deprive the people of their right to elect their officers. When that the determinative time element in applying the
the people have elected a man to office, it must be condonation doctrine should be the time when the contract
51

was perfected; this meant that as long as the contract was existing legal norms. As in the US, the propriety of condonation
entered into during a prior term, acts which were done to is - as it should be -dependent on the legal foundation of the
implement the same, even if done during a succeeding adjudicating jurisdiction. Hence, the Court undertakes an
term, do not negate the application of the condonation examination of our current laws in order to determine if there is
doctrine in favor of the elective official. legal basis for the continued application of the doctrine of
condonation.
(6) Salumbides, Jr. v. Office of the
Ombudsman[281] (Salumbides, Jr.; April 23, 2010) - wherein the The foundation of our entire legal system is the Constitution. It
Court explained the doctrinal innovations in is the supreme law of the land; [284] thus, the unbending rule is
the Salalima and Mayor Garcia rulings, to wit: that every statute should be read in light of the Constitution.
[285]
 Likewise, the Constitution is a framework of a workable
Salalima v. Guingona, Jr. and Mayor Garcia v. Hon.
government; hence, its interpretation must take into account
Mojica  reinforced the doctrine. The condonation rule was
the complexities, realities, and politics attendant to the
applied even if the administrative complaint was not filed
operation of the political branches of government. [286]
before the reelection of the public official, and even if the
alleged misconduct occurred four days before the
As earlier intimated, Pascual  was a decision promulgated
elections, respectively. Salalima did not distinguish as to the
in 1959. Therefore, it was decided within the context of the
date of filing of the administrative complaint, as long as the
1935 Constitution which was silent with respect to public
alleged misconduct was committed during the prior term, the
accountability, or of the nature of public office being a
precise timing or period of which Garcia did not further
public trust. The provision in the 1935 Constitution that comes
distinguish, as long as the wrongdoing that gave rise to the
closest in dealing with public office is Section 2, Article II
public official's culpability was committed prior to the date of
which states that "[t]he defense of the State is a prime duty
reelection.[282] (Emphasis supplied)
of government, and in the fulfillment of this duty all
citizens may be required by law to render personal military
The Court, citing Civil Service Commission v. Sojor,[283] also or civil service."[287] Perhaps owing to the 1935 Constitution's
clarified that the condonation doctrine would not apply to silence on public accountability, and considering the dearth of
appointive officials since, as to them, there is no sovereign jurisprudential rulings on the matter, as well as the variance in
will to disenfranchise. the policy considerations, there was no glaring objection
confronting the Pascual  Court in adopting the condonation
(7) And finally, the above discussed case of Governor Garcia, doctrine that originated from select US cases existing at that
Jr. -wherein the Court remarked that it would have been time.
prudent for the appellate court therein to have issued a
temporary restraining order against the implementation of a With the advent of the 1973 Constitution, the approach in
preventive suspension order issued by the Ombudsman in view dealing with public officers underwent a significant
of the condonation doctrine. change. The new charter introduced an entire article on
accountability of public officers, found in Article XIII. Section
A thorough review of the cases post-1987, among 1 thereof positively recognized, acknowledged, and
others, Aguinaldo, Salalima, Mayor Garcia, and Governor declared that "[p]ublic office is a public trust ." Accordingly,
Garcia, Jr. - all cited by the CA to justify its March 16, 2015 and "[p]ublic officers and employees shall serve with the
April 6, 2015 Resolutions directing the issuance of the assailed highest degree of responsibility, integrity, loyalty and
injunctive writs - would show that the basis for condonation efficiency, and shall remain accountable to the people."
under the prevailing constitutional and statutory framework
was never accounted for. What remains apparent from the text After the turbulent decades of Martial Law rule, the Filipino
of these cases is that the basis for condonation, as People have framed and adopted the 1987 Constitution,
jurisprudential doctrine, was - and still remains - the above- which sets forth in the Declaration of Principles and State
cited postulates of Pascual, which was lifted from rulings of US Policies in Article II that "[t]he State shall maintain honesty
courts where condonation was amply supported by their own and integrity in the public service and take positive and
state laws. With respect to its applicability to administrative effective measures against graft and
cases, the core premise of condonation - that is, an elective corruption."[288] Learning how unbridled power could corrupt
official's re-election cuts qff the right to remove him for an public servants under the regime of a dictator, the Framers put
administrative offense committed during a prior term - was primacy on the integrity of the public service by declaring it as
adopted hook, line, and sinker in our jurisprudence largely a constitutional principle and a State policy. More
because the legality of that doctrine was never tested against significantly, the 1987 Constitution strengthened and
52

solidified what has been first proclaimed in the 1973 An elective local official may be removed from office on the
Constitution by commanding public officers to be grounds enumerated above by order of the proper court.
accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and Related to this provision is Section 40 (b) of the LGC which
employees must at all times be accountable to the people, states that those removed from office as a result of an
serve them with utmost responsibility, integrity, loyalty, administrative case shall be disqualified from running for
and efficiency and act with patriotism and justice, and lead any elective local position:
modest lives.
Section 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
In Belgica, it was explained that:
x x x x
[t]he aphorism forged under Section 1, Article XI of the 1987
Constitution, which states that "public office is a public trust," is
(b) Those removed from office as a result of an
an overarching reminder that every instrumentality of
administrative case;
government should exercise their official functions only in
accordance with the principles of the Constitution which
x x x x (Emphasis supplied)
embodies the parameters of the people's trust. The notion of
a public trust connotes accountability x x x.[289] (Emphasis
supplied) In the same sense, Section 52 (a) of the RRACCS provides
that the penalty of dismissal from service carries the
accessory penalty of perpetual disqualification from
The same mandate is found in the Revised Administrative
holding public office:
Code under the section of the Civil Service Commission,
[290]
 and also, in the Code of Conduct and Ethical Standards Section 52. - Administrative Disabilities Inherent in Certain
for Public Officials and Employees.[291] Penalties. -

a. The penalty of dismissal shall carry with it cancellation

For local elective officials like Binay, Jr., the grounds to
of eligibility, forfeiture of retirement benefits,
discipline, suspend or remove an elective local official from
perpetual disqualification from holding public office,
office are stated in Section 60 of Republic Act No. 7160,
[292] and bar from taking the civil service examinations.
 otherwise known as the "Local Government Code of 1991"
(LGC), which was approved on October 10 1991, and took
effect on January 1, 1992: In contrast, Section 66 (b) of the LGC states that
the penalty of suspension shall not exceed the unexpired
Section 60. Grounds for Disciplinary Action. - An elective local
term of the elective local official nor constitute a bar to his
official may be disciplined, suspended, or removed from office
candidacy for as long as he meets the qualifications required
on any of the r following grounds:
for the office. Note, however, that the provision only pertains to
(a) Disloyalty to the Republic of the Philippines; the duration of the penalty and its effect on the official's
(b) Culpable violation of the Constitution; candidacy. Nothing therein states that the administrative
(c) Dishonesty, oppression, misconduct in office, gross liability therefor is extinguished by the fact of re-election:
negligence, or dereliction of duty;
Section 66. Form and Notice of Decision.  - x x x.
(d) Commission of any offense involving moral turpitude or an
offense punishable by at least prision mayor;
x x x x
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working
(b) The penalty of suspension shall not exceed the unexpired
days, except in the case of members of the sangguniang
term of the respondent or a period of six (6) months for every
panlalawigan, sangguniang panlunsod, sanggunian bayan,
administrative offense, nor shall said penalty be a bar to the
and sangguniang barangay;
candidacy of the respondent so suspended as long as he meets
(g) Application for, or acquisition of, foreign citizenship or
the qualifications required for the office.
residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and
other laws. Reading the 1987 Constitution together with the above-
cited legal provisions now leads this Court to the
53

conclusion that the doctrine of condonation is actually

bereft of legal bases. To compare, some of the cases adopted in Pascual were
decided by US State jurisdictions wherein the doctrine of
To begin with, the concept of public office is a public trust condonation of administrative liability was supported by either
and the corollary requirement of accountability to the a constitutional or statutory provision stating, in effect, that an
people at all times, as mandated under the 1987 Constitution, officer cannot be removed by a misconduct committed during
is plainly inconsistent with the idea that an elective local a previous term,[294] or that the disqualification to hold the
official's administrative liability for a misconduct committed office does not extend beyond the term in which the
during a prior term can be wiped off by the fact that he was official's delinquency occurred.[295] In one case,[296] the
elected to a second term of office, or even another elective absence of a provision against the re-election of an officer
post. Election is not a mode of condoning an administrative removed - unlike Section 40 (b) of the LGC-was the justification
offense, and there is simply no constitutional or statutory behind condonation. In another case, [297] it was deemed that
basis in our jurisdiction to support the notion that an official condonation through re-election was a policy under their
elected for a different term is fully absolved of any constitution - which adoption in this jurisdiction runs counter
administrative liability arising from an offense done during a to our present Constitution's requirements on public
prior term. In this jurisdiction, liability arising from accountability. There was even one case where the doctrine of
administrative offenses may be condoned bv the condonation was not adjudicated upon but only invoked by a
President in light of Section 19, Article VII of the 1987 party as a ground;[298] while in another case, which was not
Constitution which was interpreted in Llamas v. Orbos[293] to reported in full in the official series, the crux of the disposition
apply to administrative offenses: was that the evidence of a prior irregularity in no way pertained
to the charge at issue and therefore, was deemed to be
The Constitution does not distinguish between which cases
incompetent.[299] Hence, owing to either their variance or
executive clemency may be exercised by the President, with the
inapplicability, none of these cases can be used as basis for the
sole exclusion of impeachment cases. By the same token, if
continued adoption of the condonation doctrine under
executive clemency may be exercised only in criminal cases, it
our existing laws.
would indeed be unnecessary to provide for the exclusion of
impeachment cases from the coverage of Article VII, Section 19
At best, Section 66 (b) of the LGC prohibits the enforcement
of the Constitution. Following petitioner's proposed
of the penalty of suspension beyond the unexpired portion of
interpretation, cases of impeachment are automatically
the elective local official's prior term, and likewise allows said
excluded inasmuch as the same do not necessarily involve
official to still run for re-election This treatment is similar
criminal offenses.
to People ex rel Bagshaw v. Thompson[300] and Montgomery v.
Novell[301] both cited in Pascual, wherein it was ruled that an
In the same vein, We do not clearly see any valid and
officer cannot be suspended for a misconduct committed
convincing , reason why the President cannot grant executive
during a prior term. However, as previously stated, nothing in
clemency in administrative cases. It is Our considered view that
Section 66 (b) states that the elective local official's
if the President can grant reprieves, commutations and
administrative liability is extinguished by the fact of re-election.
pardons, and remit fines and forfeitures in criminal cases, with
Thus, at all events, no legal provision actually supports the
much more reason can she grant executive clemency in
theory that the liability is condoned.
administrative cases, which are clearly less serious than criminal
offenses.
Relatedly it should be clarified that there is no truth
in Pascual's postulation that the courts would be depriving the
Also, it cannot be inferred from Section 60 of the LGC that electorate of their right to elect their officers if condonation
the grounds for discipline enumerated therein cannot were not to be sanctioned. In political law, election pertains to
anymore be invoked against an elective local official to the process by which a particular constituency chooses an
hold him administratively liable once he is re-elected to individual to hold a public office. In this jurisdiction, there is,
office. In fact, Section 40 (b) of the LGC precludes again, no legal basis to conclude that election automatically
condonation since in the first place, an elective local official implies condonation. Neither is there any legal basis to say that
who is meted with the penalty of removal could not be re- every democratic and republican state has an inherent regime
elected to an elective local position due to a direct of condonation. If condonation of an elective official's
disqualification from running for such post. In similar administrative liability would perhaps, be allowed in this
regard, Section 52 (a) of the RRACCS imposes a penalty of jurisdiction, then the same should have been provided by law
perpetual disqualification from holding public office as an under our governing legal mechanisms. May it be at the time
accessory to the penalty of dismissal from service. of Pascual or at present, by no means has it been shown that
54

such a law, whether in a constitutional or statutory provision, Judicial decisions assume the same authority as a statute itself
exists. Therefore, inferring from this manifest absence, it cannot and, until authoritatively abandoned, necessarily become, to
be said that the electorate's will has been abdicated. the extent that they are applicable, the criteria that must
control the actuations, not only of those called upon to abide
Equally infirm is Pascual's proposition that the electorate, when by them, but also of those duty-bound to enforce obedience to
re-electing a local official, are assumed to have done so with them.[307]
knowledge of his life and character, and that they disregarded
or forgave his faults or misconduct, if he had been guilty of
Hence, while the future may ultimately uncover a doctrine's
any. Suffice it to state that no such presumption exists in any
error, it should be, as a general rule, recognized as "good law"
statute or procedural rule.[302] Besides, it is contrary to human
prior to its abandonment. Consequently, the people's reliance
experience that the electorate would have full knowledge of a
thereupon should be respected. The landmark case on this
public official's misdeeds. The Ombudsman correctly points out
matter is People v. Jabinal,[308] wherein it was ruled:
the reality that most corrupt acts by public officers are
shrouded in secrecy, and concealed from the [W]hen a doctrine of this Court is overruled and a different
public. Misconduct committed by an elective official is view is adopted, the new doctrine should be applied
easily covered up, and is almost always unknown to the prospectively, and should not apply to parties who had relied
electorate when they cast their votes.[303] At a conceptual on the old doctrine and acted on the faith thereof.
level, condonation presupposes that the condoner has actual
knowledge of what is to be condoned. Thus, there could be
no condonation of an act that is unknown. As observed Later, in Spouses Benzonan v. CA,[309] it was further elaborated:
in Walsh v. City Council of Trenton [304] decided by the New
[Pursuant to Article 8 of the Civil Code "judicial decisions
Jersey Supreme Court:
applying or interpreting the laws or the Constitution shall form
Many of the cases holding that re-election of a public official a part of the legal system of the Philippines." But while our
prevents his removal for acts done in a preceding term of office decisions form part of the law of the land, they are also subject
are reasoned out on the theory of condonation. We cannot to Article 4 of the Civil Code which provides that "laws shall
subscribe to that theory because condonation, implying as it have no retroactive effect unless the contrary is provided." This
does forgiveness, connotes knowledge and in the absence of is expressed in the familiar legal maxim  lex prospicit, non
knowledge there can be no condonation. One cannot forgive respicit, the law looks forward not backward. The rationale
something of which one has no knowledge. against retroactivity is easy to perceive. The retroactive
application of a law usually divests rights that have already
become vested or impairs the obligations of contract and
That being said, this Court simply finds no legal authority hence, is unconstitutional.[310]
to sustain the condonation doctrine in this jurisdiction. As
can be seen from this discourse, it was a doctrine adopted from
one class of US rulings way back in 1959 and thus, out of touch Indeed, the lessons of history teach us that institutions can
from - and now rendered obsolete by - the current legal greatly benefit from hindsight and rectify its ensuing course.
regime. In consequence, it is high time for this Court to Thus, while it is truly perplexing to think that a doctrine which
abandon the condonation doctrine that originated from is barren of legal anchorage was able to endure in our
Pascual, and affirmed in the cases following the same, such jurisprudence for a considerable length of time, this Court,
as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, under a new membership, takes up the cudgels and now
Jr.  which were all relied upon by the CA. abandons the condonation doctrine.

It should, however, be clarified that this Court's E. Consequence of ruling.

abandonment of the condonation doctrine should
be prospective in application for the reason that judicial As for this section of the Decision, the issue to be resolved
decisions applying or interpreting the laws or the is whether or not the CA committed grave abuse of
Constitution, until reversed, shall form part of the legal discretion amounting to lack or excess of jurisdiction in
system of the Philippines.[305] Unto this Court devolves the issuing the assailed injunctive writs.
sole authority to interpret what the Constitution means, and all
persons are bound to follow its interpretation. As explained It is well-settled that an act of a court or tribunal can only be
in De Castro v. Judicial Bar Council.[306] considered as with grave abuse of discretion when such act is
done in a capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion
55

must be so patent and gross as to amount to an evasion of a formulation of controlling principles to guide the bench, the
positive duty or to a virtual refusal to perform a duty enjoined bar, and the public; and fourth, the case is capable of
by law, or to act at all in contemplation of law, as where the repetition yet evading review."[314] All of these scenarios obtain
power is exercised in an arbitrary and despotic manner by in this case:
reason of passion and hostility. [311] It has also been held
that "grave abuse of discretion arises when a lower court or First, it would be a violation of the Court's own duty to uphold
tribunal patently violates the Constitution, the law or and defend the Constitution if it were not to abandon the
existing jurisprudence."[312] condonation doctrine now that its infirmities have become
apparent. As extensively discussed, the continued application
As earlier established, records disclose that the CA's resolutions of the condonation doctrine is simply impermissible under the
directing the issuance of the assailed injunctive writs were all auspices of the present Constitution which explicitly mandates
hinged on cases enunciating the condonation doctrine. To that public office is a public trust and that public officials shall
recount, the March 16, 2015 Resolution directing the issuance be accountable to the people at all times.
of the subject TRO was based on the case of Governor Garcia,
Jr., while the April 6, 2015 Resolution directing the issuance of Second, the condonation doctrine is a peculiar jurisprudential
the subject WPI was based on the cases of Aguinaldo, Salalima, creation that has persisted as a defense of elective officials to
Mayor Garcia, and again, Governor Garcia, Jr. Thus, by merely escape administrative liability. It is the first time that the legal
following settled precedents on the condonation doctrine, intricacies of this doctrine have been brought to light; thus, this
which at that time, unwittingly remained "good law," it cannot is a situation of exceptional character which this Court must
be concluded that the CA committed a grave abuse of ultimately resolve. Further, since the doctrine has served as a
discretion based on its legal attribution above. Accordingly, the perennial obstacle against exacting public accountability from
WPI against the Ombudsman's preventive suspension order the multitude of elective local officials throughout the years, it
was correctly issued. is indubitable that paramount public interest is involved.

With this, the ensuing course of action should have been for Third, the issue on the validity of the condonation doctrine
the CA to resolve the main petition for certiorari  in CA-G.R. SP clearly requires the formulation of controlling principles to
No. 139453 on the merits. However, considering that the guide the bench, the bar, and the public. The issue does not
Ombudsman, on October 9, 2015, had already found Binay, Jr. only involve an in-depth exegesis of administrative law
administratively liable and imposed upon him the penalty of principles, but also puts to the forefront of legal discourse the
dismissal, which carries the accessory penalty of perpetual potency of the accountability provisions of the 1987
disqualification from holding public office, for the present Constitution. The Court owes it to the bench, the bar, and the
administrative charges against him, the said CA petition public to explain how this controversial doctrine came about,
appears to have been mooted.[313] As initially intimated, the and now, its reasons for abandoning the same in view of its
preventive suspension order is only an ancillary issuance that, relevance on the parameters of public office.
at its core, serves the purpose of assisting the Office of the
Ombudsman in its investigation. It therefore has no more And fourth, the defense of condonation has been consistently
purpose - and perforce, dissolves - upon the termination of the invoked by elective local officials against the administrative
office's process of investigation in the instant administrative charges filed against them. To provide a sample size, the
case. Ombudsman has informed the Court that "for the period of
July 2013 to December 2014 alone, 85 cases from the Luzon
F. Exceptions to the mootness principle. Office and 24 cases from the Central Office were dismissed on
the ground of condonation. Thus, in just one and a half years,
This notwithstanding, this Court deems it apt to clarify that the over a hundred cases of alleged misconduct - involving
mootness of the issue regarding the validity of the preventive infractions such as dishonesty, oppression, gross neglect of
suspension order subject of this case does not preclude any of duty and grave misconduct - were placed beyond the reach of
its foregoing determinations, particularly, its abandonment of the Ombudsman's investigatory and prosecutorial
the condonation doctrine. As explained in Belgica, '"the moot powers."[315] Evidently, this fortifies the finding that the case is
and academic principle' is not a magical formula that can capable of repetition and must therefore, not evade review.
automatically dissuade the Court in resolving a case. The Court
will decide cases, otherwise moot, if: first, there is a grave In any event, the abandonment of a doctrine is wholly within
violation of the Constitution; second, the exceptional character the prerogative of the Court. As mentioned, it is its own
of the situation and the paramount public interest is jurisprudential creation and may therefore, pursuant to its
involved; third, when the constitutional issue raised requires mandate to uphold and defend the Constitution, revoke it
56

notwithstanding supervening events that render the subject of

discussion moot. (b) The condonation doctrine is ABANDONED, but the
abandonment is PROSPECTIVE in effect;
V.
(c) The Court of Appeals (CA) is DIRECTED to act on
With all matters pertaining to CA-G.R. SP No. 139453 passed respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) petition for
upon, the Court now rules on the final issue on whether or not certiorari in CA-G.R. SP No. 139453 in light of the Office of the
the CA's Resolution[316] dated March 20, 2015 directing the Ombudsman's supervening issuance of its Joint Decision dated
Ombudsman to comment on Binay, Jr.'s petition for contempt October 9, 2015 finding Binay, Jr. administratively liable in the
in CA-G.R. SP No. 139504 is improper and illegal. six (6) administrative complamts, docketed as OMB-C-A-15-
0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-
The sole premise of the Ombudsman's contention is that, as an 0061, OMB-C-A-15-0062, and OMB-C-A-15-0063; and
impeachable officer, she cannot be the subject of a charge for
indirect contempt[317] because this action is criminal in nature (d) After the filing of petitioner Ombudsman Conchita Carpio
and the penalty therefor would result in her effective removal Morales's comment, the CA is DIRECTED to resolve Binay, Jr.'s
from office.[318] However, a reading of the aforesaid March 20, petition for contempt in CA-G.R. SP No. 139504 with utmost
2015 Resolution does not show that she has already been dispatch.
subjected to contempt proceedings. This issuance, in? fact,
makes it clear that notwithstanding the directive for the SO ORDERED.
Ombudsman to comment, the CA has not necessarily given
due course to Binay, Jr.'s contempt petition:

Without necessarily giving due course to the Petition for

Contempt respondents [Hon. Conchita Carpio Morales, in her
capacity as the Ombudsman, and the Department of Interior
and Local Government] are hereby DIRECTED to file Comment
on the Petition/Amended and Supplemental Petition for
Contempt (CA-G.R. SP No. 139504) within an inextendible
period of three (3) days from receipt hereof. (Emphasis and
underscoring supplied)

Thus, even if the Ombudsman accedes to the CA's directive by

filing a comment, wherein she may properly raise her
objections to the contempt proceedings by virtue of her being
an impeachable officer, the CA, in the exercise of its sound
judicial discretion, may still opt not to give due course to Binay,
Jr.'s contempt petition and accordingly, dismiss the same.
Sjmply put, absent any indication that the contempt petition
has been given due course by the CA, it would then be
premature for this Court to rule on the issue. The submission of
the Ombudsman on this score is perforce denied.

WHEREFORE, the petition is PARTLY GRANTED. Under the

premises of this Decision, the Court resolves as follows:

(a) the second paragraph of Section 14 of Republic Act No.

6770 is declared UNCONSTITUTIONAL, while the policy
against the issuance of provisional injunctive writs by courts
other than the Supreme Court to enjoin an investigation
conducted by the Office of the Ombudsman under the first
paragraph of the said provision is DECLARED ineffective until
the Court adopts the same as part of the rules of procedure
through an administrative circular duly issued therefor;