SPECIAL THIRD DIVISION

 
HON. WALDO Q. FLORES, in his capacity as G.R. No. 170146
Senior Deputy Executive Secretary in the Office  
of the President, HON. ARTHUR P. AUTEA, in Present:
his capacity as Deputy Executive Secretary in the  
Office of the President, and the CARPIO MORALES, J.,
PRESIDENTIAL ANTI-GRAFT Chairperson,
COMMISSION (PAGC), VELASCO, JR.,*
Petitioners, DEL CASTILLO,*
  VILLARAMA, JR., and
  SERENO, JJ.
- versus -  
   
  Promulgated:
ATTY. ANTONIO F. MONTEMAYOR,  
Respondent. June 8, 2011
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 
RESOLUTION
 
VILLARAMA, JR., J.:

This resolves the motion for reconsideration of our Decision dated August 25, 2010 setting aside the
October 19, 2005 Decision of the Court of Appeals and reinstating the Decision dated March 23, 2004 of
the Office of the President in O.P. Case No. 03-1-581, which found the respondent administratively liable
for failure to declare in his 2001 and 2002 Sworn Statement of Assets and Liabilities (SSAL) two
expensive cars registered in his name, in violation of Section 7, Republic Act (R.A.) No. 3019 in relation
to Section 8 (A) of R.A. No. 6713. The OP adopted the findings and recommendations of the Presidential
Anti-Graft Commission (PAGC), including the imposition of the penalty of dismissal from service on
respondent, with all accessory penalties.

The motion is anchored on the following grounds:

1. Respondent was subjected to two (2) administrative/criminal Investigations

equivalently resulting in violation of his constitutional right against double
jeopardy.

2. Who to follow between conflicting decisions of two (2) government agencies

involving the same facts and issues affecting the rights of the Respondent.

3. Respondents constitutional right to due process was violated.

4. Penalties prescribed by the Honorable Court is too harsh and severe on the alleged
offense committed/omitted.[1]

On the first ground, the Court finds it bereft of merit. Respondent asserts that since the PAGC charge
involving non-declaration in his 2001 and 2002 SSAL was already the subject of investigation by the
Ombudsman in OMB-C-C-04-0568-LSC, along with the criminal complaint for unexplained wealth, the
former can no longer be pursued without violating the rule on double jeopardy.

Double jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after
arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or
acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused.
[2]
 We have held that none of these requisites applies where the Ombudsman only conducted a preliminary
investigation of the same criminal offense against the respondent public officer. [3] The dismissal of a case
during preliminary investigation does not constitute double jeopardy, preliminary investigation not being
part of the trial.[4]

With respect to the second ground, respondent underscores the dismissal by the Ombudsman of the
criminal and administrative complaints against him, including the charge subject of the proceedings
before the PAGC and OP. It is argued that the Office of the Ombudsman as a constitutional body,
pursuant to its mandate under R.A. No. 6770, has primary jurisdiction over cases cognizable by the
Sandiganbayan, as against the PAGC which is not a constitutional body but a mere creation of the
OP. Under said law, it is the Ombudsman who has disciplinary authority over all elective and appointive
officials of the government, such as herein respondent.

The argument is untenable.

The same wrongful act committed by the public officer can subject him to civil, administrative and
criminal liabilities. We held in Tecson v. Sandiganbayan[5]:

[I]t is a basic principle of the law on public officers that a public official or employee is
under a three-fold responsibility for violation of duty or for a wrongful act or
omission. This simply means that a public officer may be held civilly, criminally, and
administratively liable for a wrongful doing. Thus, if such violation or wrongful act
results in damages to an individual, the public officer may be held civilly liable to
reimburse the injured party. If the law violated attaches a penal sanction, the erring
officer may be punished criminally. Finally, such violation may also lead to suspension,
removal from office, or other administrative sanctions. This administrative liability is
separate and distinct from the penal and civil liabilities. (Italics in the original.)

Dismissal of a criminal action does not foreclose institution of an administrative proceeding

against the same respondent, nor carry with it the relief from administrative liability.[6] Res judicata did
not set in because there is no identity of causes of action. Moreover, the decision of the Ombudsman
dismissing the criminal complaint cannot be considered a valid and final judgment. On the criminal
complaint, the Ombudsman only had the power to investigate and file the appropriate case before the
Sandiganbayan.[7]

In the analogous case of Montemayor v. Bundalian,[8] this Court ruled:

Lastly, we cannot sustain petitioners stance that the dismissal of similar

charges against him before the Ombudsman rendered the administrative case
against him before the PCAGC moot and academic. To be sure, the decision of the
Ombudsman does not operate as res judicata in the PCAGC case subject of this
review. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings,
 not to the exercise of administrative powers. Petitioner was investigated by the
Ombudsman for his possible criminal liability for the acquisition of the Burbank property
in violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For
the same alleged misconduct, petitioner, as a presidential appointee, was investigated by
the PCAGC by virtue of the administrative power and control of the President over
him. As the PCAGCs investigation of petitioner was administrative in nature, the doctrine
of res judicata finds no application in the case at bar. (Emphasis supplied.)

Respondent argues that it is the Ombudsman who has primary jurisdiction over the administrative
complaint filed against him. Notwithstanding the consolidation of the administrative offense (non-
declaration in the SSAL) with the criminal complaints for unexplained wealth (Section 8 of R.A. No.
3019) and also for perjury (Article 183, Revised Penal Code, as amended) before the Office of the
Ombudsman, respondents objection on jurisdictional grounds cannot be sustained.

Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman to act promptly on

complaints filed in any form or manner against public officials or employees of the Government, or any
subdivision, agency, instrumentality thereof, including government-owned or controlled
corporations. Under Section 13, Article XI, the Ombudsman is empowered to conduct investigations on
his own or upon complaint by any person when such act appears to be illegal, unjust, improper, or
inefficient. He is also given broad powers to take the appropriate disciplinary actions against erring public
officials and employees.

The investigative authority of the Ombudsman is defined in Section 15 of R.A. No. 6770:

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall

have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any

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

x x x x (Emphasis supplied.)

Such jurisdiction over public officers and employees, however, is not exclusive.

This power of investigation granted to the Ombudsman by the 1987

Constitution and The Ombudsman Act is not exclusive but is shared with other
similarly authorized government agencies, such as the PCGG and judges of municipal
trial courts and municipal circuit trial courts. The power to conduct preliminary
investigation on charges against public employees and officials is likewise concurrently
shared with the Department of Justice. Despite the passage of the Local Government
Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of the
President and the local Sanggunians to investigate complaints against local elective
officials.[9] (Emphasis supplied.)
 Respondent who is a presidential appointee is under the disciplinary authority of the
OP. Executive Order No. 12 dated April 16, 2001 created the PAGC which was granted the authority
to investigate presidential and also non-presidential employees who may have acted in conspiracy or may
have been involved with a presidential appointee or ranking officer mentioned x x x.[10] On this score, we
do not agree with respondent that the PAGC should have deferred to the Ombudsman instead of
proceeding with the administrative complaint in view of the pendency of his petition for certiorari with
the CA challenging the PAGCs jurisdiction. Jurisdiction is a matter of law. Jurisdiction once acquired is
not lost upon the instance of the parties but continues until the case is terminated.[11]

It may be recalled that at the time respondent was directed to submit his counter-affidavit under
the Ombudsmans Order dated March 19, 2004, the PAGC investigation had long commenced and in fact,
the PAGC issued an order directing respondent to file his counter-affidavit/verified answer as early
as May 19, 2003. The rule is that initial acquisition of jurisdiction by a court of concurrent jurisdiction
divests another of its own jurisdiction.[12] Having already taken cognizance of the complaint against the
respondent involving non-declaration in his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction
over respondents administrative case notwithstanding the subsequent filing of a supplemental complaint
before the Ombudsman charging him with the same violation.

As to the third ground raised by respondent, we find no merit in his reiteration of the alleged
gross violation of his right to due process. Records bear out that he was given several opportunities to
answer the charge against him and present evidence on his defense, which he stubbornly ignored despite
repeated warnings that his failure to submit the required answer/counter-affidavit and position paper with
supporting evidence shall be construed as waiver on his part of the right to do so.

The essence of due process in administrative proceedings is the opportunity to explain ones side
or seek a reconsideration of the action or ruling complained of. As long as the parties are given the
opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.
[13]
 What is offensive to due process is the denial of the opportunity to be heard. [14] This Court has
repeatedly stressed that parties who choose not to avail themselves of the opportunity to answer charges
against them cannot complain of a denial of due process.[15] Having persisted in his refusal to file his
pleadings and evidence before the PAGC, respondent cannot validly claim that his right to due process
was violated.

In his dissenting opinion, my esteemed colleague, Justice Lucas P. Bersamin, concurred with the
CAs finding that respondents right to due process was violated by the unilateral investigation conducted
by the PAGC which did not furnish the respondent with a copy of the prejudicial PAGC resolution. The
dissent also agreed with the CAs observation that there was a rush on the part of the PAGC to find the
respondent guilty of the charge. This was supposedly manifested in the issuance by the PAGC of its
resolution even without taking into consideration any explanation and refutation of the charges that he
might make, and even before the CA could finally resolve his suit to challenge the PAGCs jurisdiction to
investigate him. On the other hand, the dissent proposed that the non-submission by respondent of his
counter-affidavit or verified answer as directed by the PAGC should not be taken against
him. Respondents refusal was not motivated by bad faith, considering his firm belief that PAGC did not
have jurisdiction to administratively or disciplinarily investigate him.

We do not share this view adopted by the dissent.

 Records reveal that on August 26, 2003, the CA already rendered a decision in CA-G.R. SP No.
77285 dismissing respondents petition challenging the jurisdiction of the PAGC. Respondents motion for
reconsideration was likewise denied by the CA. Upon elevation to this Court via a petition for review on
certiorari (G.R. No. 160443), the petition suffered the same fate. Under the First Divisions Resolution
dated January 26, 2004, the petition was denied for failure of the petitioner (respondent) to show that the
CA committed any reversible error in the assailed decision and resolution. Said resolution became final
and executory on April 27, 2004. Thus, at the time respondent submitted his counter-affidavit before the
Ombudsman on May 21, 2004, there was already a final resolution of his petition challenging the PAGCs
investigative authority.

On the other hand, the PAGC submitted to the OP its September 1, 2003 resolution finding
respondent guilty as charged and recommending that he be dismissed from the service, after the
expiration of the 60-day temporary restraining order issued on June 23, 2003 by the CA in CA-G.R. SP
No. 77285. The OP rendered its Decision adopting the PAGCs findings and recommendation on March
23, 2004. As thus shown, a period of ten (10) months had elapsed from the time respondent was directed
to file his counter-affidavit or verified answer to the administrative complaint filed against him, up to the
rendition of the OPs decision. It cannot therefore be said that the PAGC and OP proceeded with undue
haste in determining respondents administrative guilt.

Still on respondents repeated claim that he was denied due process, it must be noted that when
respondent received a copy of the OP Decision dated March 23, 2004, his petition for review filed in this
Court assailing the CAs dismissal of CA-G.R. SP No. 77285 was already denied under Resolution
dated January 26, 2004. However, despite the denial of his petition, respondent still refused to recognize
PAGCs jurisdiction and continued to assail the same before the CA in CA-G.R. SP No. 84254, a petition
for review under Rule 43 from the OPs March 23, 2004 Decision and May 13, 2004 Resolution. [16] In any
event, respondent was served with a copy of the OP Decision, was able to seek reconsideration of the said
decision, and appeal the same to the CA.

We also find nothing irregular in considering the investigation terminated and submitting the case
for resolution based on available evidence upon failure of the respondent to file his counter-affidavit or
answer despite giving him ample opportunity to do so. This is allowed by the Rules of Procedure of the
PAGC. The PAGC is also not required to furnish the respondent and complainant copy of its resolution.

The dissent of Justice Bersamin assails the OPs complete reliance on the PAGCs findings and
recommendation which constituted a gross violation of administrative due process as set forth in Ang
Tibay v. Court of Industrial Relations[17]. Among others, it is required that [T]he tribunal or any of its
judges must act on its or his own independent consideration of the facts and the law of the controversy,
and not simply accept the views of a subordinate in arriving at a decision. Justice Bersamin thus
concludes that the OP should have itself reviewed and appreciated the evidence presented
and independently considered the facts and the law of the controversy. It was also pointed out that the
OPs statement that the respondents arguments in his Motion for Reconsideration With Motion For Leave
To Admit Explanation/Refutation of Complaint were a mere reiteration of matters previously considered,
was a patent untruth.

We disagree.

The OP decision, after quoting verbatim the findings and recommendation of the PAGC, adopted
the same with a brief statement preceding the dispositive portion:
 After a circumspect study of the case, this Office fully agrees with the
recommendation of PAGC and the legal premises as well as the factual findings that hold
it together. Respondent failed to disclose in his 2001 and 2002 SSAL high-priced
vehicles in breach of the prescription of the relevant provisions of RA No. 3019 in
relation to RA No. 6713. He was, to be sure, afforded ample opportunity to explain his
failure, but he opted to let the opportunity pass by.[18]

The relevant consideration is not the brevity of the above disquisition adopting fully the findings
and recommendation of the PAGC as the investigating authority. It is rather the fact that the OP is not a
court but an administrative body determining the liability of respondent who was administratively
charged, in the exercise of its disciplinary authority over presidential appointees.

In Solid Homes, Inc. v. Laserna,[19] this Court ruled that the rights of parties in an administrative
proceedings are not violated by the brevity of the decision rendered by the OP incorporating the findings
and conclusions of the Housing and Land Use Regulatory Board (HLURB), for as long as the
constitutional requirement of due process has been satisfied. Thus:

It must be stated that Section 14, Article VIII of the 1987 Constitution need not
apply to decisions rendered in administrative proceedings, as in the case a[t] bar. Said
section applies only to decisions rendered in judicial proceedings. In fact, Article VIII is
titled Judiciary, and all of its provisions have particular concern only with respect to the
judicial branch of government.Certainly, it would be error to hold or even imply that
decisions of executive departments or administrative agencies are oblige[d] to meet the
requirements under Section 14, Article VIII.

The rights of parties in administrative proceedings are not violated as long

as the constitutional requirement of due process has been satisfied. In the landmark
case of Ang Tibay v. CIR, we laid down the cardinal rights of parties in administrative
proceedings, as follows:
1)      The right to a hearing, which includes the right to present ones case
and submit evidence in support thereof.
2)      The tribunal must consider the evidence presented.
3)      The decision must have something to support itself.
4)      The evidence must be substantial.
5)      The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected.
6)      The tribunal or body or any of its judges must act on its or his own
independent consideration of the law and facts of the controversy
and not simply accept the views of a subordinate in arriving at a
decision.
7)      The board or body should, in all controversial question, render its
decision in such a manner that the parties to the proceeding can
know the various issues involved, and the reason for the decision
rendered.
 As can be seen above, among these rights are the decision must be rendered on
the evidence presented at the hearing, or at least contained in the record and disclosed to
the parties affected; and that the decision be rendered in such a manner that the parties to
the proceedings can know the various issues involved, and the reasons for the decisions
rendered. Note that there is no requirement in Ang Tibay that the decision must express
clearly and distinctly the facts and the law on which it is based. For as long as the
administrative decision is grounded on evidence, and expressed in a manner that
sufficiently informs the parties of the factual and legal bases of the decision, the due
process requirement is satisfied.

At bar, the Office of the President apparently considered the Decision of HLURB
as correct and sufficient, and said so in its own Decision. The brevity of the assailed
Decision was not the product of willing concealment of its factual and legal
bases. Such bases, the assailed Decision noted, were already contained in the HLURB
decision, and the parties adversely affected need only refer to the HLURB Decision in
order to be able to interpose an informed appeal or action for certiorari under Rule 65.

xxxx

Accordingly, based on close scrutiny of the Decision of the Office of the

President, this Court rules that the said Decision of the Office of the President fully
complied with both administrative due process and Section 14, Article VIII of the 1987
Philippine Constitution.

The Office of the President did not violate petitioners right to due process when it
rendered its one-page Decision. In the case at bar, it is safe to conclude that all the
parties, including petitioner, were well-informed as to how the Decision of the Office of
the President was arrived at, as well as the facts, the laws and the issues involved therein
because the Office of the President attached to and made an integral part of its Decision
the Decision of the HLURB Board of Commissioners, which it adopted by reference. If it
were otherwise, the petitioner would not have been able to lodge an appeal before the
Court of Appeals and make a presentation of its arguments before said court without
knowing the facts and the issues involved in its case.[20](Emphasis supplied.)

Since respondent repeatedly refused to answer the administrative charge against him despite
notice and warning by the PAGC, he submitted his evidence only after an adverse decision was rendered
by the OP, attaching the same to his motion for reconsideration. That the OP denied the motion by
sustaining the PAGCs findings without any separate discussion of respondents arguments and belatedly
submitted evidence only meant that the OP found the same lacking in merit and insufficient to overturn its
ruling on respondents administrative liability.

On the fourth ground cited by the respondent, we maintain that the penalty of dismissal from the
service is justified as no acceptable explanation was given for the non-declaration of the two expensive
cars in his 2001 and 2002 SSAL.

Pursuant to Section 11, paragraph (b) of R.A. No. 6713, any violation of the law proven in a
proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or
employee, even if no criminal prosecution is instituted against him. Respondents deliberate attempt to
evade the mandatory disclosure of all assets acquired during the period covered was evident when he first
claimed that the vehicles were lumped under the entry Machineries/Equipment or still mortgaged, and
later averred that these were already sold by the end of the year covered and the proceeds already spent.

Under this scheme, respondent would have acquired as many assets never to be declared at
anytime. Such act erodes the function of requiring accuracy of entries in the SSAL which must be a true
and detailed statement. It undermines the SSAL as the means to achieve the policy of accountability of all
public officers and employees in the government through which the public are able to monitor movement
in the fortune of a public official; [as] a valid check and balance mechanism to verify undisclosed
properties and wealth.[21]

IN VIEW OF THE FOREGOING, the motion for reconsideration is DENIED WITH

FINALITY.

Let entry of judgment be made in due course.

SO ORDERED.