Page |1

G.R. No. L-22754

December 31, 1965

RUBEN A. VILLALUZ, petitioner,

vs.
CALIXTO ZALDIVAR, ET AL., respondents.
Magtanggol C. Gunigundo and Juan T. David for petitioner.
Office of the Solicitor General for respondents.
BAUTISTA ANGELO, J.:
Petitioner seeks his reinstatement as Administrator of the
Motor Vehicles Office with payment of back salaries in a
petition filed before this Court on April 1, 1964.
He alleged that he was nominated as chief of said office on
May 20, 1958 and two days thereafter his nomination was
confirmed by the Commission on Appointments; that on May
26, 1958 he took his oath of office as such after having been
informed of his nomination by then Acting Assistant
Executive Secretary Sofronio C. Quimson; that in a letter
dated January 28, 1960 addressed to the President of the
Philippines by Congressman Joaquin R. Roces as Chairman of
the Committee on Good Government of the House of
Representatives, the latter informed the former of the
findings made by his Committee concerning alleged gross
mismanagement and inefficiency committed by petitioner in
the Motor Vehicles Office which are summed up in the letter,
as follows: (1) malpractice in office resulting in huge losses
to the government; (2) failure to correct inadequate controls
or intentional toleration of the same, facilitating thereby the
commission of graft and corruption; and (3) negligence to
remedy unsatisfactory accounting; that as a result of said
findings.
Congressman
Roces
recommended
the
replacement of petitioner and of his assistant chief Aurelio
de Leon as well as the complete revamp of the offices
coming under the Motor Vehicles Office by the new chief

who may be appointed thereafter; that having been officially

informed of the content of said letter, then Secretary of
Public Works and Communications furnished petitioner with
a copy thereof requiring him to explain within 72 hours why
no administrative action should be taken against him
relative to the charges contained in the letter; that
petitioner answered the letter as required wherein he
explained and refuted in detail each and everyone of the
charges contained in the letter of Congressman Roces; that
on February 15, 1960, the then Executive Secretary Natalio
P. Castillo suspended petitioner as Administrator of the
Motor Vehicles Office, having thereupon created an
investigating committee with the only purpose of
investigating the charges against petitioner and his
assistant Aurelio de Leon, and to undertake the investigation
a prosecution panel was created headed by Special
Prosecutor Emilio A. Gancayco; that after the investigation
said committee submitted its report to the President of the
Philippines who thereafter issued Administrative Order No.
332 decreeing the removal from office of petitioner; that as
a result of petitioner's removal Apolonio Ponio was
appointed to take his place as acting administrator; and
that, after having been officially notified of his removal,
petitioner filed a motion for reconsideration and/or
reinstatement, and when this was denied, he filed the
instant petition before this Court.
Respondents in their answer denied the claim of petitioner
that the charges contained in the letter of Congressman
Roces were not directed against him but against his office in
general for the truth is that he was, specifically charged with
mismanagement, gross inefficiency and negligence in the
performance of his duties as Chief of the Motor Vehicles
Office, and as a result he was required to the same within 72
hours to explain why no disciplinary action should be taken
against him. Respondents also denied that petitioner was
investigated without being accorded due process is required

Page |2

by law for in fact he was given every reasonable opportunity

to present his defense, to secure the attendance of
witnesses, and to produce documents in his behalf in a
manner consistent with administrative due process.
Respondent also averred that the President of the
Philippines, contrary to petitioner's claim, has jurisdiction to
investigate and remove him since he is a presidential
appointee who belongs to the non-competitive or
unclassified service under Section 5 of Republic Act No.
2260. Respondents finally averred that the letter of
Congressman Joaquin R. Roces is in effect a valid
administrative complaint because it contained specific
charges which constitute just causes for his suspension and
removal; that said charges need not be sworn to for the
Chief Executive, as administrative head of petitioner, is
empowered to commence administrative proceedings motu
proprio pursuant to Executive Order No. 370, series of 1941,
without need of any previous verified complaint. And as
special defense respondents averred that petitioner is guilty
of laches for having allowed almost four years before
instituting the present action.
There is merit in the claim that petitioner, being a
presidential appointee, belongs to the non-competitive or
unclassified service of the government and is such he can
only be investigated and removed from office after due
hearing the President of the Philippines under the principle
that "the power to remove is inherent in the power to
appoint" as can be clearly implied from Section 5 of Republic
Act No. 2260. Such is what we ruled in the recent case of
Ang-Angco wherein on this point we said:
There is some point in the argument that the power of
control of the President may extend to the power to
investigate, suspend or remove officers and employees who
belong to the executive department if they are presidential
appointees or do not belong to the classified service for

such can be justified under the principle that the power to

remove is inherent in the power to appoint (Lacson v.
Romero, supra), but not with regard to those officers or
employees who belong, to the classified service for as to
them that inherent power cannot be exercised. This is in line
with the provision of our Constitution which says that the
"Congress may by law vest the appointment of inferior
officers, in the President alone, in the courts, or in the head
of departments" (Article VII, Section 10 [3], Constitution).
(Ang-Angco v. Castillo, et al., L-17169, November 30, 1963).
Consequently, as a corollary to the foregoing ruling, we may
state that the Commissioner of Civil Service is without
jurisdiction to hear and decide the administrative charges
filed against petitioner because the authority of said
Commissioner to pass upon questions of suspension,
separation, or removal can only be exercised with reference
to permanent officials and employees in the classified
service to which classification petitioner does not belong.
This is also what we said in the Ang-Angco case when, in
interpreting Section 16 (i) of Republic Act No. 2260, we
emphasized that only permanent officers and employees
who belong to the classified service come under the
exclusive jurisdiction of the Commissioner of Civil Service.
There is, therefore, no error of procedure committed by
respondents insofar as the investigation and disciplinary
action taken against petitioner is concerned, even if he is
under the control and supervision of the Department of
Public Works, in view of the reason we have already stated
that he is a presidential appointee who comes exclusively
under the jurisdiction of the President. The following
rationale supports this view:
Let us now take up the power of control given to the
President by the Constitution over all officers and employees
in the executive departments which is now involved by

Page |3

respondent as justification to override the specific provisions

of the Civil Service Act. This power of control is couched in
general terms for it does not set in specific manner its
extent and scope. Yes, this Court in the case of Hebron v.
Reyes, supra, occasion to interpret the extent of such power
to mean "the power of an officer to alter or modify or nullify
or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of
the former for that of the latter," to distinguish it from the
power of general supervision over municipal government,
but the decision does not go to the extent of including the
power to remove an officer or employee in the executive
department. Apparently, the power merely applies to the
exercise of control over the acts of the subordinate and not
over the actor or agent himself of the act. It only means that
the President may set aside the judgment or action taken by
a subordinate in the performance of his duties.
That meaning is also the meaning given to the word
"control" as used in administrative law. Thus, the
Department Head pursuant to Section 79 (c) is given direct
control of all bureaus and offices under his department by
virtue of which he may "repeal or modify decisions of the
chiefs of said bureaus or offices," and under Section 74 of
the same Code, the President's control over the executive
department only refers to matters of general policy. The
term "policy" means a settled or definite course or method
adopted and followed by a government, body or individual,
and it cannot be said that the removal of an inferior officer
comes within the meaning of control over a specific policy of
government. (Ang-Angco v. Castillo, et al., supra)
With regard to the claim that the administrative proceedings
conducted against petitioner which led to his separation are
illegal simply because the charges preferred against him by
Congressman Roces were not sworn to as required by
Section 72 of Republic Act No. 2260, this much we can say:

said proceedings having been commenced against

petitioner upon the authority of the Chief Executive who was
his immediate administrative head, the same may be
commenced by him motu proprio without previous verified
complaint pursuant to Executive Order No. 370, series of
1941, the pertinent provisions of which are is follows:
(1) Administrative proceedings may be commenced a
government officer or employee by the head or chief of the
bureau or office concerned motu proprio or upon complaint
of any person which shall be subscribed under oath by the
complainant: Provided, That if a complaint is not or cannot
be sworn to by the complainant, the head or chief of the
bureau or office concerned may in his discretion, take action
thereon if the public interest or the special circumstances of
the case, so warrant.1
Finally, on the theory that the instant petition partakes of
the nature of quo warranto which seeks petitioners
reinstatement to his former position as Administrator of the
Motor Vehicles Office, we are of the opinion that it has now
no legal raison d'etre for having been filed more than one
year after its cause of action had accrued. As this Court has
aptly said: "a delay of slightly over one (1) year was
considered sufficient ... to be an action for mandamus, by
reason of laches or abandonment of office. We see no
reason to depart from said view in the present case,
petitioner herein having allowed about a year and a half to
elapse before seeking reinstatement." (Jose V. Lacson, et al.,
L-10177, May 17, 1957).
WHEREFORE, petition is denied. No costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon,
Regala, Makalintal and Bengzon, JJ., concur.
Zaldivar, J., took no part.

Page |4

Footnotes
1
The executive order is valid and subsisting
notwithstanding the enactment of Republic Act No. 2260 as
interpreted by this Court in L-21008, Diaz, et al.
promulgated October 29, 1965.

G.R. No. 88211 October 27, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS,
NICANOR
YIGUEZ
and
PHILIPPINE
CONSTITUTION
ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG,
SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL
RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice,
Immigration Commissioner, Secretary of National Defense
and Chief of Staff, respectively, respondents.
RESOLUTION

EN BANC:
In its decision dated September 15,1989, the Court, by a
vote of eight (8) to seven (7), dismissed the petition, after
finding that the President did not act arbitrarily or with

grave abuse of discretion in determining that the return of

former President Marcos and his family at the present time
and under present circumstances pose a threat to national
interest and welfare and in prohibiting their return to the
Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President
Aquino said:
In the interest of the safety of those who will take the death
of Mr. Marcos in widely and passionately conflicting ways,
and for the tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be allowed to be
brought to our country until such time as the government,
be it under this administration or the succeeding one, shall
otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p,
443.]
On October 2, 1989, a Motion for Reconsideration was filed
by petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from
returning to the Philippines is to deny them not only the
inherent right of citizens to return to their country of birth
but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of
former President Marcos. Thus, petitioners prayed that the
Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R.
Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M.
Manotoc, Tommy Manotoc and Gregorio Araneta to return to
the Philippines, and enjoin respondents from implementing
President Aquino's decision to bar the return of the remains

Page |5

of Mr. Marcos, and the other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot
and academic as to the deceased Mr. Marcos. Moreover, he
asserts that "the 'formal' rights being invoked by the
Marcoses under the label 'right to return', including the label
'return of Marcos' remains, is in reality or substance a 'right'
to destabilize the country, a 'right' to hide the Marcoses'
incessant shadowy orchestrated efforts at destabilization."
[Comment, p. 29.] Thus, he prays that the Motion for
Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for
reconsideration, the burden is upon the movants, petitioner
herein, to show that there are compelling reasons to
reconsider the decision of the Court.

of the world." [Comment, p. 1; Philippine Star, October 4,

1989.]
3. Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has
unstated residual powers which are implied from the grant
of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers
of the President are not limited to what are expressly
enumerated in the article on the Executive Department and
in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of
Mr. Marcos, for the result was a limitation of specific power
of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the
general grant of executive power.

2. After a thorough consideration of the matters raised in

the motion for reconsideration, the Court is of the view that
no compelling reasons have been established by petitioners
to warrant a reconsideration of the Court's decision.

That the President has powers other than those expressly

stated in the Constitution is nothing new. This is recognized
under the U.S. Constitution from which we have patterned
the distribution of governmental powers among three (3)
separate branches.

The death of Mr. Marcos, although it may be viewed as a

supervening event, has not changed the factual scenario
under which the Court's decision was rendered. The threats
to the government, to which the return of the Marcoses has
been viewed to provide a catalytic effect, have not been
shown to have ceased. On the contrary, instead of erasing
fears as to the destabilization that will be caused by the
return of the Marcoses, Mrs. Marcos reinforced the basis for
the decision to bar their return when she called President
Aquino "illegal," claiming that it is Mr. Marcos, not Mrs.
Aquino, who is the "legal" President of the Philippines, and
declared that the matter "should be brought to all the courts

Article II, [section] 1, provides that "The Executive Power

shall be vested in a President of the United States of
America." In Alexander Hamilton's widely accepted view,
this statement cannot be read as mere shorthand for the
specific executive authorizations that follow it in [sections] 2
and 3. Hamilton stressed the difference between the
sweeping language of article II, section 1, and the
conditional language of article I, [section] 1: "All legislative
Powers herein granted shall be vested in a Congress of the
United States . . ." Hamilton submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought therefore to be
considered, as intended merely to specify the principal

Page |6

articles implied in the definition of execution power; leaving

the rest to flow from the general grant of that power,
interpreted in confomity with other parts of the
Constitution...
In Myers v. United States, the Supreme Court accepted
Hamilton's proposition, concluding that the federal
executive, unlike the Congress, could exercise power from
sources not enumerated, so long as not forbidden by the
constitutional text: the executive power was given in
general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by
direct expressions where limitation was needed. . ." The
language of Chief Justice Taft in Myers makes clear that the
constitutional concept of inherent power is not a synonym
for power without limit; rather, the concept suggests only
that not all powers granted in the Constitution are
themselves exhausted by internal enumeration, so that,
within a sphere properly regarded as one of "executive'
power, authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW
158-159 (1978).]
And neither can we subscribe to the view that a recognition
of the President's implied or residual powers is tantamount
to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the
President under the Constitution should not be confused
with the power of the President under the 1973 Constitution
to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime Minister),
there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the
regular National Assembly fails or is unable to act
adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to

meet the exigency, issue the necessary decrees, orders, or

letters of instruction, which shall form part of the law of the
land,
There is no similarity between the residual powers of the
President under the 1987 Constitution and the power of the
President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to an
express grant of power. It is not implied. Then, Amendment
No. 6 refers to a grant to the President of the specific power
of legislation.
4. Among the duties of the President under the Constitution,
in compliance with his (or her) oath of office, is to protect
and promote the interest and welfare of the people. Her
decision to bar the return of the Marcoses and subsequently,
the remains of Mr. Marcos at the present time and under
present circumstances is in compliance with this bounden
duty. In the absence of a clear showing that she had acted
with arbitrariness or with grave abuse of discretion in
arriving at this decision, the Court will not enjoin the
implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for
Reconsideration for lack of merit."

Page |7

Article XVI, Section 6:

The State shall establish and maintain one police force,
which stall be national in scope and civilian in character, to
be administered and controlled by a national police
commission. The authority of local executives over the
police units in their jurisdiction shall be provided by law. 1
With the aforequoted provision in mind, Congress passed
Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE
PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT,
AND FOR OTHER PURPOSES" as the consolidated version of
House Bill No. 23614 and Senate Bill No. 463.
Following the said Act's approval by President Corazon C.
Aquino on December 13, 1990, it was published on
December 17, 1990. 2

G.R. No. 96409 February 14, 1992

CITIZEN J. ANTONIO M. CARPIO, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF LOCAL
GOVERNMENTS, THE SECRETARY OF NATIONAL DEFENSE
and THE NATIONAL TREASURER, respondents.

PARAS, J.:
At the very outset, it should be well to set forth the
constitutional provision that is at the core of the controversy
now confronting us, thus:

Presently, however, petitioner as citizen, taxpayer and

member of the Philippine Bar sworn to defend the
Constitution, filed the petition now at bar on December 20,
1990, seeking this Court's declaration of unconstitutionality
of RA 6975 with prayer for temporary restraining order.
But in an en banc resolution dated December 27, 1990, We
simply required the public respondents to file their
Comment, without however giving due course to the petition
and the prayer therein. Hence, the Act took effect after
fifteen days following its publication, or on January 1, 1991.
3
Before we settle down on the merits of the petition, it would
likewise be well to discuss albeit briefly the history of our
police force and the reasons for the ordination of Section 6,
Article XVI in our present Constitution.

Page |8

During the Commonwealth period, we had the Philippine

Constabulary as the nucleus of the Philippine Ground Force
(PGF), now the Armed Forces of the Philippines (AFP). The PC
was made part of the PGF but its administrative, supervisory
and directional control was handled by the then Department
of the Interior. After the war, it remained as the "National
Police" under the Department of National Defense, as a
major service component of the AFP. 4
Later, the Integration Act of 1975 5 created the Integrated
National Police (INP) under the Office of the President, with
the PC as the nucleus, and the local police forces as the
civilian components. The PC-INP was headed by the PC Chief
who, as concurrent Director-General of the INP, exercised
command functions over the INP. 6
The National Police Commission (NAPOLCOM) 7 exercised
administrative control and supervision while the local
executives exercised operational supervision and direction
over the INP units assigned within their respective localities.
8
The set-up whereby the INP was placed under the command
of the military component, which is the PC, severely eroded
the INP's civilian character and the multiplicity in the
governance of the PC-INP resulted in inefficient police
service. 9 Moreover, the integration of the national police
forces with the PC also resulted in inequities since the
military component had superior benefits and privileges. 10
The Constitutional Commission of 1986 was fully aware of
the structural errors that beset the system. Thus, Com.
Teodulo C. Natividad explained that:
xxx xxx xxx
MR. NATIVIDAD. . . . The basic tenet of a modern police

organization is to remove it from the military. 11

xxx xxx xxx
Here in our draft Constitution, we have already made a
constitutional postulate that the military cannot occupy any
civil service position [in Section 6 of the Article on the Civil
Service 12] Therefore, in keeping with this and because of
the universal acceptance that a police force is a civilian
function, a public service, and should not be performed by
military force, one of the basic reforms we are presenting
here is that it should be separated from the military force
which is the PC. 13
xxx xxx xxx
Furthermore:
xxx xxx xxx
. . . the civilian police cannot blossom into full profession
because most of the key positions are being occupied by the
military So, it is up to this Commission to remove the police
from such a situation so that it can develop into a truly
professional civilian police. . . . 14
Hence, the "one police force, national in scope, and civilian
in character" provision that is now Article XVI, Section 6 of
the 1987 Constitution.
And so we now come to the merits of the petition at hand.
In the main, petitioner herein respectfully advances the view
that RA 6975 emasculated the National Police Commission
by limiting its power "to administrative control" over the
Philippine National Police (PNP), thus, "control" remained
with the Department Secretary under whom both the

Page |9

National Police Commission and the PNP were placed. 15

We do not share this view.
To begin with, one need only refer to the fundamentally
accepted principle in Constitutional Law that the President
has control of all executive departments, bureaus, and
offices to lay at rest petitioner's contention on the matter.
This presidential power of control over the executive branch
of government extends over all executive officers from
Cabinet Secretary to the lowliest clerk 17 and has been held
by us, in the landmark case of Mondano vs. Silvosa, 18 to
mean "the power of [the President] to alter or modify or
nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the
judgment of the former with that of the latter." It is said to
be at the very "heart of the meaning of Chief Executive." 19
Equally well accepted, as a corollary rule to the control
powers of the President, is the "Doctrine of Qualified Political
Agency". As the President cannot be expected to exercise
his control powers all at the same time and in person, 20 he
will have to delegate some of them to his Cabinet members.
Under this doctrine, which recognizes the establishment of a
single executive, 21 "all executive and administrative
organizations are adjuncts of the Executive Department, the
heads of the various executive departments are assistants
and agents of the Chief Executive, and, except in cases
where the Chief Executive is required by the Constitution or
law to act in person on the exigencies of the situation
demand that he act personally, the multifarious executive
and administrative functions of the Chief Executive are
performed by and through the executive departments, and
the acts of the Secretaries of such departments, performed
and promulgated in the regular course of business, unless

disapproved or reprobated by
presumptively the acts of the
(emphasis ours)

the Chief Executive

Chief Executive." 22

Thus, and in short, "the President's power of control is

directly exercised by him over the members of the Cabinet
who, in turn, and by his authority, control the bureaus and
other offices under their respective jurisdictions in the
executive department." 23
Additionally, the circumstance that the NAPOLCOM and the
PNP are placed under the reorganized Department of
Interior and Local Government is merely an administrative
realignment that would bolster a system of coordination and
cooperation among the citizenry, local executives and the
integrated law enforcement agencies and public safety
agencies created under the assailed Act, 24 the funding of
the PNP being in large part subsidized by the national
government.
Such organizational set-up does not detract from the
mandate of the Constitution that the national police force
shall be administered and controlled by a national police
commission as at any rate, and in fact, the Act in question
adequately provides for administration and control at the
commission level, as shown in the following provisions, to
wit:
Sec. 14. Powers and Functions of the Commission. The
Commission shall exercise the following powers and
functions:
xxx xxx xxx
(i) Approve or modify plans and programs on education and
training, logistical requirements, communications, records,
information systems, crime laboratory, crime prevention and

P a g e | 10

crime reporting;
(j) Affirm, reverse or modify, through the National Appellate
Board, personnel disciplinary actions involving demotion or
dismissal from the service imposed upon members of the
Philippine National Police by the Chief of the PNP;
(k) Exercise appellate jurisdiction through .the regional.
appellate boards over administrative cases against
policemen and over decisions on claims for police benefits;
xxx xxx xxx
Sec. 26. The Command and direction of the PNP shall be
vested in the Chief of the PNP . . . Such command and
direction of the Chief of the PNP may be delegated to
subordinate officials with respect to the units under their
respective commands, in accordance with the rules and
regulations prescribed by the Commission. . . .
xxx xxx xxx
Sec. 35. . . . To enhance police operational efficiency and
effectiveness, the Chief of the PNP may constitute such
other support units as may be necessary subject to the
approval of the Commission. . . .
xxx xxx xxx
Sec. 37. . . . There shall be established a performance
evaluation system which shall be administered in
accordance with the rules, regulations and standards; and a
code of conduct promulgated by the Commission for
members of the PNP. . . .
xxx xxx xxx

Petitioner further asserts that in manifest derogation of the

power of control of the NAPOLCOM over the PNP, RA 6975
vested the power to choose the PNP Provincial Director and
the Chiefs of Police in the Governors and Mayors,
respectively; the power of "operational supervision and
control" over police units in city and municipal mayors; in
the Civil Service Commission, participation in appointments
to the positions of Senior Superintendent to Deputy DirectorGeneral as well as the administration of qualifying entrance
examinations; disciplinary powers over PNP members in the
"People's Law Enforcement Boards" and in city and
municipal mayors. 25
Once more, we find no real controversy upon the foregoing
assertions.
It is true that when the Constitutional Commissioners of
1986 provided that the authority of local executives over the
police units in their jurisdiction shall be provided by law,
they intended that the day-to-day functions of police work
like crime, investigation, crime prevention activities, traffic
control, etc., would be under the operational control of the
local executives as it would not be advisable to give full
control of the police to the local executives. 26
They reasoned that in the past, this gave rise to warlordism,
bossism, and sanctuaries for vices and abuses. 27
It would appear then that by vesting in the local executives
the power to choose the officers in question, the Act went
beyond the bounds of the Constitution's intent.
Not so. We find light in the principle of constitutional
construction that every presumption should be indulged in
favor of constitutionality and the court in considering the
validity of the statute in question should give it such
reasonable construction as can be reached to bring it within

P a g e | 11

the fundamental
law. 28
Under the questioned provisions, which read as follows:
D. PARTICIPATION OF LOCAL
ADMINISTRATION OF THE PNP.

EXECUTIVES

IN

THE

Sec. 51. Powers of Local Government Officials over the PNP

Units or Forces.
Governors and mayors shall be deputized as representatives
of the Commission in their respective territorial jurisdictions.
As such, the local executives shall discharge the following
functions:

the exercise of their functions under that section. Thus,

unless countermanded by the NAPOLCOM, their acts are
valid and binding as acts of the NAPOLCOM." 29 It is
significant to note that the local officials, as NAPOLCOM
representatives, will choose the officers concerned from a
list of eligibles (those who meet the general qualifications
for appointment to the PNP) 30 to be recommended by PNP
officials.
The same holding is true with respect to the contention on
the operational supervision and control exercised by the
local officials. Those officials would simply be acting as
representatives of the Commission.

a.) Provincial Governor (1) . . .

As regards the assertion involving the Civil Service

Commission, suffice it to say that the questioned provisions,
which read:

The provincial governor shall choose the provincial director

from a list of three (3) eligibles recommended by the PNP
Regional Director.

Sec. 31. Appointment of PNP Officers and Members. The

Appointment of the officers and members of the PNP shall
be effected in the following manner:

4) . . . City and municipal mayors shall have the following

authority over the PNP units in their respective jurisdictions:

a.) Police Officer I to Senior Police Officer IV. Appointed by

the PNP regional director for regional personnel or by the
Chief of the PNP for national headquarters personnel and
attested by the Civil Service Commission;

i.) Authority to choose the chief of police from a list of five

(5) eligibles recommended by the Provincial Police Director. .
. . (Emphasis ours)
full control remains with the National Police Commission.
We agree, and so hold, with the view of the Solicitor General
that "there is no usurpation of the power of control of the
NAPOLCOM under Section 51 because under this very same
provision, it is clear that the local executives are only acting
as representatives of the NAPOLCOM. . . . As such deputies,
they are answerable to the NAPOLCOM for their actions in

b.) Inspector to Superintendent. Appointed by the Chief of

the PNP, as recommended by their immediate superiors,
and attested by the Civil Service Commission;
c.) Senior Superintendent to Deputy Director-General.
Appointed by the President upon recommendation of the
Chief of the PNP, with proper endorsement by the Chairman
of the Civil Service
Commission . . .

P a g e | 12

Sec. 32. Examinations for Policemen. The Civil Service

Commission shall administer the qualifying entrance
examinations for policemen on the basis of the standards
set by the NAPOLCOM.
precisely underscore the civilian character of the national
police force, and will undoubtedly professionalize the same.
The grant of disciplinary powers over PNP members to the
"People's Law Enforcement Boards" (or the PLEB) and city
and municipal mayors is also not in derogation of the
commission's power of control over the PNP.
Pursuant to the Act, the Commission exercises appellate
jurisdiction, thru the regional appellate boards, over
decisions of both the PLEB and the said mayors. This is so
under Section 20(c). Furthermore, it is the Commission
which shall issue the implementing guidelines and
procedures to be adopted by the PLEB for in the conduct of
its hearings, and it may assign NAPOLCOM hearing officers
to act as legal consultants of the PLEBs (Section 43-d4, d5).
As a disciplinary board primarily created to hear and decide
citizen's complaints against erring officers and members of
the PNP, the establishment of PLEBs in every city, and
municipality would all the more help professionalize the
police force.
Petitioner would likewise have this Court imagine that
Section 12 of the questioned Act, the pertinent portion of
which reads:
Sec. 12. Relationship of the Department with the
Department of National Defense. During a period of
twenty- four (24) months from the effectivity of this Act, the
Armed Forces of the Philippines (AFP) shall continue its
present role of preserving the internal and external security

of the State: Provided, that said period may be extended by

the President, if he finds it justifiable, for another period not
exceeding twenty-four (24) months, after which, the
Department shall automatically take over from the AFP the
primary role of preserving internal security, leaving to the
AFP its primary role of preserving external security.
xxx xxx xxx
constitutes an "encroachment upon, interference with, and
an abdication by the President of, executive control and
commander-in-chief powers."
That We are not disposed to do for such is not the case at all
here. A rejection thus of petitioner's submission anent
Section 12 of the Act should be in order in the light of the
following exchanges during the CONCOM deliberations of
Wednesday, October 1, 1986:
xxx xxx xxx
MR. RODRIGO. Just a few questions. The President of the
Philippines is the Commander-in-Chief of all the armed
forces.
MR. NATIVIDAD. Yes, Madam President.
MR. RODRIGO. Since the national police is not integrated
with the armed forces, I do not suppose they come under
the Commander-in-Chief powers of the President of the
Philippines.
MR. NATIVIDAD. They do, Madam President. By law they are
under the supervision and control of the President of the
Philippines.
MR. RODRIGO. Yes, but the President is not the Commander-

P a g e | 13

in-Chief of the national police.

MR. NATIVIDAD. He is the President.
MR. RODRIGO. Yes, the Executive. But they do not come
under that specific provision that the President is
Commander-in-Chief of all the armed forces.
MR. NATIVIDAD. No, not under the Commander-in-Chief
provision.
MR. RODRIGO. There are two other powers of the President.
The President has control over departments, bureaus and
offices, and supervision over local governments. Under
which does the police fall, under control or under
supervision?
MR. NATIVIDAD. Both, Madam President.
MR. RODRIGO. Control and Supervision.
MR. NATIVIDAD. Yes, in fact, the National Police Commission
is under the Office of the President. (CONCOM RECORDS,
Vol. 5, p. 296)
It thus becomes all too apparent then that the provision
herein assailed precisely gives muscle to and enforces the
proposition that the national police force does not fall under
the Commander-in-Chief powers of the President. This is
necessarily so since the police force, not being integrated
with the military, is not a part of the Armed Forces of the
Philippines. As a civilian agency of the government, it
properly comes within, and is subject to, the exercise by the
President of the power of executive control.
Consequently, Section 12 does not constitute abdication of
commander-in-chief powers. It simply provides for the

transition period or process during which the national police

would gradually assume the civilian function of safeguarding
the internal security of the State. Under this instance, the
President, to repeat, abdicates nothing of his war powers. It
would bear to here state, in reiteration of the preponderant
view, that the President, as Commander-in-Chief, is not a
member of the Armed Forces. He remains a civilian whose
duties under the Commander-in-Chief provision "represent
only a part of the organic duties imposed upon him. All his
other functions are clearly civil in nature." 31 His position as
a civilian Commander-in-Chief is consistent with, and a
testament to, the constitutional principle that "civilian
authority is, at all times, supreme over the military." (Article
II, Section 3, 1987 Constitution)
Finally, petitioner submits that the creation of a "Special
Oversight Committee" under Section 84 of the Act,
especially the inclusion therein of some legislators as
members (namely: the respective Chairmen of the
Committee on Local Government and the Committee on
National Defense and Security in the Senate, and the
respective Chairmen of the Committee on Public Order and
Security and the Committee on National Defense in the
House of Representatives) is an "unconstitutional
encroachment upon and a diminution of, the President's
power of control over all executive departments, bureaus
and offices."
But there is not the least interference with the President's
power of control under Section 84. The Special Oversight
Committee is simply an ad hoc or transitory body,
established and tasked solely with planning and overseeing
the immediate "transfer, merger and/or absorption" into the
Department of the Interior and Local Governments of the
"involved agencies." This it will undertake in accordance
with the phases of implementation already laid down in
Section 85 of the Act and once this is carried out, its

P a g e | 14

functions as well as the committee itself would cease

altogether. 32 As an ad hoc body, its creation and the
functions it exercises, decidedly do not constitute an
encroachment and in diminution of the power of control
which properly belongs to the President. What is more, no
executive department, bureau or office is placed under the
control or authority, of the committee. 33
As a last word, it would not be amiss to point out here that
under the Constitution, there are the so-called independent
Constitutional Commissions, namely: The Civil Service
Commission, Commission on Audit, and the Commission on
Elections. (Article IX-A, Section 1)
As these Commissions perform vital governmental functions,
they have to be protected from external influences and
political pressures. Hence, they were made constitutional
bodies, independent of and not under any department of the
government. 34 Certainly, they are not under the control of
the President.
The Constitution also created an independent office called
the "Commission on Human Rights." (Article XIII, Section
17[1]).However, this Commission is not on the same level as
the Constitutional Commissions under Article IX, although it
is independent like the latter Commissions. 35 It still had to
be constituted thru Executive Order No. 163 (dated May 5,
1987).
In contrast, Article XVI, Section 6 thereof, merely mandates
the statutory creation of a national police commission that
will administer and control the national police force to be
established thereunder.
This commission is, for obvious reasons, not in the same
category as the independent Constitutional Commissions of
Article IX and the other constitutionally created independent

Office, namely, the Commission on Human Rights.

By way of resume, the three Constitutional Commissions
(Civil Service, Audit, Elections) and the additional
commission created by the Constitution (Human Rights) are
all independent of the Executive; but the National Police
Commission is not. 36 In fact, it was stressed during the
CONCOM deliberations that this commission would be under
the President, and hence may be controlled by the
President, thru his or her alter ego, the Secretary of the
Interior and Local Government.
WHEREFORE, having in view all of the foregoing holdings,
the instant petition is hereby DISMISSED for lack of merit.
SO ORDERED.

P a g e | 15

G.R. No. 85243 October 12, 1989

CESAR R. DE LEON, petitioner,
vs.
J. ANTONIO M. CARPIO, Director,
Investigation, respondent.

National

Bureau

of

National

Bureau

of

G.R.No. 85442 October 12, 1989

FRANCISCO R. ESTAVILLO petitioner
vs.
J. ANTONIO M. CARPIO, Director,
Investigation, respondent.

Ramon E. Encarnacion for petitioner Cesar R. De Leon.

Doroteo B. Daguna for petitioner

CRUZ, J.:
These two cases have been consolidated because they
involve the same issue against the respondent Director of
the National Bureau of Investigation, who has refused to
reinstate the petitioners in defiance of the orders of the Civil
Service Commission as referred to him by the Secretary of
Justice for implementation.
The services of Francisco R. Estavillo as Agent III and of
Cesar R. de Leon as Head Agent in the National Bureau of
Investigation were terminated by then Minister of Justice
Neptali A. Gonzales in separate Orders both dated January
27, 1987. 1 Estavillo was notified of his dismissal on March
6,1987, and De Leon on February 6, 1987 . 2 Both appealed
to the Review Committee created under Executive Order No.

P a g e | 16

17, but this body declined to act on their petitions for

reconsideration on the ground that it had lost jurisdiction
with the ratification of the new Constitution on February 2,
1987. They were advised instead to seek relief from the Civil
Service Commission. 3 They did. In substantially similar
Orders, 4 they were sustained by the Merit Systems
Protection Board of the said Commission. It was held that
their dismissals were invalid and unconstitutional, having
been done in violation of their security of tenure under the
1987 Constitution, which had already become effective.
Accordingly, the Board ordered their reinstatement with
back salaries but without prejudice to the filing of
appropriate administrative charges against them.
On September 29, 1987, Undersecretary of Justice Eduardo
G. Montenegro referred the order reinstating Estavillo to the
respondent as Director of the National Bureau of
Investigation "for his information and appropriate action." 5
On March 14, 1988, Undersecretary of Justice Silvestre H.
Bello III referred the order reinstating De Leon to the
respondent "for appropriate action" and "immediate
implementation." 6
The reaction of the respondent was to return the said orders
to the Civil Service Commission "without action," claiming
that they were null and void for having been rendered
without jurisdiction. 7 This prompted the Board to issue
another Order dated June 20, 1988, in which it rejected the
respondent's contention and concluded that "it appearing
that the reglementary period to appeal has long expired, the
orders dated August 27,1987 and March 4,1988, of this
Board have become final and executory and, therefore,
should now be implemented." 8
On June 29, 1988, the Secretary of Justice sent the following
memorandum 9 to the respondent:

June 29, 1988

MEMORANDUM
TO: NBI Director J. Antonio Carpio
RE: Order of the Merit Systems Protection Board of the Civil
Service Commission, reiterating the reinstatement of
Messrs. Cesario de Leon and Francisco Estabillo to their
former positions.
Your attention is invited to the enclosed Order of the Merit
Systems Protection Board, dated June 20, 1988, particularly
the last paragraph thereof which reads as follows:
In view of the foregoing, and it appearing that the
reglementary period to appeal has long expired, the orders
dated August 27, 1987 and March 4,1988 of this Board have
become final and executory and, therefore, should now be
implemented.
You are therefore directed to implement immediately the
aforecited Order of the Merit Systems Protection Board
reiterating the reinstatement of Messrs. Cesario de Leon and
Francisco Estabillo to their former positions.
SEDFREY A. ORDOEZ
Secretary of Justice
Instead of complying, the respondent issued the following
memorandum: 10
1 July 1988
MEMORANDUM TO: NBI Assistant Director

P a g e | 17

NBI Deputy Directors

Chief, Legal Division
Unit Chiefs of Agents Concerned
OIC Personnel Division
Cashier
1. This refers to the attached letter dated 21 June 1988 from
the Merit Systems Protection Board of the Civil Service
Commission, Quezon City, received by this Office on 28 June
1988, transmitting an unauthenticated duplicate of an
alleged order of the said Board dated 20 June 1988
reiterating its orders of 27 August 1987 and March 4, 1988
requiring reinstatement of NBI Agents Francisco R.
ESTABILLO and Cesar R. DE LEON.
2. As explicitly stated in detail in the 2nd Indorsements by
the undersigned to the transmittal letters of the
aforementioned orders of 27 August 1987 and 4 March
1988, the same are null and void ab initio for having been
issued with want of jurisdiction by said Board;
WHEREFORE, you are hereby directed TO DISREGARD and
NOT to give any faith and credence, or otherwise honor or
give due course to said illegal and void orders of the Merit
Systems Protection Board, Civil Service Commission, dated
20 June 1988, 27 August 1987 and 4 March 1988 ordering
the reinstatement, with payment of back salaries, of Agents
Francisco R. ESTABILLO and Cesar R. DE LEON.
J. ANTONIO CARPIO
Director

Unable to return to their respective positions, Estavillo and

De Leon came to this Court in separate petitions for
mandamus. The respondent was required to comment. He
again questioned the jurisdiction of the Board, contending
inter alia that it had no authority to review dismissals made
under the Freedom Constitution and that the petitioners'
dismissals were already final, not having been seasonably
appealed. The Solicitor General also filed a Consolidated
Comment to these and other cases involving the validity of
the various ongoing government reorganizations. However,
he did not touch on the vital issue which we feel is
controlling in the two petitions before us.
That issue, simply, is whether or not the Director of the
National Bureau of Investigation can disobey an explicit and
direct order issued to him by the Secretary of Justice.
To ascertain the present attitude of the Secretary of Justice
on this question, and on the possibility that he might have
had a change of heart in regard to his orders, the Court
issued on July 4, 1989, the following resolution:
In G.R. No. 85442 (FRANCISCO R. ESTAVILLO v. J. ANTONIO
CARPIO), the Department of Justice issued the following
directives to the respondent requiring him to reinstate the
herein petitioner:
1 First Indorsement dated September 29,1987 from the
Undersecretary of Justice Eduardo G. Montenegro (Annex
"D"; p. 13 of Rollo).
2 Memorandum dated June 29, 1988 from Secretary of
Justice Sedfrey A. Ordoez (Annex "G"; p. 22 of Rollo).
In G.R. No. 85243 (CESAR DE LEON v. J. ANTONIO M.
CARPIO), the Department of Justice issued the following
directives to the respondent requiring him to reinstate the

P a g e | 18

herein petitioner:
1. First Indorsement dated March 14,1988 from the
Undersecretary of Justice Silvestre Bello III (Annex "D", p. 14
of Rollo).
2. Memorandum dated June 29,1988 from Secretary of
Justice Sedfrey Ordoez (Annex "G"; p. 24 of Rollo).
It appearing that the respondent NBI Director has not
complied with the said orders in both cases, the Court
Resolved to REQUIRE the Secretary of Justice to file a
Consolidated Comment stating his position on the disregard
of the said orders.
On August 9, 1989, Secretary Sedfrey A. Ordoez filed his
Consolidated Comment through Undersecretary Eduardo G.
Montenegro and declared:
It is submitted that the Orders of the Merit Systems
Protection Board reinstating Messrs. Estavillo and de Leon
are valid and should be respected by the agency head
concerned. Dismissals pursuant to E.O. No. 17 are summary
and contemplate non-adversary proceedings. They are not
dismissals for cause within the meaning of the security of
tenure provisions of the Civil Service Law and of the
Constitution. The dismissal from the service of Messrs.
Estavillo and de Leon was made pursuant to E.O. No. 17; but
as the Review Committee observed, the dismissal was
effective upon receipt by the petitioners of their respective
notices of termination on March 6, 1987 for Mr. Estavillo,
and on February 6,1987, for Mr. de Leon, or several days
after the ratification of the 1987 Constitution. Their
dismissal was, therefore, virtually a dismissal under the
1987 Constitution then already in place; and because it was
a summary dismissal as the intention really was to dismiss
them pursuant to E.O. No. 17, it did not conform with the

requirements of due process consistent with the security of

tenure clause embodied in the 1987 Constitution. The
separate Orders of the Merit Systems Protection Board
directing their reinstatement in office "but without prejudice
to the filing of appropriate administrative charges against
(them) as evidence warrants, in accordance with the Civil
Service Law and Rules" (see Annexes "2" and "5") are,
therefore consistent with the Constitutional mandate that
"(n)o officer or employee of the civil service shall be
removed or suspended except for cause provided by law"
(Sec. 2[3], Art. IX-B, 1987 Constitution).
His conclusion reads as follows:
The Secretary of Justice reiterates the directives of the
Department of Justice, namely, his Memorandum dated June
29, 1988, 1st Indorsement dated September, 29, 1987 of
Undersecretary of Justice Eduardo G. Montenegro, and 1st
Indorsement dated March 14, 1988 of Undersecretary of
Justice Silvestre Bello III, all addressed to NBI Director J.
Antonio Carpio, to reinstate Messrs. Francisco Estavillo and
Cesar de Leon to their former positions in compliance with
the Orders dated August 27, 1987, March 4, 1988 and June
20, 1988 of the Merit Systems Protection Board.
The Secretary of Justice finds no valid reasons why the
aforesaid Orders of the Merit Systems Protection Board
regarding the reinstatement of Messrs. Francisco Estavillo
and Cesar de Leon, should not be implemented.
On August 15, 1989, the respondent filed a Reply without
having previously been allowed or required by the Court to
do so. He began by insinuating that as the above
consolidated cases had already been submitted for decision,
we should not have required additional pleadings. We can
disregard this temerity as an unintentional insolence. But it
cannot be as easily dismissed that in this Reply Director

P a g e | 19

Carpio has again manifested his defiance of Secretary

Ordoez. More direct this time, the respondent insists "that
the Secretary of Justice had no power to declare invalid or
unconstitutional any Presidential proclamation, order,
instruction or rule and regulation." "Neither could he ignore
the final decision of the former Minister of Justice" "nor
(could he) compel compliance to (sic) said order of the Civil
Service Commission issued with want of jurisdiction."
One may well wonder how Secretary Ordoez would react to
this new challenge to his authority. Perhaps the forebearing
Secretary would prefer to be tactful again as when he opted
not to make a categorical statement in his Consolidated
Comment on Director Carpio's obvious intransigence. At any
rate, for all his restrained and courteous language, the
Secretary's position is clear enough. There is not the
slightest indication that he has relented on his
memorandum of June 29, 1988, or that he now supports the
Director's belligerent stand.
It is an elementary principle of our republican government,
enshrined in the Constitution and honored not in the breach
but in the observance, that all executive departments,
bureaus and offices are under the control of the President of
the Philippines. This precept, first embodied in the
Commonwealth Constitution and 11 reiterated in the 1973
Constitution, 12 has been retained in Article VII, Section 17
of the present Constitution.
The President's power of control is directly exercised by him
over the members of the Cabinet who, in turn and by his
authority, control the bureaus and other offices under their
respective jurisdictions in the executive department. The
constitutional vesture of this power in the President is selfexecuting and does not require statutory implementation,
nor may its be exercise be limited, much less withdrawn, by
the legislature.

Thus, in Lacson-Magallanes v. Pano, 13 the Court held that a

statute making decisions of the department secretaries final
and unappealable would nevertheless not prevent the
President from reviewing and if necessary reversing such
decisions by virtue of his constitutional power of control
over the members of his Cabinet.
Theoretically, the President has full control of all the
members of his Cabinet and may appoint them as he sees
fit or shuffle them at pleasure, subject only to confirmation
by the Commission on Appointments, and replace them in
his discretion. Once in place, they are at all times under the
disposition of the President as their immediate superior.
Justice Laurel put it aptly in Villena v. Secretary of
theInterior, 14 when he said that "without minimizing the
importance of the heads of the various departments, their
personality is in reality but the projection of that of the
President." Hence, "their acts, performed and promulgated
in the regular course of business are, unless disapproved or
reprobated by the Chief Executive, presumptively the acts of
the Chief Executive."
It is recalled that in Noblejas v. Salas, 15 the fiscal who
conducted the preliminary investigation recommended that
no criminal action be taken against the petitioner in view of
the insufficiency of evidence against him and the finding
that he had acted in good faith. This recommendation was
expressly approved by the Secretary of Justice.
Subsequently, the new fiscal who had taken over the
prosecution disregarded these acts and included the
petitioner among the accused in the same criminal case
covered by the Secretary's directive. The Court granted
certiorari and set aside the resolution of the trial court
denying the petitioner's motion to quash. We held that the
fiscal was bound to obey the order of the Secretary of
Justice, who was exercising over him the President's

P a g e | 20

constitutional power of control.

In the case at bar, there is no question that when he
directed the respondent to reinstate the petitioners,
Secretary Ordoez was acting in the regular discharge his
functions as an alter ego of the President. His acts should
therefore have been respected by the respondent Director of
the National Bureau of Investigation, which is in the
Department of Justice under the direct control of its
Secretary. As a subordinate in this department, the
respondent was (and is) bound to obey the Secretary's
directives, which are presumptively the acts of the President
of the Philippines.
It remains to observe that what the petitioners should have
done in the first place was to complain to Secretary Ordoez
that his directives for their reinstatement had been
disregarded by Director Carpio. Thus informed, the
Secretary would have reiterated his orders and required
immediate compliance therewith by the respondent. This is
not to say that the doctrine of exhaustion of administrative
remedies was strictly required in this case for the petitioners
were raising a pure question of law. That is one of the
exceptions to the rule. Even so, compliance with the usual
procedure could have easily obtained for the petitioners the
relief they now seek from this Court.
Our conclusion is that this regrettable controversy would not
have arisen at all if the respondent had had the humility to
recognize the limits of his authority and acted accordingly.
Plainly put, Director Carpio should have dutifully obeyed the
orders of Secretary Ordoez as his immediate superior in
the Department Justice. That is what we must now order the
respondent to do.
WHEREFORE, the petitions are GRANTED. The respondent is
hereby ORDERED to immediately reinstate the petitioners as

directed by the Secretary of Justice in implementation of the

challenged orders of the Merit Systems Protection Board of
the Civil Service Commission. No costs.
SO ORDERED.

G. R. No. 101469 September 4, 1992

MALAYAN
INTEGRATED
INDUSTRIES,
CORPORATION,
petitioner,
vs.
THE HON. COURT OF APPEALS, CITY OF MANDAUE, MAYOR
ALFREDO M. OUANO, VICE MAYOR PATERNO P. CANETE,
SANGGUNIANG PANGLUNGSOD MEMBERS MANUEL M.
MASANGKAY, NOEL C. SOON, CESAR CABAHUG, JR.,
RAYMUNDO A. CENIZA, CYNTHIA S. BLANCO, PONTICO E.
FORTUNA, RAFAEL J. MAYOL and PAULINO P. DY, F.F. CRUZ &
CO., INC., CEBU CONTRACTORS ASSOCIATION, MANDAUE
REALTY & RESOURCES CORPORATION AND PHILIPPINE
ORION PROPERTIES, INC., respondents.
Sumcad, Senires & Associates for petitioner.

GRIO-AQUINO, J.:
In this special civil action of certiorari and prohibition,
Malayan Integrated Industries Corporation (hereafter

P a g e | 21

MALAYAN) prays that upon the filing of its verified petition, a

restraining order or a writ of preliminary injunction be issued
by this Court to stop the respondents from further
proceeding in CA-G.R. SP No. 25621 and, after a
consideration of the merits of the petition, judgment be
rendered annulling the appellate court's resolutions dated
August 9, 1991 and August 28, 1991, and the writ of
preliminary injunction issued by it on August 29, 1991.
The only issue in this case is whether the Court of Appeals
exceeded its jurisdiction, or acted with grave abuse of
discretion, in issuing a writ of preliminary injunction in CAG.R. SP No. 25621 entitled, "The City of Mandaue, et al. vs.
Hon. Leonardo B. Caares and Malayan Integrated Industries
Corporation," "enjoining the respondents and anyone acting
in their place and stead, from enforcing the Orders of
December 18, 1990 and June 28, 1991 in Civil Case No. CEB9658 until further orders. . ." (p. 1239, Rollo, Vol. II).
This is a simple case which has been made to appear
complicated by the over-extended pleadings of the parties.
The petition and its annexes consist of 1,273 pages. The
respondents are not to be outdone with their comments of
395 pages. Running true to form, the petitioner filed a reply
of 307 pages. The pleadings comprise 3 volumes, each
several inches thick. Such profligacy with words is hard to
match. Counsels on both sides should heed the admonition
of Justice Isagani A. Cruz that:
Counsel should remember that they do a disservice to the
administration of justice and contribute to its delay by
imposing on the time of the courts with irrelevant
discussions that only clutter the record. (Arturo E. Edudela,
et al. vs. Hon. Court of Appeals, et al., G.R. No. 89265, July
17, 1992.)
The records show that on December 12, 1977, a reclamation

contract was signed between the City of Mandaue and

MALAYAN for the reclamation of some 180 (later increased
to 360) hectares of offshore and foreshore land and their
development into an industrial and trading center with a
modern harbor and port facilities for both domestic and
international commerce. The area would connect Cebu City
harbor with the City of Mandaue from the Cabahug
coastway up to the Cebu City-Mandaue boundary. The
project was supposed to be completed within four (4) years
after approval of the contract by the Office of the President.
However, that transaction appeared to be unauthorized
under P.D. No. 3-A dated January 11, 1973 which provides
that the reclamation of areas under water, whether
foreshore or inland, will be done only by the national
government or any person authorized by it with a proper
contract.
Moreover, Executive Order No. 525 of President Marcos
designated the Public Estates Authority (PEA) as "the central
authority primarily responsible for integrating, directing and
coordinating all reclamation projects for and in behalf of the
National Government."
Acting Minister of Justice Catalino Macaraig, Jr., in his
Opinion No. 70, Series of 1979 dated July 16, 1979, opined
that P.D. No. 3-A impliedly withdrew or repealed the right of
Mandaue City under its charter (Sec. 94, R.A. 5519) to
reclaim its submerged or foreshore lands. He added,
however, that "if the PEA decides to authorize the City of
Mandaue to reclaim its own foreshore, the former may
execute a contract with the latter pursuant to the abovescored provision of Executive Order No. 3-A in connection
with Sec. 1, of P.D. No. 3-A,. . . ." (p. 332, Rollo, Vol. I).
Accordingly, the Sangguniang Panlungsod of Mandaue, in its
session of October 12, 1979, passed Resolution No. 116

P a g e | 22

authorizing the City Mayor to sign a Memorandum of

Understanding with the PEA. Its Resolution No. 117 of the
same date authorized the City Mayor to enter into a contract
with the PEA for the reclamation of 360 hectares, more or
less, of the foreshore and submerged lands of Mandaue City.
On November 26, 1979, the City of Mandaue and MALAYAN
signed a Confirmatory Agreement whereby MALAYAN bound
itself to undertake and prepare at its own expense, the
detailed and integrated development plan on land use,
including technical, economic, marketing and financial
feasibility studies required by the Office of the President,
and to submit the completed study "not later than July 31,
1980" (p. 344, Rollo, Vol. I).
On August 13, 1980, MALAYAN submitted to PEA documents
relating to the Metro Cebu Reclamation and Development
Project. Two days later, or on August 15, 1980, MALAYAN
submitted a detailed land use and development strategy
and an overview of the project.
On September 29, 1980, PEA Chairman, Ruben Ancheta,
recommended approval of the project.
Although President Marcos "approved in principle" the
reclamation and development project, the contract of
reclamation and development between the City of Mandaue
and MALAYAN remained hanging in the air (p. 338, Rollo, Vol.
I).
After the 1986 "People Power" Revolution, the project was
resubmitted to President Corazon C. Aquino for approval.
On June 13, 1988, the City of Mandaue reiterated its request
to President Aquino "for approval and go-signal to
commence the reclamation work" (p. 417, Rollo, Vol. I). The
letter was referred by the President to PEA.

As of May 24, 1989, the detailed and integrated plan on land

use, including technical, economic, marketing and financial
feasibility studies submitted by MALAYAN remained "still
pending approval by the Office of the President." (p. 441,
Rollo, Vol. I.)
On February 13, 1989, PEA's General Manager, Eduardo C.
Zialcita, advised MALAYAN that the feasibility study should
be updated.
Since the Office of the President seemed to have
reservations concerning the contract between MALAYAN and
the City of Mandaue, and in view of the City's desire to
undertake the reclamation project without further delay, City
Mayor Alfredo M. Ouano informed the PEA on April 15, 1989
that the City was negotiating with F.F. Cruz & Co., Inc., in
consortium with the Cebu Contractors Association, to
undertake the preparation of the detailed feasibility and
development plan for the reclamation project. Mayor Ouano
pointed out that F.F. Cruz & Co., Inc. is a reputable private
construction firm in Manila, "with international prestige and
proven capability as a reclamation contractor with its own
dredging equipment and the financial capacity to undertake,
on its own, the Mandaue reclamation project" (p. 483, Rollo,
Vol. I).
On April 19, 1989, the Sangguniang Panlungsod of Mandaue
passed Resolution No. 134/89 authorizing the City Mayor to
enter into a reclamation contract with F.F. Cruz & Co., Inc.
subject to the President's approval.
This contract with F.F. Cruz & Co., Inc., was signed a week
later, on April 26, 1989.
Upon learning about the city's contract with F.F. Cruz & Co.,
Inc., MALAYAN inquired from the Office of the President

P a g e | 23

whether Section 7 of R.A. 5519, known as the Charter of the

City of Mandaue, providing that the City alone shall have
authority to reclaim its offshore land, had been repealed,
revoked, amended or superseded by Section 1 of P.D. No. 3A, promulgated on January 11, 1973, and Section 1 of E.O.
No. 525 dated February 14, 1979.
The query was answered in the affirmative on August 31,
1989 by the Chief State Counsel, Elmer T. Bautista, citing
Justice Secretary Macaraig's Opinion No. 70, S. 1979, "which
opinion still stands" (p. 498, Rollo, Vol. I).
On May 6, 1989, the PEA recommended the approval in
principle of the proposed reclamation project subject to the
following conditions:
(a) Submission to PEA by the City of Mandaue, for review
and approval a Master Development Plan for the planned
reclamation, within six (6) months from date hereof,
otherwise project approval shall be deemed automatically
revoked.
(b) Undertaking of Detailed Engineering Studies for the
major physical infrastructures involved.
(c) Supervision by PEA of the reclamation and related
infrastructure works and the cost of such supervision to be
charged to the Project.
(d) Delegation of authority to Mandaue City to negotiate
with a reputable Contractor that shall undertake physical
reclamation works under a proper contrast, which shall
contain stipulations on the compensation, costs of the
projects and other relevant conditions subject to the review
and approval of the Public Estates Authority as provided
under existing laws.

(e) That the previous approval in principle granted to

Malayan Integrated Industries Corporation for a similar
reclamation project, jointly with the Province of Cebu, City of
Cebu, City of Mandaue, Municipality of Cordova and the City
of Lapu-Lapu, by former President Marcos be deemed
abandoned, and set aside, by reason of the failure of
Malayan
Integrated
Industries
Corporation
to
execute/implement the project for a long period of time
reckoned from 1979 to the present. Moreover, there appears
to be a lack of indorsement by the local government of Cebu
Province and Mandaue City of this undertaking by Malayan
Integrated Industries Corporation. (Emphasis supplied; pp.
530-531, Rollo, Vol. I.)
MALAYAN filed a protest with the Office of the President
against the reclamation contract between the City of
Mandaue and F.F. Cruz & Co. (pp. 542-545, Rollo, Vol. I).
On PEA's recommendation, Executive Secretary Catalino
Macaraig, Jr., by authority of the President, approved on,
June 27, 1989, the proposed Mandaue reclamation project,
covering approximately 180 hectares of foreshore and
submerged lands, subject to certain conditions, and
declared that "the Contract of Reclamation and
Development entered into by and between the City of
Mandaue and Malayan Integrated Industries Corporation on
December 12, 1977 is hereby DISAPPROVED, and/or is
hereby declared as without force and effect, it appearing
from the records that the same was entered in violation of
the provisions of Section 1 of Presidential Decree No. 3-A,
and/or for the failure of said corporation to implement, as
stipulated, the project within a reasonable period of time."
(pp. 583-584, Rollo, Vol. I; emphasis supplied.)
On November 26, 1990, MALAYAN filed in the Regional Trial
Court, Branch 10, Cebu City (originally in the Regional Trial
Court, Manila but it withdrew the case) a petition for

P a g e | 24

prohibitory and mandatory preliminary injunction against

the City of Mandaue, F.F. Cruz & Co., Inc., the Cebu
Contractors Association, the Mandaue Realty Resources
Corporation and Philippine Orion Properties, Inc. The case
was docketed as Civil Case No. CEB-9658 in which MALAYAN
prayed the Court to restrain the implementation of the
reclamation contract between the City of Mandaue and F.F.
Cruz & Co., Inc. as it would work injustice to MALAYAN and
violate MALAYAN's valid and previously perfected contract
with the City of Mandaue, and it would cause damages to
MALAYAN which has already incurred expenses and invested
huge sums of money in the Mandaue Reclamation Project.
MALAYAN also prayed the Court to issue a writ of preliminary
mandatory injunction allowing MALAYAN to immediately
undertake actual reclamation works in the Mandaue
Reclamation Project.
On November 29, 1990, the trial court issued a temporary
restraining order enjoining the respondents "from further
continuing with the implementation of the aforementioned
contract being questioned, until further orders from this
Court" (p. 649, Rollo, Vol. I).
An Urgent Motion to Quash the Restraining Order and a
separate Motion to Dismiss the petition filed by the
respondent did not prosper.
After a proper hearing, Judge Leonardo B. Caares granted
on December 18, 1990 the writ of preliminary prohibitory
injunction prayed for by MALAYAN upon its posting a P5
million injunction bond. The dispositive part of his order
reads as follows:
WHEREFORE, upon the filing of an injunction bond with this
Court amounting to P5,000,000.00, let a writ of preliminary
prohibitory injunction be issued, enjoining all of the
respondents, their assigns, agents, representatives or

anybody acting for them or in their behalf from

implementing the Contract of Reclamation dated April 26,
1989, executed by and between Mandaue City and
respondents F.F. Cruz & Co., Inc. and Cebu Contractors
Association and all other reclamation contracts executed in
favor of said respondents and/or assigns by the City of
Mandaue and/or Public Estates Authority, and from
conducting any kind of works in any part of the area covered
by the Mandaue Reclamation Project.
The motions to dismiss and other incidents filed by the
respondents are hereby denied for being premature. (pp.
677-678, Rollo, Vol. I.)
After the respondents' motions for reconsideration were
denied by the Court, they filed in the Court of Appeals on
August 9, 1991, a petition for certiorari with prohibitory and
mandatory preliminary restraining order and/or preliminary
injunction (CA-G.R. SP No. 25621, entitled, "City of Mandaue,
F.F. Cruz & Co., Inc., et al, petitioners vs. Judge Leonardo B.
Caares and Malayan Integrated Industries Corporation,
respondents" praying that the preliminary writ of injunction
issued by Judge Caares be nullified, that respondent
MALAYAN be prohibited from interfering with the reclamation
works of the petitioners, City of Mandaue and F.F. Cruz; that
respondents Judge Caares and MALAYAN be restrained from
enforcing the orders dated December 19, 1990 and June 28,
1991 of respondent Judge; that the petition of MALAYAN in
the Case No. CEB-9658 be dismissed; and that MALAYAN be
prohibited from interfering with the contract of reclamation
between the City of Mandaue and F.F. Cruz & Co., Inc., the
Memorandum of Agreement between the PEA, the City of
Mandaue and MARECO, and all other related contracts and
activities concerning the Mandaue Reclamation Project.
The Court of Appeals issued on August 9, 1991 a temporary
restraining order to preserve the status quo and enjoined

P a g e | 25

the respondents and anyone acting in their place from

enforcing Judge Caares' orders of December 19, 1990 and
June 28, 1991, until further orders from said court.
On August 28, 1991, the Court of Appeals issued a writ of
preliminary injunction upon a P10,000,000.00 bond posted
by F.F. Cruz & Co., Inc.
Upon the denial of its motion for reconsideration of the
appellate court's resolution, MALAYAN filed a petition for
certiorari and prohibition in this Court to annul it.
After a careful consideration of the voluminous petition and
the equally voluminous responses of the public and private
respondents, the Court finds that the Court of Appeals did
not abuse its discretion in stopping Judge Caares and
MALAYAN from interfering with the prosecution of the
Mandaue reclamation project by respondents F.F. Cruz &.
Co., Inc. and its associates, the Cebu Contractors
Association, Mandaue Realty Resources Corporation and
Philippine Orion Properties, Inc.
In the first place, as explained in the Appellate Court's
resolution, the contract between the City of Mandaue and
F.F. Cruz & Co., Inc., et al. "had been approved by the Office
of the President," while the reclamation contract with
MALAYAN "was disapproved" (pp. 1236-1237, Rollo, Vol. II).
. . . the Mandaue Reclamation Project, subject of the
contract between the Mandaue local government and
private petitioners, has been approved by the Office of the
President of the Philippines (Annex "M" of the Petition). In
the same official document, the "Contract Reclamation and
Development" entered into by and between the City of
Mandaue and respondent Malayan Integrated Industrial
Corporation on December 12, 1977 was disapproved. And
pursuant to the approved reclamation project and the

contract entered into by and between them, petitioners

undertook the reclamation of foreshore and submerged
lands from the Cabahug Causway in Mandaue City towards
the boundary with Cebu City. In the course thereof at least a
total of 23.4710 hectares of said lands have been reclaimed
by private petitioners after spending the sum of
P181,476,690.59 as of December 31, 1990. (Emphasis
supplied.)
Secondly, Judge Caares' writ of preliminary prohibitory
injunction, halting the prosecution of the Mandaue
reclamation project, violated P.D. No. 1818 which prohibits
courts from issuing such writ to stop any person, entity, or
government official, from proceeding with or continuing the
execution or implementation of an infrastructure project,
such as the reclamation of foreshore and submerged lands
along the coast of Mandaue City up to the Cebu City
boundary for the purpose of developing the reclaimed area
into an industrial and trading center with a modern harbor
and port facilities for both domestic and international
commerce. P.D. No. 1818 provides:
P.D. 1818 Prohibiting courts from issuing restraining
orders or preliminary injunctions in cases involving
infrastructure and natural resource development projects of,
and public utilities operated by, the Government.
WHEREAS, Presidential Decree No. 605 prohibits the
issuance by the courts of restraining orders or injunctions in
cases involving concessions, licences, and other permits
issued by administrative officials or bodies for the
exploitation, development and utilization of natural
resources of the country;
WHEREAS, it is in the public interest to adopt a similar
prohibition against the issuance of such restraining orders or
injunctions in other areas of activity equally critical to the

P a g e | 26

economic development effort of the nation, in order not to

disrupt or hamper the pursuit of essential government
projects;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested in me by the
Constitution, do hereby decree and order as follows:
Sec. 1. No court in the Philippines shall have jurisdiction to
issue any restraining order, preliminary injunction, or
preliminary mandatory injunction in any case, dispute, or
controversy involving an infrastructure project, or a mining,
fishery, forest or other natural resource development project
of the government, or any public utility operated by the
government, including among others public utilities for the
transport of the goods or commodities stevedoring and
arrastre contracts, to prohibit any person or persons, entity
or government official from proceeding with, or continuing
the execution or implementation of any such project, or the
operation of such public utility, or pursuing any lawful
activity necessary for such execution, implementation or
operation.
The Court of Appeals further observed that "in the balance
of inconveniences the petitioners appear to stand to suffer
grave and irreparable injury, and much more damages than
MIIC (MALAYAN) which has not done any reclamation works
on the area subject of the dispute."(p.1239, Rollo, Vol. II.)
Although the letter to the PEA advising it of the approval of
the reclamation contract between the City of Mandaue and
F.F. Cruz & Co., Inc. and the disapproval of the earlier
agreement between the City of Mandaue and MALAYAN, was
signed by the Executive Secretary, "by authority of the
President," and not by the President's own hand, the
Executive Secretary's action is presumed to be valid and to
have been regularly performed in behalf of the President

(Section 2[m], Rule 131, Revised Rules on Evidence) and

thus should be accorded due respect (Lacson-Magallanes vs.
Pao, 129 Phil. 123; GSIS vs. CIR, December 30, 1961;
Soriano vs. Ancheta, March 18, 1985; Rogue vs. Director of
Lands, July 1, 1976). As head of the Executive Office, the
Executive Secretary, is an alter ego of the President (Sec.
22, Chap. 8, Title II, Book II, 1987 E.O. 292, Adm. Code of
1987). One of his myriad functions is "to exercise primary
authority to sign papers "By authority of the President,"
attest executive orders and other presidential issuances
unless attestation is specifically delegated to other officials
by him or by the President; assist the President in the
administration of special projects; and perform such other
functions as the President may direct" (Sec. 22, subpars. 10,
14 and 18, Ibid). Paraphrasing Villena vs. Secretary of the
Interior, 67 Phils. 451, his personality is in reality "but the
projection of that of the President," his acts, "performed and
promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive." The approval
by the Office of the President of the reclamation contract in
favor of F.F. Cruz & Co., Inc. and the rejection of the contract
with MALAYAN, is not subject to review by the courts in view
of the principle of separation of powers which accords coequal status to the three great branches of the government,
absent any showing that the President, in doing so, acted
with grave abuse of discretion amounting to lack or excess
of jurisdiction (Sec. 1, Art. VIII, 1987 Constitution). Only on
that ground may this Court justifiably intervene in a
transaction that otherwise would be the exclusive preserve
of the Chief Executive.
In fact, while MALAYAN has asked the courts to nullify the
reclamation contract between the City of Mandaue and F.F.
Cruz & Co., Inc., it did not assail the Office of the President
for having approved it. Its petition for prohibitory and
mandatory injunction in the Regional Trial Court of Cebu City

P a g e | 27

(CEB-9658), did not implead, as respondents, nor charge

with grave abuse of discretion, the President of the
Philippines, Executive Secretary Catalino Macaraig, Jr.,
Deputy Executive Secretary Magdangal Elma, Jr., and PEA
General Manager Eduardo Zialcita, for having approved or
recommended the approval, by the President, of the said
reclamation contract with F.F. Cruz & Co., Inc. and the
disapproval of the prior agreement between the City of
Mandaue and MALAYAN.
WHEREFORE, finding no grave abuse of discretion in the
assailed resolution dated August 28, 1991 of the Court of
Appeals in CA-G.R. SP No. 25621, the petition for certiorari
and prohibition is DENIED for lack of merit. Costs against the
petitioner.

P a g e | 28

G.R. No. L-21607 January 30, 1970

RAFAEL MACAILING, SILVESTRE MACAILING DOMINICO
NECESITO and RAFAEL NECESITO, plaintiffs-appellees,
vs.
TOMAS ANDRADA, MARIA ANDRADA, FEDERICO ANDRADA,
FLORENCIA VDA. DE ANDRADA, Jesus ANDRADA, ANDREA R.
GAURANA (HEIRS OF SALVADOR ANDRADA) and ASSISTANT
EXECUTIVE SECRETARY ENRIQUE C. QUEMA (in behalf of the
President), defendants-appellants.
Clemente M. Alio for plaintiffs-appellees.
Melquiades S. Sucaldito for defendants-appellants.
Office of the Solicitor General for nominal party only.

SANCHEZ, J.:
In this appeal from a judgment of the Court of First Instance
of Cotabato ruling that defendant heirs of Salvador Andrada
have lost their right to appeal from a decision of the
Secretary of Agriculture and Natural Resources1 and that,
accordingly, defendant Executive Secretary, in behalf of the
President, may no longer review such decision, we have for
factual backdrop the following:
A dispute over four (4) parcels of land in Lebak, Cotabato,
arose between plaintiffs, settlers thereon occupying four
hectares each, and Salvador Andrada (later substituted by
his heirs), sales applicant of a bigger parcel, which includes
the lands occupied by plaintiffs. The District Land Officer of
Cotabato decided in plaintiffs' favor, excluded the four

parcels of land claimed by plaintiffs. The Director of Lands,

however, reversed, declared that the portions adjudged to
the four plaintiffs "shall be restored to the heirs (of Salvador
Andrada) who should include them proportionately in the
new application to be filed by them respectively."
Appeal having been taken to the Secretary of Agriculture
and Natural Resources, the latter, on October 27, 1956, in
turn reversed the Director of Lands by awarding to plaintiffs
the lands they claimed. Defendants sought reconsideration.
On May 30, 1957, the Secretary denied. Defendants moved
once more to reconsider. On September 12, 1957, the
Secretary rejected the reconsideration, ruled that his
judgment in the case "had long become final and
executory," and said: "Upon a review of the records, we
found that the decision sought to be reconsidered in the
present motion had long become final and executory.
Consequently, this Office has no more jurisdiction to
entertain the said motion." The Secretary categorically
stated that the case was "considered a closed matter insofar
as this Office is concerned." Defendants received copy of
this denial on October 14, 1957.
On October 23, 1957, defendants appealed to the Office of
the President.
On August 20, 1959, in a letter-decision, Assistant Executive
Secretary Enrique C. Quema, "[b]y authority of the President
reversed the decision of the Secretary and declared that the
lands involved "should be restored to the heirs of Andrada to
be included in their individual applications."
Plaintiffs, on December 23, 1959, started the present suit in
the Cotabato court. They raised the issue of finality of the
decision of the Secretary.
On January 21, 1963, upon a stipulation of facts entered into

P a g e | 29

by the parties, the court rendered judgment, viz:

WHEREFORE, the Court hereby declares the decision of the
Secretary of Agriculture and Natural Resources, dated
October 27, 1956, marked as Exhibit "G" of the STIPULATION
OF FACTS valid, final and executory, and is hereby given due
course and effect. A copy of said Exhibit "G" of the
STIPULATION OF FACTS is hereby attached and appended as
part and parcel of this decision, as Annex "A" thereof.
The decision signed by Assistant Executive Secretary
Enrique C. Quema by authority of the President dated
August 20, 1959, marked as Exhibit "L" of the Stipulation of
Facts is hereby declared null and void and without any
effect.
The Court refrains from making any special pronouncement
as to costs.
Defendants appealed direct to this Court.
1. Defendants take the view that plaintiffs' remedy is
certiorari, not an ordinary civil action before the Court of
First Instance. They aver that since plaintiffs did not avail of
the proper remedy, the action should be dismissed.
In the matter of judicial review of administrative decisions,
some statutes especially provide for such judicial review;
others are silent. Mere silence, however, does not
necessarily imply that judicial review is unavailable. Modes
of judicial review vary according to the statutes; appeal,
petition for review or a writ of certiorari. No general rule
applies to all the various administrative agencies. Where the
law stands mute, the accepted view is that the
extraordinary remedies in the Rules of Court are still
available.2

Deducible from the foregoing is that where administrative

agencies have original jurisdiction in the premises, the
court's interference with administrative action is necessarily
limited. A review thereof cannot be done through an
ordinary civil action if constitutional or legislative authority
therefor is wanting. The remedies that can be availed of
where the statute is silent, as in the present case, are the
special civil actions for certiorari, prohibition and/or
mandamus specified in the Rules of Court. In this case,
therefore, we have no alternative but to hold that the
plaintiffs' appropriate remedy is certiorari, not an ordinary
civil action.
Certiorari appears to be the real course of action here taken
by plaintiffs. While the petition by itself does not conform to
the formal requirements, the allegations thereof show that
plaintiffs charge defendant Assistant Executive Secretary
with grave abuse of discretion in upholding defendants'
appeal "in desecration of a solemn decision" of the
Secretary of Agriculture and Natural Resources "that had
already become 'final and executory'." No necessity there
was for plaintiffs to aver that there was no plain, speedy or
adequate remedy in the ordinary course of law. This can be
clearly read from the factual narration in the complaint.
After all, the case has already reached the administrative
peak the Office of the President has already acted
thereon. The fact that the petition was not verified may be
excused. The case presented was one which shaped out a
question of law. There were no facts that really needed
confirmation under oath. In fact, no trial was conducted by
the court below. Absence of verification here is not fatally
defective.3
Thus it is, that plaintiffs' case, as we see it, is the special
civil action of certiorari.
2. The next question is whether or not the Court of First

P a g e | 30

Instance of Cotabato has jurisdiction to issue a writ of

certiorari in this case, considering that defendant Assistant
Executive Secretary holds office in Manila outside the
territorial boundaries of said court.
The pertinent statutory provision, Section 44 (h) of the
Judiciary Act of 1948, reads: "Courts of First Instance shall
have original jurisdiction ... (h) Said court and their judges,
or any of them, shall have the power to issue writ of
injunction, mandamus, certiorari, prohibition, quo warranto
and habeas corpus in their respective provinces and district
in the manner provided in the Rules of Court."
Complementary thereto is Section 4, Rule 65, Rules of
Court,4 providing that: "The petition may be filed ... if it
relates to the acts or omissions of an inferior court, or of a
corporation, board, officer or person, in a Court of First
instance having jurisdiction thereof."
As early as Castao vs. Lobingier, 7 Phil. 91, 93-94, under
previous legislation similar to Section 44(h) aforequoted,
this Court has held that the writs of injunction and certiorari
cannot be issued by the Court of First Instance of Leyte
against the Justice of the Peace of Manila, who is outside the
territorial boundaries of the issuing court. In Acosta vs.
Alvendia, L-14598, October 31, 1960, the Court of First
Instance of Manila issued a writ of preliminary injunction
against the provincial sheriff of Nueva Ecija restraining the
latter from executing the judgment rendered in a tenancy
case by the Court of Agrarian Relations in Nueva Ecija. Upon
Section 44 (h) and Section 2, Rule 58,5 this Court nullified
the injunctive writ because "the jurisdiction or authority of
courts of first instance to control or restrain acts by means
of the writ of injunction is limited to acts which are being
committed or about to be committed within the territorial
boundaries of their respective provinces and districts."
Illuminating is Samar Mining Co., Inc. vs. Arnado, L-17109,

June 30, 1961, 2 SCRA 782, 786. in that case, a petition for
certiorari and prohibition with preliminary injunction was
filed in the Court of First Instance of Manila against the
Regional Administrator and Labor Attorney of the
Department of Labor assigned to Cebu City, to review the
latter's acts in a workmen's compensation case. The case
was dismissed below upon the ground of wrong venue. This
Court affirmed. Speaking through then Associate, now Chief,
Justice Roberto Concepcion, we pronounced that the
ordinary rules of venue in Rule 4 do not apply; the Section 4,
Rule 65, heretofore transcribed, contemplates of venue, not
jurisdiction, although it makes the former co-terminous with
or dependent upon, the latter; that the jurisdiction therein
alluded to is that over "the corporation, board, officer, or
person" whose acts are in question, not jurisdiction over the
subject matter of the case; and that the rule-making power
of this Court is limited to matters of pleading, practice and
procedure and the admission to the practice of law, whereas
the power to define, prescribe and apportion the jurisdiction
of the various courts is within the exclusive province of
Congress (Section 2, Article VIII, Constitution). We there
concluded that the issuance of the writs prayed for over
persons outside the territorial boundaries of the courts of
first instance is denied said courts by the Judiciary Act of
1948.
In Hacbang vs. The Leyte Autobus Co., Inc., L-17907, May
30, 1963, 8 SCRA 103, injunctive relief was sought in the
Court of First Instance of Cebu to restrain the sheriff of Leyte
from proceeding with the sale of a passenger bus upon a
writ of execution of a judgment rendered by the Leyte court.
It was held that the Cebu court acted in excess of its
jurisdiction.
In Alhambra Cigar and Cigarette Mfg. Co., Inc. vs. National
Administrator of Regional Office No. 2, L-20491, August 31,
1965, 14 SCRA 1019, a petition for certiorari and prohibition

P a g e | 31

was lodged in the Court of First Instance of Manila against

the Hearing Officer and Regional Administrator of the
Department of Labor in Tuguegarao, Cagayan, in connection
with a workmen's compensation case. We held that the
Manila court was without power to issue the writs of
certiorari and prohibition, relying upon the authority of
Samar Mining, and was bereft of authority to issue a writ of
injunction, citing Acosta.
In People vs. Mencias, L-19633, November 28, 1966, 18
SCRA 807, the Court of First Instance of Rizal enjoined the
Manila fiscals, amongst others, from proceeding with the
preliminary investigation of a criminal complaint. This Court
declared the Rizal court to be devoid of authority to so
enjoin in line with Alhambra. Then in 1967, the case of
Santos vs. Moreno, L-15829, December 4, 1967, 21 SCRA
1141, 1152, affirmed Castao vs. Lobingier, supra. This was
followed by Cudiamat vs. Torres L-24225, February 22, 1968,
22 SCRA 695, 698. There, preliminary injunction emanated
from the Court of First Instance of Rizal restraining the
implementation of an award on a Public bidding for the
supply of a police call and signal box system for Manila.
Enjoined were the members of the on awards of Manila and
the winner of the bid. This Court, thru Mr. Justice J.B.L.
Reyes, ruled that: "The Preliminary injunction that may be
granted by a court of first instance under said Section 2
[Rule 58] is, in its application, co-extensive with the
territorial boundaries of the province or district in which the
said court sits." This doctrine was reiterated in NAWASA vs.
Reyes, L-28597, February 29, 1968, 22 SCRA 905, where the
Court of First Instance of Rizal enjoined NAWASA with its
offices in Manila from proceeding with a particular bidding to
be conducted in that city.
3. Worth remembering, of course, is that in the foregoing
jurisprudence, injunctive or prohibitory writs are involved.
Where the sole issue in court, however, is the legality of the

decision of administrative officials, a different rule obtains.

Instructive on this point is Gayacao vs. Executive Secretary,
L-21066, April 30, 1965, 13 SCRA 753, 756-757. There,
plaintiff Gayacao instituted proceedings for certiorari and
mandamus in the Court of First Instance of Basilan City
against the Executive Secretary, the Secretary of Agriculture
and Natural Resources, the Director of Lands, and a private
respondent. Gayacao sought nullification of the decision of
the Director of Lands, and the affirmatory decisions of the
Secretary of Agriculture and Natural Resources and the
Executive Secretary, for being contrary to law. Respondent
officials moved to dismiss. They averred that the Basilan
court had no jurisdiction to issue writs of certiorari or
mandamus against them because the administrative orders
and decisions complained of were promulgated by officers
holding office outside the court's territorial jurisdiction. They
invoked Section 44(h) of the Judiciary Act of 1948 and
Castao vs. Lobingier, supra, Acosta vs. Alvendia, supra, and
Samar Mining Co., Inc. vs. Arnado, supra. The lower court
dismissed the case. Gayacao appealed. We reversed. This
Court, speaking thru Mr. Justice J.B.L. Reyes, pronounced
that: "The doctrines invoked in support of the theory of nonjurisdiction (Castao vs. Lobingier, 7 Phil 91; Acosta vs.
Alvendia, L-14598, Oct. 31, 1960; Samar Mining vs. Arnado,
L-17109, June 30, 1961) are inapplicable, in that those cases
involved petitions for writs of injunction seeking to control
the actions of courts or officers outside the territorial
jurisdiction of the respondent courts involved. Here the sole
point in issue is whether the decision of the respondent
public officers was legally correct or not, and, without going
into the merits of the case, we see no cogent reason why
this power of judicial review should be confined to the courts
of first instance of the locality where the offices of
respondents are maintained, to the exclusion of the courts
of first instance in those localities where the plaintiffs reside,
and where the questioned decisions are being enforced." We

P a g e | 32

there emphasized that: "It is easy to see that if the

contested ruling of the court below is sustained the same
would result not only in hardship to litigants of limited
means, practically amounting to denial of access to the
courts, but would also unnecessarily encumber the Manila
courts whose dockets are already overburdened. Actually,
since Ortua vs. Singson, 59 Phil. 440, the power of provincial
courts of first instance to review administrative decisions of
national officials, has been consistently recognized."
Palanan Lumber & Plywood Co., Inc. vs. Arranz, L-27106,
March 20, 1968, 22 SCRA 1186, then drew the line between
the precept enunciated in Gayacao and previous case law.
This Court, again speaking thru Mr. Justice J.B.L. Reyes, there
said that "the ruling in Gayacao vs. Executive Secretary, L21066, April 30, 1965, has not varied the rule, at least in so
far as prohibitory writs are concerned. The Gayacao case
conceded the power of the provincial Court of First Instance
to take cognizance of cases involving judicial review of
administrative decisions, where the sole issue before the
Court, is 'whether the decision of respondent public officials
was legally correct or not'; but it clearly reaffirmed the nonjurisdiction rulings previously cited where writs of injunction
are issued or sought in order to control acts of non-resident
officials."6
In Palanan, which concerned a petition for certiorari and
prohibition filed in the Court of First Instance of Isabela
against, amongst others, the Director of Forestry, the
Secretary of Agriculture and Natural Resources and the
Executive Secretary, it was thus ruled that: "Since the
petition before the respondent Court of First Instance of
Isabela not only questioned the legal correctness of the
decision of the Office of the President, in splitting the forest
concession between both contending logging companies,
but also sought to enjoin enforcement of that decision, it is
evident that even under the Gayacao ruling, the respondent

Court could not validly issue the writ of injunction

complained of when the officials sought to be restrained
were not stationed within its territory."7
Clearly then does the Gayacao case hold sway in the
controversy before us.
Indeed, numerous are the cases where courts of first
instance of provinces have rightly assumed jurisdiction over
petitions to review acts of the Director of Lands and the
Secretary of Agriculture and Natural Resources, both of
whom may be found in Manila. For instance, in the 1949
case of Alejo vs. Garchitorena, 83 Phil. 924, 928, this Court
impliedly upheld the power of the Court of First Instance of
Nueva Ecija to review land decisions of the Director of Lands
and the Secretary of Agriculture and Natural Resources.
But more to the point here is the recent case of Desiata vs.
Executive Secretary,
L-21894, February 28, 1967, 19 SCRA 487, where we
affirmed the decision of the Court of First Instance of Agusan
nullifying the decision of the Executive Secretary, acting for
and in behalf of the President, rendered on appeal from the
decision of the Secretary of Agriculture and Natural
Resources.
We hold that the Cotabato court has jurisdiction.
4. We now go to the merits of the appeal. Plaintiffs' position
is that defendants' appeal to the President was time-barred.
The trial court sustained. The provisions of Lands
Administrative Order No. 6 are thus brought to the fore.
Section 12 thereof provides:
12. Finality of decision promulgated by the Secretary.The
decision of the Secretary of Agriculture and Commerce (now
Agriculture and Natural Resources) or the Under Secretary

P a g e | 33

on an appealed case shall become final, unless otherwise

specifically stated therein, after the lapse of thirty (30) days
from the date of its receipt by the interested parties.
Section 13 following reads:
13. No reconsideration of final decision or order.After a
decision or order of the Secretary of Agriculture and [Natural
Resources], the Under Secretary or the Director of Lands has
become final, no motion or petition for reconsideration of
such decision or reinvestigation of the case shall be
entertained by the Secretary of Agriculture and [Natural
Resources] the Under Secretary or the Director of Lands, as
the case may be, except as provided in Section 14 hereof.
And Section 14 is to this effect: "Upon such terms as may be
considered just, the Secretary of Agriculture and [Natural
Resources], the Under Secretary or the Director of Lands
may relieve a party or his legal representative from a
decision, order, or other proceeding taken against him
through his mistake, inadvertence, surprise, default or
excusable neglect: Provided, That application therefor be
made within a reasonable time but in no case exceeding one
(1) year after such decision, order or proceeding was taken."
Defendants do not dispute plaintiffs' averment that they
(defendants) did not move to reconsider or appeal from the
Secretary's decision of October 27, 1956 within 30 days
from their receipt thereof. Indeed, they attempted to appeal
only on October 23, 1957. They merely contend that their
appeal was but 9 days after October 14, 1957, the date
defendants received the September 12, 1957 ruling of the
Secretary denying their second motion for reconsideration.
That ruling, it must be remembered, drew attention to the
fact that the Secretary's decision "had long become final
and executory." By reason of which, declaration was made
that "this (Secretary's) Office had no more jurisdiction to

entertain the said motion."

It is the thesis of defendants that the power of review on
appeal is inherent in the President; that the Constitution
fixes no period for such appeal, and that, therefore, appeal
can be entertained by the President even outside the 30-day
period provided in Section 12, Lands Administrative Order
No. 6.
Controlling in this case is Desiata vs. Executive Secretary,
supra. Desiata was also a public lands case originating from
the Bureau of Lands and appealed to the Secretary of
Agriculture and Natural Resources. After the decision of the
Secretary, the case was taken to the Office of the President
outside the 30-day period mentioned in Section 12 of Lands
Administrative Order No. 6 afore-quoted. The Executive
Secretary revoked the decision of the Secretary of
Agriculture and Natural Resources. Whereupon, the
aggrieved party went to the Court of First Instance of
Agusan on a special civil action for certiorari and prohibition.
The Agusan court and this Court on appeal both held that
there was grave abuse of discretion on the part of the
Executive Secretary in entertaining the appeal from a
decision of the Secretary of Agriculture and Natural
Resources which has become final; and, therefore, the
decision of the Executive Secretary was null and void. This
Court stressed in clear terms that "The decision having
become final, the Executive Secretary had no more power to
review it ... .8
Argument has been made in Desiata "that Administrative
Order No. 6 itself recognized certain exceptions wherein
decisions of the Secretary of Agriculture do not become final
even after 30 days, particularly citing Section 14 thereof."
Nonetheless, this Court pronounced: "But this proviso is
unavailing to him because he does not contend that in his
case there obtains any of the recognized exceptions to

P a g e | 34

finality listed thereunder, to wit: mistake, inadvertence,

default or excusable negligence."9
We find no reason to retreat from the foregoing precepts
enunciated by this Court in Desiata. Indeed, it is not
contended that Lands Administrative Order No. 6 does not
have the force and effect of law. Nor can it be, with success.
In administrative law, an administrative regulation adopted
pursuant to law, is law. Administratively speaking then, 30
days after receipt by the interested parties, the decision of
the Secretary of Agriculture and Natural Resources becomes
final, except in cases of mistakes, inadvertence, surprise,
default or excusable neglect. In which case, the Secretary
may relieve a party of a decision, order or other proceeding
taken against him upon application made within a
reasonable time but in no case exceeding one (1) year after
such decision, order or proceeding was taken. Defendants
do not come within the exception just noted.

The appellees' view that the period fixed in Administrative

Order No. 6-2 of the Director of Forestry cannot bind the
Office of the President since the latter has supervision and
control over the former cannot commend itself to sound
Public policy. Even administrative decisions must end
sometime, as fully as public policy demands that finality be
written on judicial controversies (Manila Electric Co. vs.
Public Service Commission, 61 Phil. 456).
In other words, public interest requires that proceedings
already terminated should not be altered at every step. The
rule of non quieta movere prescribes that what was already
terminated should not be disturbed (Espiritu vs. San Miguel
Brewery, 63 Phil. 615). 10 We do not doubt that even the
Office of the President subscribes to the above rule. As aptly
remarked by Justice Malcolm in Dy Cay vs. Crossfield &
O'Brien, 38 Phil. 527:

The executive power itself has laid down the rules for the
parties in administrative conflicts to follow. To be borne in
mind is that a Department Secretary is the alter ego of the
President. We must assume then that an administrative rule
laid down by a Department Secretary is, to all intents and
purposes, that of the President, unless countermanded by
the latter. It is illogical, unreasonable and unfair for the
executive branch of the government itself to set aside
administrative rules unless previously changed
beforehand in a specific case for the convenience of one
of the parties thereof. Closed proceedings should remain
closed; vested rights should not be unsettled. A contrary
view would, as correctly pointed out by plaintiffs, throw the
rule of law to the winds.

Public policy and sound practice demand that, at the risk of

occasional errors, judgments of courts should become final
at some definite date fixed by law. The very object for which
courts were instituted was to put an end to controversy. To
fulfill this purpose and to do so speedily, certain time limits,
more or less arbitrary, have to be set up to spur on the
slothful. ...

In Antique Sawmills, Inc. vs. Zayco, L-20051, May 30, 1966,

17 SCRA 316, 320 321, we find the following pertinent
passage:

We, accordingly, hold that the August 20, 1959 letter

decision of the Assistant Executive Secretary "by authority
of the President" reversing the decision of the Secretary of

Indeed, "[t]he rule which forbids the reopening of a matter

once judicially determined by competent authority applies
as well to the judicial and quasi-judicial acts of public,
executive, or administrative officers and boards acting
within their jurisdiction as to the judgments of courts having
general judicial powers. 11

P a g e | 35

Agriculture and Natural Resources in this case is null and

void and of no force and effect.
For the reasons given, the lower court's decision (labeled
Order) of January 31, 1963 appealed from is hereby
affirmed. No costs allowed. So ordered.

respondents.

DAVIDE, JR., J.:

May the Office of the President validly constitute an ad hoc
committee to take over and manage the affairs of an
electric cooperative?
This is the key issue in this original action for certiorari and
prohibition under Rule 65 of the Rules of Court wherein the
petitioners seek to (a) annul and set aside Memorandum
Order No. 409 of the Office of the President dated 3
December 1996 constituting an Ad Hoc Committee to take
over and manage the affairs of the Camarines Norte Electric
Cooperative, Inc., (hereafter CANORECO) "until such time as
a general membership meeting can be called to decide the
serious issues affecting the said cooperative and normalcy
in operations is restored"; and (b) prohibit the respondents
from performing acts or continuing proceedings pursuant to
the Memorandum Order.
The factual backdrop of this case is not complicated.

G.R. No. 127249 February 27, 1998

CAMARINES
NOTE
ELECTRIC
COOPERATIVE,
INC.
(CANORECO); RUBEN, N. BARRAMEDA; ELVIS L. ESPIRITU;
MERARDO G. ENERO, JR.; MERCELITO B. ABAS; and
REYNALDO V. ABUNDO, petitioners,
vs.
HON. RUBEN D. TORRES, in his capacity as Executive
Secretary; REX TANTIONGCO; HONESTO DE JESUS; ANDRES
IBASCO; TEODULO M. MEA; and VICENTE LUKBAN,

Petitioner CANORECO is an electric cooperative organized

under the provisions of P.D. No. 269, otherwise known as the
National Electrification Administration Decree, as amended
by P.D. No. 1645.
On 10 March 1990, then President Corazon C. Aquino signed
into law R.A. No. 6938 and R.A. No. 6939. The former is the
Cooperative Code of the Philippines, while the latter created
the Cooperative Development Authority (CDA) and vested
solely upon the CDA the power to register cooperatives.
Article 122 of the Cooperative Code expressly provides that

P a g e | 36

electric cooperatives shall be covered by the Code. Article

128 of the said Code and Section 17 of R.A. No. 6939
similarly provide that cooperatives created under P.D. No.
269, as amended by P.D. No. 1645, shall have three years
within which to qualify and register with the CDA and that
after they shall have so qualified and registered, the
provisions of Sections 3 and 5 of P.D. No. 1645 shall no
longer be applicable to them. These Sections 3 and 5 read
as follows:
Sec. 3. Section 5(a), Chapter II of Presidential Decree No.
269 is hereby amended by adding sub-paragraph (6) to read
as follows:
(6) To authorize the NEA Administrator to designate, subject
to the confirmation of the Board Administrators, an Acting
General Manager and/or Project Supervisor for a
Cooperative where vacancies in the said positions occur
and/or when the interest of the Cooperative and the
program so requires, and to prescribe the functions of said
Acting General Manager and/or Project Supervisor, which
powers shall not be nullified, altered or diminished by any
policy or resolution of the Board of Directors of the
Cooperative concerned.
xxx xxx xxx
Sec. 5. Section 10, Chapter II of Presidential Decree No. 269
is hereby amended to read as follows:
Sec. 10. Enforcement Powers and Remedies. In the
exercise of its power of supervision and control over electric
cooperatives and other borrower, supervised or controlled
entities, the NEA is empowered to issue orders, rules and
regulations and motu proprio or upon petition of third
parties, to conduct investigations, referenda and other
similar actions in all matters affecting said electric

cooperatives and other borrower, or supervised or controlled

entities.
xxx xxx xxx
Finally, the repealing clause (Article 127) of the Cooperative
Code provides:
Provided, however, That nothing in this Code shall be
interpreted to mean the amendment or repeal of any
provision of Presidential Decree No. 269: Provided, further,
That the electric cooperatives which qualify as such under
this Code shall fall under the coverage thereof.
CANORECO registered with the CDA pursuant to R.A. No.
6938 and R.A. No. 6939. On 8 March 1993, the CDA issued a
Certificate of Provisional Registration (T-003-93) to
CANORECO effective for two years. 1 On 1 March 1995, the
CDA extended this provisional registration until 4 May 1997.
2 However, on 10 July 1996, CANORECO filed with the CDA
its approved amendments to its Articles of Cooperation
converting itself from a non-stock to a stock cooperative
pursuant to the provisions of R.A. No. 6938 and the Omnibus
Implementing
Rules
and
Regulations
on
Electric
Cooperatives. On the same date the CDA issued a Certificate
of Registrations 3 of the amendments to CANORECO Articles
of Cooperation certifying that CANORECO is "registered as a
full-[f]ledged cooperative under and by virtue of R.A. 6938."
Previously, on 11 March 1995, the Board of Directors of
CANORECO 4 approved Resolution No. 22 appointing
petitioner Reynaldo V. Abundo as permanent General
Manager. The Board was composed of
Ruben N. Barrameda President
Elvis L. Espiritu Vice president

P a g e | 37

Treasurer Luis Pascua

Merardo G. Enero, Jr. Secretary
Marcelito B. Abas Treasurer
Antonio R. Obias Director
Luis A. Pascua Director
Norberto Z. Ochoa Director
Leonida Z. Manalo OIC GM/Ex-Officio
On 28 May 1995, Antonio Obias, Norberto Ochoa, Luis
Pascua, and Felicito Ilan held a special meeting of the Board
of Directors of CANORECO. The minutes of the meeting 5
showed that President Ruben Barrameda, Vice-President
Elvis Espiritu, and Treasurer Marcelito Abas were absent;
that Obias acted as temporary chairman; that the latter
informed those present that it was the responsibility of the
Board after the annual meeting to meet and elect the new
set of officers, but that despite the fact that he had called
the attention of President Barrameda and Directors Abas
and Espiritu for the holding thereof, the three chose not to
appear; and that those present in the special meeting
declared all positions in the board vacant and thereafter
proceeded to hold elections by secret balloting with all the
directors present considered candidates for the positions.
The following won and were declared as the newly elected
officers of the CANORECO:
President Norberto Ochoa
Vice President Antonio Obias
Secretary Felicito Ilan

Thereupon, these newly elected officers approved the

following resolutions:
1) Resolution No. 27, c.s. confirming the election of the
new set of officers of the Board of Directors of CANORECO
2) Resolution No. 28, c.s. recalling Resolution No. 22, c.s.
appointing Mr. Reynaldo V. Abundo as permanent General
Manager in view of the fact that such appointment was in
violation of the provisions of R.A. 6713; declaring the
position of General Manager as vacant; and designating Mr.
Oscar Acobera as Officer-in-Charge
3) Resolution No. 29, c.s. authorizing the Board President,
or in his absence, the Vice-President, countersigned by the
Treasurer, or in his absence, the Secretary, to be the only
officers who can transfer funds from savings to current
accounts; and authorizing the Officer-in-Charge, Mr.
Acobera, to issue checks without countersignature in an
amount not to exceed P3,000.00 and in excess thereof, to
be countersigned by the President and/or the Treasurer
4) Resolution No. 30, c.s. hiring the services of Atty.
Juanito Subia as retainer-lawyer for CANORECO. 6
The petitioners challenged the above resolutions and the
election of officers by filing with the CDA a Petition for
Declaration of Nullity of Board Resolutions and Election of
Officers with Prayer for Issuance of Injunction/Temporary
Restraining Order, which the CDA docketed CDA-CO Case
No. 95-010.
In its Resolution of 15 February 1996, 7 the CDA resolved
the petition in favor of the petitioners and decreed as
follows:

P a g e | 38

WHEREFORE, premises considered, the Board Meeting of

May 28, 1995, participated by the respondents, and all the
Resolutions issued on such occasion, are hereby declared
NULL AND VOID AB INITIO.
Likewise, the election of respondents Norberto Ochoa,
Antonio Obias, Felicito Ilan, and Luis Pascua, as President,
Vice-President, Secretary, and Treasurer, respectively, of
CANORECO is hereby declared NULL AND VOID AB INITIO.
Hence, respondents Norberto Ochoa, Antonio Obias, Felicito
Ilan, and Luis Pascua are hereby ordered to refrain from
representing themselves as President, Vice-President,
Secretary, and Treasurer, respectively, of CANORECO. The
same respondents are further ordered to refrain from acting
as authorized signatories to the bank accounts of
CANORECO.
Further respondent Felicito Ilan is hereby ordered to refrain
from exercising the duties and functions of a member of the
Board of CANORECO until the election protest is resolved
with finality by the proper forum. In the meantime, the
incumbency of petitioner Merardo Enero, Jr. as Director of
the CANORECO Board is hereby recognized.
A status quo is hereby ordered as regards the position of
General Manager, being held by Mr. Reynaldo Abundo,
considering that the recall of his appointment was done
under a void Resolution, and that the designation of Mr.
Oscar Acodera as Officer-in-Charge, under the same void
Resolution, has no force and effect.
Finally, respondents Antonio Obias, Norberto Ochoa, Luisito
Pascua, and petitioners Ruben Barrameda, Elvis Espiritu,
Marcelito Abas and Merardo Enero, Jr. are hereby ordered to
work together, as Board of Directors, for the common good

of CANORECO and its consumer-members, and to maintain

an atmosphere of sincere cooperation among the officers
and members of CANORECO.
On 28 June 1996, in defiance of the abovementioned
Resolution of the CDA and with the active participation of
some officials of the National Electrification Administration
(NEA), the group of Norberto Ochoa, Antonio Obias, Felicito
Ilan, and Luis Pascua forcibly took possession of the offices
of CANORECO and assumed the duties as officers thereof. 8
On 26 September 1996, pursuant to the writ of execution
and order to vacate issued by the CDA, the petitioners were
able to reassume control of the CANORECO and to perform
their respective functions. 9
On 3 December 1996, the President of the Philippines issued
Memorandum Order No. 409 10 constituting an Ad Hoc
Committee to temporarily take over and manage the affairs
of CANORECO. It reads as follows:
To efficiently and effectively address the worsening problem
of the Camarines Norte Electric Cooperative, Inc.
(CANORECO) and in order not to prejudice and endanger the
interest of the people who rely on the said cooperative for
their supply of electricity, an AD HOC Committee is hereby
constituted to take over and manage the affairs of
CANORECO until such time as a general membership
meeting can be called to decide the serious issues affecting
the said cooperative and normalcy in operations is restored.
Further, if and when warranted, the present Board of
Directors may be called upon by the Committee for advisory
services without prejudice to the receipt of their per diems
as may be authorized by existing rules and regulations.
The AD HOC Committee shall be composed of the following:

P a g e | 39

REX TANTIONGCO Chairman

Presidential Assistant on Energy Affairs
HONESTO DE JESUS Member
Cooperative Development Authority Nominee
ANDRES IBASCO Member
Cooperative Development Authority Nominee
TEODULO M. MEA Member
National Electrification Administration Nominee
VICENTE LUKBAN Member
National Electrification Administration Nominee
The said Committee shall have the following functions:
1. Designate the following upon the recommendation of the
Chairman:
1.1 an Acting General Manager who shall handle the day-today operations of the Cooperative. In the meantime, the
General Manager shall be deemed to be on leave without
prejudice to the payment of his salaries legally due him; and
1.2 a Comptroller who shall handle the financial affairs of
the Cooperative.
2. Ensure that:
xxx xxx xxx

The AD HOC Committee shall submit a written report to the

President, through the Office of the Executive Secretary,
every two (2) weeks from the effectivity of this Order.
A General Membership Meeting shall be called by the AD
HOC Committee to determine whether or not there is a need
to change the composition of the membership of the
Cooperative's Board of Directors. If the need exists, the AD
HOC Committee shall call for elections. Once composition of
the Board of Directors is finally settled, it shall decide on the
appointment of a General Manager in accordance with
prescribed laws, rules and regulations. Upon the
appointment of a General Manager, the Committee shall
become functus officio.
This Memorandum Order shall take effect immediately.
On 11 December 1996, the petitioners filed this petition
wherein they claim that
I. THE PRESIDENT HAS NO POWER TO TAKE OVER AND
MANAGE OR TO ORDER THE TAKE-OVER OR MANAGEMENT
OF CANORECO.
II. [THE] TAKE-OVER OF CANORECO BY THE AD HOC
COMMITTEE IS UNLAWFUL DESPITE DESIGNATION OF
CANORECO CONSUMERS AS MEMBERS OF AD HOC
COMMITTEE.
III. [THE] RELEGATION OF PETITIONERS AS MERE ADVISERS
TO THE AD HOC COMMITTEE AMOUNTS TO REMOVAL FROM
OFFICE WHICH THE PRESIDENT HAS NO POWER TO DO.
MOREOVER,
PETITIONERS'
REMOVAL
VIOLATES
PETITIONERS' RIGHT TO DUE PROCESS OF LAW.
IV. THE PRESIDENT IS LIKEWISE WITHOUT POWER TO
DESIGNATE OR ORDER THE DESIGNATION OF AN ACTING

P a g e | 40

GENERAL MANAGER FOR CANORECO AND TO CONSIDER

THE INCUMBENT REYNALDO V. ABUNDO TO BE ON LEAVE.
The petitioners assert that there is no provision in the
Constitution or in a statute expressly, or even impliedly,
authorizing the President or his representatives to lake over
or order the take-over of electric cooperatives. Although
conceding that while the State, through its police power, has
the right to interfere with private business or commerce,
they maintain that the exercise thereof is generally limited
to the regulation of the business or commerce and that the
power to regulate does not include the power to take over,
control, manage, or direct the operation of the business.
Accordingly, the creation of the Ad Hoc Committee for the
purpose of take-over was illegal and void.
The petitioners further claim that Memorandum Order No.
409 removed them from their positions as members of the
Board of Directors of CANORECO. The President does not
have the authority to appoint, much less to remove,
members of the board of directors of a private enterprise
including electric cooperatives. He cannot rely on his power
of supervision over the NEA to justify the designation of an
acting general manager for CANORECO under P.D. No. 269
as amended by P.D. No. 1645, for CANORECO had already
registered with the CDA pursuant to R.A. 6938 and R.A. No.
6939; hence, the latter laws now govern the internal affairs
of CANORECO
On 3 January 1997, the petitioners filed an Urgent Motion for
Issuance of a Temporary Restraining Order.
On 9 January 1997, the petitioners filed a Manifestation and
Motion informing the Court that on 8 January 1997
respondent Rex Tantiongco notified the petitioners that the
Ad Hoc Committee was taking over the affairs and
management of CANORECO effective as of that date. 11

They reiterated their plea for the issuance of a temporary

restraining order because the Ad Hoc Committee has taken
control of CANORECO and usurped the functions of the
individual petitioners.
In the Resolution dated 13 January 1997, we required
respondents to comment on the petition.
Despite four extensions granted it, the Office of the Solicitor
General (OSG) failed to file its Comment. Hence, in the
resolution of 16 July 1997 we deemed the OSG to have
waived the filing of its Comment and declared this case
submitted for decision. The OSG's motion to admit its
Comment, as well as the attached Comment, belatedly filed
on 24 July 1997 was merely noted without action in the
resolution of 13 August 1997. We also subsequently denied
for lack of merit its motion for reconsideration.
We find the instant petition impressed with merit.
Having registered itself with the CDA pursuant to Section
128 of R.A. No. 6938 and Section 17 of R.A. No. 6939,
CANORECO was brought under the coverage of said laws.
Article 38 of R.A. No. 6938 vests upon the board of directors
the conduct and management of the affairs of cooperatives,
and Article 39 provides for the powers of the board of
directors. These sections read:
Art. 38. Composition of the Board of Directors. The
conduct and management of the affairs of a cooperative
shall be vested in a board of directors which shall be
composed of not less than five (5) nor more than fifteen (15)
members elected by the general assembly for a term fixed
in the by-laws but not exceeding a term of two (2) years and
shall hold office until their successors are duly elected and
qualified, or until duly removed. However, no director shall
serve of more than three (3) consecutive terms.

P a g e | 41

Art. 39. Powers of the Board of Directors. The board of

directors shall direct and supervise the business, manage
the property of the cooperative and may, by resolution,
exercise all such powers of the cooperative as are not
reserved for the general assembly under this Code and the
by-laws.
As to the officers of cooperatives, Article 43 of the Code
provides:
Art. 43. Officers of the Cooperative. The board of directors
shall elect from among themselves only the chairman and
vice-chairman, and elect or appoint other officers of the
cooperative from outside of the board in accordance with
their by-laws. All officers shall serve during good behavior
and shall not be removed except for cause and after due
hearing. Loss of confidence shall not be a valid ground for
removal unless evidenced by acts or omissions causing loss
of confidence in the honesty and integrity of such officer. No
two (2) or more persons with relationship up to the third
degree of consanguinity or affinity shall serve as elective or
appointive officers in the same board. 12
Under Article 34 of the Code, the general assembly of
cooperatives has the exclusive power, which cannot be
delegated, to elect or appoint the members of the board of
directors and to remove them for cause. Article 51 thereof
provides for removal of directors and officers as follows:
Art. 51. Removal. An elective officer, director, or
committee member may be removed by a vote of two-thirds
(2/3) of the voting members present and constituting a
quorum, in a regular or special general assembly meeting
called for the purpose. The person involved shall be given
an opportunity to be heard at said assembly.

Memorandum Order No. 409 clearly removed from the Board

of Directors of CANORECO the power to manage the affairs
of CANORECO and transferred such power to the Ad Hoc
Committee, albeit temporarily. Considering that (1) the takeover will be "until such time that a general membership
meeting can be called to decide the serious issues affecting
the said cooperative and normalcy in operations is restored,
and (2) the date such meeting shall be called and the
determination of whether there is a need to change the
composition of the membership of CANORECO's Board of
Directors are exclusively left to the Ad Hoc Committee, it
necessarily follows that the incumbent directors were, for all
intents and purposes, suspended at the least, and removed,
at the most, from their office. The said Memorandum did no
less to the lawfully appointed General Manager by directing
that upon the settlement of the issue concerning the
composition of the board of directors the Committee shall
decide on the appointment of a general manager. In the
meantime, it authorized the Committee to designate upon
the recommendation of the Chairman an Acting Manager,
with the lawfully appointed Manager considered on leave,
but who is, however, entitled to the payment of his salaries.
Nothing in law supported the take-over of the management
of the affairs of CANORECO, and the "suspension," if not
"removal," of the Board of Directors and the officers thereof.
It must be pointed out that the controversy which resulted in
the issuance of the Memorandum Order stemmed from a
struggle between two groups vying for control of the
management of CANORECO. One faction was led by the
group of Norberto Ochoa, while the other was petitioners'
group whose members were, at that time, the incumbent
directors and officers. It was the action of Ochoa and his
cohorts in holding a special meeting on 28 May 1995 and
then declaring vacant the positions of cooperative officers
and thereafter electing themselves to the positions of

P a g e | 42

president, vice-president, treasurer, and secretary of

CANORECO which compelled the petitioners to file a petition
with the CDA. The CDA thereafter came out with a decision
favorable to the petitioners.
Obviously there was a clear case of intra-cooperative
dispute. Article 121 of the Cooperative Code is explicit on
how the dispute should be resolved; thus:
Art. 121. Settlement of Disputes. Disputes among
members, officers, directors, and committee members, and
intra-cooperative disputes shall, as far as practicable, be
settled amicably in accordance with the conciliation or
mediation mechanisms embodied in the by-laws of the
cooperative, and in applicable laws.
Should such a conciliation/mediation proceeding fail, the
matter shall be settled in a court of competent jurisdiction.
Complementing this Article is Section 8 of R.A. No. 6939,
which provides:
Sec. 8. Mediation and Conciliation. Upon request of either
or both or both parties, the [CDA] shall mediate and
conciliate disputes with the cooperative or between
cooperatives: Provided, That if no mediation or conciliation
succeeds within three (3) months from request thereof, a
certificate of non-resolution shall be issued by the
commission prior to the filing of appropriate action before
the proper courts.
Even granting for the sake of argument that the party
aggrieved by a decision of the CDA could pursue an
administrative appeal to the Office of the President on the
theory that the CDA is an agency under its direct
supervision and control, still the Office of the President could
not in this case, motu proprio or upon request of a party,

supplant or overturn the decision of the CDA. The record

does not disclose that the group of Norberto Ochoa
appealed from the decision of the CDA in CDA-CO Case No.
95-010 to the Office of the President as the head of the
Executive Department exercising supervision and control
over said agency. In fact the CDA had already issued a
Cease and Desist Order dated 14 August 1996 ordering
Antonio Obias, Norberto Ochoa, Luis Pascua, Felicito Ilan and
their followers "to cease and desist from acting as the Board
of Directors and Officers of Camarines Norte Electric
Cooperative (CANORECO) and to refrain from implementing
their Resolution calling for the District V Election on August
17 and 24, 1996." 13 Consequently, the said decision of the
CDA had long become final and executory when
Memorandum Order No. 409 was issued on 3 December
1996. That Memorandum cannot then be considered as one
reversing the decision of the CDA which had attained
finality.
Under Section 15, Chapter III of Book VII of the
Administrative Code of 1987 (Executive Order No. 292),
decisions of administrative agencies become final and
executory fifteen days after receipt of a copy thereof by the
party adversely affected unless within that period an
administrative appeal or judicial review, if proper, has been
perfected. One motion for reconsideration is allowed. A final
resolution or decision of an administrative agency also binds
the Office of the President even if such agency is under the
administrative supervision and control of the latter.
We have stated before, and reiterate it now, that
administrative decisions must end sometime, as fully as
public policy demands that finality be written on judicial
controversies. Public interest requires that proceedings
already terminated should not be altered at every step, for
the rule of non quieta movere prescribes that what had
already been terminated should not be disturbed. A

P a g e | 43

disregard of this principle does not commend itself to sound

public policy. 14
Neither can police power be invoked to clothe with validity
the assailed Memorandum Order No. 409. Police power is
the power inherent in a government to enact laws, within
constitutional limits, to promote the order, safety, health,
morals, and general welfare of society. 15 It is lodged
primarily in the legislature. By virtue of a valid delegation of
legislative power, it may also be exercised by the President
and administrative boards, as well as the lawmaking bodies
on all municipal levels, including the barangay. 16
Delegation of legislative powers to the President is
permitted in Sections 23(2) and 28(2) of Article VI of the
Constitution. 17 The pertinent laws on cooperatives,
namely, R.A. No. 6938, R.A. No. 6939, and P.D. No. 269 as
amended by P.D. No. 1645 do not provide for the President
or any other administrative body to take over the internal
management of a cooperative. Article 98 of R.A. 6938
instead provides:
Art. 98. Regulation of Public Service Cooperatives. (1) The
internal affairs of public service cooperatives such as the
rights and privileges of members, the rules and procedures
for meetings of the general assembly, board of directors and
committees; for the election and qualification of officers,
directors, and committee members; allocation and
distribution of surpluses, and all other matters relating to
their internal affairs shall be governed by this Code.

elected or appointed in a manner agreed upon by the

members. Likewise, it runs counter to the policy set forth in
Section 1 of R.A. No. 6939 that the State shall, except as
provided in said Act, maintain a policy of non-interference in
the management and operation of cooperatives.
WHEREFORE, the instant petition is GRANTED and
Memorandum Order No. 409 of the President is hereby
declared INVALID.
SO ORDERED

G.R. No. 90336 August 12, 1991

RUPERTO TAULE, petitioner,
vs.
SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO
VERCELES, respondents.
Balgos & Perez and Bugaring, Tugonon & Associates Law
Offices for petitioner.
Juan G. Atencia for private respondent.

GANCAYCO, J.:p
We do not then hesitate to rule that Memorandum Order No.
409 has no constitutional and statutory basis. It violates the
basic underlying principle enshrined in Article 4(2) of R.A.
No. 6938 that cooperatives are democratic organizations
and that their affairs shall be administered by persons

The extent of authority of the Secretary of Local

Government over the katipunan ng mga barangay or the
barangay councils is brought to the fore in this case.
On June 18,1989, the Federation of Associations of Barangay

P a g e | 44

Councils (FABC) of Catanduanes, composed of eleven (11)

members, in their capacities as Presidents of the Association
of Barangay Councils in their respective municipalities,
convened in Virac, Catanduanes with six members in
attendance for the purpose of holding the election of its
officers.

On June 19, 1989, respondent Leandro I. Verceles, Governor

of Catanduanes, sent a letter to respondent Luis T. Santos,
the Secretary of Local Government,* protesting the election
of the officers of the FABC and seeking its nullification in
view of several flagrant irregularities in the manner it was
conducted. 2

Present were petitioner Ruperto Taule of San Miguel, Allan

Aquino of Viga, Vicente Avila of Virac, Fidel Jacob of
Panganiban, Leo Sales of Caramoran and Manuel Torres of
Baras. The Board of Election Supervisors/Consultants was
composed of Provincial Government Operation Officer
(PGOO) Alberto P. Molina, Jr. as Chairman with Provincial
Treasurer Luis A. Manlapaz, Jr. and Provincial Election
Supervisor Arnold Soquerata as members.

In compliance with the order of respondent Secretary,

petitioner Ruperto Taule as President of the FABC, filed his
comment on the letter-protest of respondent Governor
denying the alleged irregularities and denouncing said
respondent Governor for meddling or intervening in the
election of FABC officers which is a purely non-partisan affair
and at the same time requesting for his appointment as a
member of the Sangguniang Panlalawigan of the province
being the duly elected President of the FABC in
Catanduanes. 3

When the group decided to hold the election despite the

absence of five (5) of its members, the Provincial Treasurer
and the Provincial Election Supervisor walked out.
The election nevertheless proceeded with PGOO Alberto P.
Molina, Jr. as presiding officer. Chosen as members of the
Board of Directors were Taule, Aquino, Avila, Jacob and
Sales.
Thereafter, the following were elected officers of the FABC:
President Ruperto Taule
Vice-President Allan Aquino
Secretary Vicente Avila
Treasurer Fidel Jacob
Auditor Leo Sales 1

On August 4, 1989, respondent Secretary issued a resolution

nullifying the election of the officers of the FABC in
Catanduanes held on June 18, 1989 and ordering a new one
to be conducted as early as possible to be presided by the
Regional Director of Region V of the Department of Local
Government. 4
Petitioner filed a motion for reconsideration of the resolution
of August 4, 1989 but it was denied by respondent Secretary
in his resolution of September 5, 1989. 5
In the petition for certiorari before Us, petitioner seeks the
reversal of the resolutions of respondent Secretary dated
August 4, 1989 and September 5, 1989 for being null and
void.
Petitioner raises the following issues:
1) Whether or not the respondent Secretary has jurisdiction

P a g e | 45

to entertain an election protest involving the election of the

officers of the Federation of Association of Barangay
Councils;
2) Whether or not the respondent Governor has the legal
personality to file an election protest;
3) Assuming that the respondent Secretary has jurisdiction
over the election protest, whether or not he committed
grave abuse of discretion amounting to lack of jurisdiction in
nullifying the election;
The Katipunan ng mga Barangay is the organization of all
sangguniang barangays in the following levels: in
municipalities to be known as katipunang bayan; in cities,
katipunang
panlungsod;
in
provinces,
katipunang
panlalawigan; in regions, katipunang pampook; and on the
national level, katipunan ng mga barangay. 6
The Local Government Code provides for the manner in
which the katipunan ng mga barangay at all levels shall be
organized:
Sec. 110. Organization. (1) The katipunan at all levels
shall be organized in the following manner:
(a) The katipunan in each level shall elect a board of
directors and a set of officers. The president of each level
shall represent the katipunan concerned in the next higher
level of organization.
(b) The katipunan ng mga barangay shall be composed of
the katipunang pampook, which shall in turn be composed
of the presidents of the katipunang panlalawigan and the
katipunang panlungsod. The presidents of the katipunang
bayan in each province shall constitute the katipunang
panlalawigan. The katipunang panlungsod and the

katipunang bayan shall be composed of the punong

barangays of cities and municipalities, respectively.
xxx xxx xxx
The respondent Secretary, acting in accordance with the
provision of the Local Government Code empowering him to
"promulgate in detail the implementing circulars and the
rules and regulations to carry out the various administrative
actions required for the initial implementation of this Code in
such a manner as will ensure the least disruption of ongoing programs and projects 7 issued Department of Local
Government Circular No. 89-09 on April 7, 1989, 8 to provide
the guidelines for the conduct of the elections of officers of
the Katipunan ng mga Barangay at the municipal, city,
provincial, regional and national levels.
It is now the contention of petitioner that neither the
constitution nor the law grants jurisdiction upon the
respondent Secretary over election contests involving the
election of officers of the FABC, the katipunan ng mga
barangay at the provincial level. It is petitioner's theory that
under Article IX, C, Section 2 of the 1987 Constitution, it is
the Commission on Elections which has jurisdiction over all
contests involving elective barangay officials.
On the other hand, it is the opinion of the respondent
Secretary that any violation of the guidelines as set forth in
said circular would be a ground for filing a protest and would
vest upon the Department jurisdiction to resolve any protest
that may be filed in relation thereto.
Under Article IX, C, Section 2(2) of the 1987 Constitution,
the Commission on Elections shall exercise "exclusive
original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over

P a g e | 46

all contests involving elective municipal officials decided by

trial courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited
jurisdiction." The 1987 Constitution expanded the
jurisdiction of the COMELEC by granting it appellate
jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction or
elective barangay officials decided by trial courts of limited
jurisdiction. 9
The jurisdiction of the COMELEC over contests involving
elective barangay officials is limited to appellate jurisdiction
from decisions of the trial courts. Under the law, 10 the
sworn petition contesting the election of a barangay officer
shall be filed with the proper Municipal or Metropolitan Trial
Court by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office within 10
days after the proclamation of the results. A voter may also
contest the election of any barangay officer on the ground of
ineligibility or of disloyalty to the Republic of the Philippines
by filing a sworn petition for quo warranto with the
Metropolitan or Municipal Trial Court within 10 days after the
proclamation of the results of the election. 11 Only appeals
from decisions of inferior courts on election matters as
aforestated may be decided by the COMELEC.
The Court agrees with the Solicitor General that the
jurisdiction of the COMELEC is over popular elections, the
elected officials of which are determined through the will of
the electorate. An election is the embodiment of the popular
will, the expression of the sovereign power of the people. 12
It involves the choice or selection of candidates to public
office by popular vote. 13 Specifically, the term "election," in
the context of the Constitution, may refer to the conduct of
the polls, including the listing of voters, the holding of the
electoral campaign, and the casting and counting of the
votes 14 which do not characterize the election of officers in

the Katipunan ng mga barangay. "Election contests" would

refer to adversary proceedings by which matters involving
the title or claim of title to an elective office, made before or
after proclamation of the winner, is settled whether or not
the contestant is claiming the office in dispute 15 and in the
case of elections of barangay officials, it is restricted to
proceedings after the proclamation of the winners as no preproclamation controversies are allowed. 16
The jurisdiction of the COMELEC does not cover protests
over the organizational set-up of the katipunan ng mga
barangay composed of popularly elected punong barangays
as prescribed by law whose officers are voted upon by their
respective members. The COMELEC exercises only appellate
jurisdiction over election contests involving elective
barangay officials decided by the Metropolitan or Municipal
Trial Courts which likewise have limited jurisdiction. The
authority of the COMELEC over the katipunan ng mga
barangay is limited by law to supervision of the election of
the representative of the katipunan concerned to the
sanggunian in a particular level conducted by their own
respective organization. 17
However, the Secretary of Local Government is not vested
with jurisdiction to entertain any protest involving the
election of officers of the FABC.
There is no question that he is vested with the power to
promulgate rules and regulations as set forth in Section 222
of the Local Government Code.
Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of the
Administrative Code of 1987, ** the respondent Secretary
has the power to "establish and prescribe rules, regulations
and other issuances and implementing laws on the general
supervision of local government units and on the promotion
of local autonomy and monitor compliance thereof by said

P a g e | 47

units."
Also, the respondent Secretary's rule making power is
provided in See. 7, Chapter II, Book IV of the Administrative
Code, to wit:
(3) Promulgate rules and regulations necessary to carry out
department objectives, policies, functions, plans, programs
and projects;
Thus, DLG Circular No. 89-09 was issued by respondent
Secretary in pursuance of his rule-making power conferred
by law and which now has the force and effect of law. 18
Now the question that arises is whether or not a violation of
said circular vests jurisdiction upon the respondent
Secretary, as claimed by him, to hear a protest filed in
relation thereto and consequently declare an election null
and void.
It is a well-settled principle of administrative law that unless
expressly empowered, administrative agencies are bereft of
quasi- judicial powers. 19 The jurisdiction of administrative
authorities is dependent entirely upon the provisions of the
statutes reposing power in them; they cannot confer it upon
themselves. 20 Such jurisdiction is essential to give validity
to their determinations. 21
There is neither a statutory nor constitutional provision
expressly or even by necessary implication conferring upon
the Secretary of Local Government the power to assume
jurisdiction over an election protect involving officers of the
katipunan ng mga barangay. An understanding of the extent
of authority of the Secretary over local governments is
therefore necessary if We are to resolve the issue at hand.
Presidential power over local governments is limited by the

Constitution to the exercise of general supervision 22 "to

ensure that local affairs are administered according to law."
23 The general supervision is exercised by the President
through the Secretary of Local Government. 24
In administrative law, supervision means overseeing or the
power or authority of an officer to see that the subordinate
officers perform their duties. If the latter fails or neglects to
fulfill them the former may take such action or step as
prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.
The fundamental law permits the Chief Executive to wield no
more authority than that of checking whether said local
government or the officers thereof perform their duties as
provided by statutory enactments. Hence, the President
cannot interfere with local governments so long as the same
or its officers act within the scope of their authority. 25
Supervisory power, when contrasted with control, is the
power of mere oversight over an inferior body; it does not
include any restraining authority over such body. 26
Construing the constitutional limitation on the power of
general supervision of the President over local governments,
We hold that respondent Secretary has no authority to pass
upon the validity or regularity of the election of the officers
of the katipunan. To allow respondent Secretary to do so will
give him more power than the law or the Constitution
grants. It will in effect give him control over local
government officials for it will permit him to interfere in a
purely democratic and non-partisan activity aimed at
strengthening the barangay as the basic component of local
governments so that the ultimate goal of fullest autonomy
may be achieved. In fact, his order that the new elections to
be conducted be presided by the Regional Director is a clear

P a g e | 48

and direct interference by the Department with the political

affairs of the barangays which is not permitted by the
limitation of presidential power to general supervision over
local governments. 27
Indeed, it is the policy of the state to ensure the autonomy
of local governments. 28 This state policy is echoed in the
Local Government Code wherein it is declared that "the
State shall guarantee and promote the autonomy of local
government units to ensure their fullest development as
self-reliant communities and make them more effective
partners in the pursuit of national development and social
progress." 29 To deny the Secretary of Local Government
the power to review the regularity of the elections of officers
of the katipunan would be to enhance the avowed state
policy of promoting the autonomy of local governments.
Moreover, although the Department is given the power to
prescribe rules, regulations and other issuances, the
Administrative Code limits its authority to merely
"monitoring compliance" by local government units of such
issuances. 30 To monitor means "to watch, observe or
check. 31 This is compatible with the power of supervision
of the Secretary over local governments which as earlier
discussed is limited to checking whether the local
government unit concerned or the officers thereof perform
their duties as provided by statutory enactments. Even the
Local Government Code which grants the Secretary power to
issue implementing circulars, rules and regulations is silent
as to how these issuances should be enforced. Since the
respondent Secretary exercises only supervision and not
control over local governments, it is truly doubtful if he
could enforce compliance with the DLG Circular. 32 Any
doubt therefore as to the power of the Secretary to interfere
with local affairs should be resolved in favor of the greater
autonomy of the local government.

Thus, the Court holds that in assuming jurisdiction over the

election protest filed by respondent Governor and declaring
the election of the officers of the FABC on June 18, 1989 as
null and void, the respondent Secretary acted in excess of
his jurisdiction. The respondent Secretary not having the
jurisdiction to hear an election protest involving officers of
the FABC, the recourse of the parties is to the ordinary
courts. The Regional Trial Courts have the exclusive original
jurisdiction to hear the protest. 33
The provision in DLG Circular No. 89-15 amending DLG
Circular No. 89-09 which states that "whenever the
guidelines are not substantially complied with, the election
shall be declared null and void by the Department of Local
Government and an election shall conduct and being
invoked by the Solicitor General cannot be applied. DLG
Circular No. 89-15 was issued on July 3, 1989 after the June
18, 1989 elections of the FABC officers and it is the rule in
statutory construction that laws, including circulars and
regulations 34 cannot be applied retrospectively. 35
Moreover, such provision is null and void for having been
issued in excess of the respondent Secretary's jurisdiction,
inasmuch as an administrative authority cannot confer
jurisdiction upon itself.
As regards the second issue raised by petitioner, the Court
finds that respondent Governor has the personality to file
the protest. Under Section 205 of the Local Government
Code, the membership of the sangguniang panlalawigan
consists of the governor, the vice-governor, elective
members of the said sanggunian and the presidents of the
katipunang panlalawigan and the kabataang barangay
provincial federation. The governor acts as the presiding
officer of the sangguniang panlalawigan. 36
As presiding officer of the sagguniang panlalawigan, the
respondent governor has an interest in the election of the

P a g e | 49

officers of the FABC since its elected president becomes a

member of the assembly. If the president of the FABC
assumes his presidency under questionable circumstances
and is allowed to sit in the sangguniang panlalawigan the
official actions of the sanggunian may be vulnerable to
attacks as to their validity or legality. Hence, respondent
governor is a proper party to question the regularity of the
elections of the officers of the FABC.
As to the third issue raised by petitioner, the Court has
already ruled that the respondent Secretary has no
jurisdiction to hear the protest and nullify the elections.
Nevertheless, the Court holds that the issue of the validity of
the elections should now be resolved in order to prevent any
unnecessary delay that may result from the commencement
of an appropriate action by the parties.
The elections were declared null and void primarily for
failure to comply with Section 2.4 of DLG Circular No. 89-09
which provides that "the incumbent FABC President or the
Vice-President shall preside over the reorganizational
meeting, there being a quorum." The rule specifically
provides that it is the incumbent FABC President or VicePresident who shall preside over the meeting. The word
"shall" should be taken in its ordinary signification, i.e., it
must be imperative or mandatory and not merely
permissive, 37 as the rule is explicit and requires no other
interpretation. If it had been intended that any other official
should preside, the rules would have provided so, as it did in
the elections at the town and city levels 38 as well as the
regional level.. 39
It is admitted that neither the incumbent FABC President nor
the Vice-President presided over the meeting and elections
but Alberto P. Molina, Jr., the Chairman of the Board of
Election Supervisors/Consultants. Thus, there was a clear

violation of the aforesaid mandatory provision. On this

ground, the elections should be nullified.
Under Sec. 2.3.2.7 of the same circular it is provided that a
Board of Election Supervisors/Consultants shall be
constituted to oversee and/or witness the canvassing of
votes and proclamation of winners. The rules confine the
role of the Board of Election Supervisors/Consultants to
merely overseeing and witnessing the conduct of elections.
This is consistent with the provision in the Local Government
Code limiting the authority of the COMELEC to the
supervision of the election. 40
In case at bar, PGOO Molina, the Chairman of the Board,
presided over the elections. There was direct participation
by the Chairman of the Board in the elections contrary to
what is dictated by the rules. Worse, there was no Board of
Election Supervisors to oversee the elections in view of the
walk out staged by its two other members, the Provincial
COMELEC Supervisor and the Provincial Treasurer. The
objective of keeping the election free and honest was
therefore compromised.
The Court therefore finds that the election of officers of the
FABC held on June 18, 1989 is null and void for failure to
comply with the provisions of DLG Circular No. 89-09.
Meanwhile, pending resolution of this petition, petitioner
filed a supplemental petition alleging that public respondent
Local Government Secretary, in his memorandum dated
June 7, 1990, designated Augusto Antonio as temporary
representative of the Federation to the sangguniang
panlalawigan of Catanduanes. 41 By virtue of this
memorandum, respondent governor swore into said office
Augusto Antonio on June 14, 1990. 42
The Solicitor General filed his comment on the supplemental

P a g e | 50

petition 43 as required by the resolution of the Court dated

September 13,1990.
In his comment, the Solicitor General dismissed the
supervening event alleged by petitioner as something
immaterial to the petition. He argues that Antonio's
appointment was merely temporary "until such time that the
provincial FABC president in that province has been elected,
appointed and qualified." 44 He stresses that Antonio's
appointment was only a remedial measure designed to cope
with the problems brought about by the absence of a
representative of the FABC to the "sanggunian ang
panlalawigan."
Sec. 205 (2) of the Local Government Code (B.P. Blg. 337)
provides(2) The sangguniang panlalawigan shall be composed of the
governor, the vice-governor, elective members of the said
sanggunian and the presidents of the katipunang
panlalawigan and the kabataang barangay provincial
federation who shall be appointed by the President of the
Philippines. (Emphasis supplied.)
Batas Pambansa Blg. 51, under Sec. 2 likewise states:
xxx xxx xxx
The sangguniang panlalawigan of each province shall be
composed of the governor as chairman and presiding officer,
the vice-governor as presiding officer pro tempore, the
elective sangguniang panlalawigan members, and the
appointive members consisting of the president of the
provincial association of barangay councils, and the
president of the provincial federation of the kabataang
barangay. (Emphasis supplied.)

In Ignacio vs. Banate Jr. 45 the Court, interpreting similarly

worded provisions of Batas Pambansa Blg. 337 and Batas
Pambansa Blg. 51 on the composition of the sangguniang
panlungsod, 46 declared as null and void the appointment of
private respondent Leoncio Banate Jr. as member of the
Sangguniang Panlungsod of the City of Roxas representing
the katipunang panlungsod ng mga barangay for he lacked
the elegibility and qualification required by law, not being a
barangay captain and for not having been elected president
of the association of barangay councils. The Court held that
an unqualified person cannot be appointed a member of the
sanggunian, even in an acting capacity. In Reyes vs. Ferrer,
47 the appointment of Nemesio L. Rasgo Jr. as
representative of the youth sector to the sangguniang
panlungsod of Davao City was declared invalid since he was
never the president of the kabataang barangay city
federation as required by Sec. 173, Batas Pambansa Blg.
337.
In the present controversy involving the sangguniang
panlalawigan, the law is likewise explicit. To be appointed by
the President of the Philippines to sit in the sangguniang
panlalawigan is the president of the katipunang
panlalawigan. The appointee must meet the qualifications
set by law. 48 The appointing power is bound by law to
comply with the requirements as to the basic qualifications
of the appointee to the sangguniang panlalawigan. The
President of the Philippines or his alter ego, the Secretary of
Local Government, has no authority to appoint anyone who
does not meet the minimum qualification to be the
president of the federation of barangay councils.
Augusto Antonio is not the president of the federation. He is
a member of the federation but he was not even present
during the elections despite notice. The argument that
Antonio was appointed as a remedial measure in the
exigency of the service cannot be sustained. Since Antonio

P a g e | 51

does not meet the basic qualification of being president of

the federation, his appointment to the sangguniang
panlalawigan is not justified notwithstanding that such
appointment is merely in a temporary capacity. If the
intention of the respondent Secretary was to protect the
interest of the federation in the sanggunian, he should have
appointed the incumbent FABC President in a hold-over
capacity. For even under the guidelines, the term of office of
officers of the katipunan at all levels shall be from the date
of their election until their successors shall have been duly
elected and qualified, without prejudice to the terms of their
appointments as members of the sanggunian to which they
may be correspondingly appointed. 49 Since the election is
still under protest such that no successor of the incumbent
has as yet qualified, the respondent Secretary has no choice
but to have the incumbent FABC President sit as member of
the sanggunian. He could even have appointed petitioner
since he was elected the president of the federation but not
Antonio. The appointment of Antonio, allegedly the protege
of respondent Governor, gives credence to petitioner's
charge of political interference by respondent Governor in
the organization. This should not be allowed. The barangays
should be insulated from any partisan activity or political
intervention if only to give true meaning to local autonomy.
WHEREFORE, the petition is GRANTED in that the resolution
of respondent Secretary dated August 4, 1989 is hereby SET
ASIDE for having been issued in excess of jurisdiction.
The election of the officials of the ABC Federation held on
June 18, 1989 is hereby annulled. A new election of officers
of the federation is hereby ordered to be conducted
immediately in accordance with the governing rules and
regulations.
The Supplemental petition is hereby GRANTED. The
appointment of Augusto Antonio as representative to the

Sangguniang Panlalawigan in a temporary capacity is

declared null and void.
No costs.
SO ORDERED.

P a g e | 52

G.R. No. L-61998 February 22, 1983

ROGELIO DE JESUS, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, et al., respondents.
Jaime G. Fortes for petitioner.
The Solicitor General for respondents.

ESCOLIN, J.:
The question of law posed for determination in this petition
for review on certiorari of the resolution of the
Sandiganbayan may be propounded thus: Which of these
entities have the power to investigate, prosecute and try
election offenses committed by a public officer in relation to
his office the Commission on Elections and the Court of
First Instance [now the regional trial court] or the
Tanodbayan and the Sandiganbayan?
After the local elections of January 18, 1980, Ananias Hibo
defeated candidate of the Nacionalista Party for the office of
mayor of the Municipality of Casiguran, Sorsogon filed with
the COMELEC a complaint charging petitioner Rogelio de
Jesus, then COMELEC registrar of Casiguran, with violation of
the 1978 Election Code. Copy of the complaint was sent to

the Ministry of Justice which endorsed the same to the

Provincial Fiscal of Sorsogon for investigation. Noting that
petitioner was being charged in relation to his office, Asst.
Fiscals Manuel Genova and Delfin Tarog in their capacity as
deputized
Tanodbayan
prosecutors,
conducted
an
investigation. Thereafter Fiscal Genova issued a resolution
finding the existence of a prima facie case against petitioner
for violation of section 89 1 and sub-sections [x] 2 and [mm]
3 of Section 178 of the Election Code of 1978. After approval
thereof by the Tanodbayan, the following information, dated
January 27, 1982, was filed before the Sandiganbayan:
That on or about January 30, 1980 and sometime thereafter
to February 6, 1980, in the Municipality of Casiguran
Province of Sorsogon, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused while
discharging the Office of the Election Registrar in the
Municipality of Casiguran, Province of Sorsogon, taking
advantage and abusing his official position, did there and
there wilfully unlawfully and feloniously by reason of his
being a registrar knowingly registered persons in order to
vote on January 30, 1980 being an election day and at the
same time issuing Identification cards during election day,
thereby violating the provision of the Election Code of 1978
and at the same time tampering with the election reports by
mag it appear that 10,727 persons were the total number of
registered voters for the election of January 30, 1980, when
in truth and in fact the actual total number of voters as sported on January 27, 1980 by the accused was only
10,532 but then changed to 10,727, thereby violating the
provisions of Section '89' and Section.'178' under Article XVI
specifically sub- section 'X' and sub-section 'MM' which is a
violation of the Election Code of 1978 to the erosion of
public faith and confidence.
The case, docketed as SB Criminal Case No. 5054, was
raffled to the Second Division of the Sandiganbayan.

P a g e | 53

Petitioner filed a motion to quash the information,

contending that neither the Tanodbayan nor the
Sandiganbayan has the authority to investigate, prosecute
and try the offense
xxx xxx xxx
[x] Any election registrar or any person acting in his behalf
who issues or causes the issuance of a voter's certificate of
registration or cancels or causes the cancellation thereof the
violation of the provisions of this Code.
xxx xxx xxx
[mm] Any person who, without authority, acts as, or
assumes r performs any -function of a member of the
election committee, or the board of canvassers, or deputy of
representative of the Commission.
charged in the information, the same being an election
offense over which the power to investigate, prosecute and
try is lodged by law in the COMELEC and the Court of First
Instance. In its opposition, the prosecution maintained the
Tanodbayan's exclusive authority to investigate and
prosecute offenses committed by public officers and
employees in relation to their office, and consequently, the
Sandiganbayan's jurisdiction to try and decide the charges
against petitioner.
The COMELEC, having learned of the pendency of the case,
entered its appearance as amicus curiae, and through its
law department manager, Atty. Zoilo Gomez, Jr., submitted a
memorandum supporting petitioner's stand. 4
On August 13, 1982, the Sandiganbayan issued the
questioned resolution denying the motion to quash.

Petitioner's motion for reconsideration was likewise denied.

Hence, this petition for review on certiorari.
The legal question posed being one of first impression, this,
Court resolved to give due course to the petition, treating
the same as an original petition for certiorari under Rule 65
of the Rules of Court, the proper mode by which relief from
the resolution of the Sandiganbayan could be obtained from
this Tribunal. Petitioner and respondents rely on different
provisions of the 1973 Constitution as bases for their
respective contentions. Petitioner invokes Section 2 of
Article XII[c] of the 1973 Constitution which vests upon the
COMELEC the power "to enforce and administer all laws
relative to the conduct of elections," and its implementing
legislation, Section 182 of the 1978 Election Code, which
provides the following:
Section 182 Prosecution. The Commission shall, thru its
duly authorized legal officer, have the power to conduct
preliminary investigation of all election offenses punishable
under this Code and to prosecute the same. The
Commission may avail of the assistance of other prosecuting
arms of the government.
Petitioner further cites Section 184 of the same Code which
invests the court of first instance with "exclusive original
jurisdiction to try and decide any criminal action or
proceedings for violation of this code except those relating
to the offense of failure to register or failure to vote which
shall be under the jurisdiction of the city or municipal courts.
... The Solicitor General supports the petitioner's views. 5
Upon the other hand, the Sandiganbayan, in its resolution of
August 13, 1982, 6 asserts its jurisdiction over Criminal Case
No. 5054 on the authority of Section 5, Article XIII of the
Constitution, which mandated the creation by the Batasan
Pambansa of "a special court, to be known as

P a g e | 54

Sandiganbayan, which shall have jurisdiction over criminal

and civil cases involving graft and corrupt practices, and
such other offenses committed by public officers and
employees, including those in government-owned and
controlled corporations, in relation to their office as may be
determined by law."

mere Idle ceremony of the sacred right and duty of every

qualified citizen to vote. To divest the COMELEC of the
authority to investigate and prosecute offenses committed
by public officials in relation to their office would thus
seriously impair its effectiveness in achieving this clear
constitutional mandate.

To the Sandiganbayan, as set forth in the challenged

resolution, ... the key phrase in the determination as to
which of the Sandiganbayan or the regular courts of first
instance should take cognizance of an election offense, is
the phrase, 'in relation to their office'." Thus, it would
distinguish between election offenses committed by public
officers and employees in relation to their office and those
committed not in relation to their office, in this manner:

From a careful scrutiny of the constitutional provisions relied

upon by the Sandiganbayan, We perceive neither explicit
nor implicit grant to it and its prosecuting arm, the
Tanodbayan, of the authority to investigate, prosecute and
hear election offenses committed by public officers in
relation to their office, as contra-distinguished from the clear
and categorical bestowal of said authority and jurisdiction
upon the COMELEC and the courts of first instance under
Sections 182 and 184, respectively, of the Election Code of
1978.

If the election offense is committed by a public officer or

employee NOT in relation to their office, generally,
jurisdiction will be assumed by the regular courts. If, on the
other hand, the offense was committed by a public officer or
employee in relation to their office, then there is no other
tribunal vested with jurisdiction to try such offense but this
court, in consonance with the mandate of the Constitution
that the Sandiganbayan has jurisdiction, lover ... offenses
committed by public officers and employees in relation to
their office.
We find the position of the Sandiganbayan devoid of merit.
The grant to the COMELEC of the power, among others, to
enforce and administer all laws relative to the conduct of
election and the concomittant authority to investigate and
prosecute election offenses is not without compelling
reason. The evident constitutional intendment in bestowing
this power to the COMELEC is to insure the free, orderly and
honest conduct of elections, failure of which would result in
the frustration of the true will of the people and make a

Under the Constitution, the Sandiganbayan shall have

jurisdiction over ... offenses committed by public officers ...
in relation to their office as may be determined by law" [Sec.
5, Art. XIII]; while the Office of the Tanodbayan shall "receive
and investigate complaints relative to public office." [Sec. 6,
Art. XIII]. The clause, "as may be determined by law" is, to
Our mind imbued with grave import. It called for a
legislation that would define and delineate the power and
jurisdiction of both the Tanodbayan and the Sandiganbayan,
as what, in fact had been provided for in Presidential Decree
Nos. 1606 and 1607, creating the said entities.
Thus, under Section 4 of P.D. No. 1606, the Sandiganbayan
shall have jurisdiction over:
[a] Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
and Republic Act No. 1379;

P a g e | 55

[b] Crimes committed by public officers and employees,

including those employed in government-owned or
controlled corporations, embraced in Title VII of the Revised
Penal Code, whether simple or complexed with other crimes;
and,
[c] Other crimes or offenses committed by public officers or
employees, including those employed in government-owned
or controlled corporations, in relation to their office.
Plainly, the above quoted paragraph [c] is but a restatement of the constitutional provision relating to the
Sandiganbayan. It is also to be noted that it is phased in
terms so broad and general that it cannot be legitimately
construed to vest said entity with exclusive jurisdiction over
election offenses committed by public officers in relation to
their office. Neither can it be interpreted to impliedly repeal
the exclusive and original jurisdiction granted by Section
184 of the Election Code of 1978 to the court of first
instance to hear and decide all election offenses, without
qualification as to the status of the accused.
Apart from the fact that repeals by implication are not
favored. it is noted that while Section 184 of the Election
Code deals specifically with election offenses, Section 4[c] of
P.D. No, 1606 speaks generally of "other crimes or offenses
committed by public officers ... in relation to their office."
Needless to state, as between specific and general statute,
the former must prevail since it evinces the legislative intent
more clearly than a general statute does. 7 And where a
reconciliation between the statute is possible, as in the case
at bar, the former should be deemed an exception to the
latter. 8
The same principle of statutory construction should be
applied with respect to the powers vested upon the
COMELEC and the Tanodbayan in so far as election offenses

are concerned.
Moreover, as aptly observed by the COMELEC as well as the
Solicitor General, splitting the jurisdiction over election
offenses would serve no beneficial purpose but would rather
spawn much controversy "complaints about unequal
protection, about inconsistent decisions, etc. (which are) not
conducive to a fair and speedy administration of justice." [p.
17, Comment, Solicitor General].
WHEREFORE, the resolution of the Sandiganbayan Second
Division dated August 13, 1982 is hereby set aside and
Criminal Case No. 5054. entitled "People of the Philippines
versus Rogelio de Jesus" is ordered dismissed. The COMELEC
is hereby directed to forthwith conduct an investigation, and
if the evidence so warrants, to prosecute the complaint
against petitioner before the proper court of first instance.
No costs.
SO ORDERED.

P a g e | 56

instead award the contract to a complying and responsive

bidder pursuant to the provisions of Presidential Decree No.
1594. 2 The subsequent motion for reconsideration was
denied by the Ombudsman in its Order 01 March 1993.
These two Orders are now sought to be annulled in this
petition for certiorari, with prayer for preliminary injunction
or a restraining order, lodged by the "Concerned Officials of
the Metropolitan Waterworks and Sewerage System" 3 led
by its former Administrator Teofilo I. Asuncion. Let us first
touch on the factual backdrop.

G.R. No. 109113 January 25, 1995

CONCERNED
OFFICIALS
OF
THE
METROPOLITAN
WATERWORKS AND SEWERAGE SYSTEM (MWSS), petitioners,
vs.
HON. OMBUDSMAN CONRADO M. VASQUEZ AND MEMBERS
OF THE PHILIPPINE LARGE DIAMETER PRESSURE PIPE
MANUFACTURERS ASSOCIATION (PLDPPMA), respondents.

VITUG, J.:
The Ombudsman, in its 19th October 1992 Order, 1 directed
the Board of Trustees of Metropolitan Waterworks and
Sewerage System ("MWSS") (a) to set aside the
recommendation of its Pre-qualification, Bids and Awards
Committee for Construction Services and Technical
Equipment ("PBAC-CSTE") that Contract No. APM-01 be
given to a contractor offering fiberglass pipes and (b) to

In order to provide about 1.3 million liters of water daily to

about 3.8 million people in the metropolitan area, 4 MWSS
launched the Angat Water Supply optimization ("AWSOP")
consisting of several phases. The entire project would be, in
most part, financed by funds loaned by the Overseas
Economic Cooperation Fund ("OECF") of Japan to the
national government and allocated to MWSS in the form of
equity. 5 With the completion of the construction of the main
aqueduct from Angat Dam all the way down to La Mesa Dam
in Novaliches, Quezon City, from where water mains for the
distribution system of the entire Metro Manila begin, MWSS
focused its attention to the Distribution System Phase of the
AWSOP. The projects were denominated Projects APM-01 and
APM-02 which consist of the construction of the Distribution
System Phase of the AWSOP, that would particularly call for
the supply of labor, materials and equipment, and of the
installation of new watermains (43,305 linear meters for
APM-01 and 31,491 linear meters for APM-02), 6 comprising
of fittings, valves and pipes of different sizes. 7 Under
Clause IB-34 of the contract documents for APM-01 and
APM-02 the permitted alternative pipe materials for the
projects were to include the following items:

P a g e | 57

(millimeters)

Asbestos cement Pipe (ACP)

400 mm and larger

Fiberglass Pressure Pipe (FPP)

100 mm to 600 mm

Cast Iron Pipe (CIP)

300 mm and larger 8

50 and larger
Polyethylene Pipe (PE)

50 mm to 250 mm
Polyvinyl Chloride Pipe (DIP)

50 mm and larger
Steel Pipe (SP)

On 30 August 1991, MWSS caused the publication in two (2)

leading newspapers of an "Invitation for Pre-qualification
and Bids" for Projects were opened for international
competitive bidding, copies of the "Invitation for prequalification and Bids" were sent to the respective
embassies and trade missions of member countries of the
OECF. The advertisement and invitation to prospective
bidders announced that "(g)oods and services to be supplied
under (the) contract must have their origin from countries
defined in the Guidelines for Procurement of Goods under
OECF loans" and that "(j)oint ventures between foreign and
domestic firms as encouraged." While there were twentyfive (25) prospective applicants who secured prequalification documents, only fourteen (14) contractors
submitted corresponding applications to the PBAC-CSTE.
On 20 November 1991, the PBAC-CSTE, after evaluating the
applications for pre-qualification, issued a report 9
concluding that only eleven (11) 10 out of the fourteen (14)
contractors were pre-qualified to bid for the 31st March
1992 scheduled bidding covering both the APM-01 and APM02 proposed contracts. The major factors considered in the

P a g e | 58

evaluation were the applicants' financial condition, technical

qualifications and experience to undertake the project under
bid.
Meanwhile, private respondent Philippine Large Diameter
pressure Pipes Manufacturers' Association ("PLDPPMA"), 11
sent seven (7) letters, between 13 January and 23 March
1992, to the MWSS requesting clarification, as well as
offering some suggestions, on the technical specifications
for APM-01 and APM-02.
The first letter, dated 13 January 1992, 12 sought
clarification on the design criteria of thickness used for
fiberglass and ductile iron pipes which varied from the
standard thickness given by manufacturers.
The second letter, dated 29 January 1992, 13 suggested
that all alternative pipes for Projects APM-01 and APM-02
should have the same design criteria on stiffness class,
pressure class, rating, elevated temperature and wall
thickness and should be manufactured in accordance with
American water Works Association ("AWWA") standards.
PLDPPMA, in its third letter of 13 February 1992, 14 sought
to be elaborated on the imposition of the testing procedure
of stiffness factor on steel pipes used in Fiberglass
Reinforced Pipes ("FRP") and suggested that the 5-year
minimum experience by manufacturers be required for
alternative pipes.
In its fourth letter, dated 25 February 1992, 15 PLDPPMA
reiterated their request that the deflection allowance of 3%
under the AWWA standards on steel pipes be also applied to
all alternative pipes and suggested that a comparative study
should be undertaken by the MWSS on the feasibility of
using filament wound fiberglass pipes ("FRP") and
centrifugally cast fiberglass pipes ("GRP").

In their fifth letter, dated 05 March 1992, 16 PLDPPMA

appealed to the MWSS to have steel pipes placed in equal
footing with other alternative pipes, specifically filament
wound and centrifugally cast fiberglass pipes, in order to
avoid an unfair requirement on stiffness value.
In their penultimate letter of 16 March 1992, 17 PLDPPMA
informed MWSS of their computation for wall thickness and
stiffness values for cement lined/cement coated and epoxy
lined/coal tar enamel coated steel pipes based on AWWA
standards.
Finally, in their seventh letter of 23 march 1992, 18
PLDPPMA reiterated their request for correcting the
specifications for steel and fiberglass pipes, particularly on
wall thickness and deflections, because of MWSS Addendum
#5 where the wall thickness for steel pipes were noted to be
more than the wall thickness computed in the previously
agreed agenda.
Former Administrator Luis Sison issued, between 10
February and 24 March 1992, six (6) addenda to the bidding
documents that embodied the meritorious suggestions of
PLDPPMA on various technical specifications. In his 24th
March 1992 letter to the PLDPPMA, in response to the
latter's 23rd march 1992 (seventh) letter, Sison explained
that the additional thickness for steel pipes was so required
in order to serve as a pipe corrosion allowance to counter
imperfection in the preparation and application of lining and
coating, the limit service life of epoxy resin lining and the
corrosive element of the local soil.
The bidding was conducted by PBAC on the previously
scheduled date of 31 March 1992. The prequalified bidders
using steel and fiberglass pipes submitted their respective
bid proposals. The approved agency cost estimate for

P a g e | 59

Project APM-01 was Three Hundred Sixty Six Million Six

Hundred Fifty Thousand Pesos (P366,650,000,00). 19 The
Three (3) lowest bidders for the said project (APM-01) were
the following:

BIDDER
BID PRICE

DEVT. CORP.
P278,205,457.00 20
while the three lowest bidders for Project APM-02 included:

1
BIDDER
DYWIDAG/TITAN/WILPER

BID PRICE
1

PLDPPMA/GREEN JADE (Joint Venture)

ENG'G. EQUIPMENT, INC. (EEI)
P267,345,574.00
2

P219,574,538.00
2

F.F. CRUZ & CO., INC.

FF CRUZ & CO., INC.
P268,815,729.00
3
J.V. ANGELES CONST. CORP./JA

P233,533,537.00
3

P a g e | 60

J.V ANGELES CONST. CORP./JA

DEVT. CORP.
P277,304,604.00 21
In APM-01, Joint Venture and F.F. Cruz and Co., Inc. proposed
to use fiberglass pipes. In APM-02, Eng'g. Equipment Inc.
and F.F. Cruz likewise preferred to use fiberglass pipes.
After the three lowest bidders for both projects were known,
a meeting was held on 27 May 1992 by the PBAC-CSTE,
composed of MWSS Deputy Administrator for Engineering
Eduardo M. del Fierro, as Acting Chairman, and deputy
Administrator for Operations Ruben A. Hernandez, Acting
Chief of Legal office Precioso E. Remolacio, and Project
Manager Cesar S. Guevarra, as members, to decide on what
should be done about Contract APM-01. Three of the
members, namely, Hernandez, Guevarra and Asuncion,
recommended for the contract on the following grounds:
a. Ambiguity of Addendum No. 6 The Addendum is
subject to different interpretations because there was no
illustrations provided. Further, it could also be said that
some contractors did not use the FRP because said
Addendum was not clearly explained.
b. There was no provision for maintenance/repair materials
for bidders who opted to use FRP which is relatively new
pipe to be used in the country. It was suggested that a 5% to
10% allowance be provided for maintenance purposes.
c. Further review of pipe design should be made by the

Consultant (NJS) in order to accommodate the load to be

carried in the Umiray-Angat Loop. 22
Precioso E. Remolacio abstained; he felt that "technical
evaluation (was) more essential in deciding the issues in
(the) Contract." For his part, Acting Chairman Eduardo M. del
Fierro recommended that no rebidding should be undertaken
and that an award should be made to either the lowest or
the second lowest bidder.
On 29 May 1992, PBAC-CSTE met again to discuss and
evaluate the bids in APM-02. Here again, three members,
namely, Guevarra, Hernandez and Asuncion, opined that a
rebidding should be conducted, while Acting Chairman del
Fierro and Remolacio believed that the contract should be
awarded to the lowest bidder.
Finally, on 02 June 1992, the PBAC-CSTE formally submitted
its report 23 on its bid evaluation on APM-01. The PBACCSTE held that while Joint Venture's bid might have been the
lowest it was, however, invalid due to its failure to
acknowledge Addendum No. 6, a major consideration, that
could not be waived. It accordingly recommended that the
contract be instead awarded to the second lowest but
complying bidder, F.F. Cruz & Co., Inc., subject to the latter's
manifestation that it would only hire key personnel with
experience in the installation of fiberglass pressure pipes
(due to PBAC-CSTE's observation in the report that the
company and its key personnel did not have previous
experience in the installation of fiberglass reinforced pipes).
Acting Chairman del Fierro, together with members
Guevarra and Asuncion, approved the PBAC-CSTE's findings
and recommendation. Hernandez and Remolacio both
disagreed with the findings of the PBAC-CSTE; the former
opted for a rebidding while the latter batted for awarding
the contract to Joint Venture.

P a g e | 61

On the following day, or on 03 June 1992, the MWSS Board

Committee on Construction Management and the Board
Committee on Engineering, acting jointly on the
recommendation of Administrator Sison, recommended that
Contract No. APM-01 be awarded to F.F. Cruz & Co., Inc.,
being the lowest complying bidder. 24
Prior thereto, or on 07 April 1992 (seven days after the
submission of the bid proposals on 31 March 1992), private
respondent PLDPPMA, through its President Ramon Pastor,
filed with the Office of the Ombudsman a letter-complaint 25
(docketed Case No. OMB-0-92-0750) protesting the public
bidding conducted by the MWSS for Projects APM-01 and
APM-02, detailing charges of an "apparent plan" on the part
of the MWSS to favor suppliers of fiberglass pipes, and
urging the Ombudsman to conduct an investigation thereon
and to hold in abeyance the award of the contracts.
PLDPPMA's letter-complaint, in part, read:
Even before the bidding had started, there appears to be an
apparent plan on the part of the MWSS to favor a particular
supplier of pipes for the project considering the following
events:
Firstly, the bid documents particularly the specifications for
alternative pipes when first released in December 1991
whimsically and arbitrarily set such rigid standards for steel
pipes so that MWSS had to issue six addenda to the bidding
documents and had to postpone the bidding several times in
a vain attempt to correct the apparent prejudice against the
use of steel pipes for the APM 01 and 02 projects;
Secondly, despite our prior agreement with MWSS
Engineering Department that the alternative pipes to be
used for the project should comply with internationally
accepted AWWA specifications was written arbitrarily and in
complete disregard of AWWA specifications increased by 1

mm. the thickness required for steel pipes thereby

effectively increasing the cost of steel pipes for the APM 01
project bid by about P30 Million, or more than twice the
difference between the lowest bid and the bid that utilized
steel pipes;
Thirdly, despite the fact that it was/is of common knowledge
that FRP and GRP (Fiberglass) pipes have had a long history
of failures in the United States such that even MWSS Prequalification, Bidding and Awards Committee resolved in a
meeting held in March 1992 not to use FRP and GRP pipes
for large projects, bids utilizing such pipes were still
accepted for the FRP and GRP pipes for large projects, bids
utilizing such pipes were still accepted for the APM 01 and
02 projects; and
Lastly, the undue preference for the use of GRP pipes
became more apparent when the supposed lowest bidder
for the APM 01 project (who did not participate in the
bidding for APM 02 project), and the supposed lowest bidder
for the APM 02 project (who also did not participate in the
bidding for APM 01 project), both submitted bids utilizing
GRP pipes.
On 10 June 1992, the Ombudsman referred PLDPPMA's 07th
April 1992 letter-complaint to the MWSS Board of Trustees
for comment along with a directive to it to hold in abeyance
the awarding of the subject contract. 26 MWSS asked for an
extension of time within which to submit its comment but
called, at the same time, the attention of the Ombudsman
to Presidential Decree No. 1818 27 prohibiting the issuance
of restraining orders/injunctions in cases involving
government infrastructure projects.
After the submission by the parties of their respective
pleadings, the case was referred to the Fact-Finding and
Intelligence Bureau of the Office of the Ombudsman for

P a g e | 62

Investigation and report 28 was submitted to, and approved

by, the Ombudsman which became the basis for the
issuance of the now challenged order, dated 19 October
1992, 29 reading as follows:
In view of the findings of this Office on the above-entitled
case as contained in the Fact-Finding Report, dated
September 14, 1992, of the Fact Finding Investigation
Bureau (copy attached), and pursuant to the Powers,
Functions and Duties of the Office of the Ombudsman as
mandated under Section 15 of Republic Act 6770
(Ombudsman Act), the MWSS Board of Trustees in hereby
directed to:
1) Set aside the recommendation of the MWSS Prequalification, Bids and Awards Committee for Construction
Services and Technical Equipment (PBAC-CSTE) to award
Contract APM-01 to a contractor offering fiberglass pipes;
2) Award the subject contract to a complying and responsive
bidder pursuant to the provisions of PD 1594, Prescribing
Policies, Guidelines, Rules and Regulations for Government
Infrastructure Contracts.
The Board of Trustees is further directed to inform this Office
of the action taken thereon.
SO ORDERED.
A motion by herein petitioners for the reconsideration of the
order was denied on 01 March 1993. 30
Petitioners cite to us the following reasons for its petition for
certiorari.
I

RESPONDENT
OMBUDSMAN
ACTED
BEYOND
THE
COMPETENCE OF HIS OFFICE WHEN HE ASSUMED
JURISDICTION
OVER
THE
COMPLAINT
AT
BAR
NOTWITHSTANDING THAT THE SAME IS CLEARLY AMONG
THE CASES EXCEPTED BY SECTION 20 OF THE OMBUDSMAN
ACT OF 1989 (RA NO. 6770) WHICH ENUMERATED THE
ADMINISTRATIVE ACT OR OMISSION THAT MAY NOT BE THE
SUBJECT OF INVESTIGATION BY HIS OFFICE.
II
RESPONDENT
OMBUDSMAN,
AFTER
HAVING
TAKEN
COGNIZANCE OF THE COMPLAINT, ARBITRARILY ISSUED A
DIRECTIVE IN THE NATURE OF A RESTRAINING ORDER OR
WRIT OF PRELIMINARY INJUNCTION TO PETITIONERS "TO
HOLD IN ABEYANCE THE AWARDING OF THE CONTRACT . . .
UNTIL FURTHER ORDER FROM THIS OFFICE," A POWER OR
AUTHORITY NOT VESTED IN HIS OFFICE.
III
RESPONDENT OMBUDSMAN ACTED WITHOUT JURISDICTION
IN ISSUING THE ORDER OF OCTOBER 1993, CONSIDERING
THAT UNDER THE LAW THE OMBUDSMAN'S JURISDICTION
CANNOT AND SHOULD NOT BE EXPANDED TO INCLUDE THE
DECISION MAKING POWER OVER A CIVIL ADJUDICATORY
MATTER SUCH AS THE MWSS BIDDING PROCESS.
IV
RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR OF
LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION, BY ARBITRARILY
AND CAPRICIOUSLY INTERPRETING WITH THE EXERCISE OF
SOUND DISCRETION BY THE MWSS WHICH IS A SPECIALIZED
AGENCY OF GOVERNMENT WITH WHICH EVEN COURTS OF
JUSTICE GENERALLY DO NOT INTERFERE TO ISSUE THE

P a g e | 63

ORDERS.

ASIDE. 31

After the required pleadings were filed by the parties, this

Court, in its resolution of 19 May 1994 gave due course to
the petition and required the parties to submit memoranda.
In compliance therewith, the parties filed their respective
memoranda, petitioners (MWSS) on 07 July 1994, the
Solicitor-General on 28 June 1994, and PLDPPMA on 19 July
1994. Petitioners opposed Titan's intervention. This Court,
ultimately, denied the motion for leave to intervene.

RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR OF

LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OF JURISDICTION, IN ISSUING THE
SUBJECT ORDERS IN GROSS DISREGARD OF THE CARDINAL
PRINCIPLES OF DUE PROCEEDINGS, ASSUMING ARGUENDO
THAT HE HAS JURISDICTION TO ISSUE SAID ORDERS.
VI
RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR OF
LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION, IN GROSSLY
MISAPPREHENDING THE RECORD BY FAILING TO TAKE INTO
ACCOUNT THE FINDINGS OF EXPERTS THAT THE MWSS
SPECIFICATIONS
ARE
FAIR,
AND
BY
CONCLUDING
BASELESSLY THAT MWSS FORMULATED ITS SPECIFICATIONS
TO FAVOR FIBERGLASS PIPES OVER STEEL PIPES, ASSUMING
ARGUENDO THAT HE HAS JURISDICTION TO ISSUE THE
SUBJECT ORDERS.
VII
RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR OF
LAW, AND ACTED ARBITRARILY AND CAPRICIOUSLY, IN
IMPLYING BASELESSLY THAT MWSS ACTED UNFAIRLY,
OPPRESSIVELY AND WITH GRAVE ABUSE OF DISCRETION,
ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO
ISSUE THE SUBJECT ORDERS.
VIII
IN CONSEQUENCE, THE ORDERS OF OCTOBER 19, 1992 AND
MARCH 1, 1993 MUST BE REVERSED, ANNULLED AND SET

The various alleged errors raised by petitioners can be

grouped into two basic issues, i.e., (a) whether or not the
rudiments of due process have been properly observed in
the issuance of the assailed 19th October 1992 and 01st
march 1993 orders of the Ombudsman; and, more pivotal
that the first, (b) whether or not the Ombudsman has
jurisdiction to take cognizance of PLDPPMA's complaint and
to correspondingly issue its challenged orders directing the
Board of Trustees of the MWSS to set aside the
recommendation of the PBAC-CSTE.
Relative to the first issue, we are more than convinced, after
a scrutiny of the records of this case, that petitioners have
been amply accorded the opportunity to be heard.
Petitioners were asked to comment on the letter-complaint
of PLDPPMA. On 25 June 1992, petitioners moved for an
extension of time within which to comment. On July 16,
1992, petitioners filed their letter-comment. Responding to
the reply of PLDPPMA, petitioners later filed a rejoinder.
When an adverse order was rendered against them,
petitioners moved for its reconsideration, albeit to no avail.
The absence of due process is an opportunity to be heard.
32 One may be heard, not solely by verbal presentation but
also, and perhaps even many times more creditably and

P a g e | 64

practicable than oral argument, through pleadings. 33 In

administrative proceedings, moreover, technical rules of
procedure and evidence are not strictly applied;
administrative due process cannot be fully equated to due
process in its strict judicial sense.
On the threshold matter that puts to issue the
Ombudsman's directive to the Board of Trustees of MWSS to
set aside the recommendation of the PBAC CSTE to award
Contract No. APM-01 to the lowest complying bid, we find,
this time, the petition to be impressed with merit.
Petitioners maintain that while Republic Act ("R.A.") No.
6770, otherwise known as the Ombudsman Act of 1989,
extends certain well-defined powers and authority to the
Office of the Ombudsman to, among other functions,
investigate and prosecute complaints filed therewith, the
same law, however, expresses limits to the exercise of such
jurisdictional power and authority. Section 20 of the Act is
cited; viz:
Sec. 20. Exceptions. The Office of the Ombudsman may
not conduct the necessary investigation of any
administrative act or omission complained of if it believes
that:
(1) The Complainant has an adequate remedy in another
judicial or quasi-judicial body;
(2) The complaint pertains to a matter outside the
jurisdiction of the Office of the Ombudsman;
(3) The complaint is trivial, frivolous interest in the subject
matter of the grievance; or
(4) The complaint is trivial, frivolous, vexations or made in
bad in bad faith;

(5) The complaint was filed after one year from the
occurrence of the act or omission complained of.
Petitioners contend that PLDPPMA's complaint falls under
exceptions (1) to (4) of Sec. 20 of R.A. No. 6770, and that,
therefore, the Ombudsman should not have taken
cognizance of the complaint.
Asserting, upon the other hand, that the Ombudsman has
jurisdiction over PLDPPMA's complaint, the Solicitor-General
enumerations
various
constitutional
and
statutory
provisions; to wit:
(a) Section 13, Article XI of the 1987 Constitution providing
thusly:
Sec. 13. The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public
official or employee of the Government, or any subdivision,
agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original
charter, to perform and expedite any act or duty required by
law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties.
(3) Direct, the officer concerned to take appropriate action
against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith

P a g e | 65

(4) Direct the officer concerned, in any appropriate case,

and subject to such limitations as may be provided by law,
to furnish it with copies of documents relating to contracts
or transactions entered into by his office involving the
disbursement or use of public funds or properties, and
report any irregularity to the Commission of Audit for
appropriate action.
(5) Request any government agency for assistance and
information necessary in the discharge of its responsibilities,
and to examine, if necessary, pertinent records and
documents.
(6) Publicize matters covered by its investigation when
circumstances so warrant and with due prudence.
(7) determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the Government
and make recommendations for their elimination and the
observance of high standards of ethics and efficiency.
(8) Promulgate its rule of procure and exercise such other
powers or perform such functions or duties as may be
provided by law.
(b) Section 13 of republic Act No. 6770 which reads:
Sec. 13. Mandate. The Ombudsman and his Deputies, as
protectors of the people, shall act promptly on complaints
filed in any form or manner against officers or employees of
the Government, or of any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations, enforce their administrative, civil
and criminal liability in every case where the evidence
warrants in order to promote efficient service by the
Government to the to the people.

(c) Section 15, paragraphs (1) to (7), of republic Act No.

6770 which reproduced verbatim the aforequoted provisions
of Section 13 of the 1987 Constitution with some additional
salient statutory provisions; hence:
Sec. 15. Powers, Functions and Duties. The Office of the
Ombudsman shall have the following powers, functions and
duties:
xxx xxx xxx
(8) Administer oaths, issue subpoena and subpoena duces
tecum, and take testimony in any investigation or inquiry,
including the power to examine and have access to bank
accounts and records;
(9) Punish for contempt in accordance with the Rules of
Court and under the same penalties provided therein;
(10) delegate to the Deputies, or its investigators or
representatives such authority or duty as shall ensure the
effective exercise or performance of the powers, functions
and duties herein or hereinafter provided;
(11) Investigate and initiate the proper action for the
recovery of ill-gotten and/or unexplained wealth amassed
after February 25, 1986 and the prosecution of the parties
involved therein;
The Ombudsman shall give priority to complaints filed
against high ranking government officials and/or those
occupying supervisory positions, complaints involving grave
offenses as well as complaints involving large sums of
money and/or properties.
(d) And, finally, Section 26 of the Ombudsman Act which

P a g e | 66

expresses, as follows:
Sec. 26. Inquiries. The Office of the Ombudsman shall
inquire into acts or omissions of the public officer,
employee, office or agency which, from the reports or
complaints it has received the Ombudsman or his Deputies
consider to be:
(a) contrary to law or regulation;
(b) unreasonable, unfair, oppresive, irregular or inconsistent
with the general course of the operations and functions of a
public officer, employee, office or agency;
(c) an error in the application or interpretation of law, rules
or regulations, or a gross or palpable error in the
appreciation of facts;
(d) based on improper motives or corrupt considerations;
(e) unclear or inadequately explained when reasons should
have been revealed; or
(f) inefficiently performed or otherwise objectionable.
2. The Office of the Ombudsman shall receive complaints
from any source in whatever form concerning an official act
or omission. It shall act on the complaint immediately and if
it finds the same entirely baseless, it shall dismiss the same
and inform the complainant of such dismissal citing the
reasons therefor. If it finds a reasonable ground to
investigate further, it shall first furnish the respondent public
officer or employee with a summary of the complaint and
require him to submit a written answer within seventy-two
hours from receipt thereof. If the answer is found
satisfactory, it shall dismiss the case.

3. When the complaint consists in delay or refusal to

perform a duty required by law, or when urgent action is
necessary to protect or preserve the rights of the
Ombudsman shall take steps or measures and issue such
orders directing the officer, employee, office or agency
concerned to:
(a) expedite the performance of duty;
(b) cease or desist from the performance of a prejudicial act;
(c) correct the omission;
(d) explain fully the administrative act in question; or
(e) take any steps as may be necessary under the
circumstances to protect and preserve the rights of the
complainant.
4. Any delay or refusal to comply with the referral or
directive of the Ombudsman or any of his Deputies shall
constitute a ground for administrative disciplinary action
against the officer or employee to whom it was rendered.
On the basis of all the foregoing provisions of law, the
Solicitor-General insists that the authority of the
Ombudsman is sufficiently broad enough to cloth it with
sufficient power to look into the alleged irregularities in the
bidding conducted on 31 March 1992 leading to the
recommendation made by the PBAC-CSTE on contract APM01. He argues that even if no criminal act could be
attributed to the former MWSS Administrator and members
of the PBAC-CSTE, the questioned report could still be
embraced in the all-encompassing phrase "all kinds of
malfeasance, misfeasance, and non-feasance," and falls
within the scope of the constitutional provision calling for an
investigation of "any act or omission of any public official,

P a g e | 67

employee, office or agency, when such act or omission

appears to be illegal, unjust, improper, or inefficient."
Indeed, in Deloso v. Domingo, 35 this Court had occasion to
explain not only the rationale for the creation of an office of
the Ombudsman but also the grant to it of broad
investigative authority, thus:
The reason for the creation of the Ombudsman in the 1987
Constitution and for the grant to it of broad investigative
authority, is to insulate said office from the long tentacles of
officialdom that are able to penetrate judges' and fiscals'
offices, and others involved in the prosecution of erring
public officials, and through the exertion of official pressure
and influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public
officers. It was deemed necessary, therefore, to create a
special office to investigate all criminal complaints against
public officers regardless of whether or not the acts or
omissions complained of are related to or arise from the
performance of the duties of their office. The Ombudsman
Act makes perfectly clear that the jurisdiction of the
Ombudsman encompasses "all kinds of malfeasance,
misfeasance, and non-feasance that have been committed
by any officer or employee as mentioned in Section 13
hereof, during his tenure of office."
To begin with, the owners, functions and duties of the
Ombudsman have generally been categorized into the
following headings: Investigatory Power; Prosecutory Power;
Public Assistance Functions; Authority to Inquire and Obtain
Information; and Function to Adopt, Institute and Implement
Preventive Measures.
Although the Solicitor-General has practically enumerated
all the constitutional and statutory provisions describing the
ample authority and responsibilities of the Ombudsman, the
particular aspect of his functions that, however, really finds

relevance to the present case relates to his investigatory

power and public assistance duties which can be found in
the first and second paragraphs, respectively, of Section 13,
Article XI, of the Constitution, along with the corresponding
provisions of the Ombudsman Act. This much can be
gleaned from the findings of the Office of the Ombudsman
leading to its questioned orders. We quote:
a. There is an evident on the part of the MWSS under then
Administrator Sison to favor suppliers of fiberglass when it
prescribed rigid standards for steel pipes but set lenient
requirements for pipes made of fiberglass, for the following
reasons:
1. MWSS management rely on the AWWA
fiberglass pipe but neglect the same AWWA
steel pipes. The MWSS management under
Sison disregarded the AWWA specifications
1mm thickness for steel pipes.

standards for
standards for
Administrator
by increasing

2. Complainant sent seven letters to the MWSS questioning

and making suggestions of the rules of the bidding it set but
only one was answered by Administrator Sison dated and
received (by the complainant) after the bidding.
3. The MWSS' original specification for stiffness of fiberglass
(36 psi) was [c]hanged to 54 psi (pounds per square inch) in
its Addendum No. 1 as a result of the complaints of the
PLDPPMA members. But in its Addendum No. 4, the MWSS
reverted to the original stiffness class of 36 psi. In the lettercomment dated July 26, 1992 of the MWSS, thru Acting
Administrator Teofilo I. Asuncion, the MWSS tried to mislead
this office by stating that the stiffness class of fiberglass
pipes was increased from 36 psi to 54 psi when in truth, as
appearing in its Addendum No. 4, the MWSS reverted to the
original stiffness class of 36 psi. there is nothing in the
subsequent Addenda (Nos. 5 and 6) that will show that the

P a g e | 68

MWSS finally settled for the stiffness class of 54 psi.

4. The MWSS failed to prescribe specific pipe laying
procedure for fiberglass pipes. Contrary to the claim of the
MWSS that pipes is not a complicated procedure as it is
similar with other types of pipes, the installation of
fiberglass pipes seems to be a critical factor in the
successful implementation of a project as shown in the
findings of experts, attached by the MWSS in its motion, and
quoted as follows: . . .
5. The MWSS failed to include in the Specifications a
provision for the maintenance/repair materials for bidders
who opted to use fiberglass pipes. The importance of a
provision for repair of fiberglass pipes can be inferred in the
findings of experts cited by the MWSS and quoted as
follows: . . .
6. The MWSS tried to limit the acceptable joints for
fiberglass pipes favorable to a fiberglass manufacturer by
issuing Addendum No. 6 which was undated. The provision
of Addendum No. 6 "The only acceptable joints are
gasketted bell and Spigot and Mechanical Type" appears to
be vague and ambiguous as it cannot be determined clearly
whether the bidders will be using the Mechanical Type of
Joint. As stated in the Report, the cost of the Bell and Spigot
Joint is cheaper than the cost of mechanical Type Joint.
Moreover, it was only June 1, 1992 or two (2) months after
the bidding that the MWSS issued clarification to the effect
that fiberglass pipes bidders can use either the Bell and
Spigot type or Mechanical type.
7. In connection with Addendum No. 6, this office recently
got hold of a copy of a letter dated January 31, 1992 (found
on Folder I, records) of Joseph Albanese, Gruppo Sarplast,
Milan, Italy (Manufacturer/Supplier of fiberglass pipes for F.F.
Cruz & Co. Inc.), addressed to Felipe Cruz. The letter was

officially stamped/received by the Office of the MWSS

Administrator on February 12, 1992. It also has a verio
From: Mr. F.F. Cruz." The pertinent portion of the letter in the
light of Addendum No. 6 is quoted as follows:
8. Conclusion "During the pre-bid meeting our friends should
stay: our Spec TS-23 is a general one, but for this case only
the pipes produced with discontinuing filament winding will
be accepted and only bell and spigot joint."
The existence of such a letter in such a situation can only
mean that F.F. Cruz and Sarplast, Italy had previous
communications with the top officials of the MWSS even
before the opening of the bids on march 31, 1992. Clearly,
the issuance of Addendum No. 6 would only fit well for F.F.
Cruz Co., Inc. and Sarplast who is proposing the use of
discontinuous filament winding fiberglass pipe with bell and
Spigot joint.
b. MWSS has no experience and sufficient knowledge on the
use of fiberglass pipes.
c. The Contractors who proposed to use fiberglass pipes
have no tract record or experience in the installation of the
same. Thus, they are not qualified to undertake projects
pursuant to the provisions of PD 1594 and under the
guidelines of the Overseas Economic Cooperation Fund.
d. The would-be manufacturers of fiberglass pipes has no
manufacturing plant at this stage and there is no guarantee
whether such manufacturing plants will be operational.
e. There is no assurance that the manufacturers of
fiberglass would be able to produce the kind of pipe desired.
36
In sum, the Office of the Ombudsman has considered three

P a g e | 69

issues: (1) whether or not the technical specifications

prescribed by the MWSS in projects APM 01 and 02 have
been so designed as to really favor Fiberglass PipesContractors/Bidders; (2) whether or not the MWSS has the
technical knowledge and expertise with fiberglass pipes; and
(3) whether or not the contractors and local manufacturers
of fiberglass pipes; and (3) whether or not the contractors
and local manufacturers of fiberglass pipes have the
experience and qualification to undertake the APM-01 and
APM-02 projects.
While the broad authority of the Ombudsman to investigate
any act or omission which ". . . appears illegal, unjust,
improper, or inefficient" may be yielded, it is difficult to
equally concede, however, that the Constitution and the
Ombudsman Act have intended to likewise confer upon it
veto or revisory power over an exercise of judgment or
discretion by an agency or officer upon whom that judgment
or discretion is lawfully vested. It would seem to us that the
Office of the Ombudsman, in issuing the challenged orders,
has not only directly assumed jurisdiction over, but likewise
pre-empted the exercise of discretion by, the Board of
Trustees of MWSS. Indeed, the recommendation of the
PBAC-CSTE to award Contract APM-01 appears to be yet
pending consideration and action by the MWSS Board of
Trustees.
We can only view the assailed 19th October 1992 Order to
be more of an undue interference in the adjudicative
responsibility of the MWSS Board of Trustees rather than a
mere directive requiring the proper observance of and
compliance with law. The report submitted by the FactFinding and Intelligence Bureau of the Office of the
Ombudsman reveals its predisposition against the use of
fiberglass pipes, a technical, rather than a legal, matter. The
fact-finding report has dealt with such matters as (1) the
wall thickness of pipes; (2) the joints; (3) the pipe laying

procedure; (4) the technical expertise of the MWSS, on the

one hand, and the fiberglass proponements, on the other;
and (5) the supposed negative international feedback on the
use of fiberglass pipes.
The question could be asked: Was the 31st March 1992
bidding really that faulty? During the bidding, the people
present were the PBAC members, a COA representative, the
bidders and the general public. The eleven (11) prequalified
contractors, according to the prequalification evaluation 37
of the PBAC, possessed the required experience, technical
qualification and financial condition to undertake the
project. It should not be amiss to mention that the PBAC,
under the implementing rules and regulations of P.D. No.
1594, 38 was tasked with the responsibility "for the conduct
of prequalification, bidding, evaluation of bids and
recommending award of contracts." In evaluating the bids,
PBAC stated in its report that it had examined the three
lowest bids. Part of PBAC's review was to verify whether the
proposed pipe materials were in conformity with the
permitted alternative materials specified in Clause IB-34 of
the bid document. 39 In thereafter recommending that the
award be made to F.F. Cruz, Inc., instead of Joint venture,
PBAC explained:
As presented above, evaluation of the bid results touches on
a number of parameters to determine whether the bids are
"substantially responsive to the bidding documents and has
offered the lowest evaluated bid, and that the bidder has
the capacity and resources to effectively carry out the
Contract Works." The evaluation was conducted as fairly and
accurately as possible to come up with a recommendation
that satisfies the interest of the MWSS which in the final
analysis, shall bear the consequences if the contract is not
fully performed. Conclusions of the important issues are
hereunder presented.

P a g e | 70

A. Establishing the validity of the Bid of the Lowest Bidder

complying.

The deficiencies with respect to the bidding requirements

enumerated in Section 4.2.1, page 4 were discussed to wit:

The lowest complying becomes the bid submitted by the

second lowest Bidder, F.F. CRUZ, & CO., INC. as discussed
above. 40

a) Authority of the Signing Official

b) Acknowledgment of Addenda received
c) Currency Exchange Rate
After the discussion, the PBAC agreed that the deficiencies
on the a) authority of the signing official and the c) currency
exchange rate may be waived as they do not affect the
validity of the bid. PBAC believes that the authority given to
Fernando M. Sopot by the Consortium in the Joint Venture
Agreement substantially complies with Clause IB-20-7 of the
Contract Documents. On the currency exchange rate, in the
absence of BF-14, the MWSS may provide the exchange
rate.
With regard to the acknowledgment of Addendum No. 6,
which is a material provision of the documents, it is
ascertained that the Joint Venture has not made allowance
for the provision of said Addenda. The Joint Venture
indicated in the bid, as originally submitted, the
acknowledgment of Addenda #1 to #5 only. The alteration
made during the bidding acknowledging Addendum #6 was
done after the 12 noon deadline of submittal of bids and,
hence, cannot be entertained. Moreover, the person who
made the alteration is also not authorized to make such
alteration and affix his signature to the bid.
It is therefore, the position of the PBAC that the deficiency in
the acknowledgment of Addendum No. 6 is a major defect
and cannot be waived as it affects the validity of the bid of
the Consortium. The bid has to be rejected as non-

PBAC was evidently guided by the rule that bids should be

evaluated based on the required documents submitted
before, and not after, the opening of bids, 41 that should
further dispel any indiscriminate or whimsical exercise of
discretion on its part.
The MWSS, a government-owned and controlled corporation
created by law through R.A. No. 6234, 42 is charged with the
construction, maintenance and operation of waterwork
system to insure an uninterrupted and adequate supply and
distribution of potable water. 43 It is the agency that should
be in the best position to evaluate the feasibility of the
projections of the bidders and to decide which bid is
compatible with its development plans. The exercise of this
discretion is a policy decision that necessitates among other
things, prior inquiry, investigation, comparison, evaluation,
and deliberation matters that can best be discharged by
it. 44 MWSS has passed resolution No. 32-93 45 to likewise
show its approval of the technical specifications for
fiberglass. All these should deserve weight.
In Razon Inc. v. PPA, 46 we have said that neither this Court
nor Congress, and now perhaps the Ombudsman, could be
expected to have the time and technical expertise to look
into matters of this nature. While we cannot go so far as to
say that MWSS would have the monopoly of technical knowhow in the waterworks system, by the very nature of its
functions, however, it obviously must enjoy an advantage
over other agencies on the subject at hand. In Felipe
Ysmael, Jr. & Co. Inc. vs. deputy Executive Secretary, 47
citing numerous

P a g e | 71

cases, 48 this Court has held:

Thus, while the administration grapples with the complex
and multifarious problems caused by unbridled exploitation
of these resources, the judiciary will stand clear. A long line
of cases establish the basic rule that the courts will not
interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the
regulation of activities coming under the special technical
knowledge and training of such agencies.
It stands to reason for, in Bureau Veritas v. Office of the
President, 49 we have further observed:
The discretion to accept or reject a bid and award contracts
is vested in the Government agencies entrusted with that
function. The discretion given to the authorities on this
matter is of such wide latitude that the Courts will not
interfere therewith, unless it is apparent that it is used as a
shield to a fraudulent award.
All considered, it is our view that the issue here involved,
dealing, such as they do, on basically technical matters,
dealing, such as they do, on basically technical matters,
deserve to be disentangled from undue interference from
courts and so from the Ombudsman as well.

G. R. No. 120014

November 26, 2002

FRANCISCO Q. AURILLO, JR., petitioner,

vs.
NOEL RABI, and THE REGIONAL TRIAL COURT, Branch 9,
Tacloban City, respondents.
DECISION
CALLEJO, SR., J.:
On January 10, 1995, Noel Rabi was arrested without a
warrant of arrest and charged in the Office of the City
Prosecutor of Tacloban City with violation of Presidential
Decree No. 1866 (possession of unlicensed firearm). The
matter was docketed as I.S. No. 95-043. Public Prosecutor
Zenaida
Camonical
Isidro
conducted
an
inquest
investigation of the case and issued a resolution on January
11, 1995, recommending that the case be dismissed for lack
of probable cause on her findings that the material
averments of the Joint Affidavit1 executed by the arresting
police officers were hearsay due to the absence of any
affidavit of the complainant Rodolfo Cabaluna; and that the
knife, gun and the live ammunitions referred to in said
affidavit were not found under the chair occupied by Rabi.
However, Regional State Prosecutor Francisco Aurillo, Jr. of

P a g e | 72

Region VIII decided to assume jurisdiction over the case and

to order the conduct of a new preliminary investigation
thereof. On January 12, 1995, he issued a Regional
Memorandum Order2 to the City Prosecutor of Tacloban City
directing him to elevate to his office the complete records of
I.S. No. 95-043 within 24 hours from receipt thereof,
pursuant to Presidential Decree No. 1275 in relation to
Department Order No. 318 of the Department of Justice.
Aurillo designated the assistant regional state prosecutor to
conduct the new preliminary investigation of I.S. No. 95-043.
On January 20, 1995, Aurillo issued another Memorandum
Order3 to the City Prosecutor directing him to elevate the
affidavit of Rodolfo Cabaluna as well as the subject firearm
and knife to the Office of the Regional State Prosecutor with
the information that it had taken over the preliminary
investigation of the said complaint pursuant to PD 1275 and
existing rules.4 The City Prosecutor of Tacloban complied
with the order of Aurillo and on January 23, 1995, the
Assistant Regional State Prosecutor issued a subpoena
notifying Noel Rabi and Margot Villanueva of the preliminary
investigation of I.S. No. 95-043 at 9:00 a.m. on February 2,
1995, not only for violation of PD 1866 but also for the
crimes of "Violation of Comelec Resolution No. 2323 (gun
banned) [sic], Batas Pambansa Bilang 9" (possession of
deadly weapon) and "Malicious Mischief."5
When served with the subpoena on January 27, 1995, Rabi
was aghast at the sudden turn of events. On the same date
and barely a week before the scheduled preliminary
investigation, his counsel forthwith filed with the Regional
Trial Court of Tacloban City a petition for prohibition with
prayer for a temporary restraining order or a writ of
preliminary injunction. Rabi alleged that under the 1987
Revised Administrative Code and PD 1275 as implemented
by Department Order No. 318 of the Department of Justice,
a regional state prosecutor was vested only with
administrative supervision over the city prosecutor and had

no power to motu proprio review, revise, or modify the

resolution of the city prosecutor on the latters conduct of a
preliminary or inquest investigation of a criminal complaint
filed directly therewith. Rabi contended that by taking over
the preliminary investigation of I.S. No. 95-043 and
conducting a new preliminary investigation of said case,
Aurillo acted without jurisdiction or with grave abuse of
discretion amounting to excess or lack of jurisdiction. Rabi
thus prayed that, pending resolution of his plea for a writ of
preliminary injunction, a temporary restraining order be
issued to enjoin Aurillo from proceeding with the preliminary
investigation of I.S. No. 95-043.6
Acting on the petition, the RTC issued a Temporary
Restraining Order7 dated January 30, 1995, enjoining and
prohibiting Aurillo and all others acting for and in his behalf
from taking over and conducting a new preliminary
investigation of I.S. No. 95-043 until the court shall have
resolved the motion for issuance of a writ of preliminary
injunction and the other issues raised in the petition. Aurillo
received said order on January 30, 1995.8
In answer to the petition, Aurillo alleged that the same was
premature as Rabi failed to exhaust all administrative
remedies from the Secretary of Justice before filing the
petition. He explained that he took over and ordered a new
preliminary investigation by virtue of his prosecutorial
powers under PD 1275, in relation to Department Order No.
318, the 1985 Rules of Criminal Procedure and Section
38(1), Chapter 7, Book No. IV of the Revised Administrative
Code, vesting on him supervision and control over field
prosecution officers in the region. He averred that such
powers included the authority for him to take over the
preliminary investigation of I.S. No. 95-043. Aurillo also
claimed that he was not liable for damages for performing
an ordinary and routinary function, the regularity of which is
presumed.9 He further argued that claims for damages and

P a g e | 73

attorneys fees under Rule 65 of the Revised Rules of Court

is proscribed.
During the February 15, 1995 hearing on Rabis motion for
issuance of a writ of preliminary injunction, the parties
marked in evidence their documentary evidence and orally
argued their respective positions. Rabi did not testify to
prove his claim for damages and attorneys fees. On the
same date, the RTC issued an order declaring that the issue
of whether or not the court will issue a writ of preliminary
injunction was submitted for resolution and that it will issue
a resolution thereon in five days time. However, the RTC
failed to do so. Instead, on March 29, 1995, the RTC issued
an order directing the parties to file their respective
memoranda within five days from receipt thereof after which
the petition will be deemed submitted for resolution.10 The
parties did not object to the order. Nevertheless, on March
24, 1995, the assistant regional state prosecutor continued
with his preliminary investigation of I.S. No. 95-043.
Thereafter, with Aurillos approval, he filed with the RTC on
April 4, 1995 an Information against Rabi for violation of PD
1866.11
On April 12, 1995, the RTC rendered judgment in favor of
Rabi. The trial court nullified the preliminary investigation of
I.S. No. 95-043 by the Office of the Regional State
Prosecutor and the Information filed with the RTC against
Rabi. It also ordered Aurillo to pay the amounts of
P50,000.00 as moral damages, P50,000.00 as exemplary
damages and P30,000.00 as attorneys fees.12
The RTC declared that under Department Order No. 318 of
the Department of Justice, the power of a regional state
prosecutor to conduct a preliminary investigation was
confined solely to specific criminal cases and only when the
Secretary of Justice directs him to do so. The trial court
further held that without any order from the Secretary of

Justice, Aurillo cannot motu proprio take over the

preliminary investigation of a case already investigated by
the city prosecutor or conduct a new one.
The RTC awarded damages and attorneys fees to Rabi for
Aurillos wanton disregard of the courts authority as shown
by his filing of an Information against Rabi without authority
from the Secretary of Justice. The trial court also nullified the
Information filed by Aurillo against Rodolfo Cabaluna, Jr. and
held that the filing thereof was made in utter disregard of
simple demands of courtesy to the RTC, thereby preempting
said courts resolution of the issues raised in the petition.
Aurillo thereafter filed the instant petition for review on
certiorari, on questions of law, against Rabi and the Regional
Trial Court, Branch 9, Tacloban City.
When required by the Court to file his comment on the
petition, Rabi failed to do so. The petition shall thus be
resolved by the Court on the basis of the petition and the
annexes thereof.
The issues posed in this case, as synthesized by the Court,
are whether or not (a) the petition filed by Rabi with the RTC
was premature; (b) Aurillo is empowered to motu proprio
take over and conduct a preliminary investigation of I.S No.
95-043, after the inquest investigation thereof had already
been terminated and approved by city prosecutor; (c) the
Information filed by Aurillo against Rabi with the RTC for
violation of PD 1866 may be nullified by said court, and (d)
Aurillo is liable for damages and attorneys fees to Rabi.
On the first issue, the general rule is that an aggrieved party
is mandated to first exhaust all administrative remedies
before filing a judicial action for redress from acts of
administrative bodies or offices in the performance of their
quasi-judicial functions; otherwise, said action may be

P a g e | 74

dismissed for prematurity.13 However, the principle is not

without exceptions. The aggrieved party may validly resort
to immediate judicial action where the (a) question raised is
purely legal; (b) when the act complained of is patently
illegal; (c) when there is an urgent need for judicial
intervention;14 (d) when the disputed act is performed
without jurisdiction or in excess of jurisdiction; (e) the
administrative remedy does not provide for a plain, speedy
and adequate remedy; and (f) when due process is
disregarded.15
In this case, the Investigating Prosecutor terminated the
inquest investigation and came out with her resolution
dismissing the case as approved by the City Prosecutor. On
January 11, 1995, barely a day thereafter, Aurillo decided to
take over the preliminary investigation of I.S. 95-043 and
ordered the City Prosecutor to elevate the records of said
case to the Office of the Regional State Prosecutor. Rabi was
completely unaware of the takeover by Aurillo of the
preliminary investigation of the case or the reasons therefor.
Rabi learned about Aurillos action for the first time when he
received the subpoena from the Assistant Regional State
Prosecutor on January 27, 1995 setting the preliminary
investigation of the case anew on February 2, 1995. Being a
resident of Tacloban City, Rabi did not have adequate time
to seek redress from the Secretary of Justice whose offices is
located in Manila and request that the scheduled
investigation be forestalled.
Given this factual milieu, time was of the essence. Inaction
was not an option; it was, in fact, sheer folly. Judicial
intervention was imperative. There was no need for Rabi to
still wait for Aurillo to complete his preliminary investigation
of I.S. No. 95-043, find probable cause against Rabi for
violation of PD 1866 and file an Information against him for
said crime nor wait for the issuance by the trial court of a
warrant for his arrest. If Rabi tarried, the acts sought to be

assailed by him would by then have been a fait accompli to

his gross prejudice, and his prayer for a writ of prohibition
and for injunctive relief, an exercise in utter futility. Aurillo
acted without authority and with grave abuse of discretion
amounting to excess or lack of jurisdiction when he took
over motu proprio the preliminary investigation of I.S. No.
95-043 and ordered a new preliminary investigation thereof;
hence, his actuations were a nullity.
Aurillos reliance on Section 8, paragraph (b) of PD 1275 is
misplaced. Said law provides that a regional state
prosecutor exercises immediate administrative supervision
over all provincial and city fiscals and other prosecuting
officers of provinces and cities comprised within his region
and prosecutes any case arising within his region.16
The "administrative supervision" which shall govern the
administration relationship between a department or its
equivalent and an agency under its jurisdiction is limited to
the authority of such department to generally oversee the
operation of the agency under it to insure that the same is
managed effectively and economically, without interfering
with its day-to-day activities; and to take such action as may
be necessary for the proper performance of official
functions, including the rectification of violations, abuses or
other forms of maladministration.17 It bears stressing that
in administrative law, administrative supervision is not
synonymous with control. The Court distinguished
supervision from control in Jose Mondano vs. Francisco
Silvosa,18 thus:
"x x x In administrative law supervision means overseeing or
the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to
fulfill them the former may take such action or step as
prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to

P a g e | 75

alter or modify or nullify or set aside what a subordinate

officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter. x
x x."
"Supervision and control," on the other hand, includes the
authority to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; todirect the
performance of duty; and to approve, revise or modify acts
and decision of subordinate officials or units.19
In Hon. Franklin Drilon, et al. vs. Mayor Alfredo S. Lim, et
al.,20 the Court declared that an officer in control lays down
the rules in the doing of an act. If they are not followed, he
may, in his discretion, order the act undone or re-done by
his subordinates or he may even decide to do it himself. The
Court, likewise, decreed in an avuncular case that "control"
means the power of an official to alter or modify or nullify or
set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of
the former for that of the latter.21

Department Order No. 223,22 and if said motion were

denied to appeal therefrom to the Secretary of Justice.
Aurillo threw a monkey wrench to the appeal process and
deprived the Secretary of Justice of the authority to resolve
any appeal by the losing party from the resolution of the city
prosecutor in I.S. No. 95-043. What is so palpable and
condemnable is that, Aurillo decided to conduct a
preliminary investigation of the crimes for malicious
mischief, violation of the Omnibus Election Code and
violation of Batas Pambansa Blg. 9 without any complaint for
said cases filed directly with the Office of the Regional State
Prosecutor.
There is no inconsistency between Department Order No.
318 of the Secretary of Justice, PD 1275 and Section 2, Rule
112 of the 1985 Rules of Criminal Procedure, as amended;
nor is Department Order No. 318 a surplusage. Section 2,
Rule 112 provides that regional state prosecutors are
authorized to conduct preliminary investigations of crimes
committed in their territorial jurisdiction:23

In this case, when Aurillo motu proprio took over the

preliminary investigation of I.S. No. 95-043 after the same
had already been dismissed by the city prosecutor and
ordered the assistant regional state prosecutor to conduct a
preliminary investigation of the case, he exercised not only
administrative supervision but control over the city
prosecutor in the performance of the latters quasi-judicial
functions

"SEC. 2. Officers
investigation.

authorized

to

conduct

preliminary

.. By doing so, Aurillo nullified the resolution of the inquest

prosecutor as approved by the city prosecutor and deprived
Rabi as the aggrieved party in I.S. 95-043 of his right to file
a motion for the reconsideration of the resolution of the
inquest prosecutor under Section 2 of Department Circular
No. 7 of the Department of Justice, as amended by

(d) Such other officers as may be authorized by law.

The following may conduct a preliminary investigation:

xxx
(c) National and Regional State Prosecutors; and

Their authority to conduct preliminary investigation shall

include all crimes cognizable by the proper court in their
respective territorial jurisdiction."

P a g e | 76

As a practical matter, however, criminal complaints are filed

in a proper case for preliminary investigation with the
municipal trial court or with the office of the city or
provincial prosecutor which has territorial jurisdiction over
the offense complained of and not with the office of the
regional state prosecutor. Hence, the office of the regional
state prosecutor does not conduct any preliminary
investigation or prosecute any criminal case in court at all.
The bulk of the work of the office of the regional state
prosecutor consists of administrative supervision over city
or provincial or city fiscals and their assistants. The
Secretary of Justice thus opted to harness the services of
regional state prosecutors and help out in the investigation
and prosecution of criminal cases not filed with their offices.
Hence, pursuant to his power under Section 4, Chapter 1,
Book IV of the 1987 Revised Administrative Code,24 and of
his power of supervision and control over regional state
prosecutors and provincial and city prosecutors, the
Secretary of Justice issued Department Order No. 318
authorizing regional state prosecutors to investigate and/or
prosecute, upon his directives, special criminal cases within
the region.25 In fine, the duty of the regional state
prosecutors to prosecute or investigate specific criminal
cases pursuant to Department Order No. 318 is not an
abridgment or curtailment of their duties or functions under
Section 2, Rule 112 of the 1985 Rules of Criminal Procedure,
as amended, but is an additional duty specifically delegated
to them by the Secretary of Justice to enhance the
administration of justice. Therefore, petitioners contention
that Department Order No. 318 is inconsistent with PD 1275
and that Section 2, Rule 112 of the 1985 Rules of Criminal
Procedure is merely a surplusage has no legal basis.
We now resolve the third issue. Aurillo contends that the RTC
erred when it nullified the Information filed by him charging
private respondent with violation of PD 1866 after the
requisite preliminary investigation by the office of regional

state prosecutor. He argues that although the RTC had

issued a Temporary Restraining Order on January 30, 1995,
the same had lapsed without the court issuing any
preliminary injunction. There was thus no legal bar for the
Office of the Regional State Prosecutor to proceed with and
terminate the preliminary investigation and thereafter to file
the Information against private respondent even while the
petition for prohibition was still pending before the RTC. He
further asserts that the remedy of Rabi was to file with the
trial court a Motion to Quash the Information on the ground
that the office of the regional state prosecutor had no
authority to conduct a preliminary investigation and file the
same.
The pendency of the special civil action for prohibition
before the trial court did not interrupt the investigation in
I.S. No. 95-043.26 It goes without saying, however, that in
proceeding with the preliminary investigation of I.S. No. 95043 and terminating the same, Aurillo did so subject to the
outcome of the petition for prohibition. In this case, the RTC
granted the petition of Rabi, declared Aurillo bereft of
authority to take over the preliminary investigation of I.S.
No. 95-043 and nullified the preliminary investigation
conducted by Aurillo as well as the Information thereafter
filed by him. The RTC is possessed of residual power to
restore the parties to their status before Aurillo proceeded
with the preliminary investigation, and grant in favor of the
aggrieved party such other relief as may be proper.27
Jurisprudence has it that prohibition will give complete relief
not only by preventing what remains to be done but by
undoing what has been done. The Court has authority to
grant any appropriate relief within the issues presented by
the pleadings of the parties:
Generally, the relief granted in a prohibition proceeding is
governed by the nature of the grievance proved and the

P a g e | 77

situation at the time of judgment. Although the general rule

is that a writ of prohibition issues only to restrain the
commission of a future act, and not to undo an act already
performed, where anything remains to be done by the court,
prohibition will give complete relief, not only by preventing
what remains to be done but by undoing what has been
done. Under some statutes, the court must grant the
appropriate relief whatever the proceeding is called if facts
stating ground for relief are pleaded. Although prohibition is
requested only as to a particular matter, the court has
authority to grant any appropriate relief within the issues
presented by the pleadings. If the application for prohibition
is too broad, the court may mould the writ and limit it to as
much as is proper to be granted. In the exercise of its
jurisdiction to issue writs, the court has, as a necessary
incident thereto, the power to make such incidental order as
may be necessary to maintain its jurisdiction and to
effectuate its final judgment. The court may retain
jurisdiction of the cause to enable it to make an appropriate
order in the future, even though the petition for a writ of
prohibition is dismissed.28
Hence, the RTC did not commit any error in nullifying not
only the preliminary investigation by the Office of the
Regional State Prosecutor in I.S. No. 95-043 for want of
authority but also the Information approved by Aurillo and
filed with the Regional Trial Court.
On the last issue, the RTC awarded moral damages in the
amount of P50,000.00, exemplary damages in the amount
of P50,000.00 and P10,000.00 by way of attorneys fees to
Rabi on its finding that Aurillo wantonly disregarded the
authority of the court by filing the information against Rabi
despite the pendency of the latters petition for prohibition
with said court and even without any authority from the
Secretary of Justice. Aurillo asserts that the awards are
bereft of legal basis because the RTC did not issue a writ of

preliminary injunction enjoining him from proceeding with

the preliminary investigation of I.S. No. 95-043 and filing the
Information against Rabi. He insists that the pendency of the
petition for prohibition was no impediment for him to
proceed with the preliminary investigation. He claims that
he proceeded in good faith, without malice. Hence, the RTC
is not allowed under Rule 65 of the Rules to award moral
and exemplary damages to Rabi.
We agree with Aurillo.
The awards by the RTC of damages and attorneys fees are
barren of legal basis. The fact is that the RTC did not issue
any writ of preliminary injunction enjoining Aurillo from
proceeding with the preliminary investigation of I.S. No. 95043. Although the RTC promised to resolve private
respondents plea for a writ of preliminary injunction on or
before February 20, 1995, it did not. Aurillos act of
proceeding with the preliminary investigation of I.S. No. 95043 and of filing the Information were not in disregard of the
authority of the RTC, but were done in the belief that, absent
any temporary restraining order or writ of preliminary
injunction, he was authorized to do so.
For Rabi to be entitled as a matter or law to moral damages,
he must adduce evidence that he suffered injury and
establish that such injury sprung from any of the instances
listed in Articles 2219 and 2220 of the New Civil Code.29 He
is burdened to show proof of physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation and
similar injury.30 In this case, Rabi failed to discharge his
burden. The records show that he even failed to testify
before the RTC to prove his claim for moral damages. Hence,
the RTC erred in awarding moral damages to Rabi.
Neither is Rabi entitled to exemplary damages. In National

P a g e | 78

Steel Corporation vs. RTC, et al.,31 the Court held that:

xxx (1) they may be imposed by way of example in addition
to compensatory damages, and only after the claimants
right to them has been established; (2) that they cannot be
recovered as a matter of right, their determination
depending upon the amount of compensatory damages that
may be awarded to the claimant; (3) the act must be
accompanied by bad faith or done in a wanton, fraudulent,
oppressive or malevolent manner.
Rabi did not claim in his petition with the RTC any
compensatory damages. Hence, he is not entitled to
exemplary damages.
Finally, since Rabi is not entitled to moral and exemplary
damages, he is not entitled to attorneys fees.32
IN THE LIGHT OF ALL THE FOREGOING, the decision of the
Regional Trial Court granting the petition for prohibition of
Rabi is AFFIRMED with MODIFICATION. The awards for moral
and exemplary damages and attorneys fees are DELETED.
No costs.

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