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G.R. No.

47065

June 26, 1940

valid and subsisting certificates issued prior to June 8, 1939. Stated in the language of the petitioner, it is contended: 1. That the legislative powers granted to the Public Service Commission by section 1 of Commonwealth Act No. 454, without limitation, guide or rule except the unfettered discretion and judgment of the Commission, constitute a complete and total abdication by the Legislature of its functions in the premises, and for that reason, the Act, in so far as those powers are concerned, is unconstitutional and void. 2. That even if it be assumed that section 1 of Commonwealth Act No. 454, is valid delegation of legislative powers, the Public Service Commission has exceeded its authority because: (a) The Act applies only to future certificates and not to valid and subsisting certificates issued prior to June 8, 1939, when said Act took effect, and (b) the Act, as applied by the Commission, violates constitutional guarantees. Section 15 of Commonwealth Act No. 146, as amended by section 1 of Commonwealth Act No. 454, invoked by the respondent Public Service Commission in the decision complained of in the present proceedings, reads as follows: With the exception to those enumerated in the preceding section, no public service shall operate in the Philippines without possessing a valid and subsisting certificate from the Public Service Commission, known as "certificate of public convenience," or "certificate of convenience and public necessity," as the case may be, to the effect that the operation of said service and the authorization to do business will promote the public interests in a proper and suitable manner. The Commission may prescribed as a condition for the issuance of the certificate provided in the preceding paragraph that the service can be acquired by the Commonwealth of the Philippines or by any instrumentality thereof upon payment of the cost price of its useful equipment, less reasonable depreciation; and likewise, that the certificate shall valid only for a definite period of time; and that the violation of any of these conditions shall produce the immediate cancellation of the certificate without the necessity of any express action on the part of the Commission. In estimating the depreciation, the effect of the use of the equipment, its actual condition, the age of the model, or other circumstances affecting its value in the market shall be taken into consideration. The foregoing is likewise applicable to any extension or amendment of certificates actually force and to those which may hereafter be issued, to permits to modify itineraries and time schedules of public services and to authorization to renew and increase equipment and properties. Under the first paragraph of the aforequoted section 15 of Act No. 146, as amended, no public service can operate without a certificate of public convenience or certificate of convenience and public necessity to the effect that the operation of said service and the authorization to do business will "public interests in a proper and suitable manner." Under the second paragraph, one of the conditions which the Public Service Commission may prescribed the issuance of the

PANGASINAN TRANSPORTATION CO., INC., petitioner, vs. THE PUBLIC SERVICE COMMISSION, respondent. C. de G. Alvear for petitioner. Evaristo R. Sandoval for respondent. LAUREL, J.: The petitioner has been engaged for the past twenty years in the business of transporting passengers in the Province of Pangasinan and Tarlac and, to a certain extent, in the Province of Nueva Ecija and Zambales, by means of motor vehicles commonly known as TPU buses, in accordance with the terms and conditions of the certificates of public convenience issued in its favor by the former Public Utility Commission in cases Nos. 24948, 30973, 36830, 32014 and 53090. On August 26, 1939, the petitioner filed with the Public Service Commission an application for authorization to operate ten additional new Brockway trucks (case No. 56641), on the ground that they were needed to comply with the terms and conditions of its existing certificates and as a result of the application of the Eight Hour Labor Law. In the decision of September 26, 1939, granting the petitioner's application for increase of equipment, the Public Service Commission ordered: Y de acuerdo con que se provee por el articulo 15 de la ley No. 146 del Commonwealth, tal como ha sido enmendada por el articulo 1 de la Ley No. 454, por la presente se enmienda las condiciones de los certificados de convenciencia publica expedidos en los expedientes Nos. 24948, 30973, 36831, 32014 y la authorizacion el el expediente No. 53090, asi que se consideran incorporadas en los mismos las dos siguientes condiciones: Que los certificados de conveniencia publica y authorizacion arriba mencionados seran validos y subsistentes solamente durante de veinticinco (25) anos, contados desde la fecha de la promulgacion de esta decision. Que la empresa de la solicitante porda ser adquirida por el Commonwealth de Filipinas o por alguna dependencia del mismo en cualquier tiempo que lo deseare previo pago del precio d costo de su equipo util, menos una depreciacion razonable que se ha fijar por la Comision al tiempo de su adquisicion. Not being agreeable to the two new conditions thus incorporated in its existing certificates, the petitioner filed on October 9, 1939 a motion for reconsideration which was denied by the Public Service Commission on November 14, 1939. Whereupon, on November 20, 1939, the present petition for a writ of certiorari was instituted in this court praying that an order be issued directing the secretary of the Public Service Commission to certify forthwith to this court the records of all proceedings in case No. 56641; that this court, after hearing, render a decision declaring section 1 of Commonwealth Act No. 454 unconstitutional and void; that, if this court should be of the opinion that section 1 of Commonwealth Act No. 454 is constitutional, a decision be rendered declaring that the provisions thereof are not applicable to

certificate provided for in the first paragraph is that "the service can be acquired by the Commonwealth of the Philippines or by any instrumental thereof upon payment of the cost price of its useful equipment, less reasonable depreciation," a condition which is virtually a restatement of the principle already embodied in the Constitution, section 6 of Article XII, which provides that "the State may, in the interest of national welfare and defense, establish and operate industries and means of transportation and communication, and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government. "Another condition which the Commission may prescribed, and which is assailed by the petitioner, is that the certificate "shall be valid only for a definite period of time." As there is a relation between the first and second paragraphs of said section 15, the two provisions must be read and interpreted together. That is to say, in issuing a certificate, the Commission must necessarily be satisfied that the operation of the service under said certificate during a definite period fixed therein "will promote the public interests in a proper and suitable manner." Under section 16 (a) of Commonwealth Act. No. 146 which is a complement of section 15, the Commission is empowered to issue certificates of public convenience whenever it "finds that the operation of the public service proposed and the authorization to do business will promote the public interests in a proper and suitable manner." Inasmuch as the period to be fixed by the Commission under section 15 is inseparable from the certificate itself, said period cannot be disregarded by the Commission in determining the question whether the issuance of the certificate will promote the public interests in a proper and suitable manner. Conversely, in determining "a definite period of time," the Commission will be guided by "public interests," the only limitation to its power being that said period shall not exceed fifty years (sec. 16 (a), Commonwealth Act No. 146; Constitution, Art. XIII, sec. 8.) We have already ruled that "public interest" furnishes a sufficient standard. (People vs. Fernandez and Trinidad, G. R. No. 45655, promulgated June 15, 1938; People vs. Rosenthal and Osmea, G. R. Nos. 46076 and 46077, promulgated June 12, 1939, citing New York Central Securities Corporation vs. U.S.A., 287 U.S. 12, 24, 25, 77 Law. ed. 138, 145, 146; Schenchter Poultry Corporation vs. I.S., 295, 540, 79 Law. ed. 1570, 1585; Ferrazzini vs. Gsell, 34 Phil., 697, 711-712.) Section 8 of Article XIII of the Constitution provides, among other things, that no franchise, certificate, or any other form of authorization for the operation of a public utility shall be "for a longer period than fifty years," and when it was ordained, in section 15 of Commonwealth Act No. 146, as amended by Commonwealth Act No. 454, that the Public Service Commission may prescribed as a condition for the issuance of a certificate that it "shall be valid only for a definite period of time" and, in section 16 (a) that "no such certificates shall be issued for a period of more than fifty years," the National Assembly meant to give effect to the aforesaid constitutional mandate. More than this, it has thereby also declared its will that the period to be fixed by the Public Service Commission shall not be longer than fifty years. All that has been delegated to the Commission, therefore, is the administrative function, involving the use discretion, to carry out the will of the National Assembly having in view, in addition, the promotion of "public interests in a proper and suitable manner." The fact that the National Assembly may itself exercise the function and authority thus conferred upon the Public Service Commission does not make the provision in question constitutionally objectionable. The theory of the separation of powers is designed by its originators to secure action and at the same time to forestall overaction which necessarily results from undue concentration of powers, and thereby obtain efficiency and prevent deposition. Thereby, the "rule of law" was established which narrows the range of governmental action and makes it subject to control by certain devices. As a corollary, we find the rule prohibiting delegation of legislative authority, and from the earliest time American legal authorities have proceeded on the theory that

legislative power must be exercised by the legislature alone. It is frankness, however, to confess that as one delves into the mass of judicial pronouncement, he finds a great deal of confusion. One thing, however, is apparent in the development of the principle of separation of powers and that is that the maxim of delegatus non potest delegari or delegata potestas non potest delegari, attributed to Bracton (De Legius et Consuetedinious Angliae, edited by G. E. Woodbine, Yale University Press, 1922, vol. 2, p. 167) but which is also recognized in principle in the Roman Law (D. 17.18.3), has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation," not only in the United States and England but in practically all modern governments. (People vs. Rosenthal and Osmea, G. R. Nos. 46076 and 46077, promulgated June 12, 1939.) Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature, and toward the approval of the practice by the court. (Dillon Catfish Drainage Dist, v. Bank of Dillon, 141 S. E. 274, 275, 143 S. Ct. 178; State vs. Knox County, 54 S. W. 2d. 973, 976, 165 Tenn. 319.) In harmony with such growing tendency, this Court, since the decision in the case of Compaia General de Tabacos de Filipinas vs. Board of Public Utility Commissioner (34 Phil., 136), relied upon by the petitioner, has, in instances, extended its seal of approval to the "delegation of greater powers by the legislature." (Inchausti Steamship Co. vs. Public Utility Commissioner, 44 Phil., Autobus Co. vs. De Jesus, 56 Phil., 446; People vs. Fernandez & Trinidad, G. R. No. 45655, promulgated June 15, 1938; People vs. Rosenthal & Osmea, G. R. Nos. 46076, 46077, promulgated June 12, 1939; and Robb and Hilscher vs. People, G. R. No. 45866, promulgated June 12, 1939.). Under the fourth paragraph of section 15 of Commonwealth Act No. 146, as amended by Commonwealth Act No. 454, the power of the Public Service Commission to prescribed the conditions "that the service can be acquired by the Commonwealth of the Philippines or by any instrumentality thereof upon payment of the cost price of its useful equipment, less reasonable," and "that the certificate shall be valid only for a definite period of time" is expressly made applicable "to any extension or amendment of certificates actually in force" and "to authorizations to renew and increase equipment and properties." We have examined the legislative proceedings on the subject and have found that these conditions were purposely made applicable to existing certificates of public convenience. The history of Commonwealth Act No. 454 reveals that there was an attempt to suppress, by way of amendment, the sentence "and likewise, that the certificate shall be valid only for a definite period of time," but the attempt failed: xxx xxx xxx

Sr. CUENCO. Seor Presidente, para otra enmienda. En la misma pagina, lineas 23 y 24, pido que se supriman las palabras 'and likewise, that the certificate shall be valid only for a definite period time.' Esta disposicion del proyecto autoriza a la Comision de Servicios Publicos a fijar un plazo de vigencia certificado de conveniencia publica. Todo el mundo sabe que bo se puede determinar cuando los intereses del servicio publico requiren la explotacion de un servicio publico y ha de saber la Comision de Servisios, si en un tiempo determinado, la explotacion de algunos buses en cierta ruta ya no tiene de ser, sobre todo, si tiene en cuenta; que la explotacion de los servicios publicos depende de condiciones flutuantes, asi como del volumen como trafico y de otras condiciones. Ademas, el servicio publico se concede por la Comision de Servicios Publicos el interes publico asi lo exige. El

interes publico no tiene duracion fija, no es permanente; es un proceso mas o menos indefinido en cuanto al tiempo. Se ha acordado eso en el caucus de anoche. EL PRESIDENTE PRO TEMPORE. Que dice el Comite? Sr. ALANO. El Comite siente tener que rechazar esa enmienda, en vista de que esto certificados de conveniencia publica es igual que la franquicia: sepuede extender. Si los servicios presentados por la compaia durante el tiempo de su certificado lo require, puede pedir la extension y se le extendera; pero no creo conveniente el que nosotros demos un certificado de conveniencia publica de una manera que podria pasar de cincuenta anos, porque seria anticonstitucional. xxx xxx xxx

utilities coming into existence after its passage, but likewise to those already established and in operation. The 'Auto Stage and Truck Transportation Act' (Stats. 1917, c. 213) is a statute passed in pursuance of the police power. The only distinction recognized in the statute between those established before and those established after the passage of the act is in the method of the creation of their operative rights. A certificate of public convenience and necessity it required for any new operation, but no such certificate is required of any transportation company for the operation which was actually carried on in good faith on May 1, 1917, This distinction in the creation of their operative rights in no way affects the power of the Commission to supervise and regulate them. Obviously the power of the Commission to hear and dispose of complaints is as effective against companies securing their operative rights prior to May 1, 1917, as against those subsequently securing such right under a certificate of public convenience and necessity. (Motor Transit Co. et al. v. Railroad Commission of California et al., 209 Pac. 586.) Moreover, Commonwealth Acts Nos. 146 and 454 are not only the organic acts of the Public Service Commission but are "a part of the charter of every utility company operating or seeking to operate a franchise" in the Philippines. (Streator Aqueduct Co. v. et al., 295 Fed. 385.) The business of a common carrier holds such a peculiar relation to the public interest that there is superinduced upon it the right of public regulation. When private property is "affected with a public interest it ceased to be juris privati only." When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discounting the use, but so long as he maintains the use he must submit to control. Indeed, this right of regulation is so far beyond question that it is well settled that the power of the state to exercise legislative control over public utilities may be exercised through boards of commissioners. (Fisher vs. Yangco Steamship Company, 31 Phil., 1, citing Munn vs. Illinois, 94 U.S. 113; Georgia R. & Bkg. Co. vs. Smith, 128 U.S. 174; Budd vs. New York, 143 U.S. 517; New York etc. R. Co. vs. Bristol 151 U.S. 556, 571; Connecticut etc. R. Co. vs. Woodruff, 153 U.S. 689; Louisville etc. Ry Co. vs. Kentucky, 161 U.S. 677, 695.) This right of the state to regulate public utilities is founded upon the police power, and statutes for the control and regulation of utilities are a legitimate exercise thereof, for the protection of the public as well as of the utilities themselves. Such statutes are, therefore, not unconstitutional, either impairing the obligation of contracts, taking property without due process, or denying the equal protection of the laws, especially inasmuch as the question whether or not private property shall be devoted to a public and the consequent burdens assumed is ordinarily for the owner to decide; and if he voluntarily places his property in public service he cannot complain that it becomes subject to the regulatory powers of the state. (51 C. J., sec. 21, pp. 9-10.) in the light of authorities which hold that a certificate of public convenience constitutes neither a franchise nor contract, confers no property right, and is mere license or privilege. (Burgess vs. Mayor & Alderman of Brockton, 235 Mass. 95, 100, 126 N. E. 456; Roberto vs. Commisioners of Department of Public Utilities, 262 Mass. 583, 160 N. E. 321; Scheible vs. Hogan, 113 Ohio St. 83, 148 N. E. 581; Martz vs. Curtis [J. L.] Cartage Co. [1937], 132 Ohio St. 271, 7 N. E. [d] 220; Manila Yellow Taxicab Co. vs. Sabellano, 59 Phil., 773.) Whilst the challenged provisions of Commonwealth Act No. 454 are valid and constitutional, we are, however, of the opinion that the decision of the Public Service Commission should be reversed and the case remanded thereto for further proceedings for the reason now to be stated. The Public Service Commission has power, upon proper notice and hearing, "to amend, modify or revoke at any time any certificate issued under the provisions of this Act, whenever

By a majority vote the proposed amendment was defeated. (Sesion de 17 de mayo de 1939, Asamblea Nacional.) The petitioner is mistaken in the suggestion that, simply because its existing certificates had been granted before June 8, 1939, the date when Commonwealth Act No. 454, amendatory of section 15 of Commonwealth Act No. 146, was approved, it must be deemed to have the right of holding them in perpetuity. Section 74 of the Philippine Bill provided that "no franchise, privilege, or concession shall be granted to any corporation except under the conditions that it shall be subject to amendment, alteration, or repeal by the Congress of the United States." The Jones Law, incorporating a similar mandate, provided, in section 28, that "no franchise or right shall be granted to any individual, firm, or corporation except under the conditions that it shall be subject to amendment, alteration, or repeal by the Congress of the United States." Lastly, the Constitution of the Philippines provided, in section 8 of Article XIII, that "no franchise or right shall be granted to any individual, firm, or corporation, except under the condition that it shall be subject to amendment, alteration, or repeal by the National Assembly when the public interest so requires." The National Assembly, by virtue of the Constitution, logically succeeded to the Congress of the United States in the power to amend, alter or repeal any franchise or right granted prior to or after the approval of the Constitution; and when Commonwealth Acts Nos. 146 and 454 were enacted, the National Assembly, to the extent therein provided, has declared its will and purpose to amend or alter existing certificates of public convenience. Upon the other hand, statutes enacted for the regulation of public utilities, being a proper exercise by the state of its police power, are applicable not only to those public utilities coming into existence after its passage, but likewise to those already established and in operation. Nor is there any merit in petitioner's contention, that, because of the establishment of petitioner's operations prior to May 1, 1917, they are not subject to the regulations of the Commission. Statutes for the regulation of public utilities are a proper exercise by the state of its police power. As soon as the power is exercised, all phases of operation of established utilities, become at once subject to the police power thus called into operation. Procedures' Transportation Co. v. Railroad Commission, 251 U. S. 228, 40 Sup. Ct. 131, 64 Law. ed. 239, Law v. Railroad Commission, 184 Cal. 737, 195 Pac. 423, 14 A. L. R. 249. The statute is applicable not only to those public

the facts and circumstances on the strength of which said certificate was issued have been misrepresented or materially changed." (Section 16, par. [m], Commonwealth Act No. 146.) The petitioner's application here was for an increase of its equipment to enable it to comply with the conditions of its certificates of public convenience. On the matter of limitation to twenty five (25) years of the life of its certificates of public convenience, there had been neither notice nor opportunity given the petitioner to be heard or present evidence. The Commission appears to have taken advantage of the petitioner to augment petitioner's equipment in imposing the limitation of twenty-five (25) years which might as well be twenty or fifteen or any number of years. This is, to say the least, irregular and should not be sanctioned. There are cardinal primary rights which must be respected even in proceedings of this character. The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Justice Hughes, in Morgan v. U.S., (304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129), "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play." Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan vs. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 :Law. ed. 1288.) In the language of this Court in Edwards vs. McCoy (22 Phil., 598), "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without or consideration." While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, at least when directly attacked. (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental principle that the genius of constitutional government is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power. The decision appealed from is hereby reversed and the case remanded to the Public Service Commission for further proceedings in accordance with law and this decision, without any pronouncement regarding costs. So ordered. Avancea, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur. PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. L-37878 November 25, 1932 MANILA ELECTRIC COMPANY vs. PASAY TRANSPORTATION CO., INC., ET AL.

P. A. Remigio for respondent E. B. Gutierrez. A. M. Zarate for respondent Raymundo Transportation Co. Vicente Ampil for respondent J. Ampil. MALCOLM, J.: The preliminary and basic question presented by the petition of the Manila Electric Company, requesting the members of the Supreme Court, sitting as a board of arbitrators, to fix the terms upon which certain transportation companies shall be permitted to use the Pasig bridge of the Manila Electric Company and the compensation to be paid to the Manila Electric Company by such transportation companies, relates to the validity of section 11 of Act No. 1446 and to the legal right of the members of the Supreme Court, sitting as a board of arbitrators, to act on the petition. Act No. 1446 above referred to is entitled. "An Act granting a franchise to Charles M. Swift to construct, maintain, and operate an electric railway, and to construct, maintain, and operate an electric light, heat, and power system from a point in the City of Manila in an easterly direction to the town of Pasig, in the Province of Rizal." Section 11 of the Act provides: "Whenever any franchise or right of way is granted to any other person or corporation, now or hereafter in existence, over portions of the lines and tracks of the grantee herein, the terms on which said other person or corporation shall use such right of way, and the compensation to be paid to the grantee herein by such other person or corporation for said use, shall be fixed by the members of the Supreme Court, sitting as a board of arbitrators, the decision of a majority of whom shall be final." When the petition of the Manila Electric Company was filed in this court, it was ordered that the petitioner be required to serve copies on the AttorneyGeneral and the transportation companies affected by the petition. Thereafter, the Attorney-General disclaimed any interest in the proceedings, and opposition was entered to the petition by a number of public utility operators. On the submission of memoranda after an oral hearing, the petition was made ready for resolution. Examining the statutory provision which is here invoked, it is first noted that power is attempted to be granted to the members of the Supreme Court sitting as a board of arbitrators and to the Supreme Court as an entity. It is next seen that the decision of a majority of the members of the Supreme Court is made final. And it is finally observed that the franchise granted the Manila Electric Company by the Government of the Philippine Islands, although only a contract between the parties to it, is now made to effect the rights of persons not signatories to the covenant. The law calls for arbitration which represents a method of the parties' own choice. A submission to arbitration is a contract. The parties to an arbitration agreement may not oust the courts of jurisdiction of the matters submitted to arbitration. These are familiar rules which find support in articles 1820 and 1821 of the Civil Code. Citation of authority is hardly necessary, except that it should be recalled that in the Philippines, and in the United States for that

G.R. No. L-37878

November 25, 1932

MANILA ELECTRIC COMPANY, petitioner, vs. PASAY TRANSPORTATION COMPANY, INC., ET AL., respondents. Ross, Lawrence & Selph for petitioner. Rivera & Francisco for respondent Pasay Transportation Co.

matter, it has been held that a clause in a contract, providing that all matters in dispute between the parties shall be referred to arbitrators and to them alone, is contrary to public policy and cannot oust the courts of jurisdiction (Wahl and Wahl vs. Donaldson, Sims & Co. [1903], 2 Phil., 301; Puentebella vs. Negros Coal Co. [1927], 50 Phil., 69; Vega vs. San Carlos Milling Co. [1924], 51 Phil., 908; District of Columbia vs. Bailey [1897], 171 U. S., 161.) We would not be understood as extending the principles governing arbitration and award too far. Unless the arbitration agreement is such as absolutely to close the doors of the courts against the parties, the courts should look with favor upon such amicable arrangements. We can also perceive a distinction between a private contract for submission to arbitration and agreements to arbitrate falling within the terms of a statute enacted for such purpose and affecting others than the parties to a particular franchise. Here, however, whatever else may be said in extenuation, it remains true that the decision of the board of arbitrators is made final, which if literally enforced would leave a public utility, not a party to the contract authorized by Act No. 1446, without recourse to the courts for a judicial determination of the question in dispute. Counsel for the petitioner rely principally on the case of Tallassee Falls Mfg. Co. vs. Commissioner's Court [1908], 158 Ala., 263. It was there held that an Act of a state legislature authorizing the commissioners' court of a certain county to regulate and fix the rate of toll to be charged by the owners of a bridge is not unconstitutional as delegating legislative power to the courts. But that is not the question before us. Here the question is not one of whether or not there has been a delegation of legislative authority to a court. More precisely, the issue concerns the legal right of the members of the Supreme Court, sitting as a board of arbitrators the decision of a majority of whom shall be final, to act in that capacity. We run counter to this dilemma. Either the members of the Supreme Court, sitting as a board of arbitrators, exercise judicial functions, or the members of the Supreme Court, sitting as board of arbitrators, exercise administrative or quasi judicial functions. The first case would appear not to fall within the jurisdiction granted the Supreme Court. Even conceding that it does, it would presuppose the right to bring the matter in dispute before the courts, for any other construction would tend to oust the courts of jurisdiction and render the award a nullity. But if this be the proper construction, we would then have the anomaly of a decision by the members of the Supreme Court, sitting as a board of arbitrators, taken therefrom to the courts and eventually coming before the Supreme Court, where the Supreme Court would review the decision of its members acting as arbitrators. Or in the second case, if the functions performed by the members of the Supreme Court, sitting as a board of arbitrators, be considered as administrative or quasi judicial in nature, that would result in the performance of duties which the members of the Supreme Court could not lawfully take it upon themselves to perform. The present petition also furnishes an apt illustration of another anomaly, for we find the Supreme Court as a court asked to determine if the members of the court may

be constituted a board of arbitrators, which is not a court at all.lawphil.net The Supreme Court of the Philippine Islands represents one of the three divisions of power in our government. It is judicial power and judicial power only which is exercised by the Supreme Court. Just as the Supreme Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of the government, so should it as strictly confine its own sphere of influence to the powers expressly or by implication conferred on it by the Organic Act. The Supreme Court and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administering of judicial functions. The Organic Act provides that the Supreme Court of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by law (sec. 26). When the Organic Act speaks of the exercise of "jurisdiction" by the Supreme Court, it could not only mean the exercise of "jurisdiction" by the Supreme Court acting as a court, and could hardly mean the exercise of "jurisdiction" by the members of the Supreme Court, sitting as a board of arbitrators. There is an important distinction between the Supreme Court as an entity and the members of the Supreme Court. A board of arbitrators is not a "court" in any proper sense of the term, and possesses none of the jurisdiction which the Organic Act contemplates shall be exercised by the Supreme Court.lawph!l.net In the last judicial paper from the pen of Chief Justice Taney, it was said: The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other. . . . Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. . . . The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress. . . . And while it executes firmly all the judicial powers entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution. . . . (Gordon vs. United States [1864], 2 Wall., 561; 117 U. S., 697 Appendix.) Confirming the decision to the basic question at issue, the Supreme Court

holds that section 11 of Act No. 1446 contravenes the maxims which guide the operation of a democratic government constitutionally established, and that it would be improper and illegal for the members of the Supreme Court, sitting as a board of arbitrators, the decision of a majority of whom shall be final, to act on the petition of the Manila Electric Company. As a result, the members of the Supreme Court decline to proceed further in the matter. Avancea, C.J., Street, Villamor, Ostrand, Villa-Real, Abad Santos, Hull, Vickers, Imperial and Butte, JJ., concur.

recommending approval of subdivision, consolidation and consolidatedsubdivision plans covering areas greatly in excess of the areas covered by the original titles." Noblejas answered and apprised the Secretary of Justice that, as he enjoyed the rank, privileges, emoluments and compensation of a Judge of the Court of First Instance, he could only be suspended and investigated in the same manner as a Judge of the Courts of First Instance, and, therefore, the papers relative to his case should be submitted to the Supreme Court, for action thereon conformably to section 67 of the Judiciary Act (R. A. No. 296) and Revised Rule 140 of the Rules of Court. On March 17, 1968, petitioner Noblejas received a communication signed by the Executive Secretary, "by authority of the President", whereby, based on "finding that a prima facie case exists against you for gross negligence and conduct prejudicial to the public interest", petitioner was "hereby suspended, upon receipt hereof, pending investigation of the above charges." On March 18, 1968, petitioner applied to this Court, reiterating the contentions advanced in his letter to the Secretary of Justice, claiming lack of jurisdiction and abuse of discretion, and praying for restraining writs. In their answer respondents admit the facts but denied that petitioner, as Land Registration Commissioner, exercises judicial functions, or that the petitioner may be considered a Judge of First Instance within the purview of the Judiciary Act and Revised Rules of Court 140; that the function of investigating charges against public officers is administrative or executive in nature; that the Legislature may not charge the judiciary with non-judicial functions or duties except when reasonably incidental to the fulfillment of judicial duties, as it would be in violation of the principle of the separation of powers. Thus, the stark issue before this Court is whether the Commissioner of Land Registration may only be investigated by the Supreme Court, in view of the conferment upon him by the Statutes heretofore mentioned (Rep. Act 1151 and Appropriation Laws) of the rank and privileges of a Judge of the Court of First Instance. First to militate against petitioner's stand is the fact that section 67 of the Judiciary Act providing for investigation, suspension or removal of Judges, specifically recites that "No District Judge shall be separated or removed from office by the President of the Philippines unless sufficient cause shall exist in the judgment of the Supreme Court . . ." and it is nowhere claimed, much less shown, that the Commissioner of Land Registration is a District Judge, or in fact a member of the Judiciary at all. In the second place, petitioner's theory that the grant of "privileges of a Judge of First Instance" includes by implication the right to be investigated only by the Supreme Court and to be suspended or removed upon its recommendation, would necessarily result in the same right being possessed by a variety of executive officials upon whom the Legislature had indiscriminately conferred the same privileges. These favoured officers include (a) the Judicial Superintendent of the Department of Justice (Judiciary Act, sec. 42); (b) the

The Lawphil Project - Arellano Law Foundation

G.R. No. L-28790

April 29, 1968

ANTONIO H. NOBLEJAS, as Commissioner of Land Registration, petitioner, vs. CLAUDIO TEEHANKEE, as Secretary of Justice, and RAFAEL M. SALAS, as Executive Secretary, respondents. Leandro Sevilla, Ramon C. Aquino and Lino M. Patajo for petitioner. Claudio Teehankee for and in his own behalf as respondent. REYES, J.B.L., Actg. C.J.: Petition for a writ of prohibition with preliminary injunction to restrain the Secretary of Justice from investigating the official actuations of the Commissioner of Land Registration, and to declare inoperative his suspension by the Executive Secretary pending investigation. The facts are not in dispute. Petitioner Antonio H. Noblejas is the duly appointed, confirmed and qualified Commissioner of Land Registration, a position created by Republic Act No. 1151. By the terms of section 2 of said Act, the said Commissioner is declared "entitled to the same compensation, emoluments and privileges as those of a Judge of the Court of First Instance." The appropriation laws (Rep. Acts 4642, 4856 and 5170) in the item setting forth the salary of said officer, use the following expression: 1. One Land Registration Commissioner with the rank and privileges of district judge P19,000.00. On March 7, 1968, respondent Secretary of Justice coursed to the petitioner a letter requiring him to explain in writing not later than March 9, 1968 why no disciplinary action should be taken against petitioner for "approving or

Assistant Solicitors General, seven in number (Rep. Act No. 4360); (c) the City Fiscal of Quezon City (R.A. No. 4495); (d) the City Fiscal of Manila (R. A. No. 4631) and (e) the Securities and Exchange Commissioner (R. A. No. 5050, s. 2). To adopt petitioner's theory, therefore, would mean placing upon the Supreme Court the duty of investigating and disciplining all these officials, whose functions are plainly executive, and the consequent curtailment by mere implication from the Legislative grant, of the President's power to discipline and remove administrative officials who are presidential appointees, and which the Constitution expressly placed under the President's supervision and control (Constitution, Art. VII, sec. 10[i]). Incidentally, petitioner's stand would also lead to the conclusion that the Solicitor General, another appointee of the President, could not be removed by the latter, since the Appropriation Acts confer upon the Solicitor General the rank and privileges of a Justice of the Court of Appeals, and these Justices are only removable by the Legislature, through the process of impeachment (Judiciary Act, sec. 24, par. 2). In our opinion, such unusual corollaries could not have been intended by the Legislature when it granted these executive officials the rank and privileges of Judges of First Instance. This conclusion gains strength when account is taken of the fact that in the case of the Judges of the Court of Agrarian Relations and those of the Court of Tax Appeals, the organic statutes of said bodies (Republic Act 1267, as amended by Act 1409; Rep. Act No. 1125) expressly provide that they are to be removed from office for the same causes and in the same manner provided by law for Judges of First Instance", or "members of the judiciary of appellate rank". The same is true of Judges of the Court of Agrarian Relations (Comm. Act No. 103) and of the Commissioner of Public Service (Public Service Act, Sec. 3). It is thereby shown that where the legislative design is to make the suspension or removal procedure prescribed for Judges of First Instance applicable to other officers, provision to that effect is made in plain and unequivocal language. But the more fundamental objection to the stand of petitioner Noblejas is that, if the Legislature had really intended to include in the general grant of "privileges" or "rank and privileges of Judges of the Court of First Instance" the right to be investigated by the Supreme Court, and to be suspended or removed only upon recommendation of that Court, then such grant of privileges would be unconstitutional, since it would violate the fundamental doctrine of separation of powers, by charging this court with the administrative function of supervisory control over executive officials, and simultaneously reducing pro tanto the control of the Chief Executive over such officials. Justice Cardozo ruled in In re Richardson et al., Connolly vs. Scudder (247 N. Y. 401, 160 N. E. 655), saying: There is no inherent power in the Executive or Legislature to charge the judiciary with administrative functions except when reasonably incidental to the fulfillment of judicial duties.

The United States Supreme Court said in Federal Radio Commission vs. General Electric Co., et al., 281 U.S. 469, 74 Law. Ed., 972, But this court cannot be invested with jurisdiction of that character, whether for purposes of review or otherwise. It was brought into being by the judiciary article of the Constitution, is invested with judicial power only and can have no jurisdiction other than of cases and controversies falling within the classes enumerated in that article. It cannot give decisions which are merely advisory; nor can it exercise or participate in the exercise of functions which are essentially legislative or administrative. Keller v. Potomac Electric Power Co., supra (261 U.S. 444, 67 L. ed. 736, 43 Sup. Ct. Rep. 445) and cases cited; Postum Cereal Co. vs. California Fig Nut Co. supra (272 U.S. 700, 701, 71 L. ed. 481, 47 Sup. Ct. Rep. 284); Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 74, 71 L. ed. 541, 544, 47 Sup. Ct. Rep. 282; Willing v. Chicago Auditorium Asso. 277 U.S. 274, 289, 72 L. ed. 880, 884, 48 Sup. Ct. Rep. 507; Ex parte Bakelite Corp. 279 U.S. 438, 449, 73 L. ed. 789, 793, 49 Sup. Ct. Rep. 411. (Federal Radio Commission v. General Electric Company, 281 U.S. 469, 74 L. ed. 972.) (Emphasis supplied.) In this spirit, it has been held that the Supreme Court of the Philippines and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administration of judicial functions; and a law requiring the Supreme Court to arbitrate disputes between public utilities was pronounced void in Manila Electric Co. vs. Pasay Transportation Co. (57 Phil. 600).1wph1.t Petitioner Noblejas seeks to differentiate his case from that of other executive officials by claiming that under Section 4 of Republic Act No. 1151, he is endowed with judicial functions. The section invoked runs as follows: Sec. 4. Reference of doubtful matters to Commissioner of Land Registration. When the Register of Deeds is in doubt with regard to the proper step to be taken or memorandum to be made in pursuance of any deed, mortgage, or other instrument presented to him for registration, or where any party in interest does not agree with the Register of Deeds with reference to any such matter, the question shall be submitted to the Commissioner of Land Registration either upon the certification of the Register of Deeds, stating the question upon which he is in doubt, or upon the suggestion in writing by the party in interest; and thereupon the Commissioner, after consideration of the matter shown by the records certified to him, and in case of registered lands, after notice to the parties and hearing, shall enter an order prescribing the step to be taken or memorandum to be made. His decision in such cases shall be conclusive and binding upon all Registers of Deeds: Provided, further, That, when a party in interest disagrees with the ruling or resolution of the Commissioner and the issue involves a question of law, said decision may be appealed to the

Supreme Court within thirty days from and after receipt of the notice thereof. Serious doubt may well be entertained as to whether the resolution of a consulta by a Register of Deeds is a judicial function, as contrasted with administrative process. It will be noted that by specific provision of the section, the decision of the Land Registration Commissioner "shall be conclusive and binding upon all Registers of Deeds" alone, and not upon other parties. This limitation1 in effect identifies the resolutions of the Land Registration Commissioner with those of any other bureau director, whose resolutions or orders bind his subordinates alone. That the Commissioner's resolutions are appealable does not prove that they are not administrative; any bureau director's ruling is likewise appealable to the corresponding department head. But even granting that the resolution of consultas by the Register of Deeds should constitute a judicial (or more properly quasi judicial) function, analysis of the powers and duties of the Land Registration Commissioner under Republic Act No. 1151, sections 3 and 4, will show that the resolution of consultas are but a minimal portion of his administrative or executive functions and merely incidental to the latter. Conformably to the well-known principle of statutory construction that statutes should be given, whenever possible, a meaning that will not bring them in conflict with the Constitution,2 We are constrained to rule that the grant by Republic Act 1151 to the Commissioner of Land Registration of the "same privileges as those of a Judge of the Court of First Instance" did not include, and was not intended to include, the right to demand investigation by the Supreme Court, and to be suspended or removed only upon that Court's recommendation; for otherwise, the said grant of privileges would be violative of the Constitution and be null and void. Consequently, the investigation and suspension of the aforenamed Commissioner pursuant to sections 32 and 34 of the Civil Service Law (R. A. 2260) are neither abuses of discretion nor acts in excess of jurisdiction. WHEREFORE, the writs of prohibition and injunction applied for are denied, and the petition is ordered dismissed. No costs. Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. 1wph1.t Concepcion, C.J., is on leave. Footnotes
1That

vs. Evangelista, 100 Phil. 683.

A.M. No. 198-J May 31, 1971 PAZ M. GARCIA, complainant, vs. HON. CATALINO MACARAIG, JR., respondent. RESOLUTION BARREDO, J.: Administrative complaint filed by one Paz M. Garcia against the Honorable Catalino Macaraig, Jr., formerly Judge of the Court of First Instance of Laguna, Branch VI, now Undersecretary of Justice, in his former capacity as judge, for alleged "dishonesty, violation of his oath of office as judge ... gross incompetence, violation of Republic Act 296 or the Judiciary Act of 1948, as amended, (particularly) Sections 5, 55 and 58 thereof, committed (allegedly) as follows: 2. That from July 1, 1970 up to February 28, 1971 inclusive, as such incumbent Judge, respondent herein, has not submitted his monthly reports containing the number of cases filed, disposed of, decided and/or resolved, the number of cases pending decisions for one month, two months to over three months, together with the title, number, number of hours of court session held a day, etc., as evidenced by the certificate issued by Hon. Eulalio D. Pichay, Judicial Superintendent, Dept. of Justice, copy of which is hereto attached as Annex "A", Item No. 1, in violation of Circular No. 10 of the Dept. of Justice dated February 6, 1952, copy of which is hereto attached as Annex "B"; 3. That he has not submitted his certificate of service (New Judicial Form No. 86, Revised 1966) from July to December, 1970 and from January to February, 1971 inclusive as evidenced by the certificate issued by Judge Pichay, Judicial Superintendent, Dept. of Justice Annex "A", Item No. 2 thereof; 4. That as incumbent Judge of Branch VI, Court of First Instance of Laguna and San Pablo and knowing fully well that he has never performed his official duties or discharged the duties appertaining to his office, he has collected and was paid his salaries from July to December, 1970 and from January to February 1971 as evidenced by the certificate issued by the cashier Mrs. Santos of the Department of Justice hereto attached as Annex "C" and the certificate of Mr. Pichay Annex "A", last paragraph thereof, aggravated by his repeated failure

did not exist when formerly consultas were resolved by the fourth branch of the Court of First Instance of Manila. (Cf. Adm. Code. sec. 200).
2Teehankee

vs. Rovira, 75 Phil. 634; People vs. Zeta, 98 Phil. 147; Alba

to submit the certificate of service in flagrant violation of action 5 of the Judiciary Act of 1948 as amended which provides as follows: ... District judges, judges of City Courts, and municipal Judges shall certify on their application for leave, and upon salary vouchers presented by them for payment, or upon the payrolls upon which their salaries are paid, that all special proceedings, applications, petitions, motions, and all civil and criminal cases which have been under submission for decision or determination for a period of ninety days or more have been determined and decided on or before the date of making the certificate and ... no salary shall be paid without such certificate' (Emphasis supplied). 5. That his deliberate failure to submit the monthly reports from July to December, 1970 and from January, 1971 to February, 1971 stating therein the number of hours of session that the Court holds daily, the accomplishments of the Court constitutes a clear violation of Sections 55 and 58 of the Judiciary Act of 1948, as amended. 6. That by his deliberate violation of his Oath of Office as a District Judge of the Court of First Instance of Laguna and San Pablo, Branch VI he has manifested such moral bankruptcy as to deny his fitness to perform or discharge official duties in the administration of justice. 7. That on June 29, 1970, respondent Judge wrote to the Honorable Secretary of Justice informing him that he was entering upon the performance of his duties, which letter of his reads in full: 'I have the honor to inform you that I am entering upon the performance of the duties of the office of Judge of the Court of First Instance of Laguna and San Pablo City (Branch VI) today, June 29, 1970.' That such actuation of deliberately telling a deliberate falsehood aggravates his moral bankruptcy incompatible to the requirements of the highest degree of honesty, integrity and good moral character appertaining to holding the position of Judge in the administration of justice. Upon being so required, in due time, respondent filed an answer alleging pertinently that: THE FACTS

Respondent took his oath as Judge of the Court of First Instance of Laguna and San Pablo City with station at Calamba on June 29, 1970. The court, being one of the 112 newly created CFI branches, had to be organized from scratch. After consultations with the officials of the province of Laguna, the municipality of Calamba and the Department of Justice, respondent decided to accept the offer of the Calamba Municipal Government to supply the space for the courtroom and offices of the court; to utilize the financial assistance promised by the Laguna provincial government for the purchase of the necessary supplies and materials; and to rely on the national government for the equipment needed by the court (Under Section 190 of the Revised Administrative Code, all these items must be furnished by the provincial government. The provincial officials of Laguna, however, informed the respondent that the province was not in a position to do so). As to the space requirements of the court, the Municipal Mayor of Calamba assured the respondent that the court could be accommodated in the west wing of the Calamba municipal building as soon as the office of the municipal treasurer and his personnel are transferred to another location. When the projected transfer of the municipal treasurer's office was about to be effected, the treasurer and several municipal councilors objected. The municipal mayor then requested the respondent to look over some of the office spaces for rent in Calamba, with the commitment that the municipal government will shoulder the payment of the rentals. Respondent's first choice was the second floor of the Republic Bank branch in Calamba, but the negotiations failed when the owner of the building refused to reduce the rent to P300 a month. The next suitable space selected by respondent was the second floor of the Laguna Development Bank. After a month's negotiations, the municipality finally signed a lease agreement with the owner on October 26, 1970. Another month passed before the municipal government could release the amount necessary for the improvements to convert the space that was rented, which was a big hall without partitions, into a courtroom and offices for the personnel of the court and for the assistant provincial fiscal. Thereafter, upon respondent's representations, the provincial government appropriated the amount of P5,000 for the purchase of the supplies and materials needed by the court. Early in December, 1970 respondent also placed his order for the necessary equipment with the Property Officer of the Department of Justice but, unfortunately, the appropriation for the equipment of courts of first instance was released only on December 23, 1970 and the procurement of the equipment chargeable against this allotment is still under way (please see enclosed certification of the Financial Officer of the Department of Justice marked Annex "A"). "When respondent realized that it would be sometime before he could actually preside over his court, he applied for an extended leave (during the 16 years he had worked in the Department of Justice, respondent had, due to pressure of duties, never gone on

extended leave, resulting in his forfeiting all the leave benefits he had earned beyond the maximum ten months allowed by the law). The Secretary of Justice, however, prevailed upon respondent to forego his leave and instead to assist him, without being extended a formal detail, whenever respondent was not busy attending to the needs of his court. "Charges Have No Basis -- . "Complainant has charged respondent with dishonesty, violation of his oath of office, grave incompetence and violation of Sections 5, 55 and 58 of the Judiciary Act. "It is respectfully submitted that -- . "A. Respondent's inability to perform his judicial duties under the circumstances mentioned above does not constitute incompetence. Respondent was like every lawyer who gets his first appointment to the bench, eager to assume his judicial duties and rid himself of the stigma of being 'a judge without a sala', but forces and circumstances beyond his control prevented him from discharging his judicial duties. "B. Respondent's collection of salaries as judge does not constitute dishonesty because aside from the time, effort and money he spent in organizing the CFI at Calamba, he worked in the Department of Justice (please see enclosed certification of Undersecretary of Justice Guillermo S. Santos marked Annex 'B'). Indeed, even if respondent did no more than exert efforts to organize his court, he could, as other judges have done, have collected his salaries as judge without being guilty of dishonesty. "Incidentally, when respondent took his oath as CFI judge which position then carried a salary of P19,000 per annum, he automatically ceased to be Chief of the Technical Staff of the Department of Justice and Member of the Board of Pardons and Parole, positions from which he was receiving P16,200 and P8,000 per annum, respectively. Also, in anticipation of the judicial duties which he was about to assume, respondent took a leave of absence from his professorial lecturer's duties in the U.P. College of Law where he was receiving approximately P600 a month. "C. Sections 5, 55 and 58 of the Judiciary Act and Circular No. 10 dated February 6, 1952 of the Department of Justice are not applicable to a Judge not actually discharging his judicial duties. "The Department of Justice has never required judges who have not actually started, to perform their judicial duties to comply with the abovementioned statutory-provisions and circular (please see enclosed certification of Judge Eulalio D. Pichay, Judicial Superintendent, marked Annex 'C'). "Moreover, a reading of these sections and circular makes evident the folly of requiring a judge who has not entered into the Performance of his judicial duties to comply with them. Taking Section 5, how could a judge who has not started to discharge his judicial duties certify that 'all special proceedings, applications, petitions, motions, and all civil and criminal cases, which have been under submission for decision or determination for a period of ninety days or more have been determined and decided on or before the date

of making the certificate.' And bow could such a judge hold court in his place of permanent station as required by Section 55; observe the hours of daily sessions of the court as prescribed by Section 58; and render the reports required by Circular No. 10 when his court is not yet in physical existence Clearly, therefore, Sections 5, 55 and 58 of the Judiciary Act and Circular No. 10 cannot apply to such a judge." . In view of the nature of the allegations of complainant and respondent in their respective complaint and answer and considering, in the light thereof, that the material facts are more or less undisputed, the Court feels that this case can be disposed of without any further proceeding. After mature study and deliberation, the Court is convinced that the complaint must be dismissed. To begin with, We cannot discern any tinge of dishonesty in the actuations for the respondent complained of. As We see it, the situation is not exactly as complainant has attempted to portray it. Complainant's theory is that respondent collected or received salaries as judge when in fact he has never acted as such, since the date he took his oath up to the filing of the complaint. In the sense that respondent has not yet performed any judicial function, it may be admitted that respondent has not really performed the duties of judge. What is lost sight of, however, is that after taking his oath and formally assuming this position as judge, respondent had a perfect right to earn the salary of a judge even in the extreme supposition that he did not perform any judicial function for he could, while preparing himself for his new job or for any good reason, take a leave, as in fact, he had planned to do, were it not for the request of the Secretary of Justice for him to forego the idea and, instead, help the Department in whatever way possible which would not, it must be presumed, impair his position as a judge. This is more so, when, as in this case, the government officials or officers in duty bound to furnish him the necessary place and facilities for his court and the performance of his functions have failed to provide him therewith without any fault on his part. That respondent took it upon himself to personally work for early action on the part of the corresponding officials in this direction and, in his spare time, made himself available to the Department of Justice to assist the Secretary, what with his vast experience, having worked therein for sixteen years, is, far from being dishonesty, to his credit. In the circumstances, it was certainly not improper that he rendered some kind of service to the government, since he was receiving salaries, while being unable to perform his regular duties as judge without any fault on, his part. As to whether or not in doing so he, placed in jeopardy the independence of the judiciary and failed to act according to the correct norm of conduct which a judge should observe vis-a-vis service to the other departments of the government will be discussed a non. At this juncture, the only point We settle is that complainant's theory of dishonesty cannot hold water. Admittedly respondent has not prepared and submitted any of the reports of accomplishments and status of cases in his sala which are usually required of judges under existing laws as well as the corresponding circulars of the Department of Justice. The reason is simple. He has not yet started performing any judicial functions. None of those laws and circulars apply to him for all of them contemplate judges who are actually holding trials and hearings and making decisions and others. On the other hand, respondent Could not be blamed for taking his oath as he did, for he had a valid confirmed appointment in his favor. In other words, he simply made himself available for the purpose for which he was appointed. That he could not actually hold office in the court to which he was appointed was not of his making. The other officials in charge of

providing him therewith seem to have been caught unprepared and have not had enough time to have it read. Conceivably, under the law, with the permission of this Court, respondent could have been assigned to another court pending all these preparations, but that is something within the initiative control of the Secretary of Justice and nor of the respondent. Of course, none of these is to be taken as meaning that this Court looks with favor at the practice of long standing to be sure, of judges being detailed in the Department of Justice to assist the Secretary even if it were only in connection with his work of exercising administrative authority over the courts. The line between what a judge may do and what he may not do in collaborating or working with other offices or officers under the other great departments of the government must always be kept clear and jealously observed, least the principle of separation of powers on which our government rests by mandate of the people thru the Constitution be gradually eroded by practices purportedly motivated by good intentions in the interest of the public service. The fundamental advantages and the necessity of the independence of said three departments from each other, limited only by the specific constitutional precepts a check and balance between and among them, have long been acknowledged as more paramount than the serving of any temporary or passing governmental conveniences or exigencies. It is thus of grave importance to the judiciary under our present constitutional scheme of government that no judge or even the lowest court in this Republic should place himself in a position where his actuations on matters submitted to him for action or resolution would be subject to review and prior approval and, worst still, reversal, before they can have legal effect, by any authority other than the Court of Appeals or this Supreme Court, as the case may be. Needless to say, this Court feels very strongly that, it is best that this practice is discontinued. WHEREFORE, the herein administrative complaint is hereby dismissed. Let a copy of this resolution be furnished the Secretary of Justice. Concepcion, Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Villamor, JJ., concur. Castro and Teekankee, JJ., took no part. Fernando, J., concurs fully and in addition submits a brief separate opinion. Makasiar, J., concurs with the opinion Mr. Justice Fernando. FERNANDO, J., concurring: . I join the rest of my brethren in yielding concurrence to the ably-written opinion of Justice Barredo. Respondent Judge clearly should be exculpated of the charge filed against him. What is more the opinion of the Court possesses the merit of setting forth in forthright and unequivocal language the disapproval of the practice hitherto followed of having members of the judiciary perform non-judicial functions. There is no doubt to my mind of its repugnancy to the fundamental concept of separation of power. It is to that aspect of the question as well as what, to my mind, is the doubtful constitutionality of allowing the Secretary of Justice to exercise supervisory authority over lower court judges that this brief concurring opinion addresses itself.

1. The doctrine of separation of powers, a basic concept under our Constitution, 1 embodies the principle of a tripartite division of governmental authority entrusted to Congress, the President, and the Supreme Court as well as such inferior courts as may be created by law. Three departments of government are thus provided for, the legislative vested with the lawmaking function, the executive with the enforcement of what has been thus enacted, and the judiciary with the administration of justice, deciding cases according to law. 2 The reason for such a doctrine is to assure liberty, no one branch being enabled to arrogate unto itself the whole power to govern and thus in a position to impose its unfettered will. If it were so, the rights of the individual could with impunity be disregarded; he could be placed at its mercy. The three departments are coordinate and co-equal, each having exclusive cognizance of matters within its jurisdiction and supreme in its own sphere. That is to guarantee independence, no interference being allowed on matters left to the exclusive concern of each. Much less is control by only one of the three departments of any or both of the others permissible. 3 . It is to be admitted that the realities of government preclude the independence of each of the departments from the other being absolute. This is so especially as between the legislative and executive departments. What the former enacts, the latter implements. To paraphrase Roosevelt, the letter of the Constitution requires a separation, but the impulse of a common purpose compels cooperation. It could be carried to the extent of such powers being blended, without undue danger to liberty as proved by countries having the parliamentary forms of government. This is especially so in England and in Switzerland, where the tradition of freedom possesses strength and durability. It does not admit of doubt, however, that of the three branches, the judiciary is entrusted with a function the most sensitive and delicate. It passes upon controversies and disputes not only between citizens but between citizens and government, the limits of whose authority must be respected. In a system like ours, every exercise of governmental competence, whether coming from the President or from the lowest official, may be challenged in court in an appropriate legal proceeding. This is an aspect of the theory of cheeks and balance likewise provided for in the Constitution. 4 It is thus indispensable that judicial independence should, by all means, be made secure. Not only that. The feeling that judges are not in any way subject to the influence of the executive and legislative branches must be pervasive; otherwise, there would be loss of confidence in the administration of justice. With that gone, the rule of law is placed in dire peril. Nor is the force, to my mind, of the preceeding observation blunted by the recognition that there could be no precise delineation of the respective competence alloted the legislative, the executive and the judicial departments under the Constitution. Necessarily, overlapping and interlacing of functions could not entirely be avoided. For as observed by Justice Holmes in his famous dissent in a case of Philippine origin, "The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other... When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on." 6 Further on, he added: "It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires." 7 .

2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor, the practical demands of government precluding its doctrine application, it cannot justify a member of the judiciary being requited to assume a position or perform a duty non-judicial in character. That is implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of respect for the judiciary can be satisfied with nothing less. It is opposite to quote from an opinion of Justice Cardozo, as Chief Judge of "the New York Court of Appeals," when that Court nullified a section of a New York statute that would vest in a justice of its Supreme Court the power to investigate at the instance of its governor. His opinion explained why: "He is made the delegate Of the Governor in aid of an executive act, the removal of a public officer... At the word of command he is give over the work of judging, and set himself to other work, the work of probing and advising. His findings when made will have none of the authority of a judgment. To borrow Bacon's phrase, they will not 'give the rule or sentence.' They will not be preliminary or ancillary to any rule or sentence to be pronounced by the judiciary in any of its branches. They will be mere advice to the Governor, who may adopt them, or modify them, or reject them altogether. From the beginnings of our history, the Principle has been enforced that there is no inherent power in Executive or Legislature to charge the judiciary with administrative functions except when reasonably incidental to the fulfillment of judicial duties... The exigencies of government have made it necessary to relax as merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers. Elasticity has not meant that what is of the essence of the judicial function may be destroyed by turning the power to decide into a pallid opportunity to consult and recommend ..." 9. Our holding today has been foreshadowed in Noblejas v. Teehankee," 10 a 1968 decision, Justice J.B.L. Reyes, who penned the opinion, first referred to the above Richardson decision as well as to Federal Radio Commission v. General Electric Co.",. It went on to state: "In this spirit, it has been held that the Supreme Court of the Philippines and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected with the administration of judicial functions; and a law requiring the Supreme Court to arbitrate disputes between public utilities was pronounced void in Manila Electric Co. vs. Pasay Transportation Co. (57 Phil. 600)." 12 It is clear from the above Noblejas decision that even prior to the motion there was a commitment to the principle that a member of the judiciary cannot be asked non-judicial functions. For in Manila Electric Co. vs. Pasay Transportation Co., 13 mentioned therein, Justice Malcolm , speaking for this Court, was quite explicit. Thus Supreme Court and its members cannot be required to exercise any power any trust or to assume any duty not pertaining to or connected with the administering of judicial functions." 14 . 3. Nonetheless, as now decided, respondent Judge Macaraig should not be held in any wise accountable. No taint of bad faith can be attached to his conduct. What he was required to do was in accordance with the practice herefore followed by the Department

of Justice. He is, under the statute in force, under the administrative supervision of its head. Nor can the good faith of Secretary of Justice Abad Santos be impugned. What was done by him was likewise in accordance with what previous secretaries of justice were accustomed to do. The root of the evil then is the statutory authority of the Department of Justice over Court of first instance and other inferior courts.15 While a distinction could be made between the performance of judicial functions which in no way could be interfered with by the Department and the task of administration which is executive in character, still the conferment of such competence to a department head, an alter ego of the President, is, to my mind, only unwise but of doubtful constitutionality. For in issuing administrative rules and regulations over matters deemed non-judicial, they may trench upon the discretion of judges which should be exercised according to their conscience alone. What is more, the influence that the Secretary has over them, is magnified. It is already unavoidable under our scheme of government that they court his goodwill; their promotion may at times depend on it. With this grant of authority, the assertion of independence becomes even more difficult. It is thus objectionable in principle and pernicious in operation. That certainly is not the way to reduce to the minimum any participation of the executive in judicial affairs arising from the power to appoint. As it is, even when the government as the adverse party in criminal cases, tax suits, and other litigations is in the right, a favorable decision from the lower courts could be looked upon with suspicion. The judiciary must not only be independent; it must appear to be so. The presence in the statute books of such power of administrative oversight then, is, to my mind, anomalous. More specifically, were it not for such power granted the department head, respondent Judge in this case could not have been called upon to assist the Secretary of Justice. Considering that the Constitutional Convention is about to meet, it is to be hoped that it be made clear that the judiciary is to be totally freed from any supervisory authority of an executive department.

Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. 88-7-1861-RTC October 5, 1988 IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE PROVINCIAL COMMITTEE ON JUSTICE.

PADILLA, J.: On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent this Court a letter which reads:

Hon. Marcelo Fernan Chief Justice of the Supreme Court of the Philippines Manila Thru channels: Hon. Leo Medialdea Court Administrator Supreme Court of the Philippines Sir: By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial Governor of Ilocos Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the Ilocos Norte Provincial Committee on Justice created pursuant to Presidential Executive Order No. 856 of 12 December 1986, as amended by Executive Order No. 326 of June 1, 1988. In consonance with Executive Order RF6-04, the Honorable Provincial Governor of Ilocos Norte issued my appointment as a member of the Committee. For your ready reference, I am enclosing herewith machine copies of Executive Order RF6-04 and the appointment. Before I may accept the appointment and enter in the discharge of the powers and duties of the position as member of the Ilocos (Norte) Provincial Committee on Justice, may I have the honor to request for the issuance by the Honorable Supreme Court of a Resolution, as follows: (1) Authorizing me to accept the appointment and to as assume and discharge the powers and duties attached to the said position; (2) Considering my membership in the Committee as neither violative of the Independence of the Judiciary nor a violation of Section 12, Article VIII, or of the second paragraph of Section .7, Article IX (B), both of the Constitution, and will not in any way amount to an abandonment of my present position as Executive Judge of Branch XIX, Regional Trial Court, First Judicial Region, and as a member of the Judiciary; and (3) Consider my membership in the said Committee as part of the primary functions of an Executive Judge. May I please be favored soon by your action on this request.

Very respectfully yours, (Sgd) RODOLFO U. MANZANO Judge An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on Justice are created to insure the speedy disposition of cases of detainees, particularly those involving the poor and indigent ones, thus alleviating jail congestion and improving local jail conditions. Among the functions of the Committee are 3.3 Receive complaints against any apprehending officer, jail warden, final or judge who may be found to have committed abuses in the discharge of his duties and refer the same to proper authority for appropriate action; 3.5 Recommend revision of any law or regulation which is believed prejudicial to the proper administration of criminal justice. It is evident that such Provincial/City Committees on Justice perform administrative functions. Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for; their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29 September 1978, Blacks Law Dictionary). Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that Section 6. Supervision.The Provincial/City Committees on Justice shall be under the supervision of the Secretary of justice Quarterly accomplishment reports shall be submitted to the Office of the Secretary of Justice. Under the Constitution, the members of the Supreme Court and other courts established by law shag not be designated to any agency performing quasi- judicial or administrative functions (Section 12, Art. VIII, Constitution). Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which discharges a administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request. Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA 106) ably sets forth: 2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor, the practical demands of

government precluding its doctrinaire application, it cannot justify a member of the judiciary being required to assume a position or perform a duty non-judicial in character. That is implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of respect for the judiciary can be satisfied with nothing less. This declaration does not mean that RTC Judges should adopt an attitude of monastic insensibility or unbecoming indifference to Province/City Committee on Justice. As incumbent RTC Judges, they form part of the structure of government. Their integrity and performance in the adjudication of cases contribute to the solidity of such structure. As public officials, they are trustees of an orderly society. Even as non-members of Provincial/City Committees on Justice, RTC judges should render assistance to said Committees to help promote the laudable purposes for which they exist, but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties. ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED. SO ORDERED. Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur. Separate Opinions GUTIERREZ, JR., J., dissenting: The Constitution prohibits the designation of members of the judiciary to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution.). Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges can confidently refrain from participating in the work of any administrative agency which adjudicates disputes and controversies involving the rights of parties within its jurisdiction. The issue involved in this case is where to draw the line insofar as administrative functions are concerned. "Administrative functions" as used in Section 12 refers to the executive machinery of government and the performance by that machinery of governmental acts. It refers to the management actions, determinations, and orders of executive officials as they administer the laws and try to make government effective. There is an element of positive action, of supervision or control.

Applying the definition given in the opinion of the majority which reads: Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc. v. Tapucar, S.P07599-R, 29 September 1978, Black's Law Dictionary. ) we can readily see that membership in the Provincial or City Committee on Justice would not involve any regulation or control over the conduct and affairs of individuals. Neither will the Committee on Justice promulgate rules and regulations nor exercise any quasilegislative functions. Its work is purely advisory. I do not see anything wrong in a member of the judiciary joining any study group which concentrates on the administration of justice as long as the group merely deliberates on problems involving the speedy disposition of cases particularly those involving the poor and needy litigants or detainees, pools the expertise and experiences of the members, and limits itself to recommendations which may be adopted or rejected by those who have the power to legislate or administer the particular function involved in their implementation. We who are Judges cannot operate in a vacuum or in a tight little world of our own. The administration of justice cannot be pigeonholed into neat compartments with Judges, Fiscals, Police, Wardens, and various other officials concerned erecting water-tight barriers against one another and limiting our interaction to timidly peeping over these unnecessary and impractical barriers into one another's work, all the while blaming the Constitution for such a quixotic and unreal interpretation. As intimated in the majority opinion, we should not be monastically insensible or indifferent to projects or movements cogitating on possible solutions to our common problems of justice and afterwards forwarding their findings to the people, public or private, where these findings would do the most good. The majority opinion suggests the giving of assistance by Judges to the work of the Committees on Justice. Assistance is a vague term. Can Judges be designated as observers? Advisers? Consultants? Is it the act of being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If judges cannot become members, why should they be allowed or even encouraged to assist these Committees The line drawn by the majority is vague and unrealistic. The constitutional provision is intended to shield Judges from participating in activities which may compromise their independence or hamper their work. Studying problems involving the administration of justice and arriving at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive or legislative functions or into matters which are none of its concerns. Much less is it an encroachment of the other departments into judicial affairs. As the visible representation of the law and of justice in his community, the Judge should not shy away from public activities which do not interfere with the prompt and proper performance of his office, but which, in fact, enhance his effectiveness as a Judge. He

cannot stop mingling in civic intercourse or shut himself into solitary seclusion. The Committees on Justice will also be immensely benefited by the presence of Judges in the study groups. The work of the Committees is quite important. Let it not be said that the Judges the officials most concerned with justice have hesitated to join in such a worthy undertaking because of a strained interpretation of their functions. It is well for this Court to be generally cautious, conservative or restrictive when it interprets provisions of the Constitution or statutes vesting us with powers or delimit the exercise of our jurisdiction and functions. However, we should not overdo it. The basic principles of constitutional interpretation apply as well to the provisions which define or circumscribe our powers and functions as they do to the provisions governing the other dependents of government. The Court should not adopt a strained construction which impairs its own efficiency to meet the responsibilities brought about by the changing times and conditions of society. The familiar quotation is apt in this case constitutional provisions are interpreted by the spirit which vivifies and not by the letter which killeth. I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U. Fernan C.J., Narvasa and Grio-Aquino, JJ., join in Gutierrez dissent. MELENCIO-HERRERA, J., dissenting: I hesitate to give such a restrictive and impractical interpretation to Section 12, Article VIII of the 1987 Constitution, and thus join the dissent of Justice Gutierrez, Jr. What I believe is contemplated by the Constitutional prohibition is designation, for example, to such quasi-judicial bodies as the SEC, or administrative agencies like the BIR. Those are full-time positions involving running the affairs of government, which will interfere with the discharge of judicial functions or totally remove a Judge/Justice from the performance of his regular functions. The Committee on Justice cannot be likened to such an administrative agency of government. It is a study group with recommendatory functions. In fact, membership by members of the Bench in said committee is called for by reason of the primary functions of their position. The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856, need not be a cause for concern. That supervision is confined to Committee work and will by no means extend to the performance of judicial functions per se. Manzano to become a member of the Ilocos Norte Provincial Committee on Justice.

GUTIERREZ, JR., J., dissenting: The Constitution prohibits the designation of members of the judiciary to any agency performing quasi-judicial or administrative functions (Section 12, Article VIII, Constitution.). Insofar as the term "quasi-judicial" is concerned, it has a fairly clear meaning and Judges can confidently refrain from participating in the work of any administrative agency which adjudicates disputes and controversies involving the rights of parties within its jurisdiction. The issue involved in this case is where to draw the line insofar as administrative functions are concerned. "Administrative functions" as used in Section 12 refers to the executive machinery of government and the performance by that machinery of governmental acts. It refers to the management actions, determinations, and orders of executive officials as they administer the laws and try to make government effective. There is an element of positive action, of supervision or control. Applying the definition given in the opinion of the majority which reads: Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc. v. Tapucar, S.P07599-R, 29 September 1978, Black's Law Dictionary. ) we can readily see that membership in the Provincial or City Committee on Justice would not involve any regulation or control over the conduct and affairs of individuals. Neither will the Committee on Justice promulgate rules and regulations nor exercise any quasilegislative functions. Its work is purely advisory. I do not see anything wrong in a member of the judiciary joining any study group which concentrates on the administration of justice as long as the group merely deliberates on problems involving the speedy disposition of cases particularly those involving the poor and needy litigants or detainees, pools the expertise and experiences of the members, and limits itself to recommendations which may be adopted or rejected by those who have the power to legislate or administer the particular function involved in their implementation. We who are Judges cannot operate in a vacuum or in a tight little world of our own. The administration of justice cannot be pigeonholed into neat compartments with Judges, Fiscals, Police, Wardens, and various other officials concerned erecting water-tight barriers against one another and limiting our interaction to timidly peeping over these unnecessary and impractical barriers into one another's work, all the while blaming the Constitution for such a quixotic and unreal interpretation. As intimated in the majority opinion, we should not be monastically insensible or indifferent to projects or movements cogitating on possible solutions to our common problems of justice and

Separate Opinions

afterwards forwarding their findings to the people, public or private, where these findings would do the most good. The majority opinion suggests the giving of assistance by Judges to the work of the Committees on Justice. Assistance is a vague term. Can Judges be designated as observers? Advisers? Consultants? Is it the act of being "designated" which is proscribed by the Constitution or is it participation in the prohibited functions? If judges cannot become members, why should they be allowed or even encouraged to assist these Committees The line drawn by the majority is vague and unrealistic. The constitutional provision is intended to shield Judges from participating in activities which may compromise their independence or hamper their work. Studying problems involving the administration of justice and arriving at purely recommendatory solutions do not in any way involve the encroachment of. the judiciary into executive or legislative functions or into matters which are none of its concerns. Much less is it an encroachment of the other departments into judicial affairs. As the visible representation of the law and of justice in his community, the Judge should not shy away from public activities which do not interfere with the prompt and proper performance of his office, but which, in fact, enhance his effectiveness as a Judge. He cannot stop mingling in civic intercourse or shut himself into solitary seclusion. The Committees on Justice will also be immensely benefited by the presence of Judges in the study groups. The work of the Committees is quite important. Let it not be said that the Judges the officials most concerned with justice have hesitated to join in such a worthy undertaking because of a strained interpretation of their functions. It is well for this Court to be generally cautious, conservative or restrictive when it interprets provisions of the Constitution or statutes vesting us with powers or delimit the exercise of our jurisdiction and functions. However, we should not overdo it. The basic principles of constitutional interpretation apply as well to the provisions which define or circumscribe our powers and functions as they do to the provisions governing the other dependents of government. The Court should not adopt a strained construction which impairs its own efficiency to meet the responsibilities brought about by the changing times and conditions of society. The familiar quotation is apt in this case constitutional provisions are interpreted by the spirit which vivifies and not by the letter which killeth. I, therefore, dissent from the majority opinion and vote to allow Judge Rodolfo U. Manzano to become a member of the Ilocos Norte Provincial Committee on Justice. Fernan C.J., Narvasa and Grio-Aquino, JJ., join in Gutierrez dissent. MELENCIO-HERRERA, J., dissenting: I hesitate to give such a restrictive and impractical interpretation to Section 12, Article VIII of the 1987 Constitution, and thus join the dissent of Justice Gutierrez, Jr.

What I believe is contemplated by the Constitutional prohibition is designation, for example, to such quasi-judicial bodies as the SEC, or administrative agencies like the BIR. Those are full-time positions involving running the affairs of government, which will interfere with the discharge of judicial functions or totally remove a Judge/Justice from the performance of his regular functions. The Committee on Justice cannot be likened to such an administrative agency of government. It is a study group with recommendatory functions. In fact, membership by members of the Bench in said committee is called for by reason of the primary functions of their position. The matter of supervision by the Secretary of Justice provided for under E.O. No. 326 amending E.O. No. 856, need not be a cause for concern. That supervision is confined to Committee work and will by no means extend to the performance of judicial functions per se.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-51122 March 25, 1982 EUGENIO J. PUYAT, ERWIN L. CHIONGBIAN, EDGARDO P. REYES, ANTONIO G. PUYAT, JAIME R. BLANCO, RAFAEL R. RECTO and REYNALDO L. LARDIZABAL, petitioners, vs. HON. SIXTO T. J. DE GUZMAN, JR., as Associate Commissioner of the Securities & Exchange Commission, EUSTAQUIO T. C. ACERO, R. G. VILDZIUS, ENRIQUE M. BELO, MANUEL G. ABELLO, SERVILLANO DOLINA, JUANITO MERCADO and ESTANISLAO A. FERNANDEZ, respondents.

MELENCIO-HERRERA, J.: This suit for certiorari and Prohibition with Preliminary Injunction is poised against the Order of respondent Associate Commissioner of the Securities and Exchange Commission (SEC) granting Assemblyman Estanislao A. Fernandez leave to intervene in SEC Case No. 1747. A question of novel import is in issue. For its resolution, the following dates and allegations are being given and made:

a) May 14,1979. An election for the eleven Directors of the International Pipe Industries Corporation (IPI) a private corporation, was held. Those in charge ruled that the following were elected as Directors: Eugenio J. Puyat Eustaquio T.C. Acero Erwin L. Chiongbian R. G. Vildzius Edgardo P. Reyes Enrique M. Belo Antonio G. Puyat Servillano Dolina Jaime R. Blanco Juanito Mercado Rafael R. Recto Those named on the left list may be called the Puyat Group; those on the right, the Acero Group. Thus, the Puyat Group would be in control of the Board and of the management of IPI. b) May 25, 1979. The Acero Group instituted at the Securities and Exchange Commission (SEC) quo warranto proceedings, docketed as Case No. 1747 (the SEC Case), questioning the election of May 14, 1979. The Acero Group claimed that the stockholders' votes were not properly counted. c) May 25-31, 1979. The Puyat Group claims that at conferences of the parties with respondent SEC Commissioner de Guzman, Justice Estanislao A. Fernandez, then a member of the Interim Batasang Pambansa, orally entered his appearance as counsel for respondent Acero to which the Puyat Group objected on Constitutional grounds. Section 11, Article VIII, of the 1973 Constitution, then in force, provided that no Assemblyman could "appear as counsel before ... any administrative body", and SEC was an administrative body. Incidentally, the same prohibition was maintained by the April 7, 1981 plebiscite. The cited Constitutional prohibition being clear, Assemblyman Fernandez did not continue his appearance for respondent Acero. d) May 31, 1979. When the SEC Case was called, it turned out that: (i) On May 15, 1979, Assemblyman Estanislao A. Fernandez had purchased from Augusto A. Morales ten (10) shares of stock of IPI for P200.00 upon request of respondent Acero to qualify him to run for election as a Director. (ii) The deed of sale, however, was notarized only on May 30, 1979 and was sought to be registered on said date. (iii) On May 31, 1979, the day following the notarization of Assemblyman Fernandez' purchase, the latter had filed an Urgent Motion for Intervention in the SEC Case as the owner of ten (10) IPI shares alleging legal interest in the matter in litigation. e) July 17, 1979. The SEC granted leave to intervene on the basis of Atty. Fernandez' ownership of the said ten shares. 1 It is this Order allowing intervention that precipitated the instant petition for certiorari and Prohibition with Preliminary Injunction.

f) July 3, 1979. Edgardo P. Reyes instituted a case before the Court of First Instance of Rizal (Pasig), Branch XXI, against N.V. Verenigde Bueinzenfabrieken Excelsior De Maas and respondent Eustaquio T. C. Acero and others, to annul the sale of Excelsior's shares in the IPI to respondent Acero (CC No. 33739). In that case, Assemblyman Fernandez appeared as counsel for defendant Excelsior In L-51928, we ruled that Assemblyman Fernandez could not appear as counsel in a case originally filed with a Court of First Instance as in such situation the Court would be one "without appellate jurisdiction." On September 4, 1979, the Court en banc issued a temporary Restraining Order enjoining respondent SEC Associate Commissioner from allowing the participation as an intervenor, of respondent Assemblyman Estanislao Fernandez at the proceedings in the SEC Case. The Solicitor General, in his Comment for respondent Commissioner, supports the stand of the latter in allowing intervention. The Court en banc, on November 6, 1979, resolved to consider the Comment as an Answer to the Petition. The issue which will be resolved is whether or not Assemblyman Fernandez, as a then stockholder of IPI may intervene in the SEC Case without violating Section 11, Article VIII of the Constitution, which, as amended, now reads: SEC. 11. No Member of the Batasang Pambansa shall appear as counsel before any court without appellate jurisdiction. before any court in any civil case wherein the Government, or any subdivision, agency, or instrumentality thereof is the adverse party, or in any criminal case wherein any officer or employee of the Government is accused of an offense committed in relation to his office, or before any administrative body. Neither shall he, directly or indirectly be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation, during his term of office. He shall not accept employment to intervene in any cause or matter where he may be called to act on account of his office. (Emphasis supplied)

What really has to be resolved is whether or not, in intervening in the SEC Case, Assemblyman Fernandez is, in effect, appearing as counsel, albeit indirectly, before an administrative body in contravention of the Constitutional provision. Ordinarily, by virtue of the Motion for Intervention, Assemblyman Fernandez cannot be said to be appearing as counsel. Ostensibly, he is not appearing on behalf of another, although he is joining the cause of the private respondents. His appearance could theoretically be for the protection of his ownership of ten (10) shares of IPI in respect of the matter in litigation and not for the protection of the petitioners nor respondents who have their respective capable and respected counsel. However, certain salient circumstances militate against the intervention of Assemblyman Fernandez in the SEC Case. He had acquired a mere P200.00 worth of stock in IPI, representing ten shares out of 262,843 outstanding shares. He acquired them "after the fact" that is, on May 30, 1979, after the contested election of Directors on May 14, 1979, after the quo warranto suit had been filed on May 25, 1979 before SEC and one day before the scheduled hearing of the case before the SEC on May 31, 1979. And what is more, before he moved to intervene, he had signified his intention to appear as counsel for respondent Eustaquio T. C. Acero, 2 but which was objected to by petitioners. Realizing, perhaps, the validity of the objection, he decided, instead, to "intervene" on the ground of legal interest in the matter under litigation. And it maybe noted that in the case filed before the Rizal Court of First Instance (L-51928), he appeared as counsel for defendant Excelsior, co-defendant of respondent Acero therein. Under those facts and circumstances, we are constrained to find that there has been an indirect "appearance as counsel before ... an administrative body" and, in our opinion, that is a circumvention of the Constitutional prohibition. The "intervention" was an afterthought to enable him to appear actively in the proceedings in some other capacity. To believe the avowed purpose, that is, to enable him eventually to vote and to be elected as Director in the event of an unfavorable outcome of the SEC Case would be pure naivete. He would still appear as counsel indirectly. A ruling upholding the "intervention" would make the constitutional provision ineffective. All an Assemblyman need do, if he wants to influence an administrative body is to acquire a minimal participation in the "interest" of the client and then "intervene" in the proceedings. That which the Constitution directly prohibits may not be done by indirection or by a general legislative act which is intended to accomplish the objects specifically or impliedly prohibited. 3 In brief, we hold that the intervention of Assemblyman Fernandez in SEC. No. 1747 falls within the ambit of the prohibition contained in Section 11, Article VIII of the Constitution. Our resolution of this case should not be construed as, absent the question of the constitutional prohibition against members of the Batasan, allowing any stockholder, or any number of stockholders, in a corporation to intervene in any controversy before the SEC relating to intra-corporate matters. A resolution of that question is not necessary in this case.

WHEREFORE, respondent Commissioner's Order granting Atty. Estanislao A. Fernandez leave to intervene in SEC Case No. 1747 is hereby reversed and set aside. The temporary Restraining Order heretofore issued is hereby made permanent. No costs. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro, Ericta, Plana and Escolin, JJ., concur. Aquino, J., took no part. Barredo, J., I reserve my vote.

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 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. 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 APM02 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: (millimeters) Asbestos cement Pipe (ACP) Cast Iron Pipe (CIP) Polyethylene Pipe (PE) Steel Pipe (SP) Fiberglass Pressure Pipe (FPP) 100 mm to 600 mm 50 and larger 50 mm to 250 mm 400 mm and larger 300 mm and larger 8

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 Project APM-01 was Three Hundred

Polyvinyl Chloride Pipe (DIP) 50 mm and larger

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 pre-qualification 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 pre-qualification documents, only fourteen (14) contractors submitted corresponding applications to the PBAC-CSTE. On 20 November 1991, the PBAC-CSTE, after evaluating the applications for prequalification, 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 APM-02 proposed contracts. The major factors considered in the 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.

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: BID PRICE P267,345,574.00 P268,815,729.00 P278,205,457.00 20 while the three lowest bidders for Project APM-02 included: BID PRICE P219,574,538.00 P233,533,537.00 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 UmirayAngat 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 PBAC-CSTE 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. 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-092-0750) 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;

AG/TITAN/WILPER

MA/GREEN JADE (Joint Venture)

Z & CO., INC.

ELES CONST. CORP./JA

ORP.

EQUIPMENT, INC. (EEI)

Z & CO., INC.

ELES CONST. CORP./JA

ORP.

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 Pre-qualification, 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 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 ORDERS. V 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 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. 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 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 (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 governmentowned 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 illgotten 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 expresses, as follows:

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;

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

(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 APM-01. 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 allencompassing 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, 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 standards for fiberglass pipe but neglect the same AWWA standards for steel pipes. The MWSS management under Administrator Sison disregarded the AWWA specifications by increasing 1mm thickness for steel pipes. 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 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 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 Pipes-Contractors/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 PBACCSTE 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 Fact-Finding 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.

A. Establishing the validity of the Bid of the Lowest Bidder The deficiencies with respect to the bidding requirements enumerated in Section 4.2.1, page 4 were discussed to wit: 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 IB20-7 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-complying. The lowest complying becomes the bid submitted by the second lowest Bidder, F.F. CRUZ, & CO., INC. as discussed above. 40 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 know-how 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 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. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Francisco, J., took no part. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 116801 April 6, 1995 GLORIA G. LASTIMOSA, First Assistant Provincial Prosecutor of Cebu, petitioner, vs. HONORABLE OMBUDSMAN CONRADO VASQUEZ, HONORABLE ARTURO C. MOJICA, DEPUTY OMBUDSMAN FOR THE VISAYAS, and HONORABLE FRANKLIN DRILON, SECRETARY OF JUSTICE, and UNDERSECRETARY OF JUSTICE RAMON J. LIWAG, respondents.

Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas, respondent Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E. Kintanar for the "filing of appropriate information with the Regional Trial Court of Danao City, . . ." 3 The case was eventually assigned to herein petitioner, First Assistant Provincial Prosecutor Gloria G. Lastimosa. It appears that petitioner conducted a preliminary investigation on the basis of which she found that only acts of lasciviousness had been committed. 4 With the approval of Provincial Prosecutor Kintanar, she filed on July 4, 1994 an information for acts of lasciviousness against Mayor Ilustrisimo with the Municipal Circuit Trial Court of Santa Fe. 5 In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22, 1994, Deputy Ombudsman Mojica inquired as to any action taken on the previous referral of the case, more specifically the directive of the Ombudsman to charge Mayor Ilustrisimo with attempted rape. 6 As no case for attempted rape had been filed by the Prosecutor's Office, Deputy Ombudsman Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and petitioner Lastimosa to show cause why they should not be punished for contempt for "refusing and failing to obey the lawful directives" of the Office of the Ombudsman. 7 For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial Prosecutor were given until August 3, 1994 within which to submit their answer. 8 An answer 9 was timely filed by them and hearings were thereupon conducted. It appears that earlier, on July 22, 1994, two cases had been filed against the two prosecutors with the Office of the Ombudsman for Visayas by Julian Menchavez, a resident of Santa Fe, Cebu. One was an administrative complaint for violation of Republic Act No. 6713 and P.D. No. 807 (the Civil Service Law) 10 and another one was a criminal complaint for violation of 3(e) of Republic Act No. 3019 and Art. 208 of the Revised Penal Code. 11 The complaints were based on the alleged refusal of petitioner and Kintanar to obey the orders of the Ombudsman to charge Mayor Ilustrisimo with attempted rape. In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for Visayas Mojica issued an order on August 15, 1994, placing petitioner Gloria G. Lastimosa and Provincial Prosecutor Oliveros E. Kintanar under preventive suspension for a period of six (6) months, 12 pursuant to Rule III, 9 of the Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 7), in relation to 24 of R.A. No. 6770. The order was approved by Ombudsman Conrado M. Vasquez on August 16, 1994 and on August 18, 1994 Acting Secretary of Justice Ramon J. Liwag designated Eduardo Concepcion of Region VII as Acting Provincial Prosecutor of Cebu.

MENDOZA, J.: This case requires us to determine the extent to which the Ombudsman may call upon government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Petitioner Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu. Because she and the Provincial Prosecutor refused, or at any rate failed, to file a criminal charge as ordered by the Ombudsman, an administrative complaint for grave misconduct, insubordination, gross neglect of duty and maliciously refraining from prosecuting crime was filed against her and the Provincial Prosecutor and a charge for indirect contempt was brought against them, both in the Office of the Ombudsman. In the meantime the two were placed under preventive suspension. This is a petition for certiorari and prohibition filed by petitioner to set aside the orders of the Ombudsman with respect to the two proceedings. The background of this case is as follows: On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed a criminal complaint for frustrated rape and an administrative complaint for immoral acts, abuse of authority and grave misconduct against the Municipal Mayor of Santa Fe, Rogelio Ilustrisimo. 1 The cases were filed with the Office of the Ombudsman-Visayas where they were docketed as OMBVIS-(CRIM)-93-0140 and OMB-VIS-(ADM)-93-0036, respectively. The complaint was assigned to a graft investigation officer who, after an investigation, found no prima facie evidence and accordingly recommended the dismissal of the complaint. After reviewing the matter, however, the Ombudsman, Hon. Conrado Vasquez, disapproved the recommendation and instead directed that Mayor Ilustrisimo be charged with attempted rape in the Regional Trial Court. 2

On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued orders 13 in the two cases, directing petitioner and Provincial Prosecutor Kintanar to submit their counter affidavits and controverting evidence. On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition for certiorari and prohibition to set aside the following orders of the Office of the Ombudsman and Department of Justice: (a) Letter dated May 17, 1994 of Deputy Ombudsman for Visayas Arturo C. Mojica and related orders, referring to the Office of the Cebu Provincial Prosecutor the records of OMBVIS-CRIM-93-0140, entitled Jessica V. Dayon vs. Mayor Rogelio Ilustrisimo, "for filing of the appropriate action (for Attempted Rape) with the Regional Trial Court of Danao City. (b) Order dated July 27, 1994 of Deputy Ombudsman Mojica and related orders directing petitioner and Cebu Provincial Prosecutor Oliveros E. Kintanar to explain in writing within three (3) days from receipt why they should not be punished for indirect Contempt of the Office of the Ombudsman "for refusing and failing . . . to file the appropriate Information for Attempted Rape against Mayor Rogelio Ilustrisimo. (c) The 1st Indorsement dated August 9, 1994 of Acting Justice Secretary Ramon J. Liwag, ordering the Office of the Provincial Prosecutor to comply with the directive of the Office of the Ombudsman that a charge for attempted rape be filed against respondent Mayor Ilustrisimo in recognition of the authority of said Office. (d) Order dated August 15, 1994 of Deputy Ombudsman Mojica, duly approved by Ombudsman Conrado Vasquez, and related orders in OMB-VIS-(ADM)-94-0189, entitled Julian Menchavez vs. Oliveros Kintanar and Gloria Lastimosa, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension for a period of six (6) months, without pay. (e) The 1st Indorsement dated August 18, 1994 of Acting Justice Secretary Liwag directing Assistant Regional State Prosecutor Eduardo O. Concepcion (Region VII) to implement the letter dated August 15, 1994 of Ombudsman Vasquez, together with the Order dated August 15, 1994, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension.

(f) Department Order No. 259 issued by Acting Secretary Liwag on August 18, 1994, designating Assistant Regional State Prosecutor Concepcion Acting Provincial Prosecutor of Cebu. Petitioner raises a number of issues which will be discussed not necessarily in the order they are stated in the petition. I. The pivotal question in this case is whether the Office of the Ombudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against Mayor Ilustrisimo. Lastimosa claims that the Office of the Ombudsman and the prosecutor's office have concurrent authority to investigate public officers or employees and that when the former first took cognizance of the case against Mayor Ilustrisimo, it did so to the exclusion of the latter. It then became the duty of the Ombudsman's office, according to petitioner, to finish the preliminary investigation by filing the information in court instead of asking the Office of the Provincial Prosecutor to do so. Petitioner contends that the preparation and filing of the information were part and parcel of the preliminary investigation assumed by the Office of the Ombudsman and the filing of information in court could not be delegated by it to the Office of the Provincial Prosecutor. Petitioner defends her actuations in conducting a preliminary investigation as having been made necessary by the insistence of the Ombudsman to delegate the filing of the case to her office. In any event, petitioner contends, the Office of the Ombudsman has no jurisdiction over the case against the mayor because the crime involved (rape) was not committed in relation to a public office. For this reason it is argued that the Office of the Ombudsman has no authority to place her and Provincial Prosecutor Kintanar under preventive suspension for refusing to follow his orders and to cite them for indirect contempt for such refusal. Petitioner's contention has no merit. The office of the Ombudsman has the power to "investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient." 14 This power has been held to include the investigation and prosecution of any crime committed by a public official regardless of whether the acts or omissions complained of are related to, or connected with, or arise from, the performance of his official duty 15 It is enough that the act or omission was committed by a public official. Hence, the crime of rape, when committed by a public official like a municipal mayor, is within the power of the Ombudsman to investigate and prosecute. In the existence of his power, the Ombudsman is authorized to call on prosecutors for assistance. 31 of the Ombudsman Act of 1989 (R.A. No. 6770) provides:

Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office and/or designate of deputize any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him as herein provided shall be under his supervision and control. (Emphasis added) It was on the basis of this provision that Ombudsman Conrado Vasquez and Deputy Ombudsman Arturo C. Mojica ordered the Provincial Prosecutor of Cebu to file an information for attempted rape against Mayor Rogelio Ilustrismo. It does not matter that the Office of the Provincial Prosecutor had already conducted the preliminary investigation and all that remained to be done was for the Office of the Provincial Prosecutor to file the corresponding case in court. Even if the preliminary investigation had been given over to the Provincial Prosecutor to conduct, his determination of the nature of the offense to be charged would still be subject to the approval of the Office of the Ombudsman. This is because under 31 of the Ombudsman's Act, when a prosecutor is deputized, he comes under the "supervision and control" of the Ombudsman which means that he is subject to the power of the Ombudsman to direct, review, approve, reverse or modify his (prosecutor's) decision. 16 Petitioner cannot legally act on her own and refuse to prepare and file the information as directed by the Ombudsman. II. The records show that despite repeated orders of the Ombudsman, petitioner refused to file an information for attempted rape against Mayor Ilustrisimo, insisting that after investigating the complaint in the case she found that he had committed only acts of lasciviousness. 15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to "punish for contempt, in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein." There is no merit in the argument that petitioner and Provincial Prosecutor Kintanar cannot be held liable for contempt because their refusal arose out of an administrative, rather than judicial, proceeding before the Office of the Ombudsman. As petitioner herself says in another context, the preliminary investigation of a case, of which the filing of an information is a part, is quasi judicial in character. Whether petitioner's refusal to follow the Ombudsman's orders constitutes a defiance, disobedience or resistance of a lawful process, order or command of the Ombudsman thus making her liable for indirect contempt under Rule 71, 3 of the Rules of Court is for respondents to determine after appropriate hearing.

At this point it is important only to note the existence of the contempt power of the Ombudsman as a means of enforcing his lawful orders. III. Neither is there any doubt as to the power of the Ombudsman to discipline petitioner should it be found that she is guilty of grave misconduct, insubordination and/or neglect of duty, nor of the Ombudsman's power to place her in the meantime under preventive suspension. The pertinent provisions of the Ombudsman Act of 1989 state: 21. Officials Subject To Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. 22. Preventive Suspension. The Ombudsman or his Deputy may suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. A. Petitioner contends that her suspension is invalid because the order was issued without giving her and Provincial Prosecutor Kintanar the opportunity to refute the charges against them and because, at any rate, the evidence against them is not strong as required by 24. The contention is without merit. Prior notice and hearing is a not required, such suspension not being a penalty but only a preliminary step in an administrative investigation. As held in Nera v. Garcia: 17

In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the opportunity to prove his innocence. (Emphasis added). It is true that, under 24 of the Ombudsman's Act, to justify the preventive suspension of a public official, the evidence against him should be strong, and any of the following circumstances is present: (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. As held in Buenaseda v. Flavier, 18 however, whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. A preliminary hearing as in bail petitions in cases involving capital offenses is not required. In rejecting a similar argument as that made by petitioner in this case, this Court said in that case: The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. . . . 19 In this case, respondent Deputy Ombudsman Mojica justified the preventive suspension of petitioner and Provincial Prosecutor Kintanar on the following grounds: A careful assessment of the facts and circumstances of the herein cases and the records pertaining thereto against respondents [Provincial Prosecutor Kintanar and herein petitioner] clearly leads to the conclusion that the evidence on record of guilt is strong and the charges involved offenses

of grave misconduct, gross neglect of duty and dishonesty which will warrant respondents [Provincial Prosecutor Kintanar and herein petitioner] removal from the service. Moreover, considering the unabashed attitude of respondents in openly announcing various false pretexts and alibis to justify their stubborn disregard for the lawful directives of the Ombudsman as their official position in their pleadings filed in OMB-VIS-0-94-0478 and in print and broadcast media, the probability is strong that public service more particularly in the prosecution of cases referred by the Office of the Ombudsman to the Cebu Provincial Prosecutor's office will be disrupted and prejudiced and the records of said cases even be tampered with if respondents [Provincial Prosecutor Kintanar and herein petitioner] are allowed to stay in the Cebu Provincial Prosecutor's Office during the pendency of these proceedings. Indeed respondent Deputy Ombudsman Mojica had personal knowledge of the facts justifying the preventive suspension of petitioner and the Provincial Prosecutor since the acts alleged in the administrative complaint against them were done in the course of their official transaction with the Office of the Ombudsman. The administrative complaint against petitioner and Provincial Prosecutor Kintanar was filed in connection with their designation as deputies of the ombudsman in the prosecution of a criminal case against Mayor Rogelio Ilustrisimo. Respondent Deputy Ombudsman did not have to go far to verify the matters alleged in determine whether the evidence of guilt of petitioner and Provincial Prosecutor was strong for the purpose of placing them under preventive suspension. Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end that the proper prosecution of that case may not be hampered. 20 In addition, because the charges against the two prosecutors involve grave misconduct, insubordination and neglect of duty and these charges, if proven, can lead to a dismissal from public office, the Ombudsman was justified in ordering their preventive suspension. B. Petitioner questions her preventive suspension for six (6) months without pay and contends that it should only be for ninety (90) days on the basis of cases decided by this Court. Petitioner is in error. She is referring to cases where the law is either silent or expressly limits the period of suspension to ninety (90) days. With respect to the first situation, we ruled in the case of Gonzaga v. Sandiganbayan 21 that To the extent that there may be cases of indefinite suspension imposed either under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the

guidance of all concerned that this Court set forth the rules on the period of preventive suspension under the aforementioned laws, as follows: 1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a maximum period of ninety (90) days, from issuances thereof, and this applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act. 2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or employees whose positions are embraced in the Civil Service, as provided under Sections 3 and 4 of said Pres. Decree 807, and shall be limited to a maximum period of ninety (90) days from issuance, except where there is delay in the disposition of the case, which is due to the fault, negligence or petition of the respondent, in which case the period of delay shall both be counted in computing the period of suspension herein stated; provided that if the person suspended is a presidential appointee, the continuance of his suspension shall be for a reasonable time as the circumstances of the case may warrant. On the other hand, petitioner and the Provincial Prosecutor were placed under preventive suspension pursuant to 24 of the Ombudsman Act which expressly provides that "the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay." Their preventive suspension for six (6) months without pay is thus according to law. C. Nor is there merit in petitioner's claim that the contempt charge should first be resolved before any action in the administrative complaint case can be taken because the contempt case involves a prejudicial question. There is simply no basis for this contention. The two cases arose out of the same act or omission and may proceed hand in hand, or one can be heard before the other. Whatever order is followed will not really matter. WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive Suspension is DENIED. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Francisco, JJ., concur. Romero, J., is on leave.

Separate Opinions

REGALADO, J., concurring: I concur and welcome this opportunity to make some observations on the matter of the power of the Ombudsman to preventively suspend petitioner for six (6) months without pay, and which petitioner assails in the case at bar. It would, of course, be a handy expedient to just refer petitioner to the provisions of Section 24 of Republic Act No. 6770 which expressly grants that authority to respondent Ombudsman. Conveniently, we would merely need to remind petitioner that for this Court to limit such authority to suspend to a lesser period would, in effect, be constitutive of judicial legislation. But I will go a little further by essaying the rationale for such conferment of a more extended authority to the Ombudsman on the issue of preventive suspension, vis-a-vis the provisions on preventive suspension in other enactments, and thereby dispel lingering doubts or misgivings thereon. It is true that the Civil Service Decree allows a maximum preventive suspension of only ninety (90) days. 1 However, a comparison of the grounds therefor 2 with those provided for in the Ombudsman Act 3 will readily show that there is in the latter the added requirement that the evidence of guilt is strong and the additional ground that "the respondent's continued stay in office may prejudice the case filed against him." Further, in the aforecited Section 41 of the Civil Service Decree, preventive suspension may be imposed on the mere simple showing that the charge involves dishonesty, oppression or grave misconduct, neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service: whereas in Section 24 of Republic Act No. 6770, it is required that such charges must be supported by strong evidence of guilt in order to justify preventive suspension. On the other hand, the still shorter period of sixty (60) days prescribed in the Local Government Code of 1991 4 as the maximum period for the preventive suspension of local elective officials is justifiable and deemed sufficient not only because the respondent involved is elected by the people, but more precisely because such preventive suspension may only be ordered "after the issues are joined." That means that before the order of suspension is issued, all the preliminary requirements and exchanges had been completed and the respondent had already filed his counter-affidavits to the affidavits of the

complainant and the latter's witnesses. At that stage, the case is ready for resolution if the parties would not opt for a formal hearing. The preparatory procedures before such stage is reached undoubtedly necessitate and consume a lot of time. Yet, it will be noted that those preliminary steps are included in the case of the period of preventive suspension ordered even before issues are joined, as in preventive suspension by the Ombudsman pursuant to the aforecited Section 24 of Republic Act No. 6770. They conceivably include the service of the subpoena or order for the respondent to file his counter-affidavits, the usual resort to motions for extension of time to comply with the same, the improvident recourse to the Supreme Court to suspend, annul or otherwise delay the proceedings, as well as the filing and resolution of motions to dismiss or for a bill of particulars or for the inhibition of the investigating officer, the denial of which motions is often also brought all over again to this Court on petitions for certiorari. An illustration of how the proceedings can be delayed by such procedural maneuvers is afforded by the case of Buenaseda, et al. vs. Flavier, et al., 5 the decision in which was ultimately promulgated by this Court on September 21, 1993. The petitioners therein questioned through repeated resourceful submissions the order of preventive suspension issued by the Ombudsman on January 7, 1992 and it took more than twenty (20) months before said order could eventually be reviewed on the merits and finally sustained by the Supreme Court. That is not all. Even after the formal hearing is scheduled, respondents can easily resort to the same dilatory tactics usually employed by an accused in regular court trials in criminal actions. Such stratagems can obviously result in the continued occupancy by the respondent of his office and, in the language of the law, could "prejudice the case filed against him." The longer period of six (6) months for preventive suspension under Republic Act No. 6770 was evidently induced by a desire to more meaningfully emphasize and implement the authority of the Office of the Ombudsman over public officials and employees in order to serve as a deterrent against illegal, unjust, improper and inefficient conduct on their part. As the agency mandated by the Constitution to undertake such task, it was invested with the corresponding authority to enable it to perform its mission. This intention is easily deducible from the pertinent constitutional provisions creating said office and from the express provisions of Republic Act No. 6770. Significantly, it is the only body authorized to investigate even officials removable by impeachment. 6 For purposes of the present case, therefore, and specifically on the issue subject of this concurring opinion, it would be advisable to recall what we said in Buenaseda, to wit: The purpose of RA No. 6770 is to give the Ombudsman such powers as he may need to perform efficiently the task

committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with procedure, should be given such interpretation that will effectuate the purposes and objective of the Constitution. Any interpretation that will hamper the work of the Ombudsman should be avoided. A statute granting powers to an agency created by the Constitution should be liberally construed for the advancement of the purposes and objectives for Department of which it was created (Cf. Department of Public Utilities v. Arkansas Louisiana Gas, Co., 200 Ark. 983, 142 S.W. [2d] 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E. 438 [1934]). On the foregoing considerations, which are much a matter of judicial and legislative experience, it is puerile for petitioner to impugn the expanded authority of preventive suspension as now granted by law to the Ombudsman. In fact, in certain situations, the maximum allowable period may even prove too short to subserve the intended purpose of the law.

Separate Opinions REGALADO, J., concurring: I concur and welcome this opportunity to make some observations on the matter of the power of the Ombudsman to preventively suspend petitioner for six (6) months without pay, and which petitioner assails in the case at bar. It would, of course, be a handy expedient to just refer petitioner to the provisions of Section 24 of Republic Act No. 6770 which expressly grants that authority to respondent Ombudsman. Conveniently, we would merely need to remind petitioner that for this Court to limit such authority to suspend to a lesser period would, in effect, be constitutive of judicial legislation. But I will go a little further by essaying the rationale for such conferment of a more extended authority to the Ombudsman on the issue of preventive suspension, vis-a-vis the provisions on preventive suspension in other enactments, and thereby dispel lingering doubts or misgivings thereon. It is true that the Civil Service Decree allows a maximum preventive suspension of only ninety (90) days. 1 However, a comparison of the grounds therefor 2 with those provided for in the Ombudsman Act 3 will readily show that there is in the latter the added requirement that the evidence of guilt is strong and the additional ground that "the respondent's continued stay in office may prejudice the case filed against him." Further, in the aforecited Section 41 of the Civil Service Decree, preventive suspension may be imposed on the mere simple

showing that the charge involves dishonesty, oppression or grave misconduct, neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service: whereas in Section 24 of Republic Act No. 6770, it is required that such charges must be supported by strong evidence of guilt in order to justify preventive suspension. On the other hand, the still shorter period of sixty (60) days prescribed in the Local Government Code of 1991 4 as the maximum period for the preventive suspension of local elective officials is justifiable and deemed sufficient not only because the respondent involved is elected by the people, but more precisely because such preventive suspension may only be ordered "after the issues are joined." That means that before the order of suspension is issued, all the preliminary requirements and exchanges had been completed and the respondent had already filed his counter-affidavits to the affidavits of the complainant and the latter's witnesses. At that stage, the case is ready for resolution if the parties would not opt for a formal hearing. The preparatory procedures before such stage is reached undoubtedly necessitate and consume a lot of time. Yet, it will be noted that those preliminary steps are included in the case of the period of preventive suspension ordered even before issues are joined, as in preventive suspension by the Ombudsman pursuant to the aforecited Section 24 of Republic Act No. 6770. They conceivably include the service of the subpoena or order for the respondent to file his counter-affidavits, the usual resort to motions for extension of time to comply with the same, the improvident recourse to the Supreme Court to suspend, annul or otherwise delay the proceedings, as well as the filing and resolution of motions to dismiss or for a bill of particulars or for the inhibition of the investigating officer, the denial of which motions is often also brought all over again to this Court on petitions for certiorari. An illustration of how the proceedings can be delayed by such procedural maneuvers is afforded by the case of Buenaseda, et al. vs. Flavier, et al., 5 the decision in which was ultimately promulgated by this Court on September 21, 1993. The petitioners therein questioned through repeated resourceful submissions the order of preventive suspension issued by the Ombudsman on January 7, 1992 and it took more than twenty (20) months before said order could eventually be reviewed on the merits and finally sustained by the Supreme Court. That is not all. Even after the formal hearing is scheduled, respondents can easily resort to the same dilatory tactics usually employed by an accused in regular court trials in criminal actions. Such stratagems can obviously result in the continued occupancy by the respondent of his office and, in the language of the law, could "prejudice the case filed against him." The longer period of six (6) months for preventive suspension under Republic Act No. 6770 was evidently induced by a desire to more meaningfully emphasize and implement the authority of the Office of the Ombudsman over

public officials and employees in order to serve as a deterrent against illegal, unjust, improper and inefficient conduct on their part. As the agency mandated by the Constitution to undertake such task, it was invested with the corresponding authority to enable it to perform its mission. This intention is easily deducible from the pertinent constitutional provisions creating said office and from the express provisions of Republic Act No. 6770. Significantly, it is the only body authorized to investigate even officials removable by impeachment. 6 For purposes of the present case, therefore, and specifically on the issue subject of this concurring opinion, it would be advisable to recall what we said in Buenaseda, to wit: The purpose of RA No. 6770 is to give the Ombudsman such powers as he may need to perform efficiently the task committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with procedure, should be given such interpretation that will effectuate the purposes and objective of the Constitution. Any interpretation that will hamper the work of the Ombudsman should be avoided. A statute granting powers to an agency created by the Constitution should be liberally construed for the advancement of the purposes and objectives for Department of which it was created (Cf. Department of Public Utilities v. Arkansas Louisiana Gas, Co., 200 Ark. 983, 142 S.W. [2d] 213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E. 438 [1934]). On the foregoing considerations, which are much a matter of judicial and legislative experience, it is puerile for petitioner to impugn the expanded authority of preventive suspension as now granted by law to the Ombudsman. In fact, in certain situations, the maximum allowable period may even prove too short to subserve the intended purpose of the law. ----------------------------------------------------------------------------------------------Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 118808 December 24, 1996 JUDGE ANA MARIA I. DOLALAS, EVELLYN K. OBIDO AND WILBERTO B. CARRIEDO, petitioners,

vs. THE HONORABLE OFFICE OF THE OMBUDSMAN-MINDANAO and BENJAMIN VILLARANTE, JR., respondents. RESOLUTION

issued against the Office of the Ombudsman-Mindanao commanding said office to desist from further proceeding with the case against the petitioners. A temporary restraining order was issued by this Court in a resolution dated May 23, 1995. Petitioner was basically being charged with "undue delay in the disposition of the said criminal case" filed before petitioner's court. The issue posed, therefore, in this petition is whether or not the Office of the Ombudsman may take cognizance of the complaint against petitioner for purposes of investigation and possible prosecution in accordance with its mandate under Section 13 (1) and (2) of Article XI of the 1987 Constitution 3 for alleged violation of the Anti-Graft and Corrupt Practices Act. 4 Petitioner-judge contends that the Office of the Ombudsman has no jurisdiction to initiate an investigation into the alleged "undue delay in the disposition of the case" as said charge relates to a judge's performance of her official duties over which the Supreme Court has administrative control and supervision, as mandated under section 6, Rule VIII of the 1987 Constitution. 5 Public respondent Ombudsman-Mindanao, however, contends that referral to the Supreme Court is not essential in this case as what will be investigated is not whether there was undue delay in the disposition of a simple criminal case for five years, which it admits is administrative in nature. It added that what is sought to be determined by the investigation is whether or not any undue delay in the disposition of the alarms and scandals case resulted in injury to private respondent through manifest partiality, evident bad faith or gross inexcusable negligence and/or undue advantage to any party, in violation of the Anti-Graft and Corrupt Practices Act. This Court agrees with petitioner-judge. The complaint against petitioner-judge before the Office of the Ombudsman is basically administrative in nature. In essence, petitioner-judge is being charged with having violated Rule 1.02, Canon 1 6 and Rule 3.05, Canon 3 7 of the Code of Judicial Conduct. It must be borne in mind that the resolution of the administrative charge of unduly delaying the disposition of the said criminal case involves the determination of whether, in resolving the alarms and scandals case, petitioner-judge acted in accordance with the guidelines provided in the Rules of Court and in the Administrative Circulars in pursuance of the ideals embodied in the Code of Judicial Conduct. Such is clearly an administrative matter. Unquestionably, this Court is mandated of the 1987 Constitution to assume under section 6, Article VIII of the 1987 Constitution to assume administrative supervision over all courts and the personnel thereof. This Court, in the case of Sanz Maceda v. Vasquez, 221 SCRA 464, held that: Article VIII, section 6 of the 1987 Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this power, it is

ROMERO, J.:p Under consideration is the petition for certiorari with prayer for preliminary injunction and/or restraining order dated January 16, 1995. Petitioners, Judge Ana Maria I. Dolalas, Evelyn K. Obido and Wilberto B. Carriedo Presiding Judge, Clerk of Court and Clerk II, respectively of the Municipal Circuit Trial Court of Kabasalan, Zamboanga del Sur, were charged "administratively" by private respondent Benjamin Villarante, Jr. for "miscarriage of justice, dishonesty, gross neglect of duty, unnecessary delay in the administration of justice and for failure to prosecute Criminal Case no. 5881 for an unreasonable length of time" before public respondent Office of the Ombudsman-Mindanao. The letter-complaint addressed to the Office of the Ombudsman-Mindanao dated July 6, 1994 arose out of said criminal case of alarms and scandals filed against private respondent by a police officer. Private respondent alleged that after submitting his counter-affidavit relative to the said criminal case before petitioner's court, there has been no pre-conference, arraignment or pre-trial held or conducted by petitioner judge. Private respondent claimed that the said criminal case was maliciously filed by one P/Sgt. Salutillo in connivance with petitioner judge in order to discourage the former from instituting a criminal complaint against said police officer's men for abuse of authority and police brutality with physical injury. 1 Private respondent also claimed that said criminal case filed against him has been unnecessarily delayed in that P/Sgt. Salutillo and petitioner-judge "totally failed to prosecute" their own malicious action within a reasonable length of time thus prejudicing the constitutional right of the former to an impartial investigation and a fair and speedy trial. Said criminal case against private respondent also held in abeyance his own complaint against the police officers allegedly to his prejudice. 2 On the basis of the letter-complaint filed by herein private respondent, Graft Investigation Officer I Melinda Alconsel Dayanghirang of public respondent Office of the Ombudsman-Mindanao directed petitioners to submit their respective counter-affidavits. Petitioners' motion to dismiss dated September 14, 1994 as well as their motion for reconsideration dated December 2, 1994 were denied by public respondent, hence the petition before this Court. In this petition, petitioners pray that for the preservation of their rights pending this proceeding, a preliminary injunction and/or restraining order be

only the Supreme Court that can oversee the judge's and court personnel's compliance with all laws, and take the proper administrative action against them if they commit any violation thereof. No Other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. Public respondent Ombudsman cannot justify its investigation of petitioner on the powers granted to it by the Constitution, for such a justification not only runs counter to the specific mandate of the Constitution granting supervisory powers to the Supreme Court over all courts and their personnel, but likewise undermines the independence of the judiciary. WHEREFORE, the petition is GRANTED. The Office of the OmbudsmanMindanao is DIRECTED to REFER the complaint filed by private respondent Benjamin Villarante, Jr. to this Court for appropriate action. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur. Vitug, J., is on leave.

de Tabacos de Filipinas. Appellee Compania General de Tabacos de Filipinas hereinafter referred to simply as Tabacalera filed this action in the Court of First Instance of Manila to recover from appellants, City of Manila and its Treasurer, Marcelino Sarmiento also hereinafter referred to as the City the sum of P15,280.00 allegedly overpaid by it as taxes on its wholesale and retail sales of liquor for the period from the third quarter of 1954 to the second quarter of 1957, inclusive, under Ordinances Nos. 3634, 3301, and 3816. Tabacalera, as a duly licensed first class wholesale and retail liquor dealer paid the City the fixed license fees prescribed by Ordinance No. 3358 for the years 1954 to 1957, inclusive, and, as a wholesale and retail dealer of general merchandise, it also paid the sales taxes required by Ordinances Nos. 3634, 3301, and 3816.1wph1.t In its sworn statements of wholesale, retail, and grocery sales of general merchandise from the third quarter of 1954 to the second quarter of 1957, inclusive, Tabacalera included its liquor sales of the same period, and it is not denied that of the taxes it paid on all its sales of general merchandise, the sum of P15,280.00 subject to the action represents the tax corresponding to the liquor sales aforesaid. Tabacalera's action for refund is based on the theory that, in connection with its liquor sales, it should pay the license fees prescribed by Ordinance No. 3358 but not the municipal sales taxes imposed by Ordinances Nos. 3634, 3301, and 3816; and since it already paid the license fees aforesaid, the sales taxes paid by it amounting to the sum of P15,208.00 under the three ordinances mentioned heretofore is an overpayment made by mistake, and therefore refundable. The City, on the other hand, contends that, for the permit issued to it granting proper authority to "conduct or engage in the sale of alcoholic beverages, or liquors" Tabacalera is subject to pay the license fees prescribed by Ordinance No. 3358, aside from the sales taxes imposed by Ordinances Nos. 3634, 3301, and 3816; that, even assuming that Tabacalera is not subject to the payment of the sales taxes prescribed by the said three ordinances as regards its liquor sales, it is not entitled to the refund demanded for the following reasons:. (a) The said amount was paid by the plaintiff voluntarily and without protest; (b) If at all the alleged overpayment was made by mistake, such mistake was one of law and arose from the plaintiff's neglect of duty; . (c) The said amount had been added by the plaintiff to the selling price of the liquor sold by it and passed to the consumers; and

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-16619 June 29, 1963

COMPAIA GENERAL DE TABACOS DE FILIPINAS, plaintiff-appellee, vs. CITY OF MANILA, ET AL., defendants-appellants. Ponce Enrile, Siguion Reyna, Montecillo and Belo for plaintiff-appellee. City Fiscal Hermogenes Concepcion, Jr. and Assistant City Fiscal M. T. Reyes for defendants-appellants. DIZON, J.: Appeal from the decision of the Court of First Instance of Manila ordering the City Treasurer of Manila to refund the sum of P15,280.00 to Compania General

(d) The said amount had been already expended by the defendant City for public improvements and essential services of the City government, the benefits of which are enjoyed, and being enjoyed by the plaintiff. It is admitted that as liquor dealer, Tabacalera paid annually the wholesale and retail liquor license fees under Ordinance No. 3358. In 1954, City Ordinance No. 3634, amending City Ordinance No. 3420, and City Ordinance No. 3816, amending City Ordinance No. 3301 were passed. By reason thereof, the City Treasurer issued the regulations marked Exhibit A, according to which, the term "general merchandise as used in said ordinances, includes all articles referred to in Chapter 1, Sections 123 to 148 of the National Internal Revenue Code. Of these, Sections 133-135 included liquor among the taxable articles. Pursuant to said regulations, Tabacalera included its sales of liquor in its sworn quarterly declaration submitted to the City Treasurer beginning from the third quarter of 1954 to the second quarter of 1957, with a total value of P722,501.09 and correspondingly paid a wholesaler's tax amounting to P13,688.00 and a retailer's tax amounting to P1,520.00, or a total of P15,208.00 the amount sought to be recovered. It appears that in the year 1954, the City, through its treasurer, addressed a letter to Messrs. Sycip, Gorres, Velayo and Co., an accounting firm, expressing the view that liquor dealers paying the annual wholesale and retail fixed tax under City Ordinance No. 3358 are not subject to the wholesale and retail dealers' taxes prescribed by City Ordinances Nos. 3634, 3301, and 3816. Upon learning of said opinion, appellee stopped including its sales of liquor in its quarterly sworn declarations submitted in accordance with the aforesaid City Ordinances Nos. 3634, 3301, and 3816, and on December 3, 1957, it addressed a letter to the City Treasurer demanding refund of the alleged overpayment. As the claim was disallowed, the present action was instituted. The term "tax" applies generally speaking to all kinds of exactions which become public funds. The term is often loosely used to include levies for revenue as well as levies for regulatory purposes. Thus license fees are commonly called taxes. Legally speaking, however, license fee is a legal concept quite distinct from tax; the former is imposed in the exercise of police power for purposes of regulation, while the latter is imposed under the taxing power for the purpose of raising revenues (MacQuillin, Municipal Corporations, Vol. 9, 3rd Edition, p. 26). Ordinance No. 3358 is clearly one that prescribes municipal license fees for the privilege to engage in the business of selling liquor or alcoholic beverages, having been enacted by the Municipal Board of Manila pursuant to its charter power to fix license fees on, and regulate, the sale of intoxicating liquors, whether imported or locally manufactured. (Section 18 [p], Republic Act 409, as amended). The license fees imposed by it are essentially for purposes of regulation, and are justified, considering that the sale of intoxicating liquor is, potentially at least, harmful to public health and morals, and must be subject to supervision or regulation by the state and by cities and municipalities

authorized to act in the premises. (MacQuillin, supra, p. 445.) On the other hand, it is clear that Ordinances Nos. 3634, 3301, and 3816 impose taxes on the sales of general merchandise, wholesale or retail, and are revenue measures enacted by the Municipal Board of Manila by virtue of its power to tax dealers for the sale of such merchandise. (Section 10 [o], Republic Act No. 409, as amended.). Under Ordinance No. 3634 the word "merchandise" as employed therein clearly includes liquor. Aside from this, we have held in City of Manila vs. Inter-Island Gas Service, Inc., G.R. No. L-8799, August 31, 1956, that the word "merchandise" refers to all subjects of commerce and traffic; whatever is usually bought and sold in trade or market; goods or wares bought and sold for gain; commodities or goods to trade; and commercial commodities in general. That Tabacalera is being subjected to double taxation is more apparent than real. As already stated what is collected under Ordinance No. 3358 is a license fee for the privilege of engaging in the sale of liquor, a calling in which it is obvious not anyone or anybody may freely engage, considering that the sale of liquor indiscriminately may endanger public health and morals. On the other hand, what the three ordinances mentioned heretofore impose is a tax for revenue purposes based on the sales made of the same article or merchandise. It is already settled in this connection that both a license fee and a tax may be imposed on the same business or occupation, or for selling the same article, this not being in violation of the rule against double taxation (Bentley Gray Dry Goods Co. vs. City of Tampa, 137 Fla. 641, 188 So. 758; MacQuillin, Municipal Corporations, Vol. 9, 3rd Edition, p. 83). This is precisely the case with the ordinances involved in the case at bar. Appellee's contention that the City is repudiating its previous view expressed by its Treasurer in a letter addressed to Messrs. Sycip, Gorres, Velayo & Co. in 1954 that a liquor dealer who pays the annual license fee under Ordinance No. 3358 is exempted from the wholesalers and retailers taxes under the other three ordinances mentioned heretofore is of no consequence. The government is not bound by the errors or mistakes committed by its officers, specially on matters of law. Having arrived at the above conclusion, we deem it unnecessary to consider the other legal points raised by the City. WHEREFORE, the decision appealed from is reversed, with the result that this case should be, as it is hereby dismissed, with costs. Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Regala and Makalintal, JJ., concur. Bengzon, C.J. and Concepcion, J., took no part.

The Lawphil Project - Arellano Law Foundation

the industrial or merchant may demand. (d) . . . SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other manner obstruct the production or milling of palay, rice or corn for the purpose of raising the prices thereof; to corner or hoard said products as defined in section three of this Act; . . . Section 3 defines what shall constitute a monopoly or hoarding of palay, rice or corn within the meaning of this Act, but does not specify the price of rice or define any basic for fixing the price. SEC. 4. The violations of any of the provisions of this Act or of the regulations, orders and decrees promulgated in accordance therewith shall be punished by a fine of not more than five thousands pesos, or by imprisonment for not more than two years, or both, in the discretion of the court: Provided, That in the case of companies or corporations the manager or administrator shall be criminally liable. SEC. 7. At any time that the Governor-General, with the consent of the Council of State, shall consider that the public interest requires the application of the provisions of this Act, he shall so declare by proclamation, and any provisions of other laws inconsistent herewith shall from then on be temporarily suspended. Upon the cessation of the reasons for which such proclamation was issued, the Governor-General, with the consent of the Council of State, shall declare the application of this Act to have likewise terminated, and all laws temporarily suspended by virtue of the same shall again take effect, but such termination shall not prevent the prosecution of any proceedings or cause begun prior to such termination, nor the filing of any proceedings for an offense committed during the period covered by the Governor-General's proclamation. August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should be sold. August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the sale of rice at an excessive price as follows: The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, in relation with the provisions of sections 1, 2 and 4 of Act No. 2868, committed as follows: That on or about the 6th day of August, 1919, in the city of Manila,

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 17122 February 27, 1922

THE UNITED STATES, plaintiff-appellee, vs. ANG TANG HO, defendant-appellant. Williams & Ferrier for appellant. Acting Attorney-General Tuason for appellee. JOHNS, J.: At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act penalizing the monopoly and holding of, and speculation in, palay, rice, and corn under extraordinary circumstances, regulating the distribution and sale thereof, and authorizing the Governor-General, with the consent of the Council of State, to issue the necessary rules and regulations therefor, and making an appropriation for this purpose," the material provisions of which are as follows: Section 1. The Governor-General is hereby authorized, whenever, for any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate, with the consent of the Council of State, temporary rules and emergency measures for carrying out the purpose of this Act, to wit: (a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn. (b) To establish and maintain a government control of the distribution or sale of the commodities referred to or have such distribution or sale made by the Government itself. (c) To fix, from time to time the quantities of palay rice, or corn that a company or individual may acquire, and the maximum sale price that

Philippine Islands, the said Ang Tang Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of rice at the price of eighty centavos (P.80), which is a price greater than that fixed by Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, under the authority of section 1 of Act No. 2868. Contrary to law. Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to pay a fine of P500, from which he appealed to this court, claiming that the lower court erred in finding Executive Order No. 53 of 1919, to be of any force and effect, in finding the accused guilty of the offense charged, and in imposing the sentence. The official records show that the Act was to take effect on its approval; that it was approved July 30, 1919; that the Governor-General issued his proclamation on the 1st of August, 1919; and that the law was first published on the 13th of August, 1919; and that the proclamation itself was first published on the 20th of August, 1919. The question here involves an analysis and construction of Act No. 2868, in so far as it authorizes the Governor-General to fix the price at which rice should be sold. It will be noted that section 1 authorizes the Governor-General, with the consent of the Council of State, for any cause resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate temporary rules and emergency measures for carrying out the purposes of the Act. By its very terms, the promulgation of temporary rules and emergency measures is left to the discretion of the Governor-General. The Legislature does not undertake to specify or define under what conditions or for what reasons the GovernorGeneral shall issue the proclamation, but says that it may be issued "for any cause," and leaves the question as to what is "any cause" to the discretion of the Governor-General. The Act also says: "For any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn." The Legislature does not specify or define what is "an extraordinary rise." That is also left to the discretion of the Governor-General. The Act also says that the GovernorGeneral, "with the consent of the Council of State," is authorized to issue and promulgate "temporary rules and emergency measures for carrying out the purposes of this Act." It does not specify or define what is a temporary rule or an emergency measure, or how long such temporary rules or emergency measures shall remain in force and effect, or when they shall take effect. That is to say, the Legislature itself has not in any manner specified or defined any basis for the order, but has left it to the sole judgement and discretion of the Governor-General to say what is or what is not "a cause," and what is or what is not "an extraordinary rise in the price of rice," and as to what is a temporary rule or an emergency measure for the carrying out the purposes of the Act. Under this state of facts, if the law is valid and the Governor-General issues a proclamation fixing the minimum price at which rice should be sold, any dealer who, with or without notice, sells rice at a higher price, is a criminal. There may not have been any cause, and the price may not have been extraordinary, and there may not have been an emergency, but, if the Governor-General found the

existence of such facts and issued a proclamation, and rice is sold at any higher price, the seller commits a crime. By the organic law of the Philippine Islands and the Constitution of the United States all powers are vested in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction, and it is for the Judiciary only to say when any Act of the Legislature is or is not constitutional. Assuming, without deciding, that the Legislature itself has the power to fix the price at which rice is to be sold, can it delegate that power to another, and, if so, was that power legally delegated by Act No. 2868? In other words, does the Act delegate legislative power to the Governor-General? By the Organic Law, all Legislative power is vested in the Legislature, and the power conferred upon the Legislature to make laws cannot be delegated to the Governor-General, or any one else. The Legislature cannot delegate the legislative power to enact any law. If Act no 2868 is a law unto itself and within itself, and it does nothing more than to authorize the GovernorGeneral to make rules and regulations to carry the law into effect, then the Legislature itself created the law. There is no delegation of power and it is valid. On the other hand, if the Act within itself does not define crime, and is not a law, and some legislative act remains to be done to make it a law or a crime, the doing of which is vested in the Governor-General, then the Act is a delegation of legislative power, is unconstitutional and void. The Supreme Court of the United States in what is known as the Granger Cases (94 U.S., 183-187; 24 L. ed., 94), first laid down the rule: Railroad companies are engaged in a public employment affecting the public interest and, under the decision in Munn vs. Ill., ante, 77, are subject to legislative control as to their rates of fare and freight unless protected by their charters. The Illinois statute of Mar. 23, 1874, to establish reasonable maximum rates of charges for the transportation of freights and passengers on the different railroads of the State is not void as being repugnant to the Constitution of the United States or to that of the State. It was there for the first time held in substance that a railroad was a public utility, and that, being a public utility, the State had power to establish reasonable maximum freight and passenger rates. This was followed by the State of Minnesota in enacting a similar law, providing for, and empowering, a railroad commission to hear and determine what was a just and reasonable rate. The constitutionality of this law was attacked and upheld by the Supreme Court of Minnesota in a learned and exhaustive opinion by Justice Mitchell, in the case of State vs. Chicago, Milwaukee & St. Paul ry. Co. (38 Minn., 281), in which the court held:

Regulations of railway tariffs Conclusiveness of commission's tariffs. Under Laws 1887, c. 10, sec. 8, the determination of the railroad and warehouse commission as to what are equal and reasonable fares and rates for the transportation of persons and property by a railway company is conclusive, and, in proceedings by mandamus to compel compliance with the tariff of rates recommended and published by them, no issue can be raised or inquiry had on that question. Same constitution Delegation of power to commission. The authority thus given to the commission to determine, in the exercise of their discretion and judgement, what are equal and reasonable rates, is not a delegation of legislative power. It will be noted that the law creating the railroad commission expressly provides That all charges by any common carrier for the transportation of passengers and property shall be equal and reasonable. With that as a basis for the law, power is then given to the railroad commission to investigate all the facts, to hear and determine what is a just and reasonable rate. Even then that law does not make the violation of the order of the commission a crime. The only remedy is a civil proceeding. It was there held That the legislative itself has the power to regulate railroad charges is now too well settled to require either argument or citation of authority. The difference between the power to say what the law shall be, and the power to adopt rules and regulations, or to investigate and determine the facts, in order to carry into effect a law already passed, is apparent. The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and the conferring an authority or discretion to be exercised under and in pursuance of the law. The legislature enacts that all freights rates and passenger fares should be just and reasonable. It had the undoubted power to fix these rates at whatever it deemed equal and reasonable. They have not delegated to the commission any authority or discretion as to what the law shall be, which would not be allowable, but have merely conferred upon it an authority and discretion, to be exercised in the execution of the law, and under and in pursuance of it, which is entirely permissible. The legislature itself has passed upon the expediency of the law, and what is shall be. The commission is intrusted with no authority or discretion upon these questions. It can neither make nor unmake a single provision of law. It is merely

charged with the administration of the law, and with no other power. The delegation of legislative power was before the Supreme Court of Wisconsin in Dowling vs. Lancoshire Ins. Co. (92 Wis., 63). The opinion says: "The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy should contain, so that it could be put in use as a uniform policy required to take the place of all others, without the determination of the insurance commissioner in respect to maters involving the exercise of a legislative discretion that could not be delegated, and without which the act could not possibly be put in use as an act in confirmity to which all fire insurance policies were required to be issued. The result of all the cases on this subject is that a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the government, and nothing must be left to the judgement of the electors or other appointee or delegate of the legislature, so that, in form and substance, it is a law in all its details in presenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event. The delegation of legislative power was before the Supreme Court in United States vs. Grimaud (220 U.S., 506; 55 L. ed., 563), where it was held that the rules and regulations of the Secretary of Agriculture as to a trespass on government land in a forest reserve were valid constitutional. The Act there provided that the Secretary of Agriculture ". . . may make such rules and regulations and establish such service as will insure the object of such reservations; namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction; and any violation of the provisions of this act or such rules and regulations shall be punished, . . ." The brief of the United States Solicitor-General says: In refusing permits to use a forest reservation for stock grazing, except upon stated terms or in stated ways, the Secretary of Agriculture merely assert and enforces the proprietary right of the United States over land which it owns. The regulation of the Secretary, therefore, is not an exercise of legislative, or even of administrative, power; but is an ordinary and legitimate refusal of the landowner's authorized agent to allow person having no right in the land to use it as they will. The right of proprietary control is altogether different from governmental authority.

The opinion says: From the beginning of the government, various acts have been passed conferring upon executive officers power to make rules and regulations, not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legislated power. But when Congress had legislated and indicated its will, it could give to those who were to act under such general provisions "power to fill up the details" by the establishment of administrative rules and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress, or measured by the injury done. That "Congress cannot delegate legislative power is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." If, after the passage of the act and the promulgation of the rule, the defendants drove and grazed their sheep upon the reserve, in violation of the regulations, they were making an unlawful use of the government's property. In doing so they thereby made themselves liable to the penalty imposed by Congress. The subjects as to which the Secretary can regulate are defined. The lands are set apart as a forest reserve. He is required to make provisions to protect them from depredations and from harmful uses. He is authorized 'to regulate the occupancy and use and to preserve the forests from destruction.' A violation of reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary, but by Congress." The above are leading cases in the United States on the question of delegating legislative power. It will be noted that in the "Granger Cases," it was held that a railroad company was a public corporation, and that a railroad was a public utility, and that, for such reasons, the legislature had the power to fix and determine just and reasonable rates for freight and passengers. The Minnesota case held that, so long as the rates were just and reasonable, the legislature could delegate the power to ascertain the facts and determine from the facts what were just and reasonable rates,. and that in vesting the commission with such power was not a delegation of legislative power. The Wisconsin case was a civil action founded upon a "Wisconsin standard policy of fire insurance," and the court held that "the act, . . . wholly fails to provide definitely and clearly what the standard policy should contain, so that it could be put in use as a uniform policy required to take the place of all others, without the determination of the insurance commissioner in respect to matters involving the exercise of a legislative discretion that could not be delegated."

The case of the United States Supreme Court, supra dealt with rules and regulations which were promulgated by the Secretary of Agriculture for Government land in the forest reserve. These decisions hold that the legislative only can enact a law, and that it cannot delegate it legislative authority. The line of cleavage between what is and what is not a delegation of legislative power is pointed out and clearly defined. As the Supreme Court of Wisconsin says: That no part of the legislative power can be delegated by the legislature to any other department of the government, executive or judicial, is a fundamental principle in constitutional law, essential to the integrity and maintenance of the system of government established by the constitution. Where an act is clothed with all the forms of law, and is complete in and of itself, it may be provided that it shall become operative only upon some certain act or event, or, in like manner, that its operation shall be suspended. The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action to depend. The Village of Little Chute enacted an ordinance which provides: All saloons in said village shall be closed at 11 o'clock P.M. each day and remain closed until 5 o'clock on the following morning, unless by special permission of the president. Construing it in 136 Wis., 526; 128 A. S. R., 1100,1 the Supreme Court of that State says: We regard the ordinance as void for two reasons; First, because it attempts to confer arbitrary power upon an executive officer, and allows him, in executing the ordinance, to make unjust and groundless discriminations among persons similarly situated; second, because the power to regulate saloons is a law-making power vested in the village board, which cannot be delegated. A legislative body cannot delegate to a mere administrative officer power to make a law, but it can make a law with provisions that it shall go into effect or be suspended in its operations upon the ascertainment of a fact or state of facts by an administrative officer or board. In the present case the ordinance by its terms gives power to the president to decide arbitrary, and in the

exercise of his own discretion, when a saloon shall close. This is an attempt to vest legislative discretion in him, and cannot be sustained. The legal principle involved there is squarely in point here. It must be conceded that, after the passage of act No. 2868, and before any rules and regulations were promulgated by the Governor-General, a dealer in rice could sell it at any price, even at a peso per "ganta," and that he would not commit a crime, because there would be no law fixing the price of rice, and the sale of it at any price would not be a crime. That is to say, in the absence of a proclamation, it was not a crime to sell rice at any price. Hence, it must follow that, if the defendant committed a crime, it was because the Governor-General issued the proclamation. There was no act of the Legislature making it a crime to sell rice at any price, and without the proclamation, the sale of it at any price was to a crime. The Executive order2 provides: (5) The maximum selling price of palay, rice or corn is hereby fixed, for the time being as follows: In Manila Palay at P6.75 per sack of 57 kilos, or 29 centavos per ganta. Rice at P15 per sack of 57 kilos, or 63 centavos per ganta. Corn at P8 per sack of 57 kilos, or 34 centavos per ganta. In the provinces producing palay, rice and corn, the maximum price shall be the Manila price less the cost of transportation from the source of supply and necessary handling expenses to the place of sale, to be determined by the provincial treasurers or their deputies. In provinces, obtaining their supplies from Manila or other producing provinces, the maximum price shall be the authorized price at the place of supply or the Manila price as the case may be, plus the transportation cost, from the place of supply and the necessary handling expenses, to the place of sale, to be determined by the provincial treasurers or their deputies. (6) Provincial treasurers and their deputies are hereby directed to communicate with, and execute all instructions emanating from the Director of Commerce and Industry, for the most effective and proper enforcement of the above regulations in their respective localities.

The law says that the Governor-General may fix "the maximum sale price that the industrial or merchant may demand." The law is a general law and not a local or special law. The proclamation undertakes to fix one price for rice in Manila and other and different prices in other and different provinces in the Philippine Islands, and delegates the power to determine the other and different prices to provincial treasurers and their deputies. Here, then, you would have a delegation of legislative power to the Governor-General, and a delegation by him of that power to provincial treasurers and their deputies, who "are hereby directed to communicate with, and execute all instructions emanating from the Director of Commerce and Industry, for the most effective and proper enforcement of the above regulations in their respective localities." The issuance of the proclamation by the Governor-General was the exercise of the delegation of a delegated power, and was even a sub delegation of that power. Assuming that it is valid, Act No. 2868 is a general law and does not authorize the Governor-General to fix one price of rice in Manila and another price in Iloilo. It only purports to authorize him to fix the price of rice in the Philippine Islands under a law, which is General and uniform, and not local or special. Under the terms of the law, the price of rice fixed in the proclamation must be the same all over the Islands. There cannot be one price at Manila and another at Iloilo. Again, it is a mater of common knowledge, and of which this court will take judicial notice, that there are many kinds of rice with different and corresponding market values, and that there is a wide range in the price, which varies with the grade and quality. Act No. 2868 makes no distinction in price for the grade or quality of the rice, and the proclamation, upon which the defendant was tried and convicted, fixes the selling price of rice in Manila "at P15 per sack of 57 kilos, or 63 centavos per ganta," and is uniform as to all grades of rice, and says nothing about grade or quality. Again, it will be noted that the law is confined to palay, rice and corn. They are products of the Philippine Islands. Hemp, tobacco, coconut, chickens, eggs, and many other things are also products. Any law which single out palay, rice or corn from the numerous other products of the Islands is not general or uniform, but is a local or special law. If such a law is valid, then by the same principle, the Governor-General could be authorized by proclamation to fix the price of meat, eggs, chickens, coconut, hemp, and tobacco, or any other product of the Islands. In the very nature of things, all of that class of laws should be general and uniform. Otherwise, there would be an unjust discrimination of property rights, which, under the law, must be equal and inform. Act No. 2868 is nothing more than a floating law, which, in the discretion and by a proclamation of the Governor-General, makes it a floating crime to sell rice at a price in excess of the proclamation, without regard to grade or quality. When Act No. 2868 is analyzed, it is the violation of the proclamation of the Governor-General which constitutes the crime. Without that proclamation, it was no crime to sell rice at any price. In other words, the Legislature left it to the sole discretion of the Governor-General to say what was and what was not "any cause" for enforcing the act, and what was and what was not "an

extraordinary rise in the price of palay, rice or corn," and under certain undefined conditions to fix the price at which rice should be sold, without regard to grade or quality, also to say whether a proclamation should be issued, if so, when, and whether or not the law should be enforced, how long it should be enforced, and when the law should be suspended. The Legislature did not specify or define what was "any cause," or what was "an extraordinary rise in the price of rice, palay or corn," Neither did it specify or define the conditions upon which the proclamation should be issued. In the absence of the proclamation no crime was committed. The alleged sale was made a crime, if at all, because the Governor-General issued the proclamation. The act or proclamation does not say anything about the different grades or qualities of rice, and the defendant is charged with the sale "of one ganta of rice at the price of eighty centavos (P0.80) which is a price greater than that fixed by Executive order No. 53." We are clearly of the opinion and hold that Act No. 2868, in so far as it undertakes to authorized the Governor-General in his discretion to issue a proclamation, fixing the price of rice, and to make the sale of rice in violation of the price of rice, and to make the sale of rice in violation of the proclamation a crime, is unconstitutional and void. It may be urged that there was an extraordinary rise in the price of rice and profiteering, which worked a severe hardship on the poorer classes, and that an emergency existed, but the question here presented is the constitutionality of a particular portion of a statute, and none of such matters is an argument for, or against, its constitutionality. The Constitution is something solid, permanent an substantial. Its stability protects the life, liberty and property rights of the rich and the poor alike, and that protection ought not to change with the wind or any emergency condition. The fundamental question involved in this case is the right of the people of the Philippine Islands to be and live under a republican form of government. We make the broad statement that no state or nation, living under republican form of government, under the terms and conditions specified in Act No. 2868, has ever enacted a law delegating the power to any one, to fix the price at which rice should be sold. That power can never be delegated under a republican form of government. In the fixing of the price at which the defendant should sell his rice, the law was not dealing with government property. It was dealing with private property and private rights, which are sacred under the Constitution. If this law should be sustained, upon the same principle and for the same reason, the Legislature could authorize the Governor-General to fix the price of every product or commodity in the Philippine Islands, and empower him to make it a crime to sell any product at any other or different price. It may be said that this was a war measure, and that for such reason the provision of the Constitution should be suspended. But the Stubborn fact remains that at all times the judicial power was in full force and effect, and that

while that power was in force and effect, such a provision of the Constitution could not be, and was not, suspended even in times of war. It may be claimed that during the war, the United States Government undertook to, and did, fix the price at which wheat and flour should be bought and sold, and that is true. There, the United States had declared war, and at the time was at war with other nations, and it was a war measure, but it is also true that in doing so, and as a part of the same act, the United States commandeered all the wheat and flour, and took possession of it, either actual or constructive, and the government itself became the owner of the wheat and flour, and fixed the price to be paid for it. That is not this case. Here the rice sold was the personal and private property of the defendant, who sold it to one of his customers. The government had not bought and did not claim to own the rice, or have any interest in it, and at the time of the alleged sale, it was the personal, private property of the defendant. It may be that the law was passed in the interest of the public, but the members of this court have taken on solemn oath to uphold and defend the Constitution, and it ought not to be construed to meet the changing winds or emergency conditions. Again, we say that no state or nation under a republican form of government ever enacted a law authorizing any executive, under the conditions states, to fix the price at which a price person would sell his own rice, and make the broad statement that no decision of any court, on principle or by analogy, will ever be found which sustains the constitutionality of the particular portion of Act No. 2868 here in question. By the terms of the Organic Act, subject only to constitutional limitations, the power to legislate and enact laws is vested exclusively in the Legislative, which is elected by a direct vote of the people of the Philippine Islands. As to the question here involved, the authority of the Governor-General to fix the maximum price at which palay, rice and corn may be sold in the manner power in violation of the organic law. This opinion is confined to the particular question here involved, which is the right of the Governor-General, upon the terms and conditions stated in the Act, to fix the price of rice and make it a crime to sell it at a higher price, and which holds that portions of the Act unconstitutional. It does not decide or undertake to construe the constitutionality of any of the remaining portions of the Act. The judgment of the lower court is reversed, and the defendant discharged. So ordered. Araullo, C.J., Johnson, Street and Ostrand, JJ., concur. Romualdez, J., concurs in the result.

Separate Opinions MALCOLM, J., concurring: I concur in the result for reasons which reach both the facts and the law. In the

first place, as to the facts, one cannot be convicted ex post facto of a violation of a law and of an executive order issued pursuant to the law, when the alleged violation thereof occurred on August 6, 1919, while the Act of the Legislature in question was not published until August 13, 1919, and the order was not published until August 20, 1919. In the second place, as to the law, one cannot be convicted of a violation of a law or of an order issued pursuant to the law when both the law and the order fail to set up an ascertainable standard of guilt. (U.S. vs. Cohen Grocery Company [1921], 255 U.S., 81, holding section 4 of the Federal Food Control Act of August 10, 1917, as amended, invalid.) In order that there may not be any misunderstanding of our position, I would respectfully invite attention to the decision of the United States Supreme Court in German Alliance Ins. Co. vs. Lewis ([1914, 233 U.S., 389), concerning the legislative regulation of the prices charged by business affected with a public interest, and to another decision of the United States Supreme Court, that of Marshall Field & Co. vs. Clark ([1892], 143 U.S., 649), which adopts as its own the principles laid down in the case of Locke's Appeal ([1873], 72 Pa. St., 491), namely; "The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation." Avancea and Villamor, JJ., concur. Footnotes
1Village

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDWIN DE VERA y GARCIA, RODERICK GARCIA y GALAMGAM, KENNETH FLORENDO and ELMER CASTRO, accused, EDWIN DE VERA y GARCIA, appellant. DECISION PANGANIBAN, J.: When is a lookout deemed an accomplice and when a conspirator? What is the distinction between the two?
Statement of the Case

These are the main questions passed upon by the Court in resolving the present appeal, which assails the March 12, 1997 Decision[1] of the Regional Trial Court of Quezon City (Branch 57) in Criminal Case No. Q-92-31323, finding Appellant Edwin De Vera and Accused Roderick Garcia guilty beyond reasonable doubt of murder and sentencing them to reclusion perpetua. In an Information dated June 11, 1992, Assistant City Prosecutor Tirso M. Gavero charged with murder Appellant Edwin De Vera, together with Roderick Garcia and two other persons who were subsequently identified during the trial as Kenneth Florendo and Elmer Castro. The crime was allegedly committed as follows: That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and] confederating [with] and helping xxx two (2) other persons, did then and there wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery and use of superior strength, attack, assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of a .22 cal. with trade mark Paspar Armas bearing SN29069 with five (5) pieces of caliber 22 ammo inside, hitting him between his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of the said Frederick Capulong y Dizon.[2] On July 9, 1992, Assistant City Prosecutor Enrico P. Bringas filed a Motion to Amend the Information to include the use of a .32 caliber firearm in the killing of Frederick Capulong. The trial court granted the Motion, and the Amended Information now reads as follows: That on or about the 8th day of June, 1992, in Quezon City, Philippines, the said accused, conspiring [and] confederating [with] and helping xxx two (2) other persons, did then and there wilfully, unlawfully and feloniously with intent to kill, with evident premeditation, treachery and use of superior strength, attack, assault and employ personal violence upon the person of one FREDERICK CAPULONG y DIZON, by then and there shooting him with the use of a .22 cal. with trade mark Paspar Armas bearing SN29069 with five (5) pieces of caliber 22 ammo inside and a .32 cal. firearm of still

of Little Chute vs. Van Camp. Order No. 53, series of 1919.

2Executive

The Lawphil Project - Arellano Law Foundation

Syllabi/Synopsis THIRD DIVISION [G.R. No. 128966. August 18, 1999]

undetermined make, hitting him between his eyes and striking him with the use of a baseball bat in the mouth, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of the said Frederick Capulong y Dizon.[3] On their arraignment, Appellant Edwin De Vera[4] and Roderick Garcia[5] pleaded not guilty. The other two accused were at large. Trial in due course proceeded only against De Vera and Garcia. Thereafter, the trial court rendered the assailed Decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding the accused EDWIN DE VERA y GARCIA and RODERICK GARCIA y GALAMGAM guilty beyond reasonable doubt of the crime of MURDER and they are hereby accordingly sentenced to suffer reclusion perpetua, including all its accessory penalties; to indemnify the heirs of Frederick Capulong y Dizon, as follows: a) P50,000.00, as death indemnity; b) P211,670.00, as compensatory damages; c) P600,000.00, as indemnification for loss of earning capacity; d) P500,000.00, as moral damages; e) Interest at the legal rate on a) and b), hereof from the filing of the information until full payment; and, f) Costs of suit.[6] Only Edwin De Vera filed a Notice of Appeal.[7]
The Facts

About 1:30 in the afternoon of June 8, 1992, while bringing out the garbage, the witness saw a car passing by, driven by victim Frederick Capulong together with four (4) other passengers. He knew the victim by name who was a resident of the subdivision. He recognized and identified two of the passengers as Kenneth Florendo and Roderick Garcia, both familiar in the subdivision. Cacao did not at first notice anything unusual inside the car while it passed by him, but then he heard unintelligible voices coming from the car as it was cruising around Denver Loop Street, a circular road whose entrance and exit were through the same point (ibid, p. 12). His curiosity taking [the] better part of him, Cacao walked to the opposite side of the road from where he saw the car already parked. Moments later, he saw the victim dragged out of the car by Florendo and brought to a grassy place. Florendo was holding a gun (ibid, p. 13). Upon reaching the grassy spot, Florendo aimed and fired the gun at the victim, hitting him between the eyes. After the shooting, Florendo and his companions fled in different directions. When he submitted a sworn statement to the investigating prosecutor, Cacao attached a sketch of the crime scene prepared by police officers, indicating therein his relative position at the time of the incident. While testifying in court, Cacao identified Garcia and pointed to appellant as among the companions of Florendo. Ten minutes later, or about 2:40 in the afternoon, the desk officer of the Investigation Division, Station 5, Central Police District, Quezon City received a report about the shooting incident from a security guard of the subdivision. The officer immediately dispatched a team to Filinvest II, composed of PO2 Armando Garcia, PO3 Armando Junio, and PO3 Jovencio Villacorte, to investigate and gather evidence (TSN, p. 5, September 13, 1993). A security guard guided the team to the corner of Denver and Doa Justina Streets, site of the shooting, where they discovered blood stains and damaged grass (ibid, p. 6). The guard informed them that the victim was rushed to the East Avenue Medical Center by other security guards. The policemen then found a color red sports car with plate no. NBZ 869, with engine still running and its doors opened. They recovered inside the car several class cards and a license belonging to one Ric Capulong, who was later identified as Frederick Capulong. The policemen went around the subdivision to look for possible suspects. They came upon a person wearing muddied maong pants and white t-shirt standing and walking around near the clubhouse of the subdivision. When asked his name, the person identified himself as Edwin de Vera, herein appellant. Explaining the mud stains on his pants, appellant declared that he was a victim of a hold-up. Suspicious [of] his conduct, the policemen brought appellant to Station 5 and turned him over to the desk officer for investigation. Another prosecution witness, SPO3 Mario Guspid, a police investigator since 1989, was assigned to investigate the shooting of Frederick Capulong. He was assisted by SPO4 Pablito Selvido, SPO2 Armando Rivera, SPO3 Jovencio Villacorte, SPO3 Rolando Gacute, SPO3 Danilo Castro and other police officers. Upon receiving his assignment, SPO3 Guspid immediately went to the East Avenue Medical Center where he saw the victim lying inside the intensive care unit receiving

Version of the Prosecution

In its Brief,[8] the Office of the Solicitor General presented the following narration of facts:[9] As earlier stated, the prosecution presented an eyewitness in the person of Bernardino Cacao, a resident of Denver Loop Street, Filinvest II, Quezon City before he moved to No. 58 Elisa Street, Caloocan City. He was residing at Filinvest II, together with his wife and children, at the time of the incident on June 28, 1992 in the house owned by David Lim. He was then employed at a Kodak branch in Caloocan City, while his wife served as secretary of the homeowners association.

medical treatment. The victim was unconscious. After conferring with the victims parents and relatives, SPO3 Guspid returned to Station 5. On his arrival, the desk officer referred appellant to him for questioning. He was told that appellant was picked up near the crime scene acting suspiciously. When appellant was asked about his participation in the shooting, he was reluctant at first to talk, but later relented after SPO3 Guspid told him that his conscience would bother him less if he would tell the truth. Without any hesitation, appellant admitted being [with the] group which perpetrated the crime, and implicated Roderick Garcia. He was then persuaded to accompany a group of policemen to the residence of Garcia, which turned out to be at Doa Justina Street, Filinvest II Subdivision. Finding Garcia at home, SPO3 Guspid informed him that he was implicated by appellant [in] the crime. He was then invited to the station to shed light [on] the incident. Garcia consented. At Station 5, SPO3 Guspid interviewed appellant and Garcia. In the course of the interview, Garcia revealed the place where he hid a .22 caliber gun, black t-shirt and black cap. According to Garcia, Florendo asked them to wear black t-shirts. With the revelation, SPO3 Guspid, SPO2 Rivera, SPO3 Gacute and SPO3 Castro, together with the suspects, went back to the subdivision and proceeded to a grassy portion near the boundary of Filinvest II and San Mateo, Rizal. The place was near a creek and about 50 meters away from the residence of Garcia (TSN, pp. 9-14, September 30, 1993). Truly, the policemen recovered a .22 caliber revolver, black t-shirt and black cap (TSN, pp. 1213, August 24, 1993). While there, SPO3 Guspid and SPO2 Rivera prepared a sketch of the crime scene to reflect the explanations and answers given by appellant and Garcia in response to their questions. As identifying marks, SPO3 Gacute placed his initials OG (acronym for his first name and family name) between the handle and cylinder of the gun, and on the neck of the t-shirt, as well as in the inner lining of the black cap. From the crime site, the policemen and the suspects returned to Station 5 where SPO3 Guspid asked them if they were willing to give their written statements, to which they assented. Consequently, they were brought to the Integrated Bar of the Philippines, Quezon City Chapter, at Malakas Street, Diliman, Quezon City. They were then introduced to Atty. Confesor Sansano, the [c]hairman of the Free Legal Aid of the IBP. Also, present at that time were appellants relatives, including his mother and sisters, and other lawyers of the IBP. SPO3 Guspid inquired from them if they would agree to be assisted by Atty. Sansano, a competent lawyer. They replied in the affirmative. Thereafter, the two conferred with Atty. Sansano. Atty. Sansano, a rebuttal witness of the prosecution, testified that upon arrival of the suspects [i]n his office, he requested the policemen, as a matter of policy, to step outside the building in order to assure that no pressure would be exerted on the suspects even by their mere presence (TSN, p. 6, November 6, 1996). After they left, Atty. Sansano interviewed the suspects for about twenty minutes, informing them of their rights under the constitution and inquiring from them if they indeed wanted to give voluntary statements. To the query, the suspects answered positively. They also affirmed their earlier declaration that they were willing to be assisted by the IBP (ibid, pp. 8-9). He further advised them of their right during the investigation to answer or not to answer

the questions which they thought would incriminate them, but they retorted that they fully understood their right. Satisfied that they were not coerced or threatened to give their statements, Atty. Sansano requested the suspects to show their upper bodies to enable him to determine any telltale signs of torture or bodily harm. Finding no such signs, he then summoned the policemen to re-enter the building. The investigators readied two typewriters and each suspect was assigned to an investigator. He served as the lawyer of the suspects, cautioning them against answering questions that they did not understand, and to seek xxx a clarification, if needed. According to Atty. Sansano, the interrogation took place in his office, a single separate room from where his five staff members were visible. He sat between the two tables used by the investigators for typing the questions and answers, involving himself from beginning to end of the investigation until the signing of the statements. He never left the office to attend to anything else, consistent with [the] standing policy of the IBP to properly safeguard the rights of suspects during investigation. He recalled that the investigators first typed the headings of the statements, then informed the suspects before starting the investigation about their rights under the constitution, specifically, the right of the suspects to have a lawyer of their own choice; if not, the police would provide them with one who would assist them; that they could answer or refuse to answer the questions. The investigators also asked him if he was willing to serve as counsel of the suspects. They also asked the suspects if they were willing to accept him as their counsel. They agreed expressly by saying: Oho. SPO3 Guspid investigated Garcia while SPO4 Selvido investigated appellant. They conducted the question and answer investigation in Pilipino. The statement of appellant was marked as Exhibit O and that of Garcia was marked as Exhibit N. The statements were signed by the suspects and Atty. Sansano. For his part, SPO4 Selvido declared that SPO3 Guspid requested his help in taking the statements of the suspects (TSN, p. 4, June 29, 1993). He took the statement of appellant in the presence of Atty. Sansano. Before proceeding, he reminded appellant of the constitutional warnings, consisting of four (4) questions under the heading Paunawa, to which the latter gave positive answers. The statement was signed by appellant and Atty. Sansano. After taking down the statement, he turned over appellant to SPO3 Guspid. Following the investigation, the policemen brought the suspects to the Philippine National Police Crime Laboratory for paraffin testing. The result: both hands of Edwin de Vera y Garcia @ Boy/Bong gave positive results [in] the test for gunpowder nitrates while both hands of Roderick Garcia y Galamgam @ Deo gave negative result [in] the test for gunpowder nitrates. After coming from the crime laboratory, SPO3 Guspid contacted the mother of the victim to get her own statement. Next, he obtained a death certificate and prepared a referral to the Quezon City Prosecution Office which was signed by Senior Inspector

Ernesto Collado, Chief of the Station Investigation Division. During the inquest, the prosecutor asked the suspects some clarificatory questions. Surveillance and follow-up operations were conducted against Florendo and his other companion, Elmer Castro. However, the two were never arrested and brought to trial.
Version of the Defense

Edwin denied that either he or Deo carried any firearm on that occasion. Edwin was arrested by the police at past 2:00 pm when he was already outside of Filinvest subdivision in front of Batasan. He was brought to Station 5 where four (4) persons in civilian attire tortured him by forcing him to lie down on a bench, tying his feet together and binding his hands from his back with handcuffs, and then covering his face with a piece of dirty cloth into which water was poured little by little into his face and mouth, while one of them sat on his thighs. This maltreatment lasted for about 20 or 25 minutes, because they wanted him to admit something and to name my companions but he refused to admit or to name anyone. They next took him outside to a mango tree where they repeated his ordeal for 30 minutes. At one point during the torture, a policeman untied his feet and hands and poked a gun to his temple, telling him to run as it was his chance to escape, but he did not escape because he could see that they were merely frightening him. None of the policemen told him that he could xxx get a lawyer[;] instead, one of them, whose name he [did] not know, told him that I should listen only to them and not to anyone else. He claimed that he saw one [of] his tormentors in court, and he identified him as police officer Rivera. Guspid did not participate in his torture, because he merely took down his statement. His tormentors were not drunk or under the influence of drugs, but Guspid seemed to be under the influence of drugs when he took his statement because of his troubled appearance. Edwin was not advised to inform or call any of his relatives. Before his torture, his request to contact his relatives or lawyer was turned down. His intimidation continued (x x x x puro pananakot and ginawa nila sa akin). After his torture at the mango tree, he was returned inside and thrown into a cell, where he remained until the following day (June 9th). During the night, an inmate named Cesar boxed him once in the upper body upon instruction of a policeman. He was not given any dinner. At around noontime of the next day (June 9th), Edwin was taken out of the cell and brought to the IBP office by police officers Guspid and Selvido. Also with them were Deo Garcia and two other police officers. At the IBP office, the officers talked with one of the lawyers there, whom Edwin came to know to be Atty. Sansano only after the lawyer was introduced (present) to him and Deo. That was the first he met and saw Atty. Sansano. Atty. Sansano informed both Edwin and Deo that they had the choice whether to talk or not. Edwin could not make any comment because wala po ako sa sarili ko. Then, Atty. Sansano warned Edwin substantially that: Alam nyo ba na ang salaysay na ito ay maaring hindi ninyo sumpaan, referring to the statement taken from Edwin by officers Guspid at around past 8 pm until 9 pm on the day before (June 8, 1992) at the police station. He was not assisted by counsel, and had no relatives present. Guspid appeared to be like drunk or tipsy, when he took down Edwins statement that night. At the IBP office, Edwins and Deos statement were taken separately by Guspid and Selvido, respectively. At the time, Edwin and Deo were about six (6) meters from each other, but he could hear what was being asked of Deo. Guspid asked the questions and typed both the questions and his answers, which were given in Tagalog. All the while, Atty. Sansano was inside his office, which was about seven (7) meters away from where

Appellant claims that he had no part in the killing, and that it was Kenneth Florendo who had shot the victim. He avers that he merely accompanied to Filinvest the other accused and Florendo, who was his friend, upon the latters request. A few hours after the shooting incident, appellant was picked up by the police, who subsequently tortured and coerced him into signing his Statement regarding the incident. The trial court summarized appellants evidence in this wise:[10] Edwin de Vera admitted that, as of June 8, 1992, he and Kenneth Florendo were already close friends for about a year, sometimes sleeping in the latters house at No 106 Kamias Road, Quezon City. His own residence at the time was at No. 7 Bignay Street, Project 2, Quezon City. That was also the address of Elmer Castro, his and Kenneths friend. Edwin had slept in Kenneths house on Kamias Road from June 6 to June 8, 1992 and went home at 7:00 am of June 8th. Later at around 10:30 am, Kenneth passed by Edwins house to invite him back to [the formers] house that morning and to bring Elmer along. Kenneth mentioned that he, his girlfriend, and Deo, who were then with him, would be going somewhere first. Deo, or Roderick Garcia, was another friend of Kenneths. Edwin and Elmer later went to and arrived at Kenneths house at 11:00 am. Kenneth, his girlfriend, and Deo were already taking lunch, and invited the two to lunch. After lunch, Kenneth asked Edwin to go with him to Filinvest without telling why. It was Deo who mentioned to Edwin that Kenneth was going to see a friend. Edwin was not aware if Kenneth had also asked the others to go with him to Filinvest, but the four of them Kenneth, Edwin, Elmer, and Deo later proceeded to Filinvest [i]n Kenneths car. Edwin sat at the back seat. The time was past 12:00 noon. Kenneth drove his car. Upon reaching Filinvest, Kenneth stopped at a house and the four of them alighted in front of the house. Edwin did not know whose house it was. Kenneth and Elmer told Edwin and Deo to wait near the car because they were going to see a friend. At that point in time, Edwin knew the person[,] whom Kenneth and Elmer went to see[,] by name, never having met him personally before then. From his conversation with Deo, Edwin found out that the house was where Deo stayed. Then, Edwin heard the voices of Kenneth and his friend and they appeared to be arguing (x x x x parang nagtatalo sila). The voices came from some twenty-two (22) meters away. Not before long, Edwin also heard a gunshot which came from where Kenneth and Elmer had gone to. He was shocked because he was not used to hearing gunfire. Frightened, he panicked and ran away from the place. His singular thought while running was to get out of Filinvest. Deo also ran away.

he and Guspid were situated. The office of Atty. Sansano was separated by a divider, so that he could not see what Atty. Sansano was doing at the time. After the questioning, he signed a paper which he was not able to read. He did not see Atty. Sansano sign the paper. xxx xxx xxx

THE TRIAL COURT ERRED IN NOT FINDING AND DECLARING THAT THE PROSECUTION HAS NOT PROVED THE APPELLANTS GUILT BEYOND REASONABLE DOUBT AND IN NOT ACQUITTING THE APPELLANT.[12] In the main, the Court will resolve three questions: (1) the sufficiency of the prosecution evidence, (2) the admissibility of appellants extrajudicial statement, and (3) the nature of his liability.
The Courts Ruling

On July 14, 1992, Edwin executed a so-called salaysay ng pagbabawi ng sinumpaang salaysay, which he swore to before Prosecutor Tobia of Quezon City, for the purpose of recanting his statements given at the precinct in the evening of June 8, 1992 and at the IBP office on June 9, 1992 on the ground that they were given under coercion, intimidation, and in violation of his constitutional rights.
Ruling of the Trial Court

The appeal is partly meritorious. Appellant should be convicted only as an accomplice, not as a principal.
First and Third Issues:

Based on the testimony of Eyewitness Bernardino Cacao, the trial court ruled that it was indeed Kenneth Florendo who had actually shot the victim, Roderick Capulong. It convicted appellant as a principal, however, because the scientific and forensic findings on the criminal incident directly and substantially confirmed the existence of conspiracy among the four [accused], namely, Kenneth Florendo, Elmer Castro, Edwin de Vera, and Roderick Garcia.[11]
The Issues

Sufficiency of Prosecution Evidence and Appellants Liability

Because the first and the third questions mentioned above are interrelated, they shall be discussed jointly.
Eyewitness Account

Appellant submits for the consideration of this Court the following alleged errors: I THE TRIAL JUDGE ERRED IN NOT FINDING THAT PROSECUTION EYE-WITNESS BERNARDO CACAO HAD TESTIFIED TO NO CRIMINAL ACT OF APPELLANT; II THE TRIAL JUDGE ERRED IN FINDING AND CONCLUDING THAT THERE WAS A CONSPIRACY TO KILL THE VICTIM AND THAT APPELLANT WAS A CO- CONSPIRATOR; III THE TRIAL JUDGE ERRED IN ADMITTING EXHIBIT O, ALLEGED STATEMENT OF APPELLANT; AND IN NOT DECLARING THE SAME AS AN INADMISSIBLE EVIDENCE CONSIDERING THE BARBARIC MANNER UNDER WHICH IT WAS EXTRACTED/OBTAINED FROM THE APPELLANT WHICH VIOLATED THE LATTERS CONSTITUTIONAL RIGHTS; IV

In ruling that there was conspiracy between Florendo, Castro, Garcia and Appellant De Vera, the trial court relied mainly on the testimony of Eyewitness Cacao. Specifically, it based its conclusions on the following facts: appellant was seen with the other accused inside the victims car; the victim was clearly struck with a blunt object while inside the car, and it was unlikely for Florendo to have done it all by himself; moreover, it was impossible for De Vera and Garcia to have been unaware of Florendos dark design on Roderick. We disagree. It is axiomatic that the prosecution must establish conspiracy beyond reasonable doubt.[13] In the present case, the bare testimony of Cacao fails to do so. Cacao testified that he saw Appellant De Vera in the car, where an altercation later occurred. Thereafter, he saw Florendo drag out of the vehicle an apparently disabled Capulong and shoot the victim in the head moments later. Cacaos testimony contains nothing that could inculpate appellant. Aside from the fact that he was inside the car, no other act was imputed to him. Mere presence does not amount to conspiracy.[14] Indeed, the trial court based its finding of conspiracy on mere presumptions, and not on solid facts indubitably indicating a common design to commit murder. Such suppositions do not constitute proof beyond reasonable doubt. As the Court has repeatedly stated, criminal conspiracy must be founded on facts, not on mere surmises or conjectures. Clearly, Cacaos testimony does not establish appellants culpability.
Appellants Extrajudicial Statement

Aside from the testimony of Cacao, the prosecution also presented Appellant De Veras extrajudicial statement, which established three points. First, appellant knew of Kenneth Florendos malevolent intention. T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging kasapakat nito? S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at napilitan akong sumama.[15] Second, appellants companions were armed that day, a fact which revealed the unmistakable plan of the group. T: Ikaw ba ay mayroong dalang armas noong hapon na iyo[n]? S: Wala po akong dalang armas. Pero itong si Kenneth ay mayroong dalang dalawang baril[,] sina Deo at Elmer ay wala. Pero noong naroroon na kami sa lugar ay ibinigay ni Kenneth ang isang baril niya kay Deo at itong si Elmer ay mayroong nang dalang baseball bat. Third, he cooperated with the other accused in the commission of the crime by placing himself at a certain distance from Kenneth and the victim in order to act as a lookout. This is clear from the following portion of his statement: S: Kabarkada ko po si Kenneth at dalawang araw po akong nakitulog sa kanila at noong araw ng June 08, 1992 ay sinabihan ako ni Kenneth Gumabao na huwag raw akong uuwi, dahil [mayroon] daw po kaming lakad. Pagkaraan ng ilang oras ay dumating naman itong si Roderick Garcia @ Deo at may sinabi sa kanya itong si Kenneth at sinabi naman ito sa akin ni Deo na kaysa raw maunahan siya ni Frederick Sumulong [sic] ay uunahan na raw po niya ito. Umalis po itong si Kenneth na kasama ang kanyang nobya at itong si Deo, para ihatid ang kanyang [sic] sa hospital at bago sila umalis ay sinabihan ako ni Kenneth na sunduin ko raw itong si Elmer Castro at magbhihai [magbihis] na rin daw ako at pagdating nila ay xxx lalakad na raw po kami. Mga ilang oras pa ay sinundo ko na itong si Elmer Castro at pagdating namin sa bahay nila Kenneth ay naroroon na itong si Kenneth at Deo. Matapos magpalit ng damit itong si Kenneth ay sumakay na kami sa kanilang kotse at nagtuloy sa kanilang katabing bahay at doon ay kumain kami. Pagkatapos noon ay umalis na kami at nagtuloy sa F[i]l-Invest. P[a]gdating namin sa isang lugar doon sa medyo malayo-layo sa bahay nila Deo ay bumaba na itong si Deo at Elmer at sila ay nagpunta doon sa lugar ng pinagbarilan para kunin ang bayad sa utang ni Fred[er]ick Capulong sa tiyuhin ni Deo. P[a]gkaraan ng ilang minuto ay sumunod po kami ni Kenn[e]th sa lugar at ako ay naiwan nang medyo malayo-layo sa lugar upang tignan kung mayroong darating na tao. Samantalang si Kenneth ay lumapit kina Deo at Frederick at kasunod noon ay nagkaroon ng sagutan itong si Kenneth at Frederick at nakita kong inaawat ni Deo itong si Kenneth. Hindi nakapagpigil itong si Kenneth at nasipa niya s[i] Frederick at kasunod noon ay binunot niya ang kanyang baril na kalibre .38 at pinaputukan niya ng isang beses itong si Frederick na noong tamaan ay natumba sa lupa. Lumapit si Elmer kina Kenneth habang binabatak ni Kenneth itong si Frederick

at kasunod po noon ay lumapit sa akin si Deo at sinabihan ako na tumakbo na kami. Tumakbo na po kami, pero ako po ay nahuli ng mga security guard ng Subdivision at itong si Deo ay nahuli naman sa kanilang bahay. Itong sina Kenneth at Elmer ay hindi pa nahuhuli.[16]
Appellant an Accomplice, Not a Conspirator

In other words, appellants presence was not innocuous. Knowing that Florendo intended to kill the victim and that the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He was not an innocent spectator; he was at the locus criminis in order to aid and abet the commission of the crime. These facts, however, did not make him a conspirator; at most, he was only an accomplice. The Revised Penal Code provides that a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.[17] To prove conspiracy, the prosecution must establish the following three requisites: (1) that two or more persons came to an agreement, (2) that the agreement concerned the commission of a crime, and (3) that the execution of the felony [was] decided upon.[18] Except in the case of the mastermind of a crime, it must also be shown that the accused performed an overt act in furtherance of the conspiracy.[19] The Court has held that in most instances, direct proof of a previous agreement need not be established, for conspiracy may be deduced from the acts of the accused pointing to a joint purpose, concerted action and community of interest.[20] On the other hand, the Revised Penal Code defines accomplices as those persons who, not being included in Article 17,[21] cooperate in the execution of the offense by previous or simultaneous acts.[22] The Court has held that an accomplice is one who knows the criminal design of the principal and cooperates knowingly or intentionally therewith by an act which, even if not rendered, the crime would be committed just the same.[23] To hold a person liable as an accomplice, two elements must be present: (1) the community of criminal design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; and (2) the performance of previous or simultaneous acts that are not indispensable to the commission of the crime.[24] The distinction between the two concepts needs to be underscored, in view of its effect on appellants penalty. Once conspiracy is proven, the liability is collective and not individual. The act of one of them is deemed the act of all.[25] In the case of an accomplice, the liability is one degree lower than that of a principal. Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense.

Thus, in People v. Castro,[26] the Court convicted Rufino Cinco, together with two others, as a principal, although he had acted merely as a lookout. The Court held that their concerted action in going armed and together to their victims house, and there, while one stayed as a lookout, the other two entered and shot the mayor and his wife, leaving again together afterwards, admits no other rational explanation but conspiracy. It may be noted further that Cinco executed a Sworn Statement that the three of them, together with some others, had planned to kill the victim on the promise of a P5,000 reward. In People v. Tawat et al.,[27] the lookout, Nestor Rojo, was convicted as a principal for conspiring with two others. The Court ruled that the conspiracy was shown by their conduct before, during and after the commission of the crime. The Court also noted that, upon their arrest, they disclosed that they had intended to rob the victims store and that they did so in accordance with their plan. In that case, it was clear that all three of them, including the lookout, were the authors of the crime. In People v. Loreno,[28] the Supreme Court convicted all the accused as principals because they had acted in band. In acting as a lookout, Jimmy Marantal was armed at the time like the other conspirators, and he gave his companions effective means and encouragement to commit the crime of robbery and rape. Upon the other hand, in People v. Corbes,[29] the Court noted that Manuel Vergel knew of the criminal design to commit a robbery, and that he cooperated with the robbers by driving the vehicle to and from the crime scene. In convicting him as an accomplice and not as a conspirator, the Court observed that he was merely approached by one of the robbers who was tasked to look for a getaway vehicle. He was not with the robbers when they resolved to commit a robbery. When his services were requested, the decision to commit the crime had already been made. In People v. Tatlonghari,[30] the Court was asked to resolve the responsibility of some appellants who knowingly aid[ed] the actual killers by casting stones at the victim, and distracting his attention. The Court ruled that they were accomplices and not coconspirators, [i]n the absence of clear proof that the killing was in fact envisaged by them. In People v. Suarez et al.,[31] Wilfredo Lara merely introduced the gang of Reyes to Suarez who intended to perpetrate the crime with the help of the said group. In ruling that he was merely an accomplice, the Court noted that there was no evidence showing that he took part in the planning or execution of the crime, or any proof indicating that he profited from the fruits of the crime, or of acts indicative of confederacy on his part. In People v. Balili,[32] the Court convicted appellant as an accomplice, holding that in going with them, knowing their criminal intention, and in staying outside of the house with them while the others went inside the store to rob and kill, [he] effectively supplied the criminals with material and moral aid, making him guilty as an accompliance. The Court noted that there was no evidence that he had conspired with the malefactors, nor that he actually participated in the commission of the crime.

In People v. Doble,[33] the Court held that Cresencio Doble did not become a conspirator when he looked for a banca that was eventually used by the robbers. Ruled the Court: Neither would it appear that Joe Intsik wanted to draft Crescencio into his band of malefactors that would commit the robbery more than just asking his help to look for a banca. Joe Intsik had enough men, all with arms and weapons to perpetrate the crime, the commission of which needed planning and men to execute the plan with full mutual confidence of each other, which [was] not shown with respect to appellants by the way they were asked to look and provide for a banca just a few hours before the actual robbery. In the present case, Appellant De Vera knew that Kenneth Florendo had intended to kill Capulong at the time, and he cooperated with the latter. But he himself did not participate in the decision to kill Capulong; that decision was made by Florendo and the others. He joined them that afternoon after the decision to kill had already been agreed upon; he was there because nagkahiyaan na. This is clear from his statement, which we quote again for the sake of clarity: T: Ito bang balak ni Kenneth para patayin itong si Frederick ay alam mo ba ito at pumayag kang maging kasapakat nito? S: Sinabi po niya ito sa akin. Hindi po ako pumayag. Pero noong araw na iyon ay nagkahiyaan na lamang at napilitan akong sumama.[34] Significantly, the plan to kill could have been accomplished without him. It should be noted further that he alone was unarmed that afternoon. Florendo and Garcia had guns, and Castro had a baseball bat. In any event, the prosecution evidence has not established that appellant was part of the conspiracy to kill the victim. His participation, as culled from his own Statement, was made, after the decision to kill was already a fait accompli. Thus, in several cases, the Court has held: [L]ack of complete evidence of conspiracy, that creates the doubt whether they had acted as principals or accomplices in the perpetration of the offense, impels this Court to resolve in their favor the question, by holding x x x that they were guilty of the milder form of responsibility, i.e., guilty as mere accomplices.[35]
Second Issue:

Admissibility of Extrajudicial Statement

Extrajudicial confessions must conform to constitutional requirements. Section 12, Article III of the Constitution, provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel,

he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx

statements of people brought before us[,] we see to it [that] we interview the persons personally out of hearing and sight of any police officer. Q: After the police officers left the room, completely left the room[,] you were able to interview the two accused namely Mr. de Vera and Mr. Garcia? A: Yes, I spent about 15 to 20 minutes interviewing the boys. Q: What was the nature of your initial interview with these two accused? A: I asked the boys Roderick and Edwin if it [was] true that they [were] going to give their own statements to the police? Q: And what did they say? A: They said yes, sir. Q: What was your reaction to that? A: Routinely[,] I informed them about their rights under the constitution. xxx xxx xxx

(3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. If the confession meets these requirements, it is subsequently tested for voluntariness, i.e., if it was given freely -- without coercion, intimidation, inducement, or false promises; and credibility, i.e., if it was consistent with the normal experience of mankind. [36] Appellant claims that his extrajudicial statement was inadmissible, because it was not made in the presence of counsel. Although Atty. Confesor Sansano of the Quezon City IBP Legal Aid Committee purportedly assisted him and his co-accused in the execution of their extrajudicial Statements, appellant asserts that the lawyer was in his office, not with them, at the time. Appellant adds that he was tortured. Appellants claims must be rejected. Atty. Sansano testified that he did not leave them at any time. Q: You were involved in the interrogation from the very start? A: Yes, from the beginning to the end of the interview until the boys signed their statements. Q: Did you recall having at any time left your office to attend to some official matters? A: I never left the office to attend to anything. Q: Is that the usual manner by which you assist persons referred to you by the police insofar as custodial investigation is concerned? A: It is our policy that when we assist [in] that capacity, we [want] to see to it that the rights of the accused or suspects are properly [protected] during the course of the entire interrogation.[37] In fact, Atty. Sansano even checked to see if there were torture marks on Appellant De Vera, and Garcia and interviewed the two to make sure that they understood what they were doing. Q: What was your purpose in asking the police officers to leave the room? A: My purpose in asking the police officers to step out of the building was to assure myself that no pressure could be exerted on the two boys by the presence of the police officers during my personal interview. Before we allow any police officers to take the

Q: Having obtained their answers, what next transpired? A: After telling them the statements they may give to the police could be used against them for a [sic] in any court of the Phil., I was satisfied that nobody coerced them, that they were never threatened by anybody much less by the police officers to give these statements. Casually I asked the two boys to raise their upper clothes. xxx xxx xxx

Q: What was your purpose in requiring these persons to show you or remove their upper clothing? A: I wanted to assure myself that there were no telltale signs of torture or bodily harm committed on the[m] prior to their [being brought] to the office. In spite of their [personal] assurances xxx, verbal assurance that they were never hurt.[38] The right to counsel is enshrined in the Constitution in order to address, among others, the use of duress and undue influence in the execution of extrajudicial confessions.[39] In the present case, the Court is satisfied that Atty. Sansano sufficiently fulfilled the objective of this constitutional mandate. Moreover, appellants allegations of torture must be disregarded for being unsubstantiated. To hold otherwise is to facilitate the retraction of solemnly made statements at the mere allegation of torture, without any proof whatsoever.

When an extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a high order, because of the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and conscience.[40] The defense has the burden of proving that it was extracted by means of force, duress or promise of reward.[41] Appellant failed to overcome the overwhelming prosecution evidence to the contrary. Section 3, Rule 133 of the Rules of Court, provides that [a]n extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. In the present case, the prosecution presented other evidence to prove the two elements of corpus delicti: (a) a certain result has been proven for example, a man has died; and (b) some person is criminally responsible.[42] It is indubitable that a crime has been committed, and that the other pieces of prosecution evidence clearly show that appellant had conspired with the other accused to commit the crime. He himself does not deny that he was at the crime scene. In fact, he was seen by the prosecution eyewitness in the company of the gunman. Furthermore, Atty. Sansano and the police officers testified to the voluntariness of his confession. It must be stressed that the aforementioned rule merely requires that there should be some other evidence tending to show the commission of the crime apart from the confession. [43]
Criminal and Civil Liability

basis. Such indemnification partakes of the nature of actual damages, which must be duly proven.[46] In this case, the trial court merely presumed the amount of Capulongs earnings. Since the prosecution did not present evidence of the current income of the deceased, the indemnity for lost earnings must be rejected. WHEREFORE, the appeal is hereby partially GRANTED. Appellant De Vera is CONVICTED as an accomplice, not as a principal, in the crime of murder. He is sentenced to an indeterminate prison term of 8 years and 1 day of prision mayor as minimum, to 14 years 8 months and 1 day of reclusion temporal as maximum. We AFFIRM the awards of: (a) P50,000 indemnity ex delicto, (b) P211,670 as compensatory damages and (c) interest of six percent per annum on these two amounts. The award of moral damages is however REDUCED to P50,000 and the award for the loss of earning capacity is DELETED. No pronouncement as to costs. SO ORDERED. Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur. Vitug, J., Please see separate opinion.
SEPARATE OPINION

In ruling that the crime committed was murder, the trial court found that the killing was attended by treachery, evident premeditation and abuse of superior strength. One of these was enough to qualify the crime as murder; the two others constituted generic aggravating circumstances. The lower court explained that the evidence established evident premeditation, for Florendos group acted with deliberate forethought and tenacious persistence in the accomplishment of the criminal design. Treachery was also proven, because the attack was planned and performed in such a way as to guarantee the execution of the criminal design without risk to the group. There was also abuse of superior strength, because the attackers took advantage of their superiority in numbers and weapons. We disagree with the court a quo in appreciating two generic aggravating circumstances, because treachery absorbs abuse of superior strength.[44] Hence, there is only one generic aggravating circumstance, not two. Notwithstanding the presence of a generic aggravating circumstance, we cannot impose the death penalty, because the crime was committed before the effectivity of the Death Penalty Law. In the present case, the penalty of appellant as an accomplice is one degree lower than that of a principal, which in murder cases is reclusion temporal in its maximum period to death. He is also entitled to the benefits of the Indeterminate Sentence Law. We sustain the trial courts grant of P50,000 as indemnity ex delicto, which may be awarded without need of proof other than the commission of the crime. The award of P211,670 as compensatory damages was duly supported by evidence. Based on the evidence presented, moral damages is also warranted, but only in the amount of P50,000, not P500,000 as fixed by the trial court. Furthermore, we affirm the payment of interest.[45] However, the grant of P600,000 for loss of earning capacity lacks factual

VITUG, J.: I share the ponencia of my colleagues in its affirmance of the conviction of appellants except, with all due respect, insofar as it has concluded that appellant De Vera is guilty merely as an accomplice. There is conspiracy under Article 8 of the Revised penal Code when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy of, course, by itself is legally inconsequential unless the criminal plot is, in fact, carried out. Once the offense is perpetrated, the responsibility of the conspirators is collective, not individual, that render, all of them equally liable regardless of the extent of their respective participations, the act of one being deemed to be the act of the other or the others, in the commission of the felony. An accomplice, under Article 18 of the same Code, is one who, not being a principal who (a) takes a direct part in the execution of the act, (b) directly forces or induces others to commit, (c) cooperates in the commission of the offense by another act without which the offense would not have been accomplished (per Article 17 of the Code), collaborates in the execution of the offense by previous or simultaneous acts. In the case at bar, De Vera, knowing that Florendo intended to kill the victim and that the three co-accused were carrying weapons, he had acted as a lookout to watch for passersby. He was not an innocent spectator; he was at the locus criminis in order to aid and abet the commission of the crime (ponencia).

I cannot bring myself to accept any material variance between the terms to decide, on the one hand, and to concur or to assent, on the other hand, in defining, i.e., whether as a conspirator or as an accomplice, the specific criminal liability of the criminal offender. Where there is concurrence or assent by one to a plan, even when previously hatched by another or others, to commit a felony which concurrence or assent is made prior to the actual perpetration of the offense, and he then actually participates in its commission, regardless of the extent of such participation, his liability should be deemed, in my view, that of a conspirator rather than that of an accomplice. I would equate the liability of an accomplice to one who, knowing of the criminal design, but neither concurring nor assenting to it, cooperates in the execution of the crime short of taking a direct part in, and short of taking an indispensable act for, the commission of the offense. In the last two instances (taking a direct part in, or taking an indispensable act for, the commission of the felony), his participation would be that of a principal under Article 17 of the Revised Penal Code. When appellant De Vera, aware of the plan to kill the victim, agreed to be lookout during the commission of the crime which, in fact, so took place as planned, he rendered himself liable no less than that incurred by his co-accused.

Province of Pangasinan and other provinces. The Manila Railroad Company operates the Benguet Auto Line from Baguio by way of the Kennon Road to Sison. The railroad now desires to extend its auto line from Sison to Binalonan via Pozorrubio in the Province of Pangasinan. If this be permitted it will be a competitor of the busses of the Pangasinan Transportation Company. The basic inquiry in this as in other public service commission cases is whether or not it clearly appears that there was no evidence before the commission to support reasonably its order. Our mature judgment is that the findings of fact made by the commission do not meet this test. In one class of cases it has oft been emphasized, and properly, that the convenience of the public must be taken into account and is a prime criterion. In another class of cases it has as appropriately been emphasized that the investments made by public service operators must be protected rather than destroyed. Here we have the two principles meeting in collision. It is our desire at once to afford all reasonable facilities to the public and afford all reasonable safeguards for capital invested in the transportation business. On the one hand it is shown that there are a few passengers whose convenience would be better served if the Manila Railroad Company was permitted to extend its buss service from Sison to Binalonan. However, their convenience is more fancied than real, for the busses of Pangasinan Transportation company and the Manila Railroad Company meet at Sison and if there is any difference in the hour of meeting this could readily be arranged. On the other side, it is disclosed that while busses of the Pangasinan Transportation Company have a capacity for thirty-two pay passengers, they are only carrying an average load of six passengers on these tripe. It has further been established that from June, 1932, to May, 1933, the Pangasinan Transportation Company lost P2,733.29 on this line alone. Under these conditions, can it be said that public necessity is more compelling than what amounts to ruinous competition? The true effect of granting the petition of the Manila Railroad Company would be to force the Pangasinan Transportation Company out of the SisonPozorrubio-Binalonan territory. Moreover, if the railroad company could extend its auto line Binalonan, it requires no vast amount of imagination to visualize the company extending its line to the next municipality and so on indefinitely, to the great disadvantage of other operators and with the result that they would be deprived of substantial revenue. With all due respect to the Public Service Commission which we are the first to uphold when its decisions can be justified, we are unable to put the stamp of our approval on the principle it has invoked and sanctioned in this case. Agreeable to the foregoing, the assigned errors will be sustained, and the decision set aside, with the costs of both instances to be paid by the respondent and appellee. Street, Villa-Real, Hull, Vickers, Butte, Goddard and Diaz, J., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 41471 September 15, 1934

PANGASINAN TRANSPORTATION COMPANY, petitioner-appellant, vs. MANILA RAILROAD COMPANY, respondent-appellee. C. de G. Alvear for appellant. Jose C. Abreu for appellee. MALCOLM, J.: The petitioner and appellant in this case complains that the Public Service Commission erred in granting to the Manila Railroad Company a certificate of public convenience to invade the regular route adequately and efficiently served by the Pangasinan Transportation Company. The Pangasinan Transportation Company operates an autobus service in the

Separate Opinions IMPERIAL, J., dissenting: The majority opinion for the first time abandons the uniform and well established doctrine in this jurisdiction that this court shall in no case substitute its discretion for the sound discretion of the Public Service Commission as recognized by law, and that the judgment rendered by it shall not be altered nor reversed unless the conclusions therein are not reasonably supported by the evidence (sec. 35, Act No. 3108, as amended by Act No. 3316). The facts of the case are those contained in the majority opinion; but in addition thereto it must be stated that the extension of service applied for, is supported by the testimony of the superintendent of the Benguet Auto Line and also by written petitions signed by more than one hundred (100) residents of Binalonan, most of them merchants; and by a resolution of the municipal council of Binalonan praying that the present service of the appellee be extended from Sison to Binalonan. There can be no doubt that the requested extension of service will redound to the benefit of the public concerned, inasmuch as the proposed trips will save the passengers from the annoyance of having to change cars at the station in Sison and to unload and load their baggage and freight. This is shown by the petitions of numerous persons and the resolution of the municipal council of Binalonan, and no evidence was presented by the appellant which would weaken the evidentiary force of said petitions and resolution. By reason thereof it clearly follows that in this respect the judgment appealed from is reasonably and sufficiently supported by the evidence. In the instant case the doctrine above referred to finds special application inasmuch as no new service is contemplated, but merely an extension of the present line maintained by the Manila Railroad Company is requested. In the case of Raymundo Transportation Co. vs. Perez (56 Phil., 274), this court said: While it is the duty of the government as far as possible to protect public utility operators against unfair and unjustified competition, it is nevertheless obvious that public convenience must have the first consideration. In the case of Mindanao Bus Company vs. Paradies (G.R. No. 38442, 58 Phil., 970), it was also said: It was the convinience of the public that must be taken into account,

other things being equal, and that convenience would effectuated by passengers who take buses at points in one part of the line being able to proceed beyond those points without having to change buses of a competitive operator. We can perceive how under such conditions one public utility could gain business at the expense of a rival. As will be readily be seen, this court in said cases laid down the doctrine that public convinience is the first and primordial consideration to be kept in mind in determining whether a service should be granted and whether a certificate of public convinience should be issued. The majority opinion completely abandons the doctrine thus laid down, and holds that, in conjunction with public convenience, the private interest of an operator should be taken into consideration in order to avoid ruinous competition. In the case at bar the alleged ruinous competition does not exist or, at least, it has not been satisfactorily established. Admitting that the appellant has suffered losses in its trip from Binalonan to Sison as shown by its evidence, this fact, however, does not necessarily lead to conclusion that a ruinous competition will arise from the approval of the extension of service requested by the Manila Railroad Company. The failure of a business of this nature must not be based upon the partial losses suffered by the operator, but upon the result of the business on all the lines maintained by it. The appellant may have really suffered losses in that particular line but the same would be compensated if his business on all the lines shows a reasonable margin of profit. The majority opinion deprives a great part of the public of a necessary and convenient service, and strips the Public Service Commission of the exercise of its sound discretion, and for these reasons, with all due respect, I dissent, and believe that the judgment appealed from should be affirmed. Avancea, C.J. and Abad Santos, J., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 115103 April 11, 2002

BUREAU OF INTERNAL REVENUE, represented by the COMMISSIONER OF INTERNAL REVENUE, petitioner,

vs. OFFICE OF THE OMBUDSMAN, respondent. DE LEON, JR., J.: Graft Investigation Officer II Christopher S. Soquilon of the Office of the Ombudsman (OMBUDSMAN, for brevity) received information from an "informer-for-reward" regarding allegedly anomalous grant of tax refunds to Distillera Limtuaco & Co., Inc. (Limtuaco, for brevity) and La Tondea Distilleries, Inc. Upon receipt of the information, Soquilon recommended 1 to then Ombudsman Conrado M. Vasquez that the "case" be docketed and subsequently assigned to him for investigation.2 On November 29, 1993, the Ombudsman issued a subpoena duces tecum3 addressed to Atty. Millard Mansequiao of the Legal Department of the Bureau of Internal Revenue (BIR) ordering him to appear before the Ombudsman and to bring the complete original case dockets of the refunds granted to Limtuaco and La Tondea. The BIR, through Assistant Commissioner for Legal Service Jaime M. Maza, asked that it be excused from complying with the subpoena duces tecum because (a) the Limtuaco case was pending investigation by Graft Investigation Officer II Napoleon S. Baldrias; and (b) the investigation thereof and that of La Tondea was mooted when the Sandiganbayan ruled in People v. Larin4 that "the legal issue was no longer in question since the BIR had ruled that the ad valorem taxes were erroneously paid and could therefore be the proper subject of a claim for tax credit."5 Without resolving the issues raised by the BIR, the Ombudsman issued another subpoena duces tecum, dated December 9, 1993, addressed to BIR Commissioner Liwayway Vinzons-Chato ordering her to appear before the Ombudsman and to bring the complete original case dockets of the refunds granted to Limtuaco and La Tondea.6 The BIR moved to vacate the subpoena duces tecum arguing that (a) the second subpoena duces tecum was issued without first resolving the issues raised in its Manifestation and Motion dated December 8, 1993; (b) the documents required to be produced were already submitted to Graft Investigation Officer II Baldrias; (c) the issue of the tax credit of ad valorem taxes has already been resolved as proper by the Sandiganbayan; (d) the subpoena duces tecum partook of the nature of an omnibus subpoena because it did not specifically described the particular documents to be produced; (e) there was no clear showing that the tax case dockets sought to be produced contained evidence material to the inquiry; (f) compliance with the subpoena duces tecum would violate Sec. 2697 of the National Internal Revenue Code (NLRC) on unlawful divulgence of trade secrets and Sec. 2778 on procuring unlawful divulgence of trade secrets; and (g) Limtuaco and La Tondea had the right to rely on the correctness and conclusiveness of the decisions of the Commissioner of Internal Revenue.9

The Ombudsman denied10 the Motion to Vacate the Subpoena Duces Tecum, pointing out that the Limtuaco tax refund case then assigned to Baldrias was already referred to the Fact-Finding and Investigation Bureau of the Ombudsman for consolidation with Case No. OMB-0-93-3248. The Ombudsman also claimed that the documents submitted by the BIR to Baldrias were incomplete and not certified. It insisted that the issuance of the subpoena duces tecum was not a "fishing expedition" considering that the documents required for production were clearly and particularly specified.1wphi1.nt The BIR moved to reconsider11 the respondent's Order dated February 15, 1994 alleging that (a) the matter subject of the investigation was beyond the scope of the jurisdiction of the Ombudsman; (b) the subpoena duces tecum was not properly issued in accordance with law; and (c) non-compliance thereto was justifiable. The BIR averred it had the exclusive authority whether to grant a tax credit and that the jurisdiction to review the same was lodged with the Court of Tax Appeals and not with the Ombudsman. According to the BIR, for a subpoena duces tecum to be properly issued in accordance with law, there must first be a pending action because the power to issue a subpoena duces tecum is not an independent proceeding. The BIR noted that the Ombudsman issued the assailed subpoena duces tecum based only on the information obtained from an "informer-for-reward" and the report of Asst. Comm. Imelda L. Reyes. The BIR added that the subpoena duces tecum suffered from a legal infirmity for not specifically describing the documents sought to be produced. Finding no valid reason to reverse its Order dated February 15, 1994, the Ombudsman denied the motion for reconsideration and reiterated its directive to the BIR to produce the documents.12 Instead of complying, the BIR manifested its intention to elevate the case on certiorari to this Court. 13 The Ombudsman thus ordered Asst. Comm. Maza to show cause why he should not be cited for contempt for contumacious refusal to comply with the subpoena duces tecum.14 However, before the expiration of the period within which Asst. Comm. Maza was required to file a reply to the show cause order of the Ombudsman, the BIR filed before this Court the instant Petition for Certiorari, Prohibition and Preliminary Injunction and Temporary Restraining Order.15 Petitioner BIR insists that the investigative power of the Ombudsman is not unbridled. Particularly on the issue of tax refunds, the BIR maintains that the Ombudsman could validly exercise its power to investigate only when there exists an appropriate case and subject to the limitations provided by law.16 Petitioner opines that the fact-finding investigation by the Ombudsman is not the proper case as it is only a step preliminary to the filing of recovery actions on the tax refunds granted to Limtuaco and La Tondea. This Court is not persuaded. No less than the 1987 Constitution enjoins that the

"Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate case, notify the complainants of the action taken and the result thereof."17 Clearly, there is no requirement of a pending action before the Ombudsman could wield its investigative power. The Ombudsman could resort to its investigative prerogative on its own18 or upon a complaint filed in any form or manner. Even when the complaint is verbal or written, unsigned or unverified, the Ombudsman could, on its own, initiate the investigation.19 Thus There can be no objection to this procedure in the Office of the Ombudsman where anonymous letters suffice to start an investigation because it is provided in the Constitution itself. In the second place, it is apparent that in permitting the filing of complaints "in any form and manner," the framers of the Constitution took into account the wellknown reticence of the people which keep them from complaining against official wrongdoings. As this Court had occasion to point out, the Office of the Ombudsman is different from other investigatory and prosecutory agencies of the government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against them. On the other hand complainants are more often than not poor and simple folk who cannot afford to hire lawyers.20 The term "in an appropriate case" has already been clarified by this Court in Almonte v. Vasquez,21 thus Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case" in Art. XI, 12 means any case concerning official act or omission which is alleged to be "illegal, unjust, improper, or inefficient," The phrase "subject to such limitations as may be provided by law" refers to such limitations as may be provided by Congress or, in the absence thereof, to such limitations as may be imposed by courts. Plainly, the pendency of an action is not a prerequisite before the Ombudsman can start its own investigation. Petitioner next avers that the determination of granting tax refunds falls within its exclusive expertise and jurisdiction and that its findings could no longer be disturbed by the Ombudsman purportedly through its investigative power as it was a valid exercise of discretion. Petitioner suggests that what respondent should have done was to appeal its decision of granting tax credits to Limtuaco and La Tondea to the Court of Tax Appeals since it is the proper forum to review the decisions of the Commissioner of Internal Revenue.

This contention of the BIR is baseless. The power to investigate and to prosecute which was granted by law to the Ombudsman is plenary and unqualified.22 The Ombudsman Act makes it perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance and nonfeasance that have been committed by any officer or employee xxx during his tenure of office.23 Concededly, the determination of whether to grant a tax refund falls within the exclusive expertise of the BIR. Nonetheless, when there is a suspicion of even just a tinge of impropriety in the grant of the same, the Ombudsman could rightfully ascertain whether the determination was done in accordance with law and identify the persons who may be held responsible thereto. In that sense, the Ombudsman could not be accused of unlawfully intruding into and intervening with the BIR's exercise of discretion. As correctly posited by the Office of the Solicitor General xxx (T)he Ombudsman undertook the investigation "not as an appellate body exercising the power to review decisions or rulings rendered by a subordinate body, with the end view of affirming or reversing the same, but as an investigative agency tasked to discharge the role as 'protector of the people'24 pursuant to his authority 'to investigate xxx 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."25 The OSG insists that the "mere finality of petitioner's ruling on the subject of tax refund cases is not a legal impediment to the exercise of respondent's investigative authority under the Constitution and its Charter (RA 6770) which xxx is so encompassing as to include 'all kinds of malfeasance, misfeasance and nonfeasance that have been committed by any officer or employee during his tenure of office.'"26 Indeed, the clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from the performance of official duty.27 Petitioner fears that the fact-finding investigation being conducted by respondent would only amount to "a general inquisitorial examination on the 'case dockets' with a view to search through them to gather evidence"28 considering that the subpoena duces tecum did not describe with particularity the documents sought to be produced. This Court is unimpressed. We agree with the view taken by the Solicitor General that the assailed subpoena duces tecum indeed particularly and sufficiently described the records to be produced. There is every indication that

petitioner knew precisely what records were being referred to as it even suggested that the tax dockets sought to be produced may not contain evidence material to the inquiry and that it has already submitted the same to Baldrias. The records do not show how the production of the subpoenaed documents would necessarily contravene Sec. 26929 of the National Internal Revenue Code (NIRC) on unlawful divulgence of trade secrets and Sec. 27730 of the same Code on procuring unlawful divulgence of trade secrets. The documents sought to be produced were only the case dockets of the tax refunds granted to Limtuaco and La Tondea which are public records, and the subpoena duces tecum were directed to the public officials who have the official custody of the said records. We find no valid reason why the trade secrets of Limtuaco and La Tondea would be unnecessarily disclosed if such official records, subject of the subpoena duces tecum, were to be produced by the petitioner BIR to respondent Office of the Ombudsman. Assuming, for the sake of argument, that the case dockets of the tax refunds which were granted to Limtuaco and La Tondea contain trade secrets, that fact, however, would not justify their non-production before the Ombudsman. As this Court has underscored in Almote v. Vasquez31 At common law a governmental privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such paramount importance as in and of itself transcending the individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights xxx In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the personnel of EIB. Indeed, EIIB's function is the gathering and evaluation of intelligence reports and information regarding "illegal activities affecting the national economy, such as, but not limited to economic sabotage, smuggling, tax evasion, dollar salting. Consequently, while in cases which involve state secrets it may be sufficient to determine from the circumstances of the case that there is reasonable danger that compulsion of the evidence will expose military maters without compelling production, no similar excuse can be made for a privilege resting on other consideration.1wphi1.nt Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision would only justify ordering their inspection in camera but not their nonproduction xxx Besides, under the facts of this case, petitioner should not have concerned itself with possibly violating the pertinent provisions of the NLRC on unlawful divulgence or unlawful procurement of trade secrets considering Rule V of the Rules of Procedure of the Office of the Ombudsman32 which provides that

(a) Any person whose testimony or production of documents or other evidence is necessary to determine the truth in any inquiry, hearing, or proceeding being conducted by the Office of the Ombudsman or under its authority in the performance or furtherance or its constitutional functions and statutory objectives, including preliminary investigation, may be granted immunity from criminal prosecution by the Ombudsman, upon such terms and conditions as the Ombudsman may determine, taking into account the pertinent provisions of the Rules of Court xxx With regard to the manner in which the investigation was conducted, petitioner asserts that the investigation conducted by the Office of the Ombudsman violated due process, inasmuch as it commenced its investigation by issuing the subpoena duces tecum without first furnishing petitioner with a summary of the complaint and requiring it to submit a written answer.33 The Ombudsman labels this assertion of the BIR as premature maintaining that it is only when the Ombudsman finds reasonable ground to investigate further that it is required to furnish respondent with the summary of the complaint. The Ombudsman insists that in the instant case, it has yet to make that determination. On this score, we rule in favor of petitioner BIR. Records show that immediately upon receipt of the information from an "informer-for-reward", Graft Investigator Soquilon, in a Memorandum dated November 26, 1993 addressed to then Ombudsman Conrado M. Vasquez, requested that the "case" be docketed and assigned to him for a "full-blown fact-finding investigation."34 In his Memorandum, Soquilon averred that he is "certain that these refunds can be recovered by reason of the Tanduay precedent xxx and using the power of this Office, we will not only bring back to the government multi-million illegal refunds but, like the Tanduay case, we will be establishing graft and corruption against key BIR officials."35 In a marginal note dated November 26, 1993,36 Ombudsman Vasquez approved the docketing of the case and its assignment to Soquilon. Likewise, in the Preliminary Evaluation Sheet37 of the Office of the Ombudsman, the Fact Finding Investigation Bureau of the Ombudsman was named as complainant against Concerned High Ranking and Key Officials of the Bureau of Internal Revenue who granted multi-million tax refunds to Limtuaco and La Tondea Distilleries for alleged violation of RA 3019. On November 29, 1993 and December 9, 1993 Soquilon issued the assailed subpoena duces tecum requiring the concerned BIR officials to appear before the Ombudsman and to bring with them the complete case dockets of the tax refunds granted to Limtuaco and La Tondea. It is our view and we hold that the procedure taken by the respondent did not comply with the safeguards enumerated in Sec. 26, (2) of RA 6770 or the Ombudsman Act of 1989, which clearly provides that (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 therefore. 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 hereof. If the answer is found satisfactory, it shall dismiss the case. The procedure which was followed by the respondent likewise contravened the Rules of Procedure of the Office of the Ombudsman,38 Sec. 4, Rule 11 of which provides that (a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complaint or supporting witnesses to execute affidavits to substantiate the complaints. (b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits xxx It is clear from the initial comments of Soquilon in his Memorandum to Ombudsman Vasquez that he undoubtedly found reasonable grounds to investigate further. In fact, he recommended that the "case" be docketed immediately and assigned to him for a "full-blown fact-finding investigation." Even during that initial stage, Soquilon was convinced that the granting of the tax refunds was so anomalous that he assured Ombudsman Vasquez of the eventual recovery of the tax refunds and the prosecution and conviction of key BIR officials for graft and corruption. We commend the graft investigators of the Office of the Ombudsman in their efforts to cleanse our bureaucracy of scalawags. Sometimes, however, in their zeal and haste to pin down the culprits they tend to circumvent some procedures. In this case, Graft Investigation Officer Soquilon forgot that there are always two (2) sides to an issue and that each party must be given every opportunity to air his grievance or explain his side as the case may be. This is the essence of due process. The law clearly provides that if there is a reasonable ground to investigate further, the investigator of the Office of the Ombudsman 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 (72) hours from receipt thereof. In the instant case, the BIR officials concerned were never furnished by the respondent with a summary of the complaint and were not given the opportunity to submit their counter-affidavits and controverting

evidence. Instead, they were summarily ordered to appear before the Ombudsman and to produce the case dockets of the tax refunds granted to Limtuaco and La Tondea. They are aggrieved in that, from the point of view of the respondent, they were already deemed probably guilty of granting anomalous tax refunds. Plainly, respondent Office of the Ombudsman failed to afford petitioner with the basics of due process in conducting its investigation. WHEREFORE, the petition is GRANTED. The respondent Office of the Ombudsman is prohibited and ordered to desist from proceeding with Case No. OMB-0-93-3248; and its Orders dated November 29, 1993, December 9, 1993 and February 15, 1994 are hereby ANNULLED and SET ASIDE. SO ORDERED. Bellosillo, Mendoza, and Quisumbing, JJ., concur. ===================================================

SECOND DIVISION [G.R. Nos. 145957-68. January 25, 2002] OFFICE OF THE OMBUDSMAN, petitioner, vs. RUBEN ENOC, SUSANA B. ABAWAG, DOMINADOR D. DALA, CARLOS L. DENIA, ELVIRA I. LIM, TEODORO YOS, DIOMEDES E. MIRAFUENTES, JOSEFINA L. TUNGAL, EMMA L. BERNALES, LETICIA LAGUNSAY, and EVANGELINE GALLITO, respondents. DECISION MENDOZA, J.: This is a petition for review on certiorari of the order, dated October 7, 2000, of the Regional Trial Court, Branch 19 of Digos, Davao del Sur, dismissing Criminal Case Nos. 374(97) to 385(97) against respondents. The antecedent facts are as follows: Respondents were employed at the Office of the Southern Cultural Communities (OSCC), Davao del Sur, Provincial Office, Digos, Davao del Sur with salaries below grade 27, as follows: 1. Mr. Ruben Enoc, Provincial Officer 2. Ms. Susana B. Abawag, Special Disbursing Officer

3. Mr. Dominador D. Dala, Supply Officer 4. Mr. Teodoro Yos, Inspector 5. Ms. Leticia Lagunsay, Employee 6. Ms. Emma Ligason-Bernales, Public Health Nurse I 7. Ms. Elvira I. Lim, Development Management Officer (DMO) II 8. Dr. Carlos L. Denia, Medical Officer IV 9. Mr. Diomedes E. Mirafuentes, DMO II 10. 11. Ms. Evangeline Gallito, Employee Ms. Josefina Labo-Tungal, Officer-In-Charge, OSCC Bansalan Sub-Office

6770 IS NOT A DELIMITATION OF ITS JURISDICTION SOLELY TO SANDIGANBAYAN CASES; AND III. THE AUTHORITY OF THE OFFICE OF THE SPECIAL PROSECUTOR TO PROSECUTE CASES BEFORE THE SANDIGANBAYAN CANNOT BE CONFUSED WITH THE BROADER INVESTIGATORY AND PROSECUTORIAL POWERS OF THE OFFICE OF THE OMBUDSMAN. Respondents were required to comment but only respondent Carlos L. Denia did so. He acknowledges that: In view of the [March 20, 2001] pronouncement of the Honorable Court in the case of George Uy v. Sandiganbayan, G.R. Nos. 105665-70 that the Office of the Ombudsman is authorized to investigate and prosecute all cases involving public officials and employees, without distinction as to their rank and the nature of their act or omission, the filing of the subject Informations by the said office were not defective. In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on March 20, 2001 in Uy v. Sandiganbayan reconsidering the ruling that the prosecutory power of the Ombudsman extended only to cases cognizable by the Sandiganbayan. Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause any illegal act or omission of any public official is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman to take over, at any stage, from any investigatory agency of the government, the investigation of such cases. The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public

They were charged with 11 counts of malversation through falsification, based on alleged purchases of medicine and food assistance for cultural community members, and one count of violation of R.A. No. 3019, 3(e), in connection with the purchases of supplies for the OSCC without bidding/canvass. As none of the respondents has the rank required under R.A. No. 8249 to be tried for the said crimes in the Sandiganbayan, the informations were filed by the Ombudsman in the Regional Trial Court of Digos, Davao del Sur, where they were docketed as Criminal Case Nos. 374(97) to 385(97), and assigned to Branch 19 of the court. Respondents moved to quash the informations invoking the ruling in Uy v. Sandiganbayan that the Ombudsman has no authority to prosecute graft cases falling within the jurisdiction of regular courts. This motion was granted by the RTC and the cases were dismissed without prejudice, however, to their refiling by the appropriate officer. The Office of the Ombudsman filed the instant petition contending that THE TRIAL COURT ERRED WHEN IT HELD THAT THE OMBUDSMAN HAS NO JURISDICTION TO INVESTIGATE, FILE INFORMATION, AND PROSECUTE CASES BEFORE THE REGULAR COURTS. I. THE JURISDICTION OF THE HONORABLE SANDIGANBAYAN IS NOT PARALLEL TO, NOR TO BE EQUATED WITH, THE BROADER JURISDICTION OF THE OFFICE OF THE OMBUDSMAN; II. THE PHRASE PRIMARY JURISDICTION OF THE OFFICE OF THE OMBUDSMAN OVER CASES COGNIZABLE BY THE SANDIGANBAYAN AS USED IN SECTION 15 (1), R.A. No.

officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office. Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11(4c) of RA 6770. We, therefore, hold that the Ombudsman has authority to investigate and prosecute Criminal Case Nos. 374(97) to 385(97) against respondents in the RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not exclusive and is shared by him with the regular prosecutors. WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court, branch 19 of Digos, Davao del Sur is SET ASIDE and Criminal Case Nos. 374(97) to 385(97) are hereby REINSTATED and the Regional Trial Court is ORDERED to try and decide the same. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur. Per Judge Hilario I. Mapayo. Petition, Annex A; Rollo, pp. 36-37. Rollo, p. 38. An Act Further Defining the Jurisdiction of the Sandiganbayan, Amending for the Purpose Presidential Decree No. 1606, as amended, Providing Funds Therefor, and for Other Purposes. 312 SCRA 77 (1999). Petition, p. 6; Rollo, p. 16.

Rollo, p. 190.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 124295 October 23, 2001

JUDGE RENATO A. FUENTES, petitioner, vs. OFFICE OF THE OMBUDSMAN-MINDANAO, GRAFT INVESTIGATION OFFICER II, MARIVIC A. TRABAJO-DARAY, ANTONIO E. VALENZUELA in his capacity as the Director for Fact Finding and Intelligence of the Office of the Deputy Ombudsman for Mindanao, and MARGARITO P. GERVACIO, JR., in his capacity as Deputy Ombudsman for Mindanao, respondents. PARDO, J.: The case is a petition1 for certiorari assailing the propriety of the Ombudsman's action investigating petitioner for violation of Republic Act No. 3019, Section 3(e).2 On August 23, 1995, we promulgated a decision in Administrative Matter No. RTJ-94-1270.3 The antecedent facts are as follows: "x x x [P]ursuant to the government's plan to construct its first fly-over in Davao City, the Republic of the Philippines (represented by DPWH) filed an expropriation case against the owners of the properties affected by the project, namely, defendants Tessie Amadeo, Reynaldo Lao and Rev. Alfonso Galo. The case was docketed as Special Civil Case No. 22,052-93 and presided by Judge Renato A. Fuentes. "The government won the expropriation case. x x x "As of May 19, 1994, the DPWH still owed the defendants-lot owners, the total sum of P15,510,415.00 broken down as follows: Dr. Reynaldo Lao Tessie P. Amadeo Rev. Alfonso Galo P 489,000.00 P 1,094,200.00 P 13,927,215.00

"In an order dated April 5, 1994, the lower court granted Tessie Amadeo's motion for the issuance of a writ of execution against the DPWH to satisfy her unpaid claim. The Order was received by DPWH (Regional XI) through its Legal Officer, Atty. Warelito Cartagena. DPWH's counsel, the Office of the Solicitor General, received its copy of the order only on May 10, 1994. "On April 6, 1994, Clerk of Court Rogelio Fabro issued the corresponding Writ of Execution. On April 15, 1994, the writ was served by respondent Sheriff Paralisan to the DPWH-Region XI (Legal Services) through William Nagar. "On May 3, 1994, respondent Sheriff Paralisan issued a Notice of Levy, addressed to the Regional Director of the DPWH, Davao City, describing the properties subject of the levy as 'All scrap iron/junks found in the premises of the Department of Public Works and Highways depot at Panacan, Davao City'x x x. "The auction sale pushed through on May 18, 1994 at the DPWH depot in Panacan, Davao City. Alex Bacquial emerged as the highest bidder. x x x Sheriff Paralisan issued the corresponding certificate of sale in favor of Alex Bacquial. x x x "Meanwhile, Alex Bacquial, together with respondent Sheriff Paralisan, attempted to withdraw the auctioned properties on May 19, 1994. They were, however, prevented from doing so by the custodian of the subject DPWH properties, a certain Engr. Ramon Alejo, Regional Equipment Engineer, Regional Equipment Services, DPWH depot in Panacan, Davao City. Engr. Alejo claimed that his office was totally unaware of the auction sale, and informed the sheriff that many of the properties within the holding area of the depot were still serviceable and were due for repair and rehabilitation. "On May 20, 1994, Alex Bacquial filed an ex-parte urgent motion for the issuance of a 'break through' order to enable him to effect the withdrawal of the auctioned properties. The motion was granted by Judge Fuentes on the same date. "On May 21, 1994, Alex Bacquial and Sheriff Paralisan returned to the depot, armed with the lower court's order."4 Thus, Bacquial succeeded in hauling off the scrap iron/junk equipment in the depot, including the repairable equipment within the DPWH depot. He hauled equipment from the depot for five successive days until the lower court issued another order temporarily suspending the writ of execution it earlier issued in the expropriation case and directing Bacquial not to implement the writ.5

However, on June 21, 1994, the lower court issued another order upholding the validity of the writ of execution issued in favor of the defendants in Special Civil Case No. 22, 052-93.6 On the basis of letters from Congressman Manuel M. Garcia of the Second District of Davao City and Engineer Ramon A. Alejo, the Court Administrator, Supreme Court directed Judge Renato A. Fuentes and Sheriff Norberto Paralisan to comment on the report recommending the filing of an administrative case against the sheriff and other persons responsible for the anomalous implementation of the writ of execution. Also, on September 21, 1994, the Department of Public Works and Highways, through the Solicitor General, filed an administrative complaint against Sheriff Norberto Paralisan for conduct prejudicial to the best interest of the service, in violation of Article IX, Section 36 (b) of P. D. No. 807.7 After considering the foregoing facts, on August 23, 1995, the Supreme Court promulgated a decision, the dispositive portion of which states: "IN VIEW WHEREOF, respondent NORBERTO PARALISAN, Sheriff IV, Regional Trial Court (Branch XVII), Davao City, is declared guilty of conduct prejudicial to the best interest of the service, in violation of Section 36 (b), Article IX of PD 807. Accordingly, respondent sheriff is DISMISSED from the service, with forfeiture of all retirement benefits and accrued leave credits and with prejudice to reemployment in any branch or instrumentality of the government, including governmentowned or controlled corporations. The office of the Court Administrator is directed to conduct an investigation on Judge Renato Fuentes and to charge him if the result of the investigation so warrants. The Office of the Solicitor General is likewise ordered to take appropriate action to recover the value of the serviceable or repairable equipment which were unlawfully hauled by Alex Bacquial."8 (italics ours) On January 15, 1996, Director Antonio E. Valenzuela (hereafter, Valenzuela) of the Office of the Ombudsman-Mindanao recommended that petitioner Judge Renato A. Fuentes be charged before the Sandiganbayan with violation of Republic Act No. 3019, Section 3 (e) and likewise be administratively charged before the Supreme Court with acts unbecoming of a judge.9 On January 22, 1996, Director Valenzuela filed with the Office of the Deputy Ombudsman for Mindanao a criminal complaint10 charging Judge Rentao A. Fuentes with violation of Republic Act No. 3019, Section 3 (e). On February 6, 1996, the Office of the Ombudsman-Mindanao through Graft Investigation Officer II Marivic A. Trabajo-Daray issued an order directing petitioner to submit his counter-affidavit within ten days.11 On February 22, 1996, petitioner filed with the Office of the OmbudsmanMindanao a motion to dismiss complaint and/or manifestation to forward all

records to the Supreme Court.12 On March 15, 1996, Graft Investigation Officer Marivic A. Trabajo-Daray denied the motion of petitioner.13 Hence, this petition.14 The issue is whether the Ombudsman may conduct an investigation of acts of a judge in the exercise of his official functions alleged to be in violation of the Anti-Graft and Corrupt Practices Act, in the absence of an administrative charge for the same acts before the Supreme Court. Petitioner alleged that the respondent Ombudsman-Mindanao committed a grave abuse of discretion amounting to lack or excess of jurisdiction when he initiated a criminal complaint against petitioner for violation of R.A. No. 3019, Section 3 [e]. And he conducted an investigation of said complaint against petitioner. Thus, he encroached on the power of the Supreme Court of administrative supervision over all courts and its personnel. The Solicitor General submitted that the Ombudsman may conduct an investigation because the Supreme Court is not in possession of any record which would verify the propriety of the issuance of the questioned order and writ. Moreover, the Court Administrator has not filed any administrative case against petitioner judge that would pose similar issues on the present inquiry of the Ombudsman-Mindanao. We grant the petition. Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989, provides: "Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases."15 xxx xxx xxx

the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary."16 (underscoring ours) Thus, the Ombudsman may not initiate or investigate a criminal or administrative complaint before his office against petitioner judge, pursuant to his power to investigate public officers. The Ombudsman must indorse the case to the Supreme Court, for appropriate action. Article VIII, Section 6 of the Constitution exclusively vests in the Supreme Court administrative supervision over all courts and court personnel, from the Presiding Justice of the Court of Appeals to the lowest municipal trial court clerk.17 Hence, it is the Supreme Court that is tasked to oversee the judges and court personnel and take the proper administrative action against them if they commit any violation of the laws of the land. No other branch of government may intrude into this power, without running afoul of the independence of the judiciary and the doctrine of separation of powers.18 Petitioner's questioned order directing the attachment of government property and issuing a writ of execution were done in relation to his office, well within his official functions. The order may be erroneous or void for lack or excess of jurisdiction. However, whether or not such order of execution was valid under the given circumstances, must be inquired into in the course of the judicial action only by the Supreme Court that is tasked to supervise the courts. "No other entity or official of the Government, not the prosecution or investigation service of any other branch, not any functionary thereof, has competence to review a judicial order or decision--whether final and executory or not--and pronounce it erroneous so as to lay the basis for a criminal or administrative complaint for rendering an unjust judgment or order. That prerogative belongs to the courts alone."19 WHEREFORE, the petition is GRANTED. The Ombudsman is directed to dismiss the case and refer the complaint against petitioner Judge Renato A. Fuentes to the Supreme Court for appropriate action. No costs. SO ORDERED. Davide, Jr., CJ., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur. Vitug, J., on official leave.

"Section 21. Officials Subject To Disciplinary Authority, Exceptions.- The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including members of

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