Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC.,
ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA,
THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope.26 There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice —
 Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829,
PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
 "(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60 With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.1âwphi1.nêt

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
"… it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the
law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
– it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.
 4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.
According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.
 I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as
it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."
That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it
 Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
 Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
 under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted
in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"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."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
 responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was
xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
 26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Footnotes

1
Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2
PDI, October 6, 2000, pp. A1 and A18.

3
Ibid., October 12, 2000, pp. A1 and A17.

4
Ibid., October 14, 2000, p. A1.

5
Ibid., October 18, 2000, p. A1.

6
Ibid., October 13, 2000, pp. A1 and A21.

7
Ibid., October 26, 2000, p. A1.

8
Ibid., November 2, 2000, p. A1.

9
Ibid., November 3, 2000, p. A1.

10
Ibid., November 4, 2000, p. A1.

11
The complaint for impeachment was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Constitution.

12
Ibid., November 14, 2000, p. A1.

13
Ibid., November 21, 2000, p. A1.

14
Ibid., December 8, 2000, p. A1.

15
Ibid., December 23, 2000, pp. A1 and A19.

16
Ibid., January 12, 2001, p. A1.
17
Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon,
Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who vote "no"
were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.

18
Philippine Star, January 17, 2001, p. 1.

19
Ibid., January 18, 2001, p. 4.

20
Ibid., p. 1.

21
Ibid., January 19, 2001, pp. 1 and 8.

22
"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"),
PDI, February 4, 2001, p. A16.

23
Philippine Star, January 20, 2001, p. 4.

24
PDI, February 4, 2001, p. A16.

25
Philippine Star, January 20, 2001, pp. 1 and 11.

26
Ibid., January 20, 2001, p. 3.

27
PDI, February 5, 2001, pp. A1 and A6.

28
Philippine Star, January 21, 2001, p. 1.

29
PDI, February 6, 2001, p. A12.

30
Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31
Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32
Ibid.

33
Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34
Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001,
p. 3; PDI, January 25, 2001, pp. A1 and A15.

35
Philippine Star, January 24, 2001, p. 1.

36
PDI, January 25, 2001, p. 1.

37
Ibid., p. 2.

38
Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39
Annex D, id; ibid., p. 292.
40
PDI, January 27, 2001, p. 1.

41
PDI, February 13, 2001, p. A2.

42
Philippine Star, February 13, 2001, p. A2.

43
Annex E, id.; ibid., p. 295.

44
PDI, February 8, 2001, pp. A1 & A19.

45
Annex F, id.; ibid., p. 297.

46
PDI, February 10, 2001, p. A2.

47
Annex G, id.; ibid., p. 299.

48
PDI, February 8, 2001, p. A19.

49
Philippine Star, February 3, 2001, p. 4.

50
"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16,
2001, p. 14.

51
See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos.
146710-15, pp. 525-527.

52
See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-
125.

53
Rollo, G.R. No. 146738, p. 134.

54
Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

55
Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56
369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57
See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos
v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag
v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58
103 Phil 1051, 1068 (1957).

59
Section 1, Article VIII, 1987 Constitution.
60
Note that the early treatises on Constitutional Law are discourses on limitations of power
typical of which is, Cooley's Constitutional Limitations.

61
Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres.
Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay
v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

62
Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63
Proclamation No. 3 (1986).

64
It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to
the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65
See "Filipinas Despues de Cien Años" (The Philippines a Century Hence), p. 62.

66
The guaranty was taken from Amendment I of the US Constitution which provides:
"Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievance."

67
See section 8, Article IV.

68
See section 9, Article IV.

69
Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70
Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357,
375-76) where he said "… the greatest menace to freedom is an inert people …"

71
307 US 496 (1939).

72
Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

73
260 SCRA 798 (1996).

74
Section 1, Article II of the 1987 Constitution reads:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them."
75
Infra at 26.

76
Infra at 41.

77
1 Cranch (5 US) 137, 2 L ed 60 (1803).

78
Gonzales v. Hernandez, 2 SCRA 228 (1961).

79
See its February 4, 5, and 6, 2001 issues.

80
PDI, February 4, 2001, p. A1.

81
Ibid.

82
Ibid.

83
Ibid.

84
Ibid.

85
Ibid.

86
PDI, February 5, 2001, p. A1.

87
Ibid., p. A-1.

88
Ibid.

89
PDI, February 5, 2001, P. A6.

90
PDI, February 6, 2001, p. A1.

91
In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary
Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political
Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner
would not sign the letter.

92
Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

93
Id., May 9, 1959, p. 1988

94
Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly
convicted."

95
Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.

96
House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:
"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as
the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of
the people is the voice of God" establishes the basis of her mandate on integrity and morality
in government;

WHEREAS, the House of Representatives joins the church, youth, labor and business
sectors in fully supporting the President's strong determination to succeed;

WHEREAS, the House of Representatives is likewise one with the people in supporting
President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a
divided nation in order to 'build an edifice of peace, progress and economic stability' for the
country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration
of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

97
11th Congress, 3rd Session (2001).

98
11th Congress, 3rd Session (2001).

99
Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.

100
11th Congress, 3rd Session (2001).

101
11th Congress, 3rd Session (2001).

102
103 Phil 1051, 1067 (1957).

103
Baker vs. Carr, supra at 686 headnote 29.

104
16 Phil 534 (1910).
105
The logical basis for executive immunity from suit was originally founded upon the idea
that the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L.
Rev., 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval
England when it was generally accepted that the seat of sovereignty and governmental
power resides in the throne. During that historical, juncture, it was believed that allowing the
King to be sued in his courts was a contradiction to the sovereignty of the King.

With the development of democratic thoughts and institutions, this kind of rationalization
eventually lost its moral force. In the United States, for example, the common law maxim
regarding the King's infallibility had limited reception among the framers of the Constitution.
[J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and
vitality. The privilege, however, is now justified for different reasons. First, the doctrine is
rooted in the constitutional tradition of separation of powers and supported by history. [Nixon
v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as
demanding the executive's independence from the judiciary, so that the President should not
be subject to the judiciary's whim. Second, by reason of public convenience, the grant is to
assure the exercise of presidential duties and functions free from any hindrance or
distraction, considering that the Chief Executive is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393
(1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling
litigation, disrespect upon his person will be generated, and distrust in the government will
soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public
policy, it was recognized that the gains from discouraging official excesses might be more
than offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity,
the president would be disinclined to exercise decision-making functions in a manner that
might detrimentally affect an individual or group of individuals. [See H. Schechter, Immunity
of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106
62 Phil. L.J. 113 (1987).

107
See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108
Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109
Supra at 47.

110
Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111
145 SCRA 160 (1986).

112
128 SCRA 324 (1984).

113
In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988);
and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114
Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

115
418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).
 116
457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117
520 U.S. 681 (1997).

118
See section 1, Art. XI of the 1987 Constitution.

119
See section 27, Art. II of the 1987 Constitution.

120
See, section 1, Art. XI of the 1987 Constitution.

121
See section 15, Art. XI of the 1987 Constitution.

122
See section 4, Art. XI of the 1987 Constitution.

123
See section 13 (1), Art. XI of the 1987 Constitution.

124
See section 14, Art. XI of the 1987 Constitution.

125
See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American
Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75,
No. 5, pp. 1412-1451 (November 2000).

126
Id., p. 1417.

127
See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee,
249 SCRA 54 (1995)

128
249 SCRA 54 (1955)

129
287 SCRA 581 at pp. 596-597 (1998)

130
247 SCRA 652 (1995)

131
Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

132
Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134
See section 4, Rule 112.

135
Estes v. Texas, 381 US 532, 540 (1965).

CONCURRING OPINION

VITUG, J.:

This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could
have been one innocuous phenomenon buried in the pages of our history but for its critical
dimensions. Now, EDSA 2 would be far from being just another event in our annals. To this day, it is
asked – Is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines?
To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph
Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million
Filipinos in the elections of May 1998, served well over two years until January 2001. Formally
impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery,
Betrayal of Public Trust and Culpable violation of the Constitution, he was tried by the Senate. The
Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if convicted, he would be
removed from office and face prosecution with the regular courts or, if acquitted, he would remain in
office. An evidence, however, presented by the prosecution tagged as the "second envelope" would
have it differently. The denial by the impeachment court of the pleas to have the dreaded envelope
opened promptly put the trial into a halt. Within hours after the controversial Senate decision, an
angered people trooped again to the site of the previous uprising in 1986 that toppled the 20-year
rule of former President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering
swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola
reportedly poised to storm Malacañang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for
him to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but
beleaguered by solitude-empty of the support by the military and the police, abandoned most of his
cabinet members, and with hardly any firm succor from constituents. And despite the alleged
popularity that brought him to power, mass sentiment now appeared to be for his immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo,
then incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a
letter, sent through "fax" at about half past seven o'clock in the morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties of his office resulting in his permanent disability to
govern the serve his unexpired term. Almost all of his cabinet members have resigned and the
Philippine National police have withdrawn their support for Joseph Ejercito Estrada. Civil society has
likewise refused to recognize him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable Chief
Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City,
Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible
catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to
keep its doors open, had to help assure that the judicial process was seen to be functioning. As the
hours passed, however, the extremely volatile situation was getting more precarious by the minute,
and the combustible ingredients were all but ready to ignite. The country was faced with a
phenomenon --- the phenomenon of a people, who, in the exercise of sovereignty perhaps too
limitless to be explicitly contained and constrained by the limited words and phrases of the
constitution, directly sought to remove their president from office. On that morning of the 20th of
January, the his tribunal was confronted with a dilemma ----- should it choose a literal and narrow
view of the constitution, invoke the rule of strict law, and exercise its characteristics reticence? Or
was it propitious for it to itself take a hand? The first was fraught with danger and evidently too risky
to accept. The second could very well help avert imminent bloodshed. Given the realities; the Court
was left hardly with choice. Paradoxically, the first option would almost certainly imperil the
Constitution, the second could save it. The confirmatory resolution was issued following the en
banc session of the Court on 22 January 2001; it read:

"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to take her Oath of
Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines,
addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which
request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the
authority given by the twelve (12) members of the Court then present to the Chief justice on January
20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of
the Philippines, at noon of January 20, 2001.

"This resolution is without prejudice to the disposition of any justiceable case which may be filed by a
proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet
another "bloodless revolution." The Court could not have remained placid amidst the worsening
situation at the time. It could not in conscience allow the high-strung emotions and passions of
EDSA to reach the gates of Malacañang. The military and police defections created stigma that
could not be left unguarded by a vacuum in the presidency. The danger was simply overwhelming.
The extra-ordinariness of the reality called for an extra-ordinary solution. The court has chosen to
prevent rather than cure an enigma incapable of being recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise
of healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the
legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was
still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the
Vice-President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in
case of death, permanent disability, removal from office, or resignation of the President,1secondly,
when the President of the Senate and the Speaker of the House of representatives his written declaration
that he is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the
members of the cabinet transmit to the President and to the speaker of the House of representatives their
written declaration that the President is unable to discharge the powers and duties of his office, 3 the
latter two grounds being culled as the "disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the
above situations have occurred. The conditions for constitutional succession have not been met. He
states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes
his letters to both Chambers of the Congress consistent with section 11 of Article VII of the 1987
Constitution. The twin letters, dated 20 January 2001, to the two houses read:

"By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice-President shall be acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the
case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up or the act of an officer by which he renounces his office
indefinitely. In order to constitute a complete and operative act of resignation, the officer or employee
must show a clear intention to relinquish or surrender his position accompanied by an act of
relinquishment. Resignation implies, of the intention to surrender, renounce, relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has
not once been embodied in his letters or said in his statements. I am unable to oblige. The
contemporary acts of Estrada during those four critical days of January are evident of his intention to
relinquish his office. Scarcity of words may not easily cloak reality and hide true intentions. Crippled
to discharge his duties, the embattled President acceded to have negotiations conducted for a
smooth transition of power. The belated proposals of the President to have the impeachment Court
allow the opening of the controversial envelope and to postpone his resignation until 24 January
2001 were both rejected. On the morning of 20 January 2001, the President sent to congress the
following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the vice-president shall be the acting president."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the
morning but the Senate president was said to have received a copy only on the evening of that day.
Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and
inutility in office – not so much by the confluence of events that forces him to step down the seat of
power in a poignant and teary farewell as the recognition of the will of the governed to whom he
owned allegiance. In his "valedictory message," he wrote:

"At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

"It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

"I call on all my supporters and followers to join me in the promotion of a constructive national spirit
of reconciliation and solidarity.

"May the Almighty bless our country and our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office
although not attending by the formalities normally observed in resignation. Abandonment may be
effected by a positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution.
This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions
those that are personal, either by physical or mental in nature, 7 and innate to the individual. If it
were otherwise, when then would the disability last? Would it be when the confluent causes which
have brought about that disability are completely set in reverse? Surely, the idea fails to register well
to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary
government is one which has taken the seat of power by force or in defiance of the legal processes.
Within the political context, a revolution is a complete overthrow of the established government.8 In
its delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and
specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The
government structure has remained intact. Succession to the presidency has been by the duly-
elected Vice-president of the Republic. The military and the police, down the line, have felt to be so
acting in obedience to their mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as
being "a rapid, fundamental and violent domestic change in the dominant values and myths of
society in its political institution, social structure, leadership, government activity and policies.11 "
The distinguished A.J. Milne makes a differentiation between constitutional political action and
a revolutionary political action. A constitutional political action, according to him, is a political within a
legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary
political action, on the other hand, acknowledges no such moral commitment. The latter is directly
towards overthrowing the existing legal order and replacing it with something else.12 And what, one
might ask, is the "legal order" referred to? It is an authoritative code of a polity comprising enacted
rules, along with those in the Constitution13 and concerns itself with structures rather than
personalities in the establishments. Accordingly, structure would prefer to the different branches of
the government and personalities would be the power-holders. If determination would be made
whether a specific legal order is intact or not, what can be vital is not the change in the personalities
but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of
the legal order. The constitutionally-established government structures, embracing various offices
under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and
still other entities, including the Armed Forces of the Philippines and the Philippine National Police
and local governments as well, have all remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore
the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to be a
living testament and memorial of the sovereign will of the people from whom all government
authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by
time, it grows and copes with the changing milieu. The framers of the constitution could not have
anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in
details, but enunciates the general tenets that are intended to apply to all facts that may come about
but which can be brought within its directions. 14 Behind its conciseness is its inclusiveness and its
apertures overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent.
The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and
hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to
be an enduring instrument, its interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with the
vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words cannot
frustrate the inevitable because there is an immense difference between legalism and justice. If only
to secure our democracy and to keep the social order – technicalities must give away. It has been
said that the real essence of justice does not emanate from quibblings over patchwork legal
technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the
ultimate development of social edifice.17 Anything else defeats the spirit and intent of the
Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity.

All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective control
of the entire country, domestically and internationally recognized to be legitimate, acknowledging a
previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic
structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been
saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting
President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span
of years between them, it might be said that popular mass action is fast becoming an
institutionalized enterprise. Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and the rule of the mob, or
between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the
Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting
sands and might tragically open a Pandora's box more potent than the malaise it seeks to address.
Conventional wisdom dictates the indispensable need for great sobriety and extreme circumspection
on our part. In this kind of arena, let us be assumed that we are not overcome by senseless
adventurism and opportunism. The country must not grow oblivious to the innate perils of people
power for no bond can be stretched far too much to its breaking point. To abuse is to destroy that
which we may hold dear. 1âwphi1.nêt

1
Section 8, Article VII, 1987 Constitution

2
Section 11, 1st paragraph, Article VII, 1987 Constitution

3
Ibid., 2nd paragraph

4
Ortiz vs. Comelec, 162 SCRA 812

5
Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January
1998

6
Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7
"Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of
inability to discharge the powers and duties of the Office of the President. Can this written
declaration to be done for and in behalf of the President if, for example, the President is in no
position to sign his name, like he suffers an accident and both his arms get to be amputated?

"Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we
borrowed this provision, but we feel that in remote situation that the Commissioner has cited
in that the President cannot make a written declaration, I suppose an alternative would be
considered wherein he can so expressly manifest in an authentic manner what should be
contained in a written declaration. xxx
 "Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really,
the physical disability of the gentleman was never made clear to the historians. But suppose
a situation will happen in our country where the President may suffer coma and gets to be
unconscious, which is practically a total inability to discharge the powers and duties of his
office, how can he submit a written declaration of inability to perform the duties and functions
of his office?

"x x x x x x x x x

"FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.

"Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment
to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such
situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they
have had situations in the United States, including those of President Garfield, President
Wilson, President Roosevelt and President Eisenhower."

(11 RECORDS, PP. 421-423)

8
Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9
Ibid.

10
Ibid.

11
Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE
QUARTERLY

12
Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453,
456 (1973)

13
Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines
Law Journal, 390-391 (1971)

14
16 American Jurisprudence 2d.

15
State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

16
John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763

17
Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

18
Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No.
73748, May 22, 1986.

CONCURRING OPINION

MENDOZA, J.:
In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo.
In G.R. No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito
Estrada is the lawful President of the Philippines and that respondent Gloria Macapagal-Arroyo is
merely acting President on account o the former's temporary disability. On the other hand, in G.R.
Nos. 146710-15, the petition seeks to prohibit respondent Ombudsman Aniano Desierto from
investigating charges of plunder, bribery, malversation of public funds, and graft and corruption
against petitioner Estrada on the theory that, being still President, he is immune from suit.

In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria
Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria Macapagal-Arroyo
contends that the matter is not justiciable because of "the virtual impossibility of undoing what has
been done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of the
events starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1 In
support of this contention, respondent cites the following statements of this Court concerning the
Aquino government which it is alleged applies to her administration:

. . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon C. Aquino which is in effective
control of the entire country so that it is not merely a de facto government but is in fact and law a de
jure government. Moreover, the community of nations has recognized the legitimacy of the present
government. All the eleven members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government.2

From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional methods
of making such change have proved inadequate or are so obstructed as to be unavailable." It has
been said that "the locus of positive law-making power lies with the people of the state" and from
there is derived" the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution."3

But the Aquino government was a revolutionary government which was established following the
overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the
subject of judicial review. If a court decides the question at all qua court, it must necessarily affirm
the existence and authority of such government under which it is exercising judicial power.4 As
Melville Weston long ago put it, "the men who were judges under the old regime and the men who
are called to be judges under the new have each to decide as individuals what they are to do; and it
may be that they choose at grave peril with the factional outcome still uncertain."5 This is what the
Court did in Javellana v. Executive Secretary6 when it held that the question of validity of the 1973
Constitution was political and affirmed that it was itself part of the new government. As the Court
said in Occena v. COMELEC7 and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong
forum. We sit as a Court duty-bound to uphold and apply that Constitution. . . . It is much too late in
the day to deny the force and applicability of the 1973 Constitution."

In contrast, these cases do not involve the legitimacy of a government. They only involve the
legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents is
precisely that Macapagal-Arroyo's ascension to the presidency was in accordance with the
Constitution.9

Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk
about the fact that it was brought about by succession due to resignation or permanent disability of
petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is that in the contest
for power Macapagal-Arroyo's government is the successful one and is now accepted by the people
and recognized by the community of nations.

But that is not the case here. There was no revolution such as that which took place in February
1986. There was no overthrow of the existing legal order and its replacement by a new one, no
nullification of the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10 In that
case, in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President
Jose Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate
gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session
and, followed by six senators, walked out of the session hall. The remaining senators then declared
the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting
president. The question was whether respondent Cuenco had been validly elected acting president
of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen.
Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital.

Although in the beginning this Court refused to take cognizance of a petition for quo warranto
brought to determine the rightful president of the Senate, among other things, in view of the political
nature of the controversy, involving as it did an internal affair of a coequal branch of the government,
in the end this Court decided to intervene because of the national crisis which developed as a result
of the unresolved question of presidency of the Senate. The situation justifying judicial intervention
was described, thus:

We can take judicial notice that legislative work has been at a standstill; the normal and ordinary
functioning of the Senate has been hampered by the non-attendance to sessions of about one-half
of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like
mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent
persons with well-known addresses and residences and have been in daily contact with news
reporters and photographers. Farce and mockery have been interspersed with actions and
movements provoking conflicts which invite bloodshed.

. . . Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is
highly explosive. It had echoed in the House of Representatives. It has already involved the
President of the Philippines. The situation has created a veritable national crisis, and it is apparent
that solution cannot be expected from any quarter other than this Supreme Court, upon which the
hopes of the people for an effective settlement are pinned.11

In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other alternative but
to meet the challenge of the situation which demands the utmost of judicial temper and judicial
statesmanship. As herein before stated, the present crisis in the Senate is one that imperatively calls
for the intervention of this Court."12 Questions raised concerning respondent Gloria Macapagal-
Arroyo's presidency similarly justify, in my view, judicial intervention in these cases.

Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents contend that
there is nothing else that can be done about the assumption into office of respondent Gloria
Macapagal-Arroyo. What has been done cannot be undone. It is like toothpaste, we are told, which,
once squeezed out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the
tube. Literally, it can be put back by opening the bottom of the tube — that is how toothpaste is put in
tubes at manufacture in the first place. Metaphorically, the toothpaste can also be put back. In G.R.
No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office
of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these
cases be in his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of
law. In election cases, people accept the decisions of courts even if they be against the results as
proclaimed. Recognition given by foreign governments to the presidency poses no problem. So, as
far as the political question argument of respondents is anchored on the difficulty or impossibility of
devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the
Macapagal-Arroyo administration.

This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the
Presidency was in accordance with the Constitution. Art. VII. §8 provides in pertinent parts:

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-
President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice-President, the President
of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been elected and qualified.

The events that led to the departure of petitioner Joseph E. Estrada from office are well known and
need not be recounted in great detail here. They began in October 2000 when allegations of wrong
doings involving bribe-taking, illegal gambling (jueteng), and other forms of corruption were made
against petitioner before the Blue Ribbon Committee of the Senate. On November 13, 2000,
petitioner was impeached by the House of Representatives and, on December 7, impeachment
proceedings were begun in the Senate during which more serious allegations of graft and corruption
against petitioner were made and were only stopped on January 16, 2001 when 11 senators,
sympathetic to petitioner, succeeded in suppressing damaging evidence against petitioner. As a
result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out
and Senate President Aquilino Pimentel resigned after casting his vote against petitioner.

The events, as seen through the eyes of foreign correspondents, are vividly recounted in the
following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the
Memorandum of petitioner in G.R. Nos. 146710-15, thus:

1. The decision immediately sent hundreds of Filipinos out into the streets, triggering
rallies that swelled into a massive four-day demonstration. But while anger was
apparent among the middle classes, Estrada, a master of the common touch, still
retained largely passive support among the poorest Filipinos. Citing that mandate
and exploiting the letter of the Constitution, which stipulates that a written resignation
be presented, he refused to step down even after all of the armed forced, the police
and most of his cabinet withdrew their support for him. [FAR EASTERN ECONOMIC
REVIEW, "More Power to The Powerful", id, at p. 18].
2. When an entire night passed without Estrada's resignation, tens of thousands of
frustrated protesters marched on Malacañang to demand that the president leave
office. An air force fighter jet and four military helicopters buzzed the palace to
remind the president that had lost the reins of power. [FAR EASTERN ECONOMIC
REVIEW, supra, ibid].
3. While the television cameras were focused on the rallies – and the commentators
became lost in reveries about People Power revisited – behind-the-scenes
negotiations had been going on non-stop between military factions loyal to Estrada
and those who advocated a quick coup to depose the President. Chief of Staff Reyes
and Defense Secretary Mercado had made their fateful call to Estrada after luncheon
 attended by all the top commanders. The officers agreed that renouncing Estrada
was the best course, in part because some commanders were urging more drastic
resolution. If the military did not come to a consensus, there loomed the possibility of
factional fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18]
4. It finally took a controversial Supreme Court declaration that the presidency was
effectively vacant to persuade Estrada to pack up and move out to his family home in
Manila – still refusing to sign a letter of resignation and insisting that he was the legal
president [FAR EASTERN ECONOMIC REVIEW, "More Power to the
Powerful", supra, ibid.]. Petitioner then sent two letters, one to the Senate President
and the other to the Speaker of the House, indicating that he was unable to perform
the duties of his Office.13

To recall these events is to note the moral framework in which petitioner's fall from power took place.
Petitioner's counsel claimed petitioner was forced out of Malacañang Palace, seat of the Presidency,
because petitioner was "threatened with mayhem."14 What, the President of the Philippines, who
under the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem?
This can only happen because he had lost his moral authority as the elected President.

Indeed, the people power movement did not just happen at the call of some ambitious politicians,
military men, businessmen and/or prelates. It came about because the people, rightly or wrongly,
believed the allegations of graft and corruption made by Luis "Chavit" Singson, Emma Lim, Edgardo
Espiritu, and other witnesses against petitioner. Their testimonies during the impeachment trial were
all televised and heard by millions of people throughout the length and breadth of this archipelago.
As a result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members
resigned, members of the Armed Forces of the Philippines and the Philippine National Police
withdrew their support of the President, while civil society announced its loss of trust and confidence
in him. Public office is a public trust. Petitioner lost the public's trust and as a consequence remained
President only in name. Having lost the command of the armed forces and the national police, he
found Himself vulnerable to threats of mayhem.

This is the confession of one who is beaten. After all, the permanent disability referred to in the
Constitution can be physical, mental or moral, rendering the President unable to exercise the powers
and functions of his office. As his close adviser wrote in his diary of the final hours of petitioner's
presidency:

The President says: "Pagod na pagod na ako. Ayoko na-masyado nang masakit. Pagod na ako sa
red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this-it's too painful. I'm tired
of the red tape, the bureaucracy, the intrigue.)15

Angara himself shared this view of petitioner's inability. He wrote in his diary:

"Let us be realistic," I counter. "The President does not have the capability to organize a counter-
attack. He does not have the AFP or the Philippine National Police on his side. He is not only in a
corner – he is also down."16

This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M.
of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the respondent Vice-
President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not permanently disabled
but only temporarily unable to discharge the powers and duties of his office and therefore can only
be temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, §11.
From this judgment that petitioner became permanently disabled because he had lost the public's
trust, I except extravagant claims of the right of the people to change their government. While Art. II,
§1 of the Constitution says that "sovereignty resides in the people and all government authority
emanates from them," it also says that "the Philippines is a democratic and republican state." This
means that ours is a representative democracy — as distinguished from a direct democracy — in
which the sovereign will of the people is expressed through the ballot, whether in an election,
referendum, initiative, recall (in the case of local officials) or plebiscite. Any exercise of the powers of
sovereignty in any other way is unconstitutional.

Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide
for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right
to revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious
reasons. As the Declaration of Independence of July 4, 1776 of the American Congress states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of
Happiness — That to secure these Rights, Governments are instituted among Men, deriving their
just Powers from the Consent of the Governed, that whenever any Form of Government becomes
destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new
Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to
them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient Causes; and
accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are
sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But
when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a
Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such
Government, and to provide new Guards for their future Security.17

Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a
revolution but the peaceful expression of popular will. The operative fact which enabled Vice-
President Gloria Macapagal-Arroyo to assume the presidency was the fact that there was a crisis,
nay a vacuum, in the executive leadership which made the government rife for seizure by lawless
elements. The presidency was up for grabs, and it was imperative that the rule of succession in the
Constitution be enforced.

But who is to declare the President's permanent disability, petitioner asks? The answer was given by
petitioner himself when he said that he was already tired and wanted no more of popular
demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria
Macapagal-Arroyo's advisers for a transition of powers from him to her; when petitioner's own
Executive Secretary declared that petitioner was not only in a corner but was down.

Nor is it correct for petitioner to say that the present situation is similar to our situation during the
period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents,
namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with history. The
Philippines had two presidents at that time for the simple reason that there were then two
governments — the de facto government established by Japan as belligerent occupant, of which
Laurel was president, and the de jure Commonwealth Government in exile of President Manuel L.
Quezon. That a belligerent occupant has a right to establish a government in enemy territory is a
recognized principle of international law.18 But today we have only one government, and it is the
one set up in the 1987 Constitution. Hence, there can only be one President.
Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the
Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of
adjudication that the Court should not formulate a rule of constitutional law broader than is required
by the precise facts to which it is applied.

The only question left for resolution is whether there was massive prejudicial publicity attending the
investigation by the Ombudsman of the criminal charges against petitioner. The test in this
jurisdiction is whether there has been "actual, not merely possible, prejudice"19 caused to petitioner
as a result of publicity. There has been no proof of this, and so I think this claim should simply be
dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.

(Sgd.)

VICENTE V. MENDOZA

Associate Justice

Footnotes

1
Joint Memorandum of the Secretary of Justice and Solicitor General, p. 15.

2
Lawyers League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746, May 22,
1986.

3
Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992).

4
Luther v. Borden, 7 How. 1 (1848).

5
Political Questions, 38 Harv. L. Rev. 296, 305 (1925).

6
50 SCRA 30 (1973).

7
104 SCRA ! (1981).

8
104 SCRA 59 (1981).

9
Joint Memorandum of the Secretary of Justice and Solicitor General, p. 2.

10
83 Phil. 17 (1949).

11
83 Phil. At 76 (Perfecto, J., concurring).

12
Id. at 25-26 (concurring and dissenting).

13
Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6.

14
Petition, G.R. No. 146738, p. 13.
15
Edgardo Angara, Erap's Final Hours Told, Philippine Daily Inquirier, p. A6, February 6, 2001.

16
Id. (emphasis added).

17
Emphasis added.

18
Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285 (1945);
Laurel v. Misa, 77 Phil. 856 (1947).

19
See Martelino v. Alejandro, 32 SCRA 106 (1970).

THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES - ARTICLE XI

ACCOUNTABILITY OF PUBLIC OFFICERS

Section 4. The present anti-graft court known as the Sandiganbayan shall continue to function
and exercise its jurisdiction as now or hereafter may be provided by law.

*R.A. No. 8249 took effect on February 23, 1997 *R.A. No. 7975 took effect on May 6, 1995

PRESIDENTIAL DECREE NO. 1606, as amended by R.A. NO. 7975* and R.A. NO. 8249*

(REVISING PRESIDENTIAL DECREE NO. 1486 CREATING A SPECIAL COURT TO BE KNOWN AS

“SANDIGANBAYAN” AND FOR OTHER PURPOSES)

WHEREAS, the new Constitution declares that a public office is a public trust and ordains that public
officers and employees shall serve with a highest degree of responsibility, integrity, loyalty and
efficiency and shall remain at all times accountable to the people;

WHEREAS, to attain the highest norms of official conduct required of public officers and employees,
Section 5, Article XIII of the New Constitution provides for the creation of a special court to be known as
Sandiganbayan;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby order and decree as follows:

Section 1. Sandiganbayan; composition; qualifications; tenure; removal; and compensation. –– A special

court, of the same level as the Court of Appeals and possessing all the inherent powers of a court of
justice, to be known as the Sandiganbayan is hereby created composed of a Presiding Justice and
fourteen Associate Justices who shall be appointed by the President. (As amended by R.A. No. 8249)

No person shall be appointed Presiding Justice or Associate Justice of the Sandiganbayan; unless he is
natural-born citizen of the Philippines, at least 40 years of age and for at least ten years has been a
judge of a court of record or been engaged in the practice of law in the Philippines or has held office
requiring admission to the bar as a pre-requisite for a like period.

The Presiding Justice shall be so designated in his commission and the other Justices shall have
precedence according to the dates of their respective of commission, or, when the commission of two or
more of them shall bear the same date, according to the order in which their commissions have been
issued by the President.

The Presiding Justice and the Associate Justices shall not be removed from office except on
impeachment upon the grounds and in the manner provided for in Section 2, 3 and 4 of Article XIII of
the 1973 Constitution.

The Presiding Justice shall receive an annual compensation of P60, 000.00 and each Associate Justice P
55, 000.00 which shall be diminished during their continuance in office. They shall have the same rank,
privileges and other emoluments, be subject to the same inhibition and disqualifications, and enjoy the
same retirement and other benefits as those provided for under existing laws for the Presiding Justice
and Associate Justices of the Court of Appeals.

Whenever the salaries of the Presiding Justice and Associate Justices of the Court of Appeals are
increased, such increases in salaries shall be correspondingly extended to and enjoyed by the Presiding
Justice and Associate Justices of the Sandiganbayan.

They shall hold office until they reach the age of 65 years or become incapacitated to discharge the
duties of their office.

Section 2. Official Station; Place of Holding Sessions. –– The Sandiganbayan shall have its principal office
of the Metro Manila area and shall hold sessions thereat for the trial and determination of cases filed
with it: Provided, however, That cases originating from the principal geographical regions of the country,
that is, from Luzon, Visayas, or Mindanao, shall be heard in their respective regions of origin except only
when the greater convenience of the accused and of the witnesses, or other compelling considerations
require the contrary, in which instance a case originating from one geographical region: Provided,
further, That for this purpose the presiding justice shall authorize any division or divisions of the court to
hold sessions at any time and place outside Metro Manila and, where the interest of justice so requires,
outside the territorial boundaries of the Philippines. “The Sandiganbayan may require the services of the
personnel and use of facilities of the courts or other government offices where any of the divisions is
holding sessions and the personnel of such courts or offices shall be subject to the orders of the
Sandiganbayan. (As amended by R.A. NO. 8249)

Section 3. Division of the Court; Quorum –– The Sandiganbayan shall sit in five (5) divisions of three
Justices each. The five (5) may sit at the same time.

Three Justices shall constitute a quorum for sessions in divisions: Provided, that when the required
quorum for the particular division cannot be had due to the legal qualification or temporary disability of
a Justice or of a vacancy occurring therein, the Presiding Justice may designate an Associate Justice of
the Court, to be determined by strict rotation on the basis of the reverse order of precedence, to sit as a
special member of said division with all the rights and prerogatives of a regular member of said division
the trial and determination of a case or cases assigned thereto, unless the operation of the court will be
prejudice thereby, in which case the President shall, upon the recommendation of the Presiding Justice,
designate any Justice or Justices of the Court of Appeals to sit temporarily therein. (As amended by R.A.
No. 8249)

Section 4. Jurisdiction – The Sandiganbayan shall exercise original jurisdiction in all cases involving:

(A) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corruption
Practices Act, and Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code,
where one or more of the accused are officials occupying the following positions in the government,
whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise
classified as Grade “27” and higher of the Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurer, assessors,
engineers, and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) Officers of the Philippine National Police while occupying the position of provincial director and those
holding the rank of senior superintendent or higher;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations,

state universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade “27” and up under the Compensation
and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as Grade “27” and higher under the Compensation and
Position Classification Act of 1989.

(B) Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection of this section in relation to their office.

(C) Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-
A, issued in 1986.

In cases where none of the accused are occupying positions corresponding to Salary Grade “27” or
higher, as prescribe in the said Republic Act No. 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial
court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended.

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or
orders of regional trial courts whether in the exercise of their own original jurisdiction or of their
appellate jurisdiction as herein provided.

The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs
of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes
in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or
that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued
in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.

The procedure prescribed in Batas Pambansa Blg 129, as well as the implementing rules that the
Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review
to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In
all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office
of the Ombudsman through its special prosecutor, shall represent the People of the Philippines except
in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

In case private individuals are charged as co-principals, accomplices or accessories with the public
officers or employees, including those employed in government-owned or controlled corporations, they
shall be tried jointly with said public officers and employees in the proper courts which shall exercise
exclusive jurisdiction over them.

Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability shall at all times be simultaneously instituted
with, and jointly determined in, the same proceeding by the Sandiganbayan or to appropriate courts,
the filing of the criminal action being deemed to necessarily carry with it the filing of civil action, and no
right to reserve the filing of such civil action separately from the criminal action shall be recognized:
Provided, however, That where the civil action had heretofore been filed separately but judgment
therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or
the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate
court, as the case may be, for consolidation and joint determination with the criminal action, otherwise
the separate civil action shall be deemed abandoned. (As amended by R.A. No. 8249)

Section 5. Proceedings, how conducted; votes required. – The unanimous vote of the three justices in a
division shall be necessary for the pronouncement of a judgment. In the event that the three justices do
not reach a unanimous vote, the Presiding Justice shall designate two other justices from among the
members of the Court to sit temporarily with them, forming a division of five justices, and the
concurrence of a majority of such division shall be necessary for rendering judgment.

Section 6. Maximum period of termination of cases. – As far as practicable, the trial of cases before the
Sandiganbayan once commenced shall be continuous until terminated and the judgment shall be
rendered within three (3) months from the date the case was submitted for decision.

Section 7. Form, Finality and Enforcement of Decisions – All decisions and final orders determining the
merits of a case or finally disposing of the action or proceedings of the Sandiganbayan shall contain
complete findings of the facts and the law on which they are based, on all issues properly raised before
it and necessary in deciding the case.

A petition for reconsideration of any final order or decision may be filed within fifteen (15) days from
promulgation or notice of the final order or judgement, and such motion for reconsideration shall be
decided within thirty (30) days from submission thereon.

Decisions and final orders for the Sandiganbayan shall be appealable to the Supreme Court by petition
for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court.
Whenever, in any case decided by the Sandiganbayan, the penalty of reclusion perpetua, life
imprisonment or death is imposed, the decision shall be appealable to the Supreme Court in the manner
prescribed in the Rules of Court.

Judgements and orders of the Sandiganbayan will be executed and enforced in the manner provided by
law.

Decisions and final order of other courts in cases cognizable by said courts under this decree as well as
those rendered by them in exercise of their appellate jurisdiction shall be appealable to, or be
reviewable by, the Sandiganbayan in the manner provided by Rule 122 of the Rules of Court.

In case, however, the imposed penalty by the Sandiganbayan or the regional trial court in the proper
exercise of their respective jurisdiction, is death, review by the Supreme Court shall be automatic,
whether or not the accused files an appeal. (As amended by R.A. No. 8249)

Section 8. Transfer of cases. – As of the date of the effectivity of this decree any case cognizable by the
Sandiganbayan within its exclusive jurisdiction where none of the accused has been arraigned shall be
transferred to the Sandiganbayan.

Section 9. Rules of Procedure. – The Rules of Court promulgated by the Supreme Court shall apply to all
cases and proceedings filed with the Sandiganbayan. The Sandiganbayan shall have no power to
promulgate its own rules of procedure, except to adopt internal rules governing the allotment of cases
among the division, the rotation of justices among them, and other matters relating to the internal
operations of the court which shall be enforced until repealed or modified by the Supreme Court. (As
amended by R.A. No. 7975)

Section 10. (Repealed by R.A. No. 7975)

Section 11. Proceeding free of charge. – All proceedings in the Sandiganbayan shall be conducted at no
cost to the complainant and/or his witnesses. No criminal information or complaint shall be entertained
by the Sandiganbayan except upon a certification by the Investigating Prosecutor of the existence of a
prima facie case to be determined after a preliminary investigation conducted in accordance with a
applicable laws and approved by the Chief Special Prosecutor.

Section 12. Administrative personnel. – The Sandiganbayan shall select and appoint such personnel as it
may deem necessary to discharge its functions under this Decree including a Clerk of Court and three (3)
Deputy Clerks of Court who shall be members of the Bar.

The Clerk of Court shall have an annual compensation of P36,000.00 and the Deputy Clerks of Court
P30,000.00.

All other subordinate employees of the Sandiganbayan shall be governed by the provisions of the Civil
Service Law; Provided, that the Sandiganbayan may, by resolution en banc, remove any of them for
cause.

Section 13. Report to the President. – The Sandiganbayan shall submit an annual report to the President,
including all disbursements of funds entrusted to it, within two months from the end of the Fiscal Year.

Section 14. Funding. – There is hereby immediately appropriated the sum of Five Million Pesos
(P5,000,000.00) out of any funds in the National Treasury to carry out the provision of this Decree and
thereafter to be included in the general appropriations act. The appropriations for the Sandiganbayan
shall be automatically released in accordance with a schedule submitted by the Sandiganbayan.

Section 15. Separability of Provisions. – If for any reason, any section or provision of this Decree is
declared to be unconstitutional or invalid, other sections or provisions thereof which are not affected
thereby, shall continue in full force and effect.

Section 16. Repealing Clause – This Decree hereby repeals Presidential Decree No. 1486 and all other
provisions of law, General Orders, Presidential Decrees, Letters of Instructions, rules or regulations
inconsistent herewith.

Section 17. Effectivity – This Decree shall take effect immediately. Done in the City of Manila, this 10th
day of December, in the year of Our Lord, nineteen hundred and seventy-eight.
 Republic of the Philippines
Supreme Court
Manila

SECOND DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 169004

Petitioner,
Present:

CARPIO, J., Chairperson,

-versus- VELASCO, JR.,*
PERALTA,
BERSAMIN,* and
ABAD, JJ.
SANDIGANBAYAN (THIRD
DIVISION) and ROLANDO PLAZA,
Promulgated:
Respondents.

September 15, 2010

x-----------------------------------------------------------------------------------------x

DECISION
PERALTA, J.:

For this Court's resolution is a petition[1] dated September 2, 2005 under

Rule 45 of the Rules of Court that seeks to reverse and set aside the
Resolution[2] of the Sandiganbayan (Third Division), dated July 20, 2005,
dismissing Criminal Case No. 27988, entitled People of the Philippines v. Rolando
Plaza for lack of jurisdiction.

The facts follow.

Respondent Rolando Plaza, a member of the Sangguniang Panlungsod of

Toledo City, Cebu, at the time relevant to this case, with salary grade 25, had
been charged in the Sandiganbayan with violation of Section 89 of Presidential
Decree (P.D.) No. 1445, or The Auditing Code of the Philippines for his failure to
liquidate the cash advances he received on December 19, 1995 in the amount of
Thirty-Three Thousand Pesos (P33,000.00) . The Information reads:

That on or about December 19, 1995, and for sometime prior or subsequent
thereto at Toledo City, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused ROLANDO PLAZA, a high-ranking public
officer, being a member of the Sangguniang Panlungsod of Toledo City, and committing
the offense, in relation to office, having obtained cash advances from the City
Government of Toledo in the total amount of THIRTY THREE THOUSAND PESOS
(P33,000.00), Philippine Currency, which he received by reason of his office, for which
he is duty bound to liquidate the same within the period required by law, with
deliberate intent and intent to gain, did then and there, willfully, unlawfully and
criminally fail to liquidate said cash advances of P33,000.00, Philippine Currency, despite
demands to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.
 Thereafter, respondent Plaza filed a Motion to Dismiss[3] dated April 7,
2005 with the Sandiganbayan, to which the latter issued an Order[4] dated April
12, 2005 directing petitioner to submit its comment. Petitioner filed its
Opposition[5] to the Motion to Dismiss on April 19, 2005. Eventually, the
Sandiganbayan promulgated its Resolution[6] onJuly 20, 2005 dismissing the case
for lack of jurisdiction, without prejudice to its filing before the proper court. The
dispositive portion of the said Resolution provides:
WHEREFORE, premises considered, the instant case is hereby ordered dismissed
for lack of jurisdiction without prejudice to its filing in the proper court.

SO ORDERED.

Thus, the present petition.

Petitioner contends that the Sandiganbayan has criminal jurisdiction over

cases involving public officials and employees enumerated under Section 4 (a) (1)
of P.D. 1606, (as amended by Republic Act [R.A.] Nos. 7975 and 8249), whether or
not occupying a position classified under salary grade 27 and above, who are
charged not only for violation of R.A. 3019, R.A. 1379 or any of the felonies
included in Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, but
also for crimes committed in relation to office.Furthermore, petitioner
questioned the Sandiganbayans appreciation of this Court's decision in Inding v.
Sandiganbayan,[7] claiming that the Inding case did not categorically nor implicitly
constrict or confine the application of the enumeration provided for under
Section 4 (a) (1) of P.D. 1606, as amended, exclusively to cases where the offense
charged is either a violation of R.A. 3019, R.A. 1379 or Chapter II, Section 2, Title
VII of the Revised Penal Code. Petitioner adds that the enumeration in Section 4
(a) (1) of P.D. 1606, as amended by R.A. 7975 and R.A. 8249, which was made
applicable to cases concerning violations of R.A. 3019, R.A. 1379 and Chapter II,
Section 2, Title VII of the Revised Penal Code, equally applies to offenses
committed in relation to public office.

In his Comment[8] dated November 30, 2005, respondent Plaza argued that,
as phrased in Section 4 of P.D. 1606, as amended, it is apparent that the
jurisdiction of the Sandiganbayan was defined first, while the exceptions to the
general rule are provided in the rest of the paragraph and sub-paragraphs of
Section 4; hence, the Sandiganbayan was right in ruling that it has original
jurisdiction only over the following cases: (a) where the accused is a public official
with salary grade 27 and higher; (b) in cases where the accused is a public official
below grade 27 but his position is one of those mentioned in the enumeration in
Section 4 (a) (1) (a) to (g) of P. D. 1606, as amended and his offense involves a
violation of R.A. 3019, R.A. 1379 and Chapter II, Section 2, Title VII of the Revised
Penal Code; and (c) if the indictment involves offenses or felonies other than the
three aforementioned statutes, the general rule that a public official must occupy
a position with salary grade 27 and higher in order that the Sandiganbayan could
exercise jurisdiction over him must apply.

In a nutshell, the core issue raised in the petition is whether or not the
Sandiganbayan has jurisdiction over a member of the Sangguniang
Panlungsod whose salary grade is below 27 and charged with violation of The
Auditing Code of the Philippines.

This Court has already resolved the above issue in the affirmative. People v.
Sandiganbayan and Amante[9] is a case with uncanny similarities to the present
one. In fact, the respondent in the earlier case, Victoria Amante and herein
respondent Plaza were both members of the Sangguniang
Panlungsod of Toledo City, Cebu at the time pertinent to this case. The only
difference is that, respondent Amante failed to liquidate the amount of Seventy-
One Thousand Ninety-Five Pesos (P71,095.00) while respondent Plaza failed to
liquidate the amount of Thirty-Three Thousand Pesos (P33,000.00).
In ruling that the Sandiganbayan has jurisdiction over a member of
the Sangguniang Panlungsod whose salary grade is below 27 and charged with
violation of The Auditing Code of the Philippines, this Court cited the case
of Serana v. Sandiganbayan, et al.[10] as a background on the conferment of
jurisdiction of the Sandiganbayan, thus:

x x x The Sandiganbayan was created by P.D. No. 1486, promulgated by then President
Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms
of official conduct required of public officers and employees, based on the concept that
public officers and employees shall serve with the highest degree of responsibility,
integrity, loyalty and efficiency and shall remain at all times accountable to the
people.[11]

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was
promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of
the Sandiganbayan.[12]
P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering
the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made
succeeding amendments to P.D. No. 1606, which was again amended on February 5,
1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the
Sandiganbayan. x x x .

Section 4 of P.D. 1606, as amended by Section 2 of R.A. 7975 which took

effect on May 16, 1995, which was again amended on February 5, 1997 by R.A.
8249, is the law that should be applied in the present case, the offense having
been allegedly committed on or about December 19, 1995 and the Information
having been filed on March 25, 2004. As extensively explained in the earlier
mentioned case,

The jurisdiction of a court to try a criminal case is to be determined at the time of the
institution of the action, not at the time of the commission of the offense.[13] The
exception contained in R. A. 7975, as well as R. A. 8249, where it expressly provides
that to determine the jurisdiction of the Sandiganbayan in cases involving violations of
R. A. No. 3019, as amended, R. A. No. 1379, and Chapter II, Section 2, Title VII of the
Revised Penal Code is not applicable in the present case as the offense involved herein
is a violation of The Auditing Code of the Philippines. The last clause of the opening
sentence of paragraph (a) of the said two provisions states:
 Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other known as

the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379,
and Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying
the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense: x x x.[14]

Like in the earlier case, the present case definitely falls under Section 4 (b) where
other offenses and felonies committed by public officials or employees in relation
to their office are involved where the said provision, contains no
exception. Therefore, what applies in the present case is the general rule that
jurisdiction of a court to try a criminal case is to be determined at the time of the
institution of the action, not at the time of the commission of the offense. The
present case having been instituted on March 25, 2004, the provisions of R.A.
8249 shall govern. P.D. 1606, as amended by R.A. 8249 states that:

Sec. 4. Jurisdiction. - - The Sandiganbayan shall exercise original jurisdiction in all

cases involving:

A. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII
of the Revised Penal Code, where one or more of the principal accused are officials
occupying the following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of

regional director and higher, otherwise classified as grade 27 and higher,
of the Compensation and Position Classification Act of 1989 (Republic Act
No. 6758), specifically including:
 (a) Provincial governors, vice-governors,
members of the sangguniang panlalawigan and provincial
treasurers, assessors, engineers, and other city
department heads;

(b) City mayors, vice mayors, members of the

sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads.

(c) Officials of the diplomatic service occupying

the position of consul and higher;

(d) Philippine army and air force colonels, naval

captains, and all officers of higher rank;

(e) PNP chief superintendent and PNP officers of

higher rank;

(f) City and provincial prosecutors and their

assistants, and officials and prosecutors in the Office of
the Ombudsman and Special Prosecutor;

(g) Presidents, directors or trustees, or managers

of government-owned or controlled corporations, state
universities or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade

27 and up under the Compensation and Position Classification Act of
1989;

(3) Members of the judiciary without prejudice to the provisions

of the Constitution;
 (4) Chairmen and members of Constitutional Commissions,
without prejudice to the provisions of the Constitution; and

(5) All other national and local officials classified as Grade 27 and
higher under the Compensation and Position Classification Act of 1989.

B. Other offenses or felonies, whether simple or complexed with other crimes

committed by the public officials and employees mentioned in subsection (a) of this
section in relation to their office.

C. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos.
1, 2, 14 and 14-A.

Again, the earlier case interpreted the above provisions, thus:

The above law is clear as to the composition of the original jurisdiction of the
Sandiganbayan. Under Section 4 (a), the following offenses are specifically enumerated:
violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter II, Section 2, Title VII
of the Revised Penal Code. In order for the Sandiganbayan to acquire jurisdiction over
the said offenses, the latter must be committed by, among others, officials of the
executive branch occupying positions of regional director and higher, otherwise classified
as Grade 27 and higher, of the Compensation and Position Classification Act of
1989. However, the law is not devoid of exceptions. Those that are classified as Grade
26 and below may still fall within the jurisdiction of the Sandiganbayan provided that
they hold the positions thus enumerated by the same law. Particularly and exclusively
enumerated are provincial governors, vice-govenors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
department heads; city mayors, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads; officials of the
diplomatic service occupying the position as consul and higher; Philippine army and air
force colonels, naval captains, and all officers of higher rank; PNP chief superintendent
and PNP officers of higher rank; City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman and special prosecutor; and
presidents, directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations. In connection
therewith, Section 4 (b) of the same law provides that other offenses or felonies
 committed by public officials and employees mentioned in subsection (a) in relation to
their office also fall under the jurisdiction of the Sandiganbayan.[15]

Clearly, as decided in the earlier case and by simple application of the

pertinent provisions of the law, respondent Plaza, a member of the Sangguniang
Panlungsod during the alleged commission of an offense in relation to his office,
necessarily falls within the original jurisdiction of the Sandiganbayan.

Finally, as to the inapplicability of the Inding[16] case wherein it was ruled

that the officials enumerated in (a) to (g) of Section 4 (a) (1) of P.D. 1606, as
amended, are included within the original jurisdiction of the Sandiganbayan
regardless of salary grade and which the Sandiganbayan relied upon in its assailed
Resolution, this Court enunciated, still in the earlier case of People v.
Sandiganbayan and Amante,[17] that the Inding case did not categorically nor
implicitly constrict or confine the application of the enumeration provided for
under Section 4 (a) (1) of P.D. 1606, as amended, exclusively to cases where the
offense charged is either a violation of R.A. 3019, R.A. 1379 or Chapter II,
Section 2, Title VII of the Revised Penal Code. As thoroughly discussed:

x x x In the Inding case, the public official involved was a member of the Sangguniang
Panlungsod with Salary Grade 25 and was charged with violation of R.A. No. 3019. In
ruling that the Sandiganbayan had jurisdiction over the said public official, this Court
concentrated its disquisition on the provisions contained in Section 4 (a) (1) of P.D. No.
1606, as amended, where the offenses involved are specifically enumerated and not
on Section 4 (b) where offenses or felonies involved are those that are in relation to
the public officials' office. Section 4 (b) of P.D. No. 1606, as amended, provides that:

b. Other offenses or felonies committed by public officials and

employees mentioned in subsection (a) of this section in relation to
their office.
 A simple analysis after a plain reading of the above provision shows that those
public officials enumerated in Sec. 4 (a) of P.D. No. 1606, as amended, may not only
be charged in the Sandiganbayan with violations of R.A. No. 3019, R.A. No. 1379 or
Chapter II, Section 2, Title VII of the Revised Penal Code, but also with other offenses
or felonies in relation to their office. The said other offenses and felonies are broad in
scope but are limited only to those that are committed in relation to the public official
or employee's office. This Court had ruled that as long as the offense charged in the
information is intimately connected with the office and is alleged to have been
perpetrated while the accused was in the performance, though improper or
irregular, of his official functions, there being no personal motive to commit the
crime and had the accused not have committed it had he not held the aforesaid
office, the accused is held to have been indicted for an offense committed in relation
to his office.[18] Thus, in the case of Lacson v. Executive Secretary, et al..,[19] where the
crime involved was murder, this Court held that:

The phrase other offenses or felonies is too broad as to include

the crime of murder, provided it was committed in relation to the
accuseds official functions. Thus, under said paragraph b, what
determines the Sandiganbayans jurisdiction is the official position or
rank of the offender that is, whether he is one of those public officers
or employees enumerated in paragraph a of Section 4. x x x

Also, in the case Alarilla v. Sandiganbayan,[20] where the public official was
charged with grave threats, this Court ruled:

x x x In the case at bar, the amended information contained

allegations that the accused, petitioner herein, took advantage of his
official functions as municipal mayor of Meycauayan, Bulacan when he
committed the crime of grave threats as defined in Article 282 of the
Revised Penal Code against complainant Simeon G. Legaspi, a
municipal councilor. The Office of the Special Prosecutor charged
petitioner with aiming a gun at and threatening to kill Legaspi during a
public hearing, after the latter had rendered a privilege speech critical
of petitioners administration. Clearly, based on such allegations, the
crime charged is intimately connected with the discharge of petitioners
official functions. This was elaborated upon by public respondent in
its April 25, 1997 resolution wherein it held that the accused was
performing his official duty as municipal mayor when he attended said
public hearing and that accuseds violent act was precipitated by
complainants criticism of his administration as the mayor or chief
executive of the municipality, during the latters privilege speech. It was
his response to private complainants attack to his office. If he was not
the mayor, he would not have been irritated or angered by whatever
 private complainant might have said during said privilege speech. Thus,
based on the allegations in the information, the Sandiganbayan
correctly assumed jurisdiction over the case.

Proceeding from the above rulings of this Court, a close reading of the
Information filed against respondent Amante for violation of The Auditing Code of the
Philippines reveals that the said offense was committed in relation to her office,
making her fall under Section 4 (b) of P.D. No. 1606, as amended.

According to the assailed Resolution of the Sandiganbayan, if the intention of

the law had been to extend the application of the exceptions to the other cases over
which the Sandiganbayan could assert jurisdiction, then there would have been no
need to distinguish between violations of R.A. No. 3019, R.A. No. 1379 or Chapter II,
Section 2, Title VII of the Revised Penal Code on the one hand, and other offenses or
felonies committed by public officials and employees in relation to their office on the
other. The said reasoning is misleading because a distinction apparently exists. In the
offenses involved in Section 4 (a), it is not disputed that public office is essential as
an element of the said offenses themselves, while in those offenses and felonies
involved in Section 4 (b), it is enough that the said offenses and felonies were
committed in relation to the public officials or employees' office. In expounding the
meaning of offenses deemed to have been committed in relation to office, this Court
held:

In Sanchez v. Demetriou [227 SCRA 627 (1993)], the Court

elaborated on the scope and reach of the term offense committed in
relation to [an accuseds] office by referring to the principle laid down
in Montilla v. Hilario [90 Phil 49 (1951)], and to an exception to that
principle which was recognized in People v. Montejo [108 Phil 613
(1960)]. The principle set out in Montilla v. Hilario is that an offense
may be considered as committed in relation to the accuseds office if
the offense cannot exist without the office such that the office [is] a
constituent element of the crime x x x. In People v. Montejo, the Court,
through Chief Justice Concepcion, said that although public office is not
an element of the crime of murder in [the] abstract, the facts in a
particular case may show that

x x x the offense therein charged is intimately connected with

[the accuseds] respective offices and was perpetrated while they were
in the performance, though improper or irregular, of their official
functions. Indeed, [the accused] had no personal motive to commit the
 crime and they would not have committed it had they not held their
aforesaid offices. x x x[21]

Moreover, it is beyond clarity that the same provisions of Section 4 (b) does
not mention any qualification as to the public officials involved. It simply stated, public
officials and employees mentioned in subsection (a) of the same section. Therefore, it
refers to those public officials with Salary Grade 27 and above, except those
specifically enumerated. It is a well-settled principle of legal hermeneutics that words
of a statute will be interpreted in their natural, plain and ordinary acceptation and
signification,[22] unless it is evident that the legislature intended a technical or special
legal meaning to those words.[23] The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory phraseology in such a
manner is always presumed. (Italics supplied.)[24]

With the resolution of the present case and the earlier case of People v.
Sandiganbayan and Amante,[25] the issue as to the jurisdiction of the
Sandiganbayan has now attained clarity.

WHEREFORE, the Petition dated September 2, 2005 is

hereby GRANTED and the Resolution of the Sandiganbayan (Third Division)
dated July 20, 2005 is hereby NULLIFIED and SET ASIDE. Let the case
be REMANDED to the Sandiganbayan for further proceedings.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

PRESBITERO J. VELASCO, JR. LUCAS P. BERSAMIN

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

ANTONIO T. CARPIO
Associate Justice
Second Division, Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

*
Designated additional members in lieu of Associate Justices Antonio Eduardo B. Nachura and Jose Catral
Mendoza, who are on official leave per Special Order Nos. 883 and 886, respectively, both dated September 1,
2010.
[1]
Rollo, pp. 28-55.
[2]
Penned by Associate Justice Godofredo L. Legaspi, ret. (Chairperson), with Associate Justices Efren N. De La
Cruz and Norberto Y. Geraldez (members), (concurring), id. at 13-25.
[3]
Rollo, pp. 74-76.
[4]
Id. at 78.
[5]
Id. at 80-85.
[6]
Id. at 13-25.
[7]
478 Phil. 506 (2004).
[8]
Rollo, pp. 91-98.
[9]
G.R. No. 167304, August 25, 2009, 597 SCRA 49.
[10]
G. R. No. 162059, January 22, 2008, 542 SCRA 238-240.
[11]
Id., citing Presidential Decree No. 1486.
[12]
Id., citing Section 4. Jurisdiction. The Sandiganbayan shall have jurisdiction over:
(a) Violations of Republic Act No. 3019, as amended, otherwise, known as the Anti-Graft and Corrupt Practices
Act, and Republic Act No. 1379;
(b) Crimes committed by public officers and employees including those employed in government-owned or
controlled corporations, embraced in Title VII of the Revised Penal Code, whether simple or complexed with other
crimes; and
(c) Other crimes or offenses committed by public officers or employees, including those employed in government-
owned or controlled corporations, in relation to their office.
The jurisdiction herein conferred shall be original and exclusive if the offense charged is punishable by a penalty
higher than prision correccional, or its equivalent, except as herein provided; in other offenses, it shall be concurrent
with the regular courts.
In case private individuals are charged as co-principals, accomplices or accessories with the public officers or
employees including those employed in government-owned or controlled corporations, they shall be tried jointly
with said public officers and employees.
Where an accused is tried for any of the above offenses and the evidence is insufficient to establish the offense
charged, he may nevertheless be convicted and sentenced for the offense proved, included in that which is charged.
Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability arising from the offense charged shall, at all times, be
simultaneously instituted with, and jointly determined in the same proceeding by, the Sandiganbayan, the filing of
the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the
filing of such action shall be recognized; Provided, however, that, in cases within the exclusive jurisdiction of
the Sandiganbayan, where the civil action had therefore been filed separately with a regular court but judgment
therein has not yet been rendered and the criminal case is hereafter filed with the Sandiganbayan, said civil action
shall be transferred to the Sandiganbayan for consolidation and joint determination with the criminal action,
otherwise, the criminal action may no longer be filed with the Sandiganbayan, its exclusive jurisdiction over the
same notwithstanding, but may be filed and prosecuted only in the regular courts of competent jurisdiction;
Provided, further, that, in cases within the concurrent jurisdiction of the Sandiganbayan and the regular courts,
where either the criminal or civil action is first filed with the regular courts, the corresponding civil or criminal
action, as the case may be, shall only be filed with the regular courts of competent jurisdiction.
Excepted from the foregoing provisions, during martial law, are criminal cases against officers and members of the
armed forces in the active service.

[13]
People v. Sandiganbayan and Amante, supra note 9, citing Subido, Jr. v. Sandiganbayan, 266 SCRA
379. (1996).
[14]
Emphasis supplied.
[15]
People v. Sandiganbayan and Amante, supra note 9, at 59-60. (Emphasis supplied.)
[16]
Supra note 7.
[17]
Supra note 9.
[18]
Rodriguez, et al. v. Sandiganbayan, et al., 468 Phil. 374, 387 (2004), citing People v. Montejo, 108 Phil. 613
(1960).
[19]
G.R. No. 128096, January 20, 1999, 301 SCRA 298.
[20]
G.R. No. 136806, August 22, 2000, 338 SCRA 498.
[21]
Cunanan v. Arceo, G.R. No. 116615, March 1, 1995, 242 SCRA 88.
[22]
Romualdez v. Sandiganbayan, 479 Phil. 265, 287 (2004), citing Mustang Lumber, Inc. v. Court of Appeals, 257
SCRA 430, 448 (1996).
[23]
PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 94374, August 27, 1992, 213 SCRA 16, 26.
[24]
People v. Sandiganbayan and Amante, supra note 9, at 62-65, citing Romualdez v. Sandiganbayan, et
al., supra note 22, citing Estrada v. Sandiganbayan, 421 Phil. 443 (2001).
[25]
Supra note 9.

THIRD DIVISION

[G.R. Nos. 147706-07. February 16, 2005]

PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE

SANDIGANBAYAN (Fifth Division) and EFREN L.
ALAS, respondents.

DECISION
CORONA, J.:

Does the Sandiganbayan have jurisdiction over presidents, directors or trustees, or

managers of government-owned or controlled corporations organized and incorporated
under the Corporation Code for purposes of the provisions of RA 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act? The petitioner, represented by the
Office of the Special Prosecutor (OSP), takes the affirmative position in this petition
for certiorari under Rule 65 of the Rules of Court. Respondent Efren L. Alas contends
otherwise, together with the respondent court.
Pursuant to a resolution dated September 30, 1999 of the Office of the
Ombudsman, two separate informations[1] for violation of Section 3(e) of RA 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, were filed with the
Sandiganbayan on November 17, 1999 against Efren L. Alas. The charges emanated
from the alleged anomalous advertising contracts entered into by Alas, in his capacity
as President and Chief Operating Officer of the Philippine Postal Savings Bank (PPSB),
with Bagong Buhay Publishing Company which purportedly caused damage and
prejudice to the government.
On October 30, 2002, Alas filed a motion to quash the informations for lack of
jurisdiction, which motion was vehemently opposed by the prosecution. After
considering the arguments of both parties, the respondent court ruled that PPSB was a
private corporation and that its officers, particularly herein respondent Alas, did not fall
under Sandiganbayan jurisdiction. According to the Sandiganbayan:

After a careful consideration of the arguments of the accused-movant as well as of

that of the prosecution, we are of the considered opinion that the instant motion of the
accused is well taken. Indeed, it is the basic thrust of Republic Act as well as (sic)
Presidential Decree No. 1606 as amended by President Decree No. 1486 and Republic
Act No. 7975 and Republic Act No. 8249 that the Sandiganbayan has jurisdiction only
over public officers unless private persons are charged with them in the commission
of the offenses.

The records disclosed that while Philippine Postal Savings Bank is a subsidiary of the
Philippine Postal Corporation which is a government owned corporation, the same is
not created by a special law. It was organized and incorporated under the Corporation
Code which is Batas Pambansa Blg. 68. It was registered with the Securities and
Exchange Commission under SEC No. AS094-005593 on June 22, 1994 with a
lifetime of fifty (50) years. Under its Articles of Incorporation the purpose for which
said entity is formed was primarily for business, xxx

Likewise, a scrutiny of the seven (7) secondary purposes of the corporation points to
the conclusion that it exists for business. Obviously, it is not involved in the
performance of a particular function in the exercise of government power. Thus, its
officers and employees are not covered by the GSIS and are under the SSS law, and
actions for reinstatement and backwages are not within the jurisdiction of the Civil
Service Commission but by the National Labor Relations Commission (NLRC).

The Supreme Court, in the case of Trade Unions of the Philippines and Allied
Services vs. National Housing Corp., 173 SCRA 33, held that the Civil Service now
covers only government owned or controlled corporations with original or legislative
charters, those created by an act of Congress or by special law, and not those
incorporated under and pursuant to a general legislation. The Highest Court
categorically ruled that the Civil Service does not include government-owned or
controlled corporation which are organized as subsidiaries of government-owned or
controlled corporation under the general corporation law.

In Philippine National Oil Company Energy Development Corporation vs. Leogardo,

175 SCRA 26, the Supreme Court emphasized that:

The test in determining whether a government-owned or controlled corporation is

subject to the Civil Service Law is the manner of its creation such that government
corporation created by special charter are subject to its provision while those
incorporated under the general corporation law are not within its coverage.

Likewise in Davao City Water District vs. Civil Service Commission, 201 SCRA 601
it was held that by government-owned or controlled corporation with original charter
we mean government-owned or controlled corporation created by a special law and
not under the Corporation Code of the Philippines while in Llenes vs. Dicdican, et al.,
260 SCRA 207, a public officer has been ruled, as a person whose duties involve the
exercise of discretion in the performance of the function of government.

Clearly, on the basis of the foregoing pronouncements of the Supreme Court, the
accused herein cannot be considered a public officer. Thus, this Court may not
exercise jurisdiction over his act. [2]

Dissatisfied, the People, through the Office of the Special Prosecutor (OSP), filed
this petition[3] arguing, in essence, that the PPSB was a government-owned or controlled
corporation as the term was defined under Section 2(13) of the Administrative Code of
1987.[4] Likewise, in further defining the jurisdiction of the Sandiganbayan, RA 8249 did
not make a distinction as to the manner of creation of the government-owned or
controlled corporations for their officers to fall under its jurisdiction. Hence, being
President and Chief Operating Officer of the PPSB at the time of commission of the
crimes charged, respondent Alas came under the jurisdiction of the Sandiganbayan.
Quoting at length from the assailed resolution dated February 15, 2001, respondent
Alas, on the other hand, practically reiterated the pronouncements made by the
respondent court in support of his conclusion that the PPSB was not created by special
law, hence, its officers did not fall within the jurisdiction of the Sandiganbayan. [5]
We find merit in the petition.
Section 2(13) of EO 292[6] defines government-owned or controlled corporations as
follows:

Sec. 2. General Terms Defined Unless the specific words of the text or the context as
a whole or a particular statute, shall require a different meaning:

xxx xxx xxx

(13) government owned or controlled corporations refer to any agency organized as a
stock or non-stock corporation vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the government directly or
indirectly or through its instrumentalities either wholly, or where applicable as in the
case of stock corporations to the extent of at least 51% of its capital stock: provided,
that government owned or controlled corporations maybe further categorized by the
department of the budget, the civil service commission and the commission on audit
for the purpose of the exercise and discharge of their respective powers, functions and
responsibilities with respect to such corporations.

From the foregoing, PPSB fits the bill as a government-owned or controlled

corporation, and organized and incorporated under the Corporation Code as a
subsidiary of the Philippine Postal Corporation (PHILPOST). More than 99% of the
authorized capital stock of PPSB belongs to the government while the rest is nominally
held by its incorporators who are/were themselves officers of PHILPOST. The creation
of PPSB was expressly sanctioned by Section 32 of RA 7354, otherwise known as the
Postal Service Act of 1992, for purposes of, among others, to encourage and promote
the virtue of thrift and the habit of savings among the general public, especially the
youth and the marginalized sector in the countryside xxx and to facilitate postal service
by receiving collections and making payments, including postal money orders.[7]
It is not disputed that the Sandiganbayan has jurisdiction over presidents, directors
or trustees, or managers of government-owned or controlled corporations with original
charters whenever charges of graft and corruption are involved. However, a question
arises whether the Sandiganbayan has jurisdiction over the same officers in
government-owned or controlled corporations organized and incorporated under the
Corporation Code in view of the delimitation provided for in Article IX-B Section 2(1) of
the 1987 Constitution which states that:

SEC. 2. (1) The Civil Service embraces all branches, subdivisions, instrumentalities,
and agencies of the government, including government-owned or controlled
corporations with original charters.

It should be pointed out however, that the jurisdiction of the Sandiganbayan is

separate and distinct from the Civil Service Commission. The same is governed by
Article XI, Section 4 of the 1987 Constitution which provides that the present anti-graft
court known as the Sandiganbayan shall continue to function and exercise its
jurisdiction as now or hereafter may be provided by law. This provision, in effect,
retained the jurisdiction of the anti-graft court as defined under Article XIII, Section 5 of
the 1973 Constitution which mandated its creation, thus:

Sec. 5. The Batasang Pambansa shall create a special court, to be known as

Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving
graft and corrupt practices and such other offense committed by public officers and
employees, including those in government-owned or controlled corporations, in
relation to their office as may be determined by law. (Italics ours)

On March 30, 1995, Congress, pursuant to its authority vested under the 1987
Constitution, enacted RA 7975[8] maintaining the jurisdiction of the Sandiganbayan over
presidents, directors or trustees, or managers of government-owned or controlled
corporations without any distinction whatsoever. Thereafter, on February 5, 1997,
Congress enacted RA 8249[9] which preserved the subject provision:

Section 4, Jurisdiction. The Sandiganbayan shall exercise exclusive original

jurisdiction in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the

Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense,

(1) Officials of the executive branch occupying the positions of

regional director, and higher, otherwise classified as grade 27 and higher,
of the Compensation and Position Classification Act of 1989 (Republic
Act No. 6758) specifically including:

xxx xxx xxx

(g) Presidents, directors or trustees, or managers of

government-owned or controlled corporations, state universities
or educational institutions or foundations. (Italics ours)

The legislature, in mandating the inclusion of presidents, directors or trustees, or

managers of government-owned or controlled corporations within the jurisdiction of the
Sandiganbayan, has consistently refrained from making any distinction with respect to
the manner of their creation.
The deliberate omission, in our view, clearly reveals the intention of the legislature
to include the presidents, directors or trustees, or managers of both types of
corporations within the jurisdiction of the Sandiganbayan whenever they are involved in
graft and corruption. Had it been otherwise, it could have simply made the necessary
distinction. But it did not.
It is a basic principle of statutory construction that when the law does not
distinguish, we should not distinguish. Ubi lex non distinguit nec nos distinguere
debemos. Corollarily, Article XI Section 12 of the 1987 Constitution, on the jurisdiction of
the Ombudsman (the governments prosecutory arm against persons charged with graft
and corruption), includes officers and employees of government-owned or controlled
corporations, likewise without any distinction.
In Quimpo v. Tanodbayan,[10] this Court, already mindful of the pertinent provisions
of the 1987 Constitution, ruled that the concerned officers of government-owned or
controlled corporations, whether created by special law or formed under the Corporation
Code, come under the jurisdiction of the Sandiganbayan for purposes of the provisions
of the Anti-Graft and Corrupt Practices Act. Otherwise, as we emphasized therein, a
major policy of Government, which is to eradicate, or at the very least minimize, the
graft and corruption that has permeated the fabric of the public service like a malignant
social cancer, would be seriously undermined. In fact, Section 1 of the Anti-Graft and
Corrupt Practices Act embodies this policy of the government, that is, to repress certain
acts not only of public officers but also of private persons constituting graft or corrupt
practices or which may lead thereto.
The foregoing pronouncement has not outlived its usefulness. On the contrary, it
has become even more relevant today due to the rampant cases of graft and corruption
that erode the peoples faith in government. For indeed, a government-owned or
controlled corporation can conceivably create as many subsidiary corporations under
the Corporation Code as it might wish, use public funds, disclaim public accountability
and escape the liabilities and responsibilities provided by law. By including the
concerned officers of government-owned or controlled corporations organized and
incorporated under the Corporation Code within the jurisdiction of the Sandiganbayan,
the legislature evidently seeks to avoid just that.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the
assailed resolution dated February 15, 2001 of the respondent court is hereby
REVERSED and SET ASIDE.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Carpio-Morales, and Garcia,
JJ., concur.

[1]
Docketed as Criminal Cases Nos. 25750-25751.
[2]
Resolution dated February 15, 2001, Annex A, Rollo, pp. 18-22.
[3]
Rollo, pp. 2-17.
[4]
EO No. 292.
[5]
Comment, Rollo, pp. 38-49.
[6]
Administrative Code of 1987.
[7]
Articles of Incorporation of PPSB, Annex C, Rollo, pp. 27-35.
[8]
Entitled: ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE
SANDIGANBAYAN, AMENDING FOR THAT PURPOSE PD 1606, AS AMENDED.
[9]
Entitled: 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.
[10]
230 Phil. 232 (1986).

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION

ANTONIO M. CARANDANG, G.R. No. 148076

Petitioner,

-versus -

HONORABLE ANIANO A.
DESIERTO, OFFICE OF THE
OMBUDSMAN,
Respondent.
x-----------------------------------------x G.R. No. 153161
ANTONIO M. CARANDANG,
Petitioner, Present:

CARPIO MORALES, Chairperson,

-versus- BRION,
BERSAMIN,
VILLARAMA, JR., and
SERENO, JJ.

SANDIGANBAYAN (FIFTH Promulgated:

DIVISION),
Respondent. January 12, 2011
x----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J.:
 Petitioner Antonio M. Carandang (Carandang) challenges the jurisdiction
over him of the Ombudsman and of the Sandiganbayan on the ground that he was
being held to account for acts committed while he was serving as general manager
and chief operating officer of Radio Philippines Network, Inc. (RPN), which was
not a government-owned or -controlled corporation; hence, he was not a public
official or employee.
In G.R. No. 148076, Carandang seeks the reversal of the decision[1] and
resolution[2] promulgated by the Court of Appeals (CA) affirming the decision [3] of
the Ombudsman dismissing him from the service for grave misconduct.

In G.R. No. 153161, Carandang assails on certiorari the resolutions dated

October 17, 2001[4] and March 14, 2002[5] of the Sandiganbayan (Fifth Division)
that sustained the Sandiganbayans jurisdiction over the criminal complaint
charging him with violation of Republic Act No. 3019 (Anti-Graft and Corrupt
Practices Act).

Antecedents

Roberto S. Benedicto (Benedicto) was a stockholder of RPN, a private

corporation duly registered with the Securities and Exchange Commission
(SEC).[6] In March 1986, the Government ordered the sequestration of RPNs
properties, assets, and business. On November 3, 1990, the Presidential
Commission on Good Government (PCGG) entered into a compromise agreement
with Benedicto, whereby he ceded to the Government, through the PCGG, all his
shares of stock in RPN. Consequently, upon motion of the PCGG, the
Sandiganbayan (Second Division) directed the president and corporate secretary of
RPN to transfer to the PCGG Benedictos shares representing 72.4% of the total
issued and outstanding capital stock of RPN.

However, Benedicto moved for a reconsideration, contending that his RPN

shares ceded to the Government, through the PCGG, represented only 32.4% of
RPNs outstanding capital stock, not 72.4%. Benedictos motion for reconsideration
has remained unresolved to this date.[7]

Administrative Complaint for Grave Misconduct

 On July 28, 1998, Carandang assumed office as general manager and chief
operating officer of RPN.[8]

On April 19, 1999, Carandang and other RPN officials were charged with
grave misconduct before the Ombudsman. The charge alleged that Carandang, in
his capacity as the general manager of RPN, had entered into a contract with AF
Broadcasting Incorporated despite his being an incorporator, director, and
stockholder of that corporation; that he had thus held financial and material interest
in a contract that had required the approval of his office; and that the transaction
was prohibited under Section 7 (a) and Section 9 of Republic Act No. 6713 (Code
of Conduct and Ethical Standards for Public Officials and Employees), thereby
rendering him administratively liable for grave misconduct.

Carandang sought the dismissal of the administrative charge on the ground

that the Ombudsman had no jurisdiction over him because RPN was not a
government-owned or -controlled corporation.[9]

On May 7, 1999, the Ombudsman suspended Carandang from his positions

in RPN.

On September 8, 1999, Carandang manifested that he was no longer

interested and had no further claim to his positions in RPN. He was subsequently
replaced by Edgar San Luis.[10]

In its decision dated January 26, 2000,[11] the Ombudsman found Carandang
guilty of grave misconduct and ordered his dismissal from the service.

Carandang moved for reconsideration on two grounds: (a) that the

Ombudsman had no jurisdiction over him because RPN was not a government-
owned or -controlled corporation; and (b) that he had no financial and material
interest in the contract that required the approval of his office.[12]

The Ombudsman denied Carandangs motion for reconsideration on March

15, 2000.[13]
 On appeal (CA G.R. SP No. 58204),[14] the CA affirmed the decision of the
Ombudsman on February 12, 2001, stating:

The threshold question to be resolved in the present case is whether or not

the Office of the Ombudsman has jurisdiction over the herein petitioner.

It is therefore of paramount importance to consider the definitions of the

following basic terms, to wit: A public office is the right, authority and duty,
created and conferred by law, by which for a given period, either fixed by law or
enduring at the pleasure of the creating power, an individual is invested with some
portion of the sovereign functions of the state to be exercised by him for the
benefit of the public. (San Andres, Catanduanes vs. Court of Appeals, 284 SCRA
276: Chapter I, Section 1, Mechem, A Treatise on Law of Public Offices and
Officers). The individual so invested is called the public officer which includes
elective and appointive officials and employees, permanent or temporary, whether
in the classified or unclassified or exemption service receiving compensation,
even nominal, from the government as defined in xxx [Sec. 2 (a) of Republic Act
No. 3019 as amended]. (Sec. 2 (b) of Republic Act No. 3019 as amended. Unless
the powers conferred are of this nature, the individual is not a public officer.

With these time-honored definitions and the substantial findings of the

Ombudsman, We are constrained to conclude that, indeed, the herein petitioner
(Antonio M. Carandang) is a public officer. Precisely, since he (Antonio M.
Carandang) was appointed by then President Joseph Ejercito Estrada as general
manager and chief operating officer of RPN-9 (page 127 of the Rollo). As a
presidential appointee, the petitioner derives his authority from the Philippine
Government. It is luce clarius that the function of the herein petitioner (as a
presidential appointee), relates to public duty, i.e., to represent the interest of the
Philippine Government in RPN-9 and not purely personal matter, thus, the matter
transcends the petitioners personal pique or pride.

xxx

Having declared earlier that the herein petitioner is a public officer, it

follows therefore that, that jurisdiction over him is lodged in the Office of the
Ombudsman.

It is worth remembering that as protector of the people, the Ombudsman has

the power, function and duty to act promptly on complaints filed in any form or
manner against officers or employees of the Government, or of any, subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations, and 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 people. (Section 13 of Republic Act No. 6770).

xxx
 Accordingly, the Office of the Ombudsman is, therefore, clothed with the
proper armor when it assumed jurisdiction over the case filed against the herein
petitioner. x x x

xxx

It appears that RPN-9 is a private corporation established to install, operate

and manage radio broadcasting and/or television stations in the Philippines (pages
59-79 of the Rollo). On March 2, 1986, when RPN-9 was sequestered by the
Government on ground that the same was considered as an illegally obtained
property (page 3 of the Petition for Review; page 2 of the Respondents Comment;
pages 10 and 302 of the Rollo), RPN-9 has shed-off its private status. In other
words, there can be no gainsaying that as of the date of its sequestration by the
Government, RPN-9, while retaining its own corporate existence, became a
government-owned or controlled corporation within the Constitutional precept.

Be it noted that a government-owned or controlled corporation refers to any

agency organized as a stock or non-stock corporation, vested with functions
relating to public needs whether government or proprietary in nature, and owned
by the Government directly or through its instrumentalities either wholly, or,
where applicable as in the case of stock corporations, to the extent of at least fifty-
one (51) percent of its capital stock; Provided, That government-owned or
controlled corporations may be further categorized by the department of Budget,
the Civil Service, and the Commission on Audit for purposes of the exercise and
discharge of their respective powers, functions and responsibilities with respect to
such corporations. (Section 2 [13], Executive Order No. 292).

Contrary to the claim of the petitioner, this Court is of the view and so holds
that RPN-9 perfectly falls under the foregoing definition. For one, the
governments interest to RPN-9 amounts to 72.4% of RPNs capital stock with an
uncontested portion of 32.4% and a contested or litigated portion of 40%. (page 3
of the Petition for Review; pages 8-9 of the Respondents Comment). On this
score, it ought to be pointed out that while the forty percent (40%) of the seventy
two point four percent (72.4%) is still contested and litigated, until the matter
becomes formally settled, the government, for all interests and purposes still has
the right over said portion, for the law is on its side. Hence, We can safely say that
for the moment, RPN-9 is a government owned and controlled corporation.
Another thing, RPN 9, though predominantly tackles proprietary functionsthose
intended for private advantage and benefit, still, it is irrefutable that RPN-9 also
performs governmental roles in the interest of health, safety and for the
advancement of public good and welfare, affecting the public in general.

xxx
 Coming now to the last assignment of error- While it may be considered in
substance that the latest GIS clearly shows that petitioner was no longer a
stockholder of record of AF Broadcasting Corporation at the time of his
assumption of Office in RPN 9 x x x (Petitioners Reply [to Comment]; page 317
of the Rollo), still severing ties from AF Broadcasting Corporation does not
convince this Court fully well to reverse the finding of the Ombudsman that
Antonio Carandang appears to be liable for Grave Misconduct (page 10 of the
Assailed Decision; page 36 of the Rollo). Note that, as a former stockholder of AF
Broadcasting Corporation, it is improbable that the herein petitioner was
completely oblivious of the developments therein and unaware of the contracts it
(AF Broadcasting Corporation) entered into. By reason of his past (Antonio
Carandang) association with the officers of the AF Broadcasting Corporation, it is
unbelievable that herein petitioner could simply have ignored the contract entered
into between RPN-9 and AF Broadcasting Corporation and not at all felt to reap
the benefits thereof. Technically, it is true that herein petitioner did not directly
act on behalf of AF Broadcasting Corporation, however, We doubt that he (herein
petitioner) had no financial and/or material interest in that particular transaction
requiring the approval of his officea fact that could not have eluded Our attention.

xxx

WHEREFORE, premises considered and pursuant to applicable laws and

jurisprudence on the matter, the present Petition for Review is
hereby DENIED for lack of merit. The assailed decision (dated January 26, 2000)
of the Office of the Ombudsman in OMB-ADM-0-99-0349 is hereby AFFIRMED
in toto. No pronouncement as to costs.

SO ORDERED.[15]

After the denial of his motion for reconsideration,[16] Carandang commenced

G.R. No. 148076.

Violation of Section 3 (g), Republic Act No. 3019

On January 17, 2000, the Ombudsman formally charged Carandang in the

Sandiganbayan with a violation of Section 3 (g) of RA 3019 by alleging in the
following information, [17] viz:

That sometime on September 8, 1998 or thereabouts, in Quezon City,

Philippines and within the jurisdiction of this Honorable Court, accused
ANTONIO M. CARANDANG, a high ranking officer (HRO) being then the
General Manager of Radio Philippines Network, Inc. (RPN-9), then a government
owned and controlled corporation, did then and there willfully, unlawfully and
 criminally give unwarranted benefits to On Target Media Concept, Inc. (OTMCI)
through manifest partiality and gross inexcusable negligence and caused the
government undue injury, by pre-terminating the existing block time contract
between RPN 9 and OTMCI for the telecast of Isumbong Mo Kay Tulfo which
assured the government an income of Sixty Four Thousand and Nine Pesos (P
64,009.00) per telecast and substituting the same with a more onerous co-
production agreement without any prior study as to the profitability thereof, by
which agreement RPN-9 assumed the additional obligation of taking part in the
promotions, sales and proper marketing of the program, with the end result in that
in a period of five (5) months RPN-9 was able to realize an income of only
Seventy One Thousand One Hundred Eighty Five Pesos (P 71,185.00), and
further, by waiving RPN-9s collectible from OTMCI for August 1-30, 1998 in the
amount of Three Hundred Twenty Thousand and Forty Five Pesos (P
320,045.00).

Carandang moved to quash the information,[18] arguing that Sandiganbayan

had no jurisdiction because he was not a public official due to RPN not being a
government-owned or -controlled corporation.
The Sandiganbayan denied Carandangs motion to quash on October 17,
2001.[19]

After the denial by the Sandiganbayan of his motion for

reconsideration,[20] Carandang initiated G.R. No. 153161.[21]

On May 27, 2002, Carandang moved to defer his arraignment and pre-trial,
citing the pendency of G.R. No. 153161.[22]

On July 29, 2002, the Court directed the parties in G.R. No. 153161 to
maintain the status quo until further orders.[23]

On November 20, 2006, G.R. No. 148076 was consolidated with G.R. No.
153161.[24]

Issue

Carandang insists that he was not a public official considering that RPN was
not a government-owned or -controlled corporation; and that, consequently, the
Ombudsman and the Sandiganbayan had no jurisdiction over him. He prays that
the administrative and criminal complaints filed against him should be dismissed.
Accordingly, decisive is whether or not RPN was a government-owned or -
controlled corporation.

Ruling

We find the petitions to be meritorious.

It is not disputed that the Ombudsman has jurisdiction over administrative

cases involving grave misconduct committed by the officials and employees of
government-owned or -controlled corporations; and that the Sandiganbayan has
jurisdiction to try and decide criminal actions involving violations of R.A. 3019
committed by public officials and employees, including presidents, directors and
managers of government-owned or -controlled corporations. The respective
jurisdictions of the respondents are expressly defined and delineated by the law.[25]

Similarly, the law defines what are government-owned or -controlled

corporations. For one, Section 2 of Presidential Decree No. 2029 (Defining
Government Owned or Controlled Corporations and Identifying Their Role in
National Development) states:

Section 2. A government-owned or controlled corporation is a stock or a

non-stock corporation, whether performing governmental or proprietary
functions, which is directly chartered by a special law or if organized under the
general corporation law is owned or controlled by the government directly, or
indirectly through a parent corporation or subsidiary corporation, to the extent of
at least a majority of its outstanding capital stock or of its outstanding voting
capital stock.

Section 2 (13) of Executive Order No. 292 (Administrative Code

of 1987)[26] renders a similar definition of government-owned or -controlled
corporations:

Section 2. General Terms Defined. Unless the specific words of the text or
the context as a whole or a particular statute, shall require a different meaning:

xxx

(13) government-owned or controlled corporations refer to any agency

organized as a stock or non-stock corporation vested with functions relating to
 public needs whether governmental or proprietary in nature, and owned by the
government directly or indirectly through its instrumentalities either wholly,
or where applicable as in the case of stock corporations to the extent of at
least 51% of its capital stock.

It is clear, therefore, that a corporation is considered a government-owned or

-controlled corporation only when the Government directly or indirectly owns or
controls at least a majority or 51% share of the capital stock. Applying this
statutory criterion, the Court ruled in Leyson, Jr. v. Office of the Ombudsman:[27]

But these jurisprudential rules invoked by petitioner in support of his claim

that the CIIF companies are government owned and/or controlled corporations are
incomplete without resorting to the definition of government owned or controlled
corporation contained in par. (13), Sec.2, Introductory Provisions of the
Administrative Code of 1987, i.e., any agency organized as a stock or non-stock
corporation vested with functions relating to public needs whether governmental
or proprietary in nature, and owned by the government directly or indirectly
through its instrumentalities either wholly, or where applicable as in the case of
stock corporations to the extent of at least fifty-one (51) percent of its capital
stock. The definition mentions three (3) requisites, namely, first, any agency
organized as a stock or non-stock corporation; second, vested with functions
relating to public needs whether governmental or proprietary in nature; and, third,
owned by the Government directly or through its instrumentalities either wholly,
or, where applicable as in the case of stock corporations, to the extent of at least
fifty-one (51) of its capital stock.

In the present case, all three (3) corporations comprising the CIIF companies
were organized as stock corporations. The UCPB-CIIF owns 44.10% of the
shares of LEGASPI OIL, xxx. Obviously, the below 51% shares of stock in
LEGASPI OIL removes this firm from the definition of a government owned
or controlled corporation. x x x The Court thus concludes that the CIIF are, as
found by public respondent, private corporations not within the scope of its
jurisdiction.[28]

Consequently, RPN was neither a government-owned nor a controlled

corporation because of the Governments total share in RPNs capital stock being
only 32.4%.

Parenthetically, although it is true that the Sandiganbayan (Second Division)

ordered the transfer to the PCGG of Benedictos shares that represented 72.4% of
the total issued and outstanding capital stock of RPN, such quantification of
Benedictos shareholding cannot be controlling in view of Benedictos timely filing
of a motion for reconsideration whereby he clarified and insisted that the shares
ceded to the PCGG had accounted for only 32.4%, not 72.4%, of RPNs
outstanding capital stock. With the extent of Benedictos holdings in RPN
remaining unresolved with finality, concluding that the Government held the
majority of RPNs capital stock as to make RPN a government-owned or -
controlled corporation would be bereft of any factual and legal basis.

Even the PCGG and the Office of the President (OP) have recognized RPNs
status as being neither a government-owned nor -controlled corporation.

In its Opinion/Clarification dated August 18, 1999, the PCGG

communicated to San Luis as the president and general manager of RPN regarding
a case involving RPN and Carandang:[29]

MR. EDGAR S. SAN LUIS

President & General Manager
Radio Philippines Network, Inc.
Broadcast City, Capitol Hills
Diliman, Quezon City

Sir:

This refers to your letter dated August 4, 1999, seeking PCGGs position on
the following:

1. Whether RPN-9 is a GOCC x x x or a private corporation outside the

scope of OGCC and COAs control given 32% Government ownership x x x.

xxx

It appears that under the RP-Benedicto Compromise Agreement dated

November 3, 1990 validity of which has been sustained by the Supreme Court in
G.R. No. 96087, March 31, 1992, (Guingona, Jr. vs. PCGG, 207 SCRA 659)
Benedicto ceded all his rights, interest and/or participation, if he has any, in RPN-
9, among others, to the government which rights, interest and/or participation per
PCGGs understanding, include 9,494,327.50 shares of stock, i.e, about 72.4% of
the total issued and outstanding capital stock of RPN-9.

Accordingly, the Sandiganbayan (Second Division), on motion of the

government through PCGG, ordered the president and corporate secretary of the
RPN-9 to effect the immediate cancellation and transfer of the 9,494,327.50
shares corresponding to Benedictos proprietary interest in RPN-9 to the Republic
of the Philippines c/o PCGG (Sandiganbayans Resolution of February 3, 1998 in
Civil Case No. 0034, RP vs. Roberto Benedicto, et. al.) Benedicto, however, filed
a motion for reconsideration of said Resolution, contending that the number of
RPN-9 shares ceded by him embraces only his personal holdings and those of his
immediate family and nominees totaling 4,161,207.5 shares but excluding the
RPN-9 shares in the name of Far East Managers and Investors, Inc. (FEMIE),
which is about 40%, as they are corporate properties/assets of FEMIE and not his
personal holdings. Said motion for reconsideration is still pending resolution by
the Sandiganbayan.

xxx

We agree with your x x x view that RPN-9 is not a government owned

or controlled corporation within the contemplation of the Administrative
Code of 1987, for admittedly, RPN-9 was organized for private needs and
profits, and not for public needs and was not specifically vested with
functions relating to public needs.

Neither could RPN-9 be considered a government-owned or controlled

corporation under Presidential Decree (PD) No. 2029 dated February 4,
1986, which defines said terms as follows:

Sec.2. Definition. A government owned- or controlled corporation is a stock or

non-stock corporation, whether performing governmental or proprietary functions
which is directly chartered by special law or organized under the general corporation
law is owned or controlled by the government directly, or indirectly through a parent
corporation or subsidiary corporation, to the extent of at least a majority of its
outstanding capital stock or of its outstanding voting capital stock;

Provided, that a corporation organized under the general corporation law under
private ownership at least a majority of the shares of stock of which were conveyed to a
government corporation in satisfaction of debts incurred with a government financial
institution, whether by foreclosure or otherwise, or a subsidiary corporation of a
government corporation organized exclusively to own and manage, or lease, or operate
specific physical assets acquired by a government financial institution in satisfaction of
debts incurred therewith, and which in any case by enunciated policy of the
government is required to be disposed of to private ownership within a specified period
of time, shall not be considered a government-owned or controlled corporation before
such disposition and even if the ownership or control thereof is subsequently
transferred to another government-owned or controlled corporation.

A government-owned or controlled corporation is either parent corporation,

i.e., one created by special law (Sec. 3 (a), PD 2029) or a subsidiary
corporation, i.e, one created pursuant to law where at least a majority of the
outstanding voting capital stock of which is owned by parent government
corporation and/or other government-owned subsidiaries. (Sec. 3 (b), PD 2029).

RPN-9 may not likewise be considered as an acquired asset corporation

which is one organized under the general corporation law (1) under private
 ownership at least a majority of the shares of stock of which were conveyed to a
government corporation in satisfaction of debts incurred with a government
financial institution, whether by foreclosure or otherwise, or (2) as a subsidiary
corporation of a government corporation organized exclusively to own and
manage, or lease, or operate specific physical assets acquired by a government
financial institution in satisfaction of debts incurred therewith, and which in any
case by enunciated policy of the government is required to be disposed of to
private ownership within a specified period of time (Sec 3 c, PD 2029), for the
following reasons:

1. as noted above, the uncontested (not litigated) RPN-9 shares of the

government is only 32.4% (not a majority) of its capital stock;

2. said 32.4% shares of stock, together with the contested/litigated 40%,

were not conveyed to a government corporation or the government
in satisfaction of debts incurred with government financial
institution, whether by foreclosure or otherwise;

3. RPN-9 was not organized as a subsidiary corporation of a government

corporation organized exclusively to own and manage, or lease, or
operate specific physical assets acquired by a government financial
institution in satisfaction of debts incurred therewith.

It should be parenthetically noted that the 32.4% or 72.4% shares of stocks

were turned over to the government by virtue of a compromise agreement
between the government and Benedicto in Civil Case No. 0034 which is a civil
action against Defendants Roberto S. Benedicto, Ferdinand E. Marcos, Imelda R.
Marcos and others, to recover from them ill-gotten wealth (Amended Complaint,
Aug. 12, 1987, Civil Case No. 0034, p. 2.) As the case between the government
and Benedicto, his family and nominees was compromised, no judicial
pronouncement was made as to the character or nature of the assets and properties
turned over by Benedicto to the government whether they are ill-gotten wealth or
not.[30]

The PCGGs Opinion/Clarification was affirmed by the OP itself on February

10, 2000: [31]
February 10, 2000

Mr. Edgar S. San Luis

President and General Manager
Radio Philippines Network Inc.
Broadcasting City, Capitol Hills, Diliman
Quezon City
 Dear President San Luis,

xxx

Relative thereto, please be informed that we affirm the PCGGs opinion

that RPNI is not a government-owned and/or controlled corporation
(GOCC). Section 2 (13), Introductory Provisions of the Administrative Code of
1987 defines a GOCC as an agency organized as a stock or non-stock
corporation vested with functions relating to public needs whether governmental
or proprietary in nature, and owned by the government directly or indirectly
through its instrumentalities either wholly, or where applicable as in the case of
stock corporations to the extent of at least 51% of its capital stock. As
government ownership over RPNI is only 32.4% of its capital stock, pending
the final judicial determination of the true and legal ownership of RPNI, the
corporation is deemed private.[32]

Even earlier, a similar construction impelled the Ombudsman to dismiss a

criminal complaint for violation of R.A. 3019 filed against certain
RPN officials, as the Ombudsmans resolution dated December 15,
1997 indicates,[33] a pertinent portion of which is quoted thus:

This is not to mention the fact that the other respondents, the RPN officials,
are outside the jurisdiction of this Office (Office of the Ombudsman); they are
employed by a private corporation registered with the Securities and Exchange
Commission, the RPN, which is not a government owned or controlled
corporation x x x[34]

Considering that the construction of a statute given by administrative

agencies deserves respect,[35] the uniform administrative constructions of the
relevant aforequoted laws defining what are government-owned or -controlled
corporations as applied to RPN is highly persuasive.

Lastly, the conclusion that Carandang was a public official by virtue of his
having been appointed as general manager and chief operating officer of RPN by
President Estrada deserves no consideration. President Estradas intervention was
merely to recommend Carandangs designation as general manager and chief
operating officer of RPN to the PCGG, which then cast the vote in his favor vis--
vis said positions.[36] Under the circumstances, it was RPNs Board of Directors that
appointed Carandang to his positions pursuant to RPNs By-Laws.[37]

In fine, Carandang was correct in insisting that being a private individual he

was not subject to the administrative authority of the Ombudsman and to the
criminal jurisdiction of the Sandiganbayan.[38]
WHEREFORE, we grant the petitions in G.R. No. 148076 and G.R. No.
153161.

We reverse and set aside the decision promulgated on February 12, 2001 by
the Court of Appeals in C.A.-G.R. SP No. 58204, and dismiss the administrative
charge for grave misconduct against the petitioner.

We annul and set aside the resolutions dated October 17, 2001 and March
14, 2002, as well as the order dated March 15, 2002, all issued by the
Sandiganbayan (Fifth Division) in Criminal Case No. 25802, and dismiss Criminal
Case No. 25802 as against the petitioner.
SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson
ARTURO D. BRION MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice

MARIA LOURDES P.A. SERENO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

[1]
Rollo (G.R. No. 148076), pp. 34-50; penned by Associate Justice Jose L. Sabio, Jr. (retired), with Associate
Justices Ma. Alicia Austria-Martinez (later Presiding Justice of the CA, and a Member of the Court, but already
retired) and Hilarion L. Aquino (retired), concurring.
[2]
Id., pp. 52-53.
[3]
Id., pp. 285-297.
[4]
Rollo (G.R. No. 153161), pp. 30-39; penned by Associate Justice Minita V. Chico-Nazario (later Presiding Justice
of the Sandiganbayan, and a Member of the Court, but already retired), with Associate Justice Ma. Cristina G.
Cortez-Estrada (later Presiding Justice of the Sandiganbayan, but already retired) and Associate Justice Nicodemo T.
Ferrer (retired), concurring.
[5]
Id., pp. 40-43; penned by Associate Justice Chico-Nazario with Associate Justice Cortez-Estrada and Associate
Justice Francisco H. Villaruz, Jr., concurring.
[6]
Rollo (G.R. No. 148076), pp. 66-86.
[7]
Rollo (G.R. No. 153161), pp. 68-69.
[8]
Id., p. 182.
[9]
Rollo (G.R. No. 148076), pp. 150 and 170-190.
[10]
CA rollo, pp. 397 and 629-630.
[11]
Supra, note 3.
[12]
Rollo (G.R. No. 148076), pp. 298-304.
[13]
Id. pp. 305-308.
[14]
Rollo (G.R. No. 148076), pp. 309-324.
[15]
Supra, note 1, pp. 43-49.
[16]
Supra, note 2.
[17]
Rollo (G.R. No. 153161), pp. 89-90.
[18]
Id., pp. 94-100.
[19]
Supra, note 8.
[20]
Supra, note 9.
[21]
Supra, note 7.
[22]
Rollo (G.R. No. 153161), pp. 133-138.
[23]
Id., pp. 140-141.
[24]
Id., p. 219.
[25]
Article XI, Sections 12 and 13 of the 1987 Constitution; Republic Act No. 6770, otherwise known as The
Ombudsman Act of 1989; Article XI, Section 4 of the 1987 Constitution, in relation to Article XIII, Section 5 of the
1973 Constitution (See People v. Sandiganbayan, G.R. Nos. 147706-07, February 16, 2005, 451 SCRA 413);
Section 4 (a) (1) (g), Republic Act No. 8249 (approved on February 5, 1997), entitled 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.
[26]
Enacted on July 25, 1987.
[27]
G.R. No. 134990, April 27, 2000, 331 SCRA 227, 235-236.
[28]
Bold underscoring supplied for emphasis.
[29]
Rollo (G.R. No. 153161), pp. 66-72.
[30]
Emphasis and underscoring supplied.
[31]
Rollo (G.R. No. 148076), p. 358.
[32]
Emphasis supplied.
[33]
Rollo (G.R. No. 148076), pp. 634-638.
[34]
Emphasis supplied.
[35]
Philippine Amusement and Gaming Corporation (PAGCOR) v. Philippine Gaming Jurisdiction, Incorporated
(PEJI), G.R. No. 177333, April 24, 2009, 586 SCRA 658, 667; Alfonso v. Office of the President, G.R. No. 150091,
April 2, 2007, 520 SCRA 64, 75; Delos Santos v. Court of Appeals, G.R. No. 147912, April 26, 2006, 488 SCRA
351, 359.
[36]
Rollo (G.R. No. 148076), p. 99.
[37]
Rollo (G.R. No. 153161), pp. 56 and 182.
[38]
Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747.

EN BANC

[G.R. No. 128096. January 20, 1999]

PANFILO M. LACSON, petitioner vs. THE EXECUTIVE SECRETARY,

THE SANDIGANBAYAN, OFFICE OF THE SPECIAL
PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA
ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO,
and THE PEOPLE OF THE PHILIPPINES, respondents.
ROMEO M. ACOP and FRANCISCO G. ZUBIA, JR., petitioners-intervenors.

DECISION
MARTINEZ, J.:

The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further
defines the jurisdiction of the Sandiganbayan is being challenged in this petition for prohibition
and mandamus.Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and
Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceeding with the trial of
Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of
jurisdiction.
The antecedents of this case, as gathered from the parties pleadings and documentary proofs,
are as follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be members of
the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involve in
a spate of bank robberies in Metro Manila, were slain along Commonwealth Avenue in Quezon
City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by
Chief Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was
composed of police officers from the Traffic Management Command (TMC) led by petitioner-
intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission
Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson;
Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the
Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent
Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what
actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a
shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano
Desierto formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs,
Bienvenido Blancaflor, to investigate the incident. This panel later absolve from any criminal
liability all the PNP officers and personnel allegedly involved in the May 18, 1995 incident, with
a finding that the said incident was a legitimate police operation.[1]
However, a review board led by Overall Deputy Ombudsman Francisco Villa modified the
Blancaflor panels finding and recommended the indictment for multiple murder against twenty-
six (26) respondents, including herein petitioner and intervenors. This recommendation was
approved by the Ombudsman, except for the withdrawal of the charges against Chief Supt.
Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as
principal in eleven (11) informations for murder[2] before the Sandiganbayans Second Division,
while intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same
informations as accessories after-the-fact.
Upon motion by all the accused in the 11 informations,[3] the Sandiganbayan allowed them
to file a motion for reconsideration of the Ombudsmans action.[4]
After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven
(11) amended informations[5] before the Sandiganbayan, wherein petitioner was charged only as
an accessory, together with Romeo Acop and Francisco Zubia, Jr. and others. One of the
accused[6] was dropped from the case.
On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of
the Sandiganbayan, asserting that under the amended informations, the cases fall within the
jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic
Act No. 7975.[7] They contend that the said law limited the jurisdiction of the Sandiganbayan to
cases where one or more of the "principal accused are government officials with Salary Grade
(SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or
higher. The highest ranking principal accused in the amended informations has the rank of only
a Chief Inspector, and none has the equivalent of at least SG 27.
Thereafter, in a Resolution[8] dated May 8, 1996 (promulgated on May 9, 1996), penned by
Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and
Garchitorena dissenting,[9] the Sandiganbayan admitted the amended information and ordered the
cases transferred to the Quezon City Regional Trial Court which has original and exclusive
jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief
Superintendent or higher.
On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration,
insisting that the cases should remain with the Sandiganbayan. This was opposed by petitioner
and some of the accused.
While these motions for reconsideration were pending resolution, and even before the issue
of jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House
Bill No. 2299[10] and No. 1094[11] (sponsored by Representatives Edcel C. Lagman and Neptali M.
Gonzales II, respectively), as well as Senate Bill No. 844[12] (sponsored by Senator Neptali
Gonzales), were introduced in Congress, defining/expanding the jurisdiction of
the Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of
the Sandiganbayan by deleting the word principal from the phrase principal accused in Section 2
(paragraphs a and c) of R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No. 8249[13]. The law is
entitled, 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. It took effect on February
25, 1997.13 by the President of the Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution[14] denying
the motion for reconsideration of the Special Prosecutor, ruling that it stands pat in its resolution
dated May 8, 1996.
On the same day,[15] the Sandiganbayan issued an ADDENDUM to its March 5, 1997
Resolution, the pertinent portion of which reads:

After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it,
but before Justice de Leon, Jr. rendered his concurring and dissenting opinion, the
legislature enacted Republic Act 8249 and the President of the Philippines approved it
on February 5, 1997. Considering the pertinent provisions of the new law, Justices
Lagman and Demetriou are now in favor of granting, as they are now granting,
the Special Prosecutors motion for reconsideration. Justice de Leon has already
done so in his concurring and dissenting opinion.

xxxxxxxxx
Considering that three of the accused in each of these cases are PNP Chief
Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M.
Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest
has been issued this court has competence to take cognizance of these cases.

To recapitulate, the net result of all the foregoing is that by the vote of 3 to 2, the
court admitted the Amended Informations in these cases and by the unanimous
vote of 4 with 1 neither concurring nor dissenting, retained jurisdiction to try
and decide the cases.[16] [Emphasis supplied]

Petitioner now questions the constitutionality of Section 4 R.A. No. 8249, including Section
7 thereof which provides that the said law shall apply to all cases pending in any court over
which trial has not begun as of the approval hereof. Petitioner argues that:

a) The questioned provision of the statute were introduced by the authors thereof in
bad faith as it was made to precisely suit the situation in which petitioners cases were
in at the Sandiganbayan by restoring jurisdiction thereover to it, thereby violating his
right to procedural due process and the equal protection clause of the
Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9)
months the resolution of a pending incident involving the transfer of the cases to the
Regional Trial Court, the passage of the law may have been timed to overtake such
resolution to render the issue therein moot, and frustrate the exercise of petitioners
vested rights under the old Sandiganbayan law (RA 7975)

b) Retroactive application of the law is plain from the fact that it was again made to
suit the peculiar circumstances in which petitioners cases were under, namely, that
trial had not yet commenced, as provided in Section 7, to make certain that those
cases will no longer be remanded to the Quezon City Regional Trial Court, as
the Sandiganbayan alone should try them, thus making it an ex post factolegislation
and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047
23057 to procedural due process

c) The title of the law is misleading in that it contains the aforesaid innocuous
provisions in Sections 4 and 7 which actually expands rather than defines the
old Sandiganbayan law (RA 7975), thereby violating the one-title-one-subject
requirement for the passage of statutes under Section 26(1), Article VI of the
Constitution.[17]

For their part, the intervenors, in their petition-in-intervention, add that while Republic Act
No. 8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan,
the introduction of Sections 4 and 7 in said statute impressed upon it the character of a class
legislation and an ex-post facto statute intended to apply specifically to the accused in
the Kuratong Baleleng case pending before the Sandiganbayan.[18] They further argued that if
their case is tried before the Sandiganbayan their right to procedural due process would be
violated as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they
acquired under R.A. 7975, before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor General filed separate pleadings in
support of the constitutionality of the challenged provisions of the law in question and praying
that both the petition and the petition-in-intervention be dismissed.
This Court then issued a Resolution[19] requiring the parties to file simultaneously within
a nonextendible period of ten (10) days from notice thereof additional memoranda on the
question of whether the subject amended informations filed in Criminal Cases Nos. 23047-23057
sufficiently alleged the commission by the accused therein of the crime charged within the
meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive
original jurisdiction of the Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of the
Philippines, filed the required supplemental memorandum within the nonextendible
reglementary period.
The established rule is that every law has in its favor the presumption of constitutionality,
and to justify its nullification there must be a clear and unequivocal breach of the Constitution,
not a doubtful and argumentative one.[20] The burden of proving the invalidity of the law lies with
those who challenge it. That burden, we regret to say, was not convincingly discharged in the
present case.
The creation of the Sandiganbayan was mandated in Section 5, Article XIII of the 1973
Constitution, which provides:

SEC. 5. The Batasang Pambansa shall create a special court, to be known

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

The said special court is retained in the new (1987) Constitution under the following
provision in Article XI, Section 4:

Section 4. The present anti-graft court known as the Sandiganbayan shall continue to
function and exercise its jurisdiction as now or hereafter may be provided by law.

Pursuant to the constitutional mandate, Presidential Decree No. 1486[21] created

the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological
order, were enacted: P.D. No. 1606,[22] Section 20 of Batas Pambansa Blg. 129,[23] P.D. No.
1860,[24] P.D. No. 1861,[25] R.A. No. 7975,[26] and R.A. No. 8249.[27] Under the latest amendments
introduced by Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the
following cases:
SEC. 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further
amended to read as follows:

SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction

in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade 27 and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan,

and provincial treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city

treasurers, assessors, engineers, and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine Army and air force colonels, naval captains, and all officers of higher
rank;

(e) Officers of the Philippine National Police while occupying the position
of provincial director and those holding the rank of senior superintendent or higher;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors
in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions or foundations;

(2) Members of Congress or officials thereof classified as Grade 27 and up under the
Compensation and Position Classification Act of 1989;

(3) Members of the Judiciary without prejudice to the provisions of the Constitution;

(4) Chairman and members of the Constitutional Commissions, without prejudice to

the provisions of the Constitution;
(5) All other national and local officials classified as Grade 27 or higher under the
Compensation and Position Classification Act of 1989.

b. Other offenses or felonies whether simple or complexed with other crimes

committed by the public officials and employees mentioned in Subsection a of
this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.

In cases where none of the accused are occupying positions corresponding to salary
Grade 27 or higher, as prescribed in the said Republic Act 6758, or military and PNP
officers mentioned above, exclusive original jurisdiction thereof shall be vested in the
proper regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their respective
jurisdictions as provided in Batas Pambansa Blg. 129, as amended.

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final

judgment, resolution or orders of the regional trial courts whether in the exercise of
their own original jurisdiction of their appellate jurisdiction as herein provided.

"The Sandiganbayan shall have exclusive original jurisdiction over petitions of the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions,
and other ancillary writs and processes in aid of its appellate jurisdiction and over
petitions of similar nature, including quo warranto, arising or that may arise in cases
filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the
Supreme Court.

The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing
rules that the Supreme Court has promulgated and may hereafter promulgate, relative
to appeals/petitions for review to the Court of Appeals, shall apply to appeals and
petitions for review filed with the Sandiganbayan. In all cases elevated to
the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of
the Ombudsman, through its special prosecutor, shall represent the People of the
Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986.

In case private individuals are charged as co-principals, accomplices or accessories

with the public officers or employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly with said public officers
and employees in the proper courts which shall exercise exclusive jurisdiction over
them.

x x x x x x x x x. (Emphasis supplied)
Section 7 of R.A. No. 8249 states:

SEC. 7. Transitory provision. This act shall apply to all cases pending in any court
over which trial has not begun as of the approval hereof. (Emphasis supplied)

The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A.
7975 provides:

SEC. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended] is
hereby further amended to read as follows:

SEC. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction

in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the principal
accused are officials occupying the following positions in the government, whether in
a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and
higher, otherwise classified as Grade 27 and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan,

and provincial treasurers, assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city

treasurers, assessors, engineers, and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine Army and air force colonels, naval captains, and all officers of high
rank;

(e) PNP chief superintendent and PNP officers of higher rank;

(f) City and Provincial prosecutors and their assistants, and officials and prosecutors
in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled

corporations, state universities or educational institutions or foundations;

(2) Members of Congress or officials thereof classified as Grade 27 and up under the
Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairman and members of the Constitutional Commissions, without prejudice to

the provisions of the Constitution;

(5) All other national and local officials classified as Grade 27 or higher under the
Compensation and Position Classification Act of 1989.

b. Other offenses or felonies committed by the public officials and

employees mentioned in Subsection a of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A.

In cases where none of the principal accused are occupying positions corresponding to
salary Grade 27 or higher, as prescribed in the said Republic Act 6758, or PNP
officers occupying the rank of superintendent or higher, or their equivalent,
exclusive jurisdiction thereof shall be vested in the proper regional trial court,
metropolitan trial court, municipal trial court, and municipal circuit trial court, as the
case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa
Blg. 129.

The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the
final judgments, resolutions or orders of regular courts where all the accused are
occupying positions lower than grade 27, or not otherwise covered by the preceding
enumeration.

xxxxxxxxx

In case private individuals are charged as co-principals, accomplices or accessories

with the public officers or employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly with said public officers
and employees in the proper courts which shall have exclusive jurisdiction over them.
x x x x x x. (Emphasis supplied)
Section 7 of R.A. No. 7975 reads:

SEC. 7. Upon the effectivity of this Act, all criminal cases which trial has not begun
in the Sandiganbayan shall be referred to the proper courts.

Under paragraphs a and c, Section 4 of R.A. 8249, the word principal before the word
accused appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975,
was deleted. It is due to this deletion of the word principal that the parties herein are at
loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on
R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the
Subject criminal cases since none of the principal accused under the amended information has
the rank of Superintendent[28] or higher. On the other hand, the Office of the Ombudsman,
through the Special Prosecutor who is tasked to represent the People before the Supreme Court
except in certain cases,[29] contends that the Sandiganbayan has jurisdiction pursuant to R.A.
8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive
original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense
committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices
Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code (the law on bribery),[30] (d) Executive Order Nos. 1, 2, 14, and 14-A,
issued in 1986 (sequestration cases),[31] or (e) other offenses or felonies whether simple or
complexed with other crimes; (2) the offender committing the offenses in items (a), (b), (c) and
(e) is a public official or employee[32] holding any of the positions enumerated in paragraph a of
Section 4; and (3) the offense committed is in relation to the office.
Considering that herein petitioner and intervenors are being charged with murder which is a
felony punishable under Title VIII of the Revised Penal Code, the governing provision on the
jurisdictional offense is not paragraph but paragraph b, Section 4 of R.A. 8249. This paragraph
b pertains to other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection a of [Section 4, R.A.
8249] in relation to their office. The phrase other offenses or felonies is too broad as to include
the crime of murder, provided it was committed in relation to the accuseds official
functions. Thus, under said paragraph b, what determines the Sandiganbayans jurisdiction is
the official position or rank of the offender that is, whether he is one of those public officers or
employees enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b
and c of the same Section 4 do not make any reference to the criminal participation of the
accused public officer as to whether he is charged as a principal, accomplice or accessory. In
enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which
does not mention the criminal participation of the public officer as a requisite to determine the
jurisdiction of the Sandiganbayan.
Petitioner and intervenors posture that Section 4 and 7 of R.A. 8249 violate their right to
equal protection of the law[33] because its enactment was particularly directed only to
the Kuratong Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve
merit. No concrete evidence and convincing argument were presented to warrant a declaration of
an act of the entire Congress and signed into law by the highest officer of the co-equal executive
department as unconstitutional. Every classification made by law is presumed reasonable. Thus,
the party who challenges the law must present proof of arbitrariness.[34]
It is an established precept in constitutional law that the guaranty of the equal protection of
the laws is not violated by a legislation based on reasonable classification. The classification is
reasonable and not arbitrary when there is concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
(4) must apply equally to all members of the same class,[35]
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of
constitutionality and reasonableness of the questioned provisions. The classification between
those pending cases involving the concerned public officials whose trial has not yet commenced
and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction
under R.A. 8249, as against those cases where trial had already started as of the approval of the
law, rests on substantial distinction that makes real differences.[36] In the first instance, evidence
against them were not yet presented, whereas in the latter the parties had already submitted their
respective proofs, examined witness and presented documents. Since it is within the power of
Congress to define the jurisdiction of courts subject to the constitutional limitations,[37] it can be
reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending
cases, which is why it has to provide for a remedy in the form of a transitory provision. Thus,
petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different
category from those similarly situated as them. Precisely, paragraph a of Section 4 provides that
it shall apply to all cases involving" certain public officials and, under the transitory provision in
Section 7, to all cases pending in any court. Contrary to petitioner and intervenors arguments, the
law is not particularly directed only to the Kuratong Baleleng cases. The transitory provision
does not only cover cases which are in the Sandiganbayan but also in any court. It just happened
that the Kuratong Baleleng cases are one of those affected by the law. Moreover, those cases
where trial had already begun are not affected by the transitory provision under Section 7 of the
new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is premised on what is
perceived as bad faith on the part of a Senator and two Justices of the Sandiganbayan[38] for their
participation in the passage of the said provisions. In particular, it is stressed that the Senator had
expressed strong sentiments against those officials involved in the Kuratong Baleleng cases
during the hearings conducted on the matter by the committee headed by the Senator. Petitioner
further contends that the legislature is biased against him as he claims to have been selected from
among the 67 million other Filipinos as the object of the deletion of the word principal in
paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A.
8249.[39] R.A. 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and
by about 250 Representatives, and was separately approved by the Senate and House of
Representatives and, finally, by the President of the Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner
during the committee hearings, the same would not constitute sufficient justification to nullify an
otherwise valid law. Their presence and participation in the legislative hearings was deemed
necessary by Congress since the matter before the committee involves the graft court of which
one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its
plenary legislative powers, is particularly empowered by the Constitution to invite persons to
appear before it whenever it decides to conduct inquiries in aid of legislation.[40]
Petitioner and intervenors further argued that the retroactive application of R.A. 8249 to
the Kuratong Baleleng cases constitutes an ex post facto law[41] for they are deprived of their
right to procedural due process as they can no longer avail of the two tiered appeal which they
had allegedly acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v.
Bull,[42] an ex post facto law is one
(a)which makes an act done criminal before the passing of the law and which was innocent
when committed, and punishes such action; or
(b) which aggravates a crime or makes it greater that when it was committed; or
(c) which changes the punishment and inflicts a greater punishment than the law annexed to the
crime when it was committed,
(d) which alters the legal rules of evidence and receives less or different testimony than the law
required at the time of the commission of the offense in order to convict the defendant.[43]
(e) Every law which, in relation to the offense or its consequences, alters the situation of a
person to his disadvantage.[44]
This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty
or deprivation of a right which when done was lawful;
(g) deprives a person accused of crime of some lawful protection to which he has become
entitled, such as the protection of a former conviction or acquittal, or a proclamation of
amnesty.[45]
Ex post facto law, generally, prohibits retrospectivity of penal laws.[46] R.A. 8249
is not a penal law. It is a substantive law on jurisdiction which is not penal in character. Penal
laws are those acts of the Legislature which prohibit certain acts and establish penalties for their
violations;[47] or those that define crimes, treat of their nature, and provide for their
punishment.[48] R.A. 7975, which amended P.D. 1606 as regards the Sandiganbayans jurisdiction,
its mode of appeal and other procedural matters, has been declared by the Court as not a penal
law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts
applying laws of all kinds can properly administer justice.[49] Not being a penal law, the
retroactive application of R.A. 8249 cannot be challenged as unconstitutional.
Petitioners and intervenors contention that their right to a two-tiered appeal which they
acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same
contention has already been rejected by the court several times[50] considering that the right to
appeal is not a natural right but statutory in nature that can be regulated by law. The mode of
procedure provided for in the statutory right of appeal is not included in the prohibition
against ex post facto laws.[51] R.A. 8249 pertains only to matters of procedure, and being merely
an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out
a penalty and, therefore, does not come within the prohibition.[52] Moreover, the law did not alter
the rules of evidence or the mode of trial.[53] It has been ruled that adjective statutes may be made
applicable to actions pending and unresolved at the time of their passage.[54]
In any case, R.A. 8249 has preserved the accuseds right to appeal to the Supreme Court to
review questions of law.[55] On the removal of the intermediate review facts, the Supreme Court
still has the power of review to determine if the presumption of innocence has been convincingly
overcome.[56]
Another point. The challenged law does not violate the one-title-one-subject provisions of
the Constitution. Much emphasis is placed on the wording in the title of the law that it defines
the Sandiganbayan jurisdiction when what it allegedly does is to expand its jurisdiction. The
expansion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have
to be expressly stated in the title of the law because such is the necessary consequence of the
amendments. The requirement that every bill must only have one subject expressed in the
title[57] is satisfied if the title is comprehensive enough, as in this case, to include subjects related
to the general purpose which the statute seeks to achieve.[58] Such rule is severally interpreted and
should be given a practical rather than a technical construction. There is here sufficient
compliance with such requirement, since the title of R.A. 8249 expresses the general subject
(involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended)
and all the provisions of the law are germane to that general subject.[59] The Congress, in
employing the word define in the title of the law, acted within its powers since Section 2, Article
VIII of the Constitution itself empowers the legislative body to define, prescribe,
and apportion the jurisdiction of various courts.[60]
There being no unconstitutional infirmity in both the subject amendatory provision of
Section 4 and the retroactive procedural application of the law as provided in Section 7 R.A. No.
8249, we shall now determine whether under the allegations in the Informations, it is
the Sandiganbayan or Regional Trial Court which has jurisdiction over the multiple murder case
against herein petitioner and intervenors.
The jurisdiction of a court is defined by the Constitution or statute. The elements of that
definition must appear in the complaint or information so as to ascertain which court has
jurisdiction over a case.Hence the elementary rule that the jurisdiction of a court is determined
by the allegations in the complaint or information,[61] and not by the evidence presented by the
parties at the trial.[62]
As stated earlier, the multiple murder charge against petitioner and intervenors falls under
Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be
committed by the offender in relation to his office in order for the Sandiganbayan to have
jurisdiction over it.[63] This jurisdictional requirement is in accordance with Section 5, Article
XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction
over criminal cases committed by public officers and employees, including those in government-
owned or controlled corporations, in relation to their office as may be determined by law. This
constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section
4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as
now or hereafter may be provided by law.
 The remaining question to be resolved then is whether the offense of multiple murder was
committed in relation to the office of the accused PNP officers.
In People vs. Montejo,[64] we held that an offense is said to have been committed in relation
to the office if it (the offense) is intimately connected with the office of the offender and
perpetrated while he was in the performance of his official functions.[65] This intimate relation
between the offense charged and the discharge of official duties must be alleged in the
Information.[66]
As to how the offense charged be stated in the information, Section 9, Rule 110 of the
Revised Rules of Court mandates:

SEC. 9. Cause of Accusation. The acts or omissions complained of as constituting the

offense must be stated in ordinary and concise language without repetition not
necessarily in the terms of the statute defining the offense, but in such form as is
sufficient to enable a person of common understanding to know what offense is
intended to be charged, and enable the court to pronounce proper judgment.(Emphasis
supplied)

As early as 1954, we pronounced that the factor that characterizes the charge is the actual
recital of the facts.[67] The real nature of the criminal charges is determined not from the caption
or preamble of the information nor from the specification of the provision of law alleged to have
been violated, they being conclusions of law, but by the actual recital of facts in the complaint
or information.[68]
The noble object of written accusations cannot be overemphasized. This was explained
in U.S. v. Karelsen:[69]

The object of this written accusations was First, To furnish the accused with such
a description of the charge against him as will enable him to make his defense,
and second, to avail himself of his conviction or acquittal for protection against a
further prosecution for the same cause, and third, to inform the court of the facts
alleged so that it may decide whether they are sufficient in law to support a
conviction if one should be had. In order that this requirement may be
satisfied, facts must be stated, not conclusions of law Every crime is made up
of certain acts and intent these must be set forth in the complaint with
reasonable particularity of time, place, names (plaintiff and defendant) and
circumstances. In short, the complaint must
contain a specific allegation of every fact and circumstance necessary to
constitute the crime charged. (Emphasis supplied)

It is essential, therefore, that the accused be informed of the facts that are imputed to him
as he is presumed to have no independent knowledge of the facts that constitute the
offense.[70]
 Applying these legal principles and doctrines to the present case, we find the amended
informations for murder against herein petitioner and intervenors wanting of specific
factual averments to show the intimate relation/connection between the offense charged and
the discharge of official function of the offenders.
In the present case, one of the eleven (11) amended informations[71] for murder reads:

AMENDED INFORMATION

The undersigned Special Prosecution Officer III, Office of the Ombudsman hereby
accuses CHIEF INSP MICHAEL RAY AQUINO, CHIEF INSP ERWIN T.
VILLACORTE SENIOR INSP JOSELITO T. ESQUIVEL. INSP RICARDO G.
DANDAN SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON,
SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1
WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO
B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M.
ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G.
ZUBIA, JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO
III, CHIEF INSP. GIL L. MENESES, SENIOR INISP. GLENN DUMLAO, SENIOR
INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY
NUAS, SPO3 CICERO S. BACOLOD, PO2 NORBERTO LASAGA, PO2
LEONARDO GLORIA and PO2 ALEJANDRO G. LIWANAG of the crime
of Murder as defined and penalized under Article 248 of the Revised Penal
Code committed as follows:

That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon

City, Philippines and within the jurisdiction of this Honorable Court, the accused
CHIEF INISP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T.
VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G.
DANDAN, SPO4 VICENTE P. ARNADO SPO4 ROBERTO F. LANGCAUON,
SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1
WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1
OSMUNDO B. CARINO all taking advantage of their public and official
positions as officers and members of the Philippine National Police and committing
the acts herein alleged in relation to their public office, conspiring with intent to
kill and using firearms with treachery, evident premeditation and taking advantage of
their superior strengths did then and there willfully, unlawfully and
feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds
which caused his instantaneous death to the damage and prejudice of the heirs of the
said victim.

That accused CHIEF SUPT. JEWEL F. CANSON CHIEF SUPT. ROMEO M. ACOP
CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA,
JR. SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II CHIEF
INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP.
ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN SPO3 WILLY NUAS
SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the
acts in relation to office as officers and members of the Philippine National Police
are charged herein as accessories after-the-fact for concealing the crime herein
above alleged by among others falsely representing that there were no
arrests made during the raid conducted by the accused herein at Superville
Subdivision, Paraaque, Metro Manila on or about the early dawn of May 18, 1995.

CONTRARY TO LAW

While the above-quoted information states that the above-named principal accused
committed the crime of murder in relation to their public office, there is, however, no specific
allegation of facts that the shooting of the victim by the said principal accused was intimately
related to the discharge of their official duties as police officers. Likewise, the amended
information does not indicate that the said accused arrested and investigated the victim and then
killed the latter while in their custody.
Even the allegations concerning the criminal participation of herein petitioner and
intervenors as among the accessories after-the-fact, the amended information is vague on this. It
is alleged therein that the said accessories concealed the crime herein-above alleged by, among
others, falsely representing that there were no arrests made during the raid conducted by the
accused herein at Superville Subdivision, Paraaque, Metro Manila, on or about the early dawn of
May 18, 1995. The sudden mention of the arrests made during the raid conducted by the
accused surprises the reader. There is no indication in the amended information that the
victim was one of those arrested by the accused during the raid. Worse, the raid and arrests
were allegedly conducted at Superville Subdivision, Paraaque, Metro Manila but, as alleged in
the immediately preceding paragraph of the amended information, the shooting of the victim by
the principal accused occurred in Mariano Marcos Avenue, Quezon City. How the raid, arrests
and shooting happened in two places far away from each other is puzzling. Again, while there is
the allegation in the amended information that the said accessories committed the offense in
relation to office as officers and members of the (PNP), we, however, do not see the intimate
connection between the offense charged and the accuseds official functions, which, as earlier
discussed, is an essential element in determining the jurisdiction of the Sandiganbayan.
The stringent requirement that the charge be set forth with such particularity as will
reasonably indicate the exact offense which the accused is alleged to have committed in relation
to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended
information that the offense was committed by the accused public officer in relation to his office
is not sufficient. That phrase is merely a conclusion of law, not a factual averment that would
show the close intimacy between the offense charged and the discharge of the accuseds official
duties.
In People vs. Magallanes,[72] where the jurisdiction between the Regional Trial Court and
the Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction is determined by the allegations in the
complaint or information and not by the result of evidence after trial.

In (People vs. ) Montejo (108 Phil 613 [1960] ), where the amended information
alleged

Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups of police
patrol and civilian commandos consisting of regular policemen and x x x special
policemen, appointed and provided by him with pistols and high power guns and then
established a camp x x x at Tipo-tipo which is under his command x x x supervision
and control where his co-defendants were stationed, entertained criminal complaints
and conducted the corresponding investigations, as well as assumed the authority to
arrest and detain persons without due process of law and without bringing them to the
proper court, and that in line with this set-up established by said Mayor of Basilan
City as such, and acting upon his orders his co-defendants arrested and maltreated
Awalin Tebag who died in consequence thereof.

we held that the offense charged was committed in relation to the office of the
accused because it was perpetrated while they were in the performance, though
improper or irregular of their official functions and would not have been committed
had they not held their office, besides, the accused had no personal motive in
committing the crime, thus, there was an intimate connection between the offense and
the office of the accused.

Unlike in Montejo, the informations in Criminal Cases Nos. 15562 and 15563 in the
court below do not indicate that the accused arrested and investigated the victims and
then killed the latter in the course of the investigation. The informations merely allege
that the accused, for the purpose of extracting or extorting the sum of P353,000.00
abducted, kidnapped and detained the two victims, and failing in their common
purpose, they shot and killed the said victims. For the purpose of determining
jurisdiction, it is these allegations that shall control, and not the evidence presented
by the prosecution at the trial.

In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in
relation to public office does not appear in the information, which only signifies that the said
phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is
the specific factual allegations in the information that would indicate the close intimacy
between the discharge of the accuseds official duties and the commission of the offense charged,
in order to qualify the crime as having been committed in relation to public office.
Consequently, for failure to show in the amended informations that the charge of murder
was intimately connected with the discharge of official functions of the accused PNP officers,
the offense charged in the subject criminal cases is plain murder and, therefore, within the
exclusive original jurisdiction of the Regional Trial Court,[73] not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby
sustained. The Addendum to the March 5, 1997 Resolution of the Sandiganbayan is
REVERSED. The Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to
23057 (for multiple murder) to the Regional Trial Court of Quezon City which has exclusive
original jurisdiction over said cases.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.

[1]
Rollo, p. 43.
[2]
Docketed as Criminal Cases Nos. 23047 to 23057, Annex B, Petition; Rollo, pp. 32-34, 44.
[3]
Their motion states that they have been deprived of their right to file their respective motion for reconsideration of
the Ombudsmans final resolution.
[4]
Annex C, Petition Sandiganbayan Order dated November 27, 1995, Rollo, pp. 37-38.
[5]
Annex D, Petition, Rollo, pp. 39-41.
[6]
Inspector Alvarez.
[7]
Entitled An Act To Strengthen The Functional And Structural Organization Of The Sandiganbayan, Amending
For That Purpose Presidential Decree 1606, As Amended.
[8]
Annex E, Petition, Rollo, p. 42.
[9]
Presiding Justice Garchitorena and Justice De Leon were designated as special members of the Division pursuant
to SB Administrative Order No. 121-96 dated March 26, 1996.
[10]
Annex F, Petition; Rollo, pp. 113-123.
[11]
Annex F-1, Petition; Rollo, pp. 124-134.
[12]
Annex G, Petition; Rollo, pp. 135-145.
[13]
Annex A, Petition; Rollo, pp. 28,
[14]
Rollo, pp. 162-171.
[15]
March 5, 1997.
[16]
Rollo, pp. 214, 216-219.
[17]
Petition, pp. 8-9, Rollo, pp. 10-11.
[18]
Petition-In-Intervention, p. 9; Rollo, p. 236.
[19]
Dated December 15, 1998.
[20]
Justice Ricardo J. Francisco in Padilla v. Court of Appeals and People, 269 SCRA 402, citing
Peralta v. COMELEC, 82 SCRA 30.
 [21]
Took effect on June 11, 1978; See Republic v. Asuncion, 231 SCRA 229 [1994].
[22]
Took effect on December 10, 1978; Republic v. Asuncion, Ibid.
[23]
Sec. 20. Jurisdiction in criminal cases. - Regional Trial Courts shall exercise exclusive original jurisdiction in all
criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under the
exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance of
by the latter. (See also Natividad vs. Felix, 229 SCRA 685-686 [ 1994]. )
[24]
Took effect on January 14, 1983; Republic v. Asuncion, Ibid.
[25]
Took effect on March 23, 1983; Republic v. Asuncion, Ibid.
[26]
Approved on March 30, 1995 and took effect on May 16, 1995; People v. Magallanes, 249 SCRA 224 [1995];
Azarcon vs. Sandiganbayan, 268 SCRA 757 [1997].
[27]
Approved on February 5, 1995.
[28]
This is the rank stated in paragraph c (second par.), Section 2 of R.A. 7975, while in paragraph a (1) (e) of said
Section 2, the rank is chief superintendent or higher.
[29]
Section 4, P.D. 1606, as amended by R.A. 7975 and 8249.
[30]
Items (a), (b), and (c) are taken from paragraph a, Section 4 of R.A. 8249.
[31]
Paragraph c, Section 4, R.A. 8249.
[32]
The Sandiganbayan has jurisdiction over a private individual when the complaint charges him either as a co-
principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its
jurisdiction.
[33]
No person shall be deprived of life, liberty and property without due process of law nor shall any person be
denied the equal protection of the laws (Section 1, Article III, 1987 Constitution).
[34]
Sison, Jr. v. Ancheta, 130 SCRA 164.
[35]
Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, 175 SCRA 343;
People v. Cayat, 68 Phil. 12 (1939); People v. Vera, 65 Phil. 56; Philippine Judges Association v. Prado, 227 SCRA
703; Philippine Association of Service Exporters v. Drilon, 163 SCRA 386 (1988).
[36]
Sison, Jr. v. Ancheta, 130 SCRA 164.
[37]
See Fabian v. Aniano A. Desierto, as Ombudsman, G.R. No. 129742, Sept. 16, 1998.
[38]
Senator Raul Roco and Sandiganbayan Presiding Justice Francis Garchitorena and Justice Jose Balajadia.
[39]
Petition, p. 17.
[40]
Section 21, Article VI, 1987 Constitution provides: The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
[41]
No ex post facto law or bill of attainder shall be enacted (Section 22, Article VI, 1987 Constitution).
[42]
Penned by Chief Justice Chase (3 Dall. 386, 390.); Black, Constitutional law, 595, cited in Cruz, Constitutional
Law, 1995 ed. P. 247.
[43]
Mekin v. Wolfe, 2 Phil. 74 (1903) and U.S. v. Diaz Conde, 42 Phil. 766, 770, cited in Bernas, Constitutional
Rights and Social Demands, Part II, 1991 ed., p. 513.
[44]
This kind of ex post facto law appeared in Wilensky v. Fields, Fla., 267 So. 2d 1, 5 (Blacks Law Dictionary,
5th ed., p. 520) cited in People v. Sandiganbayan, 211 SCRA 241.
[45]
En Banc cases of In Re Kay Villegas Kami, 35 SCRA 429 (1970); Mejia v. Pamaran, 160 SCRA 457; Tan v.
Barrios, 190 SCRA 686; People v. Sandiganbayan, 211 SCRA 241.
[46]
Wright v. CA, 235 SCRA 341; Juarez v. CA, 214 SCRA 475; Pascual v. Board of Medical Examiners, 28 SCRA
344; See also Katigbak v. Solicitor General, 180 SCRA 540 citing Cabal v. Kapunan, Jr. 6 SCRA 1059;
Republic v. Agoncillo, 40 SCRA 579, and dela Cruz v. Better Living, Inc., 78 SCRA 274.
[47]
Lorenzo v. Posadas, 64 Phil. 353, 367 (1937).
[48]
Hernandez v. Albano, 19 SCRA 95, 102;
[49]
Subido, Jr. v. Sandiganbayan, 334 Phil. 346.
[50]
Rodriguez v. Sandiganbayan, 205 Phil. 567; Alviar v. Sandiganbayan, 137 SCRA 63; Nuez v. Sandiganbayan,
111 SCRA 433; De Guzman v. People, December 15, 1982.
[51]
Nuez v. Sandiganbayan, supra.
[52]
People v. Nazario, 165 SCRA 186.
[53]
Virata v. Sandiganbayan, 202 SCRA 680.
[54]
Oas v. Sandiganbayan, 178 SCRA 261.
[55]
Thompson v. Utah, 170 U.S. 343 cited in Nuez v. Sandiganbayan, supra.
[56]
Rodriguez v. Sandiganbayan, 205 Phil. 567; Alviar v. Sandiganbayan, 137 SCRA 63.
[57]
Section 26 (1), Article VI, 1987 Constitution reads Every bill passed by the Congress shall embrace only one
subject which shall be expressed in the title thereof.
[58]
Tio v. Videogram Regulatory Board, 151 SCRA 208.
[59]
Sumulong v. COMELEC, 73 Phil. 288, 291.
[60]
Sec. 2, Art. VI, 1987 Constitution provides: The Congress shall have the power to define, prescribe, and
apportion the jurisdiction of the various courts but may not deprived the Supreme Court of it jurisdiction over cases
enumerated in Section 5 hereof.
[61]
People vs. Magallanes, 249 SCRA 212, 222 [1995], citing Republic vs. Asuncion, 231 SCRA 211 [1994].
[62]
People vs. Magallanes, Ibid., citing U.S. vs. Mallari, 24 Phil. 366 [1913]; People vs. Co Hiok, 62 Phil. 501
[1935]; People vs. Ocaya, 83 SCRA 218 [1978].
[63]
Republic vs. Asuncion, supra, pp. 232-233 People vs. Magallanes, supra. p. 220
[64]
108 Phil. 613 [1960].
[65]
See also Republic vs. Asuncion, 231 SCRA 233 [1994] and People vs. Magallanes, 249 SCRA 221 [1995].
[66]
See Republic vs. Asuncion, supra, and People vs. Magallanes, supra.
[67]
People vs. Cosare 95 Phil 657, 660 [1954]
[68]
People vs. Mendoza, 175 SCRA 743.
[69]
3 Phil. 223, 226 [1904] See also Matilde v. Jobson, 68 SCRA 456. [December 29, 1975]; People v. Labado, 98
SCRA 730, 747 [July 24, 1980] cited in Bernas, The Constitution of the Philippines A Commentary, Vol. 1 1987
Edition, p. 386.
[70]
Francisco The Revised Rules of Court Criminal Procedure, p. 77, cited in Balitaan vs. Court of First Instance of
Batangas, 115 SCRA 739 [1982].
[71]
The eleven (11) amended informations were couched in uniformly except for the names of the victims.
[72]
249 SCRA 212, 222-223 [1995]
[73]
Section 20 B.P. Blg. 129 provides "Regional Trial Courts shall exercise exclusive original jurisdiction in all
criminal cases not within the exclusive jurisdiction of any court, tribunal, except those now falling under the
exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance
of by the latter." See also People vs. Magallanes, 249 SCRA 223 [1995]

Republic of the Philippines

Congress of the Philippines
Metro Manila

Eighth Congress

Republic Act No. 6770 November 17, 1989

AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE

OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress

assembled::

Section 1. Title. — This Act shall be known as "The Ombudsman Act of 1989".

Section 2. Declaration of Policy. — The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption.

Public office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, efficiency, act with patriotism and
justice and lead modest lives.

Section 3. Office of the Ombudsman. — The Office of the Ombudsman shall include the Office of
the Overall Deputy, the Office of the Deputy for Luzon, the Office of the Deputy for the Visayas, the
Office of the Deputy for Mindanao, the Office of the Deputy for the Armed Forces, and the Office of
the Special Prosecutor. The President may appoint other Deputies as the necessity for it may arise,
as recommended by the Ombudsman.

Section 4. Appointment. — The Ombudsman and his Deputies, including the Special Prosecutor,
shall be appointed by the President from a list of at least twenty-one (21) nominees prepared by the
Judicial and Bar Council, and from a list of three (3) nominees for each vacancy thereafter, which
shall be filled within three (3) months after it occurs, each of which list shall be published in a
newspaper of general circulation.

In the organization of the Office of the Ombudsman for filling up of positions therein, regional,
cultural or ethnic considerations shall be taken into account to the end that the Office shall be as
much as possible representative of the regional, ethnic and cultural make-up of the Filipino nation.

Section 5. Qualifications. — The Ombudsman and his Deputies, including the Special Prosecutor,
shall be natural-born citizens of the Philippines, at least forty (40) years old, of recognized probity
and independence, members of the Philippine Bar, and must not have been candidates for any
elective national or local office in the immediately preceding election whether regular or special. The
Ombudsman must have, for ten (10) years or more, been a judge or engaged in the practice of law
in the Philippines.
Section 6. Rank and Salary. — The Ombudsman and his Deputies shall have the same ranks,
salaries and privileges as the Chairman and members, respectively, of a Constitutional Commission.
Their salaries shall not be decreased during their term of office.

The members of the prosecution, investigation and legal staff of the Office of the Ombudsman shall
receive salaries which shall not be less than those given to comparable positions in any office in the
Government.

Section 7. Term of Office. — The Ombudsman and his Deputies, including the Special Prosecutor,
shall serve for a term of seven (7) years without reappointment.

Section 8. Removal; Filling of Vacancy. —

(1) In accordance with the provisions of Article XI of the Constitution, the Ombudsman may
be removed from office on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public
trust.

(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any
of the grounds provided for the removal of the Ombudsman, and after due process.

(3) In case of vacancy in the Office of the Ombudsman due to death, resignation, removal or
permanent disability of the incumbent Ombudsman, the Overall Deputy shall serve as Acting
Ombudsman in a concurrent capacity until a new Ombudsman shall have been appointed for
a full term.n case the Overall Deputy cannot assume the role of Acting Ombudsman, the
President may designate any of the Deputies, or the Special Prosecutor, as Acting
Ombudsman.

(4) In case of temporary absence or disability of the Ombudsman, the Overall Deputy shall
perform the duties of the Ombudsman until the Ombudsman returns or is able to perform his
duties.

Section 9. Prohibitions and Disqualifications. — The Ombudsman, his Deputies and the Special
Prosecutor shall not, during their tenure, hold any other office or employment. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct
of their office. They shall not be qualified to run for any office in the election immediately following
their cessation from office. They shall not be allowed to appear or practice before the Ombudsman
for two (2) years following their cessation from office.

No spouse or relative by consanguinity or affinity within the fourth civil degree and no law, business
or professional partner or associate of the Ombudsman, his Deputies or Special Prosecutor within
one (1) year preceding the appointment may appear as counsel or agent on any matter pending
before the Office of the Ombudsman or transact business directly or indirectly therewith.

This disqualification shall apply during the tenure of the official concerned. This disqualification
likewise extends to the law, business or professional firm for the same period.
Section 10. Disclosure of Relationship. — It shall be the duty of the Ombudsman, his Deputies,
including the Special Prosecutor to make under oath, to the best of their knowledge and/or
information, a public disclosure of the identities of, and their relationship with the persons referred to
in the preceding section.

The disclosure shall be filed with the Office of the President and the Office of the Ombudsman
before the appointee assumes office and every year thereafter. The disclosures made pursuant to
this section shall form part of the public records and shall be available to any person or entity upon
request.

Section 11. Structural Organization. — The authority and responsibility for the exercise of the
mandate of the Office of the Ombudsman and for the discharge of its powers and functions shall be
vested in the Ombudsman, who shall have supervision and control of the said office.

(1) The Office of the Ombudsman may organize such directorates for administration and
allied services as may be necessary for the effective discharge of its functions. Those
appointed as directors or heads shall have the rank and salary of line bureau directors.

(2) The Office of the Overall Deputy shall oversee and administer the operations of the
different offices under the Office of Ombudsman.t shall likewise perform such other functions
and duties assigned to it by the Ombudsman.

(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his
prosecution staff. The Office of the Special Prosecutor shall be an organic component of the
Office of the Ombudsman and shall be under the supervision and control of the
Ombudsman.

(4) The Office of the Special Prosecutor shall, under the supervision and control and upon
the authority of the Ombudsman, have the following powers:

(a) To conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan;

(b) To enter into plea bargaining agreements; and

(c) To perform such other duties assigned to it by the Ombudsman.

The Special Prosecutor shall have the rank and salary of a Deputy Ombudsman.

(5) The position structure and staffing pattern of the Office of the Ombudsman, including the
Office of the Special Prosecutor, shall be approved and prescribed by the Ombudsman. The
Ombudsman shall appoint all officers and employees of the Office of the Ombudsman,
including those of the Office of the Special Prosecutor, in accordance with the Civil Service
Law, rules and regulations.

Section 12. Official Stations. — The Ombudsman, the Overall Deputy, the Deputy for Luzon, and
the Deputy for the Armed Forces shall hold office in Metropolitan Manila; the Deputy for the Visayas,
in Cebu City; and the Deputy for Mindanao, in Davao City. The Ombudsman may transfer their
stations within their respective geographical regions, as public interest may require.
Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act
promptly on complaints filed in any form or manner against officers or employees of the
Government, or of any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations, and 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 people.

Section 14. Restrictions. — No writ of injunction shall be issued by any court to delay an
investigation being conducted by the Ombudsman under this Act, unless there is a prima facie
evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the
Ombudsman.

No court shall hear any appeal or application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law.

Section 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.t 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;

(2) Direct, upon complaint or at its own instance, any officer or employee of the Government,
or of any subdivision, agency or instrumentality thereof, as well as any government-owned or
controlled corporations 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 officer or
employee at fault or who neglect to perform an act or discharge a duty required by law, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this
Act: provided, that the refusal by any officer without just cause to comply with an order of the
Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or
employee who is at fault or who neglects to perform an act or discharge a duty required by
law shall be a ground for disciplinary action against said officer;

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it
may provide in its rules of procedure, 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 on 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 of the matters mentioned in paragraphs (1),
(2), (3) and (4) hereof, when circumstances so warrant and with due prudence: provided, that
the Ombudsman under its rules and regulations may determine what cases may not be
 made public: provided, further, that any publicity issued by the Ombudsman shall be
balanced, fair and true;

(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) 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
procedure and with the same penalties provided therein;

(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as
shall ensure the effective exercise or performance of the powers, functions, and duties
herein or hereinafter provided;

(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained
wealth amassed after February 25, 1986 and the prosecution of the parties involved therein.

The Ombudsman shall give priority to complaints filed against high ranking government officials
and/or those occupying supervisory positions, complaints involving grave offenses as well as
complaints involving large sums of money and/or properties.

Section 16. Applicability. — The provisions of this Act shall apply to 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.

Section 17. Immunities. — In all hearings, inquiries, and proceedings of the Ombudsman, including
preliminary investigations of offenses, nor person subpoenaed to testify as a witness shall be
excused from attending and testifying or from producing books, papers, correspondence,
memoranda and/or other records on the ground that the testimony or evidence, documentary or
otherwise, required of him, may tend to incriminate him or subject him to prosecution: provided, that
no person shall be prosecuted criminally for or on account of any matter concerning which he is
compelled, after having claimed the privilege against self-incrimination, to testify and produce
evidence, documentary or otherwise.

Under such terms and conditions as it may determine, taking into account the pertinent provisions of
the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person
whose testimony or whose possession and production of documents or other evidence may be
necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the
Ombudsman or under its authority, in the performance or in the furtherance of its constitutional
functions and statutory objectives. The immunity granted under this and the immediately preceding
paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor
shall he be exempt from demotion or removal from office.

Any refusal to appear or testify pursuant to the foregoing provisions shall be subject to punishment
for contempt and removal of the immunity from criminal prosecution.

Section 18. Rules of Procedure. —

 (1) The Office of the Ombudsman shall promulgate its rules of procedure for the effective
exercise or performance of its powers, functions, and duties.

(2) The rules of procedure shall include a provision whereby the Rules of Court are made
suppletory.

(3) The rules shall take effect after fifteen (15) days following the completion of their
publication in the Official Gazette or in three (3) newspapers of general circulation in the
Philippines, one of which is printed in the national language.

Section 19. Administrative Complaints. — The Ombudsman shall act on all complaints relating,
but not limited to acts or omissions which:

(1) Are contrary to law or regulation;

(2) Are unreasonable, unfair, oppressive or discriminatory;

(3) Are inconsistent with the general course of an agency's functions, though in accordance
with law;

(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;

(5) Are in the exercise of discretionary powers but for an improper purpose; or

(6) Are otherwise irregular, immoral or devoid of justification.

Section 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, vexatious or made in bad faith;

(4) The complainant has no sufficient personal interest in the subject matter of the grievance;
or

(5) The complaint was filed after one (1) year from the occurrence of the act or omission
complained of.

Section 21. Official 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.
Section 22. Investigatory Power. — The Office of the Ombudsman shall have the power to
investigate any serious misconduct in office allegedly committed by officials removable by
impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.

In all cases of conspiracy between an officer or employee of the government and a private person,
the Ombudsman and his Deputies shall have jurisdiction to include such private person in the
investigation and proceed against such private person as the evidence may warrant. The officer or
employee and the private person shall be tried jointly and shall be subject to the same penalties and
liabilities.

Section 23. Formal Investigation. —

(1) Administrative investigations conducted by the Office of the Ombudsman shall be in

accordance with its rules of procedure and consistent with due process.

(2) At its option, the Office of the Ombudsman may refer certain complaints to the proper
disciplinary authority for the institution of appropriate administrative proceedings against
erring public officers or employees, which shall be determined within the period prescribed in
the civil service law. Any delay without just cause in acting on any referral made by the Office
of the Ombudsman shall be a ground for administrative action against the officers or
employees to whom such referrals are addressed and shall constitute a graft offense
punishable by a fine of not exceeding Five thousand pesos (P5,000.00).

(3) In any investigation under this Act the Ombudsman may: (a) enter and inspect the
premises of any office, agency, commission or tribunal; (b) examine and have access to any
book, record, file, document or paper; and (c) hold private hearings with both the complaining
individual and the official concerned.

Section 24. Preventives Suspension. — The Ombudsman or his Deputy may preventively
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 (6) 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.

Section 25. Penalties. —

(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules
provided therein shall be applied.

(2) In other administrative proceedings, the penalty ranging from suspension without pay for
one (1) year to dismissal with forfeiture of benefits or a fine ranging from Five thousand
pesos (P5,000.00) to twice the amount malversed, illegally taken or lost, or both at the
discretion of the Ombudsman, taking into consideration circumstances that mitigate or
aggravate the liability of the officer or employee found guilty of the complaint or charges.
Section 26. Inquiries. —

(1) The Office of the Ombudsman shall inquire into acts or omissions of a 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, oppressive, 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) inefficient performed or otherwise objectionable.

(2) The Officer of the Ombudsman shall receive complaints from any source in whatever
form concerning an official act or omission.t shall act on the complaint immediately and if it
finds the same entirely baseless, it shall dismiss the same and inform the complainant of
such dismissal citing the reasons therefor.f 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 (72) hours from
receipt thereof.f 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 complainant, the
Office of the Ombudsman shall take steps or measures and issue such orders directing the
officer, employee, office or agency concerned to:

(a) expedite the performance of duty;

(b) cease or desist from the performance of a prejudicial act;

(c) correct the omission;

(d) explain fully the administrative act in question; or

(e) take any other 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 addressed.

Section 27. Effectivity and Finality of Decisions. — (1) All provisionary orders of the Office of the
Ombudsman are immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must
be filed within five (5) days after receipt of written notice and shall be entertained only on any of the
following grounds:

(1) New evidence has been discovered which materially affects the order, directive or
decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of the
movant. The motion for reconsideration shall be resolved within three (3) days from filing:
provided, that only one motion for reconsideration shall be entertained.

Findings of fact by the Officer of the Ombudsman when supported by substantial evidence are
conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand,
suspension of not more than one (1) month's salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives, or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10)
days from receipt of the written notice of the order, directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the Rules of Court.

The above rules may be amended or modified by the Office of the Ombudsman as the interest of
justice may require.

Section 28. Investigation in Municipalities, Cities and Provinces. — The Office of the
Ombudsman may establish offices in municipalities, cities and provinces outside Metropolitan
Manila, under the immediate supervision of the Deputies for Luzon, Visayas and Mindanao, where
necessary as determined by the Ombudsman. The investigation of complaints may be assigned to
the regional or sectoral deputy concerned or to a special investigator who shall proceed in
accordance with the rules or special instructions or directives of the Office of the Ombudsman.
Pending investigation the deputy or investigator may issue orders and provisional remedies which
are immediately executory subject to review by the Ombudsman. Within three (3) days after
concluding the investigation, the deputy or investigator shall transmit, together with the entire
records of the case, his report and conclusions to the Office of the Ombudsman. Within five (5) days
after receipt of said report, the Ombudsman shall render the appropriate order, directive or decision.

Section 29. Change of Unjust Laws. — If the Ombudsman believes that a law or regulation is
unfair or unjust, he shall recommend to the President and to Congress the necessary changes
therein or the repeal thereof.

Section 30. Transmittal/Publication of Decision. — In every case where the Ombudsman has
reached a decision, conclusion or recommendation adverse to a public official or agency, he shall
transmit his decision, conclusion, recommendation or suggestion to the head of the department,
agency or instrumentality, or of the province, city or municipality concerned for such immediate
action as may be necessary. When transmitting his adverse decision, conclusion or
recommendation, he shall, unless excused by the agency or official affected, include the substance
of any statement the public agency or official may have made to him by way of explaining past
difficulties with or present rejection of the Ombudsman's proposals.

Section 31. Designation of Investigators and Prosecutors. — The Ombudsman may utilize the
personnel of his office and/or designate or 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 herein provided shall be
under his supervision and control.

The Ombudsman and his investigators and prosecutors, whether regular members of his staff or
designated by him as herein provided, shall have authority to administer oaths, to issue subpoena
and subpoena duces tecum, to summon and compel witnesses to appear and testify under oath
before them and/or bring books, documents and other things under their control, and to secure the
attendance or presence of any absent or recalcitrant witness through application before the
Sandiganbayan or before any inferior or superior court having jurisdiction of the place where the
witness or evidence is found.

Section 32. Rights and Duties of Witness. —

(1) A person required by the Ombudsman to provide the information shall be paid the same
fees and travel allowances as are extended to witnesses whose attendance has been
required in the trial courts. Upon request of the witness, the Ombudsman shall also furnish
him such security for his person and his family as may be warranted by the circumstances.
For this purpose, the Ombudsman may, at its expense, call upon any police or constabulary
unit to provide the said security.

(2) A person who, with or without service or compulsory process, provides oral or
documentary information requested by the Ombudsman shall be accorded the same
privileges and immunities as are extended to witnesses in the courts, and shall likewise be
entitled to the assistance of counsel while being questioned.

(3) If a person refuses to respond to the Ombudsman's or his Deputy's subpoena, or refuses
to be examined, or engages in obstructive conduct, the Ombudsman or his Deputy shall
issue an order directing the person to appear before him to show cause why he should not
be punished for contempt. The contempt proceedings shall be conducted pursuant to the
provisions of the Rules of Court.

Section 33. Duty to Render Assistance to the Office of the Ombudsman. — Any officer or
employee of any department, bureau or office, subdivision, agency or instrumentality of the
Government, including government-owned or controlled corporations and local governments, when
required by the Ombudsman, his Deputy or the Special Prosecutor shall render assistance to the
Office of the Ombudsman.

Section 34. Annual Report. — The Office of the Ombudsman shall render an annual report of its
activities and performance to the President and to Congress to be submitted within thirty (30) days
from the start of the regular session of Congress.

Section 35. Malicious Prosecution. — Any person who, actuated by malice or gross bad faith, files
a completely unwarranted or false complaint against any government official or employee shall be
subject to a penalty of one (1) month and one (1) day to six (6) months imprisonment and a fine not
exceeding Five thousand pesos (P5,000.00).

Section 36. Penalties for Obstruction. — Any person who willfully obstructs or hinders the proper
exercise of the functions of the Office of the Ombudsman or who willfully misleads or attempts to
mislead the Ombudsman, his Deputies and the Special Prosecutor in replying to their inquiries shall
be punished by a fine of not exceeding Five thousand pesos (P5,000.00).
Section 37. Franking Privilege. — All official mail matters and telegrams of the Ombudsman
addressed for delivery within the Philippines shall be received, transmitted, and delivered free of
charge: provided, that such mail matters when addressed to private persons or nongovernment
offices shall not exceed one hundred and twenty (120) grams. All mail matters and telegrams sent
through government telegraph facilities containing complaints to the Office of the Ombudsman shall
be transmitted free of charge, provided that the telegram shall contain not more than one hundred
fifty (150) words.

Section 38. Fiscal Autonomy. — The Office of the Ombudsman shall enjoy fiscal autonomy.
Appropriations for the Office of the Ombudsman may not be reduced below the amount appropriated
for the previous years and, after approval, shall be automatically and regularly released.

Section 39. Appropriations. — The appropriation for the Office of the Special Prosecutor in the
current General Appropriations Act is hereby transferred to the Office of the Ombudsman.
Thereafter, such sums as may be necessary shall be included in the annual General Appropriations
Act.

Section 40. Separability Clause. — If any provision of this Act is held unconstitutional, other
provisions not affected thereby shall remain valid and binding.

Section 41. Repealing Clause. — All laws, presidential decrees, letters of instructions, executive
orders, rules and regulations insofar as they are inconsistent with this Act, are hereby repealed or
amended as the case may be.

Section 42. Effectivity. — This Act shall take effect after fifteen (15) days following its publication in
the Official Gazette or in three (3) newspapers of general circulation in the Philippines.

Approved: November 17, 1989.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 196231 January 28, 2014

EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED
BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, AND ATTY. CARLITO D. CATAYONG, Respondents.
x-----------------------x

G.R. No. 196232

WENDELL BARRERAS-SULIT Petitioner,

vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF
THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D.
MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF
MALACANANG LEGAL AFFAIRS, Respondents.

DECISION

BRION, J.:

We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012
Decision1which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special
Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2

In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and
ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him
the penalty of dismissal.

Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary
proceedings against her, solely questioned the jurisdiction of the OP to subject her to disciplinary
proceedings. The Court affirmed the continuation of the proceedings against her after upholding the
constitutionality of Section 8(2) of RA No. 6770.

The fallo of our assailed Decision reads:

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-
J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED
with payment of backwages corresponding to the period of suspension effective immediately, even
as the Office of the Ombudsman is directed to proceed with the investigation in connection with the
above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case
No. ll-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions
tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with
Section 8(2) of the Ombudsman Act of 1989.3

In view of the Court’s ruling, the OP filed the present motion for reconsideration through the Office of
the Solicitor General (OSG).

We briefly narrate the facts that preceded the filing of the petitions and the present motion for
reconsideration.

I. ANTECEDENTS

A. Gonzales’ petition (G.R. No. 196231)

a. Factual antecedents

On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal
Affairs Service (PNP-IAS) and with the Manila City Prosecutor’s Office against Manila Police District
Senior Inspector Rolando Mendoza and four others (Mendoza, et al.) for robbery, grave threat,
robbery extortion and physical injury.4

On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge
for grave misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO against
Mendoza, et al. based on the same allegations made by Kalaw before the PNP-IAS.5

On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers
(MOLEO), directed the NAPOLCOM to turn over the records of Mendoza’s case to his office. The
Office of the Regional Director of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al.
filed their position papers with Gonzales, in compliance with his Order.7

Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the Office of the City
Prosecutor of Manila City dismissed Kalaw’s complaint against Mendoza, et al. for his failure to
substantiate his allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the
dismissal without prejudice of the administrative case against Mendoza, et al. for Kalaw’s failure to
prosecute.9

On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s case, Gonzales
forwarded the entire records to the Office of then Ombudsman Merceditas Gutierrez for her
review.10In his draft decision, Gonzales found Mendoza, et al. guilty of grave misconduct and
imposed on them the penalty of dismissal from the service.11

Mendoza, et al. received a copy of the Ombudsman’s decision that approved Gonzales’
recommendation on October 30, 2009. Mendoza, et al. filed a motion for reconsideration12 on
November 5, 2009, followed by a Supplement to the Motion for Reconsideration.13

On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.’s case records to
the Criminal Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009,
the case was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for
review and recommendation.14

GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for
appropriate action on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales’
office on April 27, 2010. Gonzales reviewed the draft and endorsed the order, together with the case
records, on May 6, 2010 for the final approval by the Ombudsman.16

On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.’s case, Mendoza
hijacked a tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board
as hostages. While the government exerted earnest attempts to peacefully resolve the hostage-
taking, it ended tragically, resulting in the deaths of Mendoza and several others on board the
hijacked bus.

In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the
Department of Interior and Local Government to conduct a joint thorough investigation of the
incident. The two departments issued Joint Department Order No. 01-2010, creating an Incident
Investigation and Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable
for their "gross negligence and grave misconduct in handling the case against Mendoza."17 The IIRC
stated that the Ombudsman and Gonzales’ failure to promptly resolve Mendoza’s motion for
reconsideration, "without justification and despite repeated pleas" xxx "precipitated the desperate
resort to hostage-taking."18 The IIRC recommended the referral of its findings to the OP for further
determination of possible administrative offenses and for the initiation of the proper administrative
proceedings.19

Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect
of Duty and/or Inefficiency in the Performance of Official Duty and for Misconduct in Office.20

b. The OP ruling

On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the
service.21According to the OP, "the inordinate and unjustified delay in the resolution of [Mendoza’s]
Motion for Reconsideration [‘that spanned for nine (9) long months’] xxx amounted to gross neglect
of duty" and "constituted a flagrant disregard of the Office of the Ombudsman’s own Rules of
Procedure."22

c. The Petition

Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a
Deputy Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises
administrative disciplinary jurisdiction over the Deputy Ombudsman.

On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April
27, 2010. On May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the
Office of the Ombudsman for final approval. Since the draft order on Mendoza’s motion for
reconsideration had to undergo different levels of preparation, review and approval, the period it took
to resolve the motion could not be unjustified, since he himself acted on the draft order only within
nine (9) calendars days from his receipt of the order.23

B. Sulit’s petition (G.R. No. 196232)

In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several
others, before the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed
an Urgent Petition for Bail which the prosecution opposed. The Sandiganbayan denied Garcia's
urgent petition for bail on January 7, 2010, in view of the strength of the prosecution’s evidence
against Garcia.

On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff,
entered into a plea bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i)
withdraw his plea of not guilty to the charge of plunder and enter a plea of guilty to the lesser offense
of indirect bribery; and (ii) withdraw his plea of not guilty to the charge of money laundering and
enter a guilty plea to the lesser offense of facilitating money laundering. In exchange, he would
convey to the government his ownership, rights and other interests over the real and personal
properties enumerated in the Agreement and the bank deposits alleged in the information.25

The Sandiganbayan approved the Agreement on May 4, 201026 based on the parties’ submitted Joint
Motion for Approval.27
The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on
Justice of the House of Representatives to conduct an investigation. After public hearings, the
Committee found that Sulit, her deputies and assistants committed culpable violations of the
Constitution and betrayal of public trust – grounds for removal under Section 8(2) of RA No.
6770.28The Committee recommended to the President the dismissal from the service of Sulit and the
filing of appropriate charges against her deputies and assistants before the appropriate government
office.

Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit.29 On March 24,
2011, Sulit filed her Written Explanation, questioning the OP’s jurisdiction.30 The question of
jurisdiction notwithstanding, the OP set the case for preliminary investigation on April 15, 2011,
prompting Sulit to seek relief from this Court.

II. COURT’S RULING

On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and
to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Court’s vote describes below, this conclusion does not
apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman
which does not include the Office of the Special Prosecutor under the Constitution. The prevailing
ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario
Victor Leonen).

A. Preliminary considerations:

a. Absence of motion for reconsideration on the part of the petitioners

At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the
Court’s September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration
of our ruling reinstating Gonzales.

This omission, however, poses no obstacle for the Court’s review of its ruling on the whole case
since a serious constitutional question has been raised and is one of the underlying bases for the
validity or invalidity of the presidential action. If the President does not have any constitutional
authority to discipline a Deputy Ombudsman and/or a Special Prosecutor in the first place, then any
ruling on the legal correctness of the OP’s decision on the merits will be an empty one.

In other words, since the validity of the OP’s decision on the merits of the dismissal is inextricably
anchored on the final and correct ruling on the constitutional issue, the whole case – including the
constitutional issue – remains alive for the Court’s consideration on motion for reconsideration.

b. The justiciability of the constitutional

issue raised in the petitions

We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the
administrative disciplinary jurisdiction of the President (concurrently with that of the Ombudsman) is
a justiciable – not a political – question. A justiciable question is one which is inherently susceptible
of being decided on grounds recognized by law,31 as where the court finds that there are
constitutionally-imposed limits on the exercise of the powers conferred on a political branch of the
government.32
In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant
concurrent disciplinary authority to the President. Our inquiry is limited to whether such statutory
grant violates the Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core
constitutional principle of the independence of the Office of the Ombudsman as expressed in Section
5, Art. XI of the Constitution.

To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA
No. 6770 grants where the Constitution confers none. When exercised authority is drawn from a
vacuum, more so when the authority runs counter to a core constitutional principle and constitutional
intents, the Court is duty-bound to intervene under the powers and duties granted and imposed on it
by Article VIII of the Constitution.

B. The Deputy Ombudsman: Constitutional Issue

a. The Philippine Ombudsman

Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to
serve as the people's medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully realize their
objective for lack of the political independence necessary for the effective performance of their
function as government critic.33

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce its mandate.
Pursuant to the 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD)
No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to
be known as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any government-owned or controlled
corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously
vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the
exclusive authority to conduct preliminary investigation of all cases cognizable by the
Sandiganbayan, file the corresponding information, and control the prosecution of these cases.34

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by
constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II35 and
the standard of accountability in public service under Section 1, Article XI of the 1987 Constitution.
These provisions read:

Section 27. The State shall maintain honesty and integrity in the public service and take positive and
effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act
with patriotism and justice, and lead modest lives.

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to
be the "protector of the people" against the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau.36 This constitutional vision of a Philippine
Ombudsman practically intends to make the Ombudsman an authority to directly check and guard
against the ills, abuses and excesses of the bureaucracy. Pursuant to Section 13(8), Article XI of the
1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the
Constitution. Section 21 of RA No. 6770 provides:

Section 21. Official 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. [emphasis ours,
italics supplied]

As the Ombudsman is expected to be an "activist watchman,"37 the Court has upheld its actions,
although not squarely falling under the broad powers granted it by the Constitution and by RA No.
6770, if these actions are reasonably in line with its official function and consistent with the law and
the Constitution.38

The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit to
insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan
politics and from fear of external reprisal by making it an "independent" office. Section 5,

Article XI of the Constitution expressed this intent, as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. [emphasis ours]

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful
government constitutional agency that is considered "a notch above other grievance-handling
investigative bodies."39 It has powers, both constitutional and statutory, that are commensurate with
its daunting task of enforcing accountability of public officers.40

b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence

Under the Constitution, several constitutional bodies have been expressly labeled as
"independent."41The extent of the independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations in mind: first, the functions
performed or the powers involved in a given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of checks and balances.

Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional
Commissions shares certain characteristics – they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In
general terms, the framers of the Constitution intended that these "independent" bodies be insulated
from political pressure to the extent that the absence of "independence" would result in the
impairment of their core functions.

In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the
interference that the President may bring and maintained that the independence and the flexibility of
the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to our
legal system.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based.

The constitutional deliberations explain the Constitutional Commissions’ need for independence. In
the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service Commission, instead of one created by law, on
the premise that the effectivity of this body is dependent on its freedom from the tentacles of
politics.43 In a similar manner, the deliberations of the 1987 Constitution on the Commission on Audit
highlighted the developments in the past Constitutions geared towards insulating the Commission on
Audit from political pressure.44

Notably, the Constitution also created an "independent" Commission on Human Rights, although it
enjoys a lesser degree of independence since it is not granted fiscal autonomy in the manner fiscal
autonomy is granted to the constitutional commissions. The lack of fiscal autonomy notwithstanding,
the framers of the 1987 Constitution clearly expressed their desire to keep the Commission
independent from the executive branch and other political leaders:

MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him
our concept, he can advise us on how to reconcile his position with ours. The position of the
committee is that we need a body that would be able to work and cooperate with the executive
because the Commissioner is right. Many of the services needed by this commission would need not
only the cooperation of the executive branch of the government but also of the judicial branch of
government. This is going to be a permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance when the executive may not be very
cooperative. However, the question in our mind is: Can it still function during that time? Hence, we
are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize
the need for coordination and cooperation. We also would like to build in some safeguards that it will
not be rendered useless by an uncooperative executive.

xxxx

MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go
to a country, the most credible organizations are independent human rights bodies. Very often these
are private organizations, many of which are prosecuted, such as those we find in many countries in
Latin America. In fact, what we are proposing is an independent body on human rights, which would
provide governments with credibility precisely because it is independent of the present
administration. Whatever it says on the human rights situation will be credible because it is not
subject to pressure or control from the present political leadership.

Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in
opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if
we have a Commission on Human Rights that would investigate and make sure that the rights of
each one is protected, then we shall have a body that could stand up to any power, to defend the
rights of individuals against arrest, unfair trial, and so on.45

These deliberative considerations abundantly show that the independent constitutional commissions
have been consistently intended by the framers to be independent from executive control or
supervision or any form of political influence. At least insofar as these bodies are concerned,
jurisprudence is not scarce on how the "independence" granted to these bodies prevents
presidential interference.

In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been
characterized under the Constitution as "independent," are not under the control of the President,
even if they discharge functions that are executive in nature. The Court declared as unconstitutional
the President’s act of temporarily appointing the respondent in that case as Acting Chairman of the
Comelec "however well-meaning"47 it might have been.

In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners
of the independent Commission on Human Rights could not be placed under the discretionary power
of the President:

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent – as the Commission on Human Rights – and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.

Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of the
Commission on Elections by Congress a "trampling" of the constitutional mandate of independence
of this body. Obviously, the mere review of rules places considerably less pressure on a
constitutional body than the Executive’s power to discipline and remove key officials of the Office of
the Ombudsman, yet the Court struck down the law as unconstitutional.

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but
is similar in degree and kind – to the independence similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill the political interstices of a republican
democracy that are crucial to its existence and proper functioning.50

c. Section 8(2) of RA No. 6770

vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional

Our discussions, particularly the Court’s expressed caution against presidential interference with the
constitutional commissions, on one hand, and those expressed by the framers of the 1987
Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak
for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the
independence of the Office of the Ombudsman.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by
the President, whose own alter egos and officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the
Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate,
includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA
No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the
Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks
and balances that the creation of an Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be
expected to place her complete trust in her subordinate officials who are not as independent as she
is, if only because they are subject to pressures and controls external to her Office. This need for
complete trust is true in an ideal setting and truer still in a young democracy like the Philippines
where graft and corruption is still a major problem for the government. For these reasons, Section
8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be
declared void.

The deliberations of the Constitutional Commission on the independence of the Ombudsman fully
support this position. Commissioner Florenz Regalado of the Constitutional Commission expressed
his apprehension that any form of presidential control over the Office of the Ombudsman would
diminish its independence.51 The following exchanges between Commissioners Blas Ople and
Christian Monsod further reveal the constitutional intent to keep the Office of the Ombudsman
independent from the President:

MR. OPLE. xxx

May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment
xxx, by way of designating the office of the Ombudsman as a constitutional arm for good
government, efficiency of the public service and the integrity of the President of the Philippines,
instead of creating another agency in a kind of administrative limbo which would be accountable to
no one on the pretext that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee — and I believe it still is — that it may not
contribute to the effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function of a special fiscal. The whole
purpose of our proposal is precisely to separate those functions and to produce a vehicle that will
give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the
proposition.52

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any
power over them, would result in an absurd situation wherein the Office of the Ombudsman is given
the duty to adjudicate on the integrity and competence of the very persons who can remove or
suspend its members. Equally relevant is the impression that would be given to the public if the rule
were otherwise. A complainant with a grievance against a high-ranking official of the Executive, who
appears to enjoy the President’s favor, would be discouraged from approaching the Ombudsman
with his complaint; the complainant’s impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against
corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of
an external check against the Deputy Ombudsman would result in mutual protection between the
Ombudsman and her Deputies.

While the preceding discussion already suffices to address this concern, it should be added that this
concern stands on shaky grounds since it ignores the existing checks and balances already in place.
On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is
subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to
cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari.
The same attempt can likewise subject her to impeachment.

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-
political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes,
whose judges and employees are not subject to the disciplinary authority of the Ombudsman and
whose neutrality would be less questionable. The Members of the Court themselves may be
subjected to the impeachment power of Congress.

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible.
At the same time, the Court remains consistent with its established rulings - that the independence
granted to the Constitutional Commissions bars any undue interference from either the Executive or
Congress – and is in full accord with constitutional intent.

e. Congress’ power determines the

manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority

Under Section 2, Article XI of the 1987 Constitution,53 Congress is empowered to determine the
modes of removal from office of all public officers and employees except the President, the Vice-
President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and
the Ombudsman, who are all impeachable officials.

The intent of the framers of the Constitution in providing that "[a]ll other public officers and
employees may be removed from office as provided by law, but not by impeachment" in the second
sentence of Section 2, Article XI is to prevent Congress from extending the more stringent rule of
"removal only by impeachment" to favored public officers.54 Understandably so, impeachment is the
most difficult and cumbersome mode of removing a public officer from office. It is, by its nature, a sui
generis politico-legal process55 that signals the need for a judicious and careful handling as shown by
the process required to initiate the proceeding;56 the one-year limitation or bar for its initiation;57 the
limited grounds for impeachment;58 the defined instrumentality given the power to try impeachment
cases;59 and the number of votes required for a finding of guilt.60 All these argue against the extension
of this removal mechanism beyond those mentioned in the Constitution.

On the practical side, our nation has witnessed the complications and problems an impeachment
proceeding entails, thus justifying its limited application only to the officials occupying the highest
echelons of responsibility in our government. To name a few, some of the negative practical effects
of impeachment are: it stalls legislative work; it is an expensive process in terms of the cost of
prosecution alone; and, more importantly, it is inherently divisive of the nation.61 Thus, in a cost-
benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to otherwise
legislate on the matter is far more advantageous to the country.

It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should
be read. Contrary to the implied view of the minority, in no way can this provision be regarded as
blanket authority for Congress to provide for any ground of removal it deems fit. While the manner
and cause of removal are left to congressional determination, this must still be consistent with
constitutional guarantees and principles, namely: the right to procedural and substantive due
process; the constitutional guarantee of security of tenure; the principle of separation of powers; and
the principle of checks and balances.62

In short, the authority granted by the Constitution to Congress to provide for the manner and cause
of removal of all other public officers and employees does not mean that Congress can ignore the
basic principles and precepts established by the Constitution.

In the same manner, the congressional determination of the identity of the disciplinary authority is
not a blanket authority for Congress to repose it on whomsoever Congress chooses without running
afoul of the independence enjoyed by the Office of the Ombudsman and without disrupting the
delicate check and balance mechanism under the Constitution. Properly viewed from this
perspective, the core constitutional principle of independence is observed and any possible
absurdity resulting from a contrary interpretation is avoided. In other words, while the Constitution
itself vested Congress with the power to determine the manner and cause of removal of all non-
impeachable officials, this power must be interpreted consistent with the core constitutional principle
of independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec63 is apt:

The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be "independent."

While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is
intended as a measure of protection for the Deputy Ombudsman and Special Prosecutor – since
these grounds are not intended to cover all kinds of official wrongdoing and plain errors of judgment
- this argument seriously overlooks the erosion of the independence of the Office of the Ombudsman
that it creates. The mere fact that a statutorily-created sword of Damocles hangs over the Deputy
Ombudsman’s head, by itself, opens up all the channels for external pressures and influence of
officialdom and partisan politics. The fear of external reprisal from the very office he is to check for
excesses and abuses defeats the very purpose of granting independence to the Office of the
Ombudsman.

That a judicial remedy is available (to set aside dismissals that do not conform to the high standard
required in determining whether a Deputy Ombudsman committed an impeachable offense) and that
the President’s power of removal is limited to specified grounds are dismally inadequate when
balanced with the constitutional principle of independence. The mere filing of an administrative case
against the Deputy Ombudsman and the Special Prosecutor before the OP can already result in
their suspension and can interrupt the performance of their functions, in violation of Section 12,
Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or
Special Prosecutor, if removable by the President, can be reduced to the very same ineffective
Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these
offices independent constitutional bodies.

At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its
decision finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting
betrayal of public trust is patently erroneous. The OP’s decision perfectly illustrates why the
requirement of impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered, even at
a minimum, a measure of protection of the independence of the Office of the Ombudsman.

C. The Deputy Ombudsman: The Dismissal Issue

a. The Office of the President’s

finding of gross negligence
has no legal and factual leg to
stand on

The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The
assailed Decision of the OP reads:

Upon consideration of the First Report, the evidence and allegations of respondent Deputy
Ombudsman himself, and other documentary evidence gathered, this Office finds that the inordinate
and unjustified delay in the resolution of Captain Mendoza’s Motion for Reconsideration timely filed
on 5 November 2009 xxx amounted to gross neglect of duty and/or inefficiency in the performance of
official duty.64

b. No gross neglect of duty or inefficiency

Let us again briefly recall the facts.

1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of

the Ombudsman,65 which was followed by a Supplement to the Motion for
Reconsideration;66

2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions
and make his recommendation for the appropriate action, received the records of the
case;

3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his

immediate superior, Dir. Cecilio;68

4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order;69

5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) –
Gonzales endorsed the draft order for the final approval of the Ombudsman.70

Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were
already pending before Ombudsman Gutierrez.

Gross negligence refers to negligence characterized by the want of even the slightest care, acting or
omitting to act in a situation where there is a duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences insofar as other persons may be
affected. In the case of public officials, there is gross negligence when a breach of duty is flagrant
and palpable.71

Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales guilty, the OP72 relied on Section 8, Rule III of
Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of
1990, as amended) in ruling that Gonzales should have acted on Mendoza’s Motion for
Reconsideration within five days:

Section 8. Motion for reconsideration or reinvestigation: Grounds – Whenever allowable, a motion for
reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of
the decision or order by the party on the basis of any of the following grounds:

a) New evidence had been discovered which materially affects the order, directive or
decision;

b) Grave errors of facts or laws or serious irregularities have been committed

prejudicial to the interest of the movant.

Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall
resolve the same within five (5) days from the date of submission for resolution. [emphasis and
underscore ours]

Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales
since he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing
Officer tasked with the initial resolution of the motion. In Section 6 of Administrative Order No. 7 on
the resolution of the case and submission of the proposed decision, the period for resolving the case
does not cover the period within which it should be reviewed:

Section 6. Rendition of decision. – Not later than thirty (30) days after the case is declared submitted
for resolution, the Hearing Officer shall submit a proposed decision containing his findings and
recommendation for the approval of the Ombudsman. Said proposed decision shall be reviewed by
the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned. With respect to low
ranking public officials, the Deputy Ombudsman concerned shall be the approving authority. Upon
approval, copies thereof shall be served upon the parties and the head of the office or agency of
which the respondent is an official or employee for his information and compliance with the
appropriate directive contained therein. [italics and emphases supplied]

Thus, the OP’s ruling that Gonzales had been grossly negligent for taking nine days, instead of five
days, to review a case was totally baseless.

c. No actionable failure to supervise subordinates

The OP’s claims that Gonzales could have supervised his subordinates to promptly act on
Mendoza’s motion and apprised the Tanodbayan of the urgency of resolving the same are similarly
groundless.

The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases
that involve the potential loss of employment of many other public employees. We cannot
conclusively state, as the OP appears to suggest, that Mendoza’s case should have been prioritized
over other similar cases.

The Court has already taken judicial notice of the steady stream of cases reaching the Office of the
Ombudsman.73 This consideration certainly militates against the OSG’s observation that there was "a
grossly inordinate and inexcusable delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of cases" before, among
others, quasi-judicial bodies,75 like the Office of the Ombudsman, is itself a relative concept.76 Thus,
the delay, if any, must be measured in this objective constitutional sense. Unfortunately, because of
the very statutory grounds relied upon by the OP in dismissing Gonzales, the political and, perhaps,
"practical" considerations got the better of what is legal and constitutional.

The facts do not show that Gonzales’ subordinates had in any way been grossly negligent in their
work. While GIPO Garcia reviewed the case and drafted the order for more than three months, it is
noteworthy that he had not drafted the initial decision and, therefore, had to review the case for the
first time.77 Even the Ombudsman herself could not be faulted for acting on a case within four
months, given the amount of cases that her office handles.

The point is that these are not inordinately long periods for the work involved: examination of the
records, research on the pertinent laws and jurisprudence, and exercise of legal judgment and
discretion. If this Court rules that these periods per se constitute gross neglect of duty, the
Ombudsman’s constitutional mandate to prosecute all the erring officials of this country would be
subjected to an unreasonable and overwhelming constraint. Similarly, if the Court rules that these
periods per se constitute gross neglect of duty, then we must be prepared to reconcile this with the
established concept of the right of speedy disposition of cases – something the Court may be hard
put to justify.

d. No undue interest

The OP also found Gonzales guilty of showing undue interest in Mendoza’s case by having the case
endorsed to the Office of the Ombudsman and by resolving it against Mendoza on the basis of the
unverified complaint-affidavit of the alleged victim, Kalaw.

The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it
were based merely on the request of the alleged victim’s father. The Constitution empowers the
Ombudsman and her Deputies to act promptly on complaints filed in any form or manner against any
public official or employee of the government.78 This provision is echoed by Section 13 of RA No.
6770,79 and by Section 3, Rule III of Administrative Order No. 7, series of 1990, as amended.80

Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the
unverified affidavit of Kalaw. Based on the prosecution officer’s recommendations, the finding of guilt
on the part of Mendoza, et al. was based on their admissions as well. Mendoza, et al. admitted that
they had arrested Kalaw based on two traffic violations and allowed him to stay the whole night until
the following morning in the police precinct. The next morning, Kalaw was allowed to leave the
precinct despite his failure to show a valid license and based merely on his promise to return with
the proper documents.81 These admissions led Gonzales and his staff to conclude that Mendoza, et
al. irregularly acted in apprehending Kalaw, since the proper procedure for the apprehension of
traffic violators would be to give them a ticket and to file a case, when appropriate.82

Lastly, we cannot deduce undue interest simply because Gonzales’ decision differs from the
decision of the PNP-IAS (which dismissed the complaint against Mendoza). To be sure, we cannot
tie the hands of any judicial or quasi-judicial body by ruling that it should always concur with the
decisions of other judicial or quasi-judicial bodies which may have also taken cognizance of the
case. To do so in the case of a Deputy Ombudsman would be repugnant to the independence that
our Constitution has specifically granted to this office and would nullify the very purpose for which it
was created.
e. Penalty of dismissal totally
incommensurate with established facts

Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by
the OP necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be
held liable for our own misdeeds; we can be made to account only for lapses in our responsibilities.
It is notable that of all the officers, it was Gonzales who took the least time — nine days — followed
by Cecilio, who took 21 days; Garcia — the writer of the draft — took less than four months, and the
Ombudsman, less than four months until the kidnapping incident rendered Mendoza’s motion moot.

In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does
not preclude the Ombudsman from looking into any other possible administrative liability of Gonzales
under existing Civil Service laws, rules and regulations.

D. The Special Prosecutor: The Constitutional Issue

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing
Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987 Constitution.
While the composition of the independent Office of the Ombudsman under the 1987 Constitution
does not textually include the Special Prosecutor, the weight of the foregoing discussions on the
unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the

Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as
expounded in jurisprudence.

Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman,
known as the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11,
1978, President Ferdinand Marcos enacted PD No. 1487.85

Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive
authority" to conduct preliminary investigation and to prosecute cases that are within the jurisdiction
of the Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of Justice the power of control
and supervision over the Special Prosecutor.88 Consistent with this grant of power, the law also
authorized the Secretary of Justice to appoint or detail to the Office of the CSP "any officer or
employee of Department of Justice or any Bureau or Office under the executive supervision thereof"
to assist the Office of the CSP.

In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away
from it by the Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the
Chief Special Prosecutor" under the Tanodbayan’s control,90 with the exclusive authority to conduct
preliminary investigation and prosecute all cases cognizable by the Sandiganbayan. Unlike the
earlier decree, the law also empowered the Tanodbayan to appoint Special Investigators and
subordinate personnel and/or to detail to the Office of the CSP any public officer or employees who
"shall be under the supervision and control of the Chief Special Prosecutor."91 In 1979, PD No. 1630
further amended the earlier decrees by transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.92

This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987
Constitution, an "independent Office of the Ombudsman" is created.93 The existing Tanodbayan is
made the Office of the Special Prosecutor, "who shall continue to function and exercise its powers
as now94 or hereafter may be provided by law."95
Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and
employees of the Office of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution
provides that the Ombudsman may exercise "such other powers or perform such functions or duties
as may be provided by law." Pursuant to this constitutional command, Congress enacted RA No.
6770 to provide for the functional and structural organization of the Office of the Ombudsman and
the extent of its disciplinary authority.

In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the
Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but the
Office of the Special Prosecutor as well. In terms of appointment, the law gave the President the
authority to appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list of
nominees prepared by the Judicial and Bar Council. In case of vacancy in these positions, the law
requires that the vacancy be filled within three (3) months from occurrence.97

The law also imposes on the Special Prosecutor the same qualifications it imposes on the
Ombudsman himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The requirement on disclosure102 is imposed
on the Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy in the
Office of the Ombudsman, the Overall Deputy cannot assume the role of Acting Ombudsman; the
President may designate any of the Deputies or the Special Prosecutor as Acting Ombudsman.103The
power of the Ombudsman and his or her deputies to require other government agencies to render
assistance to the Office of the Ombudsman is likewise enjoyed by the Special Prosecutor.104

Given this legislative history, the present overall legal structure of the Office of the Ombudsman,
both under the 1987 Constitution and RA No. 6770, militates against an interpretation that would
insulate the Deputy Ombudsman from the disciplinary authority of the OP and yet expose the
Special Prosecutor to the same ills that a grant of independence to the Office of the Ombudsman
was designed for.

Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the
Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by granting the Ombudsman control and
supervision over that office.105 This power of control and supervision includes vesting the Office of the
Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem
fit. Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate
1âwphi1

but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which
include investigation and prosecution of officials in the Executive Department.

Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal
cases within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-
ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and
removal powers of the President, whose own alter egos and officials in the Executive Department
are subject to the prosecutorial authority of the Special Prosecutor, would seriously place the
independence of the Office of the Ombudsman itself at risk.

Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of
the Office of the Ombudsman, the role it performs as an organic component of that Office militates
against a differential treatment between the Ombudsman’s Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the Ombudsman must be equally true, not only for
her Deputies but, also for other lesser officials of that Office who act directly as agents of the
Ombudsman herself in the performance of her duties.
In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom,
the Office of the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman
and is, in fact, separate and distinct from the latter. In debunking that argument, the Court said:

Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that
the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor
under the Office of the President. Xxx

In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to
be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise
its powers as now or hereafter may be provided by law, except those conferred on the Office of the
Ombudsman created under this Constitution." The underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then
that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0.
1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the
Ombudsman.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph
8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor under the Office of the Ombudsman.107

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at
par with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is
concerned, and must also enjoy the same grant of independence under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its
September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We
declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the
President over a Deputy Ombudsman, in violation of the independence of the Office of the
Ombudsman.

However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA
No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special
Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to
the independence the latter enjoys under the Constitution.

WHEREFORE, premises considered, the Court resolves to declare Section 8(2)

UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the power of the
Ombudsman to conduct an administrative investigation, if warranted, into the possible administrative
liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and
regulations.

SO ORDERED.

ARTURO D. BRION
Associate Justice
WE CONCUR:

I join J. Bernabe's opinion

MARIA LOURDES P. A. SERENO
Chief Justice

I join J. Bernabe's Dissenting Opinion

PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice

I join J. Bernabe's opinion

TERESITA J. LEONARDO-DE CASTRO
DIOSDADO M. PERALTA
Associate Justice
Associate Justice

I concur with the position of J. Bernabe

LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

I concur with J. Bernabe's position Pls. see concurring & Dissenting opinion
BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

See separate, concurring and dissenting opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1
Rollo (G.R. No. 196231), pp. 951-1000.
2
The Ombudsman Act of 1989.

3
Rollo (G.R. No. 196231), p. 998.

4
Docketed as I.S. No. 08E-09512; id. at 113-116.

5
Id. at 87.

6
Id. at 231.

7
Id. at 88.

8
Id. at 233-235.

9
Id. at 128.

10
Id. at 91.

11
Id. at 92-97.

12
Id. at 137-152.

13
Id. at 132-136.

14
Id. at 15.

15
Id. at 15, 244-248.

16
Id. at 16.

17
http://www.gov.ph/2010/09/17/first-report-of-the-iirc-on-the-rizal-park-hostage-taking-
incident/ (last accessed on February 2, 2014).

18
Ibid.

19
Ibid.

20
Rollo (G.R. No. 196231), p. 322.

21
Id. at 85.

22
Id. at 80.

23
Id. at 49-50.

24
Rollo (G.R. No. 196232), pp. 27, 36-42.

25
Id. at 37-41.
26
Id. at 98.

27
Id. at 34-35.

28
Id. at 27-30.

29
Id. at 364-365.

30
Id. at 9, 367-375.

31
Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 637 (2000).

32
Separate Opinion of Justice Puno in Integrated Bar of the Philippines v. Zamora; id. at 661.

Furthermore, their powers extended to no more than fact-finding and recommending. Uy v.

33

Sandiganbayan, 407 Phil. 154, 167 (2001).

34
Id. at 169-170.

Office of the Ombudsman v. Samaniego, G.R. No. 175573, September 11, 2008, 564
35

SCRA 567, 573.

Ledesma v. Court of Appeals, 503 Phil. 396, 408; and Office of the Ombudsman v.
36

Samaniego, id.

Office of the Ombudsman v. Lucero, G.R. No. 168718, 24 November 2006, 508 SCRA
37

106, 115.

38
Office of the Ombudsman v. Samaniego, supra note 35.

39
Department of Justice v. Liwag, G.R. No. 149311, February 11, 2005, 491 Phil. 270, 283.

40
It is not only given an "active role" in the enforcement of laws on anti-graft and corrupt
practices and related offenses (Uy v. Sandiganbayan, supra note 33), its recommendation to
a concerned public officer of taking an appropriate action against an erring subordinate is not
merely advisory but mandatory within the bounds of law (Ledesma v. Office of the
Ombudsman, Section 13(3), Article XI of the 1987 Constitution, Section 15(3) of RA No.
6770).

Referring to the Constitutional Commissions (Commission on Elections, Commission on

41

Audit, and the Civil Service Commission), the Commission on Human Rights, a central
monetary authority, and, to a certain extent, the National Economic Development Authority.

G.R. No. 103524 and A.M. No. 91-8-225-CA, April 15, 1992, 208 SCRA 133, 150;
42

emphasis and underscore ours.

43
Speech, Session of February 18, 1972, as cited in "The 1987 Constitution of the Republic
of the Philippines: A Commentary" by Joaquin Bernas, 2003 ed., p. 1009.

DELEGATE GUNIGUNDO xxx

 [b] because we believe that the Civil Service created by law has not been able to
eradicate the ills and evils envisioned by the framers of the 1935Constitution;
because we believe that the Civil Service created by law is beholden to the creators
of that law and is therefore not politics-free, not graft-free and not corruption-free;
because we believe that as long as the law is the reflection of the will of the ruling
class, the Civil Service that will be created and recreated by law will not serve the
interest of the people but only the personal interest of the few and the enhancement
of family power, advancement and prestige.

44
Record of the Constitutional Commission, Vol. 1, July 15, 1986, pp. 532-533.

MR. JAMIR. xxx When the 1935 Constitution was enacted, the auditing office was
constitutionalized because of the increasing necessity of empowering the auditing
office to withstand political pressure. Finding a single Auditor to be quite insufficient
to withstand political pressure, the 1973 Constitution established the Commission
consisting of three members — a chairman and two commissioners.

Records of the Constitutional Commission, Vol. 3, August 27, 1986, pp. 748-749;
45

emphases ours.

46
G.R. No. 93867, December 18, 1990, 192 SCRA 358.

47
Id. at 361.

48
254 Phil. 156, 179 (1989); emphases and underscores supplied.

49
453 Phil. 586, 658-659 (2003).

50
Accordingly, there is no point discussing, even for purposes of comparing and contrasting,
the "independence" of the National Economic Development Authority and the central
monetary authority, whose major concern is primarily the direction of the country’s economy,
both in its micro and macro aspects.

51
Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294.

In other words, Madam President, what actually spawned or caused the failure of the
justices of the Tanodbayan insofar as monitoring and fiscalizing the government
offices are concerned was due to two reasons: First, almost all their time was taken
up by criminal cases; and second, since they were under the Office of the President,
their funds came from that office. I have a sneaking suspicion that they were
prevented from making administrative monitoring because of the sensitivity of the
then head of that office, because if the Tanodbayan would make the corresponding
reports about failures, malfunctions or omissions of the different ministries, then that
would reflect upon the President who wanted to claim the alleged confidence of the
people.

xxxx

It is said here that the Tanodbayan or the Ombudsman would be a toothless or a

paper tiger. That is not necessarily so. If he is toothless, then let us give him a little
more teeth by making him independent of the Office of the President because it is
 now a constitutional creation, so that the insidious tentacles of politics, as has always
been our problem, even with PARGO, PCAPE and so forth, will not deprive him of
the opportunity to render service to Juan de la Cruz. xxx. There is supposed to be
created a constitutional office — constitutionalized to free it from those tentacles of
politics — and we give it more teeth and have the corresponding legislative
provisions for its budget, not a budget under the Office of the President.

xxxx

x x x . For that reason, Madam President, I support this committee report on a

constitutionally created Ombudsman and I further ask that to avoid having a
toothless tiger, there should be further provisions for statistical and logistical support.
(Emphases ours.)

52
Id. at 294.

53
This provision reads:

Section 2. The President, the Vice-President, the Members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman may be
removed from office on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be removed from office as
provided by law, but not by impeachment.

The Framers’ concern in inserting the second sentence of Section 2, Article XI is fully
54

supported by the intent expressed in the constitutional debates.

55
Dennis Funa, Law on Administrative Accountability of Public Officers, p. 720.
Fundamentals of Impeachment, Antonio R. Tupaz and Edsel C.F. Tupaz, p. 7; See Opinion
of Justice Vitug in Francisco, Jr. v. House of Representatives, 460 Phil. 830, 957 (2003).

56
CONSTITUTION, Art. XI, Section 3(1).

57
CONSTITUTION, Art. XI, Section 3(5).

58
CONSTITUTION, Art. XI, Section 2.

59
CONSTITUTION, Art. XI, Section 3(6).

60
Ibid.

61
Thus, impeachment is characterized as essentially raising political questions or questions
of policies created by large historical forces. Alexander Hamilton observed:

A well-constituted court for the trial of impeachments is an object not more to be

desired than difficult to be obtained in a government wholly elective. The subjects of
its jurisdiction are those offenses which proceed from the misconduct of public men,
or, in other words, from the abuse or violation of some public trust. They are of a
nature which may with peculiar propriety be denominated POLITICAL, as they relate
chiefly to injuries done immediately to the society itself.
 The prosecution of them, for this reason, will seldom fail to agitate the passions of
the whole community, and to divide it into parties more or less friendly or inimical to
the accused. In many cases it will connect itself with the pre-existing factions, and
will enlist all their animosities, partialities, influence, and interest on one side or on
the other; and in such cases there will always be the greatest danger that the
decision will be regulated more by the comparative strength of parties, than by the
real demonstrations of innocence or guilt. (The Federalist No. 65
[www.constitution.org/fed/federa65, accessed on February 3, 2014].)

62
Even the second restriction (on due process) on the President’s exercise of his power of
removal of the Deputy Ombudsman does not emanate from Congress but from the
Constitution itself. The fact that the Office of the Ombudsman is a constitutional office that
enjoys independence from the three branches of government argues against any suggestion
that the President can remove a Deputy Ombudsman at will without the requirement of
observance of due process under Section 8(2) of RA No. 6770.

63
Supra note 49, at 658.

64
Rollo (G.R. No. 196231), p. 80.

65
Id. at 137-152.

66
Id. at 132-136.

67
Id. at 15, 240.

68
Id. at 241.

69
Id. at 242.

70
Id. at 236 and 343. The case was endorsed to the Ombudsman on May 5, 2010; the period
within which Gonzales finished his work would only be eight days. However, Gonzales stated
in his pleading that it took him nine days to review the Resolution of the Motion for
Reconsideration, and the OP does not dispute this. The records of the case were forwarded
to the Records Section on May 7, 2010.

71
Brucal v. Desierto, 501 Phil. 453, 465-466 (2005).

72
Rollo (G.R. No. 196231), pp. 578-579.

73
In Dansal v. Judge Fernandez, Sr., 383 Phil. 897, 908-910 (2000), the Court said: "Judicial
notice should be taken of the fact that the nature of the Office of the Ombudsman
encourages individuals who clamor for efficient government service to freely lodge their
Complaints against wrongdoings of government personnel, thus resulting in a steady stream
of cases reaching the Office of the Ombudsman."

74
Motion for Reconsideration, p. 10.

75
CONSTITUTION, Art. III, Section 16.
 Caballero v. Alfonso, 237 Phil. 154 (1987); Roquero v. The Chancellor of U.P. Manila, G.R.
76

No. 181851, March 9, 2010, 614 SCRA 723, 732-733. In fact, in Mendoza-Ong v.
Sandiganbayan (483 Phil. 451, 454-455 [2004]), the Court had this to say:

In this case, the Graft Investigation Officer released his resolution finding probable
cause against petitioner on August 16, 1995, less than six months from the time
petitioner and her co-accused submitted their counter-affidavits. On October 30,
1995, only two and a half months later, Ombudsman Aniano Desierto had reviewed
the case and had approved the resolution. Contrary to petitioner’s contention, the
lapse of only ten months from the filing of the complaint on December 13, 1994, to
the approval of the resolution on October 30, 1995, is by no means oppressive.
"Speedy disposition of cases" is consistent with reasonable delays.

Rollo (G.R. No. 196231), p. 96. The decision was drafted by Graft Investigation and
77

Prosecution Officer Rebecca A. Guillen-Ubaña.

78
Section 12, Article XI of the 1987 Constitution reads:

Section 12. 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
cases, notify the complainants of the action taken and the result thereof. [emphasis
ours]

79
Section 13 of RA No. 6770 reads:

Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner against officers
or employees of the Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations, and 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 people. (emphasis ours)

80
This provision reads:

Section 3. How initiated. – An administrative case may be initiated by a written

complaint under oath accompanied by affidavits of witnesses and other evidence in
support of the charge. Such complaint shall be accompanied by a Certificate of Non-
Forum Shopping duly subscribed and sworn to by the complainant or his counsel. An
administrative proceeding may also be ordered by the Ombudsman or the respective
Deputy Ombudsman on his initiative or on the basis of a complaint originally filed as
a criminal action or a grievance complaint or request for assistance. (emphasis ours)

81
Rollo (G.R. No. 196231), pp. 94-95.

82
Id. at 95. The pertinent part of the decision reads:

Moreover, we find the defenses of respondents highly unbelievable. The

accommodation afforded to Christian by respondents casts doubt on their purpose of
 keeping him inside the station. It is not plausible that policemen who catch a traffic
violator require him to return and show documents to absolve him from liability.

Under Section 6, Article XIII of the 1973 Constitution, Congress was mandated to create an
83

Office of the Ombudsman to be known as the Tanodbayan.

84
1973 CONSTITUTION, Article XIII, Section 6.

Known as the Tanodbayan Decree of 1977 (June 11, 1978). Section 17 of PD No. 1487
85

gave the Tanodbayan prosecutorial functions.

86
Creating a Special Court to be known as "Sandiganbayan" and for Other Purposes;
likewise enacted on June 11, 1978.

87
PD No. 1486, Section 4.

88
PD No. 1486, Section 14.

89
Known as the Tanodbayan Decree, Revising PD No. 1487.

90
The last paragraph of Section 17 of PD 1607 reads:

The Chief Special Prosecutor, Assistant State Prosecutor, Special Prosecutor and
those designated to assist them as herein provided for shall be under the control and
supervision of the Tanodbayan and their resolutions and actions shall not be subject
to review by any administrative agency.

However, the law also allowed the President "to designate the Chief State Prosecutor
of the Ministry of Justice or any other ranking official in the prosecutory arm of the
government as Ex-Officio Chief Special Prosecutor and/or Assistant Chief Special
Prosecutor" (Section 17, PD No. 1607).

91
PD No. 1607, Section 18.

92
PD No. 1630, Sections 10 and 17.

93
CONSTITUTION, Article XI, Section 5.

94
PD No. 1630.

95
CONSTITUTION, Article XI, Section 7.

96
Under RA No. 6770, however, it is the President himself which appoints the Special
Prosecutor. This may even be an argument of the legislative intent to treat the Special
Prosecutor, in much the same way, as the Ombudsman’s Deputies themselves that justify
the same recognition of freedom from the disciplinary authority of the President on the same
ground of independence of the Office of the Ombudsman.

97
RA No. 6770, Section 4.
 98
RA No. 6770, Section 5.

99
RA No. 6770, Section 7.

100
RA No. 6770, Section 9.

101
RA No. 6770, Section 6.

102
RA No. 6770, Section 10.

103
RA No. 6770, Section 8(3).

104
RA No. 6770, Section 33.

105
RA No. 6770, Section 11(3) and (4).

106
G.R. No. 120422, September 27, 1995, 248 SCRA 568.

107
Id. at 580-581.

The eight (8) Justices in the majority are: Presbitero J. Velasco, Jr., Teresita J. Leonardo-
108

De Castro, Arturo D. Brion, Lucas P. Bersamin, Roberto A. Abad, Jose Portugal Perez, Jose
Catral Mendoza, and Marvic Mario Victor F. Leonen. The seven (7) dissenting Justices are:
Chief Justice Maria Lourdes P. A. Sereno, Antonio T. Carpio, Diosdado M. Peralta, Mariano
C. Del Castillo, Martin S. Villarama, Jr., Bienvenido L. Reyes, and Estela M. Perlas-Bernabe.

The eight (8) Justices in the majority are: Chief Justice Maria Lourdes P. A. Sereno,
109

Antonio T. Carpio, Diosdado M. Peralta, Mariano C. Del Castillo, Martin S. Villarama, Jr.,
Bienvenido L. Reyes, Estela M. Perlas-Bemabe and Marvic Mario Victor F. Leonen. The
seven (7) dissenting Justices are: Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro,
Arturo D. Brion, Lucas P. Bersamin, Roberto A. Abad, Jose Portugal Perez, and Jose Catral
Mendoza.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 196231 September 4, 2012

EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deputy Executive
Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-
SANCHEZ, and ATTY. CARLITOD. CATAYONG, Respondents.

x-----------------------x

G.R. No. 196232

WENDELL BARRERAS-SULIT, Petitioner,

vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN
MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF
MALACAÑANG LEGAL AFFAIRS, Respondents.

DECISION

PERLAS-BERNABE, J.:

The Case

These two petitions have been consolidated not because they stem from the same factual milieu but
because they raise a common thread of issues relating to the President's exercise of the power to
remove from office herein petitioners who claim the protective cloak of independence of the
constitutionally-created office to which they belong - the Office of the Ombudsman.

The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance
of temporary restraining order or status quo order) which assails on jurisdictional grounds the
Decision1 dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-460
dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other Law
Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross
Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition primarily
seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known
as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy
Ombudsman of the Office of the Ombudsman.

The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with
application for issuance of a temporary restraining order or status quo order) seeking to annul,
reverse and set aside (1) the undated Order2 requiring petitioner Wendell Barreras-Sulit to submit a
written explanation with respect to alleged acts or omissions constituting serious/grave offenses in
relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F.
Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation,3both issued by the Office of the
President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a
Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as
unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special
Prosecutor of the Office of the Ombudsman.

The facts from which these two cases separately took root are neither complicated nor unfamiliar.

In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a
hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial
news accounts were fragmented it was not difficult to piece together the story on the hostage-taker,
Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer attempting to
secure his reinstatement in the police force and to restore the benefits of a life-long, and erstwhile
bemedaled, service. The following day, broadsheets and tabloids were replete with stories not just of
the deceased hostage-taker but also of the hostage victims, eight of whom died during the bungled
police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign
relation proportions. One newspaper headline ran the story in detail, as follows:

MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with
tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national
television until last night.

Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m. Mendoza
hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police
force.

The hostage drama dragged on even after the driver of the bus managed to escape and told police
that all the remaining passengers had been killed.

Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead
hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of the
bus to immobilize it.

Police used hammers to smash windows, door and wind-shield but were met with intermittent fire
from the hos-tage taker.

Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive.
When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza
was killed by a sniper.

Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders
scampering for safety.

It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from
inside the bus.

Mendoza hijacked the tourist bus in the morning and took the tourists hostage.

Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of
the hostages during the drama that began at 10 a.m. and played out live on national television.

Live television footage showed Mendoza asking for food for those remaining in the bus, which was
delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was
reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.

Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3 p.m.
today." Another sign stuck to another window said "3 p.m. today deadlock."

Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake to
correct a big wrong decision." A larger piece of paper on the front windshield was headed, "Release
final decision," apparently referring to the case that led to his dismissal from the police force.
Negotiations dragged on even after Mendoza's self-imposed deadline.

Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the
police force. "His problem was he was unjustly removed from service. There was no due process, no
hearing, no com-plaint," Gregorio said.

Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his
brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front
of national television. This triggered the crisis that eventually forced Mendoza to carry out his threat
and kill the remaining hostages.

Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk
Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos,
including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow
communications with Mendoza in-side the bus, which was parked in front ofthe Quirino Grandstand.

Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered
near the scene.

Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the
deployment of crack police teams and snipers near the scene. A crisis man-agement committee had
been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.

Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss
Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus
said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not
elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter to
Mendoza.

MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the
slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-
Internal Affairs Service and the Manila Regional Trial Court had already dismissed crim-inal cases
against him.

The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-
799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros
when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the
Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken hostage.
"Having worn his (police) uniform, of course there is no doubt that he already planned the hostage
taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille
Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage, The Philippine Star, Updated August 24,
2010 12:00 AM, Val Rodri-guez.4

In a completely separate incident much earlier in time, more particularly in December of 2003, 28-
year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States
smuggling $100,000 from Manila by concealing the cash in their luggage and making false
statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and
agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the rest
of the charges against them and for being sentenced to time served. Inevitably, however, an
investigation into the source of the smuggled currency conducted by US Federal Agents and the
Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys'
father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed
Forces, had accumulated more than P 300 Million during his active military service. Plunder and
Anti-Money Laundering cases were eventually filed against Major General Garcia, his wife and their
two sons before the Sandiganbayan.

G.R. No. 196231

Sometime in 2008, a formal charge5 for Grave Misconduct (robbery, grave threats, robbery extortion
and physical injuries) was filed before the Philippine National Police-National Capital Region (PNP-
NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others,
namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III
Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the private
complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed as I.S.
No. 08E-09512.

On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the
National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III,
all relevant documents and evidence in relation to said case to the Office of the Deputy Ombudsman
for appropriate administrative adjudication.6 Subsequently, Case No. OMB-P-A-08-0670-H for Grave
Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers, who filed
their respective verified position papers as directed.

Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed7 upon a finding that the material
allegations made by the complainant had not been substantiated "by any evidence at all to warrant
the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the
PNP issued a Resolution8 dated October 17, 2008 recommending the dismissal without prejudice of
the administrative case against the same police officers, for failure of the complainant to appear in
three (3) consecutive hearings despite due notice.

However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a
Decision9 in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police
officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of
said Decision reads:

WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL

ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen.
Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1
NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEÑA of Manila Police District,
Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the
Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil
Service, with the accessory penalties of forfeiture of retirement benefits and perpetual
disqualification from reemployment in the government service pursuant to Section 58, Rule IV of the
same Uniform Rules of Administrative Cases in the Civil Service, for having committed GRAVE
MISCONDUCT.

On November 5, 2009, they filed a Motion for Reconsideration10 of the foregoing Decision, followed
by a Supplement to the Motion for Reconsideration11 on November 19, 2009. On December 14,
2009, the pleadings mentioned and the records of the case were assigned for review and
recommendation to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who released a
draft Order12 on April 5, 2010 for appropriate action by his immediate superior, Director Eulogio S.
Cecilio, who, in turn, signed and forwarded said Order to petitioner Gonzalez's office on April 27,
2010. Not more than ten (10) days after, more particularly on May 6, 2010, petitioner endorsed the
Order, together with the case records, for final approval by Ombudsman Merceditas N. Gutierrez, in
whose office it remained pending for final review and action when P/S Insp. Mendoza hijacked a
bus-load of foreign tourists on that fateful day of August 23, 2010 in a desperate attempt to have
himself reinstated in the police service.

In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong
Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public
outcry against the blundering of government officials prompted the creation of the Incident
Investigation and Review Committee (IIRC),13 chaired by Justice Secretary Leila de Lima and vice-
chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to determine
accountability for the incident through the conduct of public hearings and executive sessions.
However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC
proceedings on the assertion that the Office of the Ombudsman is an independent constitutional
body.

Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner
Gonzales to be among those in whom culpability must lie. In its Report,14 the IIRC made the
following findings:

Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of
their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more
than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to
resolve motions for reconsideration in administrative disciplinary cases within five (5) days from
submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction
precipitated the desperate resort to hostage-taking.

More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not without
legal and compelling bases considering the following:

(a) PSI Mendoza and four policemen were investigated by the Ombudsman involving
a case for alleged robbery (extortion), grave threats and physical injuries amounting
to grave misconduct allegedly committed against a certain Christian Kalaw. The
same case, however, was previously dismissed by the Manila City Prosecutors
Office for lack of probable cause and by the PNP-NCR Internal Affairs Service for
failure of the complainant (Christian Kalaw) to submit evidence and prosecute the
case. On the other hand, the case which was filed much ahead by Mendoza et al.
against Christian Kalaw involving the same incident, was given due course by the
City Prosecutors Office.

(b) The Ombudsman exercised jurisdiction over the case based on a letter issued
motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR
- without citing any reason - to endorse the case against Mendoza and the arresting
policemen to his office for administrative adjudication, thereby showing undue
interest on the case. He also caused the docketing of the case and named Atty.
Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case records, as the
nominal complainant, in lieu of Christian Kalaw. During the proceedings, Christian
Kalaw did not also affirm his complaint-affidavit with the Ombudsman or submit any
position paper as required.

(c) Subsequently, Mendoza, after serving preventive suspension, was adjudged

liable for grave misconduct by Deputy Ombudsman Gonzales (duly approved on May
21, 2009) based on the sole and uncorroborated complaint-affidavit of Christian
Kalaw, which was not previously sustained by the City Prosecutor's Office and the
 PNP Internal Affairs Service. From the said Resolution, Mendoza interposed a timely
motion for reconsideration (dated and filed November 5, 2009) as well as a
supplement thereto. No opposition or comment was filed thereto.

(d) Despite the pending and unresolved motion for reconsideration, the judgment of
dismissal was enforced, thereby abruptly ending Mendoza's 30 years of service in
the PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief
by sending several hand-written letter-requests to the Ombudsman for immediate
resolution of his motion for reconsideration. But his requests fell on deaf ears.

xxxx

By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without any
justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete and
wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of
Procedure). The inaction is gross, there being no opposition to the motion for reconsideration.

Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily enforced
the judgment of dismissal and ignored the intervening requests for immediate resolution, thereby
rendering the inaction even more inexcusable and unjust as to amount to gross negligence and
grave misconduct.

SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard
of due process, manifest injustice and oppression in failing to provisionally suspend the further
implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved
motion for reconsideration.

By enforcing the judgment of dismissal without resolving the motion for reconsideration for over nine
months, the two Ombudsman officials acted with arbitrariness and without regard to due process
and the constitutional right of an accused to the speedy disposition of his case. As long as his
motion for reconsideration remained pending and unresolved, Mendoza was also effectively
deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of
dismissal before the higher courts and seek a temporary restraining order to prevent the further
execution thereof.

As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should
have provisionally suspended the further enforcement of the judgment of dismissal without prejudice
to its re-implementation if the reconsideration is eventually denied. Otherwise, the Ombudsman will
benefit from its own inaction. Besides, the litigant is entitled to a stay of the execution pending
resolution of his motion for reconsideration. Until the motion for reconsideration is denied, the
adjudication process before the Ombudsman cannot be considered as completely finished and,
hence, the judgment is not yet ripe for execution.

xxxx

When the two Ombudsman officials received Mendoza's demand for the release of the final order
resolving his motion for reconsideration, they should have performed their duty by resolving the
reconsideration that same day since it was already pending for nine months and the prescribed
period for its resolution is only five days. Or if they cannot resolve it that same day, then they should
have acted decisively by issuing an order provisionally suspending the further enforcement of the
judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice
to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may
have ended peacefully, without necessarily compromising the integrity of the institution. After all, as
relayed to the negotiators, Mendoza did express willingness to take full responsibility for the
hostage-taking if his demand for release of the final decision or reinstatement was met.

But instead of acting decisively, the two Ombudsman officials merely offered to review a pending
motion for review of the case, thereby prolonging their inaction and aggravating the situation. As
expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding Php150,000
in exchange for favorably resolving the motion for reconsideration - rejected and branded as trash
("basura") the Ombudsman [sic] letter promising review, triggering the collapse of the negotiations.
To prevent the situation from getting out of hand, the negotiators sought the alternative option of
securing before the PNP-NCRPO an order for Mendoza's provisional reinstatement pending
resolution of the motion for reconsideration. Unfortunately, it was already too late. But had the
Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may
have ended differently.

The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the Office
of the President (OP) for further determination of possible administrative offenses and for the
initiation of the proper administrative proceedings.

On October 15, 2010, the OP instituted a Formal Charge15 against petitioner Gonzales for Gross
Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of
the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil

Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft
and Corrupt Practices Act.16 Petitioner filed his Answer17 thereto in due time.

Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated
October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal
Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly
requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the Government and any other party,
wherein the public officer in his official capacity has to intervene under the law" under Section 3(b) of
the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of gifts under
Section 7(d) of the Code of Conduct and Ethical Standards.18 In a Joint Resolution19 dated February
17, 2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was
dismissed, as follows:

WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A.

Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the
complaint is hereby be [sic] DISMISSED.

Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the
same is likewise DISMISSED.

Meanwhile, the OP notified20 petitioner that a Preliminary Clarificatory Conference relative to the
administrative charge against him was to be conducted at the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged,21 however,
that on February 4, 2011, he heard the news that the OP had announced his suspension for one
year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence,
believing that the OP had already prejudged his case and that any proceeding before it would simply
be a charade, petitioner no longer attended the scheduled clarificatory conference. Instead, he filed
an Objection to Proceedings22 on February 7, 2011. Despite petitioner's absence, however, the OP
pushed through with the proceedings and, on March 31, 2011, rendered the assailed Decision,23 the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III
guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and
hereby meted out the penalty of DISMISSAL from service.

SO ORDERED.

Hence, the petition.

G.R. No. 196232

In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged
Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo
Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal Case No.
28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan.

On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail
holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit
("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea
Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On
May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the
PLEBARA compliant with jurisprudential guidelines.

Outraged by the backroom deal that could allow Major General Garcia to get off the hook with
nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his
culpability for serious public offenses, the House of Representatives' Committee on Justice
conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the
Committee on Justice passed and adopted Committee Resolution No. 3,24 recommending to the
President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate
charges against her Deputies and Assistants before the appropriate government office for having
committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal
of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and grounds for
removal from office under the Ombudsman Act.

The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In
her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of
the OP with respect to the administrative disciplinary proceeding against her. The OP, however, still
proceeded with the case, setting it for preliminary investigation on April 15, 2011.

Hence, the petition.

The Issues

In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:

(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER
ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.

(B)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN
VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.

(C)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF
MENDOZA'S MOTION FOR RECONSIDERATION.

(D)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S
CASE.

(E)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON
MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.

(F)

RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL

RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT
PETITIONER DEMANDED A BRIBE FROM MENDOZA.25

On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question -

AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE

DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE? 26

Re-stated, the primordial question in these two petitions is whether the Office of the President has
jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special
Prosecutor who belong to the constitutionally-created Office of the Ombudsman.

The Court's Ruling

Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate
that the President has no disciplinary jurisdiction over them considering that the Office of the
Ombudsman to which they belong is clothed with constitutional independence and that they, as
Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of
said office.

The Court is not convinced.

The Ombudsman's administrative

disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.

It is true that the authority of the Office of the Ombudsman to conduct administrative investigations
proceeds from its constitutional mandate to be an effective protector of the people against inept and
corrupt government officers and employees,27 and is subsumed under the broad powers "explicitly
conferred" upon it by the 1987 Constitution and R.A. No. 6770.28

The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term,
which literally means "agent" or "representative," communicates the concept that has been carried
on into the creation of the modern-day ombudsman, that is, someone who acts as a neutral
representative of ordinary citizens against government abuses.29 This idea of a people's protector
was first institutionalized in the Philippines under the 1973 Constitution with the creation of the
Tanodbayan, which wielded the twin powers of investigation and prosecution. Section 6, Article XIII
of the 1973 Constitution provided thus:

Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate complaints relative to public office, including those
in government-owned or controlled corporations, make appropriate recommendations, and in case of
failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or
administrative case before the proper court or body.

The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with
authority to "act in a quick, inexpensive and effective manner on complaints against administrative
officials", and to function purely with the "prestige and persuasive powers of his office" in correcting
improprieties, inefficiencies and corruption in government freed from the hampering effects of
prosecutorial duties.30 Accordingly, Section 13, Article XI of the 1987 Constitution enumerates the
following powers, functions, and duties of the Office of the Ombudsman, viz:

(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 on 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 rules of procedure and exercise such other powers or perform such functions or
duties as may be provided by law.31

Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of
1989, to shore up the Ombudsman's institutional strength by granting it "full administrative
disciplinary power over public officials and employees,"32 as follows:

Sec. 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.(Emphasis
supplied)

In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was
explicitly conferred the statutory power to conduct administrative investigations under Section 19 of
the same law, thus:

Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which:

1. Are contrary to law or regulation;

2. Are unreasonable, unfair, oppressive or discriminatory;

3. Are inconsistent with the general course of an agency's functions, though in accordance with law;

4. Proceed from a mistake of law or an arbitrary ascertainment of facts;

5. Are in the exercise of discretionary powers but for an improper purpose; or

6. Are otherwise irregular, immoral or devoid of justification.

While the Ombudsman's authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the judiciary, such authority is by no
means exclusive. Petitioners cannot insist that they should be solely and directly subject to the
disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus:

Section 8. Removal; Filling of Vacancy.-

xxxx

(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process.

It is a basic canon of statutory construction that in interpreting a statute, care should be taken that
every part thereof be given effect, on the theory that it was enacted as an integrated measure and
not as a hodge-podge of conflicting provisions. A construction that would render a provision
inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole.33 Otherwise stated, the law
must not be read in truncated parts. Every part thereof must be considered together with the other
parts, and kept subservient to the general intent of the whole enactment.34

A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to
the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise
concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special

Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which
prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter
are quite insightful, viz:

x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy
Tanodbayan may only be removed for cause and after due process. He added that the President
alone has the power to remove the Deputy Tanodbayan.

Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he
can be removed not by the President but by the Ombudsman.

However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman
may try to protect one another. The Chair suggested the substitution of the phrase "after due
process" with the words after due notice and hearing with the President as the ultimate authority.

Senator Guingona contended, however, that the Constitution provides for an independent Office of
the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan.

Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however,
considering the Chair's observation that vesting such authority upon the Tanodbayan itself could
result in mutual protection, it is necessary that an outside official should be vested with such
authority to effect a check and balance.35

Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section
21 - in the same Organic Act was to provide for an external authority, through the person of the
President, that would exercise the power of administrative discipline over the Deputy Ombudsman
and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the
Ombudsman over all government officials and employees. Such legislative design is simply a
measure of "check and balance" intended to address the lawmakers' real and valid concern that the
Ombudsman and his Deputy may try to protect one another from administrative liabilities.

This would not be the first instance that the Office of the President has locked horns with the
Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor of
shared authority in Hagad v. Gozo Dadole.36 In said case, the Mayor and Vice-Mayor of Mandaue
City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal
Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his
authority to conduct administrative investigations over said local elective officials by virtue of the
subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent
provision of which states:

Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local
elective official shall be prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President.

The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General
that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on
an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No.
7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the
Ombudsman Act was inferred therefrom. Thus said the Court:

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are
not favored, and that courts must generally assume their congruent application. The two laws must
be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied
repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est
optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have enacted conflicting
statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.37

While Hagad v. Gozo Dadole38 upheld the plenary power of the Office of the Ombudsman to
discipline elective officials over the same disciplinary authority of the President under R.A. No. 7160,
the more recent case of the Office of the Ombudsman v. Delijero39 tempered the exercise by the
Ombudsman of such plenary power invoking Section 23(2)40 of R.A. No. 6770, which gives the
Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the
institution of appropriate administrative proceedings against erring public officers or employees." The
Court underscored therein the clear legislative intent of imposing "a standard and a separate set of
procedural requirements in connection with administrative proceedings involving public school
teachers"41 with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for Public
School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary authority
over a public school teacher is concurrent with the proper investigating committee of the Department
of Education, it would have been more prudent under the circumstances for the Ombudsman to have
referred to the DECS the complaint against the public school teacher.

Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete
out administrative sanctions upon them, including the extreme penalty of dismissal from the service.
However, it is equally without question that the President has concurrent authority with respect to
removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified
conditions. Considering the principles attending concurrence of jurisdiction where the Office of the
President was the first to initiate a case against petitioner Gonzales, prudence should have
prompted the Ombudsman to desist from proceeding separately against petitioner through its
Internal Affairs Board, and to defer instead to the President's assumption of authority, especially
when the administrative charge involved "demanding and soliciting a sum of money" which
constitutes either graft and corruption or bribery, both of which are grounds reserved for the
President's exercise of his authority to remove a Deputy Ombudsman.

In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a
subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge of
graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After all,
the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of
administrative powers.42 In Montemayor v. Bundalian,43 the Court sustained the President's dismissal
from service of a Regional Director of the Department of Public Works and Highways (DPWH) who
was found liable for unexplained wealth upon investigation by the now defunct Philippine
Commission Against Graft and Corruption (PCAGC). The Court categorically ruled therein that the
prior dismissal by the Ombudsman of similar charges against said official did not operate as res
judicata in the PCAGC case.

By granting express statutory

power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.

Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the
Ombudsman and his Deputies, viz:

Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for
every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be
filled within three months after they occur.

While the removal of the Ombudsman himself is also expressly provided for in the Constitution,
which is by impeachment under Section 244 of the same Article, there is, however, no constitutional
provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special
Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in
the law without running afoul of any provision in the Constitution or existing statutes. In fact, the
Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public
officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to
impeachment.
That the Deputies of the Ombudsman were intentionally excluded from the enumeration of
impeachable officials is clear from the following deliberations45 of the Constitutional Commission,
thus:

MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been
concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform
his duties because he is something like a guardian of the government. This recalls the statement of
Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies",
who will guard the guardians? I understand here that the Ombudsman who has the rank of a
chairman of a constitutional commission is also removable only by impeachment.

MR. ROMULO. That is the intention, Madam President.

MR. REGALADO. Only the Ombudsman?

MR. MONSOD. Only the Ombudsman.

MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of".
We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate
Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and
read our discussions into the Record for purposes of the Commission and the Committee.46

xxx

THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the
Ombudsman among those officials who have to be removed from office only onimpeachment. Is that
right?

MR. DAVIDE. Yes, Madam President.

MR. RODRIGO. Before we vote on the amendment, may I ask a question?

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. The Ombudsman, is this only one man?

MR. DAVIDE. Only one man.

MR. RODRIGO. Not including his deputies.

MR. MONSOD. No.47 (Emphasis supplied)

The Power of the President to

Remove a Deputy Ombudsman
and a Special Prosecutor is
Implied from his Power to
Appoint.

Under the doctrine of implication, the power to appoint carries with it the power to remove.48 As a
general rule, therefore, all officers appointed by the President are also removable by him.49 The
exception to this is when the law expressly provides otherwise - that is, when the power to remove is
expressly vested in an office or authority other than the appointing power. In some cases, the
Constitution expressly separates the power to remove from the President's power to appoint. Under
Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of
lower courts shall be appointed by the President. However, Members of the Supreme Court may be
removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges
of lower courts may be removed only by the Supreme Court by virtue of its administrative
supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and
Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on
Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall
likewise be appointed by the President, but they may be removed only by impeachment (Section 2,
Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9,
Article XI) but may also be removed only by impeachment (Section 2, Article XI).

In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the President's
constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman.

The Office of the Ombudsman is charged with monumental tasks that have been generally
categorized into investigatory power, prosecutorial power, public assistance, authority to inquire and
obtain information and the function to adopt, institute and implement preventive measures.50 In order
to ensure the effectiveness of his constitutional role, the Ombudsman was provided with an over-all
deputy as well as a deputy each for Luzon, Visayas and Mindanao. However, well into the
deliberations of the Constitutional Commission, a provision for the appointment of a separate deputy
for the military establishment was necessitated by Commissioner Ople's lament against the rise
within the armed forces of "fraternal associations outside the chain of command" which have
become the common soldiers' "informal grievance machinery" against injustice, corruption and
neglect in the uniformed service,51 thus:

In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association
outside the chain of command proposing reformist objectives. They constitute, in fact, an informal
grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank
and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of
RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of
the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El
Diablo and other organizations dominated by enlisted men function, more or less, as grievance
collectors and as mutual aid societies.

This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference. The
Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance
to higher authorities. This deputy will, of course work in close cooperation with the Minister of
National Defense because of the necessity to maintain the integrity of the chain of command.
Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may
not have to fall back on their own informal devices to obtain redress for their grievances. The
Ombudsman will help raise troop morale in accordance with a major professed goal of the President
and the military authorities themselves. x x x

The add-on now forms part of Section 5, Article XI which reads as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise be
appointed. (Emphasis supplied)

The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog
looking into abuses and irregularities that affect the general morale and professionalism in the
military is certainly of primordial importance in relation to the President's own role asCommander-in-
Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the
President concurrent disciplinary authority over the Deputy Ombudsman for the military and other
law enforcement offices.

Granting the President the Power

to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.

The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy
Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of
the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with
was intended to free it from political considerations in pursuing its constitutional mandate to be a
protector of the people. What the Constitution secures for the Office of the Ombudsman is,
essentially, political independence. This means nothing more than that "the terms of office, the
salary, the appointments and discipline of all persons under the office" are "reasonably insulated
from the whims of politicians."52 And so it was that Section 5, Article XI of the 1987 Constitution had
declared the creation of the independent Office of the Ombudsman, composed of the Ombudsman
and his Deputies, who are described as "protectors of the people" and constitutionally mandated to
act promptly on complaints filed in any form or manner against public officials or employees of the
Government Section 12, Article XI. Pertinent provisions under Article XI prescribes a term of office of
seven years without reappointment Section 11, prohibits a decrease in salaries during the term of
office Section 10, provides strict qualifications for the office Section 8, grants fiscal autonomy
Section 14 and ensures the exercise of constitutional functions Section 12 and 13. The cloak of
independence is meant to build up the Office of the Ombudsman's institutional strength to effectively
function as official critic, mobilizer of government, constitutional watchdog53 and protector of the
people. It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its
officials to escape administrative discipline.

Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political
influences and the discretionary acts of the executive, Congress laid down two restrictions on the
President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that the
removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the
Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for
impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of
R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same
grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation of
the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman,
or a Special Prosecutor for that matter, would diminish or compromise the constitutional
independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the
independence of the Ombudsman's Deputies and Special Prosecutor in the discharge of their duties
that their removal can only be had on grounds provided by law.
In Espinosa v. Office of the Ombudsman,54 the Court elucidated on the nature of the Ombudsman's
independence in this wise -

The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman.
To insulate the Office from outside pressure and improper influence, the Constitution as well as RA
6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from
legislative, executive or judicial intervention. This Court consistently refrains from interfering with the
exercise of its powers, and respects the initiative and independence inherent in the Ombudsman
who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of
public service.

Petitioner Gonzales may not be

removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.

Having now settled the question concerning the validity of the President's power to remove the
Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative
findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy
Ombudsman Emilio A. Gonzales, III.

At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP
proceeded with the administrative case against him despite his non-attendance thereat. Petitioner
was admittedly able to file an Answer in which he had interposed his defenses to the formal charge
against him. Due process is satisfied when a person is notified of the charge against him and given
an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and
giving reasonable opportunity for the person so charged to answer the accusations against him
constitute the minimum requirements of due process.55 Due process is simply having the opportunity
to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained
of.56

The essence of due process is that a party is afforded reasonable opportunity to be heard and to
submit any evidence he may have in support of his defense.57 Mere opportunity to be heard is
sufficient. As long as petitioner was given the opportunity to explain his side and present evidence,
the requirements of due process are satisfactorily complied with because what the law abhors is an
absolute lack of opportunity to be heard.58Besides, petitioner only has himself to blame for limiting
his defense through the filing of an Answer. He had squandered a subsequent opportunity to
elucidate upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory
Conference despite notice. The OP recounted as follows -

It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities
to explain his side and answer the Formal Charge against him.

In the first instance, respondent was given the opportunity to submit his answer together with his
documentary evidence, which opportunity respondent actually availed of. In the second instance,
this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express
election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman
refused to appear for said conference, interposing an objection based on the unfounded notion that
this Office has prejudged the instant case. Respondent having been given actual and reasonable
opportunity to explain or defend himself in due course, the requirement of due process has been
satisfied.59
In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial
evidence,60which is more than a mere scintilla and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.61 The fact, therefore, that petitioner later
refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability
based on substantial evidence, which only requires that a decision must "have something upon
which it is based."62

Factual findings of administrative bodies are controlling when supported by substantial

evidence.63 The OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of removal from office was based on the finding of
gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust, which is
a constitutional ground for the removal by impeachment of the Ombudsman (Section 2, Article XI,
1987 Constitution), and a statutory ground for the President to remove from office a Deputy
Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act.

The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained action
in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his failure to
verify the basis for requesting the Ombudsman to take over the case; his pronouncement of
administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza
based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp.
Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the
subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency of
the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of
available remedies against the immediate implementation of the Decision dismissing him from the
service.

Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence
of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1)
petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S Insp.
Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by
effectively depriving the latter of the right to challenge the dismissal before the courts and prevent its
immediate execution, and (2) petitioner showed undue interest by having P/S Insp. Mendoza's case
endorsed to the Office of the Ombudsman and resolving the same against P/S Insp. Mendoza on the
basis of the unverified complaint-affidavit of the alleged victim Christian Kalaw.

The invariable rule is that administrative decisions in matters within the executive jurisdiction can
only be set aside on proof of gross abuse of discretion, fraud, or error of law.64 In the instant case,
while the evidence may show some amount of wrongdoing on the part of petitioner, the Court
seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross
neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that petitioner's
offenses, as they factually appear, weigh heavily enough to constitute betrayal of public trust would
be to ignore the significance of the legislature's intent in prescribing the removal of the Deputy
Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for the
most serious violations that justify the removal by impeachment of the highest officials of the land.

Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties
constitute betrayal of public trust warranting immediate removal from office? The question calls for a
deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman
and a Special Prosecutor vis-a-vis common administrative offenses.

Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the
existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and
other high crimes. While it was deemed broad enough to cover any violation of the oath of
office,65 the impreciseness of its definition also created apprehension that "such an overarching
standard may be too broad and may be subject to abuse and arbitrary exercise by the
legislature."66 Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not
punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in
office"67could be easily utilized for every conceivable misconduct or negligence in office. However,
deliberating on some workable standard by which the ground could be reasonably interpreted, the
Constitutional Commission recognized that human error and good faith precluded an adverse
conclusion.

MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public
trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I
am not a lawyer so I can anticipate the difficulties that a layman may encounter in understanding this
provision and also the possible abuses that the legislature can commit in interpreting this phrase. It
is to be noted that this ground was also suggested in the 1971 Constitutional Convention. A review
of the Journals of that Convention will show that it was not included; it was construed as
encompassing acts which are just short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers. I understand from the earlier discussions that these constitute
violations of the oath of office, and also I heard the Honorable Davide say that even the criminal acts
that were enumerated in the earlier 1973 provision on this matter constitute betrayal of public trust
as well. In order to avoid confusion, would it not be clearer to stick to the wording of Section 2 which
reads: "may be removed from office on impeachment for and conviction of, culpable violation of the
Constitution, treason, bribery, and other high crimes, graft and corruption or VIOLATION OF HIS
OATH OF OFFICE", because if betrayal of public trust encompasses the earlier acts that were
enumerated, then it would behoove us to be equally clear about this last provision or phrase.

MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words "betrayal
of public trust" in the 1986 Constitution. But I would like him to know that we are amenable to any
possible amendment. Besides, I think plain error of judgment, where circumstances may indicate
that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will
allay the fears of difficulty in interpreting the term."68 (Emphasis supplied)

The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of
public trust to refer to "acts which are just short of being criminal but constitute gross faithlessness
against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers."69 In other words, acts that should constitute betrayal of public trust
as to warrant removal from office may be less than criminal but must be attended by bad faith and of
such gravity and seriousness as the other grounds for impeachment.

A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by
providing for their removal from office on the same grounds as removal by impeachment, the
legislature could not have intended to redefine constitutional standards of culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public
trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of
impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment,
this should remain true even for purposes of removing a Deputy Ombudsman and Special
Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory
grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot
diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could
not suddenly "overreach" to cover acts that are not vicious or malevolent on the same level as the
other grounds for impeachment.
The tragic hostage-taking incident was the result of a confluence of several unfortunate events
including system failure of government response. It cannot be solely attributed then to what
petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of
the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official acts
in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the
Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution of
his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records show
that petitioner took considerably less time to act upon the draft resolution after the same was
submitted for his appropriate action compared to the length of time that said draft remained pending
and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and denied
P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time
the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to
the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release
of any final order on the case was no longer in his hands.

Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an
unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the
same cannot be considered a vicious and malevolent act warranting his removal for betrayal of
public trust. More so because the neglect imputed upon petitioner appears to be an isolated case.

Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the
Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his
undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking
cognizance of cases upon the request of concerned agencies or private parties is part and parcel of
the constitutional mandate of the Office of the Ombudsman to be the "champion of the people." The
factual circumstances that the case was turned over to the Office of the Ombudsman upon
petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even
without the private complainant verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for reconsideration thereof remained pending for more
than nine months cannot be simply taken as evidence of petitioner's undue interest in the case
considering the lack of evidence of any personal grudge, social ties or business affiliation with any of
the parties to the case that could have impelled him to act as he did. There was likewise no evidence
at all of any bribery that took place, or of any corrupt intention or questionable motivation.

Accordingly, the OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as
the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust.
Hence, the President, while he may be vested with authority, cannot order the removal of petitioner
as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind
amounting to a betrayal of public trust.

This is not to say, however, that petitioner is relieved of all liability for his acts showing less than
diligent performance of official duties. Although the administrative acts imputed to petitioner fall short
of the constitutional standard of betrayal of public trust, considering the OP's factual findings of
negligence and misconduct against petitioner, the Court deems it appropriate to refer the case to the
Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and the
imposition of the corresponding administrative sanctions, if any.

Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled
to reinstatement to his former position as Deputy Ombudsman and to the payment of backwages
and benefits corresponding to the period of his suspension.
The Office of the President is vested
with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.

Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove
her from office upon the averment that without the Sandiganbayan's final approval and judgment on
the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions
"tantamount to culpable violations of the Constitution and betrayal of public trust," which are grounds
for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989; and which
also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act) - causing undue injury to the Government or giving any private party any
unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross
inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent,
petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take administrative
disciplinary proceeding against her must depend on the final disposition by the Sandiganbayan of
the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA, there would no
longer be any cause of complaint against her; if not, then the situation becomes ripe for the
determination of her failings.

The argument will not hold water. The incidents that have taken place subsequent to the submission
in court of the PLEBARA shows that the PLEBARA has been practically approved, and that the only
thing which remains to be done by the Sandiganbayan is to promulgate a judgment imposing the
proper sentence on the accused Major General Garcia based on his new pleas to lesser offenses.
On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea under the
PLEBARA was warranted and that it complied with jurisprudential guidelines. The Sandiganbayan,
thereafter, directed the accused Major General Garcia to immediately convey in favor of the State all
the properties, both real and personal, enumerated therein. On August 11, 2010, the Sandiganbayan
issued a resolution, which, in order to put into effect the reversion of Major General Garcia's ill-gotten
properties, ordered the corresponding government agencies to cause the transfer of ownership of
said properties to the Republic of the Philippines. In the meantime, the Office of the Special
Prosecutor (OSP) informed the Sandiganbayan that an Order70 had been issued by the Regional
Trial Court of Manila, Branch 21 on November 5, 2010 allowing the transfer of the accused's frozen
accounts to the Republic of the Philippines pursuant to the terms of the PLEBARA as approved by
the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its May 4, 2010
Resolution had been substantially complied with, Major General Garcia manifested71 to the
Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the
criminal information against his wife and two sons. Major General Garcia's Motion to
Dismiss,72 dated December 16, 2010 and filed with the Sandiganbayan, reads:

1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused
MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the
act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining
Agreement executed by the Principal Accused, the charges against the Co-Accused should likewise
be dismissed since the charges against them are anchored on the same charges against the
Principal Accused.

On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty
to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended.
Upon Major General Garcia's motion, and with the express conformity of the OSP, the
Sandiganbayan allowed him to post bail in both cases, each at a measly amount of P 30,000.00.

The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an

administrative finding of liability against petitioner Barreras-Sulit. While the court's determination of
the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the
disciplinary authority's determination of the prosecutor's administrative liability is based on whether
the plea bargain is consistent with the conscientious consideration of the government's best interest
and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes
against the State. Consequently, the disciplining authority's finding of ineptitude, neglect or
willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-
Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an
agreement which the government finds "grossly disadvantageous," could result in administrative
liability, notwithstanding court approval of the plea bargaining agreement entered into.

Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval.73 The essence of a plea
bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that
charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the
procedure therefor, to wit:

SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)

Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the
guilt of the accused of the crime charged.74 However, if the basis for the allowance of a plea bargain
in this case is the evidence on record, then it is significant to state that in its earlier
Resolution75 promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of
twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented by
the prosecution is viewed by the Court to be of strong character that militates against the grant of
bail."

Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea
bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to
secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard
of judicial probable cause which is sufficient to initiate a criminal case."76 Hence, in light of the
apparently strong case against accused Major General Garcia, the disciplining authority would be
hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case.

The Court need not touch further upon the substantial matters that are the subject of the pending
administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to the complete
and effective resolution of the administrative case before the Office of the President.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed
to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the law of the
land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the
Ombudsman Act; and (b) the validity of the administrative action of removal taken against petitioner
Gonzales. While the Court voted unanimously to reverse the decision of the OP removing petitioner
Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed
statutory provision in its two deliberations held on April 17, 2012 and September 4, 2012. There
being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the
constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of
the Internal Rules of the Court.

Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the
Members of the Court actually taking part in the deliberation to sustain any challenge to the
constitutionality or validity of a statute or any of its provisions.

WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-
460 isREVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with
payment of backwages corresponding to the period of suspension effective immediately, even as the
Office of the Ombudsman is directed to proceed with the investigation in connection with the above
case against petitioner. InG.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-B-
003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to
culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of
the Ombudsman Act of 1989.

The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice
 CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

Ma. LOURDES P. A. SERENO

Chief Justice

Footnotes

1
Annex "A," rollo ( G.R. No. 196231), pp. 72-86.

2
Annex "A," rollo (G.R. No. 196232), p. 26.

3
Annex "C," id. at 33.

4
Val Rodriguez, Grandstand Carnage, The Philippine Star, August 24, 2010
<http://www.philstar.com/Article.aspx?articleId=605631&publicationSubCategoryId=63>
(visited January 5, 2011).

5
Charge Sheet, rollo (G.R. No. 196231), p. 87.

6
Id. at 231.

7
Resolution dated August 26, 2008, id. at 233-235.

8
Id. at 128.

9
Id. at 153-158.

10
Id. at 203-216.

11
Annex "F," id. at 132-136.

12
Annex "N," id. at 244-249.

13
The President issued Joint Department Order No. 01-2010 creating the IIRC.

14
As quoted in the Petition in G.R. No. 196231, rollo, pp. 17-20.

15
Annex "Q," id. at 322.

16
R. A. No. 3019.

17
Rollo (G.R. No. 196231), pp. 324-346.

18
R.A. No. 6713.
19
Annex "W," rollo (G.R. No. 196231), pp. 386-408.

20
Annex "S," id. at 377.

21
Petition, id. at 8.

22
Annex "V," id. at 380-383.

23
Annex "A," id. at 72-86.

24
Annex "B," rollo (G.R. No. 196232), pp. 27-30.

25
Petition, rollo (G.R. No. 196231), pp. 23-24.

26
Petition, rollo (G.R. No. 196232), p. 10.

27
Ledesma v. Court of Appeals, 503 Phil. 396 (2005).

28
Office of the Ombudsman v. Masing and Tayactac, G.R. No. 165416, January 22, 2008,
542 SCRA 253.

29
De Leon, 2 Philippine Constitutional Law Principles and Cases, 855 (2004).

30
Bernas, S.J., The Intent of the 1986 Constitution Writers, 771 (1995).

31
Id. at 143-144.

32
Office of the Ombudsman v. Delijero, Jr., G.R. No. 172635, October 20, 2010, 634 SCRA
135.

33
Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) v.
Executive Secretary Romulo, G.R. No. 160093, July 31, 2007, 528 SCRA 673, 682.

34
Philippine International Trading Corporation v. Commission on Audit, G.R. No. 183517,
June 22, 2010, 621 SCRA 461, citing Land Bank of the Philippines v. AMS Farming
Corporation, 569 SCRA 154, 183 (2008) and Mactan-Cebu International Airport Authority v.
Urgello, 520 SCRA 515, 535 (2007).

35
See Comment of the Office of the Solicitor General, rollo (G.R. No. 196231), pp. 709-710.

36
321 Phil. 604 (1995).

37
Id. at 613-614

38
Id.

39
Supra note 31.

40
Section 23. Formal Investigation.-
 xxxx

(2) At its option, the Office of the Ombudsman may refer certain complaints to the
proper disciplinary authority for the institution of appropriate administrative
proceedings against erring public officers or employees, which shall be determined
within the period prescribed in the civil service law. x x x

41
Supra note 31, at 146.

42
Montemayor v. Bundalian, G.R. No. 149335, July 1, 2003, 405 SCRA 264.

43
Id.

44
Sec.2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but not by
impeachment.

45
As quoted in Office of the Ombudsman v. Court of Appeals, G.R. No. 146486, 493 Phil. 63,
77-80 (2005).

46
Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274.

47
Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, p. 305.

48
Aguirre, Jr. v. De Castro, 378 Phil. 714 (1999).

49
Cruz, Carlo L., The Law of Public Officers, 154-155 (1992).

50
Sec. 13, Article XI; De Leon, Hector, 2 Philippine Constitutional Law, 860 (2004), citing
Concerned Officials of the MWSS v. Velasquez, 310 Phil. 549 (1995) and Garcia-Rueda v.
Pascasio, 344 Phil. 323 (1997).

51
Bernas, S.J., The Intent of the 1986 Constitution Writers, 773-774 (1995).

52
De Leon, 2 Philippine Constitutional Law Principles and Cases, 857 (2004), citing Del.
R.D. ROBLES, The Ombudsman, in C.R. Montejo, On the 1973 Constitution, 232.

53
Id. at 859-860.

54
397 Phil. 829, 831 (2000), cited in Angeles v. Desierto, 532 Phil. 647, 656 (2006).

55
Cayago v. Lina, 489 Phil. 735 (2005).

56
Libres v. NLRC, 367 Phil. 180 (1999).

57
Concerned Officials of MWSS v. Vasquez, 310 Phil. 549 (1995).
58
AMA Computer College-East Rizal v. Ignacio, G.R. No. 178520, June 23, 2009, 590 SCRA
633, 654 citing Casimiro v. Tandog, 498 Phil. 660, 666 (2005).

59
OP Decision, p. 7, rollo (G.R. No. 196231), p. 78.

60
Funa, Dennis B., The Law on the Administrative Accountability of Public Officers, 509
(2010), citing Office of the Court Administrator v. Bucoy, A.M. No. P-93-953, August 25,
1994, 235 SCRA 588; Tolentino v. CA, 234 Phil. 28 (1987), Biak na Bato Mining Co. v.
Tanco, 271 Phil. 339 (1991).

61
Rules of Court, Rule 133, Sec.5; Nicolas v. Desierto, 488 Phil. 158 (2004); Ang Tibay v.
Court of Industrial Relations, 69 Phil 635 (1940).

62
Supra note 60, at 511.

63
Dadubo v. CSC, G.R. No. 106498, June 28, 1993, 223 SCRA 747.

64
Assistant Executive Secretary for Legal Affairs of the Office of the President v. Court of
Appeals, 251 Phil. 26 (1989), citing Lovina v. Moreno, 118 Phil. 1401 (1963).

65
Joaquin G. Bernas, The 1987 Constitution of the Philippines: A Commentary, 992 (1996).

66
Records of the 1986 Constitutional Commission, Vol. II, p. 286.

67
Supra note at 65.

68
Records of the 1986 Constitutional Commission, Vol. II, pp. 283-284.

69
Id. at 286.

70
Annex "2" of the Supplemental Comment on the Petition, rollo (G.R. No. 196232), p. 212.

71
Annex "1," id. at 210-211

72
Annex "3," id. at 213-215.

73
Daan v. Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008, 550 SCRA 233, citing
People v. Villarama, Jr., 210 SCRA 246, 251-252 (1992).

74
People v. Villarama, Jr., G.R. No. 99287, June 23, 1992, 210 SCRA 246; People v.
Parohinog, 185 Phil. 266 (1980); People v. Kayanan, 172 Phil. 728 (1978).

75
Annex "7" of the Supplemental Comment on the Petition, rollo (G.R. No. 196232), pp. 225-
268.

76
Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA 575, 608; Cabrera v.
Marcelo, 487 Phil. 427 (2004).

CONCURRING OPINION
CARPIO, J.:

Our Constitution does not impart a fixed and rigid concept of independence among the offices that it
creates. While it declares certain bodies as "'independent", we cannot assume that the
independence of the Ombudsman1is the same as the independence of the Judiciary. Neither is the
independence of the Constitutional Commissions the same as that of the National Economic and
Development Authority, the Bangko Sentral ng Pilipinas or the Commission on Human Rights2. This
Court cannot make a "one size fits all" concept of independence because the Constitution itself
differentiates the degree of independence of these bodies.

In this case, the petitions seek to strike down Section 8(2) of Republic Act No. 6170 or the
Ombudsman Act of 1989 which delegates to the President the power to remove a Deputy
Ombudsman or the Special Prosecutor "for any of the grounds provided for the removal of the
Ombudsman, and after due process." The provision allegedly compromises the independence of the
Ombudsman by imposing an external disciplinary authority, namely the President.

I agree with the ponencia that Section 8(2) of the Ombudsman Act does not violate the Constitution.
The constitutional principle of independence does not obviate the possibility of a check from another
body. After all, one of the constitutive principles of our constitutional structure is the system of
checks and balances- a check that is not within a body, but outside of it. This is how our democracy
operates - on the basis of distrust.3

I.

Section 2, Article XI of the 1987 Constitution prescribes how all public officers and employees, both
impeachable and non-impeachable, may be removed. Section 2 provides:

The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment
for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust. All other public officers and employees may be
removed from office as provided by law, but not by impeachment. (Boldfacing and underscoring
supplied)

Section 2 of Article XI consists of two parts. The first sentence identifies the public officials who are
subject to removal only by impeachment. The second sentence explicitly leaves to the discretion of
Congress, through an implementing law, the removal of all other public officers and employees. In
other words, by stating that all other non- impeachable officers and employees "may be removed
from office as provided by law" - the Constitution expressly grants to Congress the power to
determine the manner and cause of removal, including who will be the disciplinary authority, of non-
impeachable officers and employees. Clearly, Section 8(2) of the Ombudsman Act is valid and
constitutional since Congress is expressly empowered to legislate such law pursuant to Section 2,
Article XI of the Constitution.

The original text of Section 24 of Article XI did not include the second sentence.5 Its subsequent
inclusion was only meant to exclude "all other public officers and employees" from removal through
impeachment. Otherwise, Congress would have the plenary power to remove public officers and
employees through impeachment or through any other mode of removal. Thus, at the outset, the
framers of the 1987 Constitution saw no need to textualize this power- for it was already taken for
granted as part of the plenary power of Congress. However, to limit this plenary power of Congress,
the framers expressly excluded impeachment as a mode of removing "all other public officers and
employees."
This Court has repeatedly declared that the Constitution "confers plenary legislative x x x powers
subject only to limitations provided in the Constitution."6 Thus, in inserting the second sentence in
Section 8(2), Article XI of the 1987 Constitution, the framers intended to limit impeachment only to
public officers enumerated in the first sentence of Section 2:

MR. REGALADO. I propose to add in Section 2 as a last sentence thereof as already amended the
following: ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY BE REMOVED FROM
OFFICE AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT. The reason for the amendment is
this: While Section 2 enumerates the impeachable officers, there is nothing that will prevent the
legislature as it stands now from providing also that other officers not enumerated therein shall also
be removable only by impeachment, and that has already happened.

Under Section 1 of P.D. No. 1606, the Sandiganbayan Decree, justices of the Sandiganbayan may
be removed only by impeachment, unlike their counterparts in the then Court of Appeals. They are,
therefore, a privileged class on the level of the Supreme Court. In the Committee on Constitutional
Commissions and Agencies, there are many commissions which are sought to be constitutionalized
- if I may use the phrase - and the end result would be that if they are constitutional commissions,
the commissioners there could also be removed only by impeachment. What is there to prevent the
Congress later - because of the lack of this sentence that I am seeking to add - from providing that
officials of certain offices, although nonconstitutional, cannot also be removed except by
impeachment?

THE PRESIDING OFFICER (Mr. Treñas). What does the Committee say on the proposed
amendment of Commissioner Regalado?

MR. MONSOD. May we ask Commissioner Regalado a few questions?

Does this mean that with this provision, the other officers in the case of the Sandiganbayan would
not be removable by impeachment?

MR. REGALADO. For the present and during the interim and until the new Congress amends P.D.
No. 1606, that provision still stands. But the proposed amendment will not prevent the legislature
from subsequently repealing or amending that portion of the law. Also, it will prevent the legislature
from providing for favoured public officials as not removable except by impeachment.

MR. MONSOD. Mr. Presiding Officer, the Committee is willing to accept the amendment of
Commissioner Regalado.

THE PRESIDING OFFICER (Mr. Treñas). The proposed amendment of Commissioner Regalado
has been accepted by the Committee.7 (Emphasis supplied)

Clearly, Congress has the power and discretion to delegate to the President the power to remove a
Deputy Ombudsman or the Special Prosecutor under Section 8(2) of the Ombudsman Act. While the
1987 Constitution already empowers the Ombudsman to investigate8 and to recommend to
remove9 a Deputy Ombudsman and the Special Prosecutor, this does not preclude Congress from
providing other modes of removal.

The Deputy Ombudsman and the Special Prosecutor are not among the impeachable officers under
the 1987 Constitution. Thus, as expressly provided in Section 2, Article XI of the Constitution, they
"may be removed from office as provided by law." Congress, pursuant to this constitutional provision
and in the exercise of its plenary power, enacted the Ombudsman Act, conferring on the President
the power to remove the Deputy Ombudsman and the Special Prosecutor as provided in Section
8(2) of the Ombudsman Act.

However, the Ombudsman Act also grants the Ombudsman the authority to remove a Deputy
Ombudsman and the Special Prosecutor through the general grant of disciplinary authority over all
elective and appointive officials, in reiteration of Sections 13(1) and (2), Article XI of the
Constitution:10

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 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.11

In view of Section 8(2) and Section 21 of the Ombudsman Act, the legislative intent is to grant
concurrent jurisdiction to the President and the Ombudsman in the removal of the Deputy
Ombudsman and the Special Prosecutor. An "endeavor should be made to harmonize the provisions
of a law x x x so that each shall be effective."12 This is not a hollow precept of statutory construction.
This is based not only on democratic principle but also on the separation of powers, that this Court
should not be so casual in voiding the acts of the popularly elected legislature unless there is a clear
violation of the Constitution.

II.

When the 1987 Constitution speaks of "independent" bodies, it does not mean complete insulation
from other offices. The text, history and structure of the Constitution contemplate checks and
balances that result in the expansion, contraction or concurrence of powers, a coordinate functioning
among different bodies of government that is not limited to the executive, legislative and judicial
branches, but includes the "independent" constitutional bodies. The very structure of our government
belies the claim that "independent" bodies necessarily have exclusive authority to discipline its
officers.

Not all constitutional declarations are enforceable by courts.13 We declared some of them as not self-
executing such as the Declaration of Principles and State Policies under Article II.14 However, the
independence of constitutional bodies is a judicially enforceable norm. Textually, the Constitution
does not define the term "independent" and thus, the contours of this principle may not be
immediately clear. The question therefore arises: to what extent can this Court enforce the
independence of bodies like the Ombudsman? Can we impose a particular notion of independence,
amidst the silence of the constitutional text, to the extent of nullifying an act of Congress?

The answer lies in the Constitution itself which circumscribes the exercise of judicial power. The
Constitution clearly intended different degrees of independence among the "independent" bodies
that it created. For some, such as the National Economic and Development Authority, Bangko
Sentral ng Pilipinas and Commission on Human Rights, the operationalization of independence is
constitutionally committed to the discretion of Congress.15 For the others, like the Civil Service
Commission, the Commission on Audit and the Commission on Elections, legislative power is
decidedly more limited,16 with express guarantees like fiscal autonomy17 and rule-making power on
pleadings and practice.18

The Constitution does not enumerate in detail all the possible legislative powers. The Constitution
has vested Congress with plenary powers- as the general repository of the police power of the State-
to fill-in gaps in the Constitution for the governance of this country. However, when the Constitution
expressly empowers Congress to do a specific act - like expressly empowering Congress to provide
the mode of removal of all non-impeachable government officers and employees, there can be no
doubt whatsoever that Congress can enact such a law.

Any reading of the 1987 Constitution does not warrant the conclusion that all bodies declared by the
Constitution as "independent" have exclusive disciplinary authority over all their respective officials
and employees. Unlike the Judiciary where such exclusivity is expressly provided for in the
Constitution,19 there is no reason to read such provision in the Ombudsman where the Constitution is
silent. On the contrary, the constitutional provision that non-impeachable officers and employees
"may be removed from office as provided by law" removes any doubt that Congress can determine
the mode of removal of non-impeachable officers and employees of "independent" bodies other than
the Judiciary. An "independent" body does not have exclusive disciplinary authority over its officials
and employees unless the Constitution expressly so provides, as in the case of the Judiciary.

There are other constitutional bodies declared "independent,"20 but disciplinary authority is statutorily
lodged somewhere else.21 Under the New Central Bank Act (Republic Act No. 7653), the President
also has the power to remove a member of the Monetary Board on specified grounds.22 There is
nothing anomalous in this mode of removal because the Constitution expressly authorizes the
legislature to provide for such mode of removal. This Court cannot enforce a speculative notion of
independence - that an "independent" body has exclusive disciplinary authority - for doing so would
be a species of judicial legislation or a disguised constitutional amendment.

III.

This Court has no business limiting the plenary power of Congress unless the Constitution expressly
so limits it. The fact that different constitutional bodies are treated differently under the Constitution
shows that independence is a broadly delineated norm. With this level of generality, the
constitutional meaning of independence is only that of independent decision-making that is free from
partisanship and political pressures. It does not even mean fiscal autonomy unless the Constitution
says so.23 Thus, it is generally left to Congress to particularize the meaning of independence, subject
only to specific constitutional limitations. Nothing in the Constitution tells us that an "independent"
body necessarily has exclusive disciplinary authority over its officials and employees.

A completely "independent" body is alien to our constitutional system. There is no office that is
insulated from a possible correction from another office. The executive, legislative and judicial
branches of government operate through the system of checks and balances. All independent
constitutional bodies are subject to review by the courts. A fiscally autonomous body is subject to
audit by the Commission on Audit, and Congress cannot be compelled to appropriate a bigger
budget than that of the previous fiscal year.24

Section 8(2) of the Ombudsman Act is consistent with our system of checks and balances. The
provision is a narrow form of delegation which empowers the President to remove only two officers
in the Office of the Ombudsman, i.e. the Deputy Ombudsman and the Special Prosecutor. The
proposition that an external disciplinary authority compromises the Ombudsman's independence
fails to recognize that the Constitution expressly authorizes Congress to determine the mode of
removal of all non-impeachable officers and employees. It also fails to recognize that under a system
of checks and balances, an external disciplinary authority is desirable and is often the norm.

In disciplinary cases, the 1987 Constitution empowers the Ombudsman to direct the proper
disciplinary authority "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."25 This is further implemented by the Ombudsman Act which provides that "at
its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary
authority for the institution of appropriate administrative proceedings against erring public officers or
employees, which shall be determined within the period prescribed in the civil service law."26

Clearly, the Ombudsman is not constitutionally empowered to act alone. Congress can even
authorize the Department of Justice or the Office of the President to investigate cases within the
jurisdiction of the Ombudsman. Similarly, the Ombudsman can investigate public officers and
employees who are under the disciplinary authority of heads of other bodies or agencies.27 The
cases cited in the ponencia, i.e. Hagad v. Gozo-Dadofe28 and Office of the Ombudsman v. Delijero,
Jr.29 - illustrate that concurrent jurisdiction does not impair the independence of the Ombudsman.
Duplication of functions may not at all times promote efficiency, but it is not proscribed by the
Constitution.

Accordingly, I vote to DENY the petition in G.R. No. 196232, and to GRANT in part the petition in
G.R. No. 196231, in accordance with the ponencia of Justice Estela M. Perlas-Bemabe.

ANTONIO T. CARPIO
Associate Justice

Footnotes

1
CONSTITUTIONS, Art. XI, Sec. 5: There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall
Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy
for the military establishment may likewise be appointed.

2
There are the bodies that the 1987 Constitution considers as "independent." See
CONSTITUTIONS, Art. XI-A, Sec. 1; Art. XII, Secs. 9 and 20: Art. XIII, Sec. 17.

3
See J. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (2002).

4
As amended and consolidated by the Committee on Accountability of Public Officers of the
1986 Constitutional Commission.

5
II RECORD, CONSTITUTIONAL COMMISSION 263 (26 July 1986).

6
Marcos v. Manglapus, 258 Phil. 479, 499 (1989); Vera v. Avelino, G.R. No. L-543, 31
August 1946, 77 Phil. 192; Ople v. Torres, G.R. No. 127685, 23 July 1998, 354 Phil. 948.

7
II RECORD, CONSTITUTIONAL COMMISSION 356-357 (28 July 1986).

8
CONSTITUTION, Art. XI, Sec. 13(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.

9
CONSTITUTION, Art. XI, Sec. 13(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. (Emphasis
supplied)10 See notes 8 and 9.

11
R.A. No. 6770, Sec. 21.

12
Valera v. Tuason, Jr., 80 Phil. 823, 827 (1948). See also Mactan-Cebu International Airport
Authority v. Urgello, G.R. No. 162288, 4 April 2007, 520 SCRA 515, 535, citing Civil Service
Commission v. Joson, Jr., G.R. No. 154674, 27 May 2004, 429 SCRA 773, 786.

13
Tañada v. Angara, 338 Phil. 546 (1997); Manila Prince Hotel v. Government Service
Insurance System, 335 Phil. 82 (1997); Kilosbayan, Inc. v. Morato, 316 Phil. 652 (1995).

14
Id.

15
CONSTITUTION, Art. XII, Secs. 9 and 20; Art. XIII, Sec. 17.

16
See CONSTITUTION, Art. IX-A, Sec. 3 (the salaries of the Chairman and the
Commissioners are fixed by law but shall not be decreased during their tenure), Sec. 4
(appointment of other officials and employees in accordance with law) and Sec. 8 (the
constitutional commissions may perform other functions as may be provided by law).

17
CONSTITUTION, Art. IX-A, Sec. 5.

18
CONSTITUTION, Art. IX-A, Sec. 6.

19
CONSTITUTION, Art. VIII, Sec. 6 ("The Supreme Court shall have administrative
supervision over all courts and the personnel thereof.") and Sec. 11 ("x x x The Supreme
Court en banc shall have the power to discipline judges of lower courts, or order their
dismissal by a vote of majority of the Members who actually took part in the deliberations on
the issues in the case and voted thereon.").

20
Supra, note 2.

21
Id.

22
R.A. No. 7653, Sec. 10. Removal. - The President may remove any member of the
Monetary Board for any of the following reasons:

(a) If the member is subsequently disqualified under the provisions of Section 8 of

this Act; or

(b) If he is physically or mentally incapacitated that he cannot properly discharge his

duties and responsibilities and such incapacity has lasted for more than six (6)
months; or

(c) If the member is guilty of acts or operations which are of fraudulent or illegal
character or which are manifestly opposed to the aims and interests of the Bangko
Sentral; or

(d) If the member no longer possesses the qualifications specified in Section 8 of this
Act.
See also III RECORDS, CONSTITUTIONAL COMMISSION 611 (22 August 1986):

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. Madam President, may I ask a question for clarification? The
section says, "The Congress shall establish an independent central monetary
authority." My question has reference to the word "independent." How is
independence of this authority supported by the Constitution?

In the case of the judiciary, the Members are independent because they have a fixed
term and they may not be removed except by impeachment or some very difficult
process. This applies to the different constitutional commissions. But in the case of
this central monetary authority which we call "independent", how is this
independence maintained?

MR. VILLEGAS. The thinking is: Congress, in establishing that independent central
monetary authority, should provide a fixed term. Actually that was contained in the
original Davide amendment but we thought of leaving it up to Congress to determine
that term- a fixed term of probably five years or seven years serving in the monetary
board.

MR. RODRIGO. Does this include that they may not be removed except by
impeachment by the Congress?

MR. VILLEGAS. Exactly.

MR. RODRIGO. Just like the members of the other constitutional commissions?

MR. VILLEGAS. Yes. That is why we say that they shall be subject to the same
disabilities or disqualifications as the members of the constitutional commissions.

MR. RODRIGO. Are we leaving that to Congress?

MR. VILLEGAS. That is right.

MR. RODRIGO: Thank you.

23
Commission on Human Rights Employees' Association v. Commission on Human Rights,
G.R. No. 155336, 21 July 2006, 496 SCRA 226.

24
See CONSTITUTION, Art. VIII, Sec. 3; Art. IX-A, Sec. 5; Art. XI, Sec. 14.

25
CONSTITUTION, Art. XI, Sec. 13, par. (3). Emphasis supplied.

26
R.A. No. 6770, Sec. 23(2).

27
The Administrative Code of 1987 (Executive Order No. 292) provides that the heads of
agencies are generally empowered to investigate and decide matters involving disciplinary
actions against officers and employees under their jurisdiction. ADMINISTRATIVE CODE,
BOOK V, Title I, Subtitle A, Chapter 7, Secs. 47, par. (2) and 48, par. (1).
 28
G.R. No. 108072, 12 December 1995, 251 SCRA 242.

29
G.R. No. 172635, 20 October 2010, 634 SCRA 135.

The Lawphil Project - Arellano Law Foundation

CONCURRING AND DISSENTING OPINION

BRION, J.:

The present case consists of two consolidated petitions, G.R. No. 196231 and G.R. No. 196232.

I concur with the ponencia's main conclusion that petitioner Emilio Gonzales III (in G.R. No. 196231,
referred to as Gonzales or petitioner Gonzales) is not guilty of the charges leveled against him. But
with due respect, I disagree with the conclusion that Section 8(2) of Republic Act (RA) No. 6770
(which empowers the President to remove a Deputy Ombudsman or a Special Prosecutor) is
constitutionally valid.

The petition of Wendell Barreras-Sulit (G.R. No. 196232, referred to as Sulit or petitioner Sulit)
commonly shares with G.R. No. 196231 the issue of the constitutionality discussed below, the
administrative proceedings against Sulit should be halted and nullified as she prays for in her
petition.

G.R. No. 196231 is a petition questioning the validity of the administrative proceedings conducted by
the Office of the President against Gonzales who was the Deputy Ombudsman for Military and Other
Law Enforcement Offices.

The action against him before the Office of the President consists of an administrative charge for
Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duty (under Section 22, Rule
XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 and other pertinent Civil
Service laws, rules and regulations), and of Misconduct in Office (under Section 3 of the Anti-Graft
and Corrupt Practices Act [RA No. 3019).1 The administrative case against Gonzales was
recommended by the Incident Investigation and Review Committee (IIRC) in connection with the
hijacking of a tourist bus resulting in the death of the hijacker and of some passengers; the hijacker
then accused Gonzales of illegal exactions and of delaying the disposition of his Ombudsman case.

On March 31, 2011, the Office of the President found2 Gonzales guilty of Gross Neglect of Duty and
Grave Misconduct constituting betrayal of public trust, and penalized him with dismissal from office.

In G.R. No. 196232, petitioner Sulit, a Special Prosecutor in the Office of the Ombudsman, seeks to
halt and nullify the ongoing administrative proceedings conducted by the Office of the President
against her. Sulit was charged with violating Section 3(e) of RA No. 3019 and for having committed
acts and/or omissions tantamount to culpable violations of the Constitution, and betrayal of public
trust.

In behalf of the Office of the Ombudsman, Sulit entered into a plea bargain with Major General
Carlos F. Garcia who had been charged with Plunder and Money Laundering. Because of the plea
bargain, Sulit was required to show cause why an administrative case should not be filed against
her. She raised in her Written Explanation of March 24, 2011 the impermissibility and impropriety of
administrative disciplinary proceedings against her because the Office of the President has no
jurisdiction to discipline and penalize her.3

The two petitions - G.R. No. 196231 and G.R. No. 196232 - share a common issue: whether the
President has the power to discipline or remove a Deputy Ombudsman or a Special Prosecutor in
the Office of the Ombudsman from office. While the ponencia resolves this issue in favor of the
President, it is my considered view that the power to discipline or remove an official of the
Office of the Ombudsman should be lodged only with the Ombudsman and not with the
Office of the President, in light of the independence the Constitution guarantees the Office of
the Ombudsman.

The Office of the Ombudsman is a very powerful government constitutional agency tasked to
enforce the accountability of public officers. Section 21 of The Ombudsman Act of 1989 (RA No.
6770) concretizes this constitutional mandate by providing that:

Section 21. Official 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. (Emphasis ours)

The Ombudsman's duty to protect the people from unjust, illegal and inefficient acts of all public
officials emanates from Section 12, Article XI of the Constitution. These broad powers include all
acts of malfeasance, misfeasance, and nonfeasance of all public officials, including Members of the
Cabinet and key Executive officers, during their tenure.

To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman
from the pressures and influence of officialdom and partisan politics4 and from fear of external
reprisal by making it an "independent" office. Section 5, Article XI of the Constitution expressed this
intent, as follows:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. (Emphasis ours)

It is in this light that the general authority of the Office of the President to discipline all officials and
employees the President has the authority to appoint,5 should be considered.

In more concrete terms, subjecting the officials of the Office of the Ombudsman to discipline and
removal by the President, whose own alter egos and officials in the Executive Department are
subject to the Ombudsman's disciplinary authority, cannot but seriously place at risk the
independence of the Ombudsman and her officials, and must consequently run counter to the
independence that the Constitution guarantees the Office of the Ombudsman. What is true for the
Ombudsman must be equally true, not only for her Deputies but for other lesser officials of that
Office who act as delegates and agents of the Ombudsman in the performance of her duties. The
Ombudsman can hardly be expected to place her complete trust in subordinate officials who are not
as independent as she is, if only because they are subject to pressures and controls external to her
Office. This need for complete trust is true in an ideal setting and truer still in a young democracy like
the Philippines where graft and corruption is still a major problem for the government. For these
reasons, Section 8(2) of RA No. 67706(providing that the President may remove a Deputy
Ombudsman) clearly runs against the constitutional intent and should, thus, be declared void.

Significantly, the possible unconstitutional effects of Section 8(2) of RA No. 6770 were not unknown
to the framers of this law. These possibilities were brought by then Senator Teofisto Guingona to the
framers' attention as early as the congressional deliberations:

Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan xxx be not by
the President but by the Ombudsman.

xxxx

Senator Guingona contended, however, that the Constitution provides for an independent Office of
the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan.7

Despite Senator Guingona's objections, Congress passed RA No. 6770 and the objected Section
8(2) into law.8While it may be claimed that the congressional intent is clear after the Guingona
objection was considered and rejected by Congress, such clarity and the overriding congressional
action are not enough to insulate the assailed provision from constitutional infirmity if one, in fact,
exists. This is particularly true if the infirmity relates to a core constitutional principle - the
independence of the Ombudsman - that belongs to the same classification as the constitutionally-
guaranteed independence that the Judiciary enjoys. To be sure, neither the Executive nor the
Legislative can create the power that Section 8(2) grants where the Constitution confers
none.9 When exercised authority is drawn from a vacuum, more so when the authority runs counter
to constitutional intents, this Court is obligated to intervene under the powers and duties granted and
imposed on it by Article VIII of the Constitution.10The alternative for the Court is to be remiss in the
performance of its own constitutional duties.

More compelling and more persuasive than the reason expressed in the congressional deliberations
in discerning constitutional intent should be the deliberations of the Constitutional Commission itself
on the independence of the Ombudsman. Commissioner Florenz Regalado of the Constitutional
Commission openly expressed his concerns on the matter, fearing that any form of presidential
control over the Office of the Ombudsman would diminish its independence:

In other words, Madam President, what actually spawned or caused the failure of the justices of the
Tanodbayan insofar as monitoring and fiscalizing the government offices are concerned was due to
two reasons: First, almost all their time was taken up by criminal cases; and second, since they were
under the Office of the President, their funds came from that office. I have a sneaking suspicion that
they were prevented from making administrative monitoring because of the sensitivity of the then
head of that office, because if the Tanodbayan would make the corresponding reports about failures,
malfunctions or omissions of the different ministries, then that would reflect upon the President who
wanted to claim the alleged confidence of the people.

xxxx

It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is
not necessarily so. If he is toothless, then let us give him a little more teeth by making him
independent of the Office of the President because it is now a constitutional creation, so that the
insidious tentacles of politics, as has always been our problem, even with PARGO, PCAPE and so
forth, will not deprive him of the opportunity to render service to Juan de la Cruz. x x x. There is
supposed to be created a constitutional office- constitutionalized to free it from those tentacles of
politics- and we give it more teeth and have the corresponding legislative provisions for its budget,
not a budget under the Office of the President.

xxxx

x x x. For that reason, Madam President, I support this committee report on a constitutionally created
Ombudsman and I further ask that to avoid having a toothless tiger, there should be further
provisions for statistical and logistical support.11 (Emphases ours.)

The intention of the Constitutional Commission to keep the Office of the Ombudsman independent
from the President could not have been made any clearer than when Commissioner Christian
Monsod vehemently rejected the recommendation of Commissioner Blas Ople who had suggested
to the Committee that the Office of the Ombudsman be placed under the Executive:

MR. OPLE. x x x

May I direct a question to the Committee? xxx Will the Committee consider later an amendment xxx,
by way of designating the office of the Ombudsman as a constitutional arm for good government,
efficiency of the public service and the integrity of the President of the Philippines, instead of
creating another agency in a kind of administrative limbo which would be accountable to no one on
the pretext that it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee- and I believe it still is- that it may not
contribute to the effectiveness of this office of the Ombudsman precisely because many of the
culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function of a special fiscal.

The whole purpose of the our proposal is precisely to separate those functions and to produce a
vehicle that will give true meaning to the concept of Ombudsman. Therefore, we regret that we
cannot accept the proposition.12

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive
power to remove and discipline members of the Office of the Ombudsman, or to exercise any power
over them, would result in an absurd situation wherein the Office of the Ombudsman is given the
duty to adjudicate on the integrity and competence of the very persons who can remove or suspend
its members. Equally relevant is the impression that would be given to the public if the rule were
otherwise. A complainant with a grievance against a high-ranking official of the Executive, who
appears to enjoy the President's favor, would be discouraged from approaching the Ombudsman
with his complaint; the complainant's impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman as champion of the people against
corruption and bureaucracy.

These views, to my mind, demolish the concern raised in Congress to justify Section 8(2) of RA No.
6770- i.e., that vesting the authority to remove the Tanodbayan on the Ombudsman would result in
mutual protection.13 This congressional concern, too, is a needless one as it is inconsistent with the
system of checks and balance that our legal structure establishes.
At the practical constitutional level, the Tanodbayan (now the Office of the Special Prosecutor)
cannot protect the Ombudsman who is an impeachable officer, as the power to remove the
Ombudsman rests with Congress as the representative of the people.14 On the other hand, should
the Ombudsman attempt to shield the Tanodbayan from answering for any violation, the matter may
be raised with the Supreme Court on appeal15 or by Special Civil Action for Certiorari,16 whichever
may be applicable, in addition to the impeachment proceedings to which the Ombudsman may be
subjected. For its part, the Supreme Court is a non-political independent body mandated by the
Constitution to settle judicial and quasi-judicial disputes, whose judges and employees are not
subject to the disciplinary authority of the Ombudsman and whose neutrality would be less
questionable. In these lights, the checks and balance principle that underlies the Constitution can be
appreciated to be fully operational.

I find it significant that the Office of the Ombudsman is not the only governmental body labeled as
"independent" in our Constitution. The list includes the Judiciary,17 the Constitutional Commissions
(Commission on Elections, Commission on Audit, and the Civil Service Commission),18 the
Commission on Human Rights,19 a central monetary authority,20 and, to a certain extent, the National
Economic Development Authority.21 These bodies, however, are granted various degrees of
"independence" and these variations must be clarified to fully understand the context and meaning
of the "independent" status conferred on the office of the Ombudsman.

The independence enjoyed by the Office of the Ombudsman, by the Constitutional Commissions,
and by the Judiciary shares certain characteristics - they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy.22

For most, if not for all of these "independent" bodies, the framers of the Constitution intended that
they be insulated from political pressure. As a checks and balance mechanism, the Constitution, the
Rules of Court, and their implementing laws provide measures to check on the "independence"
granted to the Constitutional Commissions and the Office of the Ombudsman; the Supreme Court,
as the final arbiter of all legal questions, may review the decisions of the Constitutional Commissions
and the Office of the Ombudsman, especially when there is grave abuse of discretion.23 Of course,
foisted over the Members of the Supreme Court is the power of impeachment that Congress has the
authority to initiate, and carry into its logical end a meritorious impeachment case.24 Such is the
symmetry that our Constitution provides for the harmonious balance of all its component and
"independent" parts.

In Bengzon v. Drilon,25 we ruled on the fiscal autonomy of the Judiciary, and ruled against the
interference that the President may bring. In doing so, we maintained that the independence, and
the flexibility of the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are
crucial to our legal system:

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence
and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only the express
mandate of the Constitution but especially as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our constitutional system is based.

As in the case of the Office of the Ombudsman, the constitutional deliberations explain the
Constitutional Commissions' need for independence.

In the deliberations for the 1973 Constitution, the delegates amended the 1935 Constitution by
providing for a constitutionally-created Civil Service Commission, instead of one created by law,
based on the precept that the effectivity of this body is dependent on its freedom from the tentacles
of politics:

DELEGATE GUNIGUNDO x x x

(b) because we believe that the Civil Service created by law has not been able to eradicate the ills
and evils envisioned by the framers of the 1935 Constitution; because we believe that the Civil
Service created by law is beholden to the creators of that law and is therefore not politics-free, not
graft-free and not corruption-free; because we believe that as long as the law is the reflection of the
will of the ruling class, the Civil Service that will be created and recreated by law will not serve the
interest of the people but only the personal interest of the few and the enhancement of family power,
advancement and prestige.26

The deliberations of the 1987 Constitution on the Commission on Audit, on the other hand,
highlighted the developments in the past Constitutions geared towards insulating the Commission on
Audit from political pressure:

MR. JAMIR. x x x

When the 1935 Constitution was enacted, the auditing office was constitutionalized because of the
increasing necessity of empowering the auditing office to withstand political pressure. Finding a
single Auditor to be quite insufficient to withstand political pressure, the 1973 Constitution
established the Commission consisting of three members- a chairman and two commissioners.27

In Brillantes, Jr. v. Yorac,28 we pointedly emphasized that the Constitutional Commissions, which
have been characterized under the Constitution as "independent," are not under the control of the
President, even if they discharge functions that are executive in nature. Faced with a temporary
presidential appointment in the Commission on Elections, this Court vigorously denied the President
the authority to interfere in these constitutional bodies:

The lack of a statutory rule covering the situation at bar is no justification for the President of the
Philippines to fill the void by extending the temporary designation in favor of the respondent. This is
still a government of laws and not of men. The problem allegedly sought to be corrected, if it existed
at all, did not call for presidential action. The situation could have been handled by the members of
the Commission on Elections themselves without the participation of the President, however well-
meaning.

xxxx

x x x. But while conceding her goodwill, we cannot sustain her act because it conflicts with the
Constitution.

The Commission on Human Rights, also created by the Constitution as an "independent"

office,29 enjoys lesser independence since it was not granted fiscal autonomy, in the manner fiscal
autonomy was granted to the offices above-discussed. The lack of fiscal autonomy notwithstanding,
the framers of the 1987 Constitution clearly expressed their desire to keep the Commission
independent from the executive branch and other political leaders:

MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him
our concept, he can advise us on how to reconcile his position with ours. The position of the
committee is that we need a body that would be able to work and cooperate with the executive
because the Commissioner is right. Many of the services needed by this commission would need not
only the cooperation of the executive branch of the government but also of the judicial branch of
government. This is going to be a permanent constitutional commission over time. We also want a
commission to function even under the worst circumstance when the executive may not be very
cooperative. However, the question in our mind is: Can it still function during that time? Hence, we
are willing to accept suggestions from Commissioner Rodrigo on how to reconcile this. We realize
the need for coordination and cooperation. We also would like to build in some safeguards that it will
not be rendered useless by an uncooperative executive.

xxxx

MR. GARCIA. Thank you very much, Madame President.

Before we address the procedural question which Commissioner Rodrigo requested, I would like to
touch on a very important question which I think is at the very heart of what we are trying to propose-
the independence of this Commission on Human Rights. xxx

When I was working as a researcher for Amnesty International, one of my areas of concern was
Latin America. I headed a mission to Colombia in 1980. I remember the conversation with President
Julio Cesar Turbay Ayala and he told me that in Colombia, there were no political prisoners. This is a
very common experience when one goes to governments to investigate human rights. From there,
we proceeded to the Procuraduria General to the Attorney-General, to the Ministry of Justice, to the
Ministry of Defense, and normally the answers that one will get are: "There are no political prisoners
in our country"; "Torture is not committed in this country." Very often, when international
commissions or organizations on human rights go to a country, the most credible organizations are
independent human rights bodies. Very often these are private organizations, many of which are
prosecuted, such as those we find in many countries in Latin America. In fact, what we are
proposing is an independent body on human rights, which would provide governments with
credibility precisely because it is independent of the present administration. Whatever it says on the
human rights situation will be credible because it is not subject to pressure or control from the
present political leadership.

Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in
opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if
we have a Commission on Human Rights that would investigate and make sure that the rights of
each one is protected, then we shall have a body that could stand up to any power, to defend the
rights of individuals against arrest, unfair trial, and so on.30 (Emphases ours.)

Similarly, the Constitution grants Congress the authority to establish an independent central
monetary authority.31Under these terms, this office is not constitutionally-created nor does it possess
fiscal autonomy. When asked what "independence" means in this provision, Commissioner Bernardo
Villegas again reiterated the intention of various framers for it to be independent of the executive
branch:

MR. VILLEGAS. No, this is a formula intended to prevent what happened in the last regime when the
fiscal authorities sided with the executive branch and were systematically in control of monetary
policy. This can lead to disastrous consequences. When the fiscal and the monetary authorities of a
specific economy are combined, then there can be a lot of irresponsibility. So, this word
"independent" refers to the executive branch.32

The National Economic Development Authority, nominally designated as "independent," differs from
the other similarly-described agencies because the constitutional provision that provides for its
creation immediately puts it under the control of the executive.33 This differing shade of
"independence" is supported by the statements made during the constitutional deliberations:

MR. MONSOD. I believe that the word "independent" here, as we answered Commissioner Azcuna,
was meant to be independent of the legislature because the NEDA under the present law is under
the Office of the President.

MR. COLAYCO. Yes. In other words, the members of that agency are appointed by the President?

MR. VILLEGAS. That is right.

MR. MONSOD. Yes.

MR. VILLEGAS. The President heads the NEDA.34

Commissioner Monsod continues by explaining that they did not constitutionalize the National
Economic Development Authority, and, in accordance with the second paragraph of Section 9,
Article XII of the 1987 Constitution, even left to Congress the discretion to abolish the office:

MR. MONSOD. During the Committee hearings, there were proposals to change the composition of
the governing body not only of the Monetary Board but also of the NEDA. That is why if we notice in
this Article, we did not constitutionalize the NEDA anymore unlike in the 1973 Constitution. We are
leaving it up to Congress to determine whether or not the NEDA is needed later on. The idea of the
Committee is that if we are going for less government and more private sector initiative, later on it
may not be necessary to have a planning agency. Thus, it may not be necessary to constitutionalize
a planning agency anymore.

So this provision leaves room for the legislature not only to revise the composition of the governing
body, but also to remove the NEDA once it is no longer needed in its judgment.35

These deliberative considerations make it abundantly clear that with the exception of the National
Economic Development Authority, the independent constitutional bodies were consistently intended
by the framers to beindependent from executive control or supervision or any form of political
influence.

This perspective abundantly clarifies that the cases cited in the ponencia - Hon. Hagad v. Hon.
Gozodadole36 and Office of the Ombudsman v. Delijero, Jr.37 - are not in point. These cases refer to
the disciplinary authority of the Executive over a public school teacher and a local elective official.
Neither of these officials belongs to independent constitutional bodies whose actions should not
even be tainted with any appearance of political influence.

In my view, the closest and most appropriate case to cite as exemplar of independence from
executive control is Bautista v. Senator Salonga,38 where this Court categorically stated, with respect
to the independent Commission on Human Rights, that the tenure of its Commissioners could not be
placed under the discretionary power of the President:

Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by
the Constitution to be independent - as the Commission on Human Rights - and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be declared
unconstitutional.39

Also in point as another "independence" case is Atty. Macalintal v. Comelec,40 this time involving the
Commission on Elections, which gave the Court the opportunity to consider even the mere review of
the rules of the Commission on Elections by Congress a "trampling" of the constitutional mandate of
independence of these bodies. Obviously, the mere review of rules places considerably less
pressure on these bodies than the Executive's power to discipline and remove key officials of the
Office of the Ombudsman. The caution of, and the strong words used by, this Court in protecting the
Commission on Elections' independence should - in addition to those expressed before the
Constitutional Commissions and in Congress in the course of framing RA No. 6770 - speak for
themselves as reasons to invalidate the more pervasive authority granted by Section 8(2) of RA No.
6770.

Thus, in the case of independent constitutional bodies, with the exception of the National Economic
Development Authority, the principle that the President should be allowed to remove those whom he
is empowered to appoint (because of the implied power to dismiss those he is empowered to
appoint41) should find no application. Note that the withholding of the power to remove is not a
stranger to the Philippine constitutional structure.

For example, while the President is empowered to appoint the Members of the Supreme Court and
the judges of the lower courts,42 he cannot remove any of them; the Members of the Supreme Court
can be removed only by impeachment and the lower court judges can be removed only by the
Members of the Supreme Court en banc. This is one of the modes by which the independence of the
Judiciary is ensured and is an express edge of the Judiciary over the other "independent"
constitutional bodies.

Similarly, the President can appoint Chairmen and Commissioners of the Constitutional
Commissions, and the Ombudsman and her Deputies,43 but the Constitution categorically provides
that the Chairmen of the Constitutional Commissions and the Ombudsman can only be removed by
impeachment.44 The absence of a constitutional provision providing for the removal of the
Commissioners and Deputy Ombudsmen does not mean that Congress can empower the President
to discipline or remove them in violation of the independence that the Constitution textually and
expressly provides.45 As members of independent constitutional bodies, they should be similarly
treated as lower court judges, subject to discipline only by the head of their respective offices and
subject to the general power of the Ombudsman to dismiss officials and employees within the
government for cause. No reason exists to treat them differently.

While I agree with Justice Carpio's opinion that the Constitution empowered Congress to determine
the manner and causes for the removal of non-impeachable officers, we cannot simply construe
Section 2, Article XI of the Constitution to be a blanket authority for Congress to empower the
President to remove all other public officers and employees, including those under the independent
constitutional bodies. When the Constitution states that Congress may provide for the removal of
public officers and employees by law, it does not mean that the law can violate the provisions and
principles laid out in the Constitution. The provision reads:

The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. (emphasis and underscoring ours)
The deliberations of the Constitutional Commissions, as quoted by Justice Carpio, explain an
important aspect of the second sentence of Section 2, Article XI of the Constitution- that it was not
the intent to widen the discretion of Congress in providing for the removal of a public officer; the
intent was to limit its powers. The second sentence of Section 2, Article XI was provided to limit the
public officers who can only be removed by impeachment. This limitation is one made necessary by
past experiences. In an earlier law, Presidential Decree No. 1606, Congress provided, by law, that
justices of the Sandiganbayan (who are not included in the enumeration) may only be removed by
impeachment. Commissioner Regalado insisted on adding the second sentence of Section 2, Article
XI of the Constitution to prevent Congress from extending the more stringent rule of "removal only by
impeachment" to favored public officers.46

Ultimately, the question now before this Court goes back to whether the Constitution intended to
allow political entities, such as the Executive, to discipline public officers and employees of
independent constitutional bodies. If this is the intent, then Congress cannot have the authority to
place the power to remove officers of these "independent constitutional bodies" under executive
disciplinary authority unless otherwise expressly authorized by the Constitution itself. I firmly take
this position because the drafters repeatedly and painstakingly drafted the constitutional provisions
on the independent constitutional bodies to separate them from executive control. Even after the
other delegates made it clear that the easier path would be to place these bodies under the control
of the President, the majority nevertheless voted against these moves and emphatically expressed
its refusal to have these offices be made in any way under the disciplinary authority of the Executive.

This constitutional intent rendered it necessary for the Constitution to provide the instances when
executive interference may be allowed. In the case of the National Economic Development Authority,
the Constitution explicitly provided that the President may exert control over this body. The
Constitution was also explicit when it empowered the President to appoint the officers of the other
"independent" bodies, and even then, this power was qualified: (1) in the cases of the Constitutional
Commissions, by giving the chairmen and the members staggered terms of seven years to lessen
the opportunity of the same President to appoint the majority of the body;47 and

(2) in the case of the Ombudsman and his Deputies, by limiting the President's choice from a list
prepared by the Judicial and Bar Council.48

Thus, we cannot maintain a light and cavalier attitude in our constitutional interpretation and merely
say that the "independence" of the constitutional bodies is whatever Congress would define it at any
given time. In the cases I have cited - Bautista v. Senator Salonga,49 Atty. Macalintal v.
Comelec,50 and Brillantes, Jr. v. Yorac51 - this Court did not merely leave it to the Legislature or the
Executive to freely interpret what "independence" means. We recognized in the term a meaning fully
in accord with the intent of the Constitution.

This intent was the same guiding light that drove this Court to rule that the President cannot
determine the tenure of the Commission on Human Rights Chairman and Members; that Congress
cannot enact a law that empowers it to review the rules of the Commission on Elections; and that the
President cannot even make interim appointments in the Commission on Elections.

After halting these lesser infractions based on the constitutional concept of "independence," it would
be strange - in fact, it would be inconsistent and illogical for us - to rule at this point that Congress
can actually allow the President to exercise the power of removal that can produce a chilling effect in
the performance of the duties of a Special Prosecutor or of the Deputy Ombudsman.

I draw attention to the fact that Sections 9, 10, 11 and 12, Article XI of the Constitution do not only
refer to the Ombudsman, but also to the Ombudsman's Deputies. Section 9 provides for their
appointment process. While the President can appoint them, the appointment should be made from
the nominations of the Judicial and Bar Council and the appointments do not require confirmation.
Section 10 gives the Ombudsman and the Deputies the same rank and salary as the Chairmen and
Members of the Constitutional Commission. The salary may not be diminished during their term.
Section 11 disqualifies them from reappointment and participation in the immediately succeeding
elections, in order to insulate them further from politics. Section 12 designates the Ombudsman and
the Deputies as "protectors of the people" and directs them to act promptly on all complaints against
public officials or employees.1âw phi 1

Under this structure providing for terms and conditions fully supportive of "independence," it makes
no sense to insulate their appointments and their salaries from politics, but not their tenure. One
cannot simply argue that the President's power to discipline them is limited to specified grounds,
since the mere filing of a case against them can result in their suspension and can interrupt the
performance of their functions, in violation of Section 12, Article XI of the Constitution. With only one
term allowed under Section 11, a Deputy Ombudsman or Special Prosecutor removable by the
President can be reduced to the very same ineffective Office of the Ombudsman that the framers
had foreseen and carefully tried to avoid by making these offices independent constitutional bodies.

At the more practical level, we cannot simply turn a blind eye or forget that the work of the Office of
the Ombudsman, like the Constitutional Commissions, can place the officers of the Executive branch
and their superior in a bad light. We cannot insist that the Ombudsman and his Deputies look into all
complaints, even against those against Executive officials, and thereafter empower the President to
stifle the effectiveness of the Ombudsman and his or her Deputies through the grant of disciplinary
authority and the power of removal over these officers. Common and past experiences tell us that
the President is only human and, like any other, can be displeased. At the very least, granting the
President the power of removal can be counterproductive, especially when other less political
officers, such as the Ombudsman and the Judiciary, already have the jurisdiction to resolve
administrative cases against public officers under the Office of the Ombudsman.

Given the support of the Constitution, of the Records of the Constitutional Commission, and of
previously established jurisprudence, we cannot uphold the validity of Section 8(2) of RA No. 6770
merely because a similar constitutionally-unsupported provision exists under RA No. 7653. Under
our legal system, statutes give way to the Constitution, to the intent of its framers and to the
corresponding interpretations made by the Court. It is not, and should not be, the other way around.

I join the ponente in declaring that the Deputy Ombudsmen and Special Prosecutors should not
escape accountability for their wrongdoing or inefficiency. I differ only in allowing the President, an
elective official whose position is primarily political, to discipline or remove members of independent
constitutional bodies such as the Office of the Ombudsman. Thus, the administrative proceedings
conducted by the Office of the President against petitioner Gonzales should be voided and those
against petitioner Sulit discontinued.

Lastly, while I find the proceedings before the Office of the President constitutionally infirm, nothing
in this opinion should prevent the Ombudsman from conducting the proper investigations and, when
called for, from filing the proper administrative proceedings against petitioners Gonzales and Sulit. In
the case of Gonzales, further investigation may be made by the Ombudsman, but only for aspects of
his case not otherwise covered by the Court's Decision.

ARTURO D. BRION
Associate Justice
Footnotes

1
Rollo, Vol. 1, p. 322.

2
Id. at 72-86.

3
Rollo, Vol. 2, p. 8.

4
See Department of Justice v. Hon. Liwag, 491 Phil. 270, 283 (2005); and Deloso v.
Domingo, G.R. No. 90591, November 21, 1990, 191 SCRA 545, 550-551.

5
Atty. Aguirre, Jr. v. De Castro, 378 Phil. 714, 726 (1999); Hon. Bagatsing v. Hon. Melencio-
Herrera, 160 Phil. 449, 458 (1975); and Lacson v. Romero, 84 Phil. 740, 749 (1949).

6
Section 8. Removal; Filling of Vacancy.-

xxxx

(2) A Deputy or the Special Prosecutor may be removed from office by the President
for any of the grounds provided for the removal of the Ombudsman, and after due
process.

7
Ponencia, p. 22.

8
Id. at 22-23.

9
Bautista v. Senator Salonga, 254 Phil. 156, 179 (1989).

10
CONSTITUTION, Article VIII, Sections 1 and 5(2).

11
Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294.

12
Id. at 294.

13
Ponencia, p. 22.

14
CONSTITUTION, Article XI, Section 2.

15
RA No. 6770, Section 27.

16
RULES OF COURT, Rule 65.

17
CONSTITUTION, Article VIII, Sections 1, 2, 3, 6, 10 and 11.

18
Id., Article IX(A), Section 1.

19
Id., Article XIII, Section 17(1).
20
Id., Article XII, Section 20.

21
Ibid.

22
Id., Article VIII, Section 3; Article IX(A), Section 5; and Article XI, Section 14.

23
Id., Article VIII, Section 5.

24
Id., Article XI, Section 2.

25
G.R. No. 103524 and A.M. No. 91-8-225-CA, April 15, 1992, 208 SCRA 133, 150.

26
Speech, Session of February 18, 1972, as cited in "The 1987 Constitution of the Republic
of the Philippines: A Commentary" by Joaquin Bernas, 2003 ed., p. 1009.

27
Record of the Constitutional Commission, Vol. 1, July 15, 1986, pp. 532-533.

28
G.R. No. 93867, December 18, 1990, 192 SCRA 358, 361.

29
Section 17(1), Article XIII of the 1987 Constitution reads:

Section 17. (1) There is hereby created an independent office called the Commission
on Human Rights.

30
Records of the Constitutional Commission, Vol. 3, August 27, 1986, pp. 748-749.

31
Section 20, Article XII of the 1987 Constitution reads:

Section 20. The Congress shall establish an independent central monetary authority,
the members of whose governing board must be natural-born Filipino citizens, of
known probity, integrity, and patriotism, the majority of whom shall come from the
private sector.

32
Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 268.

33
Section 9, Article 12 of the 1987 Constitution reads:

Section 9. The Congress may establish an independent economic and planning

agency headed by the President, which shall, after consultations with the appropriate
public agencies, various private sectors, and local government units, recommend to
Congress, and implement continuing integrated and coordinated programs and
policies for national development.

Until Congress provides otherwise, the National Economic and Development

Authority shall function as the independent planning agency of the government.

34
Record of the Constitutional Commission, Vol. 3, August 13, 1986, p. 263.

35
Id. at 263-264.
36
321 Phil. 604 (1995).

37
G.R. No. 172635, October 20, 2010, 634 SCRA 135.

38
Supra note 9.

39
Id. at 183-184.

40
453 Phil. 586, 658-659 (2003).

41
Supra note 5. Section 17, Article VII, and Section 4, Article X of the Constitution likewise
provide that:

Section 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.

Section 4. The President of the Philippines shall exercise general supervision over
local governments.

42
CONSTITUTION, Article VIII, Section 9.

43
Id., Article IX(B), Section 1(2); Article IX(C), Section 1(2); Article IX(D), Section 1(2); and
Article XI, Section 9.

44
Id., Article XI, Section 2.

45
Id., Article IX(A), Section 1 and Article XI, Section 5 read:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit.

Section 5. There is hereby created the independent Office of the Ombudsman,

composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and
at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.

46
Record of the Constitutional Commission, Vol. 2, July 28, 1986, p. 356 reads:

MR. REGALADO. xxx The reason for the amendment is this: While Section 2
enumerates the impeachable officers, there is nothing that will prevent the legislature
as it stands now from providing also that other officers not enumerated therein shall
also be removable only by impeachment, and that has already happened.

Under Section 1 of P.D. No,, 1606, the Sandiganbayan Decree, justices of the
Sandiganbayan may be removed only by impeachment, unlike their counterparts in
the then Court of Appeals. They are, therefore, a privileged class xxx

xxxx
 MR. REGALADO. xxx But the proposed amendment with not prevent the legislature
from subsequently repealing or amending that portion of the law PD No. 1606. Also,
it will prevent the legislature from providing for favored public officials as not
removable except by impeachment.

47
CONSTITUTION, Article IX-B, C, and D, Section 1(2).

48
Id., Article XI, Section 9.

49
Supra note 9.

50
Supra note 39.

51
Supra note 27.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

ABAD, J.:

This case is not too complicated. Section 8(2) of Republic Act (R.A.) 6770 gave the Office of the
President (OP) the power to investigate and remove from office the Deputies Ombudsman and the
Special Prosecutor who work 9irectly under the supervision and control of the Ombudsman. Using
this power, the OP investigated and found petitioner Emilio Gonzales III, Deputy I Ombudsman . for
the Military and Other Law Enforcement Offices, guilty of gross neglect in handling the pending case
against a police officer who subsequently hijacked a tourist bus. Using the same power, the OP
initiated a similar investigation of a case against petitioner Wendell Barreras-Sulit, the Special
Prosecutor, for alleged corruption, she having allowed her I office to enter into a plea-bargaining
agreement with Major General Carlos F. Garcia who had been charged with plunder.

Gonzales and Sulit filed separate petitions, the first in G.R. 196231 and the second in G.R. 196232.
Gonzales assails the correctness of the OP decision that dismissed him from the service. Both
challenges the constitutionality of Section 8(2) of R.A. 6770 which gave the President the power to
investigate and remove them.

The ponencia would have the Court uphold the constitutionality of Section 8(2 , R.A. 6770 that
empowers the President to investigate and remove Deputy Ombudsman Gonzales and Special
Prosecutor Sulit from office. It argues that, although the Constitution expressly provides for the
removal of (e Ombudsman himself, which is by impeachment, it fails to provide a procedure for the
removal from office of a Deputy Ombudsman or Special Prosecutor. By enacting Section 8(2) of R.A.
6770, Congress simply filled in a void that the Constitution itself authorizes.

The ponencia relies on Section 2, Article XI of the Constitution for support:

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of
the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment
for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust. All other public officers and employees may be
removed from office as provided by law, but not by impeachment. (Emphasis ours)

The removal from office of a Deputy Ombudsman or a Special Prosecutor, says the ponencia, falls
in the category of public officers and employees that "may be removed from office as provided by
law."

True enough, the above Section 2 above provides that only the President, the Vice-President, the
Members of the Supreme Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed by impeachment and that other public officers and employees may be
removed by law. But this cannot literally be taken to mean that Congress may authorize the
President to investigate and remove all non-impeachable public officers and employees.

Surely, Congress may not authorize the President to exercise this power against those that the
Constitution expressly or implicitly shields from his influence or intervention. For instance, Congress
cannot authorize the President to remove lower court judges, although they are not subject to
impeachment, since such authority is reserved by the Constitution to the Supreme Court.1 Further,
as the Court held in Bautista v. Salonga,2 although the Chairman and Members of the Commission
on Human Rights are not impeachable public officials, their terms cannot be made to depend on the
pleasure of the President since the Constitution perceives them as exercising functions independent
of him.

Actually, there was no existing "void" in the matter of the removal of the Deputy Ombudsman and the
Special Prosecutor when Congress enacted R.A. 6770. Administrative Code of 1987, then in force,
already vested in heads of offices, including the Ombudsman, the power to investigate and take
disciplinary action against all officers and employees under him, the Deputy Ombudsman and the
Special Prosecutor included.3

In subsequently enacting R.A. 6770, Congress in effect removed such power of investigation and
removal, insofar as the Deputy Ombudsman and the Special Prosecutor were concerned, from the
Ombudsman and transferred the same to the President. As will shortly be shown below, such
wresting of power from the Ombudsman is an appalling blow to his constitutionally mandated
independence from the influence and threats of the other departments and agencies of government.

Section 5, Article XI of the 1987 Constitution provides:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy, and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be
appointed. (Emphasis supplied)

The Constitution has reasons for making the Office of the Ombudsman "independent." Its primordial
duty is to investigate and discipline all elective and appointive government officials.4 Specifically,
Section 13, Article XI of the Constitution vests in that Office the absolute power to investigate any
malfeasance, misfeasance, or non-feasance of public officers or employees. This function places it a
notch higher than other grievance-handling, investigating bodies. With the exception of those who
are removable only by impeachment, the Office of the Ombudsman can investigate and take action
against any appointive or elected official for corruption in office, be they Congressmen, Senators,
Department Secretaries, Governors, Mayors, or Barangay Captains.
Thus, the Office of the Ombudsman needs to be insulated from the pressures, interventions, or
vindictive acts of partisan politics.5 The Court has itself refrained from interfering with the Office of
the Ombudsman's exercise of its powers. It is not the Court but the Ombudsman who is the
champion of the people and the preserver of the integrity of public service.6 The Office of the
Ombudsman, which includes the Deputy Ombudsman and the Special Prosecutor, cannot be
beholden to or fearful of any one, the President included.7

The power to impeach is a function of check and balance under the Constitution. But the power to
remove "public officers and employees" from office, in the realm of administrative law, is a function of
supervision, if not control. Keeping the Deputies in the Office of the Ombudsman and the Special
Prosecutor independent as the Constitution commands and subjecting them to the President's
control or supervision are incompatible ideas.

To say that the Deputy Ombudsman and the Special Prosecutor will remain independent of the
President notwithstanding that he can investigate and remove them from office at any time is the
equivalent of saying that monkeys grow out of trees. If there is any one that the holder of public
office fears, it is that person who has the power to remove him.

If the Court were to uphold the Constitutionality of Section 8(2) of R.A. 6770, then the Deputy
Ombudsman and the Special Prosecutor will be able to openly defy the orders of the Ombudsman
and disregard his policies without fear of disciplinary sanction from him. The law makes them subject
to investiga4on and removal only by the President. It is him they have to obey and will obey. Surely,
this is not what the Constitution contemplates in an "independent" Office of the Ombudsman.

The present cases are precisely in point. The Ombudsman did not herself appear to regard
Gonzales and Sulit's actuations in the subject matters of the cases against them worthy of
disciplinary action. But, given that the Secretary of Justice, an alter ego of the President, took an
opposite view, the President deigned to investigate them. In effect, the President is able to substitute
his judgment for that of the Ombudsman in a matter concerning function of the latter's office. This
gives the President a measure of control over the Ombudsman's work.

From here on, if the Court chooses to uphold the constitutionality of Section 8(2 of R.A. 6770, the
Deputy Ombudsman and the Special Prosecutor should be consulting the Office of the President or
the Secretary of Justice before they act in any case in which the latter has an interest. This is the
ludicrous and unpalatable situation that the framers of the Constitution envisaged and sought to
avoid when they granted the Office of the Ombudsman independence from others who wield
governmental powers.8

I, therefore, vote to grant the petitions, declare Section 8(2) of Republic Act 6770 that empowers the
President to remove the Deputy Ombudsman and the Special Prosecutor unconstitutional and void,
annul the decision of he Office of the President against Deputy Ombudsman Emilio Gonzales III
dated March 31, 2011, and permanently enjoin that Office from further proceeding with the
administrative case against Special Prosecutor Wendell Barreras-Sulit.

ROBERTO A. ABAD
Associate Justice

Footnotes
 1
Section 11, Article VIII of the 1987 Constitution -

"The Members of the Supreme Court and judges of lower courts shall hold office
during good behavior until they reach the age of seventy years or become
incapacitated to discharge the duties of their office. The Supreme Court en banc
shall have the power to discipline judges of lower courts, or order their dismissal by a
vote of a majority of the Members who actually took part in the deliberations on the
issues in the case and voted thereon." (Emphasis ours)

2
254 Phil. 156, 183-184 (1989).

3
Sec. 47, par. (2), Chapter 6, Subtitle A, Title IX.

4
The Ombudsman Act of 1989, Section 21.

5
Department of Justice v. Liwag, 491 Phil. 270, 283 (2005).

6
Dimayuga v. Office of the Ombudsman, 528 Phil. 42, 48 (2006).

7
Id.

8
Section 12, Article XI of the 1987 Constitution.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 196231 January 28, 2014

EMILIO A. GONZALES III, Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED
BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, AND ATTY. CARLITO D. CATAYONG, Respondents.

x-----------------------x

G.R. No. 196232

WENDELL BARRERAS-SULIT Petitioner,

vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF
THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D.
MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF
MALACANANG LEGAL AFFAIRS, Respondents.

CONCURRING AND DISSENTING OPINION

PERLAS-BERNABE, J.:

I concur with the ponencia in finding the Decision dated March 31, 2011 of the Office of the
President of the Philippines (OP) to be patently erroneous considering that the acts therein attributed
to petitioner Emilio A. Gonzales III (Gonzales), in his capacity as Deputy Ombudsman, do not
constitute betrayal of public trust. In the Court's Decision dated September 4, 2012 in the main,1 it
was explained that the phrase "betrayal of public trust" refers to acts which are just short of being
criminal but constitute gross faithlessness against public trust, tyrannical abuse of power,
inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers. In other
words, acts that should constitute betrayal of public trust as to warrant removal from office may be
less than criminal but must be attended by bad faith and of such gravity and seriousness as the
other grounds for impeachrnent.2 The OP, however, dismissed Gonzales based on acts which, as
thoroughly detailed and discussed in the ponencia, do not fit the foregoing legal description.
Accordingly, its (OP) decision was tainted with patent error.

Nevertheless, since the majority voted to declare the jurisdictional basis for the OP's authority to
discipline the Deputy Ombudsmen under Section 8(2)3 of Republic Act No. (RA) 67704 as
unconstitutional, the fallo of the ponencia states that any further ruling on the dismissal of Gonzales
is rendered unnecessary, viz.:5

WHEREFORE, premises considered, the Court resolves to declare Section 8(2)

UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of Deputy
Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the power of the
Ombudsman to conduct an administrative investigation, if warranted, into the possible administrative
liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and
resgulations.

SO ORDERED.

I dissent.

To my mind, Section 8(2) of RA 6770, which confers the OP with jurisdiction to discipline not only the
Special Prosecutor but also the Deputy Ombudsmen, is wholly constitutional. To this end, I join the
majority in upholding the provision’s constitutionality insofar as the Special Prosecutor is concerned,
but register my dissent against declaring the provision unconstitutional insofar as the Deputy
Ombudsmen are concerned.6 The reasons therefor are explained in the ensuing discussion. 1âwphi 1

In dealing with constitutional challenges, one must be cognizant of the rule that every law is
presumed constitutional and therefore should not be stricken down unless its provisions clearly and
unequivocally, and not merely doubtfully, breach the Constitution.7 It is well-established that this
presumption of constitutionality can be overcome only by the clearest showing that there was indeed
an infraction of the Constitution, and only when such a conclusion is reached by the required
majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged
act must be struck down.8

In Victoriano v. Elizalde Rope Workers’ Union,9 the judicious instruction is that the "challenger must
negate all possible bases" and the adjudicating tribunal must not concern itself with the "wisdom,
justice, policy, or expediency of a statute"; "if any reasonable basis may be conceived which
supports the statute, it will be upheld":10

All presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a reasonable doubt, that a law may work hardship
does not render it unconstitutional; that if any reasonable basis may be conceived which supports
the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are
not concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal
interpretation of the constitution in favor of the constitutionality of legislation should be adopted.
(Emphasis supplied)

Similarly, as held in Salvador v. Mapa,11 it was held that an "arguable implication" is not enough to
strike down the statute subject of constitutional scrutiny; thus, the guiding notion is that "to doubt is
to sustain":12

The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful or arguable implication; a law shall not be
declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt. The
presumption is always in favor of constitutionality. To doubt is to sustain. x x x. (Emphases supplied)

Applying this framework, Section 8(2) of RA 6770, both with respect to the OP’s disciplinary authority
ver the Special Prosecutor and the Deputy Ombudsmen, should be upheld in its entirety since it has
not been shown that said provision "clearly and unequivocally" offends any constitutional principle.
By constitutional design, disciplinary authority over non-impeachable officers, such as the Special
Prosecutor and Deputy Ombudsmen, was left to be determined by future legislation. This much is
clear from the text of the Constitution. Section 2, Article XI of the 1987 Constitution explicitly
provides that non-impeachable officers may be removed from office as may be provided by law:

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of
the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment
for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust. All other public officers and employees may be
removed from office as provided by law, but not by impeachment. (Emphasis and underscoring
supplied)

While Section 5, Article XI of the 1987 Constitution "created the independent Office of the
Ombudsman" – the provision which is the legal anchor of the majority’s position on this matter – the
Constitution neither defines what this principle of Ombudsman independence means nor prohibits
the office’s subjection to an external disciplining authority. Meanwhile, what is discoverable from the
deliberations of the Constitutional Commission on Article XI, particularly those which are quoted in
the ponencia,13 is that the Office of the Ombudsman was merely intended to be a separate office
from the Executive. This idea of organizational separation was meant to obviate the Executive
Department from exercising the encompassing powers of control and supervision over the Office of
the Ombudsman. It is only in this regard that the Office of the Ombudsman was deemed by the
Framers as independent.

To be sure, the power of control is the power of an officer to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of the
former for that of the latter. An officer in control lays down the rules in the doing of an act. If they are
not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may
even decide to do it himself. On the other hand, the power of supervision means "overseeing or the
authority of an officer to see to it that the subordinate officers perform their duties." If the subordinate
officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by
law to make them perform their duties. Essentially, the power of supervision means no more than
the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law.
The supervisor or superintendent merely sees to it that the rules are followed, but he does not lay
down the rules, nor does he have discretion to modify or replace them.14 By virtue of these
definitions, it is easy to envision how the Office of the Ombudsman’s functions would be unduly
hampered if it was to be subjected to executive control and supervision: with control, the Office of
the Ombudsman’s actions could be altered, modified or substituted by that of the President, and with
supervision, the office would operate under constant scrutiny of a separate but superior authority.
With this in mind, the Office of the Ombudsman’s independence should only be construed in the
context of organizational separation which does not, as it should not, obviate the possibility of having
an external disciplining authority over some of its officials pursuant to the checks and balances
principle.

Verily, the principle of checks and balances is not a general apothegm for total insulation but rather
of functional interrelation. It is clear that no one office of government works in absolute autonomy. To
determine the gradations and contours of institutional independence, one must look into the blueprint
of the Constitution which embodies the will and wisdom of the people. This is precisely what Section
2, Article XI of the 1987 Constitution states: non-impeachable officers, such as the Special
Prosecutor and the Deputy Ombudsmen, may be removed from office as may be provided by law.
Indeed, this provision coupled with the Framers’ silence on the meaning of Ombudsman
independence should carve out space for Congress to define, by its plenary legislative power acting
as representatives of the people, the parameters of discipline over these so-called non-impeachable
officers, including, among others, the Special Prosecutor and the Deputy Ombudsmen.

In any event, without a prohibition that may be clearly and unequivocally ascertained from the text
and deliberations of the Constitution against the disciplinary authority provided under Section 8(2) of
RA 6770, the overriding approach should operate - to doubt is to sustain; all doubts are to be
construed in favor of constitutionality.

Accordingly, I vote to uphold the constitutionality of Section 8(2) of RA 6770 in its entirety.

ESTELA M. PERLAS-BERNABE
Associate Justice

Footnotes

1
Gonzales III v. OP, G.R. Nos. 196231and196232, September4, 2012, 679 SCRA 614.

2
Id. at 664-665.

3
Section 8(2) of RA 6770, otherwise known as the "Ombudsman Act," reads:

Sec. 8. Removal; Filling of Vacancy. –

xxxx

(2) A Deputy, or the Special Prosecutor, may be removed from office by the
President for any of the grounds provided for the removal of the Ombudsman, and
after due process.

4
"AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF
THE OFFICE OF THE OMBUDSMAN AND FOR OTHER PURPOSES."
5
Gonzales III v. OP, G.R. Nos. 196231 and 196232, January 28, 2014, p. 27.

6
Id. The Summary of Voting section of the ponencia reads as follows:

In the voting held on January 28, 2014, by a vote of 8-7, the Court resolved to
reverse its September 4, 2014 Decision insofar as petitioner Gonzales is concerned
(G.R. No. 196231).

We declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary

jurisdiction to the President over a Deputy Ombudsman, in violation of the
independence of the Office of the Ombudsman.

However, by another vote of 8-7, the Court resolved to maintain the validity of
Section 8(2) of RA No. 6770 insofar as Sulit is concerned. The Court did not consider
the Office of the Special Prosecutor to be constitutionally within the Office of the
Ombudsman and is, hence, not entitled to the independence the latter enjoys under
the Constitution. (Emphases in the original; citations omitted)

7
"To justify the nullification of the law or its implementation, there must be a clear and
unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the sufficiency of
proof establishing unconstitutionality, the Court must sustain legislation because ‘to
invalidate [a law] based on x x x baseless supposition is an affront to the wisdom not only of
the legislature that passed it but also of the executive which approved it.’" (Lawyers Against
Monopoly and Poverty [LAMP] v. Secretary of Budget and Management, G.R. No. 164987,
April 24, 2012, 670 SCRA 373, 386-387, citing ABAKADA GURO Party List v. Purisima, 584
Phil. 246, 268 [2008]; emphasis supplied.)

8
Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140.

9
158 Phil. 60 (1974).

10
Id. at 74.

11
564 Phil. 31 (2007).

12
Id. at 44.

The Record of the Constitutional Commision, Vol. 2, July 26, 1986, p. 294, as cited in page
13

14 of the ponencia reads:

MR. OPLE. xxx

May I direct a question to the Committee? xxx [W]ill the Committee consider later an
amendment xxx, by way of designating the office of the Ombudsman as a
constitutional arm for good government, efficiency of the public service and the
integrity of the President of the Philippines, instead of creating another agency in a
kind of administrative limbo which would be accountable to no one on the pretext that
it is a constitutional body?

MR. MONSOD. The Committee discussed that during our committee deliberations
and when we prepared the report, it was the opinion of the Committee – and I believe
 it still is – that it may not contribute to the effectiveness of this office of the
Ombudsman precisely because many of the culprits in inefficiency, injustice and
impropriety are in the executive department. Therefore, as we saw the wrong
implementation of the Tanodbayan which was under the tremendous influence of the
President, it was an ineffectual body and was reduced to the function of a special
fiscal. The whole purpose of our proposal is precisely to separate those functions
and to produce a vehicle that will give true meaning to the concept of Ombudsman.
Therefore, we regret that we cannot accept the proposition. (Emphases supplied)

The Record of the Constitutional Commision, Vol. 2, July 26, 1986, p. 294, as cited in
footnote 50, page 14 of the ponencia reads:

In other words, Madam President, what actually spawned or cause the failure of the
justices of the Tanodbayan insofar as monitoring and fiscalizing the government
offices are concerned was due to two reasons: First, almost all their time was taken
up by criminal cases; and second, since they were under the Offices of the
President, their funds came from that office. I have a sneaking suspicion that they
were prevented from making administrative monitoring because of the sensitivity of
the then head of that office, because if the Tanodbayan would make the
corresponding reports about failures, malfunctions or omissions of the different
ministries, then that would reflect upon the President who wanted to claim the
alleged confidence of the people.

xxxx

It is said here that the Tanodbayan or the Ombudsman would be a toothless or a

paper tiger.

That is not necessarily so. If he is toothless, then let us give him a little more teeth by
making him independent of the Office of the President because it is now a
constitutional creation, so that the insidious tentacles of politics, as has always been
our problem, even with PARGO, PCAPE and so forth, will not deprive him of the
opportunity to render service to Juan de la Cruz. xxx. There is supposed to be
created a constitutional office – constitutionalized to free it from those tentacles of
politics – and we give it more teeth and have the corresponding legislative provisions
for its budget, not a budget under the Office of the President.

xxxx

xxx. For that reason, Madam President, I support this committee report on a
constitutionally created Ombudsman and I further ask that to avoid having a
toothless tiger, there should be further provisions for statistical and logistical support.
(Emphases in the original retained with additional emphases supplied) (Gonzales III
v. OP, supra note 5, pp. 14-15.)

Ambil, Jr. v. Sandiganbayan, G.R. Nos. 175457 and 175482, July 6, 2011, 653 SCRA 576,
14

596.

CONCURRING AND DISSENTING OPINION

LEONEN, J.:
I vote to dismiss the motion for partial reconsideration.1 However, the constitutional challenge to
Section 8, Pai:agraph (2) of Republic Act No. 67702 or the Ombudsman Act insofar as the Deputy
Ombudsman is concerned should succeed.

On August 23, 2010, dismissed Manila Police District Police Senior Inspector (Captain). Rolando del
Rosario Mendoza took hostage a Hong Kong tour group with three families, two couples, a mother
and daughter, and a tour leader at the Quirino Grandstand.3 Apparently, he was driven to
despondency by many causes. This included his frustration with a case4 pending against him at the
Office of the Ombudsman. In a decision5 dated February 16, 2009, the Office of the Ombudsman
found Mendoza and four others liable for grave misconduct. This led to Mendoza’s dismissal from
the Philippine National Police as well as the forfeiture of his retirement benefits.

The Ombudsman exercised jurisdiction over this case by virtue of a letter which was issued motu
proprio by petitioner, Emilio Gonzales III, to endorse the pending case to his office for administrative
adjudication.6 This was despite the fact that the same case against Rolando Mendoza was already
"dismissed by the Manila City Prosecutors Office for lack of probable cause and by the [Philippine
National Police–National Capital Region] Internal Affairs Service for failure of the complainant to
submit evidence and prosecute the case."7

According to the Office of the President, petitioner Gonzales did not state a reason for the
endorsement of the case to the Office of the Ombudsman.8 The Office of the President also found
that the Office of the Deputy Ombudsman made Atty. Clarence V. Guinto of the Philippine National
Police-Criminal Investigation and Detection Group-National Capital Region serve as the nominal
complainant in the case against Mendoza.9 Atty. Guinto did not even summon or compel Christian
Kalaw, the original complainant in the case against Mendoza, to affirm his complaint-affidavit10 before
the Ombudsman or require Kalaw to "submit any position paper as required."11

At one point during the hostage-taking incident, Manila City Vice Mayor Francisco "Isko" Moreno
interceded. He was already at the Office of the Ombudsman when he asked Mendoza if there was
someone there that he wanted to talk to. Mendoza was very thankful to Vice Mayor Moreno and
requested if he could talk to a certain Director Gonzales of the Office of the Ombudsman.

Mendoza spoke to Deputy Ombudsman Gonzales. After some time, Mendoza was heard shouting
and uttering invectives: "Putang ina mo, humihingi ka pa ng P150,000 para sa kaso ko, kung may
mamamatay dito kasalanan mo lahat! (You son of a bitch, you are asking for P150,000 for my case,
if anyone dies here it’s all your fault!)."12

Moreno overheard Gonzales say, "O wala akong alam diyan (I don’t know anything about that)."13

Emilio Gonzales III could have betrayed the public trust.

The Office of the President acted on what it saw as substantial evidence that Deputy Ombudsman
Gonzales delayed acting on the motion for reconsideration14 of the late Rolando Mendoza and that
Gonzales asked for P150,000.00 to decide on the case. This was also the finding of the Incident
Investigation and Review Committee15 created after the hostage-taking incident.

The duties of the Ombudsman and Deputy Ombudsman are provided for in Article XI, Section 13 of
the 1987 Constitution.16 These include the duty to direct any public official or employee of the
government 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.17 Certainly, it would be betrayal of public trust
in the highest order when a Deputy Ombudsman himself committed actions that he is constitutionally
mandated to curtail.
This case came to this court through a petition for certiorari18 filed by Emilio Gonzales III (docketed
as G.R. No. 196231) alleging grave abuse of discretion on the part of the Office of the President for
its decision19 dated March 31, 2011. This was consolidated with G.R. No. 196232, a petition for
certiorari and prohibition20 filed by Wendell Barreras-Sulit against the Order21 of the Office of the
Executive Secretary.

The other case consolidated with the case of Emilio Gonzalez III involves an order issued by the
Office of the Executive Secretary to petitioner Special Prosecutor Wendell Barreras-Sulit. The order
required her to submit a written explanation why no disciplinary action should be taken against her,
based on her role in securing a plea bargaining agreement in favor of Major Carlos P. Garcia.

Major Carlos P. Garcia was accused of embezzling millions of pesos and dollars as well as
amassing properties in violation of the Plunder Law. The Committee on Justice of the House of
Representatives found that petitioner Barreras-Sulit committed acts that were tantamount to culpable
violation of the Constitution and betrayal of public trust. Hence, a case docketed as OP-DC-Case
No. 11-B-003 was filed by the Office of the President against petitioner Barreras-Sulit and was set
for preliminary investigation.

Both cases were consolidated because they raised the issue of the constitutionality of Section 8,
Paragraph (2) of Republic Act No. 6770 or the Ombudsman Act. Petitioners questioned the
constitutionality of this provision, which states that the Office of the President may remove the
Deputy Ombudsman and Special Prosecutor from office on the grounds of removal of the
Ombudsman and after due process.

The initial voting of this court on whether Gonzales could be found liable for betrayal of the public
trust was 14-0. All the Justices then agreed that there was no substantial basis to support the finding
of the Office of the President. On the constitutionality of Section 8, Paragraph (2) of the Ombudsman
Act, the vote was evenly split. Seven voted to declare the provision unconstitutional. The other
seven voted to uphold. Thus, in its September 4, 2012 decision,22 this court denied the challenge to
the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act and ordered the
reinstatement of Gonzales and the continuation of the proceedings against Barreras-Sulit.23 This
court then granted Gonzales’ petition for certiorari,24 insofar as it reversed the public respondent
Office of the President’s decision in OP Case No. 10-J-460.

The Office of the Solicitor General then filed a motion for partial Reconsideration25 dated October 10,
2012 of the September 4, 2012 decision of this court. As its sole ground for allowance, the motionfor
partial reconsideration raised that the Office of the President did not gravely abuse its discretion
when it found "petitioner Gonzales guilty of betrayal of public trust and imposed upon him the penalty
of dismissal from office."26

In my view, the motion for partial reconsideration raises three issues that require discussion.

The first issue is whether the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act
was reopened even if this was not raised in the actual motion for partial reconsideration of the Office
of the Solicitor General.

The second issue is whether Section 8, Paragraph (2) of the Ombudsman Act is constitutional.

The third issue is whether the actions of petitioner Emilio Gonzales III constitute betrayal of public
trust and warrant his dismissal from his position, assuming that Section 8, Paragraph (2) of the
Ombudsman Act is constitutional.
 I

The motion for partial reconsideration reopens the entire case. These cases cannot be fully resolved
unless the question of the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act is
again decided by this court. The question whether petitioner Gonzales is guilty of betrayal of public
trust also involves the matter as to whether that ground exists at all.

This means that we are constrained to address the constitutional issue as to whether it is the Office
of the President that can constitutionally exercise disciplinary powers over the Deputy Ombudsman.

This court is a court of general jurisdiction. It has the ability to determine the scope of the issues it
can decide on in order to fulfill its constitutional duty to exercise its judicial power. This power must
be fully exercised to achieve the ends of justice.

Judicial power includes determining the constitutionality of the actions of a branch of government. In
Luz Farms v. Secretary of the Department of Agrarian Reform,27 this court held:

It has been established that this Court will assume jurisdiction over a constitutional question only if it
is shown that the essential requisites of a judicial inquiry into such a question are first satisfied.
Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of
judicial determination, the constitutional question must have been opportunely raised by the proper
party, and the resolution of the question is unavoidably necessary to the decision of the case itself x
x x.

However, despite the inhibitions pressing upon the Court when confronted with constitutional issues,
it will not hesitate to declare a law or act invalid when it is convinced that this must be done. x x x
Blandishment is as ineffectual as intimidation, for all the awesome power of the Congress and
Executive, the Court will not hesitate "to make the hammer fall heavily," where the acts of these
departments, or of any official, betray the people's will as expressed in the Constitution x x x.

Thus, where the legislature or the executive acts beyond the scope of its constitutional powers, it
becomes the duty of the judiciary to declare what the other branches of the government had
assumed to do, as void. This is the essence of judicial power conferred by the Constitution "(I)n one
Supreme Court and in such lower courts as may be established by law" (Art. VIII, Section 1 of the
1935 Constitution; Article X, Section I of the 1973 Constitution and which was adopted as part of the
Freedom Constitution, and Article VIII, Section 1 of the 1987 Constitution) and which power this
Court has exercised in many instances. (Citations omitted)28

The constitutional challenge must be squarely addressed and threshed out in its entirety because
the constitutionality of the law itself is the very lis mota of the case. In People v. Vera,29 this court first
presented the idea of lis mota:

It is a well-settled rule that the constitutionality of an act of the legislature will not be determined by
the courts unless that question is properly raised and presented in appropriate cases and is
necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota
presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J.,
pp. 780-782, 783.)30

In line with the doctrine of Vera, this court’s disposition of the case depends on a final determination
of the constitutionality of Section 8, Paragraph (2) of Republic Act No. 6770 or the Ombudsman Act.
While it appears that the constitutionality of the Ombudsman Act was not raised in the motion for
partial reconsideration, no final determination can be made without addressing the constitutional
point.

Any determination of petitioner Gonzales’ liability by this court is contingent on the constitutionality of
Section 8, Paragraph (2) of the Ombudsman Act. This is the basis of the putative disciplinary
authority vested in the Office of the President over the Deputy Ombudsman and the Office of the
Special Prosecutor. If this provision is unconstitutional, then no valid action on this case can
emanate from the Office of the President.

We cannot be made to issue an incomplete ruling simply because the motion for reconsideration
was partial. We are a full court with full powers with a whole duty to determine when the Constitution
is violated.

In Juco v. Heirs of Tomas Siy Chung Fu,31 this court elaborated on the effect of a motion for
reconsideration:

A motion for reconsideration has the effect of suspending the statutory period after which an order,
decision, or judgment, in connection with which said motion was filed, becomes final. In effect, such
motion for reconsideration has prevented the decision from attaining finality.32

This case can be adjudicated in its entirety because the September 4, 2012 decision of this court
has not yet achieved finality.

II

When the Judiciary is asked to ascertain constitutional limitations or invalidate the acts of a co-equal
body such as the Executive, what it puts forward is the supremacy of the Constitution. Since its
inception, the Philippine Constitution has always provided for a structured and evolving system of
separation of powers and checks and balances. The landmark case of Angara v. Electoral
Commission33 served as the jurisprudential benchmark for this system:

The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other.
The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.34

The principle of checks and balances and the principle of the separation of powers are not limited to
the interaction of the powers of the Executive, Legislative, and the Judiciary. The principle of checks
and balances, as well as separation of powers, also applies to the interaction of the three branches
of government with the other constitutional organs, particularly the Constitutional Commissions as
well as the Office of the Ombudsman. Angara itself was an elaborate examination of the relationship
of the three branches with the Electoral Commission, which this court in Angara ruled was, indeed,
an independent constitutional organ.

The principle of checks and balances allows constitutionally enshrined bodies or organs and
governmental departments to correct mistakes and prevent excesses done by other branches. It
also ensures a degree of cooperation while being clear as to what acts may constitute undue
encroachments upon another branch’s or organ’s constitutional duties.
Section 8, Paragraph (2) of Republic Act No. 6770 provides:

Section 8. Removal; Filling of Vacancy. —

xxxx

(2) A Deputy, or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process.

In order to determine whether it can pass a constitutional challenge in view of the facts arising from
these consolidated cases, we should start first with textual reference. That is, we should check all
the relevant and applicable provisions of the Constitution.

Article XI, Section 5 of the 1987 Constitution reads:

There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman
to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas,
and Mindanao. A separate Deputy for the military establishment may likewise be appointed.
(Emphasis supplied)

In relation to this provision, the Ombudsman is among the officials enumerated in Article XI, Section
2 as those who can be removed from office only through impeachment.

The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. (Emphasis supplied)

The phrase "as provided by law" is the apparent basis for the enactment of Section 8, Paragraph (2)
of Republic Act No. 6770 or the Ombudsman Act. In my view, this provision cannot be taken in
isolation. Any interpretation of this phrase should not deny the "independent" nature of the Office of
the Ombudsman as provided in Article XI, Section 5 of the Constitution. The Constitution should be
read as a whole document in a manner that will give effect to all its parts.35

I agree with the positions of Justice Brion and Justice Abad in their dissenting opinions on the
September 4, 2012 decision that the independence of the Office of the Ombudsman is of such a
fundamental and unequivocal nature. This independence is essential to carry out the functions and
duties of the Office of the Ombudsman. I agree with their position that since those in the executive
branch are also subject to the disciplinary authority of the Office of the Ombudsman, providing the
Office of the President with the power to remove would be an impediment to the fundamental
independence of the Ombudsman.

We cannot allow a circumvention of the separation of powers by construing Article XI, Section 2 of
the Constitution as delegating plenary and unbounded power to Congress. The exclusive power of
the Ombudsman to discipline her own ranks is fundamental to the independence of her office.

The Constitution’s intention to make the independence of the Office of the Ombudsman greater than
any other office can also be inferred from the authority and the process of appointment of the officers
constituting that office. Hence, Article XI, Section 9 of the Constitution provides:
Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for
every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be
filled within three months after they occur.36

The President is granted the power to appoint but only from a list of nominees vetted by the Judicial
and Bar Council. Furthermore, the President needs to exercise that power to appoint within three
months from the vacancy of either the Ombudsman or any of her Deputies.

Furthermore, the Constitution provides in Section 6 of the same Article:

Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies,
shall be appointed by the Ombudsman, according to the Civil Service Law.37

This is similar to the provisions for Constitutional Commissions. Article IX, Section 4 of the
Constitution provides:

Section 4. The Constitutional Commissions shall appoint their officials and employees in accordance
with law.38

It is clear that there is a different treatment of the Deputies of the Ombudsman from all the other staff
of the Office of the Ombudsman.

The Ombudsman is assisted by the Deputy Ombudsman. There are several deputies for Luzon,
Visayas, Mindanao, and the military. All these deputies take their direction from the Ombudsman. By
constitutional fiat, they cannot take direction from any other constitutional officer. It is difficult to
imagine how the independence of the Ombudsman can be preserved when the President has
concurring powers to remove her deputies.

Furthermore, it is not difficult to imagine that the President and Congress can negate the elaborate
process of appointing a Deputy Ombudsman simply by using their alleged power of removal. While
this may not have been the situation in this case, the possibility exists especially when we consider
that the Ombudsman does have jurisdiction also to investigate both the executive and legislative
branches. The real fear of the deputies can hobble the Office of the Ombudsman.

During the deliberations of this case, a question was raised as to whether the President can have
the authority to discipline non-impeachable officers and employees of Constitutional Commissions
and the Office of the Ombudsman when the law so provides. This court’s construction of
constitutional provisions should be framed only by the actual controversies presented by the facts of
the case at bar. The issue in this case is only about the power of the President to remove the Deputy
Ombudsman and the Special Prosecutor for causes provided by law. It does not involve the power of
the President to remove any other civil servant appointed by the Ombudsman.

In its September 4, 2012 decision, this court cited Hon. Hagad v. Hon. Gozodadole39 and Office of
the Ombudsman v. Delijero, Jr.40 to show that the Office of the President has concurrent disciplinary
jurisdiction with the Office of the Ombudsman. These cases, however, are not applicable. Hon.
Hagad involved prosecution and discipline of the Mayor and Vice Mayor as well as a member of the
Sangguniang Panlungsod of Mandaue City. The Constitution puts local governments within the
general supervision of the President.41 They are, therefore, also within the authority of the Office of
the President to discipline.
In Office of the Ombudsman v. Delijero, Jr., there was a law, namely, Republic Act No. 4670, which
provided a separate set of procedural requirements for administrative proceedings involving public
school teachers. Thus, this court held that it would have been more prudent for the Office of the
Ombudsman to refer the case to the Department of Education. Public school teachers do not enjoy
the constitutional independence similar to that of the Office of the Ombudsman.

In his concurring opinion on the September 4, 2012 decision, Justice Carpio presents the view that
the independence of the Office of the Ombudsman does not mean that it is insulated from all
governmental scrutiny. According to Justice Carpio, Congress has the power to legislate the officials
that may be subject to dismissal and disciplinary action, if the Constitution allows. He cites the
records of the Constitutional Commissions, particularly that of Commissioner Regalado, who sought
the amendment to include the sentence, "ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY
BE REMOVED FROM OFFICE AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT," under
Article XI, Section 2. Thus, Congress has the plenary power to provide for the officials that may be
removed and the manner by which they are to be removed as well.

I agree with Justice Carpio that the Office of the Ombudsman is also constitutionally accountable. I
cannot agree, however, that this accountability can be extracted by allowing her deputies to be
answerable to two principals: the Ombudsman and the President, even if this dual accountability is
provided by law.

Reliance on the debates of the framers of the 1987 Constitution is not the only source for
determining the meaning of the text of the Constitution.42 Resorting to the debates and proceedings
of the constitutional convention shows us the views and standpoints of individual members of the
convention.43 It does not show how the sovereign people read the Constitution at the time of
ratification. The discussion of those that drafted the present Constitution is advisory.44 The text of the
Constitution should be read by one guided by, but not limited to, the debates that happened when it
was drafted and ratified. It should also be read in the light of the needs of present times while being
sensitive and addressing precedents existing in our jurisprudence.

The mention in the records of the Constitutional Commission of the phrase "as provided by law"
cannot serve as the sole yardstick by which a definitive interpretation of the constitutional provision
or its effects is to be determined. "As provided by law" with respect to the Deputy Ombudsman may,
at best, only provide for the standards under which the Ombudsman may exercise her power of
removal. Unless the Constitution does not intend true operational independence, the clause cannot
be interpreted to mean that Congress has plenary authority to lodge disciplinary power on any other
organ other than the Ombudsman.

I also agree with the concurring opinion of Justice Carpio on the September 4, 2012 decision of this
court that there are different degrees of independence among the offices enumerated by the
Constitution. Congress is empowered to determine through subsequent legislation the standards
and legislative parameters of the independence of certain constitutional offices.

The 1987 Constitution provides two distinct types of independence as defined in its provisions. The
first type of independence is constitutionally enshrined. This means that it can neither be subject to
any interference by other branches of government nor can Congress pass laws that abridge or
impair its fundamental independence. This independence is of such a degree and nature that the
very essence of the constitutional body provides for a definitive barrier against legislative or
executive intervention. This is the type of independence enjoyed by the Constitutional
Commissions,45 the Office of the Ombudsman,46 and – to a certain extent – the Commission on
Human Rights.47
The second type of independence refers to the Constitution itself allowing Congress to define the
functions that will ensure the independence of specific government offices or agencies. For instance,
unlike the provisions with respect to the Ombudsman, the Constitution provides that the National
Economic Development Authority48 and the Central Bank49 will be created and further defined by law.

III

The treatment of the Office of the Special Prosecutor is, however, different. In my view, the Office of
the Special Prosecutor may by law be removed by the President. This is what Section 8, Paragraph
(2) of the Ombudsman Act provides.

This conclusion can be seen simply by examining the provisions of Article XI of the Constitution.
There are two constitutional organs created: the Office of the Ombudsman and the Tanodbayan,
which is the current Office of the Special Prosecutor:

Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for
Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be
appointed.

Section 6. The officials and employees of the Office of the Ombudsman, other than the Deputies,
shall be appointed by the Ombudsman, according to the Civil Service Law.

Section 7. The existing Tanodbayan shall hereafter be known as the Office of the Special
Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided
by law, except those conferred on the Office of the Ombudsman created under this Constitution.
(Emphasis provided)

Section 5 of Article XI provides that the composition of the Office of the Ombudsman includes the
Office of the Ombudsman, the overall Deputy Ombudsman for Luzon, Visayas, and Mindanao as
well as a separate Deputy for the military establishment. Section 6 of Article XI states that the other
officials and employees of the Office of the Ombudsman, outside of the Deputies, shall be appointed
by the Ombudsman in accordance with the Civil Service Law. Section 7 of Article XI provides that
what was then known as the Tanodbayan shall now be known as the Office of the Special
Prosecutor. It is allowed to exercise its powers as provided by law except those explicitly provided
for in the 1987 Constitution.

Section 7 even distinguishes between all the other officials and employees of the Ombudsman and
that of the Office of the Special Prosecutor.

The Office of the Ombudsman’s powers are more proactive than the prosecutorial powers of the
Office of the Special Prosecutor. This can be seen in the enumeration of her powers in the
Constitution. Thus, in Article XI, Section 13:

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 and
transactions entered into by this office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission on 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 rules and procedure and exercise such other powers or perform such
functions or duties as may be provided by law.

By clear constitutional design, the Tanodbayan or the Office of the Special Prosecutor is separate
from the Office of the Ombudsman. Section 7 is explicit on this point, in that the Office of the Special
Prosecutor is allowed to exercise its powers, except for those conferred on the Office of the
Ombudsman. While the Office of the Special Prosecutor is not automatically a part of the Office of
the Ombudsman, there is, however, no reason that Congress and the President may, by law and in
their political wisdom, attach the Office of the Special Prosecutor with the Office of the Ombudsman.
There is also no constitutional prohibition for the Office of the Special Prosecutor to be functionally
separate from the Office of the Ombudsman. This is a matter to be addressed by the political
departments. This may also be viewed as a check of both Congress and the President on the
powers of the Ombudsman.

By clear provision of the Constitution, it is only the Office of the Ombudsman, which includes her
Deputies, that is endowed with constitutional independence. The inclusion of the Office of the
Special Prosecutor with the Office of the Ombudsman in Section 3 of Republic Act No. 6770 does
not ipso facto mean that the Office of the Special Prosecutor must be afforded the same levels of
constitutional independence as that of the Ombudsman and the Deputy Ombudsman. The law
simply defines how the Office of the Special Prosecutor is attached and, therefore, coordinated with
the Office of the Ombudsman.

Thus, the provision of Section 8, Paragraph (2) of Republic Act No. 6770 which provides for the
power of the President to remove the Special Prosecutor is valid and constitutional.

IV
This opinion should not be seen as a sweeping dismissal or acquittal of the liability of petitioner
Gonzales due to the unconstitutionality of Section 8, Paragraph (2) of the Ombudsman Act as far as
the Office of the Deputy Ombudsman is concerned. Petitioner Gonzales must still be held
accountable for his actions. His actions as described in the report and in the decision of the Office of
the President are troubling. There is need to continue the investigation so that the public may finally
find closure concerning these incidents.

Understandably, the Office of the President wanted to act with due and deliberate dispatch on this
case based on a provision of law which it interpreted to be valid and constitutional. It acted with the
best of motives. But grand intentions cannot replace constitutional design. Even "daang matuwid''
requires that the right course of action must be effectively and efficiently done in the right way.

I vote to declare that Section 8, Paragraph (2) of the Ombudsman Act, insofar as the Deputy
Ombudsma is subjected to the disciplinary power of the Office of the President, is unconstitutional.
Petitioner Gonzales may, however, still be subject to investigation and discipline by the Ombudsman
herself. I also vote that, given the facts, there was substantial evidence of betrayal of public trust on
the part of petitioner Gonzales.

ACCORDINGLY, the motion for partial reconsideration should be denied.

MARVIC M. V. F. LEONEN
Associate Justice

Footnotes

1
Rollo, pp. 514-535 (G.R. No. 196231).

2
Rep. Act No. 6770 (1989), sec. 8, par. (2):

Section 8. Removal; Filling of Vacancy. –

xxxx

(2) A Deputy, or the Special Prosecutor, may be removed from office by the
President for any of the grounds provided for the removal of the Ombudsman, and
after due process.

3
Rollo, p. 272 (G.R. No. 196231), First Report of the Incident Investigation and Review
Committee on the August 23, 2010 Rizal Park Hostage-taking Incident: Sequence of Events,
Evaluation and Recommendations, September 16, 2010.

4
OMB-P-A-08-0670-H for: Grave Misconduct

5
Rollo, pp. 92-97 (G.R. No. 196231), decision, Office of the Ombudsman, Annex D-2.

6
Id. at 73-74, decision in OP Case No. 10-J-460, Office of the President.
7
Id. at 73.

8
Id. at 74.

9
Id.

10
Id. at 87.

11
Id. at 74.

Rollo, p. 300, First Report of the Incident Investigation and Review Committee on the
12

August 23, 2010 Rizal Park Hostage-taking Incident: Sequence of Events, Evaluation and
Recommendations, September 16, 2010.

13
Id.

14
Id. at 137-202.

15
Id. at 80-85, decision, Office of the President; See also rollo, p. 300 (G.R. No. 196231),
First Report of the Incident Investigation and Review Committee on the August 23, 2010
Rizal Park Hostage-taking Incident: Sequence of Events, Evaluation and Recommendations,
September 16, 2010.

16
Consti., art. XI, 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.

xxxx

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.

17
Consti., art. XI, sec. 13, par. (2).
18
Rollo, pp. 6-71 (G.R. No. 196231).

19
Id. at 72-86, decision, Office of the President, Annex "A."

20
Rollo, pp 3-25 (G.R. No. 196232).

21
Id. at 26, order docketed as OP-DC-Case No. 11-B-003, Annex "A."

22
Gonzales III v. Office of the President of the Philippines, et al. and Barreras-Sulit v. Ochoa,
G.R. No. 196231 and G.R. No. 196232, September 4, 2012, 679 SCRA 614. The voting in
this decision was the following: Eight (8) voted in favor of the constitutionality of Sec. 8, Par.
(2) of Republic Act No. 6770, and six (6) voted against it. Seven (7) Justices concurred in the
ponencia of Justice Perlas-Bernabe. The concurring Justices included Chief Justice Sereno,
as well as Justices Carpio, Peralta, Del Castillo, Villarama, Jr., Mendoza, and Reyes. Six (6)
Justices dissented: These were Justices Velasco, Jr., Leonardo-De Castro, Brion, Bersamin,
Abad, and Perez.

23
Consti., art. VIII, sec. 4 (2):

All cases involving the constitutionality of a treaty, international or executive

agreement, or law, which shall be heard by the Supreme Court en banc, and all other
cases which under the Rules of Court are required to be heard en banc, including
those involving the constitutionality, application, or operation of presidential decrees,
proclamations, orders, instructions, ordinances, and other regulations, shall be
decided with the concurrence of a majority of the Members who actually took part in
the deliberations on the issues in the case and voted thereon.

24
Rollo, pp. 6-71 (G.R. No. 196231).

25
Id. at 514-535.

26
Id. at 515.

27
G.R. No. 86889, December 4, 1990, 192 SCRA 51.

28
Id. at 58-59.

29
65 Phil. 56 (1937).

30
Id. at 82.

31
491 Phil. 641 (2005).

32
Id. at 651.

33
63 Phil. 139 (1936) (Per J. Laurel, En Banc).

34
Id. at 156.
35
Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 892 (2003) citing Civil
Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317;
Peralta v. Commission on Elections, 172 Phil. 31 (1978); Ang-Angco v. Castillo, 118 Phil.
1468 (1963).

36
Consti., art. XI, sec. 9.

37
Consti., art. XI, sec. 6.

38
Consti., art. IX-A, sec. 4.

39
321 Phil. 604 (1995).

40
G.R. No. 172635, October 20, 2010, 634 SCRA 135.

41
Consti., art. X, sec. 4.

42
Refer to my dissenting opinion in Chavez v. Judicial and Bar Council, G.R. No. 202242,
April 16, 2013, 696 SCRA 469 citing Civil Liberties Union v. Executive Secretary, G.R. No.
83896, February 22, 1991, 194 SCRA 317 and C. CURTIS, LIONS UNDER THE THRONE 2
(1947).

Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194
43

SCRA 317.

44
C. CURTIS, LIONS UNDER THE THRONE 2 (1947).

45
Consti., art. IX-A, sec. 1: The Constitutional Commissions, which shall be independent, are
the Civil Service Commission, the Commission on Elections, and the Commission on Audit.

Consti., art. XI, sec.5: There is hereby created the independent Office of the Ombudsman,
46

composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least
one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military
establishment may likewise be appointed.

Consti., art. XIII, sec. 17: 1. There is hereby created an independent office called the
47

Commission on Human Rights.

48
Consti., art. XII, sec. 9: The Congress may establish an independent economic and
planning agency headed by the President, which shall, after consultations with the
appropriate public agencies, various private sectors, and local government units, recommend
to Congress, and implement continuing integrated and coordinated programs and policies for
national development.

Until the Congress provides otherwise, the National Economic and Development
Authority shall function as the independent planning agency of the government.

Consti., art. XII, sec. 20: The Congress shall establish an independent central monetary
49

authority, the members of whose governing board must be natural-born Filipino citizens, of
known probity, integrity, and patriotism, the majority of whom shall come from the private
sector. They shall also be subject to such other qualifications and disabilities as may be
 prescribed by law. The authority shall provide policy direction in the areas of money,
banking, and credit. It shall have supervision over the operations of banks and exercise such
regulatory powers as may be provided by law over the operations of finance companies and
other institutions performing similar functions.

Until the Congress otherwise provides, the Central Bank of the Philippines operating
under existing laws, shall function as the central monetary authority.

1987 Constitution - Article XI

Approved: 02 February 1987

ACCOUNTABILITY OF PUBLIC OFFICERS

Section 5. There is hereby created the independent Office of the Ombudsman,

composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and
at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.