Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 78239 February 9, 1989 SALVACION A.

MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN, JR., respondent.

We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was convicted of the crime for which she was accused. In line with the government's crusade to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspension pendente lite. In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. ... Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence." (Sec. 36, par. 2). IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position and that, notwithstanding said absolute pardon, she is 3 liable for the civil liability concomitant to her previous conviction. Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course on October 13, 1987. Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained "suspended." More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has 4 accordingly dismissed the same. It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public documents and sentenced to imprisonment of four years, two months and one day of prision correccional as minimum, to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable during the term of 5 the principal penalty. Temporary absolute disqualification bars the convict from public office or employment, such disqualification to last 6 during the term of the sentence. Even if the offender be pardoned, as to the principal penalty, the accessory penalties remain unless the same 7 have been expressly remitted by the pardon. The penalty of prision correccional carries, as one of its accessory penalties, suspension from 8 public office. The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly consistent particularly in describing the effects of pardon. The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But Philippine jurisprudence on the subject

FERNAN, C.J.: The principal question raised in this petition for review is whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment. In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately. Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21, 1984. By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant. Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the 1 government as well as the costs of the litigation, be satisfied. Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should not be required 2 to pay the proportionate share of the amount of P4,892.50. The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:

has been largely influenced by American case law. Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete 8 without acceptance." -a At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads: The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the 9 concurrence of the Batasang Pambansa, grant amnesty. The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code. In Pelobello v. Palatino, We find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction. ... (W)e are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party ... concerned from the accessory and resultant disabilities of criminal conviction. The Pelobello v. Palatino and Cristobal v. Labrador cases, and several 12 others show the unmistakable application of the doctrinal case of Ex 13 Parte Garland, whose sweeping generalizations to this day continue to hold sway in our jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions. Consider the following broad statements: A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to
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all his civil rights; it makes him, as it were, a new man, and gives him a 14 new credit and capacity. Such generalities have not been universally accepted, recognized or 15 approved. The modern trend of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves 16 forgiveness and not forgetfulness. The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or 17 disabilities based on the finding of guilt. But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction."
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A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully 20 done and justly suffered, and no satisfaction for it can be required." This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime for which she was 21 convicted. In the case of State v. Hazzard, we find this strong observation: "To assume that all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies the commission of wrong, and that wrong has been established by the most complete method known to modern civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot erase the 22 stain of bad character, which has been definitely fixed. In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes" as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding citizen. Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation of mercy and

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forgiveness implicit in pardon, "ordinary, prudent men will take into 23 account in their subsequent dealings with the actor." Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. 24 This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly restores his eligibility for 26 appointment to that office. The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction. For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must reapply and undergo the usual procedure required for a new appointment. Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, 27 compensation and novation. WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs. SO ORDERED. Narvasa, Paras, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Melencio-Herrera, J., concurs in the result. Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 103567 December 4, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO SALLE, JR. Y GERCILLA @ "KA NONOY," RICKY MENGOTE Y CUNTADO @ "KA RICKY/KA LIZA/KA JUN," and TEN JOHN DOES, accused. FRANCISCO SALLE, JR., Y GERCILLA and RICKY MENGOTE Y CUNTADO, accused-appellants. RESOLUTION

DAVIDE, JR., J.: For resolution is the enforceability of the conditional pardon granted to accused-appellant Ricky Mengote during the pendency in this Court of his appeal from his conviction by the trial court. In the decision dated 18 November 1991 of Branch 88 of the Regional Trial Court (RTC) of Quezon City in Criminal Case No. Q-90-11835, the accused-appellants were found guilty beyond reasonable doubt as coprincipals of the compound crime of murder and destructive arson and were each sentenced to suffer the penalty of reclusion perpetua and to pay, jointly and severally, an indemnity in the sum of P50,000.00 to the 2 heirs of the victim. The appellants seasonably filed their Notice of Appeal. On 24 March 1993, this Court accepted the appeal. On 6 January 1994, however, appellant Francisco Salle, Jr. filed an Urgent Motion to Withdraw Appeal. The Court then required his counsel, Atty. Ida May La'o of the Free Legal Assistance Group (FLAG) to verify the voluntariness of the aforesaid motion. In her Manifestation with Motion to Withdraw Appeal, Atty. La'o informed this Court that her verification disclosed that Salle signed the motion without the assistance of counsel on his misimpression that the motion was merely a bureaucratic requirement necessary for his early release from the New Bilibid Prison (NBP) following the grant of a conditional pardon by the President on 9 December 1993. He was discharged from the NBP on 28 December 1993. She further informed the Court that appellant Ricky Mengote was, on the same dates, granted a conditional pardon and released from confinement, and that he immediately left for his province without consulting her. She then prays that this Court grant Salle's motion to withdraw his appeal and consider it withdrawn upon his acceptance of the conditional pardon. Until now, Mengote has not filed a motion to withdraw his appeal. In the resolution of 23 March 1994, this Court granted Salle's motion to withdraw his appeal and considered this case closed and terminated insofar as he is concerned. On 3 June 1993, Assistant Director Jesus P. Villanueva of the Bureau of Corrections submitted certified photocopies of the conditional pardon 3 4 granted separately to Salle and Mengote and of their certificates of 5 release. The said copies of the conditional pardon state, among other things, that it is upon acceptance of the pardon that the appellants will be released from confinement. But there is nothing to show when the
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appellants accepted the pardon. In its Comment of 17 August 1994, the Office of the Solicitor General asserted that with their acceptance of the conditional pardon, the appellants impliedly admitted their guilt and accepted their sentence, 6 and hence, the appeal should be dismissed. After taking into consideration Section 19, Article VII of the Constitution which provides that the President may, except in cases of impeachment or as otherwise provided in the Constitution, grant pardon after conviction by final judgment, this Court resolved to require. 1. The Office of the Solicitor General and the counsel for the accusedappellants to submit, within thirty (30) days from notice hereof, their respective memoranda on the issue of the enforceability of the conditional pardon; and 2. The Presidential Committee for the Grant of Bail, Release or Pardon to inform the Court, within ten (10) days from notice hereof, why it recommended to the President the grant of the conditional pardon 7 despite the pendency of the appeal. In a Comment submitted on behalf of the Presidential Committee for the Grant of Bail, Release, or Pardon, Assistant Chief State Prosecutor Nilo C. Mariano avers that the Secretariat assisting the Committee has a standing agreement with the FLAG and other human rights organizations that it will recommend to the Presidential Committee for conditional pardon by the President of convicted persons who may have been convicted of crimes against national security and public order or of common crimes which appear to have been committed in pursuit of their political objectives; and that where the said convicted persons have pending appeals before the appellate court, the lawyers of the said organizations, particularly the FLAG, will take care of filing the appropriate motions for the withdrawal of their appeal considering that presidential pardon may be extended only to those serving sentence after final conviction. Notwithstanding that agreement, before it recommends to the Committee the grant of conditional pardon, the Secretariat also checks with the Bureau of Corrections the carpeta or records of recommendees whether they have pending appeals so that those concerned may be properly advised to withdraw the same. Mariano further contends that per information given to the Secretariat by Assistant Director Villanueva, Mengote's carpeta or prison record does not show that he has a pending appeal with the Court of Appeals or the Supreme Court. For that reason, the Secretariat was not able to advise those concerned to take appropriate steps for the withdrawal of the appeal before it recommended to the Committee the grant of conditional pardon in favor of Mengote. Mariano then assures the Court that there was no intention on the part of the Secretariat and the Committee to violate Section 19, Article VII of the Constitution, and that what happened was a clear misappreciation of facts due to the incomplete records of Mengote. In its Memorandum filed for the Appellee on 15 December 1994, the Office of the Solicitor General maintains that the conditional pardon granted to appellant Mengote is unenforceable because the judgment of conviction is not yet final in view of the pendency in this Court of his appeal. On the other hand, the FLAG, through Atty. La'o, submits that the conditional pardon extended to Mengote is valid and enforceable. Citing 8 Monsanto vs. Factoran, Jr., it argues that although Mengote did not file a motion to withdraw the appeal, he was deemed to have abandoned the appeal by his acceptance of the conditional pardon which resulted in the finality of his conviction.

The pivotal issue thus raised is the enforceability of a pardon granted to an accused during the pendency of his appeal from a judgment of conviction by the trial court. This calls for a review of the Philippine laws on presidential pardons. We 9 shall start with the Jones Law. Section 21 thereof provided in part as follows: Sec. 21. That the supreme executive power shall be vested in an executive officer, whose official title shall be "The Governor-General of the Philippine Islands.". . . He is hereby vested with the exclusive power to grant pardons and reprieves and remit fines and forfeitures. . . . Then came the 1935 Constitution. Paragraph 6, Section 10, Article VII thereof provided as follows: (6) The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction, for all offenses, except in cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper to impose. He shall have the power to grant amnesty with the concurrence of the Congress. This provision differed from that of the Jones Law in some respects. 10 Thus, in People vs. Vera, this Court held: Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil. 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". The requirement of after conviction operated as one of the limitations on the pardoning power of the President. Thus: It should be observed that there are two limitations upon the exercise of this constitutional prerogative by the Chief Executive, namely: (a) that the power be exercised after conviction; and (b) that such power does 11 not extend to cases of impeachment. The 1973 Constitution went further by providing that pardon could be granted only after final conviction. Section 14 of Article IX thereof reads as follows: The Prime Minister may, except in cases of impeachment, grant reprieves, commutations, and pardons, remit fines and forfeitures, after final conviction, and, with the concurrence of the National Assembly, grant amnesty. (emphasis supplied) The 1981 amendments to the 1973 Constitution, however, removed the limitation of final conviction, thereby bringing us back to the aforementioned provision of the Jones Law. Section 11, Article VII of the 1973 Constitution, as thus amended, reads: The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty. But the said limitation was restored by the present Constitution. Section 19, Article VII thereof reads as follows:

Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. (emphasis supplied) Where the pardoning power is subject to the limitation of conviction, it may be exercised at any time after conviction even if the judgment is on appeal. It is, of course, entirely different where the requirement is " final conviction," as was mandated in the original provision of Section 14, Article IX of the 1973 Constitution, or "conviction by final judgment," as presently prescribed in Section 19, Article VII of the 1987 Constitution. In such a case, no pardon may be extended before a judgment of conviction becomes final. A judgment of conviction becomes final (a) when no appeal is seasonably perfected, (b) when the accused commences to serve the sentence, (c) when the right to appeal is expressly waived in writing, except where the death penalty was imposed by the trial court, and (d) when the accused 12 applies for probation, thereby waiving his right to appeal. Where the judgment of conviction is still pending appeal and has not yet therefore attained finality, as in the instant case, executive clemency may not yet be granted to the appellant. We are not, however, unmindful of the ruling of this Court in People vs. 13 Crisola that the grant of executive clemency during the pendency of the appeal serves to put an end to the appeal. Thus: The commutation of the penalty is impressed with legal significance. That is an exercise of executive clemency embraced in the pardoning power. According to the Constitution: "The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty." Once granted, it is binding and effective. It serves to put an end to this appeal. It must, nevertheless, be noted that the constitutional provision quoted is that of the 1973 Constitution, as amended, which authorized the exercise of the pardoning power at anytime, either before or after 14 conviction. Also, in Monsanto vs. Factoran, this Court stated that the acceptance of a pardon amounts to an abandonment of an appeal, rendering the conviction final; thus: The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. This statement should not be taken as a guiding rule for it is nothing but an orbiter dictum. Moreover, the pardon involved therein was extended on 17 December 1984 or under the regime of Section 11, Article VII of the 1973 Constitution, as amended, which allowed the grant of pardon either before or after conviction. The reason the Constitutional Commission adopted the "conviction by final judgment" requirement, reviving in effect the original provision of

the 1973 Constitution on the pardoning power, was, as expounded by Commissioner Napoleon Rama, to prevent the President from exercising 15 executive power in derogation of the judicial power. Indeed, an appeal brings the entire case within the exclusive jurisdiction of the appellate court. A becoming regard for the doctrine of separation of powers demands that such exclusive authority of the appellate court be fully respected and kept unimpaired. For truly, had not the present Constitution adopted the "conviction by final judgment" limitation, the President could, at any time, and even without the knowledge of the court, extend executive clemency to any one whom he, in good faith or otherwise, believes to merit presidential mercy. It cannot be denied that under the Jones Law and the 1981 amendments to the 1973 Constitution on the pardoning power which did notrequire conviction, the President had unimpeded power to grant pardon even before the criminal case could be heard. And under the 1935 Constitution which required "conviction" only, the power could be exercised at any time after conviction and regardless of the pendency of the appeal. In either case, there could be the risk not only of a failure of justice but also of a frustration of the system of administration of justice in view of the derogation of the jurisdiction of the trial or appellate court. Where the President is not so prevented by the Constitution, not even Congress can 16 impose any restriction to prevent a presidential folly. Hence, nothing but a change in the constitutional provision consisting in the imposition of "conviction by final judgment" requirement can change the rule. The new Constitution did it. Hence, before an appellant may be validly granted pardon, he must first ask for the withdrawal of his appeal, i.e., the appealed conviction must first be brought to finality. Accordingly, while this Court, in its resolution of 21 March 1991 in People 17 vs. Pedro Sepada, dismissed the appeal for having become moot and academic in view of the parole granted to the appellant, it explicitly declared the necessity of a final judgment before parole or pardon could be extended. Thus: CONSIDERING THE FOREGOING, the COURT RESOLVED to DISMISS the appeal for having become moot and academic. To avoid any possible conflict with the judicial determination of pending appeals, the Court further DIRECTED the Board of Pardons and Parole to adopt a system which enables it to ascertain whether a sentence has become final and executory and has, in fact, been executed before acting on any application for parole or pardon. The Court Administrator shall coordinate with the Department of Justice on how this may be best achieved. (Emphasis supplied). Recently, in its resolution of 31 January 1995 in People vs. Hinlo, this Court categorically declared to be "in clear violation of the law" the "practice of processing applications for pardon or parole despite pending appeals." This Court resolved therein as follows: IN VIEW OF THE FOREGOING, in order to put a stop to the practice of processing applications for pardon and parole despite pending appeals which is in clear violation of the law, the Court Resolved to: (1) REQUIRE Atty. Conrado H. Edig, counsel de parte of accused Bernardo Hinlo, Catalino Capin, Martin Hinlo and Cecerio Ongco, who were given pardon, to secure and file the withdrawal of the appeals of said accused within ten days from receipt of this Resolution; (2) CALL the attention of the Presidential Committee to observe the proper procedure as required by law before granting bail, pardon or parole in cases before it; and
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(3) REMIND the Board of Pardons and Parole about the Court's directive in the People v. Sepada case. (Emphasis supplied). The above pronouncements of this Court in Sepada and in Hinlo may still be unheeded, either through deliberate disregard thereof or by reason of an erroneous application of the obiter dictum in Monsanto or of the ruling in Crisola. Hence, the need for decisive action on the matter. We now declare that the "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal. Such proof may be in the form of a certification issued by the trial court or the appellate court, as the case may be. The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable. Accordingly, those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement. And now on the instant case. Considering that appellant Ricky Mengote has not filed a motion to withdraw his appeal up to this date the conditional pardon extended to him should not have been enforced. Nonetheless, since he stands on the same footing as the accusedappellants in the Hinlo case, he may be freed from the full force, impact, and effect of the rule herein pronounced subject to the condition set forth below. This rule shall fully bind pardons extended after 31 January 1995 during the pendency of the grantee's appeal. WHEREFORE, counsel for accused-appellant Ricky Mengote y Cuntado is hereby given thirty (30) days from notice hereof within which to secure from the latter the withdrawal of his appeal and to submit it to this Court. The conditional pardon granted the said appellant shall be deemed to take effect only upon the grant of such withdrawal. In case of non-compliance with this Resolution, the Director of the Bureau of Corrections must exert every possible effort to take back into his custody the said appellant, for which purpose he may seek the assistance of the Philippine National Police or the National Bureau of Investigation. Let copies of this Resolution be furnished the Office of the President, the Department of Justice, the Board of Pardons and Parole, and the Presidential Committee for the Grant of Bail, Release, or Pardon. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Regalado, Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur G.R. NO. 75025. September 14, 1993. VICENTE GARCIA, Petitioner, vs. THE HONORABLE CHAIRMAN COMMISSION ON AUDIT, THE HONORABLE MINISTER LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, Respondents. DECISION BELLOSILLO, J.:

Petitioner comes to us a petition for review on certiorari of the decision of 23 July 1985 of respondent Commission on Audit (COA) denying his claim for payment of back wages, after he was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary remedy of mandamus against public respondents to enforce his claim. Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works, Transportation and communications in Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision. Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the offense charged. Consequently, petitioner sought reinstatement to his former position in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for executive clemency. On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted executive clemency to petitioner. Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him did not provided for the payment of back salaries and that he has been reinstated in the service. It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether petitioner's reinstatement was to the same position of Supervising Lineman.(*1) Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975,

the date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim. Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint,"(*2) holding that this Court is the proper forum to take cognizance of the appeal on certiorari

from the decision of the COA, citing Art. XII - (D), Sec. 2, par, of the 1973 Constitution (now Art. IX- [A], Sec. 7 of the 1987 Constitution). Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages after having been reinstated pursuant to the grant of executive clemency. In his comment to the petition, the Solicitor General recommends that the petition be given due course and the petitioner be awarded back wages to be determined in the light of existing laws and jurisprudence. The Solicitor General submits that the award is implicit in the grant of executive clemency, the ultimate objective of which is to accord full justice to petitioner. On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's acquittal in the criminal case did not necessarily free him from administrative liability; (b) petitioner's unexplained failure to appeal the decision in the administrative case was tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency was granted to petitioner for the purpose of reinstatement only since it was silent on the matter of back wages; (d) the award back wages is allowed only if the respondent is exonerated from the administrative charge or that his suspension or dismissal is declared illegal or unjustified by the court; and, (e) petitioner did not render any service during the period before his reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule. The petition is meritorious. Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with mercy. (*3) Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following circumstances: "Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. "He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress." (*4) From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the instant case partakes of the nature of an executive pardon. A reading of Resolution No. O.P. 1800 partly quoted hereunder is enlightening: "In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed no objection to the petition, while the Minister of Transportation and Communications, in his 4th Indorsement dated November 17, 1980, favorably recommended the grant of executive clemency to petitioner for the reason that while it is a rule that an administrative case is separate and distinct from a criminal case and an acquittal in the latter case does not ipso facto result in the exoneration in the former case, yet an exception could arise if the basis for the acquittal was the innocence of the accused as in the case of petitioner Garcia.

"Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil Service Commission recommends the grant of executive clemency to petitioner in view of the findings of the court that -instead of coming forward to the defense of the accused who actually was authorized to uproot or recover the poles in question and of commending the latter for his high sense of responsibility in preventing losses to the government, said high officials had even the temerity to disown and deny the authority they gave to the accused resulting in his separation from the service and having him all alone in defending himself against the accusation of the very government he tried to protect. After a careful study, this Office is inclined to grant executive clemency to petitioner in the light of the decision of the court acquitting him of the crime of qualified theft which was based on the same acts obtaining in Administrative Case No. 975 against him, coupled with favorable recommendation of the Minister of Transportation and Communications and the Civil Service Commission. "In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency."(*5) Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto v. Factoran, (*6) we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness. It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent as if he had not been found guilty of the offense charged.(*7) When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later acquitted by the trial court of the charge qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission. The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby

directing his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply to be reinstated to his former employment; his is restored to his office ipso facto upon the issuance of the clemency. Petitioner's automatic reinstatement to the government service entitles him to back wages. (*8) This is meant to afford relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those who have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them. (*9) There is no doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages. Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter."(*10) In pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to back wages. After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, petitioner should not be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the office held, including back wages. (*11) Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally dismissed government employee who has been ordered reinstated. (*12) The cases heretofore decided by this Court show that petitioners therein were employees of local governments who were removed from office by their local officials. The reasons given for their removal were abolition of office or position, reduction of work force, or lack of funds on the part of the governments concerned, which reasons were found by this Court to be either devoid of

WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 87687 December 26, 1989 ISABELO T. SABELLO, petitioner, vs. DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.

GANCAYCO, J.: In this petition filed by a non-lawyer by reason of alleged poverty, We are called upon to decide a unique issue of which shall be given more importance the legal technicalities of the law or the fundamental principles of justice and fairness. The facts are not in dispute, as follows: Petitioner, was the Elementary School Principal of Talisay and also the Assistant Principal of the Talisay Barangay High School of the Division of Gingoog City. The barangay high school was in deficit at that time due to the fact that the students could hardly pay for their monthly tuition fees. Since at that time also, the President of the Philippines who was earnestly campaining was giving aid in the amount of P 2,000.00 for each barrio, the barrio council through proper resolutions alloted the amount of P 840.00 to cover up for the salaries of the high school teachers, with the honest thought in mind that the barrio high school was a barrio project and as such therefore, was entitled to its share of the RICD fund in question. The only part that the herein petitioner played was his being authorized by the said barrio council to withdraw the above amount and which was subsequently deposited in the City Treasurer's Office in the name of the Talisay Barrio High School. That was a grave error on the part of the herein petitioner as it involves the very intricacies in the disbursement of government funds and of its technicalities. Thus, the herein petitioner, together with the barrio captain, were charged of the violation of Republic Act 3019, and both were convicted to suffer a sentence of one year and disqualification to hold public office. The herein petitioner appealed his case to the Court of appeals, Manila. The Court of appeals modified the decision by eliminating the subsidiary imprisonment in case of insolvency in the payment of one-half of the amount being involved. The herein petitioner, being financially battered, could no longer hire a lawyer to proceed to the highest court of the land. Finally, the herein petitioner was granted an ABSOLUTE PARDON by the President of the Republic of the Philippines, restoring him to 'full civil and political rights.' With this instrument on hand, the herein petitioner applied for reinstatement to the government service, only to be reinstated to the wrong position of a mere classroom teacher and not to 1 his former position as Elementary School Principal I. Petitioner now prays to this Court for the following relief:

factual basis or not sufficiently proven, otherwise, their dismissal would have been valid and justified, In contrast, the case before us is different, involving as it does circumstances that impel us to deviate from the general rule previously laid down on the recovery of back wages for five (5) years. Petitioner's reinstatement in the instant case which was ordered pursuant to a grant of executive clemency was effected not because of lack of sufficient proof of his commission of the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and, above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds it fair and just to award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment shall be without deduction or qualification.

1. (that he be) Reinstated to his former position as Elementary School Principal I; 2. His government services be made continuous since September 10, 1948 which is his original appointment until the present time; 3. (that he be) Given his back salaries corresponding to the period from September 1, 1971 to November 23,1982; 4. That all his service credits duly earned be restored; 5. And, that all other rights and privileges not mentioned herein shall 2 also be granted. (Petition, p. 2) The Solicitor General comments that there is no justiciable controversy in this case because the issue involved is whether or not petitioner merits reappointment to the position he held prior to his conviction that of Elementary Principal I. The Division of City Schools, Gingoog City, Region X, Department of Education and Culture, did not act on petitioner's request. Hence, the present petition. We believe otherwise. There is here a justiciable controversy. Petitioner claims he must be restored to the same position he was in before he was convicted on a mere technical error and for which he was given an absolute pardon. This is not a hypothetical or abstract dispute. It is not academic or moot for, to our mind, there is a definite and concrete controversy touching the legal relations of parties having adverse legal relations. This is a real and substantial controversy admitting of specific relief through a court decree that is conclusive in character. The case does not call for a mere opinion or advise, but for affirmative relief . As a general rule, the question of whether or not petitioner should be reappointed to his former position is a matter of discretion of the appointing authority, but under the circumstances of this case, if the petitioner had been unfairly deprived of' what is rightfully his, the discretion is qualified by the requirements of giving justice to the petitioner. It is no longer a matter of discretion on the part of the appointing power, but discretion tempered with fairness and justice. As to the argument that the Department of Education, Culture and Sports cannot be sued, the only answer is that its officials can be sued for alleged grave errors in their official acts. Again, We ignore technicality by considering this a suit against the officials of this government agency. Taking into consideration that this petition is filed by a non-lawyer, who claims that poverty denies him the services of a lawyer, We also set aside the requirement of exhaustion of administrative remedies and resolved to go direct to the merits of the petition. In Monsanto vs. Factoran, Jr., this Court held that the absolute disqualification from office or ineligibility from public office forms part of the punishment prescribed under the penal code and that pardon frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. Although such pardon restores his eligibility to a public office it does not entitle him to automatic reinstatement. He should apply for reappointment to said office. In the present case after his absolute pardon, petitioner was reinstated to the service as a classroom teacher by the Department of Education, Culture and Sports. As there are no circumstances that would warrant the diminution in his
3

rank, justice and equity dictate that he be returned to his former position of Elementary School Principal I and not to that of a mere classroom teacher. However, the Court cannot grant his prayer for backwages from 4 September 1, 1971 to November 23, 1982 since in Monsanto this Court said he is not entitled to automatic reinstatement. Petitioner was lawfully separated from the government service upon his conviction for an offense. Thus, although his reinstatement had been duly authorized, it did not thereby entitle him to backwages. Such right is afforded only to those who have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charge against them. In the same light, the Court cannot decree that his government service be made continuous from September 10, 1948 to the present when it is not. At any rate when he reaches the compulsory age of retirement, he shall get the appropriate retirement benefits as an Elementary School Principal I and not as a mere classroom teacher. WHEREFORE, the petition is GRANTED in that the Secretary of the Department of Education, Culture and Sports and/or his duly authorized representative is hereby directed to appoint petitioner to the position of Elementary School Principal I or it equivalent, without pronouncement as to cost. This decision is immediately executory. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 99031 October 15, 1991 RODOLFO D. LLAMAS, petitioner, vs. EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III, respondents. Mauricio Law Office for petitioner. Ongkiko, Bucoy, Dizon & Associates for private respondent.

PARAS, J.:p The case before Us calls for a determination of whether or not the President of the Philippines has the power to grant executive clemency in administrative cases. In connection therewith, two important questions are also put in issue, namely, whether or not the grant of executive clemency and the reason therefore, are political questions beyond judicial review, and whether or not the questioned act was characterized by grave abuse of discretion amounting to lack of jurisdiction. Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on March 1, 1991 he assumed, by virtue of a decision of the Office of the President, the governorship (p. 1, Petition). Private respondent Mariano Un Ocampo III is the incumbent Governor of the Province of Tarlac and was suspended from office for a period of 90 days. Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this petition and is being impleaded herein in that official capacity for having issued, by authority of the President, the

assailed Resolution granting executive clemency to respondent governor. Sometime in 1989, petiotioner, together with Tarlac Board Members Marcelino Aganon, Jr. and Arnaldo P. Dizon, filed on June 13, 1989 a verified complaint dated June 7, 1989 against respondent governor before the then Department of Local Government (DLG, for short), charging him with alleged violation of Section 203(2) (f) 203(2) (p), and 208(w), of Batas Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, and other appropriate laws, among them, the AntiGraft and Corrupt Practices ACt. Prior to that, petitoner filed with the Office of the Omdusman a verified complainant dated November 10, 1988 against respondent governor for the latter's alleged viloation of Section 3-G of Republic Act. (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The complaint before the DLG, docketed as Administrative Case 10459, was subsequently tried, where both petitioner and respondent govemor presented their respective evidence. Petitioner maintains that sometime in August, 1988, respondent governor, in his official capacity as Provincial Governor Tarlac, entered into and executed a Loan Agreement with Lingkod Tarlac Foundation, Inc., a non-stock and non-profit organization headed by the governor himself as chairman and controlled by his brother-in-law as executive director, trustee, and secretary; that the said Loan Agreement was never authorized and approved by the Provincial Board, in direct contravention of the provisions of the Local Government Code; that the said Agreement is wholly one-sided in favor of the Foundation and grossly inimical to the interest of the Provincial Government (because it did not provide for interest or for any type security and it did not provide for suretyship and comptrollership or audit to control the safe disbursement of said loan); that a total amount of P20,000,000.00 was disbursed to the aforesaid Foundation; that the transactions constitute a fraudulent scheme to defraud the Provincial Government; and that the said Agreement is wholly unconstitutional, illegal, a immoral. (Annex "A", Petition) On the other hand, it is the contention of respondent governor that "the funds were intended to generate livelihood project among the residents of Tarlac and the use of the Lingkod Tarlac Foundation, Inc. was authorized by law and considered the best alternative as a matter of judgment." (pp. 12-13, Appeal Memorandom); that he resigned from the said Foundation in order to forestall any suspicion that he would influence it; that it is not true that the Loan Agreement did not provide for continuing audit by the Provincial Government because the Memorandum of Agreement provides otherwise; and that the Agreement is not manifestly and grossly disadvantageous to the Provincial Government and respondent governor did not and would not profit thereby because it provided sufficient safeguards for repayment. (Annex "A", Petition) After trial, the Secretary of the then Department of Local Government rendered a decision dated September 21, 1990, dispositive portion of which reads: WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having violated Section 3(g) of Republic Act No.3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which act amounts to serious neglect of duty and/or abuse of authority, for which tilp penalty of suspension from office for a period of ninety (90) days, effective upon the finality of this Decision, is hereby imposed upon him. (p. 3, Petition) Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a penalty of suspension.

Respondent govemor moved for a reconsideration of the abovequoted decision but the same was denied on October 19, 1990. Aggrieved, he appealed the DLG decision dated September 21, 1990 and the order of denial dated October 19, 1990 to the Office of the President (O.P. Case No. 4480). On February 26, 1991, herein public respondent Executive Secretary issued a Resolution dismissing respondent governor's appeal and affirming the September 21, 1990 DLG decision. Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the decision of the Office of the President in administrative suspension of local officials shall be immediately executory without prejudice to appeal to appropriate courts, petitioner, on March 1, 1991, took his oath of office as acting governor. Under the administrative suspension order, petitioner had up to May 31, 1991 as acting governor. On the same date (March 1, 1991), respondent govemor moved for a reconsideration of the Executive Secretary's Resolution, to which petitioner filed an opposition. From the allegations of the petitioner in his petition, respondent govemor accepted his suspension and turned over his office to petitioner. To the surprise of petitioner, however, respondent govemor on March 19, 1991, issued an "administrative order" dated March 8, 1991, in which the latter signified his intention to "(continue, as I am bound to exercise my fimctions as govemor and shall hold office at my residence," in the belief that "the pendency of my Motion for Reconsideration precludes the coming into finality as executory the DLG decision." (Annex "E", Petition; p. 10, Comment). And, as categorically stated in the petition, the reassumption ceremony by respondent governor was held on May 21, 1991 (p. 8, Petition). Without ruling on respondent governor's Motion for Reconsideration, public respondent issued a Resolution dated May 15, 1991, in O.P. Case No. 4480, which reads: This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency, interposed in connection with the decision of the Secretary of then Department of Local Governmen (DLG) dated 21 September 1990, as affirmed in a Resolution of this Office dated 26 February 1991, suspending petitioner from office for period of ninety (90) days upon the finality of said decision. As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding that petitioner was guilty of serious neglect of duty and/or abuse of authority for entering into a loan contract with the Lingkod Tarlac Foundation, Inc. (LTFI) grossly/manifestly disadvantageous to Tarlac Province. In his letter-petition of 10 May 1991, thereby pleading for a thirty (30)-day reduction of his suspension, petitioner invited attention to the DLG Secretary's decision clearing him of having personally benefitted from the questioned transaction. In the same letter, petitioner manifests serving more than sixty (60) days of the ninety-day suspension. Previously, petitioner submitted documents and letters from his constituents tending to show the relative success of his livelihood loan program pursue under the aegis of the LTFI and/or the Foundation's credible loan repayment record. To cite some: 1. Certification of the Chairman,Tarlac Integrated Livelihood Cooperative, Inc., attesting to the full payment of its loan (P15.05 M) plus interest with LTFI; 2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual liquidation of the loan granted to familyborrowers out of funds provided by LTFI;

3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export activities by LTFI; 4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan from LTFI have bee utilized in hybrid com production; and 5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc., informing of the payment of 76 of the amount (P203,966.00) loaned to the Federation for tobacco production. Petitioner's act, vis-a-vis the loan to LTFI, may have been promp by an over eagerness to accelerate the delivery of livelihood services to his provincemates. As the truism goes, however, the end does not always justify the means. Be that as it may, but without belaboring the propriety of the loan agreement aforementioned, some measure of leniency may be accorded petitioner as the purpose of his suspen sion may have made its mark. WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in the sense that his ninety-day suspension is hereby reduced to the period already served. SO ORDERED. (Annex "F", Petition; pp. 25-26, Rollo) By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of the province, allegedly withou any notification made to the petitioner. Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was "whimsical, capricious and despotic, and constituted grave abuse of discretion amounting lack of jurisdiction," (p. 6, petition) basically on the ground th executive clemency could be granted by the President only in criminal cases as there is nothing in the statute books or even in the Constitution which allows the grant thereof in administrative cases. Petitioner also contends that since respondent governor refused to recognize his suspension (having reassumed the governorship in gross defiance of the suspension order), executive clemency cannot apply to him; that his rights to due process were violated because the grant of executive clemency was so sudden that he was not even notified thereof; and that despite a finding by public respondent of impropriety in the loan transaction entered into by respondent governor, the former failed to justify the reduction of the penalty of suspension on the latter. Petitioner further alleges that the exftutive clemency granted by public respondent was "the product of a hocus-pocus strategy" (p. 1, Manifestation with Motion, etc.) because there was allegedly no real petition for the grant of executive clemency filed by respondent govemor. Batas Pambansa Blg. 337 provides: Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, ... (2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense s warrants, or when the continuance in office of the respondent coul influence the witnesses or pose a threat to the safety and integrity the records and other evidence. In all cases, preventive suspension shall not

extend beyond sixty days after the start of said suspension. (3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation the proceedings against him until its termination. (Emphasis supplied) It is admitted by petitioner that since March 1, 1991, he has assumed the governorship. A portion of the petition is hereon der quoted as follows: 7. [On February 28, 1991], and in accordance with the provisions of the Local Government Code (Sec. 66, Chapter 4, Batas Pambansa Blg. 337), to the effect that the decision of the Office of the President in an administrative suspension of local officials shall be immediately executory without prejudice to appeal to appropriate courts, Petitioner Llamas took his oath of office as acting govemor. Under the administrative suspension order, Llamas had up to May 31 [sic 29] 1991 as acting governor; 8. A copy of this oath of office is attached and made a part hereof as Annex B; 9. Significantly, this oath of office was sworn to by Petitioner Llamas before Secretary Santos of the newly created Department Interior and Local Government, as shown by the lower portion Annex B, and by a picture of the oathtaking itself, attached and mad a part hereof as Annex B-1; 10. Subsequently, Petitioner Llamas and Respondent Ocampo met, where Ocampo was shown Llamas' oath of office. During meeting, held in the presence of all department heads at the provi cial capitol and in the presence of various local government offici and representatives of the media, Ocampo agreed to turn over reigns of the provincial government to Petitioner; 11. In fact, Ocampo had asked the department heads and all other officials of the provincial government of Tarlac to extend their cooperation to Llamas, during the ninety days that the latter would assume the governorship; 12. And, as if this was not enough, Ocampo even made announcements in the media that he was allowing Petitioner Llamas to perform his functions as acting governor at the Office of the Govern at the Capitol where he (Ocampo) used to hold office (true enough Ocampo has subsequently allowed Llamas to hold office at the of the Governor, with Ocampo even escorting the acting therein last March 4, 1991); l 3. An account of Ocampo's acceptance of his suspension and of his having turned over his office to Petitioner Llamas was published, front page, in the March 5, 1991 issue of the Manila Bulletin. A copy of this news account is attached and made a part hereof as Annex C); 14. Furthermore, various other officials, President Aquino Rep. Jose Cojuangco included, have extended recognition to Petitions Llamas' assumption of the governorship. Llamas met with President Aquino and Rep. Cojuangco and, during this meeting, the two highest officials of the land have asked Llamas to discharge his duties acting governor; 15. Secretary Santos, for that matter, has issued a designation to Tarlac Senior Board Member Aganon, dated March 18, 1991, a pointing bim as acting vice governor of the province, "in view of the suspension of Gov. Mariano Un Ocampo III, and the assumption Vice Governor Rodolfo Llamas as acting governor." A copy of this designation is attached and made a part hereof as Annex D;

xxx xxx xxx 30. ... [T]he reassumption ceremony by [Governor] Ocampo was held [in the] morning of May 21, 1991 ... (pp- 2-4 & 7, Petition; pp. 3-5 & 8, Rollo) It is prayed in the instant petition dated May 21, 1991 that: b. In the meantime that this action is pending, and irnmediately upon the filing hereof, a temporary restraining order be issued stopping the Respondents from enforcing, in any manner, the aforesaid contested resolution, and Respondent Ocampo, firom continuing with his reassumption of the governorship. IN THE ALTERNATIVE, that a cease and desist order be issued against Respondent Ocampo stopping him from continuing with hiii reassumption of the governorship. Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the Constitution fiffl discretionary authority is granted to the President on the exercise of executive clemency, the same constitutes a political question which is beyond judicial review. Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity of such discretionary powers or whether said powers are within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such review does not constitute a modification or correction of the act of the President, nor does it constitute interference with the functions of the President. In this connection, the case of Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051, is very enlightening, and We quote: Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Consfitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers. As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but, within these limits, they do permit the departments, separately or together, to recognize that a certain set of facts exists or that a given status exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts. (Willoughby on the Constitution of the United States, Vol. 3, p. 1326). xxx xxx xxx What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the goverrunent, with discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L.R.A. 561; In Re Gunn, 50 Fan. 155; 32 Pac. 470, 948, 19 L. RA. 519; Green vs. Mills, 69 Fed. 852, 16, C. CA 516, 30 L.R.A- 90; Fletcher vs. Tuttle, 151 111, 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law

or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political question, but because they are matters which the people have by the Constitute delegated to the Legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the Constitution and laws have placed the particular matter under his control. But every officer under a constitutional government must act according to law and subject him to the restraining and controlling power of the people, acting through the courts, as well as through the executive or the Legislature. One department is just as representative as the other, and the judiciary the department which is charged with the special duty of determinining the limitations which the law places upon all official action. The recognition of this principle, unknown except in Great Britain and America, is necessary, to "the end that the government may be one of laws and not men" words which Webster said were the greatest contained in any written constitutional document. Besides, under the 1987 Constitution, the Supreme Court has been conferred an "expanded jurisdiction" to review the decisions of the other branches and agencies of the government to determine whether or not they have acted within the bounds of the Constitution (See Art. VIII, Sec. 1, Constitution). "Yet, in the exercise thereof, the Court is to merely check whether or not the govermental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view" (Co vs. Electoral Tribunal of the House of Representatives & Ong, G.R. Nos. 92191-92 and Balanquit vs. Electoral Tribunal of the House of Representatives & Ong, G.R Nos. 92202-03, July 30, 1991). In the case at bar, the nature of the question for determination is not purely political. Here, we are called upon to decide whether under the Constitution the President may grant executive clemency in administrative cases. We must not overlook the fact that the exercise by the President of her power of executive clemency is subject to constitutional l'um'tations. We will merely check whether the particular measure in question has been in accordance with law. In so doing, We will not concern ourselves with the reasons or motives which actuate the President as such is clearly beyond our power of judicial review. Petitioner's main argument is that the President may grant executive clemency only in criminal cases, based on Article VII, Section 19 of the Constitution which reads: Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the President may grant reprieves, commu tations, and pardons, and remit fines and forfeitures, after convictionby final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress. (Emphasis supplied) According to the petitioner, the qualifying phrase "after conviction by final judgment" applies solely to criminal cases, and no other law allows the grant of executive clemency or pardon to anyone who has been "convicted in an administrative case," allegedly because the word "conviction" refers only to criminal cases (par. 22-b, c, d, Petition). Petitioner, however, describes in his very own words, respondent governor as one who has been "convicted in an administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction" may be used either in a criminal case or in an administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536, We ruled:

For misfeasance or malfeasance ... any [elective official] could ... be proceeded against administratively or ... criminally. In either case, his culpability must be established ... It is also important to note that respondent govemor's Motion for Reconsideration filed on March 1, 1991 was withdrawn in his petition for the grant of executive clemency, which fact rendered the Resolution dated February 26, 1991 affirming the DLG Decision (which found respondent governor guilty of neglect of duty and/or abuse of authority and which suspended him for ninety (90) days) final. Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We cannot sustain petitioner's view. In other words, if the law does not distinguish, so We must no distinguish. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's proposed interpretation, cases of impeachment are automatically excluded inasmuch as the same do not necessarily involve criminal offenses. In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant executive clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses. A number of laws impliedly or expressly recognize or support the exercise of the executive clemency in administrative cases. Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove administrative penalties or disabilities issued upon officers and employees, in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service." During the deliberations of the Constitutional Commission, a subject of deliberations was the proposed amendment to Art. VII, Sec. 19 which reads as follows: "However, the power to grant executive clemency for violation of corrupt practices laws may be limited by legislation."The Constitutional Commission, however, voted to remove the amendment, since it was in derogation of the powers of the President. As Mr. Natividad stated: I am also against this provision which will again chip more powers from the President. In case of other criminals convicted in our society we extend probation to them while in this case, they have already been convicted and we offer mercy. The only way we can offer mercy to them is through this executive clemency extended to them by the President. If we still close this avenue to them, they would be prejudiced even worse than the murderers and the more vicious killers in our society .... The proposal was primarily intended to prevent the President from protecting his cronies. Manifestly, however, the Commission preferred to trust in the discretion of Presidents and refrained from putting additional limitations on his clemency powers. (II RECORD of the Constitutional Commission, 392, 418-419, 524-525) It is evident from the intent of the Constitutional Commission, therefore, that the President's executive clemency powers may not be limited in terms of coverage, except as already provided in the Constitution, that

is, "no pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by the President without the favorable recommendation of the COMELEC" (Article IX, C, Section 5, Constitution). If those already adjudged guilty criminally in court may be pardoned, those adjudged guilty administratively should likewise be extended the same benefit. In criminal cases, the quantum of evidence required to convict an individual is proof beyond reasonable doubt, but the Constitution grants to the President the power to pardon the act done by the proved criminal and in the process exempts him from punishment therefor. On the other hand, in administrative cases, the quantum of evidence required is mere substantial evidence to support a decision, not to mention that as to the admissibility of evidence, administrative bodies are not bound by the technical and rigid rules of admissibility prescribed in criminal cases. It will therefore be unjust and unfair for those found guilty administratively of some charge if the same effects of pardon or executive clemency cannot be extended to them, even in the sense of modifying a decision to subserve the interest of the public. (p. 34, Comment of public respondent) Of equal importance are the following provisions of Executive Order No. 292, otherwise known as the Administrative Code of 1987, Section I, Book III of which provides: SECTION 1. Power of Control. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. SECTION 38. Definition of Administrative Relationships. Unless otherwise expressly stated in the Code or in other laws defining the special relationships of particular agencies, administrative relationships shall be categorized and defined as follows: (1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies the word "control" shall encompass supervision and control as defined in this paragraph. ... (emphasis supplied) The disciplinary authority to investigate, suspend, and remove provincial or city officials devolves at the first instance on the Department of Interior and Local Government (Secs. 61 and 65, B.P. Blg. 337) and ultimately on the President (Sec. 66). Implicit in this authority, however, is the "supervision and control" power of the President to reduce, if circumstances so warrant, the imposable penalty or to modify the suspension or removal order, even "in the sense" of granting executive clemency. "Control," within the meaning of the Constitution, is the power to substitute one's own judgment for that of a subordinate. Under the doctrine of Qualified Political Agency, the different executive departments are mere adjuncts of the President. Their acts are presumptively the acts of the President until countermanded or reprobated by her (Vinena v. Secretary, 67 Phil. 451; Free Telephone Workers Union vs. Minister of Labor and Employment, 108 SCRA 767 [1981]). Replying upon this view, it is urged by the Solicitor General that in the present case, the President, in the exercise of her power of supervision and control over all executive departments, may substitute her decision for that of her subordinate, most especially where the basis therefor would be to serve the greater public interest. It is clearly within the power of the President not only to grant "executive clemency" but also to reverse or modify a ruling issued by a subordinate against an

erring public official, where a reconsideration of the facts alleged would support the same. It is in this sense that the alleged executive clemency was granted, after adducing reasons that subserve the public interest. "the relative success of . . . livelihood loan program." (pp. 39-40, Comment of public respondent) We wish to stress however that when we say the President can grant executive clemency in administrative cases, We refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the government. Noteworthy is the fact that on March 1, 1991, respondent governor filed a motion for reconsideration and the same may be regarded as implicitly resolved, not only because of its withdrawal but also because of the executive clemency which in effect reduced the penalty, conformably with the power of "control." On petitioner's argument that private respondent's motion for reconsideration has abated the running of the reglementary period for finality of judgment in O.P. Case No. 4480 (that is, there being no final judgment to speak of, the pardon granted was premature and of no effect, We reiterate the doctrine that upon acceptance of a presidential pardon, the grantee is deemed to have waived any appeal which he may have filed. Thus, it was held that: The commutation of the penalty is impressed with legal significance. That is an exercise of executive clemency embraced in the pardoning power. According to the Constitution: "The President may except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the concurrence of the Batasang Pambansa, grant amnesty. "Once granted, it is binding and effective. It serves to put an end to this appeal." (Mansanto v. Factoran, Jr., G.R. No. 78239, 170 SCRA 190. 196). (See also Peo v. Crisola, 129 SCRA 13) Consequently, respondent governor's acceptance of the presidential pardon "serves to put an end" to the motion for reconsideration and renders the subject decision final, that of the period already served. Finally, petitioner's argument that his constitutional rights to due process were violated is uruneritorious. Pardon has been defined as "the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court. ..." (Bernas, The Constitution of the Philippines, Vol. II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]). Thus, assuming that petitioner was not notified of the subject pardon, it is only because said notice is unnecessary. Besides, petitioner's claim that respondent governor has not begun serve sentence is belied by his very own factual allegations in his petition, more particularly that he served as Acting Governor of Tarlac effective from the date he took his Oath of Office on February 28, 1991 up to the time respondent govemor reassumed the governorship of Tarlac on May 21, 1991 (par. 30 petition). It is, therefore, error to say that private respondent did not serve any portion of the 90-day suspension meted upon him. We fail to see any grave abuse of discretion amounting to lack or in excess of jurisdiction committed by public respondent. WHEREFORE, judgment is hereby rendered: (1) DECLARING that the President did not act arbitrarily or with abuse, much less grave abuse of discretion in issuing the May 15, 1991 Resolution granting on the grounds mentioned therein, executive clemency to respondent governor and that, accordingly, the same is not unconstitutional (without prejudice to criminal proceedings which have been filed or may be filed against respondent governor), and (2) DENYING the rest of the prayers in the petition for being unmeritorious, moot and academic. No costs.

SO ORDERED. Fernan, C.J., Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. Melencio-Herrera, J., is on leave. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-14279 October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners, vs. EASTERN SEA TRADING, respondent. Office of the Solicitor General for petitioners. Valentin Gutierrez for respondent. CONCEPCION, J.: Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of Customs. Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments came from Japan and others from Hong Kong. In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for alleged violations of section 1363(f) of the Revised Administrative Code, in relation to the aforementioned circulars of the Central Bank. In due course, the Collector of Customs of Manila rendered a decision on September 4, 1956, declaring said goods forfeited to the Government and the goods having been, in the meantime, released to the consignees on surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof directing that the amounts of said bonds be paid, by said principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days from notice. On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December 27, 1956. Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court of Tax Appeals, which reversed the decision of the Commissioner of Customs and ordered that the aforementioned bonds be cancelled and withdrawn. Hence, the present petition of the Commissioner of Customs for review of the decision of the Court of Tax Appeals. The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate transactions not involving foreign exchange; that the shipments in question are in the nature of "no-dollar" imports; that, as such, the aforementioned shipments do not involve foreign exchange; that, insofar as a Central Bank license and a certificate authorizing the importation or release of the goods under consideration are required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and forfeiture of the goods imported from 1 Japan cannot be justified under Executive Order No. 328, not only 2 because the same seeks to implement an executive agreement 3 4 extending the effectivity of our Trades and Financial Agreements with Japan which (executive agreement), it believed, is of dubious validity, but, also, because there is no governmental agency authorized to issue the import license required by the aforementioned executive order.

The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars Nos. 44, and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274 [November 29, 1960]), for the reason that the broad powers of the Central Bank, under its charter, to maintain our monetary stability and to preserve the international value of our currency, under section 2 of Republic Act No. 265, in relation to section 14 of said Act authorizing the bank to issue such rules and regulations as it may consider necessary for the effective discharge of the responsibilities and the exercise of the powers assigned to the Monetary Board and to the Central Bank connote the authority to regulate no-dollar imports, owing to the influence and effect that the same may and do have upon the stability of our peso and its international value. The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of said executive agreement. The concurrence of said House of Congress is required by our fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct and different from "executive agreements," which may be validly entered into without such concurrence. Treaties are formal documents which require ratification with the approval of two thirds of the Senate. Executive agreements become binding through executive action without the need of a vote by the Senate or by Congress. xxx xxx xxx

policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements. xxx xxx xxx

Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale Law Journal, Vol. 15, pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Emphasis supplied.) In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on "The Constitutionality of Trade Agreement Acts": Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more formal documents denominated "agreements" time or "protocols". The point where ordinary correspondence between this and other governments ends and agreements whether denominated executive agreements or exchanges of notes or otherwise begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of them were concluded not by specific congressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly those with respect of the settlement of claims against foreign governments, were concluded independently of any legislation." (39 Columbia Law Review, pp. 651, 755.) The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights provided for in the Ordinance Appended to our Constitution were, prior thereto, the subject of an executive agreement, made without the concurrence of two-thirds (2/3) of the Senate of the United States. Lastly, the lower court held that it would be unreasonable to require from respondent-appellee an import license when the Import Control Commission was no longer in existence and, hence, there was, said court believed, no agency authorized to issue the aforementioned license. This conclusion is untenable, for the authority to issue the aforementioned licenses was not vested exclusively upon the Import Control Commission

. . . the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts. xxx xxx xxx

Agreements with respect to the registration of trade-marks have been concluded by the Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions regulating the reciprocal treatment of mail matters, money orders, parcel post, etc., have been concluded by the Postmaster General with various countries under authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239). Ten executive agreements were concluded by the President pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were entered into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements, along the lines of the one with Rumania previously referred to, providing for most-favored-nation treatment in customs and related matters have been entered into since the passage of the Tariff Act of 1922, not by direction of the Act but in harmony with it. xxx xxx xxx

International agreements involving political issues or changes of national

or Administration. Executive Order No. 328 provided for export or import licenses "from the Central Bank of the Philippines or the Import Control Administration" or Commission. Indeed, the latter was created only to perform the task of implementing certain objectives of the Monetary Board and the Central Bank, which otherwise had to be undertaken by these two (2) agencies. Upon the abolition of said Commission, the duty to provide means and ways for the accomplishment of said objectives had merely to be discharged directly by the Monetary Board and the Central Bank, even if the aforementioned Executive Order had been silent thereon. WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered affirming that of the Commissioner of Customs, with cost against respondents defendant-appellee, Eastern Sea Trading. It is so ordered. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon and De Leon, JJ., concur. Barrera, J., took no part.