EN BANC

respondent to explain why she should not be

administratively dealt with for the following:4

[A.M. No. P-97-1247. May 14, 1997]

(Formerly A.M. OCA I.P.I.1 No. P-97-1247)
NARITA RABE, complainant, vs. DELSA M.
FLORES, Interpreter III, RTC, Branch
IV, Panabo, Davao, respondent.
DECISION
PER CURIAM:
In an administrative complaint for "Conduct
Unbecoming a Government Employee, Acts
Prejudicial to the Interest of the Service and
Abuse of Authority" dated August 18, 1995,
Complainant Narita Rabe,2 by counsel, charged
Respondent Delsa M. Flores, Interpreter III at
the Regional Trial Court, Branch IV, Panabo,
Davao, as follows:3
"(Mrs.) Flores took advantage of her
position as a court employee by
claiming a stall at the extension of the
Public Public (sic) Market when she is
(sic) not a member of our client's
association and was never a party to
Civil Case No. 89-23. She herself
knows (sic) that the stalls in the said
area had already been awarded to our
client's members pursuant to the
decision of the court on October 30,
1991. Worse, she took the law into her
hands when she destroyed the stall of
our client and brought the materials to
the police station of Panabo, Davao."
After respondent filed her answer, the Court
issued a Resolution dated January 17, 1996,
absolving her of the charge. In the same
resolution, however, the Court required

"x x x a) why she obtained a

certification dated June 18, 1991
issued by Atty. Victor R. Ginete, Clerk
of Court, same court, that she started
performing her duties as (an)
interpreter on May 16, 1991 when (1)
according to a certification dated June
17, 1991 issued by Mr. Jose B.
Avenido, Municipal Treasurer, Panabo
Davao, she was employed in the office
of the Municipal Assessor as
Assessment Clerk I since February 1,
1990 to June 3, 1991 with her last
salary being paid by said office on
June 3, 1991; and (2) she took her
oath of office before Judge Mariano C.
Tupas only on June 17, 1991;
b) why she did not report said business
interest in her sworn statement of
Assets, Liabilities and Net Worth,
Disclosure of Business Interests and
Financial Connections, and
Identification of Relatives in the
Government Service for the years
1991, 1992, 1993, and 1994;
c) why she has not divested herself of
her interest in said business within
sixty (60) days from her assumption
into (sic) office; and
d) why she has indicated in her DTRs
for August 1995 that she worked on
August 15-18, 21, 23-25 and 28-31 and
for September, 1995 that she worked
for all its twenty one (21) working days
when her Contract of Lease with the
Municipal Government of Panabo for
the market stall in its Section 7 clearly
states that she has to personally

conduct her business and be present

at the stall otherwise the same would
be canceled as per its Section 13."
Respondent Flores, in a letter dated
February 13, 1996, explains that, as stated in
the certification of Atty. Ginete, she assumed her
job in the Regional Trial Court, Branch IV,
Panabo, Davao on May 16, 1991, in compliance
with the directive from this Court for her to start
working on the said date. Respondent further
states that "even prior to said date (May 16,
1991)" she already reported to the court in order
to familiarize herself with the scope of her
duties.5
Respondent Flores also admits that she
had received from the municipality a salary for
the period May 16 1991 May 31, 1991,
notwithstanding her transfer to the judiciary on
May 16, 1991. She submits, however, the
following justification:6
"I admit that I received my last salary in
the amount of One Thousand and
80/100 (P1,000.80) Pesos from the
Local Government Unit from May 1631, 1991 but farthest from my mind is
the intent to defraud the government. It
was my desire all the time to refund the
amount the moment my salary is
received from the Supreme Court,
unfortunately more often than not (the
salary) is received three or four months
after assumption of office.
As we all know the month of May and
June is the time we enroll our children
in school thus the money I got that
month from the Local Government Unit
came handy in defraying registration
expenses of my four children. The
passage of time coupled with some
intervening events, made me oblivious

of my obligation to refund the

money. However, when my attention
was called on the day I received the
copy of the resolution, I took no time in
refunding the same."
Respondent alleges that the certification of
Municipal Treasurer Jose V. Avenido is
inaccurate because it was on January 25, 1990
that she was appointed as Assessment Clerk
I.7According to respondent, she took her oath on
June 17, 1991, simply because it was on that
date that she received a copy of her oath form. 8
Respondent avers that she did not divulge
any business interest in her Sworn Statement of
Assets and Liabilities and Financial Disclosure
for the years 1991-1994 because she "was
never engaged in business during said period
although I had a stall in the market."9
Respondent further avers that her Daily
Time Record indicated that she held office on
August 15, 18, 21, 23 to 25 and 28, 31 and all
the working days of September, 1995 "because
in truth and in fact x x x (she) did hold office on
those days." This was because her contract of
lease with the Municipal Government of Panabo
was never implemented as it became the
subject of "Civil Case No. 95-53 -- Panabo
Public Market Vendors Assn. Inc. and Pag-ibig
Ng Gulayan Ass. Inc. Vs. Municipality of
Panabo, et al., for Declaration of Nullity of Mun.
Ord. No. XLV, Series of 1994."10
The Court referred the matter to the Office
of the Court Administrator for evaluation, report
and recommendation. In its report, the OCA
found respondent guilty of dishonesty and failure
to
report
her
business
interest,
and
recommended that the penalty of dismissal be
imposed on her. The Court finds that the report
and recommendation of the OCA is in accord
with the evidence and the law. We hold the
explanation
of
respondent

unsatisfactory. Respondent's
evident from the records.

misconduct

is

By her own admission, respondent had

collected her salary from the Municipality of
Panabo for the period of May 16-31, 1991, when
she was already working at the RTC. She knew
that she was no longer entitled to a salary from
the municipal government, but she took it just
the same. She returned the amount only upon
receipt of the Court Resolution dated January
17, 1996, or more than five (5) years later. We
cannot countenance the same. Respondent's
conduct is plain dishonesty.
Her explanation, as observed earlier, is
unsatisfactory. Her overriding need for money
from the municipal government, aggravated by
the alleged delay in the processing of her initial
salary from the Court, does not justify receipt of
a salary not due her. We sympathize with
respondent's sad plight of being the sole
breadwinner of her family, with her husband and
parents to feed and children to send to
school. This, however, is not an acceptable
excuse for her misconduct. If poverty and
pressing financial need could justify stealing, the
government would have been bankrupt long
ago. A public servant should never expect to
become wealthy in government.
But there is really more to respondents'
defense of poverty. If respondent was just driven
by dire pecuniary need, respondent should have
returned the salary she had obtained from the
Municipal Government of Panabo as soon as
she obtained her salary from the court. However,
she returned the money only after receipt of the
Court's Resolution dated January 17, 1996,
saying that she forgot all about it. Forgetfulness
or failure to remember is never a rational or
acceptable explanation.
In Macario Flores vs. Nonilon Caniya,
Deputy Sheriff, RTC, Imus, Cavite,11 this Court
ruled that a sheriff who failed to issue an official

receipt for the money entrusted to him for the

purpose of satisfying a judgment debt, "had
really wanted to misappropriate the said
amount." Inevitably, he was dismissed from
service with forfeiture of all retirement benefits
and accrued leave credits, with prejudice to reemployment in any branch or instrumentality of
the government, including government-owned or
controlled corporations.
It is well to stress once again the
constitutional declaration that a "(p)ublic office is
a public trust. Public officers and employees
must at all times be accountable to the people,
serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and
justice, and lead modest lives."12
We have repeatedly held that although
every office in the government service is a public
trust, no position exacts a greater demand for
moral righteousness and uprightness from an
individual than in the judiciary. Personnel in the
judiciary should conduct themselves in such a
manner as to be beyond reproach and
suspicion, and free from any appearance of
impropriety in their personal behavior, not only in
the discharge of their official duties but also in
their everyday life. They are strictly mandated to
maintain good moral character at all times and
to observe irreproachable behavior so as not to
outrage public decency.13
This Court, in JPDIO vs. Josephine
Calaguas, Records Officer, OCC, MTCC,
Angeles City,14 held:
"The Court must reiterate that a public
office is a public trust. A public servant
is expected to exhibit, at all times, the
highest degree of honesty and integrity
and should be made accountable to all
those whom he serves."

Respondent's malfeasance is a clear

contravention of the constitutional dictum that
the State shall "maintain honesty and integrity in
the public service and take positive and effective
measures against graft and corruption."15
Under the Omnibus Rules Implementing
Book V of EO No. 292 known as the
"Administrative Code of 1987" and other
pertinent Civil Service Laws, the penalty for
dishonesty is dismissal, even for the first
offense.16 Accordingly,
for
respondent's
dishonesty in receiving and keeping what she
was not lawfully entitled to, this Court has the
duty to impose on her the penalty prescribed by
law: dismissal.
Apart from the above finding, we also note
the contradiction between the certification issued
by Municipal Treasurer Jose Avenido stating that
respondent had worked as an assessment clerk
in his office up to June 3, 1991, and the
certification of Clerk of Court Victor Ginete
stating that respondent started working as an
interpreter on May 16, 1991. Although
specifically asked by the Court to explain this
contradiction, respondent could only state that
the certification of the treasurer is inaccurate
because she assumed her position as
Assessment Clerk on January 25, 1990 and not
on February 1, 1990 as written in the said
certification. Respondent, however, failed to
explain the gravamen of the inquiry, i.e., that she
was certified to be still connected with the
Municipal Government of Panabo on June 3,
1991, notwithstanding her assumption of her
post in the Regional Trial Court as early as May
16, 1991. To the mind of the Court, respondent's
inability to explain this discrepancy is consistent
with her failure to satisfactorily explain why she
knowingly received and kept a salary she was
not entitled to. Worse, it may be indicative of a
conscious design to hold two positions at the
same time.

Aside
from
dishonesty,
however,
respondent is also guilty of failure to perform her
legal obligation to disclose her business
interests. Respondent herself admitted that she
"had a stall in the market." The Office of the
Court Administrator also found that she had
been receiving rental payments from one
Rodolfo Luay for the use of the market
stall. That respondent had a stall in the market
was undoubtedly a business interest which
should have been reported in her Sworn
Statement of Assets and Liabilities. Her failure to
do so exposes her to administrative sanction.
Section 8 of Republic Act No. 6713
provides that it is the "obligation" of an employee
to submit a sworn statement, as the "public has
a right to know" the employee's assets,
liabilities, net worth and financial and business
interests. Section 11 of the same law prescribes
the criminal and administrative penalty for
violation of any provision thereof. Paragraph (b)
of Section 11 provides that "(b) Any violation
hereof proven in a proper administrative
proceeding shall be sufficient cause for removal
or dismissal of a public official or employee,
even if no criminal prosecution is instituted
against him."
In the present case, the failure of
respondent to disclose her business interest
which she herself admitted is inexcusable and is
a clear violation of Republic Act No. 6713.
The respondent's claim that her contract of
lease of a market stall was never implemented
because it became the subject of a civil case,
fails to convince us. We agree with the finding of
the OCA on respondent's guilt for this separate
offense. It is a finding, which further supports its
recommendation for respondent's dismissal, to
wit:17
"The case respondent is referring to
was filed in 1995. This can be seen
from the number of the case which is

95-93. Earlier than the filing of the

case, respondent was already
collecting rentals -- as early
as February 22, 1991 -- from one
Rodolfo Luay who was operating a
business without the necessary
license.
Respondent should have, therefore,
indicated in her 'Sworn Statement of
Assets, Liabilities and Net Worth,
Disclosure of Business Interests and
Financial Connections, and
Identification of Relatives in the
Government Service' for the years
1991, 1992, 1993, 1994 and 1995 that
she had a market stall in the Public
market of Panabo, Davao.
She admits that she never indicated such in her
sworn statements.
As this Office had earlier stated in its
Memorandum dated November 10, 1995 filed in
connection with the instant complaint:
'Such non-disclosure is
punishable with
imprisonment not exceeding
five (5) years, or a fine not
exceeding five thousand
(P5,000.00) pesos, or
both. But even if no criminal
prosecution is instituted
against the offender, the
offender can be dismissed
from the service if the
violation is proven.
Respondent 201 file speaks
for itself.
Furthermore, respondent
should have divested herself
of her interest in said
business within sixty (60)

days from her assumption

into (sic) office. She has
not. The penalty for nondisclosure of business
interests and non-divestment
is the same."' (Citations
omitted.)
In her explanation, respondent maintains
the position that she has no business interest,
implicitly contending that there is nothing to
divulge or divest from. As discussed above,
respondent had a business interest. We do not
find her administratively liable, however, for
failure to divest herself of the said interest. The
requirement for public officers, in general, to
divest themselves of business interests upon
assumption of a public office is prompted by the
need to avoid conflict of interests. 18 In the
absence of any showing that a business interest
will result in a conflict of interest, divestment of
the same is unnecessary. In the present case, it
seems a bit far-fetched to imagine that there is a
conflict of interest because an Interpreter III of
the Regional Trial Court has a stall in the
market. A court, generally, is not engaged in the
regulation of a public market, nor does it
concern itself with the activities thereof. While
respondent may not be compelled to divest
herself of her business interest, she had the
legal obligation of divulging it.
WHEREFORE, in conformity with the
recommendations of the Office of the Court
Administrator, Interpreter III Delsa M. Flores is
hereby DISMISSED from
service
with FORFEITURE of all retirement benefits and
accrued leave credits and with PREJUDICE to
re-employment in any branch or instrumentality
of the government, including government-owned
or controlled corporations.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide,
Jr., Romero, Bellosillo, Melo, Puno Vitug,

Kapunan, Mendoza, Francisco, Hermosisima,

Jr., Panganiban, and Torres, Jr., JJ., concur.

loaded the materials on a motor vehicle;

and brought them to the police station of
Panabo;
That Mrs., Flores committed the aforementioned
acts during office hours and in such
conduct unbecoming a government
employee;

Office of the Court Administrator, Informal

Preliminary Inquiry.

x x x x x x x x x"
3

In Complainant Rabe's separate affidavit, she

made the following allegations:

Rollo, p. 2.

Ibid., p. 25.

"x x x x x x x x x

Ibid., p. 38.

Ibid., p. 39.

Ibid.

Ibid.

Respondents explanation, p. 2; rollo, p. 50.

That on August 14, 1995 at around 4:00 o'clock

in the afternoon, Mrs. Delsa Flores, a
Court Interpreter at the Regional Trial
Court of Panabo, Davao, went to the
stall I occupied and while there, she
made several defamatory utterances
against me in a very menacing, arrogant
and threatening manner and in the
visayan dialect, as follows:
'Putang ina mo ka, akoa nin pwesto,
wala kay ulaw, wala kay batasan,
mangingilog ug pwesto'
That Mrs. Flores attempted to inflict injury upon
me by scratching my face but I was able
to evade and with the timely intervention
of Mr. Espiridion Vivas;
That Mrs. Flores made the foregoing remarks
and other remarks of the same import
for several times in a very loud voice
while walking to and fro;
That Mrs. Flores challenged me to a fist fight
and destroyed the stall I occupied by
removing the wooden fence and the GI
sheets with the help of her husband;

10

Ibid.

11

A.M. No. P-95-1133, April 26, 1996.

12

Section 1, Article XI, 1987 Constitution.

13

Legaspi vs. Garrete, 242 SCRA 679, 701,

March 27, 1995 citing Montemayor vs. Collado,
Adm. Matter No. 2519-MJ, September 10, 1981,
107 SCRA 258, 264; Association of Court
Employees of Panabo, Davao vs. Tupas, Adm.
Matter No. RTJ-87-141, July 12, 1989, 175
SCRA 292, 296; Leynes vs. Veloso, Adm. Matter
No. 689-MJ and Virrey vs. Veloso, Adm. Matter
No. 809-MJ, the two latter cases promulgated on
April 13, 1978, 82 SCRA 352, 328.
14

A.M. No. P-95-115, May 15, 1996.

15

Section 27, Article II, 1987 Constitution.

16

Section 23 (a), Rule XIV, Omnibus Rules

Implementing Book V of EO No. 292 Known as
the "Administrative Code of 1987" and other
Pertinent Civil Service laws.
17

Pages 6-7 of the Memorandum of the Court

Administrator dated November 27, 1996. on this
case.
18

Section 9 of RA 6713 provides: "A public

official or employee shall avoid conflicts of
interest at all times. When a conflict of interest
arises, he shall resign from his position in any
private business enterprise within thirty (30)
days from his assumption of office and or divest
himself of his shareholdings or interest within
sixty (60) days from such assumption."

EN BANC
[A.M. No. P-99-1342. June 8, 2005]
CONCERNED
TAXPAYER, complainant, vs.
NORBERTO V. DOBLADA, JR., Sheriff
IV, Branch 155, Regional Trial Court,
Pasig City, respondent.
DECISION
PER CURIAM:
The instant administrative case arose from
a letter-complaint dated December 8, 1993 filed
by a concerned taxpayer with the Office of the
Ombudsman, charging Norberto V. Doblada, Jr.,
Sheriff IV of the Regional Trial Court (RTC) of
Pasig, Branch 155, of having acquired
properties during his incumbency as sheriff, the
values of which are manifestly out of proportion
to his salary as such public employee and to his
other lawful income or incomes from legitimately
acquired property.[1]
In an Indorsement dated August 22, 1997,
the complaint was referred by the Office of the
Ombudsman to the Office of the Court
Administrator (OCA) of this Court.[2]
Upon report and recommendation of the
OCA, dated February 8, 1999, this Court issued
a Resolution dated March 17, 1999 requiring
respondent to comment on the complaint. In the
same resolution, the National Bureau of
Investigation (NBI) was directed to conduct a
discreet investigation of this case and to submit
a report within thirty days from notice.[3]
On April 29, 1999, respondent filed his
Comment contending that aside from the two
parcels of land mentioned in the Fact-Finding
Report of the Office of the Ombudsman which
are registered in the name of his wife, the other

real properties mentioned in said report are not

actually his properties because they belong to
his father, having been registered in the name of
the latter. Respondent surmises that the instant
complaint may have been politically motivated
and may have been instigated by those who did
not get his support in past local elections.
Respondent claims that a similar anonymous
complaint was filed against him in the 1980s
wherein he submitted himself for investigation by
the NBI.
In a Resolution dated September 20, 1999,
respondent was required to inform this Court if
he is willing to submit the case for resolution or
to elect a formal investigation of the case. [4]On
October 22, 1999, respondent submitted his
Compliance to the above-cited Resolution,
manifesting that he is willing to submit the case
for resolution based on records available to this
Court.[5]
On March 7, 2000, this Court received a
report of the investigation conducted by the NBI,
pertinent portions of which read as follows:
9. Analysis of the assets, liabilities, net
worth and yearly salary of
Subject for the period 1989,
1991, 1993, 1995, 1996 and
1998 shows that there is prima
facie evidence that Subject
acquired unexplained wealth
(Annexes I to I-13) during his
tenure as Court Sheriff in 1995.
Increase in salary and increase
in liabilities are apparent.
However, increase in assets far
exceeds increase in salary. Net
worth also increased after
assumption to office as Deputy
Court Sheriff in 1977.

Subject also failed to submit his

sworn statement of assets and
liabilities for the years 1975 to
1988, 1990, 1992, 1994 and
1997 as said documents were
not submitted to the NBI by the
Records Control Division of the
Supreme Court.
A court order to secure the
income tax returns of Subject
NORBERTO DOBLADA, JR.
and his spouse, EDITH, who is
employed at the Department of
Education, Culture and Sports,
in Binangonan, as
Superintendent would determine
whether Subject had other
legitimate sources of income.
Subject has to justify his
acquisition of fishpens acquired
at P2,500,000.00 in 1993 and
Civic Honda at P435,000.00 in
1995 where his legitimate
income as Court Sheriff is
at P44,652 per annum
and P65,496.00 per annum
respectively. His earnings as
jeepney operator with one unit
as reported in 1982 would not
suffice further acquisition of
wealth such as residential lots
1982-1988 ranging from P8,670
to P125,000.00. Loans from
creditors would not be sufficient
to cover acquisition of real and
personal properties in 1992,
1994, 1995, 1996 and 1998.
xxxxxxxxx
F. AGENTS FINDINGS

11. The results of the investigation

reveal that there is sufficient
evidence to charge Subject for
violation of Sec. 2 of RA 1379
(Law of Forfeiture of Ill-Gotten
Wealth) and non-compliance
with Sec. 8 of RA 6713 (Code of
Conduct and Ethical Standards
for Public Officials and
Employees) for failure to
accomplish and submit
declarations under oath of the
assets and liabilities, net worth
and financial business interests
for the above-mentioned years
during tenure of Subject as
Court Sheriff.[6]

contributed to an unimaginable increase of his

assets during his incumbency as court sheriff.
With this information on hand, it cannot be
ignored that such would be a factor in the proper
evaluation of the instant administrative case.
Respondent, therefore, should be accorded the
opportunity to explain the increase of his assets
from P6,000 in 1974 to P7 million, more or less,
in 1995.

In its Resolution of May 29, 2002, this Court

referred the instant case to the OCA for
evaluation, report and recommendation.[7] In
compliance
therewith,
Deputy
Court
Administrator Christopher O. Lock submitted a
report, dated April 29, 2003, with the
endorsement of Court Administrator Presbitero
J. Velasco, Jr., pertinent portions of which read
as follows:

Considering, therefore the gravity of the penalty

imposed on a public officer who is found to have
violated Sec. 7, R.A. 3019 and Sec. 8, R.A.
6713, respondent should be given the
opportunity to explain his failure to submit his
Sworn Statement of Assets, Liabilities and
Networth.

A careful examination of the NBI Investigation

Report on respondents alleged real properties
enumerated in the Fact-Finding Report of the
Office of the Ombudsman reveals that only one
(1) property was found to be registered under
respondents name and this is as co-owner of an
agricultural land along Janosa, Binangonan,
Rizal covered by TCT No. 46607. TCT No. M23480 and TCT No. M-17315 are both
registered in the name of respondents wife,
Edith Doblada while Tax Declaration ARP #280032, covering a residential lot along Janosa,
Binangonan, Rizal discloses the name Norberto
Doblada as the owner. A perusal of respondents
Sworn Statement of Assets, Liabilities and
Networth filed before this Office however
discloses his ownership of several other
properties, real and personal which, clearly,

Respondents records also disclose that he had

not been submitting his Statement of Assets,
Liabilities and Networth particularly for the years
1975, 1977 to 1988, 1990, 1992, 1994, 1999
and 2000 as mandated under R.A. 6713.
xxxxxxxxx

IN VIEW OF THE FOREGOING, it is hereby

respectfully recommended that respondent
Sheriff Norberto Doblada, Jr. be DIRECTED to
EXPLAIN within ten (10) days from notice his
failure to submit his Sworn Statement of Assets,
Liabilities and Networth for the years 1975, 1977
to 1988, 1990, 1992, 1994, 1999 and 2000, and
the significant increase of his assets
from P6,000.00 in 1974 to 7 million by 1995.[8]
This Court, in a Resolution dated July 16,
2003, directed respondent to explain in writing
his failure to submit his Sworn Statement of
Assets and Liabilities and Networth (SAL) for the
years 1975, 1977 to 1988, 1990, 1992, 1994,
1999 and 2000, and the significant increase of
his
assets
from P6,000.00
in
1974
to P7,000,000.00 in 1995.[9]

On September 5, 2003, respondent

submitted his Explanation[10] contending that
contrary to what had been stated in the Courts
Resolution of July 16, 2003, he had been
religiously filing his SAL, including the years
mentioned in the Resolution when he
supposedly failed to file said Statements. He
admits that he does not have copies of these
Statements and claims that he might have
accidentally disposed of the same during the
various times that he transferred office. As to the
increase of his assets from P6,000.00 in 1974
to P7,000,000.00 in 1995, respondent explains
that the significant improvement of his assets
was brought about by inheritance and largely,
through business ventures which are financed
through loans.
On September 24, 2003, this Court issued
a resolution referring the instant case to the
OCA for evaluation, report and recommendation.
[11]

On December 21, 2004, respondent filed a

Motion for Early Resolution, alleging that he has
complied with the directives of the Court and the
case is now ripe for resolution.[12]
In a Memorandum dated February 3, 2005,
the OCA submitted a report with the following
findings:
The determination of whether or not respondent
Doblada acquired properties with a valuation
manifestly out of proportion to his salary and that
of his wife and their additional earnings requires
a comparison of the respective values of the
properties with the salaries, benefits, other
lawful income and additional revenues from
legitimately acquired properties or businesses of
the said spouses. The deficient and insufficient
documents submitted to the OCA cannot serve
as bases for such comparison. Absent complete
documentation and information on the properties
acquired by the spouses Doblada and their
respective earnings, we are not ready to state

that the allegations in the anonymous lettercomplaint dated 8 December 1993 have been
shown by sufficient and convincing proof.
However, our evaluation indicates that the
incompleteness of the documents, in terms of
filings of Statements and of entries therein, is
attributable to respondent Doblada. The
submitted Statements and information or
incomplete or lack of information in these
Statements fully evince violations of the
provisions of the Anti-Graft and Corrupt
Practices Act, the Code of Conduct and Ethical
Standards for Public Officials and Employees
and the CSC rules implementing the said Code.
We find that respondent Doblada as shown by
the instances (not merely a single instance)
herein discussed contravened the provisions of
the Anti-Graft and Corrupt Practices Act
requiring the submission of a true, detailed and
sworn statement of assets and liabilities (Section
7). As particular example, respondent Doblada
excluded from Statements for 1974 and 1976
the real properties he already had during those
years and which he claimed he acquired in 1965
in the 1989 Statement he filed. Respondent
Doblada violated the provisions of the Code of
Conduct and Ethical Standards for Public
Officials and Employees and the CSC rules
implementing the said Code when he did not
include information on his business interest in
and financial connection with ELXSHAR in the
1989, 1991 and 1993 Statements. The violations
are not isolated episodes. They had been
repeatedly committed by respondent Doblada as
can be culled from the different Statements filed
in various years.[13]
and recommendations, to wit:
1. That Sheriff Norberto V. Doblada, Jr., be found
administratively liable for violations of the AntiGraft and Corrupt Practices Act, the Code of
Conduct and Ethical Standards for Public
Officials and Employees and the CSC rules

implementing the provisions of the said Code;

and
2. That Sheriff Doblada be meted the penalty of
removal from the service, with forfeiture of his
retirement benefits, and with prejudice to reemployment in any branch of the government or
any of its agencies or instrumentalities, including
government-owned or controlled corporations
and government financial institutions.[14]
We agree with the OCA.
After a perusal of the records on hand, we
find
that
complainants
charge
against
respondent is not sufficiently substantiated. We
agree with the observation of the OCA that the
evidence presented in the instant case,
consisting of the documents submitted by the
complainant and those which were compiled by
the investigating agent of the NBI, are not
adequate to establish complainants allegation
that respondent had acquired assets which are
manifestly out of proportion to his legitimate
income.
Moreover, we find no sufficient evidence to
prove that respondent failed to file his SAL for
the years 1975, 1977 to 1988, 1990, 1992,
1994, 1997, 1999 and 2000. Respondent
maintains that he has consistently filed his SAL
for the said years. To prove his contention,
respondent submitted a copy of a letter dated
May 7, 2001 sent by Remegio C. Aosa, Acting
Branch Clerk of Court of Branch 155, RTC,
Pasig City, stating therein that attached to said
letter are the sworn SAL of the staff of RTC
Pasig City, Branch 155, including that of
respondents, for the year 2000. The letter was
sent to and duly received by the OCA but the
SAL of respondent for 2000 is one of those
missing in the files of OCA. On this premise, one
cannot readily conclude that respondent failed to
file his sworn SAL for the years 1975, 1977 to
1988, 1990, 1992, 1994, 1997, 1999 and 2000
simply because these documents are missing in

the files of the OCA. Even in the report of the

Court Administrator dated February 3, 2005,
there was no categorical statement that
respondent failed to file his SAL for the years
earlier mentioned. The report of the OCA simply
stated that it does not have on its file the subject
SAL of respondent.
Nonetheless, we agree with the OCA in
finding that respondent is guilty of violating
Republic Act Nos. 3019 (Anti-Graft and Corrupt
Practices Act) and 6713 (Code of Conduct and
Ethical Standards for Public Officials and
Employees) for having failed to submit a true,
detailed and sworn statement of his assets and
liabilities.
Section 7 of R.A. No. 3019, as amended,
provides:
Sec. 7. Statement of Assets and Liabilities.
Every public officer, within thirty days after
assuming office and, thereafter, on or before the
fifteenth day of April following the close of every
calendar year, as well as upon the expiration of
his term of office, or upon his resignation or
separation from office, shall prepare and file with
the office of the corresponding Department
Head, or in the case of a Head of Department or
Chief of an independent office, with the Office of
the President, a true, detailed and sworn
statement of assets and liabilities, including a
statement of the amounts and sources of his
income, the amounts of his personal and family
expenses and the amount of income taxes paid
for the next preceding calendar year: Provided,
That public officers assuming office less than
two months before the end of the calendar year,
may file their first statement on or before the
fifteenth day of April following the close of the
said calendar year.
Section 9(b) of the same Act provides:

(b) Any public officer violating any of the

provisions of Section 7 of this Act shall be
punished by a fine of not less than one thousand
pesos nor more than five thousand pesos, or by
imprisonment not exceeding one year and six
months, or by both such fine and imprisonment,
at the discretion of the Court.
The violation of said section proven in a
proper administrative proceeding shall be
sufficient cause for removal or dismissal of a
public officer, even if no criminal prosecution
is instituted against him. (emphasis supplied)
In the same manner, Section 8 of R.A. No.
6713 provides:
SEC. 8. Statements and Disclosure. Public
officials and employees have an obligation to
accomplish and submit declarations under oath
of, and the public has the right to know, their
assets, liabilities, net worth and financial and
business interests including those of their
spouses and of unmarried children under
eighteen (18) years of age living in their
households.
(A) Statements of Assets and Liabilities and
Financial Disclosure. All public officials and
employees, except those who serve in an
honorary capacity, laborers and casual or
temporary workers, shall file under oath their
Statements of Assets, Liabilities and Net Worth
and a Disclosure of Business Interests and
Financial connections and those of their
spouses and unmarried children under eighteen
(18) years of age living in their households.
The two documents shall contain information on
the following:
(a) real property, its
improvements,
acquisition costs,
assessed value

and current fair

market value;
(b) personal property and
acquisition cost;
(c) all other assets such as
investments, cash
on hand or in
banks, stocks,
bonds, and the
like;
(d) liabilities, and;
(e) all business interests and
financial
connections.
The documents must be filed:
(a) within thirty (30) days
after assumption of
office;
(b) on or before April 30, of
every year
thereafter; and
(c) within thirty (30) days
after separation
from the service.
All public officials and employees required under
this section to file the aforestated documents
shall also execute, within thirty (30) days from
the date of their assumption of office, the
necessary authority in favor of the Ombudsman
to obtain from all appropriate government
agencies, including the Bureau of Internal
Revenue, such documents as may show their
assets, liabilities, net worth, and also their
business interests and financial connections in
previous years, including, if possible, the year

when they first assumed any office in the

Government.
Husband and wife who are both public officials
or employees may file the required statements
jointly or separately.
xxxxxxxxx
Section 11 of R.A. No. 6713 provides for
the penalties:
SEC. 11. Penalties. (a) Any public official or
employee, regardless of whether or not he holds
office or employment in a casual, temporary,
holdover, permanent or regular capacity,
committing any violation of this Act shall be
punished with a fine not exceeding the
equivalent of six (6) months salary or
suspension not exceeding one (1) year, or
removal depending on the gravity of the offense
after due notice and hearing by the appropriate
body or agency. If the violation is punishable by
a heavier penalty under another law, he shall be
prosecuted under the latter statute. Violations of
Sections 7, 8 or 9 of this Act shall be punishable
with imprisonment not exceeding five (5) years,
or a fine not exceeding five thousand pesos
(P5,000.00), or both, and, in the discretion of the
court of competent jurisdiction, disqualification to
hold public office.
(b) Any violation hereof proven in a proper
administrative proceeding shall be sufficient
cause for removal or dismissal of a public
official or employee, even if no criminal
prosecution is instituted against him.
(emphasis ours)
xxxxxxxxx
As to the business interests and financial
connections of public officials and employees,
Section 1(a)(2), Rule VII of the Rules
implementing R.A. No. 6713 states:

(2) The Disclosure of Business Interests and

Financial Connections shall contain information
on any existing interests in, or any existing
connections with, any business enterprises or
entities, whether as proprietor, investor,
promoter, partner, shareholder, officer, managing
director, executive, creditor, lawyer, legal
consultant or adviser, financial or business
consultant, accountant, auditor, and the like, the
names and addresses of the business
enterprises or entities, the dates when such
interests or connections were established, and
such other details as will show the nature of the
interests or connections.
In the present case, we find that there are
discrepancies,
inconsistencies
and
nondisclosures in the SAL filed by respondent for
the years 1974, 1976, 1989, 1991, 1993, 1995
and 1998, to wit:
1. In his SAL for 1989, respondent indicated
therein that he owns a residential lot located in
the province of Rizal which he acquired through
inheritance in 1965. Respondent also declared
in the same SAL that he owns a house which he
inherited in 1967. He also acknowledged therein
that he owns a residential lot in Baguio City
which he acquired through purchase in 1965.
However, in his SAL for the years 1974 and
1976, respondent did not declare ownership of
any real property.
2. In his SAL for 1989 and 1993,
respondent declared that he owns a house and
lot acquired through inheritance in 1965.
However, in his SAL for 1991, 1995, 1996 and
1998, he declared that the house and lot he
inherited was acquired in 1985.
3. Respondent acknowledged in his SAL for
1991, 1993, 1995 and 1996 that he acquired a
house and lot by purchase in 1985. However, he
failed to declare said property in his SAL for
1989.

4. In his Explanation submitted to the Court

on September 5, 2003, respondent contends
that one of the reasons why his assets
increased significantly from 1974 to 1995 is that
he was appointed as company director of
ELXSHAR PTY LTD (ELXSHAR), a company
based in Australia. He reasoned out that his
appointment was brought about by his
daughters connections in Australia, wherein the
latter is a resident. However, we agree with the
observation of the OCA that nowhere in
respondents SAL for 1989, 1991 and 1993 did
he declare his business and financial
connections with ELXSHAR. It was only in his
SAL for 1995, 1996 and 1998 that he included
his directorship in ELXSHAR as part of his
business and financial interests.
5. Respondent also acknowledged in his
Explanation that he constructed a two-hectare
fish cage in January 1989 by obtaining a loan in
the amount of P300,000.00. However, an
examination of the SAL of respondent for 1989
and 1991 reveals that he failed to declare either
his ownership of or his financial interests in the
said fish pens. Respondent also explained that
as security for his loan of P300,000.00, obtained
in January 1989, he executed a real estate
mortgage in favor of the person who loaned him
the money. However, his SAL for 1989 does not
contain any declaration of a real estate
mortgage for the said amount.
6. Respondent declared his ownership of a
fish pen worth P2,500,000.00 in his SAL for
1995 and 1996. He claims that his ownership of
the said fish pen was acquired in 1993.
However, a perusal of his SAL for 1993 shows
that while respondent declared his being a fish
pen operator as part of his business interests,
he failed to include said fish pen among his
assets. It was only in 1995 that he began to
declare the fish pen as part of his assets.
On
the
basis
of
the
foregoing
discrepancies, inconsistencies and omissions,

we find respondent guilty of violating Section 7

of R.A. No. 3019 and Section 8 of R.A. No. 6713
for his failure to declare a true and detailed
statement of his assets and liabilities for the
years 1974, 1976, 1989, 1991, 1993, 1995 and
1998 and should be meted out the penalty of
dismissal from service pursuant to Section 9(b),
R.A. No. 3019 and Section 11, R.A. No. 6713.
Furthermore, in Rabe vs. Flores,[15] one of the
reasons why the Court dismissed a court
employee from the service is her failure to
disclose her business interests for a continued
period of four years. In this case, respondent
failed to disclose his business interests from
1974 to 1994 or a period of twenty years.
WHEREFORE, respondent Norberto V.
Doblada, Jr., Sheriff IV, Regional Trial Court of
Pasig City, Branch 155, is found GUILTY of
violation of Section 7, R.A. No. 3019 and
Section 8, R.A. No. 6713 and is DISMISSED
from the service, effective immediately, with
FORFEITURE of all benefits, except accrued
leave credits, if any, with prejudice to his
reemployment in any branch or service of the
government including government-owned and
controlled corporations.
SO ORDERED.
Davide, Jr., C.J., Panganiban, Quisumbing,
Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna,
Chico-Nazario, and Garcia, JJ., concur.
Puno, J., on official leave.
Ynares-Santiago, J., no part.
Tinga, J., no part. Close association with
the party.

affecting the rights of the

Respondent.

SPECIAL THIRD DIVISION

RESOLUTION

3. Respondents
constitutional
right to due process was
violated.
HON. WALDO Q. FLORES, in his capacity as
Senior Deputy Executive Secretary in the
Office of the President, HON. ARTHUR P.
AUTEA, in his capacity as Deputy Executive
Secretary in the Office of the President, and
the PRESIDENTIAL ANTI-GRAFT
COMMISSION (PAGC),
Petitioners,

- versus -

G.R. No.
VILLARAMA,
170146 JR., J.:
This resolves the motion for reconsideration of
our Decision dated August 25, 2010 setting
aside the October 19, 2005 Decision of the
Present:
Court of Appeals and reinstating the Decision
dated March 23, 2004 of the Office of the
President in O.P. Case No. 03-1-581, which
found the respondent administratively liable for
CARPIO
MORALES,
failure
to declare in his 2001 and 2002 Sworn
Statement of Assets and Liabilities (SSAL) two
Chairperson,
expensive cars registered in his name, in
violation of Section 7, Republic Act (R.A.) No.
3019 in
VELASCO,
JR.,relation to Section 8 (A) of R.A. No.
6713. The OP adopted the findings and
DEL recommendations of the Presidential Anti-Graft
Commission (PAGC), including the imposition of
the penalty of dismissal from service on
VILLARAMA, JR., and
respondent, with all accessory penalties.
SERENO,
The motion is anchored on the following
grounds:

ATTY. ANTONIO F. MONTEMAYOR,

Respondent.

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

1. Respondent was subjected to

two
(2)
administrative/criminal
Investigations
equivalently resulting in
Promulgated:
violation
of
his
constitutional right against
double jeopardy.
June 8, 2011

2. Who to follow between

conflicting decisions of
two
(2)
government
agencies involving the
same facts and issues

4. Penalties prescribed by the

Honorable Court is too
harsh and severe on the
alleged
offense
committed/omitted.[1]
On the first ground, the Court finds it bereft of
merit. Respondent asserts that since the PAGC
charge involving non-declaration in his 2001 and
2002 SSAL was already the subject
of investigation by the Ombudsman in OMB-CC-04-0568-LSC, along with the criminal
complaint for unexplained wealth, the former can
no longer be pursued without violating the rule
on double jeopardy.
Double jeopardy attaches only (1) upon a valid
indictment, (2) before a competent court, (3)
after arraignment, (4) when a valid plea has
been entered, and (5) when the defendant was
convicted or acquitted, or the case was
dismissed or otherwise terminated without the
express consent of the accused.[2] We have held
that none of these requisites applies where the
Ombudsman only conducted a preliminary
investigation of the same criminal offense
against the respondent public officer.[3] The
dismissal of a case during preliminary
investigation does not constitute double
jeopardy, preliminary investigation not being part
of the trial.[4]
With respect to the second ground, respondent
underscores the dismissal by the Ombudsman
of the criminal and administrative complaints
against him, including the charge subject of the
proceedings before the PAGC and OP. It is

argued that the Office of the Ombudsman as a

constitutional body, pursuant to its mandate
under R.A. No. 6770, has primary jurisdiction
over cases cognizable by the Sandiganbayan,
as against the PAGC which is not a
constitutional body but a mere creation of the
OP. Under said law, it is the Ombudsman who
has disciplinary authority over all elective and
appointive officials of the government, such as
herein respondent.
The argument is untenable.
The same wrongful act committed by the public
officer can subject him to civil, administrative
and criminal liabilities. We held in Tecson v.
Sandiganbayan[5]:
[I]t is a basic principle of the law
on public officers that a public
official or employee is under a
three-fold
responsibility
for
violation of duty or for a
wrongful act or omission. This
simply means that a public
officer may be held civilly,
criminally, and administratively
liable for a wrongful doing.
Thus, if such violation or
wrongful act results in damages
to an individual, the public
officer may be held civilly liable
to reimburse the injured party. If
the law violated attaches a
penal sanction, the erring officer
may
be
punished criminally. Finally,
such violation may also lead to
suspension, removal from office,
or
other administrative sanctions.
This administrative liability is
separate and distinct from the
penal and civil liabilities. (Italics
in the original.)

Dismissal of a criminal action does not

foreclose institution of an administrative
proceeding against the same respondent, nor
carry with it the relief from administrative liability.
[6]
Res judicata did not set in because there is no
identity of causes of action. Moreover, the
decision of the Ombudsman dismissing the
criminal complaint cannot be considered a valid
and final judgment. On the criminal complaint,
the Ombudsman only had the power to
investigate and file the appropriate case before
the Sandiganbayan.[7]
In the analogous case of Montemayor
Bundalian,[8] this Court ruled:
Lastly, we
cannot
sustain petitioners stance
that the dismissal of similar
charges against him before
the Ombudsman rendered the
administrative case against
him before the PCAGC moot
and academic. To be sure, the
decision of the Ombudsman
does not operate as res
judicata in the PCAGC case
subject of this review. The
doctrine of res judicata applies
only to judicial or quasi-judicial
proceedings, not to the exercise
of
administrative
powers. Petitioner
was
investigated by the Ombudsman
for his possible criminal liability
for
the
acquisition
of
the Burbank property in violation
of the Anti-Graft and Corrupt
Practices Act and the Revised
Penal Code. For the same
alleged misconduct, petitioner,
as a presidential appointee, was
investigated by the PCAGC by
virtue of the administrative
power and control of the
President over him. As the

v.

PCAGCs
investigation
of
petitioner was administrative in
nature, the doctrine ofres
judicata finds no application in
the case at bar. (Emphasis
supplied.)
Respondent argues that it is the
Ombudsman who has primary jurisdiction over
the administrative complaint filed against
him. Notwithstanding the consolidation of the
administrative offense (non-declaration in the
SSAL) with the criminal complaints for
unexplained wealth (Section 8 of R.A. No. 3019)
and also for perjury (Article 183, Revised Penal
Code, as amended) before the Office of the
Ombudsman,
respondents
objection
on
jurisdictional grounds cannot be sustained.
Section 12 of Article XI of the 1987
Constitution mandated the Ombudsman to act
promptly on complaints filed in any form or
manner against public officials or employees of
the Government, or any subdivision, agency,
instrumentality thereof, including governmentowned or controlled corporations. Under Section
13, Article XI, the Ombudsman is empowered to
conduct investigations on his own or upon
complaint by any person when such act appears
to be illegal, unjust, improper, or inefficient. He is
also given broad powers to take the appropriate
disciplinary actions against erring public officials
and employees.
The investigative authority of the
Ombudsman is defined in Section 15 of R.A. No.
6770:
SEC.
15. Powers,
Functions
and
Duties. The
Office of the Ombudsman shall
have the following powers,
functions and duties:

(1) Investigate
and
prosecute on its own or on
complaint by any person, any
act or omission of any public
officer or employee, office or
agency, when such act or
omission appears to be
illegal, unjust, improper or
inefficient. It has primary
jurisdiction
over
cases
cognizable
by
the
Sandiganbayan and, in the
exercise
of
this
primary
jurisdiction, it may take over, at
any
stage,
from
any
investigatory
agency
of
Government, the investigation of
such cases;
x x
supplied.)

(Emphasis

Such jurisdiction over public officers and

employees, however, is not exclusive.
This
power
of
investigation granted to the
Ombudsman by the 1987
Constitution
and
The
Ombudsman Act is not
exclusive but is shared with
other similarly authorized
government agencies, such as
the PCGG and judges of
municipal trial courts and
municipal circuit trial courts. The
power to conduct preliminary
investigation on charges against
public employees and officials is
likewise concurrently shared
with the Department of Justice.
Despite the passage of the
Local Government Code in
1991, the Ombudsman retains
concurrent jurisdiction with the
Office of the President and the

local Sanggunians to investigate

complaints against local elective
officials.[9] (Emphasis supplied.)
Respondent who is a presidential
appointee is under the disciplinary authority of
the OP. Executive Order No. 12 dated April 16,
2001 created the PAGC which was granted the
authority to investigate presidential and also
non-presidential employees who may have
acted in conspiracy or may have been involved
with a presidential appointee or ranking officer
mentioned x x x.[10] On this score, we do not
agree with respondent that the PAGC should
have deferred to the Ombudsman instead of
proceeding with the administrative complaint in
view of the pendency of his petition for certiorari
with the CA challenging the PAGCs
jurisdiction. Jurisdiction
is
a
matter
of
law. Jurisdiction once acquired is not lost upon
the instance of the parties but continues until the
case is terminated.[11]
It may be recalled that at the time
respondent was directed to submit his counteraffidavit under the Ombudsmans Order
dated March 19, 2004, the PAGC investigation
had long commenced and in fact, the PAGC
issued an order directing respondent to file his
counter-affidavit/verified answer as early as May
19, 2003. The rule is that initial acquisition of
jurisdiction by a court of concurrent jurisdiction
divests another of its own jurisdiction. [12] Having
already taken cognizance of the complaint
against the respondent involving non-declaration
in his 2001 and 2002 SSAL, the PAGC thus
retained
jurisdiction
over
respondents
administrative
case
notwithstanding
the
subsequent filing of a supplemental complaint
before the Ombudsman charging him with the
same violation.
As to the third ground raised by
respondent, we find no merit in his reiteration of
the alleged gross violation of his right to due
process. Records bear out that he was given

several opportunities to answer the charge

against him and present evidence on his
defense, which he stubbornly ignored despite
repeated warnings that his failure to submit the
required answer/counter-affidavit and position
paper with supporting evidence shall be
construed as waiver on his part of the right to do
so.
The essence of due process in
administrative proceedings is the opportunity to
explain ones side or seek a reconsideration of
the action or ruling complained of. As long as the
parties are given the opportunity to be heard
before judgment is rendered, the demands of
due process are sufficiently met. [13] What is
offensive to due process is the denial of the
opportunity to be heard.[14] This Court has
repeatedly stressed that parties who choose not
to avail themselves of the opportunity to answer
charges against them cannot complain of a
denial of due process.[15] Having persisted in his
refusal to file his pleadings and evidence before
the PAGC, respondent cannot validly claim that
his right to due process was violated.
In his dissenting opinion, my esteemed
colleague, Justice Lucas P. Bersamin, concurred
with the CAs finding that respondents right to
due process was violated by the unilateral
investigation conducted by the PAGC which did
not furnish the respondent with a copy of the
prejudicial PAGC resolution. The dissent also
agreed with the CAs observation that there was
a rush on the part of the PAGC to find the
respondent guilty of the charge. This was
supposedly manifested in the issuance by the
PAGC of its resolution even without taking into
consideration any explanation and refutation of
the charges that he might make, and even
before the CA could finally resolve his suit to
challenge the PAGCs jurisdiction to investigate
him. On the other hand, the dissent proposed
that the non-submission by respondent of his
counter-affidavit or verified answer as directed
by the PAGC should not be taken against

him. Respondents refusal was not motivated by

bad faith, considering his firm belief that PAGC
did not have jurisdiction to administratively or
disciplinarily investigate him.
We do not share this view adopted by
the dissent.
Records reveal that on August 26, 2003,
the CA already rendered a decision in CA-G.R.
SP No. 77285 dismissing respondents petition
challenging
the
jurisdiction
of
the
PAGC. Respondents motion for reconsideration
was likewise denied by the CA. Upon elevation
to this Court via a petition for review on certiorari
(G.R. No. 160443), the petition suffered the
same fate. Under the First Divisions Resolution
dated January 26, 2004, the petition was denied
for failure of the petitioner (respondent) to show
that the CA committed any reversible error in the
assailed decision and resolution. Said resolution
became final and executory on April 27,
2004. Thus, at the time respondent submitted
his counter-affidavit before the Ombudsman
on May 21, 2004, there was already a final
resolution of his petition challenging the PAGCs
investigative authority.
On the other hand, the PAGC submitted
to the OP its September 1, 2003 resolution
finding respondent guilty as charged and
recommending that he be dismissed from the
service, after the expiration of the 60-day
temporary restraining order issued on June 23,
2003 by the CA in CA-G.R. SP No. 77285. The
OP rendered its Decision adopting the PAGCs
findings and recommendation on March 23,
2004. As thus shown, a period of ten (10)
months had elapsed from the time respondent
was directed to file his counter-affidavit or
verified answer to the administrative complaint
filed against him, up to the rendition of the OPs
decision. It cannot therefore be said that the
PAGC and OP proceeded with undue haste in
determining respondents administrative guilt.

Still on respondents repeated claim that

he was denied due process, it must be noted
that when respondent received a copy of the OP
Decision dated March 23, 2004, his petition for
review filed in this Court assailing the CAs
dismissal of CA-G.R. SP No. 77285 was already
denied under Resolution dated January 26,
2004. However, despite the denial of his petition,
respondent still refused to recognize PAGCs
jurisdiction and continued to assail the same
before the CA in CA-G.R. SP No. 84254, a
petition for review under Rule 43 from the OPs
March 23, 2004 Decision and May 13, 2004
Resolution.[16] In any event, respondent was
served with a copy of the OP Decision, was able
to seek reconsideration of the said decision, and
appeal the same to the CA.
We also find nothing irregular in
considering the investigation terminated and
submitting the case for resolution based on
available evidence upon failure of the
respondent to file his counter-affidavit or answer
despite giving him ample opportunity to do
so. This is allowed by the Rules of Procedure of
the PAGC. The PAGC is also not required to
furnish the respondent and complainant copy of
its resolution.
The dissent of Justice Bersamin assails
the OPs complete reliance on the PAGCs
findings and recommendation which constituted
a gross violation of administrative due process
as set forth in Ang Tibay v. Court of Industrial
Relations[17]. Among others, it is required that
[T]he tribunal or any of its judges must act on its
or his own independent consideration of the
facts and the law of the controversy, and not
simply accept the views of a subordinate in
arriving at a decision. Justice Bersamin thus
concludes that the OP should have itself
reviewed and appreciated the evidence
presented and independently considered the
facts and the law of the controversy. It was also
pointed out that the OPs statement that the
respondents arguments in his Motion for

Reconsideration With Motion For Leave To

Admit Explanation/Refutation of Complaint were
a mere reiteration of matters previously
considered, was a patent untruth.
We disagree.
The OP decision, after quoting verbatim
the findings and recommendation of the PAGC,
adopted the same with a brief statement
preceding the dispositive portion:
After a circumspect
study of the case, this Office
fully
agrees
with
the
recommendation of PAGC and
the legal premises as well as
the factual findings that hold it
together. Respondent failed to
disclose in his 2001 and 2002
SSAL high-priced vehicles in
breach of the prescription of the
relevant provisions of RA No.
3019 in relation to RA No.
6713. He was, to be sure,
afforded ample opportunity to
explain his failure, but he opted
to let the opportunity pass by.[18]
The relevant consideration is not the
brevity of the above disquisition adopting fully
the findings and recommendation of the PAGC
as the investigating authority. It is rather the fact
that the OP is not a court but an administrative
body determining the liability of respondent who
was administratively charged, in the exercise of
its disciplinary authority over presidential
appointees.
In Solid Homes, Inc. v. Laserna,[19] this
Court ruled that the rights of parties in an
administrative proceedings are not violated by
the brevity of the decision rendered by the OP
incorporating the findings and conclusions of the
Housing and Land Use Regulatory Board

(HLURB), for as long as the constitutional

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

support
thereof.
2)

The
tribunal
must
consider
the
evidence
presented.

3)

The
decision
must have
something
to support
itself.

4)

The
evidence
must
be
substantial.

5)

The
decision
must
be
rendered on
the
evidence
presented
at
the
hearing, or
at
least
contained in
the record
and
disclosed to
the parties
affected.

6)

The
tribunal or
body or any
of its judges
must act on

The rights of parties in

administrative
proceedings
are not violated as long as the
constitutional requirement of
due
process
has
been
satisfied. In the landmark case
of Ang Tibay v. CIR, we laid
down the cardinal rights of
parties
in
administrative
proceedings, as follows:
1)

The right
to
a
hearing,
which
includes the
right
to
present
ones case
and submit
evidence in

its or his
own
independen
t
consideratio
n of the law
and facts of
the
controversy
and
not
simply
accept the
views of a
subordinate
in arriving
at
a
decision.
7)

The board
or
body
should, in
all
controversi
al question,
render
its
decision in
such
a
manner that
the parties
to
the
proceeding
can know
the various
issues
involved,
and
the
reason for
the decision
rendered.

As can be seen above,

among these rights are the
decision must be rendered on
the evidence presented at the
hearing, or at least contained in
the record and disclosed to the

parties affected; and that the

decision be rendered in such a
manner that the parties to the
proceedings can know the
various issues involved, and the
reasons for the decisions
rendered. Note that there is no
requirement in Ang Tibay that
the decision must express
clearly and distinctly the facts
and the law on which it is
based. For as long as the
administrative decision is
grounded on evidence, and
expressed in a manner that
sufficiently
informs
the
parties of the factual and legal
bases of the decision, the due
process
requirement
is
satisfied.
At bar, the Office of the
President apparently considered
the Decision of HLURB as
correct and sufficient, and said
so in its own Decision. The
brevity
of
the
assailed
Decision was not the product
of willing concealment of its
factual and legal bases. Such
bases, the assailed Decision
noted, were already contained
in the HLURB decision, and the
parties adversely affected need
only refer to the HLURB
Decision in order to be able to
interpose an informed appeal or
action for certiorari under Rule
65.
xxxx
Accordingly, based on
close scrutiny of the Decision of
the Office of the President, this
Court rules that the said

Decision of the Office of the

President fully complied with
both administrative due process
and Section 14, Article VIII of
the 1987 Philippine Constitution.
The Office of the
President
did
not
violate
petitioners right to due process
when it rendered its one-page
Decision. In the case at bar, it is
safe to conclude that all the
parties, including petitioner,
were well-informed as to how
the Decision of the Office of the
President was arrived at, as well
as the facts, the laws and the
issues involved therein because
the Office of the President
attached to and made an
integral part of its Decision the
Decision of the HLURB Board of
Commissioners,
which
it
adopted by reference. If it were
otherwise, the petitioner would
not have been able to lodge an
appeal before the Court of
Appeals
and
make
a
presentation of its arguments
before said court without
knowing the facts and the
issues involved in its case. [20]
(Emphasis supplied.)
Since respondent repeatedly refused to
answer the administrative charge against him
despite notice and warning by the PAGC, he
submitted his evidence only after an adverse
decision was rendered by the OP, attaching the
same to his motion for reconsideration. That the
OP denied the motion by sustaining the PAGCs
findings without any separate discussion of
respondents arguments and belatedly submitted
evidence only meant that the OP found the
same lacking in merit and insufficient to overturn
its ruling on respondents administrative liability.

On the fourth ground cited by the

respondent, we maintain that the penalty of
dismissal from the service is justified as no
acceptable explanation was given for the nondeclaration of the two expensive cars in his 2001
and 2002 SSAL.
Pursuant to Section 11, paragraph (b) of
R.A. No. 6713, any violation of the law proven in
a proper administrative proceeding shall be
sufficient cause for removal or dismissal of a
public official or employee, even if no criminal
prosecution
is
instituted
against
him. Respondents deliberate attempt to evade
the mandatory disclosure of all assets acquired
during the period covered was evident when he
first claimed that the vehicles were lumped
under the entry Machineries/Equipment or still
mortgaged, and later averred that these were
already sold by the end of the year covered and
the proceeds already spent.
Under this scheme, respondent would
have acquired as many assets never to be
declared at anytime. Such act erodes the
function of requiring accuracy of entries in the
SSAL
which
must
be
a true
and
detailed statement. It undermines the SSAL as
the means to achieve the policy of accountability
of all public officers and employees in the
government through which the public are able to
monitor movement in the fortune of a public
official; [as] a valid check and balance
mechanism to verify undisclosed properties and
wealth.[21]
IN VIEW OF THE FOREGOING, the
motion for reconsideration is DENIED WITH
FINALITY.
Let entry of judgment be made in due
course.
SO ORDERED.

CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987
Constitution and
the
Division
Chairpersons
Attestation, I certify that the conclusions in the above
Resolution had been reached in consultation before
CONCHITA CARPIO the
MORALES
case was assigned to the writer of the opinion of
the Courts Division.
Associate Justice

WE CONCUR:

[6]

Office of the Court Administrator v. Enriquez, A.M.

No. P-89-290, January 29, 1993, 218 SCRA 1,
10; Office of the Court Administrator v.
Caete, A.M. No. P-91-621, November 10, 2004,
441 SCRA 512, 520.

[7]

Apolinario v. Flores, supra note 3.

[8]

G.R. No. 149335, July 1, 2003, 405 SCRA 264,

272-273.

[9]

Office of the Ombudsman v. Galicia, G.R. No.

167711, October 10, 2008, 568 SCRA 327, 339,
citing Panlilio v. Sandiganbayan, G.R. No. 92276,
June 26, 1992, 210 SCRA 421; Cojuangco, Jr. v.
Presidential
Commission
on
Good
Government, G.R. Nos. 92319-20, October 2,
1990, 190 SCRA 226; Honasan II v. The Panel of
Investigating Prosecutors of the Department of
Justice, G.R. No. 159747, April 13, 2004, 427
SCRA 46; and Hagad v. Gozo-Dadole, G.R. No.
108072, December 12, 1995, 251 SCRA 242.

Chairperson

PRESBITERO J. VELASCO, JR.

Associate Justice

MARIA LOURDES
Associate Justice

[10]

Sec. 4 (b).

[11]

Office of the Ombudsman v. Estandarte, G.R. No.

168670, April 13, 2007, 521 SCRA 155, 173,
citing Deltaventures Resources, Inc. v. Hon.
Cabato, 384 Phil. 252, 261 (2000).

[12]

See Panlilio v. Salonga, G.R. No. 113087, June 27,

1994, 233 SCRA 476, 482.

[13]

Medina v. Commission on Audit (COA), G.R. No.

176478, February 4, 2008, 543 SCRA 684, 696697, citing Montemayor v. Bundalian, 453 Phil.
158, 165 (2003).

[14]

Octava v. Commission on Elections, G.R. No.

166105, March 22, 2007, 518 SCRA 759, 764,
citing Garments and Textile Export Board v. Court
of Appeals, G.R. Nos. 114711 & 115889,
February 13, 1997, 268 SCRA 258, 299.

[15]

Garcia v. Pajaro, G.R. No. 141149, July 5, 2002,

384 SCRA 122, 138.

Designated Additional Member per Raffle dated April

12, 2011.
**

Designated Additional Member per Raffle dated May

6, 2011.
ATTESTATION

I attest that the conclusions in the above Resolution

had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts
Division.

[1]

Rollo, p. 477.

[2]

Almario v. Court of Appeals, G.R. No. 127772,

March 22, 2001, 355 SCRA 1, 7.

[3]

Apolinario v. Flores, G.R. No. 152780, January 22,

2007, 512 SCRA 113, 122.

[4]

Trinidad v. Office of the Ombudsman, G.R. No.

166038, December 4, 2007, 539 SCRA 415, 424,
citing Vincoy v. Court of Appeals, G.R. No.
156558, June 14, 2004, 432 SCRA 36, 40.

[5]

G.R. No. 123045, November 16, 1999, 318 SCRA

80, 87-88.

[16]

Rollo, pp. 100-104.

[17]

69 Phil. 635 (1940).

[18]

Rollo, p. 90.

[19]

G.R. No. 166051, April 8, 2008, 550 SCRA 613.

[20]

Id. at 626-627 and 629.

[21]

Ombudsman v. Valeroso, G.R. No. 167828, April 2,

2007, 520 SCRA 140, 150.

EN BANC

BRICCIO Ricky A. POLLO,

Petitioner,

CHAIRPERSON KARINA CONSTANTINODAVID,

DIRECTOR IV RACQUEL DE GUZMAN
BUENSALIDA,
DIRECTOR IV LYDIA A.
CASTILLO, DIRECTOR III

ENGELBERT ANTHONY D. UNITE AND THE

CIVIL
SERVICE COMMISSION,
G.R. No.
181881
Respondents.
Present:
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
CORONA,
CARPIO,

- versus -

DECISION
VELASCO, JR.,
VILLARAMA, JR., J.:
LEONARDO-DE CASTRO,
This case involves a search of office computer
assigned to a government employee who was
BRION,
charged
administratively
and
eventually
dismissed from the service. The employees
PERALTA,
personal files stored in the computer were used
by the government employer as evidence of
BERSAMIN,
misconduct.
DEL
Before us is a petition for review on
certiorari under Rule 45 which seeks to reverse
and set aside the Decision[1] dated October 11,

2007 and
Resolution[2] dated February
29,
2008 of the Court of Appeals (CA). The CA
ABAD,
dismissed the petition for certiorari (CA-G.R. SP
No. 98224)
VILLARAMA,
JR.,filed by petitioner Briccio Ricky A.
Pollo to nullify the proceedings conducted by the
Civil Service Commission (CSC) which found
PEREZ,
him guilty of dishonesty, grave misconduct,
conduct prejudicial to the best interest of the
MENDOZA,
service, and violation of Republic Act (R.A.) No.
6713 and penalized him with dismissal.
SERENO,
The factual antecedents:
REYES, and
Petitioner is a former Supervising
Personnel
Specialist of the CSC Regional Office
PERLAS-BERNABE,
No. IV and also the Officer-in-Charge of the
Public Assistance and Liaison Division (PALD)
under the Mamamayan Muna Hindi Mamaya
Promulgated:
Na program of the CSC.
On January 3, 2007 at around 2:30 p.m., an
unsigned
letter-complaint
addressed
to
October
18, 2011 CSC
respondent
Chairperson
Karina
Constantino-David
which
was
marked
Confidential and sent through a courier
service (LBC) from a certain Alan San Pascual
of Bagong Silang, Caloocan City, was received
by the Integrated Records Management Office
(IRMO) at the CSC Central Office. Following
office practice in which documents marked
Confidential are left unopened and instead sent
to the addressee, the aforesaid letter was given
directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas

and Advance Happy New Year!

informed the officials of the CSC-ROIV,

respondents Director IV Lydia Castillo (Director
Castillo) and Director III Engelbert Unite
(Director Unite) of Chairperson Davids directive.

As a concerned citizen of
my beloved country, I would like
to ask from you personally if it is
just alright for an employee of
your agency to be a lawyer of
an accused govt employee
having a pending case in the
csc. I honestly think this is a
violation of law and unfair to
others and your office.

The backing-up of all files in the hard disk of

computers at the PALD and Legal Services
Division (LSD) was witnessed by several
employees, together with Directors Castillo and
Unite who closely monitored said activity. At
around 6:00 p.m., Director Unite sent text
messages to petitioner and the head of LSD,
who were both out of the office at the time,
informing them of the ongoing copying of
computer files in their divisions upon orders of
the CSC Chair. The text messages received by
petitioner read:

I have known that a person

have been lawyered by one of
your attorny in the region 4
office. He is the chief of the
Mamamayan
muna
hindi
mamaya na division. He have
been helping many who have
pending cases in the Csc. The
justice in our govt system will
not be served if this will
continue. Please investigate this
anomaly
because
our
perception of your clean and
good office is being tainted.

Concerned Govt employee[3]

Chairperson David immediately formed a team
of four personnel with background in information
technology (IT), and issued a memo directing
them to conduct an investigation and specifically
to back up all the files in the computers found in
the Mamamayan Muna (PALD) and Legal
divisions.[4] After some briefing, the team
proceeded at once to the CSC-ROIV office
at Panay Avenue, Quezon City. Upon their
arrival thereat around 5:30 p.m., the team

Gud p.m. This is Atty. Unite FYI:

Co people are going over the
PCs of PALD and LSD per
instruction of the Chairman. If
you can make it here now it
would be better.

reported the presence of the team from CSC

main office: Sir may mga taga C.O. daw sa
kuarto natin.[6] At around 10:00 p.m. of the same
day, the investigating team finished their
task. The next day, all the computers in the
PALD were sealed and secured for the purpose
of preserving all the files stored therein. Several
diskettes containing the back-up files sourced
from the hard disk of PALD and LSD computers
were turned over to Chairperson David. The
contents of the diskettes were examined by the
CSCs Office for Legal Affairs (OLA). It was found
that most of the files in the 17 diskettes
containing files copied from the computer
assigned to and being used by the petitioner,
numbering about 40 to 42 documents, were draft
pleadings or letters[7] in connection with
administrative cases in the CSC and other
tribunals. On the basis of this finding,
Chairperson David issued the Show-Cause
Order[8] dated January 11, 2007, requiring the
petitioner, who had gone on extended leave, to
submit his explanation or counter-affidavit within
five days from notice.

All PCs Of PALD and LSD are

being backed up per memo of
the chair.

Evaluating the subject documents obtained from

petitioners personal files, Chairperson David
made the following observations:

CO IT people arrived just now

for this purpose. We were not
also informed about this.

Most of the foregoing

files are drafts of legal pleadings
or documents that are related to
or connected with administrative
cases that may broadly be
lumped as pending either in the
CSCRO No. IV, the CSC-NCR,
the CSC-Central Office or other
tribunals. It is also of note that
most of these draft pleadings
are for and on behalves of
parties, who are facing charges
as respondents in administrative
cases. This gives rise to the
inference that the one who
prepared them was knowingly,
deliberately and willfully aiding

We cant do anything about it its

a directive from chair.
Memo of the chair was referring
to an anonymous complaint; ill
send a copy of the memo via
mms[5]
Petitioner replied also thru text message that he
was leaving the matter to Director Unite and that
he will just get a lawyer. Another text message
received by petitioner from PALD staff also

and advancing interests adverse

and inimical to the interest of the
CSC as the central personnel
agency of the government
tasked to discipline misfeasance
and
malfeasance
in
the
government
service. The
number
of
pleadings
so
prepared further demonstrates
that such person is not merely
engaged in an isolated practice
but pursues it with seeming
regularity. It would also be the
height of naivete or credulity,
and certainly against common
human experience, to believe
that the person concerned had
engaged in this customary
practice
without
any
consideration, and in fact, one
of the retrieved files (item 13
above) appears to insinuate the
collection of fees. That these
draft pleadings were obtained
from the computer assigned to
Pollo invariably raises the
presumption that he was the
one responsible or had a hand
in their drafting or preparation
since the computer of origin was
within his direct control and
disposition.[9]
Petitioner filed his Comment, denying that he is
the person referred to in the anonymous lettercomplaint which had no attachments to it,
because he is not a lawyer and neither is he
lawyering for people with cases in the CSC. He
accused CSC officials of conducting a fishing
expedition when they unlawfully copied and
printed personal files in his computer, and
subsequently asking him to submit his comment
which violated his right against selfincrimination. He asserted that he had protested
the unlawful taking of his computer done while
he was on leave, citing the letter dated January

8, 2007 in which he informed Director Castillo

that the files in his computer were his personal
files and those of his sister, relatives, friends and
some associates and that he is not authorizing
their sealing, copying, duplicating and printing as
these would violate his constitutional right to
privacy and protection against self-incrimination
and warrantless search and seizure. He pointed
out that though government property, the
temporary use and ownership of the computer
issued under a Memorandum of Receipt (MR) is
ceded to the employee who may exercise all
attributes of ownership, including its use for
personal purposes. As to the anonymous letter,
petitioner argued that it is not actionable as it
failed to comply with the requirements of a
formal complaint under the Uniform Rules on
Administrative Cases in the Civil Service
(URACC). In view of the illegal search, the
files/documents copied from his computer
without his consent is thus inadmissible as
evidence, being fruits of a poisonous tree.[10]
On February 26, 2007, the CSC issued
Resolution
No.
070382[11] finding prima
facie case against the petitioner and charging
him with Dishonesty, Grave Misconduct,
Conduct Prejudicial to the Best Interest of the
Service and Violation of R.A. No. 6713 (Code of
Conduct and Ethical Standards for Public
Officials
and
Employees). Petitioner
was
directed to submit his answer under oath within
five days from notice and indicate whether he
elects a formal investigation. Since the charges
fall under Section 19 of the URACC, petitioner
was likewise placed under 90 days preventive
suspension effective immediately upon receipt of
the resolution. Petitioner received a copy of
Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For
Reconsideration, to Dismiss and/or to Defer)
assailing the formal charge as without basis
having proceeded from an illegal search which is
beyond the authority of the CSC Chairman, such
power pertaining solely to the court. Petitioner

reiterated that he never aided any people with

pending cases at the CSC and alleged that
those files found in his computer were prepared
not by him but by certain persons whom he
permitted, at one time or another, to make use of
his computer out of close association or
friendship. Attached to the motion were the
affidavit of Atty. Ponciano R. Solosa who
entrusted his own files to be kept at petitioners
CPU and Atty. Eric N. Estrellado, the latter being
Atty. Solosas client who attested that petitioner
had nothing to do with the pleadings or bill for
legal fees because in truth he owed legal fees to
Atty. Solosa and not to petitioner. Petitioner
contended that the case should be deferred in
view of the prejudicial question raised in the
criminal complaint he filed before the
Ombudsman against Director Buensalida, whom
petitioner
believes
had
instigated
this
administrative case. He also prayed for the lifting
of the preventive suspension imposed on him. In
its Resolution No. 070519[12] dated March 19,
2007, the CSC denied the omnibus motion. The
CSC resolved to treat the said motion as
petitioners answer.
On March 14, 2007, petitioner filed an
Urgent Petition[13] under Rule 65 of the Rules of
Court, docketed as CA-G.R. SP No. 98224,
assailing both the January 11, 2007 ShowCause Order and Resolution No. 070382 dated
February 26, 2007 as having been issued with
grave abuse of discretion amounting to excess
or total absence of jurisdiction. Prior to this,
however,
petitioner
lodged
an
administrative/criminal
complaint
against
respondents Directors Racquel D.G. Buensalida
(Chief of Staff, Office of the CSC Chairman) and
Lydia A. Castillo (CSC-RO IV) before the Office
of the Ombudsman, and a separate complaint
for disbarment against Director Buensalida.[14]
On April 17, 2007, petitioner received a notice of
hearing from the CSC setting the formal
investigation of the case on April 30, 2007.
On April 25, 2007, he filed in the CA an Urgent

Motion for the issuance of TRO and preliminary

injunction.[15] Since he failed to attend the prehearing conference scheduled on April 30, 2007,
the CSC reset the same to May 17, 2007 with
warning that the failure of petitioner and/or his
counsel to appear in the said pre-hearing
conference shall entitle the prosecution to
proceed with the formal investigation ex-parte.
[16]
Petitioner moved to defer or to reset the prehearing
conference,
claiming
that
the
investigation proceedings should be held in
abeyance pending the resolution of his petition
by the CA. The CSC denied his request and
again scheduled the pre-hearing conference
on May 18, 2007 with similar warning on the
consequences of petitioner and/or his counsels
non-appearance.[17] This prompted petitioner to
file another motion in the CA, to cite the
respondents, including the hearing officer, in
indirect contempt.[18]
On June 12, 2007, the CSC issued Resolution
No. 071134[19] denying petitioners motion to set
aside the denial of his motion to defer the
proceedings and to inhibit the designated
hearing officer, Atty. Bernard G. Jimenez. The
hearing officer was directed to proceed with the
investigation proper with dispatch.
In view of the absence of petitioner and his
counsel, and upon the motion of the
prosecution, petitioner was deemed to have
waived his right to the formal investigation which
then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution
No. 071420,[20] the dispositive part of which
reads:
WHEREFORE,
foregoing premises considered,
the Commission hereby finds
Briccio A. Pollo, a.k.a. Ricky A.
Pollo GUILTY of Dishonesty,
Grave Misconduct, Conduct
Prejudicial to the Best Interest of

the Service and Violation of

Republic Act 6713. He is meted
the penalty
of
DISMISSAL
FROM THE SERVICE with all
its accessory penalties, namely,
disqualification to hold public
office, forfeiture of retirement
benefits, cancellation of civil
service eligibilities and bar from
taking future civil service
examinations.[21]
On the paramount issue of the legality of the
search conducted on petitioners computer, the
CSC noted the dearth of jurisprudence relevant
to the factual milieu of this case where the
government as employer invades the private
files of an employee stored in the computer
assigned to him for his official use, in the course
of initial investigation of possible misconduct
committed by said employee and without the
latters consent or participation. The CSC thus
turned to relevant rulings of the United States
Supreme Court, and cited the leading case
of OConnor v. Ortega[22] as authority for the view
that government agencies, in their capacity as
employers, rather than law enforcers, could
validly conduct search and seizure in the
governmental workplace without meeting the
probable cause or warrant requirement for
search and seizure. Another ruling cited by the
CSC is the more recent case of United States v.
Mark L. Simons[23] which declared that the
federal agencys computer use policy foreclosed
any inference of reasonable expectation of
privacy on the part of its employees. Though the
Court therein recognized that such policy did
not, at the same time, erode the respondents
legitimate expectation of privacy in the office in
which the computer was installed, still, the
warrantless search of the employees office was
upheld as valid because a government employer
is entitled to conduct a warrantless search
pursuant to an investigation of work-related
misconduct provided the search is reasonable in
its inception and scope.

With the foregoing American jurisprudence as

benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to
the computer he was using in the regional office
in view of the CSC computer use policy which
unequivocally declared that a CSC employee
cannot assert any privacy right to a computer
assigned to him. Even assuming that there was
no such administrative policy, the CSC was of
the view that the search of petitioners computer
successfully passed the test of reasonableness
for warrantless searches in the workplace as
enunciated in the aforecited authorities. The
CSC stressed that it pursued the search in its
capacity as government employer and that it
was undertaken in connection with an
investigation involving work-related misconduct,
which exempts it from the warrant requirement
under the Constitution. With the matter of
admissibility of the evidence having been
resolved, the CSC then ruled that the totality of
evidence adequately supports the charges of
grave
misconduct,
dishonesty,
conduct
prejudicial to the best interest of the service and
violation of R.A. No. 6713 against the
petitioner. These grave infractions justified
petitioners dismissal from the service with all its
accessory penalties.
In his Memorandum[24] filed in the CA,
petitioner moved to incorporate the above
resolution dismissing him from the service in his
main petition, in lieu of the filing of an appeal via
a Rule 43 petition. In a subsequent motion, he
likewise prayed for the inclusion of Resolution
No. 071800[25] which denied his motion for
reconsideration.
By Decision dated October 11, 2007, the
CA dismissed the petition for certiorari after
finding no grave abuse of discretion committed
by respondents CSC officials. The CA held that:
(1) petitioner was not charged on the basis of
the anonymous letter but from the initiative of
the CSC after a fact-finding investigation was
conducted and the results thereof yielded

a prima facie case against him; (2) it could not

be said that in ordering the back-up of files in
petitioners computer and later confiscating the
same, Chairperson David had encroached on
the authority of a judge in view of the CSC
computer policy declaring the computers as
government property and that employee-users
thereof have no reasonable expectation of
privacy in anything they create, store, send, or
receive on the computer system; and (3) there is
nothing contemptuous in CSCs act of
proceeding with the formal investigation as there
was no restraining order or injunction issued by
the CA.
His motion for reconsideration having
been denied by the CA, petitioner brought this
appeal arguing that
I
THE HONORABLE COURT OF
APPEALS
GRIEVOUSLY
ERRED AND COMMITTED
SERIOUS
IRREGULARITY
AND BLATANT ERRORS IN
LAW AMOUNTING TO GRAVE
ABUSE
OF
DISCRETION
WHEN
IT
RULED
THAT
ANONYMOUS COMPLAINT IS
ACTIONABLE UNDER E.O.
292 WHEN IN TRUTH AND IN
FACT THE CONTRARY IS
EXPLICITLY
PROVIDED
UNDER 2nd PARAGRAPH OF
SECTION
8
OF
CSC
RESOLUTION NO. 99-1936,
WHICH IS AN [AMENDMENT]
TO THE ORIGINAL RULES
PER CSC RESOLUTION NO.
94-0521;
II

THE HONORABLE COURT

GRIEVOUSLY ERRED AND
COMMITTED
PALPABLE
ERRORS IN LAW AMOUNTING
TO
GRAVE
ABUSE
OF
DISCRETION WHEN IT RULED
THAT PETITIONER CANNOT
INVOKE
HIS
RIGHT TO
PRIVACY,
TO
UNREASONABLE
SEARCH
AND
SEIZURE,
AGAINST
SELF-INCRIMINATION,
BY
VIRTUE
OF
OFFICE
MEMORANDUM
NO.
10
S. 2002, A MERE
INTERNAL
MEMORANDUM
SIGNED
SOLELY AND EXCLUSIVELY
BY RESPONDENT DAVID AND
NOT BY THE COLLEGIAL
COMMISSION CONSIDERING
THAT POLICY
MATTERS
INVOLVING
SUB[S]TANTIAL
RIGHTS
CANNOT
BE
COVERED BY AN OFFICE
MEMORANDUM WHICH IS
LIMITED TO PROCEDURAL
AND
ROUTINARY
INSTRUCTION;
III
THE HONORABLE COURT
GRAVELY
ERRED
AND
COMMITTED GRAVE ABUSE
OF DISCRETION WHEN IT
RULED THAT MEMO SEARCH
DATED JANUARY 3, 2007 AND
THE TAKING OF DOCUMENTS
IN THE EVENING THEREOF
FROM 7:00 TO 10:00 P.M. IS
NOT GRAVE ABUSE OF
DISCRETION LIMITING THE
DEFINITION
[OF]
GRAVE
ABUSE OF DISCRETION TO
ONE
INVOLVING
AND
TAINTED WITH PERSONAL

HOSTILITY. IT
LIKEWISE ERRED IN
HOLDING
THAT DATA
STORED
IN
THE
GOVERNMENT COMPUTERS
ARE
GOVERNMENT
PROPERTIES
INCLUDING
THE PERSONAL FILES WHEN
THE
CONTRARY
IS
PROVIDED UNDER SECTION
14 OF OM. 10 s. 2002. AND
GRIEVOUSLY ERRED STILL
WHEN
IT
RULED
THAT
RESPONDENT
DAVID
BY
VIRTUE OF O.M. 10 DID NOT
ENCROACH ON THE DUTIES
AND FUNCTIONS OF A JUDGE
PURSUANT TO ARTICLE III,
SECTION 2 OF THE 1987
PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT
ERRED WHEN IT FAILED TO
CONSIDER ALL OTHER NEW
ARGUMENTS,
ADDITIONAL
EVIDENCE
HEREUNTO
SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND
TAKE ACTION ON THE 2
MOTIONS TO ADMIT AND
INCORPORATE
CSC
RESOLUTION NOS. 07-1420
DATED JULY 24, 2007 AND
CSC RESOLUTION 07-1800
DATED
SEPTEMBER
10,
2007. IT DID NOT RULE
LIKEWISE ON THE FOUR
URGENT
MOTION
TO
RESOLVE
ANCILLARY
PRAYER FOR TRO.[26]
Squarely raised by the petitioner is the legality of
the search conducted on his office computer and
the copying of his personal files without his

knowledge and consent, alleged as a

transgression on his constitutional right to
privacy.
The right to privacy has been accorded
recognition in this jurisdiction as a facet of the
right protected by the guarantee against
unreasonable search and seizure under Section
2, Article III of the 1987 Constitution,[27] which
provides:
SEC. 2. The right of the
people to be secure in their
persons, houses, papers, and
effects against unreasonable
searches and seizures of
whatever nature and for any
purpose shall be inviolable, and
no search warrant or warrant of
arrest shall issue except upon
probable
cause
to
be
determined personally by the
judge after examination under
oath or affirmation of the
complainant and the witnesses
he
may
produce,
and
particularly describing the place
to be searched and the persons
or things to be seized.
The constitutional guarantee is not a prohibition
of all searches and seizures but only of
unreasonable searches and seizures. [28] But to
fully understand this concept and application for
the purpose of resolving the issue at hand, it is
essential that we examine the doctrine in the
light
of
pronouncements
in
another
jurisdiction. As the Court declared in People v.
Marti[29]:
Our
present
constitutional provision on the
guarantee against unreasonable
search and seizure had its origin
in the 1935 Charter which,
worded as follows:

The
right
of
the
people to be
secure in their
persons,
houses, papers
and
effects
against
unreasonable
searches and
seizures shall
not be violated,
and no warrants
shall issue but
upon probable c
ause, to be
determined by
the judge after
examination
under oath or
affirmation
of
the complainant
and
the
witnesses
he
may produce,
and particularly
describing the
place to be
searched, and
the persons or
things to be
seized.
(Sec.
1[3], Article III)
was in turn derived almost
verbatim from the Fourth
Amendment to the United
States Constitution. As such,
the Court may turn to the
pronouncements of the United
States Federal Supreme Court
and State Appellate Courts
which are considered doctrinal
in this jurisdiction.[30]

In the 1967 case of Katz v. United States,[31] the

US Supreme Court held that the act of FBI
agents in electronically recording a conversation
made by petitioner in an enclosed public
telephone booth violated his right to privacy and
constituted a search and seizure. Because the
petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a
personal telephone call, the protection of the
Fourth Amendment extends to such area. In the
concurring opinion of Mr. Justice Harlan, it was
further noted that the existence of privacy right
under prior decisions involved a two-fold
requirement: first, that a person has exhibited an
actual (subjective) expectation of privacy; and
second, that the expectation be one that society
is prepared to recognize as reasonable
(objective).[32]
In Mancusi v. DeForte[33] which addressed the
reasonable expectations of private employees in
the workplace, the US Supreme Court held that
a union employee had Fourth Amendment rights
with regard to an office at union headquarters
that he shared with other union officials, even as
the latter or their guests could enter the
office. The
Court
thus
recognized
that
employees may have a reasonable expectation
of privacy against intrusions by police.
That the Fourth Amendment equally applies to a
government workplace was addressed in the
1987 case of OConnor v. Ortega[34] where a
physician, Dr. Magno Ortega, who was
employed by a state hospital, claimed a violation
of his Fourth Amendment rights when hospital
officials
investigating
charges
of
mismanagement of the psychiatric residency
program, sexual harassment of female hospital
employees and other irregularities involving his
private patients under the state medical aid
program, searched his office and seized
personal items from his desk and filing cabinets.
In that case, the Court categorically declared
that [i]ndividuals do not lose Fourth Amendment
rights merely because they work for the

government instead of a private employer.[35] A

plurality of four Justices concurred that the
correct analysis has two steps: first, because
some government offices may be so open to
fellow employees or the public that no
expectation of privacy is reasonable, a court
must consider [t]he operational realities of the
workplace in order to determine whether an
employees Fourth Amendment rights are
implicated; and next, where an employee has a
legitimate privacy expectation, an employers
intrusion
on
that
expectation
for
noninvestigatory, work-related purposes, as well
as for investigations of work-related misconduct,
should be judged by the standard of
reasonableness under all the circumstances.[36]
On the matter of government employees
reasonable expectations of privacy in their
workplace, OConnor teaches:
x x x Public employees
expectations of privacy in their
offices, desks, and file cabinets,
like similar expectations of
employees in the private sector,
may be reduced by virtue of
actual office practices and
procedures, or by legitimate
regulation. x x x The employees
expectation of privacy must be
assessed in the context of the
employment relation. An office
is seldom a private enclave free
from entry by supervisors, other
employees, and business and
personal invitees. Instead, in
many
cases
offices
are
continually entered by fellow
employees and other visitors
during
the
workday
for
conferences, consultations, and
other work-related visits. Simply
put, it is the nature of
government offices that others
such as fellow employees,

supervisors, consensual visitors,

and the general public may
have frequent access to an
individuals office. We agree with
JUSTICE
SCALIA
that
[c]onstitutional
protection
against unreasonable searches
by the government does not
disappear merely because the
government has the right to
make reasonable intrusions in
its capacity as employer, x x x
but some government offices
may be so open to fellow
employees or the public that
no expectation of privacy is
reasonable. x x x Given the
great
variety
of
work
environments in the public
sector,
the
question
of
whether an employee has a
reasonable expectation of
privacy must be addressed on
a
case-by-case
basis.
[37]
(Citations omitted; emphasis
supplied.)
On the basis of the established rule in previous
cases, the US Supreme Court declared that Dr.
Ortegas Fourth Amendment rights are implicated
only if the conduct of the hospital officials
infringed an expectation of privacy that society is
prepared to consider as reasonable. Given the
undisputed evidence that respondent Dr. Ortega
did not share his desk or file cabinets with any
other employees, kept personal correspondence
and other private items in his own office while
those work-related files (on physicians in
residency training) were stored outside his
office, and there being no evidence that the
hospital had established any reasonable
regulation or policy discouraging employees
from storing personal papers and effects in their
desks or file cabinets (although the absence of
such a policy does not create any expectation of
privacy where it would not otherwise exist), the

Court concluded that Dr. Ortega has a

reasonable expectation of privacy at least in his
desk and file cabinets.[38]
Proceeding to the next inquiry as to whether the
search conducted by hospital officials was
reasonable,
the OConnor plurality
decision
discussed the following principles:
Having determined that
Dr. Ortega had a reasonable
expectation of privacy in his
office, the Court of Appeals
simply
concluded
without
discussion that the searchwas
not a reasonable search under
the fourth amendment. x x x [t]o
hold that the Fourth Amendment
applies to searches conducted
by [public employers] is only to
begin the inquiry into the
standards
governing
such
searches[W]hat is reasonable
depends on the context within
which a search takes place. x x
x Thus, we must determine the
appropriate
standard
of
reasonableness applicable to
the search.A determination of
the standard of reasonableness
applicable to a particular class
of searches requires balanc[ing]
the nature and quality of the
intrusion on the individuals
Fourth Amendment interests
against the importance of the
governmental interests alleged
to justify the intrusion. x x x In
the
case
of
searches
conducted
by
a
public
employer, we must balance
the invasion of the employees
legitimate expectations of
privacy
against
the
governments
need
for
supervision, control, and the

efficient operation
workplace.

of

the

xxxx
In our view, requiring an
employer to obtain a warrant
whenever the employer wished
to enter an employees office,
desk, or file cabinets for a workrelated purpose would seriously
disrupt the routine conduct of
business and would be unduly
burdensome. Imposing unwieldy
warrant procedures in such
cases upon supervisors, who
would otherwise have no reason
to be familiar with such
procedures,
is
simply
unreasonable. In contrast to
other circumstances in which we
have
required
warrants,
supervisors in offices such as at
the Hospital are hardly in the
business of investigating the
violation
of
criminal
laws. Rather,
work-related
searches are merely incident to
the primary business of the
agency. Under
these
circumstances, the imposition of
a warrant requirement would
conflict with the common-sense
realization that government
offices could not function if
every employment decision
became a constitutional matter.
xxx
xxxx
The
governmental
interest justifying work-related
intrusions by public employers is
the
efficient
and
proper
operation
of
the

workplace. Government
agencies
provide
myriad
services to the public, and the
work of these agencies would
suffer
if
employers
were
required to have probable cause
before
they
entered
an
employees desk for the purpose
of finding a file or piece of office
correspondence. Indeed, it is
difficult to give the concept of
probable cause, rooted as it is in
the
criminal
investigatory
context, much meaning when
the purpose of a search is to
retrieve a file for work-related
reasons. Similarly, the concept
of probable cause has little
meaning for a routine inventory
conducted by public employers
for the purpose of securing state
property. x x x To ensure the
efficient and proper operation of
the agency, therefore, public
employers must be given wide
latitude to enter employee
offices
for
work-related,
noninvestigatory reasons.
We come to a similar
conclusion
for
searches
conducted pursuant to an
investigation of work-related
employee
misconduct. Even
when employers conduct an
investigation, they have an
interest substantially different
from the normal need for law
enforcement. x x x Public
employers have an interest in
ensuring that their agencies
operate in an effective and
efficient manner, and the work
of these agencies inevitably
suffers from the inefficiency,
incompetence,

mismanagement, or other workrelated misfeasance of its

employees. Indeed, in many
cases, public employees are
entrusted
with
tremendous
responsibility,
and
the
consequences
of
their
misconduct or incompetence to
both the agency and the public
interest can be severe. In
contrast to law enforcement
officials,
therefore,
public
employers are not enforcers of
the criminal law; instead, public
employers have a direct and
overriding interest in ensuring
that the work of the agency is
conducted in a proper and
efficient manner. In our view,
therefore, a probable cause
requirement for searches of
the type at issue here would
impose intolerable burdens
on public employers. The
delay
in
correcting
the
employee misconduct caused
by the need for probable
cause rather than reasonable
suspicion will be translated
into
tangible
and often
irreparable damage to the
agencys work, and ultimately
to the public interest. x x x
xxxx
In
sum,
we
conclude that
the
special
needs, beyond the normal
need for law enforcement
make
theprobable-cause
requirement impracticable, x
x x for legitimate, workrelated
noninvestigatory
intrusions
as
well
as
investigations of work-related

misconduct. A standard of
reasonableness will neither
unduly burden the efforts of
government
employers
to
ensure the efficient and proper
operation of the workplace, nor
authorize arbitrary intrusions
upon the privacy of public
employees. We hold, therefore,
that public
employer
intrusions
on
the
constitutionally
protected
privacy
interests
of
government employees for
noninvestigatory,
workrelated purposes, as well as
for investigations of workrelated
misconduct, should
be judged by the standard of
reasonableness under all the
circumstances. Under
this
reasonableness standard, both
the inception and the scope
of the intrusion must be
reasonable:
Determining the
reasonableness
of any search
involves
a
twofold inquiry:
first, one must
consider
whether
theaction was
justified at its
inception, x x
x ; second, one
must determine
whether
the
search
as
actually
conducted was
reasonably
related in scope
to
the

circumstances
which justified
the interference
in
the
first
place, x x x
Ordinarily, a search of
an employees office by a
supervisor will be justified at
its inception when there are
reasonable
grounds
for
suspecting that the search
will turn up evidence that the
employee is guilty of workrelated misconduct, or that
the search is necessary for a
noninvestigatory work-related
purpose such as to retrieve a
needed file. x x x The search
will be permissible in its
scope when the measures
adopted
are
reasonably
related to the objectives of
the
search
and
not
excessively intrusive in light
of
the
nature
of
the
[misconduct]. x x x[39] (Citations
omitted; emphasis supplied.)
Since the District Court granted summary
judgment without a hearing on the factual
dispute as to the character of the search and
neither was there any finding made as to the
scope of the search that was undertaken, the
case was remanded to said court for the
determination of the justification for the search
and
seizure,
and
evaluation
of
the
reasonableness of both the inception of the
search and its scope.
In OConnor the Court recognized that
special needs authorize warrantless searches
involving public employees for work-related
reasons. The Court thus laid down a balancing
test under which government interests are
weighed against the employees reasonable

expectation of privacy. This reasonableness test

implicates neither probable cause nor the
warrant requirement, which are related to law
enforcement.[40]
OConnor was applied in subsequent
cases raising issues on employees privacy
rights in the workplace. One of these cases
involved a government employers search of an
office computer, United States v. Mark L.
Simons[41] where the defendant Simons, an
employee of a division of the Central Intelligence
Agency (CIA), was convicted of receiving and
possessing
materials
containing
child
pornography. Simons was provided with an
office which he did not share with anyone, and a
computer with Internet access.The agency had
instituted a policy on computer use stating that
employees were to use the Internet for official
government business only and that accessing
unlawful
material
was
specifically
prohibited. The policy also stated that users
shall understand that the agency will periodically
audit, inspect, and/or monitor the users Internet
access as deemed appropriate. CIA agents
instructed its contractor for the management of
the agencys computer network, upon initial
discovery of prohibited internet activity
originating from Simons computer, to conduct a
remote monitoring and examination of Simons
computer. After confirming that Simons had
indeed downloaded pictures that were
pornographic in nature, all the files on the hard
drive of Simons computer were copied from a
remote work station. Days later, the contractors
representative finally entered Simons office,
removed the original hard drive on Simons
computer, replaced it with a copy, and gave the
original to the agency security officer. Thereafter,
the agency secured warrants and searched
Simons office in the evening when Simons was
not
around. The
search
team copied the
contents of Simons computer; computer
diskettes found in Simons desk drawer;
computer files stored on the zip drive or on zip
drive diskettes; videotapes; and various

documents,
including
personal
correspondence. At his trial, Simons moved to
suppress these evidence, arguing that the
searches of his office and computer violated his
Fourth Amendment rights. After a hearing, the
district court denied the motion and Simons was
found guilty as charged.

of privacy, Simons must show

that his subjective expectation
of privacy is one that society is
prepared
to
accept
as
objectively reasonable. x x x

Simons appealed his convictions. The

US Supreme Court ruled that the searches of
Simons computer and office did not violate his
Fourth Amendment rights and the first search
warrant was valid. It held that the search
remains valid under the OConnor exception to
the warrant requirement because evidence of
the crime was discovered in the course of an
otherwise
proper
administrative
inspection. Simons violation of the agencys
Internet policy happened also to be a violation of
criminal law; this does not mean that said
employer lost the capacity and interests of an
employer. The warrantless entry into Simons
office was reasonable under the Fourth
Amendment
standard
announced
inOConnor because at the inception of the
search, the employer had reasonable grounds
for suspecting that the hard drive would yield
evidence of misconduct, as the employer was
already aware that Simons had misused his
Internet access to download over a thousand
pornographic images. The retrieval of the hard
drive was reasonably related to the objective of
the search, and the search was not excessively
intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not
have such legitimate expectation of privacy with
regard to the files in his computer.

x x x We conclude that
the remote searches of Simons
computer did not violate his
Fourth
Amendment
rights
because, in light of the Internet
policy,
Simons
lacked
a
legitimate expectation of privacy
in the files downloaded from the
Internet. Additionally,
we
conclude that Simons Fourth
Amendment rights were not
violated by FBIS retrieval of
Simons hard drive from his
office.

x x x To establish a
violation of his rights under the
Fourth Amendment, Simons
must first prove that he had a
legitimate expectation of privacy
in the place searched or the
item seized. x x x And, in order
to prove a legitimate expectation

xxxx

Simons did not have a

legitimate
expectation
of
privacy with regard to the
record or fruits of his Internet
use in light of the FBIS
Internet policy. The policy
clearly stated that FBIS would
audit, inspect, and/or monitor
employees use of the Internet,
including all file transfers, all
websites visited, and all email messages, as deemed
appropriate. x x x This policy
placed employees on notice that
they could not reasonably
expect that their Internet activity
would be private. Therefore,
regardless of whether Simons
subjectively believed that the
files he transferred from the
Internet were private, such a
belief was not objectively
reasonable after FBIS notified

him that it would be overseeing

his
Internet
use. x
x
x Accordingly, FBIS actions in
remotely searching and seizing
the computer files Simons
downloaded from the Internet
did not violate the Fourth
Amendment.
xxxx
The burden is on
Simons to prove that he had a
legitimate
expectation
of
privacy in his office. x x
x Here, Simons has shown that
he had an office that he did not
share. As noted above, the
operational realities of Simons
workplace may have diminished
his
legitimate
privacy
expectations. However, there is
no evidence in the record of any
workplace
practices,
procedures, or regulations that
had
such
an
effect. We
therefore conclude that, on this
record, Simons possessed a
legitimate
expectation
of
privacy in his office.
xxxx
In the final analysis, this
case involves an employees
supervisor
entering
the
employees government office
and retrieving a piece of
government equipment in which
the employee had absolutely no
expectation
of
privacy
equipment that the employer
knew contained evidence of
crimes committed by the
employee in the employees
office. This situation may be

contrasted with one in which the

criminal acts of a government
employee were unrelated to his
employment. Here, there was a
conjunction of the conduct that
violated the employers policy
and the conduct that violated
the criminal law. We consider
that FBIS intrusion into Simons
office to retrieve the hard drive
is one in which a reasonable
employer might engage. x x
x[42] (Citations
omitted;
emphasis supplied.)
This Court, in Social Justice Society (SJS) v.
Dangerous Drugs Board[43] which involved the
constitutionality of a provision in R.A. No. 9165
requiring mandatory drug testing of candidates
for public office, students of secondary and
tertiary schools, officers and employees of public
and private offices, and persons charged before
the prosecutors office with certain offenses,
have also recognized the fact that there may be
such legitimate intrusion of privacy in the
workplace.
The first factor to
consider in the matter of
reasonableness is the nature of
the privacy interest upon which
the drug testing, which effects a
search within the meaning of
Sec. 2, Art. III of the
Constitution, intrudes. In this
case, the office or workplace
serves as the backdrop for the
analysis
of
the
privacy
expectation of the employees
and the reasonableness of drug
testing
requirement. The
employees privacy interest in
an office is to a large extent
circumscribed
by
the
companys work policies, the
collective
bargaining

agreement, if any, entered

into by management and the
bargaining unit, and the
inherent right of the employer
to maintain discipline and
efficiency in the workplace.
Their privacy expectation in a
regulated office environment is,
in fine, reduced; and a degree of
impingement upon such privacy
has been upheld. (Emphasis
supplied.)
Applying the analysis and principles announced
in OConnor and Simons to the case at bar, we
now address the following questions: (1) Did
petitioner have a reasonable expectation of
privacy in his office and computer files?; and (2)
Was the search authorized by the CSC Chair,
the copying of the contents of the hard drive on
petitioners computer reasonable in its inception
and scope?
In this inquiry, the relevant surrounding
circumstances to consider include (1) the
employees relationship to the item seized; (2)
whether the item was in the immediate control of
the employee when it was seized; and (3)
whether the employee took actions to maintain
his privacy in the item. These factors are
relevant to both the subjective and objective
prongs of the reasonableness inquiry, and we
consider the two questions together.[44] Thus,
where the employee used a password on his
computer, did not share his office with coworkers and kept the same locked, he had a
legitimate expectation of privacy and any search
of that space and items located therein must
comply with the Fourth Amendment.[45]
We
answer
the
first
in
the
negative. Petitioner failed to prove that he had
an actual (subjective) expectation of privacy
either in his office or government-issued
computer which contained his personal
files. Petitioner did not allege that he had a

separate enclosed office which he did not share

with anyone, or that his office was always locked
and not open to other employees or
visitors. Neither did he allege that he used
passwords or adopted any means to prevent
other employees from accessing his computer
files. On the contrary, he submits that being in
the public assistance office of the CSC-ROIV, he
normally would have visitors in his office like
friends, associates and even unknown people,
whom he even allowed to use his computer
which to him seemed a trivial request. He
described his office as full of people, his friends,
unknown people and that in the past 22 years he
had been discharging his functions at the PALD,
he is personally assisting incoming clients,
receiving documents, drafting cases on appeals,
in
charge
of
accomplishment
report, Mamamayan
Muna Program,
Public
Sector
Unionism,
Correction
of
name,
accreditation of service, and hardly had anytime
for himself alone, that in fact he stays in the
office as a paying customer.[46] Under this
scenario, it can hardly be deduced that petitioner
had such expectation of privacy that society
would recognize as reasonable.

Moreover, even assuming arguendo, in the

absence of allegation or proof of the
aforementioned factual circumstances, that
petitioner had at least a subjective expectation
of privacy in his computer as he claims, such is
negated by the presence of policy regulating the
use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 Computer
Use Policy (CUP) explicitly provides:
POLICY
1.

The Computer
Resources are the property
of
the
Civil
Service

Commission and may be

used only for legitimate
business purposes.

2.

Users shall be permitted

access
to Computer
Resources to assist them in
the performance of their
respective jobs.

3.

Use
of
the Computer
Resources is a privilege that
may be revoked at any
given time.

xxxx
No Expectation of Privacy
4. No

expectation
of
privacy. Users except the
Members
of
the
Commission shall not
have an expectation of
privacy in anything they
create, store, send, or
receive on the computer
system.

The Head of the Office for

Recruitment, Examination
and
Placement
shall
select
and
assign Users to
handle
the
confidential
examination data and
processes.

5. Waiver
of
privacy
rights. Users expressly
waive any right to privacy
in anything they create,
store, send, or receive on
the computer through the
Internet or any other
computer
network.Users understand
that the CSC may use
human or automated
means to monitor the
use of its Computer
Resources.
6. Non-exclusivity of Computer
Resources. A
computer
resource is not a personal
property
or
for
the
exclusive use of a User to
whom a memorandum of
receipt (MR) has been
issued. It can be shared
or operated by other
users. However, he is
accountable therefor and
must insure its care and
maintenance.
xxxx
Passwords
12. Responsibility
for
passwords. Users shall be
responsible
for
safeguarding
their
passwords for access to
the
computer
system. Individual
passwords shall not be
printed, stored online, or
given
to
others. Users shall
be
responsible
for
all
transactions made using

their passwords. No User

may access the computer
system
with
another
Users
password
or
account.
13. Passwords do not imply
privacy. Use of passwords
to gain access to the
computer system or to
encode particular files or
messages does not imply
that Users have
an
expectation of privacy in
the material they create or
receive on the computer
system. The Civil Service
Commission has global
passwords that permit
access to all materials
stored on its networked
computer
system
regardless of whether
those
materials
have
been encoded with a
particular Users password
. Only members of the
Commission
shall
authorize the application
of
the
said
global
passwords.
x x x x[47] (Emphasis supplied.)
The CSC in this case had implemented a policy
that put its employees on notice that they have
no expectation of privacy in anything they
create, store, send or receive on the office
computers, and that the CSC may monitor the
use of the computer resources using both
automated or human means. This implies that
on-the-spot inspections may be done to ensure
that the computer resources were used only for
such legitimate business purposes.

One of the factors stated in OConnor which are

relevant in determining whether an employees
expectation of privacy in the workplace is
reasonable is the existence of a workplace
privacy policy.[48] In one case, the US Court of
Appeals Eighth Circuit held that a state
university employee has not shown that he had
a reasonable expectation of privacy in his
computer files where the universitys computer
policy, the computer user is informed not to
expect privacy if the university has a legitimate
reason to conduct a search. The user is
specifically told that computer files, including email, can be searched when the university is
responding to a discovery request in the course
of litigation.Petitioner employee thus cannot
claim a violation of Fourth Amendment rights
when university officials conducted a warrantless
search of his computer for work-related
materials.[49]
As to the second point of inquiry on the
reasonableness of the search conducted on
petitioners computer, we answer in the
affirmative.
The search of petitioners computer files was
conducted in connection with investigation of
work-related misconduct prompted by an
anonymous
letter-complaint addressed
to
Chairperson David regarding anomalies in the
CSC-ROIV where the head of the Mamamayan
Muna Hindi Mamaya Na division is supposedly
lawyering for individuals with pending cases in
the CSC. Chairperson David stated in her sworn
affidavit:
8. That prior to this, as early as
2006, the undersigned
has received several text
messages from unknown
sources
adverting
to
certain anomalies in Civil
Service
Commission
Regional
Office
IV
(CSCRO IV) such as,

staff working in another

government
agency,
selling cases and aiding
parties
with
pending
cases, all done during
office hours and involved
the use of government
properties;
9. That said text messages were
not investigated for lack
of any verifiable leads
and details sufficient to
warrant an investigation;
10. That the anonymous letter
provided the lead and
details as it pinpointed
the persons and divisions
involved in the alleged
irregularities happening in
CSCRO IV;
11. That in view of the
seriousness
of
the
allegations
of
irregularities happening in
CSCRO IV and its effect
on the integrity of the
Commission, I decided to
form a team of Central
Office staff to back up the
files in the computers of
the Public Assistance and
Liaison Division (PALD)
and Legal Division;
x x x x[50]
A search by a government employer of an
employees office is justified at inception when
there are reasonable grounds for suspecting that
it will turn up evidence that the employee is
guilty of work-related misconduct.[51] Thus, in the
2004 case decided by the US Court of Appeals

Eighth Circuit, it was held that where a

government agencys computer use policy
prohibited electronic
messages
with
pornographic content and in addition expressly
provided that employees do not have any
personal privacy rights regarding their use of the
agency information systems and technology, the
government employee had no legitimate
expectation of privacy as to the use and
contents of his office computer, and therefore
evidence found during warrantless search of the
computer was admissible in prosecution for child
pornography. In that case, the defendant
employees computer hard drive was first
remotely examined by a computer information
technician after his supervisor received
complaints that he was inaccessible and had
copied and distributed non-work-related e-mail
messages throughout the office. When the
supervisor confirmed that defendant had used
his computer to access the prohibited websites,
in contravention of the express policy of the
agency, his computer tower and floppy disks
were
taken
and
examined. A
formal
administrative investigation ensued and later
search warrants were secured by the police
department. The initial remote search of the
hard drive of petitioners computer, as well as the
subsequent warrantless searches was held as
valid under the OConnor ruling that a public
employer
can
investigate
work-related
misconduct so long as any search is justified at
inception and is reasonably related in scope to
the circumstances that justified it in the first
place.[52]
Under the facts obtaining, the search conducted
on petitioners computer was justified at its
inception and scope. We quote with approval the
CSCs discussion on the reasonableness of its
actions, consistent as it were with the guidelines
established by OConnor:
Even conceding for a
moment that there is no such
administrative policy, there is no

doubt in the mind of the

Commission that the search of
Pollos
computer
has
successfully passed the test of
reasonableness for warrantless
searches in the workplace as
enunciated in the abovediscussed
American
authorities. It
bears
emphasis that
the
Commission pursued the
search in its capacity as a
government employer and
that it was undertaken in
connection
with
an
investigation
involving
a
work-related misconduct, one
of the circumstances exempted
from the warrant requirement. At
the inception of the search, a
complaint
was
received
recounting that a certain division
chief in the CSCRO No. IV was
lawyering for parties having
pending cases with the said
regional office or in the
Commission. The nature of the
imputation was serious, as it
was grievously disturbing. If,
indeed, a CSC employee was
found to be furtively engaged in
the practice of lawyering for
parties with pending cases
before the Commission would
be a highly repugnant scenario,
then such a case would have
shattering
repercussions. It
would undeniably cast clouds of
doubt upon the institutional
integrity of the Commission as a
quasi-judicial agency, and in the
process, render it less effective
in fulfilling its mandate as an
impartial
and
objective
dispenser
of
administrative
justice. It is settled that a court

or an administrative tribunal
must not only be actually
impartial but must be seen to be
so, otherwise the general public
would not have any trust and
confidence in it.
Considering
the
damaging nature of the
accusation, the Commission
had to act fast, if only to arrest
or limit any possible adverse
consequence or fall-out. Thus,
on the same date that the
complaint was received, a
search was forthwith conducted
involving
the
computer
resources in the concerned
regional office. That it was the
computers
that
were
subjected to the search was
justified since these furnished
the easiest means for an
employee to encode and store
documents. Indeed,
the
computers would be a likely
starting point in ferreting out
incriminating
evidence.
Concomitantly, the ephemeral
nature of computer files, that
is, they could easily be
destroyed at a click of a
button, necessitated drastic
and
immediate
action. Pointedly, to impose the
need to comply with the
probable cause requirement
would invariably defeat the
purpose of the wok-related
investigation.
Worthy to mention, too,
is the fact that the Commission
effected the warrantless search
in an open and transparent
manner. Officials and some

employees of the regional office,

who happened to be in the
vicinity, were on hand to
observe the process until its
completion. In
addition,
the
respondent himself was duly
notified,
through
text
messaging, of the search and
the concomitant retrieval of files
from his computer.
All
in
all,
the
Commission is convinced that
the warrantless search done on
computer assigned to Pollo was
not, in any way, vitiated with
unconstitutionality. It
was
a
reasonable exercise of the
managerial prerogative of the
Commission as an employer
aimed
at
ensuring
its
operational effectiveness and
efficiency by going after the
work-related misfeasance of its
employees. Consequently, the
evidence derived from the
questioned search are deemed
admissible.[53]
Petitioners claim of violation of his
constitutional right to privacy must necessarily
fail. His other argument invoking the privacy of
communication and correspondence under
Section
3(1),
Article
III
of
the 1987
Constitution is also untenable considering the
recognition accorded to certain legitimate
intrusions into the privacy of employees in the
government workplace under the aforecited
authorities. We likewise find no merit in his
contention that OConnor and Simons are not
relevant because the present case does not
involve a criminal offense like child pornography.
As already mentioned, the search of petitioners
computer was justified there being reasonable
ground for suspecting that the files stored
therein would yield incriminating evidence

relevant to the investigation being conducted by

CSC as government employer of such
misconduct
subject of
the
anonymous
complaint. This situation clearly falls under the
exception to the warrantless requirement in
administrative searches defined in OConnor.
The Court is not unaware of our
decision in Anonymous Letter-Complaint against
Atty. Miguel Morales, Clerk of Court,
Metropolitan Trial Court of Manila[54] involving a
branch clerk (Atty. Morales) who was
investigated on the basis of an anonymous letter
alleging that he was consuming his working
hours filing and attending to personal cases,
using
office
supplies,
equipment
and
utilities. The OCA conducted a spot investigation
aided by NBI agents. The team was able to
access Atty. Morales personal computer and
print two documents stored in its hard drive,
which turned out to be two pleadings, one filed
in the CA and another in the RTC of Manila, both
in the name of another lawyer. Atty. Morales
computer was seized and taken in custody of
the OCA but was later ordered released on his
motion, but with order to the MISO to first
retrieve the files stored therein. The OCA
disagreed with the report of the Investigating
Judge that there was no evidence to support the
charge against Atty. Morales as no one from the
OCC personnel who were interviewed would
give a categorical and positive statement
affirming the charges against Atty. Morales,
along with other court personnel also charged in
the same case. The OCA recommended that
Atty. Morales should be found guilty of gross
misconduct. The Court En Banc held that while
Atty. Morales may have fallen short of the
exacting standards required of every court
employee, the Court cannot use the evidence
obtained from his personal computer against
him for it violated his constitutional right against
unreasonable searches and seizures. The Court
found no evidence to support the claim of OCA
that they were able to obtain the subject
pleadings with the consent of Atty. Morales, as in

fact the latter immediately filed an administrative

case against the persons who conducted the
spot investigation, questioning the validity of the
investigation and specifically invoking his
constitutional right against unreasonable search
and seizure. And as there is no other evidence,
apart from the pleadings, retrieved from the
unduly confiscated personal computer of Atty.
Morales, to hold him administratively liable, the
Court had no choice but to dismiss the charges
against him for insufficiency of evidence.
The above case is to be distinguished
from the case at bar because, unlike the former
which involved a personal computer of a court
employee, the computer from which the
personal files of herein petitioner were retrieved
is a government-issued computer, hence
government property the use of which the CSC
has absolute right to regulate and monitor. Such
relationship of the petitioner with the item seized
(office computer) and other relevant factors and
circumstances
under
American
Fourth
Amendment
jurisprudence,
notably
the
existence of CSC MO 10, S. 2007 on Computer
Use Policy, failed to establish that petitioner had
a reasonable expectation of privacy in the office
computer assigned to him.
Having determined that the personal
files copied from the office computer of petitioner
are admissible in the administrative case against
him, we now proceed to the issue of whether the
CSC was correct in finding the petitioner guilty of
the charges and dismissing him from the
service.
Well-settled is the rule that the findings
of fact of quasi-judicial agencies, like the CSC,
are accorded not only respect but even finality if
such findings are supported by substantial
evidence. Substantial evidence is such amount
of relevant evidence which a reasonable mind
might accept as adequate to support a
conclusion, even if other equally reasonable
minds might conceivably opine otherwise.[55]

The CSC based its findings on evidence

consisting of a substantial number of drafts of
legal pleadings and documents stored in his
office computer, as well as the sworn affidavits
and testimonies of the witnesses it presented
during the formal investigation. According to
the CSC, these documents were confirmed to be
similar or exactly the same content-wise with
those on the case records of some cases
pending either with CSCRO No. IV, CSC-NCR or
the Commission Proper. There were also
substantially similar copies of those pleadings
filed with the CA and duly furnished the
Commission. Further,
the CSC found
the
explanation given by petitioner, to the effect that
those files retrieved from his computer hard
drive actually belonged to his lawyer friends
Estrellado and Solosa whom he allowed the use
of his computer for drafting their pleadings in the
cases they handle, as implausible and doubtful
under the circumstances. We hold that
the CSCs factual finding regarding the
authorship of the subject pleadings and misuse
of the office computer is well-supported by the
evidence on record, thus:
It is also striking to note
that some of these documents
were in the nature of pleadings
responding to the orders,
decisions or resolutions of these
offices or directly in opposition
to them such as a petition for
certiorari or a motion for
reconsideration
of
CSC
Resolution. This indicates that
the author thereof knowingly
and willingly participated in the
promotion or advancement of
the interests of parties contrary
or
antagonistic
to
the
Commission. Worse,
the
appearance in one of the
retrieved
documents
the
phrase, Eric N. Estr[e]llado,
Epal
kulang
ang
bayad

mo,lends plausibility to an
inference that the preparation or
drafting of the legal pleadings
was pursued with less than a
laudable
motivation. Whoever
was responsible for these
documents was simply doing
the same for the money a legal
mercenary selling or purveying
his expertise to the highest
bidder, so to speak.
Inevitably, the fact that
these
documents
were
retrieved from the computer
of
Pollo
raises
the
presumption that he was the
author
thereof. This
is
because he had a control of
the
said
computer. More
significantly,
one
of
the
witnesses, Margarita Reyes,
categorically testified seeing a
written copy of one of the
pleadings found in the case
records lying on the table of the
respondent. This
was
the
Petition for Review in the case
of Estrellado addressed to the
Court of Appeals. The said
circumstances
indubitably
demonstrate that Pollo was
secretly
undermining
the
interest of the Commission, his
very own employer.
To
deflect
any
culpability,
Pollo
would,
however, want the Commission
to believe that the documents
were the personal files of some
of his friends, including one
Attorney Ponciano Solosa, who
incidentally served as his
counsel of record during the
formal investigation of this

case. In fact, Atty. Solosa

himself executed a sworn
affidavit
to
this
effect. Unfortunately,
this
contention of the respondent
was directly rebutted by the
prosecution witness, Reyes,
who testified that during her
entire stay in the PALD, she
never saw Atty. Solosa using the
computer assigned to the
respondent. Reyes
more
particularly stated that she
worked in close proximity with
Pollo and would have known if
Atty.
Solosa,
whom
she
personally knows, was using the
computer in question. Further,
Atty. Solosa himself was never
presented during the formal
investigation to confirm his
sworn statement such that the
same constitutes self-serving
evidence unworthy of weight
and credence. The same is true
with the other supporting
affidavits,
which
Pollo
submitted.
At any rate, even
admitting for a moment the said
contention of the respondent, it
evinces the fact that he was
unlawfully authorizing private
persons to use the computer
assigned to him for official
purpose, not only once but
several times gauging by the
number of pleadings, for ends
not in conformity with the
interests of the Commission. He
was, in effect, acting as a
principal
by
indispensable
cooperationOr at the very least,
he should be responsible for
serious
misconduct
for

repeatedly
allowing
CSC
resources, that is, the computer
and the electricity, to be utilized
for purposes other than what
they were officially intended.
Further,
the
Commission
cannot
lend
credence to the posturing of the
appellant that the line appearing
in one of the documents, Eric N.
Estrellado, Epal kulang ang
bayad mo, was a private joke
between the person alluded to
therein, Eric N. Estrellado, and
his counsel, Atty. Solosa, and
not indicative of anything more
sinister. The same is too
preposterous
to
be
believed.Why would such a
statement appear in a legal
pleading stored in the computer
assigned to the respondent,
unless he had something to do
with it?[56]
Petitioner assails the CA in not ruling
that the CSC should not have entertained an
anonymous complaint since Section 8 of CSC
Resolution No. 99-1936 (URACC) requires a
verified complaint:
Rule II Disciplinary Cases
SEC.
8. Complaint. A
complaint against a civil service
official or employee shall not be
given due course unless it is in
writing and subscribed and
sworn
to
by
the
complainant. However, in cases
initiated
by
the
proper
disciplining authority, the
complaint need not be under
oath.

No anonymous complaint shall

be entertained unless there is
obvious truth or merit to the
allegation therein or supported
by documentary or direct
evidence, in which case the
person complained of may be
required to comment.
xxxx
We need not belabor this point raised by
petitioner. The administrative complaint is
deemed to have been initiated by the CSC itself
when Chairperson David, after a spot inspection
and search of the files stored in the hard drive of
computers in the two divisions adverted to in the
anonymous letter -- as part of the disciplining
authoritys own fact-finding investigation and
information-gathering -- found a prima facie case
against the petitioner who was then directed to
file his comment. As this Court held in Civil
Service Commission v. Court of Appeals[57] -Under Sections 46 and
48 (1), Chapter 6, Subtitle A,
Book V of E.O. No. 292 and
Section 8, Rule II of Uniform
Rules on Administrative Cases
in the Civil Service, a complaint
may be initiated against a civil
service officer or employee by
the appropriate disciplining
authority, even without being
subscribed
and
sworn
to. Considering that the CSC,
as the disciplining authority for
Dumlao, filed the complaint,
jurisdiction over Dumlao was
validly acquired. (Emphasis
supplied.)
As to petitioners challenge on the validity of
CSC OM 10, S. 2002 (CUP), the same deserves
scant consideration. The alleged infirmity due to
the said memorandum order having been issued

solely by the CSC Chair and not the

Commission as a collegial body, upon which the
dissent of Commissioner Buenaflor is partly
anchored,
was
already
explained
by
Chairperson David in her Reply to the
Addendum
to
Commissioner
Buenaflors
previous memo expressing his dissent to the
actions and disposition of the Commission in this
case. According to Chairperson David, said
memorandum order was in fact exhaustively
discussed, provision by provision in the January
23, 2002 Commission Meeting, attended by her
and former Commissioners Erestain, Jr. and
Valmores. Hence, the Commission En Banc at
the time saw no need to issue a Resolution for
the purpose and further because the CUP being
for internal use of the Commission, the practice
had been to issue a memorandum order.
[58]
Moreover, being an administrative rule that is
merely internal in nature, or which regulates only
the personnel of the CSC and not the public, the
CUP need not be published prior to its effectivity.
[59]

In fine, no error or grave abuse of discretion was

committed by the CA in affirming the CSCs
ruling that petitioner is guilty of grave
misconduct, dishonesty, conduct prejudicial to
the best interest of the service, and violation of
R.A. No. 6713. The gravity of these offenses
justified the imposition on petitioner of the
ultimate penalty of dismissal with all its
accessory penalties, pursuant to existing rules
and regulations.
WHEREFORE, the petition for review on
certiorari is DENIED.
The Decision dated October
11,
2007 and
Resolution dated February 29, 2008 of the Court
of Appeals in CA-G.R. SP No. 98224
are AFFIRMED.
With costs against the petitioner.
SO ORDERED.

No part.

[1]

Rollo, pp. 63-83. Penned by Associate Justice

Romeo F. Barza, with Associate Justices Mariano
C. Del Castillo (now a Member of this Court) and
Arcangelita M. Romilla-Lontok concurring.

[2]

Id. at 85.

[3]

Id. at 306.

[4]

Id. at 305.

[5]

CA rollo, p. 56.

[6]

Id.

[7]

Id. at 21-24.

[8]

Id. at 20-25.

[9]

Id. at 25.

[10]

Id. at 55-62.

[11]

Id. at 26-33. Chairperson Karina Constantino-David

and Commissioner Mary Ann Z. FernandezMendoza concurred in ruling that a prima
facie case existed against petitioner while
Commissioner Cesar D. Buenaflor dissented [see
Memorandum (OCOM-C Memo No. 14, s. 2007,
CA rollo, pp. 431-434).

[12]

CSC records, pp. 71-l to 71-n. Chairperson Karina

Constantino-David and Commissioner Mary Ann
Z. Fernandez-Mendoza concurred in the denial of
the omnibus motion while Commissioner Cesar
D. Buenaflor reiterated his dissent.

[13]

CA rollo, pp. 2-19.

[14]

Id. at 288-294, 321-325.

[15]

Id. at 336-340.

[16]

Id. at 373.

[17]

Id. at 376-378.

[18]

Id. at 388-392.

[19]

Id. at 457-463. Chairperson Karina ConstantinoDavid and Commissioner Mary Ann Z.

Fernandez-Mendoza concurred in denying the
motion
while
Commissioner
Cesar
D.
Buenaflor dissented stating that based on his
dissenting position, any subsequent proceedings
in this case is of no moment since the initiatory
proceedings was in violation of a persons
fundamental rights enshrined in the Bill of Rights
of the Constitution. (Id. at 465.)

[20]

Id. at 586-618. Chairperson Karina ConstantinoDavid and Commissioner Mary Ann Z.

Fernandez-Mendoza concurred in ruling that
petitioner
is
guilty
as
charged
while
Commissioner Cesar D. Buenaflor maintained his
dissent.

[21]

Id. at 618.

[22]

480 U.S. 709 (1987).

[23]

206 F.3d 392 (4th Cir. 2000).

[24]

Id. at 560-585.

[28]

Id. at 707-719. Chairperson Karina ConstantinoDavid and Commissioner Mary Ann Z.

Fernandez-Mendoza concurred in the denial of
the
motion
for
reconsideration
while
Commissioner Cesar D. Buenaflor reiterated his
dissent under his Addendum to the Dissenting
Position Under OCOM-C Memo No. 14, S. 2007.
(Id. at 720.)

[26]

Rollo, p. 19.

[27]

Social Justice Society (SJS) v. Dangerous Drugs

Board, G.R. Nos. 157870, 158633 and 161658,
November
3,
2008,
570
SCRA 410,
427, citing Ople v. Torres, G.R. No. 127685, July
23, 1998, 293 SCRA 141, 169.

[47]

Id. at 440-443.

[48]

Biby
v.
Board
of
Regents,
the University of Nebraska at Lincoln, 419
F.3d 845 C.A.8 (Neb), August 22, 2005.

of

[29]

G.R. No. 81561, January 18, 1991, 193 SCRA 57.

[30]

Id. at 63.

[49]

Id.

[31]

389 U.S. 437 (1967).

[50]

CA rollo, p. 639.

[32]

Id.

[51]

U.S. v. Thorn, 375 F.3d 679, C.A.8 (Mo.), July 13,

2004.

[33]

392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154

(1968).

[52]

Id.

[34]

Supra note 22.

[53]

CA rollo, pp. 611-612.

[35]

Id. at 717.

[54]

A.M. Nos. P-08-2519 and P-08-2520, November

19, 2008, 571 SCRA 361.

[36]

City
of
Ontario, Cal. v.
Quon, 130
2619, U.S. 2010, June 17, 2010.

[55]

Vertudes v. Buenaflor, G.R. No. 153166, December

16, 2005, 478 SCRA 210, 230, citing Rosario v.
Victory Ricemill, G.R. No. 147572, February 19,
2003, 397 SCRA 760, 766 and Bagong Bayan
Corp., Realty Investors and Developers v.
NLRC, G.R. No. 61272, September 29,
1989, 178 SCRA 107.

[56]

CA rollo, pp. 616-617.

[57]

G.R. No. 147009, March 11, 2004, 425 SCRA 394,

401.

[58]

Rollo, p. 299.

[59]

See Taada v. Hon. Tuvera, 230 Phil. 528, 535

(1986).

[37]

Supra note 22 at 717-718.

[38]

Id. at 718-719.

[39]

Id. at 719, 722-725.

[40]
[25]

Joaquin Bernas, S.J., THE CONSTITUTION OF

THE REPUBLIC OF THE PHILIPPINES: A
COMMENTARY, 2003 ed., p. 162.

[41]

[42]

Francis v. Giacomelli, 588

(Md), December 2, 2009.

F.3d 186,

S.Ct.

C.A.

Supra note 23.

Id.

[43]

Supra note 27 at 432-433.

[44]

U.S. v. Barrows, 481 F.3d 1246, C.A.10 (Okla.),

April
3, 2007,
citing United
States
v.
Anderson, 154 F.3d 1225, 1229 (10th Cir. 1998).

[45]

U.S. v.
Ziegler, 474
F.3d 1184
(Mont.), January 30, 2007.

[46]

CA rollo, pp. 42, 61.

C.A.9

SUPREME COURT
Manila
EN BANC

G.R. No. 100874 February 13, 1992

GOVERNOR BENJAMIN I.
ESPIRITU, petitioner,
vs.
NELSON B. MELGAR and HON. JUDGE
MARCIANO T. VIROLA, respondents.
Luna, Sison & Manas for petitioner.
Panganiban, Benitez, Parlade, Africa &
Barinaga Law Offices for private respondent.

GRIO-AQUINO, J.:

On or about 4:30 in the

afternoon of March 26, 1991, in
the Municipality of Naujan,
Oriental Mindoro, the
aforementioned person, Nelson
Melgar, being the Municipal
Mayor of Naujan, Oriental
Mindoro, with abuse of official
function, did then and there
wilfully, unlawfully and
feloniously attack, assault and
use personal violence upon the
person of Ramir Garing, by then
and there boxing and kicking
thereby inflicting upon the latter
physical injuries on different
parts of his body and not being
contented ordered his arrest
and detention in the municipal
jail of Naujan, Oriental Mindoro
without filing any charges until
he was released the following
day March 27, 1991 at about
8:30 in the morning. (p.
30, Rollo.)

The issue in this special civil action

of certiorari and prohibition is the jurisdiction of
respondent Judge of the Regional Trial Court of
Oriental Mindoro to stop the provincial governor
from placing a municipal mayor under preventive
suspension pending the investigation of
administrative charges against the latter.

An identical letter-complaint was filed by Garing

with the Provincial Governor of Oriental Mindoro
(herein petitioner Governor Benjamin I. Espiritu)
accusing Mayor Melgar of the same violations of
law and requesting that the mayor be placed
under preventive suspension pending
investigation of the charges.

On April 11, 1991, one Ramir Garing of Naujan,

Oriental Mindoro, filed a sworn letter-complaint
with Secretary Luis Santos of the Department of
Interior and Local Government charging Mayor
Nelson Melgar of Naujan, Oriental Mindoro, with
grave misconduct, oppression, abuse of
authority, culpable violation of the Constitution
and conduct prejudicial to the best interest of the
public service. The charge against Mayor Melgar
reads:

A third complaint filed by Garing with the

Presidential Action Center, Office of the
President of the Philippines, was forwarded to
Governor Espiritu with a request for prompt
action (Annex "C", p. 36, Rollo).
On April 22, 1991, the Sangguniang
Panlalawigan of Oriental Mindoro required
Mayor Melgar to answer the complaint, which
was docketed as Adm. Case No. 91-01 (Annex
"D", p. 37, Rollo).

On May 22, 1991, Mayor Melgar submitted his

answer in which he recounted the events of
March 26, 1991 that led to the filing of Garing's
complaint against him:
At around 6:30 in the evening of
26 March 1991, while I was in
the middle of my speech at the
Naujan Public Gymnasium, this
Municipality, where the Jose L.
Basa Memorial graduation
ceremonies were then being
held, a prolonged but
nonetheless loud and
intermittent clapping suddenly
erupted from one of the
numerous people then in
attendance. I paused. The
handclapping stopped. I
resumed my speech. The fellow
started all over again.
The audience was visibly
disturbed and I found myself
unable to proceed not because I
could not collect my thoughts
but because I felt the solemnity
of the occasion had irreversibly
been shattered by a rudeness
so totally unexpected.
I ended my speech and
instructed a policeman to
investigate the culprit who
turned out to be Ramir Garing.
He was drunk. I did not hurt him
as can be gathered from his
medical certificate (Annex "B" to
the complaint) which palpably
contradicts his affidavit (Annex
"A" to the complaint).
I was informed that said Ramir
Garing was momentarily placed
in custody for his own protection
because he was drunk. An open

knife (balisong) was taken from

him. I was likewise informed that
after he had sobered up, he was
told to go home, but he refused
to go and only did so the
following morning.

of the administrative complaint (Annex "H, p.

49, Rollo).

Certainly under the

circumstances, charges could
have been filed against Ramir
Garing under the provisions of
Article 153 of the Revised Penal
Code and also for possession
and concealment of a deadly
weapon. Still, as a local Chief
Executive, who to most people
represent (sic) a sovereign
government, and who, at the
cost of foregoing personal
vindication must avoid any
appearance of vindictiveness, I
instructed my policemen not to
file charges against him.

On June 6, 1991, the Sangguniang

Panlalawigan denied the motion to dismiss (Res.
No. 72, p. 62 Rollo; Annex "L" to the Petition).

Attached hereto for your further

reference are the joint affidavit
of teachers of the J.L. Basa
Memorial School as Annex "A",
the joint affidavit of the
Municipal Jailer and the Police
Investigator as Annex "B", the
affidavit of Fireman 1st Class
Roy Lomio as Annex "C", and a
xerox copy of the pages in the
Police Blotter where the incident
in question was entered. (pp.
40-41, Rollo).
After evaluating the complaint and its supporting
documents, as well as the Mayor's answer and
the affidavits of his witnesses, the Sangguniang
Panlalawigan of Oriental Mindoro passed
Resolution No. 55 on May 9, 1991,
recommending to the Provincial Governor that
respondent Mayor be preventively suspended
for forty-five (45) days pending the investigation

On May 23, 1991, Mayor Melgar filed a motion

to dismiss the administrative complaint (Annex
"I", pp. 51-55,Rollo). It was opposed by Garing.

Meanwhile, pursuant to the recommendation of

the Sangguniang Panlalawigan in its Resolution
No. 55, Governor Espiritu placed Mayor Melgar
under preventive suspension on May 28, 1991
on the ground that:
. . . there is reasonable ground
to believe that respondent
Mayor Nelson B. Melgar of
Naujan, Oriental Mindoro, has
committed the acts stated in the
complaint and affidavit of Ramir
Garing and corroborated by the
affidavits (Exhibits A, C & D) of
his witnesses, namely: Lydia V.
Garing, Nelson Tabor and Javier
Dagdagan, all of Poblacion II,
Naujan, Oriental Mindoro. (p.
63, Rollo)
On June 3, 1991, Mayor Melgar received the
Order of Suspension (Annex "M", p. 63, Rollo).
He forthwith filed a "Petition for Certiorari with
Preliminary Injunction with prayer for Restraining
Order" in the Regional Trial Court of Oriental
Mindoro (Spl. Civil Action No. R-5003) alleging
that "the order of suspension was an arrogant,
despotic and arbitrary abuse of power" by the
Governor (pp. 68-69, Rollo).
On June 24, 1991, RTC Judge Virola issued a
writ of preliminary injunction enjoining Governor
Espiritu from implementing the Order of
suspension against Mayor Melgar for:

The Court is more inclined to

believe the answer under oath
of the respondent and the sworn
statements of his witnesses
attached to the Answer in the
administrative case than the
complaint under oath in the
administrative case which are
the evidence to be considered in
determining whether or not the
order of preventive suspension
was issued in accordance with
law. There is no reason to doubt
the sworn statements of the
numerous public school
teachers and members of the
PNP. Besides, the medical
certificate issued in connection
with the treatment of the
complainant in the
administrative case tends to
corroborate the theory of the
respondent and contradict that
of the complaint in the
administrative case. The
abrasions on the right arm of the
complainant in the
administrative case tend to
show that said complainant was
held tightly by the hands by the
PNP because he was then
drunk, in possession of
a balisong knife and causing
serious disturbance and not
because he was boxed and
kicked by herein petitioner. (pp.
75-76, Rollo.)
Governor Espiritu filed a motion to dismiss
and/or for reconsideration which Judge Virola
denied on July 16, 1991. Hence, this petition
for certiorari and prohibition.
Without giving due course to the petition, we
required the private respondent to comment and
we issued a Temporary Restraining Order

commanding respondent Judge to cease and

desist from further proceeding in Special Civil
Action No. R-5003 (pp. 106-107, Rollo). On
August 22, 1991, Mayor Melgar filed an "Urgent
Motion to Lift Temporary Restraining Order"
which the petitioner opposed and the Court
denied (p. 127-155, Rollo).
Petitioner submits that respondent Judge Virola
acted without jurisdiction or with grave abuse of
discretion in issuing: (1) the writ of preliminary
injunction restraining Governor Espiritu from
implementing the order of preventive
suspension, and (2) in denying petitioner's
motion to dismiss Special Civil Action No. R5003, for:
a Petitioner, as Provincial
Governor, is empowered by
Section 63 of the Local
Government Code to place an
elective municipal official under
preventive suspension pending
decision of an administrative
case against the elective
municipal official:
b) Petitioner did not commit a
grave abuse of discretion in
placing respondent mayor under
preventive suspension; if at all,
his error was an error of
judgment which is not
correctible bycertiorari;
c) By express provision of
Section 61 of the Local
Government Code, the
Sangguniang Panlalawigan has
jurisdiction over complaints
against any elective municipal
official; on the other hand,
Section 19(c) of the Judiciary
Reorganization Act of 1980
withdraws from regional trial
courts jurisdiction over cases

within the exclusive jurisdiction

of any person, tribunal or body
exercising judicial or quasijudicial functions. Thus, by
practically deciding the
administrative case on the
merits, the respondent court
acted without jurisdiction; and
d) Respondent Mayor had a
remedy of appeal under Section
66 of the Local Government
Code.
Section 63, Chapter IV of the Local Government
Code provides:

shall not extend beyond sixty

days after the start of said
suspension.
(3) At the expiration of sixtydays, the suspended official
shall be deemed reinstated in
office without prejudice to the
continuation of the proceedings
against him until its termination.
However, if the delay in the
proceedings of the case is due
to his fault, neglect or request,
the time of the delay shall not be
counted in computing the time
of the suspension.

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, by the
provincial governor if the
respondent is an elective
municipal official, or by the city
or municipal mayor if the
respondent is an elective
barangay official.

Clearly, the provincial governor of Oriental

Mindoro is authorized by law to preventively
suspend the municipal mayor of Naujan at
anytime after the issues had been joined and
any of the following grounds were shown to
exist:

(2) Preventive suspension may

be imposed at anytime 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
so warrants, or when the
continuance in office of the
respondent could influence the
witnesses or pose a threat to
the safety and integrity of the
records and other evidence. In
all cases, preventive suspension

3. When the gravity of the offense so warrants;

or

1. When there is reasonable ground to believe

that the respondent has committed the act or
acts complained of;
2. When the evidence of culpability is strong;

4. When the continuance in office of the

respondent could influence the witnesses or
pose a threat to the safety and integrity of the
records and other evidence.
There is nothing improper in suspending an
officer before the charges against him are heard
and before he is given an opportunity to prove
his innocence (Nera vs. Garcia and Elicao, 106
Phil. 1031). Preventive suspension is allowed so
that the respondent may not hamper the normal
course of the investigation through the use of his

influence and authority over possible witnesses

(Lacson vs. Roque, 92 Phil. 456).
Since respondent mayor believed that his
preventive suspension was unjustified and
politically motivated, he should have sought
relief first from the Secretary of Interior and
Local Government, not from the courts. Mayor
Melgar's direct recourse to the courts without
exhausting administrative remedies was
premature (Aboitiz & Co. Inc. vs. Collector of
Customs, 83 SCRA 265; Garcia vs. Teehankee,
27 SCRA 937; Manuel vs. Jimenez, 17 SCRA
55; Bongcawil vs. Provincial Board of Lanao del
Norte, 10 SCRA 327; The Phil Veterans Affairs
Office vs. Farias, et al., AC-G.R. SP No. 05937,
July 5, 1985; Bonafe vs. Zurbano, 131 SCRA 9).
The regional trial court had no jurisdiction over
Special Civil Action No. R-5003 and gravely
abused its discretion in refusing to dismiss the
case.
There may exist honest differences of opinion
with regard to the seriousness of the charges, or
as to whether they warrant disciplinary action.
However, as a general rule, the office or body
that is invested with the power of removal or
suspension should be the sole judge of the
necessity and sufficiency of the cause ( 17
R.C.L. Sec. 233 cited in Attorney General vs.
Doherty, 13 Am. Rep. 132). So, unless a flagrant
abuse of the exercise of that power is shown,
public policy and a becoming regard for the
principle of separation of powers demand that
the action of said officer or body should be left
undisturbed.
However, in this particular case, since the 60day preventive suspension of Mayor Melgar was
maintained by the Temporary Restraining Order
which we issued on August 6, 1991, and
therefore has already been served, he is
deemed reinstated in office without prejudice to
the continuation of the administrative
investigation of the charges against him (Sec.
63, subpar. 3, Local Government Code).

WHEREFORE, the petition for certiorari and

prohibition is granted. The writ of preliminary
injunction dated June 24, 1991 in Special Civil
Action No. R-5003 is hereby annulled and set
aside. Said Special Civil Action No. R-5003 is
dismissed.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Padilla, Bidin,
Medialdea, Regalado, Davide, Jr., Romero and
Nocon, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

loss of several telegraph poles which were

located at the Sariaya-Lucena City and MaubanSampaloc, Quezon, telecom lines. Petitioner did
not appeal from the decision.

FIRST DIVISION

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.
Eulogio B. Alzaga for petitioner.
The Solicitor General for respondents.

BELLOSILLO, J.:
Petitioner comes to us on 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 1 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

Based on the same facts obtaining in the

administrative action, a criminal case for
qualified theft was filed against petitioner with
the 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 provide for the payment of back
salaries and that he has not 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 oncertiorari from the decision of the
COA, citing Art. XII-(D), Sec. 2, par. 2, 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) petitioners 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 of back

wages is allowed only if the respondent is
exonerated from the administrative charge 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 money. 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. 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 dos 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 this 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 the
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. InMonsanto 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 of 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; he 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 with 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 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 local governments concerned, which
reasons were found by this Court to be either
devoid of 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 (15) 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.
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.
Cruz, Grio-Aquino, Davide, Jr. and Quiason,
JJ., concur.

# Footnotes

1 Rollo, p. 62.
2 Rollo, p. 16.
3 59 Am Jur 2d, Pardon and
Parole, Sec. 1.
4 Art. VII, Sec. 19, 1987
Constitution.
5 Rollo, pp. 21-22.
6 G.R. No. 78239, 9 February
1989, 170 SCRA 190.
7 Ibid.
8 Sabello v. Department of
Education, Culture and Sports,
G.R. No. 87687, 26 December
1989, 180 SCRA 623.
9 Ibid.
10 Mondano v. Silvosa, 97 Phil
143 (1955).
11 Macabuhay v. Manuel, No. L40872, 29 December 1980, 101
SCRA 834; Cristobal v. Melchor,
No. L-43203, 29 December
1980, 101 SCRA 857; Taala v.
Legaspi, No. L-22537, 31 March
1965, 13 SCRA 566.
12 Ginzon v. Municipality of
Murcia, No. L-46585, 8
February 1988, 158 SCRA 1;
Gementiza v. Court of Appeals,
Nos. L-41717-33, 12 April 1982,
113 SCRA 477; Balquidra v.
CFI, No. L-40490, 28 October
1977, 80 SCRA 123; Cristobal v.
Melchor, supra.

SECOND DIVISION

NIETO A. RACHO,
Petitioner,

This petition for certiorari and mandamus under

Rule 65 of the Rules of Court seeks the
annulment of the Joint Order[1] dated April 1,
2005 of the Office of the Ombudsman (OMB) in
the Visayas. The
OMB
had
denied
reconsideration of its Reinvestigation Report[2] in
OMB-V-C-02-0240-E and its Resolution in OMBC-C-03-0729-L,
both
datedJanuary
10,
2005. Petitioner herein also assails both
issuances of the OMB.

and dishonesty, and meted on him the penalty of

dismissal from service with forfeiture of all
benefits and perpetual disqualification to hold
office.[7] In
OMB-V-C-02-0240-E,
Director Palanca-Santiago found probable cause
to charge Racho with falsification of public
document under Article 171(4)[8] of the Revised
Penal
Code.[9] The
latter
moved
for
reconsideration but it was denied by the Deputy
Ombudsman.

The factual antecedents of this case are as

follows.

On May 30, 2003, Racho was charged with

falsification of public document, docketed as
Criminal Case No. CBU-66458 before the
Regional Trial Court (RTC) of Cebu City, Branch
8. The Information alleged:

- versus HON. PRIMO C. MIRO, in his capacity as Deputy

Ombudsman for the Visayas, HON. VIRGINIA
PALANCA-SANTIAGO, in her capacity as
Ombudsman Director, and HON. ANTONIO T.
ECHAVEZ, in his capacity as Presiding Judge of
the Regional Trial Court - Cebu City, Branch 8,
Respondents.

On November 9, 2001, DYHP Balita Action

Team (DYHP) of the Radio Mindanao Network,
Inc. addressed a letter[3] on behalf of an
anonymous complainant to Deputy Ombudsman
for the Visayas Primo C. Miro. The letter
accused Nieto A. Racho, an employee of the
Bureau of Internal Revenue (BIR)-Cebu, of
having accumulated wealth disproportionate to
his income. Photocopied bank certifications
disclosed that Racho had a total deposit
of P5,793,881.39 with three banks.
Pio R. Dargantes, the Graft Investigation Officer
I (GIO) assigned to investigate the complaint,
directed DYHP to submit a sworn statement of
its witnesses. Instead, the latter filed a
Manifestation[4] dated October
16,
2002 withdrawing its complaint for lack of
witnesses. Consequently,
GIO
Dargantes
dismissed the case. He ruled that the
photocopied bank certifications did not constitute
substantial evidence required in administrative
proceedings.[5]

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:

Then, in two separate Memoranda dated May 30,

2003,[6] Ombudsman Director Virginia PalancaSantiago
disapproved
GIO
Dargantess
Resolution. In
OMB-V-A-02-0214-E,
Director Palanca-Santiago
held Racho administratively liable for falsification

That on or about the

7th day of February, 2000, and
for
sometime
subsequent
thereto,
at
Cebu
City,
Philippines, and within the
jurisdiction of this Honorable
Court, above-named accused
NIETO A. RACHO, a public
officer, being the Chief, Special
Investigation Division, Bureau of
Internal
Revenue
(BIR),
Regional Office No. 13, Cebu
City, in such capacity and
committing the offense in
relation to [his] office, with
deliberate intent, with intent to
falsify, did then and there
willfully,
unlawfully
and
feloniously falsify a public
document, consisting of his
Statement of Assets, Liabilities
and Networth, Disclosure of
Business Interest and Financial
Connections; and Identification
of Relatives In The Government
Service, as of December 31,
1999, by stating therein that his
cash in bank is only FIFTEEN

THOUSAND
PESOS
(P15,000.00),
Philippine
Currency and that his assets
minus his liabilities amounted
only to TWO HUNDRED
THREE THOUSAND SEVEN
HUNDRED
FIFTY
EIGHT
PESOS
(P203,758.00),
Philippine Currency, when in
truth and in fact, said accused
has BANK DEPOSITS or cash
in banks amounting to FIVE
MILLION SEVEN HUNDRED
NINETY THREE THOUSAND
EIGHT
HUNDRED
ONE
PESOS
and
39/100
(P5,793,801.39),[10] Philippine
Currency, as herein shown:
1) Metropolitan Bank and Trust
Company Cebu,
Tabunok
Branch:
Unisa No. Amount
3-172-941-10 P1,983,554.45
3-172-941-11 949,341.82
Total - P2,932,896.27
2) Philippine
Commercial
International
Bank
Magallanes
Branch, Cebu City:
Account No. Amount
Equalizer
29456 P1,000,000.00

29449-

PCC Fund 99-0095-0-0020clf.b 200,000.00

Optimum Savings
06860-9 28,702.53

00-8953-

Total - P1,228,702.53
3) Bank
of
the
Philippine Islands - Cebu (M
ango)
Branch, Gen. Maxilom Aven
ue, Cebu City:
Account No. Amount
Gold
Savings
49 P1,632,282.59

1023-2036-

thus deliberately failed to

disclose an important fact of
which he has the legal
obligation
to
do
so
as
specifically mandated under
Section 8 of Republic Act No.
6713 (The Norms of Conduct
and Ethical Standards for Public
Officials and Employees) and
Section 7 of Republic Act No.
3019, As Amended (The AntiGraft and Corrupt Practices
Act), thereby making untruthful
statement in a narration of facts.
CONTRARY TO LAW.[11]
Racho appealed the administrative case and
filed a petition for certiorari under Rule 65 with
the Court of Appeals to question the ruling in
OMB-V-C-02-0240-E. In
a
Decision[12] dated January
26,
2004,
the
appellate court annulled both Memoranda and
ordered a reinvestigation of the cases against
petitioner. Thereafter, petitioner filed a Motion to
Dismiss[13] dated July 21, 2004. The same was
denied
for
lack
of
merit
in
an
Order[14] dated August 24, 2004.

On reinvestigation, petitioner submitted a

Comment[15] dated January 4, 2005 along with
supporting documents. On January 10, 2005, the
OMB issued the assailed Reinvestigation Report,
the dispositive portion of which states:
With all the foregoing,
undersigned finds no basis to
change, modify nor reverse her
previous findings that there is
probable cause for the crime of
FALSIFICATION OF PUBLIC
DOCUMENT,
defined
and
penalized under Article 171 of
the Revised Penal Code,
against
respondent
Nieto
A. Racho for making untruthful
statements in a narration of
facts in his SALN. As there are
additional facts established
during the reinvestigation, re:
failure of Mr. Racho to reflect his
business connections, then the
Information filed against him
should be amended to include
the same. Let this Amended
Information be returned to the
court for further proceedings.
SO RESOLVED.[16]
Petitioner sought reconsideration but was
denied by the OMB in the Joint Order dated April
1, 2005. It decreed:
The
Motion
for
Reconsideration of respondent
did not adduce any new
evidence, which would warrant
a reversal of our findings;
neither did it present proof of
errors of law or irregularities
being committed.

This being so, this

Motion for Reconsideration of
respondent
is
hereby
DENIED. The findings of this
Office as contained in the two
(2)
REINVESTIGATION
REPORTS (in OMB-V-C-020240-E and OMB-V-A-02-0214E) and RESOLUTION (in OMBC-C-03-0729-L) stand.
SO ORDERED.[17]
In the instant petition, Racho cites the following
issues:
I.
WHETHER
OR
NOT
RESPONDENT OMBUDSMAN
DIRECTOR, AS WELL AS
RESPONDENT
DEPUTY
OMBUDSMAN
FOR
THE
VISAYAS WHO SANCTIONED
HER
DEED,
COMMITTED
GRAVE
ABUSE
OF
DISCRETION EQUIVALENT TO
LACK OR IN EXCESS OF
JURISDICTION WHEN SHE
REFUSED OR FAILED TO
INHIBIT
HERSELF
FROM
CONDUCTING
THE
SUPPOSED REINVESTIGATIO
N;
II.
WHETHER OR NOT HEREIN
PETITION[ER] WAS DENIED
DUE PROCESS OF LAW IN
THE
SUPPOSED REINVESTIGATIO
N;
III.

WHETHER
OR
NOT
RESPONDENT OMBUDSMAN
DIRECTOR, AS WELL AS
RESPONDENT
DEPUTY
OMBUDSMAN
FOR
THE
VISAYAS WHO SANCTIONED
HER
DEED,
COMMITTED
GRAVE
ABUSE
OF
DISCRETION EQUIVALENT TO
LACK OR IN EXCESS OF
JURISDICTION WHEN SHE
HELD THAT PETITIONERS
MOTION
FOR
RECONSIDERATION DID NOT
ADDUCE PROOF OF ANY
IRREGULARITY
IN
THE REINVESTIGATION; AND
IV.
WHETHER OR NOT BY
REASON
OF
THIS
HONORABLE
COURTS
INHERENT POWER TO DO
ALL THINGS REASONABLY
NECESSARY
FOR
THE
ADMINISTRATION
OF
JUSTICE, EVEN IF NOT
PRAYED
FOR
IN
THE
INSTANT
PETITION,
THE
SUBJECT
OMBUDSMAN
CASES
OMB-V-C-02-0240-E
AND OMB-C-C-03-0729-L CAN
BE DISMISSED.[18]
Stated simply, the issues now for determination
are as follows: (1) Whether Ombudsman
Director Palanca-Santiago gravely abused her
discretion when she did not inhibit herself in the
reinvestigation; (2) Whether petitioner was
denied due process of law on reinvestigation;
and (3) Whether there was probable cause to
hold petitioner liable for falsification under Article
171(4) of the Revised Penal Code.

Petitioner ascribes grave abuse of discretion on

the part of Ombudsman Director PalancaSantiago since she did not inhibit herself in the
reinvestigation. He claims a denial of due
process
because
of
the
fact
that
Director Palanca-Santiago
handled
the
preliminary investigation as well as the
reinvestigation of the cases. In both instances,
the latter found probable cause to indict
petitioner for falsification. For this reason,
petitioner believes that Director PalancaSantiago has turned hostile to him. He insists
that respondent director had lost the cold
neutrality of an impartial judge when she found
probable cause against him on preliminary
investigation. Petitioner penultimately questions
the haste with which the reinvestigation was
concluded and the lack of hearing thereon. In
essence, he insists on the dismissal of his cases
before the OMB.
On November 6, 2006, the OMB thru the Office
of the Special Prosecutor (OSP) filed a
Memorandum[19] dated October 23, 2006 for
respondents. The OSP avers that the instant
petition stated no cause of action since it did not
implead the Hon. Ombudsman Simeon Marcelo
as
a
respondent. That
Director PalancaSantiago resolved the investigation adverse to
petitioner, the OSP contends, did not necessarily
indicate partiality. The OSP explains that the
Reinvestigation
Report
was
merely
recommendatory and the finding of probable
cause was done in line with official duty. It points
out further that petitioner failed to cite specific
acts by which Director Palanca-Santiago
showed hostility towards him. Finally, the OSP
charges petitioner with forum shopping since he
had already raised the issue of respondent
directors impartiality in his petition assailing the
Memorandum dated May 30, 2003, before the
Court of Appeals.
After
considering
the
contentions
and
submissions of the parties, we are in agreement
that the instant petition lacks merit.

The prosecution of offenses committed by public

officers is vested primarily in the OMB. For this
purpose, the OMB has been given a
wide latitude of investigatory and prosecutory
powers under the Constitution and Republic Act
No. 6770[20] (The Ombudsman Act of 1989). Its
discretion is freed from legislative, executive or
judicial intervention to ensure that the OMB is
insulated from any outside pressure and
improper influence.[21] Hence, unless there are
good and compelling reasons to do so, the Court
will refrain from interfering with the exercise of
the Ombudsmans powers, and will respect the
initiative and independence inherent in the latter
who, beholden to no one, acts as the champion
of the people and the guardian of the integrity of
the public service.[22]
The Ombudsman is empowered to determine
whether there exists reasonable grounds to
believe that a crime has been committed and
that the accused is probably guilty thereof and,
thereafter, to file the corresponding information
with the appropriate courts.[23] Such finding of
probable cause is a finding of fact which is
generally not reviewable by this Court.[24] The
only ground upon which a plea for review of the
OMBs resolution may be entertained is an
alleged grave abuse of discretion. By that
phrase is meant the capricious and whimsical
exercise of judgment equivalent to an excess or
lack of jurisdiction. The abuse of discretion must
be so patent and so gross as to amount to an
evasion of a positive duty; or to a virtual refusal
to perform a duty enjoined by law; or to act at all
in contemplation of law, as when the power is
exercised in an arbitrary and despotic manner
by reason of passion or hostility.[25]
Considering the facts and circumstances of this
case, we find no grave abuse of discretion on
the part of respondents. As already well-stated,
as long as substantial evidence supports the
Ombudsmans ruling, his decision will not be
overturned.[26] Here,
the
finding
of
the
Ombudsman that there was probable cause to

hold petitioner liable for falsification by making

untruthful statements in a narration of facts rests
on substantial evidence.
The OMB evaluated petitioners Statement of
Assets, Liabilities and Networth (SALN) for the
year 1999[27] against certified true copies of his
bank deposits during the same year. In his
SALN, petitioner declared P15,000 cash in bank
as
of December
31,
1999. The
bank
certifications of petitioners deposits, however,
confirmed that he had an aggregate balance
of P5,793,881.39 in his accounts with three
banks. Original certifications dated June 17,
1999 issued by the Bank of the Philippine
Islands (BPI)[28] and Equitable PCI Bank
(Equitable
PCIB)[29] revealed
accounts
for P1,632,282.59 and P1,228,702.53,
respectively. A
photocopied
certification
dated June
16,
1999 from
Metrobank[30] indicated
a
deposit
of P2,932,896.27.
The OMB did not accord weight to the Joint
Affidavit[31] submitted by petitioner. In said
Affidavit, Vieto and Dean Racho, petitioners
brothers, stated that they entrusted to
petitioner P1,390,000 and P1,950,000
respectively. On the other hand, petitioners
nephew, Henry Racho, claimed that he delivered
the amount of P1,400,000 to petitioner. These
sums were purportedly their contribution as
stockholders of Angelsons Lending and
Investors, Inc. (Angelsons) and Nal Pay Phone
Services (NPPS) - businesses managed by the
spouses Racho. Ironically, Dean Racho was not
listed as a stockholder of the lending
company. Moreover,
the
Articles
of
Incorporation[32] of Angelsons reflected that
Vieto, Henry and the spouses Racho individually
paid only P12,500 of the subscribed shares
of P50,000 each. Petitioner did not present
proofs of succeeding contributions made and
their amounts. Curiously, affiants allegedly
tendered their additional contributions during
family reunions.[33] Neither did the affiants

describe the extent of their interest in NPPS.

Petitioner merely presented NPPS Certificate of
Registration of Business Name[34] secured by his
wife Lourdes B. Racho. Yet, said certificate did
not operate as a license to engage in any kind of
business, much more a proof of its
establishment and operation. Even assuming
that said businesses exist, petitioner should
have similarly reported his interests therein in
his SALN.
Petitioner argues that his culpability should not
be ascertained on the basis of photocopied bank
certifications. Apparent from the records,
however, is the Order [35] dated August 27,
2004 of the OMB which required petitioner to
comment on the certified true copies of bank
certifications issued by BPI and Equitable
PCIB. All the same, even if we exclude his
deposit in Metrobank, a significant disparity
between his declared cash on hand of P15,000
and cash in bank of P2,860,985.12 subsists
when compared to his total bank deposits duly
certified for the same year.
Indeed, the determination of probable cause
need not be based on clear and convincing
evidence of guilt, neither on evidence
establishing absolute certainty of guilt. [36] It is
enough that it is believed that the act or
omission complained of constitutes the offense
charged. The trial of a case is conducted
precisely for the reception of evidence of the
prosecution in support of the charge. [37] A finding
of probable cause merely binds the suspect to
stand trial. It is not a pronouncement of guilt. [38]
Moreover, we are unable to agree with
petitioners contention that he was denied due
process when no hearing was conducted on his
motion for reinvestigation. In De Ocampo v.
Secretary of Justice,[39] we ruled that a
clarificatory hearing is not required during
preliminary investigation. Rather than being
mandatory, a clarificatory hearing is optional on
the part of the investigating officer as evidenced

by the use of the term may in Section 3(e) of

Rule 112, thus:
(e) If the investigating
officer believes that there are
matters to be clarified, he may
set
a
hearing
to
propound clarificatory questions
to the parties or their witnesses,
during which the parties shall be
afforded an opportunity to be
present but without the right to
examine or cross-examine.[40]
This rule applies equally to a motion for
reinvestigation. As stated, the Office of the
Ombudsman has been granted virtually plenary
investigatory powers by the Constitution and by
law. As a rule, the Office of the Ombudsman
may, for every particular investigation, whether
instigated by a complaint or on its own initiative,
decide how best to pursue such investigation.
[41]
In the present case, the OMB found it
unnecessary to hold additional clarificatory
hearings. Notably, we note that a hearing was
conducted during preliminary investigation
where petitioner invoked his right to remain
silent and confront witnesses who may be
presented against him, although there was none
presented.
Besides, under the Rules of Procedure of the
Office of the Ombudsman (Administrative Order
No. 07), particularly Rule II, Section 7(a), [42] in
relation to Section 4(f),[43] a complainants active
participation is no longer a matter of right during
reinvestigation. Admittedly, technical rules of
procedure and evidence are not strictly applied
in administrative proceedings. Thus, it is settled
that administrative due process cannot be fully
equated with due process in its strict judicial
sense.[44]
Petitioner complains of how quickly the
reinvestigation proceedings were terminated. The
OMB issued the Reinvestigation Report

on January 10, 2005, barely a week after

petitioner filed his Comment dated January 4,
2005. Thus, the latter surmises that no
reinvestigation was actually made. However, a
review of the facts would reveal that after the
Court of Appeals directed a reinvestigation of the
case, the OMB issued an Order dated August 27,
2004 requiring petitioner to submit a comment
within 10 days from receipt. The latter failed to
comply. On December 1, 2004, petitioner filed a
Motion for Extension of Time to File
Comment[45] of 30 days; the OMB granted the
same for 15 days. OnDecember 17, 2004,
petitioner asked for another extension of 30 days
reckoned from December 19, 2004 within which
to submit a comment; the OMB gave him up
to December 28, 2004. On December 28, 2004,
petitioner moved for a third extension. Then,
without waiting for the OMBs resolution of his
latest motion, petitioner filed his Comment
on January 4, 2005. But with his repeated
motions for extensions, he already contributed to
palpable delay in the completion of the
reinvestigation.
Clearly, the requirements of due process have
been substantially satisfied in the instant case.
[46]
In its Order[47] dated December 22, 2004, the
OMB warned petitioner that no further extension
will be given such that if he fails to file a
comment on December 28, 2004, the cases
against
him will
be
submitted
for
resolution. Even so, the OMB considered
petitioners belatedly-filed Comment and the
documents
attached
therewith
in
its
Reinvestigation Report. In our view, petitioner
cannot successfully invoke deprivation of due
process in this case, where as a party he was
given the chance to be heard, with ample
opportunity to present his side.[48]
Equally clear to us, there was no manifest abuse
of discretion on the part of Director PalancaSantiago for her refusal to inhibit herself in the
reinvestigation. Even
if a
preliminary
investigation resembles a realistic judicial

appraisal of the merits of the case,[49] public

prosecutors could not decide whether there is
evidence beyond reasonable doubt of the guilt of
the person charged.[50] They are not considered
judges, by the nature of their functions, but
merely quasi-judicial officers.[51] Worth-stressing,
one adverse ruling by itself would not prove bias
and prejudice against a party sufficient to
disqualify even a judge.[52] Hence, absent proven
allegations of specific conduct showing prejudice
and hostility, we cannot impute grave abuse of
discretion here on respondent director. To ask
prosecutors
to
recuse
themselves
on
reinvestigation upon every unfavorable ruling in
a case would cause unwarranted delays in the
prosecution of actions.
Finally, we note that petitioner failed to attach a
certified true copy of the assailed Resolution in
OMB-C-C-03-0729-L in disregard of paragraph
2[53] of Section 1, Rule 65 on certiorari. As
previously ruled, the requirement of providing
appellate courts with certified true copies of the
judgments or final orders that are the subjects of
review is indispensable to aid them in resolving
whether or not to give due course to
petitions. This necessary requirement cannot be
perfunctorily ignored, much less violated.[54] In
view, however, of the serious matters dealt with
in this case, we opted to tackle the substantial
merits hereof with least regard to technicalities.
WHEREFORE, the
instant
petition
is DISMISSED for
lack
of
merit. The Regional Trial Court of Cebu City,
Branch 8 is hereby ORDERED to proceed with
the trial of Criminal Case No. CBU-66458
against petitioner.
Costs against petitioner.
SO ORDERED.
[1]

Rollo, pp. 32-37.

[2]

Id. at 55-71.

[3]

Records, p. 4.

[22]

Id.

[4]

Id. at 41.

[23]

Id.

[5]

Id. at 59-61.

[24]

Galario v. Office of the Ombudsman (Mindanao), G.R. No. 166797, July 10,
2007, 527 SCRA 190, 205.

Rule
II
of
Administrative
Order
No.
07,
by Tanodbayan Aniano A. Desierto on February 16, 2001.)

signed

xxxx

[6]

[7]

[8]

Rollo, pp. 90-97 and 98-105.

[25]

Peralta v. Desierto, G.R. No. 153152, October 19, 2005, 473 SCRA 322, 337.

[26]

Presidential Commission
supra note 21, at 122.

[27]

Records, p. 12.

[28]

Id. at 7.

[29]

Id. at 6.

[30]

Id. at 5.

[31]

Id. at 113-115.

[32]

Id. at 117-123.

[33]

Sec. 4. Procedure The preliminary investigation of cases falling under the

jurisdiction of the Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3, Rule 112 of the Rules of
Court, subject to the following provisions:

Id. at 97.
ART. 171. Falsification by public officer, employee or notary or ecclesiastic
minister. The penalty of prisin mayor and a fine not to exceed 5,000 pesos
shall be imposed upon any public officer, employee, or notary who, taking
advantage of his official position, shall falsify a document by committing
any of the following acts:

on

Good

Government

(PCGG)

v. Desierto,

xxxx
4. Making untruthful statements in a narration of facts;

The total amount should be five million seven hundred ninety three thousand
eight hundred eighty one pesos (P5,793,881.39).

Espinosa v. Office of the Ombudsman, G.R. No. 135775, October 19, 2000,
343 SCRA 744, 753.

Id. at 114.

[45]

Records, pp. 96-98.

[46]

Filipino v. Macabuhay, G.R. No. 158960, November 24, 2006, 508 SCRA 50,
59.

[47]

Records, pp. 100-101.

[48]

Filipino v. Macabuhay, supra note 46, at 58.

[49]

Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001, 369 SCRA
293, 301.

[50]

Gallardo v. People, G.R. No. 142030, April 21, 2005, 456 SCRA 494, 507.

[51]

Sales v. Sandiganbayan, supra note 49, at 302.

[52]

Republic v. Gingoyon, G.R. No. 166429, December 19, 2005, 478 SCRA 474,
543.

[53]

SECTION 1. Petition for certiorari. .

[11]

Records, pp. 71-72.

[34]

Id. at 133.

[12]

Rollo, pp. 73-79. Penned by Associate Justice Arsenio J. Magpale, with

Associate Justices Conrado M. Vasquez, Jr. and Bienvenido L. Reyes
concurring.

[35]

Id. at 95.

[36]

[13]

[15]

[16]

[17]

[18]

[19]

Galario v. Office of the Ombudsman (Mindanao), supra note 24, at 204.

Records, pp. 82-83.

[37]

[14]

f) If, after the filing of the requisite affidavits and their supporting evidences, there
are facts material to the case which the investigating officer may need to
be clarified on, he may conduct a clarificatory hearing during which the
parties shall be afforded the opportunity to be present but without the right
to examine or cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable,
the clarificatory questioning may be, conducted in writing, whereby the
questions desired to be asked by the investigating officer or a party shall
be reduced into writing and served on the witness concerned who shall be
required to answer the same in writing and under oath.

[44]

Rollo, pp. 104-105.

[10]

xxxx

xxxx

xxxx
[9]

[43]

Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000, 335 SCRA 581, 605.

Id. at 94.
[38]

Galario v. Office of the Ombudsman (Mindanao), supra note 36.

[39]

G.R. No. 147932, January 25, 2006, 480 SCRA 71.

[40]

Id. at 80.

[41]

Dimayuga v. Office of the Ombudsman, G.R. No. 129099, July 20, 2006, 495
SCRA 461, 469.

[42]

Sec. 7. Motion for reconsideration.

Id. at 110-112.
Rollo, p. 71.
Id. at 36-37.
Id. at 223-224.
Id. at 247-266.
a)

[20]

AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL

ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR
OTHER PURPOSES, approved on December 13, 1989.

[21]

Presidential Commission on Good Government (PCGG) v. Desierto, G.R. No.

139675, July 21, 2006, 496 SCRA 112, 121.

Only one motion for reconsideration or reinvestigation of an

approved order or resolution shall be allowed, the same to be filed
within five (5) days from notice thereof with the Office of the
Ombudsman, or the proper Deputy Ombudsman as the case may
be, with corresponding leave of court in cases where the
information has already been filed in court. (As amended by
Administrative Order No. 15 entitled Re: Amendment of Section 7,

The petition shall be accompanied by a certified true copy of the judgment, order
or resolution subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46.
[54]

Go v. Court of Appeals, G.R. No. 163745, August 24, 2007, 531 SCRA 158,
166.