G.R. No.

96681 December 2, 1991

HON. ISIDRO CARIO, in his capacity as Secretary of the Department of Education, Culture &
Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of
Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA
IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and
APOLINARIO ESBER, respondents.

NARVASA, J.:p

The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the
Solicitor General, may be formulated as follows: where the relief sought from the Commission on
Human Rights by a party in a case consists of the review and reversal or modification of a decision
or order issued by a court of justice or government agency or official exercising quasi-judicial
functions, may the Commission take cognizance of the case and grant that relief? Stated otherwise,
where a particular subject-matter is placed by law within the jurisdiction of a court or other
government agency or official for purposes of trial and adjudgment, may the Commission on Human
Rights take cognizance of the same subject-matter for the same purposes of hearing and
adjudication?

The facts narrated in the petition are not denied by the respondents and are hence taken as
substantially correct for purposes of ruling on the legal questions posed in the present action. These
facts, 1 together with others involved in related cases recently resolved by this Court 2 or otherwise undisputed on the record, are
hereunder set forth.

1. On September 17, 1990, a Monday and a class day, some 800 public school teachers, among
them members of the Manila Public School Teachers Association (MPSTA) and Alliance of
Concerned Teachers (ACT) undertook what they described as "mass concerted actions" to
"dramatize and highlight" their plight resulting from the alleged failure of the public authorities to act
upon grievances that had time and again been brought to the latter's attention. According to them
they had decided to undertake said "mass concerted actions" after the protest rally staged at the
DECS premises on September 14, 1990 without disrupting classes as a last call for the government
to negotiate the granting of demands had elicited no response from the Secretary of Education. The
"mass actions" consisted in staying away from their classes, converging at the Liwasang Bonifacio,
gathering in peaceable assemblies, etc. Through their representatives, the teachers participating in
the mass actions were served with an order of the Secretary of Education to return to work in 24
hours or face dismissal, and a memorandum directing the DECS officials concerned to initiate
dismissal proceedings against those who did not comply and to hire their replacements. Those
directives notwithstanding, the mass actions continued into the week, with more teachers joining in
the days that followed. 3

Among those who took part in the "concerted mass actions" were the eight (8) private respondents
herein, teachers at the Ramon Magsaysay High School, Manila, who had agreed to support the non-
political demands of the MPSTA. 4
2. For failure to heed the return-to-work order, the CHR complainants (private respondents) were
administratively charged on the basis of the principal's report and given five (5) days to answer the
charges. They were also preventively suspended for ninety (90) days "pursuant to Section 41 of P.D.
807" and temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H). An investigation
committee was consequently formed to hear the charges in accordance with P.D. 807. 5

3. In the administrative case docketed as Case No. DECS 90-082 in which CHR complainants
Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were, among others, named
respondents, 6 the latter filed separate answers, opted for a formal investigation, and also moved "for suspension of the administrative
proceedings pending resolution by . . (the Supreme) Court of their application for issuance of an injunctive writ/temporary restraining order."
But when their motion for suspension was denied by Order dated November 8, 1990 of the Investigating Committee, which later also denied
their motion for reconsideration orally made at the hearing of November 14, 1990, "the respondents led by their counsel staged a walkout
signifying their intent to boycott the entire proceedings." 7 The case eventually resulted in a Decision of Secretary Cario dated December
17, 1990, rendered after evaluation of the evidence as well as the answers, affidavits and documents submitted by the respondents,
decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9) months of Babaran, Budoy and del Castillo. 8

4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court of Manila
against petitioner (Cario), which was dismissed (unmarked CHR Exhibit, Annex I). Later, the
MPSTA went to the Supreme Court (on certiorari, in an attempt to nullify said dismissal, grounded on
the) alleged violation of the striking teachers" right to due process and peaceable assembly
docketed as G.R. No. 95445, supra. The ACT also filed a similar petition before the Supreme
Court . . . docketed as G.R. No. 95590." 9 Both petitions in this Court were filed in behalf of the teacher associations, a few
named individuals, and "other teacher-members so numerous similarly situated" or "other similarly situated public school teachers too
numerous to be impleaded."

5. In the meantime, too, the respondent teachers submitted sworn statements dated September 27,
1990 to the Commission on Human Rights to complain that while they were participating in peaceful
mass actions, they suddenly learned of their replacements as teachers, allegedly without notice and
consequently for reasons completely unknown to them. 10

6. Their complaints and those of other teachers also "ordered suspended by the . . . (DECS)," all
numbering forty-two (42) were docketed as "Striking Teachers CHR Case No. 90775." In
connection therewith the Commission scheduled a "dialogue" on October 11, 1990, and sent a
subpoena to Secretary Cario requiring his attendance therein. 11

On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cario)
received the subpoena which was served at his office, . . . (the) Commission, with the Chairman
presiding, and Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro, proceeded to hear the
case;" it heard the complainants' counsel (a) explain that his clients had been "denied due process
and suspended without formal notice, and unjustly, since they did not join the mass leave," and (b)
expatiate on the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with
which causes they (CHR complainants) sympathize." 12 The Commission thereafter issued an Order 13 reciting these
facts and making the following disposition:

To be properly apprised of the real facts of the case and be accordingly guided in its
investigation and resolution of the matter, considering that these forty two teachers
are now suspended and deprived of their wages, which they need very badly,
Secretary Isidro Cario, of the Department of Education, Culture and Sports, Dr.
Erlinda Lolarga, school superintendent of Manila and the Principal of Ramon
Magsaysay High School, Manila, are hereby enjoined to appear and enlighten the
Commission en banc on October 19, 1990 at 11:00 A.M. and to bring with them any
 and all documents relevant to the allegations aforestated herein to assist the
Commission in this matter. Otherwise, the Commission will resolve the complaint on
the basis of complainants' evidence.

xxx xxx xxx

7. Through the Office of the Solicitor General, Secretary Cario sought and was granted leave to file
a motion to dismiss the case. His motion to dismiss was submitted on November 14, 1990 alleging
as grounds therefor, "that the complaint states no cause of action and that the CHR has no
jurisdiction over the case." 14

8. Pending determination by the Commission of the motion to dismiss, judgments affecting the
"striking teachers" were promulgated in two (2) cases, as aforestated, viz.:

a) The Decision dated December l7, 1990 of Education Secretary Cario in Case No.
DECS 90-082, decreeing dismissal from the service of Apolinario Esber and the
suspension for nine (9) months of Babaran, Budoy and del Castillo; 15 and

b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445 and
95590 dismissing the petitions "without prejudice to any appeals, if still timely, that
the individual petitioners may take to the Civil Service Commission on the matters
complained of," 16 and inter alia "ruling that it was prima facie lawful for petitioner Cario to issue return-to-work
orders, file administrative charges against recalcitrants, preventively suspend them, and issue decision on those
charges." 17

9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cario's motion to
dismiss and required him and Superintendent Lolarga "to submit their counter-affidavits within ten
(10) days . . . (after which) the Commission shall proceed to hear and resolve the case on the merits
with or without respondents counter affidavit." 18 It held that the "striking teachers" "were denied due process of law; . . .
they should not have been replaced without a chance to reply to the administrative charges;" there had been a violation of their civil and
political rights which the Commission was empowered to investigate; and while expressing its "utmost respect to the Supreme Court . . . the
facts before . . . (it) are different from those in the case decided by the Supreme Court" (the reference being unmistakably to this Court's joint
Resolution of August 6, 1991 in G.R. Nos. 95445 and 95590, supra).

It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor General, in behalf
of petitioner Cario, has commenced the present action of certiorari and prohibition.

The Commission on Human Rights has made clear its position that it does not feel bound by this
Court's joint Resolution in G.R. Nos. 95445 and 95590, supra. It has also made plain its intention "to
hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits." It intends,
in other words, to try and decide or hear and determine, i.e., exercise jurisdiction over the following
general issues:

1) whether or not the striking teachers were denied due process, and just cause exists for the
imposition of administrative disciplinary sanctions on them by their superiors; and

2) whether or not the grievances which were "the cause of the mass leave of MPSTA teachers, (and)
with which causes they (CHR complainants) sympathize," justify their mass action or strike.
The Commission evidently intends to itself adjudicate, that is to say, determine with character of
finality and definiteness, the same issues which have been passed upon and decided by the
Secretary of Education, Culture & Sports, subject to appeal to the Civil Service Commission, this
Court having in fact, as aforementioned, declared that the teachers affected may take appeals to the
Civil Service Commission on said matters, if still timely.

The threshold question is whether or not the Commission on Human Rights has the power under the
Constitution to do so; whether or not, like a court of justice, 19 or even a quasi-judicial agency, 20 it has jurisdiction or
adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights
violations involving civil or political rights.

The Court declares the Commission on Human Rights to have no such power; and that it was not
meant by the fundamental law to be another court or quasi-judicial agency in this country, or
duplicate much less take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power is that it
may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights
violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened
to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of
receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function,
properly speaking. To be considered such, the faculty of receiving evidence and making factual
conclusions in a controversy must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by law. 21 This
function, to repeat, the Commission does not have. 22

The proposition is made clear by the constitutional provisions specifying the powers of the
Commission on Human Rights.

The Commission was created by the 1987 Constitution as an independent office. 23 Upon its constitution, it
succeeded and superseded the Presidential Committee on Human Rights existing at the time of the effectivity of the Constitution. 24 Its
powers and functions are the following 25

(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human
rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to

enhance respect for the primacy of human rights;
 (6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty

obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

As should at once be observed, only the first of the enumerated powers and functions bears any
resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the
Commission the power to investigate all forms of human rights violations involving civil and political
rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise
that power pursuant to such rules of procedure as it may adopt and, in cases of violations of said
rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation
conducted by it or under its authority, it may grant immunity from prosecution to any person whose
testimony or whose possession of documents or other evidence is necessary or convenient to
determine the truth. It may also request the assistance of any department, bureau, office, or agency
in the performance of its functions, in the conduct of its investigation or in extending such remedy as
may be required by its findings. 26

But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even
quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the
technical sense, these terms have well understood and quite distinct meanings.

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire
into systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an
official inquiry." 27 The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or
intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts
established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient
inquiry or observation. To trace or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" 28 "to
inquire; to make an investigation," "investigation" being in turn describe as "(a)n administrative function, the exercise of which ordinarily does
not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a
certain matter or matters." 29

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,

determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle
judicially: . . . act as judge." 30 And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . .
. to award or grant judicially in a case of controversy . . . ." 31

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially,
to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact,
and the entry of a judgment." 32

Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot
and should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers
HRC Case No. 90-775, as it has announced it means to do; and it cannot do so even if there be a
claim that in the administrative disciplinary proceedings against the teachers in question, initiated
and conducted by the DECS, their human rights, or civil or political rights had been transgressed.
More particularly, the Commission has no power to "resolve on the merits" the question of (a)
whether or not the mass concerted actions engaged in by the teachers constitute and are prohibited
or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in those
actions, and the failure of the teachers to discontinue those actions, and return to their classes
despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules
and regulations warranting administrative disciplinary sanctions, or are justified by the grievances
complained of by them; and (c) what where the particular acts done by each individual teacher and
what sanctions, if any, may properly be imposed for said acts or omissions.

These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of
Education, being within the scope of the disciplinary powers granted to him under the Civil Service
Law, and also, within the appellate jurisdiction of the Civil Service Commission.

Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues
and resolved them, 33 and it appears that appeals have been seasonably taken by the aggrieved parties to the Civil Service
Commission; and even this Court itself has had occasion to pass upon said issues. 34

Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in
disciplinary cases are correct and are adequately based on substantial evidence; whether or not the
proceedings themselves are void or defective in not having accorded the respondents due process;
and whether or not the Secretary of Education had in truth committed "human rights violations
involving civil and political rights," are matters which may be passed upon and determined through a
motion for reconsideration addressed to the Secretary Education himself, and in the event of an
adverse verdict, may be reviewed by the Civil Service Commission and eventually the Supreme
Court.

The Commission on Human Rights simply has no place in this scheme of things. It has no business
intruding into the jurisdiction and functions of the Education Secretary or the Civil Service
Commission. It has no business going over the same ground traversed by the latter and making its
own judgment on the questions involved. This would accord success to what may well have been
the complaining teachers' strategy to abort, frustrate or negate the judgment of the Education
Secretary in the administrative cases against them which they anticipated would be adverse to them.

This cannot be done. It will not be permitted to be done.

In any event, the investigation by the Commission on Human Rights would serve no useful purpose.
If its investigation should result in conclusions contrary to those reached by Secretary Cario, it
would have no power anyway to reverse the Secretary's conclusions. Reversal thereof can only by
done by the Civil Service Commission and lastly by this Court. The only thing the Commission can
do, if it concludes that Secretary Cario was in error, is to refer the matter to the appropriate
Government agency or tribunal for assistance; that would be the Civil Service Commission. 35 It cannot
arrogate unto itself the appellate jurisdiction of the Civil Service Commission.

WHEREFORE, the petition is granted; the Order of December 29, 1990 is ANNULLED and SET
ASIDE, and the respondent Commission on Human Rights and the Chairman and Members thereof
are prohibited "to hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the
merits."

SO ORDERED.

Melencio-Herrera, Cruz, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr. and
Romero, JJ, concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the result. The teachers are not to be blamed for exhausting all means to overcome the
Secretary's arbitrary act of not reinstating them.

PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa

I wish to add however that the Commission on Human Rights should concern itself in this case and
in many other similar cases:

(1) not only with the human rights of striking teachers but also the human rights of
students and their parents;

(2) not only with the human rights of the accused but also the human rights of the
victims and the latter's families;

(3) not only with the human rights of those who rise against the government but also
those who defend the same;
 (4) not only the human rights of striking laborers but also those who as a
consequence of strikes may be laid off because of financial repercussions.

The defense of human rights is not a monopoly of a government agency (such as the
Commission on Human Rights) nor the monopoly of a group of lawyers defending so-called
"human rights' but the responsibility of ALL AGENCIES (governmental or private) and of ALL
LAWYERS, JUDGES, and JUSTICES.

Finally, the Commission should realize that while there are "human rights", there are also
corresponding "human obligations."

PADILLA, J., dissenting:

I vote to dismiss the petition for the same reasons stated in my earlier separate opinion filed in this
case.

# Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur in the result. The teachers are not to be blamed for exhausting all means to overcome the
Secretary's arbitrary act of not reinstating them.

PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief Justice Andres R. Narvasa

I wish to add however that the Commission on Human Rights should concern itself in this case and
in many other similar cases:

(1) not only with the human rights of striking teachers but also the human rights of
students and their parents;

(2) not only with the human rights of the accused but also the human rights of the
victims and the latter's families;

(3) not only with the human rights of those who rise against the government but also
those who defend the same;
 (4) not only the human rights of striking laborers but also those who as a
consequence of strikes may be laid off because of financial repercussions.

The defense of human rights is not a monopoly of a government agency (such as the
Commission on Human Rights) nor the monopoly of a group of lawyers defending so-called
"human rights' but the responsibility of ALL AGENCIES (governmental or private) and of ALL
LAWYERS, JUDGES, and JUSTICES.

Finally, the Commission should realize that while there are "human rights", there are also
corresponding "human obligations."

PADILLA, J., dissenting:

I vote to dismiss the petition for the same reasons stated in my earlier separate opinion filed in this
case.

G.R. No. L-22754 December 31, 1965

RUBEN A. VILLALUZ, petitioner,

vs.
CALIXTO ZALDIVAR, ET AL., respondents.

Magtanggol C. Gunigundo and Juan T. David for petitioner.

Office of the Solicitor General for respondents.

BAUTISTA ANGELO, J.:

Petitioner seeks his reinstatement as Administrator of the Motor Vehicles Office with payment of
back salaries in a petition filed before this Court on April 1, 1964.

He alleged that he was nominated as chief of said office on May 20, 1958 and two days thereafter
his nomination was confirmed by the Commission on Appointments; that on May 26, 1958 he took
his oath of office as such after having been informed of his nomination by then Acting Assistant
Executive Secretary Sofronio C. Quimson; that in a letter dated January 28, 1960 addressed to the
President of the Philippines by Congressman Joaquin R. Roces as Chairman of the Committee on
Good Government of the House of Representatives, the latter informed the former of the findings
made by his Committee concerning alleged gross mismanagement and inefficiency committed by
petitioner in the Motor Vehicles Office which are summed up in the letter, as follows: (1) malpractice
in office resulting in huge losses to the government; (2) failure to correct inadequate controls or
intentional toleration of the same, facilitating thereby the commission of graft and corruption; and (3)
negligence to remedy unsatisfactory accounting; that as a result of said findings. Congressman
Roces recommended the replacement of petitioner and of his assistant chief Aurelio de Leon as well
as the complete revamp of the offices coming under the Motor Vehicles Office by the new chief who
may be appointed thereafter; that having been officially informed of the content of said letter, then
Secretary of Public Works and Communications furnished petitioner with a copy thereof requiring
him to explain within 72 hours why no administrative action should be taken against him relative to
the charges contained in the letter; that petitioner answered the letter as required wherein he
explained and refuted in detail each and everyone of the charges contained in the letter of
Congressman Roces; that on February 15, 1960, the then Executive Secretary Natalio P. Castillo
suspended petitioner as Administrator of the Motor Vehicles Office, having thereupon created an
investigating committee with the only purpose of investigating the charges against petitioner and his
assistant Aurelio de Leon, and to undertake the investigation a prosecution panel was created
headed by Special Prosecutor Emilio A. Gancayco; that after the investigation said committee
submitted its report to the President of the Philippines who thereafter issued Administrative Order
No. 332 decreeing the removal from office of petitioner; that as a result of petitioner's removal
Apolonio Ponio was appointed to take his place as acting administrator; and that, after having been
officially notified of his removal, petitioner filed a motion for reconsideration and/or reinstatement,
and when this was denied, he filed the instant petition before this Court.

Respondents in their answer denied the claim of petitioner that the charges contained in the letter of
Congressman Roces were not directed against him but against his office in general for the truth is
that he was, specifically charged with mismanagement, gross inefficiency and negligence in the
performance of his duties as Chief of the Motor Vehicles Office, and as a result he was required to
the same within 72 hours to explain why no disciplinary action should be taken against him.
Respondents also denied that petitioner was investigated without being accorded due process is
required by law for in fact he was given every reasonable opportunity to present his defense, to
secure the attendance of witnesses, and to produce documents in his behalf in a manner consistent
with administrative due process. Respondent also averred that the President of the Philippines,
contrary to petitioner's claim, has jurisdiction to investigate and remove him since he is a presidential
appointee who belongs to the non-competitive or unclassified service under Section 5 of Republic
Act No. 2260. Respondents finally averred that the letter of Congressman Joaquin R. Roces is in
effect a valid administrative complaint because it contained specific charges which constitute just
causes for his suspension and removal; that said charges need not be sworn to for the Chief
Executive, as administrative head of petitioner, is empowered to commence administrative
proceedings motu proprio pursuant to Executive Order No. 370, series of 1941, without need of any
previous verified complaint. And as special defense respondents averred that petitioner is guilty of
laches for having allowed almost four years before instituting the present action.

There is merit in the claim that petitioner, being a presidential appointee, belongs to the non-
competitive or unclassified service of the government and is such he can only be investigated and
removed from office after due hearing the President of the Philippines under the principle that "the
power to remove is inherent in the power to appoint" as can be clearly implied from Section 5 of
Republic Act No. 2260. Such is what we ruled in the recent case of Ang-Angco wherein on this point
we said:

There is some point in the argument that the power of control of the President may extend to
the power to investigate, suspend or remove officers and employees who belong to the
executive department if they are presidential appointees or do not belong to the classified
service for such can be justified under the principle that the power to remove is inherent in
the power to appoint (Lacson v. Romero, supra), but not with regard to those officers or
employees who belong, to the classified service for as to them that inherent power cannot be
exercised. This is in line with the provision of our Constitution which says that the "Congress
may by law vest the appointment of inferior officers, in the President alone, in the courts, or
 in the head of departments" (Article VII, Section 10 [3], Constitution). (Ang-Angco v. Castillo,
et al., L-17169, November 30, 1963).

Consequently, as a corollary to the foregoing ruling, we may state that the Commissioner of Civil
Service is without jurisdiction to hear and decide the administrative charges filed against petitioner
because the authority of said Commissioner to pass upon questions of suspension, separation, or
removal can only be exercised with reference to permanent officials and employees in the classified
service to which classification petitioner does not belong. This is also what we said in the Ang-Angco
case when, in interpreting Section 16 (i) of Republic Act No. 2260, we emphasized that only
permanent officers and employees who belong to the classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service.

There is, therefore, no error of procedure committed by respondents insofar as the investigation and
disciplinary action taken against petitioner is concerned, even if he is under the control and
supervision of the Department of Public Works, in view of the reason we have already stated that he
is a presidential appointee who comes exclusively under the jurisdiction of the President. The
following rationale supports this view:

Let us now take up the power of control given to the President by the Constitution over all
officers and employees in the executive departments which is now involved by respondent
as justification to override the specific provisions of the Civil Service Act. This power of
control is couched in general terms for it does not set in specific manner its extent and
scope. Yes, this Court in the case of Hebron v. Reyes, supra, occasion to interpret the extent
of such power to mean "the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment
of the former for that of the latter," to distinguish it from the power of general supervision over
municipal government, but the decision does not go to the extent of including the power to
remove an officer or employee in the executive department. Apparently, the power merely
applies to the exercise of control over the acts of the subordinate and not over the actor or
agent himself of the act. It only means that the President may set aside the judgment or
action taken by a subordinate in the performance of his duties.

That meaning is also the meaning given to the word "control" as used in administrative law.
Thus, the Department Head pursuant to Section 79 (c) is given direct control of all bureaus
and offices under his department by virtue of which he may "repeal or modify decisions of
the chiefs of said bureaus or offices," and under Section 74 of the same Code, the
President's control over the executive department only refers to matters of general policy.
The term "policy" means a settled or definite course or method adopted and followed by a
government, body or individual, and it cannot be said that the removal of an inferior officer
comes within the meaning of control over a specific policy of government. (Ang-Angco v.
Castillo, et al., supra)

With regard to the claim that the administrative proceedings conducted against petitioner which led
to his separation are illegal simply because the charges preferred against him by Congressman
Roces were not sworn to as required by Section 72 of Republic Act No. 2260, this much we can say:
said proceedings having been commenced against petitioner upon the authority of the Chief
Executive who was his immediate administrative head, the same may be commenced by him motu
proprio without previous verified complaint pursuant to Executive Order No. 370, series of 1941, the
pertinent provisions of which are is follows:
 (1) Administrative proceedings may be commenced a government officer or employee by the
head or chief of the bureau or office concerned motu proprio or upon complaint of any
person which shall be subscribed under oath by the complainant: Provided, That if a
complaint is not or cannot be sworn to by the complainant, the head or chief of the bureau or
office concerned may in his discretion, take action thereon if the public interest or the special
circumstances of the case, so warrant.1

Finally, on the theory that the instant petition partakes of the nature of quo warranto which seeks
petitioners reinstatement to his former position as Administrator of the Motor Vehicles Office, we are
of the opinion that it has now no legal raison d'etre for having been filed more than one year after its
cause of action had accrued. As this Court has aptly said: "a delay of slightly over one (1) year was
considered sufficient ... to be an action for mandamus, by reason of laches or abandonment of office.
We see no reason to depart from said view in the present case, petitioner herein having allowed
about a year and a half to elapse before seeking reinstatement." (Jose V. Lacson, et al., L-10177,
May 17, 1957).

WHEREFORE, petition is denied. No costs.

Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal and Bengzon,
JJ., concur.

Zaldivar, J., took no part.

G.R. No. 101666 June 9, 1992

DR. ELISEO L. RUIZ, President of Central Luzon State University (CLSU), Muoz, Nueva Ecija, petitioner,
vs.
HONORABLE EXECUTIVE SECRETARY FRANKLIN DRILON, HON. ISIDRO CARIO, in his capacity as DECS
Secretary; ATTY. RENO CAPINPIN, Director III, DECS, in his capacity as Chairman, Investigating Committee;
DALMACIO CASISON, in his capacity and as Member, Investigating Committee; EDUARDO PARAY, LUIS
CASTRO, HIPOLITO MALAMUG, NEMESIO TORRES and NOLASCO HIPOLITO, respondents.

No. 103570 June 9, 1992

DR. ELISEO L. RUIZ, President, Central Luzon State University (CLSU), Muoz, Nueva Ecija, petitioner,

vs.

THE HON. COURT OF APPEALS; HON. ISIDRO CARIO, in his capacity as DECS Secretary; MARINA S.J.
PANGAN, in her capacity as Asst. Secretary of DECS and DR. FORTUNATO BATTAD, respondents.

RESOLUTION

FELICIANO, J.:p

The Court NOTED the sixth motion for extension of time to submit a comment to the petition for certiorari and
prohibition, (G.R. No. 101666) filed by the Solicitor General on behalf of the public respondents Executive Secretary
and the Secretary of the Department of Education, Culture and Sports ("DECS"), and Resolved to DISPENSE with
the comment required of the public respondents, considering that the pleadings and other papers already filed by the
other parties in this case are adequate to enable the Court to act upon the present petition.

II

On 6 May 1991, President Corazon Aquino issued Administrative Order ("AO") No. 218 dismissing petitioner Eliseo
Ruiz for cause from his office as President of the Central Luzon State University ("CLSU"). 1

In two (2) orders dated 2 July 1991 and 3 September 1991, the Executive Secretary, acting by authority of the
President, denied petitioner's first and second motions for reconsideration therefrom, the first for lack of merit and the
second for being pro forma. Consequently, AO No. 218 became final and executory. 2

On 1 October 1991, petitioner filed a petition for prohibition with prayer for a temporary restraining order (TRO) with
the Court of Appeals, where it was docketed as CA-G.R. No. SP-12656. 3 Petitioner there sought to annul, as
products of grave abuse of discretion, President Aquino's order dated 13 September 1991 appointing Dr.
Fortunato Battad as the new CLSU President, as well as DECS Undersecretary Marina Pangan's order
dated 24 September 1991 directing petitioner to turn-over the CLSU Presidency to Dr. Battad. The Court
of Appeals issued the TRO prayed for by petitioner. 4

Eight days later, on 9 October 1991, petitioner filed with the Supreme Court the present petition (G.R. No. 101666)
for certiorari and prohibition with prayer for a TRO for the purpose of annulling, for alleged grave abuse of discretion,
the issuance of AO No. 218 as well as of the orders of the Executive Secretary denying his motions for
reconsideration therefrom. 5 The Court did not issue the TRO prayed for by petitioner. 6 This petition made
no mention of the petition for prohibition with prayer for TRO filed 8 days earlier with the Court of Appeals
(CA-G.R. No. SP-21656).

On 9 January 1992, the Court's Circular No. 28-91 dated 3 September 1991 having gone into effect on 1 January
1992, petitioner filed a manifestation and compliance dated 6 January 1992, where for the first time, he disclosed to
this Court the other judicial proceedings which he had commenced in connection with the issuance of AO No. 210. 7

On 29 January 1992, after due proceedings, the Court of Appeals promulgated its decision in CA-G.R. No. SP-26165,
dismissing the petition for lack of merit and finding the same to be a case of forum shopping. 8 Petitioner sought review of
this decision by way of a petition for review under Rule 45 with the Supreme Court, which petition was docketed as G.R. No. 103570 and
This case was consolidated with G.R. No. 101666, by this time pending with
assigned to the Second Division. 9

the Court En Banc, by a resolution dated 2 April 1992.

Meanwhile, on 28 January 1992, the Court issued a resolution requiring petitioner to show cause why the petition in
G.R. No. 101666 should not be dismissed as an apparent case of forum shopping, considering that the parties
involved, issues raised and the reliefs sought therein are substantially identical with those in CA-G.R. No. SP-
26165. 10

Petitioner submitted a manifestation and compliance dated 6 January 1992 obviously in anticipation of the 29
January 1992 Resolution of the Court, as well as an undated compliance filed on 2 March 1992 in response to the
same resolution. He denies having engaged in forum shopping and contends: (1) his cause of action in CA-G.R. No.
SP-26156 consists of the illegality of the actions taken by the Office of the President and by the DECS in
implementing AO No. 218, which may render moot the Court's review of the intrinsic merits of AO No. 218, an entirely
different cause of action in itself; and (2) he never attempted to hide the fact, either before this Court or the Court of
Appeals, that he had instituted both actions "for separate reasons, apart though related from each other," such
candor being "an elementary consideration in the determination of the issue whether he committed forum shopping or
not." 11
Deliberating on the present consolidated Petitions, the Court finds the explanations proffered by petitioner and his
counsel as justifications for the procedural maneuvers undertaken in this case to be completely unsatisfactory and
considers the Petitions to be clear cases of deliberate forum shopping.

The Court views with considerable disfavor the legal maneuvers undertaken by petitioner and his counsel of record,
Atty. Crispulo S. Esguerra, to defeat his removal from office. It is evident that petitioner, in violation of Section 3, Rule
2 of the Rules of Court, had split a single cause of action consisting of the alleged illegality of his removal from office
by the President through AO No. 218, by seeking judicial review of (1) AO 218 with the Court and at the same time (2)
having the enforcement aspect of the President's action and the filling up of the resulting vacancy reviewed by the
Court of Appeals. It also appears to the Court that petitioner carried out these acts in order to obtain a TRO
(albeit with a limited twenty-day lifetime) from the Court of Appeals, issued as a matter of course, in order to stop the
execution and implementation of AO No. 218, and afterwards, to try to get a TRO with an indefinite lifetime from this
Court for the same purpose, in case his petition in the main action of CA-G.R. No. SP-26165 would be dismissed on
the merits by the Court of Appeals.

Moreover, during the period when the proceedings in G.R. No. 101666 and CA-G.R. No. SP-26165 were
simultaneously pending action before two (2) different for a petitioner created for himself a situation where he could
hope to get (after the 20-day life of the Court of Appeals TRO) a judicial order from either forum which could stop the
execution of AO No. 218 with more permanency (i.e., either a TRO with an indefinite lifetime from the Supreme Court
or the grant of his petition for prohibition by the Court of Appeals). Thus the Court of Appeals, aware of the institution
of G.R. No. 101666, 12 committed no reversible error in considering the action before it as another,
independent case and as an instance of forum shopping.

Petitioner sought to maintain the two (2) segments of his single causes of action again by instituting G.R. No. 103570,
in a bid to ensure that the decision on the merits in CA-G.R. No. SP-26165 will not attain finality and enforceability,
even though the matters involved therein are essentially the incidents of the case already pending review in G.R. No.
101666.

Forum shopping effected by a party litigant through the deliberate splitting of causes of actions and appeals in the
hope that even as one case (in which a particular remedy is sought) is dismissed, another case (offering a similar
remedy) would still be open, is a deplorable practice because it results in the unnecessary clogging of the already
heavily burdened dockets of the courts. 13

Section 17 of the Interim Rules and Guidelines issued by the Court on 11 January 1983, relative to the
implementation of section 9 of BP 129, granting the Intermediate Appellate Court (now the Court of Appeals) equal
original jurisdiction to issue the extraordinary writs of certiorari, prohibition, etc., whether or not in aid of its appellate
jurisdiction, provides that if such a petition is filed before the Court of Appeals and is still pending therein, a similar
petition cannot be filed in the Supreme Court. A violation of this rule has also been considered a clear case of forum
shopping, an act of malpractice proscribed as trifling with the courts and abusing their processes. The Rule itself
provides that a violation thereof constitutes: (1) cause for the summary dismissal of both petitions; and (2) contempt
of court for which the party or counsel concerned may be held accountable. 14

The pretended candor of petitioner and his counsel here does not persuade. Petitioner never informed the Court of
the existence of CA-G.R. No. SP-26165 when he filed his petition in G.R. No. 101666, the first opportunity available
to him to be completely candid with the Court. It was the private respondents in their comment to the petition filed on
16 November 1991, who gave the Court first notice of the other proceeding. 15 It is obvious that petitioner filed his
subsequent manifestation because he was no longer able to deny the existence of the proceeding before
the Court of Appeals. Petitioner's attempt to trifle with the highest court of the land in this manner renders
him liable for forum shopping. 16

III

In addition to the foregoing, the Court deliberated upon the merits of the consolidated Petitions and considers that
petitioner has failed to show any grave abuse of discretion or any act without or in excess of jurisdiction on the part of
public respondents in rendering the assailed administrative orders.
Petitioner is not entitled to be informed of the findings and recommendations of any investigating committee created
to inquire into charges filed against him. He is entitled only to an administrative decision that is based on substantial
evidence made of record and a reasonable opportunity to meet the charges made against him and the evidence
presented against him during the hearings of the investigating committees. 17 There is no doubt that he has been
accorded his rights.

AO No. 218 made certain findings of fact on the basis of which petitioner was removed from office. Those findings
included the facts that (a) petitioner terminated the CLSU's Executive Vice-President, offered new academic courses,
undertook unprogrammed projects resulting in wastage of university property, all without the necessary approval of
the Board of Regents; (b) he directed the purchase at uncanvassed prices of chemicals unsuitable for the required
school purposes from a firm owned by him; (c) he executed, on behalf of CLSU, a crop harvest sales agreement in
favor of a company where he was holding a directorship; and (d) he collected financial contributions from the faculty
and students in disregard of the provisions of R.A. No. 5546. 18 These acts constitute dishonesty and grave
misconduct, and furnish legal basis for dismissal from the public service. 19

ACCORDINGLY, the Petition for Certiorari and Prohibition in G.R. No. 101666, as well as the Petition for Review in
G.R. No. 103570, are hereby DISMISSED as clear cases of forum shopping and for lack of merit. The Decision of the
Court of Appeals in C.A,-G.R, No. SP-26165 dated 29 January 1992 is hereby AFFIRMED in toto.

Petitioner's counsel, Atty. Crispulo S. Esguerra. is hereby ADMONISHED and WARNED that repetition of the same or
similar acts of forum shopping will be more severely punished. A copy of this Resolution shall be attached to the
personal record of Atty. Crispulo S. Esguerra in the office of the Bar Confidant. Costs against petitioner.

Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero
and Bellosillo, JJ, concur.

Nocon, J., is on leave.

[G.R. No. 139465. January 18, 2000]

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION,

Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.

DECISION

MELO, J.:

The individual citizen is but a speck of particle or molecule vis--vis the vast and
overwhelming powers of government. His only guarantee against oppression and
tyranny are his fundamental liberties under the Bill of Rights which shield him in
times of need. The Court is now called to decide whether to uphold a citizens basic
due process rights, or the governments ironclad duties under a treaty. The bugle
sounds and this Court must once again act as the faithful guardian of the fundamental
writ.
The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree
No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have
Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of
incorporation under the Constitution; the mutual concern for the suppression of crime
both in the state where it was committed and the state where the criminal may have
escaped; the extradition treaty with the Republic of Indonesia and the intention of the
Philippines to enter into similar treaties with other interested countries; and the need
for rules to guide the executive department and the courts in the proper
implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition
Treaty Between the Government of the Republic of the Philippines and the
Government of the United States of America" (hereinafter referred to as the RP-US
Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its
concurrence in the ratification of said treaty. It also expressed its concurrence in the
Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility
of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the
Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign
Affairs U. S. Note Verbale No. 0522 containing a request for the extradition of private
respondent Mark Jimenez to the United States. Attached to the Note Verbale were the
Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court,
Southern District of Florida, and other supporting documents for said extradition.
Based on the papers submitted, private respondent appears to be charged in the United
States with violation of the following provisions of the United States Code (USC):

A)......18 USC 371 (Conspiracy to commit offense or to defraud the

United States; two [2] counts; Maximum Penalty 5 years on each count);

B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts;
Maximum Penalty 5 years on each count);

C)......18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;
Maximum Penalty 5 years on each count);
 D)......18 USC 1001 (False statement or entries; six [6] counts;
Maximum Penalty 5 years on each count);

E)......2 USC 441f (Election contributions in name of another; thirty-

three [33] counts; Maximum Penalty less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and
authorizing a panel of attorneys to take charge of and to handle the case pursuant to
Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the
"technical evaluation and assessment" of the extradition request and the documents in
support thereof. The panel found that the "official English translation of some
documents in Spanish were not attached to the request and that there are some other
matters that needed to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent,

through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting
copies of the official extradition request from the U. S. Government, as well as all
documents and papers submitted therewith; and that he be given ample time to
comment on the request after he shall have received copies of the requested papers.
Private respondent also requested that the proceedings on the matter be held in
abeyance in the meantime.

Later, private respondent requested that preliminarily, he be given at least a copy of,
or access to, the request of the United States Government, and after receiving a copy
of the Diplomatic Note, a period of time to amplify on his request.

In response to private respondents July 1, 1999 letter, petitioner, in a reply-letter dated

July 13, 1999 (but received by private respondent only on August 4, 1999), denied the
foregoing requests for the following reasons:

1. We find it premature to furnish you with copies of the extradition

request and supporting documents from the United States Government,
pending evaluation by this Department of the sufficiency of the
extradition documents submitted in accordance with the provisions of
the extradition treaty and our extradition law. Article 7 of the Extradition
Treaty between the Philippines and the United States enumerates the
documentary requirements and establishes the procedures under which
the documents submitted shall be received and admitted as evidence.
Evidentiary requirements under our domestic law are also set forth in
Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a

preliminary investigation nor akin to preliminary investigation of
criminal cases. We merely determine whether the procedures and
requirements under the relevant law and treaty have been complied with
by the Requesting Government. The constitutionally guaranteed rights of
the accused in all criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person
sought to be extradited will be furnished by the court with copies of the
petition, request and extradition documents and this Department will not
pose any objection to a request for ample time to evaluate said
documents.

2. The formal request for extradition of the United States contains grand
jury information and documents obtained through grand jury process
covered by strict secrecy rules under United States law. The United
States had to secure orders from the concerned District Courts
authorizing the United States to disclose certain grand jury information
to Philippine government and law enforcement personnel for the purpose
of extradition of Mr. Jimenez. Any further disclosure of the said
information is not authorized by the United States District Courts. In this
particular extradition request the United States Government requested
the Philippine Government to prevent unauthorized disclosure of the
subject information. This Departments denial of your request is
consistent with Article 7 of the RP-US Extradition Treaty which provides
that the Philippine Government must represent the interests of the United
States in any proceedings arising out of a request for extradition. The
Department of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings

in connection with an extradition request. Article 26 of the Vienna
Convention on the Law of Treaties, to which we are a party provides that
"[E]very treaty in force is binding upon the parties to it and must be
performed by them in good faith". Extradition is a tool of criminal law
 enforcement and to be effective, requests for extradition or surrender of
accused or convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with
the Regional Trial Court of the National Capital Judicial Region a petition against the
Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National
Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private
respondent the extradition documents, to give him access thereto, and to afford him an
opportunity to comment on, or oppose, the extradition request, and thereafter to
evaluate the request impartially, fairly and objectively); certiorari (to set aside herein
petitioners letter dated July 13, 1999); and prohibition (to restrain petitioner from
considering the extradition request and from filing an extradition petition in court; and
to enjoin the Secretary of Foreign Affairs and the Director of the NBI from
performing any act directed to the extradition of private respondent to the United
States), with an application for the issuance of a temporary restraining order and a
writ of preliminary injunction (pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter
raffled to Branch 25 of said regional trial court stationed in Manila which is presided
over by the Honorable Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who
appeared in his own behalf, moved that he be given ample time to file a
memorandum, but the same was denied.

On August 10, 1999, respondent judge issued an order dated the previous day,
disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the

Secretary of Justice, the Secretary of Foreign Affairs and the Director of
the National Bureau of Investigation, their agents and/or representatives
to maintain the status quo by refraining from committing the acts
complained of; from conducting further proceedings in connection with
the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with a Regional Trial
court; and from performing any act directed to the extradition of the
petitioner to the United States, for a period of twenty (20) days from
 service on respondents of this Order, pursuant to Section 5, Rule 58 of
the 1997 Rules of Court.

The hearing as to whether or not this Court shall issue the preliminary
injunction, as agreed upon by the counsels for the parties herein, is set on
August 17, 1999 at 9:00 oclock in the morning. The respondents are,
likewise, ordered to file their written comment and/or opposition to the
issuance of a Preliminary Injunction on or before said date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF

JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
ISSUING THE TEMPORARY RESTRAINING ORDER
BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM

COMMITTING THE ACTS COMPLAINED OF, I. E., TO DESIST
FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE
OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND
FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO
FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE
MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION
FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN
EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION
ON THE MERITS OF THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM

PERFORMING LEGAL DUTIES UNDER THE EXTRADITION
TREATY AND THE PHILIPPINE EXTRADITION LAW;

III.
 THE PETITION FOR (MANDAMUS), CERTIORARI AND
PROHIBITION IS, ON ITS FACE, FORMALLY AND
SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS

PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER
ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also
issued, as prayed for, was a temporary restraining order (TRO)
providing:

NOW, THEREFORE, effective immediately and continuing until further

orders from this Court, You, Respondent Judge Ralph C. Lantion, your
agents, representatives or any person or persons acting in your place or
stead are hereby ORDERED to CEASE and DESIST from enforcing the
assailed order dated August 9, 1999 issued by public respondent in Civil
Case No. 99-94684.

GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice,

Supreme Court of the Philippines, this 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as
directed, filed their respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are
patent. However, a review of these issues as well as the extensive arguments of both
parties, compel us to delineate the focal point raised by the pleadings: During the
evaluation stage of the extradition proceedings, is private respondent entitled to the
two basic due process rights of notice and hearing? An affirmative answer would
necessarily render the proceedings at the trial court, moot and academic (the issues of
which are substantially the same as those before us now), while a negative resolution
would call for the immediate lifting of the TRO issued by this Court dated August 24,
1999, thus allowing petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily, in the event that
private respondent is adjudged entitled to basic due process rights at the evaluation
stage of the extradition proceedings, would this entitlement constitute a breach of the
legal commitments and obligations of the Philippine Government under the RP-US
Extradition Treaty? And assuming that the result would indeed be a breach, is there
any conflict between private respondents basic due process rights and the provisions
of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into
the substantive merits of the case, brushing aside peripheral procedural matters which
concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the
filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the
trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US
Extradition Treaty which was executed only on November 13, 1994, ushered into
force the implementing provisions of Presidential Decree No. 1069, also called as the
Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of
an accused from the Philippines with the object of placing him at the disposal of
foreign authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of the requesting state or
government." The portions of the Decree relevant to the instant case which involves a
charged and not convicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the
Secretary of Foreign Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest
issued by the authority of the Requesting State having jurisdiction over the matter, or
some other instruments having equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as
to the name and identity of the accused, his whereabouts in the Philippines, if known,
the acts or omissions complained of, and the time and place of the commission of
these acts;
3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the
request; and

4. Such other documents or information in support of the request.

(Section 4, Presidential Decree No. 1069.)

Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of
Foreign Affairs, pertinently provides:

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the

request fails to meet the requirements of this law and the relevant treaty
or convention, he shall forward the request together with the related
documents to the Secretary of Justice, who shall immediately designate
and authorize an attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task
of evaluating the sufficiency of the request and the supporting documents is the
Secretary of Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the
executive authority must ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity

and probable location of the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the
offense for which extradition is requested;

4. A statement of the provisions of law describing the punishment for the

offense;

5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or

paragraph 4 of said Article, as applicable.
 (Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide
probable cause for his arrest and committal for trial if the offense had been committed
there;

8. A copy of the warrant or order of arrest issued by a judge or other competent

authority; and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the
accompanying documents received in support of the request had been certified by the
principal diplomatic or consular officer of the Requested State resident in the
Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No.
951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not
be granted if the executive authority of the Requested State determines that the
request is politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation."

The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request
and its supporting documents are sufficient and complete in form and substance, he
shall deliver the same to the Secretary of Justice, who shall immediately designate and
authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5,
P. D. No. 1069). The lawyer designated shall then file a written petition with the
proper regional trial court of the province or city, with a prayer that the court take the
extradition request under consideration (Paragraph [2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for
extradition, shall, as soon as practicable, issue an order summoning the prospective
extraditee to appear and to answer the petition on the day and hour fixed in the order.
The judge may issue a warrant of arrest if it appears that the immediate arrest and
temporary detention of the accused will best serve the ends of justice (Paragraph [1],
Section 6, ibid.), particularly to prevent the flight of the prospective extraditee.
The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding
is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9
thereof provides that in the hearing of the extradition petition, the provisions of the
Rules of Court, insofar as practicable and not inconsistent with the summary nature of
the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that
the attorney having charge of the case may, upon application by the Requesting State,
represent the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the
extradition and giving the reasons therefor upon a showing of the existence of a prima
facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the
Court of Appeals, whose decision shall be final and immediately executory (Section
12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in
the Court of Appeals shall apply in the aforementioned appeal, except for the required
15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is
extraditable based on the application of the dual criminality rule and other conditions
mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also
determines whether or not the offense for which extradition is requested is a political
one (Paragraph [1], Article 3, RP-US Extradition Treaty).

With the foregoing abstract of the extradition proceedings as backdrop, the following
query presents itself: What is the nature of the role of the Department of Justice at the
evaluation stage of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary
of Justice is to file the extradition petition after the request and all the supporting
papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official
who is authorized to evaluate the extradition papers, to assure their sufficiency, and
under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is
politically motivated, or that the offense is a military offense which is not punishable
under non-military penal legislation. Ipso facto, as expressly provided in Paragraph
[1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty
of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there
was failure to abide by the provisions of Presidential Decree No. 1069. For while it is
true that the extradition request was delivered to the Department of Foreign Affairs on
June 17, 1999, the following day or less than 24 hours later, the Department of Justice
received the request, apparently without the Department of Foreign Affairs
discharging its duty of thoroughly evaluating the same and its accompanying
documents. The statement of an assistant secretary at the Department of Foreign
Affairs that his Department, in this regard, is merely acting as a post office, for which
reason he simply forwarded the request to the Department of Justice, indicates the
magnitude of the error of the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it upon itself to determine
the completeness of the documents and to evaluate the same to find out whether they
comply with the requirements laid down in the Extradition Law and the RP-US
Extradition Treaty. Petitioner ratiocinates in this connection that although the
Department of Justice had no obligation to evaluate the extradition documents, the
Department also had to go over them so as to be able to prepare an extradition petition
(tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private
respondent insisted on the following: (1) the right to be furnished the request and the
supporting papers; (2) the right to be heard which consists in having a reasonable
period of time to oppose the request, and to present evidence in support of the
opposition; and (3) that the evaluation proceedings be held in abeyance pending the
filing of private respondent's opposition to the request.

The two Departments seem to have misread the scope of their duties and authority,
one abdicating its powers and the other enlarging its commission. The Department of
Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation
that it is adopting the instant petition as its own, indirectly conveying the message that
if it were to evaluate the extradition request, it would not allow private respondent to
participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition request and
supporting documents and that it arrived at a well-founded judgment that the request
and its annexed documents satisfy the requirements of law. The Secretary of Justice,
eminent as he is in the field of law, could not privately review the papers all by
himself. He had to officially constitute a panel of attorneys. How then could the DFA
Secretary or his undersecretary, in less than one day, make the more authoritative
determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class
by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to
say that it is purely an exercise of ministerial functions. At such stage, the executive
authority has the power: (a) to make a technical assessment of the completeness and
sufficiency of the extradition papers; (b) to outrightly deny the request if on its face
and on the face of the supporting documents the crimes indicated are not extraditable;
and (c) to make a determination whether or not the request is politically motivated, or
that the offense is a military one which is not punishable under non-military penal
legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3,
RP-US Extradition Treaty). Hence, said process may be characterized as an
investigative or inquisitorial process in contrast to a proceeding conducted in the
exercise of an administrative bodys quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation

of evidence; (b) determining facts based upon the evidence presented; and (c)
rendering an order or decision supported by the facts proved (De Leon, Administrative
Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1).
Inquisitorial power, which is also known as examining or investigatory power, is one
of the determinative powers of an administrative body which better enables it to
exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26).
This power allows the administrative body to inspect the records and premises, and
investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p.
27), or to require disclosure of information by means of accounts, records, reports,
testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p.
64).

The power of investigation consists in gathering, organizing, and analyzing evidence,

which is a useful aid or tool in an administrative agencys performance of its rule-
making or quasi-judicial functions. Notably, investigation is indispensable to
prosecution.

In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to
rule on the functions of an investigatory body with the sole power of investigation. It
does not exercise judicial functions and its power is limited to investigating the facts
and making findings in respect thereto. The Court laid down the test of determining
whether an administrative body is exercising judicial functions or merely
investigatory functions: Adjudication signifies the exercise of power and authority to
adjudicate upon the rights and obligations of the parties before it. Hence, if the only
purpose for investigation is to evaluate evidence submitted before it based on the facts
and circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial discretion and
judgment.

The above description in Ruperto applies to an administrative body authorized to

evaluate extradition documents. The body has no power to adjudicate in regard to the
rights and obligations of both the Requesting State and the prospective extraditee. Its
only power is to determine whether the papers comply with the requirements of the
law and the treaty and, therefore, sufficient to be the basis of an extradition petition.
Such finding is thus merely initial and not final. The body has no power to determine
whether or not the extradition should be effected. That is the role of the court. The
bodys power is limited to an initial finding of whether or not the extradition petition
can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation

procedure is characterized by certain peculiarities. Primarily, it sets into motion the
wheels of the extradition process. Ultimately, it may result in the deprivation of liberty
of the prospective extraditee. This deprivation can be effected at two stages: First, the
provisional arrest of the prospective extraditee pending the submission of the request.
This is so because the Treaty provides that in case of urgency, a contracting party may
request the provisional arrest of the person sought pending presentation of the request
(Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically
discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree
No. 1069 provides for a shorter period of 20 days after which the arrested person
could be discharged (Section 20[d]). Logically, although the Extradition Law is silent
on this respect, the provisions only mean that once a request is forwarded to the
Requested State, the prospective extraditee may be continuously detained, or if not,
subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he
will only be discharged if no request is submitted. Practically, the purpose of this
detention is to prevent his possible flight from the Requested State. Second, the
temporary arrest of the prospective extraditee during the pendency of the extradition
petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditees liberty as early as

during the evaluation stage. It is not only an imagined threat to his liberty, but a very
imminent one.

Because of these possible consequences, we conclude that the evaluation process is

akin to an administrative agency conducting an investigative proceeding, the
consequences of which are essentially criminal since such technical assessment sets
off or commences the procedure for, and ultimately, the deprivation of liberty of a
prospective extraditee. As described by petitioner himself, this is a "tool" for criminal
law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process partakes
of the nature of a criminal investigation. In a number of cases, we had occasion to
make available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions.
Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are
rights formerly available only at the trial stage that had been advanced to an earlier
stage in the proceedings, such as the right to counsel and the right against self-
incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S.
478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the
right against self-incrimination under Section 17, Article III of the 1987 Constitution
which is ordinarily available only in criminal prosecutions, extends to administrative
proceedings which possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with immorality, which could
result in his loss of the privilege to practice medicine if found guilty. The Court, citing
the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the
revocation of ones license as a medical practitioner, is an even greater deprivation
than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth

against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft
Law. Again, we therein ruled that since the investigation may result in forfeiture of
property, the administrative proceedings are deemed criminal or penal, and such
forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr.
vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid
down the test to determine whether a proceeding is civil or criminal: If the proceeding
is under a statute such that if an indictment is presented the forfeiture can be included
in the criminal case, such proceeding is criminal in nature, although it may be civil in
form; and where it must be gathered from the statute that the action is meant to be
criminal in its nature, it cannot be considered as civil. If, however, the proceeding
does not involve the conviction of the wrongdoer for the offense charged, the
proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of ones

property or property right. No less is this true, but even more so in the case before us,
involving as it does the possible deprivation of liberty, which, based on the hierarchy
of constitutionally protected rights, is placed second only to life itself and enjoys
precedence over property, for while forfeited property can be returned or replaced, the
time spent in incarceration is irretrievable and beyond recompense.

By comparison, a favorable action in an extradition request exposes a person to

eventual extradition to a foreign country, thus saliently exhibiting the criminal or
penal aspect of the process. In this sense, the evaluation procedure is akin to a
preliminary investigation since both procedures may have the same result the arrest
and imprisonment of the respondent or the person charged. Similar to the evaluation
stage of extradition proceedings, a preliminary investigation, which may result in the
filing of an information against the respondent, can possibly lead to his arrest, and to
the deprivation of his liberty.

Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8,
Petitioners Memorandum) that the extradition treaty is neither a piece of criminal
legislation nor a criminal procedural statute is not well-taken. Wright is not authority
for petitioners conclusion that his preliminary processing is not akin to a preliminary
investigation. The characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post facto law. It had nothing to do with
the denial of the right to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding
enforced by public authority, whether sanctioned by age or custom, or newly devised
in the discretion of the legislative power, in furtherance of the general public good,
which regards and preserves these principles of liberty and justice, must be held to be
due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due
process requirements cannot be deemed non-compliance with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression
and punishment of crime in their respective jurisdictions. At the same time, both
States accord common due process protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only
worded in exactly identical language and terminology, but more importantly, they are
alike in what their respective Supreme Courts have expounded as the spirit with which
the provisions are informed and impressed, the elasticity in their interpretation, their
dynamic and resilient character which make them capable of meeting every modern
problem, and their having been designed from earliest time to the present to meet the
exigencies of an undefined and expanding future. The requirements of due process are
interpreted in both the United States and the Philippines as not denying to the law the
capacity for progress and improvement. Toward this effect and in order to avoid the
confines of a legal straitjacket, the courts instead prefer to have the meaning of the
due process clause "gradually ascertained by the process of inclusion and exclusion in
the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S.
78). Capsulized, it refers to "the embodiment of the sporting idea of fair play"
(Ermita-Malate Hotel and Motel Owners Association vs. City Mayor of Manila, 20
SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in
the very idea of free government (Holden vs. Hardy, 169 U.S. 366).

Due process is comprised of two components substantive due process which requires
the intrinsic validity of the law in interfering with the rights of the person to his life,
liberty, or property, and procedural due process which consists of the two basic rights
of notice and hearing, as well as the guarantee of being heard by an impartial and
competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing
pervade not only in criminal and civil proceedings, but in administrative proceedings
as well. Non-observance of these rights will invalidate the proceedings. Individuals
are entitled to be notified of any pending case affecting their interests, and upon
notice, they may claim the right to appear therein and present their side and to refute
the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding,

Section 3, Rule 112 of the Rules of Court guarantees the respondents basic due
process rights, granting him the right to be furnished a copy of the complaint, the
affidavits, and other supporting documents, and the right to submit counter-affidavits
and other supporting documents within ten days from receipt thereof. Moreover, the
respondent shall have the right to examine all other evidence submitted by the
complainant.

These twin rights may, however, be considered dispensable in certain instances, such
as:

1. In proceedings where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the preventive
suspension of a public servant facing administrative charges (Section 63, Local
Government Code, B. P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are immediate threats to public
health and decency, and the cancellation of a passport of a person sought for criminal
prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent
is not precluded from enjoying the right to notice and hearing at a later time without
prejudice to the person affected, such as the summary distraint and levy of the
property of a delinquent taxpayer, and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them
had not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the
evaluation stage of the extradition proceedings fall under any of the described
situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are
quite noteworthy considering that the subject treaty involves the U.S.
Government.

American jurisprudence distinguishes between interstate rendition or extradition

which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and
international extradition proceedings. In interstate rendition or extradition, the
governor of the asylum state has the duty to deliver the fugitive to the demanding
state. The Extradition Clause and the implementing statute are given a liberal
construction to carry out their manifest purpose, which is to effect the return as swiftly
as possible of persons for trial to the state in which they have been charged with crime
(31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the
requisition papers or the demand must be in proper form, and all the elements or
jurisdictional facts essential to the extradition must appear on the face of the papers,
such as the allegation that the person demanded was in the demanding state at the time
the offense charged was committed, and that the person demanded is charged with the
commission of the crime or that prosecution has been begun in the demanding state
before some court or magistrate (35 C.J.S. 406-407). The extradition documents are
then filed with the governor of the asylum state, and must contain such papers and
documents prescribed by statute, which essentially include a copy of the instrument
charging the person demanded with a crime, such as an indictment or an affidavit
made before a magistrate. Statutory requirements with respect to said charging
instrument or papers are mandatory since said papers are necessary in order to confer
jurisdiction on the governor of the asylum state to effect the extradition
(35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the
indictment, information, affidavit, or judgment of conviction or sentence and other
instruments accompanying the demand or requisitions be furnished and delivered
to the fugitive or his attorney is directory. However, the right being such a basic one
has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte
Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d
853).

In international proceedings, extradition treaties generally provide for the presentation

to the executive authority of the Requested State of a requisition or demand for the
return of the alleged offender, and the designation of the particular officer having
authority to act in behalf of the demanding nation (31A Am Jur 2d 815).

In petitioners memorandum filed on September 15, 1999, he attached thereto a letter

dated September 13, 1999 from the Criminal Division of the U.S. Department of
Justice, summarizing the U.S. extradition procedures and principles, which are
basically governed by a combination of treaties (with special reference to the RP-US
Extradition Treaty), federal statutes, and judicial decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In
urgent cases, requests for the provisional arrest of an individual may be made directly
by the Philippine Department of Justice to the U.S. Department of Justice, and vice-
versa. In the event of a provisional arrest, a formal request for extradition is
transmitted subsequently through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to

the Department of Justice. Before doing so, the Department of State prepares a
declaration confirming that a formal request has been made, that the treaty is in full
force and effect, that under Article 17 thereof the parties provide reciprocal legal
representation in extradition proceedings, that the offenses are covered as extraditable
offenses under Article 2 thereof, and that the documents have been authenticated in
accordance with the federal statute that ensures admissibility at any subsequent
extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold
a hearing to consider the evidence offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is extraditable
to the foreign country. The court must also determine that (a) it has jurisdiction over
the defendant and jurisdiction to conduct the hearing; (b) the defendant is being
sought for offenses for which the applicable treaty permits extradition; and (c) there is
probable cause to believe that the defendant is the person sought and that he
committed the offenses charged (Ibid.)

5. The judge or magistrate judge is vested with jurisdiction to certify extraditability

after having received a "complaint made under oath, charging any person found
within his jurisdiction" with having committed any of the crimes provided for by the
governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted
that a long line of American decisions pronounce that international extradition
proceedings partake of the character of a preliminary examination before a
committing magistrate, rather than a trial of the guilt or innocence of the alleged
fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it
incorporates its determinations in factual findings and conclusions of law and certifies
the persons extraditability. The court then forwards this certification of extraditability
to the Department of State for disposition by the Secretary of State. The ultimate
decision whether to surrender an individual rests with the Secretary of State (18
U.S.C. 3186).

7. The subject of an extradition request may not litigate questions concerning the
motives of the requesting government in seeking his extradition. However, a person
facing extradition may present whatever information he deems relevant to the
Secretary of State, who makes the final determination whether to surrender an
individual to the foreign government concerned.

From the foregoing, it may be observed that in the United States, extradition begins
and ends with one entity the Department of State which has the power to evaluate the
request and the extradition documents in the beginning, and, in the person of the
Secretary of State, the power to act or not to act on the courts determination of
extraditability. In the Philippine setting, it is the Department of Foreign Affairs which
should make the initial evaluation of the request, and having satisfied itself on the
points earlier mentioned (see pp. 10-12), then forwards the request to the Department
of Justice for the preparation and filing of the petition for extradition. Sadly, however,
the Department of Foreign Affairs, in the instant case, perfunctorily turned over the
request to the Department of Justice which has taken over the task of evaluating the
request as well as thereafter, if so warranted, preparing, filing, and prosecuting the
petition for extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should
the person sought to be extradited be given due process rights by the Philippines in the
evaluation stage. He emphasizes that petitioners primary concern is the possible delay
in the evaluation process.

We agree with private respondents citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve

legitimate state ends is a proper state interest worthy of cognizance in
constitutional adjudication. But the Constitution recognizes higher
values than speed and efficiency. Indeed, one might fairly say of the Bill
of Rights in general, and the Due Process Clause, in particular, that they
were designed to protect the fragile values of a vulnerable citizenry from
the overbearing concern for efficiency and efficacy that may characterize
praiseworthy government officials no less, and perhaps more, than
mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine
Government that no right that of liberty secured not only by the Bills of
Rights of the Philippines Constitution but of the United States as well, is
sacrificed at the altar of expediency.

(pp. 40-41, Private Respondents Memorandum.)

In the Philippine context, this Courts ruling is invoked:

One of the basic principles of the democratic system is that where the
rights of the individual are concerned, the end does not justify the means.
It is not enough that there be a valid objective; it is also necessary that
the means employed to pursue it be in keeping with the Constitution.
Mere expediency will not excuse constitutional shortcuts. There is no
question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the
bypassing of an individuals rights. It is no exaggeration to say that a
person invoking a right guaranteed under Article III of the Constitution
 is a majority of one even as against the rest of the nation who would
deny him that right (Association of Small Landowners in the Philippines,
Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioners argument that extradition is a tool of criminal
law enforcement. To be effective, requests for extradition or the surrender of accused
or convicted persons must be processed expeditiously. Nevertheless, accelerated or
fast-tracked proceedings and adherence to fair procedures are, however, not always
incompatible. They do not always clash in discord. Summary does not mean
precipitous haste. It does not carry a disregard of the basic principles inherent in
"ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that
point, there is no extraditee yet in the strict sense of the word. Extradition may or may
not occur. In interstate extradition, the governor of the asylum state may not, in the
absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since
after a close evaluation of the extradition papers, he may hold that federal and
statutory requirements, which are significantly jurisdictional, have not been met (31
Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of the
requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the Secretary
of Foreign Affairs finds that the request fails to meet the requirements of the law and
the treaty, he shall not forward the request to the Department of Justice for the filing
of the extradition petition since non-compliance with the aforesaid requirements will
not vest our government with jurisdiction to effect the extradition.

In this light, it should be observed that the Department of Justice exerted notable
efforts in assuring compliance with the requirements of the law and the treaty since it
even informed the U.S. Government of certain problems in the extradition papers
(such as those that are in Spanish and without the official English translation, and
those that are not properly authenticated). In fact, petitioner even admits that
consultation meetings are still supposed to take place between the lawyers in his
Department and those from the U.S. Justice Department. With the meticulous nature
of the evaluation, which cannot just be completed in an abbreviated period of time due
to its intricacies, how then can we say that it is a proceeding that urgently necessitates
immediate and prompt action where notice and hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative

action. Is private respondent precluded from enjoying the right to notice and hearing
at a later time without prejudice to him? Here lies the peculiarity and deviant
characteristic of the evaluation procedure. On one hand, there is yet no extraditee, but
ironically on the other, it results in an administrative determination which, if adverse
to the person involved, may cause his immediate incarceration. The grant of the
request shall lead to the filing of the extradition petition in court. The "accused" (as
Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not
only after the extradition petition is filed in court, but even during the evaluation
proceeding itself by virtue of the provisional arrest allowed under the treaty and the
implementing law. The prejudice to the "accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be
dispensed with and shelved aside.

Apart from the due process clause of the Constitution, private respondent likewise
invokes Section 7 of Article III which reads:

Sec. 7. The right of the people to information on matters of public

concern shall be recognized. Access to official records, and to documents
and papers pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy development,
shall be afforded the citizen, subject to such limitations as may be
provided by law.

The above provision guarantees political rights which are available to citizens of the
Philippines, namely: (1) the right to information on matters of public concern, and (2)
the corollary right of access to official records and documents. The general right
guaranteed by said provision is the right to information on matters of public concern.
In its implementation, the right of access to official records is likewise conferred.
These cognate or related rights are "subject to limitations as may be provided by law"
(Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely
on the premise that ultimately it is an informed and critical public opinion which alone
can protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondents letter-request dated
July 1, 1999 do not fall under the guarantee of the foregoing provision since the
matters contained in the documents requested are not of public concern. On the other
hand, private respondent argues that the distinction between matters vested with
public interest and matters which are of purely private interest only becomes material
when a third person, who is not directly affected by the matters requested, invokes the
right to information. However, if the person invoking the right is the one directly
affected thereby, his right to information becomes absolute.

The concept of matters of public concern escapes exact definition. Strictly speaking,
every act of a public officer in the conduct of the governmental process is a matter of
public concern (Bernas, The 1987 Constitution of the Republic of the Philippines,
1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives or simply
because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil
Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the
people and any citizen has "standing".

When the individual himself is involved in official government action because said
action has a direct bearing on his life, and may either cause him some kind of
deprivation or injury, he actually invokes the basic right to be notified under Section 1
of the Bill of Rights and not exactly the right to information on matters of public
concern. As to an accused in a criminal proceeding, he invokes Section 14,
particularly the right to be informed of the nature and cause of the accusation against
him.

The right to information is implemented by the right of access to information within

the control of the government (Bernas, The 1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 337). Such information may be contained in official records,
and in documents and papers pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official
government action from the U. S. Government. No official action from our country
has yet been taken. Moreover, the papers have some relation to matters of foreign
relations with the U. S. Government. Consequently, if a third party invokes this
constitutional provision, stating that the extradition papers are matters of public
concern since they may result in the extradition of a Filipino, we are afraid that the
balance must be tilted, at such particular time, in favor of the interests necessary for
the proper functioning of the government. During the evaluation procedure, no official
governmental action of our own government has as yet been done; hence the
invocation of the right is premature. Later, and in contrast, records of the extradition
hearing would already fall under matters of public concern, because our government
by then shall have already made an official decision to grant the extradition request.
The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant
controversy: Would private respondents entitlement to notice and hearing during the
evaluation stage of the proceedings constitute a breach of the legal duties of the
Philippine Government under the RP-Extradition Treaty? Assuming the answer is in
the affirmative, is there really a conflict between the treaty and the due process clause
in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon
the constitutionality of the provisions of the RP-US Extradition Treaty nor the
Extradition Law implementing the same. We limit ourselves only to the effect of the
grant of the basic rights of notice and hearing to private respondent on foreign
relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of
international law, requires the parties to a treaty to keep their agreement therein in
good faith. The observance of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the Constitution which provides that "[t]he
Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land, and adheres to
the policy of peace, equality, justice, freedom, cooperation and amity with all
nations." Under the doctrine of incorporation, rules of international law form part of
the law of the land and no further legislative action is needed to make such rules
applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed.,
p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local

courts) are confronted with situations in which there appears to be a conflict between
a rule of international law and the provisions of the constitution or statute of the local
state. Efforts should first be exerted to harmonize them, so as to give effect to both
since it is to be presumed that municipal law was enacted with proper regard for the
generally accepted principles of international law in observance of the Incorporation
Clause in the above-cited constitutional provision (Cruz, Philippine Political Law,
1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a
choice has to be made between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the municipal courts
(Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs
of municipal law and are accordingly bound by it in all circumstances (Salonga &
Yap, op. cit., p. 13). The fact that international law has been made part of the law of
the land does not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere. The doctrine of incorporation, as applied in
most countries, decrees that rules of international law are given equal standing with,
but are not superior to, national legislative enactments. Accordingly, the principle lex
posterior derogat priori takes effect a treaty may repeal a statute and a statute may
repeal a treaty. In states where the constitution is the highest law of the land, such as
the Republic of the Philippines, both statutes and treaties may be invalidated if they
are in conflict with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or
national law? En contrario, these two components of the law of the land are not pitted
against each other. There is no occasion to choose which of the two should be upheld.
Instead, we see a void in the provisions of the RP-US Extradition Treaty, as
implemented by Presidential Decree No. 1069, as regards the basic due process rights
of a prospective extraditee at the evaluation stage of extradition proceedings. From the
procedures earlier abstracted, after the filing of the extradition petition and during the
judicial determination of the propriety of extradition, the rights of notice and hearing
are clearly granted to the prospective extraditee. However, prior thereto, the law is
silent as to these rights. Reference to the U.S. extradition procedures also manifests
this silence.

Petitioner interprets this silence as unavailability of these rights. Consequently, he

describes the evaluation procedure as an "ex parte technical assessment" of the
sufficiency of the extradition request and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An
application of the basic twin due process rights of notice and hearing will not go
against the treaty or the implementing law. Neither the Treaty nor the Extradition Law
precludes these rights from a prospective extraditee. Similarly, American
jurisprudence and procedures on extradition pose no proscription. In fact, in interstate
extradition proceedings as explained above, the prospective extraditee may even
request for copies of the extradition documents from the governor of the asylum state,
and if he does, his right to be supplied the same becomes a demandable right
(35 C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to
prevent unauthorized disclosure of confidential information. Hence, the secrecy
surrounding the action of the Department of Justice Panel of Attorneys. The
confidentiality argument is, however, overturned by petitioners revelation that
everything it refuses to make available at this stage would be obtainable during trial.
The Department of Justice states that the U.S. District Court concerned has authorized
the disclosure of certain grand jury information. If the information is truly
confidential, the veil of secrecy cannot be lifted at any stage of the extradition
proceedings. Not even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as
American jurisprudence and procedures on extradition, for any prohibition against the
conferment of the two basic due process rights of notice and hearing during the
evaluation stage of the extradition proceedings. We have to consider similar situations
in jurisprudence for an application by analogy.

Earlier, we stated that there are similarities between the evaluation process and a
preliminary investigation since both procedures may result in the arrest of the
respondent or the prospective extraditee. In the evaluation process, a provisional arrest
is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition
Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioners theory, because
there is no provision of its availability, does this imply that for a period of time, the
privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of
the Constitution which states that "[t]he privilege of the writ of habeas corpus shall
not be suspended except in cases of invasion or rebellion when the public safety
requires it"? Petitioners theory would also infer that bail is not available during the
arrest of the prospective extraditee when the extradition petition has already been filed
in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding
Section 13, Article III of the Constitution which provides that "[a]ll persons, except
those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended " Can petitioner validly
argue that since these contraventions are by virtue of a treaty and hence affecting
foreign relations, the aforestated guarantees in the Bill of Rights could thus be
subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process
in administrative proceedings is an opportunity to explain ones side or an opportunity
to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270
SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276
SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs.
Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In
essence, procedural due process refers to the method or manner by which the law is
enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of constitutional guarantees in
the enforcement of a law or treaty. Petitioners fears that the Requesting State may
have valid objections to the Requested States non-performance of its commitments
under the Extradition Treaty are insubstantial and should not be given paramount
consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to

the four corners of Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs.
Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police
Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings
under Presidential Decree No. 807 (Providing for the Organization of the Civil
Service Commission in Accordance with Provisions of the Constitution, Prescribing
its Powers and Functions and for Other Purposes), and Presidential Decree No. 971
(Providing Legal Assistance for Members of the Integrated National Police who may
be charged for Service-Connected Offenses and Improving the Disciplinary System in
the Integrated National Police, Appropriating Funds Therefor and for other purposes),
as amended by Presidential Decree No. 1707, although summary dismissals may be
effected without the necessity of a formal investigation, the minimum requirements of
due process still operate. As held in GSIS vs. Court of Appeals:

... [I]t is clear to us that what the opening sentence of Section 40 is

saying is that an employee may be removed or dismissed even without
formal investigation, in certain instances. It is equally clear to us that an
employee must be informed of the charges preferred against him, and
that the normal way by which the employee is so informed is by
furnishing him with a copy of the charges against him. This is a basic
procedural requirement that a statute cannot dispense with and still
remain consistent with the constitutional provision on due process. The
second minimum requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable opportunity to
present his side of the matter, that is to say, his defenses against the
 charges levelled against him and to present evidence in support of his
defenses.

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld
the due process rights of the respondent.

In the case at bar, private respondent does not only face a clear and present danger of
loss of property or employment, but of liberty itself, which may eventually lead to his
forcible banishment to a foreign land. The convergence of petitioners favorable action
on the extradition request and the deprivation of private respondents liberty is easily
comprehensible.

We have ruled time and again that this Courts equity jurisdiction, which is aptly
described as "justice outside legality," may be availed of only in the absence of, and
never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs.
Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268
SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for
"justice outside legality," since private respondents due process rights, although not
guaranteed by statute or by treaty, are protected by constitutional guarantees. We
would not be true to the organic law of the land if we choose strict construction over
guarantees against the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of

liberty and government authority, he must ever hold the oar of freedom in the stronger
arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby

DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent
copies of the extradition request and its supporting papers, and to grant him a
reasonable period within which to file his comment with supporting evidence. The
incidents in Civil Case No. 99-94684 having been rendered moot and academic by
this decision, the same is hereby ordered dismissed.

SO ORDERED. 6/2/00 2:12 PM

[G.R. No. 132248. January 19, 2000]

HON. ERLINDA C. PEFIANCO, in her capacity as Secretary of the Department
of Education, Culture and Sports, petitioner, vs. MARIA LUISA C.
MORAL, respondent.

DECISION

BELLOSILLO, J.:

SECRETARY ERLINDA C. PEFIANCO of the Department of Education, Culture and

Sports (DECS) seeks to nullify through this petition for review the Decision of the
Court of Appeals dismissing the petition for certiorari filed by then DECS Secretary
[1]

Ricardo T. Gloria for lack of merit, as well as its Resolution dated 13 January 1998
denying reconsideration thereof.

On 26 July 1994 former DECS Secretary Ricardo T. Gloria filed a complaint against
respondent Maria Luisa C. Moral, then Chief Librarian, Catalog Division, of the
National Library for dishonesty, grave misconduct and conduct prejudicial to the best
interest of the service. The complaint charged respondent Moral with the pilferage of
some historical documents from the vaults of the Filipiniana and Asian Division
(FAD) of the National Library which were under her control and supervision as
Division Chief and keeping in her possession, without legal authority and
justification, some forty-one (41) items of historical documents which were missing
from the FAD vaults of the National Library.

The DECS Investigating Committee conducted several hearings on the complaint.

Atty. Jose M. Diaz, Special Prosecutor from the Department of Justice, represented
the DECS Secretary in the administrative case while respondent was represented by
her own private counsel. On 25 September 1996 Secretary Gloria issued a resolution
finding respondent "guilty of the administrative offenses of dishonesty, grave
misconduct and conduct prejudicial to the best interest of the service, for the
commission of pilferage of historical documents of the national library, to the
prejudice of the national library in particular, and the country in general." She was
ordered dismissed from the government service with prejudice to reinstatement and
forfeiture of all her retirement benefits and other remunerations.

On 30 September 1996 respondent received a copy of the resolution. Thereafter, or on

1 October 1996, she received another resolution correcting the typographical errors
found on the first resolution. Respondent did not appeal the judgment.
On 2 October 1996 respondent filed a Petition for the Production of the DECS
Investigation Committee Report purportedly to "guide [her] on whatever action would
be most appropriate to take under the circumstances." Her petition was, however,
[2]

denied.

Unfazed, she filed a Reiteration for DECS Committee Report and DECS Resolution
dated September 25, 1996, which Secretary Gloria similarly denied in his Order of 23
October 1996. Respondent moved for reconsideration but the motion was merely
"noted" in view of the warning in the 23 October 1996 Order that the denial of the
request for the production of the Investigation Committee Report was final. As[3]

earlier stated, respondent did not appeal the Resolution dated 30 September 1996
dismissing her from the service. Instead, she instituted an action for mandamusand
injunction before the regular courts against Secretary Gloria praying that she be
furnished a copy of the DECS Investigation Committee Report and that the DECS
Secretary be enjoined from enforcing the order of dismissal until she received a copy
of the said report.
[4]

Secretary Gloria moved to dismiss the mandamus case principally for lack of cause of
action, but the trial court denied his motion. Thus, he elevated the case to the Court of
Appeals on certiorariimputing grave abuse of discretion to the trial court. In its
assailed Decision of 24 November 1997 the appellate court sustained the trial court
and dismissed Secretary Glorias petition for lack of merit holding that -

FIRST. Petitioner Gloria acted prematurely, not having filed any motion
for reconsideration of the assailed order with the respondent judge before
filing the instant petition to this Court. This constitutes a procedural
infirmity x x x x SECOND. Even if the aforesaid procedural defect were
to be disregarded, the petition at hand, nevertheless, must fail. The denial
of the motion to dismiss is an option available to the respondent judge.
Such order is interlocutory and thus not appealable. The proper recourse
of the aggrieved party is to file an answer and interpose, as defenses, the
objection(s) raised by him in said motion to dismiss, then proceed with
the trial and, in case of adverse decision, to elevate the entire case on
appeal in due course.

His motion for reconsideration having been denied by the Court of Appeals on 13
January 1998, Secretary Gloria filed the instant petition for review.
Meanwhile, Secretary Gloria was replaced by Secretary Erlinda C. Pefianco who was
thereafter substituted in the case for Secretary Gloria.

The issues before us are: whether the Court of Appeals erred in dismissing the petition
for certiorari for failure of petitioner to file a motion for reconsideration of the order
denying the motion to dismiss, and in holding that the trial court did not commit grave
abuse of discretion in denying the motion to dismiss.

Petitioner contends that there is no need to file a motion for reconsideration as the trial
courts order denying the motion to dismiss is a patent nullity, and a motion for
reconsideration would practically be a useless ceremony as the trial court virtually
decided the case, and that there is no law requiring the DECS to furnish respondent
with a copy of the Report of the DECS Investigation Committee so that the petition
for mandamus has no leg to stand on hence should have been dismissed for lack of
cause of action.

Excepting thereto respondent argues that the denial of the motion to dismiss is
interlocutory in nature as it did not dispose of the case on the merits, and petitioner
still has a residual remedy, i.e., to file an answer, thus her substantive rights have not
been violated as she contends; that respondent is clearly entitled to the remedy
of mandamus to protect her rights; and, that petitioner has not shown any law, DECS
order or regulation prohibiting the release of the petitioned documents for reasons of
confidentiality or national security.

We grant the petition. Section 3, Rule 16, of the 1997 Rules of Civil
Procedure mandatorily requires that the resolution on a motion to dismiss should
clearly and distinctly state the reasons therefor -

After hearing, the court may dismiss the action or claim, deny the motion
or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that
the ground relied upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons
therefor (underscoring supplied).

Clearly, the above rule proscribes the common practice of perfunctorily denying
motions to dismiss "for lack of merit." Such cavalier disposition often creates
difficulty and misunderstanding on the part of the aggrieved party in taking recourse
therefrom and likewise on the higher court called upon to resolve the issue, usually
on certiorari.

The challenged Order of the trial court dated 23 April 1997 falls short of the
requirements prescribed in Rule 16. The Order merely discussed the general concept
of mandamus and the trial courts jurisdiction over the rulings and actions of
administrative agencies without stating the basis why petitioners motion to dismiss
was being denied. We are reproducing hereunder for reference the assailed Order -

This treats of the Motion to Dismiss filed by respondent Gloria on 14

March 1997 to which petitioner filed their (sic) opposition on April 8,
1997.

Respondent premised his motion on the following grounds: (a)

Mandamus does not lie to compel respondent DECS Secretary to release
the Report of the DECS Investigating Committee because the Petition
does not state a cause of action; (b) The DECS Resolution dismissing
petitioner is legal and valid, and therefore, the writ of preliminary
injunction cannot be granted to enjoin its execution; while petitioner
alleged among others that she has no plain, speedy and adequate remedy
in the ordinary course of law.

Mandamus is employed to compel the performance, when refused, of a

ministerial duty, this being its main objective. "Purely ministerial" are
acts to be performed in a given state of facts, in a prescribed manner in
obedience to the mandate of legal authority without regard to the
exercise of his own judgment upon the propriety or impropriety of the
act done. While the discretion of a Constitutional Commission cannot be
controlled by mandamus x x x x the court can decide whether the duty is
discretionary or ministerial x x x x

Generally, courts have no supervising power over the proceedings and

actions of the administrative departments of the government. This is
generally true with respect to acts involving the exercise of judgment or
discretion, and finding of fact. Findings of fact by an administrative
board or official, following a hearing, are binding upon the courts and
will not be disturbed except where the board or official has gone beyond
his statutory authority, exercised unconstitutional powers or clearly acted
arbitrarily and without regard to his duty or with grave abuse of
 discretion or as when there is capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction as where the power is
exercised in an arbitrary or despotic manner by reason of passion,
prejudice or personal hostility amounting to an evasion of positive duty,
or to a virtual refusal to perform the duty enjoined, or to act at all in
contemplation of law x x x x

WHEREFORE, in regard to the foregoing, the motion to dismiss by

herein respondent is hereby denied for lack of merit and is hereby
ordered to file its (sic) responsive pleadings within ten (10) days from
receipt of this Order. Copy furnished petitioner who is likewise given ten
(10) days to submit his (sic) comment or opposition.

Indeed, we cannot even discern the bearing or relevance of the discussion therein
on mandamus, vis-a-vis the ground relied upon by petitioner in her motion to dismiss,
i.e., lack of cause of action, and the dispositive portion of the order. The order only
confused petitioner and left her unable to determine the errors which would be the
proper subject of her motion for reconsideration. Judges should take pains in crafting
their orders, stating therein clearly and comprehensively the reasons for their issuance,
which are necessary for the full understanding of the action taken. Where the court
itself has not stated any basis for its order, to be very strict in requiring a prior motion
for reconsideration before resort to higher courts on certiorari may be had, would be
to expect too much. Since the judge himself was not precise and specific in his order,
a certain degree of liberality in exacting from petitioner strict compliance with the
rules was justified.

Ordinarily, certiorari will not lie unless the lower court, through a motion for
reconsideration, has been given an opportunity to correct the imputed errors on its act
or order. However, this rule is not absolute and is subject to well-recognized
exceptions. Thus, when the act or order of the lower court is a patent nullity for failure
to comply with a mandatory provision of the Rules, as in this case, a motion for
reconsideration may be dispensed with and the aggrieved party may assail the act or
order of the lower court directly on certiorari.
[5]

On the second issue, the nature of the remedy of mandamus has been the subject of
discussions in several cases. It is settled that mandamus is employed to compel the
performance, when refused, of a ministerial duty, this being its main objective. It does
not lie to require anyone to fulfill a discretionary duty. It is essential to the issuance of
a writ of mandamus that petitioner should have a clear legal right to the thing
demanded and it must be the imperative duty of the respondent to perform the act
required. It never issues in doubtful cases. While it may not be necessary that the duty
be absolutely expressed, it must nevertheless be clear. The writ will not issue to
compel an official to do anything which is not his duty to do or which is his duty not
to do, or give to the applicant anything to which he is not entitled by law. The writ
neither confers powers nor imposes duties. It is simply a command to exercise a
power already possessed and to perform a duty already imposed. [6]

In her petition for mandamus, respondent miserably failed to demonstrate that she has
a clear legal right to the DECS Investigation Committee Report and that it is the
ministerial duty of petitioner DECS Secretary to furnish her with a copy thereof.
Consequently, she is not entitled to the writ prayed for.

Primarily, respondent did not appeal to the Civil Service Commission the DECS
resolution dismissing her from the service. By her failure to do so, nothing prevented
[7]

the DECS resolution from becoming final and executory. Obviously, it will serve no
useful purpose now to compel petitioner to furnish her with a copy of the investigation
report.

Moreover, there is no law or rule which imposes a legal duty on petitioner to furnish
respondent with a copy of the investigation report. On the contrary, we unequivocally
held in Ruiz v. Drilon that a respondent in an administrative case is not entitled to be
[8]

informed of the findings and recommendations of any investigating committee created

to inquire into charges filed against him. He is entitled only to the administrative
decision based on substantial evidence made of record, and a reasonable opportunity
to meet the charges and the evidence presented against her during the hearings of the
investigation committee. Respondent no doubt had been accorded these rights.

Respondents assertion that the investigation report would be used "to guide [her] on
what action would be appropriate to take under the circumstances," hardly merits
[9]

consideration. It must be stressed that the disputed investigation report is an internal

communication between the DECS Secretary and the Investigation Committee, and it
is not generally intended for the perusal of respondent or any other person for that
matter, except the DECS Secretary. As correctly ruled by Secretary Gloria in his Order
of 2 October 1996 -

Respondents (Moral) counsel is reminded that the Report of the DECS

Investigating Committee is not an integral part of the Decision itself x x
x x [t]he report is an internal communication between the Investigating
 Committee and the DECS Secretary, and, therefore, confidential until the
latter had already read and used the same in making his own
determination of the facts and applicable law of the case, to be expressed
in the Decision he may make.

The Report remains an internal and confidential matter to be used as part

- - although not controlling - - of the basis for the decision. Only when
the party adversely affected by the decision has filed and perfected an
appeal to the Civil Service Commission may all the records of the case,
including the aforesaid Report be forwarded to the CSC. In the latter
appellate tribunal, the respondents counsel may be allowed to read
and/or be given a copy of the Report to enable the appellant to file an
intelligent and exhaustive appellants Brief Memorandum.

More importantly, the DECS resolution is complete in itself for purposes of appeal to
the Civil Service Commission, that is, it contains sufficient findings of fact and
conclusion of law upon which respondents removal from office was grounded. This
resolution, and not the investigation report, should be the basis of any further
remedies respondent might wish to pursue, and we cannot see how she would be
prejudiced by denying her access to the investigation report.

In fine, the trial courts Order of 23 April 1997 denying petitioners motion to dismiss is
not a mere error of judgment as the Court of Appeals held, but a grave abuse of
discretion amounting to lack or excess of jurisdiction because, to capsulize, the Order
is a patent nullity for failure to comply with the provisions of the rules requiring that a
resolution on a motion to dismiss should clearly and distinctly state the reasons
therefor; and, respondent is clearly not entitled to the writ of mandamusas she did not
appeal the DECS resolution dismissing her from service, and there is no law or rule
which imposes a ministerial duty on petitioner to furnish respondent with a copy of
the investigation report, hence her petition clearly lacked a cause of action. In such
instance, while the trial courts order is merely interlocutory and non-
appealable, certiorari is the proper remedy to annul the same since it is rendered with
grave abuse of discretion.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of

24 November 1997 sustaining the trial courts denial of petitioners motion to dismiss,
as well as its Resolution dated 13 January 1998 denying reconsideration, is
REVERSED and SET ASIDE. The petition for mandamus filed by respondent before
the court a quo to compel petitioner to furnish her a copy of the DECS Investigation
Committee Report is DISMISSED for want of cause of action.

SO ORDERED.

U.S. Supreme Court

Camara v. Municipal Court, 387 U.S. 523 (1967)

Camara v. Municipal Court of the City and County of San Francisco

No. 92

Argued February 15, 1967

Decided June 5, 1967

387 U.S. 523

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DISTRICT

Syllabus

Appellant was charged with violating the San Francisco Housing Code for refusing, after
three efforts by city housing inspectors to secure his consent, to allow a warrantless
inspection of the ground-floor quarters which he leased and residential use of which
allegedly violated the apartment building's occupancy permit. Claiming the inspection
ordinance unconstitutional for failure to require a warrant for inspections, appellant while
awaiting trial, sued in a State Superior Court for a writ of prohibition, which the court
denied. Relying on Frank v. Maryland, 359 U. S. 360, and similar cases, the District
Court of Appeal affirmed, holding that the ordinance did not violate the Fourth
Amendment. The State Supreme Court denied a petition for hearing.

Held:

1. The Fourth Amendment bars prosecution of a person who has refused to permit a
warrantless code enforcement inspection of his personal residence.Frank v. Maryland,
supra, pro tanto overruled. Pp. 387 U. S. 528-534.

(a) The basic purpose of the Fourth Amendment, which is enforceable against the
States through the Fourteenth, through its prohibition of "unreasonable" searches and
seizures is to safeguard the privacy and security of individuals against arbitrary
invasions by governmental officials. P. 387 U. S. 528.
(b) With certain carefully defined exceptions, an unconsented warrantless search of
private property is "unreasonable." Pp. 387 U. S. 528-529.

(c) Contrary to the assumption of Frank v. Maryland, supra, Fourth Amendment interests
are not merely "peripheral" where municipal fire, health, and housing inspection
programs are involved whose purpose is to determine the existence of physical
conditions not complying with local ordinances. Those programs, moreover, are
enforceable by criminal process, as is refusal to allow an inspection. Pp. 387 U. S. 529-
531.

(d) Warrantless administrative searches cannot be justified on the grounds that they
make minimal demands on occupants;

Page 387 U. S. 524

that warrant in such cases are unfeasible; or that area inspection programs could not
function under reasonable search warrant requirements. Pp. 387 U. S. 531-533.

2. Probable cause upon the basis of which warrants are to be issued for area code
enforcement inspections is not dependent on the inspector's belief that a particular
dwelling violates the code, but on the reasonableness of the enforcement agency's
appraisal of conditions in the area as a whole. The standards to guide the magistrate in
the issuance of such search warrants will necessarily vary with the municipal program
being enforced. Pp. 387 U. S. 534-539.

3. Search warrants which are required in nonemergency situations should normally be

sought only after entry is refused. Pp. 387 U. S. 539-540.

4. In the nonemergency situation here, appellant had a right to insist that the inspectors
obtain a search warrant. P. 387 U. S. 540.

237 Cal.App.2d 128, 46 Cal.Rptr. 585, vacated and remanded.

Page 387 U. S. 525

MR. JUSTICE WHITE delivered the opinion of the Court.

In Frank v. Maryland, 359 U. S. 360, this Court upheld, by a five-to-four vote, a state
court conviction of a homeowner who refused to permit a municipal health inspector to
enter and inspect his premises without a search warrant. In Eaton v. Price, 364 U. S.
263, a similar conviction was affirmed by an equally divided Court. Since those closely
divided decisions, more intensive efforts at all levels of government to contain and
eliminate urban blight have led to increasing use of such inspection techniques, while
numerous decisions of this Court have more fully defined the Fourth Amendment's
effect on state and municipal action. E.g., Mapp v. Ohio, 367 U. S. 643; Ker v.
California, 374 U. S. 23. In view of the growing nationwide importance of the problem,
we noted probable jurisdiction in this case and in See v. City of Seattle, post, p. 387 U.
S. 541, to reexamine whether administrative inspection programs, as presently
authorized and conducted, violate Fourth Amendment rights as those rights are
enforced against the States through the Fourteenth Amendment. 385 U.S. 808.

Appellant brought this action in a California Superior Court alleging that he was awaiting
trial on a criminal charge of violating the San Francisco Housing Code by refusing to
permit a warrantless inspection of his residence, and that a writ of prohibition should
issue to the criminal court because the ordinance authorizing such inspections is
unconstitutional on its face. The Superior Court denied the writ, the District Court of
Appeal affirmed, and the Supreme Court of California denied a petition for hearing.
Appellant properly raised and had considered by the California courts the federal
constitutional questions he now presents to this Court.

Though there were no judicial findings of fact in this prohibition proceeding, we shall set
forth the parties' factual allegations. On November 6, 1963, an inspector

Page 387 U. S. 526

of the Division of Housing Inspection of the San Francisco Department of Public Health
entered an apartment building to make a routine annual inspection for possible
violations of the city's Housing Code. [Footnote 1] The building's manager informed the
inspector that appellant, lessee of the ground floor, was using the rear of his leasehold
as a personal residence. Claiming that the building's occupancy permit did not allow
residential use of the ground floor, the inspector confronted appellant and demanded
that he permit an inspection of the premises. Appellant refused to allow the inspection
because the inspector lacked a search warrant.

The inspector returned on November 8, again without a warrant, and appellant again
refused to allow an inspection. A citation was then mailed ordering appellant to appear
at the district attorney's office. When appellant failed to appear, two inspectors returned
to his apartment on November 22. They informed appellant that he was required by law
to permit an inspection under 503 of the Housing Code:

"Sec. 503 RIGHT TO ENTER BUILDING. Authorized employees of the City departments
or City agencies, so far as may be necessary for the performance of their duties, shall,
upon presentation of proper credentials, have the right to enter, at reasonable times,
any building, structure, or premises in the City to perform any duty imposed upon them
by the Municipal Code. "

Page 387 U. S. 527

Appellant nevertheless refused the inspectors access to his apartment without a search
warrant. Thereafter, a complaint was filed charging him with refusing to permit a lawful
inspection in violation of 507 of the Code. [Footnote 2] Appellant was arrested on
December 2 and released on bail. When his demurrer to the criminal complaint was
denied, appellant filed this petition for a writ of prohibition.

Appellant has argued throughout this litigation that 503 is contrary to the Fourth and
Fourteenth Amendments in that it authorizes municipal officials to enter a private
dwelling without a search warrant and without probable cause to believe that a violation
of the Housing Code exists therein. Consequently, appellant contends, he may not be
prosecuted under 507 for refusing to permit an inspection unconstitutionally
authorized by 503. Relying on Frank v. Maryland, Eaton v. Price, and decisions in
other States, [Footnote 3] the District

Page 387 U. S. 528

Court of Appeal held that 503 does not violate Fourth Amendment rights because it

"is part of a regulatory scheme which is essentially civil, rather than criminal in nature,
inasmuch as that section creates a right of inspection which is limited in scope and may
not be exercised under unreasonable conditions."

Having concluded that Frank v. Maryland, to the extent that it sanctioned such
warrantless inspections, must be overruled, we reverse.

The Fourth Amendment provides that,

"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 cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized."

The basic purpose of this Amendment, as recognized in countless decisions of this

Court, is to safeguard the privacy and security of individuals against arbitrary invasions
by governmental officials. The Fourth Amendment thus gives concrete expression to a
right of the people which "is basic to a free society." Wolf v. Colorado, 338 U. S. 25, 338
U. S. 27. As such, the Fourth Amendment is enforceable against the States through the
Fourteenth Amendment. Ker v. California, 374 U. S. 23, 374 U. S. 30.

Though there has been general agreement as to the fundamental purpose of the Fourth
Amendment, translation of the abstract prohibition against "unreasonable searches and
seizures" into workable guidelines for the decision of particular cases is a difficult task
which has for many years divided the members of this Court. Nevertheless, one
governing principle, justified by history and by current experience, has consistently been
followed: except in certain carefully defined classes of cases, a search of private
property without proper consent
Page 387 U. S. 529

is "unreasonable" unless it has been authorized by a valid search warrant. See, e.g.,
Stoner v. California, 376 U. S. 483; United States v. Jeffers, 342 U. S. 48; McDonald v.
United States, 335 U. S. 451; Agnello v. United States, 269 U. S. 20. As the Court
explained in Johnson v. United States, 333 U. S. 10, 333 U. S. 14:

"The right of officers to thrust themselves into a home is also a grave concern not only
to the individual, but to a society, which chooses to dwell in reasonable security and
freedom from surveillance. When the right of privacy must reasonably yield to the right
of search is, as a rule, to be decided by a judicial officer, not by a policeman or
government enforcement agent."

In Frank v. Maryland, this Court upheld the conviction of one who refused to permit a
warrantless inspection of private premises for the purposes of locating and abating a
suspected public nuisance. Although Frank can arguably be distinguished from this
case on its facts, [Footnote 4] the Frank opinion has generally been interpreted as
carving out an additional exception to the rule that warrantless searches are
unreasonable under the Fourth Amendment. See Eaton v. Price, supra. The District
Court of Appeal so interpreted Frank in this case, and that ruling is the core of
appellant's challenge here. We proceed to a reexamination of the factors which

Page 387 U. S. 530

persuaded the Frank majority to adopt this construction of the Fourth Amendment's
prohibition against unreasonable searches.

To the Frank majority, municipal fire, health, and housing inspection programs

"touch at most upon the periphery of the important interests safeguarded by the
Fourteenth Amendment's protection against official intrusion,"

359 U.S. at 359 U. S. 367, because the inspections are merely to determine whether
physical conditions exist which do not comply with minimum standards prescribed in
local regulatory ordinances. Since the inspector does not ask that the property owner
open his doors to a search for "evidence of criminal action" which may be used to
secure the owner's criminal conviction, historic interests of "self-protection" jointly
protected by the Fourth and Fifth Amendments [Footnote 5] are said not to be involved,
but only the less intense "right to be secure from intrusion into personal
privacy." Id. at 359 U. S. 365.

We may agree that a routine inspection of the physical condition of private property is a
less hostile intrusion than the typical policeman's search for the fruits and
instrumentalities of crime. For this reason alone, Frank differed from the great bulk of
Fourth Amendment cases which have been considered by this Court. But we cannot
agree that the Fourth Amendment interests at stake in these inspection cases are
merely "peripheral." It is surely anomalous to say that the individual and his private
property are fully protected by the Fourth Amendment only when the individual is
suspected of criminal behavior. [Footnote 6] For instance, even the most law-abiding
citizen

Page 387 U. S. 531

has a very tangible interest in limiting the circumstances under which the sanctity of his
home may be broken by official authority, for the possibility of criminal entry under the
guise of official sanction is a serious threat to personal and family security. And even
accepting Frank's rather remarkable premise, inspections of the kind we are here
considering do, in fact, jeopardize "self-protection" interests of the property owner. Like
most regulatory laws, fire, health, and housing codes are enforced by criminal
processes. In some cities, discovery of a violation by the inspector leads to a criminal
complaint. [Footnote 7] Even in cities where discovery of a violation produces only an
administrative compliance order, [Footnote 8] refusal to comply is a criminal offense,
and the fact of compliance is verified by a second inspection, again without a warrant.
[Footnote 9] Finally, as this case demonstrates, refusal to permit an inspection is itself a
crime, punishable by fine or even by jail sentence.

The Frank majority suggested, and appellee reasserts, two other justifications for
permitting administrative health and safety inspections without a warrant. First, it is
argued that these inspections are "designed to make the least possible demand on the
individual occupant." 359 U.S. at 359 U. S. 367. The ordinances authorizing inspections
are hedged with safeguards, and at any rate the inspector's particular decision to enter
must comply with the constitutional standard of reasonableness even if he may enter
without a warrant. [Footnote 10] In addition, the argument

Page 387 U. S. 532

proceeds, the warrant process could not function effectively in this field. The decision to
inspect an entire municipal area is based upon legislative or administrative assessment
of broad factors such as the area's age and condition. Unless the magistrate is to review
such policy matters, he must issue a "rubber stamp" warrant which provides no
protection at all to the property owner.

In our opinion, these arguments unduly discount the purposes behind the warrant
machinery contemplated by the Fourth Amendment. Under the present system, when
the inspector demands entry, the occupant has no way of knowing whether enforcement
of the municipal code involved requires inspection of his premises, no way of knowing
the lawful limits of the inspector's power to search, and no way of knowing whether the
inspector himself is acting under proper authorization. These are questions which may
be reviewed by a neutral magistrate without any reassessment of the basic agency
decision to canvass an area. Yet only by refusing entry and risking a criminal conviction
can the occupant at present challenge the inspector's decision to search. And even if
the occupant possesses sufficient fortitude to take this risk, as appellant did here, he
may never learn any more about the reason for the inspection than that the law
generally allows housing inspectors to gain entry. The practical effect of this system is to
leave the occupant subject to the discretion of the official in the field. This is precisely
the discretion to invade private property which we have consistently circumscribed by a
requirement that a disinterested party warrant the need to

Page 387 U. S. 533

search. See cases cited p. 387 U. S. 529 supra. We simply cannot say that the
protections provided by the warrant procedure are not needed in this context; broad
statutory safeguards are no substitute for individualized review, particularly when those
safeguards may only be invoked at the risk of a criminal penalty.

The final justification suggested for warrantless administrative searches is that the
public interest demands such a rule: it is vigorously argued that the health and safety of
entire urban populations is dependent upon enforcement of minimum fire, housing, and
sanitation standards, and that the only effective means of enforcing such codes is by
routine systematized inspection of all physical structures. Of course, in applying any
reasonableness standard, including one of constitutional dimension, an argument that
the public interest demands a particular rule must receive careful consideration. But we
think this argument misses the mark. The question is not, at this stage, at least, whether
these inspections may be made, but whether they may be made without a warrant. For
example, to say that gambling raids may not be made at the discretion of the police
without a warrant is not necessarily to say that gambling raids may never be made. In
assessing whether the public interest demands creation of a general exception to the
Fourth Amendment's warrant requirement, the question is not whether the public
interest justifies the type of search in question, but whether the authority to search
should be evidenced by a warrant, which in turn depends in part upon whether the
burden of obtaining a warrant is likely to frustrate the governmental purpose behind the
search. See Schmerber v. California, 384 U. S. 757, 384 U. S. 770-771. It has nowhere
been urged that fire, health, and housing code inspection programs could not achieve
their goals within the confines of a reasonable search warrant requirement. Thus, we do
not find the public need argument dispositive.

Page 387 U. S. 534

In summary, we hold that administrative searches of the kind at issue here are
significant intrusions upon the interests protected by the Fourth Amendment, that such
searches, when authorized and conducted without a warrant procedure, lack the
traditional safeguards which the Fourth Amendment guarantees to the individual, and
that the reasons put forth in Frank v. Maryland and in other cases for upholding these
warrantless searches are insufficient to justify so substantial a weakening of the Fourth
Amendment's protections. Because of the nature of the municipal programs under
consideration, however, these conclusions must be the beginning, not the end, of our
inquiry. The Frank majority gave recognition to the unique character of these inspection
programs by refusing to require search warrants; to reject that disposition does not
justify ignoring the question whether some other accommodation between public need
and individual rights is essential.

II

The Fourth Amendment provides that, "no Warrants shall issue but upon probable
cause." Borrowing from more typical Fourth Amendment cases, appellant argues not
only that code enforcement inspection programs must be circumscribed by a warrant
procedure, but also that warrants should issue only when the inspector possesses
probable cause to believe that a particular dwelling contains violations of the minimum
standards prescribed by the code being enforced. We disagree.

In cases in which the Fourth Amendment requires that a warrant to search be obtained,
"probable cause" is the standard by which a particular decision to search is tested
against the constitutional mandate of reasonableness. To apply this standard, it is
obviously necessary first to focus upon the governmental interest which allegedly
justifies official intrusion upon the constitutionally protected

Page 387 U. S. 535

interests of the private citizen. For example, in a criminal investigation, the police may
undertake to recover specific stolen or contraband goods. But that public interest would
hardly justify a sweeping search of an entire city conducted in the hope that these
goods might be found. Consequently, a search for these goods, even with a warrant, is
"reasonable" only when there is "probable cause" to believe that they will be uncovered
in a particular dwelling.

Unlike the search pursuant to a criminal investigation, the inspection programs at issue
here are aimed at securing city-wide compliance with minimum physical standards for
private property. The primary governmental interest at stake is to prevent even the
unintentional development of conditions which are hazardous to public health and
safety. Because fires and epidemics may ravage large urban areas, because unsightly
conditions adversely affect the economic values of neighboring structures, numerous
courts have upheld the police power of municipalities to impose and enforce such
minimum standards even upon existing structures. [Footnote 11] In determining whether
a particular inspection is reasonable -- and thus in determining whether there is
probable cause to issue a warrant for that inspection -- the need for the inspection must
be weighed in terms of these reasonable goals of code enforcement.

There is unanimous agreement among those most familiar with this field that the only
effective way to seek universal compliance with the minimum standards required by
municipal codes is through routine periodic

Page 387 U. S. 536

inspections of all structures. [Footnote 12] It is here that the probable cause debate is
focused, for the agency's decision to conduct an area inspection is unavoidably based
on its appraisal of conditions in the area as a whole, not on its knowledge of conditions
in each particular building. Appellee contends that, if the probable cause standard urged
by appellant is adopted, the area inspection will be eliminated as a means of seeking
compliance with code standards, and the reasonable goals of code enforcement will be
dealt a crushing blow.

In meeting this contention, appellant argues, first, that his probable cause standard
would not jeopardize area inspection programs because only a minute portion of the
population will refuse to consent to such inspections, and second, that individual
privacy, in any event, should be given preference to the public interest in conducting
such inspections. The first argument, even if true, is irrelevant to the question whether
the area inspection is reasonable within the meaning of the Fourth Amendment. The
second argument is, in effect, an assertion that the area inspection is an unreasonable
search. Unfortunately, there can be no ready test for determining reasonableness

Page 387 U. S. 537

other than by balancing the need to search against the invasion which the search
entails. But we think that a number of persuasive factors combine to support the
reasonableness of area code enforcement inspections. First, such programs have a
long history of judicial and public acceptance. See Frank v. Maryland, 359 U.S. at 359
U. S. 367-371. Second, the public interest demands that all dangerous conditions be
prevented or abated, yet it is doubtful that any other canvassing technique would
achieve acceptable results. Many such conditions -- faulty wiring is an obvious example
-- are not observable from outside the building, and indeed may not be apparent to the
inexpert occupant himself. Finally, because the inspections are neither personal in
nature nor aimed at the discovery of evidence of crime, they involve a relatively limited
invasion of the urban citizen's privacy. Both the majority and the dissent
in Frank emphatically supported this conclusion:

"Time and experience have forcefully taught that the power to inspect dwelling places,
either as a matter of systematic area-by-area search or, as here, to treat a specific
problem, is of indispensable importance to the maintenance of community health; a
power that would be greatly hobbled by the blanket requirement of the safeguards
necessary for a search of evidence of criminal acts. The need for preventive action is
great, and city after city has seen this need and granted the power of inspection to its
health officials, and these inspections are apparently welcomed by all but an
insignificant few. Certainly the nature of our society has not vitiated the need for
inspections first thought necessary 158 years ago, nor has experience revealed any
abuse or inroad on freedom in meeting this need by means that history and dominant
public opinion have sanctioned."

359 U.S. at 359 U. S. 372.

Page 387 U. S. 538

". . . This is not to suggest that a health official need show the same kind of proof to a
magistrate to obtain a warrant as one must who would search for the fruits or
instrumentalities of crime. Where considerations of health and safety are involved, the
facts that would justify an inference of 'probable cause' to make an inspection are
clearly different from those that would justify such an inference where a criminal
investigation has been undertaken. Experience may show the need for periodic
inspections of certain facilities without a further showing of cause to believe that
substandard conditions dangerous to the public are being maintained. The passage of a
certain period without inspection might of itself be sufficient in a given situation to justify
the issuance of a warrant. The test of 'probable cause' required by the Fourth
Amendment can take into account the nature of the search that is being sought. 359
U.S. at359 U. S. 383 (MR. JUSTICE DOUGLAS, dissenting)."

Having concluded that the area inspection is a "reasonable" search of private property
within the meaning of the Fourth Amendment, it is obvious that "probable cause" to
issue a warrant to inspect must exist if reasonable legislative or administrative
standards for conducting an area inspection are satisfied with respect to a particular
dwelling. Such standards, which will vary with the municipal program being enforced,
may be based upon the passage of time, the nature of the building (e.g., a multi-family
apartment house), or the condition of the entire area, but they will not necessarily
depend upon specific knowledge of the condition of the particular dwelling. It has been
suggested that so to vary the probable cause test from the standard applied in criminal
cases would be to authorize a "synthetic search warrant," and thereby to lessen the
overall protections of the Fourth Amendment. Frank v. Maryland, 359

Page 387 U. S. 539

U.S. at 359 U. S. 373. But we do not agree. The warrant procedure is designed to
guarantee that a decision to search private property is justified by a reasonable
governmental interest. But reasonableness is still the ultimate standard. If a valid public
interest justifies the intrusion contemplated, then there is probable cause to issue a
suitably restricted search warrant. Cf. Oklahoma Press Pub. Co. v. Walling, 327 U. S.
186. Such an approach neither endangers time-honored doctrines applicable to criminal
investigations nor makes a nullity of the probable cause requirement in this area. It
merely gives full recognition to the competing public and private interests here at stake
and, in so doing, best fulfills the historic purpose behind the constitutional right to be
free from unreasonable government invasions of privacy. See Eaton v. Price, 364 U.S.
at 364 U. S. 273-274 (opinion of MR. JUSTICE BRENNAN).

III

Since our holding emphasizes the controlling standard of reasonableness, nothing we

say today is intended to foreclose prompt inspections, even without a warrant, that the
law has traditionally upheld in emergency situations. See North American Cold Storage
Co. v. City of Chicago, 211 U. S. 306 (seizure of unwholesome food); Jacobson v.
Massachusetts, 197 U. S. 11 (compulsory smallpox vaccination); Compagnie Francaise
v. Board of Health, 186 U. S. 380 (health quarantine); Kroplin v. Truax, 119 Ohio St. 610,
165 N.E. 498 (summary destruction of tubercular cattle). On the other hand, in the case
of most routine area inspections, there is no compelling urgency to inspect at a
particular time or on a particular day. Moreover, most citizens allow inspections of their
property without a warrant. Thus, as a practical matter, and in light of the Fourth
Amendment's requirement that a warrant specify the property to be searched, it seems
likely that warrants should normally be sought only after entry is refused unless

Page 387 U. S. 540

there has been a citizen complaint or there is other satisfactory reason for securing
immediate entry. Similarly, the requirement of a warrant procedure does not suggest any
change in what seems to be the prevailing local policy, in most situations, of authorizing
entry, but not entry by force, to inspect.

IV

In this case, appellant has been charged with a crime for his refusal to permit housing
inspectors to enter his leasehold without a warrant. There was no emergency
demanding immediate access; in fact, the inspectors made three trips to the building in
an attempt to obtain appellant's consent to search. Yet no warrant was obtained, and
thus appellant was unable to verify either the need for or the appropriate limits of the
inspection. No doubt, the inspectors entered the public portion of the building with the
consent of the landlord, through the building's manager, but appellee does not contend
that such consent was sufficient to authorize inspection of appellant's premises. Cf.
Stoner v. California, 376 U. S. 483; Chapman v. United States, 365 U. S.
610; McDonald v. United States, 335 U. S. 451. Assuming the facts to be as the parties
have alleged, we therefore conclude that appellant had a constitutional right to insist
that the inspectors obtain a warrant to search and that appellant may not constitutionally
be convicted for refusing to consent to the inspection. It appears from the opinion of the
District Court of Appeal that, under these circumstances, a writ of prohibition will issue
to the criminal court under California law.

The judgment is vacated, and the case is remanded for further proceedings not
inconsistent with this opinion.

It is so ordered.

[For dissenting opinion of MR. JUSTICE CLARK, see post, p. 387 U. S. 546.]

[Footnote 1]

The inspection was conducted pursuant to 86(3) of the San Francisco Municipal
Code, which provides that apartment house operators shall pay an annual license fee in
part to defray the cost of periodic inspections of their buildings. The inspections are to
be made by the Bureau of Housing Inspection "at least once a year and as often
thereafter as may be deemed necessary." The permit of occupancy, which prescribes
the apartment units which a building may contain, is not issued until the license is
obtained.

[Footnote 2]

"Sec. 507 PENALTY FOR VIOLATION. Any person, the owner or his authorized agent
who violates, disobeys, omits, neglects, or refuses to comply with, or who resists or
opposes the execution of any of the provisions of this Code, or any order of the
Superintendent, the Director of Public Works, or the Director of Public Health made
pursuant to this Code, shall be guilty of a misdemeanor and upon conviction thereof
shall be punished by a fine not exceeding five hundred dollars ($500.00), or by
imprisonment, not exceeding six (6) months or by both such fine and imprisonment,
unless otherwise provided in this Code, and shall be deemed guilty of a separate
offense for every day such violation, disobedience, omission, neglect or refusal shall
continue."

[Footnote 3]

Givner v. State, 210 Md. 484, 124 A.2d 764 (1956); City of St. Louis v. Evans, 337
S.W.2d 948 (Mo.1960); State ex rel. Eaton v. Price, 168 Ohio St. 123, 151 N.E.2d 523
(1958), aff'd by an equally divided Court, 364 U. S. 263 (1960). See also State v.
Rees, 258 Iowa 813, 139 N.W.2d 406 (1966); Commonwealth v. Hadley, 351 Mass. 439,
222 N.E.2d 681 (1966), appeal docketed Jan. 5, 1967, No. 1179, Misc., O.T.
1966; People v. Laverne, 14 N.Y.2d 304, 200 N.E.2d 441 (1964).

[Footnote 4]

In Frank, the Baltimore ordinance required that the health inspector "have cause to
suspect that a nuisance exists in any house, cellar or enclosure" before he could
demand entry without a warrant, a requirement obviously met in Frank because the
inspector observed extreme structural decay and a pile of rodent feces on the
appellant's premises. Section 503 of the San Francisco Housing Code has no such
"cause" requirement, but neither did the Ohio ordinance at issue in Eaton v. Price, a
case which four Justices thought was controlled by Frank. 364 U.S. at 364 U. S.
264, 364 U. S. 265, n. 2 (opinion of MR. JUSTICE BRENNAN).

[Footnote 5]

See Boyd v. United States, 116 U. S. 616. Compare Schmerber v. California, 384 U. S.
757, 384 U. S. 766-772.

[Footnote 6]
See Abel v. United States, 362 U. S. 217, 362 U. S. 254-256 (MR. JUSTICE BRENNAN,
dissenting); District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13, aff'd, 339
U. S. 1.

[Footnote 7]

See New York, N.Y. Administrative Code D26-8.0 (1964).

[Footnote 8]

See Washington, D.C. Housing Regulations 2104.

[Footnote 9]

This is the more prevalent enforcement procedure. See Note, Enforcement of Municipal
Housing Codes, 78 Harv.L.Rev. 801, 813-816.

[Footnote 10]

The San Francisco Code requires that the inspector display proper credentials, that he
inspect "at reasonable times," and that he not obtain entry by force, at least when there
is no emergency. The Baltimore ordinance in Frank required that the inspector "have
cause to suspect that a nuisance exists." Some cities notify residents in advance, by
mail or posted notice, of impending area inspections. State courts upholding these
inspections without warrants have imposed a general reasonableness
requirement. See cases cited, n 3, supra.

[Footnote 11]

See Abbate Bros. v. City of Chicago, 11 Ill.2d 337, 142 N.E.2d 691; City of Louisville v.
Thompson, 339 S.W.2d 869 (Ky.); Adamec v. Post, 273 N.Y. 250, 7 N.E.2d
120; Paquette v. City of Fall River, 338 Mass. 368, 155 N.E.2d 775; Richards v. City of
Columbia, 227 S.C. 538, 88 S.E.2d 683; Boden v. City of Milwaukee, 8 Wis.2d 318, 99
N.W.2d 156.

[Footnote 12]

See Osgood & Zwerner, Rehabilitation and Conservation, 25 Law & Contemp.Prob.
705, 718 and n. 43; Schwartz, Crucial Areas in Administrative Law, 34 Geo.Wash.L.Rev.
401, 423 and n. 93; Comment, Rent Withholding and the Improvement of Substandard
Housing, 53 Calif.L.Rev. 304, 316-317; Note, Enforcement of Municipal Housing Codes,
78 Harv.L.Rev. 801, 807, 851; Note, Municipal Housing Codes, 69 Harv.L.Rev. 1115,
1124-1125. Section 311(a) of the Housing and Urban Development Act of 1965, 79 Stat.
478, 42 U.S. C. 1468 (1964 ed., Supp. I), authorizes grants of federal funds
"to cities, other municipalities, and counties for the purpose of assisting such localities in
carrying out programs of concentrated code enforcement in deteriorated or deteriorating
areas in which such enforcement, together with those public improvements to be
provided by the locality, may be expected to arrest the decline of the area."

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and
seizure under Article 38 of the Labor Code, prohibiting illegal recruitment.

The facts are as follows:

xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in
a sworn statement filed with the Philippine Overseas Employment Administration
(POEA for brevity) charged petitioner Hortencia Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito at

nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay

ayaw ibigay sa akin ng dati kong manager. Horty
Salazar 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang

panloloko sa
iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako.

Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
 hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said

complaint was assigned, sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE

MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON
NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU.
FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to operate
a recruitment agency, public respondent Administrator Tomas D. Achacoso issued his
challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads:

HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have

(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under

existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B.
Espiritu issued an office order designating respondents Atty. Marquez, Atty. Jovencio
Abara and Atty. Ernesto Vistro as members of a team tasked to implement Closure
and Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong
policemen and mediamen Lito Castillo of the People's Journal and Ernie Baluyot of
News Today proceeded to the residence of the petitioner at 615 R.O. Santos St.,
Mandaluyong, Metro Manila. There it was found that petitioner was operating
Hannalie Dance Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into
the premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was
accredited with Moreman Development (Phil.). However, when required to show
 credentials, she was unable to produce any. Inside the studio, the team chanced
upon twelve talent performers practicing a dance number and saw about twenty
more waiting outside, The team confiscated assorted costumes which were duly
receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we
respectfully request that the personal properties seized at her residence last January
26, 1988 be immediately returned on the ground that said seizure was contrary to
law and against the will of the owner thereof. Among our reasons are the following:

1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3, 1987
violates "due process of law" guaranteed under Sec. 1, Art. III, of the
Philippine Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution
which guarantees 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."

3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her consent
and were done with unreasonable force and intimidation, together
with grave abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the Revised Penal
Code.

Unless said personal properties worth around TEN THOUSAND

PESOS (P10,000.00) in all (and which were already due for shipment
to Japan) are returned within twenty-four (24) hours from your receipt
hereof, we shall feel free to take all legal action, civil and criminal, to
protect our client's interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the
instant petition; on even date, POEA filed a criminal complaint against her with the
Pasig Provincial Fiscal, docketed as IS-88-836. 1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be
barred are already fait accompli, thereby making prohibition too late, we consider the petition as one
for certiorari in view of the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest)
under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the
Court's resolution.

Under the new Constitution, which states:

. . . 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. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that
mayors may not exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
rendered functus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "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 person or
things to be seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on the basis
thereof, warrants of arrest or search warrants, may be validly exercised only by
judges, this being evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by law" found in the
counterpart provision of said 1973 Constitution, who, aside from judges, might
conduct preliminary investigations and issue warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be
a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested
in the success of his case. Although his office "is to see that justice is done and not
necessarily to secure the conviction of the person accused," he stands, invariably, as
the accused's adversary and his accuser. To permit him to issue search warrants and
indeed, warrants of arrest, is to make him both judge and jury in his own right, when
he is neither. That makes, to our mind and to that extent, Presidential Decree No.
1936 as amended by Presidential Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential
Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power
to recommend the arrest and detention of any person engaged in illegal
recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of
giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor
arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest
and detention of such non-licensee or non-holder of authority if after proper
investigation it is determined that his activities constitute a danger to national security
and public order or will lead to further exploitation of job-seekers. The Minister shall
order the closure of companies, establishment and entities found to be engaged in
the recruitment of workers for overseas employment, without having been licensed or
authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor
Minister search and seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives
shall have the power to cause the arrest and detention of such non-licensee or non-
holder of authority if after investigation it is determined that his activities constitute a
danger to national security and public order or will lead to further exploitation of job-
seekers. The Minister shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies, establishment and entities found
to be engaged in the recruitment of workers for overseas employment, without
having been licensed or authorized to do so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its
twilight moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare
Article 38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect.

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37
of the Immigration Law. We have ruled that in deportation cases, an arrest (of an undesirable alien)
ordered by the President or his duly authorized representatives, in order to carry out a final decision of
deportation is valid. 10 It is valid, however, because of the recognized supremacy of the Executive in
matters involving foreign affairs. We have held: 11
 xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs.
Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be
exercised by the Chief Executive "when he deems such action necessary for the
peace and domestic tranquility of the nation." Justice Johnson's opinion is that when
the Chief Executive finds that there are aliens whose continued presence in the
country is injurious to the public interest, "he may, even in the absence of express
law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569;
In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is
detrimental to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam
vs. Commissioner of Immigration and the Director of NBI, 104 Phil. 949, 956). 12

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It
(the power to order arrests) can not be made to extend to other cases, like the one at bar. Under the
Constitution, it is the sole domain of the courts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was
validly issued, is clearly in the nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have

(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants
describe the articles sought to be seized in this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment,

typewriters, cabinets, tables, communications/ recording equipment,
tape recorders, dictaphone and the like used and/or connected in the
 printing of the "WE FORUM" newspaper and any and all
documents/communications, letters and facsimile of prints related to
the "WE FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other

publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE

FORUM" and other subversive materials and propaganda, more
particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Parties of Texas, and the
operations of the Community Party in Texas," was declared void by the U.S.
Supreme Court for being too general. In like manner, directions to "seize any
evidence in connection with the violation of SDC 13-3703 or otherwise" have been
held too general, and that portion of a search warrant which authorized the seizure of
any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the crime of conspiracy)" was held to be a
general warrant, and therefore invalid. The description of the articles sought to be
seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in
English history; the era of disaccord between the Tudor Government and the English
Press, when "Officers of the Crown were given roving commissions to search where
they pleased in order to suppress and destroy the literature of dissent both Catholic
and Puritan." Reference herein to such historical episode would not be relevant for it
is not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger to
state security. 14

For the guidance of the bench and the bar, we reaffirm the following principles:
 1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other,
who may issue warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom

the President or the Commissioner of Immigration may order arrested, following a
final order of deportation, for the purpose of deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials
seized as a result of the implementation of Search and Seizure Order No. 1205.

No costs.

SO ORDERED.

G.R. No. L-27392 January 30, 1971

PABLO CATURA and LUZ SALVADOR, petitioners,

vs.
THE COURT OF INDUSTRIAL RELATIONS and CELESTINO TABANIAG, et al., respondents.

Joselito J. de la Rosa for petitioners.

Ernesto Estrella for respondents.

FERNANDO, J.:

It is a novel question that presents itself before this Court in this petition for the review of a resolution
of respondent Court of Industrial Relations. Specifically, it is whether respondent Court, in the
exercise of its power of investigation to assure compliance with the internal labor organization
procedures under Section 17 of the Industrial Peace Act,1 can require a labor organization's "books of
accounts, bank accounts, pass books, union funds, receipts, vouchers and other documents related to
[its] finances" be delivered and deposited with it at the hearing to conduct such investigation in
accordance with a complaint duly filed without the officials of such labor organization, therein named as
respondents and petitioners before us, being heard prior to the issuance of such order. The respondent
Court, first acting through Associate Judge Joaquin M. Salvador and thereafter en banc, upheld its power
to do so. The challenge to such competence sought to be fortified by the allegation of the absence of
procedural due process was rejected. After a careful study of the matter, we cannot say that thereby
respondents Court was in error. We have no reason to reverse.

As set forth in the brief for the petitioners, Pablo Catura and Luz Salvador, the President and
Treasurer, respectively, of the Philippine Virginia Tobacco Administration Employees Association, a
legitimate labor organization duly registered, there was, on December 27, 1966, a complaint against
them under Section 17 filed by the prosecution division of the respondent Court, the principal
complainants being now respondent Celestino Tabaniag as well as other employees constituting
more than ten percent of the entire membership of such labor organization. In the complaint, it was
charged that during the tenure of office of petitioners before us as such President and Treasurer,
they were responsible for "unauthorized disbursement of union funds" with complainants on various
occasions during the latter part of 1966 demanding from them "a full and detailed report of all
financial transaction of the union and to make the book of accounts and other records of the financial
activities of the union open to inspection by the members," only to be met with a refusal on their part
to comply. It was further asserted that the executive board of such labor organization passed a
resolution calling for a general membership meeting so that petitioners could be confronted about
the status of union funds, but then, Pablo Catura, as President, cancelled such meeting. There was
lwph1.t

thereafter a general membership resolution reiterating previous demands "for a full and detailed
report of all financial transactions of the union," but again there was no response, thus compelling
the members to refer the matter to the Department of Labor which duly issued subpoenas for the
presentation of such book of accounts to petitioners without any success. After setting forth that
complainants had exhausted all remedies provided in the union's constitution and by-laws, which
were all unavailing, the complaint sought, after due hearing and judgement, to declare present
petitioners, as respondents, guilty of unfair labor practice under the above provision of the Industrial
Peace Act, for them to cease and desist from further committing such unfair labor practice
complained of, and to render a full and detailed report of all financial transactions of the union as
well as to make the book of accounts and other records of these financial activities open to
inspection by the members.2

Thereafter, on December 28, 1966, respondent Celestino Tabaniag and the other members, as
petitioners in the above complaint before respondents Court, sought an injunction to prevent now
petitioners Pablo Catura who, it turned out, was again elected as President in an election on
November 15, 1966, from taking his oath of office in view of his alleged persistence in the abuse of
his authority in the disbursement of union funds as well as his refusal to make a full and detailed
report of all financial transactions of the union.3

Then came the order of December 29, 1966, by Associate Judge Joaquin M. Salvador which,
instead of granting the injunction sought, limited itself to requiring and directing "personally the
respondents Pablo Catura and Luz Salvador, president and treasurer, respectively, of the Philippine
Virginia Tobacco Administration Employees' Association, to deliver and deposit to this Court all the
said Association's book of accounts, bank accounts, pass books, union funds, receipts, vouchers
and other documents related to the finances of the said labor union at the hearing of this petition on
January 3, 1967 at 9:00 o'clock in the morning. Said respondents are hereby required to comply
strictly with this Order."4 There was a motion for reconsideration on January 2, 1967 by now petitioners
Pablo Catura and Luz Salvador on the ground that they were not heard before such order was issued,
which moreover in their opinion was beyond the power of respondent Court. With Associate Judge
Ansberto P. Paredes dissenting, the order was sustained in a resolution by the Court en banc on February
28, 1967. Hence the present petition filed on April 3, 1967.

The petition was given due course by this Court in a resolution of April 13, 1967 with a preliminary
injunction issued upon petitioners' posting a bond of P2,000.00. Respondents did not take the
trouble of filing an answer within the period expired on June 17, 1967 and petitioners were required
to submit their brief within thirty days under this Court's resolution of July 14, 1967. Such a brief was
duly filed on September 19 of that year. There was no brief for respondents. The case was thus
deemed submitted for decision on October 4, 1968.

In the light of the interpretation to be accorded the applicable legal provisions and after a careful
consideration of the contention that such a power to issue the challenged order cannot be deemed
as possessed by respondent Court which moreover did not accord petitioners procedural due
process, we have reached the conclusion, as set forth at the opening of this opinion, that petitioners
cannot prevail. The order as issued first by Associate Judge Joaquin M. Salvador and thereafter by
respondent Court en banc must be sustained.

1. The controlling provisions of law to the specific situation before this Court concerning the power of
investigation of respondent Court to assure compliance with internal labor organization procedures
with the corresponding authority to investigate to substantiate alleged violations may be found in
paragraphs (b), (h), and (l) of the aforecited Section 17 of the Industrial Peace Act. Thus: "The
members shall be entitled to full and detailed reports from their officers and representatives of all
financial transactions as provided in the constitution and by-laws of the organization." 5 ... "The funds
of the organization shall not be applied for any purpose or object other than those expressly stated in its
constitution or by-laws or those expressly authorized by a resolution of the majority of the member." 6...
"The books of accounts and other records of the financial activities of a legitimate labor organization shall
be open to inspection by any officer or member thereof."7

To repeat, the complaint before respondent Court against petitioners as President and Treasurer of
the union, specifically recited an unauthorized disbursement of union funds as well as the failure to
make a full and detailed report of financial transactions of the union and to make the book of
accounts and other records of its financial activities open to inspection by the members. Clearly, the
matter was deemed serious enough by the prosecutor of respondent Court to call for the exercise of
the statutory power of investigation to substantiate the alleged violation so as to assure that the
rights and conditions of membership in a labor organization as specifically set forth in Section 17 be
respected. All that the challenged order did was to require petitioners, as President and Treasurer of
the labor organization, to "deliver and deposit" with respondent Court all of its book of accounts,
bank accounts, pass books, union funds, receipts, vouchers and other documents related to its
finances at the hearing of the petition before it on January 3, 1967.

On its face, it cannot be said that such a requirement is beyond the statutory power conferred. If it
were otherwise, the specific provisions of law allegedly violated may not be effectively complied with.
The authority to investigate might be rendered futile if respondent Court could be held as having
acted contrary to law. To paraphrase Justice Laurel, the power to investigate, to be conscientious
and rational at the very least, requires an inquiry into existing facts and conditions. The documents
required to be produced constitutes evidence of the most solid character as to whether or not there
was a failure to comply with the mandates of the law. It is not for this Court to whittle down the
authority conferred on administrative agencies to assure the effective administration of a statute, in
this case intended to protect the rights of union members against its officers. The matter was
properly within its cognizance and the means necessary to give it force and effectiveness should be
deemed implied unless the power sought to be exercised is so arbitrary as to trench upon private
rights of petitioners entitled to priority. No such showing has been made; no such showing can be
made. To repeat, there should be no question about the correctness of the order herein challenged.

2. Nor is the validity of the order in question to be impugned by the allegation that there was a denial
of procedural due process. If the books and records sought to be delivered and deposited in court for
examination were the private property of petitioners, perhaps the allegation of the absence of due
process would not be entirely lacking in plausibility. Such is not the case however. The pertinent
section of the Industrial Peace Act makes clear that such books of accounts and other records of the
financial activities are open to inspection by any member of a labor organization. For the court to
require their submission at the hearing of the petition is, as above noted, beyond question, and no
useful purpose would be served by first hearing petitioners before an order to that effect can be
issued. Moreover, since as was shown in the very brief of petitioners, there was a motion for
reconsideration, the absence of any hearing, even if on the assumption purely for argument's sake
that there was such a requirement, has no cured. So it was held by this Court in a recent decision.
Thus: "As far back as 1935, it has already been a settled doctrine that a plea of denial of procedural
due process does not lie where a defect consisting of an absence of notice of hearing was thereafter
cured by the alleged aggrieved party having had the opportunity to be heard on a motion for
reconsideration. 'What the law prohibits is not the absence of previous notice, but the absolute
absence thereof and lack of opportunity to be heard.' There is then no occasion to impute
deprivation of property without due process where the adverse party was heard on a motion for
reconsideration constituting as it does 'sufficient opportunity' for him to inform the Tribunal concerned
of his side of the controversy. As was stated in a recent decision, what 'due process contemplates is
freedom from arbitrariness and what it requires is fairness or justice, the substance rather than the
form being paramount,' the conclusion being that the hearing on a motion for reconsideration meets
the strict requirement of due process."8

WHEREFORE, the petition for certiorari is denied. The writ of preliminary injunction issued under the
resolution of April 13, 1967 is dissolved and declared to be without any further force or effect.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee, Barredo, Villamor
and Makasiar, JJ., concur.

G.R. No. L-29274 November 27, 1975

SEC. QUIRICO P. EVANGELISTA, in his capacity as Secretary of the Presidential Agency on

Reforms and Government Operations, and the PRESIDENTIAL AGENCY ON REFORMS AND
GOVERNMENT OPERATIONS (PARGO), petitioner,
vs.
HON. HILARION U. JARENCIO, as Presiding Judge, Court of First Instance of Manila, Branch
XXIII, and FERNANDO MANALASTAS, Assistant City Public Service Officer of Manila, and
ALL OTHER CITY OFFICIALS AND EMPLOYEES SIMILARLY SITUATED, respondents.

Office of the Solicitor General Antonio P. Barredo, Ist. Assistant Solicitor General Esmeraldo Umali
and Solicitor Bernardo P. Pardo for petitioners.

Gregorio A. Ejercito and Felix C. Chavez for respondents.

MARTIN, J.:

This is an original action for certiorari and prohibition with preliminary injunction, under Rule 65 of the
Rules of Court, seeking to annul and set aside the order of respondent Judge, the Honorable
Hilarion J. Jarencio, Presiding Judge of the Court of First Instance of Manila, dated July 1, 1968, in
Civil Case No. 73305, entitled "Fernando Manalastas vs. Sec. Ramon D. Bagatsing, etc.", which
reads as follows:

IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the
writ of preliminary injunction prayed for by the petitioner [private respondent] be
issued restraining the respondents [petitioners], their agents, representatives,
attorneys and/or other persons acting in their behalf from further issuing subpoenas
in connection with the fact-finding investigations to the petitioner [private respondent]
and from instituting contempt proceedings against the petitioner [private respondent]
under Section 580 of the Revised Administrative Code. (Stress supplied).

Pursuant to his special powers and duties under Section 64 of the Revised Administrative Code, 1 the
President of the Philippines created the Presidential Agency on Reforms and Government Operations
(PARGO) under Executive Order No. 4 of January 7, 1966. 2 Purposedly, he charged the Agency with the
following functions and responsibilities: 3

b. To investigate all activities involving or affecting immoral practices, graft and

corruptions, smuggling (physical or technical), lawlessness, subversion, and all other
activities which are prejudicial to the government and the public interests, and to
submit proper recommendations to the President of the Philippines.

c. To investigate cases of graft and corruption and violations of Republic Acts Nos.
1379 and 3019, and gather necessary evidence to establish prima facie, acts of graft
and acquisition of unlawfully amassed wealth ... .

h. To receive and evaluate, and to conduct fact-finding investigations of sworn

complaints against the acts, conduct or behavior of any public official or employee
and to file and prosecute the proper charges with the appropriate agency.

For a realistic performance of these functions, the President vested in the Agency all the powers of
an investigating committee under Sections 71 and 580 of the Revised Administrative Code, including
the power to summon witnesses by subpoena or subpoena duces tecum, administer oaths, take
testimony or evidence relevant to the investigation. 4

Whereupon, on June 7, 1968, petitioner Quirico Evangelista, as Undersecretary of the Agency,

issued to respondent Fernando Manalastas, then Acting City Public Service Officer of Manila, a
subpoena ad testificandum commanding him "to be and appear as witness at the Office of the
PRESIDENTIAL AGENCY ON REFORMS AND GOVERNMENT OPERATIONS ... then and there to
declare and testify in a certain investigation pending therein."

Instead of obeying the subpoena, respondent Fernando Manalastas filed on June 25, 1968 with the
Court of First Instance of Manila an Amended Petition for prohibition, certiorari and/or injunction with
preliminary injunction and/or restraining order docketed as Civil Case No. 73305 and assailed its
legality.

On July 1, 1968, respondent Judge issued the aforementioned Order:

IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the
writ of preliminary injunction prayed for by the petitioner [private respondent] be
 issued restraining the respondents [petitioners], their agents, representatives,
attorneys and/or other persons acting in their behalf from further issuing subpoenas
in connection with the fact-finding investigations to the petitioner [private respondent]
and from instituting contempt proceedings against the petitioner [private respondent]
under Section 530 of the Revised Administrative Code. (Stress supplied).

Because of this, petitioners 5 elevated the matter direct to Us without a motion for reconsideration
first filed on the fundamental submission that the Order is a patent nullity. 6

As unfurled, the dominant issue in this case is whether the Agency, acting thru its officials, enjoys the
authority to issue subpoenas in its conduct of fact-finding investigations.

It has been essayed that the life blood of the administrative process is the flow of fact, the gathering,
the organization and the analysis of evidence. 7 Investigations are useful for all administrative functions,
not only for rule making, adjudication, and licensing, but also for prosecuting, for supervising and
directing, for determining general policy, for recommending, legislation, and for purposes no more specific
than illuminating obscure areas to find out what if anything should be done. 8 An administrative agency
may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but
also in proceedings whose sole purpose is to obtain information upon which future action of a legislative
or judicial nature may be taken 9 and may require the attendance of witnesses in proceedings of a purely investigatory nature. It
may conduct general inquiries into evils calling for correction, and to report findings to appropriate bodies and make recommendations for
actions. 10

We recognize that in the case before Us, petitioner Agency draws its subpoena power from
Executive Order No. 4, para. 5 which, in an effectuating mood, empowered it to "summon witness,
administer oaths, and take testimony relevant to the investigation" 11 with the authority "to require the
production of documents under a subpoena duces tecum or otherwise, subject in all respects to the same
restrictions and qualifications as apply in judicial proceedings of a similar character." 12 Such subpoena
power operates in extenso to all the functions of the Agency as laid out in the aforequoted sub-
paragraphs (b),(e), and (h). It is not bordered by nor is it merely exercisable, as respondents would have
it, in quasi-judicial or adjudicatory function under sub-paragraph (b). The functions enumerated in all
these sub-paragraphs (b), (e), and (h) interlink or intertwine with one another with the principal aim of
meeting the very purpose of the creation of the Agency, which is to forestall and erode nefarious activities
and anomalies in the civil service. To hold that the subpoena power of the Agency is confined to mere
quasi-judicial or adjudicatory functions would therefore imperil or inactiviate the Agency in its investigatory
functions under
sub-paragraphs (e) and (h). More than that, the enabling authority itself (Executive Order No. 4, para. 5)
fixes no distinction when and in what function should the subpoena power be exercised. Similarly, We see
no reason to depart from the established rule that forbids differentiation when the law itself makes none.

Nor could We impress upon this subpoena power the alleged strictures of a subpoena issued under
the Rules of Court 13 to abridge its application. The seeming proviso in Section 580 of the Revised
Administrative Code that the right to summon witnesses and the authority to require the production of
documents under a subpoena duces tecum or otherwise shall be "subject in all respects to the same
restrictions and qualifications as apply in judicial proceedings of a similar character" cannot be validly
seized upon to require, in respondents' formulation, that, as in a subpoena under the Rules, a specific
case must be pending before a court for hearing or trial and that the hearing or trial must be in connection
with the exercise of the court's judicial or adjudicatory functions 14 before a non-judicial subpoena can be
issued by an administrative agency like petitioner Agency. It must be emphasized, however, that an
administrative subpoena differs in essence from a judicial subpoena. Clearly, what the Rules speaks of is
a judicial subpoena, one procurable from and issuable by a competent court, and not an administrative
subpoena. To an extent, therefore, the "restrictions and qualifications" referred to in Section 580 of the
Revised Administrative Code could mean the restraints against infringement of constitutional rights or
when the subpoena is unreasonable or oppressive and when the relevancy of the books, documents or
things does not appear. 15

Rightly, administrative agencies may enforce subpoenas issued in the course of investigations,
whether or not adjudication is involved, and whether or not probable cause is shown 16 and even
before the issuance of a complaint. 17 It is not necessary, as in the case of a warrant, that a specific
charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough
that the investigation be for a lawfully authorized purpose. 18 The purpose of the subpoena is to discover
evidence, not to prove a pending charge, but upon which to make one if the discovered evidence so
justifies. 19 Its obligation cannot rest on a trial of the value of testimony sought; it is enough that the
proposed investigation be for a lawfully authorized purpose, and that the proposed witness be claimed to
have information that might shed some helpful light. 20 Because judicial power is reluctant if not unable to
summon evidence until it is shown to be relevant to issues on litigations it does not follow that an
administrative agency charged with seeing that the laws are enforced may not have and exercise powers
of original inquiry. The administrative agency has the power of inquisition which is not dependent upon a
case or controversy in order to get evidence, but can investigate merely on suspicion that the law is being
violated or even just because it wants assurance that it is not. When investigative and accusatory duties
are delegated by statute to an administrative body, it, too may take steps to inform itself as to whether
there is probable violation of the law. 21 In sum, it may be stated that a subpoena meets the requirements
for enforcement if the inquiry is (1) within the authority of the agency; (2) the demand is not too indefinite;
and (3) the information is reasonably relevant. 22

There is no doubt that the fact-finding investigations being conducted by the Agency upon sworn
statements implicating certain public officials of the City Government of Manila in anomalous
transactions 23 fall within the Agency's sphere of authority and that the information sought to be elicited
from respondent Fernando Manalastas, of which he is claimed to be in possession, 24 is reasonably
relevant to the investigations.

We are mindful that the privilege against self-incrimination extends in administrative investigations,
generally, in scope similar to adversary proceedings. 25 In Cabal v. Kapunan, Jr., 26 the Court ruled that
since the administrative charge of unexplained wealth against the respondent therein may result in the
forfeiture of the property under the Anti-Graft and Corrupt Practices Act, a proceeding criminal or penal in
nature, the complainant cannot call the respondent to the witness stand without encroaching upon his
constitutional privilege against self-incrimination. Later, in Pascual, Jr. v. Board of Medical
Examiners, 27 the same approach was followed in the administrative proceedings against a medical
practitioner that could possibly result in the loss of his privilege to practice the medical profession.
Nevertheless, in the present case, We find that respondent Fernando Manalastas is not facing any
administrative charge. 28 He is merely cited as a witness in connection with the fact-finding investigation of
anomalies and irregularities in the City Government of Manila with the object of submitting the assembled
facts to the President of the Philippines or to file the corresponding charges. 29 Since the only purpose of
investigation is to discover facts as a basis of future action, any unnecessary extension of the privilege
would thus be unwise. 30 Anyway, by all means, respondent Fernando Manalastas may contest any
attempt in the investigation that tends to disregard his privilege against self-incrimination.

A question of constitutional dimension is raised by respondents on the inherent power of the

President of the Philippines to issue subpoena. 31 More tersely stated, respondents would now
challenge, in a collateral way, the validity of the basic authority, Executive Order No. 4, as amended in
part by Executive Order No. 88. Unfortunately, for reasons of public policy, the constitutionality of
executive orders, which are commonly said to have the force and effect of statutes 32cannot be collaterally
impeached. 33 Much more when the issue was not duly pleaded in the court below as to be acceptable for
adjudication now. 34 The settled rule is that the Court will not anticipate a question of constitutional law in
advance of the necessity of deciding it. 35

Nothing then appears conclusive than that the disputed subpoena issued by petitioner Quirico
Evangelista to respondent Fernando Manalastas is well within the legal competence of the Agency
to issue.

WHEREFORE, the aforequoted order of respondent Judge, dated July 1, 1968, is hereby set aside
and declared of no force and effect.

Without pronouncement as to costs.

SO ORDERED.

Castro, Antonio, Esguerra, Muoz Palma and Aquino, JJ., concur.

Makalintal, C.J., concurs in the result.

Barredo, Makasiar, and Concepcion, Jr., JJ, took no part.

Separate Opinions

FERNANDO, J., concurring:

The opinion of the Court, ably penned by Justice Martin, is both learned and comprehensive. It
reflects the current state of doctrinal pronouncements in American Administrative Law, which up to
now possesses worth in this jurisdiction. It is in accordance with the views expressed in two
authoritative American treatises that of
Davis 1 and that of Jaffe. 2 The compact but highly useful text of Parker yields the same conclusion. 3 A
similar approach may be discerned in the casebooks of Katz, 4 and McFarland and Vanderbelt. 5 A
concurrence is thus called for. That for me does not conclude matters though. The constitutional rights of
a person who may be involved in such administrative investigation, call for respect. A recognition of the
expanded reach of the administrative process in order to assure that the objectives of a regulatory statute
be attained cannot obscure the protection that the Constitution affords a person who may find himself in
the position of a respondent. It is worthwhile to my mind that there be a reference, even if far from
detailed, to such an aspect. Hence this separate opinion.

1. The right to be protected against unreasonable search and seizure should not fall by the wayside.
6 The broad sweep of the administrative power of investigation cannot, consistently with the
Constitution, go so far as to render it meaningless. It is with such a reading in mind that I view the
pronouncement in United States v. Morton Salt
Co., 7 on which reliance is placed in the opinion of Justice Martin. The doctrine formulated in such
American case by Justice Jackson reads thus: "Of course a governmental investigation into corporate
matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to
exceed the investigatory power. Federal Trade Comm. v. American Tobacco Co., ... . But it is sufficient if
the inquiry is within the authority of the agency, the demand is not too indefinite and the information
sought is reasonably relevant. "The gist of the protection is in the requirement, expressed in terms, that
the disclosure sought shall not be unreasonable."" 8 It has been given approval in an impressive number
of subsequent adjudications. 9 It suffices, however, to call attention to the words of Justice Jackson in the two paragraphs
preceding the excerpts cited to remove any doubt as to its lending itself to the construction that an inroad into the right of search and seizure
is now permissible: "The Commission's order is criticized upon grounds that the order transgresses the Fourth Amendment's proscription of
unreasonable searches and seizures and the Fifth Amendment's due process of law clause. It is unnecessary here to examine the question
of whether a corporation is entitled to the protection of the Fourth Amendment. ... Although the "right to be let alone the most
comprehensive of rights and the right most valued by civilized men," ... is not confined literally to searches and seizures as such, but extends
as well to the orderly taking under compulsion of process, ... neither incorporated nor unincorporated associations can plead an unqualified
right to conduct their affairs in secret. ... While they may and should have protection from unlawful demands made in the name of public
investigation, ... corporations can claim no equality with individuals in the enjoyment of a right to privacy . ... They are endowed with public
attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal
Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced
measure of regulation. ... Even if one were to regard the request for information in this case as caused by nothing more than official curiosity,
nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the
Thus is rendered clear that the landmark Boyd decision which warned against the use of
public interest." 10
the subpoena power to trench upon this guarantee still speaks authoritatively. This Court has spoken to
the same effect, Boyd having been cited in a number of cases. 11 I would, therefore, read the opinion of
my brethren as not departing from but precisely adhering to its command. Whatever relaxation of its
compelling force may be allowable in case of corporations should not apply where an individual is
concerned. That should reassure respondent Manalastas that if he could demonstrate a failure to abide
by the constitutional mandate on search and seizure, he is not without a remedy.

2. Nor can I fully reconcile myself to the implications lurking in this observation in the opinion of the
Court: "Since the only purpose of investigation is to discover facts as a basis of future action, any
unnecessary extension of the privilege would thus be unwise." 12 The right not to incriminate
oneself 13 is equally deserving of the utmost deference and respect. What is more, the present
Constitution by the adoption of the Miranda doctrine has vitalized it even further. 14There is, happily, the
last sentence of such paragraph: "Anyway, by all means, respondent Fernando Manalastas may contest
any attempt in the investigation that tends to disregard his privilege against self-
incrimination." 15 When read in connection with the earlier reference to the fact that the respondent is
called as a witness not as the party proceeded against, it cannot be said, in the light of the ruling
in Planas v. Gil, 16 that it offends against this constitutional guarantee. As of now then, with the question of
any modification of the Planas doctrine not being properly before us, I can yield my concurrence. Candor
compels the statement, however, that for me a reexamination of such a pronouncement is desirable. A
distinction between a witness and a respondent may be too tenuous if the realities of the situation be fully
considered. I am bothered by the thought that the force of the Cabal 17 and the Pascual, Jr.
decisions 18may be eroded if the prospective respondent is first called as a witness and is thus compelled
to testify. For the present, it may suffice if I express my misgivings. At any rate, concurrence is not ruled
out in view of the aforementioned caveat in the able opinion of Justice Martin.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the main opinion of Mr. Justice Martin which grants the petition and
sets aside respondent court's order and writ of preliminary injunction of July 1, 1968 and would
therefore require respondent Fernando Manalastas as assistant city public service officer of Manila
(and all other city officials similarly situated) to comply with the PARGO subpoena "to testify to
matters relevant to the investigation of anomalies and sworn statements involving or implicating
certain City officials or other public officers." 1

While the subpoena commands respondent Manalastas to appear as witness before the
PARGO, 2 on the basis whereof the main opinion finds that said respondent "is not facing any
administrative charge" and that "he is merely cited as witness in connection with the fact-finding
investigation of anomalies and irregularities in the City Government of Manila with the object of submitting
the assembled facts to the President of the Philippines or to file the corresponding charges", 3 it is a fact
shown by the very petition at bar itself and its Annexes B and B-1 that respondent Manalastas is in fact
and for all intents and purposes subpoenaed as a respondent or one directly implicated with alleged
bribery and graft in the said sworn statements that concededly as per the petition itself initiated the
PARGO's alleged "fact-finding investigation." 4

Thus Annex B of the petition which is a sworn statement of one Edilberto Arguelles, investigated by
the PARGO on the overpricing of eight steam cleaners sold through him as commission agent to the
City of Manila, sets forth the detailed allegations of said declarant that respondent Manalastas and a
number of other city officials named and unnamed got the lion's share of the overpricing. Annex B-1
of the petition is the sworn statement of one Carlos Montaez with reference to some overpriced
equipment sold by him to the City of Manila wherein he likewise narrated in detail the modus
operandi and specifically named respondent Manalastas and five other officials to whom he
allegedly gave: "due monetary consideration."

All claims of PARGO to the contrary notwithstanding, the very petition and said annexed sworn
statements (which were not shown to respondent judge in spite of his expressly asking for them
during the course of the hearing 5) show that respondent Manalastas (and others similarly situated)
are indeed not merely witnesses but in reality respondents (subject to administrative and criminal
charges.)

Respondent has therefore correctly invoked Cabal vs. Kapunan, 6 wherein the Court through then
Chief Justice Roberto Concepcion held that therein petitioner rightfully refused to take the witness stand
as against the order of the Presidential Committee investigating the complaint against him for alleged
unexplained wealth (since such proceedings were in substance and effect a criminal one and his position
was virtually that of an accused on trial and he therefore had the right to remain silent and invoke the
privilege against self-incrimination in support of a blanket refusal to answer any and all questions) and
ordered the dismissal of the criminal contempt charge against him.

Pascual Jr. vs. Bd. of Examiners 7 is equally in point, wherein the Court sustained the lower court's writ
of injunction against the respondent board's order compelling therein petitioner to take the witness stand
in a malpractice case (wherein he was respondent) in view of the penal nature of the proceedings and the
right of the accused to refuse "not only to answer incriminatory questions, but also to take the witness
stand." 8 The Court therein stressed that "the constitutional guarantee, along with other rights granted an
accused, stands for a belief that while crime should not go unpunished and that the truth must be
revealed, such desirable objectives should not be accomplished according to means or methods
offensive to the high sense of respect accorded the human personality. More and more in line with the
democratic creed, the deference accorded an individual even those suspected of the most heinous crimes
is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the
privilege is the respect a government ... must accord to the dignity and integrity of its citizens."" and that
"while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as
it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal
emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth
Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which
government may not force to surrender to his detriment."

That petitioner's investigation and subpoena against respondent Manalastas were in substance and
effect criminal in nature against him as a respondent (and not merely as witness) as indicated
above, is borne out by the fact of record in Sugay vs. Pamaran 9 (of which the Court can well take judicial notice)
that on July 22, 1971 respondent Manalastas as well as Carlos Montaez the trader (affiant in Annex B-1, petition, supra, 10) and a
number of other city officials were charged by the city fiscal in the Circuit Criminal Court of Manila for
violations of Republic Act 3019 (Anti-Graft Law) in connection with the alleged gross overpricing of the
same equipment (steam cleaners and air compressor) purchased for the City.

The main opinion's justification for upholding the subpoena, viz, that "since the only purpose of
investigation is to discover facts as a basis of future action, any unnecessary extension of the
privilege (against self-incrimination)would thus be unnecessary" 11 thus appears to be flawed in fact
and in law: respondent was in fact being investigated as respondent-suspect and without submitting to the
investigation was actually criminally charged in court; as a pure matter of legal principle, the 1973
Constitution has recognized the necessity of strengthening (and extending) the privilege against self-
incrimination by expressly providing as a constitutional mandate in the Bill of Rights that "Any person
under investigation for the commission of an offense shall have the right to remain silent and to counsel,
and to be informed of such right" (Article IV, section 20) and outlawing the use of any confession obtained
in violation of said section by declaring its inadmissibility in evidence.

Respondent Manalastas was therefore justified in invoking the privilege against self-incrimination
and in securing the respondent court's injunction against enforcement of petitioner's subpoena.
Respondent was unquestionably a party respondent who under the doctrine
of Cabal and Pascual, supra, had the right to remain silent and invoke the privilege against self-
incrimination and refuse to take the witness stand. This legal and constitutional right may not be
defeated by the transparent expedient of citing respondent as a supposed witness in what was
avowed to be a general fact-finding investigation but obviously was a fishing expedition to ensnare
respondent as a prime suspect, as borne out by the sworn statements withheld from respondent
court and now annexed to the very petition at bar and petitioner's contention that "In effect, the
injunction issued by the lower court is one to restrain criminal prosecutions." This contention has of
course been proven baseless by the events already cited above that such criminal prosecutions
were in fact filed in court against respondent and others without the need of petitioner's "fact-finding
investigation" and subpoenas.

The thrust of all this is that the State with its overwhelming and vast powers and resources can and
must ferret out and investigate wrongdoing, graft and corruption and at the same time respect the
constitutional guarantees of the individual's right to privacy, silence and due process and against
self-incrimination and unreasonable search and seizure. This means that leads and charges must be
investigated and followed up through the assistance of the corresponding police and law
enforcement agencies as provided in the petitioner's executive charter 12 and the evidence secured by
proper applications for search warrants, and as conceded in the petition itself, after the corresponding
report to the President "to file the corresponding charges against the persons who may appear
responsible or merely refer them to other appropriate offices such as the Fiscal's office, like what was
done in other cases." 13

There appears to be validity in respondent's contention that the subpoena power granted petitioner
in its executive charter does not apply to general fact-finding investigations conducted by it. 14 I find
no need, however, of going further into this issue, since this dissent is based directly on the fundamental
tenet that respondent Manalastas was unquestionably being investigated by petitioner as respondent and
a prime suspect (and not as a mere witness) and accordingly, under settled doctrine, he had every right to
remain silent and to invoke his right against self-incrimination and to refuse to take the witness stand.

I therefore vote for upholding respondent court's injunction against enforcement of petitioner's
subpoena.

Separate Opinions

FERNANDO, J., concurring:

The opinion of the Court, ably penned by Justice Martin, is both learned and comprehensive. It
reflects the current state of doctrinal pronouncements in American Administrative Law, which up to
now possesses worth in this jurisdiction. It is in accordance with the views expressed in two
authoritative American treatises that of
Davis 1 and that of Jaffe. 2 The compact but highly useful text of Parker yields the same conclusion. 3 A
similar approach may be discerned in the casebooks of Katz, 4 and McFarland and Vanderbelt. 5 A
concurrence is thus called for. That for me does not conclude matters though. The constitutional rights of
a person who may be involved in such administrative investigation, call for respect. A recognition of the
expanded reach of the administrative process in order to assure that the objectives of a regulatory statute
be attained cannot obscure the protection that the Constitution affords a person who may find himself in
the position of a respondent. It is worthwhile to my mind that there be a reference, even if far from
detailed, to such an aspect. Hence this separate opinion.

1. The right to be protected against unreasonable search and seizure should not fall by the wayside.
6 The broad sweep of the administrative power of investigation cannot, consistently with the
Constitution, go so far as to render it meaningless. It is with such a reading in mind that I view the
pronouncement in United States v. Morton Salt
Co., 7 on which reliance is placed in the opinion of Justice Martin. The doctrine formulated in such
American case by Justice Jackson reads thus: "Of course a governmental investigation into corporate
matters may be of such a sweeping nature and so unrelated to the matter properly under inquiry as to
exceed the investigatory power. Federal Trade Comm. v. American Tobacco Co., ... . But it is sufficient if
the inquiry is within the authority of the agency, the demand is not too indefinite and the information
sought is reasonably relevant. "The gist of the protection is in the requirement, expressed in terms, that
the disclosure sought shall not be unreasonable."" 8 It has been given approval in an impressive number
of subsequent adjudications. 9 It suffices, however, to call attention to the words of Justice Jackson in the two paragraphs
preceding the excerpts cited to remove any doubt as to its lending itself to the construction that an inroad into the right of search and seizure
is now permissible: "The Commission's order is criticized upon grounds that the order transgresses the Fourth Amendment's proscription of
unreasonable searches and seizures and the Fifth Amendment's due process of law clause. It is unnecessary here to examine the question
of whether a corporation is entitled to the protection of the Fourth Amendment. ... Although the "right to be let alone the most
comprehensive of rights and the right most valued by civilized men," ... is not confined literally to searches and seizures as such, but extends
as well to the orderly taking under compulsion of process, ... neither incorporated nor unincorporated associations can plead an unqualified
right to conduct their affairs in secret. ... While they may and should have protection from unlawful demands made in the name of public
investigation, ... corporations can claim no equality with individuals in the enjoyment of a right to privacy . ... They are endowed with public
attributes. They have a collective impact upon society, from which they derive the privilege of acting as artificial entities. The Federal
Government allows them the privilege of engaging in interstate commerce. Favors from government often carry with them an enhanced
measure of regulation. ... Even if one were to regard the request for information in this case as caused by nothing more than official curiosity,
nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the
public interest." 10 Thus is rendered clear that the landmark Boyd decision which warned against the use of
the subpoena power to trench upon this guarantee still speaks authoritatively. This Court has spoken to
the same effect, Boyd having been cited in a number of cases. 11 I would, therefore, read the opinion of
my brethren as not departing from but precisely adhering to its command. Whatever relaxation of its
compelling force may be allowable in case of corporations should not apply where an individual is
concerned. That should reassure respondent Manalastas that if he could demonstrate a failure to abide
by the constitutional mandate on search and seizure, he is not without a remedy.

2. Nor can I fully reconcile myself to the implications lurking in this observation in the opinion of the
Court: "Since the only purpose of investigation is to discover facts as a basis of future action, any
unnecessary extension of the privilege would thus be unwise." 12 The right not to incriminate
oneself 13 is equally deserving of the utmost deference and respect. What is more, the present
Constitution by the adoption of the Miranda doctrine has vitalized it even further. 14There is, happily, the
last sentence of such paragraph: "Anyway, by all means, respondent Fernando Manalastas may contest
any attempt in the investigation that tends to disregard his privilege against self-
incrimination." 15 When read in connection with the earlier reference to the fact that the respondent is
called as a witness not as the party proceeded against, it cannot be said, in the light of the ruling
in Planas v. Gil, 16 that it offends against this constitutional guarantee. As of now then, with the question of
any modification of the Planas doctrine not being properly before us, I can yield my concurrence. Candor
compels the statement, however, that for me a reexamination of such a pronouncement is desirable. A
distinction between a witness and a respondent may be too tenuous if the realities of the situation be fully
considered. I am bothered by the thought that the force of the Cabal 17 and the Pascual, Jr.
decisions 18may be eroded if the prospective respondent is first called as a witness and is thus compelled
to testify. For the present, it may suffice if I express my misgivings. At any rate, concurrence is not ruled
out in view of the aforementioned caveat in the able opinion of Justice Martin.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the main opinion of Mr. Justice Martin which grants the petition and
sets aside respondent court's order and writ of preliminary injunction of July 1, 1968 and would
therefore require respondent Fernando Manalastas as assistant city public service officer of Manila
(and all other city officials similarly situated) to comply with the PARGO subpoena "to testify to
matters relevant to the investigation of anomalies and sworn statements involving or implicating
certain City officials or other public officers." 1

While the subpoena commands respondent Manalastas to appear as witness before the
PARGO, 2 on the basis whereof the main opinion finds that said respondent "is not facing any
administrative charge" and that "he is merely cited as witness in connection with the fact-finding
investigation of anomalies and irregularities in the City Government of Manila with the object of submitting
the assembled facts to the President of the Philippines or to file the corresponding charges", 3 it is a fact
shown by the very petition at bar itself and its Annexes B and B-1 that respondent Manalastas is in fact
and for all intents and purposes subpoenaed as a respondent or one directly implicated with alleged
bribery and graft in the said sworn statements that concededly as per the petition itself initiated the
PARGO's alleged "fact-finding investigation." 4

Thus Annex B of the petition which is a sworn statement of one Edilberto Arguelles, investigated by
the PARGO on the overpricing of eight steam cleaners sold through him as commission agent to the
City of Manila, sets forth the detailed allegations of said declarant that respondent Manalastas and a
number of other city officials named and unnamed got the lion's share of the overpricing. Annex B-1
of the petition is the sworn statement of one Carlos Montaez with reference to some overpriced
equipment sold by him to the City of Manila wherein he likewise narrated in detail the modus
operandi and specifically named respondent Manalastas and five other officials to whom he
allegedly gave: "due monetary consideration."

All claims of PARGO to the contrary notwithstanding, the very petition and said annexed sworn
statements (which were not shown to respondent judge in spite of his expressly asking for them
during the course of the hearing 5) show that respondent Manalastas (and others similarly situated)
are indeed not merely witnesses but in reality respondents (subject to administrative and criminal
charges.)

Respondent has therefore correctly invoked Cabal vs. Kapunan, 6 wherein the Court through then
Chief Justice Roberto Concepcion held that therein petitioner rightfully refused to take the witness stand
as against the order of the Presidential Committee investigating the complaint against him for alleged
unexplained wealth (since such proceedings were in substance and effect a criminal one and his position
was virtually that of an accused on trial and he therefore had the right to remain silent and invoke the
privilege against self-incrimination in support of a blanket refusal to answer any and all questions) and
ordered the dismissal of the criminal contempt charge against him.

Pascual Jr. vs. Bd. of Examiners 7 is equally in point, wherein the Court sustained the lower court's writ
of injunction against the respondent board's order compelling therein petitioner to take the witness stand
in a malpractice case (wherein he was respondent) in view of the penal nature of the proceedings and the
right of the accused to refuse "not only to answer incriminatory questions, but also to take the witness
stand." 8 The Court therein stressed that "the constitutional guarantee, along with other rights granted an
accused, stands for a belief that while crime should not go unpunished and that the truth must be
revealed, such desirable objectives should not be accomplished according to means or methods
offensive to the high sense of respect accorded the human personality. More and more in line with the
democratic creed, the deference accorded an individual even those suspected of the most heinous crimes
is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the
privilege is the respect a government ... must accord to the dignity and integrity of its citizens."" and that
"while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as
it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal
emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth
Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which
government may not force to surrender to his detriment."

That petitioner's investigation and subpoena against respondent Manalastas were in substance and
effect criminal in nature against him as a respondent (and not merely as witness) as indicated
above, is borne out by the fact of record in Sugay vs. Pamaran 9 (of which the Court can well take judicial notice)
that on July 22, 1971 respondent Manalastas as well as Carlos Montaez the trader (affiant in Annex B-1, petition, supra, 10) and a
number of other city officials were charged by the city fiscal in the Circuit Criminal Court of Manila for
violations of Republic Act 3019 (Anti-Graft Law) in connection with the alleged gross overpricing of the
same equipment (steam cleaners and air compressor) purchased for the City.

The main opinion's justification for upholding the subpoena, viz, that "since the only purpose of
investigation is to discover facts as a basis of future action, any unnecessary extension of the
privilege (against self-incrimination)would thus be unnecessary" 11 thus appears to be flawed in fact
and in law: respondent was in fact being investigated as respondent-suspect and without submitting to the
investigation was actually criminally charged in court; as a pure matter of legal principle, the 1973
Constitution has recognized the necessity of strengthening (and extending) the privilege against self-
incrimination by expressly providing as a constitutional mandate in the Bill of Rights that "Any person
under investigation for the commission of an offense shall have the right to remain silent and to counsel,
and to be informed of such right" (Article IV, section 20) and outlawing the use of any confession obtained
in violation of said section by declaring its inadmissibility in evidence.

Respondent Manalastas was therefore justified in invoking the privilege against self-incrimination
and in securing the respondent court's injunction against enforcement of petitioner's subpoena.
Respondent was unquestionably a party respondent who under the doctrine
of Cabal and Pascual, supra, had the right to remain silent and invoke the privilege against self-
incrimination and refuse to take the witness stand. This legal and constitutional right may not be
defeated by the transparent expedient of citing respondent as a supposed witness in what was
avowed to be a general fact-finding investigation but obviously was a fishing expedition to ensnare
respondent as a prime suspect, as borne out by the sworn statements withheld from respondent
court and now annexed to the very petition at bar and petitioner's contention that "In effect, the
injunction issued by the lower court is one to restrain criminal prosecutions." This contention has of
course been proven baseless by the events already cited above that such criminal prosecutions
were in fact filed in court against respondent and others without the need of petitioner's "fact-finding
investigation" and subpoenas.

The thrust of all this is that the State with its overwhelming and vast powers and resources can and
must ferret out and investigate wrongdoing, graft and corruption and at the same time respect the
constitutional guarantees of the individual's right to privacy, silence and due process and against
self-incrimination and unreasonable search and seizure. This means that leads and charges must be
investigated and followed up through the assistance of the corresponding police and law
enforcement agencies as provided in the petitioner's executive charter 12 and the evidence secured by
proper applications for search warrants, and as conceded in the petition itself, after the corresponding
report to the President "to file the corresponding charges against the persons who may appear
responsible or merely refer them to other appropriate offices such as the Fiscal's office, like what was
done in other cases." 13

There appears to be validity in respondent's contention that the subpoena power granted petitioner
in its executive charter does not apply to general fact-finding investigations conducted by it. 14 I find
no need, however, of going further into this issue, since this dissent is based directly on the fundamental
tenet that respondent Manalastas was unquestionably being investigated by petitioner as respondent and
a prime suspect (and not as a mere witness) and accordingly, under settled doctrine, he had every right to
remain silent and to invoke his right against self-incrimination and to refuse to take the witness stand.

I therefore vote for upholding respondent court's injunction against enforcement of petitioner's
subpoena.

OFFICE OF THE COURT A.M. No. P-04-1830

ADMINISTRATOR, [Formerly A.M. No. 04-6-151-MCTC]
Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
- versus - CORONA,
CARPIO MORALES,*
CHICO-NAZARIO,*
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, and
SYLVIA CANQUE, Clerk of Court, BERSAMIN, JJ.
12th MCTC, Moalboal-Badian-
Alcantara-Alegria, Cebu, Promulgated:
Respondent.
June 4, 2009
x-------------------------------------------------x

DECISION

Per Curiam:

The instant case stemmed from the Investigation Report of the National Bureau of
Investigation (NBI)-Region VII on the entrapment operation on Sylvia R. Canque,
Clerk of Court, 12th Municipal Circuit Trial Court (MCTC), Moalboal-Badian-
Alcantara-Alegria, Cebu.
The Investigation Report showed that on June 1, 2004, Marissa Y. Ypanto of
Barangay Polo, Alcantara, Cebu filed a letter-complaint before the NBI alleging
that Canque asked from her the amount of Forty Thousand (P40,000.00) Pesos in
exchange for the release of the formers common-law husband, Jovencio Patoc, and
the dismissal of his criminal cases in court. Patoc was charged with violation of
Republic Act No. 9165 before the sala of Judge Victor R. Teves of the said court.

The NBI operatives conducted an entrapment operation on June 3, 2004 at

about 9:30 A.M. in the sala of Judge Teves. They arrested Canque after she
received the amount of P40,000.00, previously marked with invisible ink and
dusted with fluorescent powder, from Ypanto in the presence of NBI Investigator
Jedidah S. Hife. Canque was brought to the Forensic Chemistry Section of the NBI
for laboratory examination. Forensic Chemist Rommel D. Paglinawan, in his
Physics Report,[1]found that the right and left hands of Canque were positive for the
presence of fluorescent powder.
The NBI report further stated that prior to the entrapment, Patocs mother had
already given the amount of Twenty Thousand (P20,000.00) Pesos to Canque in
the presence of Ypanto for the dismissal of Patocs first case for possession of shabu
on November 30, 2003. The case remains pending to date.
In a letter dated June 3, 2004, Atty. Reynaldo O. Esmeralda, Acting Regional
Director, NBI-Region VII, endorsed to the Deputy Ombudsman for the Visayas the
case of Canque for immediate inquest. Thereafter, Informations for direct bribery
and violation of Sec. 3 (b) of Republic Act No. 3019, as amended, were filed in the
Regional Trial Court (RTC) of Barili, Cebu and were docketed as Criminal Case
Nos. CEB-BRL-1058 and CEB-BRL-1057, respectively.
In November 2003, Auditors from Region VII, Cebu City, conducted the
periodic audit on the cash and accounts of accountable officers of the provinces of
Cebu, Bohol and Negros Oriental. After the audit of the cash and accounts of
Canque, the Auditors found that she had a cash shortage of P304,985.00. A letter of
demand[2] was sent to her to produce the missing funds and to submit a written
explanation within seventy-two (72) hours why the shortage occurred.
On August 3, 2004, the office of the Cluster Director, Commission on
Audit, Quezon City received the initial report on the result of the examination of
the cash and accounts of Canque.[3] Attached to said report were the chronological
statements on the events that transpired in the course of the audit submitted by Ma.
Violeta Lucila T. Luta, State Auditor II, Team Leader. On August 6, 2004, the
Supervising Auditor forwarded to the Office of the Chief Justice the initial report
on the results of the investigation conducted on the cash and accounts of Canque.
The initial report stated that Canque had a shortage in her cash collection
amounting to P304,985.00 and recommended her immediate relief from her
position and any other position involving money or property accountability.[4]
In a Resolution dated June 29, 2004, the Court treated the NBI entrapment
on Canque as an administrative complaint for grave misconduct and directed her to
comment thereon. She was immediately placed under suspension until further
orders by the Court. The case was referred to a Consultant of the Office of the
Court Administrator (OCA) for investigation, report and recommendation.

In her Comment,[5] Canque claimed that sometime in November 2003,

Rebecca Patoc came to her office to inquire about the bail for her son, Jovencio.
When she learned from the judge that the bail was P200,000.00, but that it could be
reduced to P100,000.00 if there was no objection from the Chief of Police,
Rebecca came back two (2) days later with a Motion for Reduction of Bail. After
two weeks, Rebecca came with Ypanto. Canque instructed them to proceed to a
bonding company in Barili. She alleged that at Shamrock Restaurant, Rebecca
gave P20,000.00 as premium payment for the bail bond to a certain Ote Erojo, who
in turn delivered to Rebecca a copy of the Release Order, promising to send her the
bond undertaking by mail. On December 8, 2003, Jovencio and Ypanto brought the
surety bond to Canque at the latters office.
In May 2004, another case for drug pushing was filed against Jovencio.
Canque admits to seeing Ypanto only on two (2) occasions: during the preliminary
investigation on May 24 and on May 31 when Ypanto asked her when the ten-day
period for the filing of Jovencios Counter-Affidavit would expire.
Canque further averred that on June 3, 2004, the last day for the filing of the
Counter-Affidavit, Ypanto came with a woman who introduced herself as
Jovencios sister who had just arrived from Holland. The woman got an envelope
from her bag and handed it to Ypanto. Ypanto tried to give it to Canque, but the
latter did not touch it when she saw that it was not the Counter-Affidavit. The
woman allegedly got the envelope from Ypanto and tried to place it at the back of
the palm of Canque where it lightly touched her skin. The woman then showed her
ID and told Canque that she was an NBI agent. Other NBI agents rushed in and
arrested Canque.

In a Resolution dated November 9, 2004, the Court, upon the

recommendation of the OCA, reassigned the case to the Executive Judge,
RTC, Cebu City for investigation, report and recommendation, considering that all
the persons concerned were residents of Cebu City.

Executive Judge Simeon P. Dumdum, Jr. conducted a hearing on October 18,

2005, attended by Canque, NBI agents Gregorio Algoso, Jr., Reynaldo Villordon
and Jedidah Hife. The notice sent to Ypanto was returned with the information that
she had died.
The Investigation Report[6] states, viz.:
Jedidah S. Hife, a special investigator of the National Bureau of
Investigation Central Visayas Regional Office, identified her Affidavit,
dated June 3, 2004.

In that Affidavit, Hife declared that on June 3, 2004, at about 9

oclock in the morning of June 3, 2004, at the office of the Municipal
Circuit Trial Court, Moalboal-Badian-Alcantara-Alegria, Cebu, she and
other NBI agents arrested Sylvia Canque in an entrapment operation.

She had been instructed to accompany Marissa Ypanto, pretending

to be her friend, and to give a pre-arranged signal to other NBI agents at
the proper time.

Thus, she and Marissa Ypanto had entered a room inside the
courtroom, and there Marissa introduced her to Sylvia Canque as her
friend. Marissa had brought with her marked money in the amount
of P40,000.00, for which Sylvia had asked from her in exchange for the
dismissal of a case for violation of RA 9165 against Jovencio Patoc, and
eventually the release of the latter.

Sylvia Canque and Marissa went outside. Hife followed and

overheard Sylvia tell Marissa that the money was for the fiscal. Sylvia
showed them a Joint Affidavit executed by PO1 Jeremias Geromo and
PO3 Estanislao Avenido, the police officers who had arrested Jovencio.

They returned inside the courtroom. Sylvia Canque asked Marissa

how much money she had. Marissa said that she was
carrying P50,000.00, and gave the envelope to Canque, who
wrote P50,000.00 on it. The latter put the envelope inside her bag, and
got it out, and put it in again she seemed undecided, and then she again
asked Marissa how much the envelope contained. Marissa suggested that
she count the money.
While Sylvia was counting the money, Hife gave the pre-arranged
signal. NBI agents Reynaldo Villordon and Michael Angelo Abarico
entered the courtroom followed by other agents, accosted Sylvia Canque
and recovered from her the marked money amounting to P40,000.00.
Thereupon, they put Canque under arrest and informed her of her
Constitutional rights.
 At the NBI office, laboratory examination found Sylvia Canque
positive for fluorescent powder. She was then booked and fingerprinted.
NBI agents Gregorio Y. Algoso, Jr. and Reynaldo C. Villordon
identified and confirmed the allegations in the Joint Affidavit which they
executed on June 3, 2004.

On June 1, 2004, their office received a letter from a Jonald

Ungab, concerning a certain Marissa Ypanto of Brgy. Polo, Alcantara,
Cebu, who had complained about Sylvia R. Canque, Clerk of Court of
the 12th Municipal Circuit Trial Court of Moalboal-Basian-Alcantara-
Alegria, who had asked from her the amount of P40,000.00 in exchange
for the release of her common-law husband, Jovencio Patoc, and the
dismissal of the case filed against him, which was then being heard in
the sala of Judge Victor R. Teves.

In accordance with their plan to entrap Sylvia Canque, Jedidah

accompanied Marissa Ypanto, who introduced Jedidah to Sylvia Canque
as a friend. Marked money prepared by the Forensic Chemistry Section
of the NBI, consisting of six five-hundred-peso bills, in the total amount
of P40,000.00, had been given to Ypanto, who was to hand it to Sylvia
Canque. When the transaction was done, and Jedidah had given the pre-
arranged signal indicating that the money had been received by Sylvia
Canque, they immediately went inside the office of Sylvia Canque,
introduced themselves and arrested her. They brought Sylvia Canque to
the NBI office to be examined for the presence of fluorescent powder on
her hands, booked, photographed and fingerprinted.

Villordon added that, being just nearby, he saw Marissa give the
money to Sylvia Canque, who counted it. At this point, Jedidah gave the
pre-arranged signal, and the agents went inside. His co-agent Michael
Albarico announced that they were NBI agents. All of which took Sylvia
Canque by surprise.

Physics Report No. 04-P-3306, dated June 3, 2004, of the

Forensic Chemistry Section of the National Bureau of Investigation
states that the examination conducted on June 3, 2004, at 12:30 p.m.
revealed that the left and right hands of Sylvia Canque bore the presence
of yellow fluorescent powder.

For her part, Sylvia Canque identified and confirmed the

allegations she made in her Comment, dated July 21, 2004, adding
nothing to the same.
 Still and all, Canque insisted that it was Jedidah who put the
envelope on her forearm, and that she did not count the money inside it.
In fact, it was NBI Director Esmeralda who counted the money in his
office. Until then the envelope was unopened. She denied having
written P50,000.00 on the envelope.

Findings

Canque admitted that an entrapment operation was conducted on

her. Laboratory tests found her hands positive for the presence of
fluorescent powder. But Canque denied touching the money herself,
claiming that it was Jedidah Hife who put the envelope on the back of
her palm. But if the envelope were (sic) just put on her forearm, and
what was dusted with fluorescent powder was the money, which was
inside the envelope, why were Canques hands found positive for the
presence of the powder?

The undersigned gives credence to the testimony of the NBI

agents, which was coherent, and given in a forthright manner. No ulterior
motive to lie could be ascribed to the agents. Thus, the undersigned finds
the facts to be as narrated by the agents. [7]

The Investigating Judge found respondent Canque guilty of grave

misconduct and recommended the penalty of dismissal, with forfeiture of all her
benefits and disqualification from re-employment in the government service.
In a Resolution dated February 7, 2006, the Court referred the Investigation
Report to the OCA for evaluation, report and recommendation.
In its Report dated June 13, 2006, the OCA recommended that the
Investigation Report of Investigating Judge Dumdum be set aside and the
complaint be investigated anew upon finding that Canque was not informed of her
right to be heard by herself and counsel during the investigation which allegedly
amounted to a denial of her right to due process; and for the Audit Report of
Shortage in the amount of P304,985.00 and other actuations and deficiencies of
respondent Canque to be set in the next En Banc Agenda.
On September 5, 2006, the Court issued a Resolution requiring respondent
to file a Comment, within a non-extendible period of ten days from notice, on the
Audit Report of the COA finding a shortage in her cash collection amounting
to P304,985.00. Respondent failed to comment. Thus, in an En Banc Resolution
dated December 4, 2007, the Court considered respondent to have waived her right
to file Comment and referred, for the second time, the matter to the Office of the
Court Administrator for evaluation, report and recommendation.

In a Memorandum dated July 23, 2008, the Office of the Court

Administrator found Canque liable for gross neglect of duty, gross dishonesty and
grave misconduct and recommended her dismissal from the service with forfeiture
of retirement and other benefits, except accrued leave credits, and with prejudice to
re-employment in any government office or instrumentality, including government-
owned and controlled corporations. It further recommended that she be ordered to
restitute the amount of P304,985.00 representing the shortage in the collection of
court funds.

We agree with the findings and recommendation of the Office of the Court
Administrator.

Grave misconduct is a malevolent transgression of some established and

definite rule of action more particularly, unlawful behavior or gross negligence by
the public officer or employee which threatens the very existence of the system of
administration of justice.[8] It manifests itself in corruption, clear intent to violate
the law or flagrant disregard of established rules. [9] It is considered as a grave
offense under the Civil Service Law[10] with the corresponding penalty of dismissal
from the service with forfeiture of retirement benefits, except accrued leave credits,
and perpetual disqualification from re-employment in government service.

In the case at bar, respondent violated Section 2, Canon 1 of the Code of

Conduct for Court Personnel which states that [c]ourt personnel shall not solicit or
accept any gift, favor or benefit on any explicit or implicit understanding that such
gift shall influence their official actions. This is sufficiently established by the
evidence on record. First, respondent was caught red-handed, in a legitimate
entrapment operation, demanding and receiving money from complainant Ypanto
in connection with the immediate release of the latters common-law husband
Jovencio from police custody; and the dismissal of the criminal charges against
him which were pending before the MCTC, Moalboal-Badian-Alcantara-
Alegria, Cebu her official station. While respondent was in the act of counting the
marked money, she was validly placed under arrest and apprised of her
constitutional rights. Second, her hands were found to have smudges of the yellow
fluorescent powder used to mark the bills when her hands were subjected to
ultraviolet light examination. These results of the entrapment operation clearly
establish the guilt of respondent who has merely denied, without support, the
allegations against her.

This is not all.

Respondent likewise failed to observe the standard of behavior required of

clerks of court as the chief administrative officers of their respective courts as
shown by the initial audit report of the COA finding her remiss in the performance
of her administrative duties as clerk of court. These infractions consist of her
failure to update the court cashbook, as well as her failure to explain the missing
collection records[11] for the Fiduciary Fund (FF) and the shortage in her cash
collection amounting to P304,985.00. These acts of respondent are in violation of
her duties and responsibilities as clerk of court in the collection and custody of
legal funds and fees. Clerks of court are responsible for court records and physical
facilities of their respective courts and are accountable for the courts money and
property deposits under Section B, Chapter 1 of the 1991 Manual for Clerks
of Court and the 2002 Revised Manual for Clerks of Court, viz.:
The Clerk of Court has general administrative supervision over all
the personnel of the Court. As regards the Courts funds and revenues,
records, properties and premises, said officer is the custodian. Thus,
the Clerk of Court is generally also the treasurer, accountant, guard and
physical plant manager thereof.

Thus, as custodians of the courts funds, revenues, records, properties and premises,
clerks of court are liable for any loss, shortage, destruction or impairment of the
same.

The cited acts of respondent clearly show her failure to discharge her
functions as clerk of court constituting gross neglect of duty, gross dishonesty and
grave misconduct. Each offense is punishable with dismissal even for the first time
of commission under Section 22 (a), (b) and (c) of Rule XIV of the Omnibus Rules
Implementing Book V of Executive Order No. 292 and Other Pertinent Civil
Service Laws.

We have held time and again that the Court will not hesitate to impose the
stiffest penalty on those who atrociously display serious lack of integrity,
uprightness and honesty demanded of an employee in the judiciary. Neither shall
we tolerate or condone any conduct that would violate the norms of public
accountability and diminish, or even tend to diminish, the faith of the people in the
justice system,[12]as in the case at bar.

Lastly, the Court does not agree with the finding of the Office of the Court
Administrator in its first Report dated June 13, 2006 recommending that the
Investigation Report of Investigating Judge Dumdum be set aside and that the
complaint be investigated anew since Canque was not informed of her right to be
heard by herself and counsel during the investigation an omission allegedly
amounting to a denial of her right to due process. The essence of due process is
that a party be afforded a reasonable opportunity to be heard and to present any
evidence he may have in support of his defense. Technical rules of procedure and
evidence are not strictly applied to administrative proceedings. Thus,
administrative due process cannot be fully equated with due process in its strict
judicial sense.[13] A formal or trial-type hearing is not required.

In the case at bar, despite respondents protestations, the records readily show
that she was afforded the opportunity to present her side as she was directed to file
her comment on the complaint. She was notified of the hearing and was in fact
present during the entire proceedings. As to the issue on the legality of her arrest,
respondent has failed to submit evidence in support of her bare claims.
IN VIEW WHEREOF, respondent Sylvia R. Canque, Clerk of Court,
th
12 MCTC, Moalboal-Badian-Alcantara-Alegria, Cebu is
found GUILTY of GRAVE MISCONDUCT, GROSS NEGLECT OF
DUTY and GROSS DISHONESTY. She is hereby DISMISSED from the
service, with forfeiture of all benefits, except accrued leave credits, and with
prejudice to re-employment in any branch or instrumentality of the government,
including government-owned or controlled corporations and financial institutions.
She is further ordered to RETURN to the Court the amount of P304,985.00 to
cover the shortage in the collection of court funds. In case of her failure to restitute
the said amount, in full or in part, the Employees Leave Division of the Office of
Administrative ServicesOCA is directed to compute the balance of respondents
accrued leave credits and forward such computation to the Finance Division of the
Fiscal Management OfficeOCA for the determination of its monetary value. The
said amount plus other benefits that respondent may be entitled to shall be applied
to the above shortage incurred.
SO ORDERED.

EN BANC

G.R. No. L-17778 November 30, 1962

IN RE CONTEMPT PROCEEDINGS AGAINST ARMANDO RAMOS, JESUS L. CARMELO, in his

capacity as Chairman of the Probe Committee, Office of the Mayor of Manila, petitioner-
appellant,
vs.
ARMANDO RAMOS, respondent-appellee.

City Fiscal Hermogenes Concepcion, Jr. for petitioner-appellant.

Armando Ramos for and in his own behalf as respondent-appellee.

REGALA, J.:

On February 3, 1960, the Mayor of Manila issued an executive order creating a committee "to
investigate the anomalies involving the license inspectors and other personnel of the License
Inspection Division of the Office of the City Treasurer and of the License and Permits Division of this
Office (of the Mayor)." He named Mr. Jesus L. Carmelo as chairman of said committee.

It appears that the committee issued subpoenas to Armando Ramos, a private citizen working as a
bookkeeper in the Casa de Alba, requiring him to appear before it on June 3, 8, 9, 15 and 16 and
August 4 and 11, 1960, in connection with an administrative case against Crisanta Estanislao but
that Ramos, on whom the subpoenas were duly served, refused to appear.

Claiming that Ramos' refusal tended "to impede, obstruct, or degrade the administrative
proceedings," petitioner filed in the Court of First Instance of Manila a petition to declare Armando
Ramos in contempt. After hearing, during which petitioner was required to show a prima facie case,
the trial court dismissed the petition. The lower court held that there is no law empowering
committees created by municipal mayors to issue subpoenas and demand that witnesses testify
under oath. It also held that to compel Ramos to testify would be to violate his right against self-
incrimination.

It appears that in a statement given to investigators of the Office of the Mayor, Ramos admitted
having misappropriated on several occasions, sums of money given to him by the owner of Casa de
Alba for the payment of the latter's taxes for 1956-1959 and that this fact had not been discovered
earlier because Ramos used to entertain employees in the City Treasurer's office at Casa de Alba
where Ramos was a bookkeeper as stated above. The trial court held that to compel Ramos to
confirm this statement in the administrative case against certain employees in the Office of the City
Treasurer would be to compel him to give testimony that could be used against him in a criminal
case for estafa of which the owner of Casa de Alba was the offended party. From that decision,
petitioner appealed to this Court.

The main issue in this ease is the power, if any, of committee, like the committee of which petitioner
is the chairman, to subpoena witnesses to appear before it and to ask for their punishment in case of
refusal.

The rule is that Rule 64 (Contempt)1 of the Rules of Court applies only to inferior and superior courts
and does not comprehend contempt committed against administrative officials or bodies like the one
in this case, unless said contempt is clearly considered and expressly defined as contempt of court,
as is done in paragraph 2 of Section 580 of the Revised Administrative Code. (People v. Mendoza;
People v. Dizon, 49 O. G. No. 2, 541.)

Petitioner invokes Section 580 of the Revised Administrative Code which provides as follows:

Powers incidental to taking of testimony. When authority to take testimony or evidence is

conferred upon an administrative officer or upon any nonjudicial person, committee, or other
body, such authority shall be understood to comprehend the right to administer oaths and
summons witnesses and shall include authority to require the production of documents under
a subpoena duces tecum or otherwise, subject in all respects to the same restrictions and
qualifications as apply in judicial proceedings of a similar character.

Saving the provisions of section one hundred and two of this Act, any one who, without
lawful excuse, fails to appear upon summons issued under the authority of the preceding
paragraph or who, appearing before any individual or body exercising the power therein
defined, refuses to make oath, give testimony, or produce documents for inspection, when
thereunto lawfully required, shall be subject to discipline as in case of contempt of court and
upon application of the individual or body exercising the power in question shall be dealt with
by the judge of first instance having jurisdiction of the case in the manner provided by law.

One who invokes this provision of the law must first show that he has "authority to take testimony or
evidence" before he can apply to the courts for the punishment of hostile witnesses. (Francia v.
Pecson, et al., 87 Phil. 100.)

Now, what authority to take testimony does petitioner's committee have from which the power to cite
witnesses may be implied, pursuant to section 580?

To be sure, there is nothing said in the executive order of the Mayor creating the committee about
such a grant of power. All that the order gives to this body is the power to investigate anomalies
involving certain city employees.

Petitioner contends that the Mayor of Manila has the implied power to investigate city officials and
employees appointed by him to the end that the power expressly vested in him to suspend and
remove such officials of employees (Sec. 22, Republic Act No. 409) may be justly and fairly
exercised. We agree with this proposition and We held so in the case of Pagkanlungan v. De la
Fuente, 48 O.G. No. 10, p. 4332. But We do not agree with the petitioner that a delegation of such
power to investigation implies also a delegation of the power to take testimony or evidence of
witnesses whose appearance may be require by the compulsory process of subpoena. Thus, in
denying this power to an investigating body in the Office of the Mayor of Manila, We said in Francia
v. Pecson, et al., supra: "Were do not think the mayor (of Manila) can delegate or confer the powers
to administer oaths, to take testimony, and to issue subpoenas."

Furthermore, it is doubtful whether the provisions of section 580 of the Administrative Code are
applicable to the City of Manila as these pertain to national bureaus or offices of the government.

Citing 50 Am. Jur. 449, petitioner contends that "the power of the investigation committee to issue
compulsory process to secure the attendance of witnesses undoubtedly exists since only
complimentary to the power of the mayor to investigate, suspend and remove city officers and
employees, supra, is the recognized rule that where the statute grants a right, it also confers by
implication every particular power necessary for the exercise thereof." There is no merit in the
argument. In the first place, the authority cited speaks of statutory, grant of power to a body. Here,
We have seen that whatever power may be claimed by petitioner's committee may only be traced to
the power of the Mayor to investigate as implied from his power to suspend or remove certain city
employees. There is no statutory grant of power to investigate to petitioner's committee.

In the second place, even granting that the Mayor has the implied power to require the appearance
of witnesses before him, the rule, as noted earlier, is that the Mayor can not delegate this power to a
body like the committee of the petitioner. (Francia v. Pecson, et al., supra.)

Lastly, 50 Am. Jur. Sec. 428, p. 450 itself admits an exception to the rule invoked by the petitioner.
Thus, it is stated that "where the liberty and property of persons are sought to be brought within the
operation of a power claimed to be impliedly granted by an act because necessary to its due
execution, the case must be clearly seen to be within those intended to be reached." Here, no less
than the liberty of Armando Ramos is involved in the claim of the committee to the right to cite
witnesses.

We hold, therefore, that petitioner's committee has no power to cite witnesses to appear before it
and to ask for their punishment in case of refusal. This conclusion makes it unnecessary for Us to
pass upon the other error assigned by petitioner as having been allegedly committed by the trial
court.

WHEREFORE, the decision of the Court of First Instance of Manila is hereby affirmed, without
pronouncement as to costs.

EN BANC

G.R. No. L-13827 September 28, 1962

BENJAMIN MASANGCAY, petitioner,

vs.
THE COMMISSION ON ELECTIONS, respondent.

Godofredo A. Ramos and Ruby Salazar-Alberto for petitioner.

Office of the Solicitor General and Dominador D. Dayot for respondent.
BAUTISTA ANGELO, J.:

Benjamin Masangcay, with several others, was on October 14, 1957 charged before the
Commission on Election with contempt for having opened three boxes bearing serial numbers l-
8071, l-8072 and l-8073 containing official and sample ballots for the municipalities of the province of
Aklan, in violation of the instructions of said Commission embodied in its resolution promulgated
September 2, 1957, and its unnumbered resolution date March 5, 1957, inasmuch as he opened
said boxes not the presence of the division superintendent of schools of Aklan, the provincial auditor,
and the authorized representatives of the Nacionalista Party, the Liberal Party and the Citizens'
Party, as required in the aforesaid resolutions, which are punishable under Section 5 of the Revised
Election Code and Rule 64 of the Rules of Court. Masangcay was then the provincial treasurer of
Aklan designated by the Commission in its resolution in Case CE-No. 270, part II 2 (b) thereof, to
take charge of the receipt and custody of the official ballots, election forms and supplies, as well as
of their distribution, among the different municipalities of the province.

In compliance with the summons issued to Masangcay and his co-respondents to appear and show
cause why they should not be punished for contempt on the basis of the aforementioned charge,
they all appeared before the Commission on October 21, 1957 and entered a plea of not guilty.
Thereupon, evidence was presented by both the prosecution and the defense, and on December 16,
1957 the Commission rendered its decision finding Masangcay and his co-respondent Molo guilty as
charged and sentencing each of them to suffer three months imprisonment and pay a fine of P500,
with subsidiary imprisonment of two months in case of insolvency, to be served in the provincial jail
of Aklan. The other respondents were exonerated for lack of evidence.

Masangcay brought the present petition for review raising as main issue the constitutionality of
Section 5 of the Revised Election Code which grants the Commission on Elections as well as its
members the power to punish acts of contempt against said body under the same procedure and
with the same penalties provided for in Rule 64 of the Rules of Court in that the portion of said
section which grants to the Commission and members the power to punish for contempt is
unconstitutional for it infringes the principle underlying the separation of powers that exists among
the three departments of our constitutional form of government. In other words, it is contended that,
even if petitioner can be held guilty of the act of contempt charged, the decision is null and void for
lack of valid power on the part of the Commission to impose such disciplinary penalty under the
principle of separation of powers. There is merit in the contention that the Commission on Elections
lacks power to impose the disciplinary penalty meted out to petitioner in the decision subject of
review. We had occasion to stress in the case of Guevara v. The Commission on Elections 1 that
under the law and the constitution, the Commission on Elections has only the duty to enforce and
administer all laws to the conduct of elections, but also the power to try, hear and decide any
controversy that may be submitted to it in connection with the elections. In this sense, said, the
Commission, although it cannot be classified a court of justice within the meaning of the Constitution
(Section 30, Article VIII), for it is merely an administrative body, may however exercise quasi-judicial
functions insofar as controversies that by express provision law come under its jurisdiction. The
difficulty lies in drawing the demarcation line between the duty which inherently is administrative in
character and a function which calls for the exercise of the quasi-judicial function of the Commission.
In the same case, we also expressed the view that when the Commission exercises a ministerial
function it cannot exercise the power to punish contempt because such power is inherently judicial in
nature, as can be clearly gleaned from the following doctrine we laid down therein:
 . . . In proceeding on this matter, it only discharged a ministerial duty; it did not exercise any
judicial function. Such being the case, it could not exercise the power to punish for contempt
as postulated in the law, for such power is inherently judicial in nature. As this Court has aptly
said: 'The power to punish for contempt is inherent in all courts; its existence is essential to
the preservation of order in judicial proceedings, and to the enforcement of judgments,
orders and mandates courts, and, consequently, in the administration of justice (Slade
Perkins v. Director of Prisons, 58 Phil., 271; U.S. v. Lee Hoc, 36 Phil., 867; In Re Sotto, 46
O.G., 2570; In Re Kelly, Phil., 944). The exercise of this power has always been regarded as
a necessary incident and attribute of courts (Slade Perkins v. Director of Prisons, Ibid.). Its
exercise by administrative bodies has been invariably limited to making effective the power
to elicit testimony (People v. Swena, 296 P., 271). And the exercise of that power by an
administrative body in furtherance of its administrative function has been held invalid
(Langenberg v. Lecker, 31 N.E., 190; In Re Sims, 37 P., 135; Roberts v. Hacney, 58 SW.,
810).1awphl.nt

In the instant case, the resolutions which the Commission tried to enforce and for whose violation
the charge for contempt was filed against petitioner Masangcay merely call for the exercise of an
administrative or ministerial function for they merely concern the procedure to be followed in the
distribution of ballots and other election paraphernalia among the different municipalities. In fact,
Masangcay, who as provincial treasurer of Aklan was the one designated to take charge of the
receipt, custody and distribution of election supplies in that province, was charged with having
opened three boxes containing official ballots for distribution among several municipalities in
violation of the instructions of the Commission which enjoin that the same cannot be opened except
in the presence of the division superintendent of schools, the provincial auditor, and the authorized
representatives of the Nacionalista Party, the Liberal Party, and the Citizens' Party, for he ordered
their opening and distribution not in accordance with the manner and procedure laid down in said
resolutions. And because of such violation he was dealt as for contempt of the Commission and was
sentenced accordingly. In this sense, the Commission has exceeded its jurisdiction in punishing him
for contempt, and so its decision is null and void.

Having reached the foregoing conclusion, we deem it unnecessary to pass on the question of
constitutionality raised by petitioner with regard to the portion of Section 5 of the Revised Election
Code which confers upon the Commission on Elections the power to punish for contempt for acts
provided for in Rule 64 of our rules of court.

WHEREFORE, the decision appealed from insofar as petitioner Benjamin Masangcay is concerned,
as well as the resolution denying petitioner's motion for reconsideration, insofar as it concerns him,
are hereby reversed, without pronouncement as to costs.

G.R. No. 179830 December 3, 2009

LINTANG BEDOL, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

Challenged in this petition for certiorari are the twin Resolutions issued by the respondent
Commission on Elections (COMELEC) En Banc in the case entitled "In the Matter of the Charge of
Contempt of the Commission Against Election Supervisor Lintang Bedol." The first Resolution 1 dated
August 7, 2007, held petitioner guilty of contempt of the COMELEC and meted out to him the penalty
of six (6) months imprisonment and a fine of P1,000.00. The second Resolution2 dated August 31,
2007, denied petitioners motion for reconsideration.

The facts as stated by the COMELEC follow:

On May 14, 2007, the National and Local elections were held under the auspices of this
Commission.

As Chair of the Provincial Board of Canvassers (PBOC) for the province of Maguindanao, the
respondent [petitioner] discharged his official functions and was able to ensure the PBOCs
performance of its ministerial duty to canvass the Certificates of Canvass coming from the twenty
two (22) city and municipalities in the province.

At that time, respondent [petitioner] also was charged with the burdensome and gargantuan duty of
being the concurrent Provincial Elections Supervisor for the Province of Shariff Kabunsuan a
neighboring province of Maguindanao.

Respondent [petitioner] Bedol failed to attend the scheduled canvassing of the Provincial Certificates
of Canvass (PCOC) of Maguindanao of which he is the Provincial Election Supervisor which was
slated on May 22, 2007.

On May 25, 2007, respondent appeared before the Commission, en banc sitting as the National
Board of Canvassers (NBOC) for the election of senators to submit the provincial certificate of
canvass for Maguindanao, pursuant to his functions as Provincial Elections Supervisor and chair of
the PBOC for Maguindanao. Due to certain observations on the provincial certificates of canvass by
certain parties, canvassing of the certificate was held in abeyance and respondent was queried on
the alleged fraud which attended the conduct of elections in his area.

He was already informed of the resetting of the canvassing for May 30, 2007, but failed to appear
despite prior knowledge.

On June 4, 2007, Celia B. Romero, Director II, ERSD & Concurrent Chief of the Records and
Statistics Division of the COMELEC issued a certification that as of even date, the canvassing
documents for all municipalities of the province of Maguindanao in connection with the May 14, 2007
elections were not transmitted by the Provincial Election Supervisor of said province nor the
respective Board of Canvassers.

The Commission and not just the NBOC, in the exercise of its investigatory powers to determine
existing controversies created the Task Force Maguindanao, headed by Commissioner Nicodemo
Ferrer, which was tasked to conduct a fact-finding investigation on the conduct of elections and
certificates of canvass from the city and municipalities in Maguindanao.

Respondent [petitioner] appeared before the Task Force during its June 11, 2007 fact finding activity
and responded to the queries from the chair. It was during this hearing that respondent [petitioner]
Bedol explained that, while in his custody and possession, the election paraphernalia were stolen
sometime on May 29, 2007, or some fifteen (15) days after the elections. This was the first time such
an excuse was given by the respondent [petitioner] and no written report was ever filed with the
Commission regarding the alleged loss. 1avvphi1

Respondent [petitioner] Bedol was duly informed to be present in the next scheduled investigative
proceedings set for June 14, 2007 as the Task Force wanted to delve deeper into the alleged loss by
propounding additional questions to Atty. Bedol during the next scheduled proceedings, such as why
he still had in his possession said documents which should have already been turned over to the
Commission, why he did not report to the COMELEC or to the police authorities the purported theft,
and other pertinent questions. However, despite actual notice in open session, Atty. Bedol failed to
appear, giving the impression that respondent [petitioner] Bedol does not give importance to this
whole exercise and ignores the negative impact his attitude has on this Commission.

Also respondent [petitioner] failed and refused to submit a written explanation of his absences which
he undertook to submit on June 13, 2007, but was only received by this Commission belatedly on
July 03, 2007.

On June 26, 2007, [petitioner] came out on national newspapers, in an exclusive interview with the
Inquirer and GMA-7, with a gleaming 45 caliber pistol strapped to his side, and in clear defiance of
the Commission posted the challenge by saying that those that are saying that there was cheating
in Maguindanao, file a case against me tomorrow, the next day. They should file a case now and I
will answer their accusations.(Words in brackets ours)

On June 27, 2007, the COMELEC through Task Force Maguindanao head, Commissioner Nicodemo
T. Ferrer, issued a Contempt Charge and Show Cause Order 3 against petitioner citing various
violations of the COMELEC Rules of Procedure, viz:

You are hereby formally charged of contempt of this Commission for having committed during the
period between May 14, 2007, and June 26, 2007, acts in violation of specific paragraphs of Section
2, Rule 29 of the COMELEC Rules of Procedure, as follows:

1. (a) Your (PES Bedols) failure to attend the scheduled canvassing of the Provincial
Certificates of Canvass (PCOC) of Maguindanao of which he (sic) is (sic) the Provincial
Election Supervisor on May 22, 2007; (b) your failure to attend the reset schedule of the
canvassing on May 30, 2007, despite knowledge thereof when you attended the previously
scheduled but again reset canvassing of said PCOCs on May 25, 2007; (c) your failure to
attend the continuation of hearing of the Task Force Maguindanao on June 14, 2007, despite
notice to him in open session in the hearing held on June 11, 2007, and personal service to
you of a subpoena which you duly signed on the same date; and your failure/refusal to
submit your written explanation of your said absences which you undertook to submit on
June 13, 2007 all of these failures on your part are violations of paragraphs (b) and (f) of
Section 2, Rule 29 of COMELEC Rules of Procedure.

2. Your unlawful assumption of custody in your office in Maguinadanao of the municipal

certificates of canvass (MCOC) and other accountable election documents of all the
municipalities of Maguinadanao used in the last elections of 2007, but which should have
been delivered to the Commission on Elections in its main office in Intramuros, Manila, and
your admission that said accountable documents were lost from your said custody these
constitute violations of paragraphs (a), (c) and (d), section 2, Rule 29 of said Rules.
 3. Your pronouncements in the media flaunting [disrespect to] the authority of the COMELEC
over you, challenging the institution to file a case against you in court as it is only in court
that you are ready to face your accuser are violations of paragraphs (a) and (d), Section 2,
Rule 29 of said Rules.

4. Your regaling the media (interviews in national television channels, newspapers and
radios) with your boast of possession of an armory of long firearms and side arms, displaying
in public for all to see in your front-page colored portrait in a national broadsheet and during
a television interview a shiny pistol tucked in a holster at your waist in a combative mode
(sic) these are clear violations of paragraphs (a) and (d), Section 2, Rule 29 of said Rules.
(Words in brackets ours)

Through the foregoing June 27, 2007 Order, petitioner was directed to appear before the COMELEC
En Banc on July 3, 2007 at 10:00 oclock in the morning to personally explain why he should not be
held in contempt for the above-mentioned offenses.

On July 2, 2007, petitioner was arrested by members of the Philippine National Police on the basis
of an Order of Arrest4 issued on June 29, 2007 by the COMELEC after petitioner repeatedly failed to
appear during the fact-finding proceedings before Task Force Maguindanao.

During the July 3, 2007 hearing, petitioner questioned the COMELECs legal basis for issuing the
warrant of arrest and its assumption of jurisdiction over the contempt charges. Upon petitioners
motion, he was granted a period of ten (10) days within which to file the necessary pleading
adducing his arguments and supporting authorities. The continuation of the hearing was set on July
17, 2007.

On July 17, 2007, which was beyond the ten-day period he requested, petitioner submitted an
Explanation Ad Cautelam with Urgent Manifestation, containing the following averments:

1. Respondent [petitioner] urgently manifests that he is making a special appearance as he

assails the jurisdiction of the Honorable Commission and its capacity to prosecute the
present case in an impartial and fair manner.

2. Respondent [petitioner] questions the issuance of a warrant of arrest against him. He can
not be validly arrested or re-arrested as a witness who is being compelled to testify in a
hearing before the Honorable Commission.

3. Respondent [petitioner] has not committed any contemptuous acts against the
Commission. He has not committed those acts charged against him by the Commission
motu proprio. (Words in brackets ours.)

During the hearing on July 17, 2007, petitioner reiterated his objection to the jurisdiction of the
COMELEC over the contempt charges due to the absence of a complaint lodged with the
COMELEC by any private party. Petitioners objection was treated as a motion to dismiss for lack of
jurisdiction, which was denied forthwith by the COMELEC. Petitioner was then required to present
evidence which he refused to do. Various exhibits were then marked and presented to the
COMELEC. However, the latter allowed petitioner to file a Memorandum within a period of ten (10)
days and gave him the opportunity to attach thereto his documentary and other evidence.
On July 31, 2007, petitioner again belatedly filed his Memorandum5 maintaining his objection to the
jurisdiction of the COMELEC to initiate the contempt proceedings on ground that the COMELEC,
sitting en banc as the National Board of Canvassers for the election of senators, was performing its
administrative and not its quasi-judicial functions. Petitioner argued that the COMELEC, in that
capacity, could not punish him for contempt.

On August 7, 2007, the COMELEC En Banc rendered the first assailed Resolution, the dispositive
part of which reads:

WHEREFORE, considering all the foregoing, respondent Atty. Lintang Bedol is hereby found guilty of
Contempt of the Commission for the following acts and omissions:

1. (a) The failure to attend the scheduled canvassing of the Provincial Certificates of
Canvass (PCOC) of Maguindanao of which he is the Provincial Election Supervisor on May
22, 2007 (b) failure to attend the reset schedule of the canvassing on May 30, 2007, despite
knowledge thereof when Respondent Bedol attended the previously scheduled but again
reset canvassing on May 25, 2007 (c) failure to attend the continuation of hearing of the Task
Force Maguindanao on June 14, 2007, despite notice to Respondent in open session in the
hearing held on June 11, 2007, and personal service to him of the subpoena which he duly
signed on the same date; the failure/refusal to submit written explanation of respondents
absences which he undertook to submit on June 13, 2007 --- all of these failures are
violations of paragraphs (b) and (f) of Section 2, Rule 29 of COMELEC Rules of Procedure.

2. The unlawful assumption of custody in the Respondents office in Maguindanao of the

Municipal Certificates of Canvass (MCOC) and other accountable election documents of all
the municipalities of Maguindanao used in the last elections of 2007, but which should have
been delivered to the Commission on Elections in its main office in Intramuros, Manila, and
Respondents plain admission that said accountable documents were lost from his said
custody --- these constitute violations of paragraphs (a), (c) and (d), Section 2, Rule 29 of
said Rules. lavvphil

3. The respondents pronouncements in media flaunting disrespect to the authority of the

COMELEC over him, challenging the institution to file a case against him in court as it is
supposedly only in court that Respondent Bedol was ready to face his accuser are violations
of paragraphs (a) and (d), Section 2, Rule 29 of said Rules.

4. Regaling the public through the media (interviews in national television channels,
newspapers and radios) with boast of possession of an armory of long firearms and side
arms, displaying in public, for all to see in his front-page colored portrait in a national
broadsheet and during a television interview, a shiny pistol tucked in a holster at your waist
in a combative mode (sic) --- these are clear violations of paragraphs (a) and (d), Section 2,
Rule 29 of said Rules.

All the foregoing constitute an exhibition of contumacious acts showing disrespect for the institution,
of which respondent is even a ranking official, which is clearly contemptuous of this Commission, for
which Respondent Lintang Bedol is hereby sentenced to suffer the penalty of imprisonment of six (6)
months and to pay a fine of One Thousand Pesos (P1,000.00).
The Legal Department of the Comelec is hereby directed to investigate and determine whether or
not any election offense or crime under the Revised Penal Code has been committed by respondent
Lintang Bedol and to initiate the filing of the necessary charge/s therefor.

SO ORDERED.

Aggrieved, petitioner filed a motion for reconsideration which was denied by the COMELEC in the
other assailed Resolution dated August 31, 2007.

Hence, petitioner filed before the Court the instant petition for certiorari raising the following issues:

WHETHER OR NOT THE COMMISSION ON ELECTIONS HAS JURISDICTION TO INITIATE OR

PROSECUTE THE CONTEMPT PROCEEDINGS AGAINST THE PETITIONER.

II

WHETHER OR NOT THE COMMISSSION HAS ALREADY PREJUDGED THE CASE AGAINST
THE PETITIONER IN VIOLATION OF HIS DUE PROCESS RIGHTS

III

WHETHER OR NOT THE FINDINGS OF THE COMMISSION ON ELECTIONS, ASSUMING IT HAS

JURISDICTION TO PUNISH FOR CONTEMPT, ARE SUPPORTED BY SUBSTANTIAL, CREDIBLE
AND COMPETENT EVIDENCE.

We dismiss the petition.

The main thrust of petitioners argument is that the COMELEC exceeded its jurisdiction in initiating
the contempt proceedings when it was performing its administrative and not its quasi-judicial
functions as the National Board of Canvassers for the election of senators. According to petitioner,
the COMELEC may only punish contemptuous acts while exercising its quasi-judicial functions.

The COMELEC possesses the power to conduct investigations as an adjunct to its constitutional
duty to enforce and administer all election laws, by virtue of the explicit provisions of paragraph 6,
Section 2, Article IX of the 1987 Constitution, which reads:

Article IX-C, Section 2. xxx

(6) xxx; investigate and, where appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and malpractices.

The above-quoted provision should be construed broadly to give effect to the COMELECs
constitutional mandate as enunciated in Loong v. Commission on Elections, 6 which held:

xxx. Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power "to
enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall." Undoubtedly, the text and intent of this provision is to give
COMELEC all the necessary and incidental powers for it to achieve the objective of holding free,
orderly, honest, peaceful, and credible elections. Congruent to this intent, this Court has not been
niggardly in defining the parameters of powers of COMELEC in the conduct of our elections.

The powers and functions of the COMELEC, conferred upon it by the 1987 Constitution and the
Omnibus Election Code, may be classified into administrative, quasi-legislative, and quasi-judicial.
The quasi-judicial power of the COMELEC embraces the power to resolve controversies arising from
the enforcement of election laws, and to be the sole judge of all pre-proclamation controversies; and
of all contests relating to the elections, returns, and qualifications. Its quasi-legislative power refers
to the issuance of rules and regulations to implement the election laws and to exercise such
legislative functions as may expressly be delegated to it by Congress. Its administrative function
refers to the enforcement and administration of election laws. In the exercise of such power, the
Constitution (Section 6, Article IX-A) and the Omnibus Election Code (Section 52 [c]) authorize the
COMELEC to issue rules and regulations to implement the provisions of the 1987 Constitution and
the Omnibus Election Code.7

The quasi-judicial or administrative adjudicatory power is the power to hear and determine questions
of fact to which the legislative policy is to apply, and to decide in accordance with the standards laid
down by the law itself in enforcing and administering the same law. The Court, in Dole Philippines
Inc. v. Esteva,8 described quasi-judicial power in the following manner, viz:

Quasi-judicial or administrative adjudicatory power on the other hand is the power of the
administrative agency to adjudicate the rights of persons before it. It is the power to hear and
determine questions of fact to which the legislative policy is to apply and to decide in accordance
with the standards laid down by the law itself in enforcing and administering the same law. The
administrative body exercises its quasi-judicial power when it performs in a judicial manner an act
which is essentially of an executive or administrative nature, where the power to act in such manner
is incidental to or reasonably necessary for the performance of the executive or administrative duty
entrusted to it. In carrying out their quasi-judicial functions the administrative officers or bodies are
required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and
draw conclusions from them as basis for their official action and exercise of discretion in a judicial
nature. Since rights of specific persons are affected, it is elementary that in the proper exercise of
quasi-judicial power due process must be observed in the conduct of the proceedings. [Emphasis
ours.]

The Creation of Task Force Maguindanao was impelled by the allegations of fraud and irregularities
attending the conduct of elections in the province of Maguindanao and the non-transmittal of the
canvassing documents for all municipalities of said province.

Task Force Maguindanaos fact-finding investigation to probe into the veracity of the alleged fraud
that marred the elections in said province; and consequently, to determine whether the certificates of
canvass were genuine or spurious, and whether an election offense had possibly been committed
could by no means be classified as a purely ministerial or administrative function.

The COMELEC, through the Task Force Maguindanao, was exercising its quasi-judicial power in
pursuit of the truth behind the allegations of massive fraud during the elections in Maguindanao. To
achieve its objective, the Task Force conducted hearings and required the attendance of the parties
concerned and their counsels to give them the opportunity to argue and support their respective
positions.

The effectiveness of the quasijudicial power vested by law on a government institution hinges on its
authority to compel attendance of the parties and/or their witnesses at the hearings or proceedings.
As enunciated in Arnault v. Nazareno9

Experience has shown that mere requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so some means of compulsion
is essential to obtain what is needed.

In the same vein, to withhold from the COMELEC the power to punish individuals who refuse to
appear during a fact-finding investigation, despite a previous notice and order to attend, would
render nugatory the COMELECs investigative power, which is an essential incident to its
constitutional mandate to secure the conduct of honest and credible elections. In this case, the
purpose of the investigation was however derailed when petitioner obstinately refused to appear
during said hearings and to answer questions regarding the various election documents which, he
claimed, were stolen while they were in his possession and custody. Undoubtedly, the COMELEC
could punish petitioner for such contumacious refusal to attend the Task Force hearings.

Even assuming arguendo that the COMELEC was acting as a board of canvassers at that time it
required petitioner to appear before it, the Court had the occasion to rule that the powers of the
board of canvassers are not purely ministerial. The board exercises quasi-judicial functions, such as
the function and duty to determine whether the papers transmitted to them are genuine election
returns signed by the proper officers.10 When the results of the elections in the province of
Maguindanao were being canvassed, counsels for various candidates posited numerous questions
on the certificates of canvass brought before the COMELEC. The COMELEC asked petitioner to
appear before it in order to shed light on the issue of whether the election documents coming from
Maguindanao were spurious or not. When petitioner unjustifiably refused to appear, COMELEC
undeniably acted within the bounds of its jurisdiction when it issued the assailed resolutions.

In Santiago, Jr. v. Bautista,11 the Court held:

xxx. The exercise of judicial functions may involve the performance of legislative or administrative
duties, and the performance of and administrative or ministerial duties, may, in a measure, involve
the exercise of judicial functions. It may be said generally that the exercise of judicial functions is to
determine what the law is, and what the legal rights of parties are, with respect to a matter in
controversy; and whenever an officer is clothed with that authority, and undertakes to determine
those questions, he acts judicially.

On the procedure adopted by the COMELEC in proceeding with the indirect contempt charges
against petitioner, Section 52 (e), Article VII of the Omnibus Election Code pertinently provides:

Section 52. Powers and functions of the Commission on Elections.

xxx
(e) Punish contempts provided for in the Rules of Court in the same procedure and with the same
penalties provided therin. Any violation of any final and executory decision, order or ruling of the
Commission shall constitute contempt thereof. [Emphasis ours.]

The aforecited provision of law is implemented by Rule 29 of COMELECs Rules of Procedure,

Section 2 of which states:

Rule 29 Contempt

Sec. 1. xxx

Sec. 2. Indirect Contempt. After charge in writing has been filed with the Commission or Division,
as the case may be, and an opportunity given to the respondent to be heard by himself or counsel, a
person guilty of the following acts may be punished for indirect contempt:

(a) Misbehavior of the responsible officer of the Commission in the performance of his official duties
or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, judgment or command of the
Commission or any of its Divisions, or injunction or restraining order granted by it;

(c) Any abuse of or any inlawful interference with the process or proceedings of the Commission or
any of its Divisions not constituting direct contempt under Section 1 of this Rules;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice by the Commission or any of its Divisions;

(e) Assuming to be an attorney and acting as such without authority; and

(f) Failure to obey a subpoena duly served.

SEC. 3 Penalty for Indirect Contempt. If adjudged guilty, the accused may be punished by a fine
not exceeding one thousand (P1,000.00) pesos or imprisonment for not more than six (6) months, or
both, at the discretion of the Commission or Division.

The language of the Omnibus Election Code and the COMELEC Rules of Procedure is broad
enough to allow the initiation of indirect contempt proceedings by the COMELEC motu proprio.
Furthermore, the above-quoted provision of Section 52(e), Article VII of the Omnibus Election Code
explicitly adopts the procedure and penalties provided by the Rules of Court. Under Section 4, Rule
71, said proceedings may be initiated motu proprio by the COMELEC, viz:

SEC. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu
proprio by the court against which the contempt was committed by an order or any other formal
charge requiring the respondent to show cause why he should not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and upon
full compliance with the requirements for filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related to a principal action pending in the
court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion orders the consolidation of the contempt charge
and the principal action for joint hearing and decision.

Hence, the COMELEC properly assumed jurisdiction over the indirect contempt proceedings which
were initiated by its Task Force Maguindanao, through a Contempt Charge and Show Cause Order,
notwithstanding the absence of any complaint filed by a private party.

We turn now to petitioners claim that the COMELEC pre-judged the case against him, and that its
findings were not supported by evidence. His claim deserves scant consideration.

The fact that the indirect contempt charges against petitioner were initiated motu proprio by the
COMELEC did not by itself prove that it had already prejudged the case against him. As borne out
by the records, the COMELEC gave petitioner several opportunities to explain his side and to
present evidence to defend himself. All of petitioners belatedly filed pleadings were admitted and
taken into consideration before the COMELEC issued the assailed Resolution finding petitioner
guilty of indirect contempt.

The COMELEC complied with the aforementioned Section 4, Rule 71 of the Rules of Court and with
the requirements set by Rule 29 of the COMELEC Rules of Procedure, when it issued the Contempt
Charge and Show Cause Order against petitioner directing him to appear before it and explain why
he should not be held in contempt.

Petitioner claims that the challenged Resolution finding him guilty of indirect contempt was based
merely on hearsay, surmises, speculations and conjectures, and not on competent and substantial
evidence. He contends that there is no convincing evidence that he deliberately refused to heed the
summonses of the COMELEC or that he was sufficiently notified of the investigative hearings. He
further argues that the loss of the election documents should not even be automatically ascribed to
him.

We are not persuaded.

Petitioner was found guilty of contempt on four (4) grounds. First, he repeatedly failed to attend,
despite notice of the scheduled12 canvassing of the Provincial Certificates of Canvass, the hearing of
the Task Force Maguindanao; and refused to submit his explanation for such absences, which he
had undertaken to submit, in violation of paragraphs (b) and (f) of Section 2, Rule 29 of the
COMELEC Rules of Procedure.

Petitioner was duly notified of the scheduled hearings. It was his official responsibility to be present
during the scheduled hearing to shed light on the allegedly stolen election documents but he failed to
do so without offering any valid justification for his non-appearance.

Second, he unlawfully assumed custody of accountable election documents, which were lost while in
his possession, and consequently failed to deliver the same, in violation of paragraphs (a), (c) and
(d) Section 2, Rule 29 of same Rules.

Petitioner admitted that the subject certificate of canvass and other election documents were lost
while in his custody. Petitioner himself admitted during the hearing held on June 11, 2007 that the
documents were stolen sometime on May 29, 2007. Apart from the said loss of the vital election
documents, his liability stemmed from the fact that he illegally retained custody and possession of
said documents more than two weeks after the elections. The COMELEC viewed such act as a
contemptuous interference with its normal functions.

Third and fourth, he publicly displayed disrespect for the authority of the COMELEC through the
media (interviews on national television channels, and in newspapers and radios) by flaunting an
armory of long firearms and side arms in public, and posing for the front page of a national
broadsheet, with a shiny pistol tucked in a holster, in violation of paragraphs (a) and (d), Section 2,
Rule 29 of same Rules.

Petitioner questions the probative value of the newspaper clippings published in the Philippine Daily
Inquirer on June 26, 2007 which showed a photo of him with a firearm tucked to his side and his
supposed exclusive interview. He claims that said newspaper clippings are mere hearsay, which are
of no evidentiary value.

True, there were instances when the Court rejected newspaper articles as hearsay, when such
articles are offered to prove their contents without any other competent and credible evidence to
corroborate them. However, in Estrada v. Desierto, et al., 13 the Court held that not all hearsay
evidence is inadmissible and how over time, exceptions to the hearsay rule have emerged. Hearsay
evidence may be admitted by the courts on grounds of "relevance, trustworthiness and
necessity."14 When certain facts are within judicial notice of the Court, newspaper accounts "only
buttressed these facts as facts."15

Another exception to the hearsay rule is the doctrine of independently relevant statements, where
only the fact that such statements were made is relevant, and the truth or falsity thereof is
immaterial. The hearsay rule does not apply; hence, the statements are admissible as evidence.
Evidence as to the making of such statement is not secondary but primary, for the statement itself
may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. 16

Here, the newspaper clippings were introduced to prove that petitioner deliberately defied or
challenged the authority of the COMELEC. As ratiocinated by the COMELEC in the challenged
Resolution of August 7, 2007, it was not the mere content of the articles that was in issue, but
petitioners conduct when he allowed himself to be interviewed in the manner and circumstances,
adverted to in the COMELEC Resolution, on a pending controversy which was still brewing in the
COMELEC. While petitioner claimed that he was misquoted, he denied neither the said interview nor
his picture splashed on the newspaper with a firearm holstered at his side but simply relied on his
objection to the hearsay nature of the newspaper clippings. It should be stressed that petitioner was
no ordinary witness or respondent. He was under the administrative supervision of the
COMELEC17 and it was incumbent upon him to demonstrate to the COMELEC that he had faithfully
discharged his duties as dictated by law. His evasiveness and refusal to present his evidence as well
as his reliance on technicalities to justify such refusal in the face of the allegations of fraud or
anomalies and newspaper publication mentioned to the Contempt Charge and Show Cause Order
amounted to an implied admission of the charges leveled against him.

All told, petitioner brought this predicament upon himself when he opted to dispense with the
presentation of his evidence during the scheduled hearings and to explain his non-appearance at the
hearings of Task Force Maguindanao and the loss of the certificates of canvass and other election
documents.
WHEREFORE, the petition is hereby DISMISSED and the prayer for a Temporary Restraining Order
and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.

SO ORDERED.

[G.R. No. 150178. November 26, 2004]

FLORIAN R. GAOIRAN, petitioner, vs. HON. ANGEL C. ALCALA,

Retired Chairman, Commission on Higher Education, ESTER
ALBANO GARCIA, now Chairman, Commission on Higher
Education, FELIPE S. AMMUGAUAN, SR., Vocation School
Superintendent I, Angadanan Agro-Industrial College, EDMOND
M. CASTILLEJO, Administrative Officer I, Angadanan Agro-
Industrial College, and DIOSDADO TELAN, Instructor I & Head
Teacher III, OIC Designate, Angadanan Agro-Industrial College,
Angadanan, Isabela, respondents.

DECISION
CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court filed by Florian R. Gaoiran, seeking to reverse and set aside
the Decision of the Court of Appeals in CA-G.R. SP No. 61477. In the
[1]

assailed decision, the appellate court reversed the Decision dated February
15, 2000 of the Regional Trial Court (RTC) of Cauayan, Isabela, Branch 20,
nullifying the Resolution dated June 3, 1999 of Hon. Angel C. Alcala, then
Chairman of the Commission on Higher Education (CHED), dismissing
petitioner Gaoiran from the service for grave misconduct and conduct
prejudicial to the best interest of the service.

The factual antecedents of the case are as follows:

On October 29, 1997, a letter-complaint was filed with the CHED against
petitioner Gaoiran, Head Teacher III in the High School Department of the
Angadanan Agro-Industrial College (AAIC), a state-supervised school in
[2]

Angadanan, Isabela. In his letter-complaint, respondent Edmond M. Castillejo,

Administrative Officer II, also of the same school, charged the petitioner with
mauling him while he was performing his duties therein. The incident allegedly
took place on August 15, 1997 at 2:30 p.m. inside the school premises.
Appended to the letter-complaint were the verified criminal complaint filed by
respondent Castillejo against the petitioner and the sworn statements of his
witnesses. The criminal complaint for assault to a person in authority was filed
with the Municipal Circuit Trial Court of Angadanan-San Guillermo and
docketed as Criminal Case No. 97-42.

The letter-complaint was referred to the Legal Affairs Service of the CHED.
Thereafter, Atty. Felina S. Dasig, then Officer-in-Charge of the Office of the
Director III, Legal Affairs Service, conducted a fact-finding investigation on the
mauling incident to determine the existence of a prima facie case against the
petitioner.

During the fact-finding investigation, respondent Castillejo averred that at

2:30 p.m. on August 15, 1997, while he was performing his usual duties as
Administrative Officer II, the petitioner suddenly barged into his (Castillejos)
office and, then and there, assaulted and boxed him. The petitioner delivered
blows on respondent Castillejos head, left eye, left eyebrow and lower lip. Not
content with the injuries he inflicted on respondent Castillejo, the petitioner
tried to throw him down the stairs but was prevented by the timely intervention
of Mr. Ismael Bautista, Accountant I of the same school. Bautista and other
employees of the AAIC corroborated respondent Castillejos statements.
Moreover, the medical certificate issued by Dr. Belinda L. Miguel showed that
on August 15, 1997, she treated respondent Castillejo for the wounds he
sustained on his left eye, left eyebrow and lower lip.

For his part, the petitioner averred that at around 2:30 p.m. of August 15,
1997, he was about to leave the school premises. Suddenly, respondent
Castillejo shouted to the security guard to punch out the petitioners
attendance card. This irked the petitioner because there were students and
other teachers in the vicinity. The petitioner confronted respondent Castillejo
and asked the latter why he had to embarrass him (petitioner) in front of the
students. Respondent Castillejo just turned his back and proceeded to his
office. The petitioner followed him and later saw that respondent Castillejo
was already holding a wrench. Inside respondent Castillejos office, the
petitioner made a side step and just then, respondent Castillejo slipped and
fell flat on the floor. The petitioner noticed that respondent Castillejos left
eyebrow was bleeding and he was putting up a struggle (nagpupumiglas), so
the petitioner held his feet. While going down the stairs, the petitioner met
Bautista and Henry Rupac, Watchman I of the school.
 After the fact-finding investigation was terminated, and upon finding of
a prima faciecase against the petitioner for grave misconduct and conduct
prejudicial to the best interest of the service, Atty. Dasig issued the Formal
Charge and Order of Preventive Suspension dated July 27, 1998 stating in
part:

WHEREFORE, you are hereby directed to answer in writing and under oath the above
charges against you within ten (10) days from receipt thereof, submitting therewith
sworn statements of your witnesses and other pertinent documents, if any. In your
answer, you are directed to state whether or not you elect a formal hearing of the
charges against you or you waive your rights to such hearing. You are, likewise,
advised of your right to counsel.

Considering the gravity of the instant charge against you, pursuant to the provisions of
P.D. 807, as amended, you are hereby PREVENTIVELY SUSPENDED FOR
NINETY (90) DAYS WITHOUT PAY effective upon receipt thereof. [3]

The petitioner did not submit his written counter-affidavit or answer to the
charges against him. Instead, he filed with the RTC of Cauayan, Isabela,
Branch 20, a petition for certiorari and prohibition to restrain the enforcement
of the said preventive suspension order. However, considering that the
petitioner had already served the suspension, the case was dismissed for
being moot and academic.

The petitioner sought reconsideration of the formal charge and preventive

suspension order, contending that the letter-complaint was not under oath and
that he was not informed nor apprised of the complaint against him before,
during and after the preliminary fact-finding investigation.

Thereafter, Joel Voltaire V. Mayo, who was later appointed Director of the
Legal Affairs Service of the CHED, issued the Resolution dated February 20,
1999, dismissing the administrative complaint against the petitioner on the
ground that the letter-complaint of respondent Castillejo was not under oath.

However, respondent Hon. Angel C. Alcala, then Chairman of the CHED,

apparently unaware of the existence of Director Mayos resolution, issued
another Resolution dated June 3, 1999, finding the petitioner guilty of grave
misconduct and conduct prejudicial to the best interest of the service and
dismissing him therefrom. The dispositive portion of respondent Alcalas
resolution states:

WHEREFORE, in the light of the foregoing, respondent FLORIAN R. GAOIRAN is

hereby meted the penalty of DISMISSAL FROM THE SERVICE for unlawfully
attacking a person in authority while in the active performance of his duties and
responsibilities and, then and there, inflicted physical injuries on his person. This is
without prejudice to the complainants right to institute the proper criminal and civil
actions against the respondent relative thereto.

The Vocational Schools Superintendent of Angadanan Agro-Industrial College,

Angadanan, Isabela, is hereby directed to effectively implement this Order and to
submit a report thereon within three (3) days upon implementation.

SO ORDERED. [4]

The petitioner received a copy of the above resolution on July 12, 1999,
which was served on him by respondent Felipe P. Ammugauan, Sr., School
Superintendent I of AAIC.

The petitioner then filed with the RTC of Cauayan, Isabela, Branch 20, a
petition for certiorari, prohibition and injunction. He alleged that respondent
Alcala committed grave abuse of discretion when, in the Resolution dated
June 3, 1999, he dismissed the petitioner from the service despite the fact that
the administrative complaint against him had already been dismissed per the
Resolution of February 20, 1999 of Director Mayo of the Legal Affairs Service.

In its Decision dated February 15, 2000, the RTC rendered judgment in
favor of the petitioner as it declared the June 3, 1999 Resolution of
respondent Alcala null and void. The RTC found that after the formal charge
was filed against the petitioner and he chose not to file an answer thereto, a
formal investigation was still required to be conducted under the Civil Service
Rules. When Director Mayo of the Legal Affairs Service, in his February 20,
1999 Resolution, dismissed the administrative complaint against the petitioner
on the ground that the letter-complaint was not under oath, the formal
investigation had not, as yet, been terminated. Such dismissal, according to
the RTC, put an end to the litigation. Thus, respondent Alcala acted with grave
abuse of discretion in issuing his June 3, 1999 Resolution, dismissing the
petitioner from the service, for the reason that the administrative complaint
against him had already been dismissed.

On appeal by the respondents, the Court of Appeals (CA), in the assailed

Decision of September 10, 2001, reversed and set aside the decision of the
RTC. The CA declared as valid respondent Alcalas June 3, 1999 Resolution,
dismissing the petitioner from the service. On the other hand, it declared as
without legal effect Director Mayos February 20, 1999 Resolution, dismissing
the administrative complaint against the petitioner.

In so ruling, the CA noted an apparent irregularity in Director Mayos

February 20, 1999 Resolution. The CA pointed out that while the said
resolution was ostensibly dated February 20, 1999, a copy thereof was mailed
to respondent Castillejo only on July 6, 1999 and received by the latter only on
July 14, 1999. The petitioner, for his part, received a copy thereof only on July
1, 1999. Prior to these dates, the existence of the said resolution had not been
established; hence, the date of its actual issuance remained doubtful. The CA
ruled that between the two conflicting resolutions, Director Mayos February
20, 1999 Resolution and respondent Alcalas June 3, 1999 Resolution, the
latter was entitled to the presumption of regularity. Moreover, respondent
Alcala, as then Chairman of the CHED, had the authority to reverse and set
aside the acts or issuances of his subordinates, including that of Director
Mayo.

The CA further ratiocinated that, even granting that the February 20, 1999
Resolution was regularly issued, Director Mayo nonetheless overstepped his
authority because Atty. Dasig, then OIC of the Legal Affairs Service, had filed
the formal charge and order of preventive suspension against the petitioner as
early as July 27, 1998. The CA also held that, contrary to Director Mayos
ruling, the fact that the letter-complaint was not under oath was not fatal. Even
an anonymous complaint may be acted upon by the authority concerned
provided that the same is verifiable, since under Section 48 of Executive
[5]

Order (E.O.) No. 292, administrative proceedings may be commenced

[6]

against a subordinate officer or employee by the Secretary or head of office of

equivalent rank, or head of local government or chiefs of agencies, or regional
directors.

The CA, likewise, opined that in administrative proceedings, a formal or

trial-type hearing is not, at all times, necessary. In this case, the petitioner was
not denied procedural due process as he was afforded a fair and reasonable
opportunity to explain his side. On the other hand, the CA declared that
respondent Ester Albano Garcia, who replaced respondent Alcala as
Chairman of the CHED, was denied procedural due process by the RTC when
it rendered its decision without awaiting her answer to the petition. The
dispositive portion of the assailed CA decision reads:

WHEREFORE, premises considered, the appealed decision is hereby REVERSED

AND SET ASIDE. Accordingly, the Resolution dated June 3, 1999 of then Chairman
of CHED, Angel C. Alcala is hereby declared valid while the Resolution dated
February 20, 1999 of Director Joel Voltaire Mayo is hereby declared to be without
legal effect.

SO ORDERED. [7]

Aggrieved, the petitioner now comes to this Court alleging as follows:

1. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR OF LAW FOR NOT UPHOLDING THE EXPRESS PROVISIONS OF THE
CIVIL SERVICE LAW ESPECIALLY RULE XIV, SECTION 2 OF THE OMNIBUS
RULES IMPLEMENTING BOOK 5 OF EXECUTIVE [ORDER] NO. 292 AND
OTHER PERTINENT CIVIL SERVICE LAWS, SECTION 2, SECTION 4 AND
PARAGRAPH D OF SECTION 4;

2. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR OF LAW IN NOT HOLDING THAT A VOID COMPLAINT IS DEEMED
INEXISTENT;

3. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR OF LAW IN NOT ORDERING A FORMAL INVESTIGATION OF THE
CHARGES PROFFERED AGAINST THE PETITIONER THERE BEING NO
FORMAL INVESTIGATION CONDUCTED BY THE COMMISSION;

4. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE

ERROR OF LAW IN HOLDING THAT RESPONDENT ESTER ALBANO GARCIA
WAS DENIED DUE PROCESS OF LAW KNOWING THAT THE LATTER, BEING
A NOMINAL PARTY, THE LOWER COURT MAY DISPENSE WITH HER
ANSWER TO THE PETITION;
5. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE
ERROR IN HOLDING THAT THE FORMAL CHARGE AND ORDER OF
PREVENTIVE SUSPENSION IS LEGAL. [8]

As the petitioner himself submits, the foregoing issues are interrelated;

hence, they shall be resolved jointly.

The petitioner vigorously contends that the letter-complaint of respondent

Castillejo should be deemed inexistent as it was not made under oath.
Consequently, the formal charge and order of preventive suspension filed
against him, which stemmed from the said letter-complaint, was, likewise, null
and void. The petitioner cites Section 2, Rule XIV of the Omnibus Rules
[9]

Implementing Book V of E.O. No. 292, which requires that an administrative

complaint against a civil service official or employee be in writing and under
oath. Moreover, the letter-complaint did not allegedly comply with Section 4(d)
of Civil Service Commission (CSC) Resolution No. 94-0521, also known as
[10] [11]

the Uniform Rules of Procedure in the Conduct of Administrative Investigation,

and the law then in force at the time, because it did not contain a certification
of non-forum shopping.

Since respondent Castillejos letter-complaint failed to comply with the

formal requirements of the law, the petitioner maintains that Director Mayo
rightfully dismissed the same and that respondent Alcala abused his discretion
when he dismissed the petitioner from the service.

The Court is not persuaded.

The pertinent provisions governing the initiation of administrative

complaints against civil service officials or employees are provided in Book V
of E.O. No. 292. Sections 46(c) and 48(1) and (2), Chapter 6, Subtitle A
thereof read:

Sec. 46. Discipline: General provisions.

(c) Except when initiated by the disciplining authority, no complaint against a civil
service official or employee shall be given due course unless the same is in writing
and subscribed and sworn to by the complainant.

...
Sec. 48. Procedures in Administrative Cases Against Non-Presidential Appointees. (1)
Administrative proceedings may be commenced against a subordinate officer or
employee by the Secretary or head of office of equivalent rank, or head of local
government, or chiefs of agencies, or regional directors, or upon sworn, written
complaint of any other persons.

(2) In the case of a complaint filed by any other persons, the complainant shall submit
sworn statements covering his testimony and those of his witnesses together with his
documentary evidence. If on the basis of such papers a prima facie case is found not
to exist, the disciplining authority shall dismiss the case. If a prima facie case exists,
he shall notify the respondent in writing, of the charges against the latter, to which
shall be attached copies of the complaint, sworn statements and other documents
submitted, and the respondent shall be allowed not less than seventy-two hours after
receipt of the complaint to answer the charges in writing under oath together with
supporting sworn statements and documents, in which he shall indicate whether or not
he elects a formal investigation if his answer is not considered satisfactory. If the
answer is found satisfactory, the disciplining authority shall dismiss the case.

On the other hand, Section 2, Rule XIV of the Omnibus Rules

Implementing Book V of E.O. No. 292, cited by the petitioner, reads:

Sec. 2. Any person may file an administrative complaint with the Commission or any
of its proper office. Said complaint shall be in writing and under oath, otherwise, the
same shall not be given due course.

Further, Section 4(d) of CSC Resolution No. 94-0521, likewise, invoked by

the petitioner, states:

Sec. 4. Complaint in Writing and Under Oath. No complaint against a civil servant
shall be given due course, unless the same is in writing and under oath.

The complaint should be written in a clear manner, simple and concise language and
in a systematic manner as to apprise the civil servant concerned of the nature and
cause of the accusation against him and to enable him to intelligently prepare his
defense or answer.

The complaint shall also contain the following:

...
(d) a statement that no other administrative action or complaint against the same party
involving the same acts or omissions and issues has been filed before another agency
or administrative tribunal.

In the absence of any one of the above-mentioned requirements, the complaints shall
be dismissed.

It must be pointed out that, while the letter-complaint of respondent

Castillejo was not concededly verified, appended thereto were the verified
criminal complaint that he filed against the petitioner, as well as the sworn
statements of his witnesses. These documents could very well be considered
as constituting the complaint against the petitioner. In fact, this Court, through
the Court Administrator, investigates and takes cognizance of, not only
unverified, but also even anonymous complaints filed against court employees
or officials for violations of the Code of Ethical Conduct. Indeed, it is not
[12]

totally uncommon that a government agency is given a wide latitude in the

scope and exercise of its investigative powers. After all, in administrative
[13]

proceedings, technical rules of procedure and evidence are not strictly

applied.[14]

In any case, contrary to the petitioners assertion, the letter-complaint of

respondent Castillejo is not a complaint within the purview of the provisions
mentioned above. In the fairly recent case of Civil Service Commission v.
Court of Appeals, this Court held that the complaint under E.O. No. 292 and
[15]

CSC rules on administrative cases both refer to the actual charge to which the
person complained of is required to answer and indicate whether or not he
elects a formal investigation should his answer be deemed not satisfactory.

In this case, respondent Castillejos letter-complaint contained the following

averments:

The undersigned wish to file his complaint against Mr. Florian R. Gaoiran, Head
Teacher III of Angadanan Agro-Industrial College for mauling him last August 15,
1997 at around 2:30 in the afternoon for the accused to be disciplined. The case is now
filed in the Court of Justice docketed under Criminal Case No. 97-42 for Assault to
Person in Authority.

I am Mr. Edmond M. Castillejo, Administrative Officer II of Angadanan Agro-

Industrial College, Angadanan, Isabela, furnishing you a copy of my complaint filed
in court, all under oath, for you to determine the gravity of the case administratively.
Mr. Florian R. Gaoiran is now intimidating two of the witnesses against him thats why
may I request for an immediate investigation of the case, by the commission, for him
to be suspended or probably removed from the service to avoid him from threatening
the witnesses.

Your preferential attention and favorable action in this request are earnestly requested
and will be highly appreciated.[16]

Acting thereon, the CHED referred the matter to its Office of Legal Affairs
Service and Atty. Dasig, as OIC Director thereof, conducted a fact-finding
investigation on the incident. The said letter-complaint did not, by itself,
commence the administrative proceedings against the petitioner, requiring an
answer from him, but, as already mentioned, merely triggered a fact-finding
investigation by the CHED.

The Court cannot, therefore, uphold the petitioners contention that

respondent Castillejos letter-complaint was inexistent and could not be acted
upon by the CHED for to do so, would result in an absurd and restrictive
interpretation of E.O. No. 292 and effectively deprive the Government of its
disciplining power over people who hold a public trust. [17]

In this case, it was the formal charge and order of preventive suspension
filed by Atty. Dasig against the petitioner charging him with grave misconduct
and conduct prejudicial to the best interest of the service and directing him to
submit his answer in writing and under oath that constituted the complaint.
Notably, Atty. Dasig signed the formal charge and order of preventive
[18]

suspension for the Commission in her capacity as then OIC of the CHEDs
Legal Affairs Service. As the complaint against the petitioner was initiated by
the appropriate disciplining authority, under Sections 46(c) and 48(1), [19]

Chapter 6, Subtitle A, Book V of E.O. No. 292, the same need not be
[20]

subscribed and sworn to. Neither is it required that the same contain a
verification of non-forum shopping.

Section 47(2), Chapter 7 of E.O. No. 292 provides, in part, that the
Secretaries and heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters
involving disciplinary action against officers and employees under their
jurisdiction. Since it was the CHED, as the disciplining authority, through Atty.
[21]
Dasig, which filed the formal charge or complaint against the petitioner,
jurisdiction was properly acquired over the case.

Anent the issue on which of the two conflicting resolutions is valid, the
Court agrees with the CA that respondent Alcalas June 3, 1999 Resolution
dismissing the petitioner from the service prevails over that of Director Mayos
February 20, 1999 Resolution dismissing the administrative complaint.

First, the basis for the dismissal of the administrative complaint stated in
Director Mayos resolution, i.e., that the letter-complaint was not verified, is, as
earlier discussed, patently erroneous. Second, it was issued by Director Mayo
in excess of his authority. It is borne by the records that Atty. Dasig already
filed the formal charge against the petitioner after a fact-finding investigation
had been conducted on the mauling incident and a prima facie case had been
established against him. The formal charge was filed as early as July 27, 1998
and, on September 21, 1998, Atty. Dasig submitted her memorandum to
respondent Alcala recommending the petitioners dismissal. It was, thus, highly
irregular for Director Mayo to dismiss the administrative complaint against the
petitioner long after the formal charge had already been filed against him and
the matter was already for respondent Alcalas resolution. Third, respondent
Alcala, by reason of his position as then Chairman of the CHED, had the
authority to reverse and set aside the acts or issuances of his subordinates.
His June 3, 1999 Resolution dismissing the petitioner from the service, in
effect, reversed and set aside the Resolution dated February 20, 1999 of
Director Mayo, his subordinate.

Finally, the petitioner insists that no formal investigation was conducted

after the formal charge had been filed against him in violation of Section 22 of
CSC Resolution No. 94-0521 which reads:

Section 22. Conduct of Formal Investigation. A formal investigation shall be held

after the respondent has filed his answer or after the period for filing an answer has
expired. It shall be completed within thirty (30) days from the date of the service of
the formal charge, unless the period is extended by the Commission in meritorious
cases.

Although the respondent did not elect a formal investigation, one shall nevertheless be
conducted if upon evaluation of the complaint, the answer, and the documents in
support thereof, the merits of the case cannot be judiciously resolved without
conducting such formal investigation.

The petitioners allegation is, however, belied by respondent Alcalas

statement in his resolution, to wit:

Nevertheless, during the formal investigation of the case, respondent [referring to the
petitioner] failed to submit his written counter-affidavit/answer to the charges filed
against him by the complainant so he was declared in default. This notwithstanding,
the oral testimony given during the fact-finding investigation was considered in his
(respondents) favor to enable this office to determine the veracity of the allegations
imputed against the respondent.

After weighing all the evidences [sic] submitted and the testimonies given by the
witnesses for both complainant and the respondent, this office finds substantial
evidence to hold the respondent administratively liable for violation of subparagraphs
(2) and (27) of Section 46(b), Chapter 7, Title I-A, Book V of Executive Order No.
292 otherwise known as the Administrative Code of 1987. [22]

Significantly, the petitioner cannot rightfully claim that he was denied

procedural due process. What is repugnant to due process is the denial of the
opportunity to be heard. The petitioner was undoubtedly afforded the
[23]

opportunity to present his side as he was directed to file his written answer to
the formal charge against him. He opted not to do so. He cannot now feign
denial of due process.

Under Section 22, Rule XIV of the Omnibus Rules Implementing Book V of
E.O. No. 292, grave misconduct on first offense is punishable by dismissal.
On the other hand, conduct grossly prejudicial to the best interest of the
service on first offense is punishable by suspension for six months and one
day to one year.

In fine, the appellate court committed no reversible error in upholding

respondent Alcalas Resolution of June 3, 1999 finding the petitioner guilty of
grave misconduct and conduct prejudicial to the best interest of the service
and dismissing him therefrom.
 WHEREFORE, premises considered, the petition is DENIED. The
Decision dated September 10, 2001 of the Court of Appeals in CA-G.R. SP
No. 61477 is AFFIRMED in toto.

SO ORDERED.