Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-23004 June 30, 1965

MAKATI STOCK EXCHANGE, INC., petitioner, vs. SECURITIES AND EXCHANGE COMMISSION and MANILA STOCK EXCHANGE, respondents.

Hermenegildo B. Reyes for petitioner. Office of the Solicitor General for respondent Securities and Exchange Commission. Norberto J. Quisumbing and Emma Quisumbing-Fernando for respondent Manila Stock Exchange.

BENGZON, C.J.:

This is a review of the resolution of the Securities and Exchange Commission which would deny the Makati Stock Exchange, Inc., permission to operate a stock exchange unless it agreed not to list for trading on its board, securities already listed in the Manila Stock Exchange.

Objecting to the requirement, Makati Stock Exchange, Inc. contends that the Commission has no power to impose it and that, anyway, it is illegal, discriminatory and unjust.

Under the law, no stock exchange may do business in the Philippines unless it is previously registered with the Commission by filing a statement containing the information described in Sec. 17 of the Securities Act (Commonwealth Act 83, as amended).

It is assumed that the Commission may permit registration if the section is complied with; if not, it may refuse. And there is now no question that the section has been complied with, or would be complied with, except that the Makati Stock Exchange, upon challenging this particular requirement of the Commission (rule against double listing) may be deemed to have shown inability or refusal to abide by its rules, and thereby to have given ground for denying registration. [Sec. 17 (a) (1) and (d)].

Such rule provides: "... nor shall a security already listed in any securities exchange be listed anew in any other securities exchange ... ."

The objection of Makati Stock Exchange, Inc., to this rule is understandable. There is actually only one securities exchange — The Manila Stock Exchange — that has been operating alone for the past 25 years; and all — or presumably all — available or worthwhile securities for trading in the market are now listed there. In effect, the Commission permits the Makati Stock Exchange, Inc., to deal only with other securities. Which is tantamount to permitting a store to open provided it sells only those goods not sold in other stores. And if there's only one existing store, 1 the result is a monopoly.

It is not farfetched to assert — as petitioner does 2 that for all practical purposes, the Commission's order or resolution would make it impossible for the Makati Stock Exchange to operate. So, its "permission" amounted to a "prohibition."

Apparently, the Commission acted "in the public interest." 3 Hence, it is pertinent to inquire whether the Commission may "in the public interest" prohibit (or make impossible) the establishment of another stock exchange (besides the Manila Stock Exchange), on the ground that the operation of two or more exchanges adversely affects the public interest.

At first glance, the answer should be in the negative, because the law itself contemplated, and, therefore, tacitly permitted or tolerated at least, the operation of two or more exchanges.

Wherever two or more exchanges exist, the Commission, by order, shall require and enforce uniformity of trading regulations in and/or between said exchanges. [Emphasis Ours] (Sec. 28b-13, Securities Act.)

In fact, as admitted by respondents, there were five stock exchanges in Manila, before the Pacific War (p. 10, brief), when the Securities Act was approved or amended. (Respondent Commission even admits that dual listing was practiced then.) So if the existence of more than one exchange were contrary to public interest, it is strange that the Congress having from time to time enacted legislation

amending the Securities Act, 4 has not barred multiplicity of exchanges.

Forgetting for the moment the monopolistic aspect of the Commission's resolution, let us examine the authority of the Commission to promulgate and implement the rule in question.

It is fundamental that an administrative officer has only such powers as are expressly granted to him by the statute, and those necessarily implied in the exercise thereof.

In its brief and its resolution now subject to review, the Commission cites no provision expressly supporting its rule. Nevertheless, it suggests that the power is "necessary for the execution of the functions vested in it"; but it makes no explanation, perhaps relying on the reasons advanced in support of its position that trading of the same securities in two or more stock exchanges, fails to give protection to the investors, besides contravening public interest. (Of this, we shall treat later) .

On the legality of its rule, the Commission's argument is that: (a) it was approved by the Department Head — before the War; and (b) it is not in conflict with the provisions of the Securities Act. In our opinion, the approval of the Department, 5 by itself, adds no weight in a judicial litigation; and the test is not whether the Act forbids the Commission from imposing a prohibition, but whether it empowers the Commission to prohibit. No specific portion of the statute has been cited to uphold this power. It is not found in sec. 28 (of the Securities Act), which is entitled "Powers (of the Commission) with Respect to Exchanges and Securities." 6

According to many court precedents, the general power to "regulate" which the Commission has (Sec. 33) does not imply authority to prohibit." 7

The Manila Stock Exchange, obviously the beneficiary of the disputed rule, contends that the power may be inferred from the express power of the Commission to suspend trading in a security, under said sec. 28 which reads partly:

And if in its opinion, the public interest so requires, summarily to

suspend trading in any registered security on any securities exchange ... . (Sec. 28[3], Securities Act.)

However, the Commission has not acted — nor claimed to have acted — in pursuance of such authority, for the simple reason that suspension under it may only be for ten days. Indeed, this section, if applicable, precisely argues against the position of the Commission because the "suspension," if it is, and as applied to Makati Stock Exchange, continues for an indefinite period, if not forever; whereas this Section 28 authorizes suspension for ten days only. Besides, the suspension of trading in the security should not be on one exchange only, but on all exchanges; bearing in mind that suspension should be ordered "for the protection of investors" (first par., sec. 28) in all exchanges, naturally, and if "the public interest so requires" [sec. 28(3)].

This brings up the Commission's principal conclusions underlying its determination viz.: (a) that the establishment of another exchange in the environs of Manila would be inimical to the public interest; and (b) that double or multiple listing of securities should be prohibited for the "protection of the investors."

(a) Public Interest — Having already adverted to this aspect of the matter, and the emerging monopoly of the Manila Stock Exchange, we may, at this juncture, emphasize that by restricting free competition in the marketing of stocks, and depriving the public of the advantages thereof the Commission all but permits what the law punishes as monopolies as "crimes against public interest." 8

"A stock exchange is essentially monopolistic," the Commission states in its resolution (p. 14-a, Appendix, Brief for Petitioner). This reveals the basic foundation of the Commission's process of reasoning. And yet, a few pages afterwards, it recalls the benefits to be derived "from the existence of two or more exchanges," and the desirability of "a healthy and fair competition in the securities market," even as it expresses the belief that "a fair field of competition among stock exchanges should be encouraged only to resolve, paradoxically enough, that Manila Stock Exchange shall, in effect, continue to be the only stock exchange in Manila or in the Philippines.

"Double listing of a security," explains the Commission, "divides the sellers and the buyers, thus destroying the essence of a stock exchange as a two-way auction market for the securities, where all the buyers and sellers in one geographical area converge in one defined place, and the bidders compete with each other to purchase the security at the lowest possible price and those seeking to sell it compete with each other to get the highest price therefor. In this sense, a stock exchange is essentially monopolistic."

Inconclusive premises, for sure. For it is debatable whether the buyer of stock may get the lowest price where all the sellers assemble in only one place. The price there, in one sale, will tend to fix the price for the succeeding, sales, and he has no chance to get a lower price except at another stock exchange. Therefore, the arrangement desired by the Commission may, at most, be beneficial to sellers of stock — not to buyers — although what applies to buyers should obtain equally as to sellers (looking for higher prices). Besides, there is the brokerage fee which must be considered. Not to mention the personality of the broker.

(b) Protection of investors. — At any rate, supposing the arrangement contemplated is beneficial to investors (as the Commission says), it is to be doubted whether it is "necessary" for their "protection" within the purview of the Securities Act. As the purpose of the Act is to give adequate and effective protection to the investing public against fraudulent representations, or false promises and the imposition of worthless ventures, 9 it is hard to see how the proposed concentration of the market has a necessary bearing to the prevention of deceptive devices or unlawful practices. For it is not mere semantics to declare that acts for the protection of investors are necessarily beneficial to them; but not everything beneficial to them is necessary for their protection.

And yet, the Commission realizes that if there were two or more exchanges "the same security may sell for more in one exchange and sell for less in the other. Variance in price of the same security would be the rule ... ." Needless to add, the brokerage rates will also differ.

This, precisely, strengthens the objection to the Commission's ruling. Such difference in prices and rates gives the buyer of shares

alternative options, with the opportunity to invest at lower expense; and the seller, to dispose at higher prices. Consequently, for the investors' benefit (protection is not the word), quality of listing 10 should be permitted, nay, encouraged, and other exchanges allowed to operate. The circumstance that some people "made a lot of money due to the difference in prices of securities traded in the stock exchanges of Manila before the war" as the Commission noted, furnishes no sufficient reason to let one exchange corner the market. If there was undue manipulation or unfair advantage in exchange trading the Commission should have other means to correct the specific abuses.

Granted that, as the Commission observes, "what the country needs is not another" market for securities already listed on the Manila Stock Exchange, but "one that would focus its attention and energies on the listing of new securities and thus effectively help in raising capital sorely needed by our ... unlisted industries and enterprises."

Nonetheless, we discover no legal authority for it to shore up (and stifle) free enterprise and individual liberty along channels leading to that economic desideratum. 11

The Legislature has specified the conditions under which a stock exchange may legally obtain a permit (sec. 17, Securities Act); it is not for the Commission to impose others. If the existence of two competing exchanges jeopardizes public interest — which is doubtful — let the Congress speak. 12 Undoubtedly, the opinion and recommendation of the Commission will be given weight by the Legislature, in judging whether or not to restrict individual enterprise and business opportunities. But until otherwise directed by law, the operation of exchanges should not be so regulated as practically to create a monopoly by preventing the establishment of other stock exchanges and thereby contravening:

(a) the organizers' (Makati's) Constitutional right to equality before the law;

(b) their guaranteed civil liberty to pursue any lawful employment or trade; and

(c) the investor's right to choose where to buy or to sell, and his

privilege to select the brokers in his employment. 13

And no extended elucidation is needed to conclude that for a licensing officer to deny license solely on the basis of what he believes is best for the economy of the country may amount to regimentation or, in this instance, the exercise of undelegated legislative powers and discretion.

Thus, it has been held that where the licensing statute does not expressly or impliedly authorize the officer in charge, he may not refuse to grant a license simply on the ground that a sufficient number of licenses to serve the needs of the public have already been issued. (53 C.J.S. p. 636.)

Concerning res judicata. — Calling attention to the Commission's order of May 27, 1963, which Makati Stock did not appeal, the Manila Stock Exchange pleads the doctrine of res judicata. 14 (The order now reviewed is dated May 7, 1964.)

It appears that when Makati Stock Exchange, Inc. presented its articles of incorporation to the Commission, the latter, after making some inquiries, issued on May 27, 1963, an order reading as follows.

Let the certificate of incorporation of the MAKATI STOCK EXCHANGE be issued, and if the organizers thereof are willing to abide by the foregoing conditions, they may file the proper application for the registration and licensing of the said Exchange.

In that order, the Commission advanced the opinion that "it would permit the establishment and operation of the proposed Makati Stock Exchange, provided ... it shall not list for trading on its board, securities already listed in the Manila Stock Exchange ... ."

Admittedly, Makati Stock Exchange, Inc. has not appealed from that order of May 27, 1963. Now, Manila Stock insists on res judicata.

Why should Makati have appealed? It got the certificate of incorporation which it wanted. The condition or proviso mentioned would only apply if and when it subsequently filed the application for registration as stock exchange. It had not yet applied. It was not the time to question the condition; 15 Makati was still exploring the

convenience of soliciting the permit to operate subject to that condition. And it could have logically thought that, since the condition did not affect its articles of incorporation, it should not appeal the order (of May 27, 1963) which after all, granted the certificate of incorporation (corporate existence) it wanted at that time.

And when the Makati Stock Exchange finally found that it could not successfully operate with the condition attached, it took the issue by the horns, and expressing its desire for registration and license, it requested that the condition (against double listing) be dispensed with. The order of the Commission denying, such request is dated May 7, 1964, and is now under, review.

Indeed, there can be no valid objection to the discussion of this issue of double listing now, 16 because even if the Makati Stock Exchange, Inc. may be held to have accepted the permission to operate with the condition against double listing (for having failed to appeal the order of May 27, 1963), still it was not precluded from afterwards contesting 17 the validity of such condition or rule:

(1) An agreement (which shall not be construed as a waiver of any constitutional right or any right to contest the validity of any rule or regulation) to comply and to enforce so far as is within its powers, compliance by its members, with the provisions of this Act, and any amendment thereto, and any rule or regulation made or to be made thereunder. (See. 17-a-1, Securities Act [Emphasis Ours].)

Surely, this petition for review has suitably been coursed. And making reasonable allowances for the presumption of regularity and validity of administrative action, we feel constrained to reach the conclusion that the respondent Commission possesses no power to impose the condition of the rule, which, additionally, results in discrimination and violation of constitutional rights.

ACCORDINGLY, the license of the petition to operate a stock exchange is approved without such condition. Costs shall be paid by the Manila Stock Exchange. So ordered.

Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur. Barrera, J., is on leave.

Footnotes

1Selling all goods usually needed in the community.

2"Its members (Makati's) will not ... spend their time exclusively in securities which are new and unknown to the public, with prospect of losing their capital and wasting their time." (quoted on p. 57, Brief of Commission.)

3The Commission's brief denies this (p. 15); but it is contradicted by the brief of Manila Stock Exchange, p. 3.

4Commonwealth Acts 283 and 290; Republic Acts 635 and 1143.

5The present Department Head is quoted as hinting a desire for review thereof. (p. 3, Brief of Commission.)

6In its brief, the Commission points to its authority (under Sec. 28b-3) "to alter or supplement the Rules of such exchange, ... in respect of such matters as ... the listing or striking from listing of any security."

The argument has no merit, since no change of the Rules of Makati Exchange is involved here. And a mere reading of the whole paragraph (b) will show its inapplicability to the pending controversy.

7"Regulate" does not include "prohibit." See many decisions collected in Words and Phrases, Permanent Edition, Vol. 36A, pp. 315-317. (See Republic v. Esguerra, 81 Phil. 33; Primicias v. Fugoso, 80 Phil. 71.)

8Art. 186, Revised Penal Code; Commonwealth Act 146.

9People v. Rosenthal, 68 Phil. 42;, People v. Fernandez & Trinidad, G.R. No. 46655; Lawyers Journal, Vol. VI, 589, June 18, 1538.

10It is allowed in the U.S. (p. 33, Commission's brief.)

11Figuratively speaking, why compel this new farmer (Makati Stock), to till virgin forest in order to let the other farmer (Manila Stock) occupy the plain, which after all, does not belong to him? (In the absence, of course, of special reasons calling for the exercise of the

police power by the Congress).

12Lacson v. Roque, L-6225, Jan. 10, 1953.

13Unreasonably discriminatory regulation may be set aside on such basis. — Rivera, Law of Public Administration, citing 42 Am. Jur. 429-430 and some cases.

14The Commission's printed brief does not raise it probably because although apprised of that circumstance, it proceeded to act on the Makati's request, (p. 2 brief) and issued the order of May 7.

15It was a mere anticipatory statement of what the Commission would do when the petition for registration is filed. Neither binding nor appealable. (See III Moran Comments on the Rules of Court 295 [1963 Ed.])

16Indeed, hinting some doubts about the rule, the Department Head expected a judicial review. (p. 3, Brief for Commission.)

17This incidentally disposes of the alleged acceptance of the condition by one Mr. Gaberman on which the respondents enlarged. (pp. 19-21, Brief for Commission)

   

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 90336 August 12, 1991

RUPERTO TAULE, petitioner, vs. SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO VERCELES, respondents.

Balgos & Perez and Bugaring, Tugonon & Associates Law Offices for petitioner.

Juan G. Atencia for private respondent.

GANCAYCO, J.:p

The extent of authority of the Secretary of Local Government over the katipunan ng mga barangay or the barangay councils is brought to the fore in this case.

On June 18,1989, the Federation of Associations of Barangay Councils (FABC) of Catanduanes, composed of eleven (11) members, in their capacities as Presidents of the Association of Barangay Councils in their respective municipalities, convened in Virac, Catanduanes with six members in attendance for the purpose of holding the election of its officers.

Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga, Vicente Avila of Virac, Fidel Jacob of Panganiban, Leo Sales of Caramoran and Manuel Torres of Baras. The Board of Election Supervisors/Consultants was composed of Provincial Government Operation Officer (PGOO) Alberto P. Molina, Jr. as Chairman with Provincial Treasurer Luis A. Manlapaz, Jr. and Provincial Election Supervisor Arnold Soquerata as members.

When the group decided to hold the election despite the absence of five (5) of its members, the Provincial Treasurer and the Provincial

Election Supervisor walked out.

The election nevertheless proceeded with PGOO Alberto P. Molina, Jr. as presiding officer. Chosen as members of the Board of Directors were Taule, Aquino, Avila, Jacob and Sales.

Thereafter, the following were elected officers of the FABC:

President — Ruperto Taule

Vice-President — Allan Aquino

Secretary — Vicente Avila

Treasurer — Fidel Jacob

Auditor — Leo Sales 1

On June 19, 1989, respondent Leandro I. Verceles, Governor of Catanduanes, sent a letter to respondent Luis T. Santos, the Secretary of Local Government,* protesting the election of the officers of the FABC and seeking its nullification in view of several flagrant irregularities in the manner it was conducted. 2

In compliance with the order of respondent Secretary, petitioner Ruperto Taule as President of the FABC, filed his comment on the letter-protest of respondent Governor denying the alleged irregularities and denouncing said respondent Governor for meddling or intervening in the election of FABC officers which is a purely non-partisan affair and at the same time requesting for his appointment as a member of the Sangguniang Panlalawigan of the province being the duly elected President of the FABC in Catanduanes. 3

On August 4, 1989, respondent Secretary issued a resolution nullifying the election of the officers of the FABC in Catanduanes held on June 18, 1989 and ordering a new one to be conducted as early as possible to be presided by the Regional Director of Region V of the Department of Local Government. 4

Petitioner filed a motion for reconsideration of the resolution of August 4, 1989 but it was denied by respondent Secretary in his resolution of September 5, 1989. 5

In the petition for certiorari before Us, petitioner seeks the reversal of the resolutions of respondent Secretary dated August 4, 1989 and September 5, 1989 for being null and void.

Petitioner raises the following issues:

1) Whether or not the respondent Secretary has jurisdiction to entertain an election protest involving the election of the officers of the Federation of Association of Barangay Councils;

2) Whether or not the respondent Governor has the legal personality to file an election protest;

3) Assuming that the respondent Secretary has jurisdiction over the election protest, whether or not he committed grave abuse of discretion amounting to lack of jurisdiction in nullifying the election;

The Katipunan ng mga Barangay is the organization of all sangguniang barangays in the following levels: in municipalities to be known as katipunang bayan; in cities, katipunang panlungsod; in provinces, katipunang panlalawigan; in regions, katipunang pampook; and on the national level, katipunan ng mga barangay. 6

The Local Government Code provides for the manner in which the katipunan ng mga barangay at all levels shall be organized:

Sec. 110. Organization. — (1) The katipunan at all levels shall be organized in the following manner:

(a) The katipunan in each level shall elect a board of directors and a set of officers. The president of each level shall represent the katipunan concerned in the next higher level of organization.

(b) The katipunan ng mga barangay shall be composed of the katipunang pampook, which shall in turn be composed of the presidents of the katipunang panlalawigan and the katipunang panlungsod. The presidents of the katipunang bayan in each province shall constitute the katipunang panlalawigan. The katipunang panlungsod and the katipunang bayan shall be composed of the punong barangays of cities and municipalities, respectively.

xxx xxx xxx

The respondent Secretary, acting in accordance with the provision of the Local Government Code empowering him to "promulgate in detail the implementing circulars and the rules and regulations to carry out the various administrative actions required for the initial implementation of this Code in such a manner as will ensure the least disruption of on-going programs and projects 7 issued Department of Local Government Circular No. 89-09 on April 7, 1989, 8 to provide the guidelines for the conduct of the elections of officers of the Katipunan ng mga Barangay at the municipal, city, provincial, regional and national levels.

It is now the contention of petitioner that neither the constitution nor the law grants jurisdiction upon the respondent Secretary over election contests involving the election of officers of the FABC, the katipunan ng mga barangay at the provincial level. It is petitioner's theory that under Article IX, C, Section 2 of the 1987 Constitution, it is the Commission on Elections which has jurisdiction over all contests involving elective barangay officials.

On the other hand, it is the opinion of the respondent Secretary that any violation of the guidelines as set forth in said circular would be a ground for filing a protest and would vest upon the Department jurisdiction to resolve any protest that may be filed in relation thereto.

Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on Elections shall exercise "exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction." The 1987 Constitution expanded the jurisdiction of the COMELEC by granting it appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or elective barangay officials decided by trial courts of limited jurisdiction. 9

The jurisdiction of the COMELEC over contests involving elective barangay officials is limited to appellate jurisdiction from decisions of

the trial courts. Under the law, 10 the sworn petition contesting the election of a barangay officer shall be filed with the proper Municipal or Metropolitan Trial Court by any candidate who has duly filed a certificate of candidacy and has been voted for the same office within 10 days after the proclamation of the results. A voter may also contest the election of any barangay officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines by filing a sworn petition for quo warranto with the Metropolitan or Municipal Trial Court within 10 days after the proclamation of the results of the election. 11 Only appeals from decisions of inferior courts on election matters as aforestated may be decided by the COMELEC.

The Court agrees with the Solicitor General that the jurisdiction of the COMELEC is over popular elections, the elected officials of which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. 12 It involves the choice or selection of candidates to public office by popular vote. 13 Specifically, the term "election," in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes 14 which do not characterize the election of officers in the Katipunan ng mga barangay. "Election contests" would refer to adversary proceedings by which matters involving the title or claim of title to an elective office, made before or after proclamation of the winner, is settled whether or not the contestant is claiming the office in dispute 15 and in the case of elections of barangay officials, it is restricted to proceedings after the proclamation of the winners as no pre-proclamation controversies are allowed. 16

The jurisdiction of the COMELEC does not cover protests over the organizational set-up of the katipunan ng mga barangay composed of popularly elected punong barangays as prescribed by law whose officers are voted upon by their respective members. The COMELEC exercises only appellate jurisdiction over election contests involving elective barangay officials decided by the Metropolitan or Municipal Trial Courts which likewise have limited jurisdiction. The authority of the COMELEC over the katipunan ng mga barangay is limited by law to supervision of the election of the representative of the katipunan concerned to the sanggunian in a particular level conducted by their own respective organization. 17

However, the Secretary of Local Government is not vested with

jurisdiction to entertain any protest involving the election of officers of the FABC.

There is no question that he is vested with the power to promulgate rules and regulations as set forth in Section 222 of the Local Government Code.

Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of the Administrative Code of 1987, ** the respondent Secretary has the power to "establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and on the promotion of local autonomy and monitor compliance thereof by said units."

Also, the respondent Secretary's rule making power is provided in See. 7, Chapter II, Book IV of the Administrative Code, to wit:

(3) Promulgate rules and regulations necessary to carry out department objectives, policies, functions, plans, programs and projects;

Thus, DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of his rule-making power conferred by law and which now has the force and effect of law. 18

Now the question that arises is whether or not a violation of said circular vests jurisdiction upon the respondent Secretary, as claimed by him, to hear a protest filed in relation thereto and consequently declare an election null and void.

It is a well-settled principle of administrative law that unless expressly empowered, administrative agencies are bereft of quasi- judicial powers. 19 The jurisdiction of administrative authorities is dependent entirely upon the provisions of the statutes reposing power in them; they cannot confer it upon themselves. 20 Such jurisdiction is essential to give validity to their determinations. 21

There is neither a statutory nor constitutional provision expressly or even by necessary implication conferring upon the Secretary of Local Government the power to assume jurisdiction over an election protect involving officers of the katipunan ng mga barangay. An understanding of the extent of authority of the Secretary over local governments is therefore necessary if We are to resolve the issue at

hand.

Presidential power over local governments is limited by the Constitution to the exercise of general supervision 22 "to ensure that local affairs are administered according to law." 23 The general supervision is exercised by the President through the Secretary of Local Government. 24

In administrative law, supervision means overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means 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. The fundamental law permits the Chief Executive to wield no more authority than that of checking whether said local government or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments so long as the same or its officers act within the scope of their authority. 25 Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. 26

Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the election of the officers of the katipunan. To allow respondent Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments. 27

Indeed, it is the policy of the state to ensure the autonomy of local governments. 28 This state policy is echoed in the Local Government Code wherein it is declared that "the State shall guarantee and promote the autonomy of local government units to ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." 29 To deny the Secretary of Local Government the power to review the regularity of the elections of officers of the katipunan would be to enhance the avowed state policy of promoting the autonomy of local governments.

Moreover, although the Department is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely "monitoring compliance" by local government units of such issuances. 30 To monitor means "to watch, observe or check. 31 This is compatible with the power of supervision of the Secretary over local governments which as earlier discussed is limited to checking whether the local government unit concerned or the officers thereof perform their duties as provided by statutory enactments. Even the Local Government Code which grants the Secretary power to issue implementing circulars, rules and regulations is silent as to how these issuances should be enforced. Since the respondent Secretary exercises only supervision and not control over local governments, it is truly doubtful if he could enforce compliance with the DLG Circular. 32 Any doubt therefore as to the power of the Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.

Thus, the Court holds that in assuming jurisdiction over the election protest filed by respondent Governor and declaring the election of the officers of the FABC on June 18, 1989 as null and void, the respondent Secretary acted in excess of his jurisdiction. The respondent Secretary not having the jurisdiction to hear an election protest involving officers of the FABC, the recourse of the parties is to the ordinary courts. The Regional Trial Courts have the exclusive original jurisdiction to hear the protest. 33

The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which states that "whenever the guidelines are not substantially complied with, the election shall be declared null and void by the Department of Local Government and an election shall conduct and being invoked by the Solicitor General cannot be applied. DLG Circular No. 89-15 was issued on July 3, 1989 after the

June 18, 1989 elections of the FABC officers and it is the rule in statutory construction that laws, including circulars and regulations 34 cannot be applied retrospectively. 35 Moreover, such provision is null and void for having been issued in excess of the respondent Secretary's jurisdiction, inasmuch as an administrative authority cannot confer jurisdiction upon itself.

As regards the second issue raised by petitioner, the Court finds that respondent Governor has the personality to file the protest. Under Section 205 of the Local Government Code, the membership of the sangguniang panlalawigan consists of the governor, the vice-governor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation. The governor acts as the presiding officer of the sangguniang panlalawigan. 36

As presiding officer of the sagguniang panlalawigan, the respondent governor has an interest in the election of the officers of the FABC since its elected president becomes a member of the assembly. If the president of the FABC assumes his presidency under questionable circumstances and is allowed to sit in the sangguniang panlalawigan the official actions of the sanggunian may be vulnerable to attacks as to their validity or legality. Hence, respondent governor is a proper party to question the regularity of the elections of the officers of the FABC.

As to the third issue raised by petitioner, the Court has already ruled that the respondent Secretary has no jurisdiction to hear the protest and nullify the elections.

Nevertheless, the Court holds that the issue of the validity of the elections should now be resolved in order to prevent any unnecessary delay that may result from the commencement of an appropriate action by the parties.

The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG Circular No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall preside over the reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The word

"shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory and not merely permissive, 37 as the rule is explicit and requires no other interpretation. If it had been intended that any other official should preside, the rules would have provided so, as it did in the elections at the town and city levels 38 as well as the regional level.. 39

It is admitted that neither the incumbent FABC President nor the Vice-President presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the elections should be nullified.

Under Sec. 2.3.2.7 of the same circular it is provided that a Board of Election Supervisors/Consultants shall be constituted to oversee and/or witness the canvassing of votes and proclamation of winners. The rules confine the role of the Board of Election Supervisors/Consultants to merely overseeing and witnessing the conduct of elections. This is consistent with the provision in the Local Government Code limiting the authority of the COMELEC to the supervision of the election. 40

In case at bar, PGOO Molina, the Chairman of the Board, presided over the elections. There was direct participation by the Chairman of the Board in the elections contrary to what is dictated by the rules. Worse, there was no Board of Election Supervisors to oversee the elections in view of the walk out staged by its two other members, the Provincial COMELEC Supervisor and the Provincial Treasurer. The objective of keeping the election free and honest was therefore compromised.

The Court therefore finds that the election of officers of the FABC held on June 18, 1989 is null and void for failure to comply with the provisions of DLG Circular No. 89-09.

Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition alleging that public respondent Local Government Secretary, in his memorandum dated June 7, 1990, designated Augusto Antonio as temporary representative of the Federation to the sangguniang panlalawigan of Catanduanes. 41 By

virtue of this memorandum, respondent governor swore into said office Augusto Antonio on June 14, 1990. 42

The Solicitor General filed his comment on the supplemental petition 43 as required by the resolution of the Court dated September 13,1990.

In his comment, the Solicitor General dismissed the supervening event alleged by petitioner as something immaterial to the petition. He argues that Antonio's appointment was merely temporary "until such time that the provincial FABC president in that province has been elected, appointed and qualified." 44 He stresses that Antonio's appointment was only a remedial measure designed to cope with the problems brought about by the absence of a representative of the FABC to the "sanggunian ang panlalawigan."

Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides-

(2) The sangguniang panlalawigan shall be composed of the governor, the vice-governor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation who shall be appointed by the President of the Philippines. (Emphasis supplied.)

Batas Pambansa Blg. 51, under Sec. 2 likewise states:

xxx xxx xxx

The sangguniang panlalawigan of each province shall be composed of the governor as chairman and presiding officer, the vice-governor as presiding officer pro tempore, the elective sangguniang panlalawigan members, and the appointive members consisting of the president of the provincial association of barangay councils, and the president of the provincial federation of the kabataang barangay. (Emphasis supplied.)

In Ignacio vs. Banate Jr. 45 the Court, interpreting similarly worded provisions of Batas Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of the sangguniang panlungsod, 46 declared as null and void the appointment of private respondent Leoncio Banate Jr. as member of the Sangguniang Panlungsod of the City of Roxas representing the katipunang panlungsod ng mga barangay for he lacked the elegibility and qualification required by law, not being a barangay captain and for not

having been elected president of the association of barangay councils. The Court held that an unqualified person cannot be appointed a member of the sanggunian, even in an acting capacity. In Reyes vs. Ferrer, 47 the appointment of Nemesio L. Rasgo Jr. as representative of the youth sector to the sangguniang panlungsod of Davao City was declared invalid since he was never the president of the kabataang barangay city federation as required by Sec. 173, Batas Pambansa Blg. 337.

In the present controversy involving the sangguniang panlalawigan, the law is likewise explicit. To be appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the president of the katipunang panlalawigan. The appointee must meet the qualifications set by law. 48 The appointing power is bound by law to comply with the requirements as to the basic qualifications of the appointee to the sangguniang panlalawigan. The President of the Philippines or his alter ego, the Secretary of Local Government, has no authority to appoint anyone who does not meet the minimum qualification to be the president of the federation of barangay councils.

Augusto Antonio is not the president of the federation. He is a member of the federation but he was not even present during the elections despite notice. The argument that Antonio was appointed as a remedial measure in the exigency of the service cannot be sustained. Since Antonio does not meet the basic qualification of being president of the federation, his appointment to the sangguniang panlalawigan is not justified notwithstanding that such appointment is merely in a temporary capacity. If the intention of the respondent Secretary was to protect the interest of the federation in the sanggunian, he should have appointed the incumbent FABC President in a hold-over capacity. For even under the guidelines, the term of office of officers of the katipunan at all levels shall be from the date of their election until their successors shall have been duly elected and qualified, without prejudice to the terms of their appointments as members of the sanggunian to which they may be correspondingly appointed. 49 Since the election is still under protest such that no successor of the incumbent has as yet qualified, the respondent Secretary has no choice but to have the incumbent FABC President sit as member of the sanggunian. He could even have appointed petitioner since he was elected the president of the federation but not Antonio. The appointment of Antonio, allegedly the protege of respondent Governor, gives credence to petitioner's charge of political interference by

respondent Governor in the organization. This should not be allowed. The barangays should be insulated from any partisan activity or political intervention if only to give true meaning to local autonomy.

WHEREFORE, the petition is GRANTED in that the resolution of respondent Secretary dated August 4, 1989 is hereby SET ASIDE for having been issued in excess of jurisdiction.

The election of the officials of the ABC Federation held on June 18, 1989 is hereby annulled. A new election of officers of the federation is hereby ordered to be conducted immediately in accordance with the governing rules and regulations.

The Supplemental petition is hereby GRANTED. The appointment of Augusto Antonio as representative to the Sangguniang Panlalawigan in a temporary capacity is declared null and void.

No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Footnotes

1 Page 18, Rollo.

* Now Secretary of Interior and Local Government by virtue of R.A. No. 6975.

2 Page 21, Rollo.

3 Page 23, Rollo.

4 Page 14, Rollo.

5 Page 16, Rollo.

6 Sec. 108, Batas Pambansa Blg. 337.

7 Sec. 222, ibid.

8 Amended by Department of Local Government Circular No. 8915 issued on July 3,1989.

9 Sec. 2 (2), Art. XII-C, 1973 Constitution provides as follows- 'The Commission on Elections shall have the following powers and functions: ... (2) Be the sole judge of all contests relating to the elections, returns, and qualifications of all members of the Batasang Pambansa and elective provincial and city officials. ...

10 Sec. 9, Republic Act No. 6679; Sec. 252, Batas Pambansa Blg. 881.

11 Sec. 9, Republic Act No. 6679; Sec. 253, Batas Pambansa Blg. 881.

12 Hontiveros vs. Altavos 24 Phil. 636 (1913).

13 Gonzales vs. Commission on Elections, 21 SCRA 796 (1967).

14 Javier vs. Commission on Elections, 144 SCRA 194 (1986).

15 Ibid.

16 Sec. 9, Republic Act No. 6679.

17 Sec 43, Batas Pambansa Blg, 337.

** Executive Order No. 292.

18 Cebu Institute of Technology vs. Ople, 156 SCRA 632 (1987); People vs. Maceren, 79 SCRA 450 (1977); Philippine Blooming Mills Co., Inc. vs. Social Security Commission, 17 SCRA 1077 (1966).

19 Pilipinas Shell Petroleum Corporation vs. Oil Industry Commission, 145 SCRA 433 (1986).

20 42 Am. Jur. 109.

21 Ibid.

22 Section 4, Article X, 1987 Constitution.

23 Section 14, Batas Pambansa Blg, 337.

24 Ibid.

25 Pelaez vs. Auditor General, 15 SCRA 569 (1965); Hebron vs. Reyes, 104 Phil. 175 (1958); Mondano vs. Silvosa, et al., 97 Phil. 143 (1955).

26 Hebron vs. Reyes, supra.

27 Ibid.

28 Section 25, Article II, 1987 Constitution.

29 Section 2, Batas Pambansa Blg. 337.

30 Sec. 3 (2), Chapter 1, Title XII, Book IV, Administrative Code of 1987.

31 Webster's Third New International Dictionary, 1971 ed., page 1460.

32 See Serafica vs. Treasurer of Ormoc City, 27 SCRA 1108 (1969).

33 B.P. Blg. 129, Sec. 19. provides as follows —"Jurisdiction in civil

cases.—Regional Trial Courts shall exercise original jurisdiction: ...

(6) In all cases not within the exclusive jurisdiction of any court,

tribunal, person or body exercising judicial or quasi-judicial functions.'

34 People vs. Que Po Lay, 94 Phil. 640 (1954).

35 Rumualdez III vs. Civil Service Commission and Philippine Ports Authority, G.R Nos. 94878-94881, May 15, 1991, Baltazar vs. Court of Appeals, 104 SCRA 619 (1981).

36 Section 206 (3), Batas Pambansa Blg. 337.

37 Diokno vs. Rehabilitation Finance Corp., 91 Phil. 608 (1952).

38 Sec. 2.3.2, DLG Circular No. 89-09, where only incumbent president initially presides over the reorganizational meeting.

39 Sec. 2.5, DLG Circular No. 89-09 which provides that the incumbent Regional FABC President or the vice-president or the member of the Board in succession shall temporarily preside in the reorganizational meeting.

40 Sec. 43, Batas Pambansa Blg. 337.

41 Annex A to supplemental petition, p. 60, Rollo.

42 Annex B to supplemental Petition, p. 61, Rollo.

43 P. 67, Rollo.

44 P. 68, Rollo.

45 153 SCRA 546 (1987).

46 Sec. 173 of B.P. Blg. 337 provides as follows --, "Composition and Compensation.-- (1) The sangguniang panlungsod, as the legislative body of the city, shall be composed of the vice-mayor, as presiding officer, the elected sangguniang panlungsod members, and the members who may be appointed by the President of the Philippines consisting of the presidents of the katipunang panglungsod ng mga barangay and the kabataang barangay city federation.

xxx xxx xxx

See. 3 of B.P. Blg. 51, "Cities.-- There shall be in each city such elective local officials as provided in their respective charters, including the city mayor, the city vice-mayor, and the elective members of the sangguniang panglungsod, all of whom shall be elected by the qualified voters in the city. In addition thereto, there shall be appointive sangguniang panglungsod members consisting of the president of the city organization of barangay councils, the

president of the city federation of the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall be appointed by the President ... .

47 156 SCRA 317 (1987).

48 Ibid.

49 Section 2.2., DLG Circular No. 89-09.

Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION

G.R. No. 84811 August 29, 1989

SOLID HOMES, INC., petitioner, vs. TERESITA PAYAWAL and COURT OF APPEALS, respondents.

CRUZ, J.:

We are asked to reverse a decision of the Court of Appeals sustaining the jurisdiction of the Regional Trial Court of Quezon City over a complaint filed by a buyer, the herein private respondent, against the petitioner, for delivery of title to a subdivision lot. The position of the petitioner, the defendant in that action, is that the decision of the trial court is null and void ab initio because the case should have been heard and decided by what is now called the Housing and Land Use Regulatory Board.

The complaint was filed on August 31, 1982, by Teresita Payawal against Solid Homes, Inc. before the Regional Trial Court of Quezon City and docketed as Civil Case No. Q-36119. The plaintiff alleged that the defendant contracted to sell to her a subdivision lot in Marikina on June 9, 1975, for the agreed price of P 28,080.00, and that by September 10, 1981, she had already paid the defendant the total amount of P 38,949.87 in monthly installments and interests. Solid Homes subsequently executed a deed of sale over the land but failed to deliver the corresponding certificate of title despite her repeated demands because, as it appeared later, the defendant had mortgaged the property in bad faith to a financing company. The plaintiff asked for delivery of the title to the lot or, alternatively, the return of all the amounts paid by her plus interest. She also claimed moral and exemplary damages, attorney's fees and the costs of the suit.

Solid Homes moved to dismiss the complaint on the ground that the court had no jurisdiction, this being vested in the National Housing Authority under PD No. 957. The motion was denied. The defendant

repleaded the objection in its answer, citing Section 3 of the said decree providing that "the National Housing Authority shall have exclusive jurisdiction to regulate the real estate trade and business in accordance with the provisions of this Decree." After trial, judgment was rendered in favor of the plaintiff and the defendant was ordered to deliver to her the title to the land or, failing this, to refund to her the sum of P 38,949.87 plus interest from 1975 and until the full amount was paid. She was also awarded P 5,000.00 moral damages, P 5,000.00 exemplary damages, P 10,000.00 attorney's fees, and the costs of the suit. 1

Solid Homes appealed but the decision was affirmed by the respondent court, 2 which also berated the appellant for its obvious efforts to evade a legitimate obligation, including its dilatory tactics during the trial. The petitioner was also reproved for its "gall" in collecting the further amount of P 1,238.47 from the plaintiff purportedly for realty taxes and registration expenses despite its inability to deliver the title to the land.

In holding that the trial court had jurisdiction, the respondent court referred to Section 41 of PD No. 957 itself providing that:

SEC. 41. Other remedies.-The rights and remedies provided in this Decree shall be in addition to any and all other rights and remedies that may be available under existing laws.

and declared that "its clear and unambiguous tenor undermine(d) the (petitioner's) pretension that the court a quo was bereft of jurisdiction." The decision also dismissed the contrary opinion of the Secretary of Justice as impinging on the authority of the courts of justice. While we are disturbed by the findings of fact of the trial court and the respondent court on the dubious conduct of the petitioner, we nevertheless must sustain it on the jurisdictional issue.

The applicable law is PD No. 957, as amended by PD No. 1344, entitled "Empowering the National Housing Authority to Issue Writs of Execution in the Enforcement of Its Decisions Under Presidential Decree No. 957." Section 1 of the latter decree provides as follows:

SECTION 1. In the exercise of its function to regulate the real estate trade and business and in addition to its powers provided for in Presidential Decree No. 957, the National Housing Authority shall

have exclusive jurisdiction to hear and decide cases of the following nature:

A. Unsound real estate business practices;

B. Claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker or salesman; and

C. Cases involving specific performance of contractuala statutory obligations filed by buyers of subdivision lot or condominium unit against the owner, developer, dealer, broker or salesman. (Emphasis supplied.)

The language of this section, especially the italicized portions, leaves no room for doubt that "exclusive jurisdiction" over the case between the petitioner and the private respondent is vested not in the Regional Trial Court but in the National Housing Authority. 3

The private respondent contends that the applicable law is BP No. 129, which confers on regional trial courts jurisdiction to hear and decide cases mentioned in its Section 19, reading in part as follows:

SEC. 19. Jurisdiction in civil cases.-Regional Trial Courts shall exercise exclusive original jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;

(2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts;

xxx xxx xxx

(8) In all other cases in which the demand, exclusive of interest and cost or the value of the property in controversy, amounts to more than

twenty thousand pesos (P 20,000.00).

It stresses, additionally, that BP No. 129 should control as the later enactment, having been promulgated in 1981, after PD No. 957 was issued in 1975 and PD No. 1344 in 1978.

This construction must yield to the familiar canon that in case of conflict between a general law and a special law, the latter must prevail regardless of the dates of their enactment. Thus, it has been held that-

The fact that one law is special and the other general creates a presumption that the special act is to be considered as remaining an exception of the general act, one as a general law of the land and the other as the law of the particular case. 4

xxx xxx xxx

The circumstance that the special law is passed before or after the general act does not change the principle. Where the special law is later, it will be regarded as an exception to, or a qualification of, the prior general act; and where the general act is later, the special statute will be construed as remaining an exception to its terms, unless repealed expressly or by necessary implication. 5

It is obvious that the general law in this case is BP No. 129 and PD No. 1344 the special law.

The argument that the trial court could also assume jurisdiction because of Section 41 of PD No. 957, earlier quoted, is also unacceptable. We do not read that provision as vesting concurrent jurisdiction on the Regional Trial Court and the Board over the complaint mentioned in PD No. 1344 if only because grants of power are not to be lightly inferred or merely implied. The only purpose of this section, as we see it, is to reserve. to the aggrieved party such other remedies as may be provided by existing law, like a prosecution for the act complained of under the Revised Penal Code. 6

On the competence of the Board to award damages, we find that this is part of the exclusive power conferred upon it by PD No. 1344 to hear and decide "claims involving refund and any other claims filed

by subdivision lot or condominium unit buyers against the project owner, developer, dealer, broker or salesman." It was therefore erroneous for the respondent to brush aside the well-taken opinion of the Secretary of Justice that-

Such claim for damages which the subdivision/condominium buyer may have against the owner, developer, dealer or salesman, being a necessary consequence of an adjudication of liability for non-performance of contractual or statutory obligation, may be deemed necessarily included in the phrase "claims involving refund and any other claims" used in the aforequoted subparagraph C of Section 1 of PD No. 1344. The phrase "any other claims" is, we believe, sufficiently broad to include any and all claims which are incidental to or a necessary consequence of the claims/cases specifically included in the grant of jurisdiction to the National Housing Authority under the subject provisions.

The same may be said with respect to claims for attorney's fees which are recoverable either by agreement of the parties or pursuant to Art. 2208 of the Civil Code (1) when exemplary damages are awarded and (2) where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff 's plainly valid, just and demandable claim.

xxx xxx xxx

Besides, a strict construction of the subject provisions of PD No. 1344 which would deny the HSRC the authority to adjudicate claims for damages and for damages and for attorney's fees would result in multiplicity of suits in that the subdivision condominium buyer who wins a case in the HSRC and who is thereby deemed entitled to claim damages and attorney's fees would be forced to litigate in the regular courts for the purpose, a situation which is obviously not in the contemplation of the law. (Emphasis supplied.) 7

As a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular fields assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from

the legislature or the courts of justice. This is the reason for the increasing vesture of quasi-legislative and quasi-judicial powers in what is now not unreasonably called the fourth department of the government.

Statutes conferring powers on their administrative agencies must be liberally construed to enable them to discharge their assigned duties in accordance with the legislative purpose. 8 Following this policy in Antipolo Realty Corporation v. National Housing Authority, 9 the Court sustained the competence of the respondent administrative body, in the exercise of the exclusive jurisdiction vested in it by PD No. 957 and PD No. 1344, to determine the rights of the parties under a contract to sell a subdivision lot.

It remains to state that, contrary to the contention of the petitioner, the case of Tropical Homes v. National Housing Authority 10 is not in point. We upheld in that case the constitutionality of the procedure for appeal provided for in PD No. 1344, but we did not rule there that the National Housing Authority and not the Regional Trial Court had exclusive jurisdiction over the cases enumerated in Section I of the said decree. That is what we are doing now.

It is settled that any decision rendered without jurisdiction is a total nullity and may be struck down at any time, even on appeal before this Court. 11 The only exception is where the party raising the issue is barred by estoppel, 12 which does not appear in the case before us. On the contrary, the issue was raised as early as in the motion to dismiss filed in the trial court by the petitioner, which continued to plead it in its answer and, later, on appeal to the respondent court. We have no choice, therefore, notwithstanding the delay this decision will entail, to nullify the proceedings in the trial court for lack of jurisdiction.

WHEREFORE, the challenged decision of the respondent court is REVERSED and the decision of the Regional Trial Court of Quezon City in Civil Case No. Q-36119 is SET ASIDE, without prejudice to the filing of the appropriate complaint before the Housing and Land Use Regulatory Board. No costs.

SO ORDERED.

Narvasa, Gancayco, Griñ;o-Aquino and Medialdea, JJ., concur.

Footnotes

1 Rollo, pp. 6 & 14.

2 Tensuan, J., ponente, with Nocon and Kalalo, JJ., concurring.

3 Under E.O. No. 648 dated Feb. 7, 1981, the regulatory functions conferred on the National Housing Authority under P.D. Nos. 957, 1216, 1344 and other related laws were transferred to the Human Settlements Regulatory Commission, which was renamed Housing and Land Use Regulatory Board by E.O. No. 90 dated Dec. 17, 1986.

4 Manila Railroad Co. v. Rafferty, 40 Phil. 224 (1919); Butuan Sawmill, Inc. v. City of Butuan, 16 SCRA 758-1 Bagatsing v. Ramirez, 74 SCRA 306.

5 59 C.J., 1056-1058.

6 Article 316.

7 Min. of Justice Op. No. 271, s. 1982.

8 Cooper River Convalescent Ctr., Inc. v. Dougherty, 356 A. 2d 55, 1975.

9 153 SCRA 399.

10 152 SCRA 54.

11 Trinidad v. Yatco, 1 SCRA 866; Corominas, Jr. v. Labor Standards Commission, 2 SCRA 721; Sebastian v. Gerardo, 2 SCRA 763; Buena v. Sapnay, 6 SCRA 706.

12 Tijam v. Sibonghanoy, 23 SCRA 29; Philippine National Bank v. IAC, 143 SCRA 299; Tan Boon Bee & Company, Inc. v. Judge Jarencio, G.R. No. 41337, June 30, 1988.

     

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 96681 December 2, 1991

HON. ISIDRO CARIÑO, 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 Cariño 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 (Cariño), 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 Cariño requiring his attendance therein. 11

On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cariño) 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 Cariño, 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 Cariño 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 Cariño 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 Cariño 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. Cariño'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 Cariño, 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 Cariño, 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 Cariño 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, Griño-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.

# Footnotes

1 Rollo, pp. 6-13.

2 G.R. No. 95445 (Manila Public School Teachers Association, et al. v. Hon. Perfecto Laguio, Jr., etc., et al) and G.R. No. 95590 (Alliance of Concerned Teachers [ACT], et al. v. Hon. Isidro Cariño, etc., et al.).

3 (Joint) Resolution, G.R. Nos. 95445 and 95590, prom. Aug. 6, 1991, pp. 3-4.

4 Rollo, p. 7.

5 Id., p. 7.

6 Also impleaded as respondents were other teachers, Adelaida dela Cruz, Ma. Teresa Rizardo, Rita Atabelo and Digna Operiano (Rollo, p. 77).

7 Rollo, pp. 77-78.

8 Id., pp. 77-81.

9 Id., pp. 7-8, and 47-50 (Annex "I," petition: Decision of Judge Perfecto A.S. Laguio in Civil Case No. 90-54468 of the RTC of Manila [Branch 18] entitled Manila Public School Teachers Association, et al.

v. Hon. Isidro Cariño and Hon. Erlinda Lolarga).

10 Id., pp. 8; 51-52 (Annex J, Petition: Pinagsamang Sinumpaang Salaysay of 7 affiants including respondents Budoy, Babaran, and del Castillo), and 53-54 (Annex K, petition: sworn statement given by Apolinario Esber under questioning by Nicanor S. Agustin, CHR).

11 Id., p. 56: Order in Striking Teachers CHR Case No. 90-775, 1st par., p. 1.

12 Id., 1st and 2nd pars., p. 1.

13 Id., pp, 56-57.

14 Id., pp, 11-58-76 (Annex M, petition).

15 SEE footnote 8 and related text, supra.

16 SEE footnote 3, supra.

17 Rollo, p. 11.

18 Id., pp. 12-13.

19 Including Regional Trial Courts designated and acting as Special Agrarian Courts, and the Court of Tax Appeals. SEE Supreme Court Circular No. 1-91 eff. April 1, 1991.

20 Vested with judicial authority or quasi-judicial powers are such agencies, boards or officers like the Securities & Exchange Commission, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform, Government Service Insurance System, Employees' Compensation Commission, Philippine Atomic Energy Commission. SEE Circular No. 1-91, supra. Also possessed of quasi-judicial authorities are department heads and heads of office under the Civil Service Law, and the Ombudsman.

21 The nature of a "judicial function" was inter alia described in Republic of the Philippines (PCGG) v. Sandiganbayan, et al., G.R. No. 90478 as follows: "The resolution of controversies is, as everyone knows, the raison d'etre of courts. This essential function is accomplished by first, the ascertainment of all the material and relevant facts from the pleadings and from the evidence adduced by the parties, and second after that determination of the facts has been completed, by the application of the law thereto to the end that the controversy may be settled authoritatively, definitively and finally."

. . . "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." . . . Mun. Council of Lemery v. Prov. Board of Batangas, 56 Phil. 260, 270, citing State ex rel. Boards of Commrs. v. Dunn, 86 Minn. 301, 304.

It has been held that a special civil action of certiorari "would not lie to challenge action of the "Integrity Board" set up by Executive

Order No. 318 of May 25, 1950, because that board, like the later Presidential Complaints and Action Commission, was not invested with judicial functions but only with power to investigate charges of graft and corruption in office and to submit the record, together with findings and recommendations, to the President." Ruperto v. Torres G.R. No. L-8785, Feb. 25, 1957 (Unrep., 100 Phil. 1098) (Rep. of the Phil. Digest, Vol. 1, Certiorari, Sec. 22, p. 430).

Ballentine's Law Dictionary, 3rd Ed., treating of "jurisdiction" in relation to a criminal case, states it to be "the power of a court to inquire into the fact, to apply the law, and to declare the punishment, in a regular course of judicial proceeding . . ." In Black's Law Dictionary 5th Ed., "adjudge" is defined as: "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 (emphasis supplied).

22 A distinguished Member of the Constitutional Commission that drew up the 1987 Constitution, Fr. Joaquin Bernas, S.J., citing the

Commission's official records, states that the "principal function of the Commission (on Human Rights) is investigatory. In fact, in terms of law enforcement, this pretty much is the limit of its function. Beyond investigation, it will have to rely on the Justice Department which has full control over prosecutions. Thus, under Section 18 (9) it can only request assistance from executive offices." (Bernas, The Constitution of the Republic of the Philippines, a Commentary, 1988 ed., Vol. II p. 503/).

23 Art. XIII, Sec. 17. (1).

24 Id., Sec. 17. (3).

25 Id., Sec. 18.

26 E.g.: the prosecution of persons guilty of crimes, or institution of civil or administrative proceedings; exercise of visitorial powers over jails, prisons, or detention facilities; the submission of recommendations to the Congress of measures to promote human rights provide for compensation to victims of violations thereof, etc.

27 Webster's Third New International Dictionary. The Oxford English Dictionary (2d ed., 1961) definition is: "To search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into." The American College Encyclopedic Dictionary (1959 ed.) defines (a) "investigate" as "to search or examine into the particulars of; examine in detail;" and (b) "investigation," an act or process of investigating; a searching inquiry in order to ascertain facts; a detailed or careful examination.

28 Black's Law Dictionary, 5th ed.

29 Ballentine's Law Dictionary, 3rd Ed.

30 Webster's Third New International Dictionary. The Oxford English Dictionary (2d ed., 1961) definition is "To adjudge; to award; "to give something controverted to one of the litigants, by a sentence or decision. . . . To try and determine judicially; to pronounce by sentence of court. . . . To sit in judgment and pronounce sentence; to act as a judge, or court of judgment."

31 Id., the Oxford English Dictionary (2d ed., 1961) definition is "To settle, determine, or decide judicially; to adjudicate upon; . . . To pronounce or decree by judicial sentence . . . To award judicially; to grant, bestow, or impose by judicial sentence . . . ."

32 Black's Law Dictionary, 5th ed.; in Ballentine's Law Dictionary, "adjudicate" is defined as: "To give judgment; to render or award judgment," and "adjudge" as: "To give judgment; to decide, to sentence." In Bouvier's Law Dictionary Third Revision (8th Ed.), "adjudication" is defined as "A judgment; giving or pronouncing judgment in a case. Determination in the exercise of judicial power."

33 SEE footnotes 6 to 8, and 15, and related text, supra.

34 SEE footnotes 16 and 17 related text, supra.

35 SEE footnote 26, supra.

Republic of the Philippines SUPREME COURT Manila

EN BANC

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.

Footnotes

1 The executive order is valid and subsisting notwithstanding the enactment of Republic Act No. 2260 as interpreted by this Court in L-21008, Diaz, et al. promulgated October 29, 1965.

PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. 101666 June 9, 1992 ELISEO L. RUIZ vs. FRANKLIN DRILON

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 101666 June 9, 1992

DR. ELISEO L. RUIZ, President of Central Luzon State University (CLSU), Muñoz, Nueva Ecija, petitioner, vs. HONORABLE EXECUTIVE SECRETARY

FRANKLIN DRILON, HON. ISIDRO CARIÑO, 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), Muñoz, Nueva Ecija, petitioner,

vs.

THE HON. COURT OF APPEALS; HON. ISIDRO CARIÑO, in his capacity as DECS Secretary; MARINA S.J. PANGAN, in her capacity as Asst. Secretary

of DECS and DR. FORTUNATO BATTAD, respondents.

R E S O L U T I O N

FELICIANO, J.:p

I

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 assigned to the Second Division. 9 This case was consolidated with G.R. No. 101666, by this time pending with 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, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Bellosillo, JJ, concur.

Nocon, J., is on leave.

Footnotes

1 Rollo, p. 31. Unless otherwise qualified, the term "Rollo" shall refer to the Rollo of G.R. No. 101666.

2 Id., pp. 34-36.

3 Id., p. 267.

4 Id., p. 398.

5 Id., pp. 1 and 18.

6 Id., p. 203.

7 Id., pp. 267-269.

8 Id., p. 405.

9 Id., G.R. No. 103570, p. 12.

10 Id., p. 316-A.

11 Id., pp. 266, 367-371.

12 Rollo, p. 401.

13 Tan v. Court of Appeals, 199 SCRA 212, 224-225 [1991]; see also New Pangasinan Review, Inc. v. National Labor Relations Commission, 196 SCRA 55, 65-66 (1991).

14 Resolution of July 31, 1986, G.R. No. 75197, E. Razon Inc., et. al. v. Philippine Ports Authority, et. al.; reiterated in Buan v. Lopez, Jr., 145 SCRA 34, 38-39 (1986), Alonto, Jr. v. Memoracion [En Banc], 185 SCRA 73, 78-79 (1990) and in Benguet Electric Cooperative, Inc. v. National Electrification Administration, 193 SCRA 250, 255-256 (1991).

15 Rollo, pp. 242-243.

16 Collado v. Hernando, 161 SCRA 639, 645 (1988).

17 Air Manila, Inc. v. Balatbat, 38 SCRA 489 (1971); Villa v. Lazaro, 189 SCRA 34, 44 (1990).

18 Rollo, pp. 30-31.

19 Section 46(b), sub-paragraphs 1 and 4, Chapter 7. sub-title A, Title I, Book 5, Revised Administrative Code of 1987; Civil Service Memorandum Circular No. 30 (series of 1989). paragraph A, sub-paragraphs 1 and 3.

Republic of the Philippines SUPREME COURT Manila

EN BANC

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.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis-à-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 citizen's basic due process rights, or the government's 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 preliminary, 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 respondent's 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 Department's 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 petitioner's 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 o'clock 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 respondent's 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.

(Sec. 4. Presidential Decree No. 1069.)

Sec. 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).1âwphi1.nêt

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 body's 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 or 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 or 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 agency's 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 body's 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 extraditee's 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 one's 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 one's 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.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's 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 petitioner's 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

preserved 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 Owner's 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 respondent's 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 proceeding 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 government of the asylum state to effect 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 petitioner's 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 provincial 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 person's 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 court's 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 petitioner's primary concern is the possible delay in the evaluation process.

We agree with private respondent's 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 Respondent's Memorandum.)

In the Philippine context, this Court's 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 individual's 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 petitioner's 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 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 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 respondent's 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 concerns 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 respondent's 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 nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land 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 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 pined 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 petitioner's 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 petitioner's 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 or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's 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 proceeding is an

opportunity to explain one's 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. Petitioner's fears that the Requesting State may have valid objections to the Requested State's 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 petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's 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 respondent's 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.

Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., I join Mr. Justice Puno in his dissent. Puno, J., please see dissent. Vitug, J., see separate opinion. Kapunan, J., see separate concurring opinion. Panganiban, J., please see my dissenting opinion. Mendoza, J., I join the dissents of Puno and Panganiban, JJ. Quisumbing, J., with concurring opinion. Pardo, J., I join J. Puno & J. Panganiban. Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban. Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions

VITUG, J., separate opinion;

The only real issue before the Court, I would take it, is whether or not private respondent can validly ask for copies of pertinent documents while the application for extradition against him is still undergoing process by the Executive Department.

There is, I agree with the majority, a right of access to such extradition documents conformably with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right to free access to information of public concern is circumscribed only by the fact that the desired information is not among the species exempted by law from the operation of the constitutional guaranty and that the exercise of the right conforms with such reasonable conditions as may be prescribed by law.

There is no hornbook rule to determine whether or not an information is of public concern. The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters which the public may want to know either because the subject thereof can affect their lives or simply because it arouses concern.2

I am not convinced that there is something so viciously wrong with, as to deny, the request of private respondent to be furnished with copies of the extradition documents.

I add. The constitutional right to due process secures to everyone an opportunity to be heard, presupposing foreknowledge of what he may be up against, and to submit any evidence that he may wish to proffer in an effort to clear himself. This right is two-pronged — substantive and procedural due process — founded, in the first instance, on Constitutional or statutory provisions, and in the second instance, on accepted rules of procedure.3 Substantive due process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to his life, liberty and property. Procedural due process — the more litigated of the two — focuses on the rules that are established in order to ensure meaningful adjudication in the enforcement and implementation of the law. Like "public concern," the term due process does not admit of any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past course of decisions, and stout confidence in the democratic faith."4 The framers of our own Constitution, it would seem, have deliberately intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation calling for its application that makes it appropriate to accept an enlarged concept of the term as and when there is a possibility that the right of an individual to life, liberty and property might be diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property of any person in any proceeding conducted by or under the auspices of the State, his right to due process of law, when demanded, must not be ignored.

A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition Treaty between the Government of the Republic of the Philippines and the Government of the United States of America provides that in case of urgency, a Contracting Party may request the provisional arrest of the person prior to the presentation of the request for extradition. I see implicit in this provision that even after the request for extradition is made and before a petition for extradition is filed with the courts, the possibility of an arrest being made on the basis of a mere evaluation by the

Executive on the request for extradition by the foreign State cannot totally be discounted.

The conclusion reached by the majority, I hasten to add, does not mean that the Executive Department should be impeded in its evaluation of the extradition request. The right of the extraditee to be furnished, upon request, with a copy of the relevant documents and to file his comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to be made.

I vote to deny the petition.

KAPUNAN, J., separate concurring opinion;

I vote to dismiss the petition, both on technical and substantial grounds.

The petition in the case at bar raises one and only issue, which is the validity of the Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case 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 the Regional Trial Court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty days from the service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.1 (Emphasis ours.)

The petition itself categorically states that "(t)he issue sought to be presented and litigated here is solely-the validity of the TRO."2

Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge that is being challenged in the petition before us.

Since, as alleged in the petition, a copy of the TRO was served on respondents below on August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition has become moot and academic. This Court does not exercise jurisdiction over cases which are moot and academic or those not ripe for judicial consideration.3

Assuming that the present case has not become moot and academic, still, it should be dismissed for lack of merit.

The substantive issues raised in this case are: (a) whether a person whose extradition is sought by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution before the Department of Justice as the request for extradition is being evaluated, or whether due process rights maybe invoked only upon the filing of a petition for extradition before a regional trial court; and (b) whether or not private respondent has a right of access to extradition documents under Section 7, Article III of the 1997 Constitution.

Petitioner contends that due process rights such as the right to be informed of the basis of the request for extradition and to have an opportunity to controvert are not provided in the extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he argues that the documents sought to be furnished to private respondent only involve private concerns, and not matters of public concern to which the people have a constitutional right to access.

While the evaluation process conducted by the Department of Justice is not exactly a preliminary investigation of criminal cases, it is akin to a preliminary investigation because it involves the basic constitutional rights of the person sought to be extradited. A person ordered extradited is arrested, forcibly taken from his house, separated from his family and delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him — a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have access to the evidence against him and the right to controvert them.

While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither does either prohibit it. The right to due process is a universal basic right which is deemed written into our laws and treaties with foreign countries.

Like a preliminary investigation, the evaluation by the Department of Justice of the extradition request and its accompanying documents is to establish probable cause and to secure the innocent against hasty, malicious and oppressive prosecution.

In this connection, it should be stressed that the evaluation procedure of the extradition request and its accompanying documents by the Department of Justice cannot be characterized as a mere "ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities of the Department of Justice in evaluating the extradition papers involve the exercise of judgment. They involve a determination whether the request for extradition conforms fully to the requirements of the extradition treaty and whether the offense is extraditable. These include, among others, whether the offense for which extradition is requested is a political or military offense (Article 3); whether the documents and other informations required under Article 7(2) have been provided (Article 7); and whether the extraditable offense is punishable under the laws of both contracting parties by deprivation of liberty for a period of more than one year (Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if the requirements of due process and equal protection are to be observed.

With respect to petitioner's claim that private respondent has no right to demand access to the documents relating to the request for extradition, suffice it to say, that any document used in a proceeding that would jeopardize a person's constitutional rights is matter of public concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole.

Due process rights in a preliminary investigation is now an established principle. The respondent has a right of access to all of

the evidence. He has the right to submit controverting evidence. The prosecuting official who conducts the preliminary investigation is required to be neutral, objective, and impartial in resolving the issue of probable cause. I see no reason why the same rights may not be accorded a person sought to be extradited at the stage where the Department of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If denied such rights, not only denial of due process rights but of equal protection may be raised.

It is suggested that after a petition for extradition is filed with a regional trial court, the person sought to be extradited may exercise all due process rights. He may then have access to all the records on the basis of which the request for extradition has been made. He may controvert that evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due process requirement.

But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.4 Like the filing of an information in a criminal case, the mere filing of a petition for extradition causes immediate impairment of the liberty of the person sought to be extradited and a substantial curtailment of other rights. His arrest may be immediately ordered by the regional trial court. He would be compelled to face an open and public trial. He will be constrained to seek the assistance of counsel and incur other expenses of litigation. The public eye would be directed at him with all the concomitant intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion;

As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest observations.

The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in our Constitution should take precedence

over treaty rights claimed by a contracting state. Stated otherwise, the constitutionally mandated duties of our government to the individual deserve preferential consideration when they collide with its treaty obligations to the government of another state. This is so although we recognize treaties as a source of binding obligations under generally accepted principles of international law incorporated in our Constitution as part of the law of the land.

For this primordial reason, I vote to DENY the petition.

Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute on the specific issue before us, the Court — in the exercise of its judicial power to find and state what the law is — has this rare opportunity of setting a precedent that enhances respect for human rights and strengthens due process of law.

As both majority and dissenting colleagues in the Court will recognize, American authorities follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute, the state Executive upon demand furnishes the would be extraditee or counsel copies of pertinent documents as well as the request for extradition; and (2) the international practice where the Executive department need not initially grant notice and hearing at all. Rules of reciprocity and comity, however, should not bar us from applying internationally now what appears the more reasonable and humane procedure, that is, the interstate practice among Americans themselves. For in this case the American people should be among the most interested parties.

Truly, what private respondent is asking our Executive department (notice, copies of documents, and the opportunity to protect himself at the earliest time against probable peril) does not, in my view, violate our Extradition Treaty with the USA. His request if granted augurs well for transparency in interstate or intergovernmental relations rather than secrecy which smacks of medieval diplomacy and the inquisition discredited long ago.

That private respondent is a Filipino citizen is not decisive of the issue here, although it is obviously pertinent. Even if he were a

resident alien (other than American perhaps), he is, in my view, entitled to our full protection against the hazards of extradition (or deportation, similarly) from the very start. More so because, looking at the facts adduced at the hearing and on the record of this case, the charges against him involve or are co-mingled with, if not rooted in, certain offenses of a political nature or motivation such as the ones involving alleged financial contributions to a major American political party. If so, long established is the principle that extradition could not be utilized for political offenses or politically motivated charges.

There may, of course, be other charges against private respondent in the USA. But then they are, in my view, already tainted there with political color due to the highly charged partisan campaign atmosphere now prevailing. That private respondent's cases will be exploited as political fodder there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion;

I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's right to be given what is due to him. I join in his exposition of this Court's constitutional duty to strike the correct balance between overwhelming Government power and the protection of individual rights where only one person is involved.

However, I am constrained to write this short concurrence if only to pose the question of why there should be any debate at all on a plea for protection of one's liberty which, if granted, will not result in any meaningful impediment of thwarting any state policy and objectives.

I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in court before he may be informed of what the contracting states in an extradition treaty have against him. There is no question that everything which respondent Jimenez now requests will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he

should be informed why he may be deported from his own country.

I see no ill effects which would arise if the extradition request and supporting documents are shown to him now, instead of later.

Petitioner Secretary of Justice states that his action on the extradition request and its supporting documents will merely determine whether or not the Philippines is complying with its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all criminal prosecutions are not available to the private respondent.

The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent Jimenez's requests. In short, the reasons are:

1. In evaluating the documents, the Department merely determines whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutional rights of the accused in all criminal prosecutions are, therefore, not available.

2. The United States Government has requested the Philippine Government to prevent unauthorized disclosure of certain grand jury information.

3. The petitioner cannot hold in abeyance proceedings in connection with an extradition request. For extradition to be an effective tool of criminal law enforcement, requests for surrender of accused or convicted persons must be processed expeditiously.

I respectfully submit that any apprehensions in the Court arising from a denial of the petition — "breach of an international obligation, rupture of states relations, forfeiture of confidence, national embarrassment, and a plethora of other equally undesirable consequences" — are more illusory than real. Our country is not denying the extradition of a person who must be extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United States taking issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the protection, in the context of a treaty

obligation, of rights expressly guaranteed by the Philippine Constitution.

Until proved to be a valid subject for extradition, a person is presumed innocent or not covered by the sanctions of either criminal law or international treaty. At any stage where a still prospective extraditee only seeks to know so that he can prepare and prove that he should not be extradited, there should be no conflict over the extension to him of constitutional protections guaranteed to aliens and citizens alike.

Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article 7 enumerates the required documents and establishes the procedures under which the documents shall be submitted and admitted as evidence. There is no specific provision on how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states of the right to know. Silence is interpreted as the exclusion of the right to a preliminary examination or preliminary investigation provided by the laws of either one of the two states.

The right to be informed of charges which may lead to court proceedings and result in a deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's coercive power has already been focused. I fail to see how silence can be interpreted as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not the other way around.

The second reason alleging the need for secrecy and confidentiality is even less convincing. The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United States Government requested the Philippine Government to prevent unauthorized disclosure of certain information. On the other hand, petitioner declares that the United States has already secured orders from concerned District Courts authorizing the disclosure of the same grand jury information to the Philippine Government and its law

enforcement personnel.

Official permission has been given. The United States has no cause to complain about the disclosure of information furnished to the Philippines.

Moreover, how can grand jury information and documents be considered confidential if they are going to be introduced as evidence in adversely proceedings before a trial court? The only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be determined in an American court. It is there where prosecution strategies will be essential. If the Contracting States believed in a total non-divulging of information prior to court hearings, they would have so provided in the extradition treaty. A positive provision making certain rights unavailable cannot be implied from silence.

I cannot believe that the United States and the Philippines with identical constitutional provisions on due process and basic rights should sustain such a myopic view in a situation where the grant of a right would not result in any serious setbacks to criminal law enforcement.

It is obvious that any prospective extraditee wants to know if his identity as the person indicated has been established. Considering the penchant of Asians to adopt American names when in America, the issue of whether or not the prospective extraditee truly is the person charged in the United States becomes a valid question. It is not only identity of the person which is involved. The crimes must also be unmistakably identified and their essential elements clearly stated.

There are other preliminary matters in which respondent is interested. I see nothing in our laws or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial whether or not the extradition treaty applies to him.

Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to secure an innocent person against hasty, faulty and, therefore, oppressive

proceedings; to protect him from an open and extensively publicized accusation of crimes; to spare him the trouble, expense, and anxiety of a public trial; and also to protect the state from useless and expensive trails. Even if the purpose is only to determine whether or not the respondent is a proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and freedom accorded to those charged with ordinary crimes in the Philippines.

The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for extradition must be viewed objectively and impartially without any predisposition to granting it and, therefore, hastening the extradition process.

In the first place, any assistance which the evaluating official may get from the participation of respondent may well point out deficiencies and insufficiencies in the extradition documents. It would incur greater delays if these are discovered only during court trial. On the other hand, if, from respondent's participation, the evaluating official discovers a case of mistaken identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no delays during trial. An unnecessary trial with all its complications would be avoided.

The right to be informed is related to the constitutional right to a speedy trial. The constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious, capricious and oppressive delays, its salutary objective being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose."

The right to be informed and the right to a preliminary hearing are not merely for respondent. They also serve the interests of the State.1âwphi1.nêt

In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of individual respondent override the concerns of petitioner. There should be no hurried or indifferent effort to routinely comply with all requests for extradition. I understand that this is truer in the United States than in other countries. Proposed extraditees are given every legal protection available from the American justice system before they are extradited. We serve under a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion;

If the case at bar was strictly a criminal case which involves alone the right of an accused to due process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R. Melo, without taking half a pause. But the case at bar does not involve the guilt or innocence of an accused but the interpretation of an extradition treaty where at stake is our government's international obligation to surrender to a foreign state a citizen of its own so he can be tried for an alleged offense committed within that jurisdiction. The issues are of first impression and the majority opinion dangerously takes us to unknown shoals in constitutional and international laws, hence this dissenting opinion.

Extradition is a well-defined concept and is more a problem in international law. It is the "process by which persons charged with or convicted of crime against the law of a State and found in a foreign State are returned by the latter to the former for trial or punishment. It applies to those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody; and those who have been convicted in absentia. It does not apply to persons merely suspected of having committed an offense but against who no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment."1 The definition covers the private respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire, radio

or television, six (6) counts of false statements or entries and thirty-three (33) counts of election contributions in the name of another. There is an outstanding warrant of arrest against the private respondent issued by the US District Court, Southern District of Florida.

A brief review of the history of extradition law will illumine our labor. Possibly the most authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of extradition into four (4) periods: "(1) ancient times to seventeenth century — a period revealing almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the nineteenth century — a period of treaty-making chiefly concerned with military offenders characterizing the condition of Europe during that period; (3) from 1833 to 1948 — a period of collective concern in suppressing common criminality; and (4) post-1948 developments which ushered in a greater concern for protecting the human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations."2

It is also rewarding to have a good grip on the changing slopes in the landscape of extradition during these different periods. Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical commentators on international law thus focused their early views on the nature of the duty to surrender an extraditee — whether the duty is legal or moral in character. Grotius and de Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the so-called duty was but an "imperfect obligation which could become enforceable only by a contract or agreement between states.5

Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court in US v. Rauscher,6 held: ". . . . it is only in modern times that the nations of the earth have imposed upon themselves the obligation of delivering up these fugitives from justice to the states where their

crimes were committed, for trial and punishment. This has been done generally by treaties . . . Prior to these treaties, and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another; and though such delivery was often made it was upon the principle of comity . . ."

Then came the long and still ongoing debate on what should be the subject of international law. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism — the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual against the state. Indeed, some species of human rights have already been accorded universal recognition.7 Today, the drive to internationalize rights of women and children is also on high gear.8 The higher rating given to human rights in the hierarchy of values necessarily led to the re-examination of rightful place of the individual in international law. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an individual's right in international law is a near cipher. Translated in extradition law, the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported from one state to the other as an exercise of the sovereign will of the two states involved."9 The re-examination consigned this pernicious doctrine to the museum of ideas.10 The new thinkers of international law then gave a significant shape to the role and rights of the individual in state-concluded treaties and other international agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and, thus, of the process of international accommodation, concerns the relations between legal persons known as states. This is necessarily so. But it is no longer novel for the particular interest of the human being to break through the mass of interstate relationship."11 The clarion call to re-engineer a new world order whose dominant interest would transcend the parochial confines of national states was not unheeded. Among the world class scholars who joined the search for the elusive ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr.

Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order, they suggested that the object of the new world should be "to obtain in particular situations and in the aggregate flow of situations the outcome of a higher degree of conformity with the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all societies comprising the world community."12 Needless to stress, all these prescient theses accelerated the move to recognize certain rights of the individual in international law.

We have yet to see the final and irrevocable place of individual rights, especially the rights of an extraditee, in the realm of international law. In careful language, Bassiouni observes that today, "institutionalized conflicts between states are still rationalized in terms of sovereignty, national interest, and national security, while human interests continue to have limited, though growing impact on the decision-making processes which translate national values and goals into specific national and international policy."13

I belabor the international law aspect of extradition as the majority opinion hardly gives it a sideglance. It is my humble submission that the first consideration that should guide us in the case at bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and legislative departments of our government. Between these two departments, the executive has a greater say in the making of a treaty. Under Section 21, Article VII of our Constitution, the President has the sole power to negotiate treaties and international agreements although to be effective, they must be concurred in by at least two thirds of all the members of the Senate. Section 20 of the same Article empowers the President to contract or guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the President the power to appoint ambassadors, other public ministers and consuls subject to confirmation by the Commission on Appointments. In addition, the President has the power to deport undesirable aliens. The concentration of these powers in the person of the President is not without a compelling consideration. The conduct of foreign relations is full of complexities and consequences, sometimes with life and death significance to the nation especially in times of war. It can only be entrusted to that department of government which can

act on the basis of the best available information and can decide with decisiveness. Beyond debate, the President is the single most powerful official in our land for Section 1 of Article VII provides that "the executive power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives . . . except to the extent reserved to the people by the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law." Thus, we can see that executive power is vested in the President alone whereas legislative and judicial powers are shared and scattered. It is also the President who possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences.

These are some of the dominant policy considerations in international law that the Court must balance against the claim of the private respondent that he has a right to be given the extradition documents against him and to comment thereon even while they are still at the evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions of what constitutional rights and to what degree they can be claimed by an extraditee do not admit of easy answers and have resulted in discrete approaches the world over.15 On one end of the pole is the more liberal European approach. The European Court of Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences adversely affecting the enjoyment of a convention right, it may, assuming that the

consequences are not too remote, attract the obligations of a Contracting State under the relevant convention guarantee."16 At the other end of the pole is the more cautious approach of the various Courts of Appeal in the United States. These courts have been more conservative in light of the principle of separation of powers and their faith in the presumptive validity of executive decisions. By and large, they adhere to the rule of non-inquiry under which the extraditing court refuses to examine the requesting country's criminal justice system or consider allegations that the extraditee will be mistreated or denied a fair trial in that country.17

The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-US Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it calls for a harmonization between said treaty and our Constitution. To achieve this desirable objective, the Court should consider whether the constitutional rights invoked by the private respondent have truly been violated and even assuming so, whether he will be denied fundamental fairness. It is only when their violation will destroy the respondent's right to fundamental fairness that his constitutional claims should be given primacy.

Given this balancing approach, it is my humble submission that considering all the facts and facets of the case, the private respondent has not proved entitlement to the right he is claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right. Also, constitutional litigations do not always involve a clear cut choice between right and wrong. Sometimes, they involve a difficult choice between right against right. In these situations, there is need to balance the contending rights and primacy is given to the right that will serve the interest of the nation at that particular time. In such instances, the less compelling right is subjected to soft restraint but without smothering its essence. Proceeding from this premise of relativism of rights, I venture the view that even assuming arguendo respondent's weak claim, still, the degree of denial of private respondent's rights to due process and to information is too slight to warrant the interposition of judicial power. As admitted in the

ponencia itself, an extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding where there is an accused who claim the entire array of rights guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt or innocence of the extraditee will not be passed upon by our executive officials nor by the extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of evidence are different in an extradition proceeding. Admission of evidence is less stringent, again because the guilt of the extraditee is not under litigation.19 It is not only the quality but even the quantum of evidence in extradition proceeding is different. In a criminal case, an accused can only be convicted by proof beyond reasonable doubt.20 In an extradition proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima facie case."21 If more need be said, the nature of an extradition decision is different from a judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an individual extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall not be granted if the executive authority of the Requested State determined that the request was politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." In the United States, the Secretary of State exercises this ultimate power and is conceded considerable discretion. He balances the equities of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal considerations like an ordinary court.

The type of issue litigated in extradition proceedings which does not touch on the guilt or innocence of the extraditee, the limited nature of the extradition proceeding, the availability of adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in the conduct of foreign affairs have compelled courts to put a high threshold before considering claims of individuals that enforcement of an extradition treaty will violate their constitutional rights. Exemplifying such approach is the Supreme Court of Canada

which has adopted a highly deferential standard that emphasizes international comity and the executive's experience in international matters.24 It continues to deny Canada's charter protection to extraditees unless the violation can be considered shocking to the conscience.

In the case, at bar and with due respect, the ponencia inflates with too much significance the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to due process and access to information must immediately be vindicated. Allegedly, respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately furnished copies of documents accompanying the request for his extradition. Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that the United States authorities have not manifested any desire to request for his arrest. On the contrary, they filed the extradition request through the regular channel and, even with the pendency of the case at bar, they have not moved for respondent's arrest on the ground of probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for provisional arrest must be made pending receipt of the request for extradition. By filing the request for extradition, the US authorities have implicitly decided not to move for respondent's provisional arrest. But more important, a request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He will be given due process before he can be arrested. Article 9 of the treaty provides:

PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statements of the facts of the case, including, if possible, the time and location of the offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt or judgment of conviction against the person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required in Article 7.

In relation to the above, Section 20 of P.D. No. 1069 provides:

Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force, request for the provisional arrest of the accused, pending receipt of the request for extradition made in accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city

having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the result of its request.

(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody.

The due process protection of the private-respondent against arbitrary arrest is written in cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that a request for provisional arrest does not mean it will be granted ipso facto. The request must comply with certain requirements. It must be based on an "urgent" factor. This is subject to verification and evaluation by our executive authorities. The request can be denied if not based on a real exigency of if the supporting documents are insufficient. The protection of the respondent against arbitrary provisional arrest does not stop on the administrative level. For even if the Director of the National Bureau of Investigation agrees with the request for the provisional arrest of the respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of the respondent. The judge has comply with Section 2, Article III of the Constitution which provides that "no . . . 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 . . . persons or things to be seized." The message that leaps to the eye is that compliance with this requirements precludes any arbitrary arrest.

In light of all these considerations, I respectfully submit that denying respondent's constitutional claim to be furnished all documents relating to the request for his extradition by the US authorities during their evaluation stage will not subvert his right to fundamental fairness. It should be stressed that this is not a case where the respondent will not be given an opportunity to know the basis of the

request for his extradition. In truth, and contrary to the impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the basis for his extradition. The time is when he is summoned by the extradition court and required to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides:

Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. He may issue a warrant for the immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case.

Upon receipt of the summons and the petition, respondent is free to foist all defense available to him. Such an opportunity does not deny him fairness which is the essence of due process of law.

Thus, with due respect, I submit that the ponencia failed to accord due importance to the international law aspect of an extradition treaty as it unduly stressed its constitutional law dimension. This goes against the familiar learning that in balancing the clashing interests involved in extradition treaty, national interest is more equal than the others. While lately, humanitarian considerations are being factored in the equation, still the concept of extradition as a national act is the guiding idea. Requesting and granting extradition remains a power and prerogative of the national government of a State. The process still involves relations between international personalities.25 Needless to state, a more deferential treatment should be given to national interest than to individual interest. Our national interest in extraditing persons who have committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D. No. 1069, viz:

WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of international law as part of law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations;

WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished. . . . .

The increasing incidence of international and transnational crimes, the development of new technologies of death, and the speed and scale of improvement of communication are factors which have virtually annihilated time and distance. They make more compelling the vindication of national interest to insure that the punishment of criminals should not be frustrated by the frontiers of territorial sovereignty. This overriding national interest must be upheld as against respondent's weak constitutional claims which in no way amount to denial of fundamental fairness.

At bottom, this case involves the respect that courts should accord to the Executive that concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the legendary John Marshall, then a congressman, has opined that the power to extradite pursuant to a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. They defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of the requirements of international comity. The deferential attitude is dictated by the robust reality that of the three great branches of our government, it is the Executive that is most qualified to guide the ship of the state on the known and unknown continents of foreign relations. It is also compelled by considerations of the principle of separation of powers for the Constitution has clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit that the majority decision has weakened the Executive by allowing nothing less than an unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The majority should be cautions in involving this Court in the conduct of the nation's foreign

relations where the inviolable rule dictated by necessity is that the nation should speak with one voice. We should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes.

I vote to grant the petition.

PANGANIBAN, J., dissenting opinion;

With due respect, I dissent.

The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due process rights of notice and hearing during the preliminary or evaluation stage of the extradition proceeding against him.

Two Staged in Extradition

There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation stage, whereby the executive authority of the requested state ascertains whether the extradition request is supported by the documents and information required under the Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard before a court of justice, which determines whether the accused should be extradited.

The instant petition refers only to the first stage. Private respondent claims that he has a right to be notified and to be heard at this early stage. However, even the ponencia admits that neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the Philippine government, upon receipt of the request for extradition, to give copies thereof and its supporting documents to the prospective extraditee, much less to give him an opportunity to be heard prior to the filing of the petition in court.

Notably, international extradition proceedings in the United States do not include the grant by the executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold

a hearing to consider the evidence submitted in support of the extradition request. In contrast, in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines, there is no similar statutory provision.

Evaluation Stage Essentially Ministerial

The evaluation stage simply involves the ascertainment by the foreign affairs secretary of whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts of the offense and the procedural history of the case; provisions of the law describing the essential elements of the offense charged and the punishment therefor; its prescriptive period; such evidence as would provide probable cause for the arrest and the committal for trial of the fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs secretary also sees to it that these accompanying documents have been certified by the principal diplomatic or consular officer of the Philippines in the United States, and that they are in English language or have English translations. Pursuant to Article 3 of the Treaty, he also determines whether the request is politically motivated, and whether the offense charged is a military offense not punishable under non-military penal legislation.2

Upon a finding of 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 justice secretary, who shall immediately designate and authorize an attorney in his office to take charge of the case. The lawyer designated shall then file a written petition with the proper regional trial court, with a prayer that the court take the extradition request under consideration.3

When the Right to Notice and Hearing Becomes Available

According to private Respondent Jimenez, his right to due process during the preliminary stage emanates from our Constitution, particularly Section 1, Article III thereof, which provides:

No person shall be deprived of life, liberty or property without due

process of law.

He claims that this right arises immediately, because of the possibility that he may be provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:

In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending presentation of the request for extradition. A request for provisional arrest may be transmitted through the diplomatic channel or directly between the Philippine Department of Justice and the United States Department of Justice.

x x x x x x x x x

Justice Melo's ponencia supports private respondent's contention. It states that there are two occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a provisional arrest pending the submission of the extradition request and (2) his temporary arrest during the pendency of the extradition petition in court.4 The second instance is not in issue here, because no petition has yet been filed in court.

However, the above-quoted Article 9 on provisional arrest is not automatically operative at all times, and in enforcement does not depend solely on the discretion of the requested state. From the wordings of the provision itself, there are at least three requisites: (1) there must be an urgency, and (2) there is a corresponding request (3) which must be made prior to the presentation of the request for extradition.

In the instant case, there appears to be no urgency characterizing the nature of the extradition of private respondent. Petitioner does not claim any such urgency. There is no request from the United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states during the Oral Argument that he had no intention of applying for the provisional arrest of private respondent.5 Finally, the formal request for extradition has already been made; therefore, provisional arrest is not likely, as it should really come before the extradition request.6

Mark Jimenez Not in Jeopardy of Arrest

Under the outlined facts of this case, there is no open door for the application of Article 9, contrary to the apprehension of private respondent. In other words, there is no actual danger that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to notify and hear him during the preliminary stage, which basically involves only the exercise of the ministerial power of checking the sufficiency of the documents attached to the extradition request.

It must be borne in mind that during the preliminary stage, the foreign affairs secretary's determination of whether the offense charged is extraditable or politically motivated is merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the power and the duty of the court, not the executive authority, to determine whether there is sufficient evidence to establish probable cause that the extraditee committed the crimes charged.8 The sufficiency of the evidence of criminality is to be determined based on the laws of the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all issues including the sufficiency of the documents supporting the extradition request.10

Private respondent insists that the United States may still request his provisional arrest at any time. That is purely speculative. It is elementary that this Court does not declare judgments or grant reliefs based on speculations, surmises or conjectures.

In any event, even granting that the arrest of Jimenez is sought at any time despite the assurance of the justice secretary that no such measure will be undertaken, our local laws and rules of procedure respecting the issuance of a warrant of arrest will govern, there being no specific provision under the Extradition Treaty by which such warrant should issue. Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person whose arrest is being sought.1âwphi1.nêt

The right of one state to demand from another the return of an alleged fugitive from justice and the correlative duty to surrender the fugitive to the demanding country exist only when created by a treaty between the two countries. International law does not require the voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty does exist, as between the Philippines and the United States, it must be presumed that the contracting states perform their obligations under it with uberrimae fidei, treaty obligations being essentially characterized internationally by comity and mutual respect.

The Need for Respondent Jimenez to Face Charges in the US

One final point. Private respondent also claims that from the time the secretary of foreign affairs gave due course to the request for his extradition, incalculable prejudice has been brought upon him. And because of the moral injury caused, he should be given the opportunity at the earliest possible time to stop his extradition. I believe that any moral injury suffered by private respondent had not been caused by the mere processing of the extradition request. And it will not cease merely by granting him the opportunity to be heard by the executive authority. The concrete charges that he has allegedly committed certain offenses already exist. These charges have been filed in the United States and are part of public and official records there. Assuming the existence of moral injury, the only means by which he can restore his good reputation is to prove before the proper judicial authorities in the US that the charges against him are unfounded. Such restoration cannot be accomplished by simply contending that the documents supporting the request for his extradition are insufficient.

Conclusion

In the context of the factual milieu of private respondent, there is really no threat of any deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional right to due process — particularly the right to be heard — finds no application. To grant private respondent's request for copies of the extradition documents and for an opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the proceedings.

WHEREFORE, I vote to grant the Petition.

Footnotes

VITUG, J., separate opinion;

1 Sec. 7. The right of the people to information of public concern shall be recognized. Access to official records, and to documents, and papers a 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.

2 Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs. Belmonte, Jr., 170 SCRA 256.

3 Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court of Appeals, 193 SCRA 597.

4 Abraham, Henry J., Some Basic Guidelines of "Due Process of Law." The Lawyers Review, Vol. IX, 30 April 1995, p. 1.

5 Cruz, Isagani A. Constitutional Law. 1995 Ed. pp. 94-95.

KAPUNAN, J., separate concurring opinion;

1 Annex "L," petition.

2 Petition, p. 4.

3 Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69 SCRA 334 (1976).

4 Stanley v. Illinois, 1405 U.S. 645, 647.

PUNO, J., dissenting opinion;

1 Weston, Falk, D'Amato, International Law and World Order, 2nd ed., p. 630 (1990).

2 International Extradition, United States Law and Practice, 2nd ed., p. 7 (1987).

3 The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int'l. & Comp. L. Rev. 39 (1981).

4 They were supported by scholars like Heineccuis, Burlamaqui, Rutherford, Schmelzing and Kent. See Sheareer, Extradition in Internal Law, p. 24 (1971).

5 They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint, Seafied, Schmaltz, Mittermaier and Heffter. See Shearer, supra, p. 24.

6 119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).

7 See Universal Declaration of Human Rights (1948), The International Covenant on Economic, Social and Cultural Rights (1966) and The International Covenant on Civil and Political Rights (1966).

8 The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) otherwise known as "Bill of Rights for Women" was adopted by the UN General Assembly in December 1979. As of November 1999, one hundred sixty seven (167) states including the Philippines have ratified or acceded to it. See Statement of Angela King, Special Adviser to the Secretary General of the UN on Gender Issues and Advancement of Women, Judicial Colloquium on the Application of International Human Rights Law at the Domestic Level, Vienna, Austria, October 27, 1999.

9 Blakesley and Lagodny, Finding armony Amidst Disagreement Over Extradition, Jurisdiction, The Role of Human Rights and Issues of Extraterritoriality Under International Criminal Law, Vanderbilt Journal of Transnational Law, Vol. 24, No. 1, pp. 44 (1991).

10 See generally Kelsen, Principles of International Law, 2nd ed., (1966); Korowicz, The Problem of the International Personality of Individuals, 50 Am. J., Int'l. Law 553 (1966).

11 The Conquering March of an Idea, Speech before the 72nd Annual

Meeting of the American Bar Association, St. Louis, Mo., September 6, 1949.

12 See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1996); G. Clark and L. Sohn, World Peace Through World Law (1966); Bassiouni, International Extradition in American Practice and World Public Order, 36 Tenn. L. Rev. 1 (1968).

13 Bassiouni, supra, p. 625.

14 US v. Curtiss-Wright Expert Corp., 299 US 304, 57 S Ct. 216, 81 L. ed. 255 (1936).

15 Spencer, The Role of the Charter in Extradition Cases, University of Toronto L. Rev., vol. 51, pp. 62-63, (Winter, 1993).

16 Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).

17 Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry in International Extradition Proceedings, Cornell Law Rev., vol. 76, No. 5, p. 1198 (July 1991).

18 Sec. 9, P.D. No. 1069.

19 Ibid.

20 Sec. 2, Rule 133, Revised Rules of Court.

21 Sec. 10, P.D. No. 1069.

22 Referring to the Regional Trial Courts and the Court of Appeals whose decisions are deemed final and executory. See Section 12, P.D. No. 1069.

23 Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329.

24 Spencer, op cit., citing decided cases.

25 Weston, Falk and Amato, International Law and World Order, 2nd ed., p. 630 (1990).

26 Semmelman. op cit., p. 1206.

PANGANIBAN, J., dissenting opinion;

1 35 CJS § 14(1) Extradition 410. See also ponencia, p. 25.

2 See ponencia, pp. 11-12.

3 Ibid., Section 5, pars. (1) & (2), PD 1069.

4 Ponencia, p. 18.

5 TSN, p. 76.

6 See also TSN, p. 30.

7 § 5 (2) & (3) in rel. to § 10, PD 1069. See also last par., p. 13 of ponencia.

8 18 USCS § 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d § 109 Extradition 828.

9 18 USCS § 3184, n 64 Criminal Procedure 458.

10 See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994.

11 31A Am Jur 2d Extradition § 14.

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

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.

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 Appeals1 dismissing the certiorari filed by then DECS Secretary Ricardo T. Gloria for lack of merit, as well as its Resolution dated 13 January 1998 denying reconsideration thereof.1âwphi1.nêt

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."2 Her petition was, however, 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.3 As earlier stated, respondent did not appeal the Resolution dated 30 September 1996 dismissing her from the service. Instead, she instituted an action for mandamus and 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 certiorari imputing 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 Gloria's 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 . . . . 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 court's 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 (Emphasis 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 court's jurisdiction over the rulings and actions of administrative agencies without stating the basis why petitioner's 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 . . . . the court can decide whether the duty is discretionary or ministerial . . . .

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 . . . .

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.7 By her failure to do so, nothing prevented 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. Drilon8 that a respondent in an administrative case 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 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.

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

Respondent's (Moral) counsel is reminded that the Report of the DECS Investigating Committee is not an integral part of the Decision itself . . . . [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 respondent's 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 appellant's

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 respondent's 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 court's Order of 23 April 1997 denying petitioner's 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 mandamus as 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 court's 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 court's denial of petitioner's 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.1âwphi1.nêt

SO ORDERED.

Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.

Footnotes

1 CA-G.R. No. 44432, promulgated 24 November 1997.

2 Rollo, p. 40.

3 Rollo, p. 42.

4 Docketed as Civil Case No. 97-81493 entitled "Moral v. Gloria," and assigned to RTC-Br. 50, Manila.

5 See Regalado, Florenz D., Remedial Law Compendium, Vol. 1, 1997 Ed., pp. 710-711.

6 University of San Agustin, Inc. v. Court of Appeals, G.R. No. 100558, 7 March 1994, 230 SCRA 761.

7 P.D. No. 807, EO NO. 292, and Rule II, Sec. 1 of Memorandum Circular No. 44, Series of 1990, of the Civil Service Commission, spell out the initial remedy of respondent against dismissal. These categorically provide that the party aggrieved by a decision, ruling, order or action of an agency of the government involving termination of services may appeal to the Civil Service Commission within fifteen (15) days from notice.

8 G.R. No. 101666, 9 June 1992, 209 SCRA 695.

9 Records, p. 44.

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.

I 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. at 359 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." Official Supreme Court caselaw is only found in the print version of the United States Reports. Justia caselaw is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.

Republic of the Philippines SUPREME COURT Manila

EN BANC

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.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes

1 Rollo, 19-24; emphases in the original.

2 CONST., art. III, sec. 2.

3 See Ponsica v. Ignalaga, No. 72301, July 31, 1987, 152 SCRA 647; Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989.

4 Ponsica, supra, 662-663.

5 Presidential Anti-Dollar Salting Task Force, supra, 21.

6 Pres. Decree No. 1693, "FURTHER AMENDING ARTICLE 38 OF THE LABOR CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC SABOTAGE."

7 Supra, sec. 1.

8 Pres. Decree No. 2018, "FURTHER AMENDING ARTICLES 38 AND 39 OF THE LABOR CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC SABOTAGE AND PUNISHABLE WITH IMPRISONMENT."

9 No. L-22196, June 30, 1967, 20 SCRA 562.

10 Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9 SCRA 27; Vivo v. Montesa, No. L-24576, 24 SCRA 155.

11 Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.

12 Supra, 21-22.

13 Rollo, id., 15.

14 Burgos, Sr. v. Chief of Staff, AFP No. 64261, December 26, 1984, 133 SCRA 800, 814-816.

Republic of the Philippines SUPREME COURT Manila

EN BANC

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. lâwphî1.ñèt There was 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.

Footnotes

1 The first paragraph of Section 17, Republic Act No. 875, the Industrial Peace Act, reads as follows: "It is hereby declared to be the public policy of the Philippines to encourage the following internal labor organization procedures. A minimum of ten percent of the members of a labor organization may report an alleged violation of these procedures in their labor organization to the Court. If the Court finds, upon investigation, evidence to substantiate the alleged violation and that efforts to correct the alleged violation through the procedure provided by the labor organization's constitution or by-laws have been exhausted, the Court shall dispose of the complaint as in 'unfair labor practice' cases." The exclusive competence of respondent Court of Industrial Relations under this provision of law was sustained in the following cases: Tolentino v. Angeles, 99 Phil. 309 (1956); Kapisanan ng mga Manggagawa v. Bugay, 101 Phil. 18 (1957); Philippine Land-Sea Labor Union (PLASLU) v. Ortiz, 103 Phil. 409 (1958); Philippine Association of Free Labor Unions (PAFLU) v. Padilla, 106 Phil. 591 (1959).

2 Complaint, Annex A, Brief for the Petitioners, pp. 11-15.

3 Petition, Annex B, Ibid., pp. 16-21.

4 Order Annex C, Ibid., p. 23.

5 Paragraph (b).

6 Paragraph (h).

7 Paragraph (l).

8 Batangas Laguna Tayabas Bus Co. v. Cadiao, L-28725. March 12, 1968, 22 SCRA 987, 994. Citing De Borja v. Flores, 62 Phil. 106 (1935); De Borja v. Tan, 93 Phil. 702 (1953); Caltex (Phil.), Inc. v. Castillo, L-24657, Nov. 27, 1967, 21 SCRA 1071.

Republic of the Philippines SUPREME COURT

Manila

EN BANC

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 testificandumcommanding 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 subpoenaduces 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, Muñoz 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 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 Montañez 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 effectcriminal 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 Montañez 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 Montañez 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 effectcriminal 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 Montañez 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.

EN BANC

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

D E C I S I O N 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 former’s 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, Patoc’s mother had already given the amount of Twenty Thousand (P20,000.00) Pesos to Canque in the presence of Ypanto for the dismissal of Patoc’s 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 latter’s 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 Jovencio’s 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 Jovencio’s 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 o’clock 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 Canque’s 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 latter’s 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 court’s 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 Court’s 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 court’s 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 respondent’s

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, 12th 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 Services–OCA is directed to compute the balance of respondent’s accrued leave credits and forward such computation to the Finance Division of the Fiscal Management Office–OCA 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.

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING CONSUELO

YNARES-SANTIAGO Associate Justice Associate Justice ANTONIO T. CARPIO RENATO C. CORONA Associate Justice Associate Justice (on official leave) (on official leave) CONCHITA CARPIO MORALES MINITA V. CHICO-NAZARIO Associate Justice Associate Justice PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN Associate Justice Associate Justice

* On official leave. [1] Rollo, p. 33. [2] Rollo, p. 176. [3] Rollo, p. 146. [4] Rollo, p. 145. [5] Dated July 21, 2004, rollo, p. 108. [6] Dated January 13, 2006. [7] Rollo, pp. 284-286. [8]Fernandez v. Gatan, A.M. No. P-03-1720, May 28, 2004, 420 SCRA 19. [9]Bureau of Internal Revenue v. Organo, G.R. No. 149549, February 26, 2004,

424 SCRA 9. [10]Section 23, Rule XIV, Omnibus Rules Implementing Book V of Executive Order No. 292, as amended by CSC Memorandum Circular No. 19 (1999). [11] Cashbook, passbook, deposit and withdrawal slips, court orders, collection

reports, etc. [12] Office of the Court Administrator v. Bernardino, A.M. No. P-97-1258, January 31, 2005, 450 SCRA 88, 119-120. [13]Velasquez v. Hernandez, G.R. Nos. 150732 & 151095, August 31, 2004, 437 SCRA 357.

Republic of the Philippines SUPREME COURT Manila

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.

Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon and Makalintal, JJ., concur. Bengzon, C.J., took no part.

Footnotes

1 Section 4 of this rule provides in part: "Charge; where to be filed. — . . . And where a contempt punishable by law has been committed against an administrative officer or any nonjudicial person, committee, or other body, the charge may be filed with the Court of First Instance of the province or city in which the contempt has been committed."

This provision of Rule 64 embodies the historical notion that the contempt power is necessarily judicial. This notion dates as far back as 1893, when the Supreme Court of the United States, in ICC v. Brimson, 154 U.S. 447, remarked that such body as the Interstate Commerce Commission "could not, under our system of government, and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment." But the Court went on to hold that a judicial proceeding to enforce a subpoena issued by the Commission satisfies the "case" or "controversy" requirement of the Constitution, and that judicial enforcement does not violate the principle of separation of powers. Accordingly, since 1893, the Congress of the United States has consistently refused to empower any agency to commit for contempt, customarily providing instead that agencies may apply to appropriate district court for an order enforceable by contempt proceeding (Davis, "The Administrative Power of Investigation." 56 Yale L.J. No. 7, 1111 at 1139-40.)

   

Republic of the Philippines SUPREME COURT Manila

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).1awphîl.nèt

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.

Bengzon, C. J., Padilla, Labrador, Concepcion, Barrera, Paredez, Dizon, Regala and Makalintal, JJ., concur. Reyes, J. B. L., J., took no part.

Footnotes

1G. R. No. L-12596, July 31, 1958.

EN BANC

LINTANG BEDOL, Petitioner,

- versus - COMMISSION ON ELECTIONS,

Respondent.

G.R. No. 179830 Present:

PUNO, C.J., CARPIO, CORONA,* CARPIO MORALES, CHICO-NAZARIO, VELASCO, JR.,* NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,* BERSAMIN, DEL CASTILLO, ABAD, and VILLARAMA, JR., JJ. Promulgated: December 3, 2009

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

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 Resolution[2] dated August 31, 2007, denied petitioner’s 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 PBOC’s 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. 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 Bedol’s) 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 o’clock 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 Arrest[4] 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 COMELEC’s legal basis for issuing the warrant of arrest and its assumption of jurisdiction over the contempt charges. Upon petitioner’s 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. Petitioner’s 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 Memorandum[5] 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 respondent’s 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 Respondent’s 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

Respondent’s 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.

3. The respondent’s 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:

I

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 petitioner’s 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 COMELEC’s 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 Maguindanao’s 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 quasi–judicial 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. Nazareno[9] –

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 COMELEC’s 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 COMELEC’s 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 petitioner’s 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 petitioner’s 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 scheduled[12] 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 petitioner’s 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 COMELEC[17] 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.

TERESITA J. LEONARDO-DE CASTRO Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

ANTONIO T. CARPIO Associate Justice  

(On official leave) RENATO C. CORONA  

Associate Justice  

CONCHITA CARPIO MORALES Associate Justice  

MINITA V. CHICO-NAZARIO Associate Justice  

(On official leave) PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ARTURO D. BRION Associate Justice  

(On official leave) DIOSDADO M. PERALTA

Associate Justice  

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

C E R T I F I C A T I O N Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

* On official leave. [1] Rollo, pp. 56-76. [2] Id. at 77-78. [3] Rollo, pp. 79-80. [4] Id. at 81. [5] Id. at 123-146. [6] G.R. No. 133676, April 14, 1999, 305 SCRA 832, 866-867. [7] Akbayan – Youth, et al. v. COMELEC, G.R. No. 147066, March 26, 2001, 355 SCRA 318, 364.

[8] G.R. No. 161115, November 30, 2006, 509 SCRA 332, 369-370. [9] 87 Phil. 29, 45 (1950). [10] Torres v. Ribo, 81 Phil 44, 48 (1948). [11] No. L-25024, March 30, 1970, 32 SCRA 188, 198; citing In State ex rel. Board of Commrs. v. Dunn (86 Minn. 301, 304). [12] May 22, 2007 and May 30, 2007. [13] G.R. Nos. 146710-15, April 3, 2001, 356 SCRA 108, 128. [14] Id. [15] Id. at 124. [16] People v. Malibiran, G.R. No. 178301, April 24, 2009. [17] Canicosa v. COMELEC, G.R. No. 120318, December 5, 1997, 282 SCRA 512, 521-522.

SECOND DIVISION [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.

D E C I S I O N 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[1] of the Court of Appeals in CA-G.R. SP No. 61477. In the 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),[2] a state-supervised school in 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 (Castillejo’s) office and, then and there, assaulted and boxed him. The petitioner delivered blows on respondent Castillejo’s 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 Castillejo’s 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 petitioner’s 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 Castillejo’s office, the petitioner made a side step and just then, respondent Castillejo slipped and fell flat on the floor. The petitioner noticed that respondent Castillejo’s 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 facie case 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 Mayo’s 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 Alcala’s 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 complainant’s 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 Alcala’s June 3, 1999 Resolution, dismissing the petitioner from the service. On the other hand, it declared as “without legal effect” Director Mayo’s February 20, 1999 Resolution, dismissing the administrative complaint against the petitioner.

In so ruling, the CA noted an apparent irregularity in Director Mayo’s 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 Mayo’s February 20, 1999 Resolution and respondent Alcala’s 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 Mayo’s 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[5] of Executive Order (E.O.) No. 292,[6] 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.

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,[9] Rule XIV of the Omnibus Rules 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)[10] of Civil Service Commission (CSC) Resolution No. 94-0521,[11] also known as 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 Castillejo’s 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.[12] Indeed, it is not totally uncommon that a government agency is given a wide latitude in the scope and exercise of its investigative powers.[13] After all, in administrative proceedings, technical rules of procedure and evidence are not strictly applied.[14]

In any case, contrary to the petitioner’s 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,[15] this Court held that the “complaint” under E.O. No. 292 and 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 Castillejo’s 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 that’s 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 petitioner’s contention that respondent Castillejo’s 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.[18] Notably, Atty. Dasig signed the formal charge and order of preventive suspension “for the Commission” in her capacity as then OIC of the CHED’s Legal Affairs Service. As the complaint against the petitioner was initiated by the appropriate disciplining authority, under Sections 46(c)[19] and 48(1),[20] Chapter 6, Subtitle A, Book V of E.O. No. 292, the same need not be 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,[21] as the disciplining authority, through Atty. 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 Alcala’s June 3, 1999 Resolution dismissing the petitioner from the service prevails over that of Director Mayo’s February 20, 1999 Resolution dismissing the administrative complaint.

First, the basis for the dismissal of the administrative complaint stated in Director Mayo’s 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 petitioner’s 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 Alcala’s 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 petitioner’s allegation is, however, belied by respondent Alcala’s 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 (respondent’s) 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.[23] The petitioner was undoubtedly afforded the 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 Alcala’s 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.

Puno, (Chairman), Austria-Martinez, Tinga, and Chico-

Nazario, JJ., concur. [1] Penned by Associate Justice Remedios A. Salazar-Fernando, with

Associate Justices Romeo A. Brawner and Mariano C. Del Castillo, concurring.

[2] Now known as the Isabela State University (ISU) Angadanan Campus after it was integrated to the ISU.

[3] Rollo, p. 89.

[4] Id. at 55-56.

[5] Infra.

[6] Also known as the Administrative Code of 1987.

[7] Rollo, p. 86.

[8] Id. at 14-15.

[9] Infra.

[10] Infra.

[11] This has now been superseded by CSC Resolution No. 991936, also known as the Uniform Rules on Administrative Cases in the Civil Service, which took effect on August 31, 1999.

[12] Montemayor v. Bundallan, 405 SCRA 264 (2003).

[13] Id. at 270.

[14] Id.

[15] G.R. No. 147009, March 11, 2004.

[16] Rollo, p. 32.

[17] Civil Service Commission v. Court of Appeals, supra.

[18] See note 3.

[19] Supra.

[20] Supra.

[21] Under Republic Act No. 7722, entitled An Act Creating the Commission

on Higher Education, Appropriating Funds Therefor and For Other Purposes, the CHED was expressly declared to be independent of the Department of Education, Culture and Sports (DECS), and attached to the Office of the President for administrative purposes only (Section 3). It was approved on May 18, 1994.

[22] Rollo, p. 54.

[23] Escleo v. Dorado, 385 SCRA 554 (2002).

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-46496 February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and NATIONAL WORKERS BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents.

Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations. Antonio D. Paguia for National Labor Unon. Claro M. Recto for petitioner "Ang Tibay". Jose M. Casal for National Workers' Brotherhood.

LAUREL, J.:

The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of the majority opinion of this Court:

1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el pago de los salarios segun costumbre en la localidad o cunado se termine la obra;

2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma;

3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del articulo 5 de la

Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por terminacion del contrato en virtud del paro.

The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers:

1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather.

2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.

3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.

4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p. 25.)

5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.)

6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary provisions of a modern labor legislation of

American origin where the industrial peace has always been the rule.

7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood.

8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations.

9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein.

The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National Labor Union, Inc.

In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in cases of this nature, in interest of orderly procedure in cases of this nature, to make several observations regarding the nature of the powers of the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the trial of cases brought before it. We have re-examined the entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found no substantial evidence that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and expressions of views of counsel have no evidentiary value.

The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation (Commonwealth Act

No. 103). It is more an administrative than a part of the integrated judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in the determination of disputes between employers and employees but its functions in the determination of disputes between employers and employees but its functions are far more comprehensive and expensive. It has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute arising between, and/or affecting employers and employees or laborers, and regulate the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as regards wages, shares or compensation, hours of labor or conditions of tenancy or employment, between landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants of farm-laborers involved exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as existing and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all industries established in a designated locality, with a view to determinating the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of official investigation and compulsory arbitration in order to determine

specific controversies between labor and capital industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of governmental powers.

In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Act requires it to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award, order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by the rules recently promulgated by this Court to carry into the effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. There are primary rights which must be respected even in proceedings of this character:

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play.

(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court in Edwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration."

(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power.

(4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial." (Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the rules of evidence prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent inn judicial proceedings would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this

assurance of a desirable flexibility in administrative procedure does not go far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them. It should not, however, detract from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute or any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal. a justice of the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers. (Section 10, ibid.)

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is literally Relations personally to decide all controversies coming before them. In the United States the difficulty is solved with the enactment of statutory authority authorizing examiners or other subordinates to render final decision, with the right to appeal to board or commission, but in our case there is no such statutory authority.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it.

In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a national way, a conclusion of law.

This result, however, does not now preclude the concession of a new trial prayed for the by respondent National Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme adopted to systematically discharged all the members of the National Labor Union Inc., from work" and this avernment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his substantial avernments" are so inaccessible to the respondents that even within the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents attached to the petition "are of such far reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein." We have considered the reply of Ang Tibay and its arguments against the petition. By and large, after considerable discussions, we have come to the conclusion that the interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record

of this case shall be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may be relevant and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered.

Avanceña, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.