Admin Law Cases Set 4

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 185230 June 1, 2011

JOSEPH C. CEREZO, Petitioner,vs.PEOPLE OF THE PHILIPPINES, JULIET YANEZA, PABLO ABUNDA, JR., and VICENTE AFULUGENCIA, Respondents.

D E C I S I O N

NACHURA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul the July 11, 2008 Decision1 and the November 4, 2008 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 99088, which reversed and set aside the October 24, 20063 and the February 26, 20074 Orders of the Regional Trial Court (RTC) of Quezon City, Branch 92.

The RTC Orders revived Criminal Case No. Q-03-115490, entitled "People of the Philippines v. Juliet Yaneza, Pablo Abunda, Jr., Oscar Mapalo and Vicente Afulugencia," after the same was dismissed in an earlier Order.

The Facts

On September 12, 2002, petitioner Joseph Cerezo filed a complaint for libel against respondents Juliet Yaneza, Pablo Abunda, Jr., and Vicente Afulugencia (respondents), as well as Oscar Mapalo (Mapalo).5

Finding probable cause to indict respondents,6 the Quezon City Prosecutor’s Office (OP-QC) filed the corresponding Information against them on February 18, 2003 before the RTC.7

Respondents thereafter filed a Motion for Reconsideration and/or Motion to Re-evaluate Prosecution’s Evidence before the OP-QC.8

In its resolution dated November 20, 2003, the OP-QC reversed its earlier finding and recommended the withdrawal of the Information.9 Consequently, a Motion to Dismiss and Withdraw Information was filed before the RTC on December 3, 2003. During the intervening period, specifically on November 24, 2003, respondents were arraigned. All of them entered a "not guilty" plea.10

In deference to the prosecutor’s last resolution, the RTC ordered the criminal case dismissed in its Order dated March 17, 2004, viz.:

Settled is the rule that the determination of the persons to be prosecuted rests primarily with the Public Prosecutor who is vested with quasi-judicial discretion in the discharge of this function. Being vested with such power, he can reconsider his own resolution if he finds that there is reasonable ground to do so. x x x.

More so, the Court cannot interfere with the Public Prosecutor’s discretion to determine probable cause or the propriety of pursuing or not a criminal case when the case is not yet filed in Court, as a general rule. However, if the same criminal case has been filed in Court already, the Public Prosecutor can still interfere with it subject to the approval of the Court. In the case of Republic vs. Sunga, et al., the Supreme Court held that while it has been settled in the case of Crespo vs. Mogul that the trial court is the sole judge on whether a criminal case should be dismissed after the complaint or information has been filed in court, nonetheless any motion of the offended party for the dismissal of the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal and only after hearing should the court exercise its exclusive authority to dismiss or continue with the prosecution of the case. The Court, therefore, after hearing and conferring with the fiscal, can dismiss the case if convinced that there is [no] reason to continue with the prosecution [of] the same. As in this case, the Court finds merit [in] the motion of the Public Prosecutor.11

Aggrieved, petitioner moved for reconsideration of the said Order, arguing that the November 20, 2003 OP-QC resolution has not yet attained finality, considering that the same was the subject of a Petition for Review filed before the Department of Justice (DOJ).12 The RTC deferred action on the said motion to await the resolution of the DOJ.13

On June 26, 2006, the Secretary of Justice promulgated his resolution reversing and setting aside the OP-QC’s November 20, 2003 resolution, and directing the latter to refile the earlier Information for libel.14

On October 24, 2006, the RTC issued its first assailed Order granting petitioner’s motion for reconsideration, conformably with the resolution of the DOJ Secretary, thus:

Considering the findings of the Department of Justice reversing the resolution of the City Prosecutor, the Court gives favorable action to the Motion for Reconsideration. In the same manner as discussed in arriving at its assailed order dated 17 March 2004, the Court gives more leeway to the Public Prosecutor in determining whether it has to continue or stop prosecuting a case. While the City Prosecutor has previously decided not to pursue further the case, the Secretary of Justice, however, through its resolution on the Petition for Review did not agree with him.

The Court disagrees with the argument raised by the accused that double jeopardy sets in to the picture. The order of dismissal as well as the withdrawal of the Information was not yet final because of the timely filing of the Motion for Reconsideration. The Court[,] therefore, can still set aside its order. Moreover, there is no refiling of the case nor the filing of a new one. The case

filed remains the same and the order of dismissal was merely vacated because the Court finds the Motion for Reconsideration meritorious.

WHEREFORE, finding the Motion for Reconsideration meritorious, the Order dated 17 March 2004 is hereby RECONSIDERED and SET ASIDE.

Let the arraignment of accused Oscar Mapalo and pre-trial [of] the other accused be set on 06 December 2006 at 8:30 in the morning.

SO ORDERED.15

Respondents moved for reconsideration, but the motion was denied in the RTC’s second assailed Order dated February 26, 2007.16

Relentless, respondents elevated their predicament to the CA through a Petition for Certiorari under Rule 65 of the Rules of Court, arguing in the main that the RTC Orders violated their constitutional right against double jeopardy.

Ruling of the CA

The appellate court found the RTC to have gravely abused its discretion in ordering the reinstatement of the case. The CA annulled the impugned RTC Orders, ruling that all the elements of double jeopardy exist. There was a valid Information sufficient in form and substance filed before a court of competent jurisdiction to which respondents had pleaded, and that the termination of the case was not expressly consented to by respondents; hence, the same could not be revived or refiled without transgressing respondents’ right against double jeopardy.

The CA further found that the DOJ Secretary improperly took cognizance of the Petition for Review because DOJ Department Order No. 223 mandates that no appeal shall be entertained if the accused has already been arraigned or, if the arraignment took place during the pendency of the appeal, the same shall be dismissed.17

Petitioner interposed the instant appeal when his motion for reconsideration of the CA Decision was denied.18

The Issues

Petitioner ascribes the following errors to the CA:

a. The Honorable Court of Appeals erred in finding that there was Double Jeopardy, specifically on the alleged existence of the requisites to constitute Double Jeopardy;

b. The Honorable Court of Appeals failed to consider the fact that there was NO refiling of the case nor the filing of a new one in arriving [at] its conclusion that Double Jeopardy sets in to the picture;

c. The Honorable Court of Appeals erred in finding that there was 1.) a valid termination of the case on the basis of the Order of the Trial Court dated 17 March 2004, and allegedly 2.) without the express consent of the respondents.19

The assigned errors will be subsumed into this issue:

Whether there was a valid termination of the case so as to usher in the impregnable wall of double jeopardy.

Our Ruling

The petition is impressed with merit.

Well-entrenched is the rule that once a case is filed with the court, any disposition of it rests on the sound discretion of the court. In thus resolving a motion to dismiss a case or to withdraw an Information, the trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice.20 It is the court’s bounden duty to assess independently the merits of the motion, and this assessment must be embodied in a written order disposing of the motion.21 While the recommendation of the prosecutor or the ruling of the Secretary of Justice is persuasive, it is not binding on courts.

In this case, it is obvious from the March 17, 2004 Order of the RTC, dismissing the criminal case, that the RTC judge failed to make his own determination of whether or not there was a prima facie case to hold respondents for trial. He failed to make an independent evaluation or assessment of the merits of the case. The RTC judge blindly relied on the manifestation and recommendation of the prosecutor when he should have been more circumspect and judicious in resolving the Motion to Dismiss and Withdraw Information especially so when the prosecution appeared to be uncertain, undecided, and irresolute on whether to indict respondents.

The same holds true with respect to the October 24, 2006 Order, which reinstated the case. The RTC judge failed to make a separate evaluation and merely awaited the resolution of the DOJ Secretary. This is evident from the general tenor of the Order and highlighted in the following portion thereof:

As discussed during the hearing of the Motion for Reconsideration, the Court will resolve it depending on the outcome of the Petition for Review. Considering the findings of the Department of Justice reversing the resolution of the City Prosecutor, the Court gives favorable action to the Motion for Reconsideration.22

By relying solely on the manifestation of the public prosecutor and the resolution of the DOJ Secretary, the trial court abdicated its judicial power and refused to perform a positive duty enjoined by law. The said Orders were thus stained with grave abuse of discretion and violated the complainant’s right to due process. They were void, had no legal standing, and produced no effect whatsoever.23

This Court must therefore remand the case to the RTC, so that the latter can rule on the merits of the case to determine if a prima facie case exists and consequently resolve the Motion to Dismiss and Withdraw Information anew.1awphil

It is beyond cavil that double jeopardy did not set in. Double jeopardy exists when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first. A first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused has been acquitted or convicted, or the case dismissed or otherwise terminated without his express consent.24

Since we have held that the March 17, 2004 Order granting the motion to dismiss was committed with grave abuse of discretion, then respondents were not acquitted nor was there a valid and legal dismissal or termination of the case. Ergo, the fifth requisite which requires the conviction and acquittal of the accused, or the dismissal of the case without the approval of the accused, was not met. Thus, double jeopardy has not set in.

WHEREFORE, the petition is hereby GIVEN DUE COURSE, and the assailed July 11, 2008 Decision and the November 4, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 99088, and the October 24, 2006 and the February 26, 2007 Orders of the Regional Trial Court of Quezon City, Branch 92, are hereby ANNULLED and SET ASIDE. The case is REMANDED to the Quezon City RTC, Branch 92, for evaluation on whether probable cause exists to hold respondents for trial.

No costs.

SO ORDERED.

ANTONIO EDUARDO B. NACHURAAssociate Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate Justice

Chairperson

DIOSDADO M. PERALTAAssociate Justice

ROBERTO A. ABADAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

A T T E S T A T I O N

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

ANTONIO T. CARPIOAssociate JusticeChairperson, Second Division

C E R T I F I C A T I O N

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

RENATO C. CORONAChief Justice

Footnotes

1 Penned by Associate Justice Arturo G. Tayag, with Associate Justices Martin S. Villarama, Jr. (now a member of this Court) and Noel G. Tijam, concurring; rollo, pp. 18-38.

2 Id. at 41-47.

3 Id. at 49-51.

4 Id. at 52.

5 Supra note 1, at 20.

6 Resolution dated February 18, 2003 in I.S. No. 02-12597; rollo, pp. 53-57.


8 Id.

9 Rollo, pp. 58-59.

10 Supra note 1, at 21-22.

11 Id. at 23-24.

12 Rollo, pp. 60-76.


14 As summarized in the October 24, 2006 Order of the RTC; supra note 3, at 50.

15 Id. at 50-51.

16 Supra note 4.

17 Supra note 1.

18 Supra note 2.

19 Rollo, pp. 6-7.

20 First Women’s Credit Corporation v. Baybay, G.R. No. 166888, January 31, 2007, 513 SCRA 637, 646, citing Santos v. Orda, Jr., 481 Phil. 93, 106 (2004).

21 Lee v. KBC Bank N.V., G.R. No. 164673, January 15, 2010, 610 SCRA 117, 132, citing Ledesma v. Court of Appeals, 344 Phil. 207, 235 (1997).


23 See Co v. Lim, G.R. Nos. 164669-70, October 30, 2009, 604 SCRA 702, 712, citing Summerville General Merchandising & Co., Inc. v. Eugenio, Jr., G.R. No. 163741, August 7, 2007, 529 SCRA 274, 281-282.

24 Section 7, Rule 117 of the Revised Rules of Criminal Procedure, as amended provides:

Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.


Manila

THIRD DIVISION

G.R. No. 186652 October 6, 2010

ATTY. ALICE ODCHIGUE-BONDOC, Petitioner,vs.TAN TIONG BIO A.K.A. HENRY TAN, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Tan Tiong Bio (respondent) had fully paid the installment payments of a 683-square-meter lot in the Manila Southwoods Residential Estates, a project of Fil-Estate Golf & Development, Inc. (Fil-Estate) in Carmona, Cavite, but Fil-Estate failed to deliver to him the title covering the lot, despite repeated demands. Fil-Estate also failed to heed the demand for the refund of the purchase price.1

Respondent, later learning that the lot "sold" to him was inexistent,2 filed a complaint for Estafa against Fil-Estate officials including its Corporate Secretary Atty. Alice Odchigue-Bondoc (petitioner) and other employees.3

In her Counter-Affidavit, petitioner alleged that, inter alia,

x x x x

5. I had no participation at all in the acts or transactions alleged in the Complaint-Affidavit. As a Corporate Secretary, I have never been involved in the management and day-to-day operations of [Fil-Estate]. x x x

x x x x.

7. x x x. [Herein respondent] alleges:

"The letter showed that the request was approved by [herein petitioner], provided that the transfer fee was paid, and that there be payment of full downpayment, with the balance payable in two years."

8) The handwritten approval and endorsement, however, are not mine. I have never transacted, either directly or indirectly, with Mrs. Ona or [herein respondent]. x x x4 (emphasis partly in the original, partly supplied; underscoring supplied)

On the basis of petitioner’s above-quoted allegations in her Counter-Affidavit, respondent filed a complaint for Perjury against petitioner, docketed as I.S. No. PSG 03-07-11855 before the Pasig City Prosecutor’s Office, which dismissed it by Resolution of June 17, 20045 for insufficiency of evidence, and denied respondent’s Motion for Reconsideration.6

On petition for review, the Department of Justice (DOJ), by Resolution of July 20, 2005 signed by the Chief State Prosecutor for the Secretary of Justice,7 motu proprio dismissed the petition on

finding that there was no showing of any reversible error, following Section 12(c) of Department Circular No. 70 dated July 3, 2000 (National Prosecution Service [NPS] Rule on Appeal).

Respondent’s motion for reconsideration having been denied8 by Resolution of January 23, 2006, he filed a petition for certiorari before the Court of Appeals which, by Decision of September 5, 2008,9 set aside the DOJ Secretary’s Resolution, holding that it committed grave abuse of discretion in issuing its Resolution dismissing respondent’s petition for review without therein expressing clearly and distinctly the facts on which the dismissal was based, in violation of Section 14, Article VIII of the Constitution.10

The appellate court went on to hold that the matter of disposing the petition outright is clearly delineated, not under Section 12 but, under Section 7 of the NPS Rule on Appeal which categorically directs the Secretary to dismiss outright an appeal or a petition for review filed after arraignment; and that under Section 7, the Secretary may dismiss the petition outright if he finds the same to be patently without merit, or manifestly intended for delay, or when the issues raised are too unsubstantial to require consideration.11

Petitioner’s Motion for Reconsideration having been denied by the appellate court, she filed the present petition for review on certiorari.

Petitioner asserts that the requirement in Section 14, Article VIII of the Constitution applies only to decisions of "courts of justice"12; that, citing Solid Homes, Inc. v. Laserna,13 the constitutional provision does not extend to decisions or rulings of executive departments such as the DOJ; and that Section 12(c) of the NPS Rule on Appeal allows the DOJ to dismiss a petition for review motu proprio, and the use of the word "outright" in the DOJ Resolution simply means "altogether," "entirely" or "openly."14

In his Comment, respondent counters that the constitutional requirement is not limited to courts, citing Presidential Ad hoc Fact-Finding Committee on Behest Loans v. Desierto,15 as it extends to quasi-judicial and administrative bodies, as well as to preliminary investigations conducted by these tribunals.

Further, respondent, citing Adasa v. Abalos,16 argues that the DOJ "muddled" the distinction between Sections 7 and 12 of the NPS Rule on Appeal and that an "outright" dismissal is not allowed since the DOJ must set the reasons why it finds no reversible error17 in an assailed resolution.

The petition is impressed with merit.

A preliminary investigation is not a quasi-judicial proceeding since "the prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused."18

x x x [A prosecutor] does not exercise adjudication nor rule-making functions. Preliminary investigation is merely inquisitorial, and is often the only means of discovering the persons who may be reasonably charged [of] a crime and to enable the [prosecutor] to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of

determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof. While the [prosecutor] makes that determination, he cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that pass judgment on the accused, not the [prosecutor].19 (emphasis and underscoring supplied)

A preliminary investigation thus partakes of an investigative or inquisitorial power for the sole purpose of obtaining information on what future action of a judicial nature may be taken.20

Balangauan v. Court of Appeals21 in fact iterates that even the action of the Secretary of Justice in reviewing a prosecutor’s order or resolution via appeal or petition for review cannot be considered a quasi-judicial proceeding since the "DOJ is not a quasi-judicial body."22 Section 14, Article VIII of the Constitution does not thus extend to resolutions issued by the DOJ Secretary.

Respondent posits, however, that Balangauan finds no application in the present case for, as the Supreme Court stated, the DOJ "rectified the shortness of its first resolution by issuing a lengthier one when it resolved [the therein] respondent[’s] . . . motion for reconsideration."23 Respondent’s position fails.

Whether the DOJ in Balangauan issued an extended resolution in resolving the therein respondent’s motion for reconsideration is immaterial. The extended resolution did not detract from settling that the DOJ is not a quasi-judicial body.

Respondent’s citation of Presidential Ad hoc Fact-Finding Committee on Behest Loans is misplaced as the Ombudsman dismissed the therein subject complaint prior to any preliminary investigation. The Ombudsman merely evaluated the complaint pursuant to Section 2, Rule II of the Rules of Procedure of the Office of the Ombudsman which reads:

SEC. 2. Evaluation.—Upon evaluating the complaint, the investigating officer shall recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate officer or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation. (emphasis supplied)

Respecting the action of the Secretary of Justice on respondent’s petition for review under Section 12 of the NPS Rule on Appeal, respondent posits that "outright" dismissal is not sanctioned thereunder but under Section 7. Respondent’s position similarly fails.

That the DOJ Secretary used the word "outright" in dismissing respondent’s petition for review under Section 12 of the Rule which reads:

SEC. 12. Disposition of the appeal.—The Secretary may reverse, affirm or modify the appealed resolution. He may, motu proprio or upon motion, dismiss the petition for review on any of the following grounds:

x x x x

(a) That there is no showing of any reversible error;

x x x x (italics in the original; emphasis and underscoring supplied)

does not dent his action. To be sure, the word "outright" was merely used in conjunction with the motu proprio action.

Section 7 has an altogether different set of grounds for the outright dismissal of a petition for review.1awphil These are (a) when the petition is patently without merit; (b) when the petition is manifestly intended for delay; (c) when the issues raised therein are too unsubstantial to require consideration; and (d) when the accused has already been arraigned in court.24

When the Secretary of Justice is convinced that a petition for review does not suffer any of the infirmities laid down in Section 7, it can decide what action to take (i.e., reverse, modify, affirm or dismiss the appeal altogether), conformably with Section 12. In other words, Sections 7 and 12 are part of a two-step approach in the DOJ Secretary’s review power.

As for respondent’s reliance on Adasa, it too fails for, unlike in the case of Adasa, herein petitioner has not been arraigned as in fact no Information has been filed against her.

In the absence of grave abuse of discretion on the part of a public prosecutor who alone determines the sufficiency of evidence that will establish probable cause in filing a criminal information,25 courts will not interfere with his findings; otherwise, courts would be swamped with petitions to review the exercise of discretion on his part each time a criminal complaint is dismissed or given due course.26

WHEREFORE, the petition for review on certiorari is GRANTED. The assailed Decision of the Court of Appeals is REVERSED AND SET ASIDE and the Resolutions of July 20, 2005 and January 23, 2006 of the Secretary of Justice are REINSTATED.

SO ORDERED.

CONCHITA CARPIO MORALESAssociate Justice

WE CONCUR:

RENATO C. CORONA*

Chief Justice

ARTURO D. BRIONAssociate Justice

LUCAS P. BERSAMINAssociate Justice

MARIA LOURDES P.A. SERENOAssociate Justice

A T T E S T A T I ON

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

CONCHITA CARPIO MORALESChairperson


Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.


Footnotes

* Additional member per raffle dated January 18, 2010 in lieu of Justice Martin S. Villarama, Jr. who took no part due to prior action in the Court of Appeals.

1 Rollo, p. 12-13.

2 CA rollo, pp. 102-109.

3 Ibid.

4 Id. at 148-151.

5 Id. at 183-187.

6 Id. at 201-202.

7 Id. at 51.

8 Id. at 67.

9 Rollo, pp.53-70. Penned by Associate Justice Noel G. Tijam with Associate Justices Martin S. Villarama, Jr. (now a member of the Court) and Arturo G. Tayag concurring.

10 Section 14. No decision shall be rendered by any court without expressing clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.

11 CA rollo, pp. 60-61.

12 Rollo, p. 24.

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

14 Rollo, pp. 32-36.

15 G.R. No. 135687, July 24, 2007, 528 SCRA 9.

16 G.R. No. 168617, February 19, 2007, 516 SCRA 261.

17 Rollo, pp. 451-456.

18 Bautista v. Court of Appeals, 413 Phil. 159, 168 (2001).

19 Id. at 168-169.

20 Sec. Evangelista v. Judge Jarencio, 160-A Phil. 753, 762 (1975).

21 G.R. No. 174350, August 13, 2008, 562 SCRA 184. Vide also Santos v. Go, G.R. No. 156081, October 19, 2005, 473 SCRA 350.

22 Id. at 204.

23 Rollo, pp. 449.

24 SEC. 7. Action on the petition.—The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration.

If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused has already been arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review.

25 Sanrio Company Limited v. Lim, G.R. No. 168662, February 19, 2008, 546 SCRA 303, 313.

26 Dumangcas v. Marcelo, G.R. No. 159949, February 27, 2006, 483 SCRA 301, 314.


Manila

EN BANC

G.R. No. 111953 December 12, 1997

HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal Affairs, HON. JESUS B. GARCIA, in his capacity as Acting Secretary, Department of Transportation and Communications, and ROGELIO A. DAYAN, in his capacity as General Manager of Philippine Ports Authority, petitioners,vs.UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS ASSOCIATION, respondents.

ROMERO, J.:

In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92), limiting the term of appointment of harbor pilots to one year subject to yearly renewal or cancellation, did the Philippine Ports Authority (PPA) violate respondents' right to exercise their profession and their right to due process of law?

The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On December 23, 1975, Presidential Decree No. 857 was issued revising the PPA's charter. Pursuant to its power of control, regulation, and supervision of pilots and the pilotage profession, 1 the PPA promulgated PPA-AO-03-85 2 on March 21, 1985, which embodied the "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports." These rules mandate, inter alia, that aspiring pilots must be holders of pilot licenses 3 and must train as probationary pilots in outports for three months and in the Port of Manila for four months. It is only after they have achieved satisfactory performance 4 that they are given permanent and regular appointments by the PPA itself 5 to exercise harbor pilotage until they reach the age of 70, unless sooner removed by reason of mental or physical unfitness by the PPA General Manager. 6 Harbor pilots in every harbor district are further required to organize

themselves into pilot associations which would make available such equipment as may be required by the PPA for effective pilotage services. In view of this mandate, pilot associations invested in floating, communications, and office equipment. In fact, every new pilot appointed by the PPA automatically becomes a member of a pilot association and is required to pay a proportionate equivalent equity or capital before being allowed to assume his duties, as reimbursement to the association concerned of the amount it paid to his predecessor.

Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-92 7 on July 15, 1992, whose avowed policy was to "instill effective discipline and thereby afford better protection to the port users through the improvement of pilotage services." This was implemented by providing therein that "all existing regular appointments which have been previously issued either by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only" and that "all appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to yearly renewal or cancellation by the Authority after conduct of a rigid evaluation of performance."

On August 12, 1992, respondents United Harbor Pilots Association and the Manila Pilots Association, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and Communication, but they were informed by then DOTC Secretary Jesus B. Garcia that "the matter of reviewing, recalling or annulling PPA's administrative issuances lies exclusively with its Board of Directors as its governing body."

Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 08-92 8 which laid down the criteria or factors to be considered in the reappointment of harbor pilot, viz.: (1) Qualifying Factors: 9 safety record and physical/mental medical exam report and (2) Criteria for Evaluation: 10 promptness in servicing vessels, compliance with PPA Pilotage Guidelines, number of years as a harbor pilot, average GRT of vessels serviced as pilot, awards/commendations as harbor pilot, and age.

Respondents reiterated their request for the suspension of the implementation of PPA-AO No. 04-92, but Secretary Garcia insisted on his position that the matter was within the jurisdiction of the Board of Directors of the PPA. Compas appealed this ruling to the Office of the President (OP), reiterating his arguments before the DOTC.

On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance the implementation of PPA-AO No. 04-92. In its answer, the PPA countered that said administrative order was issued in the exercise of its administrative control and supervision over harbor pilots under Section 6-a (viii), Article IV of P.D. No. 857, as amended, and it, along with its implementing guidelines, was intended to restore order in the ports and to improve the quality of port services.

On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal Affairs Renato C. Corona, dismissed the appeal/petition and lifted the restraining order issued earlier. 11 He concluded that PPA-AO No. 04-92 applied to all harbor pilots and,

for all intents and purposes, was not the act of Dayan, but of the PPA, which was merely implementing Section 6 of P.D. No. 857, mandating it "to control, regulate and supervise pilotage and conduct of pilots in any port district."

On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its implementing memoranda and circulars, Secretary Corona opined that:

The exercise of one's profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. In the limited context of this case. PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby. As may be noted, the issuance aims no more than to improve pilotage services by limiting the appointment to harbor pilot positions to one year, subject to renewal or cancellation after a rigid evaluation of the appointee's performance.

PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession in PPA's jurisdictional area. (Emphasis supplied)

Finally, as regards the alleged "absence of ample prior consultation" before the issuance of the administrative order, Secretary Corona cited Section 26 of P.D. No. 857, which merely requires the PPA to consult with "relevant Government agencies." Since the PPA Board of Directors is composed of the Secretaries of the DOTC, the Department of Public Works and Highways, the Department of Finance, and the Department of Environment and Natural Resources, as well as the Director-General of the National Economic Development Agency, the Administrator of the Maritime Industry Authority (MARINA), and the private sector representative who, due to his knowledge and expertise, was appointed by the President to the Board, he concluded that the law has been sufficiently complied with by the PPA in issuing the assailed administrative order.

Consequently, respondents filed a petition for certiorari, prohibition and injunction with prayer for the issuance of a temporary restraining order and damages, before Branch 6 of the Regional Trial Court of Manila, which was docketed as Civil Case No. 93-65673. On September 6, 1993, the trial court rendered the following judgment: 12

WHEREFORE, for all the foregoing, this Court hereby rules that:

1. Respondents (herein petitioners) have acted excess jurisdiction and with grave abuse of discretion and in a capricious, whimsical and arbitrary manner in promulgating PPA Administrative Order 04-92 including all its implementing Memoranda, Circulars and Orders;

2. PPA Administrative Order 04-92 and its implementing Circulars and Orders are declared null and void;

3. The respondents are permanently enjoined from implementing PPA Administrative Order 04-92 and its implementing Memoranda, Circulars and Orders.

No costs.

SO ORDERED.

The court a quo pointed out that the Bureau of Customs, the precursor of the PPA, recognized pilotage as a profession and, therefore, a property right under Callanta v. Carnation Philippines, Inc. 13 Thus, abbreviating the term within which that privilege may be exercised would be an interference with the property rights of the harbor pilots. Consequently, any "withdrawal or alteration" of such property right must be strictly made in accordance with the constitutional mandate of due process of law. This was apparently not followed by the PPA when it did not conduct public hearings prior to the issuance of PPA-AO No. 04-92; respondents allegedly learned about it only after its publication in the newspapers. From this decision, petitioners elevated their case to this Court on certiorari.

After carefully examining the records and deliberating on the arguments of the parties, the Court is convinced that PPA-AO No. 04-92 was issued in stark disregard of respondents' right against deprivation of property without due process of law. Consequently, the instant petition must be denied.

Section 1 of the Bill of Rights lays down what is known as the "due process clause" of the Constitution, viz.:

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, . . .

In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process "refers to the method or manner by which the law is enforced," while substantive due process "requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just." 14 PPA-AO No. 04-92 must be examined in light of this distinction.

Respondents argue that due process was not observed in the adoption of PPA-AO No. 04-92 allegedly because no hearing was conducted whereby "relevant government agencies" and the pilots themselves could ventilate their views. They are obviously referring to the procedural aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v. Hon. Exevea, 15 where it declared that "(a)s long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of."

In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times 16 before the matter was finally elevated to this Tribunal. Their arguments on this score, however, fail to persuade. While respondents emphasize that the Philippine

Coast Guard, "which issues the licenses of pilots after administering the pilots' examinations," was not consulted, 17 the facts show that the MARINA, which took over the licensing function of the Philippine Coast Guard, was duly represented in the Board of Directors of the PPA. Thus, petitioners correctly argued that, there being no matters of naval defense involved in the issuance of the administrative order, the Philippine Coast Guard need not be consulted. 18

Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing. 19

Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said right has become vested and can only be "withdrawn or shortened" by observing the constitutional mandate of due process of law. Their argument has thus shifted from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by the organic law.

There is no dispute that pilotage as a profession has taken on the nature of a property right. Even petitioner Corona recognized this when he stated in his March 17, 1993, decision that "(t)he exercise of one's profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process." 20 He merely expressed the opinion the "(i)n the limited context of this case, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby, and that "PPA-AO 04-95 does not forbid, but merely regulates, the exercise by harbor pilots of their profession." As will be presently demonstrated, such supposition is gravely erroneous and tends to perpetuate an administrative order which is not only unreasonable but also superfluous.

Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is "the granting of license especially to practice a profession." It is also "the system of granting licenses (as for professional practice) in accordance with establishment standards." 21 A license is a right or permission granted by some competent authority to carry on a business or do an act which, without such license, would be illegal. 22

Before harbor pilots can earn a license to practice their profession, they literally have to pass through the proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and practice. Thus, the court a quo observed:

Petitioners (herein respondents) contend, and the respondents (herein petitioners) do not deny, the here (sic) in this jurisdiction, before a person can be a harbor pilot, he must pass five (5) government professional examinations, namely, (1) For Third Mate and after which he must work, train and practice on board a vessel for at least a year; (2) For Second Mate and after

which he must work, train and practice for at least a year; (3) For Chief Mate and after which he must work, train and practice for at least a year; (4) For a Master Mariner and after which he must work as Captain of vessel for at least two (2) years to qualify for an examination to be a pilot; and finally, of course, that given for pilots.

Their license is granted in the form of an appointment which allows them to engage in pilotage until they retire at the age 70 years. This is a vested right. Under the terms of PPA-AO No. 04-92, "(a)ll existing regular appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only," and "(a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Authority after conduct of a rigid evaluation of performance."

It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a "rigid evaluation of performance" which is conducted only after the license has already been cancelled. Hence, the use of the term "renewal." It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law.

The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPA-AO No. 03-85, which is still operational. Respondents are correct in pointing out that PPA-AO No. 04-92 is a "surplusage" 23 and, therefore, an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports." It provides, inter alia, for the qualification, appointment, performance evaluation, disciplining and removal of harbor pilots — matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down.

Finally, respondents' insinuation that then PPA General Manager Dayan was responsible for the issuance of the questioned administrative order may have some factual basis; after all, power and authority were vested in his office to propose rules and regulations. The trial court's finding of animosity between him and private respondents might likewise have a grain of truth. Yet the number of cases filed in court between private respondents and Dayan, including cases which have reached this Court, cannot certainly be considered the primordial reason for the issuance of PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan should be presumed to have acted in accordance with law and the best of professional motives. In any event, his actions are certainly always subject to scrutiny by higher administrative authorities.

WHEREFORE, the instant petition is hereby DISMISSED and the assailed decision of the court a quo dated September 6, 1993, in Civil Case No. 93-65673 is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur.

Martinez, J., took no part.

Footnotes

1 Pilotage is the act of conducting a vessel from the high seas into a port. Usually, pilotage is conducted within a two-mile area offshore to an assigned berthing area and vice versa.

2 Rollo, p. 87.

3 The pilot licensing function itself which used to be exercised by the Philippine Coast Guard pursuant to the Revised Coast Guard Law of 1974 (P.D. No. 601) has been transferred to the Maritime Industry Authority (MARINA) by virtue of Executive Order No. 125, which took effect on January 30, 1987.

4 Determined by an Evaluation Committee.

5 Upon the recommendation of the PPA General Manager.

6 Article IV, Section 20.

7 Rollo, p. 41.

8 Ibid., p. 42.

9 Qualifying factors are requirements which must be met before a pilot's application for reappointment is even evaluated by the PPA.

10 These criteria are used for evaluation by the PPA after a pilot has complied with all the requirements to qualify for evaluation. Each criterion is assigned a certain number of points.

11 Rollo, pp. 36-40.

12 Ibid., p. 29-35.

13 145 SCRA 268 (1986)

14 De Leon, Textbook on the Philippine Constitution, 1991, p. 81.

15 G.R. No. 117565 November 18, 1997, citing Legarda v. Court of Appeals, G.R. No. 94457, October 16, 1997, and Pizza Hut/Progressive Development Corporation v. NLRC, 322 Phil. 573.

16 Questioned twice before the DOTC, appealed to the OP, before the finding affirmative relief with the RTC of Manila.

17 Rollo, p. 55.

18 Ibid., p. 163.

19 Philippine Communications Satellite Corporation v. Alcuaz, 180 SCRA 218 (1989), citing 73 C.J.S. 452-453.

20 Rollo, p. 38.

21 Webster's Third World International Dictionary, 1993 ed., p. 1304.

22 53 C.J.S. 445, citing 37 C.J. 168. In Tan v. Director of Forestry, 210 Phil. 244 (1983), the Court defined a license as merely a permit or privilege to do what otherwise would be unlawful. It is not a contract between the authority, federal, state or municipal, granting it and the person to whom it is granted. Neither is it property or a property right, nor does it create a vested right; nor is it taxation.

23 Rollo, p. 65.


Manila

EN BANC

G.R. No. 188308 October 15, 2009

JOSELITO R. MENDOZA, Petitioner,vs.COMMISSION ON ELECTIONS and ROBERTO M. PAGDANGANAN, Respondents.

D E C I S I O N

BRION, J.:

The present case involves a clash between the power under the Philippine Constitution of the respondent Commission on Elections (COMELEC) in the handling of a provincial election contest, and the claimed due process rights of a party to the contest. The petitioner Joselito R.

Mendoza (the petitioner) essentially asserts in his petition for certiorari1 that the COMELEC conducted proceedings in the election contest for the gubernatorial position of the Province of Bulacan, between him and the respondent Roberto M. Pagdanganan (the respondent), without due regard to his fundamental due process rights. The COMELEC, on the other hand, claims that its decision-making deliberations are internal, confidential and do not require notice to and the participation of the contending parties.

THE ANTECEDENTS

The petitioner and the respondent vied for the position of Governor of the Province of Bulacan in the May 14, 2007 elections. The petitioner was proclaimed winning candidate and assumed the office of Governor.

The respondent seasonably filed an election protest with the COMELEC, which was raffled to the Second Division and docketed as EPC No. 2007-44. Revision of ballots involving the protested and counter-protested precincts in Angat, Bocaue, Calumpit, Doña Remedios Trinidad, Guiginto, Malolos, Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and San Jose del Monte soon followed. The revision was conducted at the COMELEC’s office in Intramuros. After revision, the parties presented their other evidence, leading to the parties’ formal offer of their respective evidence.

The COMELEC approved the parties’ formal offer of evidence and then required the parties to submit their respective memoranda. The parties complied with the COMELEC’s order. The case was thereafter submitted for resolution.

On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including those involved in the provincial election contest, to the Senate Electoral Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. In light of this development, the petitioner moved to suspend further proceedings. .

The COMELEC’s Second Division denied the petitioner’s motion in its Order of April 29, 2009, ruling that the COMELEC has plenary powers to find alternative methods to facilitate the resolution of the election protest; thus, it concluded that it would continue the proceedings after proper coordination with the SET. The petitioner moved to reconsider this Order, but the COMELEC’s Second Division denied the motion in its Order of May 26, 2009. These inter-related Resolutions led to the COMELEC’s continued action – specifically, the appreciation of ballots – on the provincial election contest at the SET offices.

Allegedly alarmed by information on COMELEC action on the provincial election contest within the SET premises without notice to him and without his participation, the petitioner’s counsel wrote the SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported conduct of proceedings.2 The SET Secretary responded on June 17, 2009 as follows:

x x x please be informed that the conduct of proceedings in COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by then Acting

Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of Commissioner Lucenito N. Tagle.

Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995, stating that "(t)he Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest case shall be the primary concern." While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested. [emphasis supplied]3

THE PETITION

The SET Secretary’s response triggered the filing of the present petition raising the following ISSUES –

A. WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY CONDUCTING PROCEEDINGS WITHOUT GIVING DUE NOTICE TO THE PETITIONER.

B. WHETHER OR NOT THE COMELEC GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO AN EXCESS OF JURISDICTION IN APPRECIATING BALLOTS WHICH ARE NOT IN ITS OFFICIAL CUSTODY AND ARE OUTSIDE ITS OWN PREMISES, AUTHORITY AND CONTROL.

The petitioner argues that the election protest involves his election as Governor; thus, its subject matter involves him and the people of the Province of Bulacan who elected him. On this basis, he claims entitlement to notice and participation in all matters that involve or are related to the election protest. He further asserts that he had the legitimate expectation that no further proceedings would be held or conducted in the case after its submission for decision.

Citing the commentaries of Father Joaquin Bernas,4 the petitioner argues that the proceedings before the COMELEC in election protests are judicial in nature and character. Thus, the strictures of judicial due process – specifically, (a) opportunity to be heard and (b) that judgment be rendered only after lawful hearing – apply. Notices in judicial dispute, he claims, are not really just a matter of courtesy; they are elementary fundamental element of due process, they are part and parcel of a right of a party to be heard. He further cites Justice Isagani A. Cruz,5 who wrote:

x x x Every litigant is entitled to his day in court. He has a right to be notified of every incident of the proceeding and to be present at every stage thereof so that he may be heard by himself and counsel for the protection of his interest.

The petitioner claims that without notice to him of the proceedings, the due process element of the right to have judgment only after lawful hearing is absent. There is no way, he claims, that a judicial proceeding held without notice to the parties could be described as a lawful hearing, especially a proceeding which has as its subject matter the sovereign will of an entire province.

He was therefore denied his day in court, he claims, when the COMELEC conducted the examination and appreciation of ballots. The proceedings should be stopped and declared null and void; its future results, too, should be nullified, as nothing derived from the anomalous and unconstitutional clandestine and unilateral proceedings should ever be part of any decision that the COMELEC may subsequently render. The poisonous fruits (derived from the proceedings) should have no part and should not be admitted for any purpose and/or in any judicial proceeding.

Other than his due process concern, the petitioner takes issue with the COMELEC’s appreciation of ballots even when the ballots and other election materials were no longer in its official custody and were outside its premises, authority and control. He asserts that an important element of due process is that the judicial body should have jurisdiction over the property that is the subject matter of the proceedings. In this case, the COMELEC has transferred possession, custody and jurisdiction over the ballots to the SET, a tribunal separate and independent from the COMELEC and over which the COMELEC exercises no authority or jurisdiction. For the COMELEC to still conduct proceedings on property, materials and evidence no longer in its custody violates the principle of separation of powers.

The petitioner also points out that the COMELEC’s unilateral appreciation of the ballots in the SET premises deviates from the Commission’s usual and time honored practice and procedure of conducting proceedings within its premises and while it has custody over the ballots. There is no precedent, according to the petitioner, for this deviation, nor is there any compelling reason to make the present case an exception. Citing Cabagnot v. Commission on Elections (G.R. No. 124383, August 9, 1996) which involves a transfer or change of venue of the revision of ballots, the petitioner alleges that this Court has been very emphatic in denouncing the COMELEC for its departure from its own rules and usual practice; while Cabagnot involves the issue of change of venue, the petitioner finds parallel applicability in the present case which also involves a deviation from COMELEC rules and usual practice. The petitioner adds that the act of the Second Division is effectively an arrogation of the authority to promulgate rules of procedure – a power that solely belongs to the COMELEC en banc.

After a preliminary finding of a genuine due process issue, we issued a Status Quo Order on July 14, 2009.

THE RESPONDENTS’ COMMENTS

In his Comment to the Petition with Extremely Urgent Motion to Lift/Dissolve Status Quo Ante Order, the private respondent asserts that the petition contains deliberate falsehoods and misleading allegations that led the Court to grant the injunctive relief the petitioner had asked. He asserts that the "proceeding" the petitioner stated in his petition was actually the COMELEC’s decision-making process, i.e., the appreciation of ballots, which is a procedure internal to the Members of the Second Division of the COMELEC and their staff members; no revision of ballots took place as revision had long been finished. What was therefore undertaken within the SET’s premises was unilateral COMELEC action that is exclusive to the COMELEC and an internal matter that is confidential in nature. In this light, no due process violation ever arose.

The private respondent also asserts that the petitioner cannot claim that he was not notified of and denied participation in the revision proceedings, as the petitioner himself is fully aware that the revision of the ballots was completed as early as July 28, 2008 and the petitioner was present and actively participated in the entire proceedings, all the way to the filing of the required memoranda. Thus, the petitioner’s right to due process was duly satisfied.

The private respondent implores us to commence contempt proceedings against the petitioner who, the respondent claims, has not been forthright in his submissions and was not guided by the highest standards of truthfulness, fair play and nobility in his conduct as a party and in his relations with the opposing party, the other counsel and the Court.

Lastly, the private respondent posits that the present petition was filed out of time – i.e., beyond the reglementary period provided under Rule 64. All these reasons, the private respondent argues, constitute sufficient basis for the lifting of the status quo order and the dismissal of the petition.

Public respondent COMELEC, for its part, claims that the petition is without basis in fact and in law and ought to be dismissed outright. Given the possibility of simultaneous election contests involving national and local officials, it has institutionalized an order of preference in the custody and revision of ballots in contested ballot boxes. The established order of preference is not without exception, as the expeditious disposition of protest cases is a primary concern. Additionally, the order of preference does not prevent the COMELEC from proceeding with pending protest cases, particularly those already submitted for decision. It claims that it has wide latitude to employ means to effectively perform its duty in safeguarding the sanctity of the elections and the integrity of the ballot.

The COMELEC further argues that in the absence of a specific rule on whether it can conduct appreciation of ballots outside its premises or official custody, the issue boils down to one of discretion – the authority of the COMELEC to control as it deems fit the processes or incidents of a pending election protest. Under Section 4 of the COMELEC Rules of Procedure, the COMELEC may use all auxiliary writs, processes and other means to carry into effect its powers or jurisdiction; if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or the Rules of Procedure, any suitable process or proceeding not prohibited by law or by its rules may be adopted.

The COMELEC lastly submits that while due process requires giving the parties an opportunity to intervene in all stages of the proceedings, the COMELEC in the present case is not actually conducting further proceedings requiring notice to the parties; there is no revision or correction of the ballots, as the election protest had already been submitted for resolution. When the COMELEC coordinated with the SET, it was simply for purposes of resolving the submitted provincial election contest before it; the parties do not take part in this aspect of the case which necessarily requires utmost secrecy. On the whole, the petitioner was afforded every opportunity to present his case. To now hold the election protest hostage until the conclusion of the protest pending before the SET defeats the COMELEC’s mandate of ensuring free, orderly and honest election.

THE COURT’S RULING

We review the present petition on the basis of the combined application of Rules 64 and 65 of the Rules of Court. While COMELEC jurisdiction over the Bulacan election contest is not disputed, the legality of subsequent COMELEC action is assailed for having been undertaken with grave abuse of discretion amounting to lack or excess of jurisdiction. Thus, our standard of review is "grave abuse of discretion," a term that defies exact definition, but generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility."6 Mere abuse of discretion is not enough; the abuse must be grave to merit our positive action.7

After due consideration, we find the petition devoid of merit.

The petition is anchored on the alleged conduct of proceedings in the election protest – following the completed revision of ballots – at the SET premises without notice to and without the participation of the petitioner. Significantly, "the conduct of proceedings" is confirmed by the SET Secretary in the letter we quoted above.8 As the issues raised show – the petitioner’s focus is not really on the COMELEC Orders denying the suspension of proceedings when the ballot boxes and other election materials pertinent to the election contest were transferred to the SET; the focus is on what the COMELEC did after to the issuance of the Resolutions. We read the petition in this context as these COMELEC Orders are now unassailable as the period to challenge them has long passed.9

The substantive issue we are primarily called upon to resolve is whether there were proceedings within the SET premises, entitling the petitioner to notice and participation, which were denied to him; in other words, the issue is whether the petitioner’s right to due process has been violated. A finding of due process violation, because of the inherent arbitrariness it carries, necessarily amounts to grave abuse of discretion.

As a preliminary matter, we note that the petitioner has claimed that COMELEC exercises judicial power in its action over provincial election contests and has argued its due process position from this view. We take this opportunity to clarify that judicial power in our country is "vested in one Supreme Court and in such lower courts as may be established by law."10 This exclusive grant of authority to the Judiciary is reinforced under the second paragraph of Section 1, Article VIII of the Constitution which further states that "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.. .," thus constitutionally locating the situs of the exercise of judicial power in the courts.

In contrast with the above definitions, Section 2, Article IX(C) of the Constitution lists the COMELEC’s powers and functions, among others, as follows:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

(2) 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 by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay officials shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.

Under these terms, the COMELEC under our governmental structure is a constitutional administrative agency and its powers are essentially executive in nature (i.e., to enforce and administer election laws),11 quasi-judicial (to exercise original jurisdiction over election contests of regional, provincial and city officials and appellate jurisdiction over election contests of other lower ranking officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of its rules of procedure).

Historically, the COMELEC has always been an administrative agency whose powers have been increased from the 1935 Constitution to the present one, to reflect the country’s awareness of the need to provide greater regulation and protection to our electoral processes to ensure their integrity. In the 1935 Constitution, the powers and functions of the COMELEC were defined as follows:

SECTION 2. The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials. All law enforcement agencies and instrumentalities of the Government, when so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest election. The decisions, orders, and rulings of the Commission shall be subject to review by the Supreme Court. [emphasis supplied]

These evolved into the following powers and functions under the 1973 Constitution:

(1) Enforce and administer all laws relative to the conduct of elections.

(2) Be the sole judge of all contests relating to the elections, returns, and qualifications of all members of the National Assembly and elective provincial and city officials.

(3) Decide, save those involving the right to vote, administrative questions affecting elections, including the determination of the number and location of polling places, the appointment of election officials and inspectors, and the registration of voters.

These powers have been enhanced in scope and details under the 1987 Constitution, but retained all the while the character of an administrative agency.

The COMELEC’s adjudicative function is quasi-judicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its jurisdiction, to hold hearings and exercise discretion of a judicial nature;12 it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the basis of all these decides on the merits of the case and renders judgment.13 Despite the exercise of discretion that is essentially judicial in character, particularly with respect to election contests, COMELEC is not a tribunal within the judicial branch of government and is not a court exercising judicial power in the constitutional sense;14 hence, its adjudicative function, exercised as it is in the course of administration and enforcement, is quasi-judicial.

As will be seen on close examination, the 1973 Constitution used the unique wording that the COMELEC shall "be the sole judge of all contests," thus giving the appearance that judicial power had been conferred. This phraseology, however, was changed in the 1987 Constitution to give the COMELEC "exclusive jurisdiction over all contests," thus removing any vestige of exercising its adjudicatory power as a court and correctly aligning it with what it is – a quasi-judicial body.15 Consistent with the characterization of its adjudicatory power as quasi-judicial, the judicial review of COMELEC en banc decisions (together with the review of Civil Service Commission decisions) is via the prerogative writ of certiorari, not through an appeal, as the traditional mode of review of quasi-judicial decisions of administrative tribunals in the exercise the Court’s supervisory authority. This means that the Court will not supplant the decision of the COMELEC as a quasi-judicial body except where a grave abuse of discretion or any other jurisdictional error exists.

The appropriate due process standards that apply to the COMELEC, as an administrative or quasi-judicial tribunal, are those outlined in the seminal case of Ang Tibay v. Court of Industrial Relations,16 quoted below:

(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. xxx

(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.

(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 its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached.

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

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

(6) The 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.

(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 decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.

These are now commonly referred to as cardinal primary rights in administrative proceedings.

The first of the enumerated rights pertain to the substantive rights of a party at hearing stage of the proceedings. The essence of this aspect of due process, we have consistently held, is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of.17 A formal or trial-type hearing is not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a hearing and these serve as the standards in the determination of the presence or denial of due process.

The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to a hearing and are the inviolable rights applicable at the deliberative stage, as the decision-maker decides on the evidence presented during the hearing. These standards set forth the guiding considerations in deliberating on the case and are the material and substantial components of decision-making. Briefly, the tribunal must consider the totality of the evidence presented which must all be found in the records of the case (i.e., those presented or submitted by the parties); the conclusion, reached by the decision-maker himself and not by a subordinate, must be based on substantial evidence.18

Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further complements the hearing and decision-making due process rights and is similar in substance to the constitutional requirement that a decision of a court must state distinctly the facts and the law upon which it is based.19 As a component of the rule of fairness that underlies due process, this is the "duty to give reason" to enable the affected person to understand how the rule of fairness has been administered in his case, to expose the reason to public scrutiny and criticism, and to ensure that the decision will be thought through by the decision-maker.

In the present case, the petitioner invokes both the due process component rights at the hearing and deliberative stages and alleges that these component rights have all been violated. We discuss all these allegations below.

The Right to Notice and to be Heard.

a. At the Hearing and Revision of Ballots.

Based on the pleadings filed, we see no factual and legal basis for the petitioner to complain of denial of his hearing stage rights. In the first place, he does not dispute that he fully participated in the proceedings of the election protest until the case was deemed submitted for resolution; he had representation at the revision of the ballots, duly presented his evidence, and summed up his case through a memorandum. These various phases of the proceedings constitute the hearing proper of the election contest and the COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay hearing stage rights require. In these proceedings, the petitioner stood head-to-head with the respondent in an adversarial contest where both sides were given their respective rights to speak, make their presentations, and controvert each other’s submission, subject only to established COMELEC rules of procedures. Under these undisputed facts, both parties had their day in court, so to speak, and neither one can complain of any denial of notice or of the right to be heard.

b. At the "Proceedings" at the SET.

A critical question to be answered in passing upon due process questions at this stage of the election contest is the nature of the so-called "proceedings" after the ballots and other materials pertinent to the provincial election contest were transferred to the SET.

In the petition, the petitioner alleged that there were "strange proceedings"20 which were "unilateral, clandestine and surreptitious" within the premises of the SET, on "documents, ballots and election materials whose possession and custody have been transferred" to the SET, and the "petitioner was NEVER OFFICIALLY NOTIFIED of the strange on-goings" at the SET.21 Attached to the petition was the letter of the Secretary of the SET confirming the "conduct of proceedings" in the provincial election contest, and citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio, upon the formal request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3, COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among the COMELEC, the SET and the courts "so as not to delay or interrupt the revision of ballots being conducted." While the SET letter made the reservation that "While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested," no mention whatsoever was made of the kind of proceedings taking place.

It was at this point that this Court intervened, in response to the petitioner’s prayer for the issuance of temporary injunctive relief, through the issuance of a Status Quo Order with a non-extendible directive for the respondents to file their comments on the petition; for indeed, any further revision of ballots or other adversarial proceedings after the case has been submitted for resolution, would not only be strange and unusual but would indicate a gross violation of due process rights.

After consideration of the respondents’ Comments and the petitioner’s petition and Reply, we hold that the contested proceedings at the SET ("contested proceedings) are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioner’s Reply:22

"However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting "further proceedings" requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality."

In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations which are considered confidential and privileged.23 We find it significant that the private respondent’s Comment fully supported the COMELEC’s position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest.

To conclude, the rights to notice and to be heard are not material considerations in the COMELEC’s handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed.

Alleged Violations of

Deliberation Stage Rights.

On the basis of the above conclusion, we see no point in discussing any alleged violation of the deliberative stage rights. First, no illegal proceeding ever took place that would bear the "poisonous fruits" that the petitioner fears. Secondly, in the absence of the results of the COMELEC deliberations through its decision on the election protest, no basis exists to apply the Ang Tibay deliberative stage rights; there is nothing for us to test under the standards of the due process deliberative stages rights before the COMELEC renders its decision. Expressed in terms of our standard of review, we have as yet no basis to determine the existence of any grave abuse of discretion.

Conduct of COMELEC

Deliberations at the SET Premises

We turn to the issue of the propriety of the COMELEC’s consideration of the provincial election contest (specifically its appreciation of the contested ballots) at the SET premises and while the same ballots are also under consideration by the SET for another election contest legitimately within the SET’s own jurisdiction.

We state at the outset that the COMELEC did not lose jurisdiction over the provincial election contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and other election materials to the SET. The Constitution conferred upon the COMELEC jurisdiction over election protests involving provincial officials. The COMELEC in this case has lawfully acquired jurisdiction over the subject matter, i.e., the provincial election contest, as well as over the parties. After its jurisdiction attached, this jurisdiction cannot be ousted by subsequent events such as the temporary transfer of evidence and material records of the proceedings to another tribunal exercising its own jurisdiction over another election contest pursuant to the Constitution. This is the rule of adherence of jurisdiction.24

Thus, the jurisdiction of the COMELEC over provincial election contest exists side by side with the jurisdiction of the Senate Electoral Tribunal, with each tribunal being supreme in their respective areas of concern (the Senate election contests for the SET, and the regional, provincial and city election contests for the COMELEC), and with neither one being higher than the other in terms of precedence so that the jurisdiction of one must yield to the other.

But while no precedence in jurisdiction exists, the COMELEC, vowing to the reality that only a single ballot exists in an election for national and local officials, saw it fit to lay down the rule on the "order of preference in the custody and revision of ballots and other documents contained in the ballot boxes." The order, in terms of the adjudicatory tribunal and as provided in COMELEC Resolution No. 2812, runs:

1. Presidential Electoral Tribunal;

2. Senate Electoral Tribunal;

3. House of Representatives Electoral Tribunal;

4. Commission on Elections; and

5. Regional Trial Courts.

This order of preference dictated that the ballot boxes and other election materials in Bulacan’s provincial election contest, had to be transferred to the SET when the latter needed these materials for its revision of ballots. The transfer to the SET, however, did not mean that the Bulacan provincial election contest – at that time already submitted for decision – had to be suspended as the COMELEC held in its Orders of 29 April 2009 and 26 May 2009 in EPC No. 2007-44.25 This is particularly true in Bulacan’s case as no revision had to be undertaken, the revision having been already terminated.

With the COMELEC retaining its jurisdiction over the Bulacan provincial election contest, the legal effect of the physical transfer of the ballots and other election materials to the SET for purposes of its own revision becomes a non-issue, given the arrangement between the COMELEC and the SET, pursuant to COMELEC Resolution No. 2812, to "coordinate and make arrangements with each other so as not to delay or interrupt the revision of ballots being conducted," all for the purpose of the expeditious disposition of their respective protest cases. The SET itself honored this arrangement as shown by the letter of the SET Secretary that the COMELEC could "conduct proceedings" within the Tribunal premises as authorized by the Acting Chairman of the Tribunal, Justice Antonio T. Carpio.26 This arrangement recognized the COMELEC’s effective authority over the Bulacan ballots and other election materials, although these were temporarily located at the SET premises. This arrangement, too, together with the side by side and non-conflicting existence of the COMELEC and SET jurisdictions, negate the validity of the petitioner’s argument that the COMELEC transgressed the rule on separation of powers when it acted on the Bulacan provincial election contest while the ballot boxes were at the SET premises. Rather than negate, this arrangement reinforced the separate but co-existing nature of these tribunals’ respective jurisdictions.1avvphi1

As the petitioner argues and the COMELEC candidly admits, "there is no specific rule which allows the COMELEC to conduct an appreciation of ballots outside its premises and of those which are outside its own custody."27 But while this is true, there is likewise nothing to prohibit the COMELEC from undertaking the appreciation of ballot side by side with the SET’s own revision of ballots for the senatorial votes, in light especially of the COMELEC’s general authority to adopt means to effect its powers and jurisdiction under its Rules of Procedure. Section 4 of these Rules states:

Sec. 4. Means to Effect Jurisdiction. - All auxiliary writs, processes and other means necessary to carry into effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be followed in the exercise of such power or jurisdiction is not specifically provided for by law or these rules, any suitable process or proceeding may be adopted.

This rule is by no means unusual and unique to the COMELEC as the courts have the benefit of this same type of rule under Section 6, Rule 136 of the Rules of Court. The courts’ own rule provides:

Means to Carry Jurisdiction into Effect. When by law jurisdiction is conferred o n a court or judicial officer, all auxiliary writs, writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules.

Incidentally, the COMELEC authority to promulgate the above rule enjoys constitutional moorings; in the grant to the COMELEC of its jurisdiction, the Constitution provided it with the accompanying authority to promulgate its own rules concerning pleadings and practice before it or before any of its offices, provided that these rules shall not diminish, increase or modify substantive rights.28 The Constitution additionally requires that the rules of procedure that the

COMELEC will promulgate must expedite the disposition of election cases, including pre-proclamation controversies.29 This constitutional standard is authority, no less, that the COMELEC can cite in defending its action. For ultimately, the appreciation of the Bulacan ballots that the COMELEC undertook side by side with the SET’s own revision of ballots, constitutes an exercise of discretion made under the authority of the above-cited COMELEC rule of procedure.

On the basis of the standards set by Section 4 of the COMELEC Rules of Procedure, and of the Constitution itself in the handling of election cases, we rule that the COMELEC action is a valid exercise of discretion as it is a suitable and reasonable process within the exercise of its jurisdiction over provincial election contests, aimed at expediting the disposition of this case, and with no adverse, prejudicial or discriminatory effects on the parties to the contest that would render the rule unreasonable.

Since the COMELEC action, taken by its Second Division, is authorized under the COMELEC Rules of Procedure, the Second Division cannot in any sense be said to be intruding into the COMELEC en banc rule-making prerogative when the Second Division chose to undertake ballot appreciation within the SET premises side by side with the SET revision of ballots. To be exact, the Second Division never laid down any new rule; it merely acted pursuant to a rule that the COMELEC en banc itself had previously enacted.

In light of these conclusions, we need not discuss the other issues raised.

WHEREFORE, premises considered, we DISMISS the petition for certiorari for lack of merit. We accordingly LIFT the STATUS QUO ORDER we issued, effective immediately.

SO ORDERED.


WE CONCUR:

(On official leave)REYNATO S. PUNO*

Chief Justice

LEONARDO A. QUISUMBING**

Acting Chief JusticeRENATO C. CORONA

Associate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

DIOSDADO M. PERALTA ANTONIO T. CARPIO

Associate Justice Associate Justice


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

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice


(On official leave)MARIANO C. DEL CASTILLO****

Associate Justice



Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

LEONARDO A. QUISUMBINGActing Chief Justice

Footnotes

* On official leave.

** Acting Chief Justice from October 12 to 16, 2009 per Special Order No. 721 dated October 5, 2009.

*** On official leave.

**** On official leave.

1 Filed under Rule 64, in relation to Rule 65, of the Rules of Court.

2 See Petition, p. 12.

3 Rollo, p. 45.

4 J. Bernas, Constitutional Structure and Powers of Government, 2005, pp. 718-719.

5 I. Cruz, Constitutional Law, 2003, p. 14.

6 Quintos v. Commission on Elections, G.R. No. 149800, November 21, 2002, 392 SCRA 489.

7 Suliguin v. Commission on Elections, G.R. No. 166046, March 23, 2006, 485 SCRA 219.

8 Supra note 3.

9 See Section 3, Rule 64 of the Rules of Court. The petitioner received the COMELEC Resolution denying his motion for reconsideration on June 1, 2009. Thirty (30) days later or on July 1, 2009, he filed a motion for extension of time to file the petition. The petition cannot but be late because of the remainder rule under Section 3, Rule 64.

10 Section 1 (first paragraph), Article VIII, 1987 Constitution.

11 Ututalum v. Commission on Elections, G.R. No. L-25349, December 3, 1965, 15 SCRA 465.

12 See: Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989, 171 SCRA 348; Midland Insurance Corporation v. IAC, No. L-71905, August 13, 1986, 143 SCRA 458.

13 See: Cariño v. Commission on Human Rights, G.R. No. 96681, December 2, 1991, 204 SCRA 483, on the activities encompassed by the exercise of quasi-judicial power.

14 See: Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45, citing Sandoval v. COMELEC, 323 SCRA 403 [2000].

15 The Senate and House of Representatives Electoral Tribunals, as provided in the Constitution are still the "sole judge" of their respective election contests, but like the COMELEC, they are quasi-judicial bodies and do not exercise judicial power under the Constitution. For its part, the Presidential Electoral Tribunal, wholly composed of the Justices of the Supreme Court, is not a quasi-judicial body because adjudicative power is given to the Supreme Court, as a court sitting en banc.

16 69 Phil. 635 (1940).

17 Bautista v. Comelec, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299.

18 Supra note 17.

19 CONSTITUTION, Article VIII, Section 14; See Solid Homes, Inc. v. Laserna, G.R. No. 166051, April 8, 2008, 550 SCRA 613.

20 Rollo, p. 12.

21 Id., p. 13.

22 COMELEC Comment; rollo, pp. 72-S and 72-T.

23 See Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152.

24 See: Ramos v. Central Bank of the Philippines, No. L-29352, October 4, 1971, 41 SCRA 565; Bengzon v. Inciong, Nos. L-48706-07, June 29, 1079, 91 SCRA 248; Baltazar v. CA, 104 SCRA 619 [1981]; Ramos v. Our Lady of Peace School, No. L-55950, December 26, 1984, 133 SCRA 741; Lee v. Presiding Judge, MTC – Legazpi City, No. L-68789, November 10, 1986, 145 SCRA 408.

25 Rollo, pp. 29-34.

26 Supra note 3.

27 Petition, pp. 13–14; rollo, pp. 18-19; COMELEC Reply; rollo, pp. 72-R – 72-S.

28 CONSTITUTION, Article IX-A, Section 6.

29 CONSTITUTION, Article IX-C, Section 3.


Manila

EN BANC

G.R. No. 191618 November 23, 2010

ATTY. ROMULO B. MACALINTAL, Petitioner,vs.PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

D E C I S I O N

NACHURA, J.:

Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized progeny of Section 4,2 Article VII of the Constitution:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for the purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by a budget allocation, a seal, a set of personnel and confidential employees, to effect the

constitutional mandate. Petitioner’s averment is supposedly supported by the provisions of the 2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules),3 specifically:

(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the Associate Justices are designated as "Chairman and Members," respectively;

(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and confidential employees of every member thereof;

(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with the appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET, may designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and

(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court seal.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision does allow the "appointment of additional personnel."

Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared that "contests involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner reiterates that the constitution of the PET, with the designation of the Members of the Court as Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution, which prohibits the designation of Members of the Supreme Court and of other courts established by law to any agency performing quasi-judicial or administrative functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a Comment5 thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is unspecified and without statutory basis; "the liberal approach in its preparation x x x is a violation of the well known rules of practice and pleading in this jurisdiction."

In all, the OSG crystallizes the following issues for resolution of the Court:

I

WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF ARTICLE VII OF THE 1987 CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.6

In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental importance of the issues raised therein;

2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4, Article VII of the Constitution; and

3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section 12, Article VIII of the Constitution.

We winnow the meanderings of petitioner into the singular issue of whether the constitution of the PET, composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII and Section 12, Article VIII of the Constitution.

But first, we dispose of the procedural issue of whether petitioner has standing to file the present petition.

The issue of locus standi is derived from the following requisites of a judicial inquiry:

1. There must be an actual case or controversy;

2. The question of constitutionality must be raised by the proper party;

3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination of the case itself.8

On more than one occasion we have characterized a proper party as one who has sustained or is in immediate danger of sustaining an injury as a result of the act complained of.9 The dust has long settled on the test laid down in Baker v. Carr:10 "whether the party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult questions."11 Until and unless such actual or threatened injury is established, the complainant is not clothed with legal personality to raise the constitutional question.

Our pronouncements in David v. Macapagal-Arroyo12 illuminate:

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an allegedly illegal official action, does so as a representative of the

general public. He may be a person who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a" citizen" or "taxpayer."

x x x x

However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United States Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.

x x x x

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized interest in the outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the petition reads:

2. x x x Since the creation and continued operation of the PET involves the use of public funds and the issue raised herein is of transcendental importance, it is petitioner’s humble submission that, as a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this petition.

But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant in the petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-Arroyo) in the election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the Presidential Electoral Tribunal,13 because judicial inquiry, as mentioned above, requires that the constitutional question be raised at the earliest possible opportunity.14 Such appearance as counsel before the Tribunal, to our mind, would have been the first opportunity to challenge the constitutionality of the Tribunal’s constitution.

Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had ubiquitously appeared and had acknowledged its jurisdiction in 2004. His failure to raise a seasonable constitutional challenge at that time, coupled with his unconditional acceptance of the Tribunal’s authority over the case he was defending, translates to the clear absence of an indispensable requisite for the proper invocation of this Court’s power of judicial review. Even on this score alone, the petition ought to be dismissed outright.

Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had occasion to affirm the grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the auspicious case of Tecson v. Commission on Elections.15 Thus -

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not (being) justiciable" controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution.

Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution which provides:

"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice President and may promulgate its rules for the purpose."

The word "contest" in the provision means that the jurisdiction of this Court can only be invoked after the election and proclamation of a President or Vice President. There can be no "contest" before a winner is proclaimed.16

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last paragraph of Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion that these petitions should be dismissed outright for prematurity. The Court has no jurisdiction at this point of time to entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal (SET) and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each specifically and exclusively clothed with jurisdiction by the Constitution to act respectively as "sole judge of all contests relating to the election, returns, and qualifications" of the President and Vice-President, Senators, and Representatives. In a litany of cases, this Court has long recognized that these electoral tribunals exercise jurisdiction over election contests only after a candidate has already been proclaimed winner in an election. Rules 14 and 15 of the Rules of the

Presidential Electoral Tribunal provide that, for President or Vice-President, election protest or quo warranto may be filed after the proclamation of the winner.17

Petitioner, a prominent election lawyer who has filed several cases before this Court involving constitutional and election law issues, including, among others, the constitutionality of certain provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),18 cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching framework affirmed in Tecson v. Commission on Elections19 is that the Supreme Court has original jurisdiction to decide presidential and vice-presidential election protests while concurrently acting as an independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does not authorize the constitution of the PET. And although he concedes that the Supreme Court may promulgate its rules for this purpose, petitioner is insistent that the constitution of the PET is unconstitutional. However, petitioner avers that it allows the Court to appoint additional personnel for the purpose, notwithstanding the silence of the constitutional provision.

Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to promulgate. Apparently, petitioner’s concept of this adjunct of judicial power is very restrictive. Fortunately, thanks in no part to petitioner’s opinion, we are guided by well-settled principles of constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure Administration20 instructs:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should ever be present in the people’s consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be examined in light of the history of the times, and the condition and circumstances surrounding the framing of the Constitution.21 In following this guideline, courts should bear in mind the object sought to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be prevented or remedied.22 Consequently, the intent of the framers and the people ratifying the constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned thus in the landmark case of Civil Liberties Union v. Executive Secretary:23

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.

We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.

On its face, the contentious constitutional provision does not specify the establishment of the PET. But neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations which, though unacceptable to petitioner, do not include his restrictive view – one which really does not offer a solution.

Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other related provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the Senate and the House of Representatives.

Before we resort to the records of the Constitutional Commission, we discuss the framework of judicial power mapped out in the Constitution. Contrary to petitioner’s assertion, the Supreme Court’s constitutional mandate to act as sole judge of election contests involving our country’s highest public officials, and its rule-making authority in connection therewith, is not restricted; it includes all necessary powers implicit in the exercise thereof.

We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25

The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the words of Justice Laurel in Angara v. Electoral Commission, "the Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." Thus, the 1987 Constitution explicitly provides that "[t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1]. These provisions not only establish a separation of powers by actual division but also confer plenary legislative,

executive and judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government."

The Court could not have been more explicit then on the plenary grant and exercise of judicial power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution is sound and tenable.

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive branch of government, and the constitution of the PET, is evident in the discussions of the Constitutional Commission. On the exercise of this Court’s judicial power as sole judge of presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we find the proceedings in the Constitutional Commission most instructive:

MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc. This is also to confer on the Supreme Court exclusive authority to enact the necessary rules while acting as sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with respect to its internal procedure is already implicit under the Article on the Judiciary; considering, however, that according to the Commissioner, the purpose of this is to indicate the sole power of the Supreme Court without intervention by the legislature in the promulgation of its rules on this particular point, I think I will personally recommend its acceptance to the Committee.26

x x x x

MR. NOLLEDO. x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership from both Houses. But my question is: It seems to me that the committee report does not indicate which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission on Appointments. Who shall then promulgate the rules of these bodies?

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body distinct and independent already from the House, and so with the Commission on Appointments also. It will have the authority to promulgate its own rules.27

On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to former Chief Justice Roberto Concepcion:

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between two parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to declare who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these are essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time of the Supreme Court sitting en banc would be occupied with it considering that they will be going over millions and millions of ballots or election returns, Madam President.28

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:

MR. VILLACORTA. Thank you very much, Madam President.

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth paragraph of Section 4 provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the contests relating to the election returns and qualifications of the President or Vice-President is purely a political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted provision not impinge on the doctrine of separation of powers between the executive and the judicial departments of the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to the judiciary because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic Act 7950 which provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore, they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that cannot be given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that in that election, Lopez was declared winner. He filed a protest before the Supreme Court because there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal. The question in this case was whether new powers could be given the Supreme Court by law. In effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but precisely we are giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution. Congress may allocate various jurisdictions."

Before the passage of that republic act, in case there was any contest between two presidential candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory but it is not an infringement on the separation of powers because the power being given to the Supreme Court is a judicial power.31

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and then emphasized that the sole power ought to be without intervention by the legislative department. Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-presidential election contests and our rule-making power connected thereto.

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply constitutionalized what was statutory before the 1987 Constitution. The experiential context of the PET in our country cannot be denied.32

Consequently, we find it imperative to trace the historical antecedents of the PET.

Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the present Constitution did not contain similar provisions and instead vested upon the legislature all phases of presidential and vice-presidential elections – from the canvassing of election returns, to the proclamation of the president-elect and the vice-president elect, and even the determination, by ordinary legislation, of whether such proclamations may be contested. Unless the legislature enacted a law creating an institution that would hear election contests in the Presidential and Vice-Presidential race, a defeated candidate had no legal right to demand a recount of the votes cast for the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively, presidential and vice-presidential contests were non-justiciable in the then prevailing milieu.

The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a similar provision in its pattern, the Federal Constitution of the United States. Rather, the creation of such tribunal was left to the determination of the National Assembly. The journal of the 1935 Constitutional Convention is crystal clear on this point:

Delegate Saguin. – For an information. It seems that this Constitution does not contain any provision with respect to the entity or body which will look into the protests for the positions of the President and Vice-President.

President Recto. – Neither does the American constitution contain a provision over the subject.

Delegate Saguin. – But then, who will decide these protests?

President Recto. – I suppose that the National Assembly will decide on that.33

To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing an independent PET to try, hear, and decide protests contesting the election of President and Vice-President. The Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as its Chairman and Members, respectively. Its composition was extended to retired Supreme Court Justices and incumbent Court of Appeals Justices who may be appointed as substitutes for ill, absent, or temporarily incapacitated regular members.

The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings. It was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized to exercise powers similar to those conferred upon courts of justice, including the issuance of subpoena, taking of depositions, arrest of witnesses to compel their appearance, production of documents and other evidence, and the power to punish contemptuous acts and bearings. The tribunal was assigned a Clerk, subordinate officers, and employees necessary for the efficient performance of its functions.

R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary government.

With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not directly chosen by the people but elected from among the members of the National Assembly, while the position of Vice-President was constitutionally non-existent.

In 1981, several modifications were introduced to the parliamentary system. Executive power was restored to the President who was elected directly by the people. An Executive Committee was formed to assist the President in the performance of his functions and duties. Eventually, the Executive Committee was abolished and the Office of Vice-President was installed anew.

These changes prompted the National Assembly to revive the PET by enacting, on December 3, 1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the Office of the

President and Vice-President of the Philippines, Appropriating Funds Therefor and For Other Purposes." This tribunal was composed of nine members, three of whom were the Chief Justice of the Supreme Court and two Associate Justices designated by him, while the six were divided equally between representatives of the majority and minority parties in the Batasang Pambansa.

Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to recommend the prosecution of persons, whether public officers or private individuals, who in its opinion had participated in any irregularity connected with the canvassing and/or accomplishing of election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget from the national treasury or Special Activities Fund for its operational expenses. It was empowered to appoint its own clerk in accordance with its rules. However, the subordinate officers were strictly employees of the judiciary or other officers of the government who were merely designated to the tribunal.

After the historic People Power Revolution that ended the martial law era and installed Corazon Aquino as President, civil liberties were restored and a new constitution was formed.

With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then statutory PET into a constitutional institution, albeit without its traditional nomenclature:

FR. BERNAS. x x x.

x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory but it is not an infringement on the separation of powers because the power being given to the Supreme Court is a judicial power.34

Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman" and "Members," respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to appoint personnel; and (4) additional compensation is allocated to the "Members," in order to bolster his claim of infirmity in the establishment of the PET, are too superficial to merit further attention by the Court.

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4, Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The following exchange in the 1986 Constitutional Commission should provide enlightenment:

MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:

The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.

Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc as the sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme Court was able to dispose of each case in a period of one year as provided by law. Of course, that was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court would react to such circumstances, but there is also the question of who else would hear the election protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules provided for the hearings and there is not time limit or duration for the election contest to be decided by the Supreme Court. Also, we will have to consider the historical background that when R.A. 1793, which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least three famous election contests were presented and two of them ended up in withdrawal by the protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen" former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to have a decision adverse to him. The votes were being counted already, and he did not get what he expected so rather than have a decision adverse to his protest, he withdrew the case.

x x x x

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme Court this matter of resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.






MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically all the time of the Supreme Court sitting en banc would be occupied with it considering that they will be going over millions and millions of ballots or election returns, Madam President.

MR. CONCEPCION. The time consumed or to be consumed in this contest for President is dependent upon they key number of teams of revisors. I have no experience insofar as contests in other offices are concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before teams of three, generally, a representative each of the court, of the protestant and of the "protestee." It is all a questions of how many teams are organized. Of course, that can be expensive, but it would be expensive whatever court one would choose. There were times that the Supreme Court, with sometimes 50 teams at the same time working, would classify the objections, the kind of problems, and the court would only go over the objected votes on which the parties could not agree. So it is not as awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of the revision of the ballots because each party would have to appoint one representative for every team, and that may take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner’s experience which he is sharing with us, what would be the reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always manages to dispose of the case in one year.

MR. SUAREZ. In one year. Thank you for the clarification.35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET, to undertake the Herculean task of deciding election protests involving presidential and vice-presidential candidates in accordance with the process outlined by former Chief Justice Roberto Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the additional duty may prove too burdensome for the Supreme Court. This explicit grant of independence and of the plenary powers needed to discharge this burden justifies the budget allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an "awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary implication.36 We cannot overemphasize that the abstraction of the PET from the explicit grant of power to the Supreme Court, given our abundant experience, is not unwarranted.

A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court exercises this authority is not specified in the provision, the grant of power does not contain any limitation on the Supreme Court’s exercise thereof. The Supreme Court’s method of deciding presidential and vice-presidential election contests, through the PET, is actually a derivative of the exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose."

The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal (HRET),37 which we have affirmed on numerous occasions.38

Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of the SET and the HRET. The discussions point to the inevitable conclusion that the different electoral tribunals, with the Supreme Court functioning as the PET, are constitutional bodies, independent of the three departments of government – Executive, Legislative, and Judiciary – but not separate therefrom.

MR. MAAMBONG. x x x.

My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal, either of the House or of the Senate, is it correct to say that these tribunals are constitutional creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which are created by mandate of the Constitution but they are not constitutional creations. Is that a good distinction?

x x x x

MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the House Electoral Tribunal is a constitutional body?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the electoral tribunals are not separate departments of the government. Would that ruling still be valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments are the legislative, the executive and the judiciary; but they are constitutional bodies.39

The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by our holding in Lopez v. Roxas, et al.:42

Section 1 of Republic Act No. 1793, which provides that:

"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole judge of all contests relating to the election, returns, and qualifications of the president-elect and the vice-president-elect of the Philippines."

has the effect of giving said defeated candidate the legal right to contest judicially the election of the President-elect of Vice-President-elect and to demand a recount of the votes case for the office involved in the litigation, as well as to secure a judgment declaring that he is the one elected president or vice-president, as the case may be, and that, as such, he is entitled to assume the duties attached to said office. And by providing, further, that the Presidential Electoral Tribunal "shall be composed of the Chief Justice and the other ten Members of the Supreme Court," said legislation has conferred upon such Court an additional original jurisdiction of an exclusive character.

Republic Act No. 1793 has not created a new or separate court. It has merely conferred upon the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the enactment may be likened to the fact that courts of first instance perform the functions of such ordinary courts of first instance, those of court of land registration, those of probate courts, and those of courts of juvenile and domestic relations. It is, also, comparable to the situation obtaining when the municipal court of a provincial capital exercises its authority, pursuant to law, over a limited number of cases which were previously within the exclusive jurisdiction of courts of first instance.

In all of these instances, the court (court of first instance or municipal court) is only one, although the functions may be distinct and, even, separate. Thus the powers of a court of first instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as well as distinct and separate from, those of the same court acting as a court of land registration or a probate court, or as a court of juvenile and domestic relations. So too, the authority of the municipal court of a provincial capital, when acting as such municipal court, is, territorially more limited than that of the same court when hearing the aforementioned cases which are primary within the jurisdiction of courts of first instance. In other words, there is only one court, although it may perform the functions pertaining to several types of courts, each having some characteristics different from those of the others.

Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are both trial courts and, appellate courts, without detracting from the fact that there is only one Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority to discharge said dual functions. A court of first instance, when performing the functions of a probate court or a court of land registration, or a court of juvenile and domestic relations, although with powers less broad than those of a court of first instance, hearing ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential Electoral Tribunal is not

inferior to the Supreme Court, since it is the same Court although the functions peculiar to said Tribunal are more limited in scope than those of the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of Republic Act No. 1793, does not entail an assumption by Congress of the power of appointment vested by the Constitution in the President. It merely connotes the imposition of additional duties upon the Members of the Supreme Court.

By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in implementation of Section 4, Article VII of the Constitution, and it faithfully complies – not unlawfully defies – the constitutional directive. The adoption of a separate seal, as well as the change in the nomenclature of the Chief Justice and the Associate Justices into Chairman and Members of the Tribunal, respectively, was designed simply to highlight the singularity and exclusivity of the Tribunal’s functions as a special electoral court.

As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention of Section 12, Article VIII of the Constitution, we point out that the issue in Buac v. COMELEC43 involved the characterization of the enforcement and administration of a law relative to the conduct of a plebiscite which falls under the jurisdiction of the Commission on Elections. However, petitioner latches on to the enumeration in Buac which declared, in an obiter, that "contests involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, also in the exercise of quasi-judicial power."

The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides that the power "shall be vested in one Supreme Court and in such lower courts as may be established by law." Consistent with our presidential system of government, the function of "dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable" 44 is apportioned to courts of justice. With the advent of the 1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."45 The power was expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral contests as essentially an exercise of judicial power.1avvphi1

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels – city, provincial, and regional, as well as congressional and senatorial – exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in essence, an exercise of judicial power, because of the explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET decide election contests, their decisions are still subject to judicial review – via a petition for certiorari filed by the proper party – if there is a showing that the decision was rendered with grave abuse of discretion tantamount to lack or excess of jurisdiction.46

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential election contest, it performs what is essentially a judicial power. In the landmark case of Angara v. Electoral Commission,47 Justice Jose P. Laurel enucleated that "it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in conjunction with latter’s exercise of judicial power inherent in all courts,48 the task of deciding presidential and vice-presidential election contests, with full authority in the exercise thereof. The power wielded by PET is a derivative of the plenary judicial power allocated to courts of law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but, nevertheless, distinct line between the PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII. Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same prohibition.

We have previously declared that the PET is not simply an agency to which Members of the Court were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an institution independent, but not separate, from the judicial department, i.e., the Supreme Court. McCulloch v. State of Maryland49 proclaimed that "[a] power without the means to use it, is a nullity." The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned by the Constitutional Commissioners during the discussions on the grant of power to this Court, is the PET. Thus, a microscopic view, like the petitioner’s, should not constrict an absolute and constitutional grant of judicial power.

One final note. Although this Court has no control over contrary people and naysayers, we reiterate a word of caution against the filing of baseless petitions which only clog the Court’s docket. The petition in the instant case belongs to that classification.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.


WE CONCUR:




PRESBITERO J. VELASCO, JR.Associate Justice


Associate Justice




(On Official Leave)MARIANO C. DEL CASTILLO*

Associate Justice


MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL PEREZAssociate Justice


Associate Justice Associate Justice



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.


Footnotes

* On official leave.

1 Rollo, pp. 3-9.

2 Paragraph 7.

3 On May 4, 2010, the 2010 Rules of the Presidential Electoral Tribunal (2010 PET Rules) took effect.

4 465 Phil. 800, 810 (2004).

5 Rollo, pp. 12-38.

6 Id. at 15-16.

7 Id. at 42-58.

8 Cruz, Philippine Political Law, 1998 ed., p. 257.

9 Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951, and 183962, October 14, 2008, 568 SCRA 402, 456.

10 369 U.S. 186 (1962).

11 Gov. Mandanas v. Hon. Romulo, 473 Phil. 806 (2004).

12 G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, and 171424, May 3, 2006, 489 SCRA 160, 216-221. (Citations omitted.)

13 Poe v. Macapagal-Arroyo, P.E.T. Case No. 002, March 29, 2005, 454 SCRA 142.

14 Cruz, Philippine Politcal Law, 1998 ed., p. 263.

15 G.R. Nos. 161434, 161634, and 161824, March 3, 2004, 424 SCRA 277, 324-325. (Emphasis supplied.)

16 Id. at 363.

17 Id. at 431-432.

18 Atty. Macalintal v. COMELEC, 453 Phil. 586 (2003).

19 Supra at note 15.

20 No. L-21064, February 18, 1970, 31 SCRA 413, 423.

21 McCulloch v. State of Maryland, 17 U.S. 316 (Wheat.), 1819.

22 In the Philippine context, see Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.

23 Id. at 330-331.

24 82 Phil. 771, 775 (1949).

25 G.R. No. 88211, September 15, 1989, 177 SCRA 668, 688-689. (Emphasis supplied, citations omitted.)

26 Records of the Constitutional Commission, Vol. 2, p. 433. (Emphasis supplied.)

27 Id. at 87-88. (Emphasis supplied.)


29 Supreme Court.

30 A Roman Catholic Priest of the Jesuit Order.

31 Records of the Constitutional Commission, Vol. 2, pp. 407-408. (Emphasis supplied.)

32 See Defensor-Santiago v. Ramos, P.E.T. Case No. 001, February 13, 1996, 253 SCRA 559; Tecson v. COMELEC, supra at note 15.

33 Constitutional Convention Record, Vol. X, pp. 471-472.

34 Records of the Constitutional Commission, Vol. 2, p. 408.


36 McCulloch v. State of Maryland, supra note 21.

37 CONSTITUTION, Art. VI, Sec. 17.

38 Sen. Defensor-Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 294 (1998), citing Lazatin v. House Electoral Tribunal, 250 Phil. 390 (1988); Robles v. House of Representatives Electoral Tribunal, G.R. No. 86647, February 5, 1990, 181 SCRA 780.

39 Records of the Constitutional Commission, Vol. 2, pp. 111-112. (Emphasis supplied.)

40 Supreme Court.

41 Court of Appeals.

42 No. L-25716, July 28, 1966, 17 SCRA 756, 762-765. (Emphasis supplied.)

43 Supra note 4.

44 Javellana v. Executive Secretary, et al., 151-A Phil. 36, 131 (1973).

45 CONSTITUTION, Art. VIII, Sec. 1, second paragraph.

46 See Robles v. House of Representatives Electoral Tribunal, supra note 38; Lazatin v. House Electoral Tribunal, supra note 38.

47 63 Phil. 139 (1936).

48 See Ynot v. Intermediate Appellate Court, G.R. No. L-74457, March 20, 1987, 148 SCRA 659, 665; Tañada and Macapagal v. Cuenco, et al., 103 Phil. 1051 (1957); Alejandrino v. Quezon, 46 Phil. 83 (1924).

49 Supra note 21.


Manila

EN BANC

G.R. No. 191618 June 7, 2011

ATTY. ROMULO B. MACALINTAL, Petitioner,vs.PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

R E S O L U T I O N

NACHURA, J.:

Before us is a Motion for Reconsideration filed by petitioner Atty. Romulo B. Macalintal of our Decision1 in G.R. No. 191618 dated November 23, 2010, dismissing his petition and declaring the establishment of respondent Presidential Electoral Tribunal (PET) as constitutional.

Petitioner reiterates his arguments on the alleged unconstitutional creation of the PET:

1. He has standing to file the petition as a taxpayer and a concerned citizen.

2. He is not estopped from assailing the constitution of the PET simply by virtue of his appearance as counsel of former president Gloria Macapagal-Arroyo before respondent tribunal.

3. Section 4, Article VII of the Constitution does not provide for the creation of the PET.

4. The PET violates Section 12, Article VIII of the Constitution.

To bolster his arguments that the PET is an illegal and unauthorized progeny of Section 4, Article VII of the Constitution, petitioner invokes our ruling on the constitutionality of the Philippine Truth Commission (PTC).2 Petitioner cites the concurring opinion of Justice Teresita J. Leonardo-de Castro that the PTC is a public office which cannot be created by the President, the power to do so being lodged exclusively with Congress. Thus, petitioner submits that if the President, as head of the Executive Department, cannot create the PTC, the Supreme Court, likewise, cannot create the PET in the absence of an act of legislature.

On the other hand, in its Comment to the Motion for Reconsideration, the Office of the Solicitor General maintains that:

1. Petitioner is without standing to file the petition.

2. Petitioner is estopped from assailing the jurisdiction of the PET.

3. The constitution of the PET is "on firm footing on the basis of the grant of authority to the [Supreme] Court to be the sole judge of all election contests for the President or Vice-President under paragraph 7, Section 4, Article VII of the 1987 Constitution."

Except for the invocation of our decision in Louis ‟Barok" C. Biraogo v. The Philippine Truth Commission of 2010,3 petitioner does not allege new arguments to warrant reconsideration of our Decision.

We cannot agree with his insistence that the creation of the PET is unconstitutional. We reiterate that the abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of the Constitution is sound and tenable. The provision reads:

Sec. 4. x x x.

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

We mapped out the discussions of the Constitutional Commission on the foregoing provision and concluded therefrom that:

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive branch of government, and the constitution of the PET, is evident in the discussions of the Constitutional Commission. On the exercise of this Court’s judicial power as sole judge of presidential and vice-presidential election contests, and to promulgate its rules for this purpose, we find the proceedings in the Constitutional Commission most instructive:

MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en banc. This is also to confer on the Supreme Court exclusive authority to enact the necessary rules while acting as sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court with respect to its internal procedure is already implicit under the Article on the Judiciary; considering, however, that according to the Commissioner, the purpose of this is to indicate the sole power of the Supreme Court without intervention by the legislature in the promulgation of its rules on this particular point, I think I will personally recommend its acceptance to the Committee.

x x x x

MR. NOLLEDO x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also created an Electoral Tribunal in the Senate and a Commission on Appointments which may cover membership from both Houses. But my question is: It seems to me that the committee report does not indicate which body should promulgate the rules that shall govern the Electoral Tribunal and the Commission on Appointments. Who shall then promulgate the rules of these bodies?

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it is a body distinct and independent already from the House, and so with the Commission on Appointments also. It will have the authority to promulgate its own rules.

On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to former Chief Justice Roberto Concepcion:







Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice Florenz D. Regalado and Fr. Joaquin Bernas both opined:

MR. VILLACORTA. Thank you very much, Madam President.

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth paragraph of Section 4 provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the contests relating to the election returns and qualifications of the President or Vice-President is purely a political matter and, therefore, should not be left entirely to the judiciary. Will the above-quoted provision not impinge on the doctrine of separation of powers between the executive and the judicial departments of the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers guaranteed to the judiciary because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes Republic Act 7950 which provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial. Therefore, they are cognizable only by courts. If, for instance, we did not have a constitutional provision on an electoral tribunal for the Senate or an electoral tribunal for the House, normally, as composed, that cannot be given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will remember that in that election, Lopez was declared winner. He filed a protest before the Supreme Court because there was a republic act which created the Supreme Court as the Presidential Electoral Tribunal. The question in this case was whether new powers could be given the Supreme Court by law. In effect, the conflict was actually whether there was an attempt to create two Supreme Courts and the answer of the Supreme Court was: "No, this did not involve the creation of two Supreme Courts, but precisely we are giving new jurisdiction to the Supreme Court, as it is allowed by the Constitution. Congress may allocate various jurisdictions."

Before the passage of that republic act, in case there was any contest between two presidential candidates or two vice-presidential candidates, no one had jurisdiction over it. So, it became necessary to create a Presidential Electoral Tribunal. What we have done is to constitutionalize what was statutory but it is not an infringement on the separation of powers because the power being given to the Supreme Court is a judicial power.

Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed the insertion of the phrase, intended the Supreme Court to exercise exclusive authority to promulgate its rules of procedure for that purpose. To this, Justice Regalado forthwith assented and then emphasized that the sole power ought to be without intervention by the legislative department. Evidently, even the legislature cannot limit the judicial power to resolve presidential and vice-presidential election contests and our rule-making power connected thereto.

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply constitutionalized what was statutory before the 1987 Constitution. The experiential context of the PET in our country cannot be denied.4

Stubbornly, despite the explicit reference of the Members of the Constitutional Commission to a Presidential Electoral Tribunal, with Fr. Joaquin Bernas categorically declaring that in crafting the last paragraph of Section 4, Article VII of the Constitution, they "constitutionalize[d] what was statutory," petitioner continues to insist that the last paragraph of Section 4, Article VII of the Constitution does not provide for the creation of the PET. Petitioner is adamant that "the fact that [the provision] does not expressly prohibit [the] creation [of the PET] is not an authority for the Supreme Court to create the same."

Petitioner is going to town under the misplaced assumption that the text of the provision itself was the only basis for this Court to sustain the PET’s constitutionality.

We reiterate that the PET is authorized by the last paragraph of Section 4, Article VII of the Constitution and as supported by the discussions of the Members of the Constitutional Commission, which drafted the present Constitution.

The explicit reference by the framers of our Constitution to constitutionalizing what was merely statutory before is not diluted by the absence of a phrase, line or word, mandating the Supreme Court to create a Presidential Electoral Tribunal.

Suffice it to state that the Constitution, verbose as it already is, cannot contain the specific wording required by petitioner in order for him to accept the constitutionality of the PET.

In our Decision, we clarified the structure of the PET:

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4, Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc. The following exchange in the 1986 Constitutional Commission should provide enlightenment:

MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I quote:

The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the election, returns and qualifications of the President or Vice-President.1avvphi1

Are we not giving enormous work to the Supreme Court especially when it is directed to sit en banc as the sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the Supreme Court was able to dispose of each case in a period of one year as provided by law. Of course, that was probably during the late 1960s and early 1970s. I do not know how the present Supreme Court would react to such circumstances, but there is also the question of who else would hear the election protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no rules provided for the hearings and there is not time limit or duration for the election contest to be decided by the Supreme Court. Also, we will have to consider the historical background that when R.A. 1793, which organized the Presidential Electoral Tribunal, was promulgated on June 21, 1957, at least three famous election contests were presented and two of them ended up in withdrawal by the protestants out of sheer frustration because of the delay in the resolution of the cases. I am referring to the electoral protest that was lodged by former President Carlos P. Garcia against our "kabalen" former President Diosdado Macapagal in 1961 and the vice-presidential election contest filed by the late Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that protest of Senator Roxas was withdrawn, the results were already available. Senator Roxas did not want to have a decision adverse to him. The votes were being counted already, and he did not get what he expected so rather than have a decision adverse to his protest, he withdrew the case.

x x x x

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the Supreme Court this matter of resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.







MR. CONCEPCION. The time consumed or to be consumed in this contest for President is dependent upon they key number of teams of revisors. I have no experience insofar as contests in other offices are concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to sit en banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are opened before teams of three, generally, a representative each of the court, of the protestant and of the "protestee." It is all a questions of how many teams are organized. Of course, that can be expensive, but it would be expensive whatever court one would choose. There were times that the Supreme Court, with sometimes 50 teams at the same time

working, would classify the objections, the kind of problems, and the court would only go over the objected votes on which the parties could not agree. So it is not as awesome as it would appear insofar as the Court is concerned. What is awesome is the cost of the revision of the ballots because each party would have to appoint one representative for every team, and that may take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner's experience which he is sharing with us, what would be the reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always manages to dispose of the case in one year.

MR. SUAREZ. In one year. Thank you for the clarification.5

Judicial power granted to the Supreme Court by the same Constitution is plenary. And under the doctrine of necessary implication, the additional jurisdiction bestowed by the last paragraph of Section 4, Article VII of the Constitution to decide presidential and vice-presidential elections contests includes the means necessary to carry it into effect. Thus:

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET, to undertake the Herculean task of deciding election protests involving presidential and vice-presidential candidates in accordance with the process outlined by former Chief Justice Roberto Concepcion. It was made in response to the concern aired by delegate Jose E. Suarez that the additional duty may prove too burdensome for the Supreme Court. This explicit grant of independence and of the plenary powers needed to discharge this burden justifies the budget allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an "awesome" task, includes the means necessary to carry it into effect under the doctrine of necessary implication. We cannot overemphasize that the abstraction of the PET from the explicit grant of power to the Supreme Court, given our abundant experience, is not unwarranted.

A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the Supreme Court sitting en banc. In the same vein, although the method by which the Supreme Court exercises this authority is not specified in the provision, the grant of power does not contain any limitation on the Supreme Court's exercise thereof. The Supreme Court's method of deciding presidential and vice-presidential election contests, through the PET, is actually a derivative of the exercise of the prerogative conferred by the aforequoted constitutional provision. Thus, the subsequent directive in the provision for the Supreme Court to "promulgate its rules for the purpose."

The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of Representatives Electoral Tribunal (HRET), which we have affirmed on numerous occasions.6

Next, petitioner still claims that the PET exercises quasi-judicial power and, thus, its members violate the proscription in Section 12, Article VIII of the Constitution, which reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

We dispose of this argument as we have done in our Decision, viz.:

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides that the power "shall be vested in one Supreme Court and in such lower courts as may be established by law." Consistent with our presidential system of government, the function of "dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally demandable and enforceable" is apportioned to courts of justice. With the advent of the 1987 Constitution, judicial power was expanded to include "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The power was expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral contests as essentially an exercise of judicial power.

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is vested in the municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels - city, provincial, and regional, as well as congressional and senatorial - exclusive and original jurisdiction is lodged in the COMELEC and in the House of Representatives and Senate Electoral Tribunals, which are not, strictly and literally speaking, courts of law. Although not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in essence, an exercise of judicial power, because of the explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the SET decide election contests, their decisions are still subject to judicial review - via a petition for certiorari filed by the proper party - if there is a showing that the decision was rendered with grave abuse of discretion tantamount to lack or excess of jurisdiction.

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential election contest, it performs what is essentially a judicial power. In the landmark case of Angara v. Electoral Commission, Justice Jose P. Laurel enucleated that "it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels." In fact, Angara pointed out that "[t]he Constitution is a definition of the powers of government." And yet, at that time, the 1935 Constitution did not contain the expanded definition of judicial power found in Article VIII, Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in conjunction with latter's exercise of judicial power inherent in all courts, the task of deciding presidential and vice-presidential election contests, with full authority in the exercise thereof. The power wielded by PET is a derivative of the plenary judicial power allocated to courts of law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but, nevertheless, distinct line between the PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII. Surely, the petitioner will be among the first to acknowledge that this is not so. The Constitution which, in Section 17, Article VI, explicitly provides that three Supreme Court Justices shall sit in the Senate and House Electoral Tribunals, respectively, effectively exempts the Justices-Members thereof from the prohibition in Section 12, Article VIII. In the same vein, it is the Constitution itself, in Section 4, Article VII, which exempts the Members of the Court, constituting the PET, from the same prohibition.

We have previously declared that the PET is not simply an agency to which Members of the Court were designated. Once again, the PET, as intended by the framers of the Constitution, is to be an institution independent, but not separate, from the judicial department, i.e., the Supreme Court. McCulloch v. State of Maryland proclaimed that "[a] power without the means to use it, is a nullity." The vehicle for the exercise of this power, as intended by the Constitution and specifically mentioned by the Constitutional Commissioners during the discussions on the grant of power to this Court, is the PET. Thus, a microscopic view, like the petitioner's, should not constrict an absolute and constitutional grant of judicial power.7

Finally, petitioner’s application of our decision in Biraogo v. Philippine Truth Commission8 to the present case is an unmitigated quantum leap.

The decision therein held that the PTC "finds justification under Section 17, Article VII of the Constitution." A plain reading of the constitutional provisions, i.e., last paragraph of Section 4 and Section 17, both of Article VII on the Executive Branch, reveals that the two are differently worded and deal with separate powers of the Executive and the Judicial Branches of government. And as previously adverted to, the basis for the constitution of the PET was, in fact, mentioned in the deliberations of the Members of the Constitutional Commission during the drafting of the present Constitution.

WHEREFORE, the Motion for Reconsideration is DENIED. Our Decision in G.R. No. 191618 STANDS.

SO ORDERED.


WE CONCUR:




PRESBITERO J. VELASCO, JR.Associate Justice


Associate Justice




MARIANO C. DEL CASTILLOAssociate Justice


MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL PEREZAssociate Justice




Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.


Footnotes

1 Rollo, pp. 71-102.

2 Entitled "Biraogo v. Philippine Truth Commission" and "Lagman v. Executive Secretary," docketed as G.R. Nos. 192935 and 193036, respectively, and promulgated on December 7, 2010.

3 G.R. No. 192935, December 7, 2010.

4 Atty. Romulo B. Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November 23, 2010.

5 Id.

6 Id.

7 Id.

8 Supra note 3.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 110436 June 27, 1994

ROMAN A. CRUZ, JR., petitioner, vs.PEOPLE OF THE PHILIPPINES, THE SANDIGANBAYAN (First Division), and OFFICE OF THE OMBUDSMAN, respondents.

Siguion Reyna, Montecillo & Ongsianlo for petitioner.

The Solicitor Generalfor the People of the Philippines.

REGALADO, J.:

The present original action for certiorari, prohibition and mandamus seeks the reversal of the Orders issued by respondent Sandiganbayan in Criminal Case No. 14252, dated February 17, 1993 1 and May 12, 1993, 2 denying petitioner’s Omnibus Motion and Motion for Reconsideration, respectively.

The facts are summarized in the Memorandum of public respondents as follows:

1. The Government Service Insurance System (the GSIS, for short) filed two separate criminal complaints against petitioner Roman A. Cruz, Jr., a former public official who used to be the President and General Manager of the GSIS and, also, the President of the Manila Hotel, for violation of Section 3(e) of Republic Act No. 3019, as amended. The first complaint against petitioner was filed with the Office of the Special Prosecutor (the OSP, for short) and docketed as OSP-88-02028 while the second, which involved the same set of facts, was filed with the

Presidential Commission on Good Government (the PCGG, for short) but which was later endorsed to the Office of the Ombudsman and docketed as OMB-0-91-0986. . . .

2. A preliminary investigation was conducted by the PCGG where petitioner duly submitted his counter-affidavit. As a consequence’ of said investigation, an Information was filed with the first Division of the Sandiganbayan, docketed as Criminal Case No. 14134, charging petitioner with violation of Section 3(e) of Republic Act No. 3019. . . .

3. During the proceedings before the OSP, petitioner moved to dismiss the complaint. The OSP, however, denied the motion and filed with the Third Division of the Sandiganbayan an Information charging petitioner with Estafa through Falsification of Public Documents (Articles 171 and 315 of the Revised Penal Code), docketed as Criminal Case No. 14252. Petitioner was deemed by the OSP to have waived his right to submit a counter-affidavit and supporting evidence. . . .

4. As a result of the filing of two informations with respondent Sandiganbayan involving the same accused (herein petitioner) and the same set of facts, Criminal Case No. 14252 was consolidated with Criminal Case No. 14134 which was pending before the First Division of respondent Sandiganbayan. . . .

5. Respondent Sandiganbayan, however, remanded the consolidated cases against petitioner to the Office of the Ombudsman for reinvestigation inasmuch as:

a) the Information in Criminal Case No. 14134 was ordered dismissed in compliance with the ruling of the Supreme Court in Cojuangco, Jr. vs. PCGG, et al., G.R. Nos. 92319-20, October 2, 1990, which declared null and void the preliminary investigations conducted by the PCGG in all criminal cases involving matters which were the subject matter of civil cases earlier filed; and

b) the Information in Criminal Case No. 14252 was correctly assailed by petitioner as having been filed without the proper preliminary investigation. . . .

6. During the preliminary investigation conducted anew by the Office of the Ombudsman, petitioner submitted his counter-affidavit and supporting documents. After the completion of said investigation, Prosecutor Leonardo P. Tamayo of the Office of the Ombudsman prepared a Resolution dated February 11, 1992, which recommended the withdrawal of the Information in Criminal Case No. 14252. . . .

7. Respondent Ombudsman, however, despite the above recommendation of the investigating prosecutor ordered the prosecution to proceed under the existing Information in Criminal Case No. 14252 on his observation, viz:

Let us not do the defending for the accused. The explanations offered are too strained to be believed. At best they are matters of defense for the accused to prove at the trial.

The alleged character of the funds involved being confidential and requires no auditing is totally immaterial. It could even explain why this anomaly was committed. . . .

8. Petitioner thus filed with respondent Sandiganbayan (First Division) an Omnibus Motion to Quash the Information, dated September 17, 1992, wherein he prayed ". . . for the production of (the) record of the preliminary investigation), and that the information be quashed outright or the disapproval of the Ombudsman set aside, or in the alternative, that the Office of the Ombudsman be ordered to conduct further proceedings, particularly the handwriting analysis prayed for by the petitioner which would establish who committed the alleged falsification. . . .

On February 17, 1993, respondent Sandiganbayan promulgated a Resolution dated February 15, 1993, the dispositive portion of which reads:

WHEREFORE, the Omnibus Motion of accused Roman A. Cruz, Jr. is DENIED for lack of merit. . . .

10. A Motion for Reconsideration, dated April 12, 1993, of the aforequoted Resolution was filed by petitioner . . . .

11. On May 12, 1993, respondent Sandiganbayan promulgated a Resolution, the dispositive portion of which reads:

WHEREFORE, the Motion for Reconsideration of accused Roman A. Cruz, Jr. of this Court’s Resolution dated February 17, 1993 is DENIED for lack of merit. . . .

12. Hence, petitioner filed the instant petition. 3

Petitioner contends that respondent Sandiganbayan committed a grave abuse of discretion:

1. In not dismissing the information considering that the Ombudsman’s approval of the order dismissing the complaint did not state the factual or legal basis therefor;

2. In not requiring the production of the record of the preliminary investigation in wanton disregard of petitioner’s right to due process;

3. In not dismissing the information considering that, as found by the investigating prosecutor, the money received by petitioner was a cash advance; and

4. In not requiring the Office of the Ombudsman to conduct further proceedings.

We do not find the instant petition to be impressed with merit as to warrant the extraordinary writs prayed for.

The information filed against herein petitioner charging him with estafa through falsification of public documents and for which he stands to be tried before respondent court alleges:

That on or about or during the period from March 26, 1984 to May 11, 1984, or sometime prior or subsequent thereto, at the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, Roman Cruz, Jr., then President and General Manager of the Government Service Insurance System (GSIS) and likewise President of the Manila Hotel, hence a public official having been duly

appointed/elected and qualified as such, taking advantage of his position, by means of deceit, committing an offense in relation to his office, did then and there wilfully, unlawfully and feloniously falsify Manila Hotel Invoices, Transportation, Charge, Cash, Budget for Food and Drinks vouchers in the aggregate amount of P350,000.00 and then make it appear that the GSIS management and staff had a five-day coordination meeting at the Manila Hotel from March 23 to 30, 1984 at the cost of P350,000.00, for which reason the GSIS paid/issued its check with No. 039511 dated May 11, 1984 in the amount of P350,000.00 which check was deposited to the account of the Manila Hotel, and thereafter cause the Manila Hotel to issue its check with No. 007272 dated May 11, 1984 in the amount of P350,000.00 payable to Roman Cruz, Jr. or himself, when in truth and in fact, as the accused well knew that there was no such five-day GSIS management and staff coordination meeting conducted/held at the Manila Hotel; and further thereafter convert and appropriate to his own personal use and benefit/deposit the said check to his own personal account with the Far East Bank and Trust Co. the said check/amount of P350,000.00 to the damage and prejudice of the GSIS and/or Manila Hotel and/or the government in the said amount of P350,000.00. 4

I. Petitioner initially submits that respondent Sandiganbayan acted with grave abuse of discretion in not dismissing the information considering that the Ombudsman’s disapproval of the order dismissing the complaint did not state the factual or legal basis therefor, in violation of the cardinal rules set forth in Ang Tibay, et al. vs. CIR, et al. 5 The submission is premised on the theory that said rules apply to a preliminary investigation which is to be considered quasi-judicial in nature. Petitioner avers that it is the duty of the Ombudsman to assess the evidence and defenses of the respondent in deciding a case, a failure wherein constitutes a violation of one’s right to due process of law. He further claims that "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 the decision. The Ombudsman in this case not only failed to decide right but has nothing at all to support his decision." 6

Respondents, on the other hand, aver that the Office of the Ombudsman is not exercising quasi-judicial or quasi-legislative powers because "it does not act as a court" when it conducts preliminary investigation of cases falling under its jurisdiction.

It is settled that the conduct of a preliminary investigation, which is defined as "an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial," 7 is, like court proceedings, subject to the requirements of both substantive and procedural due process. This is because, a preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-judicial officer. As we held in Cojuangco, Jr. vs. PCGG, et al.: 8

. . . It must be undertaken in accordance with the procedure provided in Section 3, Rule 112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed in order to assure that a person undergoing such preliminary investigation will be afforded due process.

As correctly pointed out by petitioner, an indispensable requisite of due process is that the person who presides and decides over a proceeding, including a preliminary investigation, must possess the cold neutrality of an impartial judge.

Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard and for the production and weighing of evidence, and a decision is rendered thereon.

The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a preliminary investigation is no less than that of a municipal judge or even a regional trial court judge. While the investigating officer, strictly speaking is not a "judge," by the nature of his functions he is and must be considered to be a quasi-judicial officer.

In the present case, petitioner asserts that his right to due process was violated in that respondent Ombudsman failed to assess and consider the evidence presented by petitioner in disapproving the recommendation for dismissal of the case by the investigating prosecutor, and his ruling is not supported by the evidence on record. The argument is specious.

His submission that he was deprived of his right to due process hinges on the erroneous assumption that the order of the Ombudsman for the filing of the necessary information is lacking in any factual or legal basis. Such a conclusion, however, stems from the fact that said order did not entail a discussion of the rationale for the Ombudsman’s action.

It may seem that the ratio decidendi for the Ombudsman’s order may be wanting but this is not a case of a total absence of factual and legal bases nor a failure to appreciate the evidence presented. What is actually involved here is merely a review of the conclusion arrived at by the investigating prosecutor as a result of his study and analysis of the complaint, counter-affidavits, and the evidence submitted by the parties during the preliminary investigation. The Ombudsman here is not conducting anew another investigation but is merely determining the propriety and correctness of the recommendation given by the investigating prosecutor, that is, whether probable cause actually exists or not, on the basis of the findings of fact of the latter. Verily, it is discretionary upon the Ombudsman if he will rely mainly on the findings of fact of the investigating prosecutor in making a review of the latter’s report and recommendation, as the Ombudsman can very well make his own findings of fact. There is nothing to prevent him from acting one way or the other. As a matter of fact, Section 4, Rule 112 of the Rules of Court provides that "where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or the chief state prosecutor on the ground that a probable cause exists, the latter may, by himself, file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation. 9

With more reason may the Ombudsman not be faulted in arriving at a conclusion different from that of the investigating prosecutor on the basis of the same set of facts. It cannot be said that the Ombudsman committed a grave abuse of discretion simply because he opines contrarily to the prosecutor that, under the facts obtaining in the case, there is probable cause to believe that herein petitioner is guilty of the offense charged.

As aptly pointed out by respondent court in its resolution denying petitioner’s motion for reconsideration, "to the Ombudsman, the narration of facts by Prosecutor Tamayo, . . . demonstrated adequate cause to prosecute the accused Cruz." 10 Furthermore, public respondents, in their Memorandum, correctly observed that "(f)rom the tenor of respondent Ombudsman’s statement, it is clear that he agreed with the findings of facts of the investigating prosecutor but disagreed with the latter’s conclusion on the import and significance of said findings. On the basis of the findings of facts of the investigating prosecutor, which were not disputed by petitioner, respondent Ombudsman believed that there was sufficient ground to engender a well-founded belief that a crime had been committed and that petitioner is probably guilty thereof." 11

Petitioner argues that the indication of disapproval by the Ombudsman which consists merely of two paragraphs fails to point out the issues and relevant facts and is consequently whimsical, capricious and arbitrary. Such proposition is fallacious. The mere fact that the order to file an information against petitioner consists only of two paragraphs is not sufficient to impute arbitariness or caprice on the part of the Ombudsman, absent a clear showing that he gravely abused his discretion in disapproving the recommendation of the investigating prosecutor. Neither is it tainted with vindictiveness or oppression. He disapproved the recommendation of the special prosecutor because he sincerely believed that there is sufficient evidence to indict the accused. This is an exercise of the Ombudsman’s power based upon constitutional mandate, and the courts should not interfere in such exercise.

The rule is based not only upon the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complaint. 12

II. Petitioner next avers that the error of respondent court in not requiring the production of the record of the preliminary investigation is two-fold. First, it was in violation of the constitutional right against arbitrary arrests because probable cause was not "personally determined by the judge," considering that the records of the preliminary investigation were not elevated to the judge for examination. Second, it was in violation of petitioner’s right to due process of law since he was deprived of the opportunity to examine the evidence against him and prepare his defense.

On the first issue, petitioner relies on the ruling in Lim, Sr., et al. vs. Felix, et al. 13 which held that —

If a judge relies entirely on the certification of the prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The judge commits a grave abuse of discretion.

The conduct of a preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or one for the determination of a probable cause for the issuance of a warrant of arrest. The first aspect of preliminary investigation is executive in nature. It is part of the prosecution’s job. The second kind of preliminary investigation, which is more properly called preliminary examination, is judicial in nature and is lodged with the judge. 14

For the latter, in the exercise of the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 15

Coming now to the case at bar, contrary to petitioner’s thesis, respondent court, in its resolution promulgated on February 17, 1993 denying petitioner’s motion to quash the information, found the existence of probable cause after making a deliberate and exhaustive review of the facts obtaining in the case. Thus:

All of the above logical process, which is supported both by the finding of fact in the Resolution and by admissions in the Motion of the accused, lead to the conclusion that probable cause exists against accused Roman Cruz, Jr., for acts described in the Information in the instant case.

The narration of facts culled from the record (as affirmed by both parties) support the narration of facts in the Information. The superficial analysis of the admissions made above indicate that the elements of Article 315 of the Revised Penal Code as well as of Articles 171 and 172 thereof may probably be established.

It is true that the Manila Hotel eventually treated the P350,000.00 as a "cash advance" to him. Accused Cruz, however, does not claim that there were cash advances made by him as a consequence of which he received this sum. Nor has accused Roman Cruz said that he had obtained a loan or cash advance from the Manila Hotel for a particular purpose for which he was expected to subsequently render an accounting. All that Manila Hotel’s subsequent description of this amount as a "cash advance," in fact, says is that when it turned out that P350,000.00 could not be properly accounted for, it had to be treated as an amount which accused Cruz had to pay back; thus, accountingwise, a cash advance.

For accused to have received such a large amount from a company of which he was the President required him to sign a receipt which would specify clearly what he was receiving it for. If he received the sum as a cash advance for some future expense, the Manila Hotel documents would clearly so demonstrate. If he received it as a cash advance (against his salaries or other benefits), it would appear as a loan in Manila Hotel’s books. Accused Cruz, however, has said no such thing in any of his pleadings nor apparently has he so stated during the preliminary investigation.

In other words, accused Cruz as President of the Manila Hotel — and, therefore, in a position of great fiduciary nature — received P350,000.00 in 1984 either for a non-existent reason or for a false reason.

He may have an explanation. As of this time, however, if the evidence on record is actually presented at trial, enough evidence would exist to put accused Roman A. Cruz, Jr. at peril of his liberty and would require him to explain his side of the matter.

A case has, therefore, been demonstrated in the record and in the averment of accused Cruz himself that the crime charged has probably been committed and that the accused is probably guilty thereof. (Emphasis supplied.) 16

Petitioner would have respondent court order the production of the records of the preliminary investigation in its determination of the existence of probable cause for the issuance of the warrant of arrest. First and foremost, as hereinabove stated, in a preliminary examination for the issuance of a warrant of arrest, the court is not tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 17 This is precisely what respondent court did. In resolving the issue of probable cause, respondent court made an in-depth analysis of the findings of fact of Prosecutor Tamayo, as well as the Omnibus Motion submitted by petitioner. The correctness of these facts was not even questioned by herein petitioner but, on the contrary was expressly affirmed in the latter’s Omnibus Motion dated September 17, 1992 wherein it was stated that "(t)he Order issued by the investigating prosecutor . . . contains a lucid narration of the relevant facts."

The case of Lim cited by petitioner is not applicable to the present case because, in the former, a warrant of arrest was issued by the respondent judge therein without conducting his own personal evaluation of the case even if only on the basis of the report submitted by the fiscal. Instead, the respondent therein simply declared: "Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor’s certification in each information . . . . This is far from what actually transpired before the Sandiganbayan as reflected by the records in this case. Hence, the ruling in Lim cannot be properly invoked.

As to the second issue, petitioner relies on the provisions of Section 8, Rule 112 of the 1985 Rules on Criminal Procedure, to wit:

Sec. 8. Record of preliminary investigation. — The record of the preliminary investigation whether conducted by a judge or a fiscal, shall not form part of the record of the case in the Regional Trial Court. However, the said court, on its own initiative or that of any party, may order the production of the record or any part thereof whenever the same shall be necessary in the resolution of the case or any incident therein, or shall be introduced as evidence by the party requesting for its production.

Petitioner’s prayer for the production of the record is intended not only for proper observance of the constitutional requirement that probable cause be determined personally by the judge, but also to enable him to examine the evidence and prepare his defenses and for trial.

Public respondents contend that the production of the record of the preliminary examination is not necessary since petitioner can always resort to any of the modes of discovery available to an accused under the Rules of Court, specifically citing Section 11 of Rule 116, which provides:

Sec. 11. Production or inspection of material evidence in possession of prosecution. — On motion of the accused showing good cause and with notice to all parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing, of any written statements given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or any other investigating officers, as well as of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not otherwise privileged, which constitute or contain evidence material to any matter involved in the case, and which are in the possession or under the control of the prosecution, the police, or any other law investigating agencies.

This rule refers to the right of the accused to move for production or inspection of material evidence in the possession of the prosecution. It authorizes the defense to inspect, copy or photograph any evidence of the prosecution in its possession after obtaining the permission of the court. A motion showing good reasons for the granting of the permission must be filed by the defense for this purpose, with notice to all parties. 18

It will be noted at the outset that precisely, as suggested by public respondents, herein petitioner, in asking for the production of the records of the preliminary investigation in order to enable him to prepare for his defense and for trial, is actually trying to avail of this mode of discovery. There was good cause shown for the motion to produce the records, that is, so that they may be introduced as evidence by the party requesting for their production, which is one of the grounds provided for under Section 8, Rule 112 of the Rules of Court.

It is true that the granting of permission lies within the discretion of the court. However, respondent court in this case has failed to sufficiently justify its refusal to have the records of the preliminary investigation produced before it so that petitioner may use them for his defense, either in its resolutions denying petitioner’s Omnibus Motion and Motion for Reconsideration, or in the pleadings and Memorandum filed by herein respondents before this Court. Consequently, we find no reason to deny petitioner the right to avail of such mode of discovery. If only for the reason that petitioner should be given the opportunity to inspect the evidence presented during

the preliminary investigation solely for the purpose of enabling him to prepare for his defense and for trial, this questioned resolution of respondent Sandiganbayan should be modified.

III. It is likewise contended that respondent court abused its discretion in not dismissing the information considering that, as found by the investigating prosecutor, the money received by petitioner was a cash advance for which he can only be held civilly liable, but which civil liability has already been extinguished. Citing the case of Yong Chan Kim vs. People, et al., 19 which held that a cash advance is in the form of a loan and, therefore, there can be no estafa committed, petitioner argues that he only incurred civil liability for the cash advance he obtained from the Manila Hotel. However, he contends that such liability had allegedly been extinguished when his leave credits and other benefits were withheld, the total of which was more than sufficient to liquidate the advance made.

Also, it is argued that petitioner was denied due process when respondent court failed to remand the case to the Ombudsman for further proceedings for the purpose of determining the persons who actually forged the questioned documents by conducting a handwriting analysis. This would have secured him from hasty and malicious prosecution, and would even have led to the discovery of the true culprit, if indeed documents had been fabricated.

It must here be stressed that a preliminary investigation is merely inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons against whom it is taken in jeopardy. 20

The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. 21

Conformably therewith, the arguments raised by herein petitioner that the cash advance is actually in the form of a loan and therefore no criminal liability attaches, and that respondent court should have remanded the case for further investigation to determine the true identity of the forgers, are all matters of defense which are best presented during the trial before respondent court for its consideration.

The main function of the government prosecutor during the preliminary investigation is merely to determine the existence of probable cause, and to file the corresponding information if he finds it to be so. And, probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted. 22

In the case at bar, the Ombudsman found that there was sufficient ground to believe that petitioner is guilty of the crime charged on the basis of the factual findings of Prosecutor Tamayo in the latter’s Order dated February 11, 1992 which were arrived at after taking into consideration the evidence presented by the parties. A cursory perusal of the records of this case will show that the findings of fact by the Office of the Ombudsman are supported by substantial evidence, hence the same should be considered conclusive. 23

Furthermore, the Ombudsman’s findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. 24 His arguments are anchored on the propriety of or error in the Ombudsman’s appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. 25 Insofar as this third issue is concerned, therefore, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari.

WHEREFORE, the resolutions appealed from are hereby AFFIRMED, with the modification that respondent Ombudsman is DIRECTED to produce the pertinent records of the preliminary investigation before the Sandiganbayan at the proper juncture of the proceedings therein and on sufficient justification therefor.

SO ORDERED.

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

# Footnotes

1 Annex A, Petition; Rollo, 25.

2 Annex B, id.; ibid., 37.

3 Rollo, 93-98.

4 Rollo, 174.

5 69 Phil. 635 (1940).

6 Rollo, 14.

7 Section 1, Rule 112, Rules of Court.

8 G.R. Nos. 92319-20, October 2, 1990, 190 SCRA 226.

9 Pursuant to Section 3, Rule V of the Rules of Procedure of the Office of the Ombudsman, the Rules of Court shall apply suppletorily.

10 Rollo, 42.

11 Rollo, 103.

12 Ocampo IV vs. The Honorable Ombudsman, et al., G.R. No. 103446-47, August 30, 1993.

13 G.R. Nos. 94054-57, February 19, 1991, 194 SCRA 292.

14 People vs. Inting, et al., G.R. No. 88919, July 25, 1990, 187 SCRA 788.

15 Soliven, et al. vs. Makasiar, etc., et al., G.R. No. 82585, November 14, 1988, 167 SCRA 393, jointly deciding G.R. Nos. 82827 and 83979.

16 Rollo, 34-35.

17 Enrile vs. Salazar, etc., et al., G.R. No. 92163, June 5, 1990, 186 SCRA 217.

18 Martin, R.G., 1985 Rules on Criminal Procedure, 1985 ed., 372.

19 G.R. No. 84719, January 25, 1991, 193 SCRA 344.

20 Paderanga vs. Drilon, et al., G.R. No. 96080, April 19, 1991, 196 SCRA 86.

21 Pangandaman, et al. vs. Casar, etc., et al., G.R. No. 71782, April 14, 1988, 159 SCRA 599.

22 Que vs. Intermediate Appellate Court, et al., G.R. No. 66865, January 13, 1989, 169 SCRA 137.

23 Section 27, R.A. 6770 (Ombudsman Act of 1989).

24 Cf. Sesbreno vs. Ala, et al., G.R. No. 95393, May 5, 1992, 208 SCRA 359.

25 Commission on Audit vs. Tanodbayan, et al., G.R. No. 81476, July 26, 1991, 199 SCRA 622.

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